R. v. S.L., 2025 ONCJ 105

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-02-25
COURT FILE No.: Pembroke 20-1530

Between:

His Majesty the King
— AND —
S.L.

Before Justice J.R. Richardson
Heard on August 1 and 2, 2024
Sentence Imposed Orally on December 19, 2024
Reasons for Sentence Released on February 25, 2025

Caitlin Downing — counsel for the Crown
Forest Poff-Smith — counsel for the accused

Introduction

[1] The issue I must decide in this case is the appropriate penalty for under the clothes digital touching of an 11-year-old girl by her step-father.

[2] I gave oral judgment in the trial of this matter on January 27, 2023 and released a written judgment on February 3, 2023: R. v. S.L., 2023 ONCJ 84. The accused testified that the incident did not happen. In the alternative, the accused advanced that if the incident did happen, he was sleeping and could not have formed the requisite intention to commit the offence.

[3] I did not believe the accused, nor was I left in a reasonable doubt by his evidence. I was not left in a reasonable doubt by the balance of the evidence that I did accept. I rejected the argument that, on these facts, the issue of lack of intention was available to accused absent advancing an NCR-MD defence.

[4] I ordered an assessment with respect to NCR-MD. The opinion of the attending psychiatrist was that SL did not qualify for NCR-MD. It is discussed in greater detail below. I then made a finding of guilt.

[5] On December 19, 2024, I imposed a conditional sentence of two years less one day. The conditional sentence order includes 15 months of house arrest. Following service of his conditional sentence, I placed SL on probation for three years.

[6] That day, there was an issue as to whether the Sexual Assault or Sexual Interference charge would be stayed by virtue of R. v. Kienapple. Defence counsel advised that he believed there was agreement to stay the Sexual Assault. I indicated to the parties that I would check the record and advise the parties.

[7] I checked the record and determined that there was no agreement on the record to this effect. I asked my assistant to confirm with counsel that was their intention. They advised that it was. I then ordered the matter to come on before me on February 11, 2025 and formally stayed the Sexual Assault.

[8] On December 19, 2024, I indicated that I would release written reasons at a later date. These are those reasons.

The NCR Assessment

[9] I ordered an assessment with respect to criminal responsibility which was completed by Dr. Zeynep Selaman on April 13, 2023. The following information was revealed by the assessment:

• SL was born on April 25, 1978 in Kirkland Lake Ontario. While his mother may have consumed alcohol during pregnancy, such consumption was “not excessive” and SL “was able to reach all his developmental milestones” as a child.
• After he was born, SL and his family lived in Matachewan, Ontario.
• SL is the youngest of three children. He has an older sister AL and an older brother DL.
• SL is Indigenous. I will discuss more about SL’s mother’s struggle to have her Indigeneity recognised when I discuss the Gladue report below.
• SL witnessed verbal abuse between his mother and his father. His mother and father separated when he was six. SL remained with his mother and moved with her to North Bay.
• SL was a quiet child who enjoyed arts and crafts.
• When he was 11 or 12, he fell while rock climbing and landed on his head. He lost consciousness but only for a moment. He did not notice any other indicia of a head injury.
• When SL was 13, he and his mother moved to Sudbury so that his mother could attend post-secondary education. After she completed her studies, they moved back to North Bay.
• When SL was 15, his mother moved back to the Matachewan area to take up employment as a substance abuse counsellor on the Indigenous Territory there. SL initially remained in North Bay and lived with his sister and her husband. He had difficulty in school so his mother decided to move him to Matachewan.
• SL hated Matachewan and dropped out of school. He thought that depression, which he was first diagnosed with when he was 16, had something to do with his decision to drop out. He went back to North Bay.
• He had his first sexual experience in high school, which was oral sex with a female. A friend of the female later accused SL of sexually assaulting her. He later reconnected with the woman and she told him that someone else sexually assaulted her; SL did not.
• He was homeless for a while and lived off social assistance. He had his first intimate partner relationship with S. S had a daughter, T, from a previous relationship. They dated for four years; SL said that the relationship ended due to financial stress.
• SL first used cannabis when he was 17. He did not like the feeling of being disconnected and unaware of his surroundings. He has not regularly used cannabis since.
• Through his teenage years, SL reported trying depression medication which had little effect.
• When SL was 25, he moved to British Columbia to work with his father as a pipeline mechanic. He maintained a residence in North Bay and he returned there when he was not working. He worked as a pipeline mechanic in Ontario, New Brunswick and Manitoba.
• There is a report from the North Bay hospital from September 2003 which indicated that SL, who was then 25, was seen in the emergency department at the North Bay Psychiatric hospital. Previous diagnoses were adjustment disorder, depressed mood and social anxiety. There was a suspicion of narcissistic personality traits. His sleep apnea, which I describe in greater detail below, was also present, but untreated because SL could not afford a CPAP machine. He was referred to counselling and psychiatry.
• Seven months later, there was another admission to the North Bay Psychiatric Hospital on a Form 1. He reported being followed by a psychiatrist and he was on an anti-depressant. He reported feeling unsafe and had thoughts of overdosing. He was admitted; his medication was changed. He was ultimately diagnosed with dysthymic disorder, sleep apnea and worsening depressive presentation. The clinical note indicated that there was a need to rule out major depressive disorder and narcissistic personality traits.
• When he was 28, he had another relationship, with another woman named S, but that ended after four years. He stated that the relationship ended because he flirted with another woman.
• In his 20s, SL experimented with illicit drugs, including ecstasy, cocaine, mushrooms and LSD. He used these drugs socially at parties. He did not regularly use them.
• In his early 30s, SL became interested in the swingers community.
• When SL turned 32, he moved to Ottawa and completed an Audio Recording Technician Program.
• SL’s father passed away from A.L.S. in 2010.
• When he was 35, he met MB, the mother of FB, who is the complainant in this matter. They started a relationship, and they had a child together, LL.
• In his mid-30s, SL tried other antidepressants and he reported that the side effects from the medication were worse than the symptoms of the depression. He has not used anti-depressant medication for several years.
• In 2018, SL stopped working because of stress at work. He was depressed and he thought about suicide. He spent three days at the Montfort Hospital in Ottawa.
• The same year, he declared bankruptcy.
• In 2019, he did some work stocking shelves at Walmart overnight.
• After discharge, he returned briefly to work as a pipeline technician but returned to audio video work because the travel was too difficult for the family.
• In 2021, after he was charged, he moved back to North Bay. His relationship with MB ended. He did some work manufacturing and completed a paralegal course.
• In September 2022, he moved back to Ottawa to live with his sister. He enrolled in an Electrical Engineer Technician Program.
• He sees LL on weekends.
• SL identifies as a bi-curious, cisgenderal male and a non-monogamous individual.
• SL stated that he and MB agreed to have a polyamorous relationship, where both of them would have consensual intimate relationships with other people. SL told the social worker that he struggled with concerns about his body image including his penis. He received psychotherapy. MB told the social worker that although SL had consensual intimate relationships with others, she did not. SL contradicted this and reported that in the summer of 2019, both he and MB were involved in consensual relationships with others, and this did not cause tension in their relationship.
• The report indicates that the camping trip where the offence took place was a family friendly event for polyamorous families. SL attended workshops related to polyamory, and general sexual information such as how to go about introducing new sexual partners into a relationship and navigating sexual partners and children. There were no events specifically focussed on sexual intercourse. There was one event, which was a “snuggle party” in which a group of people consensually cuddled while clothed. None of this evidence concerning the nature of the camping trip was before me at trial.
• SL was diagnosed with obstructive sleep apnea over ten years ago. He has used a CPAP or BiPAP machine for sleep apnea. SL told Dr. Selaman that he was not wearing his sleep apnea machine when he was on the camping trip.
• MB reported that SL regularly used his machine unless he fell asleep forgetting to wear it.
• MB denied that SL had issues with his sleep, other than the fact that he slept a lot which she chalked up to his depression and the fact that he did not take medication. MB was not aware of any “unusual behaviour” during SL’s sleep.
• MB did corroborate SL’s report that he would wake her up to have sex in the middle of the night. She estimated that this occurred about once a month. She could not recall if he was aware or unaware of doing this. She stated that there were occasions when they talked about it afterward. She also stated that there was one occasion when he told her they had sex in the middle of the night and she did not recall it.
• MB also reported that SL would get up to use the washroom, watch TV, or play with his phone. There were no incidents of him sleepwalking or being unaware of his actions during his sleep.
• According to SL’s mother, he gets disrupted when he is not able to use his CPAP machine. MB agreed with this, noting that if he did not wear his mask, he would sleep poorly and wake up very tired.
• SL told Dr. Selaman that one prior partner complained that SL fondled her breasts while he slept. SL could not remember the partner’s name.
• SL stated that there was one prior incident where he woke up to find FB in bed and he had his hand on her crotch. He indicated that he told MB about it. MB told him that because FB was not aware of it, he should just let it be. After this incident, he withdrew from some things involving FB, including cuddling with her and putting her to bed.
• When Dr. Selaman spoke with MB, she did not confirm this account.
• SL is prescribed Modafinil, which is a medication that reduces narcolepsy and other sleep disorders. He also uses CBD oil to help him sleep.
• SL reported that initially, his relationship with FB was healthy. Once LL was born, they grew apart.
• SL reported that he watches pornography three to four times a week. He prefers home videos and female ejaculation.
• SL’s primary supports are his mother and his sister. His mother lives in North Bay but comes to Ottawa to visit SL. His sister lives in Ottawa. He also has a brother, who lives in Matachewan.
• SL started drinking when he was 16. He reported drinking to the point of black out four or five times when he was a teenager. As an adult, he has drunk to the point of black out twice in his early 30s. He last consumed alcohol in 2019. He drank one or two drinks in the evening about once a month.
• There is a history of psychiatric admission in SL’s family. His aunt was admitted to the North Bay hospital for about two years. SL’s mother and sister have also had depression. His mother is an alcoholic and has attended AA. His sister has misused both alcohol and drugs and has attended NA. His brother has spent time in detox for drugs. SL’s father struggled with the use of alcohol. There is no history of suicide in the family.
• SL suffers from high blood pressure, diabetes and asthma. I will discuss his physical health problems more fully later in this judgment.
• In January 2023, after he was found guilty, he went to the emergency department at the Montfort Hospital because he was concerned that he would hurt himself. Although he initially wanted to be admitted to hospital, he was not admitted when community options were reviewed with him. He was not certifiable. According to Dr. Selaman’s report, “[h]e was found to have good insight and was future oriented.”
• He reports experiencing panic attacks when he is in court. He also had a panic attack when he saw FB during a meeting with MB to pick up or drop off LL.

[10] Dr. Selaman diagnosed the following:

a) Persistent Depressive Disorder (Dysthymia). Individuals with such a disorder have a depressed mood for most of the day, for more days than not, for at least two years. They also may have poor appetite or overeating, insomnia or hypersomnia, low energy or fatigue, low self esteem, and poor concentration or difficulty making decisions. Although there is a risk of this developing into a major depressive disorder, it is more likely that he will present with an adjustment disorder in response to stressors.

b) Obstructive Sleep Apnea (based on historical diagnosis).

[11] Dr. Selaman stated that she could not comment, one way or another, on previous comments of suspicion of narcissistic personality traits.

[12] According to MB, SL is a “very sexual person” who wanted sexual intercourse “a lot”. He also struggled with sexual dysfunction. She saw no evidence that he was interested in women who were younger than him.

[13] With respect to the presence or absence of “sexsomnia”, Dr. Selaman indicated that she consulted with Dr. Elliott Lee, who specialises in sleep disorders. She stated:

My question to him was, “How might the OSA [Obstructive Sleep Apnea] and not wearing his BiPAP machine on the nights in question have influenced Mr. [SL’s] behaviour overnight?”

Dr. Lee wrote the following:

This is thought to be a disorder of arousal, in which sexual activity is initiated during the night, with the person initiating the activity most often being unaware of the activity with no memory of the activity the next night. Often, the only way activity is identified is by the partner, or evidence of activity in the morning due to self stimulating behaviours. It is very poorly understood, as subjects generally do not report this because of embarrassment and/or lack of clinical significance (e.g. if neither subject nor partner is bothered by such activity, there is no reason to identify this as an issue).

Dr. Lee indicated that a family history of these behaviours as well as severe OSA could be associated with triggering a parasomnia. He wrote that OSA is not considered a common trigger for sexsomnia, but there have been case reports describing the resolution of sexsomnia symptoms once there is compliance with treatment (CPAP or BiPAP machines). However, Dr. Lee indicated that it would be unusual for a parasomnia to only occur on the nights in question without a previous history of other behaviours while asleep. [SL] only discussed one previous partner saying that he fondled her breasts while apparently asleep. [MB]’s descriptions of their sexual intercourse overnight did not demonstrate that [SL] was unaware or still asleep, and [SL] recalled these encounters.

I also considered the effect of alcohol, particularly on the night of July 13, 2019. While [SL] may not have been “hammered” as he reported, he was still under the influence of alcohol, exhibiting some signs of intoxication, feeling “buzzed”. Dr. Lee indicated that while alcohol can be a factor that triggers a parasomnia behaviour, including sexsomnia, it is more likely that alcohol can exacerbate the impulsivity that is present in untreated or poorly treated OSA. Alcohol can significantly worsen OSA due to the muscle relaxant properties. The alcohol, in conjunction with a high baseline libido (not described in other cases of sexsomnia) as well as OSA, can all contribute to increased impulsivity.

[14] With respect to whether SL knew that what he was doing was wrong, Dr. Selaman opined that he did, largely because of FB’s evidence that he stated, “I’m sorry”. She noted,

If his actions were indeed incurring during slow-wave sleep, such as in sexsomnias, his lack of awareness would have prevented him from being able to recognize his behaviour and subsequently immediately apologize for it.

In reviewing the information I had about the case, and Dr. Lee’s information about sexsomnias in particular, it is my opinion that there were factors that decreased [SL]’s ability to inhibit his behaviour (increased his impulsivity). One factor is his OSA at the material time, which was likely worse those nights due to not using his BiPAP machine. The other and very relevant factor is the use of alcohol on the night of July 13, 2019. These factors speak to [SL]’s mental state and “irresistible impulse” rather than his knowledge of wrongfulness.

[15] On this basis, Dr. Selaman opined that SL did not meet the criteria for the Not Criminally Responsible Defence.

The Sexual Behaviours Assessment

[16] Dr. Jonathan Gray of the Royal Ottawa Hospital completed a Sexual Behaviors Assessment on SL. His report is dated April 17, 2024.

[17] I will not repeat SL’s history as set out by Dr. Selaman’s report. I will, however, set out any changes or omissions from her report:

• SL told Dr. Gray that he saw a “sexual therapist” in 2014 or 2015 because he was anxious appearing nude around sexual partners, and he was particularly self-conscious about his genitals.
• SL also told Dr. Gray that he saw a counsellor every two weeks between September and November 2023. He discontinued that because of issues with his physical health.
• He essentially repeated the information that he provided Dr. Selaman and others about his experience with anti-depressant medication.
• SL indicates that he suffers from COPD and hypertension. He has lost 80 pounds and he reported that the hypertension has now resolved. He reported that he has previously had his gallbladder and appendix removed and he has had a hernia repaired. In January 2024, he had cardiovascular surgery to replace his mitral valve as a result of endocarditis. I will discuss his heart condition more below.
• Other than reporting that he uses marihuana once a year, and daily use of alcohol during his teens and early 20s, his substance abuse history was largely the same as reported to Dr. Selaman.
• In addition to his sister and brother, SL reported that he has two half sisters who he has not seen for many years.
• SL reported that his father had difficulties relating to children and he complained that his father would work to avoid spending time with him. He recalled spending more time with his half-siblings and his step-mother than his father during access visits.
• SL reported that he was diagnosed with a learning disorder in written communication. He had fights with peers during school because of stress over his parents’ separation. He completed Grade 10.
• He attributed his father’s death to the decision to change careers. After completing his AV technology program, he worked in that field both as an employee and as a freelancer.
• He had to drop out of the engineering program because of his heart problems.
• SL gave permission to Dr. Gray to speak to his friend CM, a collateral contact that Dr. Selaman did not speak to. CM has been SL’s friend for 17 years. They dated for a few months but their relationship evolved to a platonic one. She reported that SL never demonstrated any odd sleep behaviours. She reported that his sex drive was normal for someone his age. She did not notice any unusual sexual interests, nor any penchant for children. She described him as a social drinker. She has never seen him drunk. She has not witnessed him use drugs.
• With respect to impulsivity, CM sees SL as someone who plans things carefully. She does not endorse impulsive behavior. He does not anger. She opined that he is an optimist. She stated that she has seen him in periods of “low mood”.
• In her experience and based on her witnessing his behavior with others, he is respectful towards women.

[18] Dr. Gray also reviewed SL’s mental health history, which is largely in agreement with Dr. Selaman’s report. Dr. Gray provided a bit more detail with respect to SL’s recent history, noting:

• In June 2017, while at the Montfort Hospital Emergency Department, he reported that his testosterone level was low and he was given a patch to supplement this.
• In July 2017, his family doctor prescribed Viagra for sexual dysfunction. His depression was improved.
• He accessed the community health team two days after seeing his family doctor for issues related to chronic depression, low self-esteem and stress.
• In September 2017, he reported to his family doctor that his depression was returning, he was tired and had low motivation. His family doctor prescribed a second anti-depressant.
• He repeated these complaints in October 2017, and his family doctor prescribed a third anti-depressant.
• Later in October 2017, SL repeated these complaints, and his family doctor discontinued one anti-depressant and substituted another one. He was also prescribed Seroquel, which is a sedative.
• In November 2017, SL reported that his mood was much better and his doctor discontinued another anti-depressant.
• In mid-2018 SL was evaluated for low testosterone and hypogonadism. He had an MRI on his pituitary gland which was normal. The testosterone patches were discontinued and, in their place, he was given testosterone injections.
• In December 2018, SL reported minimal benefit from the injections.
• In October 2019, SL reported that he had stopped his medications.

[19] Dr. Gray also reviewed SL’s sexual history which was largely as reported to Dr. Selaman with the following changes and omissions:

• SL told Dr. Gray that his relationship with S (the second relationship) broke up because he had the idea of making their relationship an open relationship with other partners and she was “not keen on that.” I note that he told Dr. Selaman that the relationship ended because he flirted with another woman.
• SL gave Dr. Gray additional information about his relationship history and sexual history while he was involved with MB. He stated that he and MB had sex about once a week. At the same time, he dated another woman, K for about a year and a half and had sexual intercourse with her once or twice a month. He reported that MB was involved in a six-month sexual relationship with another man.
• SL reported that he has had between 30 and 40 short-term or one-time sexual partners.
• SL reported that he has engaged in group sex four or five times.
• SL reported that he paid for sex with an escort twice, when he was younger while working on the pipelines and once on a trip to Amsterdam. He denied enjoying the experience, citing the lack of an emotional connection.
• SL was consistent in his report on the use of pornography.
• SL denied symptoms of common paraphilias.
• SL denied sexual interest in males. With women, he prefers females in their 20s. He denied any interest in prepubescent males and females.
• He reported “average” sex drive. He denied that a partner has ever said that he is too demanding.
• He agreed that he has used sex as a coping mechanism.
• SL denies problems with erectile dysfunction.

[20] Dr. Gray indicated that laboratory tests revealed that SL has a normal testosterone level for his age and sex.

[21] Dr. Gray ran a battery of psychometric instruments, the results of which were:

• A low score with respect to anger.
• Low scores on two instruments measuring alcohol and drug use.
• Below average scores in impulsivity.
• SL disagreed with 36 statements typically quoted by rapists.
• SL endorsed only one of 38 statements typically quoted by child molesters (“Children can give adults more acceptance and love than other adults”).
• With respect to whether there is evidence of narcissism or impression management (deception in self reporting), SL had an average score on the “self-deceptive management” scale and a highly elevated score in impression management. Dr. Gray indicated that “[t]his finding suggests that one must exercise cautions when interpreting his responses to questionnaires due to a tendency to engage in impression management”.

[22] With respect to phallometric testing, SL scored clinically significant sexual arousal to heterosexual consensual sex, and nude adult women. Dr. Gray concluded that there is no evidence of sexual arousal to pre-pubescent females.

[23] With respect to risk assessment, Dr. Gray ran two instruments to measure risk, which revealed the following:

• The Static-99R score is -1 which is the second lowest level for sexual or violent reoffence. His risk of reoffence using this instrument is the 9.7th percentile. The Static-99R instrument measures static factors in an offender’s profile.
• The STABLE-2007 score is 4 which puts him in the “moderate density range for criminogenic needs” or the 26.6th percentile. The Stable-2007 instrument measures dynamic risk factors. The only caution I note with respect to the interpretation of these results (which Dr. Gray did not note) is that many of the scores are based on SL’s self-report. As discussed above, these results need to be reviewed with caution given SL’s score on the deception scale indicated that he was more likely to present himself in a better light.
• The combination of the Static-99R and STABLE-2007 results in a “below-average risk level”. Most individuals in this risk level progress to “Very Low Risk” if they receive appropriate “correctional strategies” and manage to remain offence-free in the community for five years. Only 0.8% of individuals in this risk category reoffended sexually within one year of release and 6.1% reoffended sexually within five years. Levels of reoffence for violent offences higher at 1.6% after one year and 13.3% after five years.

[24] Dr. Gray diagnosed SL with persistent depressive disorder, also referred to as Dysthymia.

[25] Notwithstanding that he has been found guilty of a sexual offence against a child, Dr. Gray stopped short of diagnosing SL with a Pedophilic Disorder. Dr. Gray stated:

Rather than a pedophilic disorder, [SL]’s offence are better explained as opportunistic, facilitated by disinhibition through disrupted sleep and alcohol. The combination of disruptive sleep and alcohol would transiently increase his impulsivity, causing him to exercise less judgment as he acted out with an available potential sexual outlet. I note that sleep medicine expert, Dr. Lee, was quoted in Dr. Selaman’s report as suggesting alcohol could exacerbate potential impulsivity arising from untreated sleep apnea, adding evidence to the above motivation I proposed for the offences.

[26] Dr. Gray also opined that SL’s mental illness is not directly related to his conduct in the index offences, stating:

As stated above, his offence was opportunistic and impulsive, due to coincidence of impaired sleep with then untreated sleep apnea, along with the synergistic effects of alcohol in impairing his judgment. In my opinion, pedophilic disorder is not present and was not a motivating factor in his choice of victim. It was [FB]’s availability at the time, rather than her lack of pubertal development, that resulted in [SL]’s acting out sexually against her.

[27] Dr. Gray stated that given that SL’s risk level is low, he is unlikely to be offered sex offender treatment while in custody. Dr. Gray’s opinion is that offering sex offender treatment to low-risk offenders actually increases their risk of reoffence.

[28] Dr. Gray recommended that:

• SL be prohibited from having unsupervised contact, taking paid employment or acting in a volunteer capacity with respect to females under the age of 18. Dr. Gray indicated that contact with his daughter LL should be left to the supervision of the Children’s Aid Society. He should not share a bed with LL.
• Although SL would not benefit from sex offender treatment, he would benefit from counselling and therapy for his Persistent Depressive Disorder diagnosis.
• Although alcohol was a factor in the commission of the offence, SL does not have a pattern of drinking that requires further treatment.

The Pre-Sentence Report

[29] A Pre-Sentence Report was prepared. It is dated June 28, 2023. I highlight information that is new or inconsistent with the information already provided in the two psychiatric reports:

• I have already indicated that SL is Indigenous. This report indicates that he is Ojibway and that indigenous practices were a big part of his childhood and adult life. SL’s Ojibway heritage emanates from his mother’s side of the family. His father was not Indigenous.
• SL was placed in a special needs class in grade school due to deficiencies in reading and writing.
• SL was bullied in grade school and high school. He got in fights with other students because of this.
• Regarding the polyamorous nature of SL’s relationship with MB, the parties became monogamous while MB was pregnant with LL. After LL was born, SL asked to resume a polyamorous lifestyle and MB agreed.
• MB repeated her previous information in Dr. Selaman’s report that she was not “into” the polyamorous lifestyle as much as SL was. MB stated that SL had a bigger sexual appetite than she did. Contrary to the impression from Dr. Selaman’s report, she believed that her sex drive was “below average” and that SL’s sex drive was average for a man his age.
• MB told the author of the pre-sentence report that she did not initially believe the offences took place and they were false allegations. Her opinion has now changed. She stated, “I have to believe my daughter”.
• SL continues to attend events with a polyamorous group on a monthly basis.
• SL wishes to go to university once he has completed his electrical engineering technician course.
• SL has not consumed alcohol since the offences.

[30] The author of the pre-sentence report opined that SL would be suitable for community supervision.

The Sacred Story

[31] SL’s Sacred Story (most often referred to as a Gladue report) was prepared by Sarah Niman. Ms Niman is a lawyer and a former journalist.

[32] Crown counsel objected to parts of Ms Niman’s report on the basis that it represented advocacy rather than setting out the facts. Defence counsel indicated that he agreed. I have not referred to areas of the report that advocate as to sentence.

[33] I point out, however, that I would have been open to SL participating in a restorative justice process in advance of the sentencing. This possibility, raised in the Sacred Story, was not pursued by defence counsel. It may well be that SL’s decision to maintain his innocence in the wake of the findings of the Court, which is his right, do not permit such a process to unfold. There may well be other barriers, including whether FB and MB would be willing to participate.

[34] I have only included details from SL’s Sacred Story that are new or inconsistent with the reports and information that I have already highlighted. It reveals the following:

• SL remembers always having food on the table, weather-appropriate clothing and secure housing. SL’s sister A, who was also interviewed for the report, stated that the family lived in poverty, but her maternal grandparents made sure that the freezer was full of wild game meat that was traditionally harvested.
• During summer months SL and A would live with his maternal grandmother in Matachewan. She was SL’s primary source of information about his ancestry and culture. He learned to trap, hunt, fish, gather medicine and harvest berries from her.
• SL recalls keeping his Indigenous identity hidden from other children because he observed racism directed at others who looked more Indigenous than he did.
• SL lives with leg spasms which flare at night. He has high blood pressure, diabetes, asthma, difficulty losing weight (the report was written before SL’s heart problems and significant weight loss), lower back pain, sore hands and knees from physical labour and sleep apnea. His Sacred Story points out that Indigenous people have higher rates of arthritis, asthma, diabetes and obesity.
• SL’s mother incorporated traditional medicine into his health routine when he was growing up.
• SL prefers “holistic modalities” rather than prescription medication to treat his depression.
• SL has had friends, acquaintances and one cousin die by suicide. A former partner attempted suicide. Regarding SL’s suicidal ideation, the Sacred Story points out that Indigenous persons have higher rates of suicide and depression.
• SL’s traditional name is Nika, which means “goose”. The name goes back to time that SL spent with his grandmother on the land in Matachewan and a legend that his great-great grandfather told her on his deathbed.
• In order to avoid having their children sent to Residential School, many of SL’s ancestors moved away from Matachewan to live off-reserve. Off-reserve, they suffered from disconnection from support, poverty, and racism. SL’s great-grandparents moved off-reserve in 1945 to avoid Residential School. It was too late for SL’s grandmother, who went to residential school, likely at Spanish.
• SL brings his daughter LL to powwows in order to learn more about her Ojibway heritage.
• There is, fortunately, no apparent history of a family member being adopted out through discriminatory child welfare practices endured by many Indigenous people and commonly referred to as the “60s Scoop”.
• Enfranchisement was a practice in which Indigenous people renounced their status under the Indian Act. Enfranchisement allowed an Indigenous person to have Canadian citizenship and hold land. It also meant that they renounced “Indian” status, tax exemption status, membership in their band, the right to reside on the reserve and the right to vote in community elections. SL’s grandmother enfranchised in 1952. In 1985, after amendments were made to the Indian Act, she was permitted to regain status, as was her daughter, SL’s mother. Unfortunately, the law did not permit status to be transferred to subsequent generations, including SL and his sister A. After a long legal battle in the Superior Court and the Federal Court, they received confirmation that they are free to apply for status.

The Letters of Support

[35] Defence filed eleven letters of support from SL’s family and friends. Many of the letters have a large portion of the letter which is blacked out. Without an explanation for the edits, this results in the letters receiving less weight. Below I have summarized the letters:

• BG stated that he has been a friend of SL for over 27 years. He states that he has rarely seen SL inebriated by alcohol and when he did, they were much younger. He describes SL as a very caring man, who he has never witnessed in anger.
• CL stated that she has been friends with SL for about 17 years. She revealed that she has been the victim of a child sexual assault. She stated that he was supportive of her when she experienced a mental health breakdown in 2019. She stated that he was an attentive and affectionate father. A great deal of her letter has been blacked out.
• CT stated that she is a member of the Canadian Forces. She is also a survivor of child sexual abuse. She is FB’s aunt. She stated that she knew SL to be a soft-spoken and caring individual. He is a doting father, but he does not spoil his daughter. He has been of assistance to her and her husband in dealing with their matrimonial differences and in watching their kids. She expressed concern that any sentencing will “cause significant harm to LL’s well-being.” As with CL’s letter, a large portion of the letter has been blacked out.
• I have already mentioned CM. She gave information to Dr. Gray for the preparation of his report. She stated that she has known SL for more than 15 years. She has lived with him for four years as a roommate. She states that he is a “dependable and trustworthy friend”. She stated that SL supported her through the death of her father and her partner. Like the others, she highlighted SL’s commitment to being a good father.
• DL is SL’s mother. She stated that she is the youngest of fourteen people. She recalled large family gatherings in Matachewan. She stated that he has been supportive of and participated with her in Indigenous practices, including as firekeeper, fasts and sweat lodge. She described him as a “patient, thoughtful concerned and fair Dad”. She expresses concern that SL would not do well in a prison setting because he is extremely trusting. I was particularly struck by DL’s respectful, balanced approach to her letter.
• NT and JT are the aunt and uncle of FB. They expressed a keen desire to try to be supportive of FB. They indicated that in their observation, SL was supportive, caring and understanding. He has been supportive to them personally in times of stress. He is a dedicated father. As with some of the other letters, a large portion of it has been blacked out.
• PT is FB’s uncle. He stated that he lived with SL, MB, FB and LL for a short while. He believed that SL was a good friend, a good uncle, a good partner and a good father.
• SM is SL’s former girlfriend. They were in a relationship between 1999 and 2004. She has a daughter from a previous relationship. She reported that SL was always extremely kind to her daughter. They went on trips together without SM. Towards the end of the relationship, her daughter referred to SL as “Dad”. She stated that SL was a “generous, trustworthy and loving man” who “wears his heart on his sleeve”. He has been extremely supportive of her through the death of a friend. She stated that she has observed SL with his daughter and he is caring and loving.
• TM is SM’s daughter. She corroborated what her mother said about SL. She stated that SL was a father figure to her because her father was not present in her life.
• SA is a friend of SL. He has known him for about six years. He is a friend of NT. He described SL as a “loving father” and a “good man with a caring heart.” There is a large portion of the letter that is blacked out.
• AB is a friend of SL. She has known him for about two years. She described him as a “genuine, compassionate friend”. He has helped her with anxiety and depression. Unfortunately, she spent a lot of time in her letter criticizing MB’s parenting of LL.

[36] Letters of support must be treated with caution. Sexual offences against children are committed in private and out of the public eye. They are committed by otherwise pro-social and upstanding citizens. This case is no different. This point was made well by Justice Antonio of the Alberta Court of Queen’s Bench in R. v. Shrivastava, 2019 ABQB 619 where she noted that placing too much weight on “otherwise good character” “can undermine the denunciative and deterrent functions of criminal sentences” (at paragraph 87).

[37] In this case, the fact that parts of the letters are blacked out further heighten the customary caution with which these letters are received. I give them very little weight.

SL’s Medical Condition

[38] A letter from Dr. Susan Hunt, dated March 13, 2024, was filed as an Exhibit. It details the following:

• SL started to feel unwell in September 2023. By October 2023, he was experiencing persistent nausea and vomiting. He saw his family doctor several times due to this.
• In January 2024, due to the severity of his symptoms, SL was referred to the Emergency department of a hospital. Once there he was admitted and diagnosed with Sepsis.
• SL was found to have Strepmitis Bacteria and Endocarditis. He was admitted to the Ottawa Heart Institute and underwent an aortic valve replacement and mitral valve repair on February 2, 2024.
• SL also suffered from renal failure which required dialysis.
• He was ultimately stabilised in hospital through the use of antibiotics and dialysis. He was discharged from hospital on February 24, 2024.

[39] Notes from SL concerning his present medical needs were filed as part of Exhibit 8. It reveals that:

• SL sees a hematologist who monitors his warfarin levels.
• He takes cardio classes at the Royal Ottawa. One class is an on-line class which provides tips on healthy eating, daily activities and things to try to avoid.
• The second class is an in-person class, where he goes to the Ottawa Heart Institute and completes an exercise routine. This is an hour long.
• Each day SL must complete three tests of his blood pressure and average the results.
• Once a day SL must monitor his heart rate. If he exercises, he must also monitor his heart rate.
• SL must test his blood sugar once a day. He also tests his blood sugar before and after exercise. He has found that his blood sugar will drop to “dangerous levels” after he exercises. If he feels unwell, he also must test his blood sugar.
• He must carry a source of sugar with him in case his blood sugars drop to dangerous levels.
• He must do two 30-minute low-impact cardio activities, such as walking or using a stationary bike a week.
• He must do two to three high-impact cardio activities a week.
• During sentencing argument, it was revealed that, other than regular checks with a hematologist, SL’s renal issues have resolved and he is no longer required to undergo dialysis.

The Victim Impact Statement

[40] FB did not file a Victim Impact Statement.

[41] MB, the mother of FB, filed a Victim Impact Statement. It reveals the following:

• FB was in a “fragile mental state for a long time after this crime came to light.”
• MB feels incredible guilt due to the revelation that FB did not come to her out of fear that MB would not believe her or support her.
• FB has significant trust, security, self-esteem and body language issues.
• FB regularly self-harmed.
• FB withdrew from everyone.
• FB’s performance at school suffered. She was almost expelled due to severe absenteeism.
• FB has been verbally hurtful toward her mother. She also is angry and mean toward LL.
• Over the Canada Day weekend of 2020, FB expressed suicidal ideation to a friend. This resulted in a police attendance at her residence and a trip to the Emergency Department of a hospital. This has caused significant insecurity and insomnia on MB’s part.
• MB did not share what was going on with LL. SL still had regular parenting time with LL. MB reported that LL came home and asked her why FB made SL leave. MB reported significant angst from not knowing how to tell LL what happened in the future.
• MB has also suffered from the “ethical crisis” she faced with respect to whether she should believe her child or her partner.
• MB has suffered considerable anger and animosity toward SL for destroying her relationship with him and destroying their family.
• MB has had to take time off work. She has suffered anxiety attacks. She questions every judgment call with respect to LL leaving her for parenting time with SL.
• MB expressed reluctance to form new relationships which has impacted her feelings of self worth.

The Evidence Called at the Sentencing Hearing

Sarah Saunders – In-Chief

[42] Ms Saunders is the Health Care Manager at the Ottawa-Carleton Detention Centre (“OCDC”). As such, she is responsible for the health care needs of all individuals incarcerated at the detention centre.

[43] She stated that there is a wide range of medical staff on site, including nurses, doctors, mental health teams, and dentists that facilitate the health care needs of the inmates.

[44] Ms Saunders indicated that the only kind of medical condition that OCDC could not accommodate was an acute condition that required admission to hospital. She noted, however, that even some chronic conditions can be handled by OCDC staff, even if they become acute.

[45] With respect to availability of a doctor, Ms Saunders indicated that a doctor is usually on-site Monday through Friday mornings. After that, a doctor is on call. A Nurse Practitioner is on site Monday through Friday from 8:00 am to 4:00 pm. Nursing staff is on site 24 hours a day. A physiotherapist attends about once a week. She indicated that if a physiotherapist must attend more often due to a patient’s specific needs, OCDC can accommodate that.

[46] With respect to the evidence in this case, Ms Saunders indicated that she did not see anything in Dr. Hunt’s letter that OCDC could not accommodate.

[47] With respect to the regular monitoring of SL’s blood sugars, Ms Saunders stated that nurses at OCDC provided that care. She noted that some inmates must have their blood sugar checked up to four times a day. If SL started to feel unwell, he could call for nursing and nursing would attend to check him.

[48] With respect to the dietary needs of diabetic inmates, Ms Saunders stated that a diabetic diet is ordered for the inmate upon admission. If necessary, it is possible for inmates to have access to something containing sugar to increase their blood sugar.

[49] With respect to the exercise needs of inmates, Ms Saunders stated that this is up to the Operations Department at OCDC which “makes sure that every inmate gets yard time.” She believed that it was possible to accommodate two 30-minute low impact cardio activities a day.

[50] With respect to SL’s need to see specialists, including his cardiologist and his hematologist, Ms Saunders stated that this can be accommodated through community escorts.

Cross-Examination

[51] Ms Saunders agreed that she is aware that OCDC suffers from staffing shortages. She stated, however, that medical transfers are not cancelled due to staffing shortages.

[52] She stated that she could not opine on the issue of whether these staffing shortages leads to frequent lock-downs, stating that this was “an Operations [department] thing.” She stated that a 24 hour lockdown was the longest that she has heard of.

[53] She stated, however, that in her experience inmates on lockdown were able to go to the Royal Ottawa Hospital or the Heart Institute as needed.

[54] When defence counsel questioned her about inmates being unable to attend court due to lock-down, Ms Saunders stated that she had no knowledge of this because she is not a member of the Operations department.

[55] Ms Saunders agreed that they would not be able to provide SL with a stationary bike.

[56] With respect to SL’s ability to attend on-line sessions with cardiologists and other specialists, she stated that she did not know whether this could be accommodated because this was “an Operational [department] issue.”

[57] OCDC does not have a regular attending cardiologist. These needs are accommodated by medical temporary absence or escort.

[58] OCDC nurses see patients at least two times a day to take their vitals.

Re-Examination

[59] Ms Saunders indicated that they do not currently have an inmate that requires regular hematology consults. She opined that this could be accommodated through a medical temporary absence or escort. She also agreed that regular consults with a cardiologist and the one-hour exercise at the Heart Institute could be accommodated in the same manner.

[60] With respect to SL’s need to regularly walk for exercise, she noted that the Health Care Department would make recommendations to the Operations Department based on physician orders. It would then be up to the Operations Department to arrange for exercise.

My Questions

[61] Picking up on this last point, I asked Ms Saunders if there has ever been time when the Operations Department have not been able to put the recommendations in place. She stated that there have been cases where there was a delay “in the matter of days” where the Operations Department could not put the recommendations in place.

[62] I also asked if that could be affected by lock downs. Ms Saunders indicated that at times, if the area of the detention centre where the offender was housed was subject to lock down, orders for exercise would be affected by it.

[63] Ms Saunders agreed that lockdowns are fairly common. She could not say exactly how frequent. She did not disagree with me when I drew her attention to a report that I had received on another case which showed that in thirty-day period in July 2024, an offender was on lock down for at least part of a day for 20 days.

[64] Ms Saunders agreed that OCDC was designed for offenders to stay on a short-term basis. She stated that in her experience, OCDC is a remand centre that is built for short-term turn-around. They will hold a sentence up to less than 60 days. She acknowledged that she was not completely familiar with the exact time before an offender serving a sentence is transferred out.

[65] I also asked Ms Saunders whether SL would be kept at OCDC given the need that he attend outside the facility for some medical appointments. She stated that, in her experience, care is transferred with the offender to the team at the next correctional centre.

[66] After Ms Saunders testified, Crown counsel indicated that they may call additional evidence to augment the evidence given by Ms Saunders. The matter was adjourned to the next day, in part, to facilitate that additional evidence being called. I then commenced hearing submissions.

[67] When the matter was addressed the next day, Crown counsel opted not to call this evidence and we proceeded with the balance of submissions.

Crown Position

[68] The Crown sought a reformatory sentence, followed by probation. The Crown argued that SL did not qualify for a conditional sentence because he did not meet the requirement of exceptional circumstances and diminished moral blameworthiness.

[69] The Crown did not seek a section 161 Order. The Crown did request a SOIRA Order and an Order for the taking of SL’s DNA.

[70] The Crown cited the following issues with respect to sentencing SL:

• The reports suggest that SL uses sex as a coping mechanism and he has an elevated sex drive.
• SL does not have any insight. He would not be receptive to treatment. She also noted that, considering SL’s risk level, he would not be recommended for sexual behaviour treatment in any event.
• There is no evidence of a psychiatric disorder that would decrease SL’s moral culpability. Although he has persistent depressive disorder, it did not play a role in the commission of the offence.
• His score on the deception tests should make one wary of accepting his self-reports.
• I should be cautious in accepting Dr. Gray’s hypothesis on the basis of SL’s impulsiveness given that, on one instrument, SL reported an above normal score on one instrument measuring impulsivity.
• There is serious victim impact.
• The psychiatric make-up of SL is not sufficient to bring him into the range of diminished moral culpability. Therefore, in accordance with R. v. Friesen, 2020 SCC 9, denunciation and deterrence continue to be the paramount sentencing principles.
• FB was under the age of 18.
• The support of family and friends is significant but little weight should attach to it.
• SL was not sexually abused himself as a child.
• SL does not have an alcohol or drug problem.
• SL’s medical problems are not sufficient to avoid a custodial sentence.

Defence Position

[71] Defence counsel argued for a conditional sentence of two years less one day, to be followed by three years of probation. If I find that it is necessary to impose a carceral sentence, defence counsel submitted that the appropriate sentence was eight months.

[72] Defence counsel argued that the sentence he advocated for addressed the sentencing principles of denunciation and deterrence while, at the same time, paying heed to the many mitigating factors present here.

[73] Defence counsel noted the following issues with respect to sentencing:

• There is a unresolved issue with respect to how OCDC will deal with SL if the Court imposes a carceral sentence. Will they transfer him to a larger correctional centre? Will he be able to keep his appointments? Will the frequent and persistent problem of lock-downs interfere? Defence counsel noted that frequent check-ins with medical personnel are necessary to maintain SL’s health.
• It is well established in law that a conditional sentence, particularly with a house arrest component, can satisfy the principles of denunciation and deterrence.
• The SOIRA order will also have a significant denunciatory and deterrent effect.

[74] Defence counsel also made the interesting argument that a carceral sentence will lead to the perpetuation of the intergenerational trauma of Indigenous people caused by residential schools, the 60s Scoop and Canada’s record of cultural genocide with respect to Indigenous peoples. He argued that a carceral sentence will mean that SL will be separated from LL for a long period of time which will cause trauma to her and separate her from the Indigenous half of her family and Indigenous culture.

Assessment of the Evidence of Sarah Saunders

[75] I did not find Ms Saunders’ evidence overly helpful. There were a number of gaps in her evidence where she simply could not answer questions in relation to the institution’s ability to ensure that SL would receive regular exercise. Disregarding the fact that regular exercise should be a basic entitlement for anyone in custody, in SL’s case, it is clear that regular exercise is necessary to maintain his health.

[76] Ms Saunders was called to discuss the institutional response to the health problems that SL presents. Her evidence, however, was limited to a discussion of the Health Care Department. She could not, however, discuss the problem of lock-downs at the Ottawa-Carleton Detention Centre, citing that this was an issue for the Operations Department. It is also clear that she did not understand the breadth of the lock-down problem at OCDC.

[77] The OCDC is the main remand centre for individuals with charges in Renfrew County who are held in custody before or after trial. It has been this way since the misguided decision to close the Pembroke Jail in 2005. OCDC has been notorious for its poor living conditions for years. Even before the pandemic, there were frequent inquests and media reports which highlighted the deplorable conditions at the institution. Since the pandemic, their problems have worsened.

[78] As one of two judges sitting in Renfrew County, almost daily I receive “lock down reports” which set out lists of days or partial days that offenders are held in lock down at OCDC. Defence counsel routinely file these reports to buttress their submissions that offenders should receive additional credit, above that normally given pursuant to R. v. Summers, 2014 SCC 26, pursuant to R. v. Duncan, 2016 ONCA 754, for harsh conditions for time spent in custody.

[79] These reports are staggering. Lock-down is no longer an exception. It is now a routine. For an able-bodied offender, the conditions at OCDC might be said to be part of the cost that one pays for committing a crime. For an offender who has significant mental health problems, or significant physical health problems – or both – that cost might well be their life.

[80] In SL’s case, it is simply not a chance that this Court is willing to take.

[81] I was also troubled by the fact that no one could give me a straight answer as to whether SL would be transferred out of OCDC if he received a sentence more than 90 days, which is likely in a case of this nature.

[82] Again, as a judge who routinely presides in Pembroke, it is known to this Court that offenders serving sentence, or even offenders on remand, are likely to be transferred to another facility to help alleviate the problem of overcrowding at OCDC. The usual facility of choice is the Central East Correctional Facility in Lindsay.

[83] For an able-bodied offender on remand, incarceration at a facility at least 250 kilometers away from family and his or her lawyer awaiting remand makes a bad situation worse.

[84] For an offender with serious mental health problems, serious physical health problems – or both – that situation is exacerbated. It is further aggravated when they are serving a sentence.

[85] A transfer of SL from OCDC would result in him being completely cut off from the support that he receives at the hospital – support which would continue if he remained in OCDC.

Analysis

The Cardinal Principle of Sentencing is Proportionality

[86] In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada determined that the “cardinal principle” of sentencing law is the principle of proportionality, that is, the more serious the crime and the greater the degree of the offender’s responsibility, the more severe the sentence will be. This must be balanced against the moral blameworthiness of the offender.

[87] Lacasse also describes sentencing as a “delicate task”. Other cases have established the principle that sentencing is a highly individualized process.

[88] The sentencing authorities are clear that absent an issue going to the offender’s moral blameworthiness, custody is called for and conditional sentences are rare in cases of sexual assault. Denunciation and deterrence are the primary sentencing goals.

Sentencing of Offenders who commit sexual acts against children

[89] In R. v. Friesen, 2020 SCC 9, at paragraph 5, the Supreme Court of Canada made it clear that the law of sentencing with respect to sexual offences against children must change:

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

[90] In Friesen, the Supreme Court discussed – at length – the inherent wrongfulness and profound harmfulness of sexual offences against children and the life-altering consequences that are visited on the victims of these offences. At paragraph 76, it instructed sentencing judges to “recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences". See, generally, paragraphs 50 to 86.

[91] Friesen completely changed the sentencing paradigm in cases of sexual offences against children. “Out” was the old ethos of measuring the sentence according to a yardstick of how physically invasive the sexual assault was with touching at the low end and penetration at the highest end.

[92] “In” is a more holistic approach where the determination of a fit sentence will be based on the following factors, of which the physical invasiveness of the sexual offence is only one:

• The likelihood of the offender to reoffend;
• The abuse of a position of trust or authority;
• The duration and frequency of the abuse;
• The age of the victim;
• The degree of physical interference;
• The emotional and psychological harm.

See Friesen, supra, paragraphs 122 to 147.

The Likelihood of the Offender to Reoffend

[93] Dr. Gray has indicated that SL has a below average risk to reoffend.

[94] Dr. Gray’s opinion is that SL’s mental health issues did not contribute to the commission of the offence. Rather, the offence took place because SL was disinhibited by alcohol and his sleep apnea was untreated.

[95] SL’s crime was an impulsive and opportunistic one. He did not victimize FB because she was a child. He does not have a sexual preference for children. He victimized her because she was there and available.

[96] I agree with the Crown that there must be some caution in interpreting Dr. Gray’s report, some of which is based on SL’s self report. This is because some tests reveal that SL attempts to manage impressions of himself.

[97] However, there is no evidence that SL is likely to reoffend. I find, in fact, that he is highly unlikely to reoffend, particularly if safeguards are put in place that restrict his access to children when he is sleeping.

[98] This factor undermines the value of a carceral sentence.

The Abuse of a Position of Trust or Authority

[99] SL was FB’s step-parent. She was alone with him in a tent at a campground over 100 kilometers away from where she lived and away from her family.

[100] SL abused his position of trust and authority over FB to commit the offence.

[101] I also question the judgment of SL and MB in allowing SL to take FB to a polyamorous camping event alone. Whether the event was “family friendly” or not, I question whether it is ever appropriate to take children to such events. I accept that there was no overt sexual activity going on – other than a “group snuggle” – but I have difficulty accepting how it can ever be appropriate for children to attend a remote campground where their parents are discussing how to further a polyamorous lifestyle.

[102] SL’s abuse of his position of trust and authority over FB is very aggravating and reinforces the need for carceral sentences where specific and general deterrence and denunciation are the primary sentencing considerations.

The Duration and Frequency of the Abuse

[103] The sexual offence in this case was a one-time event. The abuse was short in duration.

[104] This is not a case where there was a prolonged period with more than one incident of sexual violation which would be much more aggravating.

The Age of the Victim

[105] The complainant was approximately 14 when this occurred. This is not a case where a young child was violated which would be much more aggravating. That said, any violation of any child, no matter how old, is a serious affront to justice, particularly on these facts where the accused is the step-parent to the complainant.

The Degree of Physical Interference

[106] This is a case where SL sexually offended against FB in a hands-on manner. Fortunately, the sexual touching was brief in duration and SL recognised immediately that he was wrong and stated, “Sorry”. This is not a case where there was, for example, forced fellatio or cunnilingus, or penile penetration, all of which would be more aggravating.

[107] There was also no long term physical violence which accompanied the sexual violence.

The Emotional and Psychological Harm

[108] Unfortunately, FB did not file a Victim Impact Statement.

[109] At trial, it was clear to me that FB was a shy, reserved and somewhat withdrawn young person. They are an extreme introvert. There is also some evidence that these aspects of their personality predated the commission of these offences.

[110] FB had regular access visits with their father. FB also preferred to spend time with their best friend and the best friend’s family. FB resented the arrival of their younger sister LL. At trial it also was apparent that SL was aware of these problems and the fragile nature of his relationship with FB.

[111] MB’s victim impact statement, which described the effects of the offence on FB, reveals the kinds of “textbook” serious victim impacts that the Supreme Court of Canada cautioned sentencing judges to be wary of in Friesen, including withdrawal, self harm, suicidal ideation, and struggles in school. These are serious victim impacts.

[112] The impacts that MB spoke of with respect to herself are also serious. The lot of the mother of a sexual abuse victim is not a happy one. She expresses guilt in questioning whether to believe her daughter or her partner. She has had to take time off work, she suffers from anxiety. She is unable to form a new relationship. Although she has respected SL’s right to have parenting time with LL, she worries about LL being victimized. She grieves the loss of her family.

[113] These are all serious victim impacts. They all tend to advocate for a carceral sentence.

What is the Appropriate Length of Sentence?

[114] 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.

[115] In R. v. M.J., 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.

[116] 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.

[117] 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.

[118] 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 she reminded him 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 was a family man who took care of his son full time. He had 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.

[119] 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.

[120] In R. v. R.N., 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.

[121] 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.”

[122] 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.

[123] 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.

[124] 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.

[125] 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.

[126] 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 panicked when she was confronted by men in positions of authority. She had to take time off work to address her mental health issues. She had nightmares.

[127] 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.

[128] 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 offender went from being a good student to a person with significant behaviour issues. Justice Wheeler found that the appropriate sentence with 15 months in prison followed by two years probation.

[129] 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.

[130] 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 R. v. T.J., 2021 ONCA 392, 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 her 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.

[131] Justice Blacklock therefore 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.

[132] In R. v. A.L., 2024 ONCJ 330, I sentenced a veteran with significant mental health issues as a result of his service to two years in the penitentiary and three years probation. At the time of the offence, AL was in a relationship with the victim’s mother. The victim was between nine and eleven years of age. The touching consisted of over-the-clothes touching. AL also invited the victim to touch his penis. He masturbated in her presence.

[133] This sampling of cases demonstrates that the appropriate term of a carceral sentence for SL would be in the range of between 12 months and two years. SL’s case falls in the lower level of that range – I would assess it at somewhere between 12 and 18 months. Lloyd, where Justice Wheeler sentenced the offender to 15 months, is probably the closest on its facts to this case.

Is a Conditional Sentence Available?

[134] Because the sentence being imposed is within the reformatory range, I am required to consider whether a conditional sentence is advisable and should be ordered.

[135] This is probably the most difficult aspect of this case.

[136] In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada found that there was no general rule that conditional sentences were not available for certain categories of offences, provided that:

• a conditional sentence would not endanger the safety of the community;
• a minimum sentence which involved imprisonment was not mandated by Parliament;
• the appropriate length of sentence was less than two years;
• the sentence was not inconsistent with the fundamental principles of sentencing in the Criminal Code.

[137] Proulx, supra, recognised that although a conditional sentence is not as denunciative as imprisonment,

“… a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.”: Proulx, supra, at paragraph 102.

[138] Only where

“… the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.”

is a conditional sentence inappropriate: Proulx, supra, at paragraph 106.

[139] Proulx also allowed that although a conditional sentence does not have the same deterrent effect as imprisonment. The Supreme Court cautioned at paragraph 107:

Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.

[140] Only where

“…the offence is one in which the effects of incarceration are likely to have a real deterrent effect” and where “…the circumstances of the community in which the offences were committed” render a conditional sentence inappropriate, should the Court rule one out: Proulx, supra, paragraph 107.

[141] Parliament amended the Criminal Code in 2005 by adding section 718.01, which requires the Court to give “primary consideration” to the principles of denunciation and deterrence when imposing sentence in a case that involves the abuse of a person under the age of 18.

[142] Enter Friesen. In calling for higher sentences for individuals who sexually abuse children, the Supreme Court of Canada commented on section 718.01 in this way at paragraphs 102 to 104:

The words “primary consideration” in s. 718.01 prescribe a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(a) through (f) of the Criminal Code (Renaud, at § 8.8-8.9). As Kasirer J.A. reasoned in Rayo, the word “primary” in the English text of s. 718.01 [translation] “evokes an ordering of the objectives . . . that is . . . relevant in the [judge’s exercise of discretion]” (para. 103). This ordering of the sentencing objectives reflects Parliament’s intention for sentences to “better reflect the seriousness of the offence” (House of Commons Debates, vol. 140, No. 7, 1st Sess., 38th Parl., October 13, 2004, at p. 322 (Hon. Paul Harold Macklin)). As Saunders J.A. recognized in D.R.W., Parliament thus attempted to “re-set the approach of the criminal justice system to offences against children” by enacting s. 718.01 (para. 32).

Section 718.01 should not be interpreted as limiting sentencing objectives, notably separation from society, which reinforce deterrence or denunciation. The objective of separation from society is closely related to deterrence and denunciation for sexual offences against children (Woodward, at para. 76). When appropriate, as discussed below, separation from society can be the means to reinforce and give practical effect to deterrence and denunciation.

Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority (Rayo, at paras. 103 and 107-8). However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality (see R. v. Bergeron, 2013 QCCA 7, at para. 37).

[143] Since Friesen, many judges have found that conditional sentences are not appropriate in cases of sexual assault – sometimes even minor ones – in order to satisfy the denunciative and deterrent aspect of sentencing.

[144] In R. v. R.L. S., 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 and 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.

[145] 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.”

[146] In R. v. T.J., 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.

[147] 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.

[148] In R. v. M.M., 2022 ONCA 441, a case dealing with the possession of child pornography in a situation that involves a breach of trust, the Court stated at paragraph 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.

[149] In R. v. Faroughi, 2024 ONCA 178 at paragraph 99, Justice Zarnett discussed the ratio in M.M. as follows:

This court has consistently reiterated post-Friesen that conditional sentences will rarely be appropriate for sexual offences against children: see M.M., at para. 16; B.M., at para. 2. Even so, in some exceptional circumstances, incarceration will not be appropriate. For example, without creating any bright-line rules, this court in M.M. suggested that some offenders experiencing medical hardship that cannot be adequately addressed within a correctional facility may fall within these circumstances: at para. 16. As I will explain, I am satisfied that, given the appellant’s immaturity and sexual inexperience at the time of the offence, the fact that this was his first offence, his recent medical hardships, and his impressive efforts in taking accountability for his actions and serving his community post-sentence, a conditional sentence is available in these circumstances.

[150] In R. v. Pike, 2024 ONCA 608, Chief Justice Tulloch also recognised the tension between the Supreme Court’s recognition in Proulx that conditional sentences can be denunciative and deterrent sentences and the Court of Appeal’s decision in M.M. that exceptional circumstances were required in order to impose a conditional sentence. He reconciled these approaches this way at paragraphs 179 to 182.

….courts must decide whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing, especially the fundamental principle, proportionality. This test requires considering not only personal circumstances and mitigating factors of people who possess child pornography, but also the severe wrongs and harms that they cause, their moral blameworthiness, and Parliament’s prioritization of deterrence and denunciation: McCaw, at paras. 27-29; R. v. M.M., 2022 ONCA 441 at paras. 15-16. As this court held in M.M., applying this second step ordinarily results in custodial sentences because Parliament has prioritized denouncing and deterring the wrongs and harms that people who possess child pornography cause real children: at paras. 15-16.

I must reconcile the “exceptional circumstances” term that M.M. used to express this point with the Supreme Court’s decisions in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and Parranto. At first glance, M.M.’s use of this term might seem contrary to these cases, which respectively hold that appellate courts can neither create presumptions that conditional sentences are inappropriate for specific offences (Proulx, at paras. 80-83), nor require exceptional circumstances to depart from a range (Parranto, at para. 40).

But in my respectful view, M.M. did not and could not have intended to depart from Proulx by creating an offence-specific presumption against conditional sentences. Rather, it used the “exceptional circumstances” term to convey that, since Proulx, Parliament has increased maximum sentences and prioritized denunciation and deterrence for sexual offences against children and, further, that the courts’ understanding of the harmfulness and wrongfulness of these offences has deepened: Friesen, at paras. 109-110; see M.M., at paras. 13-15. Thus, while there is no presumption against conditional sentences, these post-Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago.

Nor, in my view, did M.M. intend to depart from Parranto by requiring exceptional circumstances to impose a conditional sentence. Rather, M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate, as in R. v. Padda, 2019 BCCA 351, at para. 36. Not only is there no closed list of such circumstances and factors (M.M., at para. 16), but multiple seemingly non-exceptional factors taken together, such as being a young first offender with family support who poses little risk and takes responsibility for his actions, can collectively render a conditional sentence proportionate: R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at para. 99. This is consistent with Parranto’s holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories: at para. 40; see R. v. Ellis, 2022 BCCA 278, 417 C.C.C. (3d) 102, at para. 118. [Emphasis mine]

[151] See also, most recently, R. v. AL, 2025 ONCA 9.

[152] In my view, following Pike and AL, if I am satisfied that that SL has personal circumstances and mitigating factors that are compelling, a conditional sentence would be appropriate. Otherwise, Friesen and M.M. direct me to impose a custodial sentence.

Are SL’s Personal Circumstances Sufficiently Compelling?

[153] In my view, a conditional sentence in this case is an appropriate sentence having regard to the following aspects of the case, which, taken together, are sufficiently compelling:

• The accused is Indigenous. His grandmother went to residential school. His grandmother was disenfranchised which had long term effects on his mother, his sister and him. The intergenerational trauma caused by the residential school experience is well-known.
• The accused did not have a stable childhood. His mother may have had a drinking problem, which she has long since dealt with. His parents separated when he was six. As a child and into his young adulthood, he moved from Matachewan to Sudbury to North Bay and back to Matachewan.
• As a child, the accused had special needs. He was bullied. He was afraid to identify as Indigenous for fear of being subjected to racism.
• The accused dropped out of high school. He was homeless and he lived on social assistance. He was diagnosed with depression as a teenager.
• The accused has an itinerate work history. He has worked as a pipeline mechanic, in audio-visual; he has trained as a paralegal and at the time of sentencing was hoping to study Electrical Engineering. He has worked odd jobs, including stocking shelves at Wal-mart.
• From time to time throughout his life, the accused has been suicidal. He has had stays at hospital to deal with this and depression.
• I find that the accused has low self esteem. He is perpetually sexually dissatisfied and that seems to take a toll on his mental health. He is not satisfied with his penis. He is not satisfied with just one partner which is why he pursues a polyamorous lifestyle. He uses pornography.
• The accused suffered from sleep apnea and obesity at the time these offences were committed. He has now been diagnosed with diabetes, high blood pressure and asthma. He has had significant health problems including endocarditis. He is on an exercise regime and needs regular access to specialists to maintain his health. While the health care department at the detention centre may be able to ensure that he receives regular checks of his blood sugar and regular medical appointments outside the institution, I find that he is unlikely to receive the frequent exercise he needs in order to maintain his health.
• He has no criminal record.

[154] He is not entitled to mitigation for an early guilty plea.

[155] He tends to present himself in an overly positive light, which is of concern.

[156] He needs to smarten up, get a job, learn to develop a connection in his relationships, provide for his daughter, teach his daughter about Indigenous culture and Indigenous ways and ensure that the cycle of intergenerational trauma of Indigenous people is broken. He needs to learn to be satisfied with who he is.

[157] A conditional sentence is the right path. It recognises the damage that SL suffered by virtue of his Indigeneity and his unstable childhood and young adulthood. It recognises that his health is somewhat fragile and he needs exercise to maintain it – exercise he is not likely to get in a reformatory setting. It is also sufficiently denunciative and deterrent to satisfy Friesen. Indeed, had there been more than one incident, had the nature of the violation been more serious, or had the likelihood of reoffence been higher, I would not have hesitated to impose a carceral sentence.

Released: February 25, 2025
Signed: Justice J.R. Richardson