Court File and Parties

COURT FILE NO.: CR - 19-70000258 DATE: 20230608

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MARCO GUTIERREZ

Counsel: Tom Schreiter, for the Crown Ingrid Grant, for Mr. Gutierrez

HEARD: March 17 & May 12, 2023

Reasons for sentence P.J. Monahan J.

Reasons for Sentence

[1] On January 20, 2023, Marco Gutierrez was found guilty by a jury of two counts of sexual interference, committed separately against two victims (respectively, “Victim One” and “Victim Two”). Victim One is Mr. Gutierrez’s stepson, while Victim Two is Victim One’s cousin and Mr. Gutierrez’s step-nephew. The offences occurred in the 1990s at a time when both victims were under the age of 14. I note that Mr. Gutierrez was acquitted on two other counts relating to a second incident alleged by Victim One.

[2] The parties made initial submissions on sentence on March 17, 2023, at which time they jointly proposed a conditional sentence of two years less a day followed by three years of probation. I advised counsel that I had significant concerns about the appropriateness of such a sentence and directed them to reconsider the matter. The parties returned before me on May 12, 2023, at which time they made further submissions in support of their original joint proposal.

[3] A joint submission must always be given serious consideration. However, the court is not obliged to accept it and ultimately it is the court’s responsibility to determine what sentence is proportionate to the gravity of the offence and the moral culpability of the offender.

[4] For the reasons that follow, I find that a conditional sentence would fail to give appropriate priority to principles of denunciation and deterrence over other sentencing objectives, as mandated by s. 718.01 of the Criminal Code as well as by the Supreme Court of Canada’s clear directions in R. v. Friesen, 2020 SCC 9. Nor would a conditional sentence properly address the inherent wrongfulness of Mr. Gutierrez’s conduct, its highly morally blameworthy nature, or the extent of harm to the victims. I find an appropriate sentence to be 18 months of incarceration followed by three years of probation, along with a number of ancillary orders.

Circumstances of the Offences

Determining the material facts for sentencing

[5] Given that this was a jury trial, I must begin by determining the material facts required for sentencing. In R. v. Aragon, 2022 ONCA 244, the Court of Appeal for Ontario confirmed that this is a two-step process. First, s. 724(2)(a) of the Criminal Code directs that I must “accept as proven all facts, express or implied, that are essential to the jury’s verdict”. This means that I “must identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender.” [3] Second, s.724(2)(b) directs that I may “find any other relevant fact that was disclosed by evidence at the trial to be proven”.

[6] In this case, the issue was simply whether the incidents alleged by the two victims actually took place. To find Mr. Gutierrez guilty of the offences alleged, the jury necessarily had to reject his position that he had never sexually touched either of the victims and accepted their evidence that the incidents took place as they described. I therefore proceed on the basis that the facts as described by the victims in relation to the two counts in the indictment upon which Mr. Gutierrez was convicted form the factual basis for my sentencing decision.

[7] Those facts are summarized below.

Sexual interference with Victim One

[8] The offence committed in relation to Victim One occurred in either 1993 or 1994, when Victim One was eight or nine years old. At the time, Victim One was living with Mr. Gutierrez (who was his stepfather), along with his mother and his two younger stepbrothers, in a three-bedroom apartment in Toronto.

[9] Victim One testified that one night while he was sleeping in his bedroom, he awakened to find Mr. Gutierrez kneeling on the floor on the left side of his bed performing oral sex on his penis. Mr. Gutierrez had pulled down Victim One’s pajama pants in order to do this. Victim One said that he froze, closed his eyes, and pretended to be asleep.

[10] Victim One said that Mr. Gutierrez stopped what he was doing for a moment, before pulling back the foreskin of Victim One’s penis and putting his mouth on Victim One’s penis a second time.

[11] Victim One was not able to estimate how long Mr. Gutierrez performed oral sex on him in this manner. He remembers Mr. Gutierrez pulling his pajama pants back up, at which point Mr. Gutierrez stood up and walked away. Neither Victim One nor Mr. Gutierrez said anything during this incident. Victim One also could not remember whether his two stepbrothers, who normally also slept in the same bedroom, were there on the night when this incident occurred.

[12] Victim One said that prior to this incident, he had had a good relationship with his stepfather, Mr. Gutierrez, calling him ‘dad’. However, after this incident involving oral sex, Victim One stopped calling Mr. Gutierrez ‘dad’ and could not look him in the eye. He became fearful a lot of the time and hated Mr. Gutierrez.

[13] Victim One continued to live with Mr. Gutierrez and the other members of his family until he completed university in 2009. However, he never disclosed or brought up this incident to anyone else in the family until 2016, when he first told his wife. He then told his mother and grandmother, his half-brothers, as well as his cousin TS. In January 2018, Victim One reported the incident to the police, which led to the criminal charges against Mr. Gutierrez.

Sexual interference with Victim Two

[14] As noted above, Victim Two is Victim One’s cousin and Mr. Gutierrez’s step-nephew. Both victims said that they were very close growing up, in part because they had been born just one month apart, and Victim Two would often sleep over at Victim One’s apartment.

[15] Victim Two slept over at Victim One’s apartment one night around the time of the World Cup soccer tournament that was held in France in the summer of 1998 (Victim Two was born in June 1985 and would have been around 13 years old in the summer of 1998). On this particular occasion, he was sleeping on a sofa in the living room, lying on his stomach with his head facing inwards, towards the back of the sofa. He was wearing shorts and a T-shirt and did not have a blanket covering him.

[16] Sometime during the night, Victim Two woke up because he sensed someone standing very close to him. This person then came over him and rubbed their erect penis on Victim Two’s backside while also reaching around and attempting to touch Victim Two’s genitals through his shorts.

[17] Victim Two pretended to be asleep and then coughed, in an attempt to convince this person to stop touching him. The person did stop for a few seconds, but then reached around towards Victim Two’s genitals a second time.

[18] Victim Two then heard footsteps in the hallway. This caused the person touching him to stop and stand up. At this point, Victim Two looked back and saw that the person who had been touching him was his step-uncle, Mr. Gutierrez. Victim Two also saw that the person who had been coming down the hallway was his grandfather, who was going into the kitchen to get a drink of water.

[19] Victim Two said that at this point Mr. Gutierrez left the living room.

[20] Victim Two said that, subsequently, he never spoke to Mr. Gutierrez about this incident. The first time he disclosed it was to his cousin, Victim One, in late 2016 (he called Victim One because his sister TS told him that Victim One was trying to get in touch with him to tell him about an incident of sexual touching that had happened to Victim One when he was a young boy). Victim Two subsequently made a statement to the police in January 2018.

Circumstances of Mr. Gutierrez

[21] A presentence report (“PSR”) was prepared in respect of Mr. Gutierrez. It provides helpful information regarding his background and present circumstances.

[22] Mr. Gutierrez was born in Nicaragua in April 1962 and is currently 61 years old. He came to Canada in 1988 as a refugee and in 1991 married SG, who is Victim One’s mother. Mr. Gutierrez and SG subsequently had three biological children, who are now adults.

[23] Mr. Gutierrez has been steadily employed since his arrival in Canada. He presently works as a forklift operator and has been with his present employer for over 20 years. In addition, despite these criminal proceedings, he continues to enjoy the support of SG, their three biological children, and close family friends. The PSR reports SG as stating, “I know they found him guilty, but we still don’t believe it”, while Mr Gutierrez’s biological children also indicated that they believe their father is innocent. A number of close family friends state that they just cannot believe the allegations, claiming that they “don’t make sense.”

[24] Mr. Gutierrez met with the author of the PSR on three separate occasions. Initially he struggled to take ownership of the offences. However, during his second interview, he indicated that he accepts responsibility for the offences, feels sorry for what happened, and regrets his actions. He said that he does not understand what made him do what he did and that there is no excuse for it. He further stated that he has never had sexual feelings for children either before or after committing these offences. Mr. Gutierrez is hoping to avoid incarceration since he wants to be able to keep working to provide for his family. He is also willing to engage in counselling.

[25] The PSR suggests (although it is not stated expressly) that while Mr. Gutierrez has acknowledged having committed these offences to the author of the PSR, at the time the PSR was written Mr. Gutierrez had not made any such acknowledgement to his family or friends. The PSR further states that the failure to do so may serve to assist Mr. Gutierrez in minimizing his actions and may create further difficulties with rehabilitative efforts.

[26] Prior to the May 12, 2023 attendance before me, Mr. Gutierrez obtained a letter from SG dated May 7, 2023, in which she states that within the past few weeks Mr. Gutierrez had told her and their three biological children that he was guilty of the charges against him. SG’s letter states that “this confession was hard” but that she believes in remorse and forgiveness and wants to support Mr. Gutierrez in the process of becoming a better person. SG also states in the letter that for about two years, she has been having a better relationship with Victim One, and that they communicate frequently through WhatsApp.

Impact on the Victims

Victim One

[27] Victim One provided a Victim Impact Statement (“VIS”) in which he eloquently expresses the anguish and harm that he has suffered as a result of the offence committed by Mr. Gutierrez. Victim One states that what happened to him was terrifying since a nine-year-old cannot make sense of a violation by someone they trust and love. It took him many years to realize the extent of the damage.

[28] The profound harm suffered by Victim One is captured in stark and moving terms in the following passage from his VIS:

What made this violation so perverse was that it happened in my bedroom, in the middle of the night, in my family home, by someone I trusted. And in that moment, this man destroyed my innocence and sense of security. To be terrified as a child and unable to seek refuge is an unspeakable ordeal. What made it worse, was that I lacked the resourcefulness and mental faculty to help myself. So instead of finding shelter and comfort in my surroundings, I searched for solace inside my own mind. There, the terror swirled like a tornado. Over and over, I would replay what happened. And then I would go home from school and see the monster of my mind standing right in front of me. Unable to run, I reinforced and sheltered my mind from the onslaught of emotions. I didn’t know it at the time, but what I was doing was building a prison for myself.

[29] Unable to escape from the perpetrator of this crime, Victim One put on a mask and attempted to hide his true emotions. But this attempt to suppress his feelings and fears would have devastating results throughout his life. He reports having had challenges making and keeping friends, staying committed to work projects, and feeling safe. He got into trouble in high school, fell into deep depression, isolated himself, failed his first year of university, and left jobs early. Even today he continues to rob himself of authentic relationships and enjoyment of the best parts of his life.

[30] After moving out of the family home in 2009, Victim One felt a quiet rage every time he returned to visit. Sometimes he would act on this rage and, to the outside world, “must have seemed a snotty son… with a bad attitude, blaming others, lashing out and unable to connect or show vulnerability.” What most enraged Victim One was that “I took the blame for my stepfather’s crime, and became the villain of the false story.” His stepfather, on the other hand, willingly played the part of the “good guy stepdad”, who tried his best to get along with his “troubled stepson”.

[31] Victim One reports that his wife would notice the quiet rage that he felt every time they visited his family. She could not understand the source of his rage, fearing, perhaps, that his rage was actually directed at her. In fact, Victim One explained that the only reason he disclosed the abuse to his wife was to help her better understand the reasons for his actions in the past.

[32] By telling his story, Victim One has released a lot of his anger. He hopes that it will provide a proper context for his own troubled behaviour over the years and, in the process, reveal the “malice and insidious nature of his stepfather’s crimes.” Yet Victim One is also profoundly sad, particularly over the fact that his own daughter will never get to experience Christmas dinner with his side of the family, has not met two of his brothers, and will miss out on a lot of her heritage.

[33] Victim One’s compelling account of the pain and trauma he has suffered is difficult to read. His VIS confirms Moldaver J.’s observation in Friesen that even a single instance of sexual violence can “permanently alter the course of a child’s life”. [4] Victim One’s experience also reinforces Moldaver J.’s emphasis on the fact that sexual violence committed by a family member causes additional harm because it involves the breach of a trust relationship. This is particularly the case where, as in the case of Victim One, the other parent or family members take the side of the perpetrator and disbelieve the victim, thereby impacting the victim’s ability to form loving, caring relationships with other adults or in the broader community.

Victim Two

[34] Victim Two did not provide a VIS. Nevertheless, evidence at trial from his sister, TS, indicated that Victim Two began experiencing mental health issues when he was in high school. TS said that at that time Victim Two described Mr. Gutierrez as being “evil” and refused to visit him or his family. TS never understood at the time why Victim Two’s behaviour changed in this way.

Applicable Sentencing Principles

[35] All sentencing starts with the principle that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” [5] A proportionate or just sentence must have one or more of the following objectives:

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

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

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

(d) to assist in the rehabilitating offenders;

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

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [6]

[36] Section 718.01 of the Criminal Code provides that in imposing a sentence for an offence that involves the abuse of a person under the age of 18, primary consideration shall be given to the objectives of denunciation and deterrence. This principle is reinforced by ss. 718.2(a)(ii.1) and (iii), which provide that evidence that the offender abused a person under the age of 18 or that the offender abused a position of trust or authority in relation to the victim are aggravating factors for sentencing purposes.

[37] In Friesen, the Supreme Court found that these statutory sentencing principles reflect the fact that sexual offences against children cause profound harm to the victims and that, accordingly, sentences for such offences must increase “to match Parliament’s view of their gravity.” [7] The Supreme Court found that an upward departure from prior sentencing ranges in cases involving sexual offences against children was required by virtue of the fact that sexual violence against children invades a child’s personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. Moreover, not only does sexual violence against children risk damaging their relationships with their families, it also has “ripple effects” that can make the child’s parents and family members secondary victims who also suffer profound harm as a result of the offence. [8] For these reasons, amongst others, sexual offences against children should generally be punished more severely than sexual offences against adults, and “[s]exual interference with a child should not be treated as less serious than sexual assault of a child.” [9]

[38] Friesen sent a clear message that courts must impose sentences that are commensurate with the gravity of sexual offences against children. In particular, courts must recognize and give effect to the inherent wrongfulness of these offences; the potential harm to children that flows from these offences; and the actual harm that children suffer as a result. [10] The Supreme Court emphasized that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm varies from case to case. [11]

[39] Friesen also identified significant factors to be considered in determining a fit sentence for sexual offences against children. These include the likelihood of reoffending; whether the offence involved the abuse of a position of trust, since any breach of trust is likely to increase the harm to the victim as well as inhibit the child from reporting sexual violence; and the duration and frequency of the sexual violence, since the long-term emotional and psychological harm to the victim can become more pronounced where the sexual violence is repeated. [12]

[40] While denunciation and deterrence are the primary objectives that must be considered in sentencing those who commit sexual offences against children, it remains appropriate for a sentencing court to have regard to other sentencing principles and objectives. Nevertheless, following Friesen, it is no longer open to a sentencing judge to elevate other sentencing objectives such as rehabilitation to greater or even equivalent priority relative to the principles of denunciation and deterrence. [13] Thus, in R. v. T.J., 2021 ONCA 392, the Court of Appeal set aside a sentence of nine months that had been imposed in respect of a single count of sexual assault committed against a six or seven-year-old girl by an offender who had no prior criminal record. The Court of Appeal substituted a sentence of 24 months on the basis that the trial judge had given undue weight to the consequences for the offender of a significant custodial sentence and failed to give appropriate weight to his inherently wrongful conduct.

Positions of the Parties

[41] As noted above, the Crown and defence jointly propose a conditional sentence of two years less a day, followed by three years of probation. The conditional sentence would be served as follows:

i. during the first 8 months of the sentence, Mr. Gutierrez would be required to remain within 100 metres of his residence, except while travelling to or from his place of employment, an educational facility in which he is enrolled, a place of worship, a prearranged appointment with a health professional, or to attend to the “necessities of life” for a period of up to 4 hours per week;

ii. during the next 8 months of the sentence, he would be subject to a curfew between 11 p.m. and 6 a.m., with the same exceptions noted above;

iii. during the final 8 months of the sentence, he would be required to reside at an address approved by his supervisor, but the other conditions set out in the previous 2 paragraphs would no longer apply.

[42] In jointly proposing the conditional sentence of two years less a day on the terms set out above, counsel candidly acknowledge that this would be an exceptional sentence that falls outside of the range for sexual offences against children as set out in Friesen. Nevertheless, counsel argue that such a sentence would be appropriate in this case on the basis of the following considerations:

i. Mr. Gutierrez has taken responsibility for his actions and expressed remorse, thereby reducing the moral blameworthiness of his actions.

ii. Mr. Gutierrez has no criminal record and has lived a pro-social life. He has been steadily employed throughout his adult life and his income is necessary to support his family.

iii. Victim One has advised the Crown that he does not want Mr. Gutierrez to go to jail for an extended period of time.

Analysis

The appropriateness of a conditional sentence in this case

[43] In my view, a sentence of incarceration of two years less a day would be within the range of acceptable sentences in the circumstances of this case, albeit one that would fall towards the lower end of that range in light of Friesen’s clear instruction that sentences for sexual offences against children must increase to take account of the offences’ gravity. [15] What takes the proposed sentence clearly outside of the normal range is the fact that it would be served conditionally at Mr. Gutierrez’s residence. Moreover, although during the first eight months of the conditional sentence he would be permitted to be absent from the home only for specified reasons, during the second eight months he would be subject only to a nightly curfew, while during the final eight months, he could be absent from his residence at his discretion.

[44] A conditional sentence is certainly legally available in respect of the offences committed by Mr. Gutierrez, as a result of recent amendments to the Criminal Code. [16] Nevertheless, the inescapable implication which I draw from Friesen is that a conditional sentence for the offence of sexual interference would only be appropriate in an exceptional case. As the Supreme Court noted in Friesen, sexual offences against children violate their bodily and sexual integrity and typically involve the abuse of a position of trust or authority in relation to the victim. The court instructed sentencing judges to increase sentences for such offences in light of their inherent wrongfulness and the profound harm they cause to victims. In light of these clear instructions, it would be a rare case indeed in which a conditional sentence would be appropriate in a case of sexual interference.

[45] This reading of Friesen is supported by the recent Court of Appeal for British Columbia decision in R. v. P.R.J., 2023 BCCA 169 which set aside a 23-month conditional sentence that had been imposed on a first-time offender who had committed a single act of sexual interference against the offender’s 7 or 8-year-old daughter. The Court of Appeal for British Columbia noted that a conditional sentence might be appropriate in cases where the moral culpability of the offender was reduced, such as where the offender had serious cognitive and/or social deficits. No such circumstances were present in the case and, given the gravity of the offence and the high degree of moral blameworthiness of the offender, a three-year prison term was found to be a fit sentence.

[46] To the same effect is our own Court of Appeal’s post- Friesen decision in T.J., discussed above. In T.J., Zarnett J.A. emphasized the importance of properly considering the wrongfulness and harmfulness of sexual offences against children, along with the priority given by Parliament to the sentencing objectives of denunciation and deterrence. Zarnett J.A. highlighted the Supreme Court’s instruction that courts “must always give effect to the wrongfulness of this exploitation in sentencing” and found that the trial judge had committed an error in principle by giving undue weight to the offender’s circumstances, including that he was a first-time offender who was supportive of and supported by his family. [18] Although T.J. did not discuss the availability of conditional sentences for sexual offences involving children (since the trial judge in that case had imposed a nine-month sentence of incarceration), it surely follows from T.J. that a conditional sentence for the offence of sexual interference could only be justified in quite exceptional circumstances.

[47] In my view, no such exceptional circumstances are present in this case. In fact, if I were to impose the conditional sentence proposed by counsel, I would be committing the same error identified by the Court of Appeal in T.J., namely, giving undue weight to the personal circumstances of the offender and insufficient priority to the gravity of the offences and their effects on the victims.

[48] I recognize that Mr. Gutierrez has recently taken responsibility for these offences by acknowledging to his wife and his biological children that he in fact committed the offences of which he has been convicted. I also appreciate his expression of remorse made in court immediately prior to sentencing, which I accept as quite genuine. But in my view, this acknowledgement only marginally reduces his moral culpability for these offences given that it has come extremely late in the process. In fact, as noted above, it appears that Mr. Gutierrez shared this information with his family only after the court pointed out at the initial sentencing hearing on March 17, 2023 that Mr. Gutierrez had acknowledged that he committed these offences to the probation and parole officer preparing the PSR, but not to anyone else. Thus, at the time of that initial hearing in March 2023, Mr. Gutierrez’s wife and biological children continued to disbelieve the victims and assume that Mr. Gutierrez was innocent.

[49] In any event, focusing on Mr. Gutierrez’s circumstances, including his pro-social behaviour, the fact that he has no prior criminal record, and the impact on him and his family if he is incarcerated, ignores the clear instruction from the Supreme Court of Canada as well as from our own Court of Appeal that priority must be given to the principles of denunciation and deterrence in sentencing for sexual offences committed against children. Both the offences in this case involved the abuse of a position of trust and authority, particularly in the case of Victim One, who was Mr. Gutierrez’s stepson and just eight or nine years old at the time. Moreover, Victim One has suffered profoundly over the subsequent three decades as a result of the offence, as eloquently and painfully set out in his VIS. What is particularly troubling is the fact that in subsequent years Victim One was identified within the family as the “troubled stepson”, with Mr. Gutierrez playing the role of the “good guy stepdad”. These respective roles appear to have been maintained even after Victim One disclosed the sexual abuse to other members of the family. Far from distancing themselves from Mr. Gutierrez (as Victim One had expected), they rallied around him and, until very recently, refused to believe that Mr. Gutierrez could have committed these crimes.

[50] The Crown also attempted to justify the proposed conditional sentence on the basis that Victim One has advised that he does not wish Mr. Gutierrez to go to jail. In my view, this is not an appropriate basis upon which to justify a conditional sentence. This is particularly the case given Victim One’s isolation within the family and the fact that he has been seen as the “troubled stepson”. In these circumstances, it is certainly understandable that Victim One might not wish to be seen within the family as the person responsible for Mr. Gutierrez’s incarceration. But that is not Victim One’s burden or responsibility. Mr. Gutierrez is being sentenced because of the crimes which he has committed, and not because of anything that Victim One has said or done. It is the duty and responsibility of the court to determine a fit sentence in this case, and that duty cannot be delegated or shifted onto the shoulders of either of the victims.

[51] I conclude that a conditional sentence would be demonstrably unfit in the circumstances of this case. My conclusion in this regard is not affected by the fact that both parties are jointly proposing such a sentence. I recognize that the Supreme Court of Canada held in R. v. Anthony-Cook, 2016 SCC 43 that a joint submission should not be departed from unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest. But the court defined a joint submission as one in which counsel agree to recommend a particular sentence to the judge in exchange for the accused entering a plea of guilty. [20] The court noted that it is an accepted and entirely desirable practice for Crown and defence counsel to agree to a joint submission on sentence in exchange for a plea of guilty, and this is the basis upon which the vast majority of criminal cases in Canada are resolved. Hence, the court mandated that joint submissions be departed from only when a stringent “public interest” test (as outlined above), has been satisfied. [21]

[52] These considerations have limited relevance and application in cases where a conviction is entered after trial. The presiding judge has heard all the evidence and is in a position to assess all relevant considerations in determining a fit sentence. Nor would departing from a joint submission in these circumstances compromise the many benefits flowing from joint submissions in the context of guilty pleas in advance of trial. As such, in my view it would be inappropriate to require that the stringent “public interest” test set out in Anthony-Cook be satisfied before the court could depart from a joint submission on sentence advanced after a contested trial. [22]

[53] To be sure, courts should not depart from joint submissions lightly. Fairness requires that the court should provide the parties with advance notice of the possibility that the joint submission might not be accepted, along with clear and cogent reasons if the joint submission is not accepted. But provided that such safeguards are observed, the court is entitled and indeed obliged to make its own determination of the fit sentence, even though Crown and defence counsel might have agreed on a different sentence.

Determining a fit sentence

[54] Given that I find that a conditional sentence would be inappropriate and a period of incarceration is necessary, the question is what length of sentence is fit and just in the present circumstances.

[55] In addressing that question, I note that there are a number of significant aggravating circumstances present in this case. In particular, Mr. Gutierrez abused a position of trust and authority in relation to two children on two separate occasions. Moreover, there is evidence that this sexual abuse has had a significant impact on both victims, particularly Victim One, who continues to experience isolation within his family.

[56] On the other hand, there are a number of significant mitigating circumstances, including the fact that Mr. Gutierrez is a first-time offender with no prior criminal record who has now taken responsibility for the offences and expressed remorse. Apart from the offences for which he is being sentenced, Mr. Gutierrez has generally led a pro-social life. He has maintained regular and stable employment while supporting his family, with strong connections within the broader community.

[57] Given these aggravating and mitigating factors, considered in light of Friesen’s clear instruction that sentences for sexual offenses against children must be increased, I find the minimum sentence required to give proper effect to the relevant legal principles is a global sentence of 18 months incarceration, followed by three years of probation. This sentence would, in my view, would give effect to the gravity of the offences committed by Mr. Gutierrez in relation to two victims, while also taking appropriate account of the mitigating considerations described above. It would also permit the court to order Mr. Gutierrez to participate in rehabilitative programs and counselling during his period of probation.

Disposition

[58] The sentence shall be entered as follows:

a. Count One, sexual interference in relation to Victim One: a period of incarceration of 18 months, followed by three years of probation on the terms set out below;

b. Count Four, sexual interference in relation to Victim Two: a period of incarceration of 18 months, to be served concurrently with the sentence for Count One, [23] followed by three years of probation on the terms set out below, and

c. while in custody, Mr. Gutierrez shall not have contact, directly or indirectly, with either Victim One or Victim Two, except with their written, orally revocable consent.

[59] The terms of Mr. Gutierrez’s three-year period of probation are as follows:

a. Report to a probation officer within two working days following your release from custody, and thereafter when required by the probation officer.

b. Live at an address approved by your probation officer, and do not change that address, unless you receive the permission of your probation officer in advance.

c. Do not have any contact, directly or indirectly, with either Victim One or Victim Two, except with their written, orally revocable consent, to be filed with your probation officer.

d. Attend and actively participate in such rehabilitative programs, counselling, or assessments, as directed by your probation officer; do not discontinue that counselling without the permission of your probation officer; provide written proof to your probation officer upon completion of the rehabilitative program(s); and sign any consents or releases necessary to ensure compliance with this condition.

e. Do not possess any weapons as defined in s. 2 of the Criminal Code.

[60] I also make the following ancillary orders:

a. Have a sample of your blood taken for inclusion of your DNA profile in the national DNA data bank, pursuant to s. 487.051(1) of the Criminal Code.

b. Comply with the Sex Offender Information Registration Act for a period of 20 years, pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code.

c. Do not possess any weapons for life, in accordance with ss. 109(1) and (3) of the Criminal Code.

P. J. Monahan J.

Released: June 8, 2023