COURT FILE NO.: CR-18-00002907 DATE: 20230626 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MARIANNA RIOSSI Defendant

Counsel: Robert Scott, for the Crown Karen McArthur, for the Defendant

HEARD: July 27, November 15, December 2, 2022, January 27 and May 9, 2023

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

REASONS FOR SENTENCE

J. Di LUCA J.:

[1] Marianna Riossi was a high school teacher who wanted to be liked by her students. She would allow her students to vape in class, use their cellphones and allow assignments to be handed in late or not at all. She wanted to be seen as “cool.”

[2] Between 2016 and 2017, Ms. Riossi engaged in sexual relationships with two students at two different schools. The relationships were lengthy and involved various sexual acts. The relationships were eventually reported to police and Ms. Riossi was charged with a number of criminal offences.

[3] On July 27, 2022, shortly before her jury trial was to commence, Ms. Riossi entered guilty pleas to two offences: sexual exploitation contrary to s. 153 of the Criminal Code of Canada (the Code) in relation to G.A., and sexual interference contrary to s. 151 of the Code in relation to M.K.

[4] At Ms. Riossi’s request and over the objections of the Crown, the sentencing hearing was delayed on more than one occasion. It was finally completed on May 9, 2023. At that time, I reserved my decision and I now provide these reasons for the sentence I will impose on Ms. Riossi.

The Circumstances of the Offences

[5] At the time of the offences, Ms. Riossi had been employed with the York Catholic District School Board as an occasional part-time teacher for approximately four years.

(i) Incidents relating to G.A. – Sexual Exploitation

[6] In September 2017, she began teaching photography at Cardinal Carter Catholic High School in Aurora. G.A. was a student in her class. He was in grade 11 and turned 16 in October 2017.

[7] Ms. Riossi befriended G.A. They would hang out during class and soon began corresponding using various social media platforms. They would discuss personal issues and Ms. Riossi asked G.A. if he could help her get into shape for her wedding which was to take place during the summer of 2018. He agreed.

[8] Ms. Riossi then began sending G.A. pictures of herself. G.A. recalled that the first picture he received was of Ms. Riossi topless in a tanning booth. When she sent this photo she asked if he was upset that she had sent the photo and also revealed that she was attracted to him.

[9] In October 2017, Ms. Riossi offered to drive G.A. home after school. On one occasion, they drove to a parking lot where they “chilled.” The next day, Ms. Riossi told G.A. that she really wanted to kiss him when they were in the car. She also told him that she had dreams of having sex with him.

[10] On later occasions, Ms. Riossi and G.A. would “make out” in her car, often driving to random side streets or parking lots. The sexual acts then progressed to the defendant performing oral sex on G.A. in her vehicle. He engaged in digital penetration. There was dry humping. Once, when G.A. ejaculated in the car during oral sex, he cleaned up the semen using Ms. Riossi’s scarf. G.A. recalled seeing a skin graft scar on Ms. Riossi’s buttock.

[11] All these encounters took place in Ms. Riossi’s car. She would pick up and drop off G.A. at various locations including school, his home and his grandmother’s home.

[12] Between October and December 2017, Ms. Riossi sent numerous Snapchat photos and videos to G.A. She was topless or naked in the photos and videos.

[13] The sexual activity continued until December 2017, when G.A. went on vacation. Around this time, he heard rumours that Ms. Riossi was engaged in similar activities with another boy in his class. He became upset and disclosed what had been happening to his friends. He then went and confronted Ms. Riossi about the rumours. Within a few days, the principal at Cardinal Carter had received information about the inappropriate sexual relationship between G.A. and Ms. Riossi.

[14] When Ms. Riossi was confronted, she panicked. She told G.A. and his friend N.D. that she would kill herself if she went to jail. When police initially contacted G.A. and N.D. for an interview, they agreed to lie to protect Ms. Riossi.

[15] On January 30, 2018, G.A. and N.D. gave statements to police indicating that the rumours of sexual activity were simply rumours. G.A. advised that nothing was going on between him and Ms. Riossi. He advised that she only had his phone number because of something innocuous that happened with his uncle during a school trip to Toronto.

[16] After leaving the police station, G.A. contacted his uncle and asked him to lie and give the same story to police if they contacted him. It was at this time, that G.A. disclosed to his uncle the sexual assault being committed upon him by Ms. Riossi. G.A.’s uncle advised him that he needed to disclose the relationship to his parents and return to police to tell the truth.

[17] The next day, G.A. and N.D. returned to police and provided new statements relaying the truth about what had been happening between G.A. and Ms. Riossi.

[18] Ms. Riossi was arrested and a search warrant was executed on her car. Testing confirmed the presence of G.A.’s semen on the passenger seat and on a scarf located in the trunk of the vehicle.

[19] After he disclosed the offences, G.A. was unable to return to school as everyone knew and he was essentially shunned by both his peers and the teachers.

(ii) Incidents Relating to M.K. – Sexual Interference

[20] After Ms. Riossi was arrested in relation to G.A., York Regional Police issued a media release which prompted an anonymous student at St. Theresa Lisieux Catholic High School to report to the principal that there was an inappropriate relationship between Ms. Riossi and a current student, M.K.

[21] Ms. Riossi taught at St. Theresa from September 2016 until June 2017.

[22] When police contacted M.K., he agreed to provide a statement. He advised that he met Ms. Riossi when he was 15 years old and in grade 10. She was his drama teacher. Around mid-October to mid-November, Ms. Riossi befriended M.K., positioning herself as a cool teacher he could talk to.

[23] In November 2016, Ms. Riossi contacted M.K. using another student’s Instagram account. She asked for his contact information. From there, Ms. Riossi and M.K would speak on the phone. Ms. Riossi would ask M.K. personal sexual questions. She told M.K. that she wanted a kiss as an early Christmas gift. She offered to drive M.K. home from school and they drove to a random side street where they “made out” in Ms. Riossi’s vehicle. She then dropped him off down the street from his home.

[24] During this time, Ms. Riossi would employ M.K. to assist with wedding photo shoots on behalf of her brother, who was a professional photographer.

[25] The incidents in the car continued and progressed to oral sex and eventually intercourse. Ms. Riossi initially provided condoms but M.K. later purchased them himself. M.K. recalled seeing a scar on Ms. Riossi’s buttocks which he learned resulted from a skin graft following a jet ski accident.

[26] After months of sexual encounters, Ms. Riossi became “hot and cold” with M.K. She would tell him she could not talk to him anymore and then she would initiate further contact. M.K. was confused by her conduct. In June 2017, Ms. Riossi threatened that if M.K. did not cease contacting her, she would tell his parents and the school board that he was harassing her.

[27] One night in June, while on the phone, Ms. Riossi made this threat against M.K. M.K. passed the phone over to his mother. Ms. Riossi told M.K.’s mother that she could no longer speak with M.K. and that she may have taken things too far, though it was now over.

[28] Mrs. K. was confused and shocked. Within minutes of the call, the doorbell rang and Ms. Riossi was at M.K.’s residence. Ms. Riossi stated that M.K. needed to leave her alone and indicated that she would lose her a job as a teacher, a job she had worked really hard for. Mrs. K. asked her son if he would leave Ms. Riossi alone and he agreed. Ms. Riossi then left the home.

[29] M.K. ceased contact with Ms. Riossi after this date. He did not disclose the sexual assaults with anyone until the police arrived at his home following Ms. Riossi’s arrest in relation G.A.

[30] M.K. was able to retrieve text messages he exchanged with Ms. Riossi during their relationship. The messages make reference to numerous dalliances and meeting places. They also include comments such as “I love you” and “I can’t live without you.” The results of a production order show that more than 15,500 communications were exchanged between Ms. Riossi’s phone and M.K.’s phone.

Victim Impact Statements

[31] G.A.’s parents, uncles and aunts provided Victim Impact Statements on his behalf. The statements all speak eloquently and thoughtfully about the significant impact that the offence has had on G.A. and his family.

[32] G.A.’s mother explains that she had seen her once active, fun loving, social son slowly disappear and become an angry and depressed young man. She notes that following the offence, G.A. has become withdrawn. He hardly leaves the house and no longer socializes with friends. She states, “The crime took away years that should have been filled with school activities, parties, and carefree days” and replaced them with therapists and medications for anxiety and depression. She notes that G.A. feels embarrassed, lost, angry and in despair.

[33] G.A.’s uncles and aunts report similar impacts. They note that they watched a once social, athletic, and personable teenager become sullen, withdrawn and socially isolated. They note that he has lost confidence in himself. He now struggles with mental health issues and is no longer functioning. He is not able to attend school, has not been able to maintain employment and has been unable to form close family relationships.

[34] His uncles and aunts have also watched as his parents have struggled to cope with the fall out of the offence. They fear that despite the parents’ efforts, they have been unable to reach him and turn him around.

[35] G.A.’s uncle, F.A., a teacher at the school where the offence happened, poignantly notes “There is a lack of compassion when the gender roles are reversed in a crime like this. It is unfair and unethical to live through this unequal treatment. This implicit sense that this is less of a crime – or no crime at all simply based on the defendant’s gender has deepened this emotional pain as I (and I am sure it is true even more so for G.A.) have been stigmatized by this crime; and have been treated like the criminal or the troublemaker in the environment of my colleagues and within the school community at large. The whispers, stares and distance of those around me (rather than support and empathy) makes every day a renewed battle with emotional demons.”

[36] No victim impact statements were tendered by or on behalf of M.K.

The Circumstances of the Offender

(a) Ms. Riossi’s Background

[37] Ms. Riossi is currently 34 years of age. She would have been approximately 27 or 28 years old when the offences occurred.

[38] Ms. Riossi has no criminal record. She has never been in trouble before or since these offences.

[39] By way of background, Ms. Riossi grew up in a loving and supportive home. Her mother was a high school teacher who was a strict parent. Her older brother Mario is an events photographer. Ms. Riossi maintains a good relationship with her mother and brother and they have supported her through this matter.

[40] Ms. Riossi is not in touch with her father. Her parents separated when she was five years old and divorced a year later. Ms. Riossi had limited contact with her father while growing up as he moved out following the separation. Ms. Riossi learned that her father may have been violent towards her mother, though she has no recollection of observing any violence in the home. Nonetheless, she recalls being afraid of her father. Her brother and mother confirm that the father had little to do with Ms. Riossi and was a negative presence until he left the family unit.

[41] Ms. Riossi completed high school in 2006. She then attended Guelph University, at Humber College and later attended York University, where she obtained her Bachelor of Education in 2012.

[42] Over the years, Ms. Riossi has been gainfully employed. When in school, she worked during the summers as a camp counsellor and martial arts instructor. She also worked in the food industry and assisted her brother with his photography business.

[43] Ms. Riossi started working as a supply teacher in 2011. She was suspended when these charges arose in 2018. She resigned from the Ontario College of Teachers in 2020.

[44] Ms. Riossi now works as a restaurant manager and continues to help her brother with his photography business when she can.

[45] On March 13, 2012, Ms. Riossi was involved in a jet ski accident while on vacation in Florida. She received severe lacerations to the face, right hand, both legs and broke her right hip and left toe. She was also diagnosed with a concussion. Medical records, photographs and reports stemming from litigation relating to the injuries were tendered into evidence. This material confirms the significant nature of the injuries.

[46] The injuries did not heal well, and Ms. Riossi ended up with necrosis on her left calf. Following a botched laser treatment, Ms. Riossi needed a skin graft to repair the injury. The skin was taken from her buttock area and it resulted in significant scarring. It took Ms. Riossi two years to heal and regain the full ability to walk. The injuries also caused issues in relation to Ms. Riossi’s ability to complete her teaching studies.

[47] The accident had a significant emotional impact on Ms. Riossi. She became depressed and lost confidence and self-esteem. She lost interest in socializing and suffered frequent flashbacks and nightmares reliving the accident. She also suffered increased anxiety and became very self-conscious about the scarring and deformity to her leg.

[48] At the time of the offences, Ms. Riossi was dating and later engaged to her fiancé. They had planned to marry in 2018. The relationship was strained as a result of the injuries Ms. Riossi suffered in the jet ski accident. Ms. Riossi felt that her fiancé was no longer attracted to her. She also felt that he was not responsive to her needs.

[49] Once the charges were laid, the relationship came to end. The fiancé moved out and they drifted apart. While there was some prospect of reconciliation, the relationship finally came to an end in 2020.

[50] Ms. Riossi has since found a new boyfriend whom she met while working at a restaurant. They have a positive relationship and he has supported her through the court process and is prepared to continue to support her following the imposition of sentence.

(b) Ms. Riossi’s Explanation for the Offences

[51] Ms. Riossi did not testify at the sentencing hearing. However, she conveyed her version of events through Dr. Julian Gojer, who conducted a psychiatric evaluation and risk assessment.

[52] Ms. Riossi explains that following the jet ski accident in 2012, she gained weight due to the prolonged period of inactivity. She could no longer participate in martial arts. The accident left her disfigured and it affected her mood and self-esteem.

[53] At the time of the offences, she was still using Percocet to deal with the pain from the accident. She also consumed limited amounts of alcohol and marijuana.

[54] When Ms. Riossi met M.K. in the fall semester of 2016, she felt he had a lot of potential and she decided to take him “under her wing” in order to boost his confidence. She began working with M.K. on various school related tasks and spent a lot of time with him. Ms. Riossi explained that she grew infatuated with M.K. after watching his performance in her drama class. They began communicating by telephone. She would ask him about his relationships and sexual history because she was attracted to him and wanted him to know. She also started giving him rides home in her car and would sit in the car with him for long periods of time. Initially, they would exchange long hugs and hold hands. The physical intimacy progressed, when Ms. Riossi sent M.K. a text requesting a kiss as “an early Christmas present.” Their physical activities thereafter progressed from kissing and making out to oral sex and eventually sexual intercourse. Ms. Riossi explained that the relationship felt exciting at the time due to its forbidden nature, though she accepted that she used very poor judgment.

[55] At the time, her relationship with her then fiancé was strained. She did not feel reassured or valued by him and he reacted negatively to her scarred leg. His conduct did not make her feel desired. When she shared these feelings with M.K., he was supportive, listened to her and made her feel attractive. Looking back, Ms. Riossi explains that she was caught up in a relationship that was not evolving and she was working through the disfiguring effects of the accident.

[56] While she continued her relationship with M.K. throughout the school year, she eventually decided to end the relationship. She did not think she had taken advantage of M.K. nor did she view him as a child at the time, despite the fact that he was 15 years old.

[57] According to Ms. Riossi when she told M.K. that the relationship could not continue, he tried to convince her that it could work. He also tried to convince her not to go through with her marriage.

[58] Following the end of the relationship, M.K. continued calling Ms. Riossi. Her fiancé became concerned over the number of calls she was receiving. She told M.K. that he had to stop calling her and also told him that she would contact his parents if he continued. Indeed, she eventually spoke with M.K.’s mother and then attended at M.K.’s home. Ms. Riossi ended all contact with M.K. in June 2017.

[59] In September 2017, Ms. Riossi began teaching at another school. She met G.A., who was 16 years old at the time. He confided in her that he was struggling with his classes and she began assisting him with assignments. Soon, she began experiencing an infatuation with G.A., despite the fact that she was living with her fiancé. She explained that their communications became flirtatious and she started spending time with him after school. On three occasions they “made out” in her car. On the fourth occasion, she performed oral sex on him after they “made out.” On a further four occasions, she again performed oral sex on him. Their interactions did not include sexual intercourse though they may have included digital penetration.

[60] As her relationship with G.A. continued, Ms. Riossi began to feel that things were getting out of control. G.A.’s friends confronted her and asked her why she was engaging in the relationship when she had a fiancé. Ms. Riossi claims that G.A.’s friends began intimidating her at school. They would trip her when she walked past and on one occasion locked her in a closet.

[61] Eventually, G.A. confronted Ms. Riossi with rumours suggesting she was in a relationship with another student. She denied the rumours. They then agreed to end their relationship.

[62] Ms. Riossi learned that G.A. and his friend had been asked to provide a statement to police. She told them she was scared and would rather not be alive than face the prospect of the relationship being revealed. Ms. Riossi maintains that G.A. and his friend essentially extorted her by suggesting that they needed a passing grade on their exams and that they would be telling the police that the rumours were not true.

[63] Ms. Riossi maintains that the relationships with the victims occurred because of poor judgment and not as a result of an interest in underaged males. She believes she was reacting to the external validation provided by the victims and that this resulted in a sexual attraction developing. She did not focus on the legal or moral wrongfulness of her conduct.

[64] Ms. Riossi expressed deep regret and remorse to Dr. Gojer. She accepts that the victims were minors in need of care and protection and that she violated the trust put in her as a teacher.

[65] When asked to address the court, Ms. Riossi spoke eloquently about how the worst day of her life was when she sat in court and listened to the Victim Impact Statements. She expressed deep remorse and apologized for her actions. She explained that she wished she could turn back the hands of time and that her conduct was the biggest mistake of her life. She asked for a second chance and expressed a desire to continue helping the community and her family, including her elderly grandfather.

(c) Letters in Support

[66] A significant volume of letters in support were filed on Ms. Riossi’s behalf. These letters help present a more fulsome picture of Ms. Riossi, including very positive features of her character and background.

[67] Ms. Riossi’s mother, Elda Riossi, speaks eloquently of Ms. Riossi’s accomplishments and struggles. She describes her as responsible, caring and hardworking. She notes that Ms. Riossi has accepted therapy and is seeking forgiveness from those she hurt.

[68] Ms. Riossi’s uncle, Fred Cantera, describes how Ms. Riossi was a dedicated caregiver to her elderly grandmother who was suffering from Alzheimer’s. He notes that she displayed kindness and had a selfless demeanour.

[69] Joe Cariati, a Taekwondo Grandmaster, first met Ms. Riossi when she was four years old and she joined his martial arts studio. He has watched her teach many children over the years and has never observed anything untoward in her conduct. He describes the offences as entirely out of character, and notes that he will forever be supportive. Sherry Kaye Cappa is a parent whose child was taught martial arts by Ms. Riossi. She describes how Ms. Riossi was an excellent teacher who brought young students “out of their shells.” She also notes that Ms. Riossi dedicates herself as a community volunteer through various endeavours. Ms. Cappa’s views were echoed by Uliana St. Catherine whose child was also taught martial arts by Ms. Riossi.

[70] Ms. Riossi’s employers, Daniele Mele and Julia Kaberle, describe her as a valued and caring employee who goes above and beyond to help her co-workers. They explain that she has been instrumental in operating the restaurant, especially through the COVID period. Ms. Emily Nash, one of Ms. Riossi’s co-workers, similarly describes her as reliable, thoughtful and kind-hearted. She notes that Ms. Riossi has resounding strength that is admirable. Another co-worker, Max Antoshchenko, describes her in similar positive terms and notes that she is a valued member of the workplace team and the community.

[71] Janet Tucci, a retired teacher, has known Ms. Riossi for many years. She supervised Ms. Riossi during a work placement and had Ms. Riossi volunteer with her students for many years. She describes Ms. Riossi as an educator with a natural ability to connect with all students, including those with special needs. She notes that she hired Ms. Riossi to tutor her own daughter and that the tutoring provided was instrumental in her daughter’s academic success.

[72] Joshua Oliveira is Ms. Riossi’s current boyfriend. They have been dating for approximately 2½ years and met some 4 years ago. He describes Ms. Riossi as the love of his life and notes that he has never met such a loving and caring woman. He describes her as extremely hard working and dedicated to her family. He notes that she cares for her 97 year old grandfather and also cares for her brother’s children whenever needed. He notes that Ms. Riossi has expressed remorse over the offences and has been depressed and distraught leading up to the end of the court process.

[73] Maria Wei is Ms. Riossi’s older cousin. She attests to Ms. Riossi’s skills as a martial arts teacher and community volunteer. She describes Ms. Riossi as an accomplished and successful young woman who puts her heart into anything she does.

[74] Mario Riossi is Ms. Riossi’s older brother. He describes her many accomplishments, including air cadets, martial arts and photography. He describes her as having a magnetic personality and also describes her as being a caring aunt to his children who adore her, a sentiment that is echoed by Tanya Pisegna, Mr. Riossi’s ex-wife. Mr. Riossi also describes the significant impact that the jet ski accident had on her, including what he perceived to be a cognitive decline.

(d) Counselling

[75] Since the charges have arisen, Ms. Riossi has taken counselling for sexual interference harm reduction. To date she attended approximately 35 sessions and her counselling remains ongoing. Her counsellor, Trish Scott, reports that Ms. Riossi has expressed very deep shame over the violation of the victims’ trust and how her conduct hurt not only the victims but also their parents. Ms. Riossi has gained insight into her lack of appropriate boundaries and now understands that the role of a teacher ends at the classroom door.

[76] In terms of Ms. Riossi’s risk of re-offending, Ms. Scott notes that Ms. Riossi does not display any criminogenic factors. She has accepted responsibility for her actions and has expressed deep remorse for the victims. Ms. Riossi has demonstrated a deep desire to become a better person and learn from this experience. Ms. Scott opines that Ms. Riossi presents an “incredibly low risk” of re-offence. She suggests that Ms. Riossi may have suffered a brain injury as a result of the jet ski accident which may have impacted her cognitive functioning. Similarly, she notes the presence of a cyst on Ms. Riossi’s brain. In her view, Ms. Riossi’s diminished cognitive functioning could have had an impact on her decision making ability. I pause to note that in assessing the evidence of Ms. Scott, I place no weight on her risk assessment opinion nor do I place any weight on her speculation regarding Ms. Riossi’s cognitive functioning or the impact of the pineal cyst. In short, Ms. Scott is a psychotherapist/counsellor and is not qualified to offer opinions in this regard.

[77] Ms. Riossi has also taken 10 sessions of counselling with Caroline Kerjikian, a social worker who provides psychotherapy to individuals who have come into contact with the criminal justice system. Ms. Kerjikian notes that in her counselling sessions, Ms. Riossi has taken responsibility for her offending, has gained insight and has expressed strong regret and sincere victim empathy. She rates Ms. Riossi’s overall engagement, participation and commitment to counselling as excellent.

Expert Evidence of Dr. Julian Gojer

[78] Dr. Gojer conducted a psychiatric evaluation on Ms. Riossi and produced a report dated May 5, 2023. In his report, Dr. Gojer opines that Ms. Riossi reacted to the aftermath of the jet ski accident with psychiatric symptoms that would fall within the definition of Post Traumatic Stress Disorder. He notes that she engaged in denial and minimization of her emotional problems following the accident and did not seek appropriate psychiatric or psychological care.

[79] In Dr. Gojer’s opinion, Ms. Riossi suffered from feelings of inadequacy, loss of self-esteem and loss of a sense of attractiveness following the accident.

[80] In relation to Ms. Riossi’s cognitive functioning, Dr. Gojer explained that it is unclear whether Ms. Riossi suffered a brain injury as a result of the accident. He could not conclude that her psychological testing conducted by Dr. Marshall was truly reflective of a drop in intellectual functioning. In his view, while the testing showed low functioning in some areas, this may be related to anxiety and depression relating to the charges. On this issue, he noted that following the accident, Ms. Riossi managed to complete her education, complete her teacher training and get a job as a teacher. Nonetheless, Dr. Gojer was of the view that a neuropsychological assessment would be warranted to examine both the potential of a brain injury and the significance of the pineal cyst on her brain, which he did not believe was impairing her functioning.

[81] According to Dr. Gojer, Ms. Riossi does not currently meet the criteria for Post Traumatic Stress Disorder. Her trauma symptoms, depression and anxiety, are better explained by the diagnosis of Other Trauma and Stressor Related Disorder. He explained that her depression and anxiety are also related to the stress of the ongoing legal proceedings and became more significant after the charges were laid. Dr. Gojer did not view any indication that early childhood trauma was connected to her behaviour.

[82] In terms of Ms. Riossi’s offending, Dr. Gojer opined that it did not appear to be related to any underlying sexual deviation but rather a complex interplay of various factors, stemming mainly from her injury. In his view, she suffered a “loss of femininity” and her conduct can be viewed as an attempt to regain the life she once had by overcompensating and seeking external approval. He explains that she sought out and found emotional and sexual gratification through her vulnerable students. At the time, her judgment was seriously compromised and it resulted in the exploitive behaviours before the court.

[83] Dr. Gojer did not view Ms. Riossi’s offending as relating to a personality disorder or antisocial attitudes or psychopathy.

[84] In terms of her prognosis, Dr. Gojer opined that many of the risk factors Ms. Riossi was dealing with have been or are being addressed. She is motivated to not put herself in a similar position again. She is in a new and committed romantic relationship. She has also taken counselling and has developed good insight into her offending. She is also being treated for depression and has shown remarkable improvement. Based on all these factors, Dr. Gojer opined that Ms. Riossi presented a low risk of re-offence. That said, he suggested that Ms. Riossi should not work with children or in an unsupervised environment. He further suggested that she should remain under the care of a doctor and continue with her medication and counselling.

[85] In cross-examination, Dr. Gojer was asked about the risk posed by Ms. Riossi. He explained that she has issues she still needs to deal with and has more work to do. He explained that his opinion that Ms. Riossi presents a low risk of re-offence is predicated on her not having unsupervised access to children. He agreed that if she has access to children, her risk would be higher. He explained that her risk would be “fluid” depending on the circumstances.

[86] Dr. Gojer also agreed that apart from the offences, Ms. Riossi was a successful, high achieving person who was well educated, pro-social, capable of maintaining friendships and a relationship, and capable of being gainfully employed.

[87] In terms of Ms. Riossi’s sexual preferences, Dr. Gojer maintained that she did not have a pedophilic preference and was attracted to adult males. He described her offending as “opportunistic” and based on the confluence of emotional factors going on in her life at the time. That said, he agreed that maybe she just enjoyed having sex with teen boys, though this was a less likely explanation given her personal antecedents.

Additional Medical Evidence

[88] Dr. Peter Marshall, a psychologist, conducted an assessment of Ms. Riossi’s cognitive functioning given a concern that Ms. Riossi may be suffering long lasting effects stemming from her jet ski accident. Based on his testing, Dr. Marshall opined that Ms. Riossi’s overall intellectual skills are below the average for her age, especially given her reported level of academic success. He noted that she had average abilities in terms of her verbal comprehension and perceptual reasoning, but her working memory and processing speed were below average. He also noted that her immediate recall ability was extremely low. He concluded by noting that the likelihood that a head injury led to the deficits in intellectual ability and memory “is important to consider.” He suggested that a comprehensive assessment by a neuropsychologist would be of value.

[89] A recent CT scan of Ms. Riossi’s head has revealed a pineal cyst. Ms. Riossi has also been prescribed medication for anxiety and depression. The medication has helped her clear her mind and improve her mood.

The Principles of Sentencing

[90] The objectives of sentencing long recognized at common law have been codified in s. 718 of the Code. They are: the protection of society and the maintenance of a just, peaceful and safe society through the denunciation of unlawful conduct and harm done to the victims and the community; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[91] Section 718.01 provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18, it shall give primary consideration to the objectives of denunciation and deterrence, see also R. v. Friesen, 2020 SCC 9 and R. v. B.M., 2023 ONCA 224.

[92] Section 718.1 provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality requires that the more serious an offence and/or the greater the offender’s degree of moral culpability, the more significant the sentence imposed; see R. v. Lacasse, 2015 SCC 64, at para. 12. The assessment of proportionality is based on an assessment of the individual offender and the particulars of the offence committed.

[93] Section 718.2(a) provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, including evidence that in committing the offence, the offender abused a person under the age of 18 and abused a position of trust or authority in relation to the victim.

[94] Section 718.2(b) establishes a principle of parity which is also used as a measure of proportionality. It requires that a sentence be similar to those imposed on similar offenders in similar circumstances. Section 718.2(c) codifies the totality principle and requires that when a court is imposing consecutive sentences, it must not impose a sentence that is unduly long or harsh.

[95] Section 718.2(d) and (e) codify the principle of restraint. These sections require that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate and that all available sanctions other than imprisonment should be first considered.

[96] Section 718.3(7)(b) of the Code requires that a court impose consecutive sentences when imposing sentences for sexual offences committed against two or more children. This requirement is nonetheless subject to the principle of totality, see R. v. S.C., 2019 ONCA 199, at paras. 13-17.

Sentencing in Cases of Sexual Violence and Children

[97] In R. v. Friesen, the Supreme Court of Canada set out the overarching sentencing framework for sexual offences involving children. In doing so, the Court sent a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. Writing on behalf of the Court, Chief Justice Wagner and Justice Rowe stated:

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.

[98] The Court went on to set out a number of principles applicable in cases involving sexual offences against children, including the following inter alia at paras. 42-91:

a. The protection of children from wrongful exploitation and harm is the overarching objective of the legislative scheme and is one of the essential and perennial values of Canadian society;

b. The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children;

c. To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important;

d. The focus is not only on physical harm, but also involves a consideration of emotional and psychological harm. Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity;

e. The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members, secondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents and caregivers’ trust in friends, family, and social institutions, and leave them feeling powerless and guilty;

f. Beyond the harm to families and caregivers, there is broader harm to the communities in which children live and to society as a whole. Some of these costs can be quantified, such as the social problems that sexual violence against children causes, the costs of state intervention, and the economic impact of medical costs, lost productivity, and treatment for pain and suffering;

g. The protection of children is one of the most fundamental values of Canadian society. Sexual violence against children is especially wrongful because it turns this value on its head. In reforming the legislative scheme governing sexual offences against children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity;

h. While sexual offences have a disproportionate impact on girls and young women, this fact does not detract the particular challenges that boys and young men who are the victims of sexual violence face. Victimization can be particularly shameful for boys because of social expectations that males are supposed to appear tough. Embarrassment and humiliation are a particularly toxic and stigmatizing combination for male child victims;

i. A contemporary understanding of the harmfulness and wrongfulness of sexual offences against children impacts a sentencing court’s proportionality assessment of both the gravity of the offence and the offender’s degree of moral blameworthiness;

j. The sentence imposed must accurately reflect the gravity of the offence. The courts must recognize (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;

k. The sentencing court must not discount an offender’s degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children;

l. An offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child;

m. The duration and frequency of sexual violence is a further important factor in sentencing. The frequency and duration can significantly increase the harm to the victim. The immediate harm the victim experiences during the assault is multiplied by the number of assaults. Sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime;

n. De facto consent is not a mitigating factor. Treating a victim’s participation as a mitigating factor would be to circumvent the will of Parliament through the sentencing process. Where a victim is underage or where their participation is the result of a campaign of grooming by the offender or of a breach of an existing relationship of trust, their participation will never be a mitigating factor. Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality; and,

o. Mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

[99] The overall message from the Friesen decision is that sentences for sexual offences involving children have been too low for too long. This is a message that has been repeated on more than one occasion by the Court of Appeal for Ontario, see R. v. M.M., 2022 ONCA 441 at paras. 14-16, R. v. Ritchie, 2023 ONCA 53 at para. 12 and R. v. B.M. at para.19.

The Position of the Crown

[100] The Crown seeks a penitentiary sentence of 5 years comprised of 2 ½ years on each count consecutive. The Crown also seeks a DNA order, a non-communication order under s. 743.21, a s. 161 order for 10 years with certain exceptions, and a SOIRA order under s. 490.12 for 20 years.

[101] The Crown notes the presence of significant aggravating factors including: a breach of trust given Ms. Riossi’s role as the victims’ teacher; the lengthy duration of the relationship; the nature of the sexual activity involved; the fact that there are two victims at two different schools; the planned and thoughtful nature of the conduct; the fact that G.A. and N.D were manipulated into misleading police; the fact that M.K. was threatened; and the extent of the impact on the victims.

[102] The Crown agrees that the guilty plea, albeit very late, and the absence of a prior criminal record serve to mitigate the sentence imposed. That said, the Crown argues that the fact that victims participated in the acts and were not coerced through threats or violence is not mitigating. The Crown also argues that Ms. Riossi’s prior good character is not mitigating as it is her character that allowed her to be in a position of authority and power over the victims.

The Position of the Defendant

[103] Ms. Riossi seeks a conditional sentence of imprisonment. In her submission, this is an extremely unique case that cries out for compassion. She bases her request for a conditional sentence on her personal antecedents, the length of time which has passed since the offences, her compliance with bail and the absence of evidence that she poses a risk to the public.

[104] Ms. Riossi notes that while both offences she pleaded guilty to have mandatory minimum sentences, which would preclude the availability of conditional sentences of imprisonment, those mandatory minimum sentences have been struck down in either binding or persuasive form. Ms. Riossi also seeks a finding that a 20 year SOIRA order is unconstitutional in the circumstances of her case.

[105] In support of her position, Ms. Riossi places significant weight on the decision in R. v. Ng, an unreported decision from the Ontario Court of Justice dated April 27, 2022. In that decision, the court was presented with a joint submission for an 18-month conditional sentence for a male teacher who had a 7-year relationship with a female student. Ms. Riossi submits that this decision “paves the way” for a conditional sentence in her case. She goes so far as to suggest that it would violate s. 15 of the Charter to not follow the decision as it would leave the impression that Ms. Riossi did not get a conditional sentence because she is a woman. [1]

The Availability of a Conditional Sentence

[106] As indicated at the outset, Ms. Riossi pleaded guilty to two offences; sexual interference under s. 151 of the Code and sexual exploitation under s. 153 of the Code. Both offences have a prescribed mandatory minimum sentence of one year in jail when prosecuted by indictment. In the ordinary course, a mandatory minimum sentence precludes the availability of a conditional sentence of imprisonment, see s. 742.1(b). [2]

[107] However, in R. v. B.J.T, 2019 ONCA 694, the Court of Appeal for Ontario struck down the mandatory minimum sentence of imprisonment for the offence of sexual interference under s. 151 of the Code. That decision is binding. As such, a conditional sentence is now an available sentence for such an offence.

[108] In terms of the offence under s. 153 of the Code, I note that in R. v. J.C.-P., 2017 ONSC 4246, the mandatory minimum sentence in relation to the offence of sexual exploitation under s. 153 of the Code was struck down as unconstitutional. The mandatory minimum sentence under s. 153 has also been struck down in Nova Scotia, see R. v. Hood, 2018 NSCA 18 and in the Yukon, see R. v. E.O., 2019 YKCA 9.

[109] The decision in J.C.-P. was appealed on other grounds and a stay of proceedings was entered by the Court of Appeal on the basis of a violation of s. 11(b) of the Charter, see R. v. J.C.-P., 2018 ONCA 986. The Court of Appeal did not address any issues relating to the sentence imposed. [3]

[110] The Court of Appeal for Ontario has not otherwise determined the constitutionality of the mandatory minimum sentence for sexual exploitation and as such, there currently exists no binding provincial authority on this point.

[111] That said, the trial decision in J.C.-P. has not been universally followed in Ontario. In R. v. Reid, 2020 ONSC 5471, a case decided post-Friesen, the court considered the constitutionality of the mandatory minimum sentence under s. 153 and came to a different conclusion, finding that the minimum sentence was not grossly disproportionate. The same holds true in Alberta, where the Court of Appeal declined to follow J.C.-P. and upheld the mandatory minimum sentence under s. 153, see R. v. E.J.B., 2018 ABCA 239.

[112] While the defendant accepts that there is divided authority both in Ontario and across the country, the defendant submits that as a matter of horizontal stare decisis, I should follow the ruling in J.C.-P. and similarly find that the mandatory minimum sentence in s. 153 is unconstitutional on the basis of gross disproportionality. The defendant argues that I should decline to follow Reid as it was decided per incuriam and/or not fully considered as discussed in R. v. Sullivan, 2022 SCC 19. More specifically, the defendant argues that the Reid decision fails to address available reasonable hypotheticals.

[113] The Crown argues that I should first determine whether a jail sentence of more than one year is appropriate on the facts of this case, and should I make that finding, the Charter challenge becomes moot. The Crown further notes that the decision in J.C.-P. was decided pre-Friesen and as such, needs to be re-visited in view of the Supreme Court’s clear direction regarding the length of sentences that should be imposed in cases of sexual offences involving children.

[114] Having carefully considered the issue, I decline to determine the constitutionality of the mandatory minimum sentence for sexual exploitation under s. 153. In my view, the issue is academic on the facts of this case.

[115] First, as I will discuss when I address the range of sentence for this type of offence, I am satisfied that a fit sentence for the offence of sexual exploitation in this case involves a period of imprisonment well in excess of one year.

[116] Second, I am readily satisfied that a conditional sentence of imprisonment is not an appropriate sentence on the facts of this case. The Court of Appeal for Ontario has directed that absent limited exceptional circumstances, conditional sentences for sexual offences against children will very rarely be appropriate, see R. v. B.M. at para. 2 and R. v. B.S., 2023 ONCA 6 at para. 49. In M.M., at para. 16, the Court of Appeal explains that the availability of conditional sentences for such a case, “…must be limited to exceptional circumstances that render incarceration inappropriate.” While the Court declined to provide a finite list of exceptional circumstances, it noted that one such circumstance might arise where a defendant has a medical hardship that cannot be adequately addressed within correctional facilities.

[117] In my view, while Ms. Riossi presents with several mitigating features, none of them, standing alone or taken together, amount to exceptional circumstances warranting the imposition of a conditional sentence of imprisonment. I will return to this issue when I address the length of sentence that is to be imposed.

The Range of Sentence

[118] Counsel have provided case law setting out what they submit is the appropriate range of sentence for the offences before the court. The Crown correctly notes that cases decided prior to Friesen must be viewed with some caution as they were decided prior to the Supreme Court’s direction that sentences for sexual offences involving children must increase.

[119] In terms of establishing the range, the Crown principally relies on Friesen wherein the Supreme Court directed that offenders who commit sexual offences against children can expect “mid-single digit penitentiary terms” and that “upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.”

[120] The Crown relies on R. v. Green, 2022 ONSC 3786, where an 18 month sentence was imposed after trial on a teacher who engaged in two brief instances of sexual touching with a 14 year old student. The Crown also relies on R. v. Fisher, 2020 NSSC 325, where a sentence of 27 months was imposed after trial on a 26 year old youth pastor who started a long term sexual relationship with a young church volunteer, which included 5 months of sexual intercourse once the victim turned 17 years old.

[121] The Crown also relies on a number of pre-Friesen cases including, inter alia: R. v. Rancourt, 2020 ONCA 64 (12 months jail after trial for a teacher who had sex with a student once she turned 18), R. v. Lavigne, 2015 ONCA 915 (13 months in jail after trial for a female teacher who carried on a prolonged sexually charged relationship with a 17 year old student which included sexual intercourse on one night), and R. v. James Malcolm (Unreported decision of Chaffe J., Newmarket OCJ, November 1, 2016), where the defendant, an intensive childcare worker, was sentenced to 5 years in prison following a guilty plea to two sexual offences stemming from a relatively lengthy sexual relationship with a 13 year old student under his care.

[122] The defence has provided a number of cases where conditional sentences or mid-level reformatory sentences were imposed in child sex cases. In R. v. K.K., 2020 ONSC 7198, the court imposed a two year less one day conditional sentence of imprisonment on a 60 year old accused who suffered from uncontrolled diabetes and who had suffered trauma as a child. The accused had been convicted of sexual touching and invitation to sexual touching after he groped the victim’s breasts on a number of occasions when she was between the ages of 10 and 12.

[123] In R. v. W.G., 2019 ONSC 1146, the accused was sentenced to a one year conditional sentence of imprisonment after trial. The 50 year old accused had been convicted on the basis that he failed to take reasonable steps to determine the age of the victim whom he had sexual intercourse with over a six week period.

[124] In R. v. M.L., 2016 ONSC 7082, the accused was sentenced to nine months in jail after trial where he was convicted of squeezing the victim’s breasts. The accused was a caregiver to the victim, who was his daughter’s half sister.

[125] In R. v. P.S., 2021 ONSC 5091, the accused was sentenced after trial to a conditional sentence of imprisonment of two years less one day in relation to three instances of sexual exploitation. The offence occurred in 1988 and as such, the mandatory minimum sentence was inapplicable. At the time of sentencing, the accused was 71 years old, suffered from Parkinson’s disease and required specialty care to manage his disorder. He was also in remission for kidney cancer.

[126] In R. v. Hood, 2018 NSCA 18, the accused was sentenced to a 15 month conditional sentence following convictions for sexual exploitation and other related offences stemming from her relationships with two teenaged male victims. The offences involved exchanging sexually explicit messages and photos and included a single act of fellatio with one victim. At the time of the offences, the accused was suffering from significant mental illness and advanced an NCR defence that was ultimately rejected by the trial judge.

[127] The defence also places significant emphasis on the sentencing decision in R. v. Ng, (Unreported decision of Ghosh J., Newmarket OCJ, April 1, 2022 (guilty plea) and April 27, 2022 (sentence)). In Ng, the accused pleaded guilty to one count of sexual assault against the complainant. The Crown had proceeded summarily. He was a music teacher at a high school and the 16 year old victim was his student. Mr. Ng reached out to the victim over Facebook outside of school hours. They began a sexual relationship, which included vaginal intercourse and took place over a period of seven years. The mitigating factors included the following: Mr. Ng did not have a criminal record, had attended counselling, was compliant with strict bail conditions for 26 months, had family support, and was expected to lose his teaching license and his real estate license as a result of the conviction.

[128] Ghosh J. was presented with a joint submission for an 18 month conditional sentence of imprisonment, which accounted for the mitigating effect of restrictive bail conditions. After hearing submissions, the jointly submitted sentence was imposed.

[129] In assessing the weight that can be placed on the Ng decision, I note the following. The case had been extensively pre-tried before a different judge who had case managed the matter. The case was heard in the wake of the COVID pandemic and Ghosh J. recognized that the backlog of cases meant that there was a realistic possibility that the case would be stayed under Jordan if it proceeded to trial. He also recognized that the COVID pandemic also placed public health pressures on the custodial system. Lastly, Ghosh J. recognized the sentencing principles and direction discussed by the Supreme Court in Friesen, though he also acknowledged the high threshold for “jumping” a joint submission and the procedural delays that would result. While Ghosh J. ultimately acceded to the joint submission, he stated “[m]y ruling should have no precedential value given the unique cogency of the waived Charter issue that explicitly informed the joint submission.”

[130] In addressing the applicable range of sentence, I note that most of the cases provided have significant distinguishing features. The majority of the cases provided on behalf of Ms. Riossi have limited applicability as they are pre-Friesen, relate to significantly less serious conduct, and/or involve accused persons with significantly more mitigating personal circumstances.

[131] I place little weight on the decision in Ng. Indeed, Ghosh J. himself recognized and stressed the fact that his decision should have little precedential value. I agree with Ghosh J. The sentence imposed on Mr. Ng is anomalous and clearly the product of a negotiated outcome arrived at by way of necessity in the wake of the COVID pandemic and perhaps other factors that were the subject of pre-trial discussions not reflected in the decision.

[132] Ultimately, when I consider the available case law and particularly the Friesen decision, I find that a range of three to five years in prison is an appropriate range for the offences committed by Ms. Riossi. I appreciate that there are cases where lower sentences have been imposed. Those are mainly in cases involving single victims and fewer transgressions. As well, sentencing is not a fixed or formalistic task. Sentence ranges simply provide guidance and sentences can be below and above the usual range, see R. v. Parranto, 2021 SCC 46.

Aggravating Circumstances

[133] I find the following facts to be aggravating:

a. The offences involve a manifest breach of trust. Ms. Riossi was a teacher entrusted to care for the children she taught. She used her status as a teacher to engage in sexual relationships with two students, at two different schools and over two different time periods. In making this finding, I am cognizant that being in a position of trust is a constituent element of the offence of sexual exploitation under s. 152 of the Code. As such, I am mindful that I must not simply “double count” this factor in relation to the offence involving G.A., see R. v. Sears, 2021 ONCA 522 at para. 41. Nonetheless, I am of the view that the fact that Ms. Riossi was G.A.’s teacher at the time of the offence remains aggravating when viewed within the range of relationships involving positions of trust.

b. The offences were of a significant duration and involved escalating behaviour. These were not “one-off” spontaneous incidents of bad judgement. Ms. Riossi engaged in progressive acts that combined emotional and sexual elements and which lasted relatively lengthy periods of time.

c. The nature of the sexual activity involved was extensive and involved sexualized communications including nude photos, oral sex, digital penetration, and ejaculation. It also included repeated instances of sexual intercourse with M.K.

d. Ms. Riossi manipulated G.A. and his friend to lie to the police and hide the true nature of the relationship.

e. Ms. Riossi threatened M.K. by telling him that if he did not cease contacting her, she would tell his parents and the school board that he was harassing her. She then showed up at M.K.’s house and confronted his mother, essentially laying blame on M.K.

f. The offence has had a significant impact on G.A. and his family as set out in the various Victim Impact Statements filed.

Mitigating Factors

[134] I find the following to be mitigating factors:

a. Ms. Riossi pleaded guilty, albeit four days before a jury trial was to commence and some 4½ years after she was arrested. The guilty plea spared the victims from having to testify again.

b. Ms. Riossi has no criminal record. She has been on bail for five years without incident. [4]

c. Ms. Riossi has led an entirely pro-social life apart from these offences. Her good character is attested to across all the letters tendered in support. This fact is perhaps unsurprising as Ms. Riossi was employed as a teacher. Put another way, she would not have been a teacher unless she displayed these positive qualities, see R. v. Lavigne at para. 9. As such, the mitigating effect of these factors is significantly attenuated.

d. Ms. Riossi has significant family support and is a loving and supportive caregiver to her grandfather. She is now in a new and age-appropriate romantic relationship that appears to be stable and supportive.

e. Ms. Riossi is genuinely remorseful for her conduct. I accept the sincerity of her statement to the court. I am sure that Ms. Riossi regrets her conduct and has started to gain an appreciation of the full extent of the harm she has caused.

f. Ms. Riossi has very strong rehabilitative prospects. There is no issue that Ms. Riossi is a talented and energetic person. She is more than capable of being gainfully employed, as attested to by her current employers and co-workers. She has undergone extensive therapy and counselling and is committed to bettering herself through the process. As well, while she may never again be a teacher, she will remain gainfully employed and will find ways to constructively volunteer her time in community and family endeavours.

[135] I am not prepared to find that the following factors are mitigating based on the evidence before me:

a. There is no issue that Ms. Riossi suffered a significant injury following her jet ski accident. The injury resulted in a deformity to her leg as well as significant emotional scarring that impacted her self-perception around the time of the offence. While I accept that Ms. Riossi’s “loss of femininity” was a factor in the commission of the offences, I do not accept that it mitigates her degree of moral responsibility in relation to the offences committed. Put simply, the fact that Ms. Riossi may have been in part motivated by a desire to be desired does not make her decision to engage in sexual relationships with young students any less reprehensible. At best, this explanation is only useful in terms of the context it provides to Ms. Riossi’s offending behaviour.

b. As well, I am not satisfied on the evidence before me that Ms. Riossi suffered a brain injury as a result of the accident that impacted her cognitive abilities in relation to her interactions with the victims in this case. The evidence falls far short of establishing any such connection.

c. While the evidence suggests that Ms. Riossi has a cyst on her pineal gland, there is nothing before me suggesting that this has resulted in any cognitive deficit that could explain or mitigate the nature of her activities with the victims.

d. The fact that the victims are teen males and the defendant is female is not mitigating. While the Supreme Court has recognized that young females are particularly vulnerable to sexual offences committed by males, that does not mean that sexual offences with young male victims are to be discounted. To so find would be to rely on stereotypical assumptions about victims and how certain victims may react or respond to instances of sexual abuse. On this issue, I note the comments of G.A.’s uncle who observed that one of the more difficult aspects of this offence is that G.A. was not viewed as a victim, despite the obvious impacts the offence had on him.

e. The fact that the victims participated in the sexual relationship is not mitigating. Adults, and in particular teachers, have a responsibility to refrain from engaging in sexual violence against children, see Friesen at paras. 148-154 and see also R. v. Hajar, 2016 ABCA 222 at paras. 84-103. Parliament has decided that children under 16 years of age cannot consent to sexual activities with a person falling outside a prescribed age gap. [5] Parliament has also decided that a young person between the age of 16 and 18 cannot consent to sexual activity with a person who, inter alia, is in a position of trust or authority over them. Parliament had good reason for doing so. As the Alberta Court of Appeal explains in Hajar at paras. 88-89:

[88] In raising the age of consent, Parliament determined that children in the protected category are incapable of consenting to sexual activity with older persons outside the close-in-age exception. That is because of the power imbalance inherent in the relationships between children and those older persons coupled with the particular vulnerability of children. Put simply, children in the protected category are not capable of making such an important, personal and potentially life-altering decision.

[89] Why is this so? Children have limited experience and psychological resources and a very limited comprehension of the psycho-social aspects of sex. Add to this that adults have enhanced power and standing in the eyes of children and are seen as authority figures by virtue of age. And it is understandable why, as a result, it is very difficult for a child to assert herself or himself against an adult. Accordingly, as Dr. Boyes noted in reference to data supporting Parliament’s increase in the age of consent:

This corpus of data clearly indicates that while adolescents may be interested in sex they are not developmentally prepared to engage in mature sexual or intimate relationships, nor do they possess the developmental wherewithal to provide truly informed consent to engage in sexual activity with an adult.

Determining a Fit Sentence

[136] As indicated earlier, I am readily satisfied that a conditional sentence is entirely inappropriate in the circumstances of this case. First, denunciation and deterrence are the prime sentencing objectives. A conditional sentence of imprisonment would manifestly fail to capture the significant gravity of the offences committed by Ms. Riossi, as well as her very high degree of moral blameworthiness.

[137] To repeat, Ms. Riossi engaged in lengthy sexual relationships with two students, aged 15 and 16, at separate schools. The offences were not momentary lapses of judgement. They involved the development of sustained emotional and sexual relationships. The relationships evolved to include various sexual acts, including repeated acts of sexual intercourse with M.K. Ms. Riossi was infatuated with her victims. When the relationships ended, Ms. Riossi engaged in aggravating behaviour. She convinced one victim to lie to police and she threatened the second victim. The offences also display a high degree of emotional manipulation, including over 15,000 text messages sent to one of the victims.

[138] Second, none of Ms. Riossi’s personal antecedents or current medical issues amount to exceptional circumstances warranting the imposition of a conditional sentence of imprisonment, despite the high need for denunciation and deterrence. This is not a case where Ms. Riossi presents with a particular vulnerability or medical condition that suggests that incarceration would put her at an increased risk when compared to other similarly situated offenders.

[139] Turning to the appropriate length of a prison sentence, I note that I must impose consecutive sentences in relation to these offences. Nonetheless, I must also remain cognizant of the totality principle. As well, while denunciation and general deterrence are the prime sentencing objectives, I cannot entirely ignore the fact that I am sentencing a relatively young first offender who displays positive rehabilitative prospects.

[140] Ultimately, when I consider all the evidence before me in context with the applicable legal principles, I am satisfied that a global sentence of four years in prison is appropriate in the circumstances of this case. The sentence will be two years on each count consecutive.

Ancillary Orders

[141] I turn next to addressing the requested ancillary orders.

[142] In terms of the request for a sex offender registry or SOIRA order under s. 490.012 of the Code, the Crown seeks an order for 20 years pursuant to s. 490.013(2)(b). Under s. 490.013(2.1), Ms. Riossi would have been subject to a lifetime SOIRA order as she has been convicted of more than one designated offence. However, in R. v. Ndhlovu, 2022 SCC 38, the Supreme Court of Canada struck down ss. 490.012 and 490.013(2.1) of the Code. The declaration of invalidity in relation to s. 490.013(2.1) was given immediate effect and, as such, lifetime SOIRA orders are no longer available. The declaration of invalidity in relation to s. 490.012 was suspended for one year prospectively.

[143] The Supreme Court of Canada has recognized that s. 24(1) of the Charter provides a potential remedy for violations of constitutional rights that occur during a suspension of invalidity, see R. v. Albashir, 2021 SCC 48 at paras. 67 and 69 and Attorney General (Ontario) v. G., 2020 SCC 38 at para. 83. The majority of the Supreme Court in Albashir, at para. 67, held that an individual remedy is available during the period of suspension “if the accused can demonstrate that conviction under the legislation found to be constitutionally infirm would be a breach of their own Charter rights, and if granting an individual remedy would not undermine the purpose of suspending the s. 52(1) declaration.” In this regard, the onus rests with Ms. Riossi to demonstrate that the impact of a SOIRA order on her liberty bears no relation to the purpose of the section or is grossly disproportionate to the objective of s. 490.012.

[144] Since Ndhlovu, exemptions have been granted by several courts, relying upon s. 24(1) of the Charter, to excuse primarily low-risk offenders from the registration and reporting requirements, see R. v. Shokouh, 2023 ONSC 1848 at paras. 24-29; R. v. Capot Blanc, 2023 NWTTC 7 at para. 23; R. v. Purcell, 2023 SKCA 56 at paras. 108-109; R. v. Cusick, 2022 ONCJ 590 at para. 115; R. v. Simailak, 2022 NUCJ 39; R. v. J.S., 2023 MBKB 26; R. v. Addo-Binney, 2023 ONSC 547; R. v. Luis, 2022 CM 4016; and R. v. Levesque, 2023 CM 2001.

[145] Ms. Riossi has filed a Notice of Constitutional Question seeking a s. 24(1) remedy on the basis that she does not pose an increased risk of committing future sexual offences and as such, the imposition of a 20-year SOIRA order violates her s. 7 Charter rights and is overbroad. Ms. Riossi asks that the court impose no SOIRA order or, in the alternative, impose an order for a duration of 10 years.

[146] The Crown accepts that this court has jurisdiction to consider a s. 24(1) Charter remedy during the period of the suspension of the declaration of unconstitutionality in relation to s. 490.012 of the Code. That said, the Crown submits that Ms. Riossi has failed to demonstrate that her participation in the sex-offender registry bears no relation to the purpose of the section. The Crown also submits that a SOIRA order would not be grossly disproportionate in the circumstances of this case.

[147] When I consider the evidence of Ms. Riossi’s risk, I accept Dr. Gojer’s evidence that Ms. Riossi’s risk is fluid at this stage. She is only considered a low risk if she is not involved with children. As Dr. Gojer explains, Ms. Riossi has work to do in terms of her rehabilitation and the eventual control of her risk. Dr. Gojer suggested that her risk could be reassessed after further counselling was completed.

[148] In view of this evidence, I am not satisfied that a SOIRA order, or for that matter a SOIRA order of reduced length, is constitutionally inappropriate in the circumstances of this case. This is not a case where the expert evidence suggests that Ms. Riossi is currently a low risk of re-offence, see by way of comparison R. v. Shokouh. Of course, it will remain open to Ms. Riossi to seek Charter relief down the road should her risk assessment solidify or should other circumstances warrant, see R. v. Addo-Binney.

[149] As such, there will be a SOIRA order under s. 490.12 for 20 years.

[150] I turn next to the Crown’s request for a s. 161 order. Section 161 of the Code applies where a person has been convicted of a certain offence in relation to a victim under the age of 16. Ms. Riossi is eligible for such an order in relation to the offence committed against M.K., who was 15 years old at the time of the offence.

[151] The Crown seeks an order under each subsection of s. 161(1), with appropriate modifications. I will address each in turn.

[152] First, the Crown seeks an order prohibiting Ms. Riossi from attending at a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre except when accompanied by an adult with no criminal record who is aware of her criminal record, or when attending such a location with children related to her. I am not satisfied that such an order is required in the circumstances of this case. Ms. Riossi is no longer employed as a teacher. The offences occurred within the context of her employment. There is no suggestion that she presents any risk in terms of simply attending at any of the specified locations.

[153] Second, the Crown seeks an order prohibiting Ms. Riossi from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. I agree that this order is appropriate in the circumstances of this case. Ms. Riossi should not be employed nor should she volunteer in any capacity that places in her in a position of trust over children. This will be subject to an exception for a child that is related to her.

[154] Third, the Crown seeks an order prohibiting Ms. Riossi from having any contact, including communicating by any means, with a person who is under the age of 16 years, unless she does so under the supervision of person whom the court considers appropriate or unless the child is related to Ms. Riossi. I decline to impose this condition. It is unnecessarily restrictive in the circumstances of this case.

[155] Lastly, the Crown seeks an order prohibiting Ms. Riossi from using the internet or other digital network to communicate with any child under the age of 16 unless the child is related to her. In view of the fact that Ms. Riossi sent M.K. approximately 15,500 electronic communications during the course of committing the offence, this is an entirely appropriate request.

[156] While the Crown asks that the s. 161 order be of 10 years’ duration, I am satisfied that 5 years is sufficient in the circumstances of this case. To be clear, the order does not take effect until Ms. Riossi is released from custody.

[157] In addition, I impose a DNA order under s. 487.051 of the Code. The offences are primary designated offences and I have not been provided with a basis upon which I should dispense with making the order.

[158] I impose a non-communication order under s. 743.21 in relation to G.A. and M.K. and their respective immediate family members.

[159] Lastly, I also impose the Victim Fine Surcharge on each offence.

[160] Ms. Riossi, please stand.

[161] On count #3 in the indictment, which relates to the sexual exploitation of G.A., I sentence you to two years in prison.

[162] On count #6 in the indictment, which relates to the sexual interference of M.K., I sentence you to two years in prison.

[163] The sentences will be served consecutively, for a global sentence of four years starting from today’s date.

J. Di Luca J.

Released: June 26, 2023

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.

Footnotes

[1] In submissions, counsel for Ms. Riossi also implied that the Crown has somehow acted improperly in taking the position it takes in this case, in view of the position taken by a member of the same Crown office in Ng. This implied suggestion is meritless. The Crown’s position in this case is well supported by the facts, the relevant legal principles and the applicable case law. I have no evidence before me regarding why the Crown took the position it did in Ng. Without speculating, there can be many reasons why a Crown takes a position in the context of a judicial pre-trial resulting in a joint submission on sentence.

[2] Section 742.1 of the Criminal Code was recently amended to broaden the availability of conditional sentences of imprisonment. Given the current legislation, the only statutory impediment to a conditional sentence of imprisonment for Ms. Riossi is the prescribed mandatory minimum sentence.

[3] It does not appear that the Crown appealed the sentencing decision.

[4] There is no request for mitigation due to the impact of restrictive bail conditions.

[5] See s. 150.1(1)-(3) of the Code.