Court File and Parties

COURT FILE NO.: CR-21-30000216-0000 DATE: 20240404 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – D. F.

Counsel: Jerry Brienza, for the Crown D. F., on his own behalf Richard Litkowski, Amicus

HEARD: February 15, 2024

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

R.F. GOLDSTEIN J.

Reasons for Sentence

Overview

[1] A jury convicted D.F. of sexual assault, sexual interference, and invitation to sexual touching. The victim, E.Q., was between 6 and 10 at the time. There were elements of grooming behaviour by D.F. The sexual activity included touching E.Q.’s vaginal area over and under clothing, fellatio, cunnilingus, and digital penetration. E.Q. was the D.F.’s niece by marriage. D.F. is a 59 year old first offender. He now comes before the court for sentencing.

The Facts

[2] E.Q. is the niece, by marriage, of D.F., the offender. E.Q. lived in an apartment at 20 Carabob Court in Scarborough from about 1996 to 2014. Her grandmother lived nearby – at 30 Carabob Court. E.Q. often visited her grandmother at her grandmother’s apartment. D.F. and E.Q.’s aunt – her mother’s sister, also named D.F. and who I will call Ms. D.F. – became engaged to be married around Christmas of 2002. E.Q. was 6 years old at the time. D.F. and Ms. D.F. began living together 30 Carabob Court, the same building as E.Q.’s grandmother.

[3] E.Q. testified that D.F. began sexually assaulting her in 2002 and continued until 2006, when D.F. and Ms. D.F. moved away. According to E.Q., the sexual assaults began shortly before Ms. D.F. and D.F. became engaged. E.Q. was in grade 2 at the time.

[4] Although I cannot say exactly when the sexual touching happened, and for the purposes of sentencing I do not need to. I accept that it must have been between 2002 and 2006, based on the jury’s verdict.

[5] I summarized the key portions of E.Q.’s testimony in my Ferguson ruling: R. v. D.F., 2023 ONSC 5525. In a Ferguson ruling a judge makes findings based on the express and implied factual findings of the jury’s verdict: R. v. Ferguson, 2008 SCC 6.

[6] In my Ferguson ruling I found that D.F. began by grooming E.Q. He started by patting her vagina, at first over E.Q.’s clothing. He eventually moved to touching her vagina under her clothing. The sexual touching progressed to digital penetration, and eventually cunnilingus and fellatio. All the sexual touching took place in the bedroom. I specifically found that that D.F. tried to penetrate E.Q.’s vagina with his penis.

[7] E.Q. testified that the assaults continued until 2006. In my Ferguson ruling I did not say how many occurrences of sexual activity occurred. I specifically found in my Ferguson ruling that:

… all the sexual touching must have taken place in the bedroom. Although the behaviour would have been extraordinarily risky, it must have occurred when E.Q. was visiting the [D.F.] apartment and she and [D.F.] were playing in the bedroom. Based on all the evidence, I think that is almost the only time [D.F.] would have had the opportunity. It is a necessary implication of the jury’s verdict that the sexual touching starting with petting of the vaginal area – in other words with grooming. It seems unlikely that [D.F.] would have been simply started with full on touching of the penis and attempted digital penetration of the vagina, for obvious reasons. The implication of the jury’s verdict is that [D.F.] must have engaged in some grooming of E.Q., which means starting with less serious assaults. I find that [D.F.] must have worked up to the touching of the penis and the digital penetration of E.Q.’s vagina. The incidents must have been hurried, given the circumstances, but based on the jury’s verdict I find that there was cunnilingus and fellatio, digital penetration, and touching of [D.F.]’s penis.

[8] It is not possible to estimate with any precision the number of times that sexual touching occurred. I am satisfied, however, that there were multiple instances of sexual touching. I am also satisfied, based on the totality of the evidence, that the instances of sexual touching likely occurred over the course of years. I say that because it would have taken time for D.F. to groom E.Q., and proceed to more intrusive sexual encounters. As well, the sexual touching could only have occurred – as I found – in the bedroom of D.F.’s apartment. While E.Q. and her mother visited the D.F. apartment, the evidence is unclear how often. There is evidence that D.F. had his children every other weekend – and it is highly unlikely that he would have had the opportunity to have a sexual session with E.Q. during those periods of time. It was a one-bedroom apartment and he had three children. D.F. (and Ms. D.F., E.Q.’s aunt) testified that D.F. would play games with the children from time to time in the bedroom when they visited. I have no reason to disbelieve this evidence simply because it makes sense. Thus, the opportunities for D.F. to sexually assault E.Q. would have been limited to occasions when E.Q. and her mother visited D.F.’s apartment when D.F.’s children were not present. There is evidence that on some weekends D.F. would take his children to his mother’s trailer near Peterborough. There was no evidence that E.Q. went with on those occasions. That would have cut down the opportunities for sexual touching even more. Thus, the sexual touching could not have occurred more than a few times per year, when the conditions were right in D.F.’s apartment. Over the course of four years, and this is but a very rough estimate, it strikes me that there could not have been more than 20 sexual encounters. Of course, 20 sexual encounters is a large number of sexual encounters. Certainly, there had to have been enough encounters to groom E.Q. I find, therefore, that the number of sexual encounters was somewhere between 10 and 20. This is, of necessity, a very rough estimate and somewhat arbitrary, but the evidence is not capable of producing a more accurate number. As I stated in my Ferguson ruling I did not accept, and do not accept, E.Q.’s evidence about the number, frequency, and location of the sexual encounters. To be clear, I am not making, and did not make, an adverse finding of credibility against E.Q. The jury very clearly accepted at least some of her evidence, and I am bound by that finding. I do, however, have some serious concerns about her reliability – not because I think she was lying or otherwise deceiving the court – I do not think that – but because her young age and the passage of time have likely caused her to conflate some incidents and probably remember others incorrectly.

[9] As I will explain, however, even taking the lowest number, or even lower than the lowest number, the evidence makes out an extraordinarily serious offence. The sexual touching was prolonged, intrusive, invasive, and exploitive.

Kienapple

[10] The elements of the offence of sexual assault are substantially the same or alternative to the elements of the offence of sexual assault: R. v. M.(S.J.), 2009 ONCA 244 at para. 8. Thus, the rule against multiple convictions for the same offence is engaged: R. v. Keinapple, [1975] 1 S.C.R. 729. Several judges of this court have concluded that a conviction for sexual interference is more completely captures the nature and seriousness of the offence – in that it is a sexual assault of a child. As LeMay J. stated in R. v. L.(F.), 2016 ONSC 1215 at para. 25, “the sexual interference charge is a more precise and complete explanation of the crime that was committed in this case. It includes a recognition that the crime was committed against a victim who was a child.” Code J., in R. v. Hussein, 2017 ONSC 4202 agreed with LeMay J.’s reasoning at para. 2. See also: R. v. R.D., 2017 ONSC 5258, and R. v. C.(F.), 2016 ONSC 6059.

[11] I also agree with LeMay J. The count of sexual assault is stayed.

[12] I find, however, that the count of invitation to sexual touching is different and encompasses a different factual and legal nexus. Sexual interference contrary to s. 151 of the Criminal Code states:

151. Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence… or,

(b) is guilty of an offence punishable on summary conviction…

[13] Invitation to sexual touching contrary to s. 152 of the Criminal Code states:

152. Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years,

(a) is guilty of an indictable offence… or,

(b) is guilty of an offence punishable on summary conviction

[14] There are three elements of the offence of sexual interference:

• First, that the accused touched the complainant directly or indirectly with a part of his body or an object;
• Second, that the touching was for a sexual purpose; and,
• Third, that the complainant was under 16 years old.

[15] The elements of the offence of invitation to sexual touching are different. They are:

• First, that the accused invited, counselled, or incited a person;
• Second that the invitation, counselling, or inciting was to touch any person, including the accused;
• Third, that the invitation to touch was with a part of the complainant’s body or an object;
• Fourth, that the invitation to touch was for a sexual purpose; and,
• Fifth, that the complainant was under 16 years old.

[16] There are important differences between sexual interference and invitation to sexual touching. The most important is that invitation to sexual touching does not require any actual touching, either with a part of the body or an object. The offence is complete when the invitation is issued.

[17] In this case, it is an express finding of the jury that that D.F. invited E.Q. to touch him. According to E.Q., D.F. did so when he told her what to do. It is likely, based on the jury’s verdict, that D.F. did so more than once. In my view, however, based on E.Q.’s own testimony I am only able to find that D.F. invited E.Q. to touch him on a limited number of occasions – which is not important for Kienapple purposes, but does play a role in the sentencing process when I consider the seriousness of D.F.’s conduct.

[18] In any event, I am satisfied that there is a different factual and legal basis for the conviction for invitation to sexual touching from the conviction for sexual interference. The count of invitation to sexual touching is not stayed.

D.F.

[19] Probation services provided a pre-sentence report for D.F. I also learned something about D.F. when he testified. He provided some further information at his sentencing hearing.

[20] D.F. is a first offender. He has not been involved in the criminal justice system other than in relation to these offences. He has also been on bail since he was arrested. There has been no allegation of a breach. There has been no allegation of any repetition of the behaviour that has led to these convictions.

[21] D.F. had faced a charge in relation to L.H. The jury acquitted D.F. of that charge. During the trial R.H., the mother of L.H., stated that she was suspicious of D.F. and his intentions. She would not let L.H. play with him when L.H. was young. I warned the jury at the time that R.H.’s comments could play no role in determining whether the Crown had proven the charges against D.F. beyond a reasonable doubt. The jury could only consider R.H.’s comments when evaluating R.H.’s credibility and state of mind. I want to make it clear that R.H.’s comments also play no role whatsoever in this sentencing process.

[22] D.F. is 58 years old; he will be 59 shortly. He was born and raised in Scarborough, Ontario in a loving home. Although is parents separated when he was 11, they co-parented him. He had no issues with abuse or neglect when he was growing up. He completed high school, and has been employed steadily in the automobile industry and in factory work. As he grew up, D.F. resided primarily with his mother until he married his first wife. He married and raised three children, who are all now adults. He has been married to his current wife, Ms. D.F., for 21 years. She is supportive of him and has stayed with him although the offences involve her niece – her sister’s daughter. She described the situation as “bizarre”. D.F. has many longstanding friends, who refuse to accept that he could have committed these crimes. He does not appear to have any substance abuse problems.

[23] In his submissions to me on sentence, D.F. told me that he has been on bail for five years, and never breached or committed any other offences. He says that he is not a threat to anyone. He has supported his family, and has always been a working and productive member of society. Having observed D.F., he has been polite and respectful with the Court at all times.

[24] D.F. was cooperative and polite with the author of the pre-sentence report. He continued to maintain his innocence. That is hardly surprising. He denied the offences when he testified. One can hardly expect that he would suddenly change his tune and admit guilt. Obviously the fact that he had a trial and continues to deny that he committed these offences is not an aggravating factor and I do not take it into account in sentencing him.

Impact Of The Offence On E.Q.

[25] E.Q. provided a victim impact statement. In that statement she stated that she continues, even now, to be affected by these events. The impact has been significant. She has a lack of trust in people, she has taken to substance abuse, and she has lost confidence in herself. The offences affected first her performance at school, and as an adult it affected her work performance. She states in her victim impact statement that she was labelled as “lazy” at school because her work took a “nose dive”. She lost friends as nobody wanted to work with her. These events also affected her family relationships. It has affected her relationship with her mother. Her mother was unable to protect her. And, of course, it has affected her relationships with her wider family. Many of the known effects of sexual violence against children were summarised in R. v. Friesen, 2020 SCC 9, and I do not need to repeat them. Suffice it to say that it would be very surprising if the sexual abuse of a child did not have major debilitating effect.

Legal Parameters

[26] Both invitation to sexual touching and sexual interference carry a maximum penalty of fourteen years imprisonment.

Positions of the Parties

[27] Mr. Brienza, on behalf of the Crown, suggested that the Court should impose a global sentence of five years. He relied primarily upon Friesen, the Supreme Court of Canada’s leading case in the area of sentencing for sexual offences involving children. In R. v. R.A., 2022 ONSC 1611, where the Crown also heavily relied upon Friesen, I stated as follows (and there is no need for me to say anything different in this case) at paras. 14-17:

The leading case in this area is obviously Friesen. In that case, the offender met the mother of the victim online. Friesen and the mother had a consensual sexual encounter. The mother, at Friesen’s request, then facilitated a sexual encounter with the mother’s four-year old daughter. The mother had a friend who had been baby-sitting and was sleeping over. The child’s screams woke her up, and she took the child out of the room. Friesen then threatened the mother that unless she brought the child back he would tell the friend about the sexual abuse.

The Supreme Court used Friesen as an opportunity to take a fresh look at sentencing in cases of child sexual abuse. The Court emphasised sending a message about sexual offences against children at para. 5:

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

The court discussed, in detail, the harm generated by sexual offences against children. The Court noted that sexual violence has a disproportionate impact on girls and young women – sexual violence is highly gendered. The Court also noted that sexual offences against children disproportionately impact many groups that are already vulnerable, such as Indigenous people.

The Friesen court further noted that Parliament has repeatedly increased sentences for sexual offences against children. This is in keeping with the increased understanding of the harm to children, the gravity of sexual offences against children, and the degree of responsibility of offenders who commit sexual crimes against children. As a result, the Court stated at para. 100 of Friesen that courts should generally impose higher sentences than those that were imposed when the maximum penalties were lower. Moreover, courts should treat sexual offences against children more seriously than sexual offences against adults, particularly where the offender is in a position of trust. The Court sent a clear message at para. 114 that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

[28] I need only refer to some of the other cases cited to me by the Crown.

[29] In R. v. R.G., 2017 ONSC 1676, [2017] O.J. No. 1304, the offender was found guilty, after a trial, of 8 counts of sexual interference. He performed sexualized massages on eight girls who were friends of his daughter and slept over at his house. It was a key aggravating factor that the offences involved multiple young girls, ranging in age from 12 to 14 or 15. The offences stretched over several years. The offender was controlling and manipulative. Although this was a pre-Friesen case, the trial judge imposed a global sentence of thirty-six months, with one month consecutive for a breach of recognizance that occurred in relation to one of the victims. The Court of Appeal upheld the decision, although varied a s. 109 order: R. v. R.G., 2019 ONCA 135.

[30] In R. v. D.D. (2002), 163 C.C.C. (3d) 471, 58 O.R. (3d) 788 (C.A.), the offender was found guilty after a trial of 11 sexual offences in relation to four young boys. The offender befriended four young boys who ranged in age from 5 to 8. He was 25 to 32. The sexual offences went on for 7 years. The coerced sexual acts included masturbation, oral sex, group sex, and anal intercourse. He was in a position of trust with the boys. He also groomed and manipulated them. He used violence and threats of violence to control them. The offender had a minor criminal record. He was gainfully employed. The Court of Appeal upheld the global sentence of 8 years and 1 month. D.D. was cited with approval in Friesen at paras. 113-114.

[31] Mr. Litkowski, in keeping with his role as amicus, did not take a formal position on sentencing but rather assisted the court by pointing out several post-Friesen cases and making submissions on the possible ranges of sentence available for these offences. He pointed me to several cases where reformatory or conditional sentences were imposed. I will mention a few of them.

[32] In R. v. W.S., 2024 ONSC 554, the offender sexually assaulted two teenage girls. The girls were the children of family friends. The sexual assaults including groping breasts and touching legs. Gomery J. (as she then was) found that the offender had been grooming the two girls. He was in a position of trust with one of them. The offences had a devastating impact on both of them. Gomery J. reviewed several post-Friesen cases and found that the range for sexual offences against children ranged from nine months to 5 ½ years. She found that there were few cases where the offender has been given a conditional sentence. She ultimately sentenced him to 35 months in custody.

[33] In R. v. D.S., 2021 ONSC 3972, a jury convicted the offender of sexual assault. The sexual assault consisted of one incident of touching in a basement and one incident in a car. The offender touched the victim’s hands, legs, and breasts, and kissed her. He also manipulated her bra straps. The trial judge was not satisfied beyond a reasonable doubt that sexual intercourse took place. The victim was 13 years old. The offender was a family friend who lived in the basement. The victim referred to him as an uncle. Fragomeni J. sentenced the offender to 15 months imprisonment.

[34] In R. v. K.R.S., 2021 ONSC 8018, the offender was convicted of sexual interference and invitation to sexual touching after a judge-alone trial. He pleaded guilty to some of the counts. The offender touched the victim’s breasts, grinded his penis into her vaginal area while they were both clothed, and guided her hand to touch his penis. He also exposed himself to her, slapped her bottom, and on one occasion digitally penetrated the victim’s vagina. Gareau J. imposed a global sentence of four years.

[35] In R. v. T.A., 2022 ONCJ 528, the sentencing judge succinctly described his task as follows:

What is the appropriate sentence for a 70-year old offender who committed the offence of Sexual Interference against his step-granddaughter? That is the issue I must decide in this case. The Sexual Interference consisted of over-the-clothes touching. The accused has a prior record for Sexual Assault on an adult female. He also has been assessed as having a low risk to reoffend.

[36] The offender had touched the victim’s vagina over her clothing and sat her on his lap so she rubbed his penis on her clothing. He tried to coax her to touch his penis. The offender had previously been court-martialled as a member of the Canadian Forces for sexually assaulting a subordinate. The offender pleaded guilty. He underwent a Sexual Behaviours Assessment at the Royal Ottawa Hospital. The sentencing judge was troubled by the fact that the offender endorsed 4 of 38 statements known to be endorsed by child molesters. The attending psychiatrist found that the offender met the criteria for pedophilia in the DSM-5, but that he was at low risk to re-offend. The psychiatrist noted programs that would be available to the offender in the reformatory system. The sentencing judge noted the great harm that had been done to the victim, but also noted that the offender was, unusually, remorseful. He ultimately sentenced the offender to two years less a day in order to have him engage in treatment options, and three years of probation.

[37] In R. v. Gunaratnam, 2021 ONSC 8270, Schreck J. convicted the offender of two counts of sexual touching. The offences occurred in the late 1980’s and early 1990’s. The victim was his niece. She was between 7 and 12 or 13 when the offences occurred. The sexual abuse consisted of several incidents, including rubbing the victim’s chest and twisting her nipples, touching her vagina, and digital penetration. Between trial and sentencing on the Ontario charge, he also pleaded guilty to a count of sexual interference in British Columbia involving a family friend. The British Columbia offence occurred in 2006 or 2007, when the victim was 13 years old. The offender denied guilt during his trial. He also denied the offences to the probation officer who wrote the pre-sentence report. He later admitted to the truth of the allegations but then and claimed to be remorseful. At the time of sentencing, he was 60 years old. He had no prior criminal record. Crown and defence jointly submitted, notwithstanding that it was after trial and that the trial had involved cross-examination of the complainant, that the offender should receive a conditional sentence. Shreck J. noted the joint submission. He also noted that in the only other post-Friesen cases where courts had imposed a joint submission they had done so based on the health of the offenders. He accepted the joint submission, relying on R. v. Anthony-Cook, 2016 SCC 43.

[38] In R. v. S.E., 2023 ONSC 6259, the offender pleaded guilty to one count of sexual exploitation, as that offence was between 1994 and 1996. The offence involved sexual touching. At the relevant time the victim worked summers in a restaurant. She was between 14 and 16. The accused, who was 29, was her boss. He was therefore in a position of authority. There were numerous incidents of sexual contact, including sexual intercourse. The offender had had a rough life since the incidents – and, of course, so had the victim. He pleaded guilty, readily admitted the offences to the police, and was a first offender at age 58. The Crown and defence both submitted that a sentence of two years less a day was appropriate but differed on whether that sentence should be served conditionally. After considering the Court of Appeal’s decision in M.M., Rasaiah J. concluded that exceptional circumstances existed and imposed a conditional sentence.

[39] In R. v. D.W., 2023 ONCJ 363, the offender pleaded guilty to sexual exploitation. He expressed remorse, although the sentencing judge, Strasberg J., found that he had manipulated others and minimized is responsibility. The offender was the victim’s stepfather. At the time of the offences, he was 24 to 27 years old; the victim was 13 to 15 years old. The sexual activity consisted of the offender touching the victim’s breasts, cunnilingus, and digital penetration. He groomed the victim and manipulated her into thinking it was a relationship of love. At the time of sentencing, the offender was 60 years old and had no criminal record. Despite the mitigating factors, Strasberg J. imposed a sentence of 3 ½ years in the penitentiary.

[40] After reviewing the cases, especially those from the Court of Appeal, I am of the view that the appropriate range of sentence for sexual interference where the adult is in a position of trust, the child is groomed, there is a single victim, and the sexual activity is more than fleeting is two to six years.

Mitigating and Aggravating Factors

[41] The chief mitigating factor in this case is D.F.’s lack of a criminal record and otherwise pro-social life to this point. It is of course mitigating that he has never had contact with the criminal justice system. It is also mitigating that he successfully raised three children, has had steady employment, and enjoys the support of his wife and many friends.

[42] That said, as Friesen makes clear, these mitigating factors are enjoyed by many people who have committed sexual offences against children. The mitigating factors cut both ways. In a way that is like fraud cases, an offender may well be an upstanding member of the community, and therefore appears to be fully trustworthy. That offender then can take advantage of those attributes in order to commit offences.

[43] Is that, however, an aggravating factor? At first brush, D.F. does not appear to be the type of person who used guile and manipulation to get himself alone with E.Q. It is not a necessary implication of the jury’s verdict that he did so – although, as I have found, he engaged in aspects of grooming behaviour with E.Q. At the end of the day, I find that the offences – while they were numerous over time – may have had some limited element of planning but they were essentially opportunistic. There is no evidence, for example, that D.F. contrived to invite E.Q. to his apartment. Thus, I decline to find that D.F. used his position as a socially positive individual to manipulate himself into a position where he could sexually assault E.Q. His previous good character is not an aggravating factor in that sense.

[44] The most important aggravating factor is, of course, the nature, duration, and extent of the offence. E.Q. was a very young person at the time. There were between 10-20 events involving sexual touching – that is a very large number, even if it is only at the low end of the estimate. There were also events involving an invitation to sexual touching. The harm of even a non-penetrative sexual encounter can be devastating, as Friesen teaches. In this case, I have found extraordinarily serious sexual activity by D.F. The activity included oral sex, digital penetration, and touching of E.Q.’s vagina by D.F. and touching of D.F.’s penis by E.Q.

[45] An important question is whether there was a breach of trust by D.F. A breach of trust is a very serious aggravating factor. Mr. Litkowski’s view as amicus is that a breach of trust has not been made out. D.F. was not in loco parentis. He may have incidentally driven her to places from time to time, but he did not babysit her, or spend a lot of time with her alone. She was the niece of his wife, but the relationship did not go beyond that.

[46] In R. v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027 at paras. 28-29, Laskin J.A. set out some of the factors for determining whether a relationship of trust existed:

The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section: to protect a young person who is vulnerable to an adult because of the imbalance in their relationship. With this purpose in mind, the courts have identified several considerations relevant to an assessment of whether a relationship of trust exists. They include:

• The age difference between the accused and the young person;
• The evolution of their relationship;
• The status of the accused in relation to the young person;
• The degree of control, influence or persuasiveness exercised by the accused over the young person; and,
• The expectations of the parties affected, including the accused, the young person and the young person's parents.

No one consideration is determinative. But each one may play a role. At bottom, "trust", wrote La Forest J. for the majority in Audet, at para. 35, must be "interpreted in accordance with its primary meaning: '[c]onfidence in or reliance on some quality or attribute of a person or thing, or the truth of a statement.'"

[47] Although Aird considered the trust relationship in the context of s. 153(1) of the Criminal Code, as it then stood, the principles are still applicable: R. v. M.M., 2022 ONCA 441, [2022] O.J. No. 2527 at para. 7.

[48] When I consider the Aird factors I find that D.F. was in a position of trust. The age difference between D.F. and E.Q. was significant. He was a much older adult. She was a young child, not even 10 for most of the time. He was her uncle – his wife was her mother’s sister. On D.F.’s own evidence, he frequently played with E.Q. when she visited and he would have been seen as – and was – a close family member. Although I found that he did not babysit E.Q. or transport her, as she stated in her evidence, the families lived in close proximity and E.Q. was a visitor to D.F.’s apartment. D.F. did not exercise control over her in any meaningful way, but no doubt there was an expectation from E.Q.’s mother and wider family that she would be safe in his company.

Principles of Sentencing

[49] The key principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. Other sentencing principles are set out in s. 718.2, and specifically s. 718.2(a) sets out aggravating and mitigating factors that a court should consider. The following factors are deemed to be aggravating:

• Evidence that the accused abused a member of the victim or offender’s family (s. 718.2(a)(ii));
• Evidence that the offender abused a child ((s. 718.2(a)(ii.1));
• Evidence that the offender abused a position of trust (s. 718.2(a)(iii));
• Evidence that the offence had a significant impact on the victim (s. 718.2(a)(iii.1)).

[50] A court sentencing an offender for the abuse of a child must give primary consideration to the objectives of denunciation and deterrence: Criminal Code, s. 718.01.

[51] I have already mentioned Friesen. In that case, the Supreme Court mandated that sentences for sexual offences against children must increase. Specifically, the Court stated at para. 107:

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

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

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

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

[52] Obviously, rehabilitation has less of a role to play when the offence involves the sexual abuse of a child.

Sentence Imposed

[53] After Friesen, it is beyond question that a penitentiary sentence is required for the type of sexual offences committed by D.F. against E.Q. Penitentiary sentences will be the norm, absent some highly exceptional circumstances. In case there was any doubt this point, the Court of Appeal’s statement in M.M. at paras. 15-16 should lay notion that to rest:

The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate - for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.

[54] There are no exceptional circumstances here. The only question is what the length of that sentence should be, to meet the primary sentencing objectives of denunciation and deterrence, while not losing sight of the role played by rehabilitation of the offender.

[55] I have already mentioned the aggravating and mitigating factors, and the principles of sentencing. Some of those that are important for fashioning a fit sentence include:

• The great age difference between D.F. and E.Q.;
• The sexual abuse was long-lasting and very serious;
• D.F. was in a position of trust;
• The harm to E.Q. has been significant.

[56] I find that D.W. is the case with the most similarities to this one. In that case, Strasberg J. imposed a sentence of 3 ½ years. The key difference with this case is that D.W. pleaded guilty, sparing the victim from cross-examination. D.F. had a trial and did not plead guilty. I wish to be clear that I am not suggesting for a moment that D.F. should be punished in any way for having a trial. What I am saying is that D.F. does not enjoy the mitigating factor of a guilty plea. In this case, E.Q. was required to testify. As Moldaver J.A. (as he then was) pointed out in D.D.:

… the four young victims had been compelled to testify not once but twice, first at the preliminary hearing and then again at trial. In each instance, they were required to re-live the horror of their ordeals and suffer the humiliation of cross-examination designed to impugn their integrity.

[57] The cross-examination in this case was carried by s. 486 counsel (not Mr. Litkowski). I would not describe the cross-examination of E.Q. as one designed to impugn her integrity, and it was not especially hostile. That said, any cross-examination is an ordeal, even a respectful cross-examination. The victim must re-live the ordeal of the sexual assault, and publicly describe sexual acts visited on her. Those subjected to cross-examination find it humiliating, intimidating, and traumatic – for good reason. My point is simply that in sexual assault cases guilty pleas – which are rare – are a significant mitigating factor.

[58] When I consider all of the aggravating and mitigating factors, and the principles of sentencing, I find that a significant denunciatory sentence is in order. A denunciatory sentence expresses society’s revulsion at the sexual abuse of a child. It also sends a message to would-be offenders that they will be severely punished for sexually abusing a child. In my view, a global sentence of four years is fit. D.F. will be sentenced as follows:

• Count 1 (Sexual Assault): Stayed.
• Count 2 (Sexual Interference): 4 years
• Count 3 (Invitation To Sexual Touching): 1 year, concurrent to Count 2.

[59] D.F. will also be subject to the following ancillary orders:

• He will provide a sample of his DNA pursuant to s. 487.051(1) of the Criminal Code, as sexual interference and invitation to sexual touching are both primary designated offences;
• While in custody he will have no contact with E.Q. pursuant to s. 743.21(1) of the Criminal Code;

Sex Offender Registry

[60] The previous sections of the sex offender registry – s. 490.012 and s. 490.013(2.1) of the Criminal Code – and were struck down by the Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38. The re-enacted s. 490.012(1) of the Criminal Code states:

490.012 (1) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act if

(a) the designated offence was prosecuted by indictment;

(b) the sentence for the designated offence is a term of imprisonment of two years or more; and

(c) the victim of the designated offence is under the age of 18 years.

[61] D.F. is obviously caught by this section. Thus, a SOIRA order is mandatory. Sub-sections 490.013(1) and (2) set out the timing and duration of the order:

490.013 (1) An order made under section 490.012 begins on the day on which it is made.

(2) An order made under subsection 490.012(1) or (3)

(a) subject to subsections (3) and (5), ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;

(b) subject to subsections (3) and (5), ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and

(c) applies for life if the maximum term of imprisonment for the offence is life.

[62] D.F. is also caught by subsection 490(2)(b), given that the offences of sexual interference and invitation to sexual touching are punishable by up to 14 years imprisonment. Thus, the SOIRA order should be 20 years – but because D.F. was convicted of more than one offence, the Court must consider the effect of s. 490(3) and s. 490(4). Those sections state:

490.013(3) An order made under subsection 490.012(1) or (3) applies for life if

(a) in the same proceeding, the person has been convicted of, or a verdict of not criminally responsible on account of mental disorder is rendered for, two or more designated offences in connection with which an order under any of subsections 490.012(1) to (3) may be made; and

(b) the court is satisfied that those offences demonstrate, or form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature.

(4) If paragraph (3)(a) applies in the circumstances but the court is not satisfied as set out in paragraph (3)(b), the duration of the order is determined by applying paragraphs (2)(a) to (c) to the designated offence with the longest maximum term of imprisonment.

[63] As I read these sections, since I must impose an order under s. 490.012(1), D.F. may be subject to a SOIRA order because he has been convicted of two designated offences: s. 490.013(3)(a). However, I must also be satisfied that those offences demonstrate or form part of a pattern of behaviour on the part of D.F. that present an increased risk of re-offending sexually. In my view, the evidence is insufficient for me to make that finding. D.F. has been convicted of sexual offences in relation to one person. Those are very serious offences, but D.F. has not been convicted of any other sexual offences. The Crown has not suggested that D.F. represents an increased risk of re-offending. I see no evidence that he does.

[64] Accordingly, D.F. will be on the sex offender registry for twenty years.

Final Note

[65] D.F. was self-represented throughout these proceedings. Counsel was appointed under s. 486 of the Criminal Code. After the conviction, I appointed Mr. Litkowski as amicus to assist the Court as the sentencing issues were complicated – the issues included making factual findings based on the jury’s findings; and the proper approach to sentencing in this case. Mr. Litkowski has been of great assistance to the court. I wish to express my thanks to him.

R.F. Goldstein J.

Released: April 4, 2024