Citation

R. v. M.S., 2025 ONSC 2688
Court File No.: 233/22CR
Date: 2025/05/02
Ontario Superior Court of Justice

Between:
His Majesty the King – and – M.S.

Counsel:
Heather Donkers, for the Crown
Lakin Afolabi, for the Defendant

Judge:
K.A. Gorman

Reasons for Sentence

Background

[1] On September 21, 2023, M.S. was found guilty of sexual interference following a jury trial.

[2] A1 S. testified. She is the biological daughter of Mr. S. A2 S. is her younger sister. A1 testified regarding three separate incidents.

January 10, 2021

[3] A1, Mr. S., and her sister A2 were watching a movie on the couch. The accused asked A1 to sit on his lap. He told A2 to sit on A1’s lap. She was wearing a pajama shirt/top.

[4] Mr. S. went up A1’s shirt with both hands. He was squeezing her breasts. She thought it went on for about 15 minutes.

[5] A2 testified that A1 was sitting on Mr. S.’s lap. She was sitting at the other end of the “L”-shaped couch. She said Mr. S. had his arms around A1, under her pajama top.

[6] She could see him doing a squeezing motion. She said the motion continued until they went to bed – about 60 minutes later.

[7] A2 said she never sat on A1’s lap, and she never heard anything being said.

January 11, 2021

[8] A1 was on the opposite side of the couch (see Exhibits #2, 2A) when Mr. S. called her over to sit on his lap. He reached under her shirt and touched her breasts and pinched the nipples.

[9] She testified that Mr. S. said, “boys will do this to you and I’m your dad so I can do it.”

[10] She and A2 made eye-contact.

[11] A2 said that she saw Mr. S. with his hands under A1’s pajama top. She thought it went on for about 40 minutes.

[12] A2 said that she “called her father out”, although she did not elaborate.

January 12, 2021

[13] A1 was on the couch on the iPad and A2 was in the bathroom when Mr. S. called A1 into the kitchen.

[14] He sat her up on the counter. A1 was wearing pajama pants and underwear.

[15] Mr. S. put his hand down her pajama pants and put one finger into her vagina. He took his finger out and put it in a ziplock baggie saying he had to run some tests back in Alberta.

[16] A2 didn’t observe anything. She was “running laps” through the apartment.

[17] During each incident Mr. S. had been drinking.

[18] On February 26, 2025, Mr. S. entered guilty pleas to two counts of assault. The circumstances were that on or about September 1, 2020, A1 and A2 were staying with their father at his apartment on Ernest Avenue. He had recently separated from the girls’ mother, K.J., and they shared access. When the girls asked to watch a movie, he slapped them both across the face.

[19] Mr. S. is before me today for sentencing for the offences of assault and sexual interference.

Positions of Crown and Defence

[20] The Crown seeks a global sentence of four years with associated ancillary orders. The Defence asks the court to consider the imposition of a conditional sentence.

Circumstances of the Offender

[21] A Gladue [1] report was prepared for Mr. S. This was marked as Exhibit #5. This report was prepared in consideration of s. 718.2(e) of the Criminal Code which mandates that:

A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[22] As Justice Tranquilli stated in R. v. Antone 2024 ONSC 5102 at para. 41 :

[…] This statutory duty is intended to remedy the failure of courts to account for the unique circumstances of indigenous offenders that bear on the sentencing process and the overrepresentation of indigenous peoples in the Canadian prison system: R. v. Ipeelee , 2012 SCC 13 at paras. 70-75 . A failure to apply Gladue in a case involving an indigenous offender runs afoul of my statutory obligation and would also result in a sentence that is not fit and not consistent with the fundamental principle that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee , paras. 73, 87 .

[23] Mr. S. was born October 20, 1982 in Fort McMurray, Alberta. He is a status member of the Saddle Lake Cree Nation. His Indigenous ancestry comes from both his maternal and paternal sides.

[24] Mr. S.’s mother is Mrs. M.S. Mrs. M.S. was a victim of the “60’s Scoop”. She was taken from her family when she was close to 12 years old and placed with a Mormon family.

[25] Mr. S.’s maternal grandmother, E. died in 1996 at the age of 67 years when he was 14 years old. His maternal grandfather was H.H.S. He died in 2013 when Mr. S. was 31 years old.

[26] Mr. S. reported a close relationship with his maternal grandparents.

[27] When Mr. S.’s maternal grandmother’s mother died at an early age, E. was sent to a residential school at five years old. Her brother J. also attended that school. When J. was 13 or 14 years old, she saw him be thrown down a set of stairs at the school and die.

[28] Mr. S.’s father is M.J.H. He was born in 1948 on the “trap-line” outside of Manning, Alberta. His ancestry was Cree, but he was disenfranchised after being apprehended as a child of three or four years old and placed in a residential school. All of M.J.H.’s siblings also attended residential schools. Because some of his siblings attended different residential schools, they lost track of each other. He didn’t see his brother M. for 40 years.

[29] Mr. M.J.H. has little or no memory of his parents before being taken. He reported being physically, mentally, and spiritually abused during his time at the school. When the school closed in 1961, he was sent back to Manning to live with a white family. He could no longer speak Cree.

[30] It is apparent through the contents of the comprehensive Gladue report that the extended family experienced horrific intergenerational trauma.

[31] Mr. S. spent most of his childhood in Fort McMurray, Alberta. He has an older sister, L., with whom he is very close. While he described his childhood as “good” he reported familial alcohol abuse and extended family violence.

[32] He told the Gladue author that he had been sexually abused during a hockey hazing and that he witnessed both physical and sexual abuse within his extended family.

[33] Mr. S. experienced racism in elementary and high school and flocked to other marginalized students.

[34] Following high school, Mr. S. attended Keyano College and obtained his certification as a Heavy Equipment Technician. After working in his chosen field, he returned to college to upgrade his education. While in school he met his former partner, K.J. When K. became pregnant, he returned to work to support his future family.

[35] He told the author that alcohol became a problem for him in his early thirties. He was under a lot of stress, and worried how he would support his family.

[36] When their relationship dissolved, K.J. moved with the girls to Ontario. Mr. S. relocated to Ontario and maintained an apartment in London from 2015-2021.

[37] Mr. S. said that being isolated from his family and culture resulted in him drinking to excess. When he was charged with the offences before the court he quit drinking. He has been sober since.

[38] Mr. S. now works full time (14 days on; 14 days off) with an equipment rental company in Alberta.

[39] To that end, Mr. R.C., Mr. S.’s supervisor, submitted a letter of reference. He described Mr. S. as “the backbone” of his team – efficient, reliable and a great asset to the organization.

Sentencing Circle

[40] Mr. S. requested that a Sentencing Circle be held. I determined that one could be held. In coming to this determination, I carefully considered the relevant case law:

R. v. Pauchay , 2009 SKPC 4 , 328 Sask. R. 173

R. v. Joseyounen

[41] Mr. S. is closely connected to the Saddle Lake Cree Nation. Indeed, he is fluent in the Cree language and actively participates in ceremonies. The Sentencing Circle was led by a respected elder, Mr. O. The participants included Mr. S.’s mother, Mrs. M.S., elders in his community, his Gladue writer, Ms. Sara Spencer, the Crown, Defence counsel, me, and Ms. Rhea Murti. [2]

[42] A1 and A2 chose not to participate. They were given the opportunity to have a surrogate participate and declined. [3]

[43] During the Sentencing Circle, all participants were given an opportunity to speak. Mrs. M.S. and Mr. O. spoke at length of the inter-generational trauma their families have suffered.

[44] Mr. S. spoke of the importance of his culture in his life. He spoke of the love he has for his daughters. Of the offence of sexual touching, he did not deny it, rather he stated, “I just don’t remember”, owing to his alcohol abuse. He said, “I believe my daughter”.

[45] On January 8, 2025 Mr. S. entered a 42-day residential treatment program at Poundmakers Lodge Treatment Centres in Alberta. It is a residential treatment facility grounded in the cultural and spiritual beliefs of the First Nations, Metis, and Inuit peoples in combination with 12-step, abstinence-based recovery.

[46] The court was provided with a Treatment Summary Report. Mr. S. self-reported that he had been “living in addiction (to alcohol) for 16 years”. He successfully completed the 42-day residential program and is considered a low risk for relapse.

Victim Impact Statement

[47] A1 and A2 each prepared a Victim Impact Statement, as did their mother, K.J., and their grandmother, H.J.

[48] A1 experienced anorexia following the sexual assault and described feeling disgusting. She had nightmares and profound anxiety and suffered from depression. Like many survivors of sexual trauma, she wonders if she did something to encourage it. She has body image issues and does not like to wear anything that might draw attention to herself. She stated that, “I lost a proper childhood and my ability to have the childhood innocence anymore. I feel like it was taken away way too early.”

[49] A2 too has had recurring nightmares and fear. She reported a fear of being tracked or even kidnapped by her father. She told the court that, “when I look in the mirror, I don’t feel pretty and feel like I was never enough for my father”.

[50] K.J. told the court of the emotional impact of watching her daughters suffer. She told the court that she would wake up to hear the girls screaming during night terrors. As a mother she has watched as her daughters’ mental health deteriorated. She reported that A2 became suicidal, and that A1 became despondent. It is clear that the emotional impact of these events have affected the girls and K.J. deeply.

[51] H.J., the girls’ maternal grandmother, spoke of having picked the girls up after the visit with Mr. S. She said that as soon as she saw them, she knew instinctively that something was very wrong. She and her husband are heart-broken, and she struggles daily with the depths of sorrow.

[52] At this juncture it is important that I say to A1 and A2: there is nothing that you did or didn’t do to cause this. What happened is not your fault.

Mitigating and Aggravating Factors

[53] In most criminal cases there are mitigating and aggravating factors to consider. This case is no different.

[54] The mitigating facts are:

a) Mr. S. is a first-time offender;
b) He has the support of many members of his community.
c) He has addressed an underlying substance abuse issue and has been sober for more than three years.
d) He plead guilty to the assault charges.

[55] The aggravating factors are:

a) The age of the victims.
b) The fact that there were multiple incidents of sexual touching;
c) The nature of their relationship. Mr. S., being their father, was in a position of trust which he clearly breached.

Principles of Sentencing

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

(a) To denounce unlawful conduct;
(b) To deter the offender and other persons from committing offences;
(c) To separate offenders from society, where necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparations for harm done to victims or to the community; and
(f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [4]

[57] Denunciation is important to reflect society's condemnation of certain conduct by punishing those who disobey society's basic values. Deterrence is important to deter the offender in question and to deter others who commit such offences.

[58] Denunciation and general deterrence are the over-riding principles of sentencing to be applied in cases of sexual assault.

[59] Indeed s. 718.01 of the Criminal Code states:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[60] This standard has been affirmed by the Supreme Court of Canada most notably in R. v. Friesen , 2020 SCC 9, 2020 SCC9 at paras. 76, and 101 . Indeed, the court stated at para. 105:

Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause.

[61] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Of course, an offender should not be deprived of his liberty if other, less restrictive, measures are capable of satisfying the principles of sentencing and are otherwise appropriate in the circumstances.

Availability of a Conditional Sentence

[62] A conditional sentence is available as the offences are not otherwise punishable by a minimum sentence of imprisonment.

[63] Section 742.1( a ) of the Criminal Code sets out two prerequisites for the imposition of a conditional sentence. The first is that service of the sentence must not endanger the safety of the community.

[64] In terms of this first prerequisite, I am satisfied that Mr. S. would not pose a risk to the community. He has been on release since his arrest. There is no suggestion that he has breached his conditions, nor is there evidence that he has reoffended.

[65] Mr. S. has the full support of his indigenous community. During the Sentencing Circle it was abundantly clear that his community and family members are aware of his wrongdoings and intend to hold him accountable and ensure that he gets on the right path. He is very much connected to the Saddle Lake community.

[66] Mr. S. proactively enrolled and completed a spiritually-based, 12-step 42-day treatment program. He is sober. The treatment centre has deemed him at a low risk to relapse in his recovery.

[67] He is gainfully employed in Alberta and pays child support for A1 and A2 who continue to reside in Ontario.

[68] He is remorseful and without criminal antecedents.

[69] The second prerequisite is that a conditional sentence must be "consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 ."

[70] In considering whether a conditional sentence is fit in this case, I must consider that the Court of Appeal for Ontario has repeatedly reaffirmed its direction that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where the sexual violation is of a vulnerable victim by a person in a position of trust: R. v. R. (D.) , [2003] O.J. No. 561 (Ont. C.A.) at para. 8 .. For as the court stated at para. 44:

[…] I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.

[71] I am also mindful that the Supreme Court of Canada has confirmed that a conditional sentence may provide significant denunciation and deterrence, particularly when onerous conditions are imposed: R. v. Proulx , 2000 SCC 5 (S.C.C.) at paras. 102 and 107 .

[72] Additionally, I consider Justice Watt’s observation in R. v. Cooper , 2010 ONCA 452 at para. 80 :

[…] the trial judge appears to have excluded the availability of a conditional sentence of imprisonment on the basis that the paramount sentencing objectives were deterrence and denunciation. It is well-settled that the prominence of these sentencing objectives does not , on its own, foreclose a conditional sentence order as a sentencing alternative, since a properly crafted conditional sentence can give full voice to both objectives.

[73] As the court stated in Gladue (supra) at para. 69:

In this case, of course, we are dealing with factors that must be considered by a judge sentencing an aboriginal offender. While background and systemic factors will also be of importance for a judge in sentencing a non-aboriginal offender, the judge who is called upon to sentence an aboriginal offender must give attention to the unique background and systemic factors which may have played a part in bringing the particular offender before the courts. In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.

[74] Further, as the Court of Appeal stated in R. v. Esmonde , [2002] OJ No. 2544 at para. 22 :

It is important for the system to encourage those who are truly remorseful, who want to change their path, and who have taken steps to do so, by holding out to such people the real potential for the imposition of a sentence to be served in the community.

[75] Mr. S. is such a man. He is truly remorseful and has actively taken steps to change his path. He told the court that, “I now walk the Red Road”. I understand this to mean that he has chosen to lead a spiritual life with purpose and with a commitment to personal growth.

[76] In my view, sentencing Mr. S. to imprisonment would do nothing to satisfy the principles of deterrence and denunciation.

[77] While his actions are despicable, a conditional sentence is capable of meeting the twin objectives of denunciation and deterrence: R. v. L.F.W. , 2000 SCC 6 at para. 20 .

[78] Sentencing is an individualized process, “One size does not fit all”. I find that a conditional sentence for this offender, for these offences is consistent with the fundamental principles of sentencing as set out in s. 718 – 718.2 of the Code .

Sentence

[79] On the offence of sexual touching, Mr. S., you are sentenced to two years less one day to be served conditionally within the community.

[80] On the two counts of assault, you are sentenced to 90 days on each, concurrent the one to the other and concurrent to the offence of sexual touching. These are to be served conditionally within the community.

[81] The terms are as follows:

1. You shall report to a conditional sentence supervisor within five (5) business days. This conditional sentence order is to be transferred to Alberta;
2. For the first 12 months of your sentence, you shall remain within your residence daily except for the following:
   • Attendance at employment;
   • Attendance at ceremony;
   • Attendance for medical/dental/counselling appointments and scheduled court attendances and travel related to such appointments;
   • Meetings with your conditional sentence supervisor or treatment/ counselling as directed by your supervisor;
   • Every Thursday between 10 am and 2 pm to obtain the necessaries of life;
   • To perform 80 hours of community service.
3. For the remaining 12 months (less one day) you shall be bound by a curfew and be in your residence between 10:00 pm and 6:00 am seven days a week except for the aforementioned exceptions.
4. You shall reside at a residence approved of by you supervisor.
5. You shall have no contact, directly or indirectly, with A1 and/or A2 except pursuant to a valid Family law court order. You shall not be within 200 metres of any place you know A1 or A2 to be except pursuant to a valid court order.
6. You shall not possess any non-medically prescribed drugs or narcotics unless for the purpose of ceremony under the supervision of a band elder.
7. You shall attend any counselling as your supervisor might direct.

[82] Following your conditional sentence, you shall serve a period of probation of two years.

1. You will keep the peace and be of good behaviour.
2. Reside at an address approved of by your probation officer.
3. Have no contact with A1 or A2 except in accordance with a valid Family court order or with their consent.

[83] There is a mandatory DNA order pursuant to s. 487.051 of the Code.

[84] There is a weapons prohibition for a period of 10 years pursuant to s. 109 of the Code.

[85] There is a s. 161(1)(a.1) order in relation to A1 and A2 for a period of 10 years.

[86] There will be a SOIRA order for a period of 20 years.

[87] Pursuant to s. 737 2(b)(ii) there is a Victim Fine Surcharge in the amount of $200 on each of the three counts. M.S shall have six months to pay this fine.

Justice K.A. Gorman
Released: May 2, 2025

Footnotes

[1] R. v. Gladue , [1999] 1 S.C.R. 688

[2] Ms. Murti is the London Superior Court Law Clerk

[3] R. v. W.B.T. (1997), 163 Sask. R. 29 (C.A.) at para. 67 .

[4] S. 718 Criminal Code of Canada