Court of Appeal for Ontario

Date: August 27, 2025

Docket: COA-24-CR-0392

Judges: Pepall, Coroza and Dawe JJ.A.

Between

His Majesty the King Appellant

and

M.F. Respondent

Counsel

Hannah Freeman, for the appellant

Kevin Matthews, for the respondent

Heard

April 30, 2025

Appeal Information

On appeal from the sentence imposed on March 6, 2024 by Justice Vince Scaramuzza of the Ontario Court of Justice (Youth Justice Court).

Reasons for Decision

Pepall J.A.

Introduction

[1] On October 24, 2023, the respondent was found guilty of sexual interference. At the time of the offences, he was 17 years of age. The victim was an intoxicated 13-year-old girl. The respondent received a sentence of 24 months probation, a term of which was that he provide 120 hours of community service.

[2] Due to his age, the respondent was subject to the sentencing provisions contained in the Youth Criminal Justice Act, S.C. 2002, c. 1 ("YCJA").

[3] The Crown seeks leave to appeal against sentence and, if leave be granted, appeals against sentence. The Crown asserts that the trial judge erred in finding that the respondent had not committed a "violent offence" within the meaning of s. 39(1)(a) of the YCJA and also erred in giving weight to the victim's willing participation in the sexual activity. The Crown seeks a 90-day custody and supervision order followed by probation.

[4] For the reasons that follow, I would grant leave to appeal but would dismiss the appeal.

Background Facts

[5] At trial, the trial judge made the following findings of fact. He found that the respondent and the victim each knew the other's age. The victim told a friend that the respondent was cute and that she wanted to sleep with him. She wanted to be alone with him and was content to be left alone with him in his car. She flirted with him before they started kissing each other. The trial judge found that she was a willing participant to the sexual activity of kissing and sexual intercourse, and she was not forced to have sexual intercourse which took place in the back seat of the respondent's car. She was intoxicated from consuming alcoholic coolers and smoking marijuana. The trial judge stated that she had all her faculties and could have said "no" to any sexual activity if she had wanted to. She did not ask to go home after the sexual intercourse. The following day, the respondent purchased a Plan B pill (a morning after pill designed to prevent pregnancy) and provided it to the victim.

[6] The trial judge reasoned that he was not left with a reasonable doubt of the guilt of the respondent. Confirmation that sexual intercourse occurred was evident from the Snapchat messages sent by the respondent to the victim, the respondent's provision of the Plan B pill to the victim the next day, and his statement to a friend that he and the victim had consensual sex. He found the respondent guilty of sexual assault and sexual interference. The finding of guilt for sexual assault was stayed pursuant to Kienapple v. R., [1975] 1 S.C.R. 729.

[7] By the time of the sentencing hearing in 2024, the respondent was 24 years of age. The defence proposed 24 months of probation and the Crown proposed a 90-day custodial sentence which would be served in an adult facility, followed by 24 months' probation. The Crown took the position that sexual offences are inherently violent, and therefore a custodial sentence was available under s. 39(1) of the YCJA. Moreover, such a sentence was appropriate. As the victim could not consent due to her age, the offences constituted violent offences within the meaning of the Act. In its submissions, the Crown relied on paragraph (a) of the definition of a violent offence in s. 2(1) of the YCJA and not paragraph (c). The defence conceded that sexual assault and sexual interference qualified as violent offences but took the position that while custody was therefore an available option under the YCJA, it was not an appropriate option in the circumstances.

Reasons for Sentence

[8] In sentencing the respondent, the trial judge reiterated his finding at trial that the victim was "a willing participant in the sexual activity of kissing and sexual intercourse. [She] was not forced to have sexual intercourse." He reviewed and considered the victim impact statement and described the offences' negative impact on her. He expressly considered that she stated that she had difficulty trusting men, had a hard time leaving her house, felt disgusted, felt numb and empty inside, was unable to sleep, felt helpless, and struggled with thoughts of suicide and self-harm.

[9] He also reviewed the respondent's pre-sentence report and described the contents in some detail. The respondent came to Canada from a country in South America where there was conflict with a guerilla rebel group and his family was constantly on the move. He grew up in a city in Northwestern Ontario. His father was physically abusive to the respondent's mother and their 10 children. The family struggled with cultural shock and the cold weather. Eventually the respondent's mother left her husband and moved to a women's shelter with the respondent and four of the youngest children. The father left Canada in 2009 and returned to South America. The respondent describes his mother as being great and supportive of him. She began a relationship with another man, and together they had two children. Although the respondent frequently missed classes, he did graduate from high school in 2018. The respondent at age 18 moved in with his sister. Having previously consumed alcohol to excess and engaged in daily use of marijuana, he apparently stopped use of alcohol and marijuana when he was 18.

[10] The trial judge noted that the respondent is involved in sports and physical activities, has trained in a dedicated sport for 4 years at a gym, and hopes to participate in competitive sports events. In 2020 he joined a construction trade union. At the time of sentencing, he was working towards securing his journeyman red seal endorsement and was also doing residential construction work.

[11] The trial judge noted that the respondent had a February 13, 2023 finding of guilt for sexual assault for which he received a conditional discharge. The trial judge also observed that the respondent completed three psychological educational sessions in the spring of 2023 but did not show a desire to change and there was no buy-in by him. The respondent bought a house in April 2024. He had had no previous involvement with the youth criminal justice system. This was his first youth finding of guilt.

[12] The trial judge considered the preamble of the YCJA and observed that "our system reserves the most serious intervention for the most serious crimes and reduces the over reliance of incarceration for non-violent young persons." He stated at p. 43 of his oral reasons:

I must reflect that the sentence that I impose on [the respondent] today must be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), which is holding the young person responsible, imposing meaningful consequences, providing rehabilitation and reintegration into society, which Parliament has indicated will contribute to the long-term protection of the public. I must denounce unlawful conduct and I must deter the young person from committing offences.

[13] The trial judge then turned to the issue of a custodial sentence. He acknowledged that pursuant to the case law, sexual interference with an individual under the age of 14 is a violent offence. However, he was not prepared to make a finding of bodily harm, which he said was required by subsection (a) of the YCJA definition relied upon by the Crown. He then stated:

[Defence counsel] in reply acknowledges that sexual interference is a violent offence as per the case law. I cannot come to the conclusion in [the respondent's] case that this is a violent offence based on my findings of fact. [The victim] was not forced to do anything against her will. She was a willing participant. She is not able to consent due to her age.

[14] He then opined that even if he were wrong and sexual interference is a violent offence, he would not sentence the respondent to custody. He reasoned that a probation order requiring the respondent to engage in programming and counselling would protect society. Moreover, the trial judge considered that this was sufficient denunciation.

[15] He then noted, without elaboration, that "after the occurrence, [the respondent] wanted [the victim] to take birth control and facilitated that by purchasing it."

[16] The trial judge was of the view that putting the respondent into custody would hinder his rehabilitation. The respondent was contributing to society by working and qualifying to be a registered tradesman, was commended for buying a house, and was learning discipline by participating in his sporting activities. The trial judge sentenced him to 24 months of probation and ordered him to perform 120 hours of community service within 12 months, among other conditions.

The Appeal

[17] The Crown seeks leave to appeal sentence and, if leave be granted, appeals from the sentence. Crown counsel advances two arguments. First, she submits that the trial judge erred in law in finding that the underlying offence did not constitute a violent offence for the purposes of s. 39(1)(a) of the YCJA. Second, she submits that the trial judge erred in law in treating the victim's willing participation as a relevant consideration on sentencing.

[18] I agree with this second argument. The trial judge's findings on the victim's "willing participation" and, I might add, the provision of the morning after pill as if they in some way diminished the seriousness of the respondent's conduct reflect a misunderstanding of the applicable law, and specifically, the principles articulated in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the leading Supreme Court decision on the subject of offences against children. As the court noted in that case, a child's participation in sexual contact "is not a mitigating factor and should never be equated to consent": at para. 52. The court went on to state: "Some courts have, while acknowledging that a victim's participation is not a mitigating factor, nevertheless treated it as relevant to determining a fit sentence…This is an error of law: this factor is not a legally relevant consideration at sentencing": at para. 150 (citations omitted).

[19] A victim's participation should not distract the court from the harm that sexual violence causes to a victim. As explained in Friesen, "The fact that additional forms of violence such as weapons, intimidation, and additional physical assault may not be present does not provide a basis to ignore the inherent violence of sexual offences against children": at para. 152 (citation omitted). Moreover, as the court stated in R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, a case on child luring, in cases in which victims feel that they actively participated in their own abuse, such feelings "may increase self-blame, internalization and shame. This worsens the psychological harm": at para. 39.

[20] Furthermore, the court in Friesen, at para. 154, instructed that it is the responsibility of the adult to refrain from engaging in sexual violence towards children. The age of consent to sexual activity is 16: s. 150.1(1) of the Criminal Code, R.S.C. 1985, c. C-46. In s. 150.1(2), Parliament enacted a defined close-in-age exception which permitted a defence of consent in law for sexual interference with a 13-year-old where the accused is: (a) less than 2 years older than the complainant; and (b) not in a position of trust or authority, or in a relationship of dependency or an exploitative relationship with the complainant. As the Crown properly asserts, in enacting this provision, Parliament has placed the legal responsibility squarely on the shoulders of older youths to prevent sexual activity with younger children. There is no suggestion that the respondent fell within the exception.

[21] As is clear from both the trial judge's reasons for judgment and his reasons for sentence, he placed unwarranted emphasis on the victim's participation. It served to trivialize the seriousness of the offence and its consequences for the victim. In so doing, the trial judge committed a legal error.

[22] In the same vein, although not pressed by the Crown, in sentencing the respondent, it was an error to place any weight on his provision of a morning after pill to the victim. In no way should that have been seen as lessening or mitigating the respondent's unlawful conduct.

[23] Although I conclude that the trial judge erred in treating the victim's participation and the respondent's facilitation of birth control for the victim as relevant considerations on sentencing, I am nonetheless of the view that the sentence was fit in the circumstances.

[24] Section 38 of the YCJA governs sentencing of a young person. It provides:

38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

(2) A youth justice court that imposes a youth sentence on a young person shall determine the sentence in accordance with the principles set out in section 3 and the following principles:

(a) the sentence must not result in a punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances;

(b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances;

(c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence;

(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;

(e) subject to paragraph (c), the sentence must

(i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1),

(ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and

(iii) promote a sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community;

(e.1) if this Act provides that a youth justice court may impose conditions as part of the sentence, a condition may be imposed only if

(i) the imposition of the condition is necessary to achieve the purpose set out in subsection 38(1),

(ii) the young person will reasonably be able to comply with the condition, and

(iii) the condition is not used as a substitute for appropriate child protection, mental health or other social measures; and

(f) subject to paragraph (c), the sentence may have the following objectives:

(i) to denounce unlawful conduct, and

(ii) to deter the young person from committing offences.

(3) In determining a youth sentence, the youth justice court shall take into account

(a) the degree of participation by the young person in the commission of the offence;

(b) the harm done to victims and whether it was intentional or reasonably foreseeable;

(c) any reparation made by the young person to the victim or the community;

(d) the time spent in detention by the young person as a result of the offence;

(e) the previous findings of guilt of the young person; and

(f) any other aggravating and mitigating circumstances related to the young person or the offence that are relevant to the purpose and principles set out in this section.

[25] Thus, as a YCJA sentencing, the court must consider that there is no reasonable alternative that is available to the respondent other than serving his sentence in custody. Specifically, s. 38(2)(d) of the YCJA provides that all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons. Section 38(2)(e) states that the sentence must be the least restrictive sentence that is capable of achieving the purpose of sentencing described in s. 38(1) of the Act, must be the most likely to rehabilitate the young person and reintegrate him or her into society, and must promote a sense of responsibility in the young person and an acknowledgement of the harm done to victims and the community.

[26] The respondent had a challenging childhood. The Crown did not contest that the respondent has complied with over half of his term of probation. He has done so all the while that he has been working. He has purchased and maintains a home, and appears to have altered his lifestyle. This was the respondent's first finding of guilt and, therefore, he must be treated as a first offender, despite his additional 2023 finding of guilt as an adult. The Crown points to the respondent's lack of "buy-in" to counselling after his conditional discharge, asserting that it is proof of the respondent's low prospects of rehabilitation absent the accountability imposed by a custody order. However, the trial judge stated that he did not know the circumstances or details of why the counselling was terminated. As well, the respondent alleges that the counselling lacked linguistic and cultural awareness and failed him accordingly. In the circumstances, I am not prepared to conclude that the respondent's conduct in this regard, taken with all the other factors, serves to warrant a custodial or different sentence from that rendered by the trial judge. I am mindful of the harm done to the victim and the gravity of the offence. However, rehabilitation is of particular significance when dealing with an offence by a youthful offender. The sentence the respondent received spoke to denunciation and deterrence. I am not persuaded that placing this offender in custody would serve any further meaningful purpose or that a custodial sentence would effectively serve the principles set out in the YCJA. Despite his errors, I am satisfied that the sentence rendered by the trial judge was fit. Put differently, I would grant the respondent a similar sentence.

[27] Having reached this conclusion, there is no need to address the Crown's other submission that the trial judge erred in concluding that sexual interference is not a violent offence and that therefore the gateway to custody was foreclosed. This analysis should await an appeal where the issue of custody is squarely in play.

Disposition

[28] For these reasons, I would grant leave to appeal sentence but would dismiss the Crown's appeal.

Released: August 27, 2025

"S.E. Pepall J.A."

"I agree. Coroza J.A."

"I agree. J. Dawe J.A."

Publication Ban

[1] This appeal is subject to a publication ban pursuant to ss. 110 and 111 of the Youth Criminal Justice Act, S.C. 2002, c. 1 and s. 486.4(1) of the Criminal Code, R.S.C. 1985, c. C-46.