WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Halton, 1211-998-12-2456

Date: 2013-06-27

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Manuel Ferreira Tavares

Before: Justice Sheilagh O'Connell

Heard on: February 26, 2013, April 18, 2013

Written Submissions received on: May 6, 2013

Reasons for Judgment released on: June 27, 2013

Counsel:

Lorna Muller — for the Crown

Scott Aird — for Manuel Ferreira Tavares

O'CONNELL, J.:

1. Introduction

[1] On February 26, 2013, Mr. Tavares plead guilty to one count of gross indecency and one count of indecent assault, contrary to sections 156 and 157 of the Criminal Code. The offences occurred in the Town of Oakville, Ontario between January 1, 1980 and December 31, 1982 and between January 1, 1984 and December 31, 1985. After hearing the facts, findings of guilt and convictions were registered on both counts on that day.

[2] A pre-sentence report was ordered and the matter was adjourned to April 18, 2013 for a sentencing hearing. I received the pre-sentence report, a psychiatric report, victim impact statements and other documentation on that day. I also heard oral submissions. The matter was adjourned to today's date for sentencing. Counsel also requested leave to file additional written submissions, if necessary, which I did receive on May 3rd and 6th, 2013. As well, on June 20, 2013, I received a recent decision of the Ontario Superior Court of Justice from defence counsel, with the Crown's consent. This decision had just come to the attention of counsel, and was relevant to one of the issues raised during the sentencing hearing, which is whether or not a conditional sentence was available for consideration in this matter.

2. The Circumstances of the Offences

[3] The first offence occurred during the time period between January 1, 1980 and December 31, 1982. The victim, R.J., was between the ages of ten and eleven years old at the time and was living with his mother in Oakville. R.J. stated that he was walking along the side of a road when Mr. Tavares, previously unknown to him, approached him and offered him a job working in a barn with farm animals to earn extra money. R.J. agreed and accompanied Mr. Tavares to the barn.

[4] While inside the barn, R.J. assisted in sweeping and cleaning the animal stalls. Mr. Tavares then drove R.J. back to his home and dropped him off. On this occasion, Mr. Tavares claimed not to have any money with him but asked R.J. for his phone number so that he could call him again to work, at which time he would be able to pay him.

[5] Mr. Tavares contacted R.J. on three more occasions, ostensibly to offer him paid work, and drove him to the barn each time. Although Mr. Tavares promised to pay R.J. for the work that he did on each occasion, he did not provide any payment. On the first occasion, Mr. Tavares asked R.J. to remove his clothes to take some pictures. No pictures were taken. Mr. Tavares touched R.J.'s naked body and asked R.J. to masturbate him. Mr. Tavares also performed oral sex on R.J.

[6] On the second occasion, Mr. Tavares once again engaged R.J. in oral sex and subsequently engaged him in anal sex, inserting his penis inside his anus. Mr. Tavares ejaculated inside R.J.'s anus. On the third occasion, R.J. recalls that the Mr. Tavares engaged him in anal and oral sex. All three assaults took place in the barn.

[7] The second offence involves R.G., another unrelated victim. It occurred between the dates of January 1st 1984 and December 31st 1985, also in the town of Oakville. This victim, R.G., was 13 years old at the time and had obtained his first summer job with a steam cleaning company. R.G. was assigned to work with Mr. Tavares, who was a fulltime employee at the time. R.G. developed a friendship with Mr. Tavares. Mr. Tavares told him that he would introduce him to girls and could provide him with alcohol.

[8] On one occasion while cleaning the Oakville Centennial pool, Mr. Tavares locked the door to the boys' change room and pulled out a Polaroid camera. He told R.G. that if he wanted to get girls, he needed to pose for a picture while nude. Mr. Tavares directed R.G. to masturbate himself while he photographed him. R.G. also photographed Mr. Tavares at his request.

[9] After this occurred, the incidents which constitute the offence before the court followed. On the first occasion, R.G. was at Mr. Tavares' home in Oakville. Mr. Tavares gave R.G. some lunch and some of his homemade wine. They were alone in the residence. Mr. Tavares invited R.G. up to his bedroom and instructed him to get undressed. Mr. Tavares undressed and directed him to perform oral sex. R.G. complied, getting on his knees and performing oral sex on Mr. Tavares. Mr. Tavares then directed R.G. to lie on the bed. Mr. Tavares lay in behind him and inserted his penis inside R.G.'s anus.

[10] R.G. reported that he felt immense physical pain while Mr. Tavares penetrated his anus for approximately four to five minutes. Mr. Tavares ejaculated inside R.G.'s anus. R.G. then went into the bathroom and sat on the toilet while pushing out a mixture of blood and semen. Mr. Tavares attempted to re-assure R.G., asking him if he was okay and telling him to come downstairs and have a glass of wine, so that he would feel better. R.G. agreed and went downstairs with Mr. Tavares to have a glass of wine.

[11] Although not the facts that form the subject matter of the charges before the court, as aggravating factors, it was acknowledged that approximately two weeks after this occurred, Mr. Tavares and R.G. were driving in Mr. Tavares' van. R.G. told Mr. Tavares that he did not want to continue with any further sexual activity. Mr. Tavares became angry and drove to a barn and ordered R.G. into the barn. Mr. Tavares forcefully pulled R.G.'s pants down and bent him over a bale of hay. He inserted his penis inside R.G.'s anus and had anal intercourse with him using force by pulling on R.G.'s arms while he penetrated him. Mr. Tavares ejaculated inside R.G.'s anus. Mr. Tavares attempted to console R.G. after the assault.

[12] In addition, it is also acknowledged that approximately two weeks after the above incident, R.G. and Mr. Tavares were in the basement of Mr. Tavares' home. They were both nude and R.G. was performing oral sex on Mr. Tavares when the door to the basement opened. Another man walked in and R.G. was startled. Mr. Tavares re-assured R.G. that the man was a friend of his and he told R.G. that if he did not want anyone to know what he had been doing, then he should allow his friend to do what he wanted. The second man bent R.G. over while he was in a standing position. He inserted his penis into R.G.'s anus and had anal intercourse with him.

[13] During the Mr. Tavares and R.G.'s interaction, Mr. Tavares would threaten R.G. that if he told anyone about the incidents, or did not do what he asked, then Mr. Tavares would show people the nude pictures of R.G.

3. The Victim Impact Statements

[14] There is one formal victim impact statement before the court from R.G. and an informal statement from R.J., as reported to the probation officer who prepared the pre-sentence report, which is not disputed by Mr. Tavares. Both statements demonstrate the profound and devastating impact of Mr. Tavares's offences on the victims' lives as children and as adults.

[15] R.J. stated that he became isolated and socially withdrawn after the assaults. His school performance was severely impacted and he became fearful around adult authority figures. To this day, he has been unable to sustain meaningful adult relationships and he has been unable to maintain any employment for a significant period of time. He also has issues with substance abuse and with sleeping and nightmares. He has attempted suicide on several occasions. He had been unable to disclose the abuse to anyone until he was hospitalized three years ago. He continues to struggle with all aspects of his life.

[16] R.G. stated that the offence has affected him in many ways. He was embarrassed to seek help or to tell anyone because he blamed himself for what happened. He became self-destructive and developed an alcohol and drug dependency. He suffered from sleeplessness and nightmares. He left home at the age of fifteen years old because he was afraid his parents would find out and somehow blame him for what had happened. He wanted to be a doctor or lawyer but his education was deeply affected. He has moved from job to job with no clear goal. He has lost the ability to trust, which has ruined several relationships. He has been suicidal and self-destructive. Although he was raised Catholic, he stopped going to church and has stopped his children from going to church. As an adolescent, he was afraid to drive to downtown Oakville where Mr. Tavares resides. To this day, he continues to be fearful. As he puts it, "I think I will have a certain amount of fear forever."

4. The Circumstances of the Offender

[17] Mr. Tavares is 57 years old. He was between 22 and 24 years of age for the first offence before the court and 26 years of age for the second offence. He was born in Portugal, an only child to his mother and father. Prior to immigrating to Canada, he grew up on a rural farm where his daily routine after school consisted of a number of hard chores. He describes a close and loving relationship with his parents.

[18] Mr. Tavares immigrated to Canada with his parents as a young adolescent. He describes the move to Canada as very difficult. He did not speak English and he experienced difficulty assimilating into an English speaking society. He encountered difficulties at school as a result of the language barriers and there was no one available to assist in translating. He struggled academically. He left school at the age of sixteen and entered the work force. When he was a young man, his parents returned to Portugal and Mr. Tavares remained living in Canada.

[19] Through hard work and perseverance, Mr. Tavares has become a successful business man. For the past twenty years he has owned and operated a business which provides cleaning services to professional offices. He employs fifteen staff and has no financial difficulties.

[20] By all accounts, Mr. Tavares is also happily married with two successful adult children. He met his wife in Portugal during a trip home and then sponsored her to Canada. They have been married since 1978 and their two children were born in 1980 and 1985. Mr. Tavares was married with children at the time of the offences before the court.

[21] Mr. Tavares has a previous criminal record for similar offences around the same time as the offences before the court. In 1982, he pleaded guilty to two counts of gross indecency, one count of indecent assault on a male, and one count of buggery. He received a sentence of twelve months custody followed by eighteen months' probation. It appears that the victim of those offences was eighteen years of age, although there was a photo taken of the two males by an eleven year old boy.

[22] Mr. Tavares states that he accepts full responsibility for his actions. He has expressed remorse for the victims and stated that during the offence periods, he was "consumed with thoughts of a sexual nature" towards young males. He states that he attended treatment during the time of his 1982 conviction for sexual offences and that he has had no sexual thoughts of this nature in the past twenty-five years.

[23] Mr. Tavares obtained a psychiatric and social assessment from Dr. Karl O'Sullivan, a consultant psychiatrist at Oakville Trafalgar Memorial Hospital in 2013. Dr. O'Sullivan met with Mr. Tavares on two occasions and met with his wife and adult daughters for the preparation of his report for sentencing. Mr. Tavares reported to Dr. O'Sullivan that as a young male between the age of twelve and thirteen years old, he was involved in masturbatory activities with older boys in Portugal. According to Dr. O'Sullivan, this is not an uncommon experience for young males where the culture strictly segregates the sexes, and there is very little contact with females.

[24] In his assessment, Dr. O'Sullivan concluded that there is no evidence that Mr. Tavares suffers from any type of sexual deviancy including pedophilia and there is no evidence of mental health issues. In his opinion, the two "sexual encounters" can be understood in the context of Mr. Tavares cultural background and early life experiences. As he states in his report:

"The two incidents of Mr. Tavares' sexual behaviour with young males occurring in the early 1980s, I think should be interpreted in the context of Mr. Tavares' cultural background. His behaviour can be understood as situational occurrences. Behaviour reminiscent of his own past experiences in the Azores. In both of these incidents the encounters were temporary in nature and as far as I can tell, no coercion was used in either encounter." [Emphasis added.]

[25] In his report, Dr. O'Sullivan concluded that Mr. Tavares presents no risk of being involved in aberrant or sexually deviant behaviour at this time or in the future. It was his further opinion that the sexual offences were a part of Mr. Tavares' past, an indication of a lack of emotional and social maturity, specific to his cultural background, and that he presents "no risk whatsoever to his family, neighbours or his community in the context of his sexual functioning."

[26] Mr. Tavares also provided the court with a number of character and reference letters from his Church, family members, employees, and the community. All of the letters describe Mr. Tavares as actively involved in his Church, an exemplary community member, an employer of good character, and a good and loving husband and father. The pre-sentence report prepared and dated April 16, 2013 was very positive regarding Mr. Tavares' employment circumstances, family life, and contribution to the community. Mr. Tavares' daughters describe their father as hardworking, generous, supportive and encouraging, someone who is always willing to lend a hand to anyone who needs it. Mr. Tavares is currently supporting his oldest daughter financially as her husband suffers from serious health issues.

[27] Mr. Tavares does not have any issues with drug or alcohol dependency and only engages in social drinking.

5. The Position of the Parties

[28] The Crown seeks a sentence of custody in the range of fifteen to eighteen months, to be served in an institution, followed by a period of probation for three years. The Crown also seeks a DNA order, an order requiring Mr. Tavares to comply for life with the provisions of the Sex Offender Information Registration Act ("SOIRA"), a lifetime weapons prohibition order under section 109 of the Criminal Code, and an order under section 161 of the Criminal Code that Mr. Tavares be banned for life from frequenting public locations where children might reasonably be expected to attend.

[29] Mr. Tavares, through counsel, seeks a conditional sentence in the range of fifteen to eighteen months, to be served in the community, followed by a period of probation. Mr. Tavares does not oppose a DNA order or an order that he comply with the provisions of SOIRA, given that there are two offences which are considered primary designated offences. However, he does oppose a 'section 161 order' and he submits that a weapons prohibition order be limited to five years.

[30] An issue arose during the course of submissions as to whether a conditional sentence was available to Mr. Tavares. The offences before the court took place between 1980 to 1982 and 1984 to 1985. The conditional sentencing regime did not exist at that time. Further, a conditional sentence is not available at the present time on charges involving sexual assault as the conditional sentencing regime was amended in 2007 to exclude the availability of a conditional sentence where the offence is a "serious personal injury offence", as defined by section 752 of the Criminal Code. It is not disputed here that the offences before me meet that definition. The availability of a conditional sentence for the offences here only existed between September 6, 1996, when the conditional sentencing regime was established under section 742.1 of the Code, and 2007, when the provisions were amended.

[31] Counsel for Mr. Tavares submits that, by virtue of section 11(i) of the Canadian Charter of Rights and Freedoms, Mr. Tavares is entitled to have a conditional sentence considered as the punishment for the offences has been varied between the time of the commission of the offences and the time of sentencing and he is therefore entitled to the benefit of the lesser punishment.[1]

[32] Section 11(i) of the Charter provides as follows:

"11. Any person charged with an offence has the right

(i) if found guilty of the offence and if punishment for the offence has been varied between the time of the commission and the time of sentencing, to the benefit of lesser punishment."

[33] The Crown submits that a conditional sentence is not legally available to Mr. Tavares, and even if it was available, it is not a fit disposition in the particular circumstances of this case.

[34] After seeking and hearing further submissions on this issue, and after reviewing the case law, I advised counsel that I was satisfied that in accordance with section 11(i) of the Charter, a conditional sentence is an available disposition for consideration in this matter.[2]

6. The Principles of Sentencing to be Applied

[35] The Criminal Code sets out the purposes and principles of sentencing as follows:

718. [Purpose] 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.

[36] Section 718.1 of the Criminal Code provides that a 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.

[37] As Justice G.F. Hearn noted in R. v. Boudreau, 2012 ONCJ 322, [2012] O.J. No. 2372 (O.C.J.) at paragraph 41, the issue of proportionality is a principle rooted in notions of fairness and justice. The sentence must reflect the seriousness of the offence and the degree of culpability of the offender and the harm occasioned by the offence. The court must consider both aggravating and mitigating factors, look at the gravity of the offence and the blameworthiness of Mr. Tavares. The sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[38] Section 718.2 sets out the following other sentencing principles that a court must also take into consideration when imposing a sentence:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or child,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, or

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[39] As well, as is the case before me, when dealing with offences against children, section 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."

[40] I have reviewed the authorities provided by counsel and it is well settled law that the sexual abuse of children is to be seriously denounced. It is clear from the principles of sentencing that are set out in the Criminal Code as well as the case law provided that the paramount considerations in cases involving the sexual assault on children are the principles of general deterrence and denunciation. Courts must deal with perpetrators of sexual assault involving children in a way that properly reflects our society's desire to protect children, given the devastating impact on the victim's childhood and adulthood. See R. v. Stuckless, 41 O.R. (3d) 103 (O.C.A.)

[41] Mr. Tavares' submissions that a conditional sentence is appropriate here must be examined by reviewing the statutory requirements as well as the relevant authorities regarding the imposition of a conditional sentence in cases involving the sexual assault of children. Section 742.1 of the Criminal Code provides as follows:

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(d) imposes a sentence of imprisonment of less than two years, and

(e) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

(d) keep the peace and be of good behaviour;

(e) appear before the court when required to do so by the court;

(c) report to a supervisor

(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and

(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;

(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

(d) abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription;

(e) abstain from owning, possessing or carrying a weapon;

(c) provide for the support or care of dependants;

(d) perform up to 240 hours of community service over a period not exceeding eighteen months;

(e) attend a treatment program approved by the province; and

(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

[42] Section 742.1 of the Code lists four criteria that a court must consider in deciding whether to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. See R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, (2001) 140 C.C.C. (3d) 449 (S.C.C.).

[43] The case law that has developed since Regina v. Proulx, supra, demonstrates that the conditional sentence regime was enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. Justice Lamer in Proulx notes and states that a conditional sentence is something that is to be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool and by contrast Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, the conditional sentence should generally include punitive conditions that are restrictive of the liberty of the offender. See R. v. Boudreau, 2012 ONCJ 322, [2012] O.J. No. 2372 (O.C.J.) at paragraph 51.

7. Application of Principles and Analysis

[44] In considering what an appropriate and just sentence should be for Mr. Tavares, I must consider both the mitigating and aggravating circumstances relating to the offences and to the offender, Mr. Tavares.

The Mitigating Circumstances

[45] The mitigating factors are as follows:

1. Mr. Tavares has pled guilty to both charges before the court, thereby saving the victims from a lengthy trial and/or preliminary inquiry, particularly given the historical nature of the charges.

2. Mr. Tavares has expressed remorse for his actions, accepts responsibility and as he states, "feels horrible" for his actions towards the victims.

3. The offences before the court took place approximately thirty years ago. Since that time, Mr. Tavares has been a productive, hard-working, and successful member of the community, employing a number of people. He is actively involved in his church, and he is a good husband, father and grandfather.

4. Mr. Tavares is currently providing financial assistance and support to his oldest daughter and son-in-law because the husband is experiencing serious health issues. A custodial sentence may interfere in his ability to continue to provide financial assistance.

The Aggravating Circumstances

[46] The aggravating circumstances are as follows:

1. Mr. Tavares has been found guilty of committing acts of gross indecency and assault against two young children approximately thirty years ago when he was between the ages of 22 to 24, and 26 years old. The children were ten years of age and thirteen years of age at the time and there were multiple incidents.

2. The sexual assaults were very intrusive in nature and involved oral sex, anal intercourse, penetration and ejaculation. One of the victims described intense physical pain and pushed out a mixture of blood and semen after one of the assaults.

3. Mr. Tavares used coercion and physical force in committing the assaults. He also photographed one of the victims and used the photograph as blackmail against him if he did not comply with his demands. He further supplied him with alcohol and lured the other younger victim with the promise of money for paid work, which never materialised. The conduct was deliberate and Mr. Tavares took advantage of the two young victims. Both young victims were vulnerable and impressionable.

4. Mr. Tavares had a criminal record for two counts of gross indecency, one count of indecent assault and one count of buggery involving an eighteen year old male. The offence involving R.J. appears to have preceded Mr. Tavares sentencing for the above offences, however, the offence involving R.G. was after these offences occurred and presumably after he apparently sought treatment. However, it does not appear that Mr. Tavares was on probation at the time of the offences before the court.

5. Although the psychiatric report suggests that both offences appear to be crimes of opportunity, Mr. Tavares committed the offences at least two years apart, the second one after he apparently sought treatment, for previous offence of indecent assault and gross indecency.

6. The psychological and emotional impact on both victims is clear from their victim impact statements. The harm and trauma that they have suffered as a result of Mr Tavares' actions has been devastating and has fundamentally changed their lives forever in damaging ways.

8. The Sentence to be Imposed

[47] In considering what a just and appropriate sentence would be in this case, I have carefully considered the circumstances of the offender and the circumstances of the offence. Mr. Tavares is convicted of offences that are not punishable by minimum terms of imprisonment and the range of sentence proposed by both counsel is clearly within the appropriate range for a conditional sentence. I further find that Mr. Tavares does not represent a danger to the safety of the community as there is no risk at this time in Mr. Tavares' life of re-offending. Therefore the first three criteria for a conditional sentence have been met in this case.

[48] However, in my view, the fourth criterion for a conditional sentence has not been met in this case. A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code. In particular, considering the very serious circumstances of these offences which involve the sexual exploitation of young and vulnerable children by an adult, the sentencing principles of denunciation and general deterrence and specific deterrence can only be properly addressed by a term of imprisonment in a traditional setting.

[49] I recognise and acknowledge that Mr. Tavares is now leading what appears to be an exemplary life, but that does not detract from the horrific nature of the crimes that he committed thirty years ago, as an adult against young children. However, I have considered the lapse of time, in addition to the remorse that he has expressed, by reducing the sentence imposed. As the Court of Appeal has stated in R. v. W.W.M., [2006] O.J. No. 440, at paragraph 19, an exemplary life led in the years intervening between the abuse and the sentencing must be accompanied by expressions of genuine remorse and the acceptance of responsibility for one's actions in order to have the appropriate mitigating effect.

[50] I also disagree with the characterization of these offences by Dr. O'Sullivan as somehow being as a result of Mr. Tavares' cultural background as a young boy growing up in Portugal. The serious, violent and coercive nature of the offences before the court is fundamentally different from the "mutual masturbation" between boys that Dr. O'Sullivan described in his report. Dr. O'Sullivan was also clearly in error when he describes the offences before the court as "sexual encounters" in which no coercion was used.

[51] However, as I indicated, the several mitigating factors that I have previously set out do impact on the length of the custodial sentence that should be imposed. I find that the appropriate sentence in this particular case is one of twelve months' imprisonment, concurrent for both offences.

[52] There is nothing in the evidence before the court to indicate that a period of probation will assist Mr. Tavares, or that such a period is required to address the issue of community safety. I accept Dr. O'Sullivan's opinion that Mr. Tavares currently presents no risk either currently or in the future or re-offending, and the evidence before me certainly demonstrates this, given the exemplary life he has led for the past thirty years. As a result, there will be no period of probation to follow the period of imprisonment.

[53] There will be a DNA order made pursuant to the provisions of the Criminal Code as both offences are primary designated offences. There will also be an order requiring Mr. Tavares to comply with the Sex Offender Information Registration Act and a weapons prohibition order under s. 109 for a period of five years.

[54] With respect to the s. 161 order sought by the Crown, I am mindful that Mr. Tavares has five grandchildren with whom he appears to be actively involved. I also adopt the reasoning of Justice G.H. Hearn in R. v. Mehanmal, supra, following Regina v. M.E., 2012 ONSC 1078, [2012] O.J. No. 1627, that such an order with respect to historical charges was found to be a "sentence" as defined in the Code. As such, the statutory authorization for such an order was not in effect when Mr. Tavares' crimes were committed, as the section was first enacted in 1993, so the order is refused.[3]

[55] Finally, I thank counsel for their helpful submissions and the case law provided.

Released: June 27, 2013

Signed: "Justice Sheilagh O'Connell"

Footnotes

[1] Mr. Aird relies on the analysis and reasoning of Justice G.F. Hearn in R. v. Mehanmal, [2012] O.J. No. 5164 (O.C.J.) at paragraph 74.

[2] See R. v. Smith, 2013 ONSC 1825 (S.C.J.), R. v. Boudreau, 2012 ONCJ 322, [2012] O.J. No. 2372 (O.C.J.), R. v. Mehanmal, [2012] O.J. No. 5164 (O.C.J.), R. v. F. (E.R.), [2009] O.J. No. 994 (S.C.J.).

[3] See R. v. Mehanmal, supra, at paragraph 89.