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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: July 31, 2015

Court File No.: Kitchener 12-1991

Between:

Her Majesty the Queen

— and —

T.D.

Before: Justice G. F. Hearn

Heard on: May 9, 2014, August 28, 2014, October 3, 2014, December 11, 2014, February 17, 2015 and May 1, 2015

Reasons for Sentence released: July 31, 2015

Counsel:

Ms. J. Caskie — counsel for the Crown

Mr. S. Gehl — counsel for the defendant T.D.

HEARN J.:

BACKGROUND

[1] Mr. T.D. is before the court today for sentencing. As this matter has taken an extended period of time, it is necessary to set out some of the background of this proceeding.

[2] There is currently before the court a five-count information alleging counts of sexual assault, sexual interference and sexual exploitation, naming as the accused T.D. and as the victim S.T. The charges relate to a timeframe from January 1, 2008 to December 14, 2010 and initiated when S.T. was approximately 11 years of age. At the time of giving evidence in this matter S.T. was 17 years of age.

[3] On May 9, 2014 the accused entered a plea of guilty to one count of sexual interference contrary to s. 151 of the Criminal Code. The Crown elected to proceed by indictment on this matter and the court heard the facts agreed to by Mr. T.D. on that date. As I understand it, following the completion of the sentencing today all other charges are to be marked withdrawn.

[4] As noted, on May 9, 2014 the accused acknowledged by virtue of his plea one act of sexual intercourse with the young victim which event is said to have taken place sometime during the summer months of 2008. The Crown alleged many more sexual acts of a similar nature and otherwise with S.T. over a period up to and including December of 2010. The defence acknowledged only the one incident, none of the other allegations were admitted and the matter has thereafter proceeded by way of a Gardiner hearing. (See Regina v. Gardiner, 1982 2 S.C.R. 368).

[5] The hearing was conducted over a number of days, evidence was called by both the Crown and the defence, and the court's ruling was released on February 17, 2015. Reference has been made to the findings delivered on that date, which findings were such that the court was satisfied beyond a reasonable doubt that during the timeframe alleged in the count that has been pled to numerous sexual assaults and incidents of sexual interference with respect to the young person took place. Those events included anal and oral sex and sexual intercourse committed by the accused upon the young victim, which activity only ended when S.T. disclosed the matters to her counsellor and the police were thereafter involved.

[6] Further, although the accused acknowledged the act of intercourse in 2008, the court did not accept the circumstances surrounding that particular event as alleged by the accused and accepted the evidence of S.T. as to the particulars of that event.

[7] Following the ruling on February 17, 2015 the matter was adjourned to May 1, 2015. On May 1, 2015 submissions were received as to sentence and the matter of sentencing was adjourned to today's date.

CIRCUMSTANCES OF THE OFFENCE

[8] There is no need to revisit, other than briefly, the circumstances of the offence as found by the court following the Gardiner hearing. As noted, the accused initially pled guilty to a count of sexual interference with respect to an event that took place in the family trailer during the summer months of 2008 when S.T. was 11 years of age. The accused is the stepfather of S.T. and has been in her life since 2003 when she was six years of age. The accused married the mother of S.T. when S.T. was nine or ten.

[9] S.T. has no relationship apparently with her biological father and the evidence clearly establishes that she considered the accused to be her father and, as she noted during her evidence, she "loved him like a father".

[10] The circumstances which were acknowledged when the plea was entered by the accused accepted that he had sexual intercourse with S.T. at the trailer while the mother was allegedly present and while all were under the influence of alcohol and/or drugs. The accused's version of the event was expanded upon during the course of his evidence at which time the presence of the mother of S.T. was introduced. The court found that the accused's recollection of the event was not credible nor reliable and accepted the version of that particular event as set out in the evidence of S.T. That version included the sexual intercourse but indicated the mother at no time was present during the event.

[11] The evidence presented on the hearing, and which was accepted by the court, demonstrates that over an extended period of time until the latter part of 2010 when disclosure was finally made by S.T. the accused sexually violated S.T. The acts included various sexual contact, the creation of child pornography by photographing and videotaping the young person in various states of undress and other egregious forms of sexual contact with the child, details of which again are set out in the ruling delivered in February.

[12] Suffice it to say, it is an absolute certainty that the sexual acts perpetrated on the victim by the accused represent an egregious breach of trust and have had significant impact on the young person as set out in her victim impact statement.

VICTIM IMPACT STATEMENT

[13] Filed as Exhibit #2 on this sentencing is the victim impact statement of S.T. When giving evidence on the hearing I found S.T. to be a candid and forthright witness who presented as well as a vulnerable victim.

[14] Her statement is eloquent and compelling. She speaks of the impact the accused's conduct has had on her which continues to this day.

[15] S.T. indicates that she looked to the accused as her father. As she puts it, she considered him from the outset to be her "new dad", one she could trust and learn from and one who would teach her "everything that's right and wrong in this world".

[16] The criminal conduct of Mr. T.D. has contributed to and caused S.T. to suffer serious emotional and physical harm as set out in the statement. She speaks of the conduct as a memory which gives her a "sick, twisted feeling in her stomach" and has left her with memories that she "despises and wants so bad to rip apart".

[17] Her schooling has suffered, her relationships with others compromised and she has sought professional help to assist in coping and, hopefully, in her recovery.

[18] She has put her "life on hold to learn about myself and who I am". She indicates she no longer has or feels she can have friends or control her own "mind and emotions". She captures the serious impact of Mr. T.D.'s conduct when she states within the statement as follows:

"My life feels like torture each and every day. He stole much more than my innocent childhood, he stole my dignity, my pride, my body and left my mind shattered to pieces. I feel like a useless, worthless human being. I feel like my life has no hope, like I'll never get better. I'll never become who I have the potential to be because this abuse is holding me back from being free and happy."

CIRCUMSTANCES OF THE OFFENDER

[19] The accused comes before the court as a first-time offender. He has not been in difficulty with the criminal justice system either as a youth or an adult until the matters before the court.

[20] No pre-sentence report was requested by counsel, nor ordered by the court, and defence counsel has provided details of Mr. T.D.'s personal circumstances.

[21] Mr. T.D. was born on […], 1968 and is currently 47 years of age.

[22] He married the mother of S.T. in 2005 and he himself describes his relationship with the mother's two daughters, one of whom is S.T., as being one of father/daughter. He was in fact involved in S.T.'s life since 2003.

[23] The marriage to the mother, M.T., was a second marriage for the accused. He had been previously married and has three daughters from that marriage who are apparently 28, 26 and 24 years old at the present time.

[24] He has Grade 12 education and comes from a family that does not appear to be dysfunctional in any way. Defence counsel indicates Mr. T.D. has not demonstrated any alcohol or drug problems in his life, although clearly there is some use of marijuana, even on his own evidence, as well as alcohol involved in the matters before the court. He has been employed at his current employer for a number of years and is considered a valued employee and, as I understand it, is in a supervisory position. When Mr. T.D. gave evidence he indicated at the outset that he very much likes his job where he has been situated for some 16 years.

[25] Following his arrest he has been separated from the family and there is no intention for the family to resume as a unit for obvious reasons. All financial issues between the mother and the accused have been resolved and I am told he is making support payments in accordance with the required guidelines.

[26] Mr. T.D. has complied with relatively strict bail terms since his release. Although no curfew has been in place, there have been other significant restrictions on his liberty. Given the length of time the bail conditions have been in place it shows Mr. T.D.'s ability to comply with court orders and certainly indicates he is taking this matter seriously.

POSITION OF THE PARTIES

[27] The Crown stresses the aggravating factors in this matter and the serious impact Mr. T.D.'s conduct has had on S.T. The Crown asks for a penitentiary sentence in the range of seven to eight years.

[28] Defence counsel, fully appreciating the aggravating circumstances of the conduct of the accused submits that a conditional sentence is the appropriate sentence. Such a sentence would have been available for consideration during the timeframe set out in the information. Defence counsel advocates that Mr. T.D.'s "good character should hold him in good stead" and mitigates somewhat against a lengthy sentence. Defence submits that if a conditional sentence of two years less a day is a disposition the court is not prepared to consider, then counsel submits a penitentiary term of three years together with various ancillary orders, save and except a s. 161 order, which defence counsel submits is not either necessary nor appropriate, would be a fit disposition.

PRINCIPLES TO BE APPLIED

[29] In Regina v. Hamilton, [2004] O.J. No. 3252, a decision of the Ontario Court of Appeal Mr. Justice Doherty noted at paragraph 87 as follows:

"Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender."

[30] Sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. Each case must be conducted as an individual exercise. (See Regina v. Wright, [2006] O.J. No. 4870, para. 16; Regina v. D.(D.), 163 C.C.C. (3d) 471, para. 33, both decisions of the Ontario Court of Appeal).

[31] The principles of sentencing set out in the Code are set out in s. 718 to s. 718.2. Section 718 reads as follows:

718. 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.

[32] Section 718.1 states a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[33] 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. T.D. and the sentence ultimately imposed must properly reflect in terms of gravity that which the offence generally bears to other offences.

[34] Section 718.2 sets out:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(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,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

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

(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.

[35] Also of note, when dealing with offences against children s. 718.01 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."

[36] The primary factors to be considered here are of course the principles of general deterrence and denunciation. Still, the court must recognize the other principles of sentencing to be considered and also must consider the circumstances of Mr. T.D.

[37] In dealing with the issue of denunciation, the objective of denunciation mandates that a sentence must communicate society's condemnation of the offender's conduct.

[38] As noted by Chief Justice Lamer in Regina v. M.(C.A.), 105 C.C.C. (3d) 327 at page 369:

"In short a sentence with a denunciatory element represents a symbolic collective statement that the offender's conduct should be punished for encroaching on our Society's basic code of values as enshrined within our substantive criminal law. As Lord Chief Justice Laughton stated in Regina v. Sargeant (1974) 60 Cr. App. R. 74 at page 77:

'Society through the courts must show its abhorrence of particular types of crimes and the only way in which the courts can show this is by the sentences they pass.'"

[39] Both counsel have provided case law which is of assistance. All of those cases clearly indicate that sexual abuse of children is to be treated seriously by the courts and denounced. Even when there is an absence of physical violence during the course of the commission of a sexual assault upon a child, there still remains the psychological damage done to child victims of sexual abuse which can be profound and devastating, something that is clearly evident in this particular matter. The courts must deal with perpetrators of sexual assaults involving children in a way that properly reflects society's desire to protect children. See Regina v. Stuckless, 41 O.R. (3d) 103, Ontario Court of Appeal.

[40] The Ontario Court of Appeal has constantly noted the importance of protecting children. In Regina v. Woodward, 2011 ONCA 610, at para. 76 the court specifically noted:

"…when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence."

[41] Also, in Regina v. D.D., [2002] O.J. No. 1061, the Court of Appeal indicated that harm occasioned to children by adult sexual predators is cause for concern. In Regina v. D.(M.), 2012 ONCA 520, [2012] O.J. No. 3616, the Ontario Court of Appeal concluded that the proper range of sentencing, although recognizing sentencing is an individual process, where there is prolonged sexual abuse and assault of a child including penetration by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary. (See para. 44). The court also in that case at para. 66 indicated:

"We have recognized that sexual abuse of children by a person in a position of trust or authority now warrants more severe sentences, and where the abuse includes sexual intercourse, in most cases, a three-to-five year range is too low."

[42] In Regina v. P.M., 2012 ONCA 162, the Court of Appeal reviewed decisions previously made dealing with situations where a parent commits an offence of sexual abuse of a child in his care and that abuse includes sexual intercourse. (See Regina v. B.(J.), [1990] O.J. No. 36).

[43] Further, the court stated at para. 46 as follows:

"Each case will, of course, turn on its own facts and sentencing is a highly individualized exercise. However, the court signalled in D. (D.) that the sexual abuse of a child will attract lengthy penitentiary sentences. In my view, where a father has committed repeated acts of incest with his daughter over many months, as in this case, it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years. Such a range is more consistent with this court's decision in D. (D.) and is also more consistent with amendments to the Criminal Code since B. (J.) was decided. The Criminal Code now provides that the primary objectives of sentencing are deterrence and denunciation where the victim of sexual abuse is a child under the age of 18 years. The Criminal Code also explicitly provides that abuse of a child under 18 years and abuse of trust or authority in relation to the victim are aggravating factors."

[44] In Regina v. D.(M.), supra, at para. 32 the Court of Appeal set out the aggravating factors to be considered in cases involving sexual assault of children, which factors include the age of the victim, the duration and frequency of the sexual assaults, the criminal record of the offender, the effects on the victim and the presence or absence of collateral violence and remorse.

[45] In Regina v. Woodward, supra, which was a case involving one child and one incident with no additional violence where a 12 year old had been lured through the internet by the accused to have sex in exchange for an alleged transfer of money, the court re-stated the principles of sentencing set out in Regina v. D.(D.), supra, and noted at para. 72 as follows:

"The relevant considerations and principles from D. (D.), at paras. 34-38, are summarized below:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing."

[46] The court also keeps in mind that Mr. T.D. is a first offender and, as a result, the principle of restraint is a matter to be considered as set out in s. 718(2)(e) of the Criminal Code. That section effectively states that imprisonment is a sanction of last resort and when imposed should be no longer than is minimally necessary to achieve sentencing objectives in the Code. General deterrence then cannot be the sole consideration and appropriate consideration must be given to the rehabilitation of the accused.

OTHER CONSIDERATIONS ON SENTENCING

[47] As noted previously, the accused has pled guilty to one count of sexual interference which is said to have taken place between January 1, 2008 and December 14, 2010. Mr. T.D. acknowledged one incident during that period of time and although the incident acknowledged involved intercourse, he denied further involvement in a sexual context with S.T. during that timeframe. In fact, Mr. T.D. had a different scenario with regard to the one incident he did acknowledge, but the court ultimately did not accept his version of the event. Still, even on his own version that incident involved sexual intercourse with an 11 year old child.

[48] Crown counsel argues, as a result of the Gardiner hearing and the court being satisfied beyond a reasonable doubt that there were numerous other occasions where such contact took place within the same timeframe, that contact together with the incident acknowledged and the facts as found by the court comprise a single transaction and Mr. T.D. should be sentenced accordingly.

[49] In the alternative the Crown submits that, if the conduct does not form part of the single transaction referred to in the count that has been pled to, then pursuant to s. 725(1)(c) the conduct can be considered as uncharged offences occurring within the same timeframe and can be a factor considered on sentence. Effectively it is the Crown's position that whatever approach is taken it makes no difference in the position of the Crown with respect to the length of sentence proposed.

[50] I do not think it is necessary to deal with this particular issue at great length as at the end of the day I agree with the Crown whatever approach is taken, namely whether the numerous incidents are tied up within the single transaction principle or whether they are uncharged offences, the ultimate sentence is not dependant on which of the two approaches the court might take.

[51] In that regard, briefly, I have reviewed the cases provided by the Crown and I note the reasoning set out by the Ontario Court of Appeal in Regina v. Chamot, [2012] O.J. No. 6267, where the court adopted its previous reasoning in Regina v. Sandhu, 2009 ONCA 102.

[52] In that case a single transaction argument similar to that in issue here was raised and the court stated at paras. 48 and 49 as follows:

"[48] A count in an indictment must 'in general apply to a single transaction': Criminal Code, s. 581(1) (emphasis added). A count that does not comply with s. 581(1) is not necessarily bad in law: see R. v. Katigbak, 2011 SCC 48, [2011] 3 S.C.R. 326, at para. 82. A trial court may, however, quash, amend or divide a count if the accused is prejudiced by the way the count is framed: see Criminal Code, ss. 590(2), 601. This court has the same powers on appeal even if no objection was taken to the count at trial: see R. v. Rafael, [1972] 3 O.R. 238 (C.A.), at p. 240; R. v. Sandhu, 2009 ONCA 102, 242 C.C.C. (3d) 262, at para. 25.

[49] This court has repeatedly indicated, often in reference to allegations of sexual abuse that span a wide timeframe and several discrete incidents, that a single transaction can encompass several different acts: see e.g., R. v. Selles, 34 O.R. (3d) 332 (C.A.), at p. 339. Count 3 alleged a series of acts all of which involved the same complainant and formed part of an ongoing course of conduct within the same family dynamic. Count 3 amounted to an allegation of ongoing, systematic sexual abuse of B.B. That conduct, as alleged, described an ongoing 'single transaction': see R. v. Hulan, [1969] 2 O.R. 283 (C.A.), at p. 290."

[53] In this particular case I note that at no point was there a request for particulars with respect to the count alleged. I also note that the defence certainly cannot be said to be prejudiced as a result of the clear indication throughout that the Crown's position was that during the period of time noted in the count sexual interference occurred on more than the one occasion and the matter proceeded accordingly.

[54] With respect to the issue of s. 725 of the Criminal Code, s. 725(1)(c) provides as follows:

"725. (1) In determining the sentence, a court

(c) may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge."

[55] The case law provided which is of assistance in dealing with this particular issue is Regina v. Larche, 2006 SCC 56, 2006 2 S.C.R. 762 and a recent Ontario Court of Appeal case, Regina v. Shin, 2015 ONCA 189. In the Shin case the accused had been convicted of possession of marijuana for the purpose of trafficking and possession of proceeds of crime over $5,000. He received a sentence of six years' imprisonment and appealed both his conviction and sentence.

[56] During the course of the trial an Agreed Statement of Facts was presented and the appellant testified during which the appellant acknowledged his background which included what is described as a "long lucrative career trafficking marijuana". As noted in the Court of Appeal:

"The essence of his testimony was that although he was a career marijuana trafficker, he would not have gotten involved in trafficking other drugs because he considered it too dangerous."

[57] There had in fact been charges of possession for the purpose of trafficking in other substances and the jury in that case acquitted the accused on those particular matters but convicted the accused only on the possession for the purpose of trafficking in marijuana and possession of the proceeds of crime.

[58] When the trial judge sentenced the accused, the court relied on s. 725(1)(c) and treated the appellant's trafficking history as an aggravating factor. The Court of Appeal upheld the approach of the trial judge and ultimately the sentence and noted as paras. 89 through 96 as follows:

"[89] Section 725(1)(c) permits the sentencing judge to take into account any fact that forms part of the circumstances of the offence, if the fact could form the basis for a separate charge. Offences for which the offender has not been charged but which are proven under s. 725(1)(c) may be treated as "aggravating circumstances" under s. 718.2(a) of the Criminal Code: Larche, at para. 28.

[90] In Larche, the Supreme Court set out three requirements that determine when uncharged offences can constitute an aggravating circumstance under ss. 725(1)(c) and 718.2(a). In this case, all three are met.

[91] First, if the accused disputes his guilt of the uncharged offence, the presumption of innocence applies and the Crown must prove the uncharged offence beyond a reasonable doubt: Larche, at paras. 43-44. In this case, the appellant did not deny that he had been trafficking in marijuana for a lengthy, unbroken period of time beginning when he was in high school. He admitted it.

[92] Second, there must be a nexus or "connexity" between the uncharged criminal conduct and the offence for which the offender has been convicted: Larche, at para. 48. The connexity requirement is met when the uncharged offence forms part of the same transaction as the offence for which the offender is being sentenced: Larche, at para. 51.

[93] In addition, however, s. 725(1)(c) encompasses "the broader category of related facts that inform the court about the 'circumstances' of the offence more generally": Larche, at para. 54. Justice Fish explains, at para. 55 of Larche:

'Facts' (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be said to form part of the transaction covered by the charge for which the offender is to be sentenced. Recourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct. [Emphasis added.]

[94] In the present case, the appellant submits that there was insufficient "connexity" between the offences for which he was convicted and his prior marijuana trafficking. I would not accept this submission.

[95] The appellant testified about his unbroken history of selling marijuana throughout his high school years, his undergraduate and graduate university programs, and afterwards to the time of his arrest. His marijuana trafficking career was at its zenith in the period leading to his arrest, when he was selling around ten pounds of marijuana per week and twenty pounds in a busy week. The appellant's testimony about his unbroken pattern of trafficking in marijuana, including in the period leading to his arrest, shows a sufficient proximity in time to the charged offences and is clear evidence of a system or unbroken pattern of criminal conduct, within the meaning of connexity as explained in Larche, at para. 55. Indeed, the appellant's testimony as to his system and pattern of trafficking in marijuana was what he used to distance himself from the cocaine and other hard drugs found in his stash house.

[96] Third, the court should decline to consider uncharged offences under s. 725(1)(c) if doing so would result in unfairness to the offender: Larche, at para. 46. The trial judge found that the appellant admitted his prior marijuana trafficking to avoid being convicted of offences relating to the cocaine and heroin found in the stash house. As the appellant gained a tactical benefit from admitting his prior trafficking, it is not unfair to take that trafficking into account in sentencing. Furthermore, since the appellant's prior marijuana trafficking has been considered under s. 725(1)(c), the Crown cannot now charge him in respect of that trafficking: see s. 725(2), discussed in Larche, at para. 26. Accordingly, taking the uncharged conduct into consideration did not result in unfairness to the appellant."

[59] Here, again in considering what might be uncharged offences there is no unfairness to the accused. The accused was fully aware of the position of the Crown throughout. He disputed his guilt, the presumption of innocence applied and the additional matters were proven beyond a reasonable doubt. The ongoing sexual contact between the accused and the young victim effectively meets the "connexity requirement" as the uncharged offences, if that is what they are deemed to be considered to be, form part of the same transaction as the offence of sexual interference to which the accused has pled. In addition, as noted, the additional matters inform the court of the circumstances of the offence charged more generally.

[60] In my view, it is best to approach this matter on the basis of considering the sentence in the context of s. 725 given the Crown's position throughout this matter. It was clearly indicated that the matter was proceeding as a Gardiner hearing with the Crown seeking to establish aggravating factors surrounding the charge before the court. The matter has proceeded accordingly. Again, I would indicate that to proceed in this manner results in no unfairness to the accused as he was provided every opportunity to challenge the Crown's case which was required to be proven beyond a reasonable doubt even in the context of a Gardiner hearing. Also, as noted previously, in any event whatever approach might be taken the same considerations ultimately apply when determining the appropriate sentence.

AGGRAVATING FACTORS

[61] The aggravating factors in this matter are as follows:

1. The accused sexually abused the victim over a period of years from the time she was 11 years of age until the time she was approximately 14. The conduct was not an isolated event but was conduct that was pursued persistently and callously by the accused as set out in the findings of the court. The conduct did not cease as a result of any action on the part of the accused but only as a result of the disclosure made by the victim after she effectively had had enough.

2. The sexual conduct was comprised of all forms of inappropriate sexual behaviour on the part of the accused. The conduct included sexual intercourse, oral sex and anal sex, as well as a variety of activities, all of which were designed to satisfy the needs of the accused, groom the victim, and without any regard and complete indifference to the well-being of the victim.

3. The accused held a position of trust and authority with respect to the young person. He had been involved in the life of the victim since she was a small child, was ultimately married to her mother and was seen by the young victim as a father. She treated him as such and, as she put it, she "loved him like a father". She looked to him for guidance and support and the accused has breached that trust in a most very egregious manner. A position of trust is founded on notions of safety, confidence and reliability that the special nature of the relationship will not be breached. The accused blatantly vacated his responsibility to the victim.

4. The victim presented during the course of the hearing as a vulnerable victim. She was experiencing difficulties with her mother during the period of time the events were taking place, looked to the accused as a role model and a confidante, and his conduct has left her emotionally scarred as clearly evident from her victim impact statement. The harm occasioned by the accused's conduct continues to this day and has significantly altered the life of the victim.

5. When disclosure was finally made by the victim to her counsellor, the accused tried to minimize the damage by having the young person agree to tell the police initially that there had only been one incident and another near incident when in fact there had been many, many more. I accepted the victim's evidence that she agreed to such a position because she was still hopeful the family may at some point be reunited. I find the accused put forward that position for self-serving purposes only and again without regard to the well-being of the victim.

MITIGATING FACTORS

[62] The mitigating factors here are as follows:

1. The accused is 47 years of age and comes before the court as a first-time offender without prior record or any involvement with the criminal justice system.

2. The accused seems to have led a fairly productive life. He has fathered other children with whom he seems to have had a good relationship. He has been employed at the same company for a number of years in a supervisory capacity. He enjoys his work and the loss of his employment will impact him financially and otherwise.

3. Following his arrest the accused was released on strict bail terms which included terms relating to non-attendance at various locations and no contact with young persons, among other terms. He has been able to comply with those terms since his release and has not been breached.

4. Although his plea of guilty was effectively a qualified plea, there was an acknowledgement of sexual intercourse on the one occasion and notwithstanding that the court has found there were several more occasions and the facts agreed to surrounding the one occasion were not as stated by the accused, it would appear he has some insight into his conduct, although limited perhaps. Rehabilitation then is not out of the question.

SENTENCE TO BE IMPOSED

[63] This is a troublesome sentencing. The accused was in a position of trust and his conduct with the victim was certainly an egregious breach of that trust. The aggravating factors are numerous and the mitigating factors few.

[64] The principles to be applied as set out in the various case law clearly indicate that a period of imprisonment in the penitentiary is the appropriate disposition. Although submissions were made by defence counsel with respect to a conditional sentence, clearly a conditional sentence is totally inappropriate. The range of sentencing is beyond that available for a conditional sentence and, more importantly, given the circumstances of the conduct as found by this court, a conditional sentence would be absolutely contrary to the fundamental principles of sentencing which must be applied.

[65] General deterrence and denunciation are primary principles to be considered. Conduct such as that exhibited by the accused is to be denounced. The impact of the conduct has been significant with respect to the victim and her recovery is still ongoing.

[66] I am of the view that the appropriate disposition in this matter is one of six years' imprisonment. I am also of the view that such a sentence properly addresses the principles of sentencing, recognizes the aggravating factors present and gives consideration to the limited mitigating factors.

[67] Ancillary orders have been requested by the Crown and there will be an order for a DNA sample to be taken in accordance with the provisions of the Criminal Code. As well, there will be an order requiring the accused to comply for a period of 20 years with the Sex Offender Information Registration Act.

[68] With respect to the s. 161 order sought by the Crown, given the nature of the conduct of the accused and the absence of any indication of complete insight or follow-up with any treatment that might be appropriate, I am fully satisfied that the s. 161 order sought by the Crown is appropriate. I am also of the view that the duration of such an order should be for a period of ten years which will commence on the date the accused is released from imprisonment for the offence. The order will require that the accused be prohibited from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present or a daycare centre, school ground, playground or community centre;

(b) seeking, obtaining or continuing any employment whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16;

(c) having any contact including communication by any means with a person who is under the age of 16 years unless the offender does so under the supervision of a person whom the court considers appropriate.

Further, the accused shall be prohibited from being within 500 metres of any dwelling house where the victim ordinarily resides or any place of employment of the victim or any place of education which she might be attending.

[69] Further, there will be an order under s. 743.2(1) that the accused is to have no contact while serving his sentence with either the victim or the victim's mother.

[70] In summary then, there will be a sentence of six years' imprisonment, a DNA order, an order requiring compliance with the Sex Offender Information Registration Act, an order under s. 161 and a no-contact order while the accused is serving his sentence.

Released: July 31, 2015

Signed: "Justice G. F. Hearn"