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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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: 2018-06-19

Court File No.: Halton 17–2062 & 17-3502

Between:

Her Majesty the Queen

— AND —

M.G.P.

Before: Justice D.A. Harris

Heard on: March 2, 2018 and May 16, 2018

Reasons for Sentence released on: June 19, 2018

Counsel:

• Christina Lynch & Maureen McGuigan — counsel for the Crown
• S Wilson — counsel for the accused M.G.P.

Reasons for Sentence

D.A. HARRIS J.:

Charges and Guilty Pleas

[1] M.G.P. pled guilty to:

(1) Sexual interference involving JD, which occurred in April, 2017;

(2) Sexual assault involving KB which occurred in October, 2017;

(3) Administer noxious substance involving KB which occurred in October, 2017;

(4) Breach of recognizance (curfew) which occurred in October, 2017;

(5) Breach of recognizance (not be in company of anyone under 16 years of age) which occurred in October, 2017.

[2] Administer noxious substance is an indictable offence. Crown counsel elected to proceed by indictment with respect to the other charges.

[3] Mr. M.G.P. is before me today to be sentenced.

[4] Crown counsel suggested that I should sentence him to imprisonment for six years. She also requested the following ancillary orders:

1. An order that Mr. M.G.P. comply with the provisions of the Sex Offender Information Registration Act (SOIRA) for life;

2. An order pursuant to section 161 of the Criminal Code restricting Mr. M.G.P.'s access to female persons under 16 years of age for life;

3. An order prohibiting communication with JD and KB during the custodial portion of his sentence;

4. a DNA order; and

5. a weapons prohibition.

[5] Counsel for Mr. M.G.P. suggested that I give him credit for his pre-sentence custody (245 days credited as 367 days) and sentence him to imprisonment for a further two years less a day with a recommendation that this be served at the Ontario Correctional Institution in Brampton. This should be followed by probation for three years. She agreed that it was appropriate for me to make the ancillary orders but argued that the order pursuant to section 161 should run for between 5 to 10 years.

[6] I find that a sentence of imprisonment for the equivalent of five years is appropriate.

[7] My reasons for this are set out under the following headings:

1. The fundamental purpose and principles of sentencing,
2. The facts underlying the offences,
3. The impact on the victims,
4. The background of Mr. M.G.P., and
5. Analysis.

Fundamental Purpose and Principles of Sentencing

[8] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[9] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[1]

[10] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[2]

[11] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[3]

[12] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[4]

[13] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[5]

[14] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[15] Section 718.01 of the Criminal Code provides that "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".

[16] Section 718.2(a)(ii.1) provide that evidence that an offender, in committing an offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[17] Section 718.2(a)(iii) provide that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[18] The offences had a significant impact on the victims, considering their age and other personal circumstances, including their health and financial situation. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

[19] Section 718.2(c) provides that where consecutive sentences are imposed the combined sentence should not be unduly long or harsh.

[20] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. I must review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.[6]

[21] In doing this, I should first fix appropriate individual sentences to arrive at a total sentence and then adjust the total sentence to ensure that it does not exceed what is just and appropriate.[7]

[22] With respect to consecutive sentences, section 718.3(4)(b)(i) provides that:

The court that sentences an accused shall consider directing…(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively including when (i) the offences do not arise out of the same event or series of events.

[23] There is a broad discretion to impose consecutive sentences if separate legal interests are implicated in the various offences.[8]

[24] Section 718.2(d) provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[25] Section 718.2(e) provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[26] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.[9]

[27] This principle is of much less importance however in cases like this where there is a mandatory minimum sentence of imprisonment, but I still must take it into account.

[28] The Supreme Court of Canada further noted in Gladue that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[10] As a general matter restorative justice involves some form of restitution and reintegration into the community.

[29] The Ontario Court of Appeal has provided considerable direction with respect to sentencing adults who have sexually abused young victims.

[30] In R. v. D.D. and R. v. Woodward, the Ontario Court of Appeal "discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children".[11] The facts in those cases, as well as the sentence imposed are very different than in this case. I take from those cases however the following considerations and principles which I find to be relevant here:

(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.[12]

[31] The fundamental message that the Court of Appeal has sought to convey is that:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price![13]

[32] The maximum sentence for sexual interference is imprisonment for 14 years where the Crown proceeded by indictment. The minimum sentence is imprisonment for one year.

[33] The maximum sentence for sexual assault is imprisonment for 10 years where the Crown proceeded by indictment. There is no minimum sentence.

[34] The maximum sentence for administer noxious substance is imprisonment for two years. There is no minimum sentence.

[35] The maximum sentence for breach recognizance is imprisonment for two years when the Crown proceeded by indictment. There is no minimum sentence.

[36] Before applying these principles, I must take into account the facts underlying the offences, the impact on the victims and the background of Mr. M.G.P.

The Offences

JD

[37] JAD is the mother of JD and LD. JD was 13 years old. LD moved out of the family home due to conflict with his father but after his father left the family LD moved back in with his mother and sister sometime in February 2017. M.G.P. was a friend of LD and he was over almost every day in February helping out. Towards the end of March he stayed overnight at the D residence in Burlington for about a week when he was having difficulties with his own father. JD developed a brother-sister type of bond with Mr. M.G.P.

[38] Mr. M.G.P. was aware that JD was only 13 years of age. He was 27 at the time.

[39] On April 1, 2017 he told JD that he had feelings for her for a while. He asked her what she thought and when she replied that she did not really know, he suggested that they kiss to find out. She expressed reluctance and he told her if they were careful it would be fine. On April 3, 2017, he sent her a text at 1:00 am to ask her if they were going to try. JD went downstairs to the main level to meet him but she heard her brother and returned upstairs to her bedroom. Mr. M.G.P. had a short plaid skirt that he bought for his ex-girlfriend and at some point he gave it to JD to wear and she put it on prior to returning downstairs. Once downstairs they engaged in kissing on the couch in the living room. Thereafter he performed cunnilingus on her and he engaged in sexual intercourse with her without a condom. He ejaculated on her stomach.

[40] The following night / early morning hours of April 4, 2017 Mr. M.G.P. arranged to engage in sexual intercourse with JD once again in her home. She described that he put his hand on her neck to start choking her but not hard while he engaged in sexual intercourse with her which resulted in him ejaculating on her stomach for a second time.

[41] Halton Regional Police became involved on June 5, 2017 after JD disclosed what had occurred to a counsellor following a suicide attempt. She provided a videotaped statement disclosing that Mr. M.G.P. had requested that she send a video of herself in the skirt touching herself, which she did. He asked her for another one but she only sent one.

KB

[42] KB had known Mr. M.G.P. for approximately three years. He was a friend of her boyfriend and she considered him to be a close friend for about eight months.

[43] In October 2017, KB was dropped off at her boyfriend's at approximately 4:30 pm. Later that day, her boyfriend walked KB to a nearby Tim Horton's where she was going to be picked up by a family member.

[44] While waiting at Tim Horton's she became involved in a Facebook conversation with Mr. M.G.P. They agreed that he would pick her up and she would spend the night at his apartment and he would drive her home in the morning. She had done this previously so it was not unusual.

[45] They arrived at his apartment sometime after 1:00 am on October 23.

[46] She complained of a headache and he gave her two blue pills which she ingested. They went to his bedroom to sleep. He wished to snuggle but she did not reciprocate. He offered her a watermelon type drink which she accepted. The drink contained lorazepam or some other unknown substance sufficient to cause her to pass out.

[47] She awoke to find that her clothing had been removed and Mr. M.G.P. was naked on top of her having unprotected vaginal intercourse with her without her consent. She recalled him saying, "we were waiting for this" before she passed out again. She woke up next at approximately 3:00 in the afternoon. She left the apartment and called her mother and attended Joseph Brant Hospital where a sexual assault examination kit was performed.

[48] Results of the testing of the vaginal swab resulted in a male DNA profile being generated. Mr. M.G.P. acknowledged that he was the contributor of the semen detected.

Breach Recognizance

[49] Mr. M.G.P. entered into a recognizance of bail on the 11th of July, 2017 which contained a curfew condition requiring him to remain in his residence between the hours of 10:00 pm and 6:00 am. He was out past his curfew when he went to pick up KB at Tim Horton's after 10:00 pm.

[50] Further, he was bound by a condition stating: "Do not be in the company of or communicate, directly or indirectly, by any physical, electronic or other means with persons under the age of 16 years, unless in direct presence of your surety".

[51] He was arrested in a car on the 24th day of October 2017 at approximately 11:05 pm and he was in the company of a 15 year old female passenger.

[52] He was bound by a further condition to reside with his surety. On the 24th day of October 2017, it was learned that he was not residing with his surety.

Impact on the Victims

[53] I was provided with Victim Impact Statements prepared by JD, her mother and KB.

[54] From these I learned the following.

[55] JD was devastated by the departure of her father. She found a friend in Mr. M.G.P., a much older brother figure, someone she felt she could trust. She thought that he was a better brother than her real one.

[56] Following the offence, JD became withdrawn, distanced herself from her family and spent more and more time alone in her bedroom. She lost her appetite, complained regularly about stomach aches and seldom finished her food. She complained of being constantly tired, but was unable to sleep.

[57] She spoke to her mother about feeling depressed and not wanting to live. JD insisted her mood was as a result of her father's decision to leave.

[58] In early June, she tried to kill herself by swallowing 17 extra strength Tylenol pills.

[59] She spent 16 days in hospital. When she was discharged it was with strict instructions that she not be left alone for any amount of time. She spent her entire summer holiday at her mother's office. She could not go to the mall or to the movies with friends for fear that she would encounter Mr. M.G.P. or have an anxiety attack.

[60] After Mr. M.G.P. was arrested, she became paranoid that he would try to hurt her. Her mother was also concerned and installed an enhanced security system in their home.

[61] She has trouble trusting people and is constantly afraid that someone is going to use her and manipulate her in the same way that Mr. M.G.P. did.

[62] She can see that her brother is angry at himself for trusting Mr. M.G.P. and bringing him into their lives.

[63] She is still in counselling.

[64] She does acknowledge one positive arising out of all of this, stating that:

Through all of this drama, I managed to maintain and even raise my grades. In the first semester, my average was an 80.5, and from what I can remember it went up to an 85. As I withdrew from everyone around me, I started to focus only on school. In hospital, I still did my best to keep up my grades, which Included working over a period of two days to complete a 60 question test. Needless to say, I wasn't able to, but the point is that I did my best.

[65] KB stated she has felt anxious, depressed and easily triggered. She has become disconnected from her friends and family and does not trust people anymore. She has difficulty sleeping and has recurring nightmares about the assault weekly. She has difficulty concentrating and has had difficulty attending school. She feels suicidal and has panic attacks when she sees the same make and model of his car or when triggered by things that remind her of the assault or him. She especially struggles when middle age men she encounters in the community look at her or are near her because it reminds her of Mr. M.G.P.

[66] She had to go the hospital to have a rape kit done and a physical. She felt embarrassed, ashamed and as if her privacy was violated.

[67] She is extremely concerned about her safety and has called Maplehurst multiple times out of concern that he will be released and come after her for reporting him and retaliate against her. She is fearful and avoids certain neighbourhoods in Burlington where his family and friends live or where she thinks she will run into them.

Background of Mr. M.G.P.

[68] I received a Pre-sentence Report regarding Mr. M.G.P. which provided me with the following information.

[69] Mr. M.G.P. is now 28 years of age.

[70] He is an only child, born in Burlington. His parents were in a common-law relationship at the time. They argued on a frequent basis in his youth and his father had alcohol abuse issues and a bad temper. His mother was a calmer individual. He did not witness any form of physical domestic violence within the home but knows that some did occur.

[71] His parents took him to England for his second birthday and his father would take him to a major retail toy store on a regular basis until he was seven or eight years of age and would buy him toys. Mr. M.G.P. is of the opinion that these outings were an attempt by his father to compensate for his tough love approach in raising him.

[72] His parents separated when he was ten years of age and he remained in the care of his mother until he was 13 years of age.

[73] In 1995/1996 his mother went to Guyana to attend her mother's funeral. She came back from the trip a very different person and her mental health began to decline.

[74] Mr. M.G.P. witnessed his mother attempt suicide four or five separate times and he had to call the paramedics once. The majority of her attempts were overdoses. Due to the deterioration of his mother's mental health and his father's aggression he was placed in two different foster homes by the Children's Aid Society for a total period of approximately six months. He was placed with his "nana" (paternal grandmother) until his mother was stable enough to care for him at which time he returned to his mother's care.

[75] His mother met a man during one of her court appearances in Milton and became involved with him. When she moved in with this man in Smithville, Mr. M.G.P. moved in with his father. His father and "nana" were his "rock" after his mother left.

[76] She and her boyfriend did not start re-integrating into his life until he was 17 years of age. However they were providing him, his father and his "nana" with financial support.

[77] His mother is currently 53 years of age, resides in Burlington, and is in receipt of income support from the Ontario Disability Support Program as she has been diagnosed with bi-polar disorder, Crohn's disease and ulcerative colitis.

[78] His father is 55 years of age, resides with his mother in Burlington, and owns and operates his own "Hi-Fi" store there.

[79] Mr. M.G.P. has an older brother from his father's previous relationship that he has never met.

[80] His "nana" is 86 years old. She is bedridden after falling and breaking her hip approximately one to two weeks before he was charged with the current offences.

[81] Mr. M.G.P. attended five different elementary schools.

[82] He was diagnosed with Attention Deficit Hyperactivity Disorder when he was two or three years of age and was prescribed Ritalin and later other derivatives of the medication which he took until he was 13/14 years of age. He was reportedly medicated for a time for Tourette's Syndrome until it was determined that he did not suffer from this. He began to take Concerta at the age of 19 years, however, the medication made him feel as if he was in a zombie like state, thus he stopped taking it.

[83] He attended a Catholic Secondary School in grade nine and then transferred to a public secondary school in order to be a part of a program that is geared toward youth who have a learning disability. His dad's health was poor and he was working for the most part on a full-time basis in order to support his father financially. As a result he did not earn his Ontario Secondary School Diploma.

[84] He enrolled into an Adult Education Centre in 2015/2016, however, he did not follow through with his studies due to financial hardships at home.

[85] Since having been remanded into custody he has enrolled into the General Equivalency Diploma and Prior Learning Assessment and Recognition programs through an Adult Education Centre at the Maplehurst Correctional Complex.

[86] He secured his first job when he was 15 at a fast food restaurant but left after six to eight months as he did not like the work and his treatment by his fellow employees. He then worked for six months at another fast food company before quitting as he did not like working in the fast food industry. He then worked at an electronics store where he excelled in sales and computer diagnostics, but did not like the pressure to make commission sales and how the company wanted the customers to be treated. After one year, he took a package offered by the company which was downsizing. He then secured a job with an office supply retail chain and remained there for 15 months working his way up from part-time employee work to a full-time position in the Computer Department. He was then recruited to work at another retail chain where he worked for 18 months before leaving due to downsizing. He was asked to "step down" to part-time status and he was not pleased with this as he was of the opinion that he had put a lot of time into the company. Following a disagreement with the manager, he tendered his resignation. He then obtained part-time work at a Hi-Fi store where his father was employed.

[87] When his father decided to open his own Hi-Fi store with a business partner, he helped to renovate and prepare the store for business. He then helped "run" the store when his father was not available. He had been working there for six months when he was arrested.

[88] He has had several relationships. The first lasted from 2012 through 2014. He lived with this girlfriend and her mother for approximately three months of that. The relationship ended as they were not much alike and began to grow apart.

[89] He and his next girlfriend dated for a period of six months in 2014. They never cohabitated but she became pregnant and gave birth to a son in […] of 2015. They had just separated at the time of the child's birth as he did not like the fact that she was "flirty with people" and she also had a dependency on alcohol prior to giving birth. He never had blood tests done to determine if he in fact was the father of the child but he was involved with the child at the beginning until his ex-girlfriend's mother became involved and referred to him as a "deadbeat dad". Consequently he has not seen the child since he was six months of age.

[90] He began dating his next girlfriend shortly after having ended the relationship with his previous one. They dated for six months and then resided together for 18 months. He described her as being "his rock".[14] The relationship came to an end in mid-2017 when she became pregnant. At that time he did not have much support from his family and his girlfriend decided to have an abortion. Their relationship subsequently "fell apart."

[91] He has not been able to become attached to anyone else since his last relationship dissolved.

[92] He resided on his own for approximately three to four months prior to his arrest. Previously he had resided with his paternal grandmother "on and off' basis for several years. His outstanding debts include speeding tickets, restitution in the amount of $500 and victim surcharges.

[93] He began consuming alcohol socially with friends on an occasional basis when he was 19 years of age. There was an increase in the frequency and quantity of his alcohol and drug consumption after his relationship of two years ended.

[94] He began to use marijuana in grade nine and has been recreationally smoking it since grade 10. It has become a "want / need to use it." His family physician is aware of his marijuana use and he has been very open about it with him.

[95] He developed an addiction to cocaine in mid to late 2016 as he "felt down in the dumps" as his jobs were getting less stable and more difficult to secure due to his criminal record.

[96] He reported that he had alcohol and cocaine in his system at the time of the offence but that his family never new that he had a substance abuse problem as he was very secretive about it.

[97] He attempted to commit suicide on two separate occasions when he was 19 and 21 years of age respectively. On the first occasion he was hospitalized for a period of 72 hours after overdosing on pain medication and was then released. Following his second attempt he was referred for a mental health assessment at Joseph Brant Hospital.

[98] He met with a psychologist following a referral from his family physician as he was experiencing different moods and outbursts. His family physician attempted to treat him with various medications. In 2015/2016 he received a "pending diagnosis of manic­ depressive bipolar disorder" which runs in his family. Prior to his incarceration he had completed two to three sessions with the psychologist.

[99] He attended for general counselling while bound by the conditions of a probation order and that he has also attended for general counselling with his family physician. His physician provides "moral counselling" and assists him in gaining insight into the management of his daily issues and issues with his family.

[100] He told the author of the Pre-sentence Report that "I am extremely sorry to the victims and families of the victims". He described his actions as being "very selfish." He is hopeful that they will be able to move on with their lives and that he has not affected them in a manner where they would not be able to do so. He let himself down the most as he had "the opportunity to be successful and to be a good member of society." He would like to "reintegrate" into society and would like to attend for "counselling and therapy" in order to "become a better person" and to avoid this situation from re-occurring. He is aware that he has also hurt his family and that he can be successful in the future as he knows how he was raised and that he has "good morals." He wants to better himself, have a good life and a good career. He also wants to be a part of his family's life and his son's life as well. He has learned a lot during his pre-trial custody, namely, that that "life is precious" and not "to take what you have for granted." He blames himself for his actions and has learned not to "misinterpret friendship." He does not want to have any contact with the victims and wants them to be "happy, healthy, well and successful." He hopes that they can find it in their hearts to forgive him.

[101] He has been on probation since March 2015 as a result of two separate orders. Prior to his arrest he was attending in house counselling where they were discussing matters related to family and were starting to work through his identified issues.

[102] His reporting had been "fairly consistent" since his last release from custody in July of 2017.

[103] He paid the first installment of his restitution and the balance of $500 was to have been paid by November 15, 2017. This amount remains outstanding.

Analysis

[104] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.[15]

[105] No sentence can adequately put a value on someone's serious injuries. It certainly cannot undo the harm done to JD and KB.

[106] Further, sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation".[16]

[107] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

[108] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. M.G.P. and yet, at the same time, one that is responsive to his unique circumstances.

[109] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[110] The aggravating circumstances can be found in the facts surrounding the offences.

[111] I will deal firstly with the sexual interference offence.

[112] Mr. M.G.P. sexually abused a girl who was barely a teenager.

[113] The abuse culminated in full sexual intercourse on two occasions.

[114] He did not use a condom. I note that he withdrew before ejaculating, but he still put JD at risk of either becoming pregnant or contracting a sexually transmitted disease.

[115] I am satisfied that this was a breach of trust.

[116] In that regard, I note the reasoning of the Supreme Court of Canada in R. v. Audet. There, La Forest J. agreed with the comments of Blair J. in R. v. P.S. that:

"Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.[17]

[117] Justice La Forest then went on to say that:

It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence. One of the difficulties that will undoubtedly arise in some cases concerns the determination of the times when the "position" or "relationship" in question begins and ends. It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases.[18]

[118] In this case, Mr. M.G.P. was a friend of JD's brother. He was staying at their residence. He treated her in such a way that she began to look up to him like an older brother. The relationship was relatively short-lived but it was enough to create an element of trust. It also provided a basis for JD to see him as someone who was looking out for her best interests.

[119] That is not to say that this case is anywhere near being as egregious a breach of trust as many other cases. It is there however and to that degree it must be treated as an aggravating factor.

[120] I make the same observation with respect to the issue of grooming. This is far from being the most serious example of grooming but Mr. M.G.P. did groom JD.

[121] So again, to the degree that grooming was present here, I am treating that as an aggravating factor.

[122] I have also considered factors which I find to be neither aggravating nor mitigating, but neutral.

[123] I note that this not a case where an adult offender, in a position of trust, sexually abused innocent young children on a regular and persistent basis over substantial periods of time. Accordingly, statements by the Ontario Court of Appeal regarding such cases are not applicable here. Mr. M.G.P. is to be sentenced for sexually abusing one child under the circumstances I have already discussed.

[124] I will now deal with the sexual assault and administer noxious substance offences.

[125] These occurred while he was subject to a recognizance of bail with respect to the sexual interference charge.

[126] He was a friend of KB's boyfriend. She considered him to be her friend too. She trusted him.

[127] He drugged her and then he raped her.

[128] He did not use a condom and it appears that he ejaculated inside her. He certainly put KB at risk of either becoming pregnant or contracting a sexually transmitted disease.

[129] In addition to failing to keep the peace, he breached his curfew when he picked her up that night.

[130] He also breached his bail by failing to reside with his surety.

[131] He also breached his bail by being in the company of a fifteen year old girl at the time that he was arrested.

[132] He was on probation when he did all of these things.

[133] The final aggravating factor is that the impact on JD and KB has been traumatic. It may be years before they get over this, if they ever do.

[134] There is no risk assessment before me, but common sense leads me to be concerned about the risk that he will reoffend. In fact, I am greatly concerned about this when I consider the above facts, combined with the content of the Pre-sentence Report. Amongst other things, Mr. M.G.P. has a checkered history of following through with anything, including school, work, and counselling. His substance abuse problem is still not resolved. Further, he does not appear to have any real insight into the serious impact that his actions had on the girls he victimized here.

[135] There are however a number of mitigating factors in this case.

[136] Mr. M.G.P. pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for JD and KB to testify. They were spared the ordeal of revisiting their victimization in a public courtroom. I give Mr. M.G.P. a great deal of credit for this. Otherwise I would have imposed significantly longer periods of imprisonment.

[137] He had a prior criminal record but nothing of a sexual nature. He had never been sentenced to a penitentiary term before.

[138] He is still a relatively young man who has most of his life ahead of him.

[139] There are a number of factors which are neither aggravating nor mitigating and I will not be including them in my determination of the appropriate sentence here. These include the following.

[140] There was no gratuitous violence beyond what was necessary to accomplish the assault. That is not mitigating. It is the absence of an aggravating factor.

[141] I do note that Mr. M.G.P. has suffered from many difficulties himself. I am concerned however that there appears to be a consistent pattern of him failing to follow through with anything that has been recommended to him for the purpose of addressing these difficulties.

[142] He does not have strong support in the community and that too causes me concern with regard to his prospects for future rehabilitation.

[143] After considering all of the above, I am satisfied that the appropriate sentence for each sexual offence is imprisonment for three years. The appropriate sentence for each of the breaches is imprisonment for three months.

[144] I am also satisfied that most of the sentences should be consecutive to each other. The sexual interference offence occurred months before the sexual assault. These two offences involved different victims. Mr. M.G.P. was subject to the terms of a recognizance of bail with respect to the first offence when he committed the second one. Clearly, separate legal interests are implicated in these two incidents. The same can be said with respect to the breach charge involving contact with the 15 year old girl. Only the administer noxious substance offence and the breach curfew offence are close enough in time and place to the sexual assault to meet the criteria for concurrent sentences.

[145] Finally, I am satisfied that taking totality into account, I should reduce the overall sentence by 18 months. Accordingly I reduced the sentences for the sexual interference charge and the sexual assault charge by 6 months each and directed that the sentence for the breach charge involving contact with the 15 year old girl be served concurrently.

[146] My concerns about his future risk to reoffend are addressed by placing restrictions on him pursuant to section 161 for 20 years.

Sentence

[147] For the above reasons, I sentence Mr. M.G.P. as follows:

[148] With respect to the sexual interference offence, Mr. M.G.P. is sentenced to time served, being pre-sentence custody of 245 days, credited as 367 days, or 12 months plus imprisonment for a further 18 months.

[149] With respect to the sexual assault offence, Mr. M.G.P. is sentenced to imprisonment for 30 months, consecutive to the first sentence.

[150] With respect to the administer noxious substance offence, Mr. M.G.P. is sentenced to imprisonment for 18 months, concurrent.

[151] With respect to each of the breach recognizance offences, Mr. M.G.P. is sentenced to imprisonment for three months, concurrent and concurrent.

[152] I also make the following ancillary orders.

[153] The sexual offences are primary designated offences and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. M.G.P. of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[154] They are also designated offences pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to s. 490.012 of the Criminal Code, that Mr. M.G.P. comply with the provisions of the Sex Offender Information Registration Act for life.

[155] With respect to the sexual interference charge, pursuant to section 161 of the Criminal Code, Mr. M.G.P. is prohibited for the next 20 years from:

(a) attending a public park or public swimming area where female 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, except when he does so under the supervision of a responsible adult person who is aware of this order;

(a.1) being within 100 metres, of any dwelling-house where JD or KB ordinarily resides;

(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 female persons under the age of 16 years;

(c) having any contact - including communicating by any means - with a female person who is under the age of 16 years, other than his own child, unless he does so under the supervision of a responsible adult person who is aware of this order or in the course of his employment;

(d) using the Internet or other digital network, including email, MSN Messenger, any other messenger system or any chat rooms, or Skype or Whatsapp or Facebook or Twitter or Instagram or Snapchat or any other social network, for the purpose of communicating with a female person under the age of 16 years except for his children. When communicating with anyone by means of such a computer system or other device, he will take reasonable steps to ascertain the age of the person; Further, when communicating with anyone by means of such a computer system or other device, he shall identify himself by his full real name, M.G.P., and shall not use any pseudonym, nickname or code name to identify himself.

[156] With respect to the sexual offences, pursuant to section 109 of the Criminal Code, for the next ten years Mr. M.G.P. is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[157] Finally, pursuant to section 743.21 of the Criminal Code, Mr. M.G.P. is prohibited from communicating in any way, directly or indirectly, with JD or KB during the custodial period of his sentence.

[158] Mr. M.G.P. will have one year following his release to pay the victim fine surcharges.

Released: June 19, 2018

Signed: Justice D.A. Harris