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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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: September 5, 2018

Durham Region

Between:

Her Majesty the Queen

— and —

C.C.

Before: Justice B.M. Green

Written sentencing submissions provided by Counsel and the Crown

Reasons for Judgment released on September 5th, 2018

Counsel:

• Ms. Allan, for the Crown
• Ms. Bharadwaj, for the defendant C.C.

Reasons for Judgment

Green J.:

Introduction

[1] On February 28th, 2018, Mr. C.C. was convicted of sexual assault, sexual interference, invitation to sexual touching and exposing his genitals to a person under the age of 16 years old for a sexual purpose. During an appearance on August 2, 2018, the Crown and Counsel agreed that Count 1 (sexual assault) and Count 4 (exposing genitals) are duplicitous in the unique facts of this case. Those counts will be conditionally stayed at the request of the Crown.

[2] These convictions relate to historical incidents with respect to Mr. C.C.'s best friend's child, B.W. These offences took place in the safety of the home that B.W. shared with her father between the 18th day of February, 2009 and August of 2010 when she was between 8 to 9 years old. Although Mr. C.C. is not related by blood to B.W., he was a trusted and beloved uncle to this child. He was convicted after trial of subjecting B.W. to invasive and repetitive sexual abuse.

[3] The sentencing has been postponed for months as a result of a defence request to secure a psychologist's report as well as other reasons. Due to the delays in this matter, Counsel and the Crown were directed to provide written submissions and all exhibits that they intend to rely on in support of their positions in advance of the date set for the sentencing hearing. I have reviewed all of the written submissions, the attached case law and the exhibits sent in advance of the sentencing.

[4] The Crown is seeking a sentence of six to seven years in the penitentiary in addition to pre-trial custody of 37 days, a 743.21 order prohibiting contact while in custody, a lifetime SOIRA order, DNA Orders and a 20 year order pursuant to section 161. Counsel for Mr. C.C. is seeking a sentence in the range of three to four years concurrent on both counts. In addition, she is seeking that Mr. C.C. be given credit for the lengthy period of time that he has spent on stringent release conditions. Counsel is not opposed to the SOIRA order, the DNA order or the order of non-communication while in custody however, she has urged the Court not to order the 161 order because of the punitive impact that would have on Mr. C.C.'s liberty interests once he is released from custody.

[5] Whether or not I accede to either the Crown's or Counsel's sentencing position, Mr. C.C. will be sentenced to a penitentiary term. In light of the competing interests at stake and the divergent positions advocated by both sides, to arrive at a just sanction it is important to consider the following:

• A. The guiding sentencing principles;
• B. The principle of parity in sentencing;
• C. Specific issues in this case;
• D. Balancing the mitigating and aggravating features of this offender and these offences;
• E. Credit for time spent on conditions of judicial interim release; and
• F. Whether or not there is evidence to support the issuance of a 161 order

A. The Purposes and Guiding Principles of Sentencing in Child Sexual Abuse Cases

[6] 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 and the harm done to victims or to the community that is caused by 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.

[7] Depending on the nature of the offence, a Court may focus on specific principles of sentencing as the most important factors to guide the Court's decision. In November of 2005, section 718.01 of the Criminal Code was proclaimed in force. At the heart of the purpose and principle of sentencing in section 718.01 and parts of section 718.2 is the overriding goal of protecting the most vulnerable members of our community, our children. Section 718.01 statutorily identifies that the primary consideration in sentencing for offences against children are the objectives of denunciation and deterrence.

[8] The Ontario Court of Appeal has repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind. Moreover, multiple Appellate Courts in Ontario have emphasized that child sexual abuse is extremely serious because of the emotional and psychological harm caused to the victims. This harm leaves the victims with the deepest scars, a legacy of shame and dysfunction that can last a lifetime. Justice Abella explained in R. v. Stuckless:

Sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenseless. As Moldaver J. stated in R. v. McF., released April 27, 1992, unreported, (Ont. Ct. (Gen. Div.)):

I cannot conclude that [the accused] should be treated in a more lenient fashion simply because he refrained from the use of threats of physical harm or the infliction of limited and measured amounts of force …

I must again reiterate the feelings that I have expressed in similar cases where the lack of serious physical harm has been advanced as a factor to be considered in mitigation. The crimes of incest and sexual assault are inherently violent. They can and often do have a crippling effect upon the psychological and emotional well-being of the victim. Conduct which brutalizes the mind can be far more devastating, painful and long-lasting than conduct which causes injury to the body.

[9] Section 718.2 of the Criminal Code specifically requires that a Court sentencing an offender shall take into consideration the following deemed aggravating circumstances:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years;

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

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[10] All three of these aggravating factors are present in this case. In R. v. A.N.C., [2006] O.J. No. 3144 (Ont.S.C.J.), Justice Nordheimer eloquently elaborated on the rationale behind these substantially aggravating factors:

…there is no group in our society that is more defenceless and therefore more deserving of protection than children; especially infants. They not only rely on society generally for protection, they rely particularly on their parents for such protection. When a parent fails in his or her duty to provide that protection it represents conduct that is especially reprehensible because it exposes completely innocent and extremely vulnerable members of our society to harm at the hands of the very people whom they ought to be able to trust the most. That fundamental principle is not only a self-evident truth, it is itself codified as one of the sentencing principles set out in Section 718.2 of the Criminal Code.

[11] While Mr. C.C. was not B.W.'s parent, he was her father's best friend, a beloved uncle and a person who was trusted to be her caregiver. Considering the significant role that he played in her life, the violation of trust was similar to that of a parent when he failed to protect her innocence.

B. The Principle of Parity

[12] In addition to the guiding sentencing principles, I must also address the principle of parity as set out in subsection 718.2(a) of the Criminal Code:

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances

[13] While this is laudable goal, each individual case is often so unique that it is difficult to achieve parity in sentencing. For example, none of the cases relied on by the Crown or Defence Counsel to support their opposing sentencing positions have facts that have a similar offender with similar offences in similar circumstances.

[14] Most of the cases submitted to me are either factually distinguishable and/or Counsel and the Crown advocated for lower sentence ranges. In addition, some of the older sentencing decisions are not helpful because of their reliance on outdated sentencing ranges to assist with rendering a fit sentence. There has been a recent and recognized upward trend in the applicable sentence ranges over the past decade. After reviewing a number of Ontario Court of Appeal decisions in R. v. B.L., [2012] O.J. No. 4582 (Ont.C.J.), Justice Brown summarized this trend at para. 60:

This upward trend in the sentencing of sexual offenders in a position of parental trust that commit major sexual offences against their children has most recently been considered in R. v. P.M., 2012 ONCA 162. In that case I suggest that Rosenberg, J.A. writing for the majority recognizes the need for the upward trend after a thorough analysis of the case law. He adopts and reasserts the principles set out in R. v. D.(D.) and recognizes in my view that there is an evolution of more punitive sentencing in major sexual assaults against children by a parental figure in part as a result of recognition by the courts of Parliamentary action in increasing sanctions in these types of cases.

[15] The Ontario Court of Appeal encouraged sentencing Judges to focus on the harm caused by the exploitation of vulnerable children and they have upheld longer sentences which have been meted out as a result. In R. v. Woodward, 2011 ONCA 610, Justice Moldaver directed that:

Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid to upper level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.

In so concluding, I wish to emphasize that 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.

[16] Some of the dated decisions filed by Counsel relied on the suggested sentencing range in the dated decision of the Court of Appeal in R. v. B.(J.), (1990) 36 O.A.C. 207 (Ont.C.A.). However, in R. v. D.M., 2012 ONCA 894, the Ontario Court of Appeal recognized that sentencing range was inadequate:

Over 20 years ago, in R. v. B.(J.) (1990), 36 O.A.C. 307, this court said that, except in unusual cases, where a person in a position of trust sexually abuses a child, and the abuse includes sexual intercourse, the range of sentence is three to five years in the penitentiary: para. 5. In this case, the appellant's abuse of E. did not include sexual intercourse.

However, several decisions of this court in the last decade demonstrate that the range outlined in R. v. B.(J.) is no longer appropriate. 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. The trial judge referred to one of our decisions, R. v. D.(D.) (2002), 58 O.R. (3d) 788, and cited Moldaver J.A.'s oft-quoted statement "that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.

[17] The Court of Appeal went on at paragraph 68 to indicate that sentences of five years or more have been upheld or imposed when one or more of the following aggravating circumstances have been present:

• Sexual intercourse (vaginal or anal)
• Oral sex
• Incest
• More than one victim
• Grooming of the victim
• Other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret
• A previous criminal record for sexual abuse

[18] While Counsel for Mr. C.C. is relying on the sentence of 4 years in the D.M. decision to support her position on sentencing, the Court of Appeal explicitly referenced the lack of any of these listed aggravating factors when they arrived at that sentence. In contrast, there are a number of substantially aggravating factors in this case.

[19] I don't find it instructive or helpful to go through each case that was filed and outline why it is either factually distinguishable or not persuasive. Ultimately, despite the unequivocal message from our Court of Appeal encouraging sentencing Judges to impose punitive sentences that emphasize denunciation and deterrence, sentences in child sexual abuse cases continue to vary significantly because of the myriad of facts unique to the individual circumstances of the offence and the offender.

[20] I am however, guided by the Ontario Court of Appeal's unwavering direction that the imposition of "substantial sentences" in child sexual abuse cases is essential to protect defenceless children in our community from these predators that lurk behind closed doors. In R. v. C.M.R., Justice Cronk emphatically stated that:

As well, this court has long emphasized that the imposition of substantial sentences is essential to meet the purposes of sentencing in order to protect defenceless children from mistreatment by their parents or other caregivers.

[21] Similarly, Justice Moldaver powerfully stated in the decision of R. v. D.D. that offenders who commit these crimes must pay a "heavy price":

At para. 33 to 35: On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, 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.

We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

And further at paragraph 45: The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him 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!

[22] Mr. C.C.'s sentence must be substantial and a heavy price to pay for the destructive impact of his crimes on the victims' lives and the devastation that he is solely responsible for causing to an innocent child.

[23] I have considered the proposed sentence ranges from the more recent decisions that were provided by both Counsel and the Crown. First, as noted the Ontario Court of Appeal has upheld sentences both higher and lower than 5 years of incarceration with facts that did not involve full intercourse. As the Court of Appeal observed in the decision of R. v. G.M., 2014 ONCA 602, at paragraph 9:

It is true that, in some cases, this court has upheld or imposed sentences of less than five years' imprisonment for conduct that might be regarded as more egregious than that of the appellant. In this case, while it was open to the sentencing judge to impose a lower sentence, she was not obliged to do so. Whether calculated from a starting point of three or five years' imprisonment, the sentence imposed reflects no error in principle and is neither outside the applicable range nor manifestly unfit for these serious crimes.

[24] Secondly, it should be emphasized that recognized sentencing ranges are to be considered as guidelines. These guidelines are not set in stone. A Court may choose to go higher or lower than a suggested sentencing range depending on the individual circumstances of a case. The Supreme Court recently stated in R. v. Suter, 2018 SCC 34, at para. 4:

Sentencing is a highly individualized process. A delicate balancing of the various sentencing principles and objectives is called for, in line with the overriding principle that a "sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1 of the Criminal Code). Accordingly, there will be cases where the particular circumstances of the offence and/or the offender call for a sentence that falls outside of the normal sentencing range. This is one such case.

[25] Like the decision in Suter, this is a case that cries out for a sentence at the higher end or beyond the normal range of sentencing because of the unique facts. The Supreme Court stated in the Lacasse case and repeated in R. v. Suter at para. 25 that:

A sentence that falls outside of a certain sentencing range is not necessarily unfit… Sentencing ranges are merely guidelines, and are just "one tool among others that are intended to aid trial judges in their work"

And further near the end of para. 27:

An offender's level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence that falls below this broad range. By the same token, the aggravating features in a particular case may warrant the imposition of a sentence that exceeds this broad range. As long as the sentence meets the sentencing principles and objectives codified in ss. 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.

[26] To arrive at a just sanction that appropriately reflects the predominant sentencing principles it is essential to consider the gravity of these offences and the level of moral blameworthiness of this particular offender.

C. Specific Issues in This Case

[27] Before I address the mitigating and aggravating factors individually, I will specifically address some of the submissions of the Crown and Counsel. There are some factors that have influenced my judgment that are not addressed by a review of the aggravating and mitigating factors. For example, I will address the following considerations:

• There are significantly mitigating factors that are absent in this case;
• A risk assessment report was filed on behalf of Mr. C.C. for this Court's consideration;
• Character letters were filed on behalf of Mr. C.C. and relied on by Counsel in her written submissions; and
• Counsel also made submissions that Mr. C.C.'s lack of a related record is mitigating.

i. Absence of Certain Mitigating Factors

[28] One of the most significantly mitigating factors in cases of child sexual abuse is a guilty plea and a true or sincere expression of remorse. A guilty plea avoids the trauma of a trial for a vulnerable witness, provides the victim with validation, assists with making reparations and gives the Court more hope for rehabilitation when an offender accepts responsibility and shows insight into the gravity of his conduct.

[29] In R. v. Shah, 2017 ONCA 872, the Ontario Court of Appeal explained that while the lack of a guilty plea or an expression of remorse must not be treated as aggravating factors, a Court can still consider these facts when assessing the need for specific deterrence and an Offender's potential for rehabilitation:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness.

[30] Mr. C.C. has not pled guilty, he has not expressed any remorse and he has not accepted responsibility for his crimes against a child. These mitigating factors are entirely absent. While Mr. C.C. cannot be penalized in any way for exercising his right to a trial and these are not aggravating factors, he is also not entitled to the benefit of the mitigated sentence ranges considered appropriate in other cases because of a plea. More importantly, Counsel has emphasized Mr. C.C.'s potential for rehabilitation to support the sentence range that she is advocating for her client. Unless Mr. C.C. addresses what precipitated his sexually deviant victimization of a vulnerable child in her place of safety, it is difficult to conceive of his potential for rehabilitation with respect to this conduct.

[31] Anticipating that specific deterrence and rehabilitation were factors for this Court to consider, Counsel filed a psychological risk assessment as an exhibit during the hearing to support her argument that her client has significant potential for rehabilitation. The risk assessment however, is devoid of any consideration of critical information that should have factored into the author's conclusions.

ii. Psychological Risk Assessment

[32] Mr. C.C. participated in a psychological risk assessment with an experienced professional to provide evidence to address this Court's concern about the danger he poses to other children and his potential for rehabilitation. The assessment commences with the following disclaimer; "I cannot vouch for the completeness or veracity of the supplied documentation or the information offered by Mr. C.C. Please note that if there is any additional information available of which I have not been made aware, my opinion, as expressed below could change."

[33] There is no indication in the report whether the assessor considered essential information, why he chose not to consider other available information or whether certain objective information would have impacted the assessment or, if not, why it would not impact the assessment. For these reasons and a number of other reasons that I will briefly outline, I found this report of limited assistance and unduly influenced by the subjective information provided by the offender.

[34] First, there was no reference in the report to the fact that Mr. C.C.'s prior conviction in 2016 was for threatening another child with whom he shared a relationship of trust. Similarly, there is no indication whether the author was aware that this Court found Mr. C.C. guilty of facts that included using the same child from that threatening conviction as a means to introduce sexual abuse to the victim in this case. Actually, there was no mention of the facts in this case at all or how that factored into the assessment. There was absolutely no consideration of how this Court's findings that Mr. C.C. used manipulation, coercion and violence to invasively and persistently sexually abuse a small child over a significant period of time influenced the risk assessment, if at all. There was also no indication about whether the examiner discussed the offences with Mr. C.C. or whether he accepted or denied responsibility for these acts which would seem to be critical "additional information" when assessing his potential for rehabilitation and the risk he poses to other children.

[35] Secondly, the results in the report were based on self-reporting instruments with a reluctant subject who was described as defensive and "non-disclosing" about his sexual interests. It is hard to imagine how the author could arrive at any conclusion as to what risk Mr. C.C. poses to children in the community when he has not disclosed relevant information about his sexual interests.

[36] Thirdly, if an unbiased professional purports to be able to assess the risk that a convicted sex offender poses in the community, it seems imperative to seek out objective sources of information like institutional records or tests that do not rely solely on self-reports. Instead, this report is based on the limited "file review, observations and psychometric testing". Although there is some reference to reliance on a "clinical interview" as one of the sources of information, the contents of that interview and what, if anything, was discussed about the offences was not included in the exhibit filed with the Court. Furthermore, despite the availability of more objective tests that are not based on self-reports, like phallometric testing, the author chose not to perform these tests because he determined that it was "not appropriate or necessary" despite the disturbing nature of the facts in this case.

[37] Finally, the tests themselves have limitations. The author notes that some of the self-reporting instruments used to assess the risk Mr. C.C. poses have only "moderate" predicative accuracy. Even with all of these limitations, some of the results were alarming. Nevertheless, there was no assessment of how those results relate to the index offences and his future risk. For example, his test "results were suggestive of depressive symptomology and a personality style that involves a degree of adventurousness and a tendency to be impulsive." Mr. C.C. completed an impulsive behaviour scale and his responses suggest that "he highly endorses sensation seeking and positive urgency. Such results are typical of an individual who may enjoy and pursue exciting activities, is open to trying new experiences that may or may not be dangerous and is likely to act impetuously when in a positive mood". Considering that Mr. C.C. opportunistically and brazenly sexually assaulted B.W. even when there were adults present in her home, his tendency to be impulsive is, at best, disconcerting in terms of his potential for reoffending and the harm that he is capable of causing to vulnerable members of the community when he is released from custody.

[38] In addition to being impulsive, Mr. C.C. participated in a psychopathy checklist and was identified as not meeting the criteria for psychopathy but he scored in the moderate range which is the parameter for "the average criminal sociopath and/or antisocial personality disordered individual". More importantly, in another test, he scored in the "moderate risk range for involvement in future violent behaviours." Finally, in terms of the multiphasic sex inventory which is an instrument based on self-reporting, the findings are limited by the fact that his profile "suggests that he was highly guarded in his responses, he was defensive and non-disclosing about his sexual interests and desires as well as his past interest and arousal to deviant sex."

[39] The examiner also employed the "static-2002R" to assist with predicting risk for sexual recidivism. As noted, this instrument has only been shown to have "moderate predictive accuracy" for sexual and violent recidivism. Mr. C.C.'s score suggested a "low/moderate risk for sexual recidivism". Despite Mr. C.C. expressed reluctance to share essential information about his sexual interests, he still scored as low to moderate risk to reoffend. Mr. C.C. also scored as a "moderate risk range" for "future involvement in the legal system". There is no indication anywhere in the report that Mr. C.C. has demonstrated any insight into the seriousness of his offending behaviour, rather, his results were indicative of "emotional immaturity as well as feelings of victimization" and that he lacks "emotional depth and insight".

[40] This report did not allay this Court's concerns with respect to the risks that Mr. C.C. poses to society when he is released from custody nor did it support Counsel's submissions that it demonstrated positive potential for rehabilitation in terms of sexual offences. In any event, while rehabilitation is a factor to consider in this sentencing, absent exceptional circumstances, the paramount principles of sentencing are denunciation and deterrence.

[41] If Mr. C.C. is committed to getting the help that he needs to address the nature of these offences, there should be programming available to him as an incarcerated sex offender. The main focus of this sentencing is on the harm that he caused to B.W. and her family, specifically deterring Mr. C.C. from preying on other children, deterring other sexual predators and denouncing this horrible breach of trust of a loving child in his care.

iii. Defence Submissions About the Absence of a Related Record

[42] Counsel submitted that Mr. C.C. lacked any related prior record for sexual offences against children. While that is correct, this was not Mr. C.C.'s first conviction for harming a child. Mr. C.C. pled guilty to threatening M.D., his former girlfriend's daughter. The Court when sentencing him for that offence noted that "he was in the position of in loco parentis as a parent is particularly egregious". The child was around the same age as B.W. when she was verbally abused by Mr. C.C. The facts involved threatening to urinate on her or having a dog urinate on her when he became frustrated with her conduct while he was watching her.

[43] It should be noted that, although Mr. C.C.'s criminal record suggests that he was sentenced to 334 days of PTC noted to be as the equivalent of 501 days for that threatening conviction and a breach of recognizance and he received a suspended sentence and probation for 2 years, it is clear from a review of the transcript that the Court intended the sentence of custody to be 15 days of jail on the threatening count and 60 days of jail consecutive on the breach of recognizance. The criminal record erroneously recorded his sentence of incarceration as being substantially longer.

[44] This Court can consider that Mr. C.C. breached a relationship of trust with respect to another child in his care when assessing his potential for rehabilitation and the risk that he poses to other children when he is released from custody. The Ontario Court of Appeal stated in R. v. B.M., 2008 ONCA 645, at paragraph 11 that:

A sentencing judge should not rely on prior uncharged acts as "aggravating factors" as the sentencing process should not impose punishment for untried and uncharged offences. However, prior abusive conduct may nonetheless be relevant at the sentencing stage to show the character and background of the offender as it relates to the principles of sentencing: see R. v. Edwards (2001), 155 C.C.C. (3d) 473 (Ont. C.A.) at para. 63; R. v. Roberts (2006), 2006 ABCA 113, 208 C.C.C. (3d) 454 (Alta. C.A.) at para. 28. The background and character of the offender may be considered, for example, in order to assess the need for individual deterrence, rehabilitation, or the protection of the public. Such information is essential for crafting a sentence suitable for a particular offender.

[45] Mr. C.C. has been convicted of threatening one child and sexually abusing another small child which is relevant to the background and character of this offender. In addition, what is particularly egregious in this case are the circumstances surrounding how Mr. C.C. used M.D. (the child with whom he was in a position of a step-parent and he was later convicted of threatening) to introduce this sexual abuse to B.W. as a "game". I will address this fact when I discuss the aggravating factors on sentencing.

[46] To be clear, Mr. C.C. has not been convicted of sexually abusing M.D. and I cannot penalize him for the sexual acts that B.W. described that were committed with respect to M.D. in B.W.'s presence. It is nevertheless a substantially aggravating factor that Mr. C.C. used the naivety of one child with whom he was in a relationship of trust as a tool to introduce sexual abuse to another child as a benign "game".

[47] In addition, the crimes that Mr. C.C. was convicted of committing against B.W. were not isolated occurrences. As the Court of Appeal noted in an endorsement in R. v. R.T.M., 2008 ONCA 47, "the respondent was a first offender because his historical criminal conduct had not been discovered and punished before he was charged with the first set of offences. He is not a person who committed an isolated criminal act that is entitled to greater leniency." Mr. C.C. abused B.W. innumerable times over a significant period of time.

[48] In terms of other considerations that reflect on Mr. C.C.'s background and character, Counsel presented four character letters to highlight that he has support in the community and other people believe him to be a person of good character despite these convictions.

iv. Character References

[49] Four of Mr. C.C.'s friends provided character references attesting to what a good man he is and expressing the support that he enjoys from these friends. These character references have very limited weight as a mitigating fact. As succinctly stated by the Supreme Court of Canada when addressing the issue of good character evidence during a trial about sexual abuse:

A trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality. As a matter of weight, the trial judge is entitled to find that the propensity value of character evidence as to morality is diminished in such cases.

[50] The Ontario Court of Appeal also emphasized in R. v. B.S.R., at para. 76 that:

The trial judge's observation that sexual misconduct occurs in private and, hence, that evidence of the good character of an accused charged with a sexual offence may have limited value, was accurate. It does not indicate that she failed to consider the evidence of the appellant's character when assessing his credibility and the likelihood that he committed the offences charged. Rather, the comment in issue indicates that the trial judge tempered the mitigating value of the good character evidence, as she was entitled to do, in view of the fact that sexual and domestic violence offences often take place in private, in the absence of any witnesses. It was for the trial judge to determine what weight to attach to the good character evidence, if any.

[51] More recently in R. v. K.M., 2017 ONSC 2690, the Court reiterated that:

Sexual offences are, by their very nature, generally perpetrated in private. It is largely for that reason that many cases of sexual assault are characterized as a "he said, she said" type of case. The Supreme Court of Canada has made it quite clear that the good community reputation of an accused has little probative value in the overall assessment of an appropriate sentence in a case of sexual assault.

[52] Mr. C.C. has been convicted of coercing, sexually abusing and assaulting a child for nearly a year in the safety of her own home. Even the adults around her did not realize the invasive and persistent abuse that she was being subjected to at the hands of her beloved uncle. They also believed that Mr. C.C. was a good person and like a member of their family so they trusted him with their child. Now, however, they see him as a convicted predator of a small child. He preyed on B.W. when no one else was there to see what he was doing so no one could protect her from him. The opinions of Mr. C.C.'s friends that he is "kind and compassionate" or his previous employer who has not "been in touch recently" or naïve expressions that a friend believes that these offences are "100%" "out of character" are of little assistance or mitigation especially in light of the predominant sentencing considerations.

D. Balancing the Mitigating and Aggravating Factors

i. Mitigating Factors

[53] There are few mitigating factors in this case. This is a sentencing after trial and the Offender has not expressed any remorse or insight into his offending behaviour.

[54] Mr. C.C. is now 41 years old. He enjoys the support of his biological brother and his two friends who are his sureties. He has held sporadic employment over the years and plans to be gainfully employed once he is released from custody.

[55] The Psychological Risk Assessment outlined Mr. C.C.'s life history which has been particularly challenging. As a young child, Mr. C.C. was neglected, abused and eventually abandoned. He was adopted and moved to Canada from Brazil. He struggled with some adjustment issues when he came to Canada. Mr. C.C. reported that he was sexually abused by his adoptive brother and sister. His relationship with his adoptive family broke down. He lived in group homes and then he reported that he was on his own at a young age.

[56] Despite his difficult upbringing, Mr. C.C. has had very supportive relationships in his life commencing as a young adult. According to the character letters filed by the defence, Ms. S.J. has known Mr. C.C. for twenty years. Mr. C.C. was one of her son's best friends. Ms. S.J. is one of his sureties. Similarly, Mr. P.G. indicated that he has known Mr. C.C. since "he was a teenager", they attended the "same social clubs" and "golfed together". In addition, I note that Mr. C.C. was best friends with B.W.'s father as a teenager. J.W. testified that he has known Mr. C.C. since he was 18 years old and that Mr. C.C. was welcomed into his home and resided with his mother. Over the years, Mr. C.C. has lived with J.W. on and off and it was this trusting friendship that Mr. C.C. took advantage of and destroyed by abusing J.W.'s daughter.

ii. Aggravating Factors

Criminal Antecedents

[57] Mr. C.C. has a criminal record with multiple convictions from 1993 as a youth to 1995 when he became an adult. His youth court record involved a number of break and enter convictions for which he received custodial sentences, unlawfully at large and a theft under. His adult convictions date from 1995 to 1998 for property offences for which he received short periods of custody, a possession of narcotics and 3 different convictions for breaches of court orders. There is an 18 year gap in his criminal record until 2016 when he was convicted of threatening M.D. and a breach of recognizance.

Breach of Trust of the Family and a Young Child

[58] After Mr. C.C.'s best friend, J.W. became involved in a relationship with J.A. and the couple had B.W., Mr. C.C. ingratiated himself within their family, gained the love and trust of this small child and posed as a seemingly benevolent uncle who was happy to assist with caring for this child. Despite being involved in B.W.'s life since she was a baby and knowing that she loved and trusted him, he began to sexually abuse her at the young age of 8 years old.

Grooming and Manner in Which the Sexual Abuse Commenced

[59] B.W. described how much she loved Mr. C.C. at the outset of her evidence. She continued to express that same love for him in her victim impact statement. She explained to this Court how she has known him her whole life. She described their relationship as "amazing", they "hung out all the time" and they often did things together. Mr. C.C. manipulated B.W.'s desire to spend time with him and her love for him by introducing the sexual abuse to her as a "game".

[60] The sexual abuse of B.W. commenced at her eighth birthday party at her father's home when other people were present in her home. It was particularly brazen and seemingly impulsive. He preyed on B.W. while she was with her cousin, M.D., who was visiting for her party. As noted earlier, I am cognizant that I cannot sentence Mr. C.C. for sexually abusing M.D. at that same party. As the Supreme Court stated in R. v. Suter, supra at para 35 "as a general rule, courts cannot sentence an offender in respect of a crime for which he or she has not been convicted… To do so would run counter to the presumption of innocence".

[61] I can however, consider that it is a substantially aggravating factor that, during the first occurrence of sexual abuse, Mr. C.C. used M.D., B.W.'s cousin and friend, as means to introduce this sexual abuse to B.W. as a harmless "game". M.D. was the same age as B.W. Mr. C.C. used another small child with whom he shared a relationship of trust as the proverbial Trojan horse, to normalize this deviant sexual abuse, by calling it the "game" that M.D. played with him too. He told two little girls that the game was to see who would suck on his penis and who could go the fastest. He exposed his penis and each little girl performed fellatio on him.

[62] Following that incident, Mr. C.C. continued to play the "game" with B.W. when he would force her to perform oral sex on him. She recalled crying and yelling at him to stop. On one occasion, Mr. C.C. showed B.W. pornography of adults engaged in sexual acts. He tried to make her watch it even though she protested and she eventually ran away from him.

Coercion and Threats

[63] Mr. C.C. preyed on B.W. when she was particularly vulnerable. Her parents separated when she was around the age of 5 and she spent time in both of her parents' homes depending on their schedules. In addition to this small child trying to cope with the separation of her parents, she was struggling with the loss of both of her grandmothers in 2007 and 2008.

[64] It would have been evident to Mr. C.C. that B.W. loved her father and wanted to be able to see him. He exploited her unique vulnerabilities and coerced her into remaining silent about this abuse. He threatened B.W. that she would be blamed if she told anyone and she would be taken away from her father. During the trial, B.W. described how these threats were "burned into her head" and she sincerely believed that people would look at her differently if she disclosed the abuse.

Invasiveness and Persistence of the Sexual Abuse in a Place of Safety

[65] Mr. C.C. opportunistically sexually abused B.W. whenever they were alone in her dad's house whether or not her father was also at home. He robbed B.W. of any sense of safety in her home and the enjoyment of going to see her father. Her mother testified that she began to experience stomach aches before going to her dad's home for access visits. As Justice Warkentin poignantly observed:

Children's homes should represent the places where they feel safest, not where they have to be ever vigilant against unwanted sexual advances by a person they should be able to trust.

R. v. C.H., [2012] O.J. No. 2534 (Ont.S.C.J.) at para. 56

[66] This sexual abuse of an 8 year old child in her place of safety persisted for about a year and it occurred as often as once or twice a week. These repetitive acts of sexual violence included forcing her to remove her clothing or removing them himself if she didn't comply, touching her vagina, digitally penetrating her and making her perform fellatio on him. As the abuse progressed, B.W. began to resist playing "the game" and her resistance culminated in a particularly violent episode. B.W. was watching a movie with Mr. C.C. and he instructed her to take off her clothes. When she refused, he became physically aggressive and restrained her. She was crying, yelling and she fought back but he covered her mouth and continued to engage in unwanted sexual contact. When emotional coercion was not sufficient, Mr. C.C. resorted to violently restraining a child.

[67] After this last violent incident, the sexual abuse stopped. B.W. believed that Mr. C.C. knew she was at the point where she was going to tell on him if the abuse continued. Mr. C.C. still lived in her dad's house for a short period of time afterwards and he would still touch her shoulder or rub her hair but there was no further sexual contact.

Ongoing Attempted Manipulation: Contacting B.W. After His Release From Custody

[68] Mr. C.C. had no significant contact with B.W. for years after the abuse ended. She eventually moved away to live with her mother and her mother's new husband. While living with her mother, B.W. was made aware that M.D. had come forward with allegations against Mr. C.C. and B.W. was asked by her father if Mr. C.C. had harmed her. B.W. was not ready to disclose her abuse so she denied that Mr. C.C. had sexually abused her. Mr. C.C. was incarcerated for almost a year as a result of charges involving his alleged abuse of M.D. Within days of being released from custody after most of the charges involving M.D. were withdrawn, Mr. C.C. returned to J.W.'s home to collect some of his belongings. Once again, when he returned to J.W.'s home, he betrayed his friendship to J.W. and used J.W.'s phone to call B.W.

[69] Mr. C.C. told B.W. that he had been released from jail, the charges against him had been dropped and that he was back living at her dad's home. The obvious inference is that this phone call was intended to be a tacit, albeit not subtle, reminder to B.W. not to tell anyone what he did to her because it would be futile. He called the victim of his invasive sexual abuse to make it clear that when someone else spoke out against him, he was not held fully accountable. Worse yet, her abuser was once again back in her father's home around her younger siblings.

[70] Rather than securing B.W.'s continued silence, this phone call from Mr. C.C. had such an impact on B.W. that she felt compelled to come forward. She felt a huge knot in her stomach, she was worried about the safety of her siblings and she was very upset by the phone call.

Impact on the Victims

[71] Since the predominant consideration in child sexual abuse sentencing cases is the harm done to the victims by the offender's conduct it is important to carefully review the impact of Mr. C.C.'s crimes on the victims. The devastating impact of Mr. C.C.'s crimes on B.W. and her parents is immeasurable. Every aspect of B.W.'s young life has been impacted by these crimes for years. As she grew older, her mother testified during the trial that she began to exhibit various psychological issues like anxiety, fearfulness and depression. B.W. struggled in school, her interpersonal relationships with her family were negatively impacted and she had behavioural issues following the disclosure of this abuse.

[72] B.W.'s victim impact statement was particularly poignant and powerfully written. Despite the abuse that she suffered at the hands of Mr. C.C., she did not present as vitriolic or malicious. She eloquently outlined the impact these crimes have had on her and how having to keep this secret for so many years ate away at her self-worth. She wrote:

• "I was robbed of my privacy by a man I trusted my entire life";
• "When I reached the age of 12 I started to realize that I was very sad all the time. I didn't enjoy going out with friends as much as kids my age normally do. I always wanted to lay in bed and keep to myself";
• "I was always down and distant with almost every family member and my own friends" and "because of you, I have trouble hugging my step-father and my grandfather";
• "At the age of 14 my anxiety had gotten worse." She required medication to treat her anxiety;
• She described nightmares of reliving the abuse which caused her to miss school and feeling sick to her stomach;
• She wrote: "it's not fair that I have almost failed some classes due to doctors' appointments, hospital visits and staying home ill because of anxiety you caused. It isn't fair that I used to stay up all night hurting myself and think about ending my life";
• She is struggling with a variety of emotions including ongoing fear of Mr. C.C. and concern that people will hate her or blame her for what happened to her. After she finally disclosed this abuse, she felt no relief. Rather, she feels deep shame, "I fear being judged by the people who know. I feel dirty, hopeless and alone";
• In a particularly telling sentence, she wrote, "I have been in hell as a child and I still am. I can't escape this terrible thing. I feel like I have nothing…";
• As a result of B.W.'s victimization at the hands of a trusted best friend, she wrote "I will never be able to fathom into words how badly my family is broken."

[73] For more than 8 years now, B.W. has been suffering emotionally and psychologically and her pain seems never-ending to her. Mr. C.C. crimes have caused her to harm herself and contemplate suicide.

[74] In addition to B.W.'s statement, both her mother and father filed victim impact statements. B.W.'s mother also described how she watched her daughter change over the years from a "happy, chatty vibrant child" into a "quiet, angry and fearful one." She related that Mr. C.C. had "robbed" her daughter of the "ability to have normal healthy loving relationships" and how he destroyed her "self-worth". She wrote, "you made her hate herself so much she didn't want to live".

[75] B.W.'s parents are both victims of a significant breach of trust. It is obvious they are struggling with a deep sense of betrayal and feelings of guilt for the harm caused to their daughter by Mr. C.C. When B.W. disclosed her abuse to her mother, J.A. described how "the words she spoke, they will forever haunt me. In a matter of minutes, my world was turned upside down and I felt beyond hopeless that my baby had to struggle alone for so many years". She described how this abuse has made her daughter feel "worthless". J.A. explained that B.W. is "my everything" and she feels as though Mr. C.C. "stole everything from me". She related years of witnessing her daughter struggle and not knowing why she was in so much anguish. She feels as though Mr. C.C. will never understand how much he has "destroyed our family". J.A. is also suffering as a result of these offences. She described how "my anxiety and panic has gotten worse and now I struggle with constant nightmares. I live with this hollow, sick, empty feeling in the pit of my stomach every single day of my life. Because of you, I'm forced to live with this guilt of not being there to protect my daughter."

[76] Clearly, the lasting and devastating impact of these crimes on the victims is a substantially aggravating factor. Furthermore, there has been no attempt to take any steps towards reparations for the harm that Mr. C.C. is solely responsible for causing to these innocent victims.

E. Pre-Trial Custody and Consideration of Time Spent on Bail

[77] Before rendering the final sentence, Counsel urged the Court to consider the time that Mr. C.C. spent in pre-trial custody and also the substantial period of time that he has been on release conditions. Counsel submitted that as a result of the direction of the Ontario Court of Appeal in the decision of R. v. Downes, Mr. C.C. should be given credit for the time that he has complied with onerous bail conditions and that credit should be subtracted from the period of incarceration.

[78] Mr. C.C. first appeared in bail court on July 4th, 2016 and he was released on bail on August 9th, 2016. As a result, he has 37 days of pre-trial custody. That period of custody will be credited as having been served on a 1 for 1.5 basis and attributed as a period of 56 days.

[79] In terms of what, if any credit, Mr. C.C. should receive for the bail conditions he has been on since the date of his release, I am guided by the decision of R. v. Daley, 2016 ONSC 3513, in which Justice Durno provided this very helpful summary of the law on this issue:

From Rosenberg J.A.'s comments in Downes and subsequent Court of Appeal judgments, and trial judgments, the following summary of the law can be derived:

1. Time spent under stringent bail conditions, especially house arrest, is a relevant mitigating factor and must be taken into account as a relevant mitigating circumstance. Downes, at paras. 33 and 37.

2. While a trial judge is not required to give any credit for restrictive bail terms (R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81 at paras. 32 and 36) where no credit is given, the trial judge should explain why that was so: Downes, at para. 33; R. v. Siconolfi, [2015] O.J. No. 6650 (C.A.) However, the failure to do so, is not automatically an error in principle. R. v. Dragos, 2012 ONCA 538.

3. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence: Downes, at para. 29.

4. House arrest is a form of punishment, albeit of a different character than actual incarceration, yet he or she receives no credit towards parole eligibility for time spent on house arrest: Downes, at para. 29.

5. The impact of bail conditions cannot be assumed: Downes, at para. 28. However, there will be some restrictions from which inferences can be drawn and the impact is obvious, as was the case in Downes: R. v. Brown, [2015] O.J. No. 5425 (S.C.J.) at para. 70.

6. If an offender asks that pre-trial restrictive bail terms be considered, the offender should provide the judge with information as to the impact of the conditions. The onus is on the offender to establish those facts on a balance of probabilities pursuant to s. 724(3) of the Criminal Code: Downes, at para. 37. The offender must show the restrictions prejudiced or imposed a hardship on him or her: R. v. Ijam, 2007 ONCA 597, 87 O.R. (3d) 81 (C.A.) at para. 27.

7. There is no formula that judges are required to apply: Downes, at para. 37. It is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms may impinge very little on the offender's liberty. Some may be allowed to work as usual, take care of their family obligations, and generally see little impact on their pre-bail way of life. For others, house arrest may be very difficult, with the accused essentially confined to a very small space, cut off from family and friends and unable to work: Downes, at para. 34. As is the case with any potential mitigating circumstances, there will be variations in its potential impact on the sentence, and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest: Downes, at para. 33.

8. Sentencing judges should adopt a flexible approach with the credit and manner in which it is taken into account as a mitigating factor, a matter for the judge: Downes, at para. 36. R. v. Dragos, 2012 ONCA 538.

[80] Mr. C.C. has been on fairly restrictive terms of bail since the date of his release however, the original terms of his release were flexible enough to allow him to be outside of his residence for the following reasons:

• For medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling)
• For purposes of travelling directly to, from and while at court appearances or meeting with your lawyer or for the purposes of complying with this or any other court order
• For the purposes of travelling directly to, from and while at work
• Unless you are in the presence of P.G. and A.M.
• You may be unaccompanied at a job site

[81] Mr. C.C. was able to come and go from his residence as long as he had a surety with him or if he was going to Court or meeting with his lawyer. He was able to go to work. In fact, one of Mr. C.C.'s sureties was his employer, Mr. A.M.. The terms of his recognizance that allowed him to go to, from and attend at his place of work remained in good standing for most of the time that he was on bail until April 23rd of 2018. The conditions of his bail only changed because his surety, Mr. A.M., applied for relief from his obligations as a surety. There is absolutely no indication that the terms of Mr. C.C.'s bail prevented him from working during the period of time from July of 2016 to April of 2018. Quite the contrary, it appears that Mr. C.C. was employed while on bail but his employment was terminated and, as a result, that surety decided not to act as the surety anymore.

[82] Counsel also suggested that the terms of bail have somehow impacted Mr. C.C.'s relationship with his adult son. During the risk assessment, Mr. C.C. reported having a 21 year old son "with whom he has had no contact with for two years". There were absolutely no terms on Mr. C.C.'s bail that prohibited him from communicating with his son, having his son over to visit him or from seeing his son outside his place of residence while in the company of one of his sureties. I do not accept Counsel's submission that the terms of bail adversely impacted his ability to communicate with his son.

[83] Although Mr. C.C. has been on restrictive bail conditions, it appears that he has been able to enjoy leisure activities while outside of his home. The risk assessment report indicates that "at the time of the current legal odyssey, Mr. C.C. reported participating in golf with his friends." Considering he was permitted to be outside his residence in the presence of his sureties and one of those sureties wrote in a character letter that he enjoys attending the same "social clubs" and "playing golf with him", it appears that Mr. C.C.'s house arrest has not been as onerous as suggested by Counsel.

[84] Counsel also submitted that the Crown was "never at any time willing to vary the house arrest conditions". However, in response to a query from the Court, Counsel agreed that she had never made any requests to vary the conditions of Mr. C.C.'s bail after the new conditions were negotiated to secure his continued release in the community. Counsel did not file any letters with the Court setting out any previous requests for bail variations. Moreover, this trial commenced in front of me in the fall of 2017. Subsection 523(2)(a) of the Criminal Code provides that the Judge before whom an accused is being tried may, "at any time", on cause being shown vacate any order and make any other order provided for in the bail provision until the end of the trial that the judge "considers to be warranted". As the Trial Judge assigned to this case for almost a year at this point, I was never asked to address any concerns with the terms of Mr. C.C.'s bail.

[85] In addition, Mr. C.C. was found guilty on February 28th, 2018. The lengthy delays since that time have been mostly attributable to defence requests to secure the benefit of a psychological report and due to counsel's unavailability. I have considered that the extended delays between February and September were to accommodate Counsel's requests. It is also notable that Mr. C.C.'s bail conditions only became more restrictive after his surety revoked and after he was convicted of sexually assaulting a child. He was no longer entitled to the presumption of innocence when the Crown crafted the more restrictive bail conditions that prohibited him from working after April 28th, 2018.

[86] Finally, Counsel did not seek to call any evidence or provide any exhibits to support the submissions that Mr. C.C. has been prejudiced or impacted by the terms of his bail other than relying on the hardship that can be inferred from the circumstances. Nevertheless, I accept that Mr. C.C. has suffered some hardships as a result of the terms of his bail and his ability to form interpersonal relationships outside his circle of friends has been limited. I also find that his ability to comply with the terms of bail for over two years to be a mitigating factor. While I will not attempt a mathematical formulation as to how much credit he is being given for these considerations, I note that I would have sentenced him to upper end of the range proposed by the Crown had it not been for these mitigating factors.

F. Section 161 Order

[87] The Crown is seeking a 161 order for 20 years prohibiting Mr. C.C. from attending places frequented by children, being within a certain radius of places frequented by the victim, maintaining employment or volunteering in a position of trust with children, having contact with children or using the internet. Counsel is opposed to this order.

[88] First, neither Crown nor Counsel addressed in their written submissions that these offences took place in 2009 and 2010. At that time, section 161(1) of the Criminal Code read as follows:

161. (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender 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 years; or

(c) using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.

[89] The Criminal Code was amended in 2012 to add the additional possible prohibitions of not having contact with children under the age of 16 or using the internet. In R. v. K.R.J., 2016 SCC 31, the majority of the Supreme Court of Canada specifically found at paragraphs 96 and 97 that the additional term of not having contact with children under the age of 16 could not be applied retrospectively:

The retrospective operation of s. 161(1)(c) therefore cannot be justified under s. 1. As a result, s. 161(1)(c) applies only prospectively - that is, only to offenders who committed their offences after the 2012 amendments came into force (s. 52(1), Constitution Act, 1982).

I note that there are other prohibition orders under the Criminal Code that may assist the Crown to some extent in filling the gap left by the lack of any retrospective application of s. 161(1)(c), such as those that can be imposed pursuant to ss. 810, 810.1, and 810.2. However, I make no further comment on those provisions since they were not meaningfully raised or argued by any of the parties before us.

And further at paragraphs 115 and 116:

I find that the retrospective operation of s. 161(1)(c) of the Criminal Code limits the right protected by s. 11(i) of the Charter and that this limit is not justified under s. 1. Accordingly, I would allow the appeal with respect to s. 161(1)(c). As a result, the provision does not apply retrospectively to offenders who committed their offences prior to the coming into force of the 2012 amendments.

I also find that the retrospective operation of s. 161(1)(d) of the Criminal Code limits the s. 11(i) right. However, I conclude that this is a reasonable constitutional compromise under s. 1. I would therefore dismiss the appeal with respect to s. 161(1)(d).

[90] As a result of this binding decision, I do not have the authority to order Mr. C.C. to comply with the current wording of subsection 161(1)(c) that would prohibit him from communicating with children under the age of 16 no matter how important I may feel it is to protect young children in the community when Mr. C.C. is released from custody. The Supreme Court did not address whether or not the new subsection 161(1)(a.1) has retrospective application. Out of an abundance of caution, considering the circumstances of this case and the need to protect B.W. from Mr. C.C. in the future, I will address that term using my jurisdiction to order a common law peace bond.

[91] In terms of whether or not I should exercise my discretion and order the 161 terms that are available to this Court, the Ontario Court of Appeal recently provided the following guidance in R. v. Schulz, 2018 ONCA 598:

The overriding protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender's specific circumstances: K.R.J., at paras. 48-49.

[92] Mr. C.C. has been convicted of predatory and deviant sexual abuse of a vulnerable 8 year old child. He was also convicted of threatening another small child in his care. A risk assessment that was seemingly favourably skewed in Mr. C.C.'s favour assessed him as impulsive, lacking insight, a moderate risk for future legal involvement and a low to moderate risk for committing future sexual offences. Despite having been convicted more than 6 months ago, he has not sought any treatment for sexually abusing a child and there is no indication that he has any insight into what motivated his conduct. Finally, Counsel submitted that because Mr. C.C. has not been diagnosed as a pedophile that should influence whether this Court makes a 161 order. First, I am not persuaded by the conclusions reached in the risk assessment due to the limitations that I noted earlier. Secondly, Justice Moldaver aptly observed in R. v. D.D., supra at paragraph 40:

If the appellant is not a paedophile and he does not suffer from some other psycho-sexual disorder that could account for his reprehensible behaviour, then arguably his degree of moral culpability rises significantly. Surely, that cannot translate into a mitigating factor weighing in his favour.

And further quoting from R. v. Stuckless:

Society is entitled to protection no less from paedophiles than those who sexually abuse children without this tendency.

[93] To the extent that the Court in R. v. M.S., [2017] O.J. No. 4263 (Ont.S.C.), relied on the absence of evidence that that the accused was a paedophile when deciding not to order all of the terms requested by the Crown pursuant to section 161, I respectfully decline to follow that part of the judgment. Whether or not Mr. C.C. is a paedophile, he is a convicted sexual predator. Vulnerable children in the community are entitled to be protected from him and others like him whether or not they have been diagnosed as paedophiles. There is more than ample evidence to conclude that Mr. C.C. poses an ongoing risk to the safety of children especially if he persists with not seeking treatment for his offending behaviour. The terms of a 161 order are a reasonable attempt to minimize that risk.

G. Conclusion

[94] After carefully considering all of the applicable principles of sentencing, the guiding case law and balancing the aggravating and mitigating factors including the lengthy period of time that Mr. C.C. complied with the terms of his bail, I have determined that the appropriate sentence that is concurrent on both counts is as follows:

Sentence:

• In addition to the 37 days of pre-trial custody to be credited at 1 for 1.5 as 56 days of custody, there will be a further period of incarceration of 6 years;

• During his period of incarceration, he will be bound by an Order pursuant to section 743.21 prohibiting him from contacting while in custody: B.W., J.A. or J.W. or any member of their immediate families.

• Pursuant to section 161, there will be an Order for a period of ten years following his release from custody that he will 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, schoolground, playground or community centre except while in the direct and continuous company of an adult over the age of 21 years old;

  (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 years;

  (d) using the Internet or other digital network for the purposes of communicating with any female person under the age of 16 years old who is not his biological child.

• Following his release from custody, he will be bound by a common law peace bond in the amount of $500 without deposit or surety for a period of ten years with the following terms and conditions:

  • Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with B.W., J.A. or J.W. or any member of their immediate families;

  • Do not be within 250 meters of any place where you know B.W., J.A. or J.W. to live, work, go to school, frequent or any place that you know the person to be;

  • Do not post any information about, depictions of, recordings of or photographs of B.W., J.A. or J.W. on any social media site.

• Pursuant to section 490.013(2.1) he will comply with a S.O.I.R.A. order for life;

• These are primary designated offences for D.N.A. on each count;

• Pursuant to section 109(1)(a) he is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for ten years; and

• There will be Victim Fine Surcharges of $200 on each count with 4 days in default of non-payment and 8 years to pay.

Released: September 5th, 2018

Signed: Justice B.M. Green