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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2018-12-12

Court File No.: Gore Bay 17-007, 17-122, 17-251

Between:

Her Majesty the Queen

— AND —

S.C.S.

Before: Justice V. Christie

Heard on: November 21, 2018

Reasons for Judgment released on: December 12, 2018

Counsel:

• D. Beaton, counsel for the Crown
• J. Weppler, counsel for the accused S.C.S.

Reasons for Sentence

CHRISTIE J.:

Introduction

[1] On August 14, 2018, S.C.S. pleaded guilty to four separate offences:

1. Between the 1st of January 2015 and the 1st of January 2016 at the Township of Carnarvon did for a sexual purpose touch R.M., a person under the age of sixteen years directly with a part of his body, to wit his penis, contrary to section 151 of the Criminal Code;

2. On or about the 18th day of March 2017 at the Township of Carnarvon in the said region did being at large on his recognizance given to a Justice and being bound to comply with a condition of that recognizance directed by the said Justice fail without lawful excuse to comply with that condition to wit not contact or communicate in any way either (in) directly, by any physical, electronic or other means with R.M. and S.M. and not be within 200 metres of them contrary to section 145(3) of the Criminal Code;

3. Between the 13th day of January in the year 2017 and the 18th day of March in the year 2017 at the Township of Carnarvon in the said region, did being at large on his recognizance given to a Justice and being bound to comply with a condition of that recognizance directed by the said Justice fail without lawful excuse to comply with that condition to wit not contact or communicate in any way either (in) directly, by any physical, electronic or other means with S.M. and not be within 200 metres of her contrary to section 145(3) of the Criminal Code;

4. On or about the 8th day of June, 2017 at the Township of Billings in the said region did being at large on his recognizance entered into before a Justice and being bound to comply with a condition of that recognizance directed by the said Justice fail without lawful excuse to comply with that condition to wit not to contact or communicate in any way either (in) directly, by any physical, electronic or other means with R.M. contrary to section 145(3) of the Criminal Code.

[2] The Crown elected to proceed by indictment on the sexual interference charge, and elected to proceed summarily on the breach charges.

[3] Some facts were agreed to by S.C.S. Other facts, such as whether or not S.C.S. played a parental role in the life of R.M., was the subject of a Gardiner hearing, for which this court released oral reasons on October 4, 2018.

Facts

[4] S.C.S. moved into the home of St.M. in the late fall or early winter of 2014. He was 27 years old. St.M. was friends with S.C.S.'s mother. Also living in the home at the time was St.M.'s daughter, R.M., who was 14 years old. R.M. knew S.C.S. before he moved in as she was friends with his sister, who was a couple of years older than her. R.M. had spent lots of time at his parent's residence. The nature of the relationship between R.M. and S.C.S. prior to him moving in was just friends and they would do such things as go for car rides, go to the store, or go get a movie.

[5] After S.C.S. moved into the residence of St.M. and R.M. in late 2014, R.M. and S.C.S. developed a closer relationship. R.M. testified that she had a "crush" on S.C.S. R.M. stated "I thought I was in love with [S.C.S.]" and she communicated that to him. S.C.S. told her that he loved her too. R.M. asked S.C.S. if they were in a relationship and he said "yes". S.C.S. knew how old R.M. was at the time and she never portrayed herself to be older. R.M. stated that S.C.S. initiated the relationship between the two of them. The first time they had sexual intercourse was in January 2015 at her mother's house on the couch, while her mother was in the bathroom. R.M. was still 14 years old and S.C.S. was 27 years old. After this time, R.M. and S.C.S. spent a lot of time together. Prior to the sexual intercourse, they did not talk about sexual topics, but after the first sexual intercourse, there was sexual activity, including intercourse, on a regular basis and they would also talk about things of a sexual nature.

[6] The relationship between R.M. and her mother, St.M., had been volatile for quite some time prior to S.C.S. moving into their home. The relationship continued to become more strained in 2014 and 2015, and they fought a lot. R.M. began not to trust her mother at all, however, she trusted S.C.S. This started after R.M. and S.C.S. first had sexual intercourse.

[7] In April 2015, R.M. suspected that she was pregnant and in May she informed S.C.S. of her suspicions. S.C.S. told R.M. that it was probably a yeast infection and they did not talk about it further. They continued to have sexual intercourse. In October 2015, S.C.S. took R.M. to a clinic in Sudbury at which time she found out that she was, in fact, pregnant. Subsequently, she had an ultrasound in Espanola and found out that she was seven months pregnant. On the way to the ultrasound appointment, S.C.S. stated that he wanted R.M. to get an abortion if it was early enough. R.M.'s mother did not know about these appointments and the arrangements were made by S.C.S., who also arranged for R.M. to miss school. After the ultrasound appointment, R.M. and S.C.S. returned home and decided that they were going to keep the pregnancy a secret. The topic of an abortion was not raised again.

[8] R.M. almost completely stopped talking to her family and became closer to S.C.S. At that time, she was not close to her mother and they were fighting a lot. S.C.S. always took the side of R.M. in these disputes and said to R.M. often that her mother was "crazy". R.M. believed that her mother was unstable and did not feel that she could trust her. In fact, she believed that her mother was possibly bi-polar or schizophrenic. When asked who it was that she trusted the most, she said S.C.S. R.M. stated that he was always there for her, always said she could talk to him, and made her feel safe. This pretty much destroyed any relationship that remained with her mother.

[9] When St.M. found out that her daughter, R.M., was pregnant, she was furious. She asked R.M. who the father was and at first R.M. tried to tell her it was someone else but St.M. did not believe her. R.M. told her mother the truth, that the father was S.C.S.

[10] From November 2014 until the baby was born, R.M. was working and going to school. Either S.C.S. or her boss would drive her to work, depending on whether or not S.C.S. was also working on any particular day. S.C.S. would pick up R.M. from work every night. S.C.S. would sometimes drive R.M. to school, but at other times she would take the bus.

[11] The baby girl, S.M. was born in January 2016. At that time, R.M. was 15 years old. The baby was born in Sudbury and S.C.S and St.M. were there with R.M.

[12] After they returned home with the baby, St.M. told her daughter that she and S.C.S. would be known as the grandparents to the baby and if R.M. said anything about S.C.S. being the father, she would put S.C.S. in jail and would call the Children's Aid Society and the baby would be put up for adoption. This terrified R.M. so she did what her mother wanted.

[13] A short time after the baby was born in early 2016, S.C.S. was arrested and charged with assaulting St.M., an incident which occurred in March 2015. He was released on a promise to appear and an undertaking with conditions that he abstain from communicating directly or indirectly with St.M. or from going to her place of residence, employment or place of education. R.M. continued to have contact with S.C.S. through text messages. Also, St.M. would send R.M. to where S.C.S. was residing; S.C.S. was just not allowed to be at their residence. The sexual activity continued between R.M. and S.C.S. At that time, R.M. was 15 years old.

[14] Around the end of 2016, the relationship between R.M. and her mother, St.M. had completely deteriorated. In December 2016, R.M. moved to Haven House in Mindemoya with her daughter.

[15] In January 2017, St.M. provided a statement to the O.P.P. regarding what had been occurring between her daughter, R.M., and S.C.S. She told the police that she believed her daughter's baby's father was S.C.S. Subsequently, the police conducted an interview with R.M. R.M. told the police that when she was 14 years old, she and S.C.S. began having sexual intercourse. She became pregnant and the child was born in January 2016.

[16] Warrants were sought for DNA by the O.P.P. for the child and for S.C.S. The samples obtained were sent to the Centre of Forensic Sciences lab in Sault Ste. Marie. A biology report was generated and S.C.S. could not be excluded as being the father of S.M. This report was marked as Exhibit 2 at sentencing.

[17] On January 6, 2017, S.C.S. was arrested and charged. On January 13, 2017, he was released on a recognizance of bail, which included a condition that he was not to have any contact, directly or indirectly with R.M, S.M or St.M. and not to be within 200 metres of any place where they lived, worked, went to school, frequented or were known to be, except for required court appearances. Despite the prohibition on contact, R.M. and S.C.S. continued to have contact through text messages, Face Time and in person at his mother's residence in Mindemoya. In addition to other contact, they were together to celebrate their daughter's birthday in January. By this time, R.M. was 16 years old.

[18] On March 18, 2017, R.M. became pregnant again with S.C.S.'s child. R.M. was able to be specific about the date she became pregnant because she spent the night at his mother's residence that night, and also she had taken a picture of them together which was on her phone. Also on that day, the police had attended at the residence and R.M. hid in the basement for 15 or 20 minutes, which she was told to do by S.C.S. and his mother. After the police left, she called someone to pick her up and went back to Haven House.

[19] On March 20, 2017, S.C.S. was arrested and charged with breaching his recognizance of bail. On March 27, 2017, S.C.S. was released on a recognizance of bail prohibiting contact with R.M., except pursuant to a family court order made after that date or through a third party for the service of family court documents.

[20] Despite the continued prohibition on contact, on the evening of June 8, 2017, R.M. and S.C.S. met at JK Automotive in Kagawong. They both got out of their vehicles, hugged and talked for a bit and then went their separate ways. S.C.S. was again arrested and charged with breaching his recognizance of bail. On June 16, 2017, S.C.S. was again released on a recognizance of bail with conditions.

[21] R.M. gave birth to her second child in late 2017. The father of this child was S.C.S.

[22] S.C.S. remained out on bail until June 11, 2018, at which time he was taken back into custody and has remained since.

[23] R.M. testified that her "crush" on S.C.S. continued until this year. She stated that after their daughter was born, when she was at Haven House, S.C.S. said that when he made enough money, they would move off the island and be a family. That was the plan until he got arrested.

[24] R.M. lost a lot of friends because of what happened with S.C.S. She also lost a year and a half of school as she could not juggle all of the responsibilities. She went back to school more recently to complete six outstanding credits. Being a young mother with two children affected R.M. a great deal. She stated that she was not ready to be a mother, it was hard to support herself, and she lost a lot of time with family and friends.

[25] With respect to S.C.S., R.M. agreed that she knows him very well and agreed that sometimes he is "a little out of it", needs a lot of help, and that he does not quite get things sometimes. She agreed that sometimes she was more on the ball than he was and that she tried to help him. When it was suggested to R.M. that she was a pretty together young woman, she responded, "I try".

[26] R.M. agreed that S.C.S. was trying to be a good father to their daughter, S.M., however, the court conditions made it almost impossible for him to do so. S.C.S. supported R.M. having full custody of the children.

[27] The criminal record of S.C.S. was marked as Exhibit 3. It contained one entry dated June 27, 2016 as referenced earlier; a conviction for an assault on St.M. and two breaches of recognizance, for which he received a suspended sentence and probation for 12 months. A transcript of the guilty plea was entered as Exhibit 4.

[28] A Gardiner hearing was held on September 19, 2018 with respect to a further fact that the Crown sought to prove beyond a reasonable doubt. The Crown's position was that R.M.'s mother, St.M., and S.C.S. were in a domestic relationship and, therefore, the Crown alleged that S.C.S. played a parental role to R.M., placing him in a position of trust to R.M. The defence position was that St.M. and S.C.S. were never in a domestic relationship, that he was simply living in their home, and that therefore, there was no position of trust or loco parentis relationship with R.M. At the Gardiner hearing, several witnesses were called by both the Crown and the defence. In oral reasons delivered on October 4, 2018, this court was not satisfied beyond a reasonable doubt that St.M. and S.C.S. were ever in an intimate or sexual relationship. Further, this court was not satisfied that S.C.S. played any fatherly or parental role toward R.M.

Expert Evidence

[29] On November 21, 2018, the sentencing hearing continued. The defence sought to rely on a psychological assessment prepared by Dr. Paul M. Valliant, psychologist. The Crown wished to cross-examine Dr. Valliant and so he appeared by video-link for this purpose. After some questioning, and on the consent of the Crown, Dr. Valliant was qualified as an expert in the field of forensic psychology and permitted to provide a risk assessment relating to S.C.S. Dr. Valliant's curriculum vitae was marked as Exhibit 9.

[30] Dr. Valliant's psychological report, dated April 15, 2018, was marked as Exhibit 1 on sentence. It stated in part as follows:

S.C.S. advised this is his first involvement with the criminal justice system….Initially, his relationship with R.M. was friendly but sometime thereafter R.M. became flirtatious. In consideration of her young age, S.C.S. maintained that he initially opposed R.M.'s attempts at flirting with him. S.C.S. indicated that he and R.M. discussed the potential consequences of their actions prior to becoming involved in a relationship and had planned to wait until she was of age but for some unknown reason he reciprocated R.M.'s romantic advances. S.C.S. admitted he should have known better but recalled becoming romantically involved with R.M. in 2014.....

Currently, S.C.S. admitted to being in love with R.M.……S.C.S. states that he loves his children and wants to marry R.M. and be a father to his two children. S.C.S. acknowledged there will be repercussions if he is convicted but he accepts responsibility for his actions. Nevertheless, he indicated that he does not regret the relationship because he would not have been "blessed with his children" had he not become involved with R.M.

[31] Dr. Valliant testified that the core of his risk assessment was based on psychological testing. Several psychometric tests were administered to provide a psychological evaluation of S.C.S. The summary of results stated in part as follows:

Cognitive evaluation revealed that S.C.S.'s Verbal Comprehension Index placed him at the 5th percentile rank. This would indicate that he performs in the Borderline Range of Intelligence. Inspection of the subtest scores would indicate that his reasoning ability is much below average. His results on Perceptual Reasoning indicated that he is functioning in the Average Range, low end of the scale.....The Full Scale Intelligence Quotient of 83 placed him in the 13th Percentile rank.....These results would indicate that S.C.S. has lowered ability at cognitive processing of information especially in the area of reasoning…

On the MMPI-2, S.C.S.'s clinical scales were within the normal limits….he has a rather positive self-image and is optimistic about the future….

[The MCMI-III] showed results which were contrary to those on the MMPI. S.C.S.'s responses indicated he is undergoing much psychological turmoil. S.C.S. strives to present a socially acceptable image and has difficulty in accepting his personal shortcomings….His responses were commensurate with Delusional (paranoid) Disorder and Generalized Anxiety Disorder syndromes. His underlying personality traits were consistent with Narcissistic Personality Disorder with Paranoid Personality features and Obsessive Compulsive features. These would indicate that he is undergoing much psychological conflict which will have to be addressed in therapeutic treatment.

Evaluation of the PCL-R indicated a Total Score of 2 relative to Male Forensic Patients (0.5%ile). S.C.S.'s PCL-R data suggests he is at a Low risk for violence and does not satisfy the requirements for psychopathy….

Results from the Paulus Deception Scale indicated S.C.S. presented himself in a favourable manner.

On the Clarke Sex History Questionnaire, S.C.S. had elevated scores on Female Adult Frequency and Child identification. These results suggest that he has a high level of interest in sexual experience with adult females. This in particular does not present a concern. His elevated score on Child Identification indicated that S.C.S. over identifies with children (ie. wishes he could be young again). There wasn't any evidence to support sexual interest in children or adolescents of either gender.

The Sexual Violence Risk – 20 showed the S.C.S. was in the Low risk range for future sexual violence.

The Static-99 revealed that S.C.S. was in the Low risk range for future sexual violence.

Dr. Valliant testified that the tests demonstrated that he responded in a truthful manner. However, Dr. Valliant was informed that in fact S.C.S. had pleaded guilty to an assault involving St.M. in the past, contrary to the comments of S.C.S. to Dr. Valliant that this was his first involvement with the criminal justice system, and was asked how that would change the results, if at all. He indicated that this would give him a score of 2 on the Static 99-R, changing him from a low risk to a moderate to low risk. Dr. Valliant agreed that S.C.S. not being honest about this past involvement with the criminal justice system might be characteristic of the narcissistic personality disorder, as he was attempting to present himself in the most favourable way. Dr. Valliant agreed that the characteristics of narcissistic personality disorder include that the person puts their own interests first.

[32] With respect to the cognitive deficit that Dr. Valliant spoke of, it was suggested to him that S.C.S. had admitted that he and R.M. had discussed the potential consequences of their actions prior to becoming involved in a relationship and had planned to wait until she was of age. Dr. Valliant agreed that this would suggest that S.C.S. can process information, he appreciated his actions, and he knew it was wrong and illegal before anything had happened.

[33] Finally, the report came to some conclusions and made some recommendations that would benefit S.C.S:

The results of this assessment showed that S.C.S. does not have any predilection toward sexual harm toward children, adolescents, nor is he a predatory sexual psychopath. He did not show any elevation on future risk for sexual harm toward R.M., his biological children nor other children in the community. S.C.S. does not cognitively process information at a level consistent with those of his age range. This may have led to his poor reasoning ability regarding his relationship with R.M. when she was only 14 years of age. His personality orientation as noted from the Millon's Clinical Multiaxial Inventory would indicate that S.C.S.'s underlying pathology including delusions, anxiety disorder, obsessive compulsive personality, narcissism and paranoia should be addressed in therapy.

Dr. Valliant recommended that S.C.S. be referred for treatment at the St. Lawrence Valley Correctional Treatment Centre, which is a provincial institution in Brockville, Ontario. Further, Dr. Valliant recommended that upon completion of his time and programs at St. Lawrence Valley, he should continue counselling while on probation or parole, in particular, a Sex Offenders Relapse Prevention program. Dr. Valliant explained that he required ongoing psychiatric and psychological counselling to improve his understanding of sexual relationships and what is or is not acceptable. He explained that S.C.S. was somewhat narcissistic and delusional and that he believed that being involved with a 14 year old girl was acceptable because his intentions were good and that he would someday marry her.

Victim Impact

[34] R.M. and St.M. read their victim impact statements at the sentencing hearing, which were marked as Exhibit 11 and 12. R.M. described the impact the offence has had on her life. She has high anxiety and trust issues, mostly with males. She has trouble trusting family and friends. She has trouble coping with things such as school, work and taking care of her kids. R.M. stated that she has lost friends, family, education, and her innocence. She had to quit school because it became too much for her. She indicated that she was very emotional and would cry uncontrollably by herself. She has trouble eating and sleeping. She stated:

My life will never be the same, I cannot get back who I was, I hope that you can take ownership of what you have done and get some help so you do not do this to another family.

R.M.'s mother, St.M., described how the actions of S.C.S. have affected her and led to the loss of her home, the loss of her close relationship with her daughter, loss of income, and health problems. She stated:

I would like to be a big person and forgive you but I can't and you don't deserve forgiveness, you have hurt so many people…..

Character References

[35] Several letters were entered as Exhibits on sentence from friends and family of S.C.S. Specifically:

Exhibit 12 – elementary school principal of S.C.S. and their families lived in the same area of Mindemoya.

He has been a very caring and kind brother to his two sisters. Throughout his younger years he had a supportive family who attended school functions……admirable work ethic and a pleasant personality that goes well in his interactions with customers and the people who have employed him over the years. I have never seen evidence of serious problems with drugs or alcohol.

…..always been a good kid, despite some of his bad choices…..

Exhibit 13 – teacher and customer at retail establishment

As a student…. was always respectful, polite and cooperative. He was easy to engage in conversations and had a good sense of humour….. always showed respect for authority figures at school…

….I found him very helpful, enthusiastic and hard working.

Exhibit 14 – physical education teacher / coach

…..was a very respectful and caring student. He would assist in coaching the high school girls basketball team as well as being a part of all the activities he could help in.

Exhibit 15 – lived with S.C.S.'s father

…..very good kid….He is so sad about not being able to see his kids. I have never met R.M., but the love he has for her is unreal…..

Exhibit 16 – older sister

He is a very kind, loving, fun and respectable man. He is always happy to see us and spend time with us. I have pictures of him with my daughter brushing and putting up her hair, building a snowman, him pulling [her] on a sleigh in the back yard at my mom's house, when they planted pumpkin seeds in the garden and there are so many more great memories with him and I can't wait to make more. He is very involved with our family.

Exhibit 17 – mother

….a very compassionate, caring person. He has always had a heart of gold and always put other people (family and friends) and even our animals first…..

….Through the years he always had employment, he loves carpentry, roofing to fixing vehicles, anything he could help someone with he would.

Background of the Accused

[36] S.C.S. is currently 31 years of age. His parents separated when he was 3 months old. S.C.S. has had a relationship with his father on and off throughout his life, however, his mother was responsible for his upbringing and they have a very good relationship. S.C.S. has four siblings, three of whom he has a good relationship with, however, the fourth is his father's daughter from another relationship and they have never met. S.C.S. graduated from high school. He enrolled in and attended Mohawk College for civil engineering but chose to leave after his first semester to support his family. He aspires to return to college in the future to earn the necessary diplomas or certification so that he can pursue his goal of owning a flooring or general contracting business. S.C.S. is a hard-working, reliable employee, and has held a number of jobs from manager of a store to carpentry. S.C.S. is in good health and does not have any notable physical medical issues or illnesses, however, he did seek the assistance of a psychiatrist when he was 27 years of age because of symptoms of depression and anxiety. He was diagnosed with Post Traumatic Stress Disorder and was prescribed an antidepressant. He no longer uses the medication.

[37] As previously stated, S.C.S. has been in custody continuously since June 11, 2018. Since being in custody, he has completed the stress / anger management program and participates in the native programming: See Exhibits 18 and 19. He has also been working while in custody.

Position of the Parties

[38] The Crown requested the following sentence:

• Sexual interference – 6-8 years imprisonment
• January to March breaches – 3 months concurrent to the sexual interference charge
• March 18, 2017 breach – 6 months consecutive
• June 8, 2017 breach – 3 months consecutive
• Credit for 189 days in jail at a rate of 1.5 to 1 – although the Crown pointed out that S.C.S. had his bail cancelled pursuant to s. 524 of the Criminal Code
• DNA – primary designated offence – mandatory
• 109 firearms prohibition – 10 years to commence on release
• SOIRA – 20 years
• s. 161 order – specifically 161(1)(a), (a.1), (b), (c) – with no exceptions for the biological children

[39] The defence position was 12-15 months imprisonment for the sexual interference conviction, and 30 days for each of the breaches consecutive to each other but all concurrent to the sexual interference conviction. The defence agreed that he should be given credit for 189 days in custody at a rate of 1.5 to 1. Finally, the defence submitted that a section 161 order was not necessary in the circumstances given the nature of these offences, and that at the very least, there must be an exception for his own children.

Analysis

General Principles

[40] The fundamental purpose of sentencing, described in section 718 of the Criminal Code, 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.

[41] The objectives for sentencing judges to consider are set out in section 718 (a) to (f) of the Criminal Code and are as follows:

(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 acknowledgement of the harm done to victims or to the community.

[42] Because this case involves the abuse of a person under the age of 18 years, this court must give primary consideration to the objectives of denunciation and deterrence, pursuant to section 718.01 of the Criminal Code.

[43] Pursuant to section 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is a cardinal principle of sentencing, therefore, whatever weight a judge gives to the objectives listed above, the ultimate sentence imposed must respect the fundamental principle of proportionality. In R. v. Nasogaluak, 2010 SCC 6, the Supreme Court of Canada explained this concept:

41 It is clear from these provisions that the principle of proportionality is central to the sentencing process ( R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12 ). This emphasis was not borne of the 1996 amendments to the Code but, rather, reflects its long history as a guiding principle in sentencing (e.g. R. v. Wilmott (1966), 58 D.L.R. (2d) 33 (Ont. C.A.)). It has a constitutional dimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outrage society's standards of decency. But what does proportionality mean in the context of sentencing?

42 For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused ( R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81 ; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J. V. Roberts and D. P. Cole, "Introduction to Sentencing and Parole", in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

43 The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a "fit" sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case ( R. v. Lyons, [1987] 2 S.C.R. 309; M. (C.A.) ; R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge's discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

See also: R. v. Safarzadeh-Markhali 2016 SCC 14; R. v. Lacasse, 2015 SCC 64

[44] Section 718.2 of the Criminal Code directs the court to consider various relevant aggravating and mitigating circumstances relating to the offence or the offender, such as:

(a) Offences motivated by bias, prejudice or hate;

(b) Abuse of offender's spouse or child;

(c) Abuse of a person under the age of 18 years of age;

(d) Abuse of a position of trust or authority;

(e) Evidence that the offence had a significant impact on the victim;

(f) Benefit to criminal organization;

(g) Terrorism offence;

(h) Commission of offence while offender was subject to a conditional sentence order or released on parole

[45] Further, this court must consider the principles of parity, totality, and to not deprive the person of liberty if less restrictive sanctions are appropriate and consistent with the harm done to the victim and the community.

[46] A number of cases were presented to this Court for consideration, which will be addressed below.

Cases Presented by the Crown

[47] The Crown relied on the case of R. v. D.(D.), [2002] O.J. NO. 1061 (C.A.), as a seminal case on sentencing in cases of sexual abuse of a child by an adult. In the case of D.(D.), a global sentence of 9 years and one month (after credit for pre-trial custody, sentence received was 8 years and one month) was upheld on appeal. The facts were as follows:

• Convicted after trial of 11 sexual offences
• Involved 4 boys, ranging from 5 to 8 years old
• Occurred over a 7 year period, starting when accused was 25 years old
• Befriended the four boys – bought them expensive gifts, took them on trips, provided them with beer and cigarettes
• Exposed the boys to pornography
• Regularly and persistently engaged them in all manners of sexual activity, including countless acts of masturbation and oral sex, group sexual encounters involving the accused and several of the boys, attempted and successful anal intercourse
• Used violence to compel compliance
• Used threats of violence or extortion to keep the boys quiet
• Photographed the boys while engaging in sexual acts and told them that if they disclosed, the pictures would be posted at their schools
• Held one of the victims, his surrogate stepson, over his 30th floor apartment balcony and warned him that he would be thrown off if he ever complained to anyone
• Stood in a position of trust to the boys; in three cases, was a close and trusted family friend; in another case, had assumed a role akin to that of stepfather
• Victim impact statements demonstrated severe and devastating impact on the complainants and their families
• 34 year old accused with an uneventful upbringing and a grade 11 education
• Minor criminal record for stealing a car, possession of marijuana, and breach of recognizance
• No mental illness
• Correctional report indicated a medium to high risk of reoffending, which would decrease with continued treatment in the sex offender treatment program

[48] In D.(D.), the court discussed the appropriate range of sentence for sexual abuse of a child by an adult. The Court stated as follows:

[29] As indicated, the appellant submits that the global sentence of six years, considered by this court to be a fit sentence for Stuckless, represents the high end of the appropriate range of sentences for adult offenders who groom innocent children and sexually abuse them over substantial periods of time. With respect, I disagree.

[31] Read that way, as I believe it should be, Stuckless does not stand for the proposition that six years represents the high end of the appropriate range of sentences for like offenders convicted of like offences. On the contrary, it indicates to me that in similar circumstances, mid to upper single digit penitentiary terms will, as a general rule, represent the appropriate sentencing range.

[32] Cases like the present one however, which involve repeated acts of anal intercourse and attempted anal intercourse, as well as the use of other physical violence, threats of physical violence and extortion, are in a different category. Such cases, in my view, call for a higher range of penalty because of the enhanced gravity and seriousness of the crimes and the greater degree of moral culpability attributable to the offender. As a general rule, I believe that upper single digit to low double digit penitentiary terms are called for in these circumstances. Thus, the global sentence of 9 years selected by the trial judge in this case was, in my view, within the appropriate range.

[33] Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. 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.

[34] 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.

[35] 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.

[36] In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

[40]…. If the appellant is not a pedophile 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.

[44] To summarize, I am of the view 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. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M.(C.A.), [1996] 1 S.C.R. 500 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W.(L.K.) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

[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!

[49] In R. v. J.S., 2017 ONSC 2998, a global sentence of 8 years was imposed for forcible confinement, sexual assault and assault causing bodily harm. The sexual assault received a 5 year concurrent sentence to the 8 year forcible confinement. The facts were as follows:

• J.S. pleaded guilty
• J.S. and J.F. were in a relationship. An argument ensued whereby J.S. was accusing J.F. of cheating on him
• J.S. told J.F. that he was going to kill her. He kept hitting her and bashing her head off the floor. He dragged her from the livingroom to the bedroom by her hair
• J.S. pushed J.F. on her stomach and removed her shirt and pants
• He used duct tape to bind her legs and arms together. He also wrapped the duct tape around her head and mouth
• J.S. penetrated J.R. vaginally and anally with his penis
• J.F. was duct taped for approximately 2 hours of the 7-8 hour long incident while the sexual assault was occurring
• After the sexual assault, J.S. hit her head off the floor a number of times to the point where she started blacking out
• J.S. was intoxicated on the night in question
• As a result of the incident, J.F. had a permanent brain injury resulting in short term memory loss and migraines. She also suffers from psychological issues as a result
• J.S. was a 42 year old repeat offender with a lengthy criminal record including a previous conviction for assault
• JS. suffered an aneurism and blood clot in his brain as a child and struggled with paying attention and memory deficits while in school
• J.S. began using alcohol and marijuana at the age of 14
• J.S. presented with limited insight

[50] The passage that the Crown relied on in the case of J.S. was para 23 which stated:

[23] The Crown and Defence agree that the starting point for a single major sexual assault perpetrated by an adult accused on an adult victim, with no prior criminal record, and prior good character is three years' imprisonment.

[51] The Court went on to adopt the definition of a "major sexual assault" from the Alberta Court of Appeal as follows:

[24] The court in R. v. Sandercock (1985), 1985 ABCA 218, 62 A.R. 382 at paras 15 and 16 described a "major sexual assault" as:

[15] The key, then, to a major sexual assault is the evident blameworthiness of the offender, which was described by Laycraft J.A. (as he then was) in F. v. R. (1982), 1982 ABCA 148, 20 Alta. L.R. (2d) 90 (C.A.), as "... contemptuous disregard for the feelings and personal integrity of the victim". It is sometimes said that we live in a sexually permissive era, the age of the liberated libido. Many believe that gratification of sexual desire by almost any means is not only normal but "healthy". This attitude, unsurprisingly, has led to some confusion, and the belief by some that society also permits the use of others as objects for sexual gratification. It does not, and denunciatory sentences are needed to reinforce the point.

[16] The other aspect which creates a major sexual assault is the effect on the victim. Notwithstanding statements in some authorities to the contrary, the tradition is to assume, in the case of a rape for example, that the victim has suffered notable psychological or emotional harm aside entirely from any physical injury. Of course, once this assumption is brought into question, the Crown must prove it. Nevertheless, harm generally is inferred from the very nature of the assault. This harm includes not just the haunting fear of another attack, the painful struggle with a feeling that somehow the victim is to blame, and the sense of violation or outrage, but also a lingering sense of powerlessness. What we mean by this last is that, while we all are aware in an intellectual way about the fragility of normal existence, to experience a sudden and real threat to one's well-being, a threat so intense that one must beg to be spared, tends to destroy that sense of personal security which modern society strives to offer and humanity so obviously wants. It matters little in this respect whether that threat comes from a robber, a rapist, or any swaggering bully.

[52] In the case of R. v. M.S., 2017 ONSC 4807, the sentence imposed was 4 years for sexual assault and 6 months concurrent for sexual touching. The facts of the case were as follows:

• M.S. was S.L.F.'s step-father
• S.L.F. was under 16 years of age at the time of the events
• The assaults all occurred in the family residence
• The sexual touching occurred when other family members were out of the house
• The sexual assault took place on the bed when S.L.F. and her baby brother were asleep in front of the television

[53] In R. v. Branton, 2013 NLCA 61, the sentence imposed on appeal was 23 months less a day for the sexual assault, plus one month consecutive for breaching probation, followed by three years of probation. The facts were as follows:

• Sexual assault on a 13 year old boy, included fondling of the genitals, oral sex and anal intercourse on one occasion
• Mr. Branton and the boy only knew each other for a few days
• Mr. Branton had been buying cigarettes for the boy
• Mr. Branton was 20 years old

The Court of Appeal discussed the primary consideration of denunciation and deterrence. The court stated:

[25] This focus on denunciation and deterrence requires an appreciation of these objectives in the context of the facts of the case being decided, which involves an appreciation of the seriousness of the particular offence and the offender's degree of responsibility. It also involves an appreciation of how and why denunciation and specific and general deterrence are important in the context of the particular case. For example, if the abuse is of a minor nature in circumstances which are unlikely to repeat themselves, the degree of emphasis given to deterrence and denunciation would be less. On the other hand, if the abuse is more serious and the offender has a history of committing such offences, deterrence and denunciation would require greater emphasis. In summary, giving "primary consideration" to the objectives of denunciation and deterrence requires a meaningful assessment of how the facts of the offence and the circumstances of the offender relate to denunciation and deterrence and an acknowledgement that substantial weight must be given to these objectives so that they are properly vindicated in the sentencing process.

[38] In summary on this issue, Mr. Branton's medical diagnoses are part of his personal circumstances and were therefore a legitimate consideration for the sentencing judge in the same way an offender's health is often a sentencing consideration. However they were overemphasized and afforded great weight when there was no connection established between them and the offences committed, and no recognition that Mr. Branton had been assessed and counselled in relation to his behaviours in the past and that despite same, he has continued to offend.

[39] In the result, the sentencing judge erred in principle by failing to give primary consideration to denunciation and deterrence as mandated by section 718.01 and in her treatment of the evidence respecting Mr. Branton's mental health issues…..

[54] In R. v. Woodward, 2011 ONCA 610, the accused received a global sentence of 6.5 years, specifically five years imprisonment for sexual assault, four years concurrent for sexual interference, two years concurrent for invitation to sexual touching, 12 months concurrent for attempting to obtain sexual services for consideration, and 18 months consecutive for child luring. This sentence was made consecutive to a sentence he was already serving for unrelated matters. The facts of the case were as follows:

• Crown proceeded by Indictment
• Complainant, who was 12 years old and lived with her parents, accessed a mobile website on her cell phone known at Airdate, which provided access to various chatrooms, as well as to a private inbox
• Mr. Woodward was 30 years old
• He sent a private message to the complainant asking if she would sleep with him in exchange for $57 million. She did not reply
• Another similar message was sent shortly after in which he used a fictitious name and pretended to be between 18 and 20 years old. He asked her to send him a message if she changed her mind
• Complainant sent a message
• Hundreds of text messages were then sent back and forth. The messages included discussions of sexual activity
• The complainant advised him of her age of 12 but he said this did not matter
• Mr. Woodward kept increasing the amount of money promised in exchange for the sex acts
• This culminated in a meeting between the two several days later
• With the complainant listening, Mr. Woodward pretended to have money transferred into an account in her name
• Mr. Woodward then initiated sex acts with her, including having her touch his penis, having her perform oral sex on him, he touched her genitals, and intercourse
• Mr. Woodward was convicted after trial
• Mr. Woodward had a criminal record that commenced when he was 15 years old – including 40 prior convictions, many of which were crimes of dishonesty

[55] The Court referred to the D.(D.) case and stated in part as follows about the principles that could be taken from that case:

[39] To the extent that the trial judge relied on D. (D.) , she simply extracted from it the principles of sentencing that this court has said should apply to adult sexual predators who exploit innocent children. These principles include that the sentencing objectives of denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing ( D. (D.) , at para. 34 ). As I shall explain further when I discuss the appropriateness of the global sentence in this case, the trial judge was correct in concluding that these principles apply with equal force to the case at hand.

[40] The appellant's second complaint regarding the alleged misapplication of D. (D.) is that the trial judge erred in finding that a trust relationship existed between him and the complainant for sentencing purposes. In this regard, the appellant points out that, unlike the situation in D. (D.) , he did not occupy a position of authority towards the complainant, nor was she entrusted to his care or dependent on him in any way.

[41] I would reject this submission. In using the term "trust" to describe the relationship in this case, I do not agree that trial judge had in mind the traditional trust relationship as described in D. (D.) . The trial judge fully understood that the relationship between the appellant and the complainant was not the classic "position of trust" situation. In her reasons, after quoting a passage from D. (D.) in which the court referred to the abuse of children by "adult offenders in a position of trust", the trial judge stated:

In reviewing that paragraph, I am mindful of the fact that this is not a traditional relationship of trust as is found in so many cases. At the same time, [the complainant] did come to trust Mr. Woodward in light of the frequency of their cyber contact.

[42] Rather, in using the word "trust", the trial judge was referring to the grooming techniques the appellant used to gain the complainant's trust. This is the type of "trust" that Fish J., writing for the court, discussed in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, [2009] S.C.J. No. 56, 249 C.C.C. (3d) 129, at paras. 29 and 30 :

But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics.

As Hill J. explained in R. v. Pengelley, [2009] O.J. No. 1682 (QL) (S.C.J.), at para. 96 :

. . . computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate a relationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexual exploitation of a young person.

[43] Treating the appellant's efforts at gaining the complainant's trust through grooming as an aggravating feature finds support in this court's decision in R. v. F. (G.C.) (2004), 71 O.R. (3d) 771, [2004] O.J. No. 3177, 188 C.C.C. (3d) 68 (C.A.), which treated grooming as an aggravating feature in a sexual assault case. In my view, grooming also properly constitutes an aggravating feature in the offence of luring and the trial judge did not err in treating it as such…..

[75] 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.

[76] 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.

[56] In R. v. J.D., [2015] O.J. No. 7067 (Sup. Ct.), the accused received a sentence of 3.5 years imprisonment. The facts of the case were as follows:

• Convicted after trial
• Acts committed between 1988 and 1993 when the child was ages 9 to 12. J.D. was between 24 and 29 years of age
• The complainant met J.D. when he was about 5 years old when J.D. lived in an apartment below D.S.'s family residence
• J.D. also lived with D.S.'s family for a period of time in their apartment
• D.S.'s mother suffered with alcohol abuse and allowed J.D. to sleep on the floor of D.S.'s bedroom
• The sex acts were mutual fondling, masturbation, oral sex and a failed attempt at anal sex
• D.S. regarded J.D. as a big brother
• J.D. had been apprehended by CAS at a young age and was transferred from foster home to foster home, separated from his siblings, where he experienced physical, emotional and sexual abuse
• J.D. suffered from a variety of medical conditions, including high cholesterol and coronary disease
• J.D. had a dated criminal record from 1983 to 2002, however no previous sexual offences
• D.S. stated that he lost his childhood as a result of this and felt guilt that this abuse was his fault. He struggled with addiction and suffered anxiety, fear, and was diagnosed with PTSD

[57] In discussing what amounts to a position of trust, the court referred to and relied on the case of Woodward and also stated in part as follows:

[33] I find beyond a reasonable doubt that the facts of the case before me disclose a trust relationship between DS and J.D.. DS knew J.D. for several years before the abuse began. DS would visit J.D. in his basement apartment below DS's family's home. DS has an older brother I. who did not live with DS. He saw him rarely. DS testified that when J.D. moved in he and J.D. became very close. They would hang out together and do things together. DS's brother, I., his mother and his friend J.W. all confirmed DS's evidence that J.D. and DS were always together. Each of those witnesses testified they would see J.D. carrying DS around like a baby even when he was 12 years old.

[34] There was 15 years' difference in their ages. DS said he looked up to J.D. as an older brother. He looked to J.D. for friendship and support. He rarely associated with friends his age. His mother had alcohol abuse issues and did not give the care and attention to him expected of a mother of a young child. After all, it was with DS's mother's blessing that J.D. moved in and was allowed to sleep on his bedroom floor. DS was vulnerable. It is understandable, and I accept, that he regarded J.D. like a big brother, a person in a relationship of trust.

[35] I find this situation falls within the type of non-traditional trust relationships found in other cases.

[58] In R. v. Hajar, 2016 ABCA 222, the court discussed the concept of "defacto consent" and considered whether this should constitute a mitigating factor in sentencing for sexual interference. The courts answer in that case was no. The court stated in part as follows:

82 We turn now to the one issue that largely explains the significant differences amongst judges in sentencing for the crime of sexual interference. Parliament left absolutely no doubt that consent is not a defence to the crime of sexual interference under s 151 of the Code . But what frequently causes judges to stumble and thereby subverts sentencing is the concept of de facto consent. De facto consent connotes two separate ideas: (1) that there was actual consent, but (2) it was ineffective only because of the law. Therefore, despite the law, de facto consent should mitigate sentence on the basis that the sexual activity that occurred is not deserving of serious sanction. This thinking has found favour in more than one courtroom in this country. The result -- an invisible finger has often pressed down hard on the sentencing scale to diminish the gravity of the offence of sexual interference or the offender's mens rea degree of responsibility or both.

83 Using de facto consent as a mitigating factor in sentencing for sexual interference is based on a fundamental flaw. That is the erroneous notion that an adult's sexual activity with a child who gives his or her de facto consent is legally a crime but does not rise to the level of overall seriousness deserving of an unambiguous denunciation. This thinking is wrong -- on many levels and for many reasons.

2. Why De Facto Consent Is Not a Mitigating Factor in Sentencing

84 First, de facto consent presumes that children under 16 are capable of giving true consent to sexual activity even if that consent is not recognized legally. But Parliament has recognized that they are not. It is true that s 150.1(1) provides that for a complainant under 16, "it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge". But this does not mean that Parliament has accepted that a child is capable of giving true consent to sexual activity. To the contrary. This wording tracks with wording used in the Code for decades, in fact going back as far as 1892. Interpreting the relevant legislation purposively and contextually, we have concluded that Parliament recognized that children in the age of protection are incapable of giving any consent, factual or otherwise, to sexual activity with adults outside the close-in-age exceptions. One ought not to read into the wording of s 150.1(1) anything more.

86 In any event, de facto consent is not equivalent to true consent. The concept of de facto consent, which is evanescent, undefined and open to many interpretations, suffers from all the misconceptions as to what is meant by "consent" that predated the Supreme Court decision in R v Ewanchuk, [1999] 1 SCR 330 [ Ewanchuk ]. In particular, a number of "forms" of de facto consent do not constitute true consent. Included in that category are failure to resist sexual activity, submission to sexual activity and apparent willingness to participate in sexual activity.

88 In raising the age of consent, Parliament determined that children in the protected category are incapable of consenting to sexual activity with older persons outside the close-in-age exception. That is because of the power imbalance inherent in the relationships between children and those older persons coupled with the particular vulnerability of children. Put simply, children in the protected category are not capable of making such an important, personal and potentially life-altering decision.

89 Why is this so? Children have limited experience and psychological resources and a very limited comprehension of the psycho-social aspects of sex. Add to this that adults have enhanced power and standing in the eyes of children and are seen as authority figures by virtue of age. And it is understandable why, as a result, it is very difficult for a child to assert herself or himself against an adult. Accordingly, as Dr. Boyes noted in reference to data supporting Parliament's increase in the age of consent:

This corpus of data clearly indicates that while adolescents may be interested in sex they are not developmentally prepared to engage in mature sexual or intimate relationships, nor do they possess the developmental wherewithal to provide truly informed consent to engage in sexual activity with an adult.

90 In addition, in many circumstances, where the child is female and the adult male, there will be the added element of gender inequality. Also relevant, and perhaps less obvious, is the role played by fear, confusion, coercion and desire for affection and attention. At their developmental stage, children in the protected category may be emotionally needy and easily confuse sexual predation for affection and attention. On top of this, the general trend in this type of relationship is for an adult to gradually convince a child to accede to the sexual relationship because the child falsely perceives that he or she has consented to it. As one author has explained:

Adult-child sex (or adult-adolescent sex) ... also involves significant coercive elements due to the power differential in the situation... Abusers typically try to shift the responsibility for the sexual contact to the victim, for example, by reference to the alleged sexual precociousness of the young child or adolescent...

91 In addition, adolescents are particularly disposed to heightened risk-taking while their ability to think ahead as to risks and rewards and impulse control is still maturing. Adolescent girls engaged in sexual activity with adults are particularly vulnerable to pregnancy and run an increased risk of acquiring a sexually transmitted disease. Based on the evidence before him, the sentencing judge concluded in his Reasons at para 37:

In general, children under the age of 16 are simply not considered mature enough to make appropriate decisions concerning sex and sexuality. They are vulnerable in the sense that they lack the emotional, physiological, physical, mental, psychological, and spiritual maturity to make informed decisions concerning their participation in sex related activities.

92 Even for adults, "'[c]onsent' is ... stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even the apparent agreement, of a deceived, unconscious or compelled will": Ewanchuk, supra at para 37, citing Fish JA (as he then was) in Saint-Laurent v Hétu, [1994] RJQ 69 at 82 (CA). The action of a child is that of a child. A child is incapable of meeting the "defining characteristics" of consent by any definition. Quite apart from the child's limitations because of age, a child is simply too easy to deceive or compel.

93 In summary, what this all means is that where an adult not within the close-in-age exception engages in sexual activity with children under 16, there can be no consent by the child, de facto or otherwise, because none can be given.

94 Second, and equally important, even assuming for the sake of argument that children under 16 were capable of giving true consent to sexual activity with adults, using "consent" or its deficient cousin, "de facto consent", as a mitigating factor in sentencing would defeat Parliament's policy objectives in raising the age of consent. Parliament has made it a crime under s 151 of the Code for an adult to engage in sexual activity of any kind with a person under the age of 16. The crime is complete once the act has occurred, with or without the child's so-called "consent". As already discussed, and we stress again, the absolute prohibition on sexual activity with a child in the protected category is founded on the harm to both the child and society inherent in major sexual interference irrespective of a child's de facto consent . Treating de facto consent as if it makes the sexual activity less grave or the offender less responsible undermines the very protection Parliament sought to ensure for children under 16. The courts are not entitled, through the sentencing process, to undermine Parliament's policy and legislative choices. It is this simple. Parliament did not remove consent as a defence to sexual interference so that the courts could re-introduce it as a mitigating factor in sentence. This ought not to be permitted.

97 Third, to use de facto consent to mitigate sentence ignores a critical point. The offender's efforts to secure the child's "consent" are frequently instrumental in the perpetration of the crime. The offender cultivates, nurtures and manipulates the child to create the illusion of a relationship so that the child will not recognize what is really happening -- child sexual abuse. Cultivating this "relationship" not only makes a vulnerable child more compliant, it increases the chances the relationship will remain secret since the child may not appreciate that he or she is a victim.

98 Fourth, one of the most destructive consequences of using de facto consent in mitigation of sentence is that it implicitly, and improperly, shifts the blame to the child. It suggests the child is complicit in the act and therefore responsible for the harm suffered. The courts cannot give legitimacy to the notion that a child is capable of giving valid consent to the sexual activity between the child victim and adult offender. To do so exacerbates the likelihood that children will blame themselves for what has happened, leading in turn to further negative consequences for their psychological and mental health with all the costs to them and society that this necessarily entails.

99 "Blaming the victim" is not new to the law of sexual assault. Parliament and the courts have worked hard to reform unfair laws that led in turn to unfair trials. Recognizing that an accused was entitled to a fair trial, not a fixed one, Parliament removed the judge-made requirement for corroboration in sexual assault cases and the judge-made rule allowing admission of evidence of past sexual history. And the courts removed the idea of implied consent in sexual assault cases: see, for example, Ewanchuk .

100 Using the "willing participation of the child" as a mitigating factor in sentencing, despite the fact the child is incapable of consenting, must be recognized for what it is -- blaming the victim. It also improperly diminishes the offender's culpability. It is akin to saying to the offender: "You're technically guilty and must be convicted of this crime, but you're not really at fault. Or at least, you're not that much at fault." The result of this flawed thinking -- the adult offender is treated as if he or she is not actually responsible for their behaviour, but the child victim is. And thus, through this distortion of reality, sentencing is effectively turned upside down. The child becomes the perpetrator and the offender becomes the victim.

101 Courts must remain vigilant to ensure that myths that Parliament discarded in determining not only criminal liability but also the overall severity of a given crime are not re-introduced by the judiciary in sentencing. Judges have a constitutional obligation to defend the Charter rights of all. Parliament has designed the various laws dealing with child sexual abuse under the Code, including those relating to sexual interference, to protect children's equality rights. For the courts to attribute responsibility to the child victim at the sentencing stage amounts to a denial of the child's equality rights. It also constitutes a re-balancing of rights as between the child and offender at the sentencing stage. Absent a constitutional challenge, that is not within the authority of the courts.

102 For these reasons, relying on any alleged voluntary acts by the child to mitigate gravity or mens rea degree of responsibility of the offender is improper. Thus, de facto consent of the child is not by itself a mitigating factor in sentencing for sexual interference or sexual assault: Pritchard, supra at para 7; R v AB, 2015 NLCA 19 at paras 27-30, 322 CCC (3d) 383; R v Revet, 2010 SKCA 71 at paras 12, 14, 256 CCC (3d) 159 [ Revet ]; R v Barrett, 2012 NLCA 46 at para 48, 291 CCC (3d) 213. Our approach to sentencing must recognize and give effect to Parliament's intent in establishing the crime of sexual interference and raising the age of consent to 16 years.

[59] It is of note that there appears to be some debate underway in the Alberta Court of Appeal as to whether there should be sentencing starting points with respect to the offence of sexual interference. See R. v. Gashikanyi, [2017] A.J. No. 629; R. v. D.S.C., [2018] A.J. No. 1196.

Cases Presented by the Defence

[60] The defence provided the court with a number of cases that will be addressed below.

[61] In the case of R. v. Ford, [2017] A.J. No. 1152 (Q.B.), the sentence received was 6 months imprisonment and three years of probation for offences of sexual interference (6 months) and breach of recognizance (15 days concurrent). The facts were as follows:

• Ford was 20 years old
• Engaged in sexual intercourse with a 13-year old girl in a public washroom
• Unrelated criminal record
• Ford's social development was arrested at the age of 14 or 15 years old
• Convicted after trial
• Breach was failing to keep the peace through the act of sexual interference

[62] The court in Ford concluded in an earlier ruling that the mandatory minimum sentence in s. 151 (a) of the Criminal Code was unconstitutional and the Crown conceded that it could not be saved under s. 1 of the Charter. The mandatory minimum sentence was therefore declared void. In this case, the court emphasized that the governing principle in sentencing is proportionality. This case further found that in terms of moral blameworthiness, the evidence established that Mr. Ford had greatly diminished blameworthiness which acted to mitigate the sentence. Quite frankly, on the issues of "genuine affection" and "defacto consent" it is difficult to reconcile this judgment with that of Hajar referred to above.

[63] In the case of R. v. J.B., [2016] O.J. No. 4525 (C.J.), the sentence received was 12 months incarceration on the charge of invitation to sexual touching, with 30 days on the breach of probation and 30 days on uttering a threat, both to be served concurrently in order to respect the principle of totality. The facts were as follows:

• J.B. entered a guilty plea
• At the relevant time, J.B. was 30 years old and C.M. was 13 years old
• J.B. had dated C.M.'s mother and he knew the complainant's age
• He discovered the C.M. alone inside her apartment in the early morning hours
• The complainant invited him inside, where they talked
• She kissed him, started undoing his pants and provided him with a condom
• J.B. engaged in vaginal sexual intercourse with the complainant and then left the apartment
• This was the only incident of sexual touching
• A victim impact statement described the impact as affecting her emotionally, causing her to have trust and anxiety issues
• Crown proceeded summarily for a maximum sentence of 18 months at that time
• While awaiting sentence, J.B. uttered a threat of bodily harm to an unrelated party
• The breach of probation was for failing to report to probation in the spring of 2015
• J.B. had a criminal record, including domestic assault, break and enter, and breaches of recognizance and probation orders
• J.B. had a long history of alcohol and substance abuse

[64] The court in this case rejected the argument of ostensible or de facto consent being a relevant consideration on sentencing for the reasons in Hajar.

[65] In R. v. J.W., [2016] O.J. No. 5178 (C.J.), the sentence received was 8 months imprisonment and two years of probation. The facts were as follows:

• J.W. was the stepfather of H.W. and had been a parent to her since she was 4 years old
• 4 incidents of sexual assault, including touching her vaginal area over her underwear, twice digitally penetrated her vagina, touched her breasts by sliding his hand under her top
• H.W. was 13-15 years old and J.W. was 36-38 years old at the relevant time
• J.W. pleaded guilty to sexual assault
• The Crown proceeded summarily, therefore, the minimum punishment was 6 months and the maximum was 2 years less 1 day

[66] Justice Applegate stated as follows:

[32] Sentencing ranges are used mainly to ensure the parity of sentences, they reflect the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case: R. v. Lacasse, 2015 SCC 64 at para 57 ; R. v. D.D., supra at para 33 .

33 In considering the appropriate length of sentence, I am reminded that "the Court of Appeal has repeatedly instructed that an offender's first sentence of imprisonment should be as short as possible and tailored to that individual's particular circumstances": R. v. Champion, 2016 ONCJ 125 at para 56

[67] Finally in R. v. DeYoung, [2016] N.S.J. No. 549 (Prov. Ct.), the sentence received was 12 months imprisonment followed by 24 months of probation. The facts were as follows:

• Pleaded guilty to sexual assault
• Mr. DeYoung was 21 years old and he befriended a 14 year old girl on a social networking website
• They exchanged messages for a brief time and then Mr. Deyoung arranged for the complainant to be picked up and brought to his apartment
• They engaged in sexual activity, including kissing, touching, digital penetration, vaginal sexual intercourse, and fellatio
• Mr. DeYoung had a mild intellectual disability and was immature with poor judgment
• No prior record

[68] The court found that the mandatory-minimum penalty prescribed in section 271(a) for sexual assault committed against a person under 16 years of age to be unconstitutional and was not saved by s. 1. Therefore the mandatory minimum did not apply in that case. The court referred to the fundamental principle of proportionality as being a primary principle in considering the fitness of a sentence, referring to Lacasse. The court further referred to Mr. DeYoung as being in the low-average range of intellectual functioning, more likely in the range of a mild intellectual disability, resulting in immaturity and poor judgment The court considered this and stated:

80 I consider this evidence in conjunction with the actual facts of this case: Mr. Deyoung was the prime mover in this crime, and no fault is to be attributed to the victim in any way. The essential innocence of victims of child sexual abuse was a principle affirmed by the Alberta Court of Appeal in R. v. Pritchard, and I agree entirely with that proposition. Mr. Deyoung's cognitive and social deficits did not inhibit him from initiating contact with the victim by means of a social-networking site, and continuing that contact up to the point in time he invited her for a visit; nor did it inhibit him from arranging to have a taxi pick the victim up and bring her to his apartment where he would certainly have the capability to exercise a degree of control over her.

81 Although Mr. Deyoung's level of planning and calculation might not have reached the high level of grooming and predation as in, say, R. v. Stewart , I consider Mr. Deyoung's moral culpability to be in the mid-range on a scale of gravity.

Conclusion

[69] As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 327, at paragraph 92:

…Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred……

[70] Recently, in the case of R. v. J.S., 2018 ONCA 675, [2018] O.J. No. 4095 (C.A.), the Court of Appeal considered an appeal by the accused from his sentence of 18 years of imprisonment, less credit for time served, for making, distributing, and possessing child pornography, sexual assault with a weapon and sexual interference. The Court upheld the sentence and stated in part as follows:

116 ….The myriad and complex ways in which such crimes are committed makes it difficult to compare one case to others and to identify whether one offender deserves a greater or lesser sentence than another.

[71] While courts should pay close attention to sentencing ranges, these ranges are guidelines, not rigid rules. A judge can order a sentence outside the suggested range as long as it is in accordance with the principles and objectives of sentencing.

[72] It is the view of this court that there are several aggravating factors in this case that must be considered:

(1) The sexual intercourse occurred for more than 2 years. The longer the period of abuse the more aggravating the circumstances.

(2) Sexual intercourse occurred frequently and regularly. Repeated abuse is recognized as an aggravating factor.

(3) There was a large disparity of age. When this began, S.C.S. was 27 years old and R.M. was 14 years old.

(4) A trust relationship had developed between them whereby R.M. trusted only S.C.S. and shut out other friends and family. There was evidence that S.C.S. cultivated and encouraged this focus of trust toward him as opposed to her mother. Even though this is not an abuse of a position of trust or authority in the classic sense, a non-traditional trust relationship can still be an aggravating factor. R.M. felt that S.C.S. was always there for her, that she could talk to him and that he made her feel safe. Meanwhile, S.C.S. took advantage of the trust and vulnerabilities of R.M., who was still a child. It was in this context that the sexual activity commenced and continued.

(5) R.M. became pregnant at the age of 14 years old.

(6) Sexual intercourse continued even after S.C.S. knew that R.M. might be pregnant and sexual intercourse continued after the pregnancy was confirmed.

(7) There was repeated contact between R.M. and S.C.S. even after he was arrested, charged and ordered to stay away from her.

(8) R.M. became pregnant again at the age of 16 years old.

(9) S.C.S. has a criminal record for an assault on St.M. in March 2015, for which he pleaded guilty in 2016, along with a plea of guilty to two counts of breaching his undertaking / recognizance.

(10) The devastating and lasting effects that this childhood sexual abuse has had on R.M. and her family is also an aggravating factor. R.M. was robbed of her youth, education, and innocence. Her education was cut short which causes a barrier to achieving a career as an adult. She has difficulty forming relationships and trusting people, especially men. She became a mother when she was just a child herself.

[73] It is also the view of this court that there are several mitigating factors to be considered in this case:

(1) S.C.S. pleaded guilty. This is an acceptance of responsibility and a showing of remorse. R.M. and St.M. did still testify at a Gardiner hearing, however, this was ultimately decided in favour of S.C.S., as no parental relationship was found by this court.

(2) S.C.S. exhibited sincere remorse in court and, by the time of his sentencing hearing, he appeared to truly appreciate the seriousness of his crimes and the harm he had caused to R.M.

(3) S.C.S. has been gainfully employed throughout his life.

(4) He has the support of his family and some of his community. The letters of support all describe S.C.S. as a caring, kind, and compassionate man.

(5) The psychometric tests indicated that his reasoning ability is much below average. The results showed that S.C.S. does not cognitively process information at a level consistent with his age range, especially in the area of reasoning. This court has considered that S.C.S. told Dr. Valliant that he and R.M. discussed the potential consequences of their actions prior to having sexual intercourse and had planned to wait until she was of age. S.C.S. admitted to Dr. Valliant that he should have known better. Therefore, S.C.S. seems to have put his mind to the wrongfulness of his acts, but did it anyway. Having said that however, his ability to make the right choice was likely affected by his lowered ability at cognitive processing of information. Dr. Valliant explained that S.C.S. required ongoing psychiatric and psychological counselling to improve his understanding of sexual relationships and what is or is not acceptable. He explained that S.C.S. believed that being involved with a 14 year old girl was acceptable because his intentions were good and that he would someday marry her. This would suggest a reasoning ability which is much below average. This court has considered this as mitigating in the circumstances.

(6) S.C.S. is prepared to take any treatment suggested, including a Sex Offenders Relapse Prevention Program.

(7) The risk of sexual offending in the future, even when factoring in the previous involvement with the criminal justice system, is at the low to moderate range.

[74] It must be clearly stated that R.M. was a child at the time the sexual activity was initiated and throughout much of the time that it continued. She was still a child when she gave birth to her own child. Our law is clear that someone under the age of 16 is still a child and is unable to consent to sexual activity with a 27 year old. She did not consent to this activity as she was unable to consent. The fact that R.M. testified that she believed she was in love with S.C.S. at the time does not change the fact that she was incapable of consenting. As the courts have previously stated, "the important and potentially life-altering decision to engage in sexual activity with others must be the product of true consent by individuals capable of giving such consent. Our laws are designed to protect children who may lack judgment or be too immature to make such a potentially life-altering decision as engaging in sexual activity."

[75] This court accepts that S.C.S. had and has genuine affection for R.M. and that it was in that context that he perpetrated these acts. However, this does not eliminate the harm and exploitation inherent in the offence. The focus must remain on the interests of the child, in this case R.M., and the mandatory sentencing principles of denunciation and deterrence.

[76] In sentencing those convicted of the abuse of a person under 18 – that includes crimes of sexual interference and sexual assault – a sentencing judge shall give primary consideration to the objectives of denunciation and deterrence: s. 718.01 of the Code. This takes precedence over other sentencing objectives, including the rehabilitation of the offender. A sentence, of course, must consider all relevant circumstances.

[77] Further, this sentence, ultimately, must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The totality principle is a particular application of the general principle of proportionality. The cumulative sentence must not exceed the overall culpability of the offender. The combined sentence must not be unduly long or harsh.

[78] Having considered all of the circumstances, including all of the principles of sentencing, it is the view of this court that a fit and proper sentence is:

• 42 months (3.5 years) incarceration for sexual interference

• 2 months consecutive for the breach from January to March 2017. This breach is in relation to their daughter S.M. and certainly is not the same event as the sexual interference on R.M.

• 4 months consecutive for the breach in March 2017. This breach resulted in a further pregnancy for R.M.

• 2 months consecutive for the breach in June 2017. This breach was brief contact in a parking lot between R.M. and S.C.S., however, it was after he had been put on conditions, twice, not to have any contact with R.M.

• This results in a total sentence of 50 months

• The time served was 189 days in jail on November 21, 2018 when sentence was argued, therefore he has now served 210 days. At a ratio of 1.5 to 1, he is given credit for 315 days or just short of 11 months. Therefore, the remaining sentence will be 39 months. [Note: In R. v. Meads, 2018 ONCA 146, the Court of Appeal found that the second prong of s. 719(3.1) of the Criminal Code, which restricted pre-sentence custody to 1:1 credit in cases where judicial interim release was cancelled because of the accused's alleged misconduct while on bail (the "bail misconduct exclusion"), was overbroad and violated s. 7 of the Charter. The Crown in Meads conceded that the provision could not be saved by s. 1 of the Charter.]

• There will be a DNA order. It is mandatory on the sexual interference conviction. It is discretionary on the breach charges. However, even on the breach charges, this court finds that it is in the best interests of justice to make a DNA order given the circumstances of the offences, the criminal record, which involves breaches in the past, and that the taking of DNA is not unduly intrusive upon S.C.S.'s privacy or security of his person.

• There will be a SOIRA order – which is mandatory – for 20 years.

• There will be a firearms prohibition, pursuant to s. 109, for a period of 10 years following his release from custody. This is a mandatory order on the sexual interference conviction.

Section 161 Orders

[79] With respect to any orders under s. 161 of the Criminal Code, a sentencing court has a discretion to impose such a protective order. Section 161 reads:

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, schoolground, playground or community centre;

(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;

(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;

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

(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

[80] In R. v. K.R.J., 2016 SCC 31, the Court ruled that such orders should not simply be made as a matter of course. The court stated:

47 As well, the design of s. 161 is consistent with its purpose of protecting children from sexual violence. Section 161 orders are discretionary and "subject to the conditions or exemptions that the court directs" (s. 161(1)). They can therefore be carefully tailored to the circumstances of a particular offender. The discretionary and flexible nature of s. 161 demonstrates that it was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community. Failure to comply with the order can lead to a term of imprisonment of up to four years (s. 161(4)).

48 Further, I agree with the line of cases holding that s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk: see A. (R.K.) , at para. 32; see also R. v. R.R.B., 2013 BCCA 224, 338 B.C.A.C. 106, at paras. 32-34 . These orders are not available as a matter of course. In addition, the content of the order must carefully respond to an offender's specific circumstances.

[81] S.C.S. does not have a criminal record for these types of offences. While that fact is in itself helpful to him, it is not determinative of no or low risk of future harm. Moreover, it is qualified by the fact that his offence cannot be characterized as a one-time act, as it went on for more than 2 years. He was convicted only once, but he was committing the offence over a period of time.

[82] There is, of course, the information from Dr. Valliant's report which states that S.C.S. does not have any predilection for sexual harm toward children or adolescents, and he is not a predatory sexual psychopath. Further, Dr. Valliant stated in his report that he did not show any elevation on future risk for sexual harm toward R.M., his biological children, or other children in the community. However, the report suggested that S.C.S. undertake a Sex Offenders Relapse Prevention Program to ensure that he continues to learn strategies to prevent future sexual offences. There was evidence in this case that S.C.S. believed that being involved with a 14 year old girl was acceptable because his intentions were good and that he would someday marry her. This type of reasoning is concerning to this court for future risk of harm in some respects. There is evidence that S.C.S. has a reasoning ability which is much below average and requires ongoing psychiatric and psychological counselling to improve his understanding of sexual relationships and what is or is not acceptable.

[83] The Crown bears the onus of satisfying me that it is reasonable and necessary to grant a s. 161(1) order. The Crown must do so by evidence. There is no evidence that S.C.S. has a general sexual interest in children or adolescents of either gender, no evidence that he conducted himself inappropriately with minors other than R.M., and no evidence that he looked for victims at places where minors would be found. These facts lead this court to conclude that orders pursuant to s. 161(1)(a) and 161(1)(c) are not reasonably necessary in the circumstances. Absent any evidence of risk to children requiring terms of an order to minimize that risk, this court cannot make the s. 161 order. Orders pursuant to s. 161(1)(a) and s. 161(1)(c) are unnecessary in the particular circumstances of this case and would be unduly restrictive on his freedom and rehabilitative prospects.

[84] However, S.C.S. has shown a determination, perhaps even an obsession, to continue to have contact with R.M. in the face of court orders prohibiting him from doing so. He has rationalized his involvement with R.M., concluding that his conduct was acceptable because his feelings were genuine and his intentions were good. S.C.S. must understand that his conduct toward R.M. was not acceptable. Hopefully, S.C.S. will get some professional assistance in order to understand what is or is not acceptable, however, until he gets that assistance, it is reasonable and necessary to make an order pursuant to s. 161(1)(a.1) and s. 161(1)(b), while at the same time, allowing S.C.S. the opportunity to have reasonable access to his children. The orders pursuant to s. 161(1)(a.1) and s. 161(1)(b) will commence on the day on which S.C.S. is released from imprisonment for the offences, and will continue for two years as follows:

An order prohibiting S.C.S. from being at any place where he knows R.M. to live, work, or go to school, except

• Pursuant to a family court order made after today's date, or

• For the purpose of conducting or defending family court proceedings, or

• In the presence of or through legal counsel, or

• For the purposes of making contact arrangements for, or having contact with his children, in the presence of a mutually agreed upon third party, or through a mutually agreed upon third party.

An order prohibiting S.C.S. from 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.

Released: December 12, 2018

Signed: Justice V. Christie