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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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

CITATION: R. v. J.G.O., 2019 ONCJ 174

DATE: 2019 03 18

COURT FILE No.: Halton 18–3628, 18–4651 & 17-3841

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.G.O.

Before Justice D.A. Harris

Heard on February 27, 2019

Reasons for Judgment released on March 18, 2019

Erinn O’Marra....................................................................................... counsel for the Crown

Brendan Neil........................................................................ counsel for the accused J.G.O.

D.A. Harris J.:

INTRODUCTION

[1] J.G.O. pled guilty to:

(1) Indecent assault on a male which occurred between January 1, 1981 and December 31, 1982, contrary to section 156 of the Criminal Code;[^1]

(2) Sexual interference, which occurred between January 1, 2005 and December 31, 2006;

(3) Breach of recognizance, which occurred on December 22, 2018.

[2] Indecent assault was an indictable offence. Crown counsel elected to proceed by indictment with respect to the other charges.

[3] Mr. J.G.O. is before me today to be sentenced.

[4] Counsel presented me with a joint submission that I should sentence him globally to the equivalent of imprisonment for almost 33½ months. This would cause me to sentence him to imprisonment for two years, over and above giving him credit for pre-sentence custody.

[5] This is to be followed by probation for three years.

[6] They also agreed that I should make the following ancillary orders:

(1) a DNA order;

(2) an order compelling Mr. J.G.O. to comply with the Sex Offender Information Registration Act for life;

(3) a weapons prohibition pursuant to section 109 of the Criminal Code for life;

(4) an order pursuant to s. 161 of the Criminal Code, limiting Mr. J.G.O.’s access to male children under the age of 16 years, for life; and

(5) an order pursuant to section 743.21 of the Criminal Code prohibiting communication with his victims during the custodial portion of his sentence.

[7] I will give effect to the joint submission.

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

1. The fundamental purpose and principles of sentencing;

2. The offences;

3. The impact on the victims;

4. The background of Mr. J.G.O.; and

5. Analysis

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

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

[10] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[^2]

[11] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[^3]

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

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[^4]

[13] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[^5]

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

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[^6]

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

[16] Section 718.01 of the Criminal Code provides that "When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct".

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

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

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

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

[21] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. I must review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.[^7]

[22] In doing this, I should first fix appropriate individual sentences to arrive at a total sentence and then adjust the total sentence to ensure that it does not exceed what is just and appropriate.[^8]

[23] With respect to consecutive sentences, section 718.3(4)(b)(i) provides that “The court that sentences an accused shall consider directing…(b) that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively including when (i) the offences do not arise out of the same event or series of events”.

[24] There is a broad discretion to impose consecutive sentences if separate legal interests are implicated in the various offences.[^9]

[25] I must specifically consider section 718.2(d) which provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”.

[26] I must also consider the impact of section 718.2(e) which provides that “... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.”

[27] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.[^10]

[28] In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case also made it clear however that this principle is of much less importance in cases involving very serious offences and offences involving violence.[^11] The case before me is certainly one of those cases.

[29] The Supreme Court also noted in Gladue that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. A sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[^12]

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

[31] In R. v. D.D.[^13], and R. v. Woodward[^14], the Ontario Court of Appeal "discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children".[^15] The facts in those cases, as well as the sentence imposed are very different than in this case. I take from those cases however the following considerations and principles which I find to be relevant here:

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

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

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

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

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

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.[^16]

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

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price![^17]

[33] The maximum sentence for indecent assault was imprisonment for 10 years.

[34] The maximum sentence for sexual interference is imprisonment for 14 years when Crown counsel proceeds by indictment.

[35] The maximum sentence for breach of recognizance is imprisonment for two years when Crown counsel proceeds by indictment.

[36] Before I can apply the above principles however I must examine the offences here, the impact that they had on the victims and the background of Mr. J.G.O..

THE OFFENCES

[37] Mr. J.G.O. is a cousin of JB. JB is the father of HB.

[38] Between 1981 and1982 Mr. J.G.O. moved into the B residence in Burlington. He lived with JB's parents and another family member. Mr. J.G.O. had a bedroom located in the basement.

[39] Mr. J.G.O. was 18. JB was 8.

[40] They would spend time alone in JB's room. JB would be drawing or colouring on the bed and Mr. J.G.O. would encourage JB to sit between his legs. Mr. J.G.O. would then press his erect penis against JB's back making him uncomfortable. Mr. J.G.O. would use his hand to rub JB’s inner thigh and touch his penis on the outside of his clothing. Mr. J.G.O. told JB that it was not rape and it was not terrible. This was repeated by Mr. J.G.O. throughout his stay in the residence.

[41] Mr. J.G.O. was eventually told to leave the residence. The sexual assaults ceased. There was no contact between JB and Mr. J.G.O. until JB was an adult.

[42] Between January 1, 2005 and December 31, 2006 JB allowed Mr. J.G.O. to live with him, his wife and their three children for two months in Burlington.

[43] Prior to Mr. J.G.O. being allowed to stay with them, JB confronted him about what Mr. J.G.O. had done to him in the past.

[44] One day HB, who was five or six years old, woke up while in his bedroom to find Mr. J.G.O. performing fellatio on him and squeezing his testicles. On another day he was in his parent's room when Mr. J.G.O. walked in naked with an erection. He asked HB to touch his penis, and he did, briefly.

[45] Mr. J.G.O. was asked to leave the home as JB and his wife had concerns about what he was accessing on the internet.

[46] In the fall of 2017 HB disclosed what had occurred to his parents and the Halton Regional Police. Prior to speaking to police, HB located Mr. J.G.O. and met him. He confronted Mr. J.G.O. about what he did to him. Mr. J.G.O. apologized and cried. He tried to hug HB, at which point HB hit him over the head with a mug.

[47] Mr. J.G.O. did not report this incident. After HB told Halton Regional Police about it, an officer was sent to check on Mr. J.G.O.'s well-being. Mr. J.G.O. did not want to pursue charges and did not request medical assistance from the police.

[48] On December 17, 2017 Mr. J.G.O. was arrested and held for bail.

[49] In the fall of 2018 JB disclosed the details of his sexual assault to Halton Regional Police.

[50] On October 9th 2018, the accused, Mr. J.G.O. was charged with these offences. He was held pending a bail hearing, and released on a Recognizance of Bail which included the following two terms:

(i) Do not be in the company of or communicate, directly or indirectly, by any physical, electronic or other means with males or females under the age of 18

(ii) Not enter any other unit in the townhouse complex where he rented a room.

[51] These terms were in effect on December 22, 2018.

[52] On December 22, 2018, at approximately 9:00 p.m., Mr. J.G.O. entered another unit in the townhouse complex where 12 year old TL, his mother and siblings were home. Mr. J.G.O. watched a children's show with TL.

[53] When TL’s mother left the residence to go to work, Mr. J.G.O. was still inside. A neighbour saw Mr. J.G.O. leave the residence with TL. TL's arm was wrapped around Mr. J.G.O.. They entered Mr. J.G.O.’s residence.

[54] The neighbour then contacted the mother who asked her to remove TL from Mr. J.G.O.'s residence. She went there and was invited inside by Mr. J.G.O.’s roommate. She spoke with Mr. J.G.O. who told her TL was sleeping over. During this conversation TL was standing at the top of the stairs wearing only his boxer shorts.

[55] TL then gathered his belongings, put his pajamas on and left with the neighbour.

Mr. J.G.O. was arrested on December 23, 2018.

IMPACT ON THE VICTIMS

[56] I was given three Victim Impact Statements. These were prepared by JB, PBL, the mother of HB, and by WP, the mother of TL. JB and PBL read theirs out in court. HB declined to provide a Victim Impact Statement. He made it clear to Crown counsel that he was unhappy with the joint submission and believed it to be insufficient punishment.

[57] All of them were present in court along with partners and other family members.

[58] JB started out by writing “that this is a survivor impact statement, as it has been a long time since I was a victim”. He described the impact of these offences as a “life long sentence”.

[59] At different times he wrote about the various impacts in relation to three different generations.

[60] With respect to himself he wrote:

As a boy I lost trust in those closest to me. It affected the relationships I had with my brother & my father. I felt shame & embarrassment for what happened to me. For 35 years I've carried the weight of this secret. The isolation that comes from not being able to tell anyone what happened to me. The isolation of not knowing who you can trust. The isolation of feeling truly alone. Thinking that you are the only one this has happened to. Being a male child sexually assaulted by another male when at the time homosexuality itself was not accepted by society. This led to an even more difficult & confusing adolescence for me. Most of my adolescence was spent drowning myself with alcohol & various substances trying to forget. The highs & lows I've endured trying to make sense of it all. Trying to figure out if I asked for this, wondering if it was my fault.

[61] With respect to the impact on his mother, he wrote:

As an adult I knew I had to relinquish this burden. Telling my mother that her nephew sexually assaulted me while under her roof was one of the most difficult things I have ever had to do. In that moment I knew the pain & shame I had been carrying for so many years was going to be carried by her. It would now become her burden, her cross to bear for the rest of her life. That is her life sentence.

[62] He feels guilt for not protecting his son from Mr. J.G.O..

[63] As for the cumulative impact on everyone, he wrote:

Trying to articulate the impact of two generations being sexually assaulted by the same cowardly predator escapes me. Any hope I had of ever being able to let go of what happened to me disappeared the day the day I found out what happened to my son. No matter what the outcome, no matter how long the sentence, the weight of this revelation will be with me for the rest of my life. It will forever be my burden to bear.

The impact this has had on my family could fill a book. The shame, the anger, the resentment, and the damaged relationships I have felt for so many years is now being felt by my son & other children. The impact on the relationships between myself & my children may never be repaired the same way my relationships with my extended family will never be the same. I was not violated by a stranger, I was violated by family. His siblings are my cousins, His mother is my Aunt. When we are in the same room together, there is an uneasiness, a shared shame. It is something we are still not ready to talk about. That will never go away, not anytime soon, if ever.

[64] PLB wrote how Mr. J.G.O. robbed her son HB of his childhood, pointing out how he could barely go to school and function like a regular little boy. The doctors’ visits, and the counselling cannot give that back to him. He needs closure but this has not occurred yet.

[65] The following are extracts from the Victim Impact Statement of WP, TL’s mother:

I am a single widowed mom with limited support system.

I struggled with trust of others growing up as a child because of events that happened in my life but slowly bit by bit I wasn't trying to let it affect my adulthood life. I let my wall down and trusted people especially people I thought I knew. I now have a very difficult time trusting anybody especially when it comes to my kids, it makes me feel like I want to withdraw from people to protect my kids and myself.

Since the passing of my mom (squamous cell cancer in December of 2016) and my husband (suicide in March of 2017) [the acts of the offender] disrupt my ability to be able to perform my tasks \ duties at my fullest potential. I believe he was playing off of my son and my vulnerability because of our grieving for my mom and husband. 2 out of 3 of my kids witnessed my husband's suicide, one of them being my son. My mom and husband were the most important people in my life and my support system, they played very important roles in my kids’ lives. With them we had security, I don't feel that anymore, the accused triggered many emotions within me and it felt like I was grieving all over again. As for my son he prefers not to comment but I know just from conversations we had he feels hurt and betrayed by someone we thought we could trust. Regardless of good or bad intentions! Ever since my son and I went in to do a police report on December 23 I have been reliving life in other words grieving without my support system of my mom and husband and have cried many times behind closed doors or when the kids are at school.

BACKGROUND OF MR. J.G.O.

[66] I have been given little information about Mr. J.G.O..

[67] He is now 59 years old.

[68] He himself was sexually abused as a child.

[69] He had no criminal record prior to committing the sexual assaults.

[70] He had however, sexually assaulted another boy in 1986. He was sentenced to a conditional sentence of imprisonment for 9 months for this in 2008.

[71] He had never been to jail before being charged with these offences.

[72] He was detained in custody between December 10, 2017 and March 21, 2018 (102 days) and between December 23, 2018 and today (86 days).

[73] He has expressed a desire to receive treatment while in the penitentiary and after he is released.

ANALYSIS

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

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.[^18]

[75] The victims and their families and friends clearly believe that the proposed sentence is too lenient. That however is not the only basis on which I must act. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."[^19]

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

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

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

[79] The aggravating factors can be found in the offences themselves. This includes not only what Mr. J.G.O. did, but when he did it.

[80] Mr. J.G.O. violated the trust that JB’s parents placed in him and sexually abused JB. He did this in 1981 or 1982.

[81] He sexually abused another boy in 1986. This offence has been dealt with elsewhere and is not before me. Accordingly I am referring to it solely to provide a more complete perspective on what Mr. J.G.O. has done, particularly with regard to my conclusions with respect to his prospects of rehabilitation.

[82] Then in 2005 or 2006, he violated the trust that JB placed in him and sexually abused HB. I find the fact that Mr. J.G.O. sexually abused both the father and the son when they were children to be a further aggravating fact.

[83] Finally, he was caught grooming another boy in December 2018 while he was on bail for the offences against JB and HB.

[84] The impact on the victims has been traumatic. I have no idea when they will get over this. I suspect that they might never do so.

[85] There is really only one mitigating factor in this case.

[86] Mr. J.G.O. pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for the victims to testify. They were spared the ordeal of revisiting their victimization in a public courtroom.

[87] JB asked me not to give Mr. J.G.O. credit for this. He would preferred to have been forced to testify in court if it would have led to an increased sentence.

[88] I cannot accede to his wishes here. I am mindful that the credit I give (or do not give) for a guilty plea could impact the decisions of other offenders contemplating whether to plead guilty or not guilty.

[89] Mr. J.G.O. had no prior criminal record. Any mitigation flowing from this is offset however by the fact that he has offended against four different boys over a period of nearly four decades.

[90] Similarly, I note that while Mr. J.G.O. has expressed an interest in obtaining treatment for whatever issues have led him to do this, to date he has not done so. I am not confident that he ever will.

[91] Taking into account his repeated offences over nearly four decades and his failure to do anything about this, I am not confident about his prospects for rehabilitation.

[92] For that reason, I agree completely with counsel that I should make a lifetime order pursuant to section 161.

[93] In drafting the terms of that order, I am mindful of recent comments by both the Supreme Court of Canada[^20] and the Ontario Court of Appeal[^21] about restrictions on Internet use in orders pursuant to section 161. Further, I am well aware that I should avoid imposing orders that create overbroad or unreasonable restrictions on an individual's liberty.[^22] I am fully satisfied that the restrictions I am about to place on Mr. J.G.O. are neither overbroad or unreasonable. They are very much needed to ensure the protection of others in the future.

[94] Finally, I am taking the principle of totality into account when determining the specific sentences for the various offences.

[95] I am satisfied that the appropriate sentence for either of the sexual assaults would have been imprisonment for 16 to 18 months. The appropriate sentence for the breach of recognizance offence would have been imprisonment for 6 months. However, taking totality into account, I am satisfied that the equivalent of imprisonment for 33 ½ months is sufficient.

[96] Two years in a penitentiary is a long time for anyone, let alone someone who had never been to jail before.

[97] I am also taking into account that counsel have agreed that I should also place him on probation for three years. This will provide further restrictions on Mr. J.G.O. for the maximum period of time permitted by law.[^23]

[98] After spending the equivalent of 9½ months in pre-sentence custody, Mr. J.G.O. will spend the next 5 years in a penitentiary or under the supervision of a parole / probation officer. In addition, there will be restrictions placed on him for the rest of his life.

SENTENCE

[99] For the above reasons, I sentence Mr. J.G.O. as follows.

[100] With respect to the charge of indecent assault on a male and the sexual interference charge, I sentence him to concurrent sentences of time served, being pre-sentence custody of 188 days, credited as 282 days, plus imprisonment for a further two years.

[101] With respect to the breach recognizance charge, I sentence him to imprisonment for six months, concurrent.

[102] These will be followed by probation for three years.

[103] The terms of the probation will require that Mr. J.G.O.:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of his release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance;

7. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with JB, HB, ZB, SB , PBL, TL or WP;

8. not be within 100 metres of any place where he knows them to live, work, go to school, frequent, or any place he knows them to be;

9. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including a sexual offender relapse prevention program or any other program recommended by his probation officer;

10. not seek, obtain or continue 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 male persons under the age of 16 years;

11. not use the Internet or other digital network, including email, texting, MSN Messenger, any other messenger system or any chat rooms, or Skype or WhatsApp or Facebook or Twitter or Instagram or Snapchat or any other social network, for the purpose of communicating with a male person under the age of 16 years. When communicating with anyone by means of such a computer system or other device, he will take reasonable steps to ascertain the age of the person. Further, when communicating with anyone by means of such a computer system or other device, he shall identify himself by his full real name, J.G.O., and shall not use any pseudonym, nickname or code name to identify himself.

12. not possess or access child pornography

13. not possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner.

[104] I also make the following ancillary orders.

[105] The sexual offences are primary designated offences and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. J.G.O. of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis. I decline making a separate redundant order with respect to the breach recognizance charge.

[106] The sexual offences are also designated offences pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.012 of the Criminal Code that Mr. J.G.O. comply with the provisions of the Sex Offender Information Registration Act for life.

[107] I also make a lifetime order pursuant to section 161 of the Criminal Code prohibiting Mr. J.G.O. from:

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

(a.1) being within 100 metres, of any dwelling-house where JB, HB or TL ordinarily reside;

(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 male persons under the age of 16 years;

(c) having any contact - including communicating by any means - with a male person who is under the age of 16 years;

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

[108] Pursuant to section 109 of the Criminal Code, for the rest of his life, Mr. J.G.O. is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance. This too applies only to the sexual offences.

[109] Finally, I make an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication by him with JB, HB, ZB, SB, PBL, TL or WP during the custodial portion of his sentence.

Released: March 18, 2019

Signed: Justice D.A. Harris

[^1]: This section was repealed in January 1983, when it was replaced by new sexual assault offences.

[^2]: R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (Ont. C.A.) at para. 102; R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309 (S.C.C.) at para. 26; R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39 (S.C.C.) at para. 46.

[^3]: Criminal Code, section 718.1

[^4]: R. v. Hamilton, supra, at para. 90.

[^5]: Ibid, at para. 91.

[^6]: R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (Ont. C.A.) at para. 26, quoted in R. v. Hamilton, supra, at para. 92.

[^7]: R. v. C.A.M., 1996 230 (SCC), [1996] S.C.J. No. 28 (S.C.C.) at para. 42

[^8]: See Ruby, Chan, Hasan & Enenajor, Sentencing, 9th Edition, Lexis, Nexis Canada, at page 59.

[^9]: R. v. Boyd, [2016] O.J. No. 2584 (Ont. C.A.) endorsement at para. 3.

[^10]: Gladue v. The Queen, 1999 679 (SCC), [1999] S.C.J. No. 19 (S.C.C.) at para. 36; see also R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 (S.C.C.) at para. 20.

[^11]: R. v. Priest, supra at para 17.

[^12]: Gladue, supra, at paras. 43 and 48; see also R. v. Proulx, supra, at paras. 18 – 20.

[^13]: R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (Ont. C.A.), per Moldaver, J.A. as he then was.

[^14]: R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (Ont.C.A.) per Moldaver J.A. as he then was.

[^15]: R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (Ont.C.A.) per Moldaver J.A. as he then was at para. 72.

[^16]: R. v. Woodward, supra, at para. 72; R. v. D.D., supra at paras. 34 to 38; See also R. v. R.B., 2005 30693 (ON CA), [2005] O.J. No. 3575 (Ont. C.A.), per Laskin, J.A. at para. 32.

[^17]: R. v. Woodward, supra, at para. 73; R. v. D.D., supra at para. 45.

[^18]: R. v. Hamilton, supra at para.1

[^19]: R. v. Muzzo, 2016 ONSC 2068, [2016] O.J. No. 1506 (Ont. S.C.J.) per Fuerst J. at para. 59.

[^20]: R. v. K.R.J., 2016 SCC 31, [2016] S.C.J. No. 31(S.C.C.).

[^21]: R. v. Brar, 2016 ONCA 724, [2016] O.J. No. 5143 (Ont. C.A.).

[^22]: Ibid, at para. 25.

[^23]: Criminal Code, sections 731(1) & 732.2(2)(b); R. v. Mathieu, 2008 SCC 21, [2008] S.C.J. No. 21 at paras. 18 & 19.