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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Ontario Court of Justice

Date: September 4, 2019

Court File No.: Sioux Lookout Info 185476

Between:

Her Majesty the Queen

— and —

Oren Moonias

Before: Justice Sarah Cleghorn

Heard on: March 28, 2019

Reasons for Sentence delivered on: September 4, 2019

Counsel:

• T. Schuck — counsel for the Crown
• F. Thatcher — counsel for the defendant Oren Moonias

Reasons for Sentence

Introduction and Overview

[1] The accused, Oren Moonias is charged with sexual interference on H.S. on May 20, 2017, and a second charge of sexual interference on S.W. between the dates of July 1 through 31, 2017, both counts contrary to s. 151 of the Criminal Code. The Crown elected to proceed by indictment. Mr. Moonias elected to be tried before this court.

[2] Oren Moonias was employed as a guitar teacher at a youth center in the Municipality of Sioux Lookout in the summer of 2017. It is through his employment that he met both of his victims. At the time, Mr. Moonias was 18 years old.

[3] Mr. Moonias sent a Facebook request to H.S. asking if she wanted to spend time with him outside of the youth center. When the two met, H.S. told Mr. Moonias that she was twelve years old. He responded to H.S. by telling her not to tell anyone about the two of them spending time together as he could get in trouble. The two met on a second occasion on May 20, 2017, at his home. Mr. Moonias took H.S. to his bedroom, where he kissed her; she was not a willing participant in this sexual activity. When he tried to touch her breasts, H.S. backed away. Despite H.S.'s reaction to his attempts to kiss and touch her, Mr. Moonias proceeded to put his hands down her pants and digitally penetrate her vagina. H.S. was able to remove herself from the situation. Mr. Moonias reached out to H.S. after the sexual assault on Facebook to apologize and to reinforce that she should not tell anyone as he could go to jail.

[4] Mr. Moonias sent a Facebook request to his second victim, S.W., after which they began exchanging messages. She was twelve years old at the time. The two made plans to meet in person. Mr. Moonias took S.W. to an empty apartment where he attempted to kiss her. When S.W. rebuffed his sexual advances, Mr. Moonias tried to assure her that what he was doing was okay. He then proceeded to touch her buttocks and vagina with his hands over the top of her clothes. He next removed his clothing and helped S.W. take her clothing off. Mr. Moonias then raped S.W. on the couch; S.W. lay frozen in fear.

Circumstances of the Offender

[5] Having outlined the facts in this matter, I will now address the personal circumstances of Mr. Moonias. I had the benefit of reviewing a Gladue report and a pre-sentence report; both have been filed as exhibits on the sentencing hearing.

[6] Mr. Moonias is a registered band member with Marten Falls First Nation. He is twenty years of age. He is the oldest of his four half-siblings and does not report having a close relationship with any of his siblings but the time spent together is described as positive (it should be noted that this is taken from the two reports that differ in terms of describing Mr. Moonias bond with his siblings). His mother, who was 17 years of age at the time of his birth, raised him as a single parent with the assistance of her mother; his father did not form a significant part of his childhood. His maternal grandfather is a survivor of residential school.

[7] During his formative years, Mr. Moonias recalls that his mother struggled with substance abuse issues. He recollects that he was mainly responsible for raising himself; he recalls not having enough to eat, resulting in him being underweight and bullied at school. His mother is reported to have moved frequently during his formative years. Mr. Moonias holds resentment towards his mother for his childhood; he feels she did not teach him needed life skills.

[8] For the past six years, his mother has been in a stable relationship. Mr. Moonias' reports that his step-father was hard on him; frequently yelling at him during his adolescent years.

[9] He was bullied at school, which impacted Mr. Moonias' mental health; he was depressed and suffered from anxiety.

[10] His mother acknowledged her substance abuse issue during Mr. Moonias formative years and consuming alcohol a handful of times during her pregnancies. Mr. Moonias does not have a diagnosis of fetal alcohol spectrum disorder. His mother confirms that her parenting of Mr. Moonias was lacking and that she was mentally and emotionally absent due to her substance abuse issues. She further acknowledges that Mr. Moonias was exposed to domestic violence that she suffered at the hands of her former romantic partners.

[11] Mr. Moonias began experimenting with alcohol and marihuana at the age of thirteen. Not surprisingly, this negatively impacted his education. Despite this, Mr. Moonias was able to graduate from high school and briefly attended a college program which was cut short as a result of his arrest for these offences.

[12] In terms of employment, Mr. Moonias, who is relatively youthful, has had short term and seasonal types of work.

[13] Mr. Moonias reports that he has felt "depressed" and "empty" his entire life. He is currently being treated for both depression and anxiety.

Positions of the Parties

[14] The parties are far from agreed as to what the appropriate sentence is for Mr. Moonias. On behalf of his client, Mr. Thatcher submits that a proper sentence is four years in custody less time spent by Mr. Moonias in pre-trial detention. In support of this position, Mr. Thatcher argues that the court should take into consideration, in addition to the Gladue factors, the pleas of guilt, the fact that Mr. Moonias is a youthful offender and has a limited record. Mr. Thatcher does not agree with the Crown's position that the offences resulted from a breach of trust but concedes that if the court disagrees with his argument and finds Mr. Moonias was in a position of trust, that this is a significant aggravating factor on sentencing.

[15] Mr. Thatcher further acknowledges that both R. v. Gladue and R. v. Ipeelee clearly outline that the more serious the offence, the less impact the Gladue factors have on sentencing. The sentence imposed is more likely to reflect the sentence that a non-Indigenous person may receive. Lastly, Mr. Thatcher, in his submissions, stated that there is no explanation for Mr. Moonias' serious crimes.

[16] On behalf of the Crown, Ms. Schuck asks the court to impose a global sentence in the range of five to eight years. In support of this position, Ms. Schuck notes that although Mr. Moonias pled guilty, he only did so on the second scheduled trial date. (It should be noted that Mr. Thatcher, in his submissions, argued that this matter was set for trial on two occasions in error). The preparation for trial was especially difficult for the victims. One of the victims had to be rushed to the hospital as a result of the trial preparation.

[17] Further concerning is that Mr. Moonias committed these offences while he was serving a youth sentence of six-months conditional supervision sentence for another section 151 offence. For some unexplained reason, the supervision sentence did not come to the attention of the Crown until after the sentence had been served and therefore, the opportunity to collapse the sentence was no longer a viable option. The Crown argues that Mr. Moonias, given his prior conviction, was aware of the age of consent and despite serving a sentence in the community for this very same criminal behaviour, he victimized two more children.

[18] Mr. Moonias had been arrested for the offence against H.S. and was on release conditions when he sexually assaulted S.W. This too, says the Crown, is an aggravating factor.

[19] Ms. Schuck submits that these offences, without question, involve Mr. Moonias being in a position of trust. He met his victims through his place of employment at a youth center. She draws the court's attention to the statutorily aggravating factors of abusing a position of trust, s. 718.2(a)(iii) and the impact on the victims, s.718.2(a)(iii.1) of the Criminal Code.

[20] In terms of ancillary orders, the Crown seeks a DNA and a SOIRA order for life as required by the Criminal Code. Mr. Thatcher does not oppose these orders. The Crown is also seeking a s.161 order. Mr. Thatcher, on behalf of his client, asks the court to exercise its discretion not to impose such an order given that the parole board will be best positioned to incorporate appropriate supervision terms upon Mr. Moonias' release.

The Appropriate Sentence

[21] The principles and objectives of sentencing are well established and set out in section 718 of the Criminal Code. Denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community are the objectives to be met in imposing sentence. This is always an individualized process that takes into account both mitigating and aggravating factors.

[22] The court must be mindful of the fundamental principle of sentencing, that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence must take proper account of the seriousness of the crime and the offender's level of moral blameworthiness in its commission.[1]

[23] When sentencing an adult sexual predator who exploits innocent children, the Court of Appeal has recognized:

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.[2]

[24] Part of the analysis requires that the court look to the mitigating and aggravating factors as they pertain to Mr. Moonias.

[25] In terms of mitigating factors, in addition to the Gladue factors, Mr. Moonias' plea of guilt has spared these young and vulnerable victims, and their families, from the ordeal of a trial. This is very much to his credit. Here, I note that the matter was set for trial, whether through error or not, this resulted in both victims being subject to trial preparation on two separate occasions. Trial preparation was especially traumatic for one of the victims and resulted in an emergency hospital visit. Mr. Moonias has also spared the administration of justice the time and expense of a trial.

[26] Mr. Moonias has indicated a willingness to enter into sexual offender behaviour therapy to try to gain insight into his criminal proclivities. He is willing to start the process, if available, while serving his custodial sentence. It is unknown at this juncture what Mr. Moonias' prospects for rehabilitation are concerning his attraction to children, and what risk he poses to reoffend. Unfortunately, there is no forensic risk assessment before the court. The fact that Mr. Moonias appears to have some insight, although limited, and is willing to participate in therapy, is a starting point for his rehabilitation.

[27] There are many aggravating factors present. Most notably, Mr. Moonias sexually assaulted a child while serving a six-month conditional supervision sentence for the very same criminal conduct. Further, while on bail for the offence involving H.S. he raped S.W. The supervision sentence and release conditions did nothing to specifically deter Mr. Moonias from engaging in his predatory behaviour. His comments to the victims to not "tell anyone" as he could go to jail speaks volumes about his level of insight into the wrongfulness of his behaviour, his indifference for his victims, and his selfish desire for his own perverse gratification.

[28] Mr. Moonias, despite being a youthful offender, appears before the court with a related record. His youth record is appropriately before this court and a factor to be considered in imposing sentence.[3]

[29] Further aggravating is the degree of exploitation and the breach of trust. Mr. Moonias' actions were not a momentary loss of control; rather, he intentionally sought out both of his victims and took them to places where he could be alone to commit these offences. His conduct was calculated.

[30] Mr. Moonias made several concerning comments to the author of the pre-sentence report. Although he expressed regret for his offences, it is concerning that he also explained his conduct by noting that he "wasn't in a good place" during that period of his life and the he was on "a sexual war path" and "having a lot of sex with multiple partners/people that would give him attention". It is also troubling that he remarked that he is "allowed to be attracted to younger females but that he cannot act on that attraction." Although there is no formal diagnosis before the court, this comment strongly suggests that he may be a paedophile. To his credit, Mr. Moonias seemed to recognize that he abused a position of trust through his actions.

[31] Mr. Moonias raped a child and sexually assaulted another. His statement that he is "attracted" to this age group is concerning to the extreme. It is unclear whether Mr. Moonias can appreciate the difference between a "younger female" and a child.

[32] The extreme youth of H.S. and S.W. has resulted in both of them being profoundly impacted by Mr. Moonias' actions. These effects are detailed in each of their victim impact statements. Each has lost their opportunity for a normal childhood at a very young age. At a time in their development when both girls should have been playing and having fun with peers, they were forced into a very dark world.

[33] For H.S. it has touched all aspects of her life; a loss of interest in school and her extra-curricular activities, impacts on her mental health, withdrawal from friends, a shattering of her self-esteem, her ability to trust others and feel safe. H.S. did not disclose the sexual assault to her parents for a year but rather suffered in silence. Given her very young age, this was a burden far too heavy to bear, and after an emergency, thankfully, she was able to disclose what had happened to her.

[34] To that end, H.S. mother filed a victim impact statement. The terror and fear that she felt as a mother, who watched her daughter in grade 6 go from an out-going, active, academically inclined child to a child that was spiralling out of control and withdrawn from the world had a profound emotional impact on the entire family. Her mother thought her twelve and half year old child had found a safe place to spend the summer months with her friends, the local youth centre. She reports that her daughter is still on the long path to healing as H.S. continues to struggle with depression, low self-esteem and low self-worth.

[35] The family of S.W. filed a victim impact statement. The tragedies visited on this family are profound. The parents struggle with their decision to allow their daughter to attend what they thought was a safe place. The parents are now hypervigilant concerning the whereabouts of H.S. and the family as a unit, struggles with anxiety and trust issues.

[36] Thankfully, both H.S. and S.W. come from loving, supportive homes with parents who have needed skills and tools to guide their daughters through the healing process.

[37] I have taken the principle of restraint into consideration as well. The sentence imposed is a significant one for an individual who has not yet served a custodial sentence. As noted by the Ontario Court of Appeal in R v. Hamilton:

Restraint means that prison is the sanction of last resort … Restraint also means that when considering other sanctions, the sentencing court should seek the least intrusive sentence and the least quantum which will achieve the overall purpose of begin an appropriate and just sanction.

[38] In determining the appropriate sentence, I have carefully considered the observation of Justice Moldaver in Woodward, who noted that crimes of this nature "will typically warrant mid- to upper-level single-digit penitentiary sentences."[5]

[39] Justice Moldaver in R. v. Woodward provided specific comments surrounding serious sexual assaults on children:

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!

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

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

[40] The Crown has provided the court with case law in support of its position on sentencing, with one decision containing similarities in terms of a major sexual assault on a child. R. v. Bouvier involved an accused, who was also an Indigenous person, committing a major sexual assault on a fifteen-year-old child. Mr. Bouvier was twenty years of age at the time. The sentence imposed was a four-year custodial sentence. It was a joint submission and did not involve a breach of trust.

[41] I acknowledge that Mr. Moonias is less morally culpable given his position as an Indigenous person, his family history with residential schools which is directly tied to his upbringing and continued struggles in life.

[42] In Gladue the Supreme Court explained that when sentencing an Aboriginal offender, a judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.

[43] The gravity and seriousness's of the offence must be taken into consideration when applying the Gladue factors. The Supreme Court provides the following direction, in R. v. Gladue, at paragraphs 78 and 79:

In describing the effect of s. 718.2(e) in this way, we do not mean to suggest that, as a general practice, aboriginal offenders must always be sentenced in a manner which gives greatest weight to the principles of restorative justice, and less weight to goals such as deterrence, denunciation, and separation. It is unreasonable to assume that aboriginal peoples themselves do not believe in the importance of these latter goals, and even if they do not, that such goals must not predominate in appropriate cases. Clearly there are some serious offences and some offenders for which and for whom separation, denunciation, and deterrence are fundamentally relevant.

Yet, even where an offence is considered serious, the length of the term of imprisonment must be considered. In some circumstances the length of the sentence of an aboriginal offender may be less and in others the same as that of any other offender. Generally, the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non‑aboriginals will be close to each other or the same, even taking into account their different concepts of sentencing.

[44] The Court of Appeal reminded sentencing judges of all this in R. v. Kakekagamick.[8] Writing for the Court, Justice LaForme indicated, at paragraph 42:

To be clear, s. 718.2(e) does not require, nor is there a general rule, that aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. As was noted in Gladue, aboriginal people also believe in the importance of those latter objectives. Those principles will always be relevant and may predominate for more serious offenders or where the offence is serious enough that imprisonment is necessary.[9]

[45] Taking into account the guidance provided by the Supreme Court of Canada and the Court of Appeal for Ontario, coupled with the gravity of these offences, I am of the view that the appropriate range for these offences and this offender, must be closer to what would be appropriate for a non-Indigenous offender. I have carefully considered the principle of restraint, the Gladue factors that I accept are present, the breach of trust, the impact on the victims, the mitigating factors and the significant aggravating factors.

[46] The risk posed by Mr. Moonias to children in society cannot be mitigated by the Gladue factors. The protection of the most vulnerable persons in society will always form a crucial objective in deciding the appropriate sentence.

[47] Balancing all of the above, a global sentence of five years imprisonment is appropriate in this case. Nothing short of this sentence will meet the principles of denunciation and deterrence and adequately express society's disapprobation for sexual assault crimes committed against the most vulnerable members of our society. On count two on the Information involving H.S., Mr. Moonias is sentenced to the mandatory minimum of one year in custody. On count four on the Information involving S.W., Mr. Moonias is sentenced to four years in custody. The sentences are to run consecutively.

[48] Mr. Moonias has spent 636 days in pre-trial custody. There is no evidence before me to suggest that he is not entitled to the usual enhanced credit for time spent in pre-trial detention. As such, the 636 days of actual time spent in pre-trial detention will be credited as 954 days (2 years and 6 months). Therefore, his total custodial sentence going forward will be 871 days (2 years and 4 months).

Ancillary Orders

[49] Concerning the s. 161 order sought by the Crown, my authority to make such an order is engaged, given that Mr. Moonias committed one of the enumerated offences. The Supreme Court of Canada explained 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."

[50] Given Mr. Moonias' criminal record, the fact that he reoffended while serving a supervision sentence and then reoffended again while on release conditions, the circumstances of these offences for which he is being sentenced, his lack of any efforts towards rehabilitation, I am satisfied that a s. 161 order should issue to minimize the risk that Mr. Moonias may pose to children in the future. Therefore, for the remainder of his life, Mr. Moonias will be subject to the following terms:

• Pursuant to s. 161(1)(a) for a period of life, from attending a public park or public swimming area where female persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

• Pursuant to s. 161(1)(a.1), from being within 100 metres of H.S. and S.W., their residences, their places of employment, or any other place you know them to be;

• Pursuant to s. 161(1)(b) 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 females under the age of 16 years;

• Pursuant to s. 161(1)(c), from having any contact — including communicating by any means — with a female who is under the age of 16 years (with the exception of immediate family members), unless Mr. Moonias does so under the supervision of a person whom the court considers appropriate or as approved of, in advance, by a child protection agency;

• Pursuant to s. 161(1)(d) from using the Internet or other digital network for the purpose of contacting H.S. and S.W.

[51] In addition to the custodial sentence and the s.161 order, the following ancillary orders will also be made on both counts:

• Pursuant to s.109, Mr. Moonias is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life and any firearm (other than one that is prohibited or restricted), cross-bow, restricted weapon, ammunition and explosive substance for a period from the first day after his release from custody for life;

• The charge of sexual interference is a primary designated offence. As a result, an order shall issue for the taking of a blood sample from Mr. Moonias for inclusion of his DNA profile in the National DNA Databank;

• Pursuant to section 743.21 of the Criminal Code, an order will issue prohibiting Mr. Moonias, while he is in custody serving his sentence, from having any contact, directly or indirectly, with the following people: S.W. and H.S.;

• Pursuant to section 490.012 of the Criminal Code, Mr. Moonias is required to comply with the Sex Offender Registration Act for a period of twenty years.

Released: September 4, 2019

Signed: "Justice Sarah Cleghorn"

Footnotes

[1] R. v. Ipeelee, 2012 SCC 13 paras. 36-39

[2] R v. Woodward, 2011 ONCA 610 at para. 39

[3] Youth Criminal Justice Act, S.C. 2002, c.1. ss. 119, 120

[4], 2004 OJ No 3252

[5] Woodward, supra note 6, at para. 75

[6] 2011 ONCA 610, paras 74, 75 and 76

[7] 2017 NWTSC 55

[8] (2006), 1 OR (3d) 664 (CA)

[9] Ibid., at para. 42