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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: September 27, 2019

Court File No.: Toronto 18 – 45000473

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

J.P.

Before: Justice Paul H. Reinhardt

Heard on: 24 September 2019

Reasons for Sentence released on: 27 September 2019

Counsel:

• Stephanie Abrahams, for the Crown
• Tony Paas, for the accused

REINHARDT J.:

Finding of Guilt

[1] In this proceeding, on 21 May 2019, after a three-day trial, I found the accused, J.P. guilty of one count of sexual assault, pursuant to an information that alleged that he did:

between 1 February 2017 and 3 February 2018, at the City of Toronto, in the Toronto Region, commit a sexual assault on J.S., contrary to Section 271 of the Criminal Code of Canada

[2] At the time of the finding of guilt, I ordered a pre-sentence report.

[3] The sentencing hearing commenced on 24 September 2019.

[4] The exhibits on sentencing in this proceeding are:

(1) Pre-Sentence Report, dated 16 September 2019, prepared by Adriano Stellato, Probation and Parole Officer;

(2) Business card of E.P., mother of J.P., and President of […] of Canada;

(3) G[…] in Toronto, Suite […], B[…] Street West, Toronto, ON […], [Phone number], enrollment receipt dated 25 September 2019, in the amount of $990.40.

Position of the Parties

[5] The Crown is seeking a period of incarceration of ninety days, followed by a two-year probation.

[6] The Crown submits that this is required to give effect to the primary principles of denunciation and deterrence.

[7] The defence is seeking a non-custodial sentence, or in the alternative, a ninety-day conditional sentence.

[8] The Crown further submits, that a conditional sentence would not be appropriate, but in the event the court is willing to consider the defence's alternative argument for a conditional sentence, that the period to be served under a conditional sentence should be for a longer period than ninety days.

[9] I have concluded that J.P. should be sentenced to a conditional sentence of ninety days, to be served in the community, subject to conditions, imposed under section 742.3 of the Criminal Code.

[10] These are my reasons.

Summary of Jurisdictional Facts

[11] The accused, J.P. was born on […] 1999.

[12] The original information alleged the offence of sexual assault took place sometime during a period of just over one year, from 1 February 2017 to 3 February 2018.

[13] The Crown elected to proceed summarily on 5 June 2018.

[14] The offence took place while the victim, J.S., and J.P. were living under one roof in their father's home in Toronto.

[15] They are stepbrothers, having been born to different mothers.

[16] On […] 2017 J.S. turned sixteen.

[17] The accused and the victim are separated in age by just under two and one-half years.

[18] In my reasons for judgment at trial, I concluded that unwanted sexual touching by J.P. of his step-brother was persistent and took place during a portion of the time period set out in the information, but I was unable to conclude that the unwanted touching took place before the victim was sixteen.

[19] As a result, the finding of guilt of the offence of sexual assault does not attract a mandatory minimum sentence, and a Conditional Sentence, as set out in section 742 of the Criminal Code, and following, is an available sentencing option in this case.

LEGAL FRAMEWORK

[20] The Criminal Code of Canada provides:

Assault

265 (1) A person commits an assault when

(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Application

(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.

R.S., c. C-34, s. 244; 1974-75-76, c. 93, s. 21; 1980-81-82-83, c. 125, s. 19.

Sexual Assault

271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

R.S., 1985, c. C-46, s. 271; R.S., 1985, c. 19 (3rd Supp.), s. 10; 1994, c. 44, s. 19; 2012, c. 1, s. 25; 2015, c. 23, s. 14.

Purpose and Principles of Sentencing

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

R.S., 1985, c. C-46, s. 718; R.S., 1985, c. 27 (1st Supp.), s. 155; 1995, c. 22, s. 6; 2015, c. 13, s. 23

Offences Against Children

718.01 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.

2005, c. 32, s. 24

Fundamental Principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

R.S., 1985, c. 27 (1st Supp.), s. 156; 1995, c. 22, s. 6

Other Sentencing Principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender's spouse or common-law partner,

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

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

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

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F); c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24; c. 23, s. 16; 2017, c. 13, s. 4

Victim Impact Statement

722 (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.

(2) As soon as feasible after a finding of guilt and in any event before imposing sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victim with an opportunity to prepare a statement referred to in subsection (1).

(3) On application of the prosecutor or a victim or on its own motion, the court may adjourn the proceedings to permit the victim to prepare a statement referred to in subsection (1) or to present evidence in accordance with subsection (9), if the court is satisfied that the adjournment would not interfere with the proper administration of justice.

(4) The statement must be prepared in writing, using Form 34.2 in Part XXVIII, in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction.

(5) The court shall, on the request of a victim, permit the victim to present the statement by

(a) reading it;

(b) reading it in the presence and close proximity of any support person of the victim's choice;

(c) reading it outside the court room or behind a screen or other device that would allow the victim not to see the offender; or

(d) presenting it in any other manner that the court considers appropriate.

(6) During the presentation

(a) the victim may have with them a photograph of themselves taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings; or

(b) if the statement is presented by someone acting on the victim's behalf, that individual may have with them a photograph of the victim taken before the commission of the offence if it would not, in the opinion of the court, disrupt the proceedings.

(7) The victim shall not present the statement outside the court room unless arrangements are made for the offender and the judge or justice to watch the presentation by means of closed-circuit television or otherwise and the offender is permitted to communicate with counsel while watching the presentation.

(8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion.

Evidence concerning victim admissible

(9) Whether or not a statement has been prepared and filed in accordance with this section, the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.

R.S., 1985, c. C-46, s. 722; 1995, c. 22, s. 6; 1999, c. 25, s. 17(Preamble); 2000, c. 12, s. 95; 2015, c. 13, s. 25

Conditional Sentence of Imprisonment

Definitions

742 In sections 742.1 to 742.7,

change, in relation to optional conditions, includes deletions and additions; (modification)

optional conditions means the conditions referred to in subsection 742.3(2); (conditions facultatives)

supervisor means a person designated by the Attorney General, either by name or by title of office, as a supervisor for the purposes of sections 742.1 to 742.7. (agent de surveillance)

R.S., 1985, c. C-46, s. 742; R.S., 1985, c. 27 (1st Supp.), s. 165; 1992, c. 11, s. 15; 1995, c. 22, s. 6.

Imposing of conditional sentence

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;

(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that

(i) resulted in bodily harm,

(ii) involved the import, export, trafficking or production of drugs, or

(iii) involved the use of a weapon; and

(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:

(i) section 144 (prison breach),

(ii) section 264 (criminal harassment),

(iii) section 271 (sexual assault),

(iv) section 279 (kidnapping),

(v) section 279.02 (trafficking in persons — material benefit),

(vi) section 281 (abduction of person under fourteen),

(vii) section 333.1 (motor vehicle theft),

(viii) paragraph 334(a) (theft over $5000),

(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),

(x) section 349 (being unlawfully in a dwelling-house), and

(xi) section 435 (arson for fraudulent purpose).

1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1; 2012, c. 1, s. 34.

CASE LAW

Fundamental Principles

[21] My colleague, Justice Peter West, sitting in this court in Newmarket, sets out the underlying approach judges in Canada should adopt, in his view, when applying Part XXIII, the sentencing provisions in the Criminal Code, in paragraph 24 of his judgment in R. v. Andrews, [2019] O.J. No. 3351:

24 The purpose of sentencing is set out in s. 718 of the Criminal Code. I am of the view it is important to indicate what this section sets out and the sections that follow because I believe this is where the applicable principles of sentencing are defined for criminal cases. I will preface what these sections set out by indicating in Canada revenge is not an appropriate sentencing principle. Offenders are not incarcerated for the purpose of establishing an equivalence between the loss of the victims and the sanction imposed by the Court. Rather, the Court is required to recognize the inherent worth and dignity of the offender and, having balanced the principles provided by the Criminal Code, determine a fit sentence in the circumstances of the case. This is our tradition in Canada, a tradition which has a long and respected history both in Canada and other free and democratic societies throughout the world.

Proportionality

[22] In R. v. Priest, [1996] O.J. No. 3369 (C.A.), at paragraph 26, Justice Marc Rosenberg explains the principle of proportionality in sentencing:

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.

Restraint

[23] In R. v. Wismayer, [1997] O.J. No. 1380 (C.A.), Justice Rosenberg, in review of the trial judge's twelve-month sentence of incarceration, involving a sexual assault of a child, allowed the sentence appeal and permitted the custodial sentence to be served in the community pursuant to a conditional sentence.

[24] In his reasons, he explained the principle of restraint in sentencing, when applied to the imposition of a conditional sentence:

68 To summarize, s. 742.1 and the companion provisions are designed to give effect to the important principle of restraint in the use of incarceration and should be given a suitably large and liberal construction. Having decided to impose a sentence of less than two years, the trial judge must take into account all of the relevant principles, objectives and factors of sentencing in determining whether or not to impose a conditional sentence of imprisonment. The principal factor, however, should be whether permitting the offender to serve the sentence in the community under a conditional sentence order would endanger the safety of the community because of the risk that the offender will re-offend.

Conditional Sentences

[25] In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, Chief Justice Antonio Lamer, at paragraph 127, discussed the competing factors that must be considered in deciding whether a conditional sentence is the appropriate result:

8. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

9. Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.

10. Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration. Where objectives such as denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved. However, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.

Sentencing in Cases of Sexual Assault of Children

[26] The case law establishes that in cases of sexual assault involving children, the principles of denunciation and deterrence must take precedence. (See R. v. Al-Shimmary, [2017] O.J. No. 690, and R. v. Brar, 2016 ONCA 724, 134 O.R. (3d) 95, both from the Ontario Court of Appeal, and R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6.)

[27] The case law also reveals that in cases involving external sexual touching of children, where there are the most mitigating of circumstances, sentences of 90 days imprisonment are appropriate, while in the more aggravated cases, especially involving breaches of trust and repetition, sentences between six months and fifteen months have been imposed. (See R. v. Hussein, 2017 ONSC 4202, [2017] O.J. No. 3567, Code, J. and R. v. M.L., [2016] O.J. No. 5846, Linhares de Sousa, J., both sitting as trial judges in the Ontario Superior Court.)

The Availability of a Conditional Sentence

[28] In R. v. Andrews, (supra) [2019] O.J. No. 3351, at paragraph 34 of his judgment, Justice Peter West of this court set out the preconditions for granting a conditional sentence pursuant to 742.1 of the Criminal Code, in sexual assault cases:

34 There are five prerequisites for the imposition of a conditional sentence.

(1) The offender must be convicted of an offence that is not specifically excluded (e.g. sexual assault, when prosecuted by indictment).

(2) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.

(3) The court must impose a sentence of imprisonment that is less than two years.

(4) The safety of the community would not be endangered by the offender serving the sentence in the community.

(5) The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

APPLICATION TO THE CASE

The Offender and the Offence

[29] The accused, J.P. was born on […], 1999.

[30] J.P. was eighteen-years old during the timeframe of the allegation before the court, from 1 February 2017 to 3 February 2018.

[31] The victim, J.S. was born in Peru on […], 2001 and came to Canada at the age of fifteen in approximately September of 2015, with his sister, Je., and his mother.

[32] J.P. is their stepbrother.

[33] The offence occurred while J.P. was living with his younger stepbrother, the victim, and his stepsister in their father's home in Toronto.

[34] In my reasons for judgment at trial, I concluded that unwanted sexual touching by J.P. of the victim was persistent and took place during a portion of the time period set out in the information, but after the victim was sixteen.

[35] I specifically did not make a finding of digital penetration, as initially alleged by the Crown, at trial.

Background of the Offender

[36] The Pre-Sentence Report, dated 16 September 2019, was prepared by Probation and Parole Officer Adriano Stellato and is filed as Exhibit 1, in this Sentencing Hearing.

[37] From Exhibit 1, I have learned the following:

[38] J.P. was born into a subline in which he was the youngest of three children.

[39] He has two older biological full brothers, aged 26 and 21 with whom he now resides, along with his mother, E.P., and he has a positive relationship with his mother and his older brothers.

[40] He described his relationship with his mother as very supportive and stated to Adriano Stellato that his mother was his "best friend".

[41] He informed Mr. Stellato that he was living with his father, M.G., at the time of the offence.

[42] J.P.'s parents, E.P. and M.G., separated when he was approximately thirteen years old and he took the separation very hard and as a result, was an in-patient at Humber River Hospital for a period of three weeks during which he received counselling.

[43] When he was discharged from Humber River Hospital, his mental state was deemed to be improved, and positive.

[44] J.P. began working at the age of sixteen, where he obtained seasonal employment as a server and other tasks at an amusement park and various banquet halls.

[45] J.P. also worked with his father and his now employed by his mother, assisting with her […] company of which she is president.

[46] J.P. has now enrolled G[…] Toronto, Suite […], B[…] Street West, Toronto, ON […], [Phone number], as confirmed by counsel by enrollment receipt dated 25 September 2019, in the amount of $990.40.

[47] E.P. and M.G. described him to Mr. Stellato as a kind, family oriented and respectful person who has not displayed any offence-related behaviour in their presence during his time with them.

[48] I note that during J.P.'s sentencing hearing both his biological parents, and his aunt, Ma.G., came to court with him and attended the hearing.

[49] M.G. specifically told Mr. Stellato that during the time period of the allegations before the court, when J.P. was living with him, he had not witnessed the sexual behaviour set out in the findings I made after trial.

Attitude Towards the Findings of this Court

[50] Adriano Stellato reports in Exhibit 1, that J.P. continues to deny committing the offence.

Impact of the Offence on the Victim

[51] There was no Victim Impact Statement ("VIS"), prepared or tendered in this sentencing proceeding, on behalf of J.S. pursuant to Part XXIII, section 722 of the Criminal Code.

[52] The court was advised that although efforts had been made to contact the victim, after my judgment of 21 May 2019, he did not appear to be willing to provide a VIS for this sentencing hearing.

[53] However, sub-section 722(9) permits me to consider "victim-impact" evidence that arose during the trial testimony.

[54] During the trial, J.S. agreed with defence counsel's assertion that he was upset when he discovered that his stepbrother had posted pictures of him on Snapchat, and that this bothered him because his friends assumed that he was gay.

[55] J.S. also testified at trial that the unwanted sexual touching and behaviour was so bothersome and persistent that he decided to make his complaint to the Toronto Police.

[56] From these statements at trial, which were also found in similar assertions in his 715.1 Statement to Detective Constable Michelle Bond, it is clear that J.S. was vexed and annoyed by his stepbrother's continuing and persistent behaviour.

[57] For the purposes of this sentencing hearing I therefore find that his level of discomfort was enough to cause him to seek police intervention.

Mitigating Circumstances

[58] At the time of the commission of this offence, J.P. had up to then lived a pro-social life and not showed any signs of criminality that would have required police intervention.

[59] There has been no evidence of any other anti-social behaviour during the time this matter has been before the courts, commencing with the swearing of the information, herein, in February of 2018.

[60] J.P. now resides in a stable family environment with his biological mother and two older brothers.

[61] He has continued to pursue self-improvement in his chosen field of make-up and personal grooming, by enrolling in the G[…] in Toronto.

[62] He has the continuing support of both his biological parents, and his extended family in Canada, on his mother's side, and his paternal aunt.

[63] Other than the instant offence, he has no criminal record.

[64] These are all mitigating factors.

Aggravating Circumstances

[65] The offence occurred in a family setting.

[66] To this day, J.P. does not admit the criminal conduct, that I find he committed.

[67] To summarise, both in his trial testimony and his responses to questions from the probation officer, as set out in the pre-sentence report of 16 September 2019 he still appears to lack sufficient insight into his behaviour.

[68] These are aggravating factors.

What is a Proportionate and Fit Sentence?

[69] In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, Chief Justice Antonio Lamer, at paragraph 127, stated:

There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future.

[70] In my view, this is not such a case.

[71] The paramount factor in granting a conditional sentence order as set out in section 742.1 states:

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

[72] In my view J.P.'s service of his sentence in the community would not endanger the safety of the community.

[73] I further find that this would be consistent with the fundamental purpose and principles of sentencing as set out in sections as set out in sections 718 to 718.2.

[74] Despite J.P.'s continued denial of the allegations, now findings I have made against him, I interpret his answers to Mr. Stellato as hopeful, in the long run.

[75] My reading of Exhibit 1, as recounted by the author, Probation Officer Adriano Stellato, actually suggests J.P. is gaining awareness of the issue of consent, and its role in sexual encounters.

[76] In exercising my sentencing function to arrive at a fit sentence, in the circumstances of this case, pursuant to Part XXIII of the Criminal Code of Canada, I am guided by the approach set out in paragraph 24 and following of my colleague, Justice Peter West, reasons in R. v. Andrews, [2019] O.J. No. 3351.

[77] I am also guided by the principles of proportionality and restraint, as set out in reasons of Justice Marc Rosenberg, in the Ontario Court of Appeal, in his appeal rulings in R. v. Priest, [1996] O.J. No. 3369 (C.A.) and R. v. Wismayer, [1997] O.J. No. 1380 (C.A.).

[78] I have therefore concluded that the principles of general deterrence and denunciation can be adequately reflected in a ninety-day conditional sentence followed by a two-year probation order that includes a community service order.

[79] I also conclude that a combination of community service and counselling can reflect the principle of rehabilitation, and hopefully permit J.P. to compensate society for what he has done and assist him to come to terms with the harm he inflicted on the victim.

[80] It is my view that this is the best way to protect society going forward.

[81] In my view, J.P. is not likely to be back before these courts if he can successfully fulfill his obligations under the sentence I am imposing today.

[82] In my view the principle of rehabilitation in the form of counselling and in making reparations to the community through community service will hopefully assist J.P. to better understand the sexual boundaries he must respect as an adult in society, moving forward in his life.

[83] In my view, a carceral jail sentence is not needed to bring this home to J.P.

[84] It is my view a three-month conditional sentence, served in the community, is a proportionate sentence having regard to the gravity of this offence and J.P.'s moral blameworthiness.

[85] For these reasons, I have concluded that a conditional sentence in the circumstances of this case can and does meet all the five prerequisites set out in s. 742.1 of the Criminal Code, above.

THE SENTENCING ORDER

Conditional Sentence Conditions

[86] J.P. will be subject to the following Statutory Conditions:

1. Keep the peace and be of good behaviour;

2. Appear before the Court when required to do so;

3. Report in person to a supervisor immediately and thereafter report when required by the supervisor and in a manner directed by the supervisor;

4. Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province;

5. Notify the Court or supervisor in advance of any change of name or address and promptly notify the Court or supervisor of any change in employment or occupation.

Additional Conditions

1. Live at a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in writing in advance;

2. You must report immediately to the supervisor and thereafter as required by your supervisor or any person designated to assist in your supervision.

House Arrest

3. This condition will be in effect for the three months of the sentence;

4. You are always to remain in your residence:

EXCEPT

i. for three hours on Sundays in order to acquire the necessities of life;

ii. for any medical emergencies involving you or any member of your immediate family (mother or siblings);

iii. for purposes of employment as confirmed by your conditional sentence supervisor), or to attend the G[…], Suite […], B[…] Street West, Toronto, Ontario;

iv. for travel directly to and from your employment or education, outside your home, at the G[…], Toronto;

v. for travel directly to and from or being at religious services;

vi. for travel directly to and from or being at assessment, treatment or counselling sessions;

vii. for travel directly to or from and performing community service;

viii. for travel directly to and from or at scheduled meetings with your supervisor;

ix. for travel directly to and from or at scheduled medical or dental appointments;

x. you will confirm your schedule in advance with the conditional sentence supervisor setting out the times stipulated above or those agreed to with your supervisor, which will be put into a letter by your supervisor and you will carry it on your person when outside your residence; and

xi. with the prior written approval of your conditional sentence supervisor respecting anything not covered by the above conditions, which arise unexpectedly.

5. During your period of home confinement:

a. Do not change your place of residence without first obtaining the written permission of your supervisor;

b. you must present yourself at your doorway upon the request of your conditional sentence supervisor or a peace officer for the purpose of verifying your compliance with your home confinement condition.

6. You shall make yourself available by phone or in person as may be required at any time during house arrest/home confinement;

7. You shall reside at an address approved by your Conditional Sentence Supervisor and/or designate and not change your address without prior written permission of your Supervisor;

8. You must remain in your own residence except for purpose of employment, medical appointments, dental appointments, medical emergencies involving yourself, family members, parents, siblings or partner or her immediate family members, religious services and legal obligations regarding compliance with this conditional sentence (counselling, community service, court attendances or meetings with your supervisor);

No Contact/Communication/Attendance

9. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with J.S. EXCEPT: in the presence of or through your parents, or legal counsel in court proceedings.

10. Do not be within 100 metres of any place where you know J.S. to live, work, go to school, worship, frequent or any place you know them to be EXCEPT; in the presence of your parents, or legal counsel in court proceedings.

Counselling and Treatment

11. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the conditional sentence supervisor, including but not limited to:

• Programs addressing sexual assault and understanding of consent; or
• Any other counselling your conditional sentence supervisor deems appropriate.

12. You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

13. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Community Service

14. Perform 50 hours of community service work on a rate and schedule to be directed by the supervisor. The community service is to be started during the conditional sentence and must be completed within the first twelve months of the start date of your probation order, which follows the conditional sentence order.

Probation

[87] J.P. will also be subject to a two-year probation order:

The Conditional Sentence order is to be followed by two (2) years of probation with the following terms:

1. Statutory terms, including keep the peace and be of good behaviour;

2. Report to probation officer as required;

3. The reporting condition under the probation order ends when you have satisfied your probation officer that you have completed all your counselling and completed all of your community service hours;

4. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with J.S. EXCEPT in the presence of your parents or through legal counsel or court proceedings;

5. Do not be within 100 metres of any place where you know J.S. to live, work, go to school, worship, frequent or any place you know J.S. to be EXCEPT for required court attendances;

6. Continue counselling if not yet completed;

7. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

8. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

9. Complete remainder of community service hours commenced during conditional sentence order, if necessary, and, remaining community service hours must be completed within first twelve (12) months of commencement of probation.

Ancillary Orders

[88] J.P. will also be subject to the following ancillary orders:

1. There will be a SOIRA order as the accused has been convicted of one "designated offences," pursuant to the combination of ss. 490.012(1) and 490.013(2.1) of the Criminal Code I make an order requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 10 years.

2. There will also be a DNA order pursuant to s. 487.051(1) of the Criminal Code, I make an order requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The sexual offence committed by the accused is a "primary designated offence" as defined in s. 487.04 (a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.

[89] Counsel may address me on the return of this matter today, with respect to the drafting of the Conditional Sentence, Probation or ancillary orders, if they see fit.

Released: 27 September 2019

Signed: "Justice Paul H. Reinhardt"