CITATION: R. v. D.S., 2021 ONCJ 671

DATE: February 18, 2021

Court File No. 4815 998

ONTARIO

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

V.

D.J.S.

BEFORE: THE HONOURABLE JUSTICE E.J. KELLY

this 18th day of February, 2021 at Toronto, Ontario

REASONS FOR SENTENCE

(Publication Request)

APPEARANCES:

S. ROTHMAN Counsel for the Crown

B. EBERT Counsel for Mr. S.

THURSDAY, FEBRUARY 18, 2021

MR. EBERT: All the parties are here Your Honour.

THE COURT: Yes, thank you all for attending. Good morning. And I apologize for keeping everyone waiting this morning. What I propose to do, I guess you can’t see me yet. Let’s just wait for a moment and make sure that I can be seen. We will just give it a few minutes. The good thing is that I can see everybody, I think. And again, Mr. S. and Mr. Ebert are here.

(COURT REPORTER’S NOTE: At this time, adjustments were made to the on-site audio/visual equipment to see all parties not in court in person.)

THE COURT: Welcome everyone. What I propose to do is to deliver judgment this morning. Sometimes I will be looking away from people; I will be looking down at my notes or looking in a different direction. I do not mean to be impolite, but it’s sometimes hard to read. I will deliver the judgment and then after the judgment is delivered, there may be a few questions that I ask counsel about community supervision orders and ancillary orders. Detailed questions were addressed last time, but sometimes they must be ironed out as we go along. That will be at the end of the process. Before we start, I would like to indicate that I did communicate with counsel last week, and indicated that I was willing to hear their submissions with respect to a delay; not of my judgment today, but of the imposition of sentence. I did not hear from Mr. Rothman, but I did hear from Mr. Ebert last night. Mr. Ebert thank you for your communication last night.

MR. EBERT: Thank you, Your Honour.

THE COURT: I spoke to counsel because of my concern about circumstances in the detention centres that are related to the public health emergency and the issues with respect to the transmission of the COVID virus. In any event, I considered whether to delay-not the judgment today but the imposition of sentence given our current circumstances. Mr. Ebert and Mr. S. have talked about this issue, and my understanding is Mr. S. would like to proceed today. That is still the case, is it Mr. Ebert?

MR. EBERT: That’s correct, Your Honour.

THE COURT: Understandable. This case has been going on a long time and all of us want it to be completed today.

MR. ROTHMAN: Your Honour, may I say something quickly?

THE COURT: Yes.

MR. ROTHMAN: I believe the email should properly be made an exhibit given it’s a communication out of court in relation to the sentencing.

THE COURT: Yes, I was just going to say that, Mr. Rothman. I am looking for it because I made copies of it. Mr. Ebert, is your view the same, that this email should be made an exhibit?

MR. EBERT: Certainly, Your Honour, I take no issue with it.

MR. ROTHMAN: Your Honour, I didn’t respond because I take it Your Honour when I got notice, I may be required to make submissions and I didn’t want to make them in advance, so that’s why I didn’t respond, but I do appreciate the correspondence.

THE COURT: Mr. Rothman, I did not actually need to hear back from you. I just wanted you both to be ready; I did not want to take you both by surprise or, of course, Mr. S. either. I cannot find that email right at the moment. I know I have got it upstairs, but I intend to make it an exhibit.

MR. EBERT: Your Honour, it is not too difficult for me to put it in a PDF that I could send to Mr. Clerk. Whichever is easier.

THE COURT: Yes. If you could do that, that would be great.

MR. EBERT: Sure.

THE COURT: Mr. Clerk, there will be an email that was sent to Mr. Rothman and Mr. Ebert, and there was a response from Mr. Ebert just last night.

Also too, one of the things I wanted to say is that my written judgment had some grammatical errors, which is always the case with my written judgments. I have a new copy that not only corrects some grammatical errors, but provides paragraph numbers that were a little bit off near the end of the judgment. Now, I have got physical copies of that document, and Mr. Clerk, I think this document should be made an exhibit. I will pass it over there. I will provide Mr. Ebert with a copy of this document now. Mr. Clerk, if you don’t mind?

COURT CLERK: Sure.

THE COURT: I will send the document to you, Mr. Rothman, electronically, some time later today, if that is okay with you?

MR. ROTHMAN: Okay, thank you, Your Honour.

THE COURT: I will now deliver judgment with respect to the proceeding involving D.S.

KELLY, J: REASONS FOR SENTENCE: (Orally):

1. INTRODUCTION:

Mr. D.S. was arrested and charged with the offences of sexual interference, Criminal Code s.151 and sexual assault, Criminal Code s.271(1) on the 4th of December, 2018. The information charging Mr. S. was sworn on December 6, 2018 and specified offence dates commencing on May 1, 2012, and continuing to October 1, 2013. These offence dates were later amended on consent to September 1, 2013 and October 31, 2013.

The complainant is M.B., Mr. S.’s niece. She was 10 years old during the second of the above-mentioned time periods. Mr. S. was a young adult during the second time period. Ms. B. alleged that the above-mentioned offences occurred in her home while Mr. S. was living there with her and her family. Following his arrest, Mr. S. was released on his own undertaking with conditions. Pursuant to the Criminal Code s.486.4(1) a ban on the publication of information relating to the proceedings remains in effect.

Mr. S.’s trial commenced on July 27, 2020, and continued on July 28, 2020. Counsel made submissions about the evidence on July 31, 2020. Judgment was delivered on October 8, 2020. Mr. S. was found guilty of both of the above-mentioned offences. A pre-sentence report was ordered, and the sentencing hearing was adjourned. Reasons for Judgment were released on or about November 27, 2020, and today I have provided counsel with an amended copy that addresses grammatical errors, and some errors with respect to paragraph numbers. Counsel made submissions with respect to sentence on December 3, 2020.

Counsel made a joint recommendation that the sexual assault count be conditionally stayed and that Mr. S. be sentenced in relation to the count of sexual interference. Judgment with respect to the sexual interference count was reserved until today’s date.

The following documents were made exhibits at the sentencing hearing:

(1) The pre-sentence report of Nicole Buuckett, Probation Officer, dated November 19, 2020.

(2) Ms. B.’s victim impact statement.

(3) P. B.’s victim impact statement.

(P.B. is Ms. B’s mother.)

(4) A letter of S.G., [company name redacted] Building, Co-owner, dated October 26, 2020.

(5) A transcript of the October 8, 2020 proceedings; and,

(6) A letter of D.S. dated December 1, 2020.

2. CIRCUMSTANCES OF THE OFFENCES:

Some time during the summer or autumn of 2013, when M. B. was 10 years old, Mr. S. touched her for a sexual purpose and sexually assaulted her on four occasions in the basement of the B. family residence, at times when they were alone there together. In each instance, Mr. S. lowered Ms. B.’s pants, and underwear, and his own pants as well. He placed Ms. B.’s hand on his penis and clasped his hand over hers. He moved Ms. B.’s hand in a stroking motion over his penis. With his other hand, he touched Ms. B.’s genitalia. On each occasion, the sexual touching and assaults took place for several minutes and culminated with Mr. S.’s ejaculation. There is no evidence that Mr. S. engaged in any other sexually assaultive, or other inappropriate conduct in relation to M.B., either before or after the above-mentioned incidents.

3. THE CIRCUMSTANCES OF MR. S.:

The following information is based upon evidence provided by witnesses at the trial, included in the pre-sentence report, and the submissions of Mr. S.’s counsel.

Mr. S. is now 31 years old. He was 22 years old in the summer and autumn of 2013 when his criminal conduct occurred. He was born in Toronto and has always lived in the Greater Toronto Area. He was raised in the home of his mother and stepfather. Mr. S.’s sister, P.B., is 13 years older than him. They have the same mother and different fathers. Mr. S. has never met his natural father and does not know who he is. Mr. S.’s childhood and adolescence was unstable and difficult. His relationships with his mother and stepfather were troubled. Mr. S.’s mother suffered from depression. Apparently, Mr. S.’s stepfather showed little interest in him. Unfortunately, both parents abused alcohol. Mr. S. did not receive the attention and support that he needed. He acted out. In response to his oppositional and sometimes violent behaviour, and in accordance with the recommendation of an involved youth mental health agency, Mr. S.’s mother consented to his removal from the family home, and his placement in a group home. Mr. S. lived in group homes and away from his family from the ages of eight to eleven years.

During that time, Mr. S. was assessed and diagnosed with A.D.H.D., for which he was prescribed medication, and as having a learning disability. Mr. S. took medication as prescribed while he lived away from home, but not after he returned home to live. His relationship with his mother and stepfather did not improve after his return home. He was understandably bitter about his mother’s decision to allow him to live away from his family. Mr. S. did not do well at school after his return home. He claimed that he did not receive adequate accommodation for his learning disability. He believed that at this time he experienced undiagnosed depression as well.

Mr. S. left both his parents and school when he was 16 years old. He had a strong relationship with P.B. She had supported him as best she could when he was a boy. It is notable that she left the family home at the same age as her younger brother because of her negative experiences while in the care of her and Mr. S.’s mother. As the evidence adduced at the trial indicates, Mr. S. lived with his sister, her husband W. B. and their children in their Toronto residences over the next three years. When the B. family moved to a new home in either 2009 or 2010, Mr. S. moved into his own apartment. He returned to live with his sister’s family after about 10 months. He was happy to return. He considered P. and W. B. to be like surrogate parents to him and their family, their children, his family. He continued to live with the B. family and the children until 2014 at their Toronto residence, and later and briefly at their Brampton residence. P. and W. B. were separated in late 2013.

After he left his mother and stepfather’s home at age 16, Mr. S. did not have any further contact with them. While Mr. S. lived with his sister and her family, his relations with them were positive, notwithstanding his criminal behaviour in relation to Ms. B., which was unknown to anyone but her and him at the time that it occurred and for years afterward.

After Mr. S. moved from the B. family Brampton residence in 2014, his contact with P.B. and her children lessened, although he still met with them at intervals. Their relations continued to be positive until November 2018, when M. first advised her mother about Mr. S.’s sexually assaultive behaviour. Mr. S. has not had any contact with P.B., Ms. B. or any other member of the B. family since his meeting with P. and Ms. B. in November 2018 during which P.B. advised him of Ms. B.’s allegations.

Since leaving his parents’ home and school, Mr. S. has for the most part been gainfully employed. While he lived with the B. family, he always contributed by paying rent for his room. He first worked in a restaurant, then he obtained a position as a truck driver for the same drywall and building supply company that his brother-in-law worked for. Since 2017 Mr. S. has been employed as a mobile crane operator. In his current position Mr. S. has considerable responsibility. He not only operates a mobile crane, but supervises a crew of four to six other men. In a letter introduced as Exhibit Number 4 Mr. S.’s employer indicated that he was aware of Mr. S.’s prosecution. Mr. S.’s employer wrote that he considered Mr. S. to be a highly skilled and valued employee. It appears that in the current circumstances of the public health emergency Mr. S. might be reasonably considered to be an essential employee of the company as well. According to his employer, Mr. S.’s absence from his work for any significant period of time would likely result in the limiting of the company’s operations and the loss of employment of those workers that Mr. S. supervises. Mr. S. is held in such high regard by his employer that he would be offered a position with the company again even if he were to be unavailable for work for a significant period of time, as a result of being sentenced to custody.

There is no reason to believe that Mr. S. has any problem with addiction. He admitted that he smoked marihuana regularly, but in moderate amounts. There is no apparent connection between his criminal conduct and his consumption of alcohol or non-medically prescribed drugs. Mr. S. denied ever being subject to physical or sexual abuse as a child or as a young person. He acknowledged that he has viewed pornography regularly since his adolescent years. He denied that he has any interest in or that he has ever viewed child pornography.

Mr. S. is estranged from all of the members of his immediate and extended family. Any reconciliation seems to be highly unlikely, at least at present. Mr. S. claimed that the loss of his relationships with his family has been very difficult for him.

He does have the support of his girlfriend, a young woman with whom he appears to have a positive relationship of some duration. She attended at the trial proceedings and heard the evidence. She continues to support Mr. S. notwithstanding the verdicts that have been rendered. She considers Mr. S. to be a person of good character. She described him as being a “gentle human being.” She indicated that she did not believe that he committed the offences that he has been found guilty of. She said that she believes that he needs to address issues related to his difficult childhood experiences at home and in group homes and his relationships with his parents through counselling.

Mr. S. maintained his innocence as well. In his conversation with Ms. Buuckett, the author of the pre-sentence report, he suggested that Ms. B. falsely accused him in order to gain attention. Ms. Buuckett described Mr. S. as being “co-operative and forthcoming” during his interviews with her. However, she expressed concern about Mr. S.’s unwillingness to accept responsibility for his criminal conduct. She wondered whether his denial would interfere with his ability to participate meaningfully in rehabilitative activities. She noted that while he expressed a willingness to comply with the conditions that may be imposed as part of a community supervision order, he indicated that he would not consider submitting to phallometric testing.

4. MR.S.’S WRITTEN STATEMENT:

Mr. S. maintained that he did not commit the offences that he was found guilty of. Nevertheless, he indicated that he would accept whatever punishment that was imposed. He asked that consideration be given to the whole of his life experience, including the challenges that he faced as a boy, especially those relating to his lengthy separation from his mother and stepfather, and his diagnoses of A.D.H.D. and A.D.D. He stressed that he had chosen to live with his sister and her family for many years because he wanted to help them. He characterized himself as being “quiet and emotional,” and not a “bad” or “greedy” person. He expressed his commitment to his girlfriend and acknowledged the support that she provided to him in recent years. Mr. S. suggested that a jail sentence would be unproductive for him as it would preclude him from making a positive contribution through his work as he has always done. He said that he had already received the most significant punishment, the end of his relationships with his sister and all the other members of her family.

5. THE VICTIM IMPACT STATEMENT OF M.B.:

Ms. B. indicated that her experience of being subject to Mr. S.’s sexually assaultive behaviour has affected her in numerous detrimental ways. She said that she felt that her innocence had been taken away from her, that she is uncomfortable around older men, that her relationships with boys her own age have been distorted, that she has lost confidence and felt depressed and anxious around other people, that she has engaged in self-harming behaviours and that she has even contemplated suicide. Ms. B. said that it was difficult for her to keep the secret of her abuse to herself for so many years, and even more difficult to tell her mother, knowing that the disclosure would cause her

great pain. Ms. B’s statements suggest that she is still angered, saddened and vulnerable as she contemplates her victimization.

6. THE VICTIM IMPACT STATEMENT OF P.B.:

P.B. seems to have suffered as much as her daughter as a result of Mr. S.’s conduct. It has been painful for P.B. to come to the realization that the dramatic deterioration in her daughter’s emotional well-being years back was related to Mr. S.’s sexual assaults of her. P.B. considered her brother’s conduct to be a complete betrayal of her trust. She confided in him about her daughter’s anxiety and self-harming behaviours. He knew that his conduct was the cause of Ms. B.’s problems, yet he did not advise his sister. P.B. noted that her brother’s conduct has not only impacted upon her daughter and her, but the rest of her family as well. After finding out about Mr. S.’s abuse of Ms. B., her brothers have been angry and guilt-ridden. Learning about her daughter’s abuse has been devastating for P.B. Her anger and grief persist. She is self-isolating and has continued to experience nightmares and panic attacks.

7. THE CROWN’S SUBMISSIONS AND RECOMMENDATIONS WITH RESPECT TO SENTENCE:

Crown counsel recommended that Mr. S. be sentenced to 18 months jail, and that he be placed on probation for three years with conditions including that he participate in counselling as directed by his probation officer, that he not possess any weapons as defined by the Criminal Code, and that he have no contact or communicate with Ms. B. or any members of her immediate family. Crown counsel also recommended that Mr. S. be prohibited from possessing weapons as defined by the Criminal Code pursuant to s.110 for a period of 10 years. Crown counsel applied for an order requiring Mr. S. to comply with the Sexual Offender Information Registration Act (SOIRA) for a period of 10 years. Crown counsel also applied for an order pursuant to Criminal Code s.161 prohibiting Mr. S. from attending at public parks or other places, as specified by s.161(1)(a) and seeking or obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years, pursuant to Criminal Code s.161(1)(b), for a period of 20 years. Crown counsel did not recommend that Mr. S.’s use of internet or other digital network be subject to conditions pursuant to s.161(1)(d). Crown counsel did recommend that pursuant to Criminal Code s.743.21 Mr. S. be prohibited from communicating with Ms. B. or members of her immediate family during the custodial period of any sentence that he is required to serve. Crown counsel noted that pursuant to Criminal Code s.487.04(a) sexual interference is categorized as a primary designated offence. Pursuant to Criminal Code s.487.051(1), an order authorizing the taking of bodily samples from Mr. S. reasonably required for the purpose of forensic D.N.A. analysis must be made.

While Crown counsel was opposed to the imposition of a conditional sentence, he agreed that this sentencing alternative was available as a consequence of the ruling of Justice Schreck in the decision of the R. v. Drumonde [2019] O.J. No. 731 [74] that the ninety-day mandatory minimum sentence for sexual interference, where the Crown has elected to proceed by summary conviction, infringes the Charter of Rights and Freedoms s.12 right against cruel and unusual punishment. As the offence no longer attracts a mandatory minimum sentence, Criminal Code s.742.1(b) does not preclude the imposition of a conditional sentence, the Crown conceded. Crown counsel did not directly address the question as to whether pursuant to Criminal Code s.742.1(c) a conditional sentence was not available because where the Crown proceeds by indictment, the maximum term of imprisonment is 14 years. However, Crown counsel was aware of the decision of R. v. P.M. [2019] O.J. No. 6176 [8-12] where this issue was discussed. An assumption is made that Crown counsel accepted, for the purposes of this proceeding at least, that s.742.1(c) does not preclude the consideration of a conditional sentence.

I should note at this point that counsel Mr. Ebert provided useful submissions with respect to the issues that I have just discussed, and I appreciate that.

In submissions in support of his recommendation for an 18-month jail sentence, the maximum sentence available given the election to prosecute the offence summarily, Crown counsel referred to the authority of R. v. Solowan 2008 SCC 62, [2008] 3 S.C.R. 309 [3,15,16] and the proposition that:

‘The “worst offender, worst offence” principle no longer precluded the imposition of a maximum sentence where a sentence is otherwise appropriate.’

Crown counsel also referred to authorities including Drumonde [75], mentioned above, as well as R. v. Woodward 2011 ONCA 610, R. v. D.J.B., 2018 ONCA 566, R. v. C.G., 2019 ONSC 6173, R. v. D.A.P., 2009 ABCA 72, R. v. F.C., 2011 ONSC 7037, R. v. G.W.H., 2004 ABPC 241, R. v. Lazar, 2019 ONCJ 185, and R. v. M.G.F., 2010 ABCA 102, in support of his position that an 18-month custodial sentence is appropriate. Crown counsel noted that in many of the cases that he referred to substantial custodial sentences were imposed for conduct of a similar nature to that which Mr. S. has been found to have committed. Crown counsel also commented extensively about and placed the most reliance upon R. v. Friesen, [2020] SCC 9, the recent decision of the Supreme Court of Canada, which offers detailed consideration of issues relating to the sentencing for sexual offences against children. Crown counsel noted that in Friesen the Supreme Court encouraged the reconsideration of dated sentencing precedents that do not adequately reflect parliamentary intent and the gravity of sexual offences against children and the harm that these offences caused, as currently understood. Crown counsel considered many of the decisions referred to by defence counsel as being in the category of dated authority with limited precedential value, post Friesen. According to Crown counsel, Friesen marks the Supreme Court’s unequivocal direction to sentencing judges to place greater emphasis upon the sentencing objectives of denunciation and deterrence. According to Crown counsel, the direction applies to the sentencing of Mr. S. Given the aggravating circumstances and the absence of mitigating circumstances in Mr. S.’s case, anything but a lengthy sentence of imprisonment would be an inadequate response and in conflict with the most current and binding sentencing authorities.

8. DEFENCE SUBMISSIONS AND RECOMMENDATIONS WITH RESPECT TO SENTENCE:

Defence counsel recommended Mr. S. be sentenced to a one-year conditional sentence, and that this sentence be followed by a period of probation for two years. Counsel acknowledged that the S.O.I.R.A. and D.N.A. ancillary orders were mandatory. Counsel was opposed to a prohibition against the attendance at public parks and other places as specified by Criminal Code s.161(1)(a). In the alternative, counsel recommended that an exception to this prohibition be provided when Mr. S. was in the company of an adult who was aware of the existence of the Criminal Code s.161(1)(a) order. Counsel was not opposed to a s.161(1)(a.1) prohibition against Mr. S.’s attendance at Ms. B.’s residence or a s.161(1)(b) prohibition against obtaining or continuing employment or volunteer work that involves being in a position of trust or authority in relation to a person under the age of 16 years. However, Mr. S.’s counsel’s view was that any s.161 orders should be in effect for a period of no more than five years.

Counsel did not make any submissions with

respect to the Criminal Code s.110 weapons prohibition order or a Criminal Code s.743.2(1) order prohibiting Mr. S.’s contact with Ms. B. and her family if and when he is incarcerated.

Counsel reasonably acknowledged the importance of the objectives of denunciation and deterrence in cases involving the sentencing of offenders who have committed sexual assaults against children. However, he suggested that notwithstanding the Supreme Court’s ruling in Friesen, a conditional sentence was still an alternative that should be seriously considered when making the determination with respect to Mr. S.’s sentence. He referred to several decisions including rulings of the Ontario Court of Appeal where conditional sentences or sentences of brief imprisonment were imposed or considered appropriate for conduct similar to or even more serious than that which Mr. S. committed, including: R. v. B.S., 2004 32226 (ON CA), [2004] O.J. No. 1170 [5], R. v. R.J.E., [1999] B.C.J. No. 1115 [17-19], R. v. A.C., 2012 ONCA 608, [2012] O.J. No. 4293 [10], R. v. Anderson, [2017] O.J. No. 1218 [5, 17-22], R. v. Wismayer, 1997 3294 (ON CA), [1997] O.J. No. 1380 [page17], and R. v. P.P., [2001] O.J. No. 5671. Counsel argued that even in the aftermath of Friesen, custodial sentences for sexual offences against children had not increased as dramatically as Crown counsel suggested.

Counsel urged that Mr. S.’s history and current circumstances be carefully considered and that they be regarded as being very substantially mitigating. Counsel referred to Mr. S.’s pro-social lifestyle, his stable employment and residence and, more recently, his strong and supportive relationship with his girlfriend and with his girlfriend’s family. Counsel noted as well that Mr. S. had abided by the conditions of his release for over two years, and argued that there is an absence of evidence indicating that Mr. S. presents an ongoing risk. Counsel argued that it would be possible to design a conditional sentence which included liberty restrictions that were sufficiently punitive to address the objectives of denunciation and deterrence, but also to permit Mr. S. to maintain his employment and productive lifestyle.

Counsel emphasized the challenges that Mr. S. has overcome, and how much progress that he has made over many years to bring some normalacy to his life. But he also suggested that Mr. S.’s financial resources were limited, and that an extended absence from employment would be a significant setback for him. The implication of counsel’s submission was that Mr. S.’s progress to date would be jeopardized if he were to be sentenced to a lengthy term of imprisonment, even if he was able to resume employment after his release from custody.

Counsel asked that consideration be given to the increased risk of contracting COVID-19 that Mr. S. would face if he were to be incarcerated during the pandemic. Counsel noted that Mr. S. had chronic bronchitis, and that he may be susceptible to more severe illness if he contracted the virus. Counsel did not provide any documentation about his client’s condition and he did not argue that the risk that his client faced was extreme as a result of his condition. Counsel did refer to R. v. Hearns, 2020 ONSC 2365 as authority for the proposition that the sentencing determination may be influenced by the consideration of the greater risk that incarceration would entail during the pandemic, and also by the consideration of the more difficult and restrictive circumstances that persons who are incarcerated now face as a result of measures taken to mitigate the risk of viral transmission within institutions.

9. THE AGGRAVATING CIRCUMSTANCES:

The following circumstances are aggravating:

1. Again, during the late summer or early autumn of 2013, over a time period of approximately two weeks, when Ms. B. was only 10 years old, Mr. S. sexually assaulted and interfered with her on four occasions. Mr. S. directed Ms. B. to stroke his penis with her hand as he touched her genitalia. Each encounter culminated with his ejaculation. While Mr. S.’s sexually assaultive behaviour did not involved penetration, it was very serious nevertheless. Even sexually assaultive behaviour involving mild touching can have a severe impact upon children. Mr. S.’s conduct was far more intrusive than mild touching, and therefore far more aggravating.

2. Mr. S. always used very limited physical force to place Ms. B.’s hand on his genitalia. She did not actively resist his physical direction. She did not suffer any physical injury. Nevertheless, Mr. S.’s conduct cannot be considered to be any less serious because of this. Each encounter was an inherently violent act, an affront to Ms. B’s personal autonomy, bodily integrity, dignity and equality.

3. The above-mentioned sexually assaultive behaviour was inherently exploitive as well. Obviously, there was a power imbalance between Mr. S. and Ms. B. He was a young adult at the time of the encounters and she was a child. The abuse occurred at a critical stage in her life when her personality and ability to understand and cope with harm that she may encounter were likely only just starting to develop. Mr. S. either knew or ought to have known that his conduct could have caused Ms. B. significant and even profound harm but he committed it anyway, each time treating her like a sexual object.

4. Mr. S.’s sexually assaultive behaviour was repeated over time. He either knew or ought to have known that the repetition of the experience would be potentially more harmful to Ms. B. It is important to consider that each instance of sexual violence represents Mr. S.’s renewed choice to exploit Ms. B.

5. Mr. S. was in a position of trust in relation to Ms. B. when he sexually assaulted and interfered with her. He was her uncle. He had lived with her and her family for years. With the encouragement of Ms. B.’s parents, he had assumed the role of an alternative caregiver to her and her siblings. Ms. B.’s parents often depended upon Mr. S. to look after the children at the family home while they were working. Mr. S.’s conduct amounted to an abdication of his moral duty to Ms. B., and to her family. He either knew or ought to have known that his conduct could result in even more harm to Ms. B. because she and her parents trusted him implicitly. It should be noted that Mr. S.’s breach of trust occurred in Ms. B.’s family home, the place where she would have had the highest expectation of safety and security. When considering the significance of this breach of trust, it is important to keep in mind that so many children are abused by adults close to them, that the existence of the trust relationship often inhibits reporting of the sexually assaultive behaviour and encourages feelings of guilt and shame that in turn discourage reporting.

6. The actual harm suffered by Ms. B. and her family is evidenced by her and her mother’s victim impact statements. Among the saddest consequences of Mr. S.’s conduct are Ms. B.’s stated loss of innocence and her mistrust of and unease around men, as well as her guilt for failing to confide in her mother for so many years. It is not an overstatement to say that P.B. has been devastated by her brother’s betrayal and the pain that it has caused her daughter and her sons as well. The impression left by both victim impact statements is that Ms. B. and her mother are still vulnerable over two years after Ms. B.’s disclosure, and that the recovery from the betrayal that they have experienced is occurring only very slowly, if at all. The pain caused by Mr. S.’s conduct is continuing years after it occurred.

7. THE MITIGATING CIRCUMSTANCES:

The following circumstances are mitigating:

1. Mr. S. was a relatively young man when he committed the criminal offences.

2. Mr. S. did not have a criminal record when he committed the criminal offences, and there is no evidence that he has been involved in any criminal conduct since.

3. Mr. S. has abided by the conditions of his release order since his arrest on December 4, 2018, a period of over two years.

4. The available information suggests that Mr. S.’s childhood and adolescent years were difficult. His mother and stepfather appear to have been ill-suited to care for him and to respond to his challenging behaviours which may have been related in part to his A.D.H.D. and learning disability. It is notable that Mr. S. was separated from his family for three critical years, from the ages of eight to eleven, and that he chose to leave his parents when he was 16 years old. Mr. S. came to rely on P.B. for support. Like her younger brother, her experience with her mother was negative enough that she decided to leave home when she was 16 years old as well.

5. Mr. S. left school when he was 16 years old but it appears that he has been successful in obtaining and maintaining employment since then. This is no small accomplishment. Despite having limited formal education, Mr. S. has assumed positions of increasing skill and responsibility. He has been working for the same company since 2017 as a mobile crane operator. He is considered to be a conscientious and dedicated employee. It is notable that the owner of the company that Mr. S. works for knows that he has been found guilty of the above-mentioned offences, and that he has nevertheless promised that he will continue to employ Mr. S., even if he is sentenced to a lengthy term of imprisonment, and even though Mr. S.’s absence from work would present significant challenges for the company’s operations.

6. When he was living with the B. family, Mr. S.’s financial contributions were consistent and substantial. There is no question that he benefited from his sister and Mr. B.’s support. It seems that they benefited from his financial contributions as well.

7. Mr. S. appears to have developed a stable and positive relationship of some duration with his girlfriend. She has supported him throughout the prosecution process and is committed to him, notwithstanding the verdicts that have been recorded.

8. Mr. S. denies any history of abuse of alcohol or non-medically prescribed drugs, and there is no reason to believe that his criminal conduct was related to either drug or alcohol consumption.

9. OTHER RELEVANT CIRCUMSTANCES:

The following circumstances are relevant for the purposes of sentencing even though they cannot be categorized as being either aggravating or mitigating.

1. Mr. S. has maintained his innocence notwithstanding the guilty verdicts. His position is not considered to be an aggravating factor, but it does preclude any mitigation that might have been based upon an expression of remorse through conduct or comment. In the absence of any expression of remorse, there is no way of confidently assessing Mr. S.’s insight about his criminal conduct and its consequences, or his risk of re-offending.

2. In fairness to Mr. S., while he has indicated that he disagrees with the verdicts, he has done so respectfully. This is not surprising. During the trial, which extended over many days and at intervals, Mr. S. consistently acted in a way that suggests that he took the trial process seriously. He presented as being attentive, courteous and patient throughout, even during his cross-examination. Mr. S. expressed the intention to accept the disposition that is imposed and abide by whatever conditions that are imposed through a community supervision order, except for phallometric testing. His conduct during the trial process is at least some indication that his promise to abide by the conditions of any disposition may be genuine.

3. As serious as it was, Mr. S.’s criminal conduct in relation to Ms. B. is limited to the four sexual assaults that she complained of. That the conduct occurred over a limited time period is not mitigating. Nevertheless, it is at least worthy of consideration. Mr. S. and Ms. B. lived together in the same residence for many years before and after the summer and/or early autumn of 2013. He did have many other opportunities to sexually assault Ms. B., but he refrained from doing so. It is emphasized that this fact alone does not resolve the above-mentioned concern about the difficulty in assessing the risk of Mr. S.’s re-offending.

4. There is no evidence supporting the inference that Mr. S.’s criminal conduct was motivated or encouraged by misogynistic ideas or attitudes.

5. Mr. S. has lost his only family. This is not a mitigating circumstance: Mr. S.’s estrangement from the people that he has been closest to for most of his adult life is a direct result of his criminal behaviour. Nevertheless, it is a negative consequence that is worthy of consideration.

6. COLLATERAL CONSEQUENCES ARISING FROM THE IMPOSITION OF

A SENTENCE OF IMPRISONMENT:

The following collateral consequences must be considered when determining whether to impose a sentence of imprisonment:

1. Mr. S. has made significant progress in employment in recent years. As mentioned above, his employer has committed to offering Mr. S. employment even if he is sentenced to imprisonment. Even so, imprisonment for a substantial period of time will result in the interruption of Mr. S.’s employment and significant cost to him, as well as to several other employees of the company who will be unable to work if Mr. S. is not able to supervise them.

2. A sentence of imprisonment will be imposed during a public health emergency that is without precedent. Persons in custody face higher risk of infection with the COVID-19 virus. It is more challenging to ensure adequate hygiene and essential social distancing in congregate settings. Through the implementation of various practices and protocols, the Ministry of the Solicitor General has had some success in mitigating the risk, but outbreaks of the virus have occurred in numerous institutions during 2020 and more recently in 2021, including those located in southern Ontario where Mr. S. could be transferred if he is sentenced to imprisonment, such as the Central East Correctional Centre, the Maplehurst Correctional Complex, the Toronto East Detention Centre, the Toronto South Detention Centre, and the Ontario Correctional Institute.

As mentioned above, counsel for Mr.

S. advised that he has chronic bronchitis, a condition that may make him susceptible to more severe symptoms if he is infected with COVID-19. No documentation confirming Mr. S.’s condition was provided and counsel acknowledged that he was unable to say that because of his condition Mr. S. would be at extreme risk if he were to contact the virus. Even assuming that Mr. S. is not at extreme risk, it is important to consider that our current understanding of the effects of the virus is developing and is still limited. The clinical experience to date suggests that most youthful and relatively healthy persons who contract the virus do not become seriously ill, but that for a very small percentage of this cohort, the consequences of infection can be serious, long-lasting and even fatal. The increased risk that young and relatively healthy offenders now face must be carefully considered when making sentencing determinations of imprisonment.

It is important to note as well that as a

result of the implementation of measures designed to reduce the risk of infection in detention centres and jails, the experience of incarceration has become even more restrictive for inmates and challenging for persons who supervise and support them in institutions. Inmates are often required to spend more time in their cells and have more limited access to yard facilities, telephones, showers and programming. They also have fewer opportunities to visit with relatives and friends.

13. R. v. FRIESEN CONSIDERED:

I agree with Crown counsel’s submission that the Supreme Court’s ruling in Friesen must be carefully considered when determining what the appropriate sentence should be in the instant case. In Friesen, the Supreme Court emphasized that the prevention of the wrongful exploitation and harm of children is the primary objective of the Criminal Code provisions related to sexual offences against children. The Supreme Court provided the following directions to encourage the application of sentencing law to protect children from sexual violence, to hold offenders accountable and to convey the wrongfulness of violence against children.

First, the acknowledgement of the

wrongfulness of sexual violence against children must inform the assessment of the gravity of offences and the degree of responsibility of offenders. A focus upon the potentially serious emotional and psychological harm as well as physical harm from the offending conduct is required when determining what the proportionate sentence should be.

Second, the inherent violence of the

application of force to children of a sexual nature must be acknowledged. Physical contact of a sexual nature with a child is an act of physical and psychological violence, even if it is not accompanied by additional physical violence and it does not result in physical or psychological injury. The application of physical force of a sexual nature is inherently exploitive as well, as it is based upon the power imbalance between children and adults. The wrongfulness of the conduct must always be considered even as the degree of exploitation may vary.

Third, the actual harm that a specific

victim has suffered as a result of the criminal conduct should inform the assessment of the gravity of the offence. Often the best evidence of harm suffered will be the victim impact statements provided by the victim and parents or caregivers of the victim. In the absence of direct evidence, the assessment of actual harm may be based upon consideration of the circumstances, including the existence of a relationship of trust between the offender and the child, the number of instances of the sexual violence and the age of the child.

Fourth, the intentional application of force

of a sexual nature to a child is considered conduct which is highly morally blameworthy. It will usually be appropriate to presume that the offender was aware or should have been aware that the child was vulnerable, that the conduct was inherently violent and inherently exploitive and that it had the potential to cause profound harm.

Fifth, relevant factors that may reduce

the moral culpability of offenders must not be ignored. The sentence imposed must be proportionate. Sexual assault and sexual interference against children are broadly defined offences that prohibit a wide range of conduct. The personal circumstances of some offenders may be more mitigating than others. Offenders with mental health disabilities and/or cognitive limitations, for instance, may be considered to have reduced culpability. Gladue and Ipeelee principles may be applicable even in cases involving very serious abuse.

The Supreme Court noted that in recent decades parliament has repeatedly increased maximum sentences for offences against children. In recognition of parliamentary intent, sentences should be higher than they would be for offences occurring prior to the increases in maximum sentences. The imposition of more severe sentences is also justified through the application of Criminal Code s.718.01 which directs that primary consideration be given to the objectives of denunciation and deterrence when sentencing for offences involving the abuse of children under 18 years. The prioritization of the sentencing objectives limits the sentencing judge’s discretion to consider other sentencing objectives to be of equal or higher priority but does not eliminate the sentencing judge’s discretion to accord significant weight to other sentencing objectives. The court also noted that Criminal Code s.718(2)(a)(ii.1) identifies the abuse of children under 18 years as a statutory aggravating factor and that pursuant to Criminal Code s.718.2(2)(a)(iii) abuse of a position of trust is a statutory aggravating factor.

According to the Supreme Court, there will be justification when imposing sentence for departing from dated precedents that do not reflect the current understanding of the harmfulness of sexual offences against children and current parliamentary intent. Proportionate sentences for sexual offences against children will often be substantial in length. Mid-single digit penitentiary terms will normally be imposed. Upper single-digit and double-digit penitentiary terms should not be considered to be unusual or reserved for rare or exceptional cases.

The Supreme Court provided the additional specific direction with respect to sentencing determinations for sexual offences against children.

First, the protection of the public is an

essential sentencing consideration although the objective of rehabilitation should not be ignored. Where the offender’s risk of re-offending is higher, the imperative of providing immediate and short-term protection to children may preclude early release. Rehabilitative efforts will have to begin with treatment and programming available in prison. In some cases, short and longer-term protection of children will only be achieved through the imposition of a lengthy sentence.

Second, the offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who commits a sexual offence against a child unknown to him or her.

Third, Sexual offences against children that

are committed on multiple occasions and over time should attract significantly longer sentences to take into account the greater seriousness of the criminal conduct and the increased responsibility of the offender.

Fourth, the moral blameworthiness of offenders who commit sexual offences against particularly young and more vulnerable children is considered to be enhanced.

Fifth, the length of sentences should not be

based on consideration only of specific types of criminal activity.

Finally, the Supreme Court indicated that when making sentencing determinations, the following erroneous reasoning should be avoided.

First, attributing intrinsic significance to

the occurrence or non-occurrence of particular sexual acts based upon traditional notions of sexual propriety.

Second, assuming that there is a correlation

between the impugned physical act and the harm to the child.

Third, failing to recognize the wrongfulness

of the act where the degree of physical interference is less pronounced.

Fourth, considering the degree of physical

interference as part of a hierarchy of physical acts. It must not be assumed that a sexual assault that involves touching is less serious than a sexual assault that involves more physically intrusive conduct.

Fifth, regarding a child’s participation in sexual activity as a mitigating factor or as a legally relevant sentencing consideration.

14. RULING:

Given the alternative recommendations of the Crown and the defence, the essential question to be addressed is whether a conditional sentence is an available and proportional response to the criminal conduct that Mr. S. has been found to have committed. In answering this question, it is important to consider the following relevant statutory provisions and dicta from important sentencing decisions. The fundamental sentencing principles stated in Criminal Code s.718.1 is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A proportionate sentence is one which punishes no more than necessary: R. v. Singh. [2015] O.J. No. 691 [10]. Criminal Code s.718.2(d) directs that an offender should not be deprived of liberty if a less serious sanction is appropriate. Sentencing is an individualized process and there is no uniform sentence for any particular type of crime:

R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 [92]. No one or more sentencing objectives should be considered to the exclusion of other relevant sentencing objectives: R. v. Nasogluak, 2010 SCC 6, [2010] 1 S.C.R. 206.

The statutory requirements for the imposition of a conditional sentence are that the contemplated sentence is less than two years and that the serving of the sentence in the community would not endanger the public. It may be that in this case, these conditions have been met. The sentence recommended by the Crown is the maximum available, but it is less than two years. An argument can be made at least that if Mr. S. were to be permitted to serve his sentence in the community, the public would not be in danger. He does not have a prior record, and he has proven that he is able to abide by the terms of his release order over an extended period of time. There is no evidence suggesting that he has had any involvement with Ms. B. or with her family or with any other children since his arrest over two years ago. The risk that he might re-offend while subject to a conditional sentence order must be evaluated in relation to the proposed terms of the conditional sentence: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 [68]; R. v. Knoblach, 2000 SCC 58, [2000] 2 S.C.R. 780 [27]. If Mr. S.’s liberty of movement were to be restricted substantially during the course of a conditional sentence through the imposition of a home confinement condition and other conditions prohibiting his contact with children, then the likelihood is that he would not have an opportunity to commit further criminal offences against children.

Even if the statutory requirements for the

imposition of a conditional sentence are satisfied, the additional issue to be resolved is whether the imposition of a conditional sentence would be consistent with fundamental sentencing principles as set out in Criminal Code s.718 to s.718.2. When addressing this issue, it must be kept in mind that a conditional sentence is considered, at least notionally, to be a sentence of imprisonment. A conditional sentence does allow for punitive emphasis through the imposition of conditions such home confinement that restrict liberty substantially. Whether a conditional sentence is sufficiently punitive in a particular case will depend upon the nature of the conditions imposed, the duration of the sentence, the circumstances of the offender and the community in which he or she is situated. Conditions may be designed to address the sentencing objectives of denunciation and deterrence so long as they are not so onerous as to encourage non-compliance or to be inconsistent with the goal of the offender’s rehabilitation: R. v. Harb. (2000), 2001 MBCA 180, 161 C.C.C. (3d) 328.

A conditional sentence of a substantially longer duration than a conventional sentence may be imposed so long as the terms are “just and appropriate:” R. v. Wismayer (1997), 1997 3294 (ON CA), 115C.C.C. (3d) 18.

It is important to keep in mind, as well, that in the event of a breach of a condition or conditions of a conditional sentence, an offender is at risk of being sentenced to imprisonment for the remainder of the conditional sentence term. Finally, unlike a conventional sentence of imprisonment, a conditional sentence is not subject to reduction through the operation of parole.

Even taking into account the above considerations, as well as the mostly dated authorities referred to me by counsel for Mr. S., some of which support the argument in favour of the imposition of a conditional sentence, I am not persuaded that this sentencing alternative would be sufficiently punitive to vindicate the compelling sentencing objectives of denouncing Mr. S.’s conduct and of deterring him and other persons from committing acts of sexual violence against children. The imposition of a lengthy sentence of imprisonment is required given the severe gravity of the offences and the high degree of Mr. S.’s responsibility. This determination is of course informed by an assessment of the aggravating and mitigating circumstances mentioned above, other circumstances and collateral consequences also mentioned above, as well as the more recent in time and more persuasive sentencing authorities referred to by Crown counsel, most notably Friesen, which provides unequivocal direction with respect to sentencing for offences like those that Mr. S. has been found to have committed.

Careful consideration has been given to the increased risk to health that Mr. S. will face as a result of being sentenced to imprisonment during the unprecedented public health emergency. Sentences of imprisonment should be avoided or limited as much as possible where appropriate in normal times, and especially now during the pandemic. The avoidance of imprisonment and the reduction of sentences of imprisonment will be in the interest of offenders, of course, but also consistent with the public interest, in so far as they contribute to the decrease of the number of people in custody, thereby lessening the likelihood of viral transmission within correctional facilities and ultimately within the communities that correctional facilities are situated in. However, as stated in the R. v. Hearns, 2020 ONSC 2365, [2020] O.J. No. 1648 [15-18], while the adverse consequences of incarceration during the pandemic may justify a reconsideration of what a fit sentence should be, they can never justify the imposition of a disposition that is “disproportionately lenient or drastically outside of the established sentencing range.”

In the circumstances of the instant case, and notwithstanding the continuing pandemic, a conditional sentence or even a relatively short sentence of imprisonment would be disproportionately lenient and inappropriate dispositions. Mr. S.’s sexually assaultive behaviour in relation to M.B. was highly intrusive and repeated over time. It amounted to a reprehensible breach of the trust of Ms. B., her mother and other family members which has had long-standing, devastating and unresolved consequences. Mr. S. knew or ought to have known that his conduct would cause extreme harm to Ms. B., her mother, and the rest of her family. The necessary response to Mr. S.’s conduct is a sentence of imprisonment for 14 months. At the completion of Mr. S.’s sentence, he will be placed on probation for a period of three years, the maximum term. The conditions of probation order will be considered momentarily.

Ancillary orders prohibiting Mr. S. from possessing weapons, prohibiting him from being in the presence of Ms. B. or other children, and requiring him to comply with the Sexual Offender Information Act reporting obligations will also be made. An order requiring Mr. S. to provide samples of his bodily substances for forensic D.N.A. analysis will be made as well. Finally, Mr. S. will be prohibited from communicating with Ms. B. or members of her family while he serves his sentence. More will be said about these ancillary orders momentarily as well.

About a week ago I had the opportunity to review what I understood to be the most recent report from the Ministry of the Solicitor General about the conditions in Ontario Detention Centres. The report is undated, but it makes reference to the date of February 1, 2021, so it is at least that current. The report indicates that outbreaks of the COVID-19 virus have occurred in various institutions during 2020 and even in 2021, as I have already mentioned. On February 11, 2021 I communicated with both counsel for the Crown and for Mr. S. by email and advised them that I intended to deliver my judgment with respect to sentence today but that I would consider their submissions as to whether postponement of the imposition of sentence would be appropriate. My understanding is that Mr. S. has consulted with his counsel about the current conditions in local detention centres and that he wishes that his sentence be imposed today. It will be.

His sentence has been reduced to a limited extent in recognition of the increased risk to health that he will face while incarcerated, and also in recognition of the more restrictive conditions in jail that he will most likely be subject to for the foreseeable future.

At this time, and before I get into the details of the probation order, I would like to express my appreciation for the assistance provided by both counsel during this proceeding and for their capable and civil advocacy. I mention that now because as we consider the terms of the probation order, there is a danger that I may forget to say that.

As I have indicated, the probation order will be for a period of three years. Mr. S. will keep the peace and be of good behaviour, and appear before the court when required to do so, and abide by other statutory conditions. His reporting will commence within two working days of his release from custody, and continue after that at all times and places as directed by the probation officer or any person authorized by the probation officer to assist with his supervision. The reporting will continue, as I have indicated, throughout the period of probation. Mr. S. is obligated to cooperate with the 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 the probation officer on request. Mr. S. will live at a residence approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance. Mr. S. will have no contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with the victim. I am going to stop here and ask Mr. Rothman whether you would like all of the members of the immediate family to be named in the probation order, or would you rather have the order stated as M.B. and any members of her immediate family?

MR. ROTHMAN: I’m content with that, Your Honour, subject to my friend.

THE COURT: Do you have any comment on that, Mr. Ebert?

MR. EBERT: No comment on that, Your Honour.

THE COURT: And as I go through these conditions, I am inviting counsel to interrupt if you have difficulties or you need clarification. So, the order will be not to have any contact or communication in any way, directly or indirectly, by any physical, electronic or other means with M.B. or any members of her immediate family. Is there a request, this is for the probation order? Mr. Rothman, you are asking for a non-communication order pursuant to the Criminal Code s.743.21?

MR. ROTHMAN: Section 743.21, Your Honour, while Mr. S. is in custody, yes. With the same terms, with respect to M.B. and her immediate family.

THE COURT: All right, so Mr. Clerk, the s.743.21 order relates to M.B. and any members of her immediate family as well. That is the order that is not a part of the probation order, but that is the order that will be in place during the time that Mr. S. is serving his sentence.

Now, Mr. Rothman, are you recommending any boundary condition in this case?

MR. ROTHMAN: It depends partially Your Honour on what is contemplated by the, what Your Honour will be imposing in a s.161 order. I just want to try to avoid any potential inconsistencies.

THE COURT: Right.

MR. ROTHMAN: It would be the same as whatever Your Honour may be ordering in a s.161 order.

THE COURT: Okay, well I think that your recommendation with respect to the s.161 order was that Mr. S. stay away from anywhere where he knew M.B. to be, was that right? Or was it just her residence?

MR. ROTHMAN: I’m just checking the language Your Honour of s.161. I’m not sure what my friend submitted in a draft or believe he did?

THE COURT: I am not sure if Mr. Ebert submitted a draft, but he certainly made comments about the s.161 order. I am going to ask him to reiterate his comments when we get to that order. Mr. Rothman, I have it as…

MR. ROTHMAN: I found the section, Your Honour.

THE COURT: Yes?

MR. ROTHMAN: Is it (a.1)?

THE COURT: Yes.

MR. ROTHMAN: Your Honour has the jurisdiction, so any distance specified in the order of any dwelling house of the victim identified in the order earlier or any other place specified in the order. That’s pretty broad. Any place. So, I would suggest 100 metres away from M.B. anywhere she lives, works, goes to school known by Mr. S. to be. That’s a term we usually have in probation. I think that’s the usual term for the s.161 and appears perhaps in the probation order. I welcome my friend’s comments on that order.

THE COURT: I am thinking, Mr. Ebert, that is the conventional term for a probation order which is what we are dealing with now. I think Mr. Rothman’s point is important though. With respect to the s.161 order, let’s keep the terms similar, but Mr. Clerk, right now we are only dealing with the probation order. The recommendation of Mr. Rothman is that the no contact be 100 metres, absolutely no contact and not to be within 100 metres of any place where Mr. S. knows M.B. to live, work, go to school, frequent or any place he knows her to be except for required court attendances. Do you have any comment about that term Mr. Ebert?

MR. EBERT: I don’t have a comment about it, I just wanted to clarify. If I am following correctly, you are proposing that that be a condition of the s.161 order or the probation order?

THE COURT: Well, Mr. Ebert, I am sorry for any confusion that I may have caused. Right now, we’re talking – we are going to deal with the probation order separately.

MR. EBERT: Sure.

THE COURT: But we just want to makes sure and Mr. Rothman has indicated, and I agree, that we make sure that the terms of the probation order don’t directly conflict with any s.161 order.

Now, with respect to the s.161 order, on that point, are you going to have submissions to make about that particular condition? If that was part of the s.161 order that Mr. S. stay away from Ms. B. or any place where he knows her to be?

MR. EBERT: I have no submission to make about it. I just want to make sure I’m understanding my friend correctly. As I had understood my friend, his concern was against being unnecessarily duplicative of conditions as between the two. Really, I take no issue with the 100 metres. Frankly I don’t take issue with whether it appears on the probation, the s.161 or both, just to keep things simple.

THE COURT: We are just going to have to go through this and make sure that we get it right. That will be a condition of the probation. Mr. Clerk, if you are confused, you tell me too, all right.

COURT CLERK: No, that’s fine, Your Honour.

THE COURT: You got that one, thank you. I gather Mr. Rothman you do not consider there should be any other exceptions to the order?

MR. ROTHMAN: No.

THE COURT: Mr. Rothman, can you help me here, are you sure that s.110 applies with respect to a weapons prohibition? I am getting ahead of the probation order now, but could you think about that for a moment. I think you said it is s.110, but I want to make sure it is not s.109.

MR. ROTHMAN: It is s.110, Your Honour. The Crown proceeded summarily.

THE COURT: Oh, that is right. Thank you. Thank you. But getting back to the probation order. I will make an order that Mr. S. not possess any weapons as defined by the Criminal Code and that will be for the full period of the probation.

I will now consider the issue of counselling and treatment, and ask Mr. Ebert if he has any comment about the nature of counselling or treatment that might be required pursuant to a condition of an order. The standard term is that the offender attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer. Now, there is no specific term in the draft order I have for sexual abuse against children. I do not know what your position is with respect to an order of counselling that would require that. Do you have a position?

MR. EBERT: Your Honour, really I’m in the court’s hands. The only submission I would make, the only factual basis I would refer to is the passage of time that has been alluded to in between the commission of this offence and the present. That the passage of time in the absence of any further reoffending. So, on that basis, I would just ask Your Honour to consider that carefully in determining whether any such condition is imposed. We know in a probation order that condition can be directed as well. It can be directed specifically to sexual offence counselling, specifically to substance abuse, specifically to vocational training. With respect to the latter of those two, it has been accepted by Your Honour that Mr. S. does not need help with respect to either substance abuse or vocational training, so in terms of whether any counselling is necessary for sexual offending behaviour, I would just ask Your Honour to consider the passage of time carefully prior to making an order that such counselling be completed.

THE COURT: Yes. Do you have any comment, Mr. Rothman?

MR. ROTHMAN: Yes, Your Honour. My understanding is Your Honour is able to order a term that Mr. S. be assessed by the probation officer in authority and that he be required to do any counselling as directed by them. I believe that it might be appropriate to leave the term open. I know some judges have certain areas to focus on for example ‘indiscernible’ or something like that, but if the Crown ‘indiscernible’ that the probation officer not be restricted. I can’t recall without seeing the pre-sentence report if -- what facility is being recommended there, but the Crown would prefer it remain open I think based on ‘indiscernible.’

THE COURT: Well, I think the probation officer will have my judgment and already has I believe the findings of fact that were made, and has spoken to Mr. S. already. I am often inclined to be specific, but I think I am going to leave it up to the discretion of the probation officer to direct the counselling. The counselling will be as directed by the probation officer.

Under the category of ‘Other’ Mr. Clerk.

Mr. S. shall sign release of information forms as will enable the probation officer to monitor his attendance and completion of any assessment, counselling or rehabilitative programs as directed. He shall provide proof of his attendance and completion of any assessments, counselling or rehabilitative programs as directed. I believe the order I am making obligates Mr. S. to engage in whatever counselling that the probation officer deems to be appropriate.

Now, Mr. Rothman, were there other terms of probation that you feel should be included in the order?

MR. ROTHMAN: Well, ‘indiscernible’ the most important part from the Crown’s perspective was the non-communication ‘indiscernible.’ The Crown’s main concerns have been covered by the statutory terms as well as the s.161 order, as well as the weapons order, so I don’t see any other terms, Your Honour.

THE COURT: All right, and Mr. Ebert, are there any other terms that you think are appropriate or are there any that you are concerned with now?

MR. EBERT: No, thank you for asking, Your Honour.

THE COURT: Okay. Let’s then move to the s.110 order. My understanding was that Mr. Ebert did not have comment about the Crown’s request last time. Is that right, Mr. Ebert, still?

MR. EBERT: I just pulled up the section and I hadn’t had an opportunity to read it. The only thing I cannot recall is whether it’s discretionary or mandatory. If it’s discretionary, Your Honour, I really take no position.

MR. ROTHMAN: Discretionary.

THE COURT: It is a discretionary order. You are saying, Mr. Ebert, no position at this point?

MR. EBERT: That’s correct.

THE COURT: And the Crown’s position was that the order should be in effect for 10 years?

MR. ROTHMAN: I’ve got the section up. The maximum is five years, Your Honour.

THE COURT: The maximum is five years.

MR. ROTHMAN: That’s what I see in the section.

THE COURT: All right, I think on the last occasion you recommended 10, but let’s double check this.

MR. ROTHMAN: I’m looking at ‘indiscernible’ Section 110(2) says 10 years, so that’s the maximum that could be imposed if Your Honour agrees.

THE COURT: So that is the maximum term, I gather, Mr. Rothman?

MR. ROTHMAN: Yes, Your Honour. I believe it’s in Your Honour’s judgment that the offences are inherently violent ‘indiscernible.’

THE COURT: Yes, I think in the circumstances of this case, it is appropriate to make the order for 10 years.

Now, with respect to the S.O.I.R.A. order. That order I think on the last occasion, and I did indicate it in my judgment and perhaps I misheard, I think on the last occasion Mr. Ebert acknowledged that the S.O.I.R.A. order and the D.N.A. order were mandatory orders. Is that right Mr. Ebert?

MR. EBERT: That’s right, Your Honour. My understanding, and I stand to be corrected, I am pretty certain of it, I don’t have s.482 open right now, but my understanding is that there is no discretion there. Upon conviction provided that the Crown has proceeded summarily as opposed to by indictment, that it automatically it goes to, it is non-discretionary. It is prescripted that it be ordered, and similarly the court does not have discretion regarding the duration. It’s simply 10 years.

THE COURT: The duration is 10 years.

MR. EBERT: Yes.

THE COURT: Mr. Rothman, any comment?

MR. ROTHMAN: The S.O.I.R.A. order is mandatory, Your Honour, given the nature of the offence.

THE COURT: Yes.

MR. ROTHMAN: And, I am happy to double-check the section just because these are ‘indiscernible’ after the fact, so I am happy to check that right now.

THE COURT: I think we should take whatever time is needed. I know that everyone else, and Mr. S., it’s a long process, but let’s take the time and try to get it right this time, because it can be a problem later on to fix it.

MR. EBERT: Your Honour, just to take you there at the same time, s.490.01(2).

THE COURT: Yes?

MR. EBERT: Is the jurisdiction for the order and the duration of the order is set out at s.490.013(2)(a) and that section confirms what I just said.

MR. ROTHMAN: Yes, thank you. ‘Indiscernible.’

THE COURT: Ten years. So, the S.O.I.R.A. order will be made for a 10-year period. We are then down to the I think the s.161 order.

MR. ROTHMAN: Sorry, Your Honour, I asked for the D.N.A. as well.

THE COURT: Oh, I am sorry, the D.N.A…

MR. ROTHMAN: It’s primary designated.

THE COURT: It is a primary designated offence and on the last occasion, Mr. Ebert, you did not have any comment to make about this order. Any change in position now?

MR. EBERT: I think I can make the comment that there is no comment to make. It is similar to S.O.I.R.A. It must be made.

THE COURT: Okay, the order will be made. The D.N.A. order will be made. The D.N.A. will be affected because Mr. S. is going to be in custody and it will be affected, I gather soon, probably today.

So now, are we to the s.161 order?

MR. EBERT: That’s right, Your Honour.

MR. ROTHMAN: Yes, we are.

(COURT REPORTER’S NOTE: At this time, a lengthy discussion was held regarding terms of the s.161 order. The court then continued with the sentencing orders.)

KELLY, J: REASONS FOR SENTENCE: CONTINUING: (ORALLY):

THE COURT: All right. So the defence position is five years. The defence position is it is appropriate to have not ss.(a), not ss.(d) and a modified ss.(c). And the Crown’s position is we should have (a), (a.1), (b) and (c). And there is a difference in years.

This is my ruling. I think the order should be for 10 years. I understand the Crown’s request for (a), but I am persuaded by Mr. Ebert’s comments about (a) and I am not going to include (a) in the order. There will be a s.161(a.1) order, and Mr. Clerk the wording is going to be a little bit different. It is going to be just like the probation order.

COURT CLERK: All clear.

THE COURT: And the distance is 100 metres. Of course, (b) will be as stated in the statute, and (c) will be as Mr. Ebert recommends; (c) should be as follows: Having any contact, including communication by any means with a person who is under the age of 16 years unless the offender does so in the presence of a person who is at least 18 years of age, and who is aware of Mr. S.’s criminal conviction for sexual interference.

Mr. Ebert, does that wording accord with your recommendation?

MR. EBERT: That’s it, Your Honour.

COURT CLERK: I’m sorry, Your Honour, do you have that written down?

THE COURT: I’m going to write it down. I will write it down for you.

COURT CLERK: The copy of the form that I have for s.161, this is the clerk speaking, it doesn’t seem to give you an option, but is it that we are just going to cross out?

THE COURT: We are going to have to cross it out and put it somewhere else on the document.

COURT CLERK: Okay.

MR. EBERT: I think there is – I’ve seen that form, I think there is a text box below it, and you can just say replace the forgoing with and then match it to the probation order.

COURT CLERK: All right, thank you.

THE COURT: If you just give me a minute here…Mr. Clerk I will just pass you this. I have not written out the whole of (c) but I have read the last part of it, so if you want me to read that out to you again.

COURT CLERK: It should be fine ‘unless the offender does so ‘indiscernible…’

THE COURT: About.

COURT CLERK: ‘…about the offender’s conviction for sexual ‘indiscernible.’

THE COURT: All right, so the order is for 10 years. Now, the other charge, the other charge has been conditionally stayed already. Are there any other outstanding matters, either Mr. Rothman or Mr. Ebert?

MR. EBERT: Not from the defence, Your Honour. I think we’ve gone over everything.

THE COURT: I have gone over it. Mr. Rothman?

MR. ROTHMAN: Not for the Crown, Your Honour. Your Honour covered every ancillary order that Your Honour was required to and I do appreciate Your Honour’s attention to detail here. So, there is nothing further from the Crown, thank you.

THE COURT: All right, and Mr. Clerk, do you think you are in good shape to draft these orders now if others are excused? Of course, Mr. S. can remain here, but if others are excused?

COURT CLERK: Sorry, court’s indulgence, Your Honour.

THE COURT: Sure.

COURT CLERK: Sorry, Your Honour, I just have a question about the probation order.

THE COURT: Yes?

COURT CLERK: The reporting condition is after the custodial part of the sentence is over. He is to report within two days or within immediately?

THE COURT: Well, it would be within two working days of his release from custody. And you should put a telephone – it might be prudent to have a telephone number, to report by telephone, because we do not know where we are going to be when Mr. S. is released from custody. Have you got a telephone number that he can call?

COURT CLERK: I have a phone number here.

THE COURT: Yes, okay. So, the reporting within two working days from custody, Mr. S., will be by telephone, just in case we are in the similar position that we are right now. And, I would just ask the court officer, sir, are you going to be able to today, do the D.N.A. order?

COURT OFFICER: Oh, yes.

THE COURT: Okay, right.

COURT OFFICER: ‘Indiscernible.’ I just need the D.N.A. order.

THE COURT: Yes.

COURT CLERK: So, I guess two other questions…Well, I guess no questions actually. No contact – no contact with M.B. or any member of M.B.’s immediate family.

THE COURT: Right.

COURT CLERK: And then the 100 metres is just for M.B.?

THE COURT: The 100 metres I believe is just for M.B. Was that your intention Mr. Rothman, or was it for immediate family members as well?

MR. ROTHMAN: Well, it keeps it more straight forward, Your Honour, to have it just with M.B. in terms of her restrictions. But he should still have no contact with her family though.

THE COURT: Yes.

MR. ROTHMAN: That’s fine, Your Honour.

THE COURT: Okay, so the boundary restriction relates to M.B. The general ‘no contact’ relates to M.B. or her immediate family. That’s a very practical approach, Mr. Rothman, I appreciate that.

COURT CLERK: On the question of the D.N.A., I heard the officer say they can take the D.N.A. today, so for the .041 order should I put today’s date and maybe 10:00 a.m. today?

THE COURT: Is that the D.N.A. order?

COURT CLERK: Yes, that’s part of the form for scheduling, the D.N.A.

THE COURT: Yes? Today’s date?

COURT CLERK: Yes.

THE COURT: Does that work for you officer, is that best?

COURT OFFICER: Oh, yes.

COURT CLERK: Today’s date at 10:00 a.m.?

THE COURT: Yes, please, okay?

COURT CLERK: I believe those are all my questions, Your Honour.

THE COURT: Those are all your questions? Anything else, any other questions from anyone?

MR. ROTHMAN: No, thank you, Your Honour. I just want to thank M.B. and her family for attending today and for being so patient with the whole process.

THE COURT: Yes, I would like to thank M.B. and her family for attending today and on many other occasions and for being so patient throughout this whole process. This has been difficult for every single person involved, and now may be there will be some relief for everyone involved. Some little bit of relief. That is all I can hope for. I wish everyone well and thank you.

MR. ROTHMAN: And Your Honour I wish to thank my friend as well and I thank the court. If I may be excused then? I have some other matters to attend to this afternoon. My office is aware, so if Your Honour is going to be sitting, another Crown will have to be found. I will alert my office.

Form 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Jodi J. Hewett, C.V.C.R. certify that this document is a true and accurate transcription of the audio/visual recording made in the matter of Her Majesty the Queen v. D.S., in the Ontario Court of Justice, Toronto, Ontario from Recordings No. 4815_201_20210218_093100_6_KELLYED.dcr made by W. Bridgemohan, Court Monitor, on the 18th day of February, 2021, transcribed to the best of my skill, ability and understanding.

Date Jodi J. Hewett

Certified Verbatim Reporter

Legend:

(sic) - Indicates preceding word has been reproduced verbatim and is not a transcription error

(ph) - Indicates preceding word has been spelled phonetically.

THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED

Transcript Ordered: February 22, 2021

Transcript Completed: March 1, 2021

Transcript Released: March 25, 2021