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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 01 12 Court File No.: Central East Region: Oshawa Courthouse File # 19-36981

Between:

HER MAJESTY THE QUEEN

— AND —

Q.M.

Before: Justice Peter C. West

Heard on: October 26, 2020, November 26, 2021 Reasons for Judgment released on: January 12, 2022

Counsel: Mr. T. Hewitt, Mr. M. Gillen............................................................... counsel for the Crown Mr. A. Affleck..................................................................... counsel for the defendant Q.M.

WEST J.:

[1] On October 26, 2020, Q.M. pleaded guilty to a charge of sexual interference, contrary to s. 151 of the Criminal Code from August 20, 2019. An Agreed Statement of Fact, Exhibit 1, was filed and a finding of guilt was made. A presentence report was ordered and the matter was adjourned to December 3, 2020 for sentence. On that date the matter was adjourned at the request of the defence to allow Dr. Mark Pearce, a forensic psychiatrist, to complete his assessment of Q.M. Sentencing was adjourned to April 26, 2021 for sentencing. This date was adjourned further due to Covid-19 and was not able to be rescheduled, on consent, until November 26, 2021.

[2] I should indicate that as a result of certain comments made by Q.M. to Dr. Pearce during the preparation of his Forensic Psychiatric Report, which were indicated in the Report, I conducted a further plea inquiry with Q.M. in Court before hearing submissions from counsel. At the conclusion of my inquiry, I was satisfied Q.M. was not withdrawing or resiling from his guilty plea or his admission of the Agreed Statement of Facts, Exhibit 1. I was satisfied that Q.M. understood the essential elements of the offence of sexual interference and he admitted his behaviour contravened those elements.

[3] A victim impact statement was read by the Crown from the complainant’s parents, Exhibit 2. I will discuss the VIS later in my reasons for sentence. The presentence report, dated December 16, 2020, was marked as Exhibit 3. A Clinical Summary Letter, written by Sean Basarke, M.S.W., Clinical Consultant & Therapist at Collaborative Community Connections, dated November 24, 2021, was marked as Exhibit 4. Exhibit 5 was a letter from Nicole Drosos, a Continued Care and Support for Youth Worker with Children’s Aid Society of Toronto, dated November 24, 2021. A Forensic Psychiatric Report, dated March 21, 2021, authored by Dr. Mark Pearce, was marked as Exhibit 7. Finally, a letter, signed by Q.M.’s parents, D.M. and C.M., dated November 2021, was marked as Exhibit 8.

[4] I heard oral submissions from counsel on November 26, 2021, after which I reserved my sentence until January 12, 2022. I want to thank counsel for their careful, focused submissions, which were particularly helpful in dealing with this difficult sentencing case.

[5] The Crown’s position is a custodial sentence of 12 months to be followed by 3 years’ probation, as well as a number of ancillary orders, s.743.21 order for no contact or communication with B.W. or her family while in custody, DNA order, SOIRA order for 10 years and s. 161 order for 10 years.

[6] Mr. Affleck, on behalf of Q.M., submitted a 9 month custodial sentence followed by probation would best address the fact Q.M. is a youthful first offender, take into account the paramount principles of deterrence and denunciation yet still addressing the principles of rehabilitation and restraint. The defence takes no issue with the ancillary orders sought by the Crown.

Factual Background

[7] On August 20, 2019, Q.M., 18 years old, was employed by Reptilia Zoo in Whitby, as a camp counsellor in a day programme for children between the ages of 6-12 years. B.W. was a 6 year old camper in a group of 8 campers being supervised by Q.M.

[8] B.W. was at her second day of camp when Q.M. invited her to sit on his lap during an activity at a table. While she was drawing, Q.M. slipped his hand on top of her bicycle shorts and on her vagina, penetrating her vagina and squeezed her labia with one hand over her clothes. B.W. said it hurt a little when he applied some pressure. She then whispered and asked him why he was doing this and he stopped and apologized and said it was an accident. B.W. disclosed the incident to her mother, telling her that the counsellor touched her “pee hole”.

Victim Impact Statement

[9] B.W.’s parents provided a Victim Impact Statement. They described feeling “shocked, angry and devasted” when they learned of the offence. It made them feel “desperate, lost, sad and uneasy” as parents. They were extremely concerned about the impact of this incident on their daughter’s mental and physical well-being. They indicated their anxiety and guilt was crippling. They described how the incident put a strain on their relationships with family and friends as they came to grips with their emotions.

[10] They became very concerned about occasions when their daughter would be alone without them being present. The incident caused them not to trust strangers being around their daughter for fear something similar might occur. They spoke to their daughter’s principal and teachers to ensure their daughter had “safe people” she could speak to if she ever felt uneasy. They no longer felt safe enrolling their daughter at supervised camps and programs. Dropping their daughter off at school caused them to worry.

[11] B.W.’s parents discussed how hard it was to think that their daughter’s innocence had been taken away from her by this offence. They have concerns for the future in terms of B.W.’s emotional well-being and the health of relationships she has as she gets older and more aware of herself and her body. They described how it is doubtful these concerns will ever go away.

[12] Finally, they described being fearful of running into Q.M. in a public setting with their daughter and being uneasy as to how she might react.

[13] It is my view that these fears and concerns for their daughter are natural and expected in the circumstances of this case and it is my hope that they will diminish with time for B.W.’s parents and that B.W. will not suffer any lasting effects.

Offender’s Background

[14] Q.M. was 18 at the time of the commission of this offence. He is the second born of 4 children and he has an older sister, who attends university and a younger brother and sister who reside in the family home. His parents are both working full-time and are very supportive of their son, Q.M., although he has not resided in the family home for a number of years.

[15] From the age of 6, Q.M. began have difficulty regulating his emotions within the family. As he grew older his aggressive behaviour escalated towards his parents and later towards his younger siblings. Q.M. now recognizes he would be physically, emotionally and at times, sexually aggressive towards his younger siblings and the negative effect this had on them. Q.M.’s parents made the decision to remove Q. from their family and it was only after their younger children attended therapy that they became aware of the magnitude of their son’s conduct. His parents ultimately made the decision to have Q. placed into the temporary care of the Toronto C.A.S. At the age of 15, Q.M. was placed with Youth Connections Inc and he began to reside in a secure group home setting. Q. began to thrive after being removed from his family’s home and made positive progress through the program levels of the home. In June 2017, he was placed into the Youth Connections Foster Care Program where he became involved in a family unit. In August 2019, he was discharged from the Foster Family he had lived with for two years. There were still concerns expressed involving his “impulses surrounding pornography” and his desire to isolate himself. Q.M. chose not to socialize outside of school or work and needed support around problem solving issues. The foster home he was in at the time he was charged with sexual interference had younger children so Q.M. was returned to a group home setting with Collaborative Community Connections.

[16] Q.M. has had constant contact with his parents, who have stayed very involved in his day to day life. They have engaged in counselling as have the younger siblings and through therapy Q.M.’s relationship with his parents has become more positive and supportive in nature. Q.M.’s parents care for him deeply and plan to continue to support him moving forward. Prior to the offence his parents had been moving towards reintegrating Q.M. into their family but this was delayed until the charges have been dealt with. Q.M. understands and respects this decision. Q.’s father advised that since Grade 7, his son has had an Individualized Education Program (IEP) after being identified with a processing and recall disorder. He requires more time to think things through and respond appropriately. This required his school to put an accommodation in place.

[17] Q.M. has completed Grade 12 in June 2020, and received his Ontario Secondary School Diploma. He was accepted into the Associated Diploma in Equine Care and Management Program at the University of Guelph but declined acceptance due to his outstanding charges but he is committed to working towards a career working with animals.

[18] Currently, Q.M. works full-time at a local coffee shop since August 2020, where he works as a baker on the night shift and rotates to the front counter. His three month performance review indicated that he gets along with his co-workers and is a hard worker. He is reliable, copes with stressful situations and is a valued employee. His House Mentor with Collaborative Community Connections (CCC) advised that Q.M.’s employment has had a noticeable positive impact on him. He currently has $8000 in savings and no debts. His living expenses through CCC are paid for through CAS.

[19] Q.M. has been attending weekly therapy sessions since arriving at Youth Connections in 2016. This continues up to the present time. It was explained that because of Q.’s processing disorder progress in his counselling has been slow but steady. In the Clinical Summary dated December 2019, the Estimate of Risk Adolescent Sexual Offense Recidivism indicated Q.M. presented a “high degree of risk of sexual offending.” There are limitations to this assessment given the nature of adolescence and developmental changes. In September 2019, after the charges were laid and after returning to CCC, it was discovered that Q.M. had photos on his phone of some of the child campers, as well he had 282 unwanted/unknowing pictures taken of group home staff where he zoomed in on their genitalia and saved the photos. His phone was confiscated and his house rules became more restrictive. Q.’s behaviour during this period began to escalate and he would not adhere to program rules. He became verbally and physically aggressive with staff and had to be taken to hospital on one occasion when he was discovered with his robe belt around his neck. At the time of the PSR (December 2020) Q.M. was described as being in a “positive state” and had regained his privileges. Q.M. was under the care of a psychiatrist and had been prescribed anti-depressant medication but ceased taking it in June 2020.

[20] Q.M. does not have a youth or criminal record. His parents contacted CAS and Toronto police in June and November 2016 concerning sexual behaviour towards his younger brother and sister. It was as a result of this that Q.M. was put into the temporary care of Toronto CAS. He was co-operative and forthcoming with the probation officer and with Dr. Pearce who prepared a Forensic Psychiatric Assessment. Q.M. self-disclosed to the probation officer that he believed he had an addiction to pornographic material. He expressed his desire to gain insight into this and other behaviours adding that at times his conduct is frightening to himself. The probation officer identified concerns surrounding Q.M.’s ability to problem solve and self-management deficits, inappropriate sexual behaviour, poor social skills/isolation, anger management deficits and a pattern of intimidating and controlling behaviour. Despite these concerns Q.M. expressed a willingness to participate in recommendations that would assist him in gaining insight into his negative behaviour and in gaining an ability to move forward and to develop strategies to overcome them.

[21] Dr. Pearce in his Forensic Psychiatric Assessment provided the following diagnosis:

Given the overall pattern of behaviour and notwithstanding his youthfulness and denial, in our view and just on the balance of probabilities, he suffers from pedophilic disorder. Phallometric testing could help confirm the diagnosis.

[22] Dr. Pearce continues:

[Q.M.] did not appear to meet the full criteria for conduct disorder although he did exhibit some conduct-disordered behaviour such as stealing, coercive sexual behaviour towards his younger sister and episodes of aggression towards his parents.

In his youth, [Q.M.] was also diagnosed with a specific learning disability in rapid retrieval of familiar information, alongside significant executive function difficulties such as challenges in initiating goal-directed and problem-solving activities, emotional regulation, and attention control.

As an adult, [Q.M.] has not maintained a serious relationship. He has not dated and is sexually naïve. Despite his oppositional behaviour at home, he otherwise did not incur any disciplinary action at school and he did not incur young offender charges. He has worked responsibly and has held positions in a grocery store, a sheet metal shop and most recently, Tim Hortons. To his credit and since moving into the group home, he has been able to rebuild a healthier relationship with his parents and has worked on regaining the trust of his siblings.

In conclusion, [Q.M.] likely suffers from pedophilic disorder. He has a history of oppositional defiant disorder and a specific learning disability. He has not abused substances and he does not meet criteria for a personality disorder.

[23] Dr. Pearce conducted a risk assessment on page 22 of his Forensic Psychiatric Assessment and concluded Q.M. is at a low to moderate risk for sexual recidivism.

[24] Q.M.’s parents provided a detailed letter, Exhibit 7, outlining plans made with Q.M. to support him upon his release from custody. The plan involves assisting him enrolling in the program he was accepted into at University of Guelph, setting up a residence and helping him find employment and a new therapist. They have arranged for short-term residences with Q.’s grandparents and with family friends until he finds his own accommodation. In the initial time after his release from custody either one of Q.’s parents or his grandparents will be with him. I was very impressed by Q.M.’s parents’ support of their son and the lengths they had gone to on his behalf both prior to the commission of the offence and subsequently. This was very evident in all of the reports provided to me on this sentencing hearing and in my view bodes well for Q.M.’s success in addressing and dealing with his psychiatric issues.

Sentencing Principles Applied

[25] The purpose of sentencing is set out in sections 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases.

[26] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to “victims”, or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the “victims” and the community.

[27] Pursuant to s. 718.01, when a court imposes a sentence for an offence that involves the abuse of a person under 18 years of age, it “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” The reason for this is because conviction for an offence of sexual interference is a serious matter and Q.M.’s offence against B.W. involved his abuse of a person under the age of 18. Courts have very few options other than imprisonment to achieve the objectives of denunciation and deterrence in this context – R. v. Inksetter 2018 ONCA 474, at para 17.

[28] This statutory requirement of giving primary consideration to the principles of denunciation and deterrence had already been recognized in numerous Ontario Court of Appeal sentencing cases prior to the introduction of s. 718.01, including R. v. D.D., [2002] O.J. No. 1061 (C.A.). Justice Moldaver, as he then was, held “absent exceptional circumstances, the objectives of sentencing proclaimed in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.”

[29] The Supreme Court of Canada recently in R. v. Friesen, [2020] S.C.J. No. 100, recognized Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirmed the need for courts to impose more severe sanctions for sexual offences against children. The words “primary consideration” in s. 718.01 prescribes a relative ordering of the sentencing objectives set out in s. 718 (a) through (f) (see Friesen, at para. 102). However, the section should not be interpreted as limiting other sentencing objectives, such as separation from society, which reinforces and gives practical effect to denunciation and deterrence (see Friesen, at para. 103 and Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), at para. 76). The Supreme Court did indicate that “where Parliament has indicated which sentencing objectives are to receive priority in certain cases, a sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority” (see Friesen, at para. 104). A sentencing judge retains discretion to accord significant weight to other facts (including rehabilitation and Gladue factors) in arriving at a fit sentence, in accordance with the fundamental principle of proportionality. The Supreme Court concluded, “Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause” (Friesen, at para. 105).

[30] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, at para. 42, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary

[31] As Rosenberg J.A. held in R. v. Priest, [1996] O.J. No. 3369, at para. 26:

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.

[32] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)). A number of aggravating circumstances are set out in this section, which are applicable to the factual circumstances of the charges Q.M. was convicted of.

[33] According to s. 718.2 (a)(ii.1), evidence that the offender, in committing the offence, “abused a person under 18 years of age,” is statutorily deemed to be an aggravating circumstance of the offence. Therefore, the paramount principles of sentencing in cases involving sexual assaults of young children are denunciation and deterrence. Prior to the enactment of s. 718.01 referred to above, the Ontario Court of Appeal in R. v. Woodward, supra, Moldaver J.A., (as he then was) confirmed:

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

[34] More recently in R. v. B.J.T., at para. 83, Justice Feldman for the Court held:

…sexual interference of a child is a very serious offence. The moral blameworthiness on the part of the adult is because it is the adult’s role to protect the child, not acquiesce where the child may not appreciate the impropriety of the proposed action because of its sexual aspect. Nor should the effect of sexual interference on the child be minimized. In R. v. A.B., 2015 ONCA 803, 333 C.C.C. (3d) 283, at para. 45, I stated:

[T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance.

[35] It should be noted that the mandatory minimum sentence stipulated in s. 151 of the Criminal Code has been struck done by Justice Feldman of the Ontario Court of Appeal in R. v. B.J.T., [2019] O.J. No. 4503 (C.A.), as being unconstitutional, as have numerous judges in the Ontario Superior Court and the Ontario Court of Justice. In my view, this in no way diminishes the seriousness of sexual offences involving young children, particularly given the Supreme Court’s comments in R. v. Friesen, supra, at paras. 116-117, which indicate while sexual violence against either a child or an adult is serious, Parliament has determined that sexual violence against children should be punished more severely.

[36] Further, s. 718.2(a)(iii) provides that evidence the offender, in committing the offence, abused a position of trust or authority in relation to the victim is statutorily an aggravating circumstance of the offence.

[37] Finally, s. 718.2(a)(iii.1) provides that evidence the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, is statutorily deemed to be an aggravating circumstance of the offence.

[38] Section 718.2 also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b)), that the combined duration of consecutive sentences not be unduly long (718.2(c)), that an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)), and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[39] It is my view the Supreme Court’s decision in R. v. Friesen is an endorsement and approval of numerous appellate court decisions, which have recognized the increased seriousness of sexual offences involving children and the need for exemplary sentences.

[40] I am also mindful of the principle of restraint reflected in R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at paras. 32 to 34, where the Ontario Court of Appeal held:

…the appellant was a first offender. As such, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where, as here, incarceration must be imposed, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545.

…the principle of restraint requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence. In lowering a sentence given to a first offender, this court stated in R. v. Blanas (2006), 207 O.A.C. 226, at para. 5:

[G]eneral deterrence cannot be the sole consideration. The appellant is relatively youthful and has no prior record and appears to have the full support of her family and community. Appropriate consideration must be given to the rehabilitation of the appellant.

[41] In serious cases and cases involving violence, rehabilitation alone is not the determinative factor – general deterrence and denunciation are also significant factors to be considered – now recognized by s. 718.01 as the “primary consideration.” However, as the Ontario Court of Appeal ruled in R. v. Dubinsky, [2005] O.J. No. 862, at para. 1, it is an error to focus almost exclusively on general deterrence and fail to consider individual deterrence and rehabilitation, especially when sentencing a first offender.

[42] Of course, I must always consider the sentencing principle of rehabilitation, particularly given Q.M. is a youthful first offender, however, any sentence imposed must be grounded in the facts of Q.M.’s case and be proportionate to the gravity of the offences committed by him and his moral culpability.

Sentence Imposed

[43] There is no doubt that Q.M. has challenges ahead of him after he is released from custody. He has engaged in numerous steps to gain insight and understanding of his behaviour and the materials provided on this sentencing demonstrate a willingness on his part to overcome and develop strategies to address his psychiatric issues. The psychiatric assessment and letters from the Toronto CAS and Collaborative Community Connections all attest to his desire to prevent similar behaviour on his part in the future. His attitude and willingness to continue counselling and to address these issues in my view bodes well for his successful rehabilitation in the future.

[44] I am mindful of the fact he is a youthful first offender and although deterrence and denunciation are the paramount sentencing principles to be applied, hence why a custodial sentence is required, I must not lose sight of the importance of the sentencing principles of rehabilitation and restraint in determining a proportionate sentence. Sexual interference is a very serious criminal offence, however, there are significant mitigating circumstances present in this case. Q.M.’s guilty plea and acceptance of responsibility are significant mitigating factors. B.W. did not have to testify at a trial, which is an important mitigating circumstance. There are psychiatric issues, which have been identified as a direct result of Q.M.’s willingness to be involved in therapy and in a psychiatric assessment. It is my view there is not really any significant difference between the Crown and defence positions on sentence. This is a first jail sentence and I am instructed by the cases where incarceration must be imposed in the case of a youthful first offender it should be as short as possible and tailored to the individual circumstances of the offender. As a result, it is my view a 9 month sentence of imprisonment is the proportionate sentence to be imposed, followed by 3 years of probation. I will discuss the terms and conditions of the probation with counsel.

[45] There will also be a DNA order, Q.M. will provide a sample of his DNA by January 19, 2022 at 5 p.m. There will be a s. 743.21 order prohibiting Q.M. from contacting or communicating directly or indirectly with B.W. or any member of her family while he is in custody. There will be a s. 109 weapon’s prohibition order for 10 years. Further, there will be a SOIRA order for a period of 10 years and a s. 161 order for a period of 10 years and I will discuss the terms of that order with counsel as well.

Released: January 12, 2022 Signed: Justice Peter C. West