Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 27/07/22 COURT FILE No.: 19-25194 & 19-35648

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CHRISTOPHER BENSON

Before: Justice B. Green

Submissions heard on: June 23rd, 2022 Reasons for Sentence: July 27th, 2022

Counsel: Ms. M. Tait, counsel for the Crown Ms. A. Dresser, counsel for the Defendant

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

GREEN J.:

A. Introduction

[1] Mr. Benson was convicted in November of 2007 of 20 counts of sexual assaults involving adolescent girls and some women. Following a period of incarceration, he was released in 2008 after which he was bound by a 10-year section 161 order with various terms and conditions, including the term to remain out of daycares. These terms were intended to prevent him from having access to children or adolescents in order to protect them from him. This order remained in effect until August of 2018.

[2] Christopher Benson was charged with various offences stemming from his wife’s choice to operate a daycare in their family home while he was bound by the section 161 order not to attend daycares. A.D. was one of the children who attended Mrs. Benson’s home daycare.

[3] At the outset of the trial, Mr. Benson plead guilty to count 5 on the information that, between the dates of February 26th, 2018 and August 13th, 2018, he knowingly breached the terms of the section 161 order that prohibited him from attending various places including a daycare. An agreed statement of facts was filed as the first exhibit during the trial. While he only plead guilty to breaching the section 161 order over a period of 5 months and he accepted responsibility for certain facts, it became evident during the trial that he had been breaching this court order far more frequently and for many years.

[4] Mr. Benson admitted that he breached the terms of his order but, he plead not guilty to the remaining counts on the information that involved one of the daycare children, four-year-old A.D. He was acquitted of three counts with respect to allegations of exposing himself to her and sexual interference. However, he was convicted of count 4, that he made available sexually explicit material to A.D. for the purpose of facilitating an offence under sections 151 or 152 of Criminal Code contrary to section 171.1(1)(b) of the Criminal Code.

[5] It is important to note at the outset of these reasons that the crown elected summarily. As a result, the maximum available jail sentence for the 171.1(b) offence is 2 years incarceration and the section 161 offence is 18 months incarceration or 3 and a half years in total if the sentences are served consecutively.

[6] Both counsel and the crown agreed that the delicts of the offences are different so the sentences should be consecutive. The contentious issues for me to decide are the length of the sentence of incarceration for each count, whether the sentence should include a probation order and the length of the section 161 order.

[7] The crown submitted that a sentence of incarceration of 18 months, consecutive on each count for a total of 3 years, is necessary in order to achieve the predominant sentencing principles. In addition, a lifetime section 161 order is essential to protect vulnerable children in our society once Mr. Benson is released from custody. The crown also sought ancillary orders of a S.O.I.R.A. order for life and a DNA order.

[8] Counsel submitted that a total sentence of 18 months more appropriately balances the competing sentencing considerations including some mitigation for the plea of guilty to the section 161 offence. In addition, it would allow the Court to order Mr. Benson to abide by a period of probation to ensure a more successful reintegration into the community, allow for additional orders protecting the victims and court ordered counseling. Following his last conviction, counsel advised that Mr. Benson diligently completed all of his counseling. In addition, counsel emphasized Mr. Benson’s young age and the fact that he has children of his own when urging the Court to consider a much shorter section 161 order in the range of 10 to 15 years with various exceptions.

[9] A fair sentence balances competing considerations of the aggravating features of the offence and the mitigating circumstances of the offender. It is determined by the applicable sentencing principles and considerations of parity and proportionality. I will address each of these factors to explain the sentence that I have determined to be fit and appropriate in the unique circumstances of this case.

B. Aggravating and mitigating factors:

i. The circumstances of the offences:

a. The breaches of the section 161 order:

[10] An agreed statement of facts was filed as an exhibit during the trial. It provided some evidence to support Mr. Benson’s plea of guilty to count 5 as well as some additional background information about when A.D. attended the daycare ran by Crystal Benson:

Christopher Benson was convicted on November 23, 2007 of 20 counts of Sexual Assault involving adolescent girls. He was sentenced and placed on a s. 161 Order for ten (10) years. The s. 161 Order was in effect until August 13, 2018.

The s. 161 Order specifically stated that Christopher Benson was prohibited from attending a daycare center.

In 2012, in an unrelated investigation, the Durham Regional Police Service learned that Crystal Benson, Mr. Benson’s partner, had opened a home daycare in the family residence.

In June of 2012, the Durham Children's Aid Society investigated this situation. The CAS investigator reviewed Mr. Benson’s s.161 Order with Ms. Benson. Crystal Benson thereafter advised the CAS that she was now going to "close" her daycare which then resulted in the Durham CAS ending their investigation.

Ms. Benson then re-opened the home daycare in September of 2012 and continued to operate the daycare until June 7th, 2019, when she was advised by CAS worker Ian Kavanaugh that Christopher Benson was not allowed back in the family home.

Crystal Benson, Christopher Benson and their two children M. (8 years old) and M. (11 years old) had been residing at C[…] Crescent in Whitby for the past four years and resided at another address prior to this point in time. Ms. Benson operated her home day care out of that residence until June 7, 2019.

Four year old A.D. attended the daycare along with other children from February 26th, 2018, until June 28th, 2018. As a result of an investigation relating to A.D., Durham Regional Police Service initiated a media release which resulted in over 30 calls being received by Durham Regional Police services from parents.

E.G., mother of A.G. reported that her child had been in Ms. Benson's daycare since January of 2017. Ms. G. advised of two occasions where she was aware that Christopher Benson had been left alone with her child. One observation occurred when children were being taken off the bus and Crystal Benson advised E. that her child was in the house with Christopher Benson. The second incident occurred on August 28th, 2018, after the expiry of the section 161 Order.

F.M., the mother of one of the children in the daycare, indicated that there was a period of 1.5 - 2 weeks when Christopher Benson had a leg injury and was at home when the daycare was operating and when children were present. At the time, the prohibition order was in effect.

J.E. indicated that she started taking her twin 16 month old daughters to the daycare being operated by Crystal Benson in September of 2012 on and off. Her daughters attended the daycare from September 2015 to June 2019. She advised there were times when her daughters were left alone with Mr. Benson with her permission as she did not know Mr. Benson’s history at that time. On the occasions when this occurred it was only for brief periods of time, from 2- 20 minutes.

T.F.’s child was in the Crystal Benson daycare. T. had personally witnessed Chris Benson alone with children. On the occasions when this occurred, it was only for brief periods of time, from 2- 20 minutes.

It is acknowledged by Mr. Benson that he failed to comply with the section 161 prohibition order and the term where he was "prohibited from attending a public park or public swimming area where persons under the age of fourteen years are present or can reasonably be expected to be present, or at a daycare center, school ground, playground or community center" by being present in the home when the daycare was being operated and being alone with the children who were attending the day care.

[11] Despite a child welfare agency warning Mrs. Benson about her legal obligations to ensure that Mr. Benson did not have access to or attend a daycare and that she had to provide C.A.S with a list of her clients, she covertly reopened a daycare in her home in the fall of 2012. She did not notify C.A.S. or provide them with a list of her clients. She never notified any parent, who trusted her and placed their vulnerable children in her care, of her husband’s prior convictions or his court order not to attend a daycare.

[12] Mr. Benson cannot be faulted for his wife’s misconduct. He was, however, well aware of and complicit in his wife’s duplicity. He was a party to her choice to breach the trust of every parent who entrusted a child to her care. More importantly, he chose to assume the role of a caregiver for the children entrusted to the care of his wife whenever she left the house.

[13] Some of the parents whose children attended that daycare were devastated when they realized the extent of the duplicity involved in the commission of this offence. I will address the extent of the pain, guilt and trauma suffered by innocent parents who trusted the Bensons when reviewing the victim impact statements. An important additional aggravating fact is that Mr. Benson was not only actively involved in his wife’s duplicity, he and his wife befriended one of the couples whose children attended the daycare. Once again, that was a choice that he made to betray his friends.

[14] In 2018, during the timeframe outlined in the information, Crystal Benson ran a daycare with mostly toddlers. A.D. was the oldest full-time daycare child. She was only four years old at that time.

[15] Counsel submitted that over 30 parents were interviewed after A.D. disclosed her victimization and there were no other similar reports of sexual misconduct. Counsel suggested that I can rely on the absence of other complaints to find that the predatory conduct involving A.D. was an isolated occurrence. I disagree.

[16] Many parents may make informed decisions not to report the abuse of their children for a variety of reasons. In addition, the children in the Benson daycare were so young that they may not have been capable of reporting any instances of sexual misconduct. The fact that no other complaints of sexual abuse were made is not a mitigating fact. I cannot find, one way or the other, whether the abuse of A.D. was an isolated occurrence. It is, however, incredibly disconcerting that a convicted sex offender had access to extremely vulnerable children who were entirely dependent on their caregiver to protect them and instead she left them alone with Mr. Benson.

[17] Mrs. Benson agreed to certain facts when she plead guilty to aiding and abetting these breaches. She adopted some of these facts during the trial:

• Another parent who had a child in Mrs. Benson’s care for almost two years stated that she had personally witnessed Mr. Benson alone with the daycare children. These observations occurred when Mrs. Benson took children to the bus stop and when she was taking her own children to dance which would have been a much more significant period of time.

[18] Mrs. Benson also admitted that there were “instances” when she left her husband in the daycare “alone with children”. The timeframe of these instances that she admitted to was during the time when A.D. attended the daycare.

[19] I recognize that Mr. Benson has been convicted of violating the section 161 order for the period of five months from February to June of 2018. While I cannot penalize him for crimes that he committed prior to these dates, it is an aggravating fact that these breaches were not isolated or even unusual occurrences. The breaches in 2018 were the culmination of a longstanding, flagrant, and deliberate lack of regard for an important court order intended to protect innocent children from Mr. Benson.

[20] It is significantly aggravating that, not only did Mr. Benson flout a court order and attend a daycare, but he also went even further. Shockingly, he assumed the role of a caregiver when he was alone with the children who were entrusted to his wife’s care. At least 5 different children, in addition to A.D., were left in the care of Mr. Benson on different occasions while he was bound by a section 161 order.

[21] As the trial progressed, more information was elicited about the number of times Mr. Benson was home during daycare hours and how often he was left to care for the children. There were times when he was home throughout the day, while the daycare was operating, because of the weather dependent nature of his employment. Mrs. Benson also left the children, including A.D., in the care of Mr. Benson when she had some kind of emergency. In addition, Mr. Benson’s work hours were not consistent. A couple of times a month, he came home earlier around 4:30 and on the “odd time” he arrived home even earlier during daycare hours.

[22] There were occasions when Mr. Benson was home around the school bus drop off time which was closer to 3:30 p.m. If Mr. Benson was home from work, Mrs. Benson sometimes left the daycare kids with him, including A.D., while she picked up their children from the bus stop. According to Mrs. Benson, A.D. was not picked up by her mother until between 4:30 and 5:00 p.m. Based on Mrs. Benson’s description of Mr. Benson’s work hours, Mr. Benson was in the daycare sometimes in the afternoon while A.D. was still present. A.D. was the only daycare child present on Monday afternoons after 3:30 or 4:00 p.m. on Mondays while Mrs. Benson went to the bus stop.

[23] There were other times when Mrs. Benson left the kids in her daycare with her husband. In 2018, Mrs. Benson’s daughter attended dance classes on Mondays, Tuesdays, and Wednesday’s. The dance class started at 4:30 p.m. As noted, A.D. was not picked up until after 4:30 p.m. and she would have been the only daycare child there at that time of day on Mondays.

[24] Mrs. Benson explained that the few times when she drove her daughter to dance during February to June of 2018, was when she “would need to go in to pay something or sign something, so in those instances I would quickly drop her” (p. 38). Mrs. Benson would have been absent for a considerable period of time when she had to drive her daughter to dance to get there before 4:30 p.m., attend inside and then drive back home. At a minimum, she would have been gone for at least 25 minutes.

[25] Mrs. Benson admitted that her husband would care for the daycare kids when she went to drop off her daughter at dance. When she went on Mondays, Chris Benson would have been left alone with A.D. and their son, who was much older than A.D. and he did his “own thing”.

[26] Mrs. Benson made the deliberate decision to leave children, who were entrusted to her care, with her husband instead of Mr. Benson driving their daughter to dance class which begged the question as to why they made this choice. Throughout the sentencing, counsel emphasized the close relationship that Mr. Benson shares with both of his children. Yet, the couple made the decision for Mrs. Benson to drive their daughter to the dance class whenever she had to go inside.

[27] The only rational explanation or reasonable inference for the Benson’s choice to leave the daycare kids with Mr. Benson when he could have just as easily driven their daughter was that they both knew, at that time, that he was not supposed to attend places where children were known to frequent like a community center or a child’s dance class.

[28] Mr. Benson was acutely aware that he should not be publicly attending inside a dance studio full of underage children. Instead, he chose to remain inside their home, in a daycare with little children, where the breaches of his court order could not be so easily detected, and the children were completely vulnerable. The admitted facts did not fulsomely encapsulate the extensive nature or egregiousness of the breaches of the section 161 order.

[29] Mrs. Benson chose to leave a quiet, socially awkward child who she knew sought out one on one adult attention in the care of a convicted sex offender. In terms of A.D specifically, the crown proved beyond a reasonable doubt that C.P. saw Chris Benson in the house during daycare hours more than once and she saw him sitting on a couch with her daughter on one occasion when she attended to pick her up and Crystal Benson was not present.

[30] A.D. also provided additional details about Mr. Benson’s presence in the daycare and her interactions with him. She described how Mr. Benson “just like hanged around there at Crystal’s house” but sometimes he would just leave (p. 30-31). She remembered seeing him at the daycare, but she couldn’t quantify how often. She was certain that there were times when Crystal was not home, and she was at the daycare with Chris (p. 73). Although Crystal stayed most of the time, A.D. saw her leave the daycare sometimes. She specifically remembered being in the living room and seeing Crystal leave out the front door of the house. She believed that one time when she left, she heard Crystal say that she was going “shopping” (p. 74).

b. The section 171 offence:

[31] A.D. was a quiet but happy four-year-old in the beginning of 2018. She required a lot of adult attention and liked to be one on one with her caregiver. Although she had a bit of a speech impediment, she was “on par with normal development”.

[32] C.P. had a cordial and polite relationship with Mrs. Benson but she was not happy with this daycare arrangement. Mrs. Benson sent her some pictures of A.D. at the daycare. C.P. noticed that A.D. was “always on her own” in the photos. She was not playing with the other children. In one photo in particular, all the children were playing with some chalk in the driveway, but her daughter was sitting on the stairs by herself. C.P. felt that A.D. looked so “sad” in that picture (p. 67). Another memorable picture was sent when Crystal messaged C.P. because she thought A.D. was ill. A.D. was curled up on the sofa cuddled up in a blanket.

[33] Other than the Benson children, the other children at the daycare were all younger than A.D. She was socially isolated and dependent on adult attention for interaction. C.P was worried about the level of attention that her daughter was receiving at the daycare.

[34] Mrs. Benson described A.D. as “a little socially awkward”. She confirmed that A.D. did not interact much with the other children in her care and she “kind of kept to herself”. For two hours every day during nap time, A.D. was the only child awake in the afternoon. Mrs. Benson let her wander around as long as what she was doing was quiet. Based on Mrs. Benson’s evidence, A.D. spent a lot of time unsupervised in the house. If Mr. Benson was home, Mrs. Benson also agreed that she also didn’t pay much attention to what he was doing in the house.

[35] Mr. Benson was in the daycare and around A.D. often enough to recognize her unique vulnerabilities and prey on them. He tried to gain A.D.’s trust. Mr. Benson spent time watching television with A.D. A.D. told DC McConnell that Chris was “so annoying” because he was always lying on the couch, so she didn’t have enough room to sit down (p.22 of her interview). A.D. also remembered that Chris gave her one of his kid’s chocolate bunnies at Easter time.

[36] On one occasion while Chris Benson was sitting on the couch unsupervised with A.D., he was scrolling through sexually explicit material on his phone. He was much taller than a four-year-old. As a result, I found that he chose to hold his phone down low, in his lap, so A.D. could see the screen. He purposefully held the phone in a manner that A.D. could see pornography on his phone.

[37] A.D. explained that Chris only showed her a video on his phone once while they were sitting on the couch. A.D. was exposed to a video during which she saw more than one sexually explicit image. The only statement about what A.D. saw that was introduced for the truth of its contents was the video that she described to Officer McConnell of a “man drinking from a girl’s butt”.

[38] Since Mr. Benson spent time with A.D. and he was in the daycare on occasion while she was there, he was aware that she was a shy, isolated, little girl who did not talk much at that time. He preyed on her vulnerability and isolation. He “knowingly, by some positive act, facilitated the availability of the material” when he purposefully positioned his phone on his lap in a manner that A.D. could see what he was viewing on the screen. Accordingly, Mr. Benson intentionally made this sexually explicit material available to A.D. He purposefully showed A.D. this sexually explicit material as the next step in the process of grooming her for future sexual offences.

[39] A.D.’s statements to her mother that she didn’t think Mr. Benson showed her the images on purpose were not admitted for the truth of its contents. Moreover, these statements reflected A.D.’s naivety and malleability in the hands of a manipulative, depraved adult. Mr. Benson made this sexually explicit material available to A.D. for the specific purposes of grooming, facilitating and/or taking preparatory steps towards the commission of an offence contrary to sections 151 or 152 of the Criminal Code.

[40] The only time during the trial when A.D. showed any signs of discomfort or upset was while her evidence on the 715.1 recording was playing and she was describing what she saw on Chris’ phone. I accept that she was traumatized by this offence.

c. The victim impact evidence:

[41] One of the most distressed parents of the children who attended the Benson daycare was Mrs. J.E. Not only did she send her daughters to this daycare for years, she and her husband befriended the Benson’s. They shared a seven-year personal and professional relationship. They socialised at each other’s homes, at events and their children played together.

[42] Mrs. J.E. is overwhelmed with guilt because she acted as a reference for Mrs. Benson. The depth of her hurt, betrayal and shame were evident. She cried while reading in her victim impact statement. She related that discovering the truth was like a “smack in the face”. She described her shock and upset:

I can’t believe that people who were supposed to be our friends would invite our children into their home under these circumstances. I entrusted the daycare provider and the family with my most valuable, precious and vulnerable thing everyday. Not only did Chris and the provider deceive us by not being forthright with the information of his charges but he was also then okay with being left alone with the children multiple times. The thoughts of what may have or could have happened is gut wrenching. It is a thought I have not been able to go a day without thinking about. The actions of Chris and the provider are deceitful and disgusting.

Another impact of this situation is the constant guilt I feel for recommending this family and daycare to so many people. As I was one of the original daycare clients, I acted as a reference for many of these families. It tears me up inside to know that they were there based on my positive feedback about how wonderful and safe I thought the provider and home were. If I had known what I know now, I would have NEVER put my kids in his home or recommended them to anyone.

[43] Mrs. J.E.’s daughters were only one year old when they started at the daycare, so they were particularly vulnerable at that age. The thought of what could have happened to them haunts her. Moreover, she worries about each and every child who attended that daycare as a result of her referral. This whole process has been “difficult to handle and manage” her daily life as a result of this egregious breach of trust. She described how discovering the truth has “shattered her sense of trust and safety” with respect to everyone in her life. Mrs. J.E.’s mental health has been negatively impacted. She continues to suffer from this crime. She related that:

I have never been a person to overthink things, but since being exposed to this type of trauma I haven’t been able to stop thinking about it. The anxiety, stress and fear has seeped into all aspects of my life and it has been difficult to even get through the day. I have started going to therapy to try and learn how to manage my thoughts and feelings, so that it doesn’t affect my work life, social life or my family life. In the process I have been diagnosed with acute depression related to the trauma this caused.

[44] Mrs. E.G. was equally emotional but in a different manner. She expressed her outrage and fury that she and her husband feel because of the inexcusable betrayal of exposing their child to a convicted sexual predator. She described how she and her husband have suffered as a result of the breaches of the section 161 order:

..my husband and I have struggled with anxiety, anger and depression; consuming feelings which settle and surface each time a court date approaches. These emotional fluctuations affect every area of our lives; our ability to live freely in our community, our ability to feel like effective parents, our ability to attend and be present at our places of employment, and our overall physical and emotional well being.

What happened in the home daycare has had a negative impact on our family. We feel betrayed, angry, frustrated and fearful. As a parent, I have ongoing guilt. Guilt for trusting the daycare Provider. Guilt for putting my daughter in an unsafe position. Guilt for not protecting her. Guilt for putting her at risk.

Our emotional health has greatly suffered. We both attend individual psychological counselling; however, the cost of the sessions far exceeds any health insurance coverage that we are eligible for. My husband is so broken over what Chris Benson has done, that he has difficulty speaking about it. This has had a great impact on our marriage. While we continue to support one another; my husband and I have discovered through this that we both need different things to process the trauma that we have experienced. As a result, this has made it very difficult for us to work through at times. We have had communication issues, sleepless nights, extreme emotion, guilt and feelings of isolation as we both try to navigate our way.

[45] Unfortunately, Mrs. E.G.’s child has also suffered because they are afraid to trust anyone with their child:

My relationships with other adults have been negatively affected; I have difficulty trusting others. I cannot let my daughter play with others without my constant supervision. I am unable to trust other adults around my child. My daughter has never attended a sleepover with her peers, a birthday party or a playdate on her own. It will continue to affect how we feel about her interactions with others, her participation in activities, and her relationship with other people as she gets older. This likely will not change for quite some time, if ever. The daycare Provider and Chris Benson have shattered my sense of security and my foundation of trust. I am forever affected by the actions of Chris Benson and the Provider, and I will carry the emotions and the guilt that I have for the rest of my life.

The harsh reality is that this isn’t over-it never will be. This has forever changed all of us. It has changed the people we are. It has changed all of the decisions we make, how we parent, how we view ourselves as parents, how we trust, how we live, how we move forward. I have a strong fear of home daycares; every opportunity that I get to advise another family about the cautions of selecting a home daycare, I take it.

[46] In addition to the deep betrayal and unquestionable breach of trust that every parent who had a child in that daycare must feel, A.D.’s mom C.P. provided a victim impact statement. She related how she feels like she failed as a parent to protect her child from exposure to a sex offender. She suffers with immense guilt as well as lasting mental health issues. She suffers from panic attacks. She carries with her the blame for what happened to her daughter. Her anger, sadness and guilt consumed her so much that her marriage suffered as a result. In addition, she was not able to function at work and she had to transition to a part time position while trying to cope with her feelings.

[47] A.D. continues to suffer because of her victimization in that daycare. Her mother is understandably overprotective. She is not allowed to attend sleepovers and visiting friends’ homes is restricted to families that C.P. knows very well. A. has been in therapy for years to help her. Due to lost work opportunities and hours, the family did not have sufficient insurance to cover this care and they are out of pocket for these added expenses. C.P. is also attending therapy and couple’s therapy which is an additional cost.

[48] It is aggravating that Mr. Benson targeted a very vulnerable isolated, quiet, introverted and reserved 4-year-old girl who sought out adult attention. Fortunately, A.D. blossomed since she left that daycare. She presented as a bright, articulate, resilient little girl during the trial. She was old enough and strong enough to relate and describe what happened to her. She described in her victim impact statement how Mr. Benson made her feel “grossed out” and that she has nightmares. She also related how sad she feels that she is not allowed to go to sleepovers.

[49] Impressively, A.D. drew a picture in her victim impact statement of a big bear named Chris and a little dog barking at it named A. Her mother explained that, through therapy, A. has learned that by using her voice, like the small dog barking, she can scare off a predator like Mr. Benson, the bear.

[50] It is apparent that years later, the suffering caused by Mr. Benson’s actions seems endless to his victims. The lasting impact on the victims and the egregious breaches of their trust are substantially aggravating factors.

ii. Circumstances of the Offender

[51] Mr. Benson has a related criminal record. He was convicted in November of 2007 of 20 counts of sexual assault of girls and women ranging in age from 11 years old to adults. He received a sentence of 13 months incarceration concurrent on all counts, 3 years of probation and a 10-year section 161 order that is the subject of this trial.

[52] Mr. Benson is 42 years old. He enjoys the benefit of a caring father and older brother both of whom filed letters expressing their love for him and continued support. Mr. Benson was described as growing up in a happy, healthy home. Unfortunately, after Mr. Benson was charged with these offences, his mother died. He will have grapple with the guilt that his mother was disappointed with him in the final stages of her life.

[53] Mr. Benson has always been a hardworking man. He maintained steady employment throughout his life including after his prior conviction. Unfortunately, he had to leave his employment of 13 years because of the publicity surrounding this case and some workplace harassment. He secured another job, and his employer wrote a letter on his behalf confirming his present employment. It is evident that he has the potential to be a contributing member of the community and a financially supportive parent in the future.

[54] He is married to Crystal Benson. Although they are separated, he continues to enjoy her ongoing support as he has throughout his troubles with the law. Crystal Benson was her husband’s surety the last time he was charged with sexual offences. She stood by him after he was convicted of multiple sexual offences. After his convictions for those serious offences, Mrs. Benson knowingly and callously provided a hunting ground for a convicted sexual predator to have access to the defenceless children of tender ages in her care. During the trial, she was less than forthright and tried to minimize the amount of time her husband spent with the children.

[55] She provided a letter of support; however, she has little credibility. In addition, Mrs. Benson’s unwavering support is disconcerting in terms of Mr. Benson’s potential for rehabilitation since she was a party to these offences and enabled his commission of serious crimes. She plead guilty for her role in aiding and abetting her husband’s breaches.

[56] The Benson’s have two children. I accept counsel’s submissions that their lives have been very difficult. The Benson children have and will continue to suffer as a result of the offences committed by both of their parents. There was a significant amount of publicity about these offences which could be humiliating for their children if any of their friends or classmates hear about these events. In addition, their lives were disrupted when their parents had to move out of the neighborhood following the disclosure.

[57] Each of the letters filed in support of Mr. Benson related how the children will be devastated by any sentence of incarceration that their father receives because he will be taken from their lives again. They love their father, and they will lose his presence in their lives while he is incarcerated. They will also lose the benefit of his continued financial support.

[58] Mr. Benson chose to commit crimes in the home that he shared with his children. He committed offences while his children were present. He failed to protect or shield his own children from his deviance and disrespect for a court order. The Benson children are undoubtedly innocent victims. It is a tragedy that they are suffering because of their parents’ choices to commit serious crimes in the family home.

[59] Counsel urged me to find that this is a collateral consequence that should attenuate the length of the sentence of incarceration. I disagree. Mr. Benson made an informed choice to commit crimes in the home he shared with his children. Both of these parents are solely responsible for the pain and suffering that they have caused to these two children. He is responsible for breaching the trust of their children and robbing them of the safety and security of their home life and the exposure to potential bullying.

[60] The continued suffering endured by the Benson children is not a collateral consequence that ought to mitigate Mr. Benson’s sentence. Quite the contrary, it is an aggravating factor that these children have been harmed as a result of their father’s choice to commit crimes in the family home.

[61] Mr. Benson plead guilty to the breaches of the section 161 order and made a series of admissions at the outset of the trial. The trial would have been significantly longer if the other parents of daycare children would have had to testify. This plea of guilty saved substantial court time during a pandemic when our resources have been adversely impacted. As a result, this is a mitigating factor with respect to the sentencing for the breaches of the court order.

[62] While the plea is a mitigating factor, it’s mitigation is diminished by the fact that the plea occurred on the first day of the trial. In addition, the plea occurred as a result of overwhelming evidence against him. A number of parents were prepared to testify that he had been breaching this court order for years. Finally, his wife, who was jointly charged as a party, plead guilty earlier on in the process which would have provided even more confirmatory proof of the breaches.

[63] In R. v. Gamble, [2013] O.J. No. 5999 at para 107 (Ont.S.C.J.), the court recognized that an offender ought to be given credit for a plea of guilty, but the amount of credit is fact dependent:

The starting point is that a guilty plea and particularly one entered early in the proceedings is entitled to a substantial credit in the sentencing process. R. v. Mann at para. 21. The earlier the plea, the greater the indication of remorse, the saving of expense and inconvenience, hence the impact in mitigation. R. v. Rosenberg [1993] O.J. No. 3260 (Gen.Div.) at para. 19. The effect of a guilty plea will vary with the circumstances of each case. In some, the plea is a demonstration of remorse, in others it is simply a recognition of the inevitable. However, even where a plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide finality to the proceedings.

[64] More recently, in R. v. F.L. 2018 ONCA 83, [2018] O.J. No. 482 paras 22 to 23 (Ont.C.A.)

A plea of guilt does not entitle an offender to a set standard of mitigation. The amount of credit a guilty plea attracts will vary in each case. In R. v. Faulds (1994), 20 O.R. (3d) 13 (C.A.), at para. 14, this court held that "[t]he effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable"; see also R. v. Carreira, 2015 ONCA 639, 337 O.A.C. 396, at para. 15. [emphasis mine]

[65] Similarly, in this case, the guilty plea to the breaches was a recognition of the inevitable. Moreover, the admitted facts were a minimization of the true extent of the breaches of the section 161 order especially with respect to the time he spent in the house and alone with the daycare children, and especially A.D. Finally, Mr. Benson did not plead guilty to any of the offences involving A.D. A small child and her mother were required to testify.

[66] While I will attribute some mitigation for the saving of court resources with respect to the conviction for the section 161 offence, a substantially mitigating factor is absent with respect to the conviction for the section 171 offence.

[67] Mr. Benson expressed significant remorse for breaching the section 161 order. At the same time, he tried to shift blame to his wife in the sense that it was her idea to open the daycare. He related that he felt pressured into agreeing to open the home daycare because of everything he put his wife through with the prior convictions. He did not want to deny her the opportunity to do something she loved and that she was purportedly good at.

[68] Mr. Benson had choices. He should have put the safety and security of his children above his wife’s desires for a home daycare. He could have insisted that she disclose his past and been up front with the parents. Instead, he supported his wife’s choice to covertly open the daycare. Mr. Benson also had the choice not to be home during daycare hours. He had a choice not to be alone with or responsible for any daycare children. He is responsible for his choices to breach his court order repetitively and flagrantly.

[69] While Mr. Benson expressed apologies to the parents of the children who attended that daycare, he did not express any remorse for the offence involving A.D. He did not acknowledge any responsibility for the harm he caused to a small child. His lack of remorse, lack of insight and lack of acceptance of responsibility for the offence involving A.D. are not aggravating facts in any way. However, these are important considerations with respect to Mr. Benson’s potential for rehabilitation, the need for specific deterrence and the risk he poses to children in the future.

C. Legal Analysis

i. Fundamental principles of sentencing.

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

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

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

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

(d) to assist in rehabilitating offenders;

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

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

[71] Depending on the nature of the offence, a Court may focus on specific principles of sentencing as the most important factors to guide the Court’s decision. In November of 2005, section 718.01 of the Criminal Code was proclaimed in force. At the heart of the purposes and principles of sentencing in section 718.01 and parts of section 718.2 is the overriding goal of protecting the most vulnerable members of our community, our children. Section 718.01 statutorily identifies that the primary consideration in sentencing for offences against children are the objectives of denunciation and deterrence.

[72] Any sexual offence involving a child is a serious crime. Section 718.2 of the Criminal Code specifically requires that a Court sentencing an offender shall take into consideration the following deemed aggravating circumstances:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years;

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

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

[73] All these statutorily aggravating factors are present in this case. A.D. was only 4 years old, and the daycare was full of other children of tender ages. Mr. Benson chose to be present in a daycare as well as babysit A.D. and the other children for periods of time. He breached a relationship of trust with every single parent who brought a child to that daycare. He knew he should not have been home when the children were present, but he ignored a court order intended to protect vulnerable children in his wife’s care. He breached the trust and friendship of Mrs. J.E. and her husband. Finally, these offences have had a lasting detrimental impact on a number of victims. Their lives have been adversely impacted financially, emotionally and psychologically.

[74] In addition to the statutorily aggravating factors, the Ontario Court of Appeal and the Supreme Court of Canada have repeatedly stressed the seriousness of any sexual offences involving children and the importance of sentencing these offenders with the principles of denunciation and deterrence in mind.

[75] The offence involving A.D. was particularly insidious and difficult to investigate because it took place behind closed doors with a child of a tender age who could not advocate for herself. The passage of time clearly impacted her memory of certain events.

[76] While the predominant principles of sentencing are denunciation and deterrence, both specific and general, rehabilitation remains an important goal with any sentencing even in a case involving a person with a related criminal record.

ii. The principle of restraint:

[77] Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. I must consider both the predominant sentencing considerations and the offender’s potential for rehabilitation and specific deterrence. The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64 at para 12 (S.C.C.) explained:

The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.

[78] In addition to the guiding principles of sentencing, I must be mindful of the principle of restraint which was codified in section 718.2 of the Criminal Code and requires that:

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

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

[79] There are some offences like these ones, that are so serious that the paramount principles of denunciation and deterrence demand a significant custodial sentence despite mitigating factors or rehabilitative prospects. These offences are so egregious, and the moral culpability of Mr. Benson is so significant that a lengthy custodial term is essential to reflect the severity of the crimes.

[80] While I will address Mr. Benson’s potential for rehabilitation, the main focus of this sentencing is not on him. Rather, I am more concerned about the harm to each parent who had a child in that daycare, the harm caused to A.D. and her family, and the harm caused to Mr. Benson’s own children.

[81] The Ontario Court of Appeal encouraged sentencing judges to focus on the harm caused by the exploitation of vulnerable children. In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 at paras. 75 and 76, Justice Moldaver directed that:

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

[82] I have considered the mitigating facts and Mr. Benson’s personal characteristics when assessing the impact that a lengthy sentence of incarceration will have on him and his potential for rehabilitation. However, I must also consider the countervailing concern that he has not sought treatment for an apparent attraction to a small child and this is the second time that he preyed on innocent victims. He must be separated from society for a significant period of time to protect the well-being of children in the community and to specifically deter him from ever engaging in this behaviour in the future. It is imperative that it is impressed upon Mr. Benson through this sentencing process that any future breaches of a court order will merit even longer custodial sentences to ensure that he abides by these protective orders.

[83] Whether Mr. Benson wants to admit it to himself or not, these offences establish that he is a dangerous, sexual predator who chose not to abide by a court order designed to protect children from him.

[84] Mr. Benson is entitled to maintain his innocence and that is not, in any way, an aggravating factor. Nevertheless, his mindset can factor into the sentencing considerations. In R. v. Shah, 2017 ONCA 872, [2017] O.J. No. 6141 at para 8, the Ontario Court of Appeal explained that, while the lack of a guilty plea or an expression of remorse must not be treated as aggravating factors, a Court can still consider these facts when assessing the need for specific deterrence and an offender’s potential for rehabilitation:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness. [emphasis mine]

[85] More recently, in R. v. Walker, [2021] O.J. No. 6817, the Ontario Court of Appeal observed that:

In addition, in the case at bar, the thrust of the defence submission was that the appellant posed a low risk to re-offend and that a conditional sentence was fit in the circumstances. In considering that argument and the issue of future dangerousness, it was open to the trial judge to consider that the appellant did not appear to understand the seriousness of the offences: R. v. Hawley, 2016 ONCA 143, at para. 5, R. v. Shah, 2017 ONCA 872, at para. 8. Consequently, we do not give effect to this ground of appeal. [emphasis mine]

[86] I do not know what risk Mr. Benson will pose to the safety of other children and/or young women in the future. He already victimized 20 young women and adolescents in the past and now he victimized a small child. This was a premeditated, opportunistic, predatory offence of a helpless little girl and Mr. Benson preyed on her vulnerabilities.

[87] Counsel emphasized that Mr. Benson has the support of his father, brother and estranged wife who speak very highly of him to highlight his potential for rehabilitation, but he had the support of all of these people when he committed these crimes. His wife was not a credible witness and she provided him with the means to prey on children. Her opinion is meaningless in these circumstances. Moreover, their views of Mr. Benson’s risk to children have little weight. In R. v. Profit, [1993] S.C.R. 637, the Supreme Court of Canada observed that:

The reasons of the trial judge must be viewed in light of the fact that as a matter of common sense, but not as a principle of law, a trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality. As a matter of weight, the trial judge is entitled to find that the propensity value of character evidence as to morality is diminished in such cases. [emphasis mine]

[88] Similarly, in R. v. K.M., 2017 ONSC 2690, [2017] O.J. No. 2198 at para. 20 (Ont.S.C.), Justice Edwards reiterated that:

Sexual offences are, by their very nature, generally perpetrated in private. It is largely for that reason that many cases of sexual assault are characterized as a "he said, she said" type of case. The Supreme Court of Canada has made it quite clear that the good community reputation of an accused has little probative value in the overall assessment of an appropriate sentence in a case of sexual assault. [emphasis mine]

[89] There are enumerable sentencing decisions, across Canada, with offenders of supposedly stellar character and no criminal records, committing inexcusable acts of depravity, violence and/or sexual abuse. Mr. Benson is already a convicted sex offender. The fact that Mr. Benson’s father and brother believe in him and believe that he is a good person considering his past convictions is laudable, but it reflects their naivety and blind support.

[90] Mr. Benson apologized for what he did wrong but, he did not acknowledge any of the pain and suffering he caused to A.D. and her family. Moreover, by his repeated ignorance of the terms of the section 161 order, he demonstrated a long-standing lack of regard for the impact that his conduct would have on the panicked parents who realized their children were exposed to a convicted sexual predator. As a result, Mr. Benson’s apologies seem more about the harm caused to him and his family and the embarrassment of getting caught as opposed to a genuine expression of remorse. In R. v. Andrukonis, 2012 ABCA 148, [2012] A.J. No. 481 at para. 10, the Alberta Court of Appeal observed that:

If an offender lacks an understanding or appreciation that what he did was wrong, and instead asserts, as Andrukonis has done, that what he did was not "that wrong", an expression of remorse by that offender may well ring hollow. And appropriately so. Remorse for a criminal act - a sense of deep regret and guilt for that crime - requires at the very least insight into the fact that a wrong has been committed. Without that understanding, an expression of remorse is akin to an apology expressed as "I am sorry if what I did upset you." That is not a true apology and an expression of remorse by a person who does not accept that what he or she did was wrong is not true remorse.

[91] There may be some prospects for Mr. Benson’s rehabilitation, but they are significantly diminished by various facts. He is a repeat offender who has not been deterred by a previous period of incarceration or a court order designed to prevent him from committing further predatory offences. His apology seemed self serving and he shifted blame to his wife. He lacks insight into the nature of the offending behaviour involving A.D. I have serious concerns about the risks that he poses to other children once he is released from custody. These concerns will be addressed in a lengthy and detailed section 161 order.

[92] I will balance the opposing considerations of denunciation and deterrence, both specific and general, and the mitigating circumstances of this offender when crafting the least restrictive sentence in the circumstances.

[93] In order to achieve a fair sentence that addresses each of the principles of sentencing, it is essential to review any similar authorities that have considered the appropriate sentence ranges for this type of offence.

iii. The principle of parity:

[94] The principle of parity is set out in subsection 718.2 (a) of the Criminal Code directs that:

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[95] While this is a worthy goal, each individual case is often so unique that it is difficult to achieve parity in sentencing. Ultimately, considering the unfortunately countless ways to commit a sexual assault, the distinctiveness of each offence and each offender, it is often challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 327, at paragraph 92:

...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

[96] Sexual offences range from minimally intrusive momentary occurrences to horrifying facts. Offenders can be responsible, sympathetic and apologetic or they can be recalcitrant, unrepentant recidivists. The Ontario Court of Appeal pointedly stated in R. v. E.C., 2019 ONCA 688 (Ont.C.A.):

The offence of sexual interference can be committed in any number of ways, and with varying levels of moral turpitude. The broad range of available sentences is rooted in the "infinitely variable ways in which the offence can be committed": R. v. M.B., 2013 ONCA 493, at para. 21. Within the wide range of available sentences, the court must impose an appropriate sentence - one that is proportionate to the gravity of the offence and the degree of responsibility of the offender, and, respecting the principle of parity, is proportionate to sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.

[97] Even though sentences are determined on a case-by-case basis, precedents that discuss sentence ranges for these types of offences do provide some guidance as to the appropriate sanction, but they do not direct a specific sentence. In recent years, the Ontario Court of Appeal has been very clear that the range of acceptable sentences for offences involving children has been increasing to reflect the pervasive nature of these crimes and the lasting impact on the victims: R. v. J.S., 2018 ONCA 675.

[98] The Supreme Court of Canada encouraged sentencing judges to consider more severe sentences for offences involving the victimization of children to reflect our increased awareness of the lasting detrimental impact of these types of crimes and to protect society’s most vulnerable treasures. In R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 at paras 42 and 45 (citations were removed from this quote), the Supreme Court urged jurists to be mindful that:

Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected. "The protection of children constitute[s] one of the essential and perennial values" of Canadian society. Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society.

We wish to make clear at the outset of our discussion of these sentencing principles that we recognize that criminal justice responses alone cannot solve the problem of sexual violence against children. Rather, guaranteeing children in Canada a childhood free of sexual violence requires coordinated action by all levels of government and by civil society across policy domains as diverse as healthcare, education, and child welfare. Nonetheless, the criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament's sentencing initiatives their full effect.

[99] The sentence in this case is an effective means to hold Mr. Benson accountable while expressing the wrongfulness of preying on an innocent child while bound by a court order intended to protect her and other children. The Supreme Court invited sentencing courts to shift their focus from the impact on the offender and concentrate on the gravity of these offences and the lasting harm caused to the victims (at para. 56 of Friesen, supra).

This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72, "may often be more pervasive and permanent in its effect than any physical harm".

[100] Sentence ranges are not static. Like any other area of law, these ranges are responsive to the proliferation of certain crimes. As a result of ongoing education about the impact of these crimes and the need to protect children from predators like Mr. Benson, sentences must be commensurate with our current understanding of the seriousness of these crimes as opposed to being determined by outdated considerations or ranges.

[101] The Supreme Court’s decision in Friesen, supra, was a clarion call to rethink our approach to sentencing child exploitation offenders. Older sentencing jurisprudence should be considered through the lens of increased awareness of the lasting harm and the pressing need to prevent these offences by deterring the offenders.

[102] Children are our most precious assets. They are our future. The detrimental and lasting impact of sexual violence against children must also be recognized and other like-minded predators deterred by lengthy sentences of incarceration. A substantial period of incarceration is essential to express condemnation, denunciation and an unwavering deterrent message. In addition, our courts must protect children from the harm posed by sex offenders by separating them from society and imposing protective orders, so they do not prey on any more innocent victims. The appropriateness of the sentences meted out in more dated decisions must be viewed through the lens of the current state of law and the need for more severe penalties for offences against children.

Sentencing cases with respect to section 161 breaches:

[103] Counsel and the crown provided me with various decisions to guide my judgement. I appreciate the time and effort that each of them dedicated to this hearing.

[104] At the low end of the sentencing precedents is the decision of R. v. R.M., 2019 ONCJ 435. The offender received the benefit of a conditional sentence for several breaches of a section 161 order.

[105] A sex offender who has repetitively breached a court order, for whatever reason, is unlikely to be specifically deterred by further orders of community supervision without a period of custody. Moreover, in most cases, a conditional sentence for flagrant breaches of section 161 orders would not be consistent with the fundamental purposes and principles of sentencing. The sentence in R.M., supra was dependent on the Court’s case specific findings of fact. It is distinguishable. Moreover, I find the sentence difficult to reconcile with the more recent decision of the Supreme Court of Canada in Friesen, supra or the preeminent sentencing goal of safeguarding children by generally and specifically deterring convicted sex offenders when they breach court orders designed to protect children from them.

[106] I also reviewed various sentencing decisions for breaches of section 161 orders. Each case emphasized the predominant sentencing principles of deterrence and denunciation. While the sentences were responsive to the unique facts, the crown’s election and the positions taken by the advocates, the recurrent theme was that sentences of substantial periods of incarceration are essential to reflect the seriousness of the offence, the culpability of the offender and the guiding sentencing principles: R. v. Bale, [2017] O.J. No. 4791 (Ont.C.A.).

[107] In R. v. Excel, 2015 ONCA 704 at para 9, for a single breach of a section 161 order when an offender attended at a secondary school, the Court of Appeal emphasized the necessity of a generally and specifically deterrent sentence of 6 months incarceration to ensure that “those who are subject to such orders must realize that contravention comes at a price”.

[108] In R. v. Bansfield, [2008] ONCJ 383 at paras. 16 and 17, Justice Hackett articulated the importance of section 161 orders and why breaches of them are such serious offences:

In my view, s.161 orders which control the movement of paedophiles by prohibiting them from areas children frequent are part of the third prong of societal protection in our criminal justice system described in that decision and report. These orders are also a part of the deterrent effect for individual offenders.

Section 161 strikes an important balance between the liberty interests of a paedophile who has served his sentence and the continuing societal responsibility to protect vulnerable children and our communities from the continuing risk presented by paedophiles.

[109] Justice Hackett also emphasized why repetitive breaches are particularly insidious at para 86:

… grooming by paedophiles often involves the building of trust and/or dependency. Consequently, the number of times these boys were taken to Wonderland by Mr. Bansfield, even over a short period of time, could in fact increase their vulnerability to his sexual deviant appetite and increase the risk that the s.161 order is designed to protect against. The risk addressed by the s.161 order was present on each and every one of these occasions that the offender attended Wonderland regardless of how proximate they were in time and regardless of whether or not they all took place as a result of one pass.

[110] Every time Mr. Benson was with the daycare children, especially when he babysat them, it enabled him to build relationships with them. That risk was realized as A.D.’s vulnerability increased each time she was with him. He was able to manipulate a small child and establish a rapport with her.

[111] Counsel urged me to consider that Mr. Benson’s sentence should be proportionate to the sentence imposed on Mrs. Benson. She received a short conditional sentence as a result of her role in aiding and abetting the commission of the breaches of the section 161 order. However, she is not a convicted sex offender.

[112] The sentence Mrs. Benson received was responsive to the limited agreed statement of facts before the learned Justice, the positions of the parties, the early plea, and the recognition of the potential that she would be a witness in the proceedings against Mr. Benson. The sentencing Judge was not aware of the shocking extent of her complicity and/or her duplicity while aiding and abetting her husband’s crimes that was revealed during Mr. Benson’s trial. As a result, Mrs. Benson’s sentence will not impact my decision.

[113] The breaches in this case were part of longstanding violations of a court order. Mr. Benson willfully, flagrantly and repetitively breached the section 161 order. He was alone with, assumed the role of a caregiver or was in the home of a caregiver for the most vulnerable members of our society, children of tender ages. He caused significant pain and suffering to the parents of the children entrusted to his wife’s care.

[114] The maximum available sentence is 18 months incarceration. The sentence should be mitigated to some extent to reflect the guilty plea, his expressed remorse and some potential for rehabilitation. Nevertheless, in light of the aggravating factors and the predominant sentencing principles, a sentence near the maximum available sentence of 15 months incarceration is warranted.

Sentencing cases with respect to the section 171 offence:

[115] There are not many reported decisions with respect to sentencing for the inchoate offence outlined in section 171 of taking preparatory steps to build a rapport with a child for the purposes of committing a sexual offence. Moreover, many of the cases relied on were not commensurate with the facts in this case because they involved police sting operations and sentencing in the absence of a physical victim.

[116] In R. v. Allen, 2018 ONSC 252 at paras. 20 and 21, the Court considered the predominate sentencing principles in cases of an adult who makes sexually explicit material available to a child:

Making sexually explicit material available to children is an adjunct to, and part of, the grooming process inherent in child luring. The same considerations with respect to the need to protect children from predators apply to this offence. The nature of this offence is such that predators can have access to children away from the public and their parents. It is the gateway to the sexual exploitation of children and there is a high public interest in closing the gate.

In the forefront of the court's mind during the sentencing deliberations would be general deterrence, specific deterrence and the moral blameworthiness of the offender. The need to separate sexual predators from society for the well-being of children must take precedence over the effects of the conviction on the offender and the offender's prospects for rehabilitation

[117] I found some guidance from other sentencing decisions involving child luring offences contrary to section 172 of the Criminal Code: R. v. Barnes, 2018 ONCJ 302; R. v. Harris, 2017 ONSC 940; R. v. Carter, [2018] N.J. No. 28 and the guiding sentencing principles summarized in R. v. A.B., 2021 ONSC 484.

[118] In R. v. Morrison, 2019 SCC 15, [2019] S.C.J. No. 15 at paras 176 and 177 (S.C.C.), the majority of the Supreme Court of Canada considered the constitutionality of section 172 of the Criminal Code. Justice Karakatsanis wrote a concurring judgement but went on to review applicable sentencing principles and the constitutionality of the mandatory minimum sentence. Justice Karakatsanis highlighted that:

Child luring is a very serious offence…. It protects potential child victims by allowing the criminal law to intervene before the harm caused by the commission of the secondary offences actually occurs. [part of the paragraph omitted]

Given the gravity of this offence, there is no doubt that, in many cases, the appropriate sentence will be a term of imprisonment that falls within the range contemplated by s. 172.1(2)(a). For example, the Ontario Court of Appeal has determined that in most child luring cases, the sentencing goals of denunciation and deterrence require a sentence of institutional incarceration.

[119] In R. v. A.H., [2018] O.J. No. 4105 (Ont.C.A.), the appellant sent lewd messages inviting sexual acts and sexually explicit images to the 15-year-old friend of his daughters. He was convicted after trial. He had no criminal record, and the offence lacked any guile or sophistication. The Court of Appeal upheld a sentence of 15 months of incarceration emphasizing (at paragraph 52) that “this court has repeated many times that where adult sexual predators exploit innocent children, deterrence and denunciation and the need to separate the perpetrators from society are the predominant objectives of sentencing.”

[120] Mr. Benson has a criminal record. He preyed on child of a tender age who was particularly vulnerable. He took advantage of access to his wife’s daycare to develop a rapport with a 4-year-old. It was a crime of forethought and deliberation. He invested time in watching television with A.D., gave her a treat and then escalated to the next step of exposing her to pornography on one occasion. A sentence of incarceration of 18 months, considering the maximum available sentence of 24 months, would appropriately reflect the aggravating circumstances of the offence and the mitigating circumstances of this offender.

iv. Totality

[121] Counsel appropriately conceded that, considering the distinct nature of each offence, the sentences must be consecutive. I am cognizant that the individual sentences on each count cannot be either too lenient or too harsh.

[122] I have determined that a total sentence of incarceration in the range of 15 months for the breach and 18 months consecutive for the section 171 is appropriate in all of the circumstances. That would be a total sentence in the range of 2 years and 9 months. However, the fitness of a sentence is not always dependent on just the period of incarceration.

[123] In R. v. Frickey, 2017 ONCA 1024 at para. 10, the Court of Appeal explained that:

In considering whether the sentence is manifestly unfit, the sentence must be considered as a whole. While the driving prohibition may have been longer than in the precedents provided by the parties, the custodial sentence was shorter. In reducing the custodial sentence and lengthening the driving prohibition, the trial judge exercised the principle of restraint and took into consideration "all available sanctions, other than imprisonment, that are reasonable in the circumstances", in accordance with s. 718.2 (e) of the Criminal Code. The longer driving prohibition was necessary for the protection of the public. We see no error in the trial judge's decision.

[124] Similarly in this case, the period of incarceration is not the only consequence for Mr. Benson. He will be subject to a lengthy section 161 order that has punitive consequences and, hopefully, will serve to protect other children from him. He will be bound by a lifetime S.O.I.R.A. order. In addition, in the circumstances of this case, there is a strong public interest in ensuring that Mr. Benson obtains counselling to address his offending behaviour. In light of his lack of insight or acceptance of responsibility for the offence involving A.D., I am concerned that he may not voluntarily invest in counseling for this sexually deviant conduct or attraction to children while in custody.

[125] I invited further submissions about the benefits of a shorter period of incarceration by a matter of months so that I could order a period of probation of 3 years. The crown submitted that a probation order only benefits the accused and should not justify the imposition of shorter period of custody. I disagree.

[126] While probation has rehabilitation purposes, it also serves to protect the public: R. v. Shoker, 2006 SCC 44, [2006] S.C.J. No. 44 (S.C.C.). Ordering an offender to abide by a lengthy period of community supervision with conditions specific to the threat that a person poses in terms of further offences can protect the public and facilitate an offender’s successful reintegration into society.

[127] Any risk of recidivism for Mr. Benson is frightening because of his potential for harming more children. Reducing his overall period of incarceration by nine months to allow for a lengthy period of supervision ensures that he will be monitored by a professional once he is released from custody who will ensure that he completes assessments, treatment counseling to his/her/their satisfaction as opposed to a very short period of parole. Most importantly, I can order him to reside at an address of approved of by the probation officer and prohibit him from residing at a place where businesses involving children operate.

[128] I have broad discretion to order terms that are responsive to the specific circumstances in this case. The Supreme Court of Canada reviewed the broad discretionary power of a judge to order terms unique to the circumstances of a case in Shoker, supra, at para 13:

The residual power under s. 732.1(3)(h) speaks of "other reasonable conditions" imposed "for protecting society and for facilitating the offender's successful reintegration into the community". Such language is instructive, not only in respect of conditions crafted under this residual power, but in respect of the optional conditions listed under s. 732.1(3): before a condition can be imposed, it must be "reasonable" in the circumstances and must be ordered for the purpose of protecting society and facilitating the particular offender's successful reintegration into the community. Reasonable conditions will generally be linked to the particular offence but need not be. What is required is a nexus between the offender, the protection of the community and his reintegration into the community.

[129] Mr. Benson needs to complete counseling to address sexually offending behaviour involving children and a parenting course for breaching the trust of his own children. He should also be bound by terms that specifically prohibit him from residing in any place in which children are babysat or there is a home daycare or any business that caters to children. The probation officer will have to approve of any place Mr. Benson resides.

[130] It needs to be clear to Mr. Benson that, whether or not he refrains from being home during periods of time when children are entrusted to the care of other adult occupants of the home, he cannot reside there at all. In addition, there will be protective terms that prevent him from accessing or viewing any kind of pornography in the presence of or in the same room as any person under the age of 18 as a preventative measure for possible future victims. As a result, he will not be able to use an excuse that he did not intend for the child or adolescent to see what he was viewing.

[131] These types of terms would benefit society as they are tailored to Mr. Benson’s issues, and they are intended to protect vulnerable children from him. Considering the custodial sentence for the breach of the section 161 order, if Mr. Benson chooses not to abide by the terms of probation, he should face severe consequences.

v. Ancillary orders:

[132] The crown requested a lifetime section 161 order. Counsel submitted that something in the range of 10 to 15 years is more appropriate in light of Mr. Benson’s age, the ages of his children and the punitive nature of a section 161 order.

[133] A section 161 order is a discretionary and punitive sanction that requires a measured approach. The liberty interests of the offender may be restricted for a substantial period of time. The Ontario Court of Appeal provided the following guidance in R. v. Schulz, 2018 ONCA 598, [2018] O.J. No. 3526 about when and how a court should exercise this discretion:

The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. J. (K.R.), 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and the content of the order must respond carefully to an offender's specific circumstances: J. (K.R.), at paras. 48-49. [emphasis mine]

[134] Similarly, in R. v. Brar, [2016] ONCA 724, the Ontario Court of Appeal carefully reviewed the Supreme Court of Canada’s decision on section 161 orders in R. v. J. (K.R.), 2016 SCC 31, [2016] S.C.J. No. 31 and explained at paragraphs 17 and 18 that:

In J. (K.R.), the majority of the Supreme Court confirmed that orders made under s. 161 have a predominantly protective purpose, that is, to shield children from sexual violence (at para. 44). [full paragraph not reproduced]

The Supreme Court emphasized that these orders are discretionary and flexible, as s. 161 "was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community" (at para. 47). Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children (J. (K.R.), at paras. 48, 54). The terms of such orders must, therefore, "carefully respond to an offender's specific circumstances" (at para. 48). [emphasis mine]

[135] Unfortunately, counsel was unable to provide me with any kind of psychological or psychiatric assessment to guide my assessment of the risk that Mr. Benson poses to children once he is released from custody. Not everyone is well positioned to retain experts for sentencing hearings. Nevertheless, I can consider Mr. Benson’s past behaviour as indicative of his potential for committing future sexual offences.

[136] Mr. Benson is a repeat sex offender who was not deterred by a previous period of incarceration, or a previous court order designed to protect children. He persistently breached the section 161 order for a lengthy period of time and assumed a relationship of trust with toddlers. The victims of his offending behaviour shifted from older girls and women to children of tender ages. Any risk for Mr. Benson to reoffend must be reduced by avoiding temptations for him. The only way to protect children from Mr. Benson is to keep him away from them. There is a compelling evidentiary basis upon which to make the section 161 order in this case.

[137] I believe a carefully crafted section 161 order for a total period of 20 years is warranted. Mr. Benson has been bound by terms of bail akin to a section 161 order since June 13th, 2019. The section 161 order will be reduced to 17 years to reflect his compliance with these bail terms for the past three years.

[138] Counsel submitted that there should be exception to allow Mr. Benson to attend places frequented by children when he is in the company of his children. That is not appropriate in light of the circumstances of these offences that Mr. Benson committed offences while his children were present, and his offences have already detrimentally impacted his children.

[139] With respect to the terms of the order, the Internet and other digital mediums are an inextricable part of our daily lives. The crown sought some internet prohibitions because Mr. Benson used pornography as a means to groom a four-year-old child. To completely prohibit Mr. Benson from using the Internet or other digital networks for the next 17 years after he has served his sentence will negatively impact his career and educational opportunities. In addition, many beneficial counseling services are now available on-line. It would be excessive and counter-productive to issue a total prohibition from accessing the Internet or other digital networks as part of the section 161 order.

[140] The terms of the section 161 order must not be unduly punitive while still accomplishing the protective objectives of preventing Mr. Benson from causing further harm and preventing him from endangering the safety of children.

[141] I found the Court of Appeal’s decision in R. v. R.L.S., 2020 ONCA 338, [2020] O.J. No. 2432 to be particularly helpful when crafting the terms of the section 161 order in a manner that balances the protective aspects of the order while still ensuring that it is not unduly punitive. Notably, I have left out the reference to public parks because it is overly broad and could prohibit Mr. Benson from attending many places that are not regularly frequented by children.

[142] As a result, Mr. Benson will be bound by a 17-year section 161 order that prohibits him from:

(a) attending a public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare center, schoolground or playground or community center except while he is directly supervised and in the continuous company of an adult over the age of 21 years old. That person cannot be Crystal Benson;

(a.1) being within 500 meters of any dwelling-house where A.D., C.P., E.G., J.E., T.F., or F.M. or any member of their immediate families ordinarily reside;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact directly or indirectly — including communicating by any means — with a person who is under the age of 16 years, except:

• For his own biological children or grandchildren; or
• while he is directly supervised and in the continuous company of an adult over the age of 21 years old. That person cannot be Crystal Benson; or
• for brief incidental contact in public places during the completion of legal commercial transactions.

(d) Accessing the Internet or other digital network or using any device capable of accessing the Internet or other digital network unless all of the following preconditions are met:

• You are not to use or possess a computer or telecommunication devices capable of accessing the Internet or digital network that has erasing, cleansing or scrubbing software installed on it or that can encrypt saved files; and
• You are not to use or possess a computer or telecommunication devices capable of accessing the Internet or digital network that has any program or service designed to allow anonymous use of the Internet and you are not to permit any such program to be installed on a computer or device in your possession; and
• You are not to access, view, possess, share or make available child pornography in any form (written or visual images/recordings/live streaming); and
• You are not to access, view, possess, share or make available any material (written or visual images/recordings/live streaming) of children who are depicted to be or appear to be under the age of 18 years who are naked or portrayed in a sexual manner or the material is focussed on the genital or anal regions of children;
• You are not to access, join or participate in any chat rooms, bulletin boards, other social media or groups that you know persons under the age of 18 are likely to participate in; and
• You are not to access, join or participate in any chat rooms, bulletin boards, other social media or groups that discuss, describe or promote child exploitation, child pornography, sexualized images of children, child exploitation material, masturbation to the images of children or sexual descriptions of children

[143] Pursuant to the section 161(2) of the Criminal Code, the 17-year section 161 order will commence on the date on which Mr. Benson is released from imprisonment for these offences, including release on parole, mandatory supervision or statutory release.

D. Conclusion

[144] There is no period of incarceration that will be considered sufficient for the victims to redress the seemingly endless worry and suffering that Mr. Benson caused to blameless parents who entrusted their children to his wife’s care. Hopefully, all of the parents will finally have a chance to heal and learn to trust again.

[145] The past three years have been a nightmare for these parents and for C.P. and her husband. A.D.’s parents should be incredibly proud that their brave little girl is responsible for uncovering the crimes committed by both of the Bensons. Without her disclosure, countless children would have continued to be exposed to the risk of being alone with a convicted sex offender.

[146] In order to permit me to order a period of probation with various protective terms and having regard to both the principles of restraint and totality, there will be a total custodial sentence of two years incarceration less a day. There will be 12 months incarceration for the section 161 breach to be followed by a consecutive period of incarceration of 12 months less a day for the section 171 offence. To be clear, a longer custodial period is warranted for each offence. I find, however, that in the unique facts of this case, there is a public interest in a lengthy period of community supervision with multiple terms once Mr. Benson is released from custody

[147] There will be a concurrent sentence on each count of 3 years of probation with the terms and conditions set out in schedule A, a 17-year section 161 order, a lifetime S.O.I.R.A. order and a DNA order. While incarcerated, Mr. Benson will be bound by a 743.21 order prohibiting him from having contact while in custody with A.D., C.P., E.G., J.E., T.F., or F.M. or any member of their immediate families. Considering the dates of the offences, I decline to impose victim fine surcharges.

[148] I sincerely hope that Mr. Benson will take part in counselling while he is incarcerated. To facilitate that possibility, I will endorse the warrant of remand that he is to be transferred to the Ontario Correctional Institute or similar provincial facility as soon as possible to allow for sex offender treatment.

Probation order:

STATUTORY CONDITIONS:

• Keep the peace and be of good behavior;
• Appear before the court when required to do so;
• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

REPORTING:

• Report in person to a probation officer:
• Within 5 working days of your release from custody;
• and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
• You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request.

RESIDENCE

• You must live at a place approved of by your probation officer and not change that address without obtaining the consent of the probation officer in advance;
• You must not reside in any place where children attend a home daycare, where children are babysat or there is a home business geared towards children whether or not you are present during the operating hours of these businesses.

NO CONTACT AND NOT ATTEND

• Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with A.D., C.P., E.G., J.E., T.F., or F.M. or any member of their immediate families;
• Do not be within 250 meters of any place where you know A.D., C.P., E.G., J.E., T.F., or F.M. or any member of their immediate families work, go to school, frequent or any place that you know any of these persons to be except:
• While attending at required court appearances.

ADDITIONAL TERM OF NON-CONTACT:

• You are not to post any information about, depictions of, recordings of or photographs of A.D., C.P., E.G., J.E., T.F., or F.M. or any member of their immediate families on any social media site.

COUNSELLING AND TREATMENT:

• Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to:
• Sexual offending behaviour with children;
• Parenting; and
• Depression and anxiety.
• You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;
• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

ADDITIONAL TERMS:

• You are not to access or view any kind of pornography, in any medium, in the presence of or in the same room as a person under the age of 18 years old.