WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

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

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

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

Ontario Court of Justice

Date: 2024 03 22 Court File No.: Elliot Lake 0121-998-21-13301217-00

Between:

HIS MAJESTY THE KING

— AND —

P.H.

Before: Justice Leonard Kim

Heard on: March 1, 2024 Reasons for Sentence released on: March 22, 2024

Counsel: Stuart Woods, for the Crown Liam Thompson, for the Defendant, P.H.

L. KIM J.:

Overview

[1] This matter proceeded to trial on October 24, 31, December 14, 15, 2022, and January 30, 2023. On May 19, 2023, I convicted Mr. P.H. of one count of Sexual Interference that consisted of sexual touching on four separate occasions when the victim, M.H., was approximately three to four years old. [1] These incidents happened while M.H. lived with the accused and her mother, M.C., in the Town of Elliot Lake, between January 2011 to December 2014.

[2] The sexual touching consisted of digital penetration and touching of the external area of the victim’s vagina on four separate occasions. On one occasion, M.H. described that she felt pain when P.H. scratched the inside of her vagina. On other occasions, she described pain on the external portion of her vagina when P.H. touched her. More specifically, she described that her father’s hands felt rough and that she had a clear memory of the pain she felt when he touched her. She also explained that in each of these instances, there was some degree of physical aggression she experienced either leading up to or during the actual touching and that her father told her not to tell anyone.

[3] During the commission of the offence over the course of the multiple incidents, there was physical force utilized by P.H. upon the victim which consisted of:

i) Placing his hands over her mouth when he touched her vagina (Incident #1);

ii) Being pushed up against the bathroom wall, causing an object to dig into her back while being touched (Incident #1);

iii) When she started to scream, he placed his hands on her mouth when he touched her vagina (Incident #2);

iv) Placing his hand over her mouth, while telling her to be quiet and touching her vagina (Incident #4);

v) When the victim tried to run away while crying, he grabbed her by her hair or shoulder and pulled her back (Incident #4);

vi) He held her down on her chest and when she attempted to get up, he pushed her down. She then began to cry because in her words, “all of it hurt.” (Incident #5).

[4] Upon conviction, I ordered a Pre-Sentence Report (“PSR”) to assist me in understanding the circumstances of the offender. Trial counsel for P.H. was Mr. Hooper, but he was removed as counsel of record in mid-July 2023. The PSR was completed on September 18, 2023, just prior to the first scheduled Sentencing Hearing.

[5] Sentencing did not proceed on that date because P.H. sought an adjournment. In late August 2023, he had retained new counsel, Mr. Liam K. Thompson, and Mr. J. Wilkinson, who wanted to explore whether they would be bringing an application to re-open the trial. Counsel for P.H. were still in the process of obtaining disclosure and reviewing the entire file, including my Reasons for Judgment, to formulate their decision on this issue. In seeking the adjournment, counsel did advise that in the event they decide not to seek leave to re-open, an expert report would be sought to assist P.H. at the Sentencing Hearing. The Crown was not opposed to the adjournment request and the Court agreed to adjourn sentencing to a date to be determined.

[6] A case management hearing was held on January 31, 2024, inquiring as to the status of this case. By this date, counsel for P.H. had received an expert report from Dr. G. Stones, a psychologist, and were attempting to obtain consent from the Crown to rely on the report, and potentially excuse his attendance. A Sentencing Hearing was scheduled for March 1, 2024, for three hours. I heard fulsome arguments from both Mr. Woods and Mr. Thompson and reserved my decision on sentence, making it returnable on today’s date.

The Position of the Crown

[7] Mr. Woods on behalf of the Crown submits that a fit sentence would be a penitentiary term of three to four years.

[8] In support of this position, Mr. Woods took me to numerous key passages in R. v. Friesen, 2020 SCC 9, the leading case from the Supreme Court of Canada that has instructed trial judges to increase sentences of child sexual abuse to reflect the gravity of these offences more accurately. Sentences must proportionately reflect the high moral blameworthiness of these crimes. [3] The Crown also relies on numerous cases that have been released after the Friesen decision, providing me with a bird’s eye-view of what sentencing ranges for cases of this nature look like in our province. The many aggravating features of this offence were highlighted by the Crown, which I will discuss further, including the severe breach of trust, the very young age of the victim at the time, and the ongoing psychological harm she continues to suffer today.

[9] As for ancillary orders, Mr. Woods submits that the offender should be bound by the SOIRA [4] provisions in section 490.012 for a period of 20 years, an order under section 161(1) of the Criminal Code for the same duration, a weapons prohibition under section 109, DNA to be provided for the National DNA databank and an order for non-communication with the victims while in custody pursuant to section 743.21 of the Criminal Code.

The Position of the Defence

[10] Mr. Thompson on behalf of the defendant submits that a fit sentence would be an upper reformatory term of 18 to 24 months imprisonment, followed by probation. Consistent with the case law, he is not seeking a conditional sentence order and I need not address the fitness of such a sentence on these facts involving a young child.

[11] Quite fairly, he acknowledges that Friesen requires sentences involving the victimization of children in sexual assault cases to increase considering the requirement to emphasize the principles of deterrence and denunciation. However, he submits that this increase in the quantum must be balanced with the principles of restraint, parity, and rehabilitation that must still be considered post- Friesen.

[12] As for ancillary orders, Mr. Thompson opposes an order pursuant to section 161 and SOIRA. With respect to the latter, he submits that it would be grossly disproportionate to require the defendant to report for the next 20 years as part of the SOIRA regime. In advancing this position, he submits that there is no need for his client to report because there has been at least a decade of pro-social behaviour that proves that he would not be captured by the objectives of the SOIRA legislation. He also points to expert evidence that P.H. presents a low risk to re-offend sexually and has recently invested in new skills in the mining sector which would require extensive travel during the course of his new career. Requiring him to report in these circumstances, would be contrary to the public interest and grossly disproportionate.

Exhibits Filed on Sentencing

The following documents were made exhibits at the Sentencing Hearing for the Court’s consideration:

i) Victim Impact Statement of M.H. ii) Victim Impact Statement of M.C. iii) Pre-Sentence Report (“PSR”) iv) Expert Opinion of Dr. Stones v) Letters of Reference from three family members of the Offender vi) Certificate of Mining - Cambrian College (Norcat)

Victim Impact Statements

[13] The impact of this offence on M.H. is described in detail in her victim impact statement.

[14] By way of summary, M.H. explains that when she was younger, she was afraid of being harmed by P.H. and that when she was young, she didn’t appreciate what had happened to her. At ages five to six, she was “acting out” and angry. Then at ages six to seven, M.H. explains that she did not want to live because she could not handle knowing that she had been sexually assaulted. She harboured feelings of pain, loneliness, sadness, and shame.

[15] At the time of her testimony in this trial, M.H. was 13 years old. Given the significant delay in this sentencing hearing, she is now 15 years of age. Today, she struggles with depression and anxiety, post-traumatic stress and sleepless nights that have made it difficult for her to wake up and go to school. Since she came forward to police in 2021, her and her family continue to experience a great deal of stress. To cope with her emotions, she has been attending counselling twice per week for 18 months prior to the completion of her victim impact statement in June of 2023. She has missed a significant amount of school due to the combined impact of therapy appointments, court appearances, medical appointments to address her mental health and some days where she could simply not find the will to leave her home.

[16] M.H. also expressed that she does not feel fully secure unless she is at home, worries about seeing the offender, feels uncomfortable in her own body and that she generally does not trust adult men.

[17] The offence has also had a devastating impact on M.C., the victim’s mother, and former partner of P.H.. M.C. describes the emotional toll that this offence and the court process has had on her own well-being as she witnessed her daughter’s mental health deteriorate over the years. Concern for M.H.’s mental health escalated to the point where she was required to resign from her employment in order to provide necessary supervision and support over her daughter to ensure that she was not engaged in any acts of self-harm. This required her to monitor her daughter around the clock. The loss of her employment has caused both financial and emotional strain on her family. Personally, she struggles with depression, anxiety, and feelings of guilty, which requires the assistance of medication to adequately manage.

[18] She has taken steps to install cameras and a tracking app in order to monitor her daughter’s whereabouts and to address her security concerns and “irrational fears.”

Circumstances of the Offender

[19] P.H. is 37 years old and was born and raised in the Niagara Falls region of the province. He would have been approximately 25 to 26 years of age at the time of this offence. According to Dr. Stones, he did not suffer from any significant developmental delays. However, A.H., the father of the offender, expressed to the author of the PSR, that during his son’s developmental years, he struggled with expressing what he meant. In elementary and middle school, the offender was diagnosed with ADHD. He managed to gain popularity and acceptance when he played football in Grade 9 after moving to St. Catharine’s, Ontario. However, half-way through his Grade 10 year, he dropped out and decided to work to earn money. At 16 years old, he became a father to his eldest daughter, T.H., to whom he maintains a positive relationship with today.

[20] From a young age, P.H. has applied himself in a variety of jobs ranging from a paper route, to working on a farm, at Swiss Chalet, a grocery store, pizza parlour, ski hill, hardware store, and at a concrete company operating heavy equipment to name just a few. He has also held a variety of factory jobs including most recently in Espanola. Like many members of the local community there, P.H. has felt the economic impacts of the Domtar Pulp and Paper Mill shutting down, rendering hundreds of people unemployed, including P.H.. As he was awaiting sentencing in this case, he went back to school and completed his Common Core course at Cambrian College in Sudbury. P.H. prides himself on being a family-oriented man determined to improve his vocational outlook for the benefit of his family.

[21] From a young age, the offender has struggled with alcohol and drug use commencing when he was 10 years old. I need not repeat his entire history with substance misuse but do note that by the time the offender was in his mid-teens, he was consuming alcohol daily and this escalated to 12 beers a night after his mother passed away prior to the birth of the victim. [5] Notably, when he moved to Elliot Lake at the age of 20, he was bingeing on cocaine every two-three months, which was ongoing until M.H. came forward to police with the current allegations in 2021. The self-destructive behaviour and resulting impact due to these addictions is well documented in Dr. Stones’ report.

[22] This pattern of alcohol and drug misuse was ongoing until 2018, when he made a concerted effort to reduce his consumption. The onset of the current criminal matter has proven to detrimentally impact P.H.’s struggle to achieve sobriety. Although he told the author of the PSR that he no longer struggles with or accesses illegal drugs, this may not be true today. Approximately four months after the PSR was completed, Dr. Stones’ report was released. It indicates that P.H. currently uses illicit drugs and suffered an unintentional overdose in 2022 in what clearly appears to be a coping mechanism as he navigates the day-to-day stresses of being involved in the criminal justice system.

[23] Focusing on the contextual history with the victim and her mother, the offender explained that he was an emotional mess during the six to seven years that he was in an intimate partner relationship with the victim’s mother. In the PSR, he candidly admitted that he was not nice to be around and described incidents of verbal abuse and outbursts.

[24] The PSR refers to this dark period in his life when was drinking excessively, abusing illicit drugs and smoking marijuana. This caused strain upon their relationship and admittedly, he relied on cocaine use to cope with the loss of his mother after she passed away in 2008.

[25] Dr. Stones’ assessment covered a broad range of objectives which included P.H.’s current mental status and any relevant diagnoses. P.H. candidly admitted to feeling intense shame, embarrassment, and anxiety among other negative emotions. He rejects the finding of guilt at trial and described feeling under attack, betrayed by his accusers and expressed a sense of mistrust with the criminal justice system. This experience has impacted his emotions which have produced feelings of anger, sadness, and depression. Despite all of this, he expressed that he is trying to remain optimistic and looks forward to spending time with his children and family when these proceedings are concluded.

[26] The offender has completed anger management during the material time of this offence (approx. 2012) and the Partner Assault Response Program (PARS) in 2018. He is not otherwise being treated for any psychiatric illness and has no history of psychological treatment. He denies any sexual interest in minors.

[27] In my review of Dr. Stones’ report, there does not appear to be any evidence that points to sexual deviancy that would elevate his risk of re-offending in a sexual manner. At most, the offender admits to having used sex as a stress coping mechanism, viewing adult pornography weekly and having approximately 100 sexual partners in his lifetime that only involved consenting adult women. None of these factors characterize him as a risk to re-offend sexually against minors, or adult women.

[28] P.H. did however, meet the diagnostic criteria in the DSM-5-TR for the following mental disorders:

i) Polysubstance Use Disorder (alcohol, opioids, crack cocaine); ii) Other Specified Personality Disorder (Cluster B features); iii) Attention Deficit Hyperactivity Disorder-Combined Presentation; iv) Adjustment Disorder, with mixed anxiety and depressed mood; v) Rule Out Intermittent Explosive Disorder (IED).

[29] The criminal history of P.H. is limited to incidents of intimate partner violence in 2018 to 2019 involving his current partner, M.D. This is reflected in the PSR where he received a conditional discharge and probation, upon conviction for Assault, Breach of Undertaking and Mischief Under $5000. Judging by the descriptions provided by P.H. to Dr. Stones, alcohol and ongoing struggles with drug use for both the offender and M.D. may have played a significant role in the commission of those offences.

[30] Today, P.H.’s relationship with M.D. appears to have stabilized as they navigate raising their biological child and stepdaughter. There have been times within their relationship where M.D. has had to go away for residential treatment in addressing her own substance use. During those times, it was P.H. who was trusted to provide primary care of their two children. Although there have been some measures put in place by local child protection authorities which included a requirement that the offender not be alone with their 11-year-old stepdaughter in previous years, those restrictions have since been lifted.

[31] Letters of Support from A.H., T.H., and M.D. are filed in the Defence Record on Sentencing. They paint a picture of a hardworking, loving partner and father to three children, including a four-year old special needs child. The offender is supported by his family even in the face of these charges and resulting finding of guilt. M.D., in particular, has described in detail the offender’s resilience in the face of numerous challenges over the years they have been together. She also explains in detail the profound impact that these proceedings have had on him and their family.

Risk of Committing another Sexual Offence

[32] I now turn to the risk that P.H. may pose in committing a similar offence of a sexual nature. This offence is historical in nature. At least 10 years has passed since the commission of this offence. Having said that, I am mindful that the passage of time is not usually treated as a significant mitigating factor on sentencing. [6]

[33] There is no indication of any further sexual offending by P.H.. The evidence proves that P.H. has demonstrated an ability to not re-offend in a sexual manner for an extended period of time. This is a relevant factor that I must consider in determining a proportionate sentence in light of the gravity of this offence and application of the principles of deterrence, denunciation, and to a lesser extent, rehabilitation and restraint.

[34] To address potential future risk of re-offending, Mr. Thompson also relies on the expert opinion of clinical and forensic psychologist, Dr. George Stones. His expertise within the scope of this related area is not in dispute and is supported by his C.V. that is filed at Tab 2 of the Defence Record on Sentencing. Dr. Stones completed a comprehensive assessment of P.H. which is documented in his report dated December 11, 2023. One of the objectives of this assessment was to consider the offender’s risk of recidivism, including sexual recidivism.

[35] With respect to the Actuarial Risk Assessment Measures, [7] P.H.’s risk for general violence offences (including sexual) recidivism is in the moderate or average range. However, these actuarial results do not reflect the passage of time since the commission of this offence. Therefore, the accuracy of this particular data is questionable.

[36] Included in Dr. Stones’ Risk Management Recommendations is a conclusion that P.H. is at the lower end of the risk continuum for the commission of a sexual contact offence. Dr. Stones concludes that there is no need for any specialized psychosexual treatment to address this low risk of sexual re-offending.

[37] These two conclusions prompted a question from Mr. Woods, that was met with a detailed response from Dr. Stones, found at the end of Tab 1 in the Defence Record on Sentencing. In providing a more focused response to the issue of risk of sexual recidivism, Dr. Stones concluded that the offender’s sexual recidivism risk is quite low (ie: 94% of men in the standardization sample scoring similarly did not reoffend sexually during the 3-year period observed). Rather, the moderate risk of re-offending that P.H. poses is in a general sense due to his other documented areas of vulnerability (substance abuse and mental health diagnoses per DSM-5-TR), but not in relation to sexual recidivism specifically.

[38] As stated above, P.H. has not re-offended in a sexual manner in excess of 10 years since this offence. This evidence, along with the expert opinion of Dr. Stones leads me to conclude that P.H. is a low risk to reoffend sexually in the years to come. I cannot say the same for the risk that P.H. poses to commit future offences of a non-sexual nature. In my view, much of his future contact with the criminal justice system will turn directly on his ability to overcome his current struggles with alcohol and substance misuse in conjunction with a plan to manage his mental health.

The Law – Relevant Sentencing Principles

[39] The relevant sentencing principles in the Criminal Code are as follows:

“ Purpose

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

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

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

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

(d) to assist in rehabilitating offenders;

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

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

Objectives — offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Objectives — offence against vulnerable person

718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. 2019, c. 25, s. 292.1.

Fundamental principle

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

Other sentencing principles

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

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

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

b. evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,

i. evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

c. evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

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

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

Friesen

[40] In Friesen, 2020 SCC 9, the Supreme Court of Canada made it clear that sentences involving the sexual abuse of children must be increased to more accurately reflect the degree of harm and exploitation of children. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[41] In the words of the Supreme Court at para. 114:

“…mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim…”

[42] Friesen also reaffirms the requirement that judges must give primary consideration to the principles of deterrence and denunciation in cases such as this involving the sexual abuse of a child. Other principles of sentencing such rehabilitation and restraint shall not be given equal or more weight than the paramount principles of deterrence and denunciation.

[43] At the same time, I am not to ignore the principles of rehabilitation and restraint, as it relates to my obligations in determining an appropriate sentence for P.H.. Most recently, the Ontario Court of Appeal in C.B., 2024 ONCA 160, in interpreting Friesen, reaffirmed that sentencing judges retain discretion to consider factors that may mitigate the moral culpability of the offender. Judges may accord significant weight to other sentencing principles, including rehabilitation in determining a fit sentence in accordance with the overall principle of proportionality. This instruction was also referenced in the Supreme Court decision of Bertrand Marchand, 2023 SCC 26.

[44] Similarly, the Ontario Court of Appeal in M.V., 2023 ONCA 724, reminds us that the principle of restraint in section 718.2(d) and (e) continue to be relevant in cases of this nature.

[45] There are several factors to consider in determining a fit sentence involving child sexual offences as outlined by the Supreme Court in Friesen:

a) The likelihood that the offender will reoffend; b) The abuse of a position of trust or authority; c) The duration and frequency of the sexual violence; d) The age of the victim; e) The degree of physical interference; f) Participation by the victim.

Analysis

[46] Both lawyers have provided me with an abundance of cases that apply the overarching principles enunciated by the Supreme Court in Friesen. Each case presents with its own degree of aggravating facts, coupled with its own unique set of mitigating circumstances.

[47] Upon review of those cases, I am reminded that sentencing is a highly individual exercise that must consider the specific circumstances of each offence and the offender. I will now consider the aggravating and mitigating factors in this case.

Aggravating Factors

1. P.H. was in a position of trust. He is the biological father of M.H and at the time, was in a caregiving role while living with the victim and her mother. His parental responsibilities amplify the degree of harm due to the profound breach of trust which elevates his degree of moral blameworthiness. The impact of this breach of trust is supported by the victim impact statements in the record before me.
2. This was not an isolated incident. While P.H. is being sentenced on a single count of Sexual Interference, the evidentiary basis for this conviction was supported by multiple incidents of sexual touching upon M.H. between January 1, 2011, to December 31, 2014, when she was approximately three to four years old. Friesen instructs judges to give adequate weight to the multiple incidents and not analogize this to be one of a single incident despite there being a conviction to only a single count.
3. The extent of emotional and psychological harm upon the victim has been devastating. Each of the four instances of sexual interference involved a highly invasive act of digital penetration or the touching of the exterior of M.H.’s vagina when she was between three to four years old. Recognizing that the degree of physical interference is a factor, but not determinative in deciding a fit sentence, clearly, the gravity of this offence is high given the significant psychological harm upon M.H. which continues to manifest itself today.
4. Due to her young age, M.H. was extremely vulnerable and had no ability to physically resist these attacks on her sexual integrity. This high level of vulnerability highlights the power imbalance that likely contributed to the repetition of her victimization at the hands of her biological father. This adds to the gravity of the offence before me.
5. Physical force was used by the offender during the multiple incidents as described above. This has caused further psychological trauma to the child victim.

Mitigating Factors

1. P.H. essentially presents as a first-time offender. At the time of this offence, he had no prior criminal record. Subsequently, in 2019, he was convicted of unrelated offences of a non-sexual nature and received a conditional discharge, 1 year probation and a weapons prohibition.
2. P.H. has struggled with addiction to substances during the commission of this offence and in the years following. His journey to achieving sobriety continues today. The stress of these legal proceedings combined with the passing of his mother in 2008 has exacerbated his addiction and has had a personal emotional toll on him and his family.
3. He meets the diagnostic criteria in the DSM-5-TR for several mental disorders that combined with addiction to substances, pose a significant challenge in his road to rehabilitation. The cumulative factors of addiction and mental health diagnoses, reduces his moral culpability to some degree.
4. Despite these challenges, his overall rehabilitative potential appears optimistic. The PSR references a history of community supervision for unrelated convictions in 2019 that was positive. The previous probation officer concluded that P.H. would be suitable for future supervision. The character letters filed by his counsel paint the picture of a father determined to be present in the lives of his children and seek employment opportunities to provide for them.
5. Relatedly, his employment prospects appear hopeful. P.H. has a history of being employed in various types of jobs available to him. Most recently in the weeks leading up to this Sentencing Hearing, he pursued completion of his mining certificate at Cambrian Community College in Sudbury. This achievement has materially enhanced his employment prospects and ability to earn a substantial income to support his family.
6. P.H. poses a low risk to reoffend again in a sexual manner. My finding on this key fact is a cumulative result of (a) Dr. Stones’ expert opinion combined with (b) the evidence of at least 10 years of no further offences of a sexual nature and (c) despite being in the immediate presence of the victim and other young children leading up to the point these charges were laid. I am aware that any restrictions by child protection authorities with other children with immediate access available to P.H. have been lifted.

[48] Additionally, I have turned my mind to the numerous instances in the PSR and expert report where the offender denies responsibility for this offence. I do not consider this to be an aggravating factor. I consider P.H.’s ongoing rejection of the finding of guilt to be rooted in embarrassment and an unwillingness to re-visit the most difficult and painful time in his adult life (his mother passing away after battling cancer and the commission of this offence upon his own daughter during the peak of his addiction struggles). In his own mind, it may also be necessary to protect his interests going forward, which is his legal right. In the eyes of the Court, his lack of insight in committing this offence when he was in the midst of a dark period in his life between the ages of 25 to 26 years old, is a neutral factor.

Disposition

[49] Within the list of cases filed by the Crown are some judgments with similarities with respect to the degree of moral blameworthiness and gravity with the case at bar. [i] Those cases resulted in sentences in the 18 to 36 months range. The remaining cases with sentences above 36 months were highly distinguishable due to facts that were in my view, significantly more aggravating than the case at bar.

[50] The Defence filed a sub-list of cases with the objective of illustrating to me what the range is in Ontario for cases of a similar nature. [ii] The “Quantum Cases” were similar in degree of blameworthiness of the offender and aggravating features for each offence. These cases illustrate a range of 18 to 24 months incarceration, even upon application of the principles articulated by the Supreme Court in Friesen.

[51] Although the instructions of the Supreme Court are clear that sentences involving child sexual abuse must increase, in this case, a penitentiary term beyond 2 years would preclude my ability to impose a probation order, which could adequately address the protection concerns expressed by the victim and her mother.

[52] Each of the cases referenced by counsel have a range of aggravating and mitigating factors. Recent cases from our provincial Court of Appeal have reminded trial judges that while deterrence and denunciation must be paramount, principles of rehabilitation, restraint and proportionality in consideration of the gravity of the offence remain relevant. Proportionality requires that punishment be “just and appropriate…and nothing more.” [13]

[53] I remind myself that a sentence must be sufficient to denounce the wrongfulness of the conduct and the actual and potential harm that the offences give rise to. [14] Having considered the totality of the evidence before me and the applicable legal principles, I am of the view that a fit sentence is a term of custody in the upper reformatory range.

[54] The sentence shall be a term of incarceration of 2 years less a day, followed by a two-year probation order on the following terms:

1. Report to a probation officer within two working days upon your release from custody, and thereafter when required by the probation officer.
2. Reside at an address approved by a probation officer and not change that address unless you receive the permission of your officer in advance.
3. Do not have any contact, directly or indirectly, with M.H., M.C.
4. Remain at least 100 meters away from their place of residence.
5. Remain at least 50 meters away from their places of employment, education or any place they may happen to be except for required court attendances.
6. Attend and actively participate in all assessments, counselling or rehabilitative programs as directed and complete them to the satisfaction of your probation officer including but not limited to anger management; substance abuse; alcohol abuse; life skills.
7. Sign any release of information forms that will enable the probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Ancillary Orders:

[55] While in custody, P.H. will also be prohibited from communicating directly or indirectly with the victim and her mother pursuant to section 743.21 of the Criminal Code.

[56] There will also be a weapons prohibition pursuant to section 109 of the Criminal Code.

[57] I am also ordering that a sample of P.H.’s blood be taken for inclusion on the national DNA databank, pursuant to section 487.051(1) of the Criminal Code.

[58] I am sentencing P.H. to a term of custody of less than two years. Accordingly, pursuant to section 420.012(3), an order to comply with the SOIRA is discretionary.

[59] I have considered each of the factors listed in section 490.012(4) in determining whether I should order P.H. to be bound by the reporting terms pursuant to the SOIRA regime. Those factors are:

“(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider:

(a) the nature and seriousness of the designated offence; (b) the victim’s age and other personal characteristics; (c) the nature and circumstances of the relationship between the person and the victim; (d) the personal characteristics and circumstances of the person; (e) the person’s criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence; (f) the opinions of experts who have examined the person; and (g) any other factors that the court considers relevant.”

[60] The offence of Sexual Interference is inherently violent. The impact on M.H. is profound given the breach of trust and her vulnerability due to her very young age at the time of this offence. The harm is further exacerbated because she was sexually interfered with on multiple occasions by her biological father who had the responsibility to protect and care for her when they lived together within the same home. The breach of trust is not short-lived for M.H., as she continues to struggle today with the psychological impact of this offence on her mental health.

[61] However, Dr. Stones’ conclusions combined with at least 10 years of no evidence of reoffending in a sexual manner provides me with highly probative evidence in determining whether an order to comply with the SOIRA regime should issue for a period of 20 years. I am also mindful of the fact that there have been no violations of bail since P.H. was ordered to abide by terms of his judicial interim release in 2021 and that child protection agencies currently do not have any restrictions in place prohibiting the offender’s contact with his stepdaughter or biological son. I have also considered his employability in the mining sector, which would likely require a significant degree of travel to a variety of remote job sites for unknown periods of time.

[62] In considering the various aggravating and mitigating aspects of this case in conjunction with the factors in section 490.012(4), I conclude that it would be grossly disproportionate to the public interest in protecting society through the objectives underlying the SOIRA legislation if I were to require P.H. to report in the manner and frequency statutorily required and for the duration required. Accordingly, the request to order P.H. to comply with the SOIRA regime is hereby dismissed.

[63] Pursuant to s. 161(1) of the Criminal Code, in addition to any term of imprisonment, for a period of 5 years, P.H. is prohibited from:

(a.1) being within 100 meters of any dwelling-house where M.H. ordinarily resides; (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;

[64] P.H. in recent months been laid off from his job at a local pulp and paper mill and has undergone re-training in pursuit of career in the mining sector upon release. However, in light of the length of custody I have ordered, I am satisfied that payment of the victim fine surcharge would constitute undue hardship.

[65] I wish to thank Mr. Woods and Mr. Thompson for their skillful advocacy.

Released: March 22, 2024 Signed: Justice Leonard Kim

[1] Reasons for Judgment, reported at R. v. P.H., 2023 ONCJ 208.

[2] R. v. Friesen, 2020 SCC 9.

[3] Friesen, at para. 5.

[4] Sex Offender Information Registration Act, SC 2004, c 10.

[5] P.H.’s mother passed away in 2008, when he was approximately 22 to 23 years old. This would have been just prior to the birth of M.H. in January 2009.

[6] R. v. Spence, 1992 ABCA 352.

[7] Dr. G. Stones, a forensic a clinical and forensic psychologist, administered several forensic risk assessment measures: The Level of Service Inventory Revised (“LSI-R”), the Static-99R, the STABLE-2007, the Psychopathy Checklist-Revised, and finally a composite consideration of the Static-99R.

[8] R. v. Friesen, 2020 SCC 9.

[9] R. v. C.B., 2024 ONCA 160 at paras. 30, 34.

[10] R. v. Bertrand Marchand, 2023 SCC 26 at para. 28.

[11] R. v. M.V., 2023 ONCA 724 at para. 83.

[12] Friesen, at paras. 122 – 154.

[13] C.B., at paras. 30, 34; M.V., at para. 83.

[14] M.V. at para. 42.

[i] This list of cases was filed by the Crown. The cases with similar degrees of moral blameworthiness and gravity of offences, resulted in sentences in the 18 months to 36 months range. The cases with sentences above 36 months were highly distinguishable due to facts that were in my view, significantly more aggravating than the case at bar.

1. R v Friesen, 2020 SCC 9
2. R v TJ, 2021 ONCA 392
3. R v Shanahan, 2022 ONSC 1792
4. R v CB, 2021 ONSC 187
5. R v JH, 2022 ONCJ 271
6. R v SB2, 2022 ONSC 821
7. R v RA, 2022 ONSC 1161
8. R v R N, 2022 ONCJ 145
9. R v TA, 2022 ONCJ 528
10. R v O’Neill, 2022 ONSC 5025

[ii] This list of cases was filed by the Defence. The “Quantum Cases” were similar in degree of blameworthiness of the offender and aggravating features for each offence. These cases illustrate a range of 18 to 24 months incarceration, even upon application of the principles articulated by the Supreme Court in Friesen.

Referenced in Written Argument:

1. R v TJ, 2021 ONCA 392 at para 27
2. R v Hamilton at para 89
3. R v Valentini, [1999] OJ No. 251 at para 82
4. R v Friesen, 2020 SCC 9 at paras 122-124
5. R v M(CA) SCC at paras 80, 92
6. R v Batisse, 2009 ONCA 114 at para 32

Quantum Cases:

7. R v MG, 2023 ONSC 2990
8. R v Patel, 2023 ONSC 890
9. R v RA, 2022 ONSC 1161
10. R v DB, 2021 ONCJ 4381