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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 11 20 Court File No.: Central West Region - Brampton – 22-31101494

BETWEEN:

HIS MAJESTY THE KING

— AND —

M.C.

Before: Justice Andrew F. Falls Heard on: October 30, 2024 Reasons delivered on: November 20, 2024

Counsel: R. Mushlian, for the Crown A. Valencia, for the defendant, MC

Table of Contents

• Reasons For Sentence
• The Circumstances of the Offence
• Victim Impact
• The Circumstances of the Offender
  • a) MC’s Background
  • b) MC’s Explanation for the Offence
  • c) Other Considerations
• Sentencing Legal Principles
• Sentencing in Sexual Violence with Children
• Positions of Parties
• Aggravating & Mitigating Factors
• What is a Fit & Appropriate Sentence
• Ancillary Orders

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast, or transmitted in any manner. If the WARNING page at the start of this document is missing, please contact the court office.

Falls, J.:

Reasons For Sentence

[1] MC’s trial proceeded before me on April 22-25, 2024. I delivered brief oral reasons on May 29th, and a written decision on October 3, 2024.

[2] Counsel provided sentencing submissions on October 30, 2024. MC is before me today to be sentenced for these offences.

The Circumstances of the Offence

[3] The facts in this trial are set out more fully in my trial decision. Briefly, I found that MC hugged TS and kissed her on the lips. He invited TS to touch his exposed penis. He grabbed her wrist and forced TS to move her hand on his penis. MC continued to kiss TS as he made her touch his penis. There was no evidence that MC ejaculated.

[4] This incident occurred on one occasion in the basement of MC’s residence. TS was waiting for MC’s daughter to get ready for school. There was no other sexual activity.

[5] TS was 11 [1] years old at the time of the offence. MC was 55 years old.

Victim Impact

[6] A victim impact statement was filed by JS, TS’s mother.

[7] It was clear from the statement that this crime has had a profound effect on the S. family. JS spoke of the devastating impact this offence had on TS physically, emotionally & psychologically. MC had been a close family friend. TS had been friends with MC’s daughter since kindergarten. The children had spent days and overnights at each other’s home. In short, they trusted MC.

[8] JS spoke of the impact this offence has had on her and TS’s father. Quoting JS, “to see her falter because of the attack by this trusted father figure in her life, is one of the most feared nightmares a parent can have.”

[9] MC’s actions fractured the relationship between the families, leaving TS and her family estranged from the Accused and his family.

[10] From the Pre-Sentence Report, TS’s parents disclosed that she has lost confidence in any parental figure she is unfamiliar with, she is in psychotherapy, and she is on a waitlist to meet with a psychiatrist.

[11] I am mindful of the unknown or not yet known effects this type of crime has on children. As noted by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 [2], harm can manifest during childhood and long-term harm can become evident during adulthood. [3] This harm can manifest in physical and psychological harm that persists throughout childhood and into adulthood. At paragraph 80, the Supreme Court noted a list of recognized forms of harm that can develop including:

• overly compliant behaviour and an intense need to please,
• self-destructive behaviour, such as suicide, self-mutilation, chemical abuse, and prostitution,
• loss of patience and frequent temper tantrums,
• acting out aggressive behaviour and frustration,
• sexually aggressive behaviour,
• an inability to make friends and non-participation in school activities,
• guilty feelings and shame,
• a lack of trust, particularly with significant others,
• low self-esteem,
• an inability to concentrate in school and a sudden drop in school performance,
• an extraordinary fear of males,
• running away from home; sleep disturbances and nightmares,
• regressive behaviours, such as bedwetting, clinging behaviour, thumb sucking, and baby talk, and
• anxiety and extreme levels of fear; and depression.

[12] As noted by The Court at paragraph 79 [4],

“[T]he potential that these forms of harm will materialize is always present whenever there is physical [page472] interference of a sexual nature with a child and can be present even in sexual offences against children that do not require or involve physical interference. These forms of potential harm illustrate the seriousness of the offence even absent proof that they have materialized into actual harm (see McDonnell, at paras. 35-36).”

[13] It may not be possible for a court to determine whether these forms of harm have occurred at the time of sentencing. As is the case with TS, she is still a child. Only time will determine the nature and extent of the harm that she will experience as a result of this offence.

The Circumstances of the Offender

a) MC’s Background

[14] I was aided in understanding MC’s background by his counsel’s submissions and a pre-sentence report. Additionally, the defence filed a sentencing brief consisting of 16 letters of support, two certificates of appreciation, a citizen award, and nine images from community events – two with his family and notable members of federal parliament.

[15] MC is now 57 years old. He has a degree in computer engineering from Pakistan. He is married with three children, including two sons from a previous marriage. I have observed his wife, son and daughter in court showing their support at almost every court appearance.

[16] MC had been diagnosed with prostate cancer in January 2022. After a successful surgery, his health has improved.

[17] At the time of trial, MC was self-employed as an IT consultant. He has recently been offered a fulltime position as an analyst with TD Canada Trust bank. MC provides financial support for his immediate family, including his two sons in university. Though his wife is employed, the family functions as a two-income family.

[18] In submissions, counsel submitted that a custodial sentence would have a significant impact on MC’s family. I was advised that his family has been blindsided by this incident.

[19] Each of the reference letters filed in support of MC speak to his character. He was described as a family man, giving, hardworking, kind, patient, caring and community oriented. I note that eight of the letters were written by family and friends who are aware MC has been convicted of an offence on a child. In my view, this speaks in some measure to his rehabilitative prospects. In other words, MC has shown some willingness to account for his actions to others. The remaining eight letters were generically written and positively attest to his character.

[20] MC is highly active in his community. He co-founded a community organization that provides tax support for elderly, low-income families, and students. Prior to being charged, MC volunteered as an auxiliary police officer.

[21] MC does not have a criminal record.

b) MC’s Explanation for the Offence

[22] I am not sure why MC committed this offence.

[23] MC has maintained his innocence. I do not consider that to be aggravating.

[24] However, I note that the finding of guilt in this case came after a trial in which TS was required to testify. As I noted, this is not an aggravating factor, but it leads to a circumstance where a defendant does not have the significant mitigation that comes with a plea of guilt and an acknowledgement of wrongdoing.

c) Other Considerations

[25] To my knowledge, MC has not undergone any counselling.

[26] There was no risk assessment or expert report filed to aid me in evaluating any risk posed by MC.

[27] Though it was submitted by counsel that MC does not present a danger to society. This submission was based on the fact that MC’s sole conviction is the one before the court.

Sentencing Legal Principles

[28] The Criminal Code of Canada instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society." [5]

[29] Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are contained in the Criminal Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community. [6]

[30] Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it. [7] This means that, for the sentence I impose to be appropriate, it must be tailored to MC ’s circumstances, and the circumstances of the offences he committed.

[31] As noted by Justice Doherty in R. v. Ramage, 2010 ONCA 488 [8], “Sentencing is a fact-specific exercise of judicial discretion. It is anything but an exact science. In the vast majority of cases, there is no single sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge must make his or her selection.”

[32] As noted by the Supreme Court in R. v. Nasogaluak, 2010 SCC 6 [9] at paragraph 44:

…[I]t must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred.

[33] In R. v. Lacasse, 2015 SCC 64 [10] at paragraphs 57 and 58, the Supreme Court stated that:

…Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case …

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision…

[34] As noted in R. v. Proulx, 2000 SCC 5 [11] at paragraphs 21 and 22:

The conditional sentence was specifically enacted as a new sanction designed to achieve both of Parliament's objectives. The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders' liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code. In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6. If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence…

[35] A conditional sentence can only be imposed if the accused receives a sentence of less than 2 years and only when the sentence "would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

Sentencing in Sexual Violence with Children

[36] In R. v. Friesen, 2020 SCC 9 [12], the Supreme Court of Canada outlined a sentencing framework for sexual offences involving children. The Court delivered a strong message to sentencing judges that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Writing on behalf of the Court, Chief Justice Wagner and Justice Rowe stated:

Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

[37] The Supreme Court outlined a number of factors that are to be applied when considering a sentence for an offence involving children. [13] A number of those factors direct me to consider the harm that is caused when a child and their family are victims of a sexual offence. The Court directed that [14]:

1. The sentence imposed must accurately reflect the gravity of the offence. The courts must recognize (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences.

2. The sentencing court must not discount an offender's degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children.

3. An offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child.

4. The duration and frequency of sexual violence is a further important factor in sentencing. The frequency and duration can significantly increase the harm to the victim. The immediate harm the victim experiences during the assault is multiplied by the number of assaults. Sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime; and,

5. 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.

[38] Sentencing in these cases must emphasize the principles of denunciation and deterrence. Zarnett J.A. explained these terms in R. v. J. (T.), 2021 ONCA 392 [15] at para. 26 as follows:

A sentence expresses denunciation by condemning "the offender for encroaching on our society's basic code of values"; it expresses deterrence by "discouraging the offender and others from engaging in criminal conduct". Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis, at para. 55.

[39] As stated by the Court of Appeal in R. v. M.M., 2022 ONCA 441 [16], at para. 15:

The Supreme Court's instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

[40] The Court of Appeal noted further at paragraph 16 [17]:

Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate - for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.

[41] The facts in M.M. involved the making and possessing of child pornography.

[42] As noted by Justice Leibovich in R. v. D'Orazio, 2024 ONSC 807 [18] at para. 37:

Sexual violence against children invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. A child should be able to grow and develop free from sexual interference and exploitation by adults. Sentences must fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.

[43] Further at para. 39,

An offender who sexually abuses a child has a high degree of moral responsibility because, except in the rarest of cases, the offender will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child.

[44] Finally, section 718.01 of the Criminal Code states that when dealing with offences against children a court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Section 718.2 of the Criminal Code specifies that the following factors are deemed to be aggravating:

1. Evidence that the offender, in committing the offence, abused a person under the age of eighteen years, and

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

Positions of Parties

[45] The Crown submits that a custodial sentence is appropriate, citing MC’s actions and the seriousness of the offence. The Crown asked this court to impose:

1. A concurrent custodial sentence of 2 years less a day,

2. A 3-year probation order,

3. A s.109 weapons prohibition for life,

4. A SOIRA order for ten years and life,

5. A DNA order,

6. A s.161 order for life, and

7. A non-communication order while in custody pursuant to s. 743.21 of the Criminal Code of Canada.

[46] The Crown invites me to enter a conditional stay on the offence of Sexual Assault, pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729 [19].

[47] Counsel for MC submits that it would be more appropriate for me to impose a two-year less a day conditional sentence. The goal of Defence Counsel’s submissions was to achieve a sentence that allows MC to continue his employment, provide support for his family, and maintain his health.

[48] Defence Counsel points to MC’s personal circumstances, considerable community service, and no danger to the community as significant reasons for me to consider this sentence. Counsel highlights that MC deserves significant mitigation for his good character.

[49] If I were not inclined to impose a conditional sentence, counsel submitted that a one-year sentence is appropriate, balancing all the circumstances of this case.

Aggravating & Mitigating Factors

[50] In determining an appropriate sentence, it is helpful to consider any relevant aggravating or mitigating circumstances that are presently at play. (See s. 718.2(a)) This would include features of MC ’s background, features of the crime he has committed, the timing of his guilty plea, and any other evidence I have received during this sentence hearing. It would also include any legal direction, whether found in the Criminal Code, for example section 718.2(a), or provided by the higher courts, with regard to particular aspects of this case that I must consider.

[51] Listing the applicable aggravating and mitigating features assists me in evaluating this case properly and imposing a sentence that is just and appropriate.

[52] I find the following to be aggravating factors in this case:

1. The circumstances of the offence (i) While this was not a classic relationship of trust and authority, I accept that MC was in a position of some measure of trust as someone who has been charged with TS’s care and wellbeing during visits to his home. He was a trusted family friend and abused that relationship of trust in committing these offences. (ii) TS was 11 years old at the time of this offence. Pursuant to section 718.01, it is statutorily aggravating that the victim was under the age of 18 years. (iii) She was vulnerable and should have been able to trust that MC would keep her safe. (iv) MC committed this offence in a private location, while his daughter was getting ready for school.

2. The significant impact that these offences have had on TS and her family.

[53] I find the following to be mitigating factors:

1. MC, who is married with three children, has strong family support.
2. He is educated and gainfully employed.
3. MC has a demonstrated history of giving back to his community, and
4. MC has been on a release for a long time, without incident.

What is a Fit & Appropriate Sentence

[54] I now want to turn to my analysis and determination of a fit sentence.

[55] I will start by saying that no sentence I impose today with repair the harm that has been done to TS. She is and will likely experience the effects of MC’s actions for some time.

[56] Crafting a fit sentence for an Accused can be one of the most challenging exercises for a judge. This case is a good example of the struggle that can exist in trying to balance all relevant factors. Strong competing interests exist. I must turn my mind to the principles of denunciation and deterrence; and impose a sentence that sends a message to the community and MC that this behaviour will not be tolerated.

[57] I cannot ignore the fact that MC’s crime was committed on a young, vulnerable member of our community.

[58] It is clear to me that this offence has had an impact on TS and her the family.

[59] On the other hand, MC is 57 years old and has no criminal history. He is otherwise a good contributing member of our community.

[60] I have reviewed the sentencing cases provided by Crown counsel. They reflect a range of sentences from two years less a day to two years’ imprisonment for similar, but not identical offences to those for which MC has been found guilty.

[61] I found the Ontario Court of Appeal’s decision in R. v. J. (T.), 2021 ONCA 392 [20] to be useful. At trial, a 9-month custodial sentence was imposed for an offender who used a young child’s hands to rub his penis. He then invited her to place her mouth on his penis and she pulled away. The child was at the Accused’s home for a sleepover with his children. The Ontario Court of Appeal found the sentence demonstrably unfit and imposed a sentence of 2 years jail. In that case, the accused had no prior criminal record, had a history of substance use for which he had attended counselling, had been on bail for three years without incident, had a lengthy employment history, and was found to be a devoted father and supportive ex-spouse.

[62] The defence provided me a number of cases, most of which pre-date the Supreme Court’s decision in R. v. Friesen, 2020 SCC 9 [21]. They are instructive in assisting me with general sentencing principles. However, in my view, they are of limited applicability as Friesen clearly signals that going forward, courts must give more weight to the harmfulness inherent in the sexual exploitation of children and the high level of moral culpability of those who engage in such conduct.

[63] Defence Counsel referred me to a 2024 case from Justice Dellandrea of this Court in Brampton, R. v. Williams, [2024] ONCJ [22]. In a summary conviction trial, the Accused was convicted of three counts of sexual misconduct against a 14-year-old girl. The facts of that case are more egregious than the ones before this court. They involved touching over and under the clothing, an attempt to make the victim touch his penis, and attempted vaginal penetration with the accused’s penis. In that case, Her Honour imposed a total sentence of three years imprisonment.

[64] Defence Counsel additionally submitted the case of R. v. Gunaratnam, 2021 ONSC 8270 [23] from the Ontario Superior Court of Justice. In a post trial sentencing, Justice Schreck imposed a conditional sentence of two years less a day. The historical facts involved sexual touching of two girls 12-13 years old, including touching over and under their clothing and digital vaginal penetration. The accused was found guilty in relation to one girl and pleaded guilty to the second. The accused ultimately admitted his crimes and claimed remorse. In my view, this case is distinguishable from the case at bar. The sentence was a joint submission by counsel. His Honour engaged in an R. v. Anthony-Cook, 2016 SCC 43 [24] analysis and found that he could not reject what would otherwise be an overly lenient sentence. At paragraph 38, Justice Schreck noted that a conditional sentence for offences of this type will usually be inappropriate.

[65] There is a paragraph from R. v. Gunaratnam, 2021 ONSC 8270 [25] that is instructive in this case. His Honour helpfully noted the following at para. 30:

That said, a survey of more recent cases involving conduct that is comparable to what Mr. Gunaratnam did in this case suggests that an upper reformatory sentence may be appropriate: R. v. J. (T.), 2021 ONCA 392, 156 O.R. (3d) 161; R. c. F.J., 2021 ONCA 268; R. v. R.L.S., 2020 ONCA 338; R. v. Lloyd, [2021] O.J. No. 5163 (C.J.); R. v. Pye, 2021 ONCJ 517; R. v. D.B., [2021] O.J. No. 4381 (C.J.); R. v. D.S., 2021 ONSC 3972; R. v. J.L., 2021 ONCJ 297; R. v. D.J.S., [2021] O.J. No. 3994 (C.J.); R. v. P.H., [2020] O.J. No. 5450 (S.C.J.).

[66] These decisions suggest that a fit sentence for MC would lie somewhere in the upper reformatory range. A sentence within this range would give effect to the principles of denunciation and deterrence, which Friesen mandates are the primary objectives in sentencing offenders who have committed sexual offenses against children. At the same time, such a sentence would also take into account the mitigating considerations discussed above.

[67] I have considered the defence submission for a conditional sentence. MC is undoubtedly a suitable candidate for a conditional sentence in the sense that he has led a pro-social life and will likely comply with any order a court might impose. It is likely that serving his sentence in the community would not endanger the safety of the community. I remind myself that section 718.2 of the Criminal Code of Canada directs me to consider the least onerous sentence consistent with the purposes and principles of sentencing.

[68] I have specifically considered whether MC poses a danger to the community, and whether a conditional sentence, in the circumstances of this case, would be consistent with the fundamental purpose and principles of sentencing as set out in sections 718 to 718.2.

[69] Further, MC has expressed fear, through his counsel, that he does not know what will become of his financial support for his family if he goes into custody. This is an entirely understandable fear. Regrettably, however, there is nothing exceptional about it. This can be said of many, if not most offenders who are in a position of trust towards the victim. It is one of the many tragic consequences of this intolerable crime.

[70] Although I must consider the collateral consequences of this sentence, the sentence must still be proportionate to the gravity of the offence and the degree of responsibility of the offender. I recognize that tragic consequences may well flow if I impose a custodial sentence, however, I do not believe that anything less would be fit. As the Supreme Court of Canada has emphasized and I repeat, the normal sentence for child sexual offences involves mid-single digit penitentiary sentences. While I recognize that there are cases where exceptional circumstances have resulted in a conditional sentence, even after Friesen, there are no exceptional circumstances here. This includes the fact that MC was previously of good character.

[71] Friesen is clear: exemplary sentences are necessary to denounce and punish sexual crimes against children.

[72] I reiterate, the Court of Appeal in M.M. has clearly stated that the imposition of a conditional sentence involving the sexual abuse of a child would rarely be appropriate, limited only to exceptional circumstances that render incarceration inappropriate.

[73] In the circumstances of this case, a conditional sentence would be inconsistent with the message being delivered by the Supreme Court in Friesen and subsequent appellate authority. A non-custodial sentence would insufficiently denounce a breach of trust involving penile touching by a 11-year-old girl.

[74] In my view, a custodial sentence is appropriate to deter MC from committing this type of sexual offence, as well as send a deterrent message to the community about the wrongfulness of this type of behaviour.

[75] The conduct underlying MC 's offence was non-penetrative and occurred once. MC took advantage of an opportunity to engage in this activity. The offence had a significant impact on the victim. Although in a position of trust, he was not a parent to TS, which rendered her especially vulnerable. An appropriate custodial sentence also takes into consideration MC’s commendable community efforts, his previous good character, and collateral consequences. Furthermore, the Crown did not seek a sentence of more than two years imprisonment. These features place this case in the middle range of the cases noted in R. v. G.

[76] After considering all relevant factors, I find a fit global sentence to be 15 months incarceration. With some minor modifications, I would also make the ancillary orders requested by the Crown, and which are not opposed by the defence, as set out below.

[77] Accordingly, I sentence MC to a jail term of 15 months.

Ancillary Orders

[78] On consent of the parties, I will impose a 3-year probation order.

[79] I impose a DNA order, this being a primary designated offence.

[80] I will further impose an order pursuant to s. 161 of the Criminal Code of Canada for 10 years.

[81] With respect to the request for a sex offender registry or SOIRA order under s. 490.012 of the Code, an order will be made for 20 years.

[82] There will be a weapons prohibition pursuant to s.109 of the Criminal Code of Canada.

[83] Pursuant to s. 743.21, MC will be prohibited from contacting TS while serving the custodial part of his sentence.

Released: November 20, 2024 Signed: Justice Andrew F. Falls

NOTE: As noted in court, on the record, this written decision is to be considered the official version of the Reasons for Sentence and takes precedence over the oral Reasons read into the record in the event of any discrepancies between the oral and written versions.

[1] When reading my decision into the record, I misspoke and said 13 years old. TS was 13 years old when she testified and 11 years old at the time of the offence. This does not change my determination of a fit sentence. [2] R. v. Friesen, 2020 SCC 9 para. 80. [3] Ibid., para. 80. [4] Ibid., at para. 79. [5] Criminal Code of Canada, s. 718. [6] Ibid., s. 718 (a) – (f). [7] Ibid., s. 718.1. [8] R. v. Ramage, 2010 ONCA 488 at para. 70. [9] R. v. Nasogaluak, 2010 SCC 6 at para. 44. [10] R. v. Lacasse, 2015 SCC 64, at para 57-58. [11] R. v. Proulx, 2000 SCC 5 at paras. 21-22. [12] R. v. Friesen, 2020 SCC 9 supra., at para. 5 [13] Ibid., paras. 49-92. [14] Ibid. paras. 121-154. [15] R. v. J. (T.), 2021 ONCA 392 [Indexed as: R v J (T)] at para. 26. [16] R. v. M.M., 2022 ONCA 441 at para. 15. [17] Ibid., at para. 16. [18] R. v. D'Orazio, 2024 ONSC 807 at para. 37. [19] R. v. Kienapple, [1975] 1 S.C.R. 729. [20] R. v. J. (T.), 2021 ONCA 392 supra. [21] R. v. Friesen, 2020 SCC 9 supra., at para. 114. [22] R. v. Williams, [2024] ONCJ. [23] R. v. Gunaratnam, 2021 ONSC 8270. [24] R. v. Anthony-Cook, 2016 SCC 43. [25] R. v. Gunaratnam, 2021 ONSC 8270 supra., at para. 30.