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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 12 11 COURT FILE Nos.: Central East - Newmarket 20-07803; 20-11906

BETWEEN:

HIS MAJESTY THE KING

— AND —

D.L.

Before: Justice A. A. Ghosh Heard on: July 22, October 4, December 10, 11, 2024 Reasons for Judgment Released on: December 11, 2024

Counsel: P. Colavecchia.................................................................................... counsel for the Crown J. Goldglass................................................................................ counsel for the defendant

Ghosh J.:

I. Overview

[1] D.L. pleaded guilty before me to “Sexual Interference” (s.151) and “Manufacturing Child Pornography” (s.163.1(2)), contrary to the Criminal Code.

[2] The offender sexually abused his stepdaughter in a variety of ways, as she aged from 13-15 years old, during their uncoerced, illegal sexual relationship. The sexual acts involved multiple incidents of oral sex and vaginal intercourse. D.L. used sex toys and bondage instruments on her. He also videorecorded much of their sexual activity.

[3] The Crown submitted for a global sentence of 10 years, with 9 of those years attributed to the “sexual inference” offence, and 1 year (statutorily) consecutive for the “manufacturing child pornography” offence. The Defence submitted for a 4-6-year global sentence, given his years spent on restrictive bail. These are my sentencing reasons.

II. Summary of the Evidence

[4] D.L. started living with his common law spouse and her child from a past relationship. This child, the victim A.W., was 8 years old at the time. The three of them lived in Markham. D.L. was 25 years older than the child victim. They raised her as his child. She called him “Dad” or “Daddy”. D.L. referred to her as his “daughter”.

[5] A few years later, D.L. and the victim’s mother ended their relationship. The victim’s mother moved in with a new intimate partner. A.W. asked to live with the offender. Both of her biological parents had been abusive to her. The victim was still in elementary school at the time.

[6] A.W.’s mother died in 2019. She had suffered from alcoholism for years, contributing to her early death. A.W. was 14 years old by then. Her biological father now lived in the Maritimes with his new family. She did not want to change schools and lose her friends. Unlike her biological parents, D.L. had never been “abusive” to her in any way. A.W. asked and chose to continue to live with the offender. She still called him “Dad” or “Daddy”. He still referred to her as his “daughter”.

[7] D.L. provided for A.W. financially, attending to housing, food, clothing, transportation, a phone, a computer, a large television in her bedroom, spending money, and anything else she needed. He was teaching her how to drive. He got her a puppy. A.W. said he took on “the father role” and gave her all that she needed.

[8] By the time she was 15 years old, A.W. informed a classmate that she was being sexually abused by D.L.. The school faculty was informed, and in turn, the police. A.W. soon provided a lengthy statement to the police.

[9] It is agreed that the sexual interference started when A.W. was 13 years old and D.L. was 40 years of age. The first instances of sexual contact included regular kissing, touching of breasts, vagina, buttocks and anus, digital penetration, mutual oral sex, and the use of sexual aids, including vibrators and dildos for vaginal penetration. D.L. filmed many of these sexual acts using his smartphone.

[10] The sexual interference progressed to vaginal intercourse in various rooms within the house. This occurred for the first time in May of 2020, when A.W. was 14 years of age. She recounted 7 acts of vaginal intercourse with D.L. over several months, sometimes including the use of sexual and bondage aids. D.L. wore a condom each time. Each time, he recorded the sexual acts by housing his smartphone on a tripod.

[11] The first act of vaginal intercourse occurred when A.W. returned home from swimming with friends. Immediately when she came home, D.L. removed her clothes in the kitchen, bent her over the table and digitally penetrated her vagina. He then directed her upstairs to her bedroom. There, he set up the tripod and smartphone camera. D.L. motioned for A.W. to fellate him by pulling her head towards him while holding onto her hair.

[12] D.L. then instructed her to retrieve a condom, which he promptly put on. He then initiated vaginal intercourse for approximately 20 minutes before ejaculating into the condom. A.W. had been a virgin prior to this incident.

[13] They had uncoerced intercourse another six times over the ensuing months. D.L. used sexual and bondage aids on A.W., including handcuffs, vibrators, and dildos. He had purchased these items specifically to be used on A.W. For one of the videorecorded sexual acts, D.L. bound her wrists behind her back with padded handcuffs. He also tied her legs together before inserting two different sexual aids into her vagina. He then initiated vaginal intercourse with her.

[14] Despite the consistent use of condoms, A.W. took a pregnancy test on three occasions. D.L. never threatened nor forced her to engage in any sexual activity with him. She characterized her participation as follows: “It was easier to go along with it”. D.L. had been “persistent” about pursuing sexual activity with A.W., and she decided it was “easier” to comply “to avoid conflict in the home”.

[15] D.L. would tell A.W. that he loved her and that she was the love of his life. He variously told her that she was “a better version” of her mother and that if “she wasn’t his daughter, he would marry her”. He would call her “babe” in text messages and would tell her to call him “Daddy” during sexual activity. D.L. would drink 15-25 beers a day after work, and he was intoxicated at times during their sex acts.

[16] D.L. was arrested and search warrants were executed. The DNA of both D.L. and A.W. was located on a dildo, and two used condoms seized from D.L.’s room. D.L. had purchased multiple pregnancy tests, as evidenced by seized receipts and drugstore security footage. An examination of D.L.’s cell phone revealed several videos of D.L. and A.W. engaged in multiple forms of sexual activity.

Victim Impact Evidence Absent

[17] A.W. declined to provide victim impact evidence. The submitted impact of other actors with questionable insight and motivation is immaterial. Drawing from appellate guidance, the impact on the child victim is likely lasting, prospective, and powerfully inferred.

Circumstances of the Offender

[18] D.L. is a 45-year-old first-time offender. Much of his background can be gleaned from the forensic risk report submitted by the defence. He was adopted as an infant, and he experienced some limited family disruption throughout his childhood. D.L.’s adoptive father was likely verbally and emotionally abusive to his adoptive mother, but it was an otherwise stable household at times.

[19] The offender left home when he was 15 years old, as family services became involved. He was asked by a therapist to agree not to strike his family members, although he did not recall commonly having done so. He happily stayed at a group home for awhile, and then returned to his adoptive parents.

[20] The offender was diagnosed with ADHD early in high school and placed on medication. In time he was “kicked out” of high school twice, and advised by an administrator that there were better options for him beyond secondary school. D.L. claimed he was finally expelled from high school for having “asked the person behind him for a pencil.” He went to other specialized programs before returning to the original school to graduate.

[21] He went into the skilled trades and completed a lengthy apprenticeship in heavy machinery. D.L. became a crane operator for over two decades until his arrest. He reflected that his bail required him to live with his mother, and his employer was too far away for him to continue.

[22] The offender has been on various forms of social assistance over the last 4-and-a-half years while on bail. Since his arrest, he has self-reported a reduction in his once-heavy alcohol consumption, although he still likes to imbibe from time to time.

[23] His release order has required him to live with his mother and he has been under strict house arrest. D.L. has spent the last few years helping with home renovations, watching TV and movies, drinking, barbecuing, and spending time with his girlfriend.

III. Principles of Sentencing

[24] The principles of sentencing are codified in section 718 of the Criminal Code. For sexual offences against children, deterrence and denunciation are the primary sentencing principles engaged. All agree that a penitentiary sentence is necessary here.

[25] The most concerning facts involve the prolonged sexual abuse of a child by a trusted adult, confirming the primacy of deterrence and denunciation: ss.718.01 and 718.2(a)(iii). For first time offenders, rehabilitation, reintegration, and restraint must be considered in determining a fit custodial term.

[26] Section 718.1 of the Criminal Code directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of parity codified in s. 718.2 (b) must also be considered.

Aggravating Factors

[27] The following aggravating factors have been established beyond a reasonable doubt:

(i) Position of Trust: As her stepfather and only caregiver and guardian, D.L. was undoubtedly in a position of trust over A.W. The law requires that I expressly reject the submission that this was merely an “improper relationship”, devoid of a relationship of trust. It was a profound violation of a position of trust and the conduct was predatory and criminally opportunistic. For years, during her formative prepubescent stage, the offender acted as stepfather and guardian. They referred to each other in terms consistent with a parent-child relationship. Then, he changed it. I find D.L. was the “functional equivalent” of a father to the victim. Psychologically and emotionally, I find that this offending was incest-adjacent.

(ii) Entrenching the Parent-Child Dynamic and then Sexually Grooming Her: D.L. clearly groomed the child victim. From the age of 8 years, he engendered her trust as a parental figure and the common law partner of her mother. As the mother moved out and then died, he incrementally and insidiously changed the dynamic with the victim, making it more sexualized and then sexual by the time she was 13 years old. This was in her childhood home. [1] D.L. began dangerously engaging and gaslighting her as his intimate partner, making comments like “I love you”, “You are the love of my life”, “You’re a better version of your mother”, and “If you weren’t my daughter, I’d marry you.”

(iii) The nature of the manufactured child sexual exploitation videos: The child pornography D.L. made of their sex acts, depicted graphic sexual activity he visited upon his child victim, including all 7 acts of vaginal intercourse. At least one of the videos depicted A.W. being bound and confined during sexual activity.

(iv) Variety of sexual activity over a prolonged period: This was not impulsive. The abuse spanned almost a year and a half. D.L. initiated all sorts of sexual activity with the child victim during this time, including multiple acts of vaginal intercourse. She was a virgin before D.L. sexually abused her.

(v) Bondage and Constraints: D.L. quickly introduced her to the use of handcuffs and other sex toys, that restrained and penetrated her in different ways. This was the child’s introduction to sexual activity, and at the hands of her stepfather. Her participation is irrelevant and does not diminish this aggravating factor. I am mindful not to double-count the child-focused-BDSM factor as aggravating, but it cascades into both offences that must be served consecutively, as they serve distinct societal interests.

Mitigating and Contextual Factors

[28] The following mitigating and contextual factors are present, some to be expanded upon:

(i) Guilty Plea: Early in the process, D.L. expressed through counsel a desire to plead guilty and accept the reality of a penitentiary sentence. The victim was never going to testify. That said, the evidence involved the DNA of both victim and offender found on multiple items connected to their sexual activity, and the warrants that grounded the seizure of these items and the child pornography were unassailable. She was still underage at the time of reporting. I accept that it was an overwhelming Crown case to establish the facts admitted and that there was no discernible defence.

(ii) Forensic Risk Assessment: The forensic risk report of Dr. Ainslie Heasman determined that D.L. was at risk Level II and “below average risk to reoffend sexually”. This classification “is lower than the average individual convicted of sexually motivated offences, but greater than individuals in Level 1.” The expert did not testify, making it difficult to embrace the Crown submissions about problematic biases and deficiencies in the analysis. I accept the Crown’s concession that I should disabuse myself of the sub-analysis provided within the report of an identified contributing clinician. In any event, the ultimate risk assessment was facially mitigating. I decline to repurpose and invert the intention behind a defence risk report somehow into aggravating factors. I do acknowledge the evidentiary foundation of the Crown submission in support.

The report revealed diminished insight of the offender in identifying the actual and inferred harm to his child victim. He described her as the sexual instigator, despite the agreed facts. D.L. often minimized his responsibility for the offences. He revealed several cognitive distortions supporting that the child was responsible in various ways for his offending. He ultimately agreed in court that the agreed facts on the plea remained correct and accurate and that I should disabuse myself of any representation he made to the assessor that eroded or contradicted the tone and substance of the admitted facts. Ultimately, any mitigation accruing from the forensic report must be limited.

(iii) Time Spent on Restrictive Bail conditions – R. v. Downes: D.L. has been on house arrest bail conditions for almost 4-and-a-half years. I am mindful of the Crown’s opposition to any related mitigation, given the dearth of evidence on its impact on the offender. Indeed, I accept that the only evidence of its impact can be found in the forensic risk report, which may militate against any heightened mitigation. While on bail, he has maintained a lengthy intimate partner relationship, watched movies, and played videogames for hours a day. While he claimed his bail made his continued employment prohibitive due to distance, he also stated that he has “hated” his job over the final 10-15 years. There is no evidence that he meaningfully attempted to search for other employment over the last few years while on bail.

D.L. was receiving C.E.R.B. for having been impacted by COVID-19 proximate to his arrest and then went on E.I. He went on Ontario Works in 2022. His girlfriend would buy groceries and cigarettes for him. While on bail, he bought things “he does not need all the time”. His lamentations about house arrest only involved boredom, and an inability to “go out” or “exercise”. There was no genuine expression of interest about employment. With the sound reservations of the Crown in mind that no mitigation is warranted for his time on restrictive bail, I will err on finding this lengthy time on a house arrest release order as somewhat mitigating. I find it prudent to consider it as a qualitatively mitigating factor as opposed to a specific quantification or deduction from the final sentence. [2]

An “Upward Departure” from Dated Ranges for Child Sexual Abuse:

[29] The sentencing law for child sexual offences is demarcated by the 2020 Supreme Court decision in R. v. Friesen. [3] In this decision, the Supreme Court discussed our contemporary understanding of the harms of sexual offending against children and that an “upward departure” from previous sentencing ranges was required. Sentencing guidance that predates Friesen must be cautiously considered, at best. Advertence to some passages from this landmark ruling are instructive.

[30] Drawing from paragraphs 51-2 of Friesen:

“ The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. This Court recognized the importance of these interests in Sharpe in the context of the production of child pornography. As this court reasoned, the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime…

We would note that the personal autonomy interest carries a somewhat different meaning for children than it does for adults. Children under the age of 16 of course lack the capacity to consent to sexual contact with an adult. As we will explain in detail later in these reasons, a child's participation in such contact is not a mitigating factor and should never be equated to consent. Instead, personal autonomy refers to a child's right to develop to adulthood free from sexual interference and exploitation by adults.”

[31] Over the decades, Parliament has repeatedly increased the maximum sentences for such sexual offences against children. In 2015, Parliament had increased the maximum sentences for “sexual interference” and “making child pornography” from 10 to 14 years. Increases in maximum sentences signal the government’s intention that related sentences increase in length.

[32] Sentences before the current and increased maximum sentences must be approached cautiously, at a minimum. [4] Section 718.3(7) of the Criminal Code requires that the child pornography offence must be served consecutively to any other child sexual offence at the same sentencing proceeding.

Victim Participation: A Willing or Indifferent Child Victim is Not Consenting

[33] The absence of threats or coercion has been the subject of competing submissions at this hearing. This factor cannot constitute a mitigating factor or any helpful nuance impacting sentence, given the Supreme Court’s clear direction in Friesen about a child’s “participation” in her abuse. The absence of real or implied violence simply signals the absence of a potential aggravating factor. It is not mitigating.

[34] The court elaborated at paragraph 82:

We would emphasize that courts should reject the belief that there is no serious harm to children in the absence of additional physical violence… As we have explained, any manner of physical sexual contact between an adult and a child is inherently violent and has the potential to cause harm.

Thus, all sexual offences against children are inherently violent, even when the victim participates. Any sexual touching of a child involves a serious violation of the child’s sexual integrity, dignity, and privacy. As in this case, courts cannot discount the insidious presence of grooming and a position of trust that may have engendered a child’s participation. The child’s participation in her abuse is not even a relevant consideration at sentencing. [5]

The Guidance in Friesen Applies, Despite the Predating Offending Conduct:

[35] The offences occurred before the Supreme Court’s guidance in Friesen. Counsel submitted that D.L. should accordingly be sentenced through the application of the sentencing guidance that prevailed at the time. I disagree.

[36] The applicability of the principles in Friesen to historical sexual offences against children was recently addressed by our Court of Appeal in R. v. Wright. [6] Like D.L., the appellant had also submitted that it was “unfair to rely on contemporary sentencing ranges when sentencing a historical offence.” The intervening increases in maximum sentences signalled our developing recognition of the harms of child sexual abuse, and it was submitted that it was wrong to apply contemporized sentencing principles to historical matters.

[37] The Court of Appeal rejected this submission. As it observed: “While the five-year maximum sentence under the former provision had to be respected, the sentencing judge was not restricted to relying on sentencing ranges from a distant era.”

[38] This is hardly a historical offence. D.L.’s abuse of A.W. began in 2019 and lasted over a year. Thus, while his offending occurred before the Supreme Court’s direction in Friesen, it occurred well after the most recent increase in maximum sentences to 14 years for both offences. We were all on notice.

Sentencing Law Post-Friesen – Sexual Interference

[39] In directing an upward departure from past ranges for sexual offences against children in Friesen, the Supreme Court declined to set a national range for hands-on sexual offences against children. However, there was specific messaging regarding which past provincial ranges were closer to the Court’s newly expressed expectations.

[40] The Court expressed “concern about sentencing ranges based on precedents that appear to restrict sentencing judges’ discretion, for example, but imposing a cap of three to five years on sentences that can only be exceeded in exceptional circumstances… There is no requirement for there to be rare or special circumstances in order to impose a substantial sentence where that substantial sentence is proportionate.” [7]

[41] The Supreme Court in Friesen cautiously commended three Court of Appeal decisions from our province as more reasonable reflections of the new ranges: D.(D.), Woodward, and S.(J.). [8] While these cases found contemporary support, the Supreme Court observed that the 2015 statutory amendments increasing the maximum sentences to 14 years were not in effect at the time of D.(D.) and Woodward.

[42] That D.(D.) was still cautiously embraced two decades later in Friesen, despite vital legislative change, warrants attention for illustrative purposes. It is worth noting then, that Moldaver J.A. (as he then was) observed back in 2002:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. [9]

[43] The Supreme Court in Friesen clarified that sentences for “sexual interference” and “sexual assault” of a child under 16 years of age should be treated similarly. It is an error to treat “sexual interference” as less serious, given both offences share the same maximum sentence, and the similar elements of both offences are often grounded in the same factual foundation. [10]

Sentencing Law Post-Friesen – Making Child Pornography

[44] D.L. videorecorded many acts of his sexual abuse of A.W., which included mutual oral sex and his use of dildos and vibrators to vaginally penetrate her. He also videorecorded all seven acts of vaginal intercourse with A.W., which sometimes also involved the use of the same sexual aids and bondage instruments. The judicially authorized cell phone extraction revealed these child pornography videos were manufactured and possessed by D.L.

[45] The sentencing range for possession of child pornography has recently been increased by our Court of Appeal in R. v. Scott, [11] to realign sentences on account of Friesen and the 2015 increase in maximum sentences. “Child pornography has become a global cancer” that devastates children, families, and communities and generates a morally and criminally corrupted marketplace that promotes the continued recording of sexual violence against children.

[46] The Court of Appeal recognized six distinct wrongs meriting a Friesen-informed increase in the range: Perpetrators of this offence “violate children's dignity, invade their privacy, inflict severe emotional harm, instigate producers to abuse children to meet the demand for child pornography, risk inciting and facilitating other offences against children, and perpetuate pernicious messages that undermine children's humanity and equality.” [12]

[47] Through the Scott decision, the upper end of the range for possession of child pornography has been increased “to five years”. This increase in the range “fits comfortably with post-Friesen, post legislative change cases in which this court imposed or affirmed three or four year sentences for possession of child pornography, despite the absence of significant aggravating factors and the presence of mitigating factors.” [13]

[48] This new increase of the upper range to five (5) years for the possession offences “respects Parliament’s choice to set higher maximum sentences for contact offences and for the production and distribution of child pornography than for simple possession because it is lower than the ranges for those offences.”

[49] That brings me to the recent and related decision of the Court of Appeal in R. v. Parker, where the Court revisited the range for the offences of “production and distribution” of child pornography, which are more serious than “mere” possession. [14] In this case, possession is subsumed in the more serious facts of D.L. manufacturing the child pornography that captured his sexual abuse of a child who was effectively his daughter.

[50] The Court of Appeal in Parker took a different approach in distilling an “upward departure” from the more dated range of sentence for production and distribution, by discussing six of its post-Friesen decisions on sentence. While each case discussed is distinguishable from this one, it is obvious that the upper end of the range for “production” must be higher than the 5 years now contemplated for possession of child pornography.

[51] I decline to attempt to divine what that upper range may be, although I accept from the Court’s decision in Parker that it may be less than 8 years. [15] While ranges are malleable, I find from the combined effect of Scott and Parker that the upper range for production or distribution of child pornography is likely between 5 to 7 years.

IV. Discussion

[52] After the guilty plea was entered, the matter was reassigned to another Assistant Crown Attorney. This will end up being important. At the beginning of her submissions, she carefully lamented that she felt dutybound to honour the range of sentence proposed to the defence by her colleague.

[53] She reasonably determined that the application of the principles of restraint and totality required a sentence at the very top end of the originally proposed range of 8-10 years. The clear inference is that she would have preferred to submit for a total sentence of well over 10 years. I do not disagree in principle with that unexpressed sentiment.

[54] I too now feel somewhat and reasonably constrained by the original Crown position. This is particularly given that the Parker and Scott rulings recently released by our Court of Appeal increased the range for “manufacturing” to align with the Supreme Court’s direction in Friesen.

[55] Each distinct offence of “sexual interference” and “manufacturing child pornography, required by the Code to be served consecutively, now attracts a maximum sentence of 14 years. Standing alone, on the aggravating facts identified, D.L. is vulnerable to consecutive terms totalling well over a decade. The mitigating factors as I have identified and framed in this case would not materially impact such quantification.

[56] However, given the requirement of consecutive sentences for a first-time offender, I must apply the principles of totality and restraint. The Supreme Court observed in Friesen that there are competing approaches to determining the length of consecutive sentences. In other provinces, some appellate courts have directed the sentencing judge to determine the fit sentence for each offence before applying totality.

[57] In Bertrand-Marchand, the Supreme Court was faced with competing submissions on whether “child luring” and “sexual interference” should have been imposed concurrently or consecutively. In that context, the Court agreed with the approach of the sentencing judge to determining the sentence for each offence separately, and then deciding whether they should be served concurrently or consecutively. The principle of totality to determine the global sentence would be applied last to determine overall culpability. [16]

[58] In Ontario, there is appellate support that I may begin by determining an overall fit sentence and then impose individual sentences adding up to the total. [17] The application of totality to consecutive sentences requires the court “to ensure that the cumulative sentence does not exceed the overall culpability of the offender.” [18]

[59] In this case, the application of the principles of equity and restraint require that I not land in the top end of the 8–10-year range submitted by the Crown. This, despite accepting that a global sentence of more than a decade may well have been warranted. D.L. entered his pleas of guilt, believing the Crown had embraced a range of 8-10 years.

[60] Were it not for delays out of the offender’s control, he would have been sentenced before the appellate guidance in Parker and Scott supporting a much lengthier sentence than expected for “manufacturing child pornography”. It was reasonable for the offender and his counsel to trust that I may exercise some further restraint in his favour from the original Crown position of 8-10 years.

[61] There is significant factual and contextual overlap between the “sexual interference” and “manufacturing child pornography” offences here. For all the reasons identified, I will determine the overall fit sentence first. I find a proportionate, restrained total sentence must be at least 8 years in this case. For the equity and restraint factors referenced, I will not impose a higher global sentence.

[62] Drawing rhetorically from the dated but still applicable 2002 guidance from D.D., the facts supporting the “sexual interference” here warrant a penitentiary sentence closer to the upper single digits. D.L. was in the most powerful and sacred position of parental trust, short of an incest case between biological parent and child.

[63] His highly vulnerable child victim aged from 13-15 during the period of abuse, which was “regular and persistent”. D.L. was 40 years old when the abuse began, and the gap in age is relevant and aggravating. [19] The abuse involved several acts of full intercourse, bondage instruments and was openly videorecorded, punitively compelling her to process it both emotionally and intellectually. While we have not uncovered analogous facts in the case law, there is post-Friesen jurisprudential support for an upper single digit quantification for such a “sexual interference” offence. [20]

[64] The “manufacturing of child pornography” offence in this case has unique aggravating factors that I have identified. D.L. was the functional father of the child victim, and he repeatedly videorecorded his sexual abuse of her, which included her first encounters with vaginal intercourse and the use of sex toys and bondage instruments. This was her primary introduction to sexual activity as a child. I accept the collection was relatively small and that there is no evidence he attempted to distribute or upload them.

[65] I find the Crown quantification of 12 months consecutive for the “manufacturing” offence was fair at the time, but offered before Scott and Parker were released. I find a low penitentiary sentence is required on this confluence of facts, even after restraint is applied. Totality may bring it within the reformatory in this unusual case.

[66] I have considered and weighed all mitigating factors as qualified, including the guilty plea, the risk assessment, and the time spent on “house arrest” bail. Any further quantification of time the offender has spent under harsh conditions of pretrial detention or bail would skew the proper calculation of the fit sentence.

V. Conclusion

[67] I will impose a global custodial term of eight (8) years. To respect the proposed apportionment submitted by the Crown, I will impose a six-and-a-half (6.5) year sentence for “sexual interference”. He will serve a consecutive sentence of 18 months for the “manufacturing child pornography” offence.

[68] The sentence will be as follows:

(1) 6.5 years for “sexual interference” (a) 21 actual days of presentence custody (b) Less “ Summers ” (or 1.5-1) credit for 32 days (c) Remaining time to be served: 2338 days (2) 18 months consecutive for “Manufacturing Child Pornography” (3) Total sentence remaining to be served: 2,883 days (7 years, 11 months) (4) Recommendation: “Child sexual offending relapse prevention” program; (5) D.N.A. – Both primary designated offences; (6) S.O.I.R.A. order – 20 years; (7) S.161 “child access” prohibition – 5 years, with terms as agreed; (8) S.743.21 – “No contact” with A.W. while in custody; (9) S.109 weapons prohibition – for sexual interference: 10 years

[69] My thanks to counsel.

Released: December 11, 2024 Signed: Justice A. A. Ghosh

Footnotes

[1] R. v. K.P., 2024 ONSC 2863 [2] R. v. Downes, 2006 ONCA 3957; R. v. Ijam, 2007 ONCA 597; R. v. Marshall, 2021 ONCA 344 [3] R. v. Friesen, 2020 SCC 9 [4] Friesen, 2020 SCC 9, para. 109 [5] Friesen, 2020 SCC 9, paras. 148-154 [6] R. v. Wright, 2024 ONCA 516, paras. 8, 9 [7] Friesen, 2020 SCC 9, paras. 111-112 [8] R. v. D.(D.), 2002 ONCA 44915; R. v. S.(J.), 2018 ONCA 675; R. v. Woodward, 2011 ONCA 610 [9] D.(D.), 2002 ONCA 44915, para. 44 [10] Friesen, 2020 SCC 9, para. 120 [11] R. v. Scott, 2024 ONCA 608 [12] R. v. Scott, 2024 ONCA 608 [13] R. v. Scott, 2024 ONCA 608, para. 176 [14] R. v. Parker, 2024 ONCA 591, paras. 31-32 [15] R. v. Parker, 2024 ONCA 591, para. 39 [16] R. v. Bertrand-Marchand, 2023 SCC 26, paras. 89-98 [17] R. v. Ahmed, 2017 ONCA 76, para. 79; Friesen, 2020 SCC 9, para. 157 [18] R. v. Ahmed, 2017 ONCA 76, para. 79; R. v. M.(C.A.), [1996] 1 S.C.R. 500, para. 42 [19] R. v. Bertrand-Marchand, 2023 SCC 26, para. 87 [20] R. v. Hilal, 2023 ONSC 4270; R. v. Hughes, 2023 ONCJ 444