Warning and Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-03-05
COURT FILE No.: Windsor 21-11241
BETWEEN:
His Majesty the King
— AND —
M.B.
Before Justice S. G. Pratt
Heard on 17 January 2025
Reasons for Judgment released on 5 March 2025
Zachary Battiston ................................................................................ Counsel for the Crown
Angelo Minardi ........................................................................... Counsel for the Defendant
Pratt J.:
Facts
[1] On 17 January 2025, the Offender M.B. pleaded guilty to one count of sexual interference on the Victim D.D. After hearing submissions, I reserved my decision. These are my reasons for sentence.
[2] The Offender is the uncle of the Victim. At the relevant time, the Victim was four years old, and the Offender was 19.
[3] J.S. and T.D. are the Victim’s parents. They share custody of the Victim. On 4 May 2021, Ms. J.S. attended the Essex OPP detachment and reported that the Victim had been sexually assaulted by the Offender. At the time Ms. J.S. learned of the incident, the Victim was in Brampton with her father. The Victim had told her father of the assault, he relayed it to Ms. J.S., and she told police.
[4] Mr. T.D. sent Ms. J.S. three videos of the Victim describing what had happened.
[5] The Victim told her father that her uncle had “peed” on her. In one video, she said she saw his “butt tail”, which is her term for penis, and that it had a hole in it. She said she took it out of his pants and held it. He tried to touch her with it, but she moved away.
[6] In another video, she said the Offender “peed on her butt hole”. This is her term for vagina. While describing what happened, she pointed to her vaginal area.
[7] In the third video, she rolled up a tissue and said it looked like the Offender’s butt tail. She said he gave her chocolate.
[8] She also told Mr. T.D. that the pee from the Offender was white.
[9] Ms. J.S. spoke to her mother R.B., who is also the Offender’s mother. She asked if she knew anything about the situation as the Offender lived with her. Ms. R.B. questioned the Offender, who admitted the allegations.
[10] Police spoke with Mr. T.D. He relayed more of what the Victim told him. She said they were in the basement of the Offender’s residence and his mother was upstairs. He had his pants down and was touching his butt tail. She said it was hard and held up her finger to illustrate. He peed on her and then gave her chocolate, telling her not to tell anyone.
[11] I was also advised that the Offender gave a statement to police where he admitted ejaculating on the Victim, though it wasn’t clear where on her body he did so. The Crown accepted that qualification.
Positions of the Parties
[12] The Crown seeks a jail sentence of two years, followed by three years of probation. It points to the numerous aggravating factors present and argues that a lengthy jail sentence is required. Counsel for the Offender advocates for a conditional sentence of imprisonment of two years less a day. In the alternative, counsel seeks a custodial sentence of 14-18 months. The imposition of relevant ancillary orders was not disputed.
The Pre-Sentence Report
[13] I have had the benefit of a Pre-Sentence Report (PSR) prepared by Probation Officer Jocelyn Hurst. It is lengthy and detailed, and I am grateful for it.
[14] The PSR describes a somewhat complicated upbringing in that the Offender never met his biological father but believed his stepfather to be his biological father until he was 17 years old. The Offender has several stepsiblings but is not close with them. At most, he said he had an “okay” relationship with two of his sisters.
[15] Growing up, the Offender had few close relationships. His relationship with his mother, while at times difficult as he grew, has strengthened in recent years. There was some Children’s Aid Society involvement throughout the Offender’s childhood, including one apprehension when he was 11. The concern of the Society at that time related to his mother’s mental health and possible substance abuse.
[16] The Offender’s stepfather, J.H., described the Offender as pleasant but a loner. Attempts to socialize him were unsuccessful. He said the Offender helps around the house when asked but otherwise avoids interaction until he “demands dinner”.
[17] Ms. J.S., the Victim’s mother and Offender’s sister, was also interviewed for the PSR. She recalled living with the Offender until she became a Crown ward at the age of 13. She said their parents were passive and that the Offender was never taught basic life skills. Another sister, J.G., expressed concerns about the relationship between the Offender and his mother, suggesting she has “overcompensated” for him in ways that are not age appropriate.
[18] The Offender has completed Grade 11 and is a half-credit short of graduating. Education was not easy for the Offender as he reported being diagnosed with Disorder of Written Expression, Oppositional Defiance Disorder and ADHD when he was six years old. A psychological report completed by the school board in 2017 confirmed these diagnoses but said they were made in 2013, when the Offender would have been 11. In addition, there were concerns about the Offender’s attendance at school. The Offender was given an Individual Education Plan as testing showed his abilities merited additional attention. He has attempted to complete Grade 12 three times but has not yet succeeded.
[19] Regarding his plans for the future, the Offender offered multiple ideas to the PSR author. He said he wanted to become a garbage collector or long-haul truck driver, but does not have a driver’s license and has no plans to acquire one as driving scares him. He also said he “may eventually stock shelves one day”, and that he wants to become a professional video game streamer.
[20] He is currently supported by Ontario Works. He applied for a disability pension but was denied as the Ontario Disability Support Program said he did not suffer from a disability that precluded employment. He said he pays $500 a month in rent to his parents and spends the rest of his money on video games, toy guns, food, and energy drinks. “Who is going to stop me?”, he commented. He said his parents pay his other expenses.
[21] There are no concerns with his substance use. There is, however, serious and widespread concern about the amount of time the Offender spends online playing video games. He has been diagnosed with a video gaming disorder. He became preoccupied with video games at age 10 and the problem has only worsened since. A psycho-vocational report from 2022 states, “He is essentially unwilling to relinquish his video console…The condition impresses as involving a severe level of impairment and warrants appropriate treatment.” This area is made more troubling by the information provided by Ms. J.S. that the Offender has engaged in “hardcore, extremely graphic and disturbing” online conversations that she said included talk of rape. She noted the Offender has always been secretive about his internet use. He acknowledged to the PSR author that he continued to view pornography once per day, calling it a “preventative for stress”.
[22] Ms. J.G. expressed concern about the Offender spending all his time in his room and exhibiting “hoarding tendencies”. She said he had difficulty maintaining personal hygiene. Ms. J.S. recalled a time when the Offender was so unwilling to leave his video games that he defecated in his room and hid it until the smell was unbearable. It was then cleaned for him.
[23] The Offender’s mother told the author that she did not believe he functioned at his proper age level. She said he still, at age 21, had to be “persuaded to care for his basic hygiene and change his clothes”.
[24] The PSR continues with reports of anger and anxiety. It is clear from the PSR that the Offender suffers from multiple mental health conditions that have received little treatment.
[25] Mr. T.D., the Victim’s father, told the author that he sees the Offender as angry and manipulative. He also expressed concern about the Offender’s relationship with his mother, saying he seemed overly dependent on her and that she would simply give in to him when he demanded something as it was easier than dealing with his behaviour.
[26] I note that no issues of anger or tantrums arose when the Offender was in foster care. The PSR states that after the first night, he “quickly adapted, was easily comforted, and made friends effortlessly.” This drastic change lends credence to the idea that the Offender’s environment isn’t doing him any favours. This is further evidenced by the PSR author noting that when she interviewed the Offender in the presence of his mother, he was “guarded and uneasy sharing information.” In their second interview, which was one-on-one, she said he “exhibited more relaxed mannerisms, his eye contact improved, a professional relationship was easily developed, and he became more expressive, more talkative, and demonstrated an increased willingness to share more intimate details of his life for the purpose of this report.”
[27] Regarding the offence before this Court, the Offender said he felt the Victim did the right thing by telling her parents. He said he had blocked the incident out of his memory, but also that following the incident he was fearful of telling anyone and was relieved when he was finally able to admit it. I am not sure how those two positions can be reconciled.
[28] He also places blame on Ms. J.S. He said she “took it too far” by going to police and “went a little overboard”. He also suggested she went to police out of jealousy over him being the youngest child. Candidly, the making of such a suggestion reveals an troubling lack of insight into the seriousness of his crime. It shows, in my view, an extremely immature appraisal of his situation.
[29] That said, he also described his behaviour as unforgivable and said he is ashamed of what he did. His stepfather said the Offender has been apologetic since the offence but has not taken any steps to change his circumstances.
[30] At the time of the plea, the Crown included in the facts allegations that this wasn’t the first time the Offender had behaved inappropriately with children. That allegation was not admitted, and the Crown advised it was not relying on it. The PSR, however, told a different story. This is from page 11 of the report:
Several collateral sources interviewed for the purpose of this report, including the Offender, reported previous incidents of sexually inappropriate behaviour perpetrated by the Offender toward other children within the family between his ages of approximately ten and fourteen. The Offender reported that he once exposed his gentiles [sic] to two of his young nieces. (Emphasis added)
[31] While other incidents were not admitted in court, the Offender himself told the PSR author about them. I do not sentence the Offender for these other incidents, but I also cannot ignore them. His own words, relayed to the PSR author, must surely impact on my assessment of the risk he poses going forward. To be clear, the Offender will be sentenced only for his conduct related to the Victim. That sentence, however, must be fashioned according to all surrounding relevant circumstances. How could it be otherwise?
[32] Overall, I find the PSR to be neutral or negative. While the Offender has the support of his mother and stepfather, I am not convinced that support is especially helpful to him. It appears the Offender’s stunted emotional and social development has been enabled rather than remedied. The Offender’s daily life has not changed appreciably for years, and he seems entirely content with that. He acknowledged in the PSR that he lacks basic life skills, but also showed no interest in obtaining them. His plans for the future include professional video gaming, which would simply continue and build on the behaviour that has already led to a diagnosis of a mental disorder. He faces other mental health challenges as well, including Social Anxiety Disorder, but is not interested in pursuing treatment. His response to the offence before the Court is uneven and minimizes its impact. He said the Victim did the right thing by going to her parents, but that her mother went overboard in calling police.
[33] The PSR has not provided much cause for optimism.
The Victim Impact Statement
[34] Ms. J.S. filed a Victim Impact Statement. It describes not only how the offence has impacted her, but also the Victim herself. Ms. J.S. speaks of the fear she now has for her daughter, and of the guilt she now feels as a parent. She has lost contact with other family members and feels alone in dealing with what happened.
[35] I have seen many victim impact statements filed by the parents of sexual abuse victims. All have spoken of the guilt they feel for allowing their children to be victimized. I say to Ms. J.S. what I’ve said to them: you did nothing wrong. The responsibility for D.’s abuse falls entirely on the Offender. When you learned of it, you went to police. You did the right thing in a terrible situation.
[36] The VIS also relates the ongoing issues faced by the Victim. While according to Mr. T.D. she appeared unaffected by the abuse at the time she disclosed it, she is now in therapy as she was found exposing herself to two boys at school. I will have more to say about the future impacts of sexual abuse later in these reasons.
The Principles of Sentencing
[37] Section 718 of the Criminal Code directs that the fundamental purpose of sentencing is to protect society and contribute to a respect for the law. This purpose is achieved through sentences that incorporate objectives like denunciation, deterrence, rehabilitation, and reparation.
[38] Beyond this general statement, Parliament has enacted specific sections that are particularly relevant in the present case.
[39] Section 718.01 directs a sentencing court to give primary consideration to denunciation and deterrence when an offence involves the abuse of a child.
[40] Section 718.2(a) provides a non-exhaustive list of factors deemed to be aggravating features. Several are applicable to this case:
- (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,
- (ii) 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,
- (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
- (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
- (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
[41] Further, s. 718.1 requires that any sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender. S. 718.2(d) mandates that an offender should not be deprived of liberty if other less restrictive sanctions may be appropriate, and s. 718.2(e) states that all available sanctions, other than imprisonment, should be considered for all offenders.
[42] The Victim in this case was just four years old at the time of the offence. She was a young child visiting the home of her grandmother and uncle. This should have been a place of safety. Her abuse was a violation of the trust placed in the Offender by her mother. Any sexual offence is serious; one committed in circumstances like these is even more so.
[43] In R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, the Supreme Court of Canada spoke of the impact sexual offences can have on children. In the decision’s opening paragraph, Chief Justice Wagner and Justice Rowe said:
Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year.
[44] The Court also noted that the impact on victims of sexual abuse can be immediate or delayed. At paragraph 80, the Court stated:
During childhood, in addition to the inherent wrong of interference with their bodily integrity, children can experience physical and psychological harm that persists throughout their childhood (Woodward, at para. 72; Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 123, per Iacobucci J.). These forms of harm can be so profound that children are "robbed of their youth and innocence" (D. (D.), at para. 10).
[45] In adulthood, child victims may have difficulty forming or maintaining relationships, may be at an increased risk of addiction or mental health challenges, or may be more likely to commit sexual violence themselves. This is not to say that the Victim’s parents should expect any of these things to come to pass. I mention it only to reflect the words of the Supreme Court and to emphasize the seriousness of child sex offences.
[46] In Friesen, the Court also noted the prevalence of children being victimized at home or by someone they know and trust. As the Court stated, more than 74% of child and youth sexual offences reported to police in 2012 took place inside a private residence. The offences were committed by someone known to the victim in 88% of cases.
[47] It is concerning that the Victim was found engaging in inappropriate behaviour at school with other students. My sincere hope is that the therapy she is now receiving will mitigate the impact of this offence and head off any future concerns.
[48] Counsel for the Offender has argued for a conditional sentence of imprisonment. That form of sentence is governed by s. 742 and onward. Section 742.1 states as follows:
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community 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;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence under any of the following provisions:
(i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),
(ii) section 269.1 (torture), or
(iii) section 318 (advocating genocide); and
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.
[49] Nothing in the section immediately prohibits the imposition of a conditional sentence. It is not an offence punishable by a minimum sentence and it is not an enumerated or specified ineligible offence. I will consider the applicability of paragraph (a) later in these reasons.
Caselaw
[50] The Crown filed four cases in support of their position, one of which was the Friesen case mentioned above.
[51] The case of R. v. B.M., 2023 ONCA 224 was a sentence appeal where that offender was given a conditional sentence for the longstanding sexual abuse of two children. Factually, this case is very different from the case at bar. Justice Harvison Young emphasized, however, at paragraph 3, that in general, conditional sentences in the case of sexual offences against children should be reserved for “rare, exceptional cases”. In the result, a conditional sentence of two years less a day was replaced with a seven-year sentence. I note the Crown in that case was seeking a four-year sentence, and that the panel hearing the appeal took the unusual step of advising counsel that sentence could be seen as too lenient. It sought further submissions and exceeded the Crown’s position significantly.
[52] The case of R. v. E.F., 2021 ABQB 639 was a trial decision where a father was sentenced for holding his 14-year-old daughter down, lifting her shirt, and touching her breasts. After reviewing the circumstances of the offender and the principles enunciated in Friesen and other cases, the court imposed a 24-month sentence with credit for 4 months of time served.
[53] I am reluctant to place disparate cases on a continuum, particularly when they relate to child victims, but it could reasonably be argued that E.F.’s conduct was objectively less invasive and violative than the Offender’s. I do not want to be taken as minimizing the impact of E.F.’s conduct on his victim, set out in paragraph 17 of that decision, but the younger age of the present Victim, together with the more intrusive nature of the contact, would seem to make the present case potentially more serious.
[54] Finally, in R. v. R.I., 2022 ONSC 1615, the offender touched his stepdaughter multiple times over a number of months. The conduct included putting the victim’s hand on his penis, touching the victim’s breasts and vagina both over and under her clothing, and rubbing his penis on her buttocks and vagina. She was ten years old at the time. Following a trial (where he was acquitted of sexually assaulting the victim’s sister), the offender was sentenced to four years’ jail.
[55] For the defence, counsel relied on R. v. S.E., 2023 ONSC 6259. In that historical case, the offender was the victim’s supervisor at a restaurant. When she was between 14-16 years old, they had numerous instances of sexual contact that included full intercourse. Given his position of authority over her in the context of her employment, she was incapable of consenting. Following the commencement of trial, the offender changed his plea to guilty. The Court took his background into consideration. I observe that some of the factors facing S.E. are very similar to the factors facing the Offender, such as his youthful age, academic difficulties, and mental health issues. The Court sentenced him to a conditional sentence, finding him to be a low risk to re-offend and that exceptional circumstances existed such that incarceration would be “inappropriate”. The Court believed conditions could be imposed to make the sentence sufficiently punitive.
[56] The case of R. v. K.K., 2020 ONSC 7198 dealt with an offender who was the grandfather of the victim’s friend. On several occasions over a two-year period, he would touch her breasts from behind. On one other occasion, he thrust his pelvis onto her body for about a minute while she was in bed. After trial, the Crown sought a sentence of 18-23 months custody while the defence sought a conditional sentence. Relying heavily on the offender’s age, poor health, and the ongoing Covid pandemic, the Court imposed a conditional sentence of two years less one day.
[57] The remainder of the defence cases dealt with situations where sentences of incarceration were imposed, ranging from 14-18 months in length.
Mitigating Factors
[58] As serious as the offence is, the Offender is not without some mitigating factors.
[59] First, he is a young man. At just 23 years old, he has a long life ahead of him. By no means should anyone give up on the potential for rehabilitation and a positive future.
[60] Second, he has expressed remorse for his actions. This is implicit in his guilty plea, and explicit in his statements to the PSR author. He says he feels shame for what he has done. While he also disagrees with the Victim’s mother calling police, that doesn’t mean his remorse isn’t real. He just wishes she’d handled it differently. That speaks to a lack of insight into the seriousness of his behaviour, but it doesn’t mean he isn’t remorseful.
[61] According to a letter from the Canadian Mental Health Association, the Offender is now under the care of a doctor. That is a positive step. The letter also states that the Offender was to be referred to a psychiatrist for further treatment, though I did not hear if that has actually happened.
[62] Finally, he has no prior criminal record.
Aggravating Factors
[63] I have already noted the statutorily aggravating factors: the youth of the Victim, the position of trust, that the Victim was a family member, and that the offence has had a significant impact on the Victim.
[64] While I cannot take an element of the offence as an aggravating factor, I can consider how the offence was committed in determining a fit sentence.
[65] The offence of sexual interference requires only that an offender touch the body of a person under the age of 16 years, directly or indirectly, for a sexual purpose. A broad range of conduct could meet this requirement. The offence includes anything from a brief touch to full intercourse. It could also involve any age of victim, from birth to the day before their 16th birthday. Such a broadly worded offence allows a sentencing court to consider the specific circumstances before it as aggravating factors in appropriate cases.
[66] The case before me goes beyond touching. At the Offender’s urging, his four-year old niece held his erect penis. He tried to touch her with it. He then ejaculated on her. Afterward, he gave her chocolate and told her not to tell anyone. Short of including some form of intercourse or penetration, this is one of the most serious examples of sexual interference.
Analysis
[67] I begin my analysis by considering the appropriateness of a conditional sentence of imprisonment.
[68] The Crown is seeking a two-year sentence. That number is within the accepted range for an offence like this. If two years is within the range, I must conclude that two years less a day is as well. This means a conditional sentence is theoretically available to the Offender.
[69] Section 742.1, referenced above, sets out the requirements to be met for the imposition of a conditional sentence. The key paragraph in this case is s. 742.1(a). Again, it states a conditional sentence can only be imposed if:
(a) the court is satisfied that the service of the sentence in the community 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;
[70] I have considered whether a conditional sentence in this case would meet this test. Would it endanger the safety of the community? Would it be consistent with the fundamental purpose and principles of sentencing? For the reasons that follow, I find it would not.
[71] As to the safety of the community, I find it could be possible to craft a conditional sentence in such a way as to protect the community. House arrest with strict conditions not to be around children could address this risk, even taking into account the Offender’s admitted past misbehaviour with other young family members. There is no suggestion that the Offender went looking for the Victim; this appears to have been a crime of opportunity. Keeping him under house arrest and prohibiting him from being near children could mitigate any risk he currently poses.
[72] It is on the second requirement that a conditional sentence falters. In my view, it would not be consistent with the fundamental purpose and principles of sentencing to impose a conditional sentence on this Offender. I say this for several reasons.
[73] Firstly, the actions of the Offender are gravely serious. He used a child barely out of her toddler years as a sexual object. Rather than be a part of the village that teaches, protects, and cares for her, he chose to use her for his own sexual pleasure. Afterward, he bribed her with chocolate to keep her quiet. He disrespected her autonomy and exploited her vulnerability. Years later, she is now in therapy after being sexually inappropriate with other schoolchildren. The gravity of his crime is obvious and lasting.
[74] Parliament has placed denunciation and deterrence as the top priorities in sentencing child abuse offences. I should not craft a sentence based exclusively on those principles, and indeed must still consider rehabilitation and reintegration, but I cannot allow any other sentencing concept to displace denunciation and deterrence as the primary considerations.
[75] I agree that a conditional sentence can have a punitive impact on an offender. Strict conditions that curtail a person’s liberty can achieve those paramount principles of denunciation and deterrence. Whether they would have that impact in a given case is fact-specific.
[76] In the present case, I cannot help but observe that a conditional sentence of imprisonment would not change the Offender’s daily life to any appreciable degree. Before the offence, he hardly ever left his house. Since the offence, according to the PSR, that hasn’t changed. I heard in submissions that he has now moved into his own apartment. That is a positive step, but I haven’t heard of any change to his lack of motivation to leave his residence or his ongoing anxiety at doing so. A conditional sentence would only codify what he’s already doing. It would not have any noticeable punitive impact on him. It would certainly not have the punitive impact it would need to have to make it a fit sentence in a case as serious as this.
[77] The caselaw provided where conditional sentences were imposed are both trial-level decisions and therefore not binding on me. They are also factually distinguishable. The S.E. decision involved a much older victim (though still a youth), but full intercourse. In that case, the court found exceptional circumstances existed that made a conditional sentence appropriate. The K.K. decision appears to have turned to a great extent on the offender’s poor health and the Covid pandemic.
[78] I recognize the mental health challenges faced by the Offender, and the likely difficulty incarceration would present. Those factors can be addressed by the selection of the proper correctional facility and the offer of extensive programming while in custody. In my view, this is not one of the rare or exceptional cases where a conditional sentence is appropriate for the sexual abuse of a child.
[79] For this offence and this Offender, I find a conditional sentence would not meet the fundamental purpose and principles of sentencing.
[80] Having considered the appellate guidance provided in Friesen and subsequent decisions, I find the appropriate sentence in this case to be as follows:
The Offender will be sentenced to jail for two years less one day;
While in custody, there will be an order under s. 743.21 prohibiting contact with D.D., J.S., or T.D.;
On release from custody, the Offender will be bound by a probation order for three years with the following conditions in addition to the statutory conditions:
(a) Report in person to a probation officer within two working days of your release from custody, and after that at all times and places as directed by the probation officer or anyone authorized by a probation officer to assist in your supervision.
(b) Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request.
(c) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means, with D.D., J.S., or T.D.
(d) Do not be within 100m of any place where you know any of the persons named above to live, work, go to school, or any place you know them to be except for required court appearances.
(e) Do not be in the company of or communicate directly or indirectly, by any physical, electronic, or other means with males or females under the age of 16 years, unless in the presence of another person approved of in writing and in advance by the probation officer.
(f) Do not possess any weapons as defined in the Criminal Code.
(g) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, for psychiatric or psychological issues and life skills.
The Offender will provide a sample of his DNA for inclusion in the national DNA databank to the Essex Ontario Provincial Police on or before 31 March 2025;
There will be a s. 109 weapons prohibition for a period of ten years;
There will be an order under paragraphs a, b, and c of s. 161 for a period of ten years;
There will be an order for registration under the Sex Offenders Information Registry Act for a period of twenty years.
Given the custodial sentence, I will waive the Victim Surcharge.
[81] To the Offender, I say this: I said earlier that you are a young man with a lot of life ahead of you. Do not let this incident define who you are. Get the help you need and start building a life you and your family can be proud of.
[82] To the Victim and her family, I wish you the best and hope that you can re-build the life you want.
[83] Lastly, there will be a recommendation that the Offender serve his sentence at either St. Lawrence Valley Correctional and Treatment Centre or the Ontario Correctional Institute.
Released: 5 March 2025
Signed: Justice S. G. Pratt