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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-01-14
COURT FILE No.: Pembroke 21-0533
Between:
His Majesty the King
— AND —
K.L.
Before Justice J.R. Richardson
Heard on August 30, December 11, 2024
Reasons for Judgment released on January 14, 2025
Lori Crewe — counsel for the Crown
K.L. — on his own behalf
Introduction
[1] JB was a Grade 7 student interning at the radio station where K.L. worked. I found that K.L.:
a) Kissed JB while they were at the radio station. After the kiss, K.L. withdrew and admitted that he should not have done that.
b) Kissed JB on the couch at the residence of a mutual friend and then had sexual intercourse with JB.
[2] The issue in this case is what the appropriate sentence should be.
[3] When JB testified, she was 33 years old. The offences took place when she was 12 or 13 years old. When these offences took place, the age of consent was 14 years old. The accused would have been between 31 and 33 years old.
[4] The evidence at trial is that JB left the Renfrew County area when she was approximately 16 years old. She returned in 2021. She reported the incident after she moved back. She stated that she reported the incident because she saw the accused following her when she was riding her bike. She also saw him in his car near her residence when her own children were playing outside.
[5] K.L. did not testify at trial.
[6] I heard this trial in late 2022 and early 2023. I rendered judgment on February 15, 2023. That judgment is now reported at R. v. K.L., 2023 ONCJ 247.
[7] I ordered the preparation of a Pre-Sentence Report and a report pursuant to section 21 of the Mental Health Act.
[8] In the meantime, K.L. discharged his trial counsel. There were also a number of adjournments to facilitate K.L. attending to meet Dr. Gojer, who prepared the section 21 report and to allow for K.L. to make inquiries with respect to obtaining counsel. At the end of the day, K.L. indicated that he wished to represent himself.
The Pre-Sentence Report
[9] K.L. is 55 years of age. He has one prior conviction for Assault, which was registered in Owen Sound, Ontario on February 26, 1998.
[10] He was an only child who grew up in Toronto. He was raised by his mother. His father left when he was three. He had some visits when his father left.
[11] K.L. reported that his mother did not always work. She went through a number of boyfriends. She was physically abusive to K.L. There were periods of time when K.L.’s grandparents raised him, and although they were strict, they were loving and they rarely physically disciplined him.
[12] When K.L. met with the author of the pre-sentence report, he reported that he and his mother’s relationship is somewhat estranged. His assault charge involved him hitting his mother. He insists that he was defending himself from her.
[13] He completed his probationary period without breach or incident although the report indicates what I consider less than satisfactory engagement on K.L.’s part in relation to counselling. Transportation was noted to be a problem.
[14] K.L. has had at least one long-term relationship. It ended about ten years ago after an argument between his girlfriend and his mother. K.L. has been single since.
[15] K.L. denied having any learning disability, but indicated that he attended “special” classes with a low student-teacher ratio. He reported completing Grade 11, attending community college and later completing his high school diploma.
[16] He has worked doing farm work, as a military reservist, a handyman, a groundskeeper for a carnival, in a body shop, advertising, sales, janitorial work and a bicycle repair man. While he was working for the carnival, he suffered a closed head injury as a result of a motorcycle accident. He received some compensation for his injuries which he lived off until it ran out in 1995.
[17] He received social assistance until March 2023. His social assistance ended due to a move from the Owen Sound area to Renfrew County and he did not intend to reapply.
[18] K.L. stated that he has not used alcohol in over ten years. He may have had a drinking problem when he was young but stopped. He attended AA for a while.
[19] K.L. does not accept responsibility for the offence. He states that the allegations are false. He asked the author of the pre-sentence report to write to the King to request a pardon. He told her that once his name is cleared he is going to go to Ukraine to help people.
[20] The author of the pre-sentence report indicated that K.L. was a past client of mental health services in Owen Sound. Unfortunately, that agency apparently did not reply to requests for information. K.L. stated that he has attended a drop-in centre for individuals with mental health illnesses. He denies ever being diagnosed with a mental illness.
[21] The author of the pre-sentence report interviewed K.L.’s cousin, DM.
[22] DM stated that K.L. told her that what occurred with JB was all a misunderstanding and JB was motivated by the “me too” movement.
[23] DM stated that K.L.’s mother was emotionally abused by his father and that is why they separated. To her knowledge, K.L.’s mother was a teacher. After the separation, they moved around a lot and K.L.’s mother changed jobs a lot. She confirmed what K.L. stated about numerous boyfriends. She did not recall that K.L. lived with his grandparents from time to time. DM hypothesized that one of K.L.’s mother’s boyfriends harmed K.L. when he was younger.
[24] There might be something to this. K.L. told the author of the pre-sentence report that when he was in Grade 11 he painted a school locker because his step-father, who was a cross-dresser, attempted to dress K.L. in women’s clothing.
[25] DM stated that K.L. holds a great deal of anger towards his mother.
[26] DM stated that K.L. is artistic and musical. He plays music at the church he attends. He paints, writes, plays music and is registered as a songwriter.
[27] I will comment more about this below, but K.L. is something of a hermit and a Luddite. DM reported that at one time he lived in a cabin without electricity or heat.
[28] DM reported that K.L. was injured in a motorcycle accident. She believed that he had some cognitive issues as a result of his head trauma.
[29] DM was concerned that K.L. had cancer which he was doing nothing about. He was supposed to have a biopsy at the Owen Sound hospital but did not follow through. She also expressed concern about issues with his teeth.
The s. 21 Report
[30] I have not repeated information already set out in my review of the pre-sentence report.
[31] Dr. Julian Gojer is the Acting Clinical Director of the Royal Ottawa Hospital. Timely preparation of the section 21 report was delayed by transportation and communications difficulties. Dr. Gojer’s first report is dated September 7, 2023.
[32] K.L. denied committing the offence when he was interviewed by Dr. Gojer. His answers, however, seemed odd. He told Dr. Gojer that the charges came about as a result of “legal warfare”. He stated that there were a number of bicycle thefts in town and he was asked by some of his clients to investigate them. He discovered that someone driving a van was responsible for the thefts. He determined that the owner of the van was JB’s husband.
[33] K.L. reported that his father was still alive and living in Oakville.
[34] He repeated the same information that he gave to the author of the pre-sentence report regarding his upbringing. He reported that the cross-dressing incident took place when he was 10. He stated that his mother beat him as a result of that incident.
[35] He reported that he learned how to play cello, banjo, ukulele and guitar in high school.
[36] He studied computers and logistics management at George Brown College.
[37] He was more forthcoming with Dr. Gojer about his relationship history. He stated that he started dating when he was 18. He had a brief relationship while in college, another relationship that ended after his motorcycle accident (she was also apparently a passenger on the motorcycle when that accident took place), a common law relationship for two and a half years which ended when she decided to move to Toronto.
[38] He had another common law relationship that ended after she became involved with another man. He told Dr. Gojer that the woman put a curse on him that he would not be happy with a woman.
[39] After this he dated casually. He had a relationship with a woman from Halifax in 2016.
[40] He estimated that he has 12 different sexual partners.
[41] He identifies as heterosexual. He denies interest in children, teenagers, sexual violence, fetishes, BDSM, bestiality, exhibitionism, toucherism, frotteurism or cross dressing.
[42] He is a smoker. Consistent with the pre-sentence report, he denied use of alcohol. He reported using cannabis occasionally.
[43] He told Dr. Gojer that he was asthmatic when he was a child. He reported not one but two head injuries due to motorcycle accidents which took place the same year. He reported seizures after that. These seizures involve a toe and hand having contractions. He agreed that he has been investigated for cancer but did not follow up with further assessment.
[44] Dr. Gojer reported that he was pleasant, easy to interview, but guarded.
[45] He concluded that K.L. does not suffer from any major mental illness.
[46] Dr. Gojer indicated that, “He seems to have grown up lacking affectionate attachments. His offending can be best understood as a boundary violation and not indicative of sexual deviation.”
[47] He recommended that K.L. attend at the Royal Ottawa Hospital for neuropsychological assessment and recommended assessment for a seizure disorder.
[48] I was surprised by the brevity of the report. Transportation to Ottawa was an issue for K.L. and the report was completed remotely. As the Crown would later point out, the report relies almost exclusively on K.L.’s self-report. Additionally, there is no meaningful assessment of his personality and mental make up through the various psychometric instruments that one normally sees in reports of this nature. K.L. also did not undergo phallometric testing.
[49] I drew this to Dr. Gojer’s attention and apparently K.L. was ultimately subjected to further testing. Dr. Gojer wrote a short letter, dated May 10, 2024 in which he stated:
Mr. [K.L.] was referred for a further evaluation with respect to sexual behaviours. He was seen in the laboratory and underwent erotic preference testing. His overall responses were low and no conclusion could be drawn with respect to the presence of pedophilia in a laboratory setting.
[50] Once again, I was surprised by the lack of thorough psychometric evaluation.
[51] I also remain concerned that Mr. Lillico may be subject to some sort of cognitive deficit which would reduce his moral blameworthiness.
Evidence of Dr. Gojer – August 30, 2024
[52] I asked that Dr. Gojer attend for examination and cross-examination. He testified on August 30, 2024.
[53] He testified that phallometric testing has its limitations and is only used to make clinical decisions.
[54] He stated that based on the tests that he completed, he did not diagnose K.L. with pedophilia.
[55] Dr. Gojer was of the view that K.L. has a problem with boundaries, which can be addressed in counselling for inappropriate sexual behaviours, trauma and impulse control. Some of this counselling could be done on an outpatient basis through the Royal Ottawa Hospital.
[56] With respect to sentencing options, Dr. Gojer noted that the federal system has a number of sentencing options including Warkworth Institution and Bath Institution. If sentenced to a penitentiary, K.L. would be classified at Millhaven Institution, which generally takes about 90 days.
[57] Provincially, Dr. Gojer noted that K.L. could be recommended to serve his sentence at the Ontario Correctional Institute (OCI) in Brampton or the St. Lawrence Valley Treatment Centre in Brockville.
[58] In order to be accepted at OCI, K.L. would have to receive a sentence of nine months.
[59] St. Lawrence Valley is designed for inmates with a history of trauma and major mental illness. K.L. would not be accepted for admission there unless Dr. Gojer endorsed it.
[60] With respect to my concerns in relation to K.L.’s cognitive ability, Dr. Gojer expressed the opinion that K.L. has “at least got average intelligence” and he is “capable of doing group counselling.” He indicated that K.L. would ultimately benefit from a neuro-psych assessment.
[61] With respect to the impact of K.L.’s experience of childhood trauma, Dr. Gojer indicated that individuals like K.L. can become more needy for love and affection and seek it in inappropriate ways. They turn to younger people for affection.
[62] With respect to K.L.’s lack of remorse and acceptance of responsibility, Dr. Gojer was of the view that there is a realistic possibility that K.L. would accept some treatment designed to reduce reoffence even if he does not take responsibility.
The Victim Impact Statement
[63] JB reports impacts that are all too familiar in cases of child sexual abuse, including:
a) Being uncomfortable with intimacy. She reported gaining weight in order to keep men away from her.
b) Suicidal ideation.
c) Hospitalization for self harm.
d) Psychiatric admission.
e) Homelessness for a number of years.
f) Self blaming.
g) Drug and alcohol addiction, particularly when she was a teenager.
h) Emptiness and lack of control.
i) Inability to trust. She admits to sabotaging relationships in order to keep everyone at arm’s length for her own safety and sanity.
j) She has withdrawn from sports and other activities and is agoraphobic.
k) She started smoking.
l) Paranoia.
m) Her weight gain resulted in a deep vein thrombosis that required surgery and a two month stay in hospital.
n) Inability to hold down a job or volunteer position or go to school for a sustained period of time because she will dissociate and “drop myself out of reality” and become unresponsive, sometimes for minutes and hours. She indicated that when she comes out of this, she is unaware that it happened. These instances are uncontrollable and unpredictable.
o) She is no longer able to visit the Killaloe area for any length of time and her visits “home” are less frequent.
[64] Fortunately, at last check, JB had a solid relationship with her partner and she has children. She has fought hard and continues to fight hard to try to regain control of her life. She has managed to do all this despite her autism.
Submissions on Sentence – December 11, 2024
Submissions of the Crown
[65] The Crown seeks a sentence of six years in the penitentiary, an Order for the taking of K.L.’s DNA, a SOIRA order, a section 161 Order, a section 743.6 Order and a section 109 weapons prohibition.
[66] The Crown pointed to the fact that K.L. was in a mentor-like relationship with JB and that this was a breach of trust.
[67] The Crown highlighted the fact that K.L. did not have remorse or insight with respect to this offence or the offence against his mother in 1998.
[68] The Crown pointed out that there were no issues identified in the section 21 report or the other evidence that focused on reduced moral blameworthiness on the part of K.L.
[69] The Crown acknowledged that the evidence suggests that K.L. is a low risk to reoffend.
Submissions of K.L.
[70] K.L. reiterated that he was not guilty of the charges. He repeated that he was trying to track down bicycle thefts in his neighbourhood and he got too close to the person responsible. He stated that a third party told him that if paid $20,000, the charges would “go away”. I note that K.L. did not testify at his trial and thus I cannot, at this stage, assess any of that evidence.
[71] He expressed frustration at the 44-month delay in getting the matter through the trial process and to the sentencing. I agree that there has been some delay, but this was caused by a combination of the COVID-19 pandemic and the delay in sentencing is a result of K.L.’s difficulties with communications and transportation in having reports completed and his decision to discharge his lawyer. For example, as late as September 2024, we had to get a local social service agency involved in facilitating contact between K.L. and Dr. Gojer.
[72] K.L. reported that when he is in Pembroke he lives in his cousin’s basement. When he is in Killaloe, he resides in the home of a friend. He stated that he was saving up to buy a small piece of land where he can build a home and bicycle repair shop.
[73] He repeated most of the job history that he gave to the Probation Officer and Dr. Gojer. He stated that he last worked in September 2024 on a movie set that was filming in the area. He only worked in this job for a few days.
[74] He says that he has been self-employed in bicycle repair for 15 years.
[75] He studies Russian and ancient architecture.
[76] He does not use drugs or alcohol. He indicated that he will celebrate 12 years of sobriety in February.
[77] K.L. stated that he is engaged to a 35 year old woman. He stated that he was offered a dowry if he “succeeded in this wedding arrangement” which would provide him enough money to finance his building project. His wedding plans, like everything else in his life, is on hold pending the outcome of this case.
[78] He stated that he has no “claimable” Indigenous ancestry, but he believes he is one sixteenth Algonquin.
[79] He last saw his mother who is still alive about two years ago. He got a letter from her before the postal strike in the fall of 2024.
[80] His father is still alive. He last saw him six years ago. He stated that his father was “a drinker”. K.L. denies witnessing domestic violence between his mother and father. They divorced when he was three or four. He saw his father about every two months.
[81] With respect to his head injury as a result of his motorcycle accident, K.L. reported that he still deals with the effects of this, which can include random dizziness, nervousness and a slightly different perception of time and space. He attributed these latter symptoms to his penchant for older technology. He has a car that was manufactured in the mid-1950s. He has collected upwards of a dozen typewriters.
[82] K.L. has asthma for which he uses an inhaler.
[83] He has lost some of his teeth.
[84] He has some skin conditions which he attributed to a rash, ticks or scabies. He did not think it was permanent.
[85] For exercise, he rides his bicycle daily.
[86] He attends church regularly and as set out above, he plays music at church. He stated he can play guitar, steel, banjo, mandolin, viola and cello.
[87] I asked him about being dressed up as a woman by his step-father. When I asked him how many times that happened, he said, “Once is enough.”
[88] He stated that it is not natural for him to go out and steal or hurt people. “There are people that hurt people and steal daily. I’m not one of those. When I come up against one of those, I tend not to do too well”, he said. He described himself as someone who is always willing to help others. “People trust me and tell me things. I listen to people. That’s one of my strong points. I am very good at it. A bicycle mechanic is like a bartender or mental health worker. I hear their problems while I fix their tires.”
Analysis
[89] But for this offence, K.L. is an interesting and likeable individual. Some people would describe him as eccentric. Others would say that he is a loner. I continue to be concerned about whether there are any neuro-psychological deficits and hope that the penal authorities will ensure that he is rigorously tested. It may be that his tendency to be an eccentric loner is simply part of his personality. It may also be that it is connected to his brain injury.
[90] Despite his views on the nature and outcome of this case, K.L. is respectful of the Court. He is respectful in his demeanour and submissions.
[91] K.L. is a survivor. He has worked through life at whatever he could find to get by. Although his car is not running, he manages to get to Pembroke for every court attendance. I have seen him riding his bike in Pembroke. He thrives on old ways and making old machinery work.
[92] Despite some nagging doubt about the presence of a cognitive deficit, I accept Dr. Gojer’s opinion that K.L. is of at least average intelligence. On the evidence before me, I am unable to find “diminished moral blameworthiness”.
[93] I also accept Dr. Gojer’s opinion that K.L. is very likely a low risk to reoffend and the offence comes out of problems with boundaries that may have developed as a result of K.L.’s experiences as a child.
[94] I am worried about how K.L. will do in any penal setting. He has never been imprisoned before. It is going to be extremely difficult for him.
[95] All of that said, there is very little in mitigation here.
[96] K.L.’s offence has caused significant harm to JB. He does not accept responsibility for it and attributes her complaint to the MeToo Movement. He maintains his innocence, which is his right.
[97] However, he is not entitled to any of the mitigation that would have come with a guilty plea.
[98] He also lacks insight.
[99] The offence was committed when JB was a young student intern at a local radio station. K.L. was an announcer there. This is a significant breach of trust.
[100] There is a significant age difference between K.L. and JB at the time of the offence. He was over twice her age. That is a significant aggravating factor.
[101] I looked at his Release Order to determine whether his release conditions have been so onerous as to entitle him to credit pursuant to R. v. Downes, 2006 ONCA 3957. K.L. was released on a Form 10 on June 4, 2021 with minimal conditions requiring him to notify police of change of address, employment or occupation and to have no communication with JB. He is not entitled to Downes credit.
[102] On the facts that I heard, before the sexual intercourse took place, there was a kiss in the radio station. Then there was the kissing that led to intercourse at the home of the friend. There was time between the two. On the evidence of JB, which I accepted, K.L. immediately recognised that the kiss was wrong and withdrew. He knew that sexual relations with JB were inappropriate. Yet he proceeded on the second occasion. This is aggravating. Fortunately, however, this is not a case where there were multiple instances of sexual violation of JB over a period of years.
[103] On the last occasion, the sexual interference of JB involved sexual intercourse. This is a significant violation of her sexual integrity and is aggravating.
[104] K.L.’s criminal record is old – it dates to 1998. What is important about it, however, is the fact that he does not accept responsibility for that offence either, something that appears to be a problematic theme in K.L.’s personality.
[105] In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada determined that the “cardinal principle” of sentencing law is the principle of proportionality; that is, the more serious the crime and the greater the degree of responsibility, the more severe the sentence will be. This must be balanced against the moral blameworthiness of the offender.
[106] Lacasse also describes sentencing as a “delicate task”. Other cases have established the principle that sentencing is a highly individualized process.
[107] In R. v. Friesen, 2020 SCC 9, at paragraph 5, the Supreme Court of Canada made it clear that the law of sentencing with respect to sexual offences against children must change:
We send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. 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.
[108] At paragraph 114, the Court provided further guidance:
The message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper single-digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim.
[109] In my view, the appropriate sentence in this case is five years in the penitentiary and that is what I will impose.
[110] I recommend that the penal authorities consider immediate placement of K.L. at either Warkworth Institution or Bath Institution.
[111] I also recommend that the penal authorities complete a thorough neuro-psychological assessment of K.L.
[112] With respect to the Crown’s request for a section 161 Order, I agree that:
a) For the rest of his life he is prohibited from being within two kilometers of any place he knows JB to live, work, go to school, frequent or any place he knows that she is likely to be.
b) For the rest of his life, he is prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming or being a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years.
c) For the rest of his life, he is prohibited from having any contact with a person under the age of 16 years except for incidental contact or contact during short commercial transactions.
[113] With respect to the Crown’s request for the section 743.6 Order prohibiting contact or communication directly or indirectly, by any physical, electronic or other means, with JB while he is serving his sentence, this order is granted.
[114] With respect to the Crown’s request for a section 109 Order, this Order is granted for a period of ten years.
[115] With respect to the Crown’s request for an Order for the taking of K.L.’s DNA, this Order is granted. This is a primarily designated offence.
[116] With respect to the Crown’s request for an Order requiring K.L. to comply with the Sex Offender Information Registration Act, this Order is granted for a period of twenty years.
[117] Given that K.L. has not worked in some time and will be going into custody for a significant period of time, I find that it would constitute an undue hardship to impose the Victim Fine Surcharge and I order it waived.
Released: January 14, 2025
Signed: Justice J.R. Richardson