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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-03-20
COURT FILE No.: Hamilton 998 24 47105668
BETWEEN:
HIS MAJESTY THE KING
— AND —
LORD LELAND GILBERT
Reasons for Sentence
Before Justice Davin M.K. Garg
Heard on March 19-20, 2025
Reasons released on March 20, 2025
Mark Dean — counsel for the Crown
Geneviève Eliany — counsel for the accused Mr. Gilbert
GARG J.:
Overview
[1] As the Supreme Court explained in R. v. Friesen, 2020 SCC 9 at para. 1:
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.
[2] Friesen is about imposing sentences that reflect the profound harmfulness of sexual offences against children. Mr. Gilbert was acquitted of committing a sexual offence against a child.[1] He was instead found guilty of breaching an order under s. 161 of the Criminal Code that prohibited him from communicating with children without receiving certain permissions. Despite this important difference, Friesen highlights the seriousness of breaching the prohibition order. The very purpose of the order is to protect children and help ensure that they enjoy a childhood free of sexual violence.
[3] These reasons explain why I impose an 18-month global jail sentence in this case: 15 months for breaching the prohibition order and 3 months consecutive for breaching a probation order. The custodial term is followed by 3 years of probation.
Circumstances of the Offence
[4] Mr. Gilbert began a romantic relationship with the mother of an eight-year-old boy.[2] During the relationship, Mr. Gilbert was bound by a prohibition order under s. 161 of the Criminal Code that directed him as follows:
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 you have written permission of your probation officer and the local child protection authority and the lawful guardian of that child.
[5] Mr. Gilbert did receive permission from the boy’s mother. However, he never received permission from the local child protection authority.[3]
[6] I was satisfied beyond a reasonable doubt that Mr. Gilbert was in the direct company of the boy and communicated with him. While I did not make exact findings on how many visits or communications occurred, I was satisfied that Mr. Gilbert had developed a relationship with the boy. The relationship was sufficiently close such that the boy called Mr. Gilbert “daddy”. In addition to in-person visits, I found that Mr. Gilbert communicated with the boy over video chats.
[7] By virtue of breaching the prohibition order, Mr. Gilbert also breached the condition of his probation order to keep the peace and be of good behaviour.
Kienapple Principle
[8] I found Mr. Gilbert guilty of two counts of breaching the prohibition order and two counts of breaching the probation order. A preliminary issue is whether any counts should be stayed pursuant to the Kienapple principle. The Crown argues against staying a prohibition count because Mr. Gilbert breached the order on multiple occasions and in different ways. One count could relate to the in-person visits and the other could relate to the video chats.
[9] I do not accept the Crown’s argument. The counts are identical. It is not as though one count particularizes in-person visits while the other particularizes video chats. Both counts cover the broad timeframe of May 1 to December 1, 2023. One count can thus cover multiple instances of contact and association over the course of the relationship. I will stay one count of breaching the prohibition order and one count of breaching the probation order.
Circumstances of the Offender
[10] Mr. Gilbert is 36 years old. He endured a difficult upbringing.[4] He and his twin sister were initially raised by his grandmother. His care was later transferred to one aunt and then another. He was told growing up that his mother had passed away. In reality, his mother was peripherally present and posing as an aunt. Mr. Gilbert learned the truth as a teenager and was shaken by the deception. Mr. Gilbert had limited interaction with his father over his lifetime and never developed a positive father-son relationship before his father passed away. Mr. Gilbert believes that his father only used him for self-serving reasons.
[11] Mr. Gilbert described an abusive childhood, citing physical abuse by caregivers. Mr. Gilbert is estranged from all family members and stated no interest in reconciliation.
[12] As an adolescent, Mr. Gilbert disclosed “deviant” sexual thoughts and desires, which resulted in brief hospitalization. As a young adult, Mr. Gilbert was assessed as likely suffering from pedohebephilia, a condition that tends to be lifelong.
[13] Mr. Gilbert identified as Indigenous to the author of the pre-sentence report. The only relevant mention in the report is that Mr. Gilbert “believes that his father was an Indigenous person but, otherwise, has no information regarding Indigenous ancestry”. Defence counsel did not request a Gladue report and did not present additional information to shed light on Mr. Gilbert’s connection, if any, to an Indigenous identity. Defence counsel asserted that Mr. Gilbert’s Indigenous connection was “tenuous” and did not weave any Gladue principles into her submissions.
[14] I will delve into other aspects of Mr. Gilbert’s circumstances in my analysis.
Positions of the Parties
[15] The Crown seeks a global jail sentence of 2 years less a day. The defence seeks a global jail sentence between 6 and 12 months. The defence does not argue for a conditional sentence and recognizes that one would be inappropriate. The parties jointly argue for 3 years of probation.
General Principles
[16] The goal of any sentence under the Criminal Code is to protect society, contribute to respect for the law, and help maintain a just, peaceful, and safe society. The fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence and Mr. Gilbert’s degree of responsibility. The sentence that I impose must be tailored to Mr. Gilbert’s circumstances and the circumstances of the offences that he committed. I must also seek to impose the least intrusive sentence and the least quantum that will achieve the purpose of being an appropriate and just sanction.
[17] The overarching function of a prohibition order under s. 161 is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31 at para. 44. “The predominant sentencing principles that control the disposition in cases involving a breach of a s. 161 order are denunciation and deterrence, both specific and general”: R. v. Exell, 2015 ONCA 704 at para. 8. As Hackett J. explained in R. v. S.B., 2008 ONCJ 383:
Child sexual abuse is a serious societal concern because it can damage and destroy children and families and undermine the safety and security of children in our communities. It is also an offence where child victimization can sometimes lead to adult offending behaviour later in life, which perpetuates its impact, damage, and destruction on future generations.
Section 161 orders have therefore been enacted to protect vulnerable children from dangerous convicted paedophiles. They are an important part of our justice system’s preventative response to these dangers and harm.
Section 161 strikes an important balance between the liberty interests of a paedophile who has served his sentence and the continuing societal responsibility to protect vulnerable children and our communities from the continuing risk presented by paedophiles.
Aggravating Factors
[18] I have identified the following aggravating factors.
Nature of the breach
[19] I find that the nature of the breach aggravates the gravity of the offence and increases Mr. Gilbert’s degree of responsibility: see R. v. M.V., 2023 ONCA 724 at para. 46. Prohibition orders can be breached in many ways. Defence counsel cited one case where an offender was convicted for shouting at children on the street. By contrast, Mr. Gilbert developed a close relationship with a young boy that he was prohibited from even speaking with. Implicit in there being a relationship is that Mr. Gilbert met with the boy on multiple occasions over a period of time. His close access to the boy put him in position to potentially commit the very sexual exploitation that the order is designed to prevent. Even though Mr. Gilbert was acquitted of any sexual charges, it remains relevant that his conduct struck at the core of why these orders exist.
Blatant breach
[20] The breach was blatant. Defence counsel showed how Mr. Gilbert had taken steps around the time of the offence to remove from the prohibition order the need to receive permission from the probation officer. I find that this litigation of the order would have heightened Mr. Gilbert’s awareness that he required permission from the local child protection authority to associate with the boy. It also would have shown Mr. Gilbert that he had mechanisms available to try and remove the involvement of the protection authority if he felt that condition was unworkable or operating unfairly. Rather, Mr. Gilbert decided to wilfully disrespect the order and conduct himself how he saw fit.
[21] I do not accept the representation that Mr. Gilbert had sought permission from the protection authority and permission was withheld. A representative from the Catholic Children’s Aid Society testified at trial. No such suggestion was put to the witness.[5]
Criminal record
[22] Mr. Gilbert has a lengthy and related criminal record. He has seven total entries for breaches of court orders. Four relate to breaches of sexual offender obligations: one conviction for failing to comply with a SOIRA order and three convictions for breaching a prohibition order under s. 161. He was convicted most recently for breaching a prohibition order in April 2022 and received a global 6-month sentence (credit for 3 months of pre-sentence custody and a further 3 months). Roughly a year after serving that sentence, Mr. Gilbert was breaching the order again.
Absence of Aggravating or Mitigating Factors
[23] There are certain factors that are neither aggravating nor mitigating.
Permission from the boy’s mother
[24] Mr. Gilbert received permission from the boy’s mother to associate with the boy. It is unclear when exactly Mr. Gilbert received that permission, but the basis for finding Mr. Gilbert guilty was only premised on him not receiving permission from the child protection authority.
[25] I do not find it mitigating that Mr. Gilbert sought and received permission from the mother, other than to recognize the offence would have been even more serious if Mr. Gilbert had failed to receive any of the required permissions. The court that imposed the s. 161 order determined that Mr. Gilbert’s risk profile required the oversight of multiple stakeholders for him to safely engage with children. It was not up to Mr. Gilbert and the mother to decide whether he could engage with the boy. Mr. Gilbert knew that fact; the mother did not. By withholding the involvement of the child protection authority, Mr. Gilbert unilaterally shifted the decision-making away from an expert protection agency and onto a single mother who herself was vulnerable due to multiple health concerns.
Constant supervision
[26] Defence counsel argued that it was mitigating that Mr. Gilbert was never alone with the boy. Someone else, presumably the mother, was always present. If accepted, this factor would be mitigating. If Mr. Gilbert had never been alone with the boy, it would mean that the actual risk to the boy was reduced despite the breach of the prohibition order.
[27] However, I do not accept that the mother was always present. The failure to prove an alleged aggravating fact beyond a reasonable doubt does not permit me to assume a version of facts most favourable to Mr. Gilbert. The defence must establish any non-conceded mitigating facts on a balance of probabilities: R. v. Smickle, 2013 ONCA 678 at para. 18. I only expressed “doubt” in my Reasons for Judgment as to whether Mr. Gilbert and the boy were together in a manner that allowed Mr. Gilbert to commit the sexual offences: para. 35. This doubt about being sufficiently alone to commit an offence does not translate to establishing constant supervision on a balance of probabilities. Based on the totality of the evidence and my findings at trial, I am not satisfied on a balance of probabilities that Mr. Gilbert was never alone with the boy.
Mitigating Factors
[28] I have identified the following mitigating factors.
Challenging upbringing
[29] I acknowledge Mr. Gilbert’s very difficult upbringing. As the author of the pre-sentence report fairly summarized: “The offender has lived a chaotic and dysfunctional life, from birth to childhood. … Various relatives assumed caregiving roles but, in general, the home environments were troublesome and abusive”.
[30] I accept that this turbulent upbringing has some bearing on Mr. Gilbert’s moral culpability. But the impact of this factor is limited. The conduct at issue here is not about Mr. Gilbert’s ability to control his impulses or his underlying sexual diagnoses. While sexual abuse suffered as a child can very well contribute to an adult’s sexual deviances, those underlying issues do not explain why Mr. Gilbert developed a relationship with a young boy without even so much as reporting the situation to the child protection authority. Notwithstanding any intellectual deficits, Mr. Gilbert knew about the need for permission from the child protection authority, and he knew about the process to vary the order. He was not unsophisticated.
Expression of accountability
[31] During his allocution, Mr. Gilbert expressed that he took accountability for not receiving permission from the child protection authority. I give some weight to this factor, although it is undermined by comments in the pre-sentence report that I will address later in these reasons.
Analysis
[32] Defence counsel argued that the applicable jurisprudence shows a sentencing range of 6 to 18 months for breaches of s. 161 prohibition orders. I find that this interpretation is largely correct, although the parties provided cases with sentences on either side of that range (e.g., see the 2-year sentence imposed in R. v. Parker, 2024 ONCA 591 [6]).
[33] I considered all the cases submitted by counsel but find the following Ontario decisions to be most helpful:
R. v. S.B., 2008 ONCJ 383: 18 months for each breach of the prohibition order, reduced to 12 months for totality, resulting in a global 7-year sentence. The offender began a relationship with a woman who had two sons. Each 12-month sentence related to a single visit between the offender and one or both boys. Six of the visits were to Canada’s Wonderland; the mother was present for three of them. The seventh visit involved the offender taking the boys to a pool. The boys made no complaints of sexual touching or activity. The offender had a very serious criminal record; however, unlike Mr. Gilbert, the offender did not have prior convictions for breaching a prohibition order (he had four breaches of court orders for failing to comply with probation, bail, and appearances in court). The case proceeded by an agreed statement of fact and thus the boys did not need to testify.
R. v. Hamid, 2022 ONCJ 630: 10 months for a single count of breaching a prohibition order. The breach arose from a single incident wherein the offender invited a 13-year-old girl into his apartment where she stayed for an indeterminant, but more than momentary, period of time. The offender’s criminal record did not contain any prior convictions for breaching a prohibition order.
R. v. J.H., 2022 ONSC 779: 1 year concurrent to other charges on a guilty plea. The offender had a very serious criminal record. He was designated a dangerous offender due to the substantive charges.
Sentencing principles
[34] I choose to prioritize deterrence and denunciation in fashioning the fit sentence. This approach aligns with Exell at para. 8 and is supported by the following factors in this case.
[35] First, the aggravating features are significant. The offence is serious. Mr. Gilbert’s decision to form a close relationship with the boy—to the point of the boy calling him “daddy”—was a blatant breach that repeatedly occurred over a period of time. The court must strongly denounce this conduct.
[36] Second, Mr. Gilbert’s criminal record reveals that a lengthy sentence is required to send a message that court orders must be followed. When Mr. Gilbert first breached the order, he was sentenced to 60 days intermittent. When Mr. Gilbert breached the order again he was globally sentenced to an effective term of 6 months.
[37] Third, Mr. Gilbert maintains little respect for the prohibition order despite being found guilty of breaching it once again. In the pre-sentence report, Mr. Gilbert reported that he visits with his children in violation of the order. Mr. Gilbert “held a firm stance to continue this contact, regardless of potential consequences”. Mr. Gilbert “justified the violation, by denying any risk to the children and made a firm assertion to be present for his children, regardless of any court order”. Defence counsel added that Mr. Gilbert’s visits with the children are supervised, albeit with no details on who is doing the supervising and on what authority. Even assuming this additional detail to be true, it does not reduce the need for specific deterrence. It is not Mr. Gilbert who gets to decide whether he poses a risk to children and whether he has taken sufficient steps to address that risk. That would be like a driver with an elevated blood alcohol concentration claiming that they posed no risk to public safety because they took steps to follow the speed limit. Mr. Gilbert taking matters into his own hands is what led him to committing the offence before me—and it seems like Mr. Gilbert is primed to commit the offence again.
[38] Given that a global 18-month sentence would keep Mr. Gilbert in custody past the expiration date of his prohibition order, it is arguable whether Mr. Gilbert needs to be specifically deterred from breaching that exact order. I nonetheless prioritize deterrence. For one, Mr. Gilbert’s lack of insight into his conduct calls into question his willingness to follow any court orders. Moreover, the court must send a message to anyone bound by a prohibition order that flagrant violations will be met by heavy sanction.
[39] While I prioritize deterrence and denunciation, it is essential that I do not impose a sentence that crushes Mr. Gilbert’s rehabilitative potential. There are facts in favour of that potential. While Mr. Gilbert has been steadily accumulating a criminal record, the last disposition for a substantive offence dates back to 2017 (and he must have committed the offence well before that). Furthermore, Mr. Gilbert has a steady record of employment, is presently working, and expects that he would remain employed but for his pending incarceration. Employment is essential to Mr. Gilbert’s well-being: he “enthusiastically shared details of his employment and workplace relationships” with the author of the pre-sentence report. “He shared that he feels appreciated, accepted, and ‘loved’ by his co-workers”. Finally, Mr. Gilbert is newly married. By all accounts the relationship is a significant positive in his life and gives some reason to believe that Mr. Gilbert can stay on the right track.
Jump principle
[40] The jump principle cautions a court against imposing a dramatically more severe sentence than those imposed on the offender for similar offences in the recent past, provided the subsequent offence is not significantly more serious: R. v. Parker, 2024 ONCA 591 at para. 41. This principle, while a helpful guide, “cannot be used in a way that diminishes the seriousness of the offences or detracts from the need for the protection of the public”: R. v. Thompson, [1999] O.J. No. 171 (C.A.) at para. 4.
[41] It is arguable whether a 15-month sentence is “dramatically more severe” than the prior 6-month sentence for breaching a prohibition order. Even if it is, the increase is justified. First, when Mr. Gilbert received the 6-month sentence he benefited from the mitigation of a guilty plea. Second, the facts of the present offence are more severe. The prior offence involved a single incident where the police saw Mr. Gilbert in the presence of an 11-month-old child and watching YouTube on the internet. There is no indication that Mr. Gilbert had been repeatedly spending time with the child or developed any relationship with them.
Gladue principles
[42] As mentioned above, defence counsel did not advance any arguments with respect to Mr. Gilbert’s stated Indigenous identity. Counsel asserted that any connection to that identity was tenuous. I agree. The evidence before me, at its highest, does not go beyond “a bare assertion” of an Indigenous connection: R. v. E.C., 2019 ONCA 688 at para. 16. Without more, I have no meaningful basis to assess how unique systemic and background factors might have played a part in Mr. Gilbert committing the offences or how they might have mitigated his moral blameworthiness. I cannot say that Mr. Gilbert’s degree of responsibility is diminished to the extent that colonialism, dislocation, marginalization, or racism could have reasonably contributed to his offending: see R. v. R.S., 2023 ONCA 608 at para. 40; R. v. Ipeelee, 2012 SCC 13 at para. 73. I have also not been presented with anything to suggest that Mr. Gilbert’s heritage or experiences as an Indigenous person make culturally sensitive sanctions appropriate, including opportunities for restorative justice.
Consecutive sentences
[43] I am going to impose a consecutive sentence for the breach of probation order. The breach of a separate court order constitutes the distinct invasion of a protected societal interest: R. v. Fournel, 2014 ONCA 305 at para. 59. Given that I will impose consecutive sentences, I cannot treat the fact that Mr. Gilbert was on probation as an aggravating factor. Furthermore, I must ensure that the total sentence remains proportionate and does not become unduly long or harsh.
Conclusion
[44] The total analysis leads me to conclude that a fair and proportionate sentence requires a 15-month jail term for the breach of prohibition order and a 3-month consecutive jail term for the breach of probation order. This sentence is the lowest quantum that remains fit in view of the governing sentencing principles and the aggravating and mitigating circumstances. As the Court of Appeal held in Exell at para. 9, “Those who are subject to such [s. 161] orders must realize that contravention comes at a price”. Any lower “price” would send the wrong message to Mr. Gilbert and the community. While courts have imposed lower sentences (e.g., the 10-month sentence in Hamid), key facts in this case include that Mr. Gilbert developed a close relationship with the boy and is now being sentenced a third time for breaching the order. These aggravating features make a longer sentence appropriate to ensure that similar sentences are imposed on similar offenders in similar circumstances.
[45] I arrive at this sentence despite the impact of imprisonment on Mr. Gilbert’s employment prospects. Crafting a sentence that could conceivably permit Mr. Gilbert to work over the summer would overwhelm the other principles of sentencing and result in a sentence that does not reflect the seriousness of the offence and Mr. Gilbert’s degree of culpability: see R. v. Habib, 2024 ONCA 830 at para. 43.
Disposition
[46] Counts 8 and 10 are conditionally stayed pursuant to the Kienapple principle. Convictions are entered on counts 4 and 9.
[47] On count 9 (breach of prohibition order), Mr. Gilbert is sentenced to 15 months jail. On count 4 (breach of probation order), Mr. Gilbert is sentenced to a consecutive term of 3 months jail less credit for 3 days of pre-sentence custody. Expressed in days, the total global sentence is 540 days, with 537 days left to serve.
[48] The custodial term is followed by 3 years of probation. The terms will prevent Mr. Gilbert from contacting the boy or his mother and include counselling to assist in Mr. Gilbert’s rehabilitation.
[49] The victim surcharge is waived given the lengthy custodial term.
Released: March 20, 2025
Signed: Justice Davin M.K. Garg
Footnotes
[1] The identification of the offender does not disclose any information that could identify the complainant.
[2] Also see my Reasons for Judgment: R. v. Gilbert, 2025 ONCJ 50.
[3] It may have been that Mr. Gilbert did not need permission from his probation officer. For sentencing purposes, the only permission that Mr. Gilbert failed to receive was from the local child protection authority.
[4] I learned about Mr. Gilbert from the pre-sentence report.
[5] It may be that counsel was referring to Mr. Gilbert seeking permission from the Catholic Children’s Aid Society to associate with his own children. I nevertheless do not accept the representation and afford it no weight.
[6] The Court of Appeal reduced the sentence for other charges but did not disturb the sentence for the prohibition breach.
