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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-03-27
COURT FILE No.: Pembroke 23-37100837
Between:
His Majesty the King
— AND —
J.P.
Before Justice J.R. Richardson
Heard on March 3, 2025
Reasons for Judgment released on March 27, 2025
Goher Irfan — counsel for the Crown
Adrian Cleaver — counsel for the accused
Introduction
[1] The issue in this case is the appropriate sentence for a 31-year-old man who sexually interfered with a vulnerable fourteen-year-old Indigenous, Autistic child who was under the influence of alcohol, cannabis and Xanax, the latter of which was provided to the complainant by the offender.
Facts
[2] On December 9, 2024, following a trial that spanned over parts or all of five days, I found JP guilty of one count of Sexual Interference and one count of Sexual Assault. I found the accused not guilty of one count of Administering a Noxious Substance.
[3] I issued written reasons for my findings on January 20, 2025. Those reasons are reported at R. v. JP, 2025 ONCJ 36.
[4] I summarize my findings at trial as follows:
a) I did not believe the accused, who testified in his own defence. Nor was I left in doubt with respect to his evidence.
b) JP, who was 31 years of age at the time of the incident, met “two kids” at the Dairy Queen in Pembroke the evening of July 17, 2023. They invited him to attend a party at a house on Eganville Road.
c) KJ, who was 14 years of age at the time of the incident, knew about the party on Eganville Road and wanted to attend. Her mother, CC, did not want her to attend. KJ went anyway.
d) KJ met JP at the party.
e) Everyone at the party, other than JP, was between 14 and 18 years of age.
f) Everyone left the party because the police attended and shut it down.
g) KJ was very intoxicated at the party.
h) KJ and JP and some of the other people from the party went to the Pembroke Marina. KJ was stumbling and slurring her words at the Marina. She also fell.
i) One of KJ’s friends, LP, told KJ that she should not leave the party with JP. KJ rebuffed this suggestion. LP also told JP that he should not walk KJ home and that someone her own age should walk her home.
j) KJ did not want to go home because she was afraid that CC would be angry. She was afraid CC would get rid of her cat.
k) Instead, she walked with JP to a motel where he was staying on Pembroke Street East.
l) KJ was still very intoxicated as she walked to the motel.
m) KJ consumed some Xanax while she was at the motel. JP supplied her with the Xanax. He had it lawfully pursuant to a prescription. She took the Xanax voluntarily.
n) KJ consented to joining JP in bed. She consented to him kissing her and touching her.
o) KJ’s arms and legs began to feel heavy and she did not feel good. This was likely the result of her consumption of alcohol, Xanax and marihuana, which was also on hand and which, at some point in the evening, they also consumed.
p) JP proceeded to have sexual intercourse with KJ.
q) KJ did not consent to the sexual intercourse. The issue of consent is important because JP raised the defence of mistake of age.
r) I also found that JP did not take reasonable steps to ensure that KJ was consenting to sexual intercourse.
s) At some point during the evening, JP told KJ that he had been in the military and had a 13-year-old son.
t) JP gave her his name and contact information.
u) KJ took photos of JP sitting at a table in the motel room. She took the photos because she believed that something was not right and she needed to have a form of proof that she was with JP.
v) In the morning, JP’s mother drove KJ to a Tim Horton’s in the west end of Pembroke, not far from where she lived.
w) She went to bed and slept around the clock until she told CC what happened by text message almost 24 hours later.
x) I found that although KJ was grossly intoxicated, she was not so intoxicated that she was incapable of consenting to sexual intercourse.
y) Following the rubric in R. v. Hason, 2024 ONCA 369, I found that:
i) The Crown failed to disprove that JP subjectively believed that KJ was 16 years of age or older.
ii) JP was reckless with respect to whether KJ was 16 years of age or older. He was in possession of information that should have led him to question her more thoroughly about her age. He chose to ignore that information and take the risk.
[5] I agree with the parties that the Sexual Assault charge is to be judicially stayed pursuant to the principles in R. v. Kienapple, 1974 SCC 14.
[6] I ordered the completion of a Pre-Sentence Report and ordered the matter on for sentencing on March 3, 2025.
[7] On March 3, 2025, JP did not attend for the sentencing hearing and I issued a warrant for his arrest. He was found by police within a very short while of the issuance of the warrant. We were able to complete the sentencing submissions on March 3, 2025. I remanded JP into custody pending sentencing.
[8] On March 3, 2025, JP entered a plea to one count of Failing to Appear. I was told that JP was on bail on other charges. He was required to wear a GPS monitoring device. Police received an alert that he had tampered with the GPS device at 8:53 am. Police found the GPS monitoring device behind the Shoppers Drug Mart in Pembroke. JP had cut it off his person.
[9] Counsel advised that there is a joint submission for 30 days concurrent to the sentence that I ultimately will impose with respect to the Sexual Interference.
[10] The parties disagree on the appropriate sentence for the Sexual Interference. Crown counsel seeks a sentence of five years in the penitentiary. Defence counsel seeks a sentence of between three and four years in the penitentiary.
The Criminal Record
[11] JP has a Criminal Record in the United States which includes the following convictions:
a) Wrongful Possession of a Spice;
b) Disorderly Conduct (two counts);
c) Possession of a Controlled Substance (three counts);
d) Larceny (two counts);
e) Probation violation; and
f) Use Motor Vehicle without Permission.
[12] Some of the American convictions occurred while JP was a member of the United States military. Others occurred while he was living in Connecticut. The convictions were registered between 2012 and 2019. It appears as though he received a year in jail for his last American conviction.
[13] He also has a record in Canada for the following offences:
a) Take Motor Vehicle Without Consent;
b) Mischief Under $5000;
c) Theft Under $5000 (three counts).
[14] These convictions were registered in Pembroke on March 12, 2024. He received a sentence of 39 days on top of 14 days served (21 days credit) and Probation for 18 months.
The Pre-Sentence Report
[15] JP was born and spent his early childhood in Newfoundland. His father worked for the military. He was subjected to domestic violence between his parents when he was young. His father misused alcohol and cannabis.
[16] When JP was six, his mother ended the relationship with his father and relocated herself and JP to the United States. His mother started a new relationship. Her new partner had three boys and a girl from a previous relationship. JP was not close with his step-siblings.
[17] JP has not seen his father since he left Newfoundland. He last spoke with him over a decade ago.
[18] Between the ages of six and 31, JP resided in the United States.
[19] JP recalled that his step-father was a heavy drinker.
[20] JP completed high school in the United States. He also completed college courses. He was studying to be an addictions counsellor.
[21] He worked in warehouses for a few years. He was a member of the United States military for three years. He took a discharge rather than being court martialed for criminal charges.
[22] He moved back to Canada with his mother after her relationship with his step-father broke down. They moved to Pembroke because his aunt (his mother’s sister) lives here.
[23] JP had a relationship with a woman when he was 17 which resulted in the birth of his son. He communicates with his son, now 14, through video call. He had one other relationship with a woman in Canada. He is not presently in a relationship. He denied casual dating.
[24] JP has a substance abuse problem. His mother says he is a “really nice boy when he is sober”. She did not want to discuss JP’s drug problem with the author of the PSR because she found it too stressful. He may have diagnoses of anxiety and depression and bi-polar disorder. She reported that the only thing that JP finds helpful in managing his mental health is cannabis. Although JP told his mother that he has seen a local psychiatrist, he denies it.
[25] JP denies use of alcohol. He began using cannabis when he was 15. While he was in the United States military, he became addicted to heroin. He also occasionally used cocaine. Once he moved to Pembroke, he started using Fentanyl. He reports having overdosed approximately 30 times and he has had multiple trips to the hospital. This was confirmed by the arresting officer, who recalls having to administer Naloxone to JP when he overdosed.
[26] He told the author of the Pre-Sentence report that he was homeless and addicted to drugs. He admitted to stealing to get money for food and drugs.
[27] He went to treatment for his drug problem in 2019. He lived in a sober living home. He stated that he was on the methadone program. He stated that he stopped using methadone because of incarceration in March 2024. He went to a treatment program in Ottawa for a month. He stopped attending because he did not have transportation to Pembroke and he did not want to miss court.
[28] He did not complete aftercare, nor did he follow his probation officer’s recommendation to continue treatment.
[29] JP apparently worked in Pembroke at a warehouse and for a company that changes oil. He last worked two years ago.
[30] Like many homeless people in Pembroke and Ontario, JP lived in a tent. He reported that his mental health suffered significantly while he was living in a tent. He also went through a period where his drug use was very heavy. He reported that his friends and neighbours in tents were also using drugs.
[31] He now gets by on social assistance benefits he receives from Ontario Works. His application for Ontario Disability Support Plan was denied. He collects bottles for cash.
[32] JP maintains his innocence as is his right. He maintains that he believed that KJ was twenty years old and that their encounter was consensual. He also stated that he had consumed substances at the time the offence was committed.
[33] JP was not entirely cooperative with the author of his PSR. He did not believe there was much merit to the process because he expects to be incarcerated.
[34] JP’s probation officer encouraged him to attend Alcoholics Anonymous and Narcotics Anonymous but he did not follow through. She also referred him to a counselling program called Connections and he did not attend. She directed him to attend addictions counselling but he declined because he believed he was going to jail. He states that counselling does not work for him.
The Victim Impact Statements
[35] Both KJ and CC completed Victim Impact Statements.
[36] KJ reported that:
a) She is now 16 years of age.
b) Before the offence she was an outgoing and active teenager. She now feels like a prisoner.
c) As a result of the offence her life has changed in the most devastating way.
d) She has had difficulty attending school.
e) She has triggers which cause depression, anxiety and fear.
f) She is afraid to leave her home. She feels like she is dying and cannot breathe.
g) She does not trust anyone anymore.
h) She has a hard time sleeping and she suffers from nightmares.
i) She has gained a lot of weight due to unhealthy eating patterns.
j) She is afraid to go to the mall or the gym.
k) She has used drugs and alcohol.
l) She has had periods when she does not care about herself and has wanted to die.
m) She has got in trouble with the law herself, is on probation and has a criminal record.
n) Her mom has been put under financial strain ensuring that she attends for counselling and treatment.
[37] Nonetheless, she is optimistic that with her mom’s support, resources and her culture (KJ is an Indigenous woman), she will return to her former self.
[38] I note that when the offence was committed, KJ was in a state of heightened vulnerability due to the following factors:
a) She is an Indigenous person;
b) She is “on the spectrum” for Autism disorder;
c) She was inexperienced with alcohol but eager to use it to excess;
d) She was experienced in the use of marihuana and supplied the marihuana which she and JP consumed; and
e) She was eager to experiment with other drugs which is why she voluntarily consumed the Xanax which JP offered her.
[39] CC reported that:
a) She suffers anxiety which overtakes her body and feels like a heart attack when she sees someone who resembles JP.
b) Recalling that she learned about what happened to her daughter by text message, she now panics whenever she hears her phone “ping”.
c) She struggles financially to support KJ’s counselling and treatment.
d) She has difficulty sleeping and suffers nightmares.
e) She describes how she feels as a “life sentence”.
f) She despairs at how her daughter has changed because of the offences.
JP’s Address to the Court
[40] When I asked JP if he had anything to say, he told me that he is “not a monster” and he is a “kind, loving person”.
Analysis
Criminal Code Sentencing Provisions
[41] Section 718 of the Criminal Code states:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct in the harm done to victims or to the community that is caused by unlawful conduct;
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society, where necessary;
d) to assist in rehabilitating offenders;
e) to provide reparations for harm done to victims or to the community; and
f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
[42] Section 718.01 sets out the following sentencing objectives when dealing with offences against children:
When a court imposes a sentence for an offence that involved the abuse of a child under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[43] Section 718.1 of the Criminal Code establishes the fundamental principle of sentencing: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[44] Section 718.2 of the Criminal Code sets out “other sentencing principles”:
A court that imposes a sentence shall also take into consideration the following principles:
(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,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(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,
(ii.2) evidence that the offender involved a person under the age of 18 years in the commission of the offence,
(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,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence,
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Assessment of JP
[45] JP is a lost soul. He has not had a relationship with his father since he was six. He did not enjoy a positive relationship with his step-father or his step-siblings. He was subjected to the use of alcohol, drugs and domestic violence when he was growing up. His only real support is his mother. He has a child of his own that he sees by chat video.
[46] He developed an addiction to heroin, and once he returned to Canada, fentanyl.
[47] Although he acknowledges the toll that it has taken on him with respect to his mental health and addiction, he seems content to live in a tent and use drugs.
[48] He is not interested in any measures that will deal with his addiction. He does not believe that counselling works.
[49] He obviously has a mental health problem. He was prescribed Xanax for anxiety at the time of the offence. He does not seem interested in pursuing treatment and counselling for that.
[50] Unless he has a change of heart while he is in custody, I find that he will be challenging to engage in treatment.
[51] There is very little in mitigation here. He did not enter a guilty plea. He does not express any remorse. These are not aggravating features, but he is not entitled to the mitigation that a guilty plea and expression of remorse would bring.
[52] He lacks insight.
[53] The offence has caused significant harm to KJ who is a vulnerable Indigenous young person with Autism. Having said that, there is no evidence that JP was aware of KJ’s indigeneity or her Autism on July 17 and 18, 2023.
[54] There is a significant age difference between JP and KJ. He was over twice her age when the offence was committed. That is a significant aggravating factor.
[55] The sexual interference of KJ involved sexual intercourse. This is a significant violation of her sexual integrity and is aggravating.
[56] Although I found that KJ’s level of intoxication was not sufficient to keep her from legally consenting to sex, I have no doubt that JP took advantage of KJ’s vulnerability due to her use of alcohol, and cannabis on the evening in question. Despite this, he also supplied her with Xanax, which she took voluntarily. Although I have not found him guilty of Administering a Noxious Substance, supplying her with this drug prior to having sex with her is aggravating.
[57] I have no evidence concerning the risk that JP will pose to the community and his need for Sexual Offending Behaviour treatment. This is something that will have to be considered by the Correctional Service of Canada.
The Cardinal Principle of Sentencing is Proportionality
[58] 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.
[59] Lacasse also describes sentencing as a “delicate task”. Other cases have established the principle that sentencing is a highly individualized process.
Sentencing for Sexual Offences Against Children
[60] 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.
[61] 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.
Adolescent Girls are Disproportionately Victimized by Sexual Violence
[62] In the case before me, KJ was an adolescent girl at the age of 14, Indigenous, Autistic and extremely vulnerable. In Friesen, at paragraph 136, the Supreme Court of Canada cautioned sentencing judges in cases involving victims who are adolescent girls:
….courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and 314; L. (D.O.), at pp. 464-65, per L’Heureux-Dubé J.). In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy (I. Grant and J. Benedet, “Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019), 97 Can. Bar Rev. 1, at p. 5; “The ‘Statutory Rape’ Myth”, at p. 269; R. v. Hess, 1990 SCC 89, [1990] 2 S.C.R. 906, at pp. 948-49, per McLachlin J.).
[63] Just how disproportionately affected are adolescent girls?
[64] Professor Grant recently stated:
Sexual assault is gendered across all ages and especially so in adolescence. One study found that under the age of 11 girls experience sexual violence at a rate almost triple that of boys; for girls between the ages of 12 and 17, that rate jumps to nine times higher than for boys. Indigenous girls, girls with disabilities, and girls in state care are particularly vulnerable to sexual violence. Furthermore, sexual assault against boys peaks at a younger age than for girls. Specifically, sexual abuse against boys peaks under the age of 12, whereas for girls sexual abuse peaks around the age of 14, just where the mistake of age defence might be more plausible.
See, I. Grant, “The Slow Death of the Reasonable Steps Requirement for the Mistake of Age Defence”, 44 Manitoba Law Journal 4 at pages 3-4.
Sentencing Precedents from Cases which are Factually Similar
[65] The closest case to the facts before me is R. v. Audet, 2020 ONSC 5039, a decision of Justice C.M. Smith of the Superior Court of Justice. In Audet, the complainant was 15. She met the offender at the apartment of a friend. The sexual interference took place on their second meeting. He came at her and started kissing her. She attempted to resist by stating “no” and trying to push him away. He fingered her. She again resisted. He then took her to the bathroom and had vaginal intercourse with her.
[66] The offender proceeded to trial and relied upon, among other things, the defences of consent and honest but mistaken belief about the age of the complainant. Justice Smith rejected his evidence and found him guilty.
[67] The offender had a very troubled youth. His mother was a sex trade worker and as a child he was abused by her clientele. He managed to complete his Grade 12 and some post-secondary education. He had a criminal record which Justice Smith described as “becoming lengthy”, but which primarily had convictions for breaches and assaults. His longest pre-offence custodial sentence was 120 days. He used marihuana and alcohol regularly from the age of 12. He made light of the rehabilitation process to the author of his pre-sentence report, describing the court-ordered Partner Assault Response Program for one of his previous convictions as “stupid”. Justice Smith concluded that “the prospects for successful rehabilitation in this matter are bleak.”
[68] Justice Smith sentenced the offender to four years.
[69] Another case that is closer on its facts to the case before me is R. v. C.P., 2023 ONCA 70. I do not have the benefit of the trial judgment of Justice Libman. There is, however, a brief recitation of facts in the Court of Appeal’s judgment.
[70] The 14-year-old complainant skipped class and went to the Toronto Eaton Centre. While there she texted the accused, who was 35, with whom she had had a “prior interaction” and arranged to go to his house. There, he gave her ketamine, touched her with his hands, digitally penetrated her, had intercourse with her and put his penis in her mouth. She consented to all of the sexual acts except fellatio. He gave her MDMA after the sex. He told her that he had an eight-year old daughter and revealed that he was “30 something” years of age. She was “taken aback” by this and told him that she was 14. He appeared surprised and called a cab for her to go home. Justice Libman convicted and imposed a four and a half-year sentence. This was undisturbed on appeal which concerned Justice Libman’s application of the “mistake of age” defence.
[71] In R. v. D.F., 2024 ONSC 4621, Justice Tzimas dealt with the case of a 36-year-old offender who had sexual intercourse on two occasions with the 14-year-old daughter of his landlord. Prior to the sexual offences, the offender developed a relationship with the complainant as her “smoking buddy” for cigarettes and weed. The complainant was described as “troubled”. She had been drinking to excess in the first instance of sexual intercourse. She had a difficult relationship with her mother and the offender knew that she had a history of running away from home. The offender had a criminal record with 15 prior dispositions including convictions for robbery, domestic violence, possession of an unauthorized firearm and breaches. He had a dismal record of complying with court-ordered counselling. He was the victim of sexual abuse as a child. In the pre-sentence report, the Probation Officer indicated that the offender accepted responsibility for the offence but demonstrated limited insight into his behaviour.
[72] Justice Tzimas sentenced the accused to five and half years in the penitentiary. She noted that he had a “blatant disregard for this troubled 14-year-old” (at paragraph 68b). She also stated at paragraph 68h:
Although I hesitate to describe the relationship between D.F. and the complaint as trust-like, or that D.F. engaged in grooming in the conventional sense of that term, he was also not an arms-length tenant minding his own business. There is no doubt that D.F. cultivated and promoted a friendly relationship with the complainant and her family. He worked on breaking down the barriers between him and the 14-year-old complainant by demonstrating concern for the complainant’s injured foot, questioning her about wanting to smoke a cigarette, and then becoming her smoking buddy. D.F. shared food with the family, and he interacted with the complainant and her brothers from time to time. Through his actions, D.F. encouraged the complainant and her mother to trust him. In a very short period of time, D.F. went from a casual conversation about the complainant’s foot when she was sitting on the porch, to inviting the complainant to watch a movie together while smoking, and then having sexual intercourse. D.F. took advantage of the friendly and neighbourly disposition by both the complainant and her mother.
[73] The Crown urged me to find that the relationship between JP and KJ was similar to that in DF putting JP’s crime on par with DF’s. I agree with defence counsel that there are some significant differences between this case and DF, including:
a) JP and KJ met the night of the incident. Although JP offered his home to KJ on the night in question, there was no prior trust-building between them over a lengthier period as there was in DF.
b) DF knew that his victim was “troubled”.
c) DF knew that his victim was 14.
d) There was one instance of sexual intercourse between JP and KJ, not two.
e) JP’s criminal record is less serious.
f) DF had significant prior “difficulties in his relationships with women” (paragraph 68g), which do not appear to be present in JP’s case.
[74] On the other hand, DF presented a brighter outlook for rehabilitation than I find is the case for JP. DF also had the benefit of other mitigating factors in play, including:
a) He has the ability to hold employment.
b) He did not have addiction issues.
c) He has some mental health issues arising from being sexually abused himself as a child.
d) Although he maintained his innocence and was found guilty after trial, he was remorseful and accepted the Court’s finding of responsibility for his offence.
e) DF was a black man, but he was not able to obtain a Morris report.
[75] I agree that like DF, JP knew that KJ was afraid to go home to her mother. He knew that she was under the influence of alcohol, and later, marihuana. He gave her Xanax. He took advantage of her vulnerability which is extremely aggravating.
[76] For all of these reasons, I find that the appropriate sentence in this case is five years in the penitentiary.
[77] Pursuant to section 109 of the Criminal Code, I will make a ten-year firearm prohibition order against JP.
[78] Pursuant to section 487.051 of the Criminal Code, I make an Order for the taking of his DNA. This is a primary designated offence.
[79] Pursuant to section 161(1)(a.1) of the Criminal Code, I make a lifetime Order prohibiting JP from being within two kilometers of any place he knows KJ or CC to live, work, go to school, frequent or any place he knows that they are likely to be.
[80] Pursuant to section 161(1)(b), I make a lifetime Order prohibiting JP 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.
[81] Pursuant to section 161(1)(c) I make a lifetime Order prohibiting JP from having any contact with a person under the age of 16 years except:
a) in the presence of that person’s parent or guardian, who is aware of JP’s offending behaviour, and provided that JP is sober and the person under the age of 16 years is sober; or
b) with the approval of the Children’s Aid Society or Child Welfare Agency having jurisdiction over the person under the age of 16 years; or
c) incidental contact of short duration or contact during short commercial transactions.
[82] Pursuant to section 743.6 of the Criminal Code, I make an order prohibiting JP from having contact or communication directly or indirectly, by any physical, electronic or other means, with KJ and CC while he is serving his sentence.
[83] Pursuant to sections 490.012(1) and 490.013(1) and (2)(b), I make an order requiring JP to comply with the Sex Offender Registration Information Act, for a period of twenty years.
[84] Given that JP 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: March 27, 2025
Signed: Justice J.R. Richardson
Post-Script
Prior to reading this judgment into the record, Defence Counsel indicated that JP has 24 days of presentence custody. JP kept track of the number of days where he was in lock-down or housed three or four to a cell and his notes were marked as Exhibit 4. He invited me to provide additional credit above the usual Summers credit of 1.5:1, pursuant to the decision of the Court of Appeal in R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344. I agree that conditions at Ottawa-Carleton Detention Centre (O.C.D.C.) are harsh and deplorable. I find that granting JP with the additional credit sought by Defence Counsel would not render the sentence imposed unfit. Using 365 days as the basis of one year, the period of the sentence imposed in paragraph 76 is calculated as follows:
a) 24 days served; 48 days credit;
b) 1777 days left to be served.
Defence Counsel also sought a recommendation that JP be placed in “protective custody.” I recommend that the Correctional Service of Canada classify JP as quickly as possible and transfer him as quickly as possible to the institution where he can receive the sexual offending, substance abuse and psychological and/or psychiatric treatment he desperately needs.