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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
DATE: February 18, 2025
Information No. 21-Y030-00
File No. 21-0770-00
Ontario Court of Justice
HIS MAJESTY THE KING v. J.G.
REASONS FOR SENTENCE
Before Justice M. Hornblower
On February 18, 2025, at Sarnia, Ontario
Appearances:
S. Carmody, counsel for the Crown
K. Marley, counsel for J.G.
HORNBLOWER, J: (Orally)
J.G. is the half-brother of C.W. J.G. is 5 1/2 years older than C.W. Between the time he was 13 and 18 he committed a number of sexual assaults on C.W. These began when C.W. was eight years of age and ended when she was 13.
The first instance of sexual activity began when they were eight and 13 years of age respectively. J.G. engaged in a game with C.W. whereby he would be bouncing her up and down on his lap. This activity initially occurred in open settings. Eventually the activities became sexual in nature and occurred in his bedroom. On at least one instance he removed her clothing and engaged in sexual activity with her. Thereafter he performed various sexual acts on her and forced her to perform sexual acts on him. These activities occurred in various places in the family home including the bedrooms of each of them. J.G. would often tell C.W. not to tell anyone or they would both get in trouble and that he would be taken out of the home. At times he spoke to her in a derogatory nature referring to her as "my little slut." At times C.W. resisted the activities and at other times would go along with them simply to get them over with.
Eventually she went along with the activities because it just seemed normal to her. Some of the incidents were physically painful for her. On some occasions it was simply a number of weeks between the incidents and at others a period of months. The sexual assaults continued over a period of five years.
The most recent activities occurred on three occasions in 2020, and it is these incidents that are the subject matter of the two charges to which he has pled guilty. The first was in the March/April timeframe, the second in the month of August and the third in the August/September timeframe. In October of 2020, C.W. mentioned the incidents to friends and ultimately to the police.
Following that disclosure, J.G. was charged with various offences that occurred while he was a young offender as well as an adult.
The incidents that occurred while J.G. was under the age of 18 are all acknowledged as having occurred and while beyond the jurisdiction of this Court for the purposes of sentencing, they are before the Court as part of the context for consideration in sentencing him as an adult.
It is agreed that where the facts make reference to sexual activities, they include touching and oral sex but do not involve penetrative sex.
The procedural history of this matter is of importance. Pleas to the adult charges were initially entered in front of another judge to get a pre-sentence report prepared. The matter then returned before me for sentence on February 12, 2024. At that time, the Crown read a set of facts into the record, and they were agreed to by counsel for J.G., and a finding of guilt was entered. We then embarked on the sentence hearing with the introduction of the victim impact statement from C.W.
At the conclusion of the statement being read into evidence, a brief recess followed. When court resumed, counsel for J.G. indicated that he was now instructed to take exception to some of the facts that were placed before the Court following the guilty plea. A very detailed set of facts had been placed before the Court. In that recitation of the facts, some of the incidents were described as including forced vaginal intercourse as well as anal intercourse. There were at least six acts of either vaginal or anal intercourse as well as acts involving digital penetration.
With the facts now in dispute, the matter was adjourned to allow counsel for the defense to consider the next steps given the disagreement over the facts.
Ultimately, Mr. Marley was retained as counsel. Various discussions occurred between Crown and defence which resulted in the facts being altered significantly to the facts that are now before me. Those facts are outlined in an agreed statement of facts on guilty plea, filed as Exhibit 5 on sentencing. That statement outlines in a number of paragraphs the abuse perpetrated on C.W. by her brother before he turned 18. As it relates to the two charges before this Court for sentencing, the agreed statement says simply this in paragraph eight: "The most recent incidents of abuse happened sometime in March to April of 2020, in mid-August 2020, and sometime in August to September of 2020."
After some questioning of counsel for the Crown and the Defense as to the nature of the abuse referred to in paragraph eight of the agreed statement of facts, the Court was directed to page seven of the Section 34 Assessment, and in particular the first sentence under the heading "Sexual Behaviour", as follows: "When discussing J.G.’s sexually harming behaviour that led to his charges, he acknowledged engaging in sexual touching and oral sex with his sister, but no penetrative intercourse."
After further discussions with counsel, it was agreed that the charges on which J.G. is to be sentenced consist of three acts of touching and oral sex. The incidents that occurred while he was under age 18 are before me only to be considered as part of the overall context in which the offences occurred.
The factual scenario on which J.G. is to be sentenced does not involve any instances of vaginal or anal intercourse or any instances of penetration. The original facts are not before me for consideration, and I have disabused myself of those facts, as I must.
It is the position of the Crown given the facts before me now, a period of incarceration of four years is appropriate. I would note that the Crown's position with respect to the facts that are no longer before the Court and are far more egregious, was also four years.
The defense suggests taking into account not just the facts but the unique circumstances of J.G., that a conditional sentence is appropriate.
Victim Impact
C.W. has provided two victim impact statements. The first is a recorded statement made to the police in advance of the pleas being entered. The second was given in court on February 12th, 2024, the date the pleas were entered. In each statement, one can hear the pain, the anguish, the confusion, and the torment that she has suffered at the hands of her big brother. While it may not do justice to the entirety of her statements, it is important to try and capture the essence of what she has described. In focusing on some of what C.W. has described in her statements, I do not do so to the exclusion of all that she has said but rather in an effort to capture that essence of what she has said. The following are some of her comments:
- Piece by piece little parts of me died until I just didn't fight it anymore;
- Yes I survived, but to survive parts of me had to suffer because of what J. did to me. My trust, my belief in people, my innocence was compromised, it hurt me in ways I can't describe;
- He made me afraid of everyone, afraid of glances and touches from everyone, even people I should trust, especially people I should trust;
- I was never safe. For a long time, nearly as long as I can remember, I didn't even know what safety felt like;
- I wonder what kind of monster can look at his baby sister, who loved him and looked up to him and do that;
- The mere idea of intimacy still makes me sick to this day, despite the fact that the abuse stopped years ago; and finally,
- What happened to me in that basement and elsewhere in the house was torture and it will follow me for the rest of my life, and I deserve justice.
C.W. has described that she considered her brother J. and indeed all of her brothers as superheroes. Understandably lost as a result of his actions are some of the things that a sister and her big brother would normally enjoy and the happy memories that would have been created. C.W. has indicated that she does miss some of the things that one would enjoy with a big brother. C.W. has expressed that she cannot begin to understand why her brother would do such things to her. That is something she should never have had to try to understand. It is something perhaps that will never be understood. She grapples with many emotions.
Most compelling perhaps is her description of her brother as a person she loved so much and yet who had hurt her so much. There has been a betrayal of trust and the betrayal of those things that lie at the heart of what a family is supposed to be.
C.W. suffers from post-traumatic stress disorder. A touch from someone, a look from someone and even words said by someone can all revisit memories of what has occurred to her. The trauma she has experienced will be with her for years if not for her entire life.
Over the period of time, she was subjected to sexually assaultive behaviour by her brother, C.W. began to resort to self-harm. At one point, she attempted suicide.
In her victim impact statement C.W. has indicated that she deserves justice. Indeed, she does. She has suffered significantly from the wrongs done to her by someone she was entitled to believe would never do her wrong. The determination of a fit sentence requires a Court to consider a number of factors: the impact on the victim, sentencing principles as outlined in the Criminal Code, the circumstances of the accused, aggravating and mitigating circumstances, as well as the law.
Circumstances of the Offender
At the time the offences were committed, J.G. was 18 years of age. However, the sexual assaults involving his sister began at an earlier age, when he was 13, and continued until he was 18. Because some of the sexual assaults occurred when he was a young offender, charges were laid under the Youth Criminal Justice Act and as part of those proceedings, a Section 34 Assessment was completed on July 15th, 2022. That assessment is before the court as is a pre-sentence report dated September 6th, 2023.
The Section 34 Assessment details a number of difficulties that J.G. has experienced over the course of his life, and which he continues to experience as an adult. From a young age, he demonstrated difficulties with self-regulation including inattention, distractibility, and impulsivity. When he was in grade seven, he was diagnosed with ODD, ADHD, disruptive mood dysregulation disorder, anxiety disorder, and there was a possibility of autism spectrum disorder. It was noted that his social skills were impaired and that he did not have the emotional responses that were typical of a child of his age.
The report also notes that throughout his lifetime J.G. has been easily overwhelmed in environments that are busy and have many people. School classrooms were given as an example of those types of environments. As a result of that difficulty, small classroom settings were made available for him in grades 10 and 11 and in those settings, he is reported as having done very well. However, when he returned to a regular classroom for either grade 11 or grade 12 it appears the difficulty with such an environment surfaced again with the result that he quit school at age 18.
While there was some uncertainty with respect to the autism spectrum disorder diagnosis, it appears from the assessment that that diagnosis was eventually confirmed. Page 11 of the report notes that J.G. demonstrates many features associated with autism spectrum disorder and goes on to list many of the deficits he has experienced all of which are consistent with ASD. At page 18, the report notes as follows:
"[J.G.’s] diagnosis of ASD can explain in part his difficulties with understanding social cues and understanding the impact of his behaviour on others. [J.G.] also struggles with social cognition, which can be a barrier in the development of appropriate healthy sexual relationships. Additionally, [J.G.] exhibits challenges with executive functioning, which can play a role in difficulties with regulating emotions, acting impulsively, and not appropriately considering the consequences of his actions. Moving forward it will be important for him to have intervention and support for his challenges, but to also be held accountable for inappropriate behaviour."
J.G.’s difficulties functioning with other people are highlighted in the report. The report notes that when he was interviewed for the assessment, he demonstrated an anxious presentation, had long hair which he indicated he sometimes used to hide behind during social interactions. He expressed that being seen by others makes him feel nervous. He shared that he finds socializing difficult and needs advanced notice to prepare for social interactions with others. He also expressed concern that he requires time, several days, to process and recover from the interactions. He expressed a negative view of people overall. He conveyed that he views people as disgusting like bugs. He experienced school as not pleasant due to the peer difficulties and overwhelming environment.
Family members have likewise commented on his inability to socialize with others. His grandmother describes him as being nonfunctional in social settings, being overly shy or unable to manage being in a room with a lot of people. His brother notes him as being nonsocial. The Section 34 Assessment notes that consistent with this, he has never been employed nor does he have career goals. It also notes at page 10, with respect to his emotional functioning and personality, that:
"results suggested that [J.G.] tends to act helpless and seek nurturance from others in a childlike and a passive manner. A characteristically depressive mood including a pessimistic outlook was indicated. [J.G.] appears to relate to others with little enthusiasm. His capacity to enjoy life appears compromised by his apathy and sadness. Significant symptoms of anxiety and somatic complaints were also in evidence. There was also a suggestion of a recent psychotic episode involving periods of regressive behavior, physical impassivity and the suppression of emotional expression and behavioural initiative. This may serve to deflect unexpected social pressures or anxieties."
The assessment also notes frequent suicidal ideation by J.G. which ideation he explains as resulting from the fact: "I don't like me."
There do not appear to be any concerns with respect to his intellectual capacity. When in school, he demonstrated an aptitude for many of his courses. J.G. has acknowledged knowing that what he did was wrong. The Section 34 Assessment notes that while he regrets his harmful behaviour with his sister, he does not demonstrate much empathy towards her.
Concerns are expressed that a risk analysis places him at medium risk for re-involvement in the justice system for general offenses, and at high risk for sexual offence specific recidivism. The author of the pre-sentence report expresses concern that he has not engaged in any type of assessment to explore his sexual interests or any counselling to mitigate the risk of sexual offending.
The Law
The approach to sentencing for offenders who have sexually assaulted a child is now governed by the principles outlined by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9. I do not intend to review these principles in detail as part of these reasons. Suffice it to say, the sentencing regime now recognizes that in assessing a fit sentence, a court needs to focus on the physical harm, as well as the emotional and psychological harm caused to the child and recognize that even a single instance of sexual violence can permanently alter the course of a child's life. In considering the harm to the victim, it includes harms that have not yet materialized but are reasonably foreseeable.
The principles of denunciation and deterrence are prioritized. Other sentencing objectives can still be given significant weight so long as they are not elevated to equal or higher priority. At the same time, courts are not to disregard relevant factors that may reduce an offender's moral capability, and the personal circumstances of an offender can still have a mitigating effect. Sentencing remains a highly individualistic process.
Friesen also speaks to the range of sentences, directing that mid-single digit penitentiary terms for offences of this nature are normal and upper single digit and double-digit terms should not be considered unusual nor are they reserved for exceptional circumstances.
Friesen outlines a number of significant factors to be taken into account in determining a fit sentence. These factors are in addition to other sentencing factors and include the likelihood to reoffend, the abuse of a position of trust, the duration and frequency of the incidents, the age of the victim and the degree of physical interference. With respect to the consideration of physical interference, courts are cautioned against minimizing the wrongfulness of the offense or the harm to the victim where conduct does not involve penetration, or fellatio. There is no clear correlation between the type of physical conduct and the harm to the victim.
As indicated, the defense is arguing that a conditional sentence is appropriate. Friesen makes it clear that a sentence in the mid-single digit range for sexual offenses involving children is appropriate and that only when there are exceptional circumstances can a court give consideration to a conditional sentence, or any other sentence for that matter, outside the range established by Friesen.
Friesen has been considered in a number of recent decisions of the Ontario Court of Appeal, among them: R. v. Faroughi, 2024 ONCA 178, [R. v. M.M., 22 ONCA 441], R. v. B.M., 2023 ONCA 224, [R. v. A.L., [2025] O.J. No. 86], and R. v. Pike, 2024 ONCA 608.
I turn first to the Ontario Court of Appeal decision of R. v. Faroughi. The appellant, Faroughi, had been convicted of two counts of child luring and one count of communicating for the purposes of obtaining for sexual consideration the sexual services of a person under the age of 18. A sentence of seven months imprisonment was imposed. It should be noted that the sentencing decision under appeal was made prior to the decision in Friesen. However, the principles from Faroughi apply in the post-Friesen era given that the appellate decision relies upon Friesen and its direction that denunciation and deterrence must be prioritized when sentencing an offender for sexual crimes against children.
At paragraph 73, the Court states as follows:
"nevertheless, conditional sentences can be appropriate in circumstances where denunciation and deterrence are the predominant sentencing objectives as such a sentence with punitive conditions can provide a significant amount of denunciation and deterrence. And the restraint principle continues to be applicable in circumstances where, like in this case, the primary sentencing principles are denunciation and deterrence. This Court has recognized that, in some exceptional circumstances, a conditional sentence may be fit for an offender convicted of sexual offences against children,” referring to R. v. M.M, and R. v. B.M. as examples.
In the determination of a fit sentence, the Court directs at paragraph 92:
"This determination starts with the recognition that the fundamental sentencing principle is proportionality, requiring sentences to be proportionate to the gravity of the offence and the offender's degree of responsibility: Friesen, at paragraph 30; R. v. Morris, 2021 ONCA 680. The restraint principle operates within the boundaries of the proportionality principle.”
At paragraph 93, the Court reemphasizes the direction from Friesen that
"courts must impose sentences that are commensurate with the gravity of sexual offences against children", and that "sentences for these crimes must increase, and mid-single digit penitentiary terms should be viewed as normal."
The Court goes on to reemphasize, at paragraph 99, that post-Friesen, conditional sentences will rarely be appropriate for sexual offenses against children.
In considering whether a conditional sentence is appropriate, the court in Faroughi followed a two-step process. The first required a preliminary determination that a penitentiary term is not appropriate and that if the statutory prerequisites in section 742.1 are met the court must then determine if a conditional sentence is consistent with the fundamental purpose and principles of sentencing. After emphasizing once again that a conditional sentence will rarely be appropriate for sexual offenses against children, the court went on to consider, at paragraph 105 that since the appellant was a first time offender and still a teenager at the time of the offense,
"the restraint principle, and the associated need to meaningfully consider the objective of rehabilitation, also take on an elevated importance."
Given the analysis that the court took in this case, it is clear that Friesen does not abrogate the principle of restraint. This is not to say that denunciation and deterrence do not remain paramount. They do. But due to the age and absence of a record, rehabilitation takes on extra weight, and the principle of restraint needs to be considered.
The appropriateness of a conditional sentence for sexual offences involving children was most recently considered by the Ontario Court of appeal in R. v. A.L., involving convictions for trafficking of a person under the age of 18; procuring a person under the age of 18; advertising sexual services; and publishing or possessing child pornography. After trial, a conditional sentence of 18 months was imposed. It was the position of the Crown on appeal that the trial judge did not follow the instructions outlined in R. v. Friesen and elevated the personal circumstances of the appellant over the paramount principles of denunciation and deterrence. The Court noted that while a conditional sentence was exceptional, there was no error on the part of the trial judge. At paragraph 17, the Court pointed out that Friesen reiterated the significance of the proportionality principle and the application of mitigating factors to reduce an offender's moral culpability, noting from Friesen that
"the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability."
The court went on to emphasize its decision in R. v. M.M., that conditional sentences for offences of this nature must be limited to exceptional circumstances that render incarceration inappropriate, providing as an example a medical hardship that could not be adequately addressed within a Correctional Facility could be an exceptional circumstance. There is not a closed list of the situations that can give rise to exceptional circumstances.
The court adopted the comments of Chief Justice Tulloch from R. v. Pike, explaining that the use of the term "exceptional circumstances" in M.M. is used as
"shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate, and that this interpretation is consistent with the principle that 'sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories.'"
The court also emphasized at paragraph 23 that nothing in Friesen changes the fact that sentencing is an individualized process that must satisfy the fundamental principle of proportionality.
I have also considered the decision of Justice Harris of the Ontario Superior Court of Justice in R. v. Rytel, 2019 O.J. No. 4856, primarily because of the similarity of the circumstances of Mr. Rytel, and J.G. That court was sentencing an accused convicted of the possession of a significant quantity of images of child pornography. Although decided prior to Friesen, Justice Harris placed heavy reliance on the principles outlined in R. v. Inksetter, 2018 ONCA 474, itself a pre-Friesen decision, but which outlined all of the principles later outlined in Friesen.
The issue before Justice Harris was the balancing of the seriousness of an offense which required a lengthy jail sentence consistent with the principles of denunciation and deterrence, with serious mental health problems faced by the accused. The court found that Mr. Rytel was profoundly impaired both cognitively and socially. The deficits under which he struggled were, to some degree, much greater than those of J.G. Additionally, Justice Harris had much more information before him about Mr. Rytel's mental health situation and the impact of a period of incarceration on that. Nonetheless, Justice Harris' observations and analysis are instructive. I would also note that Justice Harris found there was a causal connection between the offender's mental illnesses and his possession of and access to child pornography.
There is no significant causal link between J.G.'s mental health deficits and these offenses.
In examining the impact of mental health conditions on the nature and length of sentence to be imposed, Justice Harris said the following at paragraph 55:
"the second method by which a sentence can be reduced by reason of mental illness is the disproportionate and potentially crushing effect of incarceration on a mentally ill individual."
Finding that Mr. Rytel was so fragile that he could not withstand a jail sentence, Justice Harris observed that caution is appropriate when sentencing such an individual.
He also cautioned that fragility is not to be confused with what he described as an overly sensitive psyche which would not be a factor in considering the length and nature of a period of incarceration. But the evidence before Justice Harris satisfied him that he was not simply dealing with an overly sensitive psyche but rather, a fragile individual. That is the case here as well.
Based on his own observations of the accused before him as well as comments from family members and the psychiatric evidence, Justice Harris concluded as follows at paragraph 64:
"Mr. Rytel's vulnerability could not be more conspicuous. Jail can be and often is a very difficult and potentially dangerous environment to navigate. Mr. Rytel cannot cope with being around people and has no social skills of any kind. Furthermore, his very unusual appearance and his impairments would make him prime fodder for the cruelty which is a daily fact of life in that environment."
Having reached that conclusion, Justice Harris found that substantial time in jail would be disproportionate to the moral blameworthiness of the accused before him. The moral blameworthiness of J.G. is far higher than that of Mr. Rytel particularly given Justice Harris' finding of a connection between his mental health deficits and the commission of the offense. Nonetheless, the observations of Justice Harris are as relevant in this case as they were in that case.
Analysis
In assessing the fitness of a sentence, a court must also look to the aggravating and mitigating circumstances surrounding the offense and the offender. Paramount among the aggravating circumstances here is the age of the victim. Beyond that, while not in a caregiving role, there was a relationship of trust to some degree.
J.G. is C.W.'s older brother and was someone that she looked up to. The acts themselves were repetitive, demeaning, and persisted over a period of years. They all occurred in the family home, the one place where C.W. was entitled to feel safe and protected. There is a high degree of moral blameworthiness. J.G. knew what he was doing and that what he was doing was wrong.
The mitigating circumstances are but few. There is the fact of a guilty plea. That plea stands to some degree as an expression of remorse but more significantly did save C.W. the additional trauma of having to relive the events by testifying in what would likely have been a lengthy trial. J.G. is a first offender and at the time of the commission of the offences, was 18.
In the period following his arrest to this point, J.G. has done nothing by way of counselling. Had he taken positive steps in that direction, that would have been a mitigating circumstance. While the absence of any initiative on his part to seek counselling is not an aggravating circumstance it is nonetheless of significant concern. The Section 34 Assessment and the pre-sentence report identify J.G. as at a high risk for reoffending for sexual offences.
The issue to be addressed in considering all that I have outlined in these reasons is whether there are exceptional circumstances that warrant the imposition of a conditional sentence rather than a lengthy period of incarceration.
The Section 34 Assessment describes a person with significant social deficits that arise from a variety of mental illnesses that he has been diagnosed with. He is described by family members as being nonsocial and the history outlined in the Section 34 Assessment bears that out. J.G. could not function in an organized structured classroom setting. Special accommodation had to be made in order to allow him to function in a school type setting.
Jails are large, crowded and highly structured and regulated facilities. They are, as Justice Harris pointed out, often violent and highly perilous for vulnerable people. While somewhat speculative, perhaps given the somewhat limited information before me compared to what was before Justice Harris, it is easy to conclude that J.G. will not be able to function in any meaningful way in jail, essentially living isolated in his cell and likely being targeted for physical abuse. Suicide is a distinct possibility.
While there are programs in a custodial setting for offenders such as J.G., given his limitations, it is difficult to see how he would even participate in them let alone get anything out of them.
Notwithstanding the aggravating circumstances and in particular the high degree of moral blameworthiness of J.G., after considering all of the cases and applying the principles of both Friesen and Faroughi I believe that a conditional sentence is appropriate. It is consistent with the fundamental principles and purposes of sentence and will not pose a danger to the public.
Containing a condition as it will requiring the participation in counselling, there is a far greater likelihood that that counselling will be successful in this setting largely as it will be a setting in which he is far more likely to participate in counselling.
In addressing the issue of counselling generally and rehabilitation in particular, I am not giving greater weight to the principle of rehabilitation. Friesen provides that it remains a principle which is given extra weight in circumstances such as these with a youthful first offender.
These reasons to be served in the community for two years. The conditional order will be followed by a period of probation of three years.
For these reasons, then, there will be a conditional sentence imposed for a period of two years, less one day. That will be followed by an order of probation of three years, the maximum probation term allowed.
Terms of the Conditional Sentence Order
- It is a reporting requirement, to report in person today to the conditional sentence supervisor and after that as directed by the supervisor.
- The reporting requires throughout the duration of the conditional sentence order.
- You are to cooperate with the supervisor, signing any releases necessary to permit the supervisor to monitor compliance, and you must provide proof of compliance with any condition of this order to your supervisor on request.
- You are to reside where directed and approved by the supervisor, so there can be no change of that address without the consent of the supervisor in advance.
- The house arrest condition is in effect for the full duration of the sentence.
- There are exceptions, as are typically in such an order: medical emergencies involving yourself or any immediate member of your family, going directly to, from and being at court attendances, medical, legal or dental appointments, for going directly to or from and being at assessment, treatment or counselling sessions.
- You will need to confirm your schedule in advance with the supervisor setting out the times for these activities with the prior written approval of the supervisor, which is to be carried on you at all times, for carrying out any legal obligations regarding compliance with this order. And to acquire the necessities of life on a date and times as set by the supervisor in writing.
- You are not to change your place of address without obtaining the consent of the supervisor.
- You are not to permit any persons whatsoever into your residence except for those approved in advance in writing by the supervisor and you're to present yourself at the doorway upon the request of your supervisor or a peace officer for the purpose of verifying your compliance with home confinement.
- GPS provisions will apply. You are to report to the supervisor for the purpose of arranging enrollment in the GPS monitoring program.
- After completing that intake process, you are then to go directly to your approved residence and observe a term of complete house arrest until the GPS unit is installed. There are no exceptions to that term of house arrest.
- The GPS monitoring program is in effect for the entire length of the sentence.
- You will be subject to the monitoring of that program in accordance with the rules and protocols outlined as Schedule A to this conditional sentence order, which forms a part of this conditional sentence order, which needs to be followed.
- You will follow the instructions of the conditional sentence supervisor or representatives with respect to the installation of the GPS monitoring ankle bracelet and any associated condition.
- You are to have no contact, communication, or association, directly or indirectly with C.W. or any other person named by your supervisor to remain away from.
- You are not to be within 500 metres of any known place of residence, education, or employment of C.W. and you are to remain at least 500 metres away from her person.
- You are not to have in your possession any weapons as defined in the Criminal Code.
- You are not to possess, consume or purchase alcohol or other intoxicating substances.
- You are not to possess or consume any unlawful drugs or substances under the Controlled Drugs and Substances Act.
- You will have to attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the supervisor. Complete them to the satisfaction of the supervisor, including but not limited to psychiatric or psychological issues, stress management, sexual offending, life skills or any other areas identified by the supervisor.
- You are to sign any release of information forms as will enable the supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed, providing proof of attendance and completion of assessments, counselling or rehabilitative programs as directed.
- As a further aspect of the non-association, no contact, communication, association directly or indirectly with any person under the age of 16 by any means unless approved in advance by the supervisor.
- There may be relatives, Mr. Marley, that can be sorted out by the supervisor.
K. MARLEY: Thank you, Your Honour.
THE COURT: I realize you were not trial counsel, were there any other conditions that the Crown would suggest as being appropriate? I think I have covered about all that is part of the forms.
S. CARMODY: I believe so. I believe so for the CSO order, Your Honour. Thank you.
THE COURT: All right. J.G., do you understand the terms of that order that I just imposed? You are indicating with a nod up and down you do. Failure to follow any of those terms violates the order. That would result in your immediate arrest and detention in a jail to determine whether you should continue to serve the sentence in the community or whether it should convert to a period of time in an incarceration facility. There is a presumption at law that people who violate the terms of a conditional sentence order should serve the balance of the sentence in a custodial facility.
That will be followed by an order of probation. The probation order is in effect for a period of three years. It is a reporting order of probation that requires that you report to a probation office within two working days of your completion of the conditional sentence order, after that as directed by the probation officer.
You are to reside where directed and approved by the Probation Office, which means you cannot change that address without the consent in advance of the probation officer.
You are to have no contact, communication, association directly or indirectly with C.W. or any other person named by your probation officer, remaining at least 500 metres away from any known place of residence, education, employment of C.W., and 500 metres away from her person.
You are to have no contact, communication, association directly or indirectly with any person under the age of 16, except with approval in advance in writing by your supervisor. That is contact by any means, which includes electronic means.
You will have to attend for any counselling recommended by the probation officer, including all of the counselling that I have outlined in the conditional sentence order, again providing consent to release of information, proof of attendance.
You are not to have in your possession any weapons as defined in the Criminal Code.
Do you understand all the terms of the probation order? Again, with the nod of the head, you are indicating you do.
Ms. Carmody, that pretty well mirrors the terms that are contained in the conditional sentence order. Anything else the Crown will be suggesting?
S. CARMODY: Not for the probation order. Thank you, Your Honour.
THE COURT: All right. Thank you. You indicated you understood the terms that the probation order. It is an offence under the Criminal Code to fail to comply with any of those terms. That would likely result in further criminal proceedings.
DNA is primary designated. There will be a DNA order. That can be taken today at the courthouse, am I correct? Thank you.
There will be a Section 109 order in effect for a period of ten years prohibiting you from having in your possession any firearms, ammunition, restricted weapons, prohibited weapons and devices.
Swara order?
S. CARMODY: Yes. The Crown is seeking a 109 order for life. They’re further seeking a Swara order for 20 years, and a Section 116(1) order for 20 years. I believe my colleague may have provided some case law as per the case in R. v. Brar 2016 Ontario Court of Appeal and the decision in the Supreme Court of Canada and R. v. K.R.J. 2016. The Crown is proposing the wording for the 116 order, prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, be within two kilometres of any dwelling house where C.W. ordinarily resides, not to seek, obtain, or continue any employment, whether or not the employment is remunerated, or become a volunteer in the capacity that involves being in a position of trust or authority towards persons under the age of 16 years. Don't have any contact, including communication by any means with a person who is under the age of 16 unless the offender does so in the company of another adult whom the Court considers appropriate.
THE COURT: Any comment, Mr. Marley?
K. MARLEY: I think I heard the Crown say two kilometres in terms of a territorial restriction in relation to the complaint, and I just wonder about in a community this size, whether that would preclude you from getting from a lot of points A to points B. I would suggest you consider the 500-metre radius that you included in your order.
THE COURT: Ms. Carmody?
S. CARMODY: I think it's appropriate, given the nature of the offences, and it's a minor inconvenience, in the Crown’s opinion.
THE COURT: Given the number and location of public parks, it would be very easy to be precluded from going to many places if the area were not reduced significantly. So I think the 500 meters is appropriate, otherwise the wording suggested by the crown for that order. The Swara order in effect for a period of 20 years.
K. MARLEY: Yes, Your Honour. I would just ask that you waive the victim fine surcharge given his financial circumstances.
THE COURT: Yes. Yes, that is waived. I believe that covers all the ancillary orders.
K. MARLEY: I believe so, Your Honour. Yes, thank you.
S. CARMODY: Sorry, Your Honour. You were imposing the Swara....
THE COURT: Pardon me?
S. CARMODY: You're imposing the Swara order as well as the 116(1) order?
THE COURT: Yes, I have made both.
S. CARMODY: Thank you.
THE COURT: Both are appropriate. The only concern I had with the 116(1) was the radius.
S. CARMODY: Okay. Thank you.
THE COURT: All right.
K. MARLEY: Thank you very much, Your Honour.
THE COURT: You are welcome. We will take a break, and I will come back in and sign that when it is ready. Thank you.
CLERK REGISTRAR: All rise.
THE COURT: Oh, the other charges are withdrawn, if they have not already been.
S. CARMODY: If that was the understanding, then yes.
THE COURT: That was my understanding that everything else was to be withdrawn.