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(3) 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(3), read as follows:
486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
DATE: 2025-04-16
COURT FILE No.: Toronto 22 30004754
Between:
His Majesty the King
— AND —
P.M.
Before Justice R. Wright
Heard on March 26, 2025
Reasons for Judgment released on April 16, 2025
M. Petrie — counsel for the Crown
J. Pyzer — counsel for the accused P.M.
Reasons for Judgment
WRIGHT J.:
[1] On September 6, 2024, following a trial, I found P.M. guilty of four counts: one count of counselling sexual touching, one count of sexual assault, one count of sexual interference, and one count of making child pornography. Conditional stays were entered on the counts of sexual interference and sexual assault pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.
[2] I am sentencing P.M. in relation to two counts that relate to a single victim and a single transaction. The victim was the daughter of P.M.’s partner at the time. He took advantage of an occasion when she was left in his care.
[3] The Crown seeks a sentence of four years’ jail: three years on the count of invitation to sexual touching and a year consecutive on the count of making child pornography. The Crown also seeks ancillary orders: a DNA order; an order under s. 161; an order under s. 109; a non-contact order while in custody; and a SOIRA order.
[4] The Defence submits that the appropriate jail sentence is 23.5 months, to be served conditionally, followed by a period of probation. The Defence opposes elements of the order under s. 161 but concedes that the other ancillary orders are appropriate.
The Offences
[5] At the time of the offences, P.M. was living with the victim, S.O., and her mother, H.F. He was in an intimate partner relationship with H.F. and would sometimes assist with caring for the children. There had been a prior discussion between S.O. and her mother, which P.M. may have been present for, about a yeast infection.
[6] S.O. was either nine or ten years old (due to when her birthday fell and when the allegations were reported to police, it is unclear whether she was still nine or had turned ten). On the day in question, she had been left under the supervision of P.M.
[7] P.M. told her to come into his bedroom. He told her to take her pants down and open her legs. She was sitting/laying half on his bed. He directed her to use her hands and open her “peepee.” She did not want to and told him she did not want to. He told her to look at her privates, and he said, “it's beautiful.” She was laying half on the bed with her legs raised, her knees bent and her bottoms around her ankles. He told her she had a yeast infection; she did not have a yeast infection.
[8] P.M. video-recorded this with his cell phone. She did not know he was taking a video; she thought he was using the phone as a flashlight. The video is more than 30 seconds in length and depicts the victim using her hands to manipulate and open the outer portion of her vagina while she is laying on the bed, nude from the waist down, with her legs spread and held up in the air. She can be seen to spread the external area exposing herself several times. P.M. counselled her to engage in this behaviour. A reasonable viewer, looking at this video objectively and in the context in which it was recorded, would see this recording as intended to cause sexual stimulation to some viewers.
[9] Several months later, H.F. discovered the video in P.M.’s deleted items folder on his cellular phone. She did not report him to police but did have a serious argument with P.M. and they separated for a time. The allegations were reported some weeks later in October when S.O. told a woman at school that P.M. had made a video of her privates.
[10] I have a Victim Impact Statement (“VIS”) completed by S.O. and H.F. It details the significant impact that these offences had on their family and their trust. H.F.'s children were taken away from her for a six-month period because of the charges. She has trouble sleeping and suffers anxiety. H.F. blames herself for bringing P.M. into their home. She feels she was manipulated. S.O. has a hard time trusting men. She doesn't ever like speaking about P.M. She has taken counselling, but still suffers from the broken trust.
The Offender
[11] I had the benefit of a Pre-Sentence Report. P.M. is 36 years old. He left school in grade 10 when he was accused of cheating. He has worked in a variety of areas: construction, cleaning, and in government. Since being charged with these offences he has gone to live with his father in Kapuskasing. He has not been working, as he has issues with his memory. He has been receiving Ontario Disability Support Program (“ODSP”) payments due to his memory issues.
[12] P.M. has a limited criminal record. He was found guilty of taking motor vehicle without consent and impaired driving in 2009. He was sentenced to one day jail on top of credit for pre-sentence custody and prohibited from driving for 18 months.
[13] P.M. had a difficult childhood. His mother died when he was 10 years old. He was subject to child protection proceedings prior to her death, as she was involved in alcohol and drug use. His father was an alcoholic, who has been sober for 30 years now, but was unable to care for him for long periods in his childhood.
[14] P.M. has experienced further trauma in his life. He reported being sexually abused by a babysitter when he was a child. He was also beaten up and left to die by drug dealers at the age of 16. He has had several mental health issues, including depression and two suicide attempts.
[15] P.M.’s father reported that P.M. had a difficult time in school. He began using drugs and alcohol at the age of 12, which led to a pattern of legal conflict. His father also confirmed that P.M. underwent multiple psychiatric hospitalizations due to anxiety, delusions, and other issues. His father has been supportive of P.M. and has been helping him since he was charged.
[16] P.M. has been through multiple treatment centres for substance use. He has now been sober for over five years.
[17] In his discussions with the report writer, P.M. expressed some delusional thoughts involving control by the military or famous individuals. For the last year he has been attending Reflexion Mental Health Counselling Services: he attends approximately every three weeks, but he has not shared the substance of his criminal charges with his counsellors. He was evaluated by a psychiatrist on December 18, 2024, and it was suggested that he take antipsychotic medication; P.M. was not open to taking medication and refused the suggested course of treatment.
[18] With respect to the charges, he told the report writer that they are not accurate. He did not provide any further information. He expressed limited insight or accountability.
Applicable Sentencing Principles
[19] Section 718.1 of the Criminal Code of Canada (“Code”) states that the fundamental principle of sentencing is proportionality. To be a fit sentence the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[20] Ss. 718.01 and 718.2 of the Code set out a number of other considerations:
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
718.2 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,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances,
shall be deemed to be aggravating circumstances.
[21] Other aggravating and mitigating factors and the offender’s personal circumstances must be considered, but “[w]here Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority.” See: R. v. Friesen, 2020 SCC 9 at para. 104.
[22] In Friesen, the Supreme Court of Canada sent a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability. Courts must impose sentences that are proportionate to the gravity of these offences and the degree of responsibility of the offenders, as informed by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness and the far-reaching and ongoing harm that it causes to children, families, and society at large.
[23] The focus of the scheme of sexual offences is on the wrongful interference with sexual integrity. The Court further observed that mid-single digit penitentiary terms for sexual offences against children are normal and upper-single and double-digit penitentiary terms should neither be unusual nor reserved for rare or exceptional circumstances. Substantial sentences can be imposed where there is only a single instance of sexual violence and/or a single victim. This is because even a single instance of sexual violence can permanently alter the course of a child's life.
[24] The Court set out a non-exhaustive list of factors to be considered in determining a fit sentence in cases of sexual offences against children:
(1) The higher the offender's risk to offend, the more the Court needs to emphasize the objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm;
(2) An offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who was a stranger to the child. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender's degree of responsibility;
(3) Sexual violence against children that is committed on multiple occasions and for longer periods of time should attract higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility;
(4) The age of the victim can be a significant aggravating feature because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthiness of the offender is enhanced in such cases;
(5) A child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non-resistance should not be equated to de facto consent and a victim's participation should not distract the Court from the harm that the victim suffers as a result of sexual violence. Adults always have a responsibility to refrain from engaging in sexual violence toward children.
(6) Defining a sentencing range based on the specific type of sexual activity at issue poses several dangers. In particular, Courts must be careful to avoid;
(a) Attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety;
(b) Assuming that there is correlation between the type of physical act and the harm to the child;
(c) Failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference is less pronounced; and,
(d) Understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts.
[25] S. 718.3(7) of the Code states that a sentence of imprisonment for a count of making child pornography should be consecutive to another sexual offence committed on the same victim. In R. v. S.C., 2019 ONCA 199, 145 O.R. (3d) 711, the Ontario Court of Appeal dealt with s. 718.3(7) and highlighted that it is not to be applied mechanically:
[17] Second, the Criminal Code does not mandate a purely mechanical approach whereby all sentences governed by s. 718.3(7) must be simply added up and imposed. Both at trial and in oral argument before us, the Crown properly conceded that s. 718.3(7) is subject to the totality principle. Section 718.3(7) must be read together with s. 718.2 (c) stating that “where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh.” In R. v. Ahmed, 2017 ONCA 76, 346 C.C.C. (3d) 504, this court dealt with s. 83.26 of the Criminal Code, which provides that a sentence other than one of life imprisonment, imposed on a person for a terrorism offence, must be served consecutively to any other punishment imposed on the person “for an offence arising out of the same event or series of events”. This court, following the Supreme Court of Canada in R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, stated, at para. 79:
The totality principle is a particular application of the general principle of proportionality. It requires that a sentencing judge who orders an offender to serve consecutive sentences for multiple offences ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.
[26] Sentencing must also consider the principle of parity. Section 718.2 (b) of the Code states that similar offenders who commit similar offences in similar circumstances should receive similar sentences.
[27] As to a Conditional Sentence Order ("CSO"), it is available if there is no minimum punishment prescribed, the offence does not fall into limited specific offences (which these offences do not), I impose a sentence of less than two years, and it would not endanger the safety of the community and is consistent with sentencing principles/purposes (Ss. 718-718.2).
[28] P.M. has served 11 days of pre-sentence custody attributable to these offences. Therefore, any jail sentence is to be reduced by 16 days.
Analysis
[29] There are several aggravating features in this case:
(1) Age: it is statutorily aggravating that the victim was under the age of 18;
(2) Her home: it is aggravating that these offences occurred in her own home, where she should have felt safe;
(3) Abuse of trust: it is significantly aggravating that P.M. took advantage of a time when he had care of S.O. The trust that was placed in him provided him the opportunity to commit the offences;
(4) The surreptitious recording: it is aggravating that he told S.O. he was checking her for a medical issue and recorded her without her knowledge; and,
(5) Impact: the significant impact on S.O. and her mother is a further aggravating factor.
[30] There are mitigating factors:
(1) Family support: P.M. has the support of his father, with whom he has been residing. His father’s support is to his credit;
(2) Counselling: P.M. has been attempting to address some of his issues with counselling. I view this as mitigating, but the weight to be accorded it is tempered by the lack of insight he has shown into his offending, and his lack of reporting of the allegations to his counselors, which impact his rehabilitative prospects; and,
(3) Mental health considerations: as the Defence submitted, his undiagnosed issues will make time spent in custody more difficult for P.M. and impact the role of specific deterrence. I have also considered that these issues and his memory concerns may be playing a factor in his lack of insight.
[31] Both counsel provided sentencing authorities to help support their positions. The Crown relies on:
(1) R. v. J.T., 2021 ONCA 392: Zarnett J.A. substituted a sentence of two years jail and two years probation where the trial judge had sentenced the offender to nine months jail. The accused's sons had invited friends for a sleepover. Late at night, the accused directed the six- or seven-year-old victim into the bathroom and used her hands to rub his penis. After he told her she could put her mouth on his penis, she pulled away and left the room;
(2) R. v. G.R., 2020 ONSC 7411, aff'd 2022 ONCA 374: Bloom J. imposed a jail sentence of five and a half years on a 50-year-old offender citing the age of the complainant (nine), the presence of multiple incidents, the accused's role as a caregiver, and the emotional harm to the victim and her mother as reflected in the VIS. The accused had no criminal record and was gainfully employed. The accused was the partner of the victim's mother. There were three incidents of inappropriate touching: (1) he rubbed her vagina inside her clothing, was laughing while he did so and would sometimes stick out his penis; (2) he held her on the floor and manipulated her nipples; (3) he touched her vaginal area with his finger under her clothes and rubbed his penis on her and her vagina;
(3) R. v. J.H., 2022 ONCJ 271: Rose J. imposed a jail sentence of four years concurrent on a guilty plea to counts of sexual interference and invitation to sexual touching. The victim was the 10-year-old daughter of J.H.’s intimate partner. The abuse occurred on four or five occasions and included kissing the victim’s breasts, digitally penetrating her and having her touch his penis. The victim was significantly traumatized by the offences and suffered ongoing issues; and,
(4) R. v. J.C., [2021] O.J. No. 7396: Masse J. imposed a total sentence of four years for three events of sexual offending, two breaches of court order, and a count of voyeurism. The offender was 48 years old and had an unrelated criminal record. There were two victims: his 14-year-old and 25-year-old nieces. He abused the 14-year-old over the course of a weekend, slapping her buttocks, giving her a massage in sexualized circumstances that included touching her side below her breasts, and touching her breasts and vaginal area while he pressed his erect penis against her back. The 25-year-old niece was living in his house and he surreptitiously took pictures of her naked or in states of undress. He also contacted her while prohibited from doing so.
[32] The Defence relied on:
(1) R. v. P.R.J., 2021 BCSC 2537: Davies J. imposed a CSO of 23 months, concurrent, on counts of sexual interference and invitation to sexual touching. The 40-year-old offender sexually offended against her daughter, on one occasion, by digitally inserting a finger into and kissing her vagina and causing her daughter to touch her own vagina. The offender was highly intoxicated on a combination of alcohol and prescription medication;
(2) R. v. J.M.H.K., 2021 BCPC 50: T.J. Gove J. sentenced the 47-year-old offender to six months custody and 18 months probation. The Crown had proceeded summarily. The victim was six and seven years old. The offending took place in her bedroom: the offender told her to take her clothes off and lie on her bed on her back, holding a book that she was apparently to read. He lay on top of her and rubbed his penis to her crotch area as he moved up and down without penetration for approximately seven minutes. This happened on at least 10 occasions; and,
(3) R. v. G. M.M., 2021 ABPC 253: C.J. Sharpe J. sentenced the 64-year-old offender to 15 months custody and two years probation, and rejected a request for a CSO. The Crown had proceeded summarily. The victim was his six-year-old niece. There were two days in which he touched her vagina over her clothing multiple times in her home.
[33] While these cases assist in applying parity, there are distinguishing features between each of them and the case before me. The cases that the Crown relies on for a sentence of four years generally involve multiple instances of abuse, although they do not include the making of child pornography. In the cases relied on by the Defence, there was the involvement of intoxication or the Crown had proceeded summarily.
[34] In my view, an appropriate total sentence, taking into account the mitigating and aggravating features here, is one of just over three years custody. I am considering the 11 days of PSC, credited as 17 days, and am imposing a total sentence of three years on top of credit for those 17 days. Nothing short of that length of sentence can appropriately account for the serious breach of trust and other aggravating features. If it were not for the mitigating features I have outlined, and in particular P.M.’s mental health issues, I would have imposed a total sentence of four years.
Sentence
[35] The total sentence will be three years after credit for 11 days PSC, credited as 17 days. To properly reflect the principle of totality, in accordance with R. v. Ahmed, 2017 ONCA 76 and R. v. Jewell, 100 C.C.C. (3d) 270 (Ont. C.A.), the sentence will be recorded as:
(1) For the offence of counselling sexual touching, credit for 17 days PSC followed by two years jail;
(2) For the offence of making child pornography, one year jail, consecutive.
Ancillary Orders
[36] There will be an order pursuant to s. 743.21 of the Code prohibiting communication with S.O. and H.F. while he is in custody.
[37] Pursuant to s. 109(2) of the Code, P.M. is prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for 10 years and from possessing a prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[38] SOIRA: s. 490.013(2)(b) applies. P.M. is ordered to report for 20 years.
[39] DNA: invitation to sexual touching and making child pornography are primary designated offences for the purposes of the DNA provisions. P.M. is ordered to provide such samples of his bodily substances as are reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act in relation to these charges.
[40] S. 161 Order: In my view, it is appropriate to mitigate his future risk by making the order given the significant breach of trust coupled with the concerns I have identified as to his insight and prospects. Therefore, pursuant to s. 161 of the Code, he is prohibited for a period of 20 years from his release from custody of:
(1) Attending any 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;
(2) Being within one kilometre of any dwelling where S.O. ordinarily resides;
(3) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and,
(4) Having any contact with a person who is under the age of 16.
[41] I am satisfied that the Victim Fine Surcharge would amount to an undue hardship on P.M., given his current memory issues and reliance on ODSP, and the impacts of these convictions on his future employment. It is waived.
Released: April 16, 2025
Signed: Justice R. Wright