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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT FILE No.: 0611-998-21-349
DATE: January 27, 2025

ONTARIO COURT OF JUSTICE
Central West Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

D.S.

Heard Before Mr. Justice Richard H.K. Schwarzl
at Orangeville on January 15, 2025
Reasons released on January 27, 2025

Mr. Robert Levan ................................................................................................... for the Crown
Mr. Richard Allman ............................................................................................ for the Offender

SCHWARZL, J.:

REASONS FOR SENTENCE

1.0: INTRODUCTION

[1.] Following a trial, I found the offender, D.S., guilty of all nine counts on Information 23-349. Verdicts and reasons were rendered on September 12, 2024. Those crimes were committed against his stepchildren, E.A. and A.S.

[2.] On January 15, 2025, a sentencing hearing was held. At that time, I stayed Counts 1, 4, 6, and 8 at the request of both counsel. Convictions were registered on one count of Sexual Assault, s. 271 CCC (Count 3) and four counts of Sexual Interference, s.151 CCC (Counts 2, 5, 7 and 9). Submissions were made in relation to these five offences.

[3.] A Pre-Sentence Report (PSR) was filed as were Victim Impact Statements from E.A. and her cousin J.G. A.S. declined to provide a statement.

[4.] The Crown submits that a global sentence of 4½ years in the penitentiary is appropriate.

[5.] The defence submits that a global sentence of 2 years less a day to be served via a Conditional Sentence Order (CSO) with full house arrest is fair and reasonable in the circumstances.

[6.] The parties jointly agree that the following ancillary orders be made on each count, namely: a 20-year SOIRA order; a s.109 Firearms Prohibition; a primary DNA Order; and a lifetime s.161 Prohibition Order.

2.0: CIRCUMSTANCES OF THE OFFENCES

2.1: The Offences against E.A. (Counts 2 and 3)

[7.] E.A. was born in 1992.

[8.] When she was between 13 and 14 years of age, the offender snuck into her bedroom one night and touched her buttocks over her clothes. She was so alarmed that she slept with a knife for protection in case he tried to do it again (Count 2).

[9.] When E.A. was between 15 and 17 years of age, the offender slapped her buttocks over her pants a few times, usually while he was intoxicated and always at the family home (Count 3).

[10.] When these crimes against E.A. were committed, the offender was between 46 and 51 years of age.

2.2: The Offences against A.S. (Counts 5, 7, and 9)

[11.] A.S. was born in 2001. All the offences against her were committed at home.

[12.] On one occasion when A.S. was between 8 and 12 years old, the offender touched her chest and vagina over her clothes while they were snowmobiling (Count 5).

[13.] On two occasions, the offender touched A.S. by approaching her from the rear in the kitchen and rubbing her inner thighs (Count 7). She was between 8 and 13 at the time.

[14.] Several times when A.S. was between 8 and 12 years old, the offender touched her vagina and clitoris under her clothes whilst watching television with her on the couch (Count 9).

[15.] When he molested A.S., the offender was between 49 and 54 years of age.

3.0: CIRCUMSTANCES OF THE OFFENDER

[16.] D.S. was born on December 8, 1959 in Quebec. He is presently 65 years old. He is a Canadian citizen who comes before the court as a first offender.

[17.] He is the middle child of five siblings. He presently lives with his younger sister, P.L. and her husband, as well as with his younger brother, G., in Mansfield Quebec. His sister is one of few family members aware of this case and she provides him with strong emotional support.

[18.] The offender assists his sister as a caretaker for G., who is paralyzed on one side of his body. In exchange for his help, the offender lives rent free in part because his only income is a very meagre pension.

[19.] Prior to moving back to Quebec, the offender had been in a long-term relationship with the victims’ mother and is the stepfather to her children. Prior to that, he was married to another woman and has four children from that union.

[20.] The offender has a grade six education and has worked nearly his entire life until leaving Ontario. While he was living with the victims and their mother, the offender provided them full financial support. At trial, he was described as a generous and often kind stepfather although E.A. disliked him and kept her distance from him.

[21.] Throughout the relevant times of these offences, the offender was a heavy drinker. Alcohol was a significant element in the commission of many of the offences. At present, he does not drink much and does not use drugs.

[22.] The offender denies committing the offences of which he has been convicted. At the sentencing hearing he told me, “I am innocent; that’s all I know.”

[23.] The PSR assesses that the offender is at a low risk of reoffending provided he has someone to monitor his activities and the company he keeps.

[24.] The offender has complied with all terms of bail since being charged several years ago.

4.0: ANALYSIS

4.1: Victim Impact

[25.] A.S. declined to give a victim impact statement. When she gave evidence at the trial, she made it clear that while the conduct of the offender was wrong, she has forgiven him. After these offences, and while she was still in high school, she lived with the offender and was not afraid that he would molest her again. That said, the offender was in a position of trust towards A.S. during the relevant times and he violated that duty when he committed these offences.

[26.] The impact on E.A. is palpable, deep, and long lasting. Despite her emotional distance from the offender while they lived together, these crimes have left an indelible stain on her sense of security and trust. She suffers continual stress and anxiety due to these crimes. She feels unsafe in public and is hypervigilant in fear that she might see the offender on the street.

[27.] J.G. was not a named victim but was a resident family member when some of the offences occurred. She was also witness to behaviour by the offender that, while not criminal, was certainly sexually inappropriate. It is not necessary to discuss that behaviour here as I reviewed it thoroughly in my reasons for judgment. The impact on J.G. is that she has had to deal with divisions and tensions within the family and suffers from persistent anxiety and loss of trust as a result.

4.2: Mitigating, Aggravating, and Other Relevant Factors

[28.] Mitigating factors present in this case including the following:

• (a) The offender is a mature adult and first-time offender;
• (b) He has complied with all conditions of his release over several years;
• (c) He has strong, albeit it limited, family support;
• (d) There is no evidence of grooming; and
• (e) The offender’s risk of recidivism is low.

[29.] There are aggravating factors in this case, including:

• (a) There are two victims;
• (b) He molested each victim more than once;
• (c) The duration of the offences spanned years;
• (d) The offences all occurred at home, which is a primary place of physical and psychological safety;
• (e) The victims were both members of his family: s.718.2(a)(ii) CCC;
• (f) each victim was under 18 years of age when the crimes were committed: s.718.12(a)(ii.1) CCC;
• (g) the age disparity between offender and victims was enormous;
• (h) there is significant victim impact on E.A.: s.718.2(a)(iii.1) CCC;
• (i) the offence against A.S. that happened on the couch involved a significant level of physical intrusion;
• (j) the degree of moral blameworthiness and responsibility of the offender for these offences could not be higher; and
• (k) the crimes involved an abuse of his position of trust as a parental figure to both victims: s.718.2(a)(iii) CCC.

[30.] I disagree with the defence that there was no breach of trust vis-à-vis E.A. Just because she considered him to be more like a friend than a father figure to her, the evidence established that as a provider to her of shelter, family trips, and as co-occupant of the home, he carried with him a duty of care and moral obligation to ensure that E.A. was safe from harm so long as she was a child living under his roof. His predations clearly breached his duty of trust towards E.A.: R. v. Aird, 2013 ONCA 447; R. v. M.M., 2022 ONCA 441.

[31.] Another relevant consideration on sentence is the collateral consequence of incarceration on the offender’s ability to act as a caregiver to his disabled brother. This collateral consequence is not unique. The prospect of family disruption is true for all offenders with families, whether or not they are caregivers. That said, the separation of this offender from his family will negatively impact his ability to care for his disabled brother and is therefore an appropriate consideration provided that the sentence imposed remains proportionate to the gravity of the offences and the responsibility of the offender: R. v. L.C., 2022 ONCA 863.

4.3: Whether a CSO is appropriate in this case

[32.] The defence submits that a Conditional Sentence Order is appropriate in this case. They acknowledge that the Supreme Court of Canada’s judgment in R. v. Friesen, 2020 SCC 9 states that penitentiary sentences for sex crimes against children should not be the norm. That said, Friesen did not exclude the availability of conditional sentences where the appropriate sentence is under two years in exceptional circumstances: R. v. M.M., 2022 ONCA 441; R. v. B.M., 2023 ONCA 224; R. v. A.L., 2025 ONCA 9, paras 16-21.

[33.] I must decide whether a global sentence of less than two years is fit in this case. If it is, then I must consider whether exceptional circumstances exist to justify a conditional sentence in the face of sex crimes against children. The phrase “exceptional circumstances” is shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate: R. v. Pike, 2024 ONCA 608, para 182. Multiple seemingly non-exceptional factors taken together can collectively render a conditional sentence proportionate: Pike, at para. 182.

[34.] The defence provided several precedents where sentences under two years were imposed both pre- and post- Friesen: R. v. Fulford, 2024 ONSC 4901; R. v. Gunaratnam, supra; R. v. P.S., 2021 ONSC 5091, amongst others. In most of the cases provided by the defence, they involved such elements as (a) offenders with serious health conditions (such as delayed mental development or Parkinson’s Disease), (b) remorse being shown, and (c) a joint submission in one case. None of these elements are present in the case at bar and are therefore distinguishable.

[35.] The case authorities cited by the Crown, while not on all fours with the facts here, demonstrate that penitentiary sentences are fit in circumstances not too different from these offences and this offender.

[36.] Upon considering the submissions of counsel, the guidance of the Supreme Court, Ontario Court of Appeal, and all the lower court cases provided about sentencing in child sex crimes, I am of the view that the appropriate global sentence in the circumstances of these crimes and this offender exceeds two years. Therefore, a conditional sentence is not available to the offender in this case.

[37.] Even if a CSO were available, I would not find any exceptional circumstances that would justify anything other than a carceral sentence in this case. While his incarceration will make it harder on the rest of the family to look after his brother, there was no submission that his absence will make this task untenable. No other exceptional circumstances were presented for consideration. Nor are the overarching principles of denunciation and deterrence adequately addressed by a CSO in the circumstances here.

4.4: The Appropriate Sentence

[38.] Balancing all the relevant mitigating, aggravating, and other features such as the collateral consequence of being unable to care for his brother, I find that a just global custodial sentence in this case is 40 months broken down as follows:

• (a) Count 2, s. 151 CCC: 6 months;
• (b) Count 3, s. 271 CCC: 8 months, consecutive to Count 1;
• (c) Count 7, s. 151 CCC: 26 months, consecutive to Counts 1 and 2;
• (d) Count 5, s. 151 CCC: 12 months, concurrent to Count 7; and
• (e) Count 9, s. 151 CCC: 8 months, concurrent to Count 7.

[39.] The ancillary orders agreed to by the parties shall also issue.

[40.] An order shall issue under s.743.21(1) of the Code naming E.A., A.S., and J.G.

[41.] Given the offender’s limited personal finances, the victim surcharges are waived on all counts.

Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice