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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-02-14
COURT FILE No.: Hamilton 998 23 47101722
BETWEEN:
His Majesty the King
— AND —
J.H.
Reasons for Sentence
Before Justice Davin M.K. Garg
Heard on February 5, 2025
Reasons released on February 14, 2025
Morgan Ross — counsel for the Crown
Geoffrey Read — counsel for the offender
Garg J.:
[1] I found the offender guilty after trial of sexually abusing his young daughter. She was eight years old at the time. The offender abdicated his duty to protect his daughter and instead became the person from whom she needed protection.
[2] This case requires me to impose a sentence that fully reflects the profound wrongfulness and harmfulness of sexual offences against children. At the same time, my sentence must reflect the systemic factors related to the history of Indigenous people in Canada that played a role in bringing this Indigenous offender before the court.
[3] These reasons explain how I arrived at imposing a global six-year jail sentence.
Circumstances of the Offences
[4] I concluded that the offender sexually abused the victim on two occasions.[1] The only reasonable conclusion is that the offender engaged in the forced penetration of the victim. I found him guilty of two counts of sexual interference and two counts of sexual assault. One count of sexual assault and one count of sexual interference were stayed pursuant to the Kienapple principle.
[5] The facts of each offence are as follows.[2] First, the offender entered the victim’s bedroom while she was sleeping and put his mouth on her vagina. She opened her eyes and saw what he was doing. The offender was bending down with his knees on the bed. His hands might have been on the outside of the victim’s thighs.
[6] Second, the offender entered the victim’s bed and used a body part to touch her in or around her bum. The touching caused her pain and pressure in the area. The offender kept holding the victim “in the downward dog pose” and returning her to that position when she tried to lay back down.
Circumstances of the Offender
[7] The offender was born and raised in Hamilton. He is currently 39 years old. He has seven children in total. He resides with his mother and his stepfather, whom the offender referred to in court as his father. The stepfather is the brother of the offender’s biological father. The offender has a fiancée, and they plan to marry after this court case. The offender was expelled from school in Grade 10 and did not return. He is not currently working. He has worked in roofing and renovations on-and-off since he was 18 years old, although the Gladue Report indicates that he previously worked full-time.
[8] The offender drinks alcohol and is currently diagnosed with severe depression and anxiety. He has been suicidal because he “feels like [his] life is over”. He uses cannabis frequently to cope with his mental and physical ailments.
[9] The offender has previously been on probation. He failed to report on some occasions but reported as directed for the most part. He took some sexual offending programming while on probation.
[10] I will canvass the offender’s circumstances in more depth later in these reasons.
Positions of the Parties
[11] The Crown seeks an eight-year custodial sentence and assorted ancillary orders. The defence initially sought a two-year sentence with probation or a three-year term. At subsequent sentencing proceedings, the defence asked for a conditional sentence with house arrest.
Legal Principles
[12] The goal of any sentence under the Criminal Code is to protect society, contribute to respect for the law, and help maintain a just, peaceful, and safe society. The fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence and the offender’s degree of responsibility. The sentence that I impose must be tailored to the offender’s personal circumstances and the circumstances of the offences that he committed.
Sexual offence against a child
[13] Sentencing for sexual violence against children must reflect society’s contemporary understanding of the nature and gravity of the offence. Sexual violence violates the victim’s personal autonomy, bodily integrity, sexual integrity, and dignity. The resulting impacts are wide-ranging and include emotional, psychological, and physical harm to the victim. Children who suffer sexual abuse are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, anxiety, depression, and poor self-esteem. These impacts ripple outwards, spreading damage to the victim’s family and community: R. v. Friesen, 2020 SCC 9 at paras. 56-64.
[14] The wrongfulness and harmfulness of sexual violence inform the gravity of the offence and the offender’s degree of responsibility: Friesen at para. 75. The sentence imposed must recognize (1) the inherent wrongfulness of the offence; (2) the potential harm to children; and (3) the actual harm suffered: para. 76. Sexual offences are inherently violent. It is inherently exploitative for an adult to exert sexual force on a child: paras. 77-78. The intentional sexual exploitation of a child is highly morally blameworthy because children are extremely vulnerable: para. 90.
[15] Many of these principles are recognized in the Criminal Code. Section 718.01 directs the court to give primary consideration to denunciation and deterrence when sentencing for an offence that involved the abuse of a person under eighteen years old. Section 718.2(a)(iii.1) deems it aggravating that an offence had significant impact on the victim considering their age and personal circumstances.[3]
Indigenous offender
[16] The offender in this case is Indigenous. The materials filed provide insight into the unique systemic and background factors that played a part in the offender committing the offences. Even in a grave case of sexual violence against a child, I must consider how these factors might mitigate the offender’s moral blameworthiness: Friesen at para. 92; R. v. R.S., 2023 ONCA 608 at para. 40; see also R. v. Gladue, 1999 SCC 69, [1999] 1 S.C.R. 688. Taking the offender’s background into account allows me to impose a sentence that is proportionate to his degree of responsibility: R. v. Ipeelee, 2012 SCC 13 at para. 73. His degree of responsibility is diminished to the extent that dislocation, marginalization, and racism could reasonably have contributed to his offending. An offender’s reduced moral responsibility must be reflected in the sentence imposed: R.S. at para. 54 per Paciocco J.A. (in dissent but not on this point).
[17] The application of Gladue does not depend on a causal connection between the offender’s Indigenous background and the offence. The only requirement is that the negative consequences of colonialism indirectly bear on the offender’s moral culpability.
[18] I must also consider the offender’s Indigenous heritage and experiences as an Indigenous person when assessing what sentencing procedures and sanctions might be appropriate, including opportunities for restorative sentencing: Gladue at paras. 66-69; Ipeelee at para. 61. The consideration of alternative sentencing approaches plays a part in the process of reconciliation:
… reconciliation is a long ‑ term project. It will not be accomplished in a single sacred moment, but rather through a continuous transformation of relationships and a braiding together of distinct legal traditions and sources of power that exist: Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 at para. 90.
[19] There is no rule that a court sentencing an Indigenous offender must give the most weight to the principle of restorative justice, as compared to other legitimate principles of sentencing. The relative weight to be assigned to restorative justice as against denunciation or deterrence will be connected to the severity of the offence. The principles of denunciation and deterrence may predominate where the offence is sufficiently serious: R. v. Macintyre-Syrette, 2018 ONCA 706 at para. 18; R. v. Wells, 2000 SCC 10 at para. 39; R. v. Kakekagamick, 2006 ONCA 49 at para. 42.
[20] It cannot be overlooked that the victim in this case is also Indigenous. The Court in Friesen explained that the sentencing court may consider the sexual victimization of Indigenous children when imposing sentence: para. 70. Section 718.04 holds that a court must give primary consideration to denunciation and deterrence when sentencing for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, including because the person is Indigenous and female. “There is no denying that Indigenous people…have endured serious injustices, including high rates of sexual violence against women”: R. v. Barton, 2019 SCC 33 at para. 198; see also R. v. Trudeau, 2024 ONCJ 119 at paras. 17-20.
Aggravating Factors
[21] Aggravating factors increase the gravity of the offence or increase the offender’s degree of responsibility: R. v. M.V., 2023 ONCA 724 at para. 46. Sentencing considerations that apply to all offences of a particular type are not “aggravating”: para. 49.
[22] There are many aggravating factors in this case.
Harm to the victim and her family
[23] It is statutorily aggravating that the offence significantly impacted the victim. I must consider the actual harm that the victim experienced from the offence. “This consequential harm is a key determinant of the gravity of the offence”: Friesen at para. 85.
[24] The victim articulated the harm in her impact statement. She talked about how the offender took away her “innocence, childhood, voice, and bravery”. She described her challenges at school: “I just did the bare minimum and handed it in”. She explained how she started experiencing depression and anxiety. “I have been on and off medication for years. Trying to figure out what fixes me, what helps me function without having a severe panic attack, anxiety”. She tried to take her own life. Her sister described the impacts she witnessed: “anyone who knows [the victim], can see how much this has hurt and affected her. My sister didn’t deserve this”. The victim’s mother expressed her view that the offender’s actions “broke [the victim’s] gentle spirit and stole her innocence”.
[25] Sexual violence also damages a victim’s relationship with their family and community: Friesen at para. 60. The victim’s mother and sister both described how the victim is resistant to receiving affection and physical touch from others. The mother explained how the family lost many long-standing relationships. She also blamed herself for not being aware of the offences at an earlier stage and not doing more to ask about what had happened.
Breach of trust and the victim’s young age
[26] It is statutorily aggravating that the offender abused a member of his family: s. 718.2(a)(ii). It is further aggravating that the victim was only eight years old at the time of the offence: s. 718.2(a)(ii.1). The offence constitutes a significant breach of her trust: s. 718.2(iii). Placing the breach on a spectrum highlights its gravity: Friesen at para. 126.
[27] It is hard to conceive of a more invasive breach of trust than a father committing sexual offences against his own daughter while she sleeps inside her bedroom in the family home: see Friesen at para. 128. The victim’s young age and vulnerable status increases the offender’s degree of responsibility and his moral blameworthiness: Friesen at paras. 90, 129; see also s. 718.04. As Akhtar J. held in R. v. N.K., 2024 ONSC 2761 at para. 47: “sexual violence in the home is particularly harmful and abusing a child whilst they are sleeping attracts the need to impose a higher sentence because such victims are helpless”.
[28] The offender also exploited his position of trust to discourage the victim from disclosing the abuse: see Friesen at para. 127. After one incident, the offender told the victim, “Shh. Don’t tell Mommy”. The trial evidence and the victim’s impact statement gave insight into how she struggled to disclose the abuse: “There were times in my life where I had tried my hardest to talk about what had happened to me and I found that I physically couldn’t talk”.
Multiple offences
[29] Given that I am imposing concurrent sentences, the sentence must reflect how the offender sexually assaulted the victim on two occasions. The multiple assaults increase the offender’s degree of responsibility and heightened the psychological harm to the victim: Friesen at paras. 131-133. “Each further instance [of sexual assault] shows a continued and renewed choice by the offender to continue to violently victimize children”: para. 133.
Degree of physical interference
[30] Courts have cautioned against downplaying sexual offences that involve less physical interference. In such cases, the harm and moral blameworthiness remain elevated. Nevertheless, the jurisprudence establishes that a sentencing court must consider the degree of physical interference. For example, the Court of Appeal has held that a higher sentencing range applies for cases of forced penetration: R. v. A.J.K., 2022 ONCA 487 at para. 77; R. v. R.S., 2023 ONCA 608 at para. 22; see also Friesen at para. 138.[4]
[31] The heightened degree of physical interference in this case aggravates the gravity of the offence and the offender’s moral blameworthiness: Friesen at para. 145. I find that the first assault involved the offender engaging in cunnilingus. And I find that the second assault involved the offender attempting to or succeeding in anally penetrating the victim. The victim’s description of the acts justifies these labels.[5] More than the label, what counts here is that the offender’s actions were highly physically intrusive and constituted a marked violation of the victim’s bodily integrity: see para. 146.
Criminal record
[32] The offender has a criminal record. He was convicted of a drug offence in 2004 and credited for five days of pre-sentence custody. He was convicted of assault in 2012 and received a suspended sentence. The offender was also conditionally discharged for the offence of corrupting a child with respect to the same victim.[6] The offence post-dates the present offences; I will not consider it on sentencing.
[33] The criminal record is relatively minor and does not disclose prior convictions for sexual violence. However, the record offsets the mitigation that would be afforded a first offender. It also shows me that the offender previously committed violent acts within the home.[7] This aspect of the record aggravates the offender’s moral culpability and enhances the need for specific deterrence.
Risk of re-offence
[34] It is difficult to assess the risk of re-offence in this case. There is no evidence going directly to this issue. I can draw an inference that the offender poses some risk given that he is not a first offender and committed the sexual offences on two occasions. I also note that the offender has not shown remorse or taken accountability for the present offences. This factor is not aggravating. Rather, it shows the absence of a mitigating factor and can limit the potential for rehabilitation: see N.K. at para. 49. Overall, I am prepared to find that the offender poses some risk of re-offence.
Mitigating Factors
[35] There are “unique systemic and background factors that are mitigating in nature” because they contributed to the offender’s conduct: Wells at para. 38.
Identifying unique background factors
[36] The offender identifies as Mohawk and Oneida with paternal ancestry from both Six Nations of the Grand River and the Oneida Nation in Wisconsin. His father died when he was two years old due to cirrhosis of the liver from alcohol poisoning. The offender did not have a close relationship with his stepfather growing up. The offender’s mother is non-Indigenous.
[37] The offender does not hold “Indian status” and has lost connection with his Indigenous heritage. When his grandmother married, she was enfranchised and lost her status. Enfranchisement was a method used to assimilate Indigenous people. It operated as an oppressive policy. Enfranchisement occurred to women and children regardless of whether they wished to retain Indian status. Upon losing her status, the offender’s grandmother “lost her connection” to her community and culture.
[38] Due to his distant relationship with his family and his grandmother’s enfranchisement, the offender never learned much about his Indigenous culture or family history. The only involvement he has with his culture is going to pow-wows or visiting cousins on the reserve. This lack of cultural identity can contribute to the offender feeling adrift with no real attachment to a group or place. Nevertheless, the offender has connected with some Indigenous resources in the community. While on probation, he attended the Hamilton Regional Indian Centre and completed the Kizhaay Anishinaabe Niin – I am a Kind Man. He believed this session improved his mental health.
[39] The offender did not describe any abuse from his parents. He said that he had “a pretty decent childhood”. The offender’s mother did her best to provide the offender and his sister with whatever they needed. The offender developed a positive relationship and a true bond with one uncle in particular. However, as the offender grew older, he began to witness alcohol and drug addiction in his family. The Gladue Report explains how colonialism led Indigenous people to question the application and effectiveness of Indigenous ways of healing and knowledge, which in turn contributed to the rise of substance abuse.
[40] The offender described sexual abuse that he experienced when he was seven years old and then again when he was 11.[8] The initial abuse was perpetrated by someone two years older than the offender. The latter abuse was perpetrated by a co-worker of his mother’s. The offender has not received counselling for these events or processed what happened to him. The Gladue Report explains how Indigenous cultural beliefs might contribute to the underreporting of childhood sexual abuse.
[41] During the preparation of the Gladue Report, the offender expressed his desire to attend culturally relevant therapy that helps him process his trauma and find more positive coping strategies.
Applying the background factors
[42] The application of Gladue does not lead to a race-based discount. But the unique systemic and background factors carry weight in determining the proportionate sentence. The offender experienced some significant harms in childhood and adolescence. The disconnection to his identity deprived him of another pathway to live a healthier life and process his trauma. The desire to attend Indigenous-based programming improves the prospect of rehabilitation, although it seems the offender did not take full advantage of previous opportunities to connect with his community.
[43] Overall, I find that the background factors reduce the offender’s moral blameworthiness.
Collateral consequences
[44] While not emphasized by the defence, I am mindful that a lengthy term of imprisonment will separate the offender from his fiancée and their two children. No specific information was provided about how the family would suffer in the offender’s absence. Nevertheless, the fiancée indicated that the offender was a “great father”. She expressed the following view: “I trust [the offender] fully and know that he would never do that to any child”.
[45] The collateral consequence emphasized by the defence is that the offender’s stepfather has limited years left to live and requires the offender’s help for personal care. For example, I am advised that the offender helps his stepfather in and out of the bathtub and is the only one available to pick him up when he falls. There are other people who assist the stepfather, but the offender’s absence would create a gap in his care.
[46] I accept that prison sentences often harm an offender’s family. Courts cannot let these consequences overwhelm the other principles of sentencing: R. v. Habib, 2024 ONCA 830 at para. 43. But judges must preserve the family as much as possible, which includes considering whether jail is necessary and how long the term should be: para. 44.
[47] I will consider the stepfather’s health and the offender’s caregiving when determining the length of the appropriate custodial sentence. But relying on this collateral consequence to impose a conditional sentence with house arrest would lead to an unfit sentence.
Challenging conditions in pre-sentence custody
[48] I can give the offender Duncan credit for challenging conditions in pre-sentence custody. This credit “addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody”: R. v. Marshall, 2021 ONCA 344 at para. 50. It “is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence”: para. 52.
[49] I decline to afford mitigation for the harsh conditions in pre-trial custody. While I can take judicial notice of those conditions to some extent, I was not provided case-specific evidence on the challenges endured by the offender. I also note that the offender was only in pre-sentence custody because he failed to re-attend court for his sentence: see R. v. Lanktree, 2024 ONCA 506 at para. 14. Finally, the offender has only been in pre-sentence custody for eight real days. Any mitigating potential would be minor when compared to the other factors in this case.
Quantum Analysis
[50] Mid-single digit penitentiary terms for sexual offences against children are normal. Upper-single digit and double-digit penitentiary terms are not reserved for exceptional cases: Friesen at para. 114.
[51] The case of R. v. R.S., 2023 ONCA 608 involved the sentencing of an Indigenous offender after trial for the offences of sexual assault and choking with respect to a single incident. The victim in that case was not a child. The offender attacked the victim, forcibly undid her clothing and underwear, removed her tampon, and penetrated her digitally. The Court held that deterrence and denunciation would normally require a sentence that ranged from three to five years: para. 4. After considering the Gladue principles, the Court acknowledged that the offender’s background reduced his moral culpability. The Court concluded that a three-year sentence was fit. This decision is helpful in that it showed how the Court of Appeal addressed the sentencing of an Indigenous offender, albeit in the context of an adult victim.
[52] The parties provided cases in support of their respective positions. I will outline some of the cases provided by the Crown:
R. v. J.F., 2021 ONSC 7613 – nine years imposed. The offender sexually abused his 11- to 15-year-old daughter. The sexual assaults progressed from fondling the breast area to the vaginal area to full intercourse on multiple occasions. Key distinguishing factors include the absence of Gladue factors and that the assaults occurred with some frequency over more than four years.
R. v. A.S., 2023 ONSC 983 – seven years imposed. The offender sexually abused his six- to 12-year-old neighbour. There were five incidents. No Gladue factors, but the offences were less physically invasive, and the breach of trust was less severe.
R. v. N.K., 2024 ONSC 2761 – seven years imposed. The offender sexually abused his eight- to 14-year-old stepdaughter. The offences were highly intrusive. No Gladue factors, and the offences occurred with much greater frequency over a long period of time. The offender also made the complainant watch pornography.
[53] I will outline some of the cases provided by the defence:
R. v. R.A., 2022 ONSC 1161 – two years imposed. The offender sexually abused his 11-year-old stepdaughter on two occasions. The offences were less invasive in that the offender kissed the victim and touched the inside of her vagina. The sentencing judge inferred harm to the victim. Unlike this case, the judge did not have the benefit of detailed actual harm to the victim and her family. I note that the Crown only asked for a 2-year sentence.
R. v. Roper, 2020 ONSC 7411 – five and a half years imposed. The offender sexually abused the nine-year-old victim. She considered the offender a father figure. The offender did not have a criminal record. The offender touched the victim’s vagina, touched her breasts, and placed his penis on her vagina. The offender had a limited role as a caregiver: para. 28.
R. v. T.J., 2021 ONCA 391 – two years imposed. The offender sexually abused the six- or seven-year-old victim on one occasion. The offender took the victim’s hands and placed them on his penis. He used her hands to rub his penis, which became aroused. While the offender’s conduct was highly morally blameworthy, the conduct in the present case was more severe.
R. v. H.K., [2022] O.J. No. 6144 (Sup. Ct.) – six years imposed. The offender sexually abused his daughter when she was between the ages of eight and 10. He rubbed his penis on her buttocks on multiple occasions, touched her vagina, and kissed her on one occasion. The offender had no prior convictions.
R. v. Gutierrez, 2023 ONSC 2990 – one and a half years imposed. The offender sexually abused his stepson and stepnephew during the 1990’s. I find it relevant that the judge imposed a carceral sentence after rejecting the joint submission for a conditional sentence. Prior to sentencing, the offender confessed to his crimes and expressed remorse.
[54] Sentencing is an inexact science. It is not my task to determine which prior case matches this case and impose that sentence. At the same time, the parity principle insists that similar sentences be imposed on similar offenders for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64 at para. 2.
[55] I have considered the recommended community treatment programs outlined at the end of the Gladue Report. However, I conclude that a non-custodial disposition, a conditional sentence, or a reformatory sentence with probation would be manifestly unfit. I prioritize denunciation and deterrence over restorative justice because the offence is extremely serious: see Macintyre-Syrette at para. 18. A penitentiary sentence is required.
[56] Some of the cases provided by the Crown involve frequent conduct over a longer timeframe. None of the cases involve the clear application of Gladue principles.[9] The A.S. decision is more on point when it comes to the number of assaults. And while the offender in that case occupied a position of trust, the breach of trust in this case was more severe. The offender in A.S. also did not have a criminal record.
[57] The complete sentencing analysis leads me to impose a custodial term of six years. I find that a six-year term is the least intrusive and the lowest quantum that will achieve the overall purpose of being a proportionate sanction. This sentence accounts for the offender’s reduced moral blameworthiness and prospects of rehabilitation while prioritizing denunciation and deterrence. The offender has a criminal record. He discouraged the victim from telling her mother about the abuse. The offence involved the sexual exploitation of an Indigenous child. The breach of trust was extraordinary. The victim was highly vulnerable by every metric. The impact was devastating and wide-reaching.
Disposition
[58] I impose a global six-year prison sentence.
[59] I credit the offender for eight real days of pre-sentence custody enhanced to 12 days. The remaining sentence is five years and 353 days in the penitentiary. The sentence is concurrent on both counts.
[60] I am obliged to make a SOIRA order: s. 490.012(1). The offender was convicted of designated offences (sexual assault and sexual interference), imprisoned for more than two years, and the victim was under 18. I fix the duration at 20 years.
[61] Pursuant to s. 743.21(1), the offender is prohibited from communicating directly or indirectly with the victim during the custodial period of his sentence.
[62] I make an order under s. 161 for a period of eight years. The overarching function of this order is to protect children from sexual violence. The order “constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and the content of the order must respond carefully to an offender’s specific circumstances”: R. v. Schulz, 2018 ONCA 598 at para. 41. Even if the offender poses a low risk of re-offence, it is appropriate to minimize the risk that he might pose to children for whom he stands in a position of trust: R. v. H.P., 2023 ONSC 4808 at para. 78; see also R. v. S.S., 2024 ONSC 3568 at paras. 62-68.
[63] The offender is prohibited from:
(a) being within one kilometre of any dwelling-house or school where the victim ordinarily resides or goes to school;
(b) 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
(c) having in-person contact or communication with a person who is under the age of 16 years, with the following three exceptions: (i) the offender can contact and communicate with his two children L.H. and O.H. if the offender receives permission from their mother, this permission can be revoked at any time; (ii) the offender can contact and communicate with children of any age if another adult is in the immediate physical presence; and (iii) the offender can contact and communicate with children of any age if he receives permission from the child’s legal guardian and that guardian is aware of the offender’s convictions, this permission can be revoked at any time.
[64] I order the offender to provide a DNA sample for these mandatory primary designated offences.
[65] I waive the victim surcharge.
Released: February 14, 2025
Signed: Justice Davin M.K. Garg
Footnotes
[1] The full facts are contained in the Reasons for Judgment at R. v. J.H., 2024 ONCJ 494.
[2] These offences were described as the second and fourth incidents in the Reasons for Judgment.
[3] See also s. 718.2(a)(ii.1).
[4] “Forced” simply refers to the absence of consent. It does not require added violence beyond the inherent violence of a sexual assault: R. v. S.W., 2024 ONCA 173 at para. 39.
[5] I did not use these labels in my Reasons for Judgment because it was unnecessary to label the acts to determine whether the offender had committed the offences charged. But for sentencing, I find the labels helpful in comparing this case to others. My underlying factual findings are unchanged.
[6] See R. v. J.H., 2024 ONCJ 311 at paras. 6-10.
[7] Gladue Report at p. 23.
[8] I will not detail this abuse. The offender requested that the Court handle his disclosure with discretion.
[9] The Crown also provided R. v. S.S., 2024 ONSC 3568. The offender received a seven-year sentence. No Gladue Report could be provided. The sentencing judge gave some limited weight to the offender’s Indigenous background: para. 60.