CITATION: R. v. F.B., 2018 ONSC 5812
COURT FILE NO.: CR-17-506-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
F.B.
Erin Norman, for the Crown
Sweta Tejpal, for the defence
HEARD: September 13, 2018, at Brampton
REASONS FOR SENTENCE
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
L. Shaw J.
Introduction
1F.B. was convicted on May 28, 2018, of one count of sexual assault, one count of sexual interference, one count of invitation to touch for a sexual purpose to a person under the age of 16 years and one count of violating a s. 161 prohibition order. The Crown and defence agree that the counts of sexual assault and invitation to touch for sexual purpose are conditionally stayed under Kienapple: R. v. S.J.M., 2009 ONCA 244, at paras. 8-9; R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480 at p. 497.
2At the time of the offence, F.B. was 43 years of age. The victim, J.E., was 15 years of age. On October 16, 2016, as they drove in F.B.’s vehicle from Mississauga to Kitchener after midnight, F.B. touched J.E.’s thighs, breasts and vagina and penetrated her vagina with his finger.
3Prior to this assault, F.B. became aware of J.E.’s age. Knowing that she was under 16 years of age, he admitted exchanging texts with her in violation of an existing prohibition order that prohibited F.B. from communicating with a person under the age of 16, contrary to s. 161(4) of the Criminal Code.
4The sentencing hearing was originally scheduled for June 7, 2018, but was adjourned at defence counsel’s request and rescheduled to September 13, 2018. After hearing submissions, I reserved judgment. The focus of the sentencing hearing was on the fit and proportionate sentence in this case. The following are my reasons for sentence.
Circumstances of the Offence
5The circumstances and background of the offence are detailed in my Reasons for Judgment, R. v. F.B., 2018 ONSC 3319. F.B. met J.E. over a social media application called Whisper in early September 2016. J.E. was 15 years of age at the time and F.B. was 43, although he told J.E. he was 39. They communicated by exchanging messages on Whisper and then moved to communicating by way of text messages. They communicated almost daily. At the time, J.E. and her family had recently moved from Kitchener to Mississauga and J.E. was starting Grade 10. J.E. was unhappy about the move and leaving her friends and boyfriend in Kitchener. J.E. expressed her sadness to F.B. in many of their messages. Many of her messages were about her ex-boyfriend and her feelings of being lonely and upset. F.B.’s evidence was that he responded to J.E. with words of encouragement and support.
6F.B. and J.E. gave different versions about when F.B. first became aware that J.E. was 15. F.B.’s evidence was that J.E. initially told him she was 17 and she did not tell him she was 15 until after they met when he bought her alcohol. J.E.’s evidence was that before they met, when they were first exchanging messages, she told F.B. that she was 15 when he asked her. It was unnecessary at trial to resolve this conflicting evidence as F.B. admitted that at the time of the offence he knew that J.E. was 15.
7Within weeks of exchanging messages, J.E. asked F.B. to buy her alcohol. F.B. agreed to do so and they met in a parking lot at a plaza near her school, where he delivered the alcohol to her. This was the first time that J.E. and F.B. met in person. J.E.’s evidence was that F.B. requested something sexual in exchange for buying her alcohol. F.B. denied that he made that request. His evidence was that after he saw J.E. at the plaza, he thought that she did not look 17 and became very concerned about communicating with her given the s. 161 prohibition order. There was no other contact between F.B. and J.E. until she contacted him by text on October 15, 2016 asking for a drive to Kitchener.
8F.B.’s evidence was that during one text message exchange, prior to October 15, 2016, J.E. told him that she missed her boyfriend and was “horny” for him. F.B.’s evidence was that in reply, he suggested to J.E. that she call her boyfriend and have phone sex. He also suggested to her that she should perform fellatio on her boyfriend. F.B.’s evidence was that J.E. told him that while she liked to have sex, she did not like performing fellatio but did it just to keep her boyfriend. She also told F.B. that he should never ask her for fellatio as she would stop speaking to him. J.E. denied that his conversation occurred.
9F.B. and J.E. exchanged a series of text messages on October 15, 2016, before he agreed to drive her to Kitchener to see her ex-boyfriend, who she said was suicidal. F.B.’s evidence was that he did not want to drive her and tried to dissuade J.E. by telling her that he would drive her only if she performed fellatio on him. His evidence was that based on what she had told him before, he thought that she would stop speaking with him and would stop asking for a drive to Kitchener.
10After a further exchange of text messages, F.B. agreed to drive J.E. from Mississauga to Kitchener and made arrangements to pick up J.E. at a Tim Hortons near her home at midnight, after her parents had left for work. F.B. picked up J.E. and while driving along Highway 401, he touched J.E.’s thigh, breast and vagina and penetrated her vagina with his fingers. This continued for a few minutes and then ended.
11One week later, J.E. received a text from F.B. offering to drive her again.
Facts/Circumstances Relating to the Offender
12F.B. is 45 years of age. He comes from pro-social circumstances and enjoys the benefit of support from his family and common-law spouse.
13F.B. has a 12 year old son with whom he has a close relationship. His former wife has custody of their son. They have been separated since 2010. Prior to his arrest, he would spend three weekends per month with his son and spoke to him daily. F.B. has been incarcerated at Maplehurst Correctional Complex since October 24, 2016. During that time, his son has visited him on approximately 15 occasions. His son filed a letter in support of his father describing his love and affection for him. He would like to be able to spend time with his father and his common-law spouse on weekends upon his release from custody and for “the three of us to go back to how they were before he was arrested”. His son is aware of the offence his father committed.
14F.B. met his common-law spouse, K.C., in 2014 and they commenced living together six months thereafter. She is very supportive of F.B. She also has a relationship with his son and has maintained this relationship while F.B. has been incarcerated. She has incurred the expense of arranging phone calls between F.B. and his son. K.C. has visited F.B. regularly throughout his incarceration.
15K.C. also made arrangements for F.B. to pursue his education while incarcerated. In addition, she has arranged and paid for private counselling with someone specializing in sexual behaviours. K.C. has sought out her own private counselling to cope and to develop “important life tools to plan for a positive future upon F.B.’s release.” She plans to pursue joint counselling with F.B. She appears to be committed to her relationship with F.B. and has been and will continue to be a source of support for him.
16F.B.’s father filed a letter in support. He recognizes that F.B. has many personal challenges ahead of him and he will continue to support him upon his release. FB’s sister and aunt also filed letters of support.
17F.B. completed high school and entered the workforce at age 19. He worked continuously until he was convicted of an offence in 2012. He was sentenced for a period of custody following that offence and upon his release again found employment. He worked until he was charged with the current offence. He has worked as a cleaner while detained in pre-trial custody.
18In December 2017, F.B. began online studies through the Stratford Career Institute. He is taking courses in a business management program as he would like to start his own business upon his release. His interest is in music. He has successfully completed some courses with very good grades.
19A report was filed with respect to the counselling F.B. has had with Stephanie Swayne who is a social worker with a Master’s Degree in Social Work. She is a member of the Association for the Treatment of Sexual Abusers and has 12 years of forensic/psycho-legal clinical experience. She worked in the Sexual Behaviours Clinic at the Centre for Addiction and Mental Health between 2006 and 2015.
20Ms. Swayne saw F.B. for seven sessions between May 2017 and August, 2018. In her report, she described the difficulties in scheduling sessions with F.B. while in Maplehurst and noted that many attempts were made to schedule other sessions (approximately 25 times) but her efforts were negated by ongoing lockdowns at the facility and challenges with scheduling visits with the security office.
21In her report, Ms. Swayne described the challenges F.B. faced as a child dealing with his mother’s illness and parents’ divorce and then his mother’s death when he was a teenager. He had a difficult relationship with his father and his step-mother. He moved frequently after the age of 11 and described some bullying as a youth. He described himself as a loner as a teenager. He moved out of his father’s house when he was still in high school and moved in with his girlfriend (who later became his wife) and her family.
22F.B. reported to Ms. Swayne that he participated in mandatory counselling at the Ontario Correctional Institute (OCI) when he was incarcerated there from 2011 to 2013. He described it as a “good experience” and “he learned a lot about himself”. He participated in mandatory after-care counselling at the Mansa Clinic. He reported that these counselling sessions were extremely helpful. He reported learning about relapse prevention but over time started to have false expectation about risk management strategies. He felt he was no longer at risk of reoffending because he had learned tools to avoid and manage risk but now recognizes that risk management is an ongoing process. He reported that he struggles with boundaries in relationships and with seeking attention from “females” in general. He regrets not continuing with counselling after his incarceration and probation.
23F.B. expressed remorse to Ms. Swayne “regarding the choices that resulted in his first offence and his choices with respect to his involvement in the index offense, regarding speaking with a 15-year-old girl and not handling this situation differently”. Her report also states that “he has expressed remorse and regret for the impact of his actions on the victims/complainants as well as on his partner, son and family.”
24Ms. Swayne did not undertake a formal risk assessment. Her counselling discussions with F.B. included discussions about understanding and recognizing his offence cycle and risk factors and how he failed to recognize some of the risk factors that contributed to his poor choices. Poor choices that resulted in him being charged with this offence.
25Her opinion was that F.B. demonstrated insight into the decisions and attitudes that increased his risk and resulted in him being charged with this offence. She reported that he presented as “psychologically minded” and eager to resume a pro-social lifestyle. Her report also stated that F.B. hoped to continue to work with Ms. Swayne once he returns to the community.
26A Lock-Down Summary report from Maplehurst Correctional Complex was filed by Defence counsel. According to that report, as at September 3, 2018, F.B. had spent 679 days at Maplehurst in pre-trial custody. There had been 96 total lockdown days. He was triple bunked for 283 days in cells that are 9 feet by 11 feet.
27F.B. described to Ms. Swayne the conditions at Maplehurst. During lockdowns, no one is able to take a shower or shave or change their clothing for days. The rooms become dirty and foul smelling. F.B. reported experiencing periods of depression and suicidal thoughts given the cramped conditions. During lockdowns, there is no yard time and no access to natural light or fresh air. He reported incidents related to his personal safety. He felt fearful for his life.
28On May 30, 2012, F.B. was convicted of sexual interference, invitation to sexual touching and luring a child under the age of 16 years of age. He pleaded guilty and was sentenced to two years less a day for each of the sexual interference and invitation to sexual touching charges, served concurrently. He was also sentenced to six months for the luring offence, served consecutively, followed by three years of probation. At the time of this offence, F.B. was subject to a 20 year mandatory prohibition order pursuant to s. 161 of the Criminal Code.
29On November 24, 2016, F.B. was convicted of failing to comply with the s. 161 prohibition order and was sentenced to probation of 12 months. This offence related to F.B. attending his son’s baseball game at a public park.
30A Pre-Sentence Report was filed with the court. It had much of the same information regarding F.B.’s background, family, education and employment history as in Ms. Swayne’s report. The author described F.B. as co-operative and engaged during the interview. It was reported that he appeared to show some remorse for his offence and “regretted putting himself in a position that led to his offence.” F.B. told the author that he denied being attracted to pre-pubescent or pubescent females. He denied using the internet to target or groom J.E. He told the probation officer that he was communicating with J.E. because he was bored.
Victim Impact
31Sexual offences, particularly those involving children, have devastating impacts on the victims. J.E. was such a child. J.E. filed a Victim Impact Statement describing the significant emotional impact the offence has had on her. She described using drugs, such as marijuana, to try and numb herself into not thinking about the memories of the offence. She described feeling worthless and stopped taking care of herself and barely left her room after the offence. She stopped going to school as she felt like everyone knew what had happened and people were talking about her. She failed four classes in Grade 10. About one month after the offence she tried to kill herself by putting a plastic bag over her head, but her mother knocked on the door and she did not carry through with the attempt.
32J.E. also described deteriorating relationships with her family. She continues to have body image issues and recurring nightmares of the sexual assault. She also has nightmares of F.B. harming her. She described waking up crying and not being able to go back to sleep.
33She described mood swings. She began cutting herself shortly after the offence as she felt like she was numb and she wanted to feel pain. She saw her family doctor and was prescribed anti-depressants.
34The Victim Impact Statement clearly reveals that J.E. has suffered profound harm since this assault. While the nature of the assault itself may be less egregious than others, this court must consider the impact on J.E. in determining the fit and appropriate sentence.
Position of the Crown and the Defence
35The Crown seeks a sentence of three years of incarceration for the sexual interference count and one year for the breach of the s. 161 prohibition order, consecutive, for a total of four years. The defence seeks a sentence of time served followed by three years of probation.
36The Crown and Defence agreed on the following ancillary orders:
(i) An order pursuant to s. 743.21 of the Criminal Code that F.B. has no contact with J.E.;
(ii) An order requiring F.B. to comply with the Sex Offender Information Registration Act for life under s. 490.013(2.1) of the Criminal Code;
(iii) A DNA sample pursuant to s. 487.051 of the Criminal Code;
(iv) A weapons prohibition pursuant to s. 109(1)(a) of the Criminal Code for life;
(v) An order pursuant to s. 161(a), (a.1), (b), (c) and (d) of the Criminal Code for life subject to modifications.
37The orders made under s. 161 are discretionary and the court has some flexibility in making the appropriate order. In this instance I agree with counsel that some flexibility is necessary. The Crown and defence both agreed that the prohibition order under s. 161 should be modified so that F.B. can attend at public parks or public swimming areas or school grounds, playgrounds or community centres if in the presence of his son (or other biological child that may be born) and a supervising adult.
38With respect to use of the internet, in R. v. Brar, 2016 ONCA 724, the court recognized the reality that at least some form of access to the internet is simply unavoidable for innocent purposes such as accessing services and finding directions. It also recognized, at para. 24, the pervasive use of the internet in society and that it is used for such activities as shopping, corresponding with friends and family, finding employment, banking, reading the news, watching movies and attending classes. The court therefore varied the prohibition order made by the sentencing judge under s. 161(1) (c) and (d) and set out a more flexible approach to restrictions with respect to use of a computer. In this matter, the Crown and defence have both agreed with the terms of the prohibition order as set out in para. 29 of Brar.
Principles of Sentencing
39The principles of sentencing are set out in sections 718, 718.1 and 718.2 of the Criminal Code. According to s. 718.1, the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.01 is of particular importance as it provides that 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.”
40Defence counsel referred to the sentencing principles and objectives as summarized in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. Gascon J., in dissent, summarized at para. 127 the principle that sentencing judges must take into account the objectives of deterrence and rehabilitation, any relevant aggravating and mitigating circumstances relating to the offence or the offender, and the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
41With respect to cases of sexual offences, Brar states at para. 16 that in cases of sexual crimes involving children, the principles of denunciation, deterrence and public safety must take precedence over other recognized objectives of sentencing, including rehabilitation.
42The seriousness of the crime of sexual interference is reflected in the severity of potential punishment: a maximum of 14 years. Courts have also recognized the emotional trauma and physiological harm to victims of these crimes which can result in permanent and life-long struggles. In R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, Moldaver J.A., as he then was, said at para. 76:
I wish to emphasise that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it.
43With these general sentencing principles and objectives in mind, I must now determine the just sentence for F.B. in relation to the conviction before me.
Aggravating Factors
44F.B. has a prior conviction for a similar offence of sexual interference and invitation to sexual touching. The victim was of a similar age. This is an aggravating factor.
45F.B. denies being attracted to young pubescent girls. This is troubling as both offences for which he has been convicted involved girls under 16. While F.B. says he found the counselling he received following his first conviction helpful and while he has engaged in a number of sessions with his current counsel, he lacks a fundamental insight regarding this characteristic of his victims. This lack of insight is a factor in determining a fit sentence both in relation to the need for specific deterrence and with respect to the prospect for rehabilitation: R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, at para. 57.
46According to F.B., the counselling he received at the Ontario Correctional Institute and mandatory aftercare counselling was a good experience and he learned a lot about himself. F.B.’s attendance in counselling while in pre-trial custody reflects positively on the prospect for rehabilitation. However, this offence occurred despite the counselling he received following his first offence. The counselling F.B. received following the first offence did not deter him from joining an anonymous website that minors could join. It also did not deter him from supplying alcohol for someone he knew was not of legal drinking age, and then, once being informed of J.E.’s age, making a request for a sexual act, and then ultimately committing sexual assault.
47In addition, while F.B. has expressed remorse, his remorse is for putting himself in a situation that led to the offence and not for the offence itself. This is not an aggravating factor, but demonstrates a lack of appreciation of, and insight into, the offence itself. This lack of appreciation may mitigate the rehabilitative effects of counselling.
48J.E.’s age is also an aggravating factor. I also consider the significant age gap between F.B. and J.E. to be an aggravating factor. Also troubling is that F.B. knew J.E. was going through a difficult time and was feeling sad and lonely. He nonetheless proceeded to engage in sexual discussions with her, by his own admission, knowing she was 15. He knowingly defied, for a second time, the s. 161 prohibition order. On the night of the offence, he knew that she was in a very vulnerable position as her ex-boyfriend was suicidal and she was looking for someone who could drive her, in the middle of the night, to see him. F.B. took advantage of her young age and vulnerability.
49I also consider as an aggravating factor the impact this offence has had on J.E. Her Victim Impact Statement describes the devastating and lasting impact of the assault. The trauma in her life continues. It has affected her schooling, relationships with her family and her health. Her struggles have even led her to attempt suicide.
50Another aggravating factor is F.B.’s grooming of J.E. At para. 140 of my Reasons I found that F.B. capitalized on J.E.’s vulnerability by first offering her emotional support, then buying her alcohol knowing she was underage. He ultimately agreed to drive her to Kitchener, knowing that she was only 15 years of age and dealing with a friend in crisis. He also admitted to initiating conversations of a sexual nature with J.E. prior to the sexual assault. F.B. denies grooming J.E., which again indicates a lack of insight into the nature of his offence.
Mitigating Factors
51Crown and defence counsel agree that the number of lockdowns at Maple Hurst Correctional Complex (where F.B. has been detained for 716 days as at the date of sentencing) and the inhumane conditions given the size of the cells and the number of days he was tripled bunked are mitigating factors for this court to consider. As Goldstein J. noted in R. v. Jama, 2018 ONSC 1252 at para. 20, unacceptable conditions in a jail should not be normalized. He also noted that people detained enjoy the presumption of innocence.
52F.B.’s pro-social circumstances including a continuous work history and supportive common-law spouse and family are also mitigating factors. His common-law spouse, in particular, has demonstrated her commitment to F.B. by maintaining her relationship with his son, arranging for phone calls, visiting him regularly while detained, arranging for counselling and assisting him with his education.
53Another mitigating factor is F.B.’s continuous work history prior to his incarceration, and his work history while in Maplehurst. He has also used his time in a positive manner by furthering his education and engaging in counselling. His marks from his completed courses are very good. Furthermore, he is not someone who simply says that they plan on attending counselling; he has actually engaged in a number of sessions while detained. These are also mitigating factors that I have considered in reaching my sentencing decision.
54The report from Ms. Swayne indicates that F.B. is committed to the counselling process and demonstrates the efforts he has made in attending the sessions. Her report is supportive of F.B.’s willingness and ability to engage in counselling, which is a positive indicator for a successful reintegration into the community.
The Constitutionality of the One Year Mandatory Minimum Sentences
55Defence counsel filed the decision of Code J. in R. v. Hussein, 2017 ONSC 4202. At para. 25 he noted that three judges of this court have struck down the mandatory minimum sentences on the basis that they violate s. 12 of the Charter of Rights and Freedoms. At para. 28, he stated that decisions by a judge of this court should generally be followed by other judges of this court. Code J. found that the one year mandatory minimum sentences for sexual assault, sexual interference, and invitation to sexual touching are of no force and effect. Harris J. made the same finding in his decision of R. v. H.L., 2018 ONSC 1026 at para 48. I agree with both Code J. and Harris J.
Case Law
56I have considered the authorities provided to me by counsel. In reviewing these authorities, I bear in mind that the sentencing objective is that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The reality, however, is that no two cases are alike and sentencing must always remain an individualized process: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 92.
57Fairburn J., as she then was, discussed the broad range of sentences available in cases of sexual interference and noted that much turns on the circumstances of the case and offender: R. v. J.D., 2015 ONSC 5857, at paras. 27 and 30.
58In R. v. R.D.T., 2018 ONSC 3241, the offender was sentenced to 22 months. He was 22 years old at the time he touched the victim’s vagina and breasts. She was 14. He attempted to do so more than once. The impact on the victim was traumatic and she subsequently died of self-inflicted injuries. Leach J., found that an aggravating factor was that the offender lacked insight into the offence. This was his second offence. He had counselling following his first offence. The victim was his step-sister. The impact of the offender’s assault was devastating. The mitigating factors were that he was still relatively youthful, was prepared to engage in counselling and, despite the two convictions, demonstrated the capacity to lead a pro-social life.
59In Hussein, Code J. sentenced the offender to 15 months in prison followed by two years’ probation on a count of sexual interference. In that case, the offender and victim had become involved in some kind of boyfriend-girlfriend relationship when the victim was 13 and the offender was 27. The offender and victim agreed that she wanted to see him and they made arrangements to meet. The assault occurred in the victim’s bedroom. The main aggravating factor was that the offence involved full intercourse with a 13 year-old girl and that the offence had been committed after the offender was told her age by the victim’s mother, who warned him to stop communicating with her. The victim did not provide a Victim Impact Statement. The mitigating factors were that the offence related to a single incident, that the accused’s fault was based on a lack of due diligence or failure to reasonably ascertain the victim’s age, and that the accused was a first-time offender who had a supportive family.
60In R. v. D.M., 2012 ONCA 894, 299 O.A.C. 202, at para. 68, the Court of Appeal found that in child sexual abuse cases where the court upheld or imposed penitentiary sessions of five years or more, one or more of the following aggravated circumstances was present:
Sexual assault (vaginal or anal)
Oral sex
Incest
More than one victim
Grooming of the victim
Other acts of physical violence or threaten physical violence or threaten physical violence to obtain compliance and keep the abuse secret
A previous criminal record for sexual abuse
61In this case, at least three circumstances are present. F. B. had a prior criminal record for sexual abuse, groomed the victim by exploiting her age and vulnerability, and committed a vaginal sexual assault.
Sentence
62In summary, I have considered the following factors in reaching my decision:
the age of the victim;
the significant age differential between the victim and offender;
the offender’s prior convictions;
the impact of the assault on the victim;
the nature of the assault, which involved digital penetration;
the victim’s vulnerability leading up to the assault and at the time of the assault that was known to the offender;
the offender’s remorse of the circumstances leading to the assault;
the pro-social circumstances of the offender;
the offender’s positive work history;
the offender’s initiative in engaging in counselling and education while in pre-trial custody;
the conditions at Maplehurst during the accused’s pre-trial custody;
the one incident of assault rather than repeated assaults over a period of time.
63A conviction of sexual interference is a serious offence. It includes a finding that the offender knowingly engaged in sexual conduct involving a child. The impact on the child can be profound and permanent. It warrants a period of incarceration.
64Based on the objectives of sentencing and taking into account all of the mitigating and aggravating factors and the principles of deterrence and rehabilitation, I sentence F.B. to 36 months imprisonment for the count of sexual interference and 6 months for breach of the s. 161 prohibition order, to be served consecutively, for a total of 42 months. Taking into account the pre-trial custody, which the Crown and defence agree is 35.8 months using a credit of 1.5:1, the net sentence is 6.2 months which is equal to 186 days. This period of incarceration shall be followed by three years of probation.
65While on probation F.B. shall be governed by the statutory conditions, in addition to the following terms and conditions:
To report to the probation officer within two working days of your release from custody, and thereafter, as required by your probation officer and in the manner directed by the probation officer;
To remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer in advance;
To not communicate directly or indirectly with the complainant J.E.;
To refrain from any direct or indirect contact, communication, or association with J.E. or anyone else identified in writing by your probation officer, without the prior written and revocable consent of such individual;
To refrain from any direct contact or communication by any means whatsoever with a person who is under the age of 16 years, unless you do so under the supervision of a person who is that other person’s parent or legal guardian or a person approved of in writing by your probation officer;
To attend and actively participate in counselling or other programs, including but not limited to sex offender counselling or any other such programs recommended by your probation officer; and to show proof of your participation in such counselling or programs to the satisfaction of your probation officer;
Ancillary Orders
66In addition, the following orders shall go:
An order pursuant to s. 743.21 of the Criminal Code that F.B. has no contact with J.E.;
An order requiring F.B. to comply with the Sex Offender Information Registration Act for life under s. 490.013(2.1) of the Criminal Code;
A DNA sample pursuant to s. 487.051 of the Criminal Code;
A weapons prohibition pursuant to s. 109(2) of the Criminal Code for life;
An order pursuant to s. 161(a), (a.1), (b) and (c) of the Criminal Code for life subject to the following modifications;
I. The prohibition order under s. 161(a) shall be modified such that F.B. may attend the locations described if he is in the presence of his son, O.B., or any other biological child born subsequent to this sentence;
II. Pursuant to s. 161(1)(c) of the Criminal Code, F.B. will not use a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years, except for immediate family members;
III. Pursuant to s. 161(1)(d) of the Criminal Code, F.B. will not use the internet or any similar communication service to:
i. Access any content that violates the law;
ii. Directly or indirectly access any social media site, social networks, internet discussion forum or chat room, or maintain a personal profile on any such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or similar service).
L. Shaw J.
Released: October 10, 2018
CITATION: R. v. F.B., 2018 ONSC 5812
COURT FILE NO.: CR-17-506-00
DATE: 2018 10 10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
F.B.
REASONS FOR sentence
L. Shaw J.
Released: October 10, 2018
CITATION: R. v. F.B., 2018 ONSC 5812
COURT FILE NO.: CR-17-506-00
DATE: 2018 10 10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
F.B.
Erin Norman, for the Crown
Sweta Tejpal, for the defence
HEARD: September 13, 2018, at Brampton
Addendum to reasons FOR SENTENCE
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
L. Shaw J.
After delivering my Reasons for Sentencing today, I heard submissions from Crown and defence counsel regarding para. 1 of my reasons. In that paragraph, I stated that the Crown and defence had agreed that the counts of sexual assault and invitation to touch for a sexual purpose were conditionally stayed under Kienapple. Both Crown and defence agree that they had consented to a stay of the count of sexual assault but not the invitation to touch for a sexual purpose. They both agree that F.B. should be sentenced on both counts to 36 months to be served concurrently.
Although my reasons were released, I still have jurisdiction to amend the sentence as at the time of sentencing, it was my intention to sentence F.B. to a global sentence of 36 months for his conduct.
Accordingly, the sentence is amended, on consent of the Crown and defence counsel and the count of invitation to touch for a sexual purpose is not conditionally stayed. F.B. is sentenced to 36 months for both counts of sexual interference and invitation to touch for a sexual purpose to be served concurrently. The balance of the sentence is unchanged.
L. Shaw J.
Released: October 10, 2018
CITATION: R. v. F.B., 2018 ONSC 5812
COURT FILE NO.: CR-17-506-00
DATE: 2018 10 10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
F.B.
Addendum to REASONS FOR sentence
L. Shaw J.
Released: October 10, 2018