COURT FILE NO.: CR-18-40000551-0000 DATE: 20191114

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.Y. Accused

Kasia Batorska, for the Crown

Daniel Goldbloom, for the Accused

HEARD: October 4, 2019

b.a. alleN J.

PUBLICATION RESTRICTIONS NOTICE

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the Complainant and her mother shall not be published in any document, broadcast or transmission.

REASONS FOR DECISION ON SENTENCE

FACTUAL BACKGROUND TO CONVICTION

[1] I convicted the offender, DY, age 43 at the time of his arrest and currently age 46, in relation to his 11-year-old great-niece, TY, of administering a noxious substance, invitation to sexual touching and trafficking cocaine. The parties consent to applying the Kienapple principle to stay the trafficking in cocaine charge because the administer noxious substance arises from the same act, the same factual transaction. I therefore stay the trafficking charge.

[2] The charges against DY arise from incidents that occurred on October 20, 2016 at DY's apartment. At the time of trial TY was 13 years of age and in grade 8. At the time of the incident, she lived with her mother and step-father within walking distance of her great-uncle's apartment.

[3] The facts are that on October 20th TY went to DY's apartment after school. They began watching a Dracula movie on his television. DY took out a glass tube and put some white powder that TY said looked like sugar inside the tube and lit the white powder. She had never seen the sugar-like substance before. She did not know what it was and DY did not tell her. DY told her the glass tube was a “vape”. TY had never seen a vape.

[4] DY asked TY if she wanted to smoke it which TY refused because she thought she would get into trouble. DY told her it was all right and he would not tell her mother. TY again refused to smoke the vape. DY insisted.

[5] TY ultimately gave in and smoked the vape. DY lit the tube. He lit the vape and smoked it himself first. He told TY to put her mouth on it and suck on it. She sucked in the smoke from the glass tube and breathed out. TY did this twice. TY was dizzy for about one or two hours. Her legs started to shake. A medical examination revealed cocaine in her blood.

[6] Regarding the sexual offence, while TY and DY were sitting on the couch, DY asked her to sit on the floor in front of him and face him. He asked her “to grab right here.” She said she touched his thigh and he asked her to touch higher. She touched his thigh again, and again he asked her to touch higher. TY touched higher and touched his penis with her finger for about three seconds. DY did not touch her.

PRINCIPLES ON SENTENCING

Basic Objectives of Sentencing

[7] Section 718 of the Criminal Code provides the principles to govern determinations on sentencing, namely: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and to separate offenders from society.

[8] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code, s. 718.1 and R. v. Hamilton (2004), 1986 C.C.C. (3d) 129 (Ont. C.A.)].

[9] Parity, another governing principle, requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. c. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163 (S.C.C.)].

[10] The totality principle must be considered for some sentences. Section 718.2(c) provides “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.” The principle is engaged where there is a sentence for multiple offences and requires the court to craft a global sentence of all offences that is not excessive: [R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 42, (S.C.C.)]. If the cumulative sentence is too harsh, the court must adjust the total sentence so it is not out of proportion to the gravity of the offences.

Offences against Children

[11] There is a provision specific to crimes against children. Pursuant to s. 718.01, offences against children under age 18 years are governed principally by the objectives of denunciation and deterrence. An Ontario Court of Appeal case involving a sentence for an offender convicted of sexual assault of children stresses the operative principles of denunciation and deterrence and the need to separate offenders from society. R. v. D.(D) held:

In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

[R. v. D.D. (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.)].

[12] As noted above, s. 718.1 of the Criminal Code provides a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R. v. Woodward held that the more violent and sexually intrusive forms of sexual abuse of children should attract penitentiary sentences from upper single digits to lower double digits: [R. v. Woodward, 2011 ONCA 610, at para. 75, (Ont. C.A.)]. The principles apply to multiple incidents as well as singular incidents of sexual abuse: [R. v. Woodward, at para. 37].

[13] The offence in the case at hand involved one non-violent incident of the young great-niece momentarily touching her great-uncle’s penis with her finger at her uncle’s urging.

Statutory Aggravating Factors

[14] Section 718.2 provides for a sentence to be increased or reduced in consideration of any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision contains a non-exhaustive list of examples of aggravating and mitigating factors to consider. Two of the enumerated aggravating factors are relevant to the facts of this case: (a) s. 718.2(a)(ii.1) — evidence that the offender, in committing the offence, abused a person under the age of 18 years; and (b) s. 718.2(a)(iii) — evidence that the offender, in committing the offence, abused a position of trust or authority.

[15] A victim’s age is a factor to consider under s. 718.2(a)(ii.1) and the disparity between the ages of the victim and the offending adult is a relevant consideration. DY was 32 years older than TY when he committed the offences. DY was 43 and TY 11 years of age. The youthful age of the victim is recognized as an aggravating factor: [R. v. M. (D.) 2014 ONSC 3773 (Ont. S.C.J.)].

[16] Courts have commonly held that a position of trust or authority involves a person in the victim’s life who plays a role of trust such as parents, step-parents, other adult relatives, teachers, sports coaches, pastors, someone who stands in loco parentis, etc.

[17] There is no question that DY occupied a position of trust in relation to TY. He is her great-uncle.

VICTIM IMPACT STATEMENT

[18] In her victim impact statement TY's mother states that the abuse by DY has had a harsh and continuous effect on her daughter. She suffers from panic attacks, anger and thoughts about suicide. She has suffered from insomnia and barely eats.

AGGRAVATING AND MITIGATING FACTORS

Mitigating Factors

[19] The mitigating factors are as follows:

• DY is a divorced father of two daughters who live with their mother and with whom, according to his mother’s support letter, he is close.
• He has a girlfriend who has attended court along with his mother and nephew.
• He has a supportive relationship with his mother.
• He has had employment as a general labourer since April 2018, for one-and-a-half years, and is described by his boss as a dedicated, hard worker and a pleasure to work with.
• He has had a crack addiction and enrolled in the residential program operated by Lakeridge Health Residential Management Services for withdrawal treatment.
• He has no criminal record.

[20] Though not to be treated as an aggravating factor, DY has shown no remorse. He has taken no responsibility for his despicable act of repetitively persuading and then plying his young great-niece with a highly addictive drug and urging her to engage against her refusals in a sexual act. He is entitled to maintain his innocence. But he will not get the benefit of mitigation that contrition would have earned him.

Aggravating Factors:

• DY as TY’s great-uncle was in a position of trust in relation to TY.
• He is nearly three times the age of TY.
• TY was a vulnerable child who had no knowledge of street drugs and sexual abuse.
• TY has experienced prolonged serious psychological and emotional problems as a result of the acts of her great-uncle.
• To render her more vulnerable DY persuaded his young great-niece against her protestations to smoke a dangerous addictive drug, which being an addict himself, made him aware of the danger.
• In spite of a show of repeated reluctance DY urged his great-niece to touch his penis.
• He lied to TY’s mother as to where her daughter was to cover up what he was doing with TY at his apartment.

THE PARTIES’ POSITIONS

The Crown

Factors Behind the Crown’s Recommendation

[21] The Crown takes the position that the sentences for the two charges should be served consecutively. The Crown seeks a total custodial sentence of three years. The Crown does not dispute the application of the Kienapple principle as noted above. The Crown recommendation is one year for administering noxious substance and two years for invitation to sexual touching.

[22] DY was in pre-trial custody at the Maplehurst Correctional Centre from October 28, 2016 to August 18, 2017, amounting to 294 days or ten months. The Crown does not dispute DY’s entitlement to credit at 1.5:1 for the period of custody: [R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575 (S.C.C.)]. This would give DY 15 months’ credit.

[23] The Crown acknowledges that DY spent a full 45 days in lockdown. As will be discussed below, DY seeks extra credit beyond 1.5:1 for the effect on him of the conditions in the facility during lockdowns. The Crown disputes the defence’s position arguing that DY has not met his onus to demonstrate an evidentiary basis for any impact on him personally. The Crown points to cases involving similar shutdowns that did not grant extra credit owing to the fact that the offender failed to establish the impact of shutdowns on themselves personally: [R. v. Duncan, 2016 ONCA 754, [2016] O.J. No. 5255 (Ont. C.A.); R. v. Ledinek, [2018] Court File No. CR-40000193 (Ont. S.C.J.); R. v. McIntrye, [2016] O.J. No. 6202 (Ont. S.C.J.); R. v. Georgiev, 2017 ONSC 1265, [2017] O.J. No. 1508 (Ont. S.C.J.)].

[24] DY also seeks enhanced credit beyond 1.5:1 credit for his bail conditions: [R v. Downes, (2006) 2006 3957 (ON CA), 208 O.A.C. 324 (Ont. C.A.)]. The Crown disputes DY’s position relying on cases that have found, as is the case with DY, that enhanced credit was not warranted because the terms of bail were not such that they prejudiced the offenders or imposed undue hardship on them: [R. v. Ijam, 2007 ONCA 597, [2007] O.J. No. 3395 (Ont. C.A.) and R. v. McNelis, [2007] O.J. No. 4381 (Ont. C.A.)].

[25] The Crown also requests the following ancillary orders: a DNA order, a SOIRA order for 20 years requiring registration as a sex offender, a ten-year Criminal Code s. 109 firearm prohibition and Criminal Code ss. 161(a) and 161(b) orders prohibiting attendance at public parks or swimming pools where persons under 16 are present and prohibiting employment or volunteer work involving persons under 16.

Cases on Administering a Noxious Substance

[26] In relation to both the noxious substance and invitation to sexual touching charges, neither counsel could locate cases directly on point with the facts of the case at hand. Both counsel relied on portions of various decisions in advancing the sentence they believe is appropriate in the circumstances.

[27] The Crown submits that the cases involving administering a noxious substance to a child have as a starting point a nine-month custodial sentence: [R. v. J.H., 1999 3710 (ON CA), [1999] O.J. No. 1308 (Ont. C.A.]. The J.H. case involves a mother giving cocaine to her five-year-old daughter. The Crown argues the added sexual offence in the case at hand requires a sentence longer than nine months. Another case involves a sentence of two years less a day. This is a case involving a domestic dispute where the victim was forced to drink bleach. This matter did not involve a young child or a sexual offence: [R. v. Getachew, [2013] O.J. No. 2511 (S.C.C.)].

[28] In a case where a father forced his five-year-old child to eat feces, the court sentenced the father to one year. There was no sexual element in this case although the father was in a position of trust: [R. v. V.G. [2005] O.J. No. 4591 (Ont. S.C.J.)]. An Alberta Court of Appeal case involves a sentence of three years’ custody where the mother’s boyfriend gave cocaine to his girlfriend’s 14-year-old daughter and when the daughter passed out, the boyfriend sexually assaulted her: [R. v. Lyons, 2005 ABCA 258, [2005] A.J. No. 920 (Alta. C.A.)]. In a case with no sexual element, decided by the Yukon Territory Supreme Court, the court gave the offender a sentence of 15 months for putting an Ativan in a drink of the adult complainant: [R. v. Wauhkonen, [1993] Y.J. No. 14 (Yuk. Terr. Sup. Ct.)].

[29] Those cases, the Crown submits, support a custodial sentence of from one year to two years less a day.

Cases on Invitation to Sexual Touching

[30] The Crown acknowledged that the mandatory minimum sentence for invitation to sexual touching was no longer in effect but submits that a one-year sentence for the case before the court is within the established range.

[31] The Crown cited a case where an offender, the grandfather of the nine-year-old victim, was convicted on two counts of invitation to sexual touching. The grandfather asked his granddaughter to kiss him, he touched her genitals and exposed himself to her. The sentence was 30 months: [R. v. D.J.B., [2018] O.J. No. 3368 (Ont. C.A.)]. In another case the offender, in a position of trust in relation to a ten-year-old girl, engaged in fondling the victim’s breasts and two incidents of oral sex. No penetration occurred. The court found the abuse to be a pattern of conduct that spanned over a number of years and imposed a sentence of three years’ incarceration: [R. v. E.T., [2009] O.J. No. 4290 (Ont. S.C.J.)].

[32] In a further case the victim, a nine-year-old step-sister of the offender, was subjected to an incident of sexual assault, an incident of sexual touching and an incident of invitation to sexual touching. The offender was sentenced to two years less a day incarceration: [R. v. M.K., [2014] O.J. No. 4941 (Ont. S.C.J.)].

[33] Another case involved a number of incidents of the offender, age 47 years, kissing and hugging the 11-year-old victim, touching the victim’s buttocks, placing the victim’s hands on his clothed penis and exposing his penis to the victim. The offender was sentenced to 12 months’ incarceration: [R. v. J.N., [2015] O.J. No. 7749 (Ont. S.C.J.)]. Another case of invitation to sexual touching involved a 14-year-old victim and the invitation occurred entirely over the phone with an offer of payment. The offender received 12 months’ incarceration for one count of invitation to sexual touching and 12 months concurrent for attempting to obtain sexual services from a person under 18 years: [R. v. Goolcharan, [2015] O.J. No. 5166 (Ont. S.C.J.)].

[34] In a further case the offender gave his 12-year-old daughter alcohol and when she became intoxicated, they engaged in oral sex. Two years later in a note the father offered that he would allow his daughter to have a party in her bedroom if she would give him oral sex. The court found plying his daughter with alcohol to be an aggravating factor. The father received a sentence of three years’ incarceration for sexual touching and 12 months’ concurrent for invitation to sexual touching.

The Defence

Factors Behind the Defence’s Recommendation

[35] The defence takes the position that the 294 days or 10 months of pre-trial custody is a sentence sufficient to achieve the sentencing goal of deterrence and denunciation. The defence presented cases with sentences in the range of 30 to 90 days, sentences not beyond six months. The defence argues alternatively that if I find a period of incarceration is required, that DY should serve no more that 90 days intermittently which will allow him to continue in his position with the construction company.

[36] Dealing with enhanced credit due to bail conditions, the defence points out that DY has resided with his mother while on bail and has been subject to a condition that he not be alone with any child under age 18, which includes his two daughters, ages 12 and 15 years. DY was subject to neither house arrest nor a curfew during bail. The defence seeks enhanced credit based on the term of his bail that required him to be cut off from contact with his daughters. DY’s mother’s letter addresses the strain created by that circumstance.

[37] The defence is not requesting much enhanced time on this basis. But requests this factor be considered in fashioning a global sentence.

[38] The defence supports its recommended sentence by relying on support letters that describe DY as a good natured, kind person, a hard worker with no criminal record. The defence points to the fact that persons who support Mr. Yong have expressed shock at his convictions.

[39] The defence refers to what it argues are mitigating features not present in cases advanced by the Crown, that is: that there was only a singular incident, not a pattern of occurrences; the incident was at the low end of the spectrum in that the invitation was to touch over DY’s clothes; DY did not touch TY; and there were no physical injuries.

[40] The defence also argues that the Crown’s position that DY gave the drugs to TY to further his sexual purpose is an aggravating factor that was not proven beyond a reasonable doubt as required by the law. The defence offers as another interpretation of that evidence, that DY invited the sexual touching because of being under the influence of crack cocaine himself.

[41] An Ontario Superior Court decision held that the offender must establish both harsh conditions and a detrimental impact on the offender to be considered for enhanced credit due to lockdowns in custody: [R. v. Lall, Court File No. 50000446/18 (Ont. S.C.J.)].

[42] Regarding the harshness of the conditions during lockdowns, the defence points out that there was a total of 53 lockdown days, 2/3 being the result of staff shortages. Some were full 24-hour lockdowns and others were for lesser periods. All privileges such as taking showers and time outdoors were denied during lockdowns. There were three occasions in June and July 2017 when the lockdowns lasted three days in a row.

[43] Regarding the impact on DY, the defence filed a medical record from Maplehurst that indicates he received treatment for depression. To answer the question whether those conditions pre-existed custody, the defence pointed to where the record indicated “no” in response to whether there was a history of treatment for the condition.

[44] The defence submits the circumstances of DY’s case support enhanced credit of 30 days for the impact on him of the lockdowns.

Administering a Noxious Substance

[45] The defence presented no cases on the charge of administering a noxious substance. The defence submits however that administering of the crack cocaine and invitation to sexual touching, while two events, they occurred in close temporal proximity and should be regarded as a single transaction. For that reason, in the defence’s view, the sentences on both charges should be served concurrently and the overall sentence should be in compliance with the totality principle.

Cases on Invitation to Sexual Touching

[46] The defence cited an Ontario Superior Court of Justice case that gave a sentence of 15 months for sexual interference after applying the Kienapple principle to four other sexual offences which included invitation to sexual touching involving a 13-year-old girl and a 27-year-old man. There was no position of trust or drugs involved: [R. v. Hussein, 2017 ONSC 4202, [2017] O.J. No. 3567 (Ont. S.C.J.)].

[47] The defence cited several Ontario Court of Justice cases.

[48] In one case where the offender was age 73, and the victim a nine-year-old girl, the court imposed a sentence of 30 days for invitation to sexual touching. There was no position of trust or drugs involved: [R. v. Thompson, [2010] O.J. N0. 3818 (Ont. C.J.]. Another case involved a nine-year-old niece and a 41-year-old uncle who on two occasions fondled and kissed the victim. He was sentenced to a six-month custodial sentence for sexual assault, sexual interference and invitation to sexual touching: [R. v. E.H., [2005] O.J. No. 2474 (Ont. C.J.)].

[49] In a further case involving a position of trust by a male caregiver and a two-year old girl, the offender was sentenced to a three-month custodial sentence for invitation to sexual touching: [R. v. Snider, 2011 ONCJ 306, [2011] O.J. No. 2793 (Ont. C.J.)]. In another case the offender met the victim, a girl age 14, at a shopping mall. The offender gave the victim alcohol and had sexual intercourse with the victim at his home. He pleaded guilty to one count of sexual interference and received a 90-day intermittent custodial sentence: [R. v. Krishnanada, 2017 ONCJ 81, [2017] O.J. No. 953 (Ont. C.J.)].

[50] In another case reviewed on appeal by the Ontario Court of Appeal, the appellate court upheld a 90-day intermittent sentence where a neighbour was convicted on two counts of sexual interference of a six to seven-year old girl. The court found that although the sentence was on the lower end of the range, it was not a demonstrably unfit sentence: [R. v. Real, [2009] O.J. No. 5430 (Ont. C.A.)].

REASONS FOR DECISION

[51] I will first address whether the sentences on the two counts should be served concurrently or consecutively.

[52] Generally, the decision to order concurrent or consecutive sentences, which is essentially a decision on the length of sentence, is discretionary in the sentencing judge, a determination which is treated with deference by appellate courts. Factors to consider when deciding whether a sentence should be served consecutively or concurrently are: the timeframe of the offences, the similarity of the offences, whether a new intent is raised in each offence and whether the total sentence is fit and proper: [R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948]. The totality principle should be applied in fashioning a fit global sentence.

[53] With those considerations in mind, I find that a consecutive sentence should be ordered. It is the case that the incidents underlying each charge occurred in close temporal proximity. However, the incidents were not similar and involved different conduct and intent by DY. I find it makes little difference to my conclusion whether DY urged TY to smoke crack to further the sexual purpose of getting TY to touch his penis or invited TY to touch his penis because he was under the influence of crack, the two incidents arise from different fact scenarios. I find a consecutive sentence is therefore appropriate in the circumstances. A consecutive sentence can be fashioned in accordance with the totality principle.

[54] The cases cited by the Crown on administering a obnoxious substance have distinguishing features from the case at hand. The substances are distinct and were administered under varying circumstances as far as the ages of the victim and offender, their relationships to each other and whether there was a sexual component.

[55] As an aggravating factor, I considered that DY would have been very aware of the dangerous addictive properties of crack cocaine. He was a crack addict himself. In looking at additional factors in relation to the drug charge, I considered the same aggravating and mitigating factors as I do below with the sexual abuse charge.

[56] Taking into account the facts in the case at hand and the factors considered by other courts dealing with noxious substances, I find a sentence of nine months is a fit sentence. I find a sentence of nine months achieves the sentencing goals of deterrence, denunciation and separation of the offender from society.

[57] Looking at the invitation to sexual touching charge, I find the cases support a sentence of 12 months’ incarceration, a sentence at the mid-range of sentences presented by the Crown. In arriving at that sentence, I considered the following aggravating and mitigating factors.

[58] The aggravating facts of the involvement of the dangerous drug crack cocaine, TY’s youthful age, the age disparity and the position of trust of a great-uncle underlie my determination. I also took into account the prolonged psychological and emotional problems TY has experienced as expressed by her mother. DY took advantage of a vulnerable and naïve young great-niece to whom he ought to have been offering guidance. Instead DY abused her and engaged her in a deception of her mother about her whereabouts in order to hide his deplorable deeds.

[59] In not imposing a longer sentence I considered the following facts: that there was only one incident of sexual abuse and drug use, not a pattern; that the touching was over DY’s clothes; that DY does not have a criminal record; that he has been employed in construction for over a year; that he has close connections with his family; and that he has sought help and entered a program to address his drug addiction problem.

[60] I find a total sentence of 21 months’ incarceration, broken down as nine months for administering a noxious substance and 12 months for invitation to sexual touching to be a fit sentence. I find this sentence achieves the sentencing objectives of deterrence, denunciation and separation of the offender from society.

[61] The sentences shall be served consecutively. The total custodial sentence is 21 months.

[62] I do not find that this is the appropriate case for enhanced credit beyond 1.5:1 for his bail conditions or for the conditions of lockdown at Maplehurst.

[63] On the bail conditions, the terms were not harsh or significantly restrictive. He was not subjected to house arrest or a curfew. He lived at his mother’s home. His concern that he was restricted from seeing his daughters except in the presence of an adult did not mean he could not see his daughters at all. I understand that his daughters did not reside a significant distance from where their father was living. It is therefore conceivable that they could visit their father at their grandmother’s home as long as she or another adult was present. They could visit with him at any other place as long as another adult was present. I do not find that the conditions on release support DY’s request for enhanced credit.

[64] Concerning the conditions at Maplehurst, I recognize that lockdowns in a correctional facility create circumstances that can be deplorable depending on the number and length of the lockdowns. In this case, there were a total of 53 lockdown days, some for a full 24-hours and others were shorter. There are no showers or periods outside during lockdowns. This creates hygiene problems and an unpleasant atmosphere for the inmates. There were three periods where the lockdowns lasted three days in a row. These circumstances can without question be regarded as harsh.

[65] The law provides that the offender has the evidentiary burden not only to prove the harshness of the conditions but also must establish the impact of the conditions on them personally. I find DY has failed to satisfy the second factor. The medical record from Maplehurst shows that he suffered from depression while incarcerated. There is however no support for DY's contention that those conditions were caused by the lockdowns.

[66] The fact that the question on the facility’s record as to whether he had previously been “treated for” depression was answered in the negative with a check mark is not sufficient to demonstrate that his condition was not pre-existing. Also to be considered is the fact that DY was in withdrawal from crack addiction while in custody and certainly his emotional status would be affected by that. As well, the fact of being in prison for the first time is alone a sufficient reason for someone to become depressed.

[67] I will not grant enhanced credit for the conditions at Maplehurst.

[68] I will therefore allow credit of 15 months for pre-trial time served. DY is therefore sentenced to a six-month custodial sentence.

[69] On the issue of restrictions under s. 161(1) of the Criminal Code, I have some sympathy for DY’s position, his concern of not being permitted contact with his daughters if not in the presence of another adult. I took into account among other things that his daughters are not of a tender age. They are 12 and 15 years of age. I therefore will relieve DY of that restriction in relation to his own children. But the restrictions in s. 161(1) (a) and (b) will apply in relation to other children under the age of 16 years.

[70] Pursuant to s. 161(1)(a), I find it appropriate with respect to other children, that DY not attend a public park or public swimming area where persons under the age 16 years are present or would reasonably be expected to be present, or a daycare centre, school ground, playground or community centre. Pursuant to s. 161(1)(b), after release from prison, DY is not to seek employment or a volunteer position in any place that would put him in a position of trust or authority over a child under the age of 16 years.

[71] I also impose a DNA order, a SOIRA order for 20 years requiring registration as a sex offender and a ten-year Criminal Code s. 109 firearm prohibition.

SENTENCE

[72] I will now pronounce sentence. DY, will you stand?

[73] You have been convicted on one count of administering a noxious substance (count 1), one count of invitation to sexual touching (count 2). I have stayed the charge of trafficking in cocaine (count 3).

[74] You stand to be sentenced for the invitation to sexual touching and administering noxious substance convictions.

[75] I sentence you to nine months’ incarceration for administering a noxious substance and to 12 months’ incarceration for invitation to sexual touching. The sentences on those convictions shall run consecutively.

[76] Your sentence is a 21-month custodial term. You will receive 15 months’ credit for pre-trial time served. You will therefore serve a six-month custodial sentence.

[77] In addition, there shall be the following ancillary orders and orders of prohibition:

a) a SOIRA order for 20 years requiring registration as a sex offender;

b) an order to provide a DNA sample;

c) a Criminal Code, s. 109 weapons prohibition prohibiting the possession of firearms, crossbows, restricted weapons, ammunition and explosive substances for ten years.

d) (i) a Criminal Code, section 161(1)(a) order that you shall not attend a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground or playground or community centre.

(ii) a Criminal Code, section 161(1)(b) order that you shall not seek employment or a position as a volunteer in any place that would put you in a position of trust or authority over a child under age 16.

(iii) the restrictions under s. 161(1)(a) and (b) of the Criminal Code shall not apply to you being in contact with, or in presence of, your two daughters.

B.A. Allen J.

Released: November 14, 2019

COURT FILE NO.: CR-18-40000551-0000 DATE: 20191114

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D.Y. Accused

REASONS FOR DECISION ON SENTENCE

B.A. Allen J.

Released: November 14, 2019