Her Majesty the Queen v. Denis Guindon

COURT FILE NO.: CR-18-SA5061 DATE: 2020/10/09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

Denis Guindon

Counsel: Michael Boyce, for the Crown Joshua Clarke, for the Defence

HEARD in Ottawa: September 2, 2020

REASONS FOR DECISION - SENTENCING

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainant.

O’BONSAWIN J.

Overview

[1] This is a historical case in which I found Mr. Denis Guindon (“Mr. Guindon”) guilty of committing indecent assault (s. 156), sexual assault (s. 246.1) and buggery (s. 155), contrary to the Criminal Code, R.S.C. 1970, c. C-34 (“Code”).

[2] I briefly turn to the facts of this case. The complainant, RB, and his brother, GB, were removed from their mother’s care and placed in foster care. GB is eleven months older than RB. When RB was six or seven years old, he and his brother were placed in the care of the Guindon family. The foster family consisted of the parents, Wilfred and Dorothy Guindon and the two sons, Paul and Mr. Guindon. Based on all of the evidence, I found that Mr. Guindon took advantage of RB, a very vulnerable child, and sexually assaulted RB for a number of years.

Adjournment Requests

[3] The original date to hear submissions for Mr. Guindon’s sentence was July 29, 2020. Mr. Guindon sought an adjournment to September 2, 2020 because his wife was scheduled to have open heart surgery and he would be her primary caregiver after the surgery. At the hearing on September 2, 2020, Mr. Guindon asked that the provision of his sentence be deferred to October 9, 2020 in order for him to be able to care for his wife. On compassionate grounds, the original request for an adjournment and the extension for the date of sentence were granted.

[4] Earlier this week, the Defence filed an Application for an adjournment of the sentencing reasons, or in the alternative, its imposition. According to Dr. Bastianelli, an ophthalmologist, Mr. Guindon has a “full thickness macular hole OS”. On September 27, 2020, Mr. Guindon was referred to Dr. Lee and he has an appointment with him on October 19, 2020. Dr. Lee submitted a letter dated September 29, 2020 in which he states: “This letter is to verify that DENIS GUINDON has an appointment with Dr. Lee on Oct 19, 2020. This appointment required that the patient’s eyes be dilated requiring them to have a driver”. In his Affidavit dated October 6, 2020, Mr. Guindon states that he has learned that the “correctional system’s ability to accommodate proper recovery is limited, especially at the Ottawa-Carleton Detention Center”.

[5] After a review of the Application material, I asked counsel to contact Correctional Service of Canada (“CSC”) in order to receive information from them given the medical evidence provided. In his email to CSC, the Crown specifically asked the following: “If surgery is required, and if that surgery were to take place while Mr. Guindon is incarcerated in a federal institution can you please comment, after reviewing Exhibit C to the affidavit, whether Mr. Guindon could be assured a proper environment for his surgical recovery at a federal institution. Please comment specifically on whether he could be provided with the ability to remain face down (with short breaks obviously) for at least one week following the surgery”.

[6] Mr. Ian Irving, Regional Manager Clinical Services for CSC, provided a response to the Crown dated October 8, 2020. The short answer is “yes”. He responded with five points as follows:

1. Health care within CSC is provided according to professionally accepted standards by registered health care professionals including physicians, nurses, and a variety of other allied health professionals.

2. As specified by the Correctional and Conditional Release Act, the Mandate of Health Services in CSC is to provide every inmate with essential health care and reasonable access to non-essential mental health care that will contribute to the inmate’s rehabilitation and successful reintegration into the community. Health care professionals working for CSC contribute to the health of offenders through the following measures:

• Education of offenders on admission and throughout their sentence on infectious diseases and healthy lifestyle choices;

• Health histories upon admission to identify past medical problems and risk behaviours;

• Screening on admission and throughout incarceration for infectious diseases;

• Immunization programs;

• Dialysis treatment; and

• Treatment of acute and chronic conditions, including those associated with aging, as well as the provision of palliative care services.

3. With respect to care and treatment of inmates with acute and chronic conditions, ambulatory health services are provided in individual institutions and twenty-four (24) hour inpatient medical care is provided in Regional Hospitals.

4. In addition, inpatient psychiatric services are provided in Regional Treatment/Psychiatric Centres across Canada. In those instances where the complexity of the medical presentation is beyond the capacity of CSC’s internal health care resources, CSC utilizes community services such as specialty clinics and hospitals.

5. CSC provides health services to inmates with a broad spectrum of medical conditions, both physical and psychiatric, from routine to complex.

[7] In addition, at the beginning of this morning’s hearing, the Crown received the following response from Mr. Christian Richer, Deputy Superintendent, Administration, of the Ottawa-Carleton Detention Centre:

I was asked to look into your request for further information about accommodations that would be potentially required. I have consulted with our Health Care department in response to your following questions;

1.A) If Mr. Guindon is sentenced to a penitentiary sentence today October 9, 2020 he will more than likely be here on Oct 19, 2020 because it usually takes a month before they are transferred to the federal system.

B) We would contact the eye specialist for security reasons and have the date changed to either before the 19th or shortly thereafter. However he would have the appointment for sure.

2. As mentioned above typically it takes a month to be transferred to the federal system however it could be longer as we have no control on this. We have to wait until the federal system requests him via transfer order.

3. If Mr. Guindon is in our custody during the period of time he receives his operation our institutional doctor would read all recommendations from the Eye doctor and follow what is needed. If it meant we needed to rent equipment Ie a bed to accommodate his needs then we would. He would be housed were his needs could be accommodated as well.

[8] Given the information provided from CSC and the Ottawa-Carleton Detention Centre, the Defence withdrew its Application for an adjournment.

Circumstances of Mr. Guindon

[9] Mr. Guindon is currently 69 years. He has been married to Ms. Nancy Guindon for over thirty years. Ms. Guindon has an adult daughter, Ms. Sara Lefebvre, who has two children. Mr. Guindon is retired from the City of Ottawa.

[10] Two letters of support were provided at this hearing: a letter from Ms. Lefebvre and a letter from Ms. Donna Coldwell. Ms. Lefebvre describes Mr. Guindon as a man that she loves and respects as a father, a loving husband to her mother and loving grandfather to her daughters. Her parents provided a safe home for RB’s son, DB. Ms. Lefebvre states that if Mr. Guindon is sent to prison, the whole family will be deeply affected.

[11] Ms. Caldwell explains that she worked with Mr. Guindon at the City of Ottawa from the 1980’s until her retirement in 2001. He was well regarded in the workplace and had good communication skills. Ms. Caldwell and her family became great friends with Mr. Guindon and Ms. Guindon.

[12] A letter was also provided by Dr. Yeats. She advises that Mr. Guindon has coronary artery disease and had a heart attack in 2007. At that time, he required angioplasty. Mr. Guindon requires ongoing medication to manage this condition. He has hypertension for which he is on medication and he is on an antidepressant for a mood disorder. Dr. Yeats states that Mr. Guindon would be considered a high risk if he contracted COVID-19. His significant medical conditions would be impacted by the stress and circumstance of incarceration. In addition, Mr. Guindon has a family history for cerebrovascular disease that puts him at higher risk of a further heart attack or stroke.

[13] Dr. Fedoroff also submitted a report dated August 4, 2020 regarding Mr. Guindon’s Sexual Behaviour Assessment. Dr. Fedoroff noted that Mr. Guindons responses were above-average scores on the “impression management” scale and had high scores on the “self-deception enhancement” subscale. “These results indicate that, compared to the general population, Mr. Guindon has a tendency to present himself in an overly positive light and tends to minimize his own personal shortcomings” (p. 16 of Dr. Fedoroff’s report).

[14] Dr. Fedoroff notes that Mr. Guindon did not respond to any of the stimuli and scenarios presented to him. The exception to this was the testing regarding opposite sex pedophilia and same sex pedophilia, which Mr. Guindon found disturbing. Dr. Fedoroff concludes that Mr. Guindon’s phallometric test results were uninterpretable due to the lack of response to stimuli and his actuarial risk assessment places him in the “low” risk category.

[15] Mr. Guindon does not have a criminal record.

[16] Mr. Guindon addressed the court at the end of the hearing with submissions regarding his sentence. He advised that he is not a pedophile or a sexual predator. He would not be capable of acting as such because he was sexually assaulted at age eleven. Instead, he is an honest, caring and loving person and a good brother, uncle and friend to many. Mr. Guindon was also a dedicated volunteer; he coached minor hockey and soccer. The thought of getting COVID-19 frightens him. He is not guilty of these offences and begs for the court’s mercy and compassion.

Impact on RB

[17] RB provided a Victim Impact Statement at the sentencing hearing. RB states that Mr. Guindon destroyed his life. When RB was a child, he was not able to know that Mr. Guindon was a predator. Due to Mr. Guindon’s actions, RB never had a chance to have a normal life, a career, to trust anyone, nor to have confidence in himself. This continues to this day.

[18] RB explains that, because of the mental, physical and sexual abuse he endured at the hands of Mr. Guindon, he turned to crime. He lost respect for society and lost many years in jail. RB states that Mr. Guindon’s actions towards him are like a life sentence.

[19] RB also shares that he feels a constant rage. He thinks of Mr. Guindon when he takes a shower, when he brushes his teeth and when he hears Beatles’ songs.

Impact on CB

[20] CB, RB’s wife, also provided a Victim Impact Statement. She has been in a relationship with RB for the past fifteen years. CB describes that when she first met RB he was in and out of prison. He had anger issues, low self-esteem, trust issues, intimacy issues and had a hatred for society. It took RB a long time to tell her about what he had endured in the Guindon household. RB often told her, “if I tell you, you will not have children with me and you might think I am gay”.

[21] CB describes RB as a person who became angry very fast and she could not figure out what triggered him. He swore, threw objects, hit walls, left situations abruptly and at times, threatened people. RB was distant and did not want to speak about his emotions. CB knew something was wrong, but she was also emotionally drained from trying to ‘fix’ RB.

[22] CB states that it took RB a very long time to trust her enough as his wife and life partner to tell her he had been sexually abused by Mr. Guindon for years. Finally, she knew why RB cried in the shower, turned off the radio in the car when a certain song came on, had anger and trust issues, and felt unworthy. CB finally understood what RB really meant when he told her he had been handed a life sentence. Mr. Guindon took away a part of RB that CB will never get to know or love.

Impact on SB

[23] SB, CB’s mother, states that, as a victim of sexual abuse herself, she finds that it took RB a lot of courage to come forward and she is happy that she was able to support him and her family during this long journey.

Position of the Parties

[24] With regard to the position of the parties, the Defence seeks a sentence of four years.

[25] On the other hand, the Crown seeks a global sentence of nine years of incarceration for all of the offences. In addition, the Crown seeks the following ancillary orders:

• a mandatory DNA order;

• registration as per the Sex Offender Information Registration Act, which applies for life;

• a mandatory s. 109 weapons prohibition for ten years;

• s. 161(a), (b) and (c) orders; and

• an order that Mr. Guindon must not have any contact with or communicate directly or indirectly with RB and his family as per s. 743.21 of the Code.

Sentence as per Sections in the Code

[26] I must sentence Mr. Guindon as per the sections of the Code in question. There are no mandatory minimum sentences for any of the Code provisions in question. The maximum sentences are listed below:

• indecent assault as per s. 156 = ten years​

• sexual assault as per s. 246.1 (1) = ten years

• buggery as per s. 155 = fourteen years​

Factors to be Considered with Regard to Sentencing

[27] I will review the factors to be considered regarding sentencing. The sentencing principles according to s. 718 of the Code are denunciation, deterrence, rehabilitation and the protection of society. More specifically, according to s. 718 of the Code, the purposes and principles of sentencing are to:

• denounce unlawful conduct and the harm done to victims or to the community;

• deter the offender and other persons from committing offences;

• separate offenders from society, where necessary;

• assist in rehabilitating offenders;

• provide reparations for harm done to victims or to the community; and

• promote a sense of responsibility in offenders; and acknowledgment of the harm done to victims or to the community.

[28] Section 718.01 of the Code states 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.

[29] Section 718.1 of the Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[30] Section 718.2 of the Code lists other sentencing principles that are relevant in this matter, such as:

• taking into account the relevant aggravating or mitigation circumstances;

• evidence that the offender, in committing the offence, abused a person under the age of eighteen years;

• evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim;

• evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation;

• a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

• where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

• an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and

• all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community should be considered for all offenders.

Mitigating and Aggravating Factors

[31] In Mr. Guindon’s case, the mitigating factors include that he has a supportive family and does not have a criminal record.

[32] The aggravating factors in this matter are as follows:

• Mr. Guindon attempted to anally penetrate RB;

• RB suffered physical and emotional harm as a result of these offences;

• at the time of the offences, Mr. Guindon was an adult and RB was a child;

• at the time of the offences, Mr. Guindon was in a position of trust;

• the lengthy period of time over which the offences occurred;

• Mr. Guindon groomed RB; and

• Mr. Guindon threatened that RB would be sent to another foster home if he told anyone about the abuse.

Caselaw and Analysis

[33] I now turn to the caselaw. The Defence refers me to R. v. L.(D.B.), 1995 2632 (ON CA), 25 O.R. (3d) 649, 83 O.A.C. 374; R. v. Tavares, 2013 ONCJ 381, 289 C.R.R. (2d) 287; R. v. Sakakeep, 75 W.C.B. (2d) 559; R. v. Poulin, 2019 SCC 47, [2019] S.C.J. No. 47; R. v. McDonough, 2006 18369 (ON SC), 209 C.C.C. (3d) 547; R. v. Minassian, 2019 ONSC 4455, 157 W.C.B. (2d) 433; Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1; and R. v. Moosemay, 2001 ABPC 156, [2002] 2 W.W.R. 581. The sentences in these cases range from twelve months to twenty-three months of imprisonment.

[34] The Crown refers me to the following cases: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1; R. v. D.(D.), 2002 44915 (ON CA), 58 OR (3d) 788, [2002] O.J. No. 1061 (CA); R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; R. v. D.M., 2012 ONCA 520, 11 O.R. (3d) 721; R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752; R v. H.S., 2014 ONCA 323, 308 C.C.C. (3d) 27; R. v. W.W.M., 2006 3262 (ON CA), 205 C.C.C. (3d) 410; R. v. R.W.D., 2005 20711 (ON CA), 199 O.A.C. 254; R. v. May, 2018 BCCA 391, [2018] B.C.J. No. 3427; R. v. R.M., 2015 ONCA 9, 118 W.C.B. (2d) 562; R. v. R.G., 2019 ONSC 930, 157 W.C.B. (2d) 338; R. v. E.S., 2018 ONSC 4808; R. v. M.K., 2016 ONCA 589; R. v. M.A.J., 2015 ONCA 725, 329 C.C.C. (3d) 149; R. v. L.M., 2014 ONCA 640, 122 OR (3d) 257; and R. v. J.N., 2013 ONCA 251, 305 O.A.C. 175. The sentences in these cases range from twelve months to twelve years of imprisonment.

[35] I have considered the caselaw provided to me by both counsel. The Defence caselaw is quite distinguishable from this matter. The Crown’s caselaw is more on point.

[36] In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the Supreme Court provided the following helpful guiding points for sentencing judges:

• the inquiry must focus on the fundamental principle of proportionality;

• individualization and parity of sentences must be reconciled for a sentence to be proportionate;

• the trial judge must properly weigh the various principles and objectives of s. 718;

• sentencing is an inherently individualized process;

• sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve as guides for the application of all the relevant principles and objectives;

• sentencing ranges should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion; and

• sentencing ranges are primarily guidelines, and not hard and fast rules.

[37] The Defence argues that Mr. Guindon did not hold a position of trust with regard to RB. He relies on R. v. L.(D.B.), in which the Children’s Aid Society placed the appellant in the home of the complainant’s parents as a foster child. The appellant was one year and nine months older than the complainant. At the time of his placement, the appellant was ten years old and the complainant was eight years old. About seven months after the appellant’s placement, sexual activity between the appellant and the complainant began. In L.(D.B.), the appellant was found not to be in a position of trust with the complainant. The facts in that case are very different than the facts in Mr. Guindon’s matter. However, in L.(D.B.) the Court of Appeal provided helpful guidance regarding what constitutes a position of trust. The court cited R. v. S.(P.), released March 3, 1993 (Ont. Gen. Div.), affirmed February 17, 1994 (Ont. C.A.)., and stated on page 4:

One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a “trust”. What is in question is a broader social or societal relationship between two people, an adult and a young person. “Trust”, according to the Concise Oxford Dictionary (8th ed.), is simply a firm belief in the reliability or truth or strength of a person. Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all the persuasive and influencing factors which adults hold over children or young persons to come to play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a “position of trust” towards the young person.

[38] In paragraph 186 of the trial decision I found that, in his evidence, Mr. Guindon continually tried to minimize his position of trust with RB: 2020 ONSC 1449. However, his brother Paul Guindon testified that when they were on vacation, Mr. Guindon was the adult responsible for RB. In direct examination, Mr. Guindon was asked about his role with RB. He responded that he did not have a role; he was a foster brother. During cross-examination, he was asked about his evolving relationship with RB. He finally ended up by testifying, “I guess he saw me as a big brother”. He was very guarded when it was put to him that he had a close relationship with RB, though he later acknowledged that he assumed the parental role over the boys when the three of them were away from home.

[39] I disagree with the Defence argument that Mr. Guindon was not in a position of trust. I find that the evidence at trial supports that the nature of the relationship between Mr. Guindon, an adult at the time (Mr. Guindon testified that he was twenty-six years old when RB and GB arrived at the Guindon residence) and RB, a young person at the time, created a position of trust. Mr. Guindon used his position as an adult role model and older “brother” to prey on RB, a vulnerable child, for his own sexual gratification. As I noted in paragraph 201 of the trial decision, RB arrived at the Guindon residence as a foster child having been removed from his mother’s care and had resided in two other foster homes prior to his arrival. Mr. Guindon used his position to groom a vulnerable child. Mr. Guindon bought RB things, took him out places and on vacations. While they were out, Mr. Guindon was the adult responsible for RB. There was a position of trust between Mr. Guindon and RB.

[40] The Crown submits that Mr. Guindon abused RB on a regular and persistent basis over a period of nine years. The Defence questions the period of nine years and argues that in fact, it was much lower. I find the evidence supports that Mr. Guindon abused RB on a regular and persistent basis over a lengthy period of time. RB testified that he was six or seven years old when they arrived at the Guindon residence. RB testified that Mr. Guindon did not start sexually assaulting him right after their arrival at the Guindon residence. Mr. Guindon bought him things beforehand. GB testified that he was fourteen years old when he left the Guindon residence. RB testified that the sexual assaults got worse after GB moved out. Based on the evidence, I can conclude that RB was thirteen years old when GB moved out. Although it is unclear exactly when the sexual assaults began, the evidence supports it was within the first years when RB and GB moved into the Guindon residence. The sexual assaults continued until RB was at least thirteen years old and continued for an undetermined period of time. Although it is not possible to pinpoint the exact timeline, I find that Mr. Guindon sexually assaulted RB for a lengthy period of time, at a minimum at least four to five years.

[41] In R. v. Stuckless, the Court of Appeal provided guidance regarding forms of sexual abuse. The court stated:

[67] In this case, the respondent occupied a position of trust when he perpetrated his abuse, and he perpetrated that abuse on a regular and persistent basis over a substantial period of time. Although this case does not involve anal intercourse — an aggravating factor that leads to an increased sentence — the absence of an aggravating factor does not translate into a mitigating factor. D.(D.) is not to be read as suggesting that full intercourse is required in order to raise the possibility of a double-digit sentence. Where intercourse occurs, it is simply one factor among many to be used to determine a fit sentence.

[68] Further, I do not accept that fellatio and digital penetration are somehow lesser forms of sexual abuse than intercourse. It is impossible to conclude that either is on this record.

[42] Recently, in Friesen, the Supreme Court of Canada highlighted that “[t]he modern understanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only on bodily integrity”: at para 142. Further, the Supreme Court noted that “there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference…physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration”: at para 146. While Mr. Guindon was not convicted of sexual interference, these statements remain apt and applicable.

[43] In making these two statements, the Supreme Court is guiding courts, when looking at the seriousness of the offences, to consider not just the impugned physical act, but also the level of harm inflicted on the child by the sexual violence. In making my disposition, I bear in mind these recent normative statements, and the significant psychological and emotional harm that Mr. Guindon’s actions have inflicted on RB.

[44] With regard to the sexual acts, I found as follows:

• Mr. Guindon took RB’s hand and placed it on his penis both over and under his clothes while RB sat on his lap at Guigues;

• Mr. Guindon put RB’s hand inside of his shorts while in Mr. Guindon’s bedroom at Guigues;

• Mr. Guindon performed oral sex on RB at Murray;

• at Murray, Mr. Guindon had RB perform oral sex on him, which included RB being on his knees in order to perform oral sex, Mr. Guindon pushing his penis inside of RB’s throat, making him gag, and Mr. Guindon’s ejaculating on RB’s face and in his mouth;

• Mr. Guindon and RB performed oral sex on one another in the “69” position at Murray;

• Mr. Guindon had RB straddle him while he grabbed both of their penises in his hand at Murray;

• Mr. Guindon had RB squeeze his nipples while he masturbated RB at Murray;

• Mr. Guindon performed oral sex on RB and had RB perform oral sex on him at the Co-op.

• Mr. Guindon engaged RB in acts of mutual masturbation at the Co-op; and

• Mr. Guindon had RB lick and insert his tongue into his anus.

[45] I find that the sexual acts Mr. Guindon inflicted on RB can be considered aggravating factors.

[46] The Defence argued that Mr. Guindon did not threaten RB. I find the contrary. Mr. Guindon threatened RB that if he told anyone he would be put into another foster home. This is an aggravating factor.

[47] It is evident from RB’s Victim Impact Statement that Mr. Guindon’s actions have had a long lasting and very negative impact on RB’s life. During the trial, RB testified that he could not understand why he continued to have contact with Mr. Guindon after he left the Guindon residence. It continues to baffle him to this day. RB has not had a “normal life” and has resorted to criminal behaviour. He does not trust anyone and does not have any confidence in himself. RB describes Mr. Guindon’s actions towards him as a “life sentence”. Lastly, RB feels a constant rage.

[48] As for CB, her Victim Impact Statement demonstrates that she has been “emotionally drained from trying to fix RB”. CB states that Mr. Guindon’s actions took away a part of RB that she will never get to know or love.

[49] At the sentencing hearing, for the first time, the Defence raised that Mr. Guindon was sexually abused by a priest when he was eleven years old. This information also appears in Dr. Fedoroff’s report.

[50] The Defence argues that, due to his age, Mr. Guindon has a limited ability to serve jail time. He was a youthful person back in the 1970s and the 1980s, however, this is no longer the case. In addition, Mr. Guindon’s health issues, his wife’s health issues (she recently had heart by-pass surgery) and the impact of his incarceration on his family members are also factors that must be considered. Lastly, the Defence submits the fact that Mr. Guindon cooperated during his arrest and throughout the legal process and there were no charges when he was on bail must also be considered.

[51] In R. v. May, at para. 38, the court dealt with the issue of whether to reduce a sentence due to an offender’s poor health and found that “an appellate court must balance compassion with the seriousness of the offence”

[52] Mr. Guindon’s age is not a mitigating factor. As for his health issues, the letter provided by Dr. Yeats states that he requires medication to manage his heart condition. He may also require medication for other medical conditions. As in R. v. May, there is no evidence suggesting that CSC is unable to treat Mr. Guindon’s medical conditions. In fact, given the information provided by Mr. Irving at CSC, CSC can properly manage Mr. Guindon’s medical issues. With regard to Dr. Yeats’ comments about the high risk should Mr. Guindon be infected with COVID-19, I acknowledge that given his age and medical conditions, he may be at a higher risk. However, I am taking judicial notice that there are protocols in place at CSC regarding COVID-19.

[53] When I balance compassion with the seriousness of the offence, the latter weighs more heavily. These are serious offences that have had a devastating impact on RB’s life.

[54] As stated by Moldaver J. in R. v. D.(D.), “[o]ur children are at once our most valued and our most vulnerable assets”: at para. 35. RB was a very young, impressionable and vulnerable person when Mr. Guindon took advantage of RB for his own sexual gratification. As the role model and older “brother”, Mr. Guindon was in a position of trust with RB. This is a case of significant sexual abuse. This case is filled with horrendous facts surrounding the repeated sexual abuse that RB suffered at the hands of Mr. Guindon over a number of years. Mr. Guindon also threatened RB of the consequences if he disclosed the sexual abuse he endured.

[55] In Friesen, the Supreme Court of Canada reiterated what may seem trite: “the fact that the victim is a child increases the offender’s degree of responsibility”: at para. 90. This moral culpability “increases when offenders intentionally target children who are particularly vulnerable”: at para. 90. In paragraph 201 of the trial decision, I found that RB was one such vulnerable child. In reaching my final disposition, I am mindful of this high degree of moral culpability. I do not, however, allow these considerations to overwhelm the principle of proportionality.

[56] In coming to my decision, I have kept in mind the sentencing principles, the mitigating and aggravating factors, Dr. Federoff’s Sexual Behaviours Assessment, the Victim Impact Statements, the letters of support, the medical information, the caselaw and the submissions by counsel and Mr. Guindon. Due to the mitigating factors such as Mr. Guindon not having a criminal record, his assessment by Dr. Fedoroff as a low risk to re-offend, being described as having otherwise a good character, I will not sentence Mr. Guindon to the high range as provided by the caselaw. However, a strong sentence is merited in this case. It is important for offenders to know that there are severe consequences when they sexually exploit children.

Final Disposition

[57] Based on my reasons provided above, I proceed with the final disposition.

[58] I will begin with Count #1, indecent assault on a male (s. 156). On this count, I sentence Mr. Guindon to seven years of imprisonment.

[59] With regard to Count #2, sexual assault (s. 246.1), I sentence Mr. Guindon to seven years to be served concurrently to the sentence on Count #1.

[60] With regard to Count #3, buggery (s. 155), I sentence Mr. Guindon to three years to be served concurrently to the sentence on Counts #1 and 2.

[61] As a result, Mr. Guindon’s total sentence is for a period of seven years.

[62] Given the nature of the offences in question, s. 161(1)(a), (b) and (c) orders are necessary.

[63] I also make the following ancillary orders:

• a mandatory DNA order pursuant to s. 487.051(1) of the Code;

• registration as per the Sex Offender Information Registration Act which applies for a period of twenty years;

• a weapons prohibition for a period of ten years as per s. 109;

• an order of prohibition for life, as per s. 161(1)(a), preventing Mr. Guindon from attending any public park, public swimming where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, unless Mr. Guindon does so under the supervision of Ms. Guindon;

• an order of prohibition for life, as per s. 161(1)(b), preventing Mr. Guindon from 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 sixteen years;

• an order of prohibition for life as, per s. 161(1)(c), preventing Mr. Guindon from having any contact, including communicate by any means, with a person who is under the age of sixteen years, unless Mr. Guindon does so under the supervision of Ms. Guindon or Ms. Lefebvre; and

• an order preventing Mr. Guindon from communicating directly or indirectly with RB or his family members as per s. 743.21.

Justice M. O’Bonsawin

Released: October 9, 2020