R. v. P.S., 2021 ONSC 5091

COURT FILE NO.: 19-103

DATE: 20210726

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.S.

Defendant

H. Azimi, for the Crown

D. Wilcox, for the Defendant

HEARD: May 10, 27, July 9, 2021

REASONS FOR SENTENCE

christie J.

Overview

[1] On February 23, 2021, P.S. was found guilty, after a trial, of the sexual exploitation of G.D., specifically performing oral sex on G.D. on at least three occasions when he was in a position of trust toward G.D. This court provided detailed written reasons for its decision. See: R. v. P.S., 2021 ONSC 1388.

[2] This offence occurred in 1988. At that time, the maximum penalty for this offence, when proceeded with by indictment, was imprisonment for a term not exceeding 5 years. There was no mandatory minimum penalty prescribed.

[3] As for the appropriate sentence, the Crown has submitted that a three-year penitentiary term would be appropriate, although by the final day of sentencing submissions, the Crown did not strongly oppose a reformatory term. The Crown also submitted that the court should impose other ancillary orders, including a s. 743.21 order in relation to the complainant and his immediate family, a DNA order, and a SOIRA order for 20 years. The defence submitted that a lengthy conditional sentence would meet the objectives of sentencing in this case, followed by probation. The defence agreed with the ancillary orders sought. [It should be noted that the Crown initially sought a s. 161 order, however, it was pointed out by the court that such an order was not available for this offence, which was ultimately conceded by the Crown.]

Facts

[4] P.S. and G.D. met in the mid-80s, when G.D. was 12 or 13 years of age and P.S. was in his mid-30s. G.D. was a primary school student with a paper route and P.S. was a business owner of a pet store in the neighbourhood where G.D. lived. There is a 23-year age difference between these two males. G.D. did not have an adult male role model in his life, as his father was not regularly present. The two soon discovered that they had a common interest in professional wrestling and began attending wrestling matches together with P.S. driving them to the matches in Toronto and, on at least one occasion, in other locations.

[5] G.D. wanted to attend Gold’s Gym in order to get in shape for his own desired wrestling career, however, he was not old enough to obtain a membership on his own. G.D. also seemed aware that some of the wrestlers attended that gym when they were in town. P.S., who already had a membership, arranged for G.D. to attend with him and, also, for G.D. to continue to attend even after P.S. stopped attending. By attending Gold’s Gym, G.D. was able to find out where the wrestlers stayed when they were in town. P.S. often drove the two of them to the hotel where the wrestlers stayed in order to meet the wrestlers. P.S. was aware that G.D. wanted to be a wrestler and engaged in conversation with G.D. about his wrestling career. G.D. would also spend time at P.S.’s condo in Mississauga. G.D. was also taken to a nudist resort where P.S. had a trailer.

[6] In 1987, P.S. was in the process of selling his condo in Mississauga and buying a home in Tottenham. In November 1987, G.D. and his family moved to Ottawa. G.D. was 14 years old and repeating grade 7 when this move occurred. At this point, G.D.’s father was back in his life. P.S. took possession of his Tottenham home in May 1988. G.D. and P.S. continued to keep in touch. P.S. was also in the process of opening a pet store in Ottawa.

[7] G.D. was not happy being in Ottawa. There was a discussion between P.S. and G.D’s family about G.D. moving in with P.S. in Tottenham and going to school in the area. Around the same time, B.C., a friend of G.D. from Mississauga, was having trouble in school in his area and, also, wanted to move to Tottenham with P.S. There was some discussion about building a wrestling ring for the boys at P.S.’s property in Tottenham for them to practice in. P.S. called the school to inquire about what could be done for G.D. and B.C. to go to school in his area. B.C. and G.D. ultimately came to stay with P.S. in Tottenham in the summer of 1988. P.S. drove G.D. and B.C. to the school to register.

[8] While living at the home, P.S. shared his marijuana and hash with the boys from time to time. G.D. and B.C. did not pay rent to live in the Tottenham residence. P.S. bought the groceries and brought them home. G.D. worked for P.S., bagging gravel and shavings. Even though not required to, P.S. provided this opportunity for G.D. to earn some money. P.S. made the house rules. G.D. and B.C. had to clean up after themselves, such as put the dishes in the dishwasher before he came home. P.S. would cook on the weekends, and on occasion, another friend would come in and cook meals for them. P.S. attempted to help G.D. and B.C. learn to drive a manual transmission car. P.S. drove the boys to school on a couple of occasions when they missed the bus, and he encouraged them to be diligent about attending school. P.S. would drive G.D. and B.C. to Canada’s Wonderland and pick them up at the end of the day. P.S. would give G.D. and B.C. a bit of financial advice, such as encouraging them to buy GICs.

[9] B.C. and G.D. were not required, forced, or pressured to live with P.S. in Tottenham. It was their choice and they could leave anytime they wanted to, and in fact did leave when they so desired. G.D. and B.C. appeared to take full advantage of the benefits of living in the home of P.S., such as access to a pool and hot tub, access to food and shelter, access to marijuana and hash, work as they desired it, and the ability to attend school together.

[10] Only a few weeks into the school year, B.C. was expelled and moved back to Mississauga. G.D. stayed in Tottenham until sometime in October.

[11] It was during the time that G.D. lived in Tottenham that sexual activity occurred, specifically at least three or four occurrences where P.S. performed oral sex on G.D. There was no question that G.D. was at least 14 and under the age of 18 when the sexual activity occurred. Further, there was no question that P.S. touched G.D. and that the touching was for a sexual purpose. While the circumstances were described differently, both the complainant and the accused testified that P.S. performed oral sex on G.D. This court found that there was a trust relationship between P.S. and G.D. that turned into a relationship of dependency when G.D. moved into the home of P.S. It was on this basis that P.S. was convicted of sexual exploitation.

Background of P.S.

[12] P.S. is 71 years old, having been born in Toronto in January 1950. He is the second oldest of 4 brothers, the eldest being deceased. He does not have a close relationship with his two younger brothers. P.S. described having a good family life growing up.

[13] As a child, P.S. had difficulties with his speech, causing him to stutter. This was addressed through therapy.

[14] P.S. attended school in Toronto. He developed an interest in pets very early on. He quit school after grade 10 and worked in the pet store / aquarium business. In 1968, he began managing a store in Richmond Hill. By the age of 20, he was living independently from his parents and opened his first pet store. Later, P.S. bought a farm in Bolton and also went into the dog kennel business. Eventually, P.S. sold his first pet store and opened another store in Mississauga. His brother opened Aquarium Services and he opened Pet Mart in the same plaza at the southwest corner of Dundas and Dixie. All in all, P.S. worked in the pet retail business his whole life, closing his last store in 2013. At this time, P.S. is supported by CPP, OAS and RRSPs, in addition to rent he receives from his downstairs tenant.

[15] P.S. moved from Bolton to a condo on Cawthra Road in Mississauga. He continued to live at this condo from the early 80s until he moved to Tottenham in 1988, where he still resides. P.S. also has a condominium in Florida.

[16] In the mid 1970s, P.S. was in a relationship with a female which lasted for approximately 2 years. Although P.S. did not know it at the time, this relationship resulted in a daughter being born. This daughter contacted P.S. in 2006 and P.S. has continued to have a relationship with his daughter and grandchildren since that time. They live in the United States.

[17] P.S. has not been in a relationship for at least 3 years.

Substance Use

[18] P.S. has used marijuana and hashish since he was approximately 15 years old. His use over the last 3 years is solely medicinal, as it is used to reduce his symptoms of Parkinson’s disease, reduce stress, and help him sleep. P.S. did experiment with LSD when he was 15 or 16 years of age. He also experimented with cocaine for a couple of years in the early 1990s. As for alcohol, P.S. has “a couple of drinks a year”.

Medical Issues

[19] In 2010, P.S. was diagnosed with Parkinson’s disease. He is on a multitude of medications that require regular adjustment to address the progressive deterioration in his condition. Dr. Galit Kleiner, a movement disorder specialist, advised that his symptoms have become more problematic since October 2020, and he requires specialty care to address this complex disorder. Medications must be very exact and timely.

[20] A couple of years before being diagnosed with Parkinson’s disease, P.S. was diagnosed with kidney cancer which is currently in remission. As a result of this, he had a kidney removed.

[21] P.S. also takes medication for issues related to his thyroid, prostate and cholesterol.

[22] It is clear that P.S. strictly follows his treatment plan and has regular appointments to monitor his health and medications. Despite this, those close to P.S. have noticed his deterioration in the last couple of years.

[23] Dr. Neville Sischy has been P.S.’s family doctor for at least 14 years. He provided a letter dated May 28, 2021 to explain P.S.’s current medical situation. He explained that his Parkinson’s disease has caused significant mobility difficulties and his condition is likely to deteriorate in the near future. He stated, “Medication for this condition is managed by a neurologist and requires frequent assessment and adjustments”. As for his kidney issues, this causes some difficulty with urination and frequent urination. Dr. Sishy stated:

I believe [P.S.]’s medical conditions at his advanced age would be much more difficult to manage if he were incarcerated and would probably lead to a significant deterioration in his physical health.

[24] Dr. Galit Kleiner is P.S.’s movement disorder specialist. He provided a letter dated June 2, 2021 in which he stated in part:

…If he were to be incarcerated he would require ongoing specialty care in the form of treatment from a Movement Disorders Specialist and a multidisciplinary care team. He would require diligent adherence to complex medication, dietary, and exercise regimens and may require personal care support and supervision to ensure safety.

[25] In response to this medical information, the Crown sought out the position of the federal and provincial institutions as to their ability to provide for the care needs of P.S. As for the provincial system, a nursing supervisor, Tricia Brunk, advised that P.S. should be placed at Maplehurst Correctional Centre, as this is the closest institution to his treatment facility. Ms. Brunk advised that they would need to hire a therapist to come in or send P.S. out for his treatment at the movement disorder clinic. As for the federal system, the conclusion was that Correctional Services Canada institutions can accommodate P.S.’s health issues and needs, however, no specific information was provided as to how this would be done in this particular case.

Friends / Family of P.S.

[26] B.C., the young man who moved into the Tottenham residence around the same time as G.D., was contacted by the pre-sentence report writer. B.C. and P.S. had an “on and off” relationship for approximately 20 years. The pre-sentence report stated:

…Mr. [C] advised that if not for the subject, he would never have finished high school or acquired his drivers licence. He attributes the subject’s help as instrumental in changing his life and expressed his affection for the subject.

B.C. also credited P.S. with him getting a job and having a healthy relationship. B.C. stated that P.S. is “too giving” and very generous. He stated that P.S. was “the best person I’ve ever known”.

[27] Another male, L.Z. was contacted by the pre-sentence report writer. He met P.S. through the pet store when he was in his teens and they have been friends for 24 years. P.S. provided L.Z. with a residence for approximately 6 years while he finished college and attended university. L.Z. described P.S. as his best friend and described P.S. as a happy, good hearted person with “good energy”.

[28] Even the arresting officer, Detective Constable Dale Smith, advised that P.S. had been compliant with requirements of his bail recognizance. He expressed his view that the deteriorating health of P.S. was evident by day’s end at trial, and he questioned whether the subject could survive a custodial sentence given his poor health and advanced age.

Character / Attitude of P.S.

[29] P.S. advised the pre-sentence report writer that he had grown to understand why he is guilty of sexual exploitation, stating that he “used bad judgment” and was regretful for his actions. He advised that the court experience had caused symptoms of depression and anxiety in him over the last year and he is afraid for his well-being if incarcerated. P.S. is amenable to any assessment and treatment recommended to address any sexual concerns identified through such an assessment.

Psycholegal Assessment

[30] On June 10 and 17, 2021, P.S. participated in a psycholegal assessment, including 3.5 hours of interviews and administration of psychological tests. The examiner had been requested to provide an estimate of the likelihood of reoffending and to offer recommendations for treatment. The Report stated in part as follows:

…The clinical information, official documentation, historical and relevant dynamic risk variables indicate that [P.S.] is at low risk for sexual offence recidivism, and in the low risk range for general recidivism.

[P.S.] has significantly positive social support and has lived a largely prosocial lifestyle…

If I were assessing a 40-year-old [P.S.], I may be inclined to recommend some form of counselling or program to educate him on the dynamics of relationships that have an element of dependency and/or trust between a teenager and adult. [P.S.] believed he was helping the teens he took into his home. It appears that at least a few of these individuals share that perspective as well. However, he did not seem to understand at the time that his ability to provide for the victim various needs and wants affected the dynamic of the relationship, which would in turn affect sexual intimacy.

However, [P.S.] is now 71 years old…[P.S.] advised he does not feel he relates to teenagers at this time of his life for a variety of reasons, including his ailing health, his lack of technological savvy, and his completely different interest in areas such as music.

With respect to risk management, there is no reason that a custodial sentence is warranted. In general, people considered in the Level II category would not require a custodial sentence. Specifically with regard to P.S., he does not currently live his life in a way that places him in higher risk situations, as he does not appear to befriend teenage males and has not for over 20 years. There are no other concerns in this case that would suggest he were at risk to the public. The index offence occurred over 30 years ago. Thus, in conclusion, I would not expect that P.S. would require strict supervision or numerous restrictions, and I do not believe he requires intervention specific to risk for sexual offending. Given that he has spent over three years in the community since his arrest without violating conditions, he would likely comply with whatever conditions imposed upon him if he were given a term of probation.

Victim Impact Statement

[31] The victim impact statement of G.D. dated May 4, 2021 was marked as Exhibit 2. The behaviour of P.S. has deeply affected the complainant, G.D. He stated in part:

Over the next 30+ years I have struggled with trust. I have challenged authority figures & struggled with personal relationships. I have even questioned & challenged things as simple as store policies. I have built a good strong wall of defense to protect myself from being manipulated & taken advantage of again. I refuse to put myself in a position to be victimized again. I quite often find myself being over-analitical when meeting new people. I tend to assume they have some agenda.

Still today I feel guarded. I have what I call triggers. Certain names, songs or activities can stop me in my track. They instantly bring me back in time. Over the years and after many therapy sessions I have been able to ground myself. I have learned techniques to help me breathe and cope through another day. I am able to work through the dark thoughts and feelings of self harm. I realize that I was not to blame, that I am not sick and that I am strong. I suffered many years blaming myself for being so naïve. I imprisoned myself in my own dark thoughts. Many sleepless nights.

After all these years, I feel my voice has been heard and I am no longer silenced.

[32] G.D. spoke about the expense and missed time from work due to seeking professional help. He has experienced severe anxiety, paranoia, anger and depression. He has been hospitalized on a couple of occasions. He stated that he is “currently unemployed as I struggle to find a balance in my life while dealing with these court proceedings”.

Analysis

General Principles

[33] In sentencing an offender, the court must take into account the circumstances of the offence and the offender, together with codified principles of sentencing.

[34] The fundamental purpose of sentencing, described in section 718 of the Criminal Code, is to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.

[35] The objectives for sentencing judges to consider are set out in section 718(a) to (f) of the Criminal Code and are as follows:

a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b. to deter the offender and other persons from committing offences;

c. to separate offenders from society, where necessary;

d. to assist in rehabilitating offenders;

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

f. to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.

[36] Because this case involves the abuse of a person under the age of 18 years, this court must give primary consideration to the objectives of denunciation and deterrence, pursuant to section 718.01 of the Criminal Code. See R. v. Lis, 2020 ONCA 551, paras. 47 & 55

[37] Pursuant to section 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is a cardinal principle of sentencing, therefore, whatever weight a judge gives to the objectives listed above, the ultimate sentence imposed must respect the fundamental principle of proportionality. See R. v. Nasogaluak, 2010 SCC 6, paras. 41-43; R. v. Safarzadeh-Markhali, 2016 SCC 14; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089; R. v. Omoragbon, 2020 ONCA 336, para. 28

[38] Section 718.2 of the Criminal Code directs the court to consider various relevant aggravating circumstances relating to the offence or the offender, such as:

a. Offences motivated by bias, prejudice or hate;

b. Abuse of offender’s spouse or child;

c. Abuse of a person under the age of 18 years of age;

d. Abuse of a position of trust or authority;

e. Evidence that the offence had a significant impact on the victim;

f. Benefit to criminal organization;

g. Terrorism offence;

h. Commission of offence while offender was subject to a conditional sentence order or released on parole

[39] Further, this court must consider the principles of parity, totality, and to not deprive the person of liberty if less restrictive sanctions are appropriate and consistent with the harm done to the victim and the community.

Seriousness of Offences Involving Sexual Abuse of a Child

[40] The Crown relied on the case of R. v. D.(D.), 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.) as a seminal case on sentencing for sexual abuse of a child by an adult. In the case of D.(D.), a global sentence of 9 years and one month (after credit for pre-trial custody, sentence received was 8 years and one month) was upheld on appeal. The facts were very different from the case at bar, however, the Court discussed the appropriate range of sentence for sexual abuse of a child by an adult. The Court stated as follows:

[29] As indicated, the appellant submits that the global sentence of six years, considered by this court to be a fit sentence for Stuckless, represents the high end of the appropriate range of sentences for adult offenders who groom innocent children and sexually abuse them over substantial periods of time. With respect, I disagree.

[31] Read that way, as I believe it should be, Stuckless does not stand for the proposition that six years represents the high end of the appropriate range of sentences for like offenders convicted of like offences. On the contrary, it indicates to me that in similar circumstances, mid to upper single digit penitentiary terms will, as a general rule, represent the appropriate sentencing range.

[33] Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

[34] The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. 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.

[35] We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[36] In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

[44] To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W.(L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

[45] The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!

[41] In R. v. Woodward, 2011 ONCA 610, the Court referred to the D.(D.) case and stated in part as follows about the principles that could be taken from that case:

[39] To the extent that the trial judge relied on D. (D.), she simply extracted from it the principles of sentencing that this court has said should apply to adult sexual predators who exploit innocent children. These principles include that the sentencing objectives of denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing (D. (D.), at para. 34). As I shall explain further when I discuss the appropriateness of the global sentence in this case, the trial judge was correct in concluding that these principles apply with equal force to the case at hand.

[75] Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single-digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.

[76] In so concluding, I wish to emphasize 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. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

[42] Further, in R. v. D.M., 2012 ONCA 894, the Court of Appeal appeared to increase the range established in earlier cases. At para. 66, the Court stated:

[66] …We have recognized that sexual abuse of children by a person in a position of trust or authority now warrants more severe sentences, and where the abuse includes sexual intercourse, in most cases, a three- to five-year range is too low.

[43] Quite recently, in the case of R. v. Friesen, 2020 SCC 9, the court discussed what factors should be considered when determining sentencing principles for sexual offences against children. In Friesen, the victim’s mother met Mr. Friesen on an online dating website. Mr. Friesen was brought into the home where the two engaged in consensual sexual intercourse. Mr. Friesen then told the mother to bring her four-year old daughter in the bedroom. Mr. Friesen and the mother subjected the four-year-old child to sexual violence. The child’s screams woke a friend who removed the child, however, Mr. Friesen threatened the mother that unless she brought the victim back, he would tell the mother’s friend that the mother had previously sexually abused her one-year old son. Mr. Friesen pleaded guilty to sexual interference and attempted extortion. The sentencing judge imposed a six-year sentence for sexual interference and a concurrent six-year sentence for attempted extortion. The Court of Appeal reduced the sentence to 4.5 years for sexual interference and 18 months concurrent for attempted extortion. The Crown appealed. The Supreme Court of Canada restored the sentence imposed by the sentencing judge for sexual interference.

[44] While, again, these facts are very different from the case at bar, the court made some important statements about these types of offences and appropriate and necessary sentencing considerations:

[5] Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

[42] Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code . Our society is committed to protecting children and ensuring their rights and interests are respected…Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society…

[50] To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important. As Pepall J.A. recognized in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752 (“Stuckless (2019)”), failure to recognize or appreciate the interests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity of the offence (paras. 120, 122, 130 and 137; see also Marshall, at pp. 219-20). Similarly, it can result in stereotypical reasoning filtering into the sentencing process and the consequent misidentification and misapplication of aggravating and mitigating factors (J. Benedet, “Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences” (2019), 44 Queen’s L.J. 284, at pp. 288 and 309; M. M. Wright, Judicial Decision Making in Child Sexual Abuse Cases (2007), at pp. xii-xiii and 39). Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process (Stone, at para. 239; R. v. Barton, 2019 SCC 33, at para. 200).

[52] We would note that the personal autonomy interest carries a somewhat different meaning for children than it does for adults. Children under the age of 16 of course lack the capacity to consent to sexual contact with an adult. As we will explain in detail later in these reasons, a child’s participation in such contact is not a mitigating factor and should never be equated to consent. Instead, personal autonomy refers to a child’s right to develop to adulthood free from sexual interference and exploitation by adults (see Sharpe, at para. 185).

[58] These forms of harm are particularly pronounced for children. Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity … For this reason, even a single instance of sexual violence can “permanently alter the course of a child’s life” (Stuckless (2019), at para. 136, per Pepall J.A.)…

[61] The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities…

[69] … Victimization can be particularly shameful for boys because of social expectations that males are supposed to appear tough … Embarrassment, humiliation, and homophobia form a particularly toxic and stigmatizing combination for male child victims …

[75] In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 43-44). The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of “ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused” (Nasogaluak, at para. 42).

[76] Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.

[88] Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to (Arcand, at para. 58; see also M. (C.A.), at para. 80; Morrisey, at para. 48). For sexual offences against children, we agree with Iacobucci J. that, save for possibly certain rare cases, offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child (Scalera, at paras. 120 and 123-24).

[91] These comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle requires that the punishment imposed be “just and appropriate . . ., and nothing more” (M. (C.A.), at para. 80 (emphasis deleted); see also Ipeelee, at para. 37). First, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders can have a mitigating effect…

The Court held that increases in maximum sentences are an indication that Parliament “wanted such offences to be punished more harshly” (para. 97). The Court also recognized the prioritization of denunciation and deterrence when sentencing for these offences, while at the same time recognizing that the sentencing judge must retain discretion to weigh and consider other factors such as rehabilitation. (para. 104) The Court went on to state:

[107] We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:

(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,

(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child.

[114] D. (D.), Woodward, S. (J.), and this Court’s own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.), “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).

Finally, the court set out some significant factors to consider to determine a fit sentence, including, the likelihood to reoffend, abuse of a position of trust or authority, duration and frequency, age of the victim, and degree of physical interference. (paras. 121-154)

[45] The Court also recognized the importance of a showing of remorse. The court stated:

[165] … Remorse is a relevant mitigating factor (see Lacasse, at paras. 77-78). However, remorse gains added significance when it is paired with insight and signs that the offender has “come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending” (R. v. Anderson (1992), 1992 CanLII 6002 (BC CA), 74 C.C.C. (3d) 523 (B.C.C.A.), at p. 536 (emphasis in original))...

Cases Relied on By the Parties to Establish Appropriate Sentence

[46] A number of cases were provided from both the Crown and defence. While this court has carefully considered all sentencing cases presented by counsel, it is important to keep in mind that older cases may be of less value to this sentencing court given more recent guidance from the Court of Appeal and Supreme Court of Canada.

[47] Some of the cases provided by the Crown were as follows:

NAME

FACTS

MITIGATING AND AGGRAVATING CIRCUMSTANCES

SENTENCE

R. v. D.M., 2019 ONSC 5407

Convicted by a jury of sexual assault, sexual exploitation and sexual exploitation of a person with a disability.

One complainant, a developmentally challenged male who was 17 or 18 at the time.

Three incidents which included the complainant being instructed to perform oral sex on D.M., following which D.M. performed anal sex on the complainant.

Mitigating:

• No criminal record.

• Relatively youthful age of DM.

• DM’s prosocial background,

including his history of full-time

employment, and his positive

pre-sentence report.

• The substantial family and

community support.

Aggravating:

• Complainant was

developmentally challenged

• Age of the complainant

• Repeated acts over several

months

• Breach of trust

• Impact upon the complainant

and his family

5 years for sexual exploitation

3 years concurrent for sexual exploitation with a person with a disability

R. v. F.C., [2016] O.J. No. 5538 (Sup. Ct.)

After trial, accused found guilty of three sexual offences against his young great-granddaughter, specifically, sexual assault, sexual touching of person under 14, and invitation to sexual touching. The accused was 82 and his great granddaughter was 4 years old.

The behaviour included touching the complainant’s vagina, the complainant touching the accused’s testicles, and penetration.

Mitigating:

• No record.

• Suffered from high blood

pressure, angina, arthritis and

mobility problems.

Aggravating:

• Position of trust.

• Family was torn apart.

• Complainant was quiet,

extremely shy, and very anxious

interacting with adults.

9 months imprisonment, three years probation

R. v. Cassidy, 2016 ONSC 3765

Offender was the complainant’s former high school teacher and basketball coach. The complainant’s parents were also teachers at the school and were friends with the offender.

The offender retired in 2009 but continued to teach the complainant basketball in 2010.

The inappropriate touching commenced the month that the complainant turned 17. He would hug her, put his hands under her shirt on her back, and touch her bra.

A few months after this began, the offender gave the complainant a massage. He convinced her to remove her clothing. He fondled her breasts and buttocks. He touched and digitally penetrated her vagina.

He masturbated her on occasion, and simulated penetration occurred over their clothes.

Mitigating:

• Early guilty plea

• Degree and sincerity of the

offender’s remorse

• No criminal record

• Solid employment history and

good character

• Familial and community

support

• Attended counselling

• Compliance with restrictive

bail conditions for over a year

• Cooperation with the police

• Collateral consequences

experienced by the offender:

media coverage, public

humiliation, loss of reputation

Aggravating:

• Sexual activity occurred more

than once and over a period of

many months

• Sexual activity intensified over

time, from hugs to digital

penetration to grinding while

clothed; indicative of grooming

• Age difference was nearly 40

years

• Breach of trust: teacher, coach,

and family friend

• Impact on the local community

• Impact on complainant and her

family

8 months imprisonment

R. v. S.(I.W.), 2014 ONSC 791

The complainant was the offender’s daughter. She was 16 years of age at the time of the offences.

She became drunk and went upstairs to her bedroom to go to sleep. She had passed out, fully clothed, on her bed. She awoke to someone pulling down her pants and underwear. Offender placed his mouth on her vagina and penetrated her.

Mitigating:

• Indigenous offender

• Offender has been the victim of

sexual and physical abuse

himself

• Low risk to re-offend

• The offence was a single act in

the context of alcohol use

• Limited criminal record with

no convictions of a nature

• Offender open to counselling

• Offender had participated in a

variety of programs while

incarcerated, including

programs on substance abuse

• Delays in his trial and

sentencing while he was

in custody

• Familial support

Aggravating:

• Profound breach of trust

• Offence included

penetration

• Significant impact on the

complainant

• The offence took place in the

home, where she

should feel most safe

• She was intoxicated

because the offender allowed

underage drinking in his home

• The offender’s lack of remorse

2.5 years imprisonment (less time served), 2 years probation

R v B.(M.), 2013 ONCA 493

Pleaded guilty to sexual exploitation

Accused was a 36-year old senior manager at a movie theater. The complainant was a 16-year old concession stand worker.

When the complainant complied with the offender’s request for a hug, he kissed her, licked her neck, felt her breasts and digitally penetrated her. Later that same day, he kissed her and touched her breasts. When she refused to perform oral sex on him, the offender motioned for her to get down on the floor, took her pants off and had protected intercourse with her during which he ejaculated.

Mitigating:

• Guilty plea

• First offence

• Expressed remorse

• Lost job,

home and marriage

Aggravating:

• One act of sexual intercourse

• Severe impact on the victim

9 months imprisonment

R v Aird, 2013 ONCA 447

Convicted after trial of two counts of sexual exploitation.

Accused was 28-year-old tutor. The victim was almost 17. There was a relationship between the parties from their first kiss in December 2008 until March 2010.

Mitigating:

• No previous criminal record

• Positive pre-sentence report, no

danger to reoffend, strong

support from family

• Collateral consequence of loss

of teaching licence

Aggravating:

• Sexual activity for 15 months

• Included oral sex and ongoing

intercourse for at least a year.

• Complainant believed it to be a

relationship

• Complainant lost self-

confidence and trust in others

• Position of trust,

including, for the mother who

trusted him to be with her

daughter

1 year imprisonment

R. v. C.(R.), 2013 ONSC 6058

Found guilty of sexual assault, sexual interference and sexual exploitation.

The offender was the grandfather. The complainant was between the ages of 5 and 11.

Starting when the complainant was 5, the offender would have her sit on his lap and he would touch her vagina, beneath her underwear. He would also touch her breasts and kiss her on the lips.

On occasion, he would enter the bathroom as she bathed. He would fondle her breasts and vagina. This continued until the last act 6-7 years later.

On one occasion, the complainant was asleep and the offender put his hands in her pants and penetrated her vagina.

There was also oral penetration

Mitigating:

• Offender’s advanced age and

serious medical issues

Aggravating:

• Significant impact on the

victim

• Impact of the offences on the

victim’s family

1 year imprisonment, 3 years probation

R v. H.(C.), 2012 ONSC 3352

When the complainant was 12 years old, her father began to sexually abuse her - which included the removal of her clothing, touching of her breasts and vagina and oral penetration.

When the complainant was 14, she and one of her friends asked the offender if they could have a party in her bedroom and asked the offender to purchase alcohol and marijuana for them. The offender agreed to this, in exchange for the complainant performing oral sex on him and the complainant and her friend letting him take nude photos of them. Before either of these things happened, the matter was reported to police.

Mitigating: (as submitted by the defence – unclear which of these the Court accepted):

• The offender had lost most of

his contacts in the community

• The offender suffered from

major depression and suicidal

ideation that resulted in a

weapons offence.

• At a low risk to re-offend

Aggravating: (as submitted by the Crown – unclear which of these the Court accepted):

• Most egregious breach of trust,

as offender was the parent

the complainant felt closest to

• Prior criminal record

• Complainant’s young age

• Use of alcohol to ensure that

she submitted to him

• Invasive sexual acts

• The offender sought to involve

another child in the second

offence by inviting them to

participate in the making of

child pornography

• No insight into the offending

behaviour

3 years imprisonment (sexual touching), 1 year imprisonment (invitation to sexual touching) concurrent

R v E.T., 2011 ONCA 86

Conviction for sexual assault, gross indecency and sexual exploitation.

Victim was the child of the accused’s spouse’s cousin. Acts began with kissing at age 8 and progressed over the years to sexual touching and oral sex at age 17 and 18.

Mitigating:

• No criminal record

• Offender 68 years old.

• Strong family and community

support

• Suffered a head injury

Aggravating:

• Kissing progressed to oral sex

• Position of trust

3 years imprisonment

Court stated at paras. 6-8 that the range for sexual offences against a child by an adult in a position of trust where there is no penetration is a minimum of 3 years

R v C (B.R.), 2010 ONCA 561

Accused was 45 years old at the time. The victim was his common law spouse’s son and was between the ages of 15 and 17.

The offence included several acts of anal intercourse.

Mitigating:

• First time offender, with good

employment history

• He pleaded guilty and

expressed remorse

• Low risk to reoffend

Aggravating:

• Was in a position of trust

• Offences occurred over a

prolonged period and included

several acts of anal intercourse

A 30-month sentence would be fit, but for the certainty of deportation. Imposed a sentence of two years less one day, followed by 6 months probation.

R v S.S., 2009 ONCA 353

Convicted of sexual assault after trial.

Offence involved the abuse of an 11-year-old girl on a single occasion by a mature adult to whose care the she had been entrusted by her father.

The accused placed himself naked on top of her. His penis made contact with her vaginal area.

Mitigating:

• None mentioned

Aggravating:

• Position of trust

• Criminal record, but for

unrelated offences

• No remorse.

2 years imprisonment

At para. 19 the court noted that the absence of penetration does not relegate the sexual abuse of a child to a lower range of sexual offence

R v Debidin, 2008 ONCA 868

Pleaded guilty to sexual exploitation and making child pornography.

Accused was a 41-year-old dance teacher. The complainant was 15.

Sexual contact between the parties occurred on at least six occasions over a period of 11 months.

Mitigating:

• Character letters described

accused as highly respected

• Accused was genuinely

remorseful, attending therapy

• Guilty plea

• No record

• No threats or physical force

Aggravating:

• Multiple acts of sexual activity

over 11 months (4 separate

incidents including oral sex,

digital penetration and a single

act of partial vaginal

penetration)

• Accused filmed one incident

• Victim significantly impacted

6 months of imprisonment for 1 count of sexual exploitation (sentence of six months for 1 count of making child pornography to be served concurrently)

Note: The appeal related to the decision of the sentencing judge not making a SOIRA order.

R v Gaukrodger, 2006 CanLII 31292 (ON CA), [2006] O.J. No 3614 (ONCA)

Accused was a 26-year-old teacher. The complainant was a 14-year-old former student.

Seven acts of sexual intercourse over a month.

Mitigating:

• Accused pleaded guilty

• No previous criminal record

• Positive employment record

Aggravating:

• Fondling/masturbation

escalated to 7 acts of

intercourse over 1 month

• Position of trust considered,

accused made complainant

think he loved her

15 months imprisonment, 2 years probation

The court found no error in the trial judge having considered breach of trust as aggravating even though it was also an element of the offence.

R v G(T.F.), (1992) 1992 CanLII 15030 (ON CA), 11 CR (4th) 221 (ONCA)

14-year-old employee and 33-year-old accused.

Sexual intercourse on six occasions.

Convicted after trial of sexual exploitation.

Mitigating:

• No actual exploitation of the

employer / employee

relationship

• No evidence of trauma or

psychological harm to the

complainant

• Appellant was of previous

good character and enjoyed an

excellent reputation in the

community

Aggravating:

• 6 incidents of intercourse, one of which was in the parents’ home.

15-month sentence of imprisonment

[48] The defence relied upon a number of cases including the following:

NAME

FACTS

MITIGATING AND AGGRAVATING CIRCUMSTANCES

SENTENCE

R. v. MacNaughton, 1997 CanLII 960 (Ont. C.A.)

After trial, received 6 months for sexual touching of one boy and 3 months concurrent for the touching of another, plus 2 years probation

Mitigating:

• Accused over 70, living in quiet

retirement

• Not a risk to the community.

• No record.

Aggravating:

• Breach of Trust

Sentence of imprisonment converted to a conditional sentence

R. v. W. (J.) (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.)

Accused 20-21 years old, touched the vagina of an 8-9-year-old complainant numerous times.

The complainant was placed in the accused’s parents’ home as a foster child.

Mitigating:

• No record.

• Relatively youthful

• Suffering from OCD, social

phobia and episodic alcohol

abuse.

• Mental condition would

deteriorate if incarcerated.

• Had been on bail for 4 years

pending trial and appeal.

• Full time employment

Aggravating:

• Breach of trust

12-month conditional sentence.

R. v. L.F.W., 2000 SCC 6

Offences were committed between 1967 and 1973. The complainant was between 6 and 12 and the accused was between 22 and 28. First cousins.

Conviction was for one count of indecent assault and one count of gross indecency.

There were 10 to 12 incidents, involving forced masturbation and fellatio.

Mitigating:

• Absence of further criminal

conduct

• Good reputation in the

community.

Aggravating:

• Complainant’s age

• Crimes were repeated

• Harmful impact on the victim

• Abuse of a relationship of

familial trust

21-month conditional sentence

R. v. Bradford, 2005 CanLII 19652 (Ont. C.A.)

Convicted of one count of indecent assault and one count of sexual assault.

Events occurred in the early 80s.

Mitigating:

• 75 years old

• Poor health, confined to a

wheelchair and in need of 24

hour nursing care. Provincial

facilities completely

inadequate to deal with the

health care needs.

12-month conditional sentence in addition to time already served of 2.5 months.

R. v. Arbuthnot, 2008 CanLII 3227 (ONSC)

Found guilty following a jury trial of one count of gross indecency, and one count of sexual interference.

Accused briefly touched the penis of two young boys.

Mitigating:

• 72 years of age

• Mental and physical health

compromised

Aggravating:

• Breach of trust

• Both were under the age of 18

• Impact to one complainant

18-month conditional sentence

R. v. J.E.B., 2014 ONSC 1921

Was in a common law relationship with complainant’s mother during first 4 years of abuse. He was father figure.

Complainant was between 4 and 11 years of age. Acts included accused performing fellatio on him and then accused would masturbate and ejaculate on the complainant’s face.

Attempted anal intercourse

Mitigating:

• Guilty plea

• 78 years of age.

• Stable relationship with a

spouse who supports him.

• Suffering from COPD, mild

cognitive impairment, and

numerous other medical issues,

including chronic lymphocytic

leukemia.

Aggravating:

• One prior conviction for

indecent assault in 1968.

• Age of victim

• Position of trust.

• Repeated acts over 6-7 years.

18-month conditional sentence, followed by probation for 3 years.

Conditional Sentence

[49] In considering whether a conditional sentence would be appropriate in this case, this court first considered whether a conditional sentence is a legally available sentence in the circumstances. Counsel are not in agreement on this point.

[50] P.S. was convicted of sexual exploitation, an offence that occurred in 1988. At the time of the offence, the maximum term of imprisonment was 5 years. There was no minimum sentence. Further, at that time, the conditional sentence was not yet an option. The conditional sentence was not available until 1996 (An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22, s. 6)

[51] Currently, the conditional sentence legislation limits the availability of such sentences. Specifically, the conditional sentence is not available where there is a mandatory minimum sentence. Presently, sexual exploitation carries a mandatory minimum sentence of one year where the offence is an indictable offence. However, this of course does not apply to P.S. as the offence predates the imposition of this mandatory minimum sentence.

[52] Section 11(i) of the Charter guarantees P.S. the following:

11 Any person charged with an offence has the right

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[53] The Crown argued that P.S. is either entitled to the sentencing regime at the time of the offence or now, whichever is least onerous. However, according to the Crown, P.S. is not entitled to have the benefit of some sentencing regime that existed between now and then.

[54] The Crown relied on R. v. Poulin, 2019 SCC 47. Mr. Poulin was found guilty in 2016 of historical sexual offences committed between 1979 and 1987. The trial judge sentenced Mr. Poulin to a conditional sentence of two years less a day for two counts of gross indecency. Similar to the case at bar, a conditional sentence was not an available option at the time the offences were committed. Significantly, in Poulin, the parties agreed that a conditional sentence was no longer applicable to the offence of gross indecency, according to the provisions in force, by the time Mr. Poulin was charged. Mr. Poulin argued that he was entitled not only to the lesser of the punishments under the laws in force at the time of his offences and the time of sentencing, but also to an even lesser punishment that was temporarily applicable to his offences during the decades that elapsed before he was held accountable for his crimes. The court considered whether s. 11(i) of the Charter conferred 1) a binary right – a comparison of the punishments under the laws in force at two set points in time (commission of offence and sentencing) and the right to receive the lesser of those punishments, or 2) a global right – which would involve a consideration of all punishments that have existed for the offence between its commission and sentencing and the right to receive the least severe punishment in that time span.

[55] The court ultimately held that section 11(i) of the Charter conferred a binary right and the court stated in part as follows:

[3] I conclude that, properly interpreted, s. 11(i) confers a binary right, not a global one. Section 11(i) entitles an offender to the lesser of (1) the punishment under the laws in force when the offender committed the offence, and (2) the punishment under the laws in force when the offender is sentenced, as these punishments are tethered to two meaningful points in time. The former reflects the jeopardy or legal risk the offender took by offending. That punishment established, in advance of the offender’s conduct, the legal consequences that would flow from that chosen conduct. The latter is the punishment that society considers just at the precise moment the court is called upon to pass a sentence. It provides the contours for a sentence that reflects society’s most up-to-date view of the gravity of the offence and the degree of responsibility of the offender. As these two punishments are clearly connected to the offender’s conduct and criminality, there is a strong and principled basis for the offender to have the constitutional right to receive the lesser of the punishments at these two points in time.

[4] By contrast, there is no principled basis for offenders to enjoy the automatic constitutional right to a previous punishment which is lower than both the one to which they exposed themselves when they committed the offence and the one that reflects society’s current sense of the gravity of the offence and the responsibility of the offenders. Reading s. 11(i) in a manner that would grant an offender the right to the most lenient punishment that existed for the offence at any point between its commission and sentencing would both exceed and distort the purposes of s. 11(i). As I will explain, these purposes are the rule of law and fairness. Far from supporting a global reading of s. 11(i), these purposes strongly militate towards reading s. 11(i) in a manner that sets the applicable punishment at the time of the offence as the ceiling, and entitles the offender to a more clement punishment under the laws in force at the time of sentencing, if one exists.

[5] As a result, I conclude that s. 11(i) does not resurrect any temporary reductions in punishment which came after the offence and which bear no connection whatsoever to the offender’s conduct or to contemporary sentencing standards. By granting the offender specific retrospective access to the applicable punishment at the time of the offence, s. 11(i) need not and does not open the door to the lowest identifiable punishment that has ever applied to the offence since the offender committed it. Section 11(i) did not constitutionalize the right to past punishments that Parliament has since discarded or amended. The legal rights reflected in our Charter represent the core tenets of fairness in our criminal justice system. The right to comb the past for the most favourable punishment does not belong among these rights.

In conclusion, the court allowed the Crown’s appeal, holding that Mr. Poulin was not eligible for the conditional sentence imposed on him as it was not applicable to his offences under the sentencing provisions in force either at the time of commission or, “according to the parties”, of his sentencing. (para. 6). By the time the Supreme Court released its decision, Mr. Poulin had died, therefore, the court did not pass a different sentence or remit the matter for sentencing.

[56] An interesting and critical aspect of Poulin, however, is that counsel agreed that a conditional sentence was not available at the time of charge, conviction and sentence. This was central to the court’s analysis and formed the basis upon which the decision was reached. Counsel reached this conclusion by the following analysis:

a. gross indecency was repealed in 1988;

b. the conduct that had amounted to gross indecency was captured under other sexual offence provisions, such as s. 151 (sexual interference) and s. 271 (sexual assault) of the Criminal Code;

c. Conditional sentences had been made statutorily unavailable for such sexual offences as a result of ss. 742.1(b), 151 and 271, as both offences have minimum sentence requirements;

d. The parties considered the conditional sentence to have, therefore, been made unavailable for the indictable acts of gross indecency that were, by the time of charge, conviction and sentence, captured under these other offences.

In response to this analysis, the court stated at para. 10, “Put differently, the parties agree that the current restriction on conditional sentences for sexual offences extends to Mr. Poulin’s offences of gross indecency. I do not comment on this interpretation as it is not an issue that has been raised before this Court.” Further, the Court pointed out that the sentencing judge did not analyze the threshold question of whether a conditional sentence was actually available for the offences faced by Mr. Poulin, rather the judge determined that Mr. Poulin was entitled to the benefit of a lesser sentence that was applicable to his offences in the interval between commission and sentencing.

[57] Later in the decision, the court noted as follows:

[36] As set out above, the crime of which Mr. Poulin was found guilty — gross indecency — was repealed in 1988, after he committed it. However, the parties agree that the sentencing provisions applicable to Mr. Poulin’s offences of gross indecency after that date are the ones applicable to the indictable sexual offences in the Criminal Code. Then, because amendments to the Criminal Code made the conditional sentence unavailable for these sexual offences, the parties agree that this sentence was similarly statutorily unavailable for Mr. Poulin’s counts of gross indecency at the time he was sentenced in 2017. Without the parties’ agreement that the sentencing provisions applicable to the modern sexual offences apply to Mr. Poulin’s acts of gross indecency, it would have been necessary for the court to determine which crime(s) and associated provisions corresponded to Mr. Poulin’s acts of gross indecency after this crime was repealed.

[58] Explicitly, the court in Poulin was not dealing with the question of whether a conditional sentence would be available to Mr. Poulin in 2017. The court assumed this fact based on the agreement and concession of counsel, and based their analysis on this agreement and concession. The court made it perfectly clear that they were not answering this question.

[59] In the context of the conditional sentence regime, the accused, today, must meet certain criteria. These criteria have changed over time. The court in Poulin stated:

[46] Where the lesser punishment has built-in criteria that the offender must meet to qualify for the punishment, receiving the benefit of that punishment means, at a minimum, having the court consider the punishment. If the court finds that the offender meets the criteria, the offender becomes entitled to that punishment. This was demonstrated in Johnson, in which this Court held that s. 11 (i) obliged the sentencing judges to consider whether the offenders satisfied the criteria of the newer, more favourable long-term offender regime, before automatically applying the harsher dangerous offender regime already in place when the offenders committed their offences. If the offenders satisfied the criteria of the long-term offender regime, they were entitled to long-term supervision orders as long-term offenders following determinate periods of incarceration, instead of indeterminate detention as dangerous offenders (para. 45).

[47] Notably, the punishment sought by Mr. Poulin in this case, a conditional sentence, is a form of sentence with built-in prerequisites and criteria (see Criminal Code, s. 742.1 , and, in particular, para. (a); see also R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163, at paras. 14-16 and 25). Therefore, if this sentence were applicable to Mr. Poulin (which I find it is not), and if it were found to constitute the lesser punishment, Mr. Poulin would only be entitled to it if the sentencing judge found that Mr. Poulin met the relevant statutory criteria.

[60] The court, again, referred to the agreement of the parties in its application of section 11(i) to Mr. Poulin’s circumstances:

[118] In light of the parties’ agreement that a conditional sentence was not applicable under the sentencing provisions in force either at the time of Mr. Poulin’s acts of gross indecency (1979 to 1983) or at the time of his sentencing (May 2017), Mr. Poulin did not have the right to this sentence under s. 11 (i) of the Charter. The courts below therefore erred in imposing it.

[61] The Court in Poulin concluded that the sentencing court is required to impose a sentence in accordance with the lesser punishment as between the punishment applicable at the time of the offence and the punishment applicable at the time of the sentencing. The court also noted, “…the sentencing provision in force at the time of Mr. Poulin’s gross indecencies would have offered the sentencing judge significant discretion to impose a sentence that would achieve the same objectives as the conditional sentence he ordered. At the time of Mr. Poulin’s offences, the sentence for gross indecency was a maximum of five years’ imprisonment.” (Poulin, para. 119)

[62] It is clear that s. 11(i) of the Charter warrants a liberal and purposive approach. (Poulin, para. 54)

[63] Having very carefully considered the analysis in Poulin, this court is of the view that Poulin does not answer the question as to whether a conditional sentence would have been legally available to Mr. Poulin in 2017. From some of the comments made by the Supreme Court of Canada, it would appear that the court may have answered this question differently than the agreement reached by counsel.

[64] It is the view of this court that a conditional sentence is legally available to P.S. Setting aside section 742.1(a) for a moment, the only section that could possibly prohibit a conditional sentence for the offence committed by P.S. is s. 742.1(b), given that the offence of sexual exploitation, as it stands today, carries a minimum term of imprisonment. However, the minimum term of imprisonment does not apply to P.S. because there was no such mandatory minimum at the time of the offence. Surely, this court is entitled to consider the current conditional sentence regime in combination with the fact that a mandatory minimum sentence does not apply given the date of the offence. This is not taking a global approach as Poulin held was improper. This is simply a reasoned consideration of both points in time. The only other provision of s. 742.1 that could possibly apply is subsection (c), in that the offence can not be one, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life. In R. v. Sharma, 2020 ONCA 478, the Ontario Court of Appeal found that this section contravened both ss. 7 and 15 of the Charter and was not saved by s. 1. The provision was struck down. Therefore, s. 742.1(c) can not be applied. This is not a situation where the specific offence has now been precluded by s. 742.1(f). In those circumstances, different considerations would apply.

[65] Given that this court has determined that a conditional sentence is legally available to P.S., having considered all provisions except 742.1(a), this court must now consider whether such a sentence is appropriate in the circumstances; in other words does a conditional sentence meet the objectives of sentencing in this case, especially given the comments in Friesen.

[66] The Court in Sharma set out the development of the conditional sentence regime since it was enacted. It is of note that, from its inception, the court has precluded conditional sentences where a mandatory minimum sentence is legislated.

[67] In one of the early leading cases on the proper application of conditional sentences, R. v. W. (J.) (1997), 1997 CanLII 3294 (ON CA), 115 C.C.C. (3d) 18 (Ont. C.A.), Rosenberg J.A. clearly expressed his view that this sentencing option should not be sparingly employed (at pp. 37-38):

…The Sentencing Commission concluded that it was only logical to recommend that imprisonment be used with extreme moderation… Parliament has accepted this conclusion through s. 718.2(d) and (e) and the courts are required to give it real effect in practice through liberal resort to the conditional sentence regime.

[68] The Court also rejected the argument that in many circumstances a conditional sentence insufficiently addresses general deterrence and denunciation. Rosenberg J.A. cited, with approval, the various commissions and studies that have brought into doubt the deterrent value of incarceration. On the other hand, he emphasized the potential for denunciation and deterrence through the efficient mechanism available to the Crown to prove a breach and to seek the imprisonment of the offender to explain an alleged breach. The court also cited the fact that a conditional sentence is not subject to remission by way of parole.

[69] In R. v. Proulx, [2000] 2 S.C.R. 61, the Supreme Court of Canada made it clear that there are no offences (except those now specifically set out in the legislation) that are excluded from the conditional sentencing regime. There should be no presumption in favour of or against a conditional sentence for specific offences. However, the gravity of the offence is a relevant consideration. Community safety is a condition precedent to the imposition of a conditional sentence, but certainly not the only consideration in deciding whether a conditional sentence is appropriate. The consideration on the question of community safety includes the risk of re-offending and the gravity of the damage that could ensue from further offences.

[70] While the legislation has changed over time, the following principles from Proulx are still applicable today:

a. Conditional sentences are meant to be punitive in nature;

b. A conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions are imposed and the term of the sentence is longer than it would have been imposed as a jail sentence;

c. A conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed;

d. When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence;

e. While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may still be imposed even if such factors are present.

[71] In deciding whether to impose a conditional sentence, a trial judge first must reject both a penitentiary term and probationary measures as inappropriate sentencing dispositions. The judge should then consider whether it is appropriate for the offender to serve the sentence of less than two years in the community. When the prerequisites of s. 742.1 have been met, the sentencing judge should consider whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing in ss. 718–718.2.

[72] A conditional sentence is not a reward. It is a period of incarceration to be served in the community under strict conditions, with no time deducted for good behaviour.

[73] Taking all of this into account, this court must also be mindful of the guidance from the Court of Appeal in R. v. F. (G.C.) (2004), 2004 CanLII 4771 (ON CA), 188 C.C.C. (3d) 68 (Ont. C.A.). In that case, the court held that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, especially where the sexual violation was of a vulnerable complainant by a person in a position of trust.

Mitigating and Aggravating Factors

[74] It is the view of this court that the mitigating and aggravating factors to be considered are numerous in this case.

[75] As for mitigating factors:

a. P.S. has no criminal record;

b. P.S. is 71 years of age;

c. P.S. has expressed true remorse to the extent of leaving this trial with a true understanding and insight into sexual exploitation and what he did wrong; an understanding that he did not have when this trial began. P.S. leaves this trial with a new point of view, one that this court feels he will carry with him forever. The Crown acknowledged the true remorse of P.S. A genuine expression of remorse can serve to mitigate a sentence: See R. v. Reeve, 2020 ONCA 381, paras. 11-12;

d. While P.S. did not plead guilty, but rather had a trial, this court accepted P.S.’s testimony as to what occurred. P.S., in telling the truth, sealed his own fate on the charge of sexual exploitation. While ignorance of the law is no excuse, it is obvious that P.S. truly did not appreciate that he was committing a crime at the time these events occurred. P.S. now clearly understands the wrongfulness of his behaviour and the impact it has had on G.D;

e. P.S. has a number of serious health issues that are going to be a challenge to care for in an institutional setting. Significantly, P.S. has Parkinson’s disease which requires constant monitoring and, by all accounts, his condition is deteriorating;

f. P.S. has been diligent about his health care and treatment plans in the past as evidenced by the Baycrest notes in Exhibit 5;

g. P.S. is a very low risk to reoffend according to the psycholegal assessment;

h. The pre-sentence report is extremely positive;

i. P.S. has strong social supports in his life;

j. P.S. has been on a form of release for thirty-nine months with no issues whatsoever;

k. It is very unlikely that P.S. will ever be able to enter the United States again to see his daughter and grandchildren.

[76] As for aggravating factors:

a. There was more than one sexual act, perhaps 3 or 4 incidents of oral sex being performed on the complainant by P.S.;

b. There was a breach of trust. G.D. was living with P.S. at the time. P.S. was providing for G.D. and was an important male role model in his life, like that of a big brother or even a father. This trust relationship had been built over time, culminating in a relationship of dependency at the time of these sexual acts;

c. G.D. was only 15 years old at the time of these events;

d. P.S. made marijuana available to G.D. during the time he resided at the Tottenham residence;

e. P.S.’s behaviour has had a significant impact on G.D., which has caused him to distrust people, led to hospitalization, therapy and counselling. He has felt fear.

Appropriate Sentence in this Case

[77] Sexual offences against children are inherently wrongful and always put children at risk of serious harm. This court fully accepts the inherent wrongfulness of the offence in this case, being sexual exploitation. This court fully appreciates the potential harm to children that flows from these offences and the actual harm that has occurred in this case. This court has kept these principles firmly in mind in crafting the appropriate sentence. Sexual offences against children, in any form, are crimes of physical and psychological violence. Exploitation is inherent.

[78] It is the view of this court that a penitentiary term is not necessary to meet the objectives of sentencing. Having reviewed the cases relied upon by both the Crown and defence and having carefully considered the circumstances of this case, this court has concluded that a sentence of less than two years is appropriate. On the other hand, a non-custodial sentence, such as probation, is not appropriate in these circumstances.

[79] It is clear that the safety of the community would not be endangered by the imposition of a conditional sentence in this case. It is the view of this court that P.S. is no risk to the community. He comes before the court as a 71-year-old man with no criminal record and ailing health. Even more importantly, P.S. has developed an understanding of the wrongfulness of his behaviour throughout these proceedings. The psycholegal assessment and pre-sentence report both provide this court with certainty that P.S. will not be a risk to the community.

[80] This court is satisfied that a conditional sentence, followed by probation, will meet the fundamental purposes and principles of sentencing in this case. A conditional sentence can meet the objectives of denunciation and deterrence in the right circumstances and with the right conditions. A conditional sentence is a term of imprisonment – one that is served in the community under strict conditions. It is punitive in nature. The term of a conditional sentence is the term – there is no reduction as there is for a sentence served in a custodial facility. A conditional sentence is not probation. Any breach of a conditional sentence has serious consequences, including the very likely possibility of serving the remainder of the sentence in custody upon a finding of breach. The primary objectives of denunciation and deterrence can be met with a conditional sentence in this case.

[81] This court is not satisfied on the basis of the information presented that P.S.’s medical conditions can be properly addressed in a custodial facility. As for the provincial institution, there was a suggestion that he be sent to Maplehurst with the suggestion that either a movement disorder specialist would have to be brought in or he would be sent out. There was no real discussion about how P.S.’s issues would or could be addressed. There was no discussion about his medication or diet requirements. Obviously, P.S. would not be permitted to use medical marijuana in the facility. As for the federal corrections system, the information provided was very general in nature with no indication of how P.S.’s specific issues could be handled. This court has real concern that P.S. will deteriorate significantly in a custodial setting.

[82] It is the view of this court that P.S. presents as an exceptional case of someone who has truly learned from the criminal justice process. There is no chance that he will find himself in a similar position in the future.

[83] For all of the foregoing reasons, this court imposes a conditional sentence for a term of two years less a day, followed by one year of probation.

[84] The terms of the conditional sentence will be as follows:

a. Keep the peace and be of good behaviour

b. Appear before the court when required to do so

c. Report to a supervisor within two working days and thereafter, when required by the supervisor and in the manner directed by the supervisor

d. Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province

e. Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation

f. Cooperate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request

g. Live at a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance

h. For the first 12 months of this conditional sentence, remain in your residence or on the property of your residence at all times, except

i. For a 4-hour period once per week, day and times to be arranged with the conditional sentence supervisor, to acquire the necessities of life;

ii. For any medical emergencies involving you or any member of your immediate family;

iii. For going directly to and from or being at court attendances, religious services, or legal or medical or dental appointments;

iv. For going directly to and from and being at assessment, treatment or counselling sessions;

v. With the prior written approval of the supervisor. The written approval is to be carried with you during these times;

vi. For carrying out any legal obligations regarding compliance with this Conditional Sentence Order.

i. For the second 12 months, less a day of this conditional sentence, and for the balance of this Order, remain in your residence or on the property of your residence at all times daily between the hours of 11 pm and 6 am, except

i. For any medical emergencies involving you or any member of your immediate family;

ii. With the prior written permission of your supervisor. The written permission is to be carried with you during these times;

iii. For carrying out any legal obligations regarding compliance with this Conditional Sentence Order.

j. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with G.D. or any member of his immediate family

k. Do not be within 50 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know the person to be EXCEPT for required court attendances

l. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor and complete them to the satisfaction of the supervisor. The psycholegal assessment and pre-sentence report are to be provided to the supervisor

m. You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed

n. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed

[85] The terms of the probation order, which will commence immediately at the conclusion of the conditional sentence order will be as follows:

a. Keep the peace and be of good behaviour

b. Appear before the court when required to do so

c. Notify the court or probation officer in advance or any change of name or address and promptly notify the court or probation officer of any change in employment or occupation

d. Report in person to a probation officer within 2 working days of your completion of your conditional sentence and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision

e. Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request

f. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with G.D. or any member of his immediate family

g. Do not be within 50 metres of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know the person to be EXCEPT for required court attendances

h. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer

i. You shall sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed

j. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed

[86] Even though not requested, it is the view of this court that a mandatory s. 109 order applies in this case. This is an indictable offence involving the sexual exploitation of a child who lived with P.S. at the time of the offence. As previously stated, sexual abuse of a child is a crime of violence. Therefore, P.S. will be subject to a weapons prohibition for a period of 10 years.

[87] With respect to a DNA order, this order is mandatory on the charge of sexual exploitation, and therefore, P.S. is ordered to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.

[88] With respect to SOIRA, P.S. will be required to participate for a period of 20 years.

[89] This sentence is not meant to be a lenient sentence. The terms and conditions imposed will not be easy, but will allow the opportunity for P.S. to have his medical needs addressed.

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.

Released: July 26, 2021