COURT FILE NO.: CR-18-4319

DELIVERED ORALLY AND MADE AN EXHIBIT DATE: January 28, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANIEL V. EICHNER

Nicole M. Lamphier, for the Crown

Patrick J. Ducharme, for the Defence

HEARD: October 13, 2020

REASONS FOR SENTENCE

Howard J.

Overview

[1] The offender, Daniel Volkan Eichner, was charged in a three-count indictment with various sexual offences, all involving the same under-age complainant, a female person, who is shielded from identification in this proceeding; hence, I refer to her as “the complainant” or “the victim” or by the initials “J.M.D.”

[2] At the time of the offences, Mr. Eichner was the owner of a pizzeria offering take-out and delivery, located in a small strip mall in the east end of Windsor.

[3] The victim first met Mr. Eichner at the pizzeria one day in September 2017 when she dropped by the pizzeria with a friend. As of September 2017, the victim had just entered Grade 9 at St. Joseph’s Catholic High School, which is located a few blocks away from the pizzeria. The victim was 13 years of age when she started Grade 9 in September 2017.

[4] The offences in question involved three incidents that arose out of the interactions that occurred between the victim and Mr. Eichner at the pizzeria. It is common ground that the victim and Mr. Eichner were never in a “boyfriend-girlfriend” relationship. Indeed, at the material times, Mr. Eichner was more than twice the age of the victim.

[5] Mr. Eichner did not dispute that the sexual touchings in question actually took place. Rather, the position of Mr. Eichner at trial was, in essence, that he believed the complainant was consenting to the sex acts and, further, that he honestly believed that the complainant was of sufficient age such that she had the capacity to consent. In short, Mr. Eichner maintained that he had an honest but mistaken belief as to the age of the complainant. Thus, Mr. Eichner pled not guilty to all three counts.

[6] On July 30, 2020, following a three-day trial held without a jury, during which I heard evidence from four witnesses, including the victim and Mr. Eichner, I found Mr. Eichner guilty of all charges against him.[^1]

[7] In particular, I found Mr. Eichner guilty of:

a. committing the offence of sexual interference upon the under-aged complainant, J.M.D., contrary to s. 151 of the Criminal Code,[^2] as charged in count 1 of the indictment;

b. committing the offence of invitation to sexual touching upon the said J.M.D., contrary to s. 152 of the Code, as charged in count 2 of the indictment; and

c. committing the offence of invitation to sexual touching upon the said J.M.D., contrary to s. 152 of the Code, as charged in count 3 of the indictment.

[8] Mr. Eichner is now before me for sentencing, the sentencing hearing having been held on October 13, 2020.

Factual Background

Circumstances of the Offence

[9] The victim knew of Mr. Eichner because her older brother was working for him at the pizzeria. Although the victim first started visiting Mr. Eichner’s pizzeria accompanied by one or more of her girlfriends, at some point, she started to drop by the pizzeria by herself, and she would either visit with her brother if he was working or chat with Mr. Eichner.

[10] In describing her relationship with Mr. Eichner, the victim said she believed they were friends.

[11] It is common ground that there were three sexual encounters between J.M.D. and Mr. Eichner. The parties are essentially agreed as to the details of the three sexual encounters.

[12] The first encounter happened in late November or early December 2017. The victim cannot recall the exact date, but she is certain that it was before her birthday in mid-December.

[13] The encounter happened after school one day, when the victim had left her home and was on her way to meet up with her girlfriends, and she stopped by the pizzeria to say hello to Mr. Eichner. Mr. Eichner was there alone, and the two of them got to chatting.

[14] At some point, Mr. Eichner said to the victim that, “I think you owe me something.” He continued and said words to the effect, “you owe me a kiss.” The victim did not move to kiss him, but Mr. Eichner continued on with words suggesting or asking that the victim should give him a hug at least. The victim replied, “okay,” and she then moved around the front counter and gave him a quick hug.

[15] Mr. Eichner then asked for a longer hug, and the victim complied with a longer hug. As the two were hugging, Mr. Eichner reached his hands down and grabbed the victim’s buttocks. Mr. Eichner then asked again for a kiss, and the victim gave him a quick peck on the lips. Mr. Eichner asked for a longer kiss, and the victim replied, “okay.”

[16] Mr. Eichner then suggested that they “go back there” – by which he meant the space at the very back of the pizzeria behind the large table where the pizzas were made. The victim replied, “okay,” and they both moved to the space at the very back of the shop.

[17] As the two were standing in the back of the shop, they began to kiss, which progressed to some open-mouth kissing. Mr. Eichner told the victim that he was getting “turned on” and that his penis was “hard.” Mr. Eichner then asked J.M.D. if she wanted “to touch it,” and the victim said, “okay.” She then touched his penis area over his clothes.

[18] Mr. Eichner then told the victim that he wanted to have sex with her. The victim explained that she did not know what to say and that she “felt on the spot.” But the victim replied, “okay.”

[19] Mr. Eichner then asked the victim if he should lock the front door, and she replied, “yeah.” Mr. Eichner asked the victim if he should get a condom, and she replied, “yeah.” Mr. Eichner then left the victim and went to the front of the store. When he returned, he told the victim to turn around, which she did. He then asked J.M.D. if she wanted him to pull her pants down or did she want to do it, and she replied that she would do it herself. The victim pulled down her pants and underwear but not completely off.

[20] As the victim was leaning over the metal table, Mr. Eichner was behind her. Mr. Eichner then had vaginal intercourse with the victim. The evidence of the victim was that the intercourse lasted five minutes “maximum.” The victim did not speak during the intercourse.

[21] The evidence of the victim was that she remained at the pizzeria with Mr. Eichner perhaps 15 or 20 minutes after the fact. The victim then left the pizzeria and walked home. The victim could not recall whether Mr. Eichner told her that very same evening, but at some point he told her, “not to tell anyone” about what had happened.

[22] Her evidence was that she felt “kinda used” after the incident. She said that she did not know how to really feel; but she felt “used” because “I knew I was nothing to him” and “it didn’t mean anything to him.” The victim said that she did not discuss these feelings with Mr. Eichner. The victim testified that after this first encounter, she did not return to the pizzeria for a few days. Her evidence was that she “did not want to go there because I felt used.”

[23] The two other sexual encounters occurred sometime after the first episode. While J.M.D. was not sure of the exact date that either of the subsequent two events occurred, her evidence was that both episodes occurred sometime after Christmas 2017 or perhaps early January 2018.

[24] The victim gave evidence about an incident that happened around 9:00 p.m. one night when J.M.D. and her girlfriend were walking home. The victim recalled that she had a head cold at the time. As the girls passed by the pizzeria, they decided to stop in and say hello. When they got inside, they encountered Mr. Eichner and his friend Tyler in the process of closing for the night.

[25] However, shortly after the girls entered the pizzeria, both the girlfriend and Tyler left. Mr. Eichner continued to close up the shop, pulling closed the curtains on the front window, and turning off the lights. Mr. Eichner then turned to the victim and asked for a hug goodnight. The victim said, “okay,” and the two then hugged. However, as they were hugging, Mr. Eichner then said something to the effect that he was becoming aroused and/or that his penis was hard, and he then asked the victim if she wanted to touch it.

[26] The victim then touched the area of Mr. Eichner’s penis over his pants and held his penis for about two minutes, she estimated. However, she started to get uncomfortable and was finding it increasingly awkward, so she stopped and pulled away. Mr. Eichner responded that he had to finish closing up, and the victim replied, “okay.” With that, they both exited the premises and went their separate ways. Mr. Eichner got into his car, and the victim walked home.

[27] The third incident happened one night in January 2018. The victim had made plans with her girlfriend to meet at a Tim Hortons nearby the pizzeria. As J.M.D. walked by the pizzeria, she stopped in quickly to say hello to Mr. Eichner but told him that she could not stay, as her friend was waiting for her at the Tim Hortons.

[28] Mr. Eichner replied that he had to drive by the Tim Hortons anyways to deliver a pizza, so he could drop her off. They both got into his car, and he pulled the car out to the plaza exit and was then waiting for the traffic to clear so that he could turn on to Tecumseh Road East. As they were stopped at the plaza exit to Tecumseh Road, Mr. Eichner said to the victim that she should give him a kiss. The victim testified that she paused because she did not know what to say at first, but then replied, “okay,” and she gave him a quick peck on the lips.

[29] Once again, Mr. Eichner said something to the effect that he was becoming aroused, and he then asked the victim to touch his penis. The victim testified that she did not reply at first and just continued to look out the car window. However, the victim then did touch his penis, again over his pants.

[30] Mr. Eichner then said that he was going to “take it out of my pants,” and with that he lifted his hips and pulled down his pants just enough to expose his penis and testicles. The victim then touched his penis, i.e., with skin on skin contact.

[31] Mr. Eichner said that he wished the victim would put her mouth on it. With that, the victim responded with a firm “no,” removed her hand, and pulled away. Mr. Eichner then pulled up his pants to cover himself and told the victim that he was going to drop her off now because he had to deliver the pizza. He dropped the victim off at the Tim Hortons, she got out of his vehicle, and again they went their separate ways.

[32] For the purposes of sentencing, it should be said that, while there certainly was a significant age difference, Mr. Eichner did not stand in a position of trust or authority towards J.M.D. To be clear, the Crown did not contend otherwise, and the evidence at trial does not support such a finding.

Circumstances of the Offender

[33] A pre-sentence report was prepared on October 7, 2020, and marked as Exhibit No. 1 on the sentencing hearing. There was no objection to the facts asserted, but Mr. Ducharme did expand on some of areas covered.

[34] Mr. Eichner was born on July 11, 1988, and, as such, was 29 years old at the time of the offences in question and 31 years old at the time of trial. At the time that he first met the victim in September 2017, there was a 16-year age difference between them, the victim being only 13 years of age at that time.

[35] Mr. Eichner has never been married. He reported that he has had four significant dating relationships, varying in duration from two to four years. One of his previous relationships, which lasted some three years, resulted in Mr. Eichner’s only child, a daughter, who was born from this union in 2008, and who is now presumably about twelve years of age, and with whom he has supervised access three times per month.[^3]

[36] Mr. Eichner reported that he has been in a committed relationship for the past two years with his current partner, and he described that relationship as “loving and supportive.” Attempts by the Probation/Parole Officer who authored the pre-sentence report to contact Mr. Eichner’s current partner were unsuccessful. However, his current partner delivered a reference letter, contained within the Character Reference Letter Brief, which was filed as exhibit no. 2 on the sentencing hearing, in which she describes Mr. Eichner as “trustworthy, compassionate, and genuine” and said that she was “proud of [him] for trying … for placing one foot in front of the other.”[^4]

[37] As reflected in the pre-sentence report, Mr. Eichner experienced a fairly traumatic and challenging upbringing. He is the youngest of two children born to parents in Germany. Mr. Eichner reported that, as a young child, he witnessed the physical abuse of his mother at the hands of his own father. When he was about six years of age, he and his mother immigrated to Ohio, U.S.A., before permanently locating in Windsor, Ontario, some two years later.

[38] Mr. Eichner recounted that while residing in Windsor as a young boy, he was a witness to further domestic violence against his mother by her then partner. The information from Mr. Ducharme is that when Mr. Eichner was only 11 years of age, he witnessed a domestic assault against his mother by her partner, and that during the assault the young Daniel ran to the neighbourhood corner store to contact the police and report the incident, as a result of which the mother’s partner pled guilty to assault causing bodily harm and went to jail. Mr. Eichner’s mother expressed in her reference letter that she believes she owes her life to her son and his actions that day.[^5]

[39] It is plain that Mr. Eichner had a troubled time in his public-school education. When he and his mother settled in Windsor, he was placed directly in Grade 3, without the benefit of the early education that a young child would receive in kindergarten, Grade 1, and Grade 2. The pre-sentence report indicates that Mr. Eichner “consistently struggles academically due to language and comprehension barriers.”[^6]

[40] Mr. Ducharme explained that the young Daniel was then about two years older than his classmates and, at that point, spoke more German than he did English. Because of his language difficulties, Daniel was not successful in his Grade 3 year and had to repeat that year. Mr. Ducharme advised that young Daniel’s Grade 3 teacher announced to him, and apparently the rest of his classmates, that he had a “learning disability.” When Daniel was made to repeat his Grade 3 year, he was returned to that same teacher’s classroom, who continued to believe that he had a learning disability.

[41] The pre-sentence report further indicates that Mr. Eichner was suspended in elementary school for fighting and had issues with absenteeism in secondary school.[^7]

[42] Mr. Ducharme advised that Mr. Eichner dropped out of high school in Grade 11.

[43] It would appear that Mr. Eichner has had greater success in his employment endeavours. Mr. Eichner advised that he had been employed in the service industry for the past 15 years. The pre-sentence report indicates he has maintained gainful employment and has a “strong work ethic.”^8

[44] That is consistent with the evidence I heard a trial, where I noted that the evidence of Mr. Eichner was that he basically worked every day on the premises of the pizzeria with only “the odd day off.” He acquired the business in or about August 2017, that is, just a few months before the incidents in question occurred.[^9]

[45] That said, Mr. Ducharme submitted that, because of the media reports concerning the charges against Mr. Eichner, his landlord became aware of the situation and, apparently believing that Mr. Eichner was in a relative position of economic vulnerability, offered to purchase Mr. Eichner’s pizzeria business for what Mr. Eichner believes was less than ten percent of its actual value. To be clear, there was no business valuation evidence before me. In any event, Mr. Ducharme submitted that when Mr. Eichner rejected his landlord’s offer to purchase his business, the landlord then cancelled his long-term lease and locked him out of the premises.

[46] The pre-sentence report indicates there are no reported concerns with substance abuse.[^10]

[47] As reflected in the pre-sentence report, it is the assessment of the Probation/Parole Officer who authored the report that Mr. Eichner stated that “he only accepts responsibility for his actions with respect to his ‘lack of effort to discover her (the victim’s) age’. The Offender denied all other aspects of the matters before the Court and expressed his plan to appeal any unfavourable disposition.”[^11]

[48] The author of the pre-sentence report went on to say that, in his assessment, “[Mr. Eichner] presented himself as a victim of circumstances and described much of his current involvement is due to the victim. He added he believes the victim ‘twisted things’ and ‘created lies.’ The Offender expressed remorse in regard to the effect this had on his life however shared little insight in [regard] to the effect on the victim.”[^12]

[49] Mr. Eichner was provided with an opportunity to make a statement to the court to speak to the question of sentence, as contemplated by s. 726 of the Code. In his allocution statement to the court, Mr. Eichner apologized to the court and said that this has had “a huge impact on my life.” He said he wishes he had been more aware and knowing. He said he was “sorry for everyone involved.”

[50] Mr. Eichner has a criminal record. In October 2008, he was convicted of four charges of common assault, contrary to s. 266 of the Criminal Code, and I am advised that one of those four charges involved an offence of domestic violence. Mr. Eichner was sentenced to, inter alia, 20 days’ imprisonment,[^13] plus two years’ probation.

[51] In January 2011, Mr. Eichner was fined $400 for failure to comply with his recognizance.

[52] In January 2011, Mr. Eichner was convicted of a further charge of assault, contrary to s. 266 of the Code, for which he received, inter alia, an intermittent sentence of 90 days (with 8 days of presentence custody), and 18 months of probation. As part of the same disposition that day, he was convicted of dangerous operation of a motor vehicle, contrary to s. 291(1)(a) of the Code.

[53] On June 15, 2018, Mr. Eichner, while on release in respect of the instant charges before the court, was convicted of failure to comply with recognizance, contrary to s. 145(3) of the Code, and was sentenced to payment of a $500 fine and one year’s probation.

[54] Mr. Ducharme makes the point that, with respect to all previous offences for which Mr. Eichner was convicted, he pleaded guilty to all such charges. Mr. Ducharme observes that the instant charges before the court are the only offences that Mr. Eichner has ever contested by way of a not guilty plea.

Impact on the Victim

[55] Subsection 722(1) of the Code directs a court to consider any statement of a victim prepared in accordance with that section.

[56] I am advised by Crown counsel that the Crown did invite the victim J.M.D. to provide a victim impact statement if she wished. However, apparently no response was received from her or the family. Ms. Lamphier said she was at a loss to explain the non-response given that the family appeared to be significantly involved in the proceeding – the victim’s brother testified at trial, and the mother attended in person every day of the trial – and the family was connected with the Victim/Witness Assistant Program.

[57] That said, even in the absence of a victim impact statement, I have the evidence of the victim at trial that after the first incident involving the vaginal intercourse at the pizzeria, she felt “used” because she “knew [she] was nothing to him” and “it didn’t mean anything to him.” I also have the evidence of the victim and her older brother as to the aftermath of the disclosure of the incidents and the turmoil it caused within the family.

Legal Parameters

[58] At the time of the offence, the provisions of s. 151(a) of the Code relevant to count 1 in the indictment provide that everyone who commits the offence of sexual interference upon an under-aged complainant is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum of one year.

[59] At the time of the offences, the provisions of s. 152(a) of the Code relevant to counts 2 and 3 in the indictment provide that everyone who commits the offence of invitation to sexual touching is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum of one year.

Positions of Crown and Defence

[60] I have carefully considered the submissions of counsel for both parties. Ms. Lamphier submitted on behalf of the Crown that an appropriate global sentence in the circumstances of the instant case would be imprisonment for a term of five to six years in respect of the three offences.

[61] Mr. Ducharme submitted on behalf of Mr. Eichner that, given the difficult upbringing Mr. Eichner had, this court should consider a global sentence of 12 months in custody, followed by 2 years’ probation upon completion of the custodial sentence.

[62] I have considered the submissions of counsel for both the Crown and the defence, as well as the cases relied upon by both counsel, and their submissions on each other’s authorities.

Analysis

Principles of Sentencing

[63] The Supreme Court of Canada has said that the sentencing of an offender is “one of the most delicate stages of the criminal justice process in Canada.”[^14] It requires “the exercise of a broad discretion by the courts in balancing all the relevant factors in order to meet the objectives being pursued in sentencing.”^15

[64] The notion of proportionality is the fundamental principle in sentencing, and that important principle is enshrined in s. 718.1 of the Criminal Code, which provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[65] In its seminal decision in R. v. Lacasse, the Supreme Court of Canada described proportionality as “the cardinal principle” that must guide sentencing courts in considering the fitness of a sentence imposed on an offender. As the Supreme Court explained, “[t]he more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender.”[^16]

[66] In Lacasse, the Supreme Court observed that determining “a proportionate sentence is a delicate task.”^17 Indeed, the Court described how an unfit sentence can undermine public confidence in the administration of justice:

The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.[^18]

[67] Section 718 of the Code sets out certain objectives of sentencing and provides that:

The fundamental purpose of sentencing is to protect society and 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 that have one or more of the following objectives:

(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 acknowledgment of the harm done to victims or to the community.

[68] Section 718.01 of the Code mandates that the primary objectives for offences against children must be denunciation and deterrence, as follows:

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.

[69] Section 718.2 of the Code sets out other sentencing considerations, including the following:

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, …

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

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

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[70] The Supreme Court has also repeatedly recognized that sentencing is an “inherently individualized process.”[^19] In R. v. Nasogaluak, the Supreme Court described this individualized process in the following terms:

The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case.… No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.[^20]

[71] My task is to impose a sentence that is appropriate for Mr. Eichner “based on the particular facts of the offence and of the offender within the applicable principles of law.”[^21]

Mitigating Factors

[72] I consider the following mitigating factors.

Personal circumstances

[73] As I have reviewed above, the pre-sentence report indicates that Mr. Eichner experienced a fairly traumatic and challenging upbringing. Among other things he was a witness to and involved in repeated instances of domestic violence against his mother.

[74] As well, there is no doubt Mr. Eichner had to contend with early struggles in his primary school education, particularly when he and his mother first came to Canada. The pre-sentence report indicates that Mr. Eichner “consistently struggled academically due to language and comprehension barriers.”[^22]

Support of the community

[75] It appears that Mr. Eichner has certain support in the community, and that is a mitigating factor. In this regard, I have had the benefit of reviewing and considering five different letters of support from Mr. Eichner’s family and friends, being his mother, his stepfather, his brother, his current partner, and his friend. Many of these letters of support describe Mr. Eichner as a hard-working man and a person whom the authors believe to be a good man. Many of the letters express their surprise upon learning of the charges against Mr. Eichner, as that was not the man they knew.

Considerations of remorse

[76] As I have noted, the author of the pre-sentence report indicated that Mr. Eichner accepts responsibility for his actions only to the extent of his lack of efforts to discover the victim’s age. The report stated that Mr. Eichner “presented himself as a victim of circumstances and described much of his current involvement is due to the victim. … The Offender expressed remorse in regard to the effect this had on his life however shared little insight in [regard] to the effect on the victim.”[^23]

[77] In my view, based on the pre-sentence report, I would conclude that Mr. Eichner’s level of insight into his behaviour and how it impacted J.M.D. is essentially nonexistent.

[78] In his allocution statement, Mr. Eichner said he was “sorry for everyone involved” but he spoke mostly of the “huge impact” on his own life. There was no direct mention of the complainant. In the circumstances, I agree with the submission of Ms. Lamphier that Mr. Eichner has not truly expressed responsibility for his actions or demonstrated insight into the gravity of his conduct and its impact on the complainant. Indeed, he has engaged in victim-blaming to a degree. On balance, I find that Mr. Eichner has not exhibited any real remorse for his conduct and the impact it has had on the victim.

[79] That said, while an offender’s expression of remorse is a mitigating factor,[^24] the failure to express remorse is not an aggravating factor,[^25] and it will not be used as an aggravating factor. The failure of Mr. Eichner to express any real remorse is simply a neutral factor.

Victim participation

[80] In a somewhat similar vein as I have noted that the failure of the offender to express remorse is not an aggravating factor, I would also note that any participation of the complainant in the offences in question is not a mitigating factor.

[81] In this regard, the Supreme Court of Canada has said that:

Parliament has determined that the age of consent to sexual activity in Canada is 16 … .Subject to the close in age exceptions in ss. 150.1(2.1), (2.2) and (2.3) of the Criminal Code, children under the age of 16 are thus “incapable of giving true consent to sexual acts with adults … .” Accordingly, courts should avoid language such as “de facto consent” which analogizes a child’s participation to consent.

Despite this, courts have at times invoked the “de facto consent” of a child whom Parliament has determined to be legally incapable of consenting as a mitigating factor in sentencing. Like many provincial appellate courts, we agree that it is an error of law to treat “de facto consent” as a mitigating factor … . To treat a victim’s participation as a mitigating factor would be to circumvent the will of Parliament through the sentencing process … . It would undermine the wrongfulness of sexual violence against a child, who is under the legal age of consent, to “tel[l] the offender that, although he is technically guilty ..., he really isn’t at fault or responsible,” and that the victim is really to blame for his behaviour … .

Some courts have, while acknowledging that a victim’s participation is not a mitigating factor, nevertheless treated it as relevant to determining a fit sentence … . This is an error of law: this factor is not a legally relevant consideration at sentencing. The participation of a victim may coincide with the absence of certain aggravating factors, such as additional violence or unconsciousness. To be clear, the absence of an aggravating factor is not a mitigating factor.[^26]

[82] I emphasize this point in order to address some of the observations made of the offender in the pre-sentence report and some of the statements made in the various character reference letters submitted on behalf of the offender, which, taken collectively, appear to suggest that J.M.D., then 13 years of age, was somehow responsible for the assaults in question or that because she appeared to willingly participate in the assaults in question, this should be a mitigating factor in favour of Mr. Eichner when it comes to sentence. Those suggestions are flawed in law. They amount to simple victim-blaming. Mr. Eichner was the adult here.

[83] To be clear, to the extent that it may appear that the victim here participated in the unlawful activity, that is not a mitigating factor that stands to the credit of Mr. Eichner. Again, Mr. Eichner was the adult here. As the Supreme Court has said, “a victim’s participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity between children and adults.”[^27]

[84] The courts have recognized that where a child appears to acquiesce or even seek out the sexual attention of an adult, it is the legal responsibility of the adult to protect the child. Adults who see these situations as opportunities to satisfy their own sexual urges are no better or worse than those who take steps to actively seek out under-age child victims.[^28]

Aggravating Factors

[85] There are certain aggravating factors present in the instant case, and I have considered the following.

Abuse of a young person

[86] Clause 718.2(a)(ii.1) of the Code requires the court to take into consideration as a statutory aggravating factor “evidence that the offender, in committing the offence, abused a person under the age of eighteen years.” Parliament has recognized the profound harm that sexual offences against children cause.[^29] While sexual violence against either a child or an adult is serious, Parliament has determined that sexual violence against children should be punished more severely.[^30]

Profound age difference

[87] In R. v. Friesen, a unanimous Supreme Court of Canada held that the age of the victim is a “significant aggravating factor.”[^31] The court held that:

[C]ourts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence … . In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy … . [^32]

[88] Here, there is a profound age difference between the victim and the offender. Again, at the time of the sexual intercourse, J.M.D. was still 13 years of age, and Mr. Eichner was 29 years old. Mr. Eichner was more than twice the age of the victim. In my view, this is a significant aggravating circumstance.

Repeated offences

[89] This is not a case where there was a single instance of inappropriate touching. Rather, in the instant case, Mr. Eichner engaged in wrongful sexual activity with an underage complainant on three separate occasions. The first occasion occurred sometime before the victim’s birthday in mid-December 2017. While the exact dates are not clear, the other two incidents happened a few weeks after the first incident, sometime after Christmas 2017 or perhaps early January 2018.

[90] I agree with the observation of Ms. Lamphier for the Crown that the time interval between the first incident and the subsequent offences, which would appear to have been at least three weeks if not more, certainly presented Mr. Eichner with the opportunity to reflect upon the appropriateness of his conduct, had he been minded to do so.

Degree of violation of bodily integrity

[91] The first offence involved Mr. Eichner having vaginal intercourse with a 13-year-old girl. That involves a very high degree of violation of bodily integrity, especially for a young girl of only 13 years.

[92] Mr. Ducharme quite properly acknowledges that every sexual assault is an act of violence. The Supreme Court of Canada has said that “violence is always inherent in the act of applying force of a sexual nature to a child.”[^33] Mr. Ducharme submits that, thankfully, the offences here were not accompanied by other acts of physical aggression and savage violence that, unfortunately, so often mark cases of sexual assault. I agree with Mr. Ducharme’s observation and his further submission that the evidence here indicates that the two parties thought of each other as friends and that the complainant testified that, during the incidents, Mr. Eichner repeatedly asked her if she wished to proceed and was respectful of her wishes.

[93] That said, I also agree with the submissions of Ms. Lamphier that the absence of coincident acts of violence does not serve as a mitigating factor. The Supreme Court of Canada has said that:

[A]ny physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury. Courts must always give effect to this inherent violence since it forms an integral component of the normative character of the offender’s conduct.^34

Criminal record

[94] In considering an appropriate sentence for Mr. Eichner, I note that he comes before this court with a criminal record already and that one of his four convictions for assault in October 2008 involved circumstances of domestic violence.

[95] Further, Mr. Eichner has served custodial sentences on more that one occasion. However, it appears that the length of the previous terms of imprisonment that he previously served, including imprisonment for 90 days, did not result in any meaningful specific deterrence effect on him.

[96] Moreover, Mr. Eichner has three previous convictions for failure to comply with terms of release. The most recent conviction was in June 2018 for failure to comply with his recognizance while on release for the instant charges before this court. I highlight this because it is a factor I have considered in rejecting Mr. Ducharme’s proposed reformatory term plus probation, given the offender’s demonstrated lack of compliance with court orders.

Appropriate Sentence

[97] In considering an appropriate sentence for Mr. Eichner, my starting point is the unanimous decision of the Supreme Court of Canada in R. v. Friesen, where the court sought to give a reminding direction to sentencing judges “about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.”[^35]

[98] In Friesen, the Supreme Court began its analysis by observing that:

Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year.^36

[99] Writing for the unanimous court, Wager C.J. and Rowe J. then conveyed a strong message to sentencing judges in cases involving sexual offences against children, in the following terms:

[W]e 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.[^37]

[100] In Friesen, the court reviewed the legislative history of the provisions of the Code dealing with sentences for sexual offences against children. The court noted that:

Parliament has recognized the profound harm that sexual offences against children cause and has determined that sentences for such offences should increase to match Parliament’s view of their gravity. Parliament has expressed its will by increasing maximum sentences and by prioritizing denunciation and deterrence in sentencing for sexual offences against children.[^38]

[101] The court then reviewed several specific legislative amendments to the Code, which repeatedly increased sentences for sexual offences against children. The court noted the relevant legislative history in the following terms:

Parliament has repeatedly increased sentences for sexual offences against children. These increases began in 1987 with Bill C-15. By abolishing the historic offences of indecent assault on a female and acts of gross indecency and creating the sexual interference offence, Parliament effectively doubled the maximum sentence from five to ten years for sexual offences against children that did not involve vaginal or anal penetration…. Parliament has repeatedly signalled society’s increasing recognition of the gravity of sexual offences against children in the years that followed. In 2005, Parliament tripled the maximum sentences for sexual interference, invitation to sexual touching, and sexual exploitation in cases in which the Crown proceeds summarily from six months to 18 months by enacting Bill C-2, An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, S.C. 2005, c. 32. Finally, in 2015, Parliament enacted the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23. This statute increased the maximum sentences of these three offences and sexual assault where the victim is under the age of 16 from 10 to 14 years when prosecuted by indictment and from 18 months to 2 years less a day when prosecuted by way of summary conviction (ss. 2-4). This statute also increased the maximum sentences for numerous other sexual offences against children … .[^39]

[102] The court then observed that:

These successive increases in maximum sentences indicate Parliament’s determination that sexual offences against children are to be treated as more grave than they had been in the past. …

To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. … Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.[^40]

[103] The court concluded on the point by expressing its determination “to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives” and by providing specific guidance to sentencing judges, in the following terms:

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.[^41]

[104] In speaking of the need for an upward departure from prior precedents and sentencing ranges, the unanimous Supreme Court in Friesen sought to send a strong message to sentencing judges. As the court itself said:

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 … . In addition, … maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” … . Instead, a maximum sentence should be imposed whenever the circumstances warrant it … .[^42]

[105] However, in argument before me, it was submitted that the guidance provided by the unanimous Supreme Court in Friesen does not apply to Mr. Eichner’s circumstances because the offences here took place over the period of December 2017 to January 2018, well before the Friesen decision was released in April 2020.

[106] Respectfully, I must reject that submission. As reviewed above, the specific pieces of legislation that were examined by the court in Friesen, in respect of which the court observed that “Parliament has repeatedly increased sentences for sexual offences against children,” were enacted over the period from 1987 to 2015. All of those enactments were in place at the time of the offences in question. In particular, those enactments, providing for increased sentences for sexual offences against children, were in place when Mr. Eichner committed the offences in question here.

[107] As such, in my view, this is not a situation that engages consideration of the principles examined by the Supreme Court of Canada in R. v. Poulin,[^43] which inform the proper interpretation of s. 11(i) of the Canadian Charter of Rights and Freedom,[^44] and entitle an offender to the lesser of the punishment under the laws in force when the offender committed the offence and punishment under the laws in force when the offender is sentenced.

[108] In this case, the sentencing provisions in force at the time Mr. Eichner committed the offences in question are the same ones in force at the time of sentencing. In a sense, all that happened in Friesen is that the Supreme Court provided guidance to sentencing judges as to how to properly interpret legislation that has been in place since 2015 in order “to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives.” In the circumstances, it is not open to me to simply ignore the specific guidance from the Supreme Court as to how those provisions are to be applied.

[109] Turning to the appropriate sentence for the sexual interference conviction, Ms. Lamphier for the Crown submitted, relying on a number of appellate authorities, that in cases of sexual intercourse with a willing complainant who is legally incapable of providing consent, the normal sentencing range begins at three years. Ms. Lamphier submits that, in all the circumstances of the instant case, the appropriate sentence for Mr. Eichner is imprisonment for a term of five to six years.

[110] In R. v. A.B., the Newfoundland Court of Appeal allowed the Crown’s appeal from a sentence of 12 months’ imprisonment less a day for sexual assault, where the male complainant, who was 12 years of age, and the female offender, who was 23 years of age, were neighbours, and the complainant believed that they were in a romantic relationship. The trial judge found that the offender had sexual intercourse with the complainant on two occasions and had fondled his private parts, both outside and inside of his clothing, on two occasions. In allowing the Crown’s appeal and finding that an appropriate sentence for sexual assault in that case would be three years’ imprisonment, the Court of Appeal held that, “a term of imprisonment of three years is at the low end of the range in sentencing an adult offender for sexual assault involving intercourse where the complainant is below the age of consent.”[^45]

[111] In R. v. Revet, a 39-year-old accused pleaded guilty to sexual assault for having had sexual intercourse two times with a 14-year-old complainant, who, it was found, was a willing participant in the acts. In upholding his sentence of three years’ imprisonment, the Saskatchewan Court of Appeal held that:

This Court has repeatedly held that in major sexual assaults involving adult offenders and victims, three years would be considered a starting point from which a sentencing judge should start, increasing or decreasing the term according to the aggravating and mitigating factors … .

There is no reason why the same starting point should not be used in a case such as this. Sexual assaults upon children are at least as high in terms of gravity, if not higher, than sexual assaults upon adult persons.[^46]

[112] I note that the decision in R. v. Revet, released in 2010, was decided before the amendments effected to the Code by the Tougher Penalties for Child Predators Act in 2015, as reviewed in Friesen.

[113] In R. v. Woodward, the Ontario Court of Appeal upheld a five-year sentence imposed on a 30-year-old male who had lured a 12-year-old female over the internet to meet him and, over time, groomed her to trust him and then engaged in sexual intercourse with her. Moldaver J.A. (as he then was) held that:

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 [for fraud, theft and possession of stolen property over the previous 15 years] 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.[^47]

[114] Again, I note that the decision in R. v. Woodward, released in September 2011, was rendered before the 2015 legislative amendments to the Code.

[115] In a similar vein, in its 2012 decision in R. v. Mullings, our Court of Appeal held that:

A review of the recent jurisprudence of this court persuades us that at least the upper end of the range for this type of offence (a single act of sexual intercourse with a girl of 13 years of age by a person in a position of trust with devastating consequences) is more than 5 years.[^48]

[116] In contrast to this line of authorities, Mr. Ducharme seeks a custodial sentence for Mr. Eichner of 12 months, followed by 2 years’ probation.

[117] Mr. Ducharme acknowledges that the primary objectives here are denunciation and deterrence. Respectfully, I am of the view that the proposed reformatory sentence simply would give insufficient weight to the primary considerations of denunciation and deterrence on the facts of this case.

[118] Further, in my view, the cases relied upon by the defence are distinguishable from the circumstances of the instant case. In R. v. Hussein,[^49] where Code J. imposed a sentence of 15 months’ imprisonment, followed by 2 years of probation, for sexual interference, the offences all related to a single incident that occurred during a short time period on one day. There was no ongoing course of conduct or any repetition of the offence. The accused was a first offender who had led an otherwise law-abiding and pro-social life. As well, Code J. was of the view that an important aspect of that case was the fact that the accused and the complainant saw themselves as being in some kind of a romantic relationship. None of those features is present here.

[119] In R. v. D. (J.),[^50] Fairburn J. (as she then was) also imposed a sentence of 15 months’ imprisonment and 2 years’ probation. Significantly, the offender had pled guilty. He had no prior record. He had struggled with various mental health issues throughout his life, suffering from both depression and anxiety. And the accused was remorseful. Again, none of those powerful mitigating factors is present here.

[120] In R. v. K.S.,[^51] the offender had no criminal record and had been compliant with his bail conditions. His pre-sentence report was positive, and he expressed remorse and accepted full responsibility for what was done. Moreover, the offence was “an isolated incident, and out of character” for the offender. There was no ongoing conduct or any repetition of the offence or any attempt to communicate with the complainant.

[121] In R. v. Krishnanada,[^52] a decision of the Ontario Court of Justice where the Crown elected to proceed by summary conviction, the offender pled guilty, had no criminal record, demonstrated genuine remorse, and accepted full responsibility for his actions.

[122] While a sentencing judge must respect the parity principle embodied in s. 718.2(b) of the Code and acknowledge that similar cases decided by other courts are useful for certain purposes, one must also recognize that because of the inherently individualized process of sentencing, the decisions in other cases turn on their own particular circumstances.

[123] An appropriate sentence for Mr. Eichner must reflect the primary considerations of denunciation and deterrence. The appropriate sentence in this case is one that will serve as a specific deterrence for Mr. Eichner and a general deterrence for other adults who fail to take all reasonable steps to ascertain the complainant’s age when contemplating sexual activity with someone whom they believe may be an adolescent. As well, the appropriate sentence must reflect society’s revulsion and unequivocal disapproval of the offender’s conduct, which here involved multiple instances of sexual exploitation of a child.

[124] Consequently, despite the able submissions of Mr. Ducharme for the defence, I have come to the conclusion that, in all of the circumstances of this case, a just, fit, and proportionate sentence for Mr. Eichner is a term of imprisonment for four years and ten months.

Concurrent versus Consecutive Sentences

[125] It is well established that where there are multiple offences, a sentencing judge should impose sentence on a concurrent basis where “the acts constituting the offences were part of a linked series of acts within a single endeavour.”[^53] This is a factual assessment.

[126] That said, consecutive sentences may be imposed where the offences are temporally linked but constitute invasions of different legally protected interests.[^54]

[127] In the case at bar, I am satisfied that the sentences on the counts of invitation to sexual touching, contrary to s. 152 of the Code, should be served concurrently with the sentence on the count of sexual interference. In my view, in the circumstances of the instant case, while there were three incidents, it is clear that “the acts constituting the offences were part of a linked series of acts within a single endeavour.” The offences for sexual interference and invitation to sexual touching involved the same complainant, occurred during the same time period, spanning a relatively short period of a few weeks, and were part of the same linked series of acts within a single endeavour. There is an undeniable close and inextricable nexus between the offences on the facts of the instant case.

[128] Clearly, this is not a case like that in R. v. Smith, where there was a significant length of time between the offences committed, where the offences involved two different complainants, or where there was a lack of any other relevant nexus between the offences.[^55]

[129] I am satisfied that, having regard for the factual circumstances here, the wrongful acts of Mr. Eichner constituted, to use the phrase from Friesen, “a single criminal adventure.”[^56] For all of these reasons, I would impose the sentence on the two convictions for invitation to sexual touching concurrently with the sentence on the sexual interference conviction.

Ancillary Orders

[130] The Crown seeks a number of ancillary orders, none of which was expressly opposed by the defence.

[131] Apart from the fact that many of the orders sought are required, the only request that I believe requires additional comment is the orders sought under s. 161 of the Code. Section 161 requires the court to consider prohibiting the offender from attending various locations where persons under 16 years of age can reasonably be expected to be present, obtaining or continuing employment that involves being in a position of trust or authority towards a person under 16, having any contact or communicating with persons under 16, or using the internet.

[132] In R. v. Schulz, our Court of Appeal reviewed the jurisprudence on s. 161 orders and held that:

The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. J. (K.R.), 2016 SCC 31, [2016] 1 S.C.R. 906 (S.C.C.), at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender’s specific circumstances: J. (K.R.), at paras. 48-49.[^57]

[133] The Crown asked that I consider making prohibition orders under s. 161(1)(a) and (b) of the Code. However, the Crown did not specify the precise nature or terms of the s. 161 prohibition orders sought in this case. Moreover, in my view, there is no basis in the evidentiary record before me to justify the punishment of a s. 161 prohibition order. In particular, there is no evidence that Mr. Eichner poses a risk to children at large. Thus, while I have considered the Crown’s request, I decline to make the order.

Final Disposition

[134] Mr. Eichner, I impose the following sentence on you.

[135] With respect to your conviction on count 1 for committing the offence of sexual interference upon the under-aged complainant, J.M.D., contrary to s. 151 of the Code, I sentence you to a term of imprisonment for four years and ten months.[^58]

[136] With respect to your conviction on count 2 for committing the offence of invitation to sexual touching upon the said J.M.D., contrary to s. 152 of the Code, I sentence you to a term of imprisonment for two years, to be served concurrently with the sentence on count 1.

[137] With respect to your conviction on count 3 for committing the offence of invitation to sexual touching upon the said J.M.D., contrary to s. 152 of the Code, I sentence you to a term of imprisonment for two years to be served concurrently with your sentence on count 1.

[138] In addition, I make the following ancillary orders.

[139] As sexual interference and invitation to sexual touching are each a “primary designated offence” under s. 487.04 of the Code for the purposes of DNA collection and storage, the making of such a DNA order is mandatory. Accordingly, in respect of your conviction on count 1 for sexual interference, pursuant to s. 487.051(1) of the Code, I make an order in Form 5.03 authorizing the taking of the number of samples of your bodily substances that is reasonably required for the purposes of forensic DNA analysis. I make a similar order in respect of your conviction on each of counts 2 and 3 for invitation to sexual touching. I also make an order in Form 5.041 requiring you to attend forthwith to give such samples.

[140] Sexual interference and invitation to sexual touching are each a designated offence under s. 490.01(1)(a) of the Criminal Code for the purposes of the provisions dealing with sex offender information. Pursuant to ss. 490.012(1) and 490.013(2.1) of the Code, I make an order in Form 52 that your name be added to the Sex Offender Registry and that you comply with the provisions of the Sex Offender Information Registration Act[^59] for life.

[141] Pursuant to s. 743.21(1) of the Code, you are hereby prohibited from communicating, directly or indirectly, including any communication through electronic means or social media, with the victim J.M.D. or any member of her family during your time in custody. Failure to comply with this order is a crime in itself.

[142] Pursuant to s. 109(1)(a) of the Code, you are hereby prohibited from possessing any firearm or codified weapon or device for life, as weapon prohibitions under s. 110 have been previously made.

J. Paul R. Howard

Justice

Delivered Orally: January 28, 2021

COURT FILE NO.: CR-18-4319

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANIEL V. EICHNER

REASONS FOR SENTENCE

Howard J.

Delivered Orally: January 28, 2021

[^1]: R. v. Eichner, 2020 ONSC 4602 (S.C.J.) [Conviction Decision].

[^2]: Criminal Code, R.S.C. 1985, c. C-46 [Code].

[^3]: Pre-Sentence Report dated October 7, 2020, Exhibit No. 1, at p. 3.

[^4]: Character Reference Letter Brief, Exhibit No. 2, p. 11.

[^5]: Ibid., at p. 7: “I owing him my life.”

[^6]: Pre-Sentence Report, at p. 3.

[^7]: Ibid., at p. 4.

[^9]: Conviction Decision, at para. 17.

[^10]: Pre-Sentence Report, at p. 4.

[^11]: Ibid., at p. 4.

[^12]: Ibid., at p. 5.

[^13]: The record shows 14 days’ imprisonment, in addition to credit for three days of presentence custody, which, in 2008, would amount to 20 days.

[^14]: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450 [Lacasse], at para. 1.

[^16]: Ibid., at para. 12.

[^18]: Ibid., at paras. 3-4.

[^19]: R. v. M.(C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at p. 567.

[^20]: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, 251 C.C.C. (3d) 293, at para. 43, citing R. v. L. (T.P.), 1987 25 (SCC), [1987] 2 S.C.R. 309; R. v. M. (C.A.); and R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.).

[^21]: R. v. Johnson, 2016 ONSC 6656 (S.C.J.), at para. 18.

[^22]: Pre-Sentence Report, at p. 3.

[^23]: Ibid., at p. 5.

[^24]: R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, 391 C.C.C. (3d) 309, 444 D.L.R. (4th) 1 [Friesen], at para. 165, citing Lacasse, at paras. 77-78.

[^25]: R. v. Rockey, 2016 ONCA 891, 3 M.V.R. (7th) 1, at para. 31.

[^26]: Friesen, at paras. 148-150.

[^27]: Ibid., at para. 154.

[^28]: Ibid., at para. 154, quoting R. v. D. (J.), 2015 ONSC 5857, [2015] O.J. No. 4857 (S.C.J.), at para. 25 per Fairburn J. (as she then was).

[^29]: Friesen, at para. 95.

[^30]: Ibid., at para. 116.

[^31]: Ibid., at para. 134.

[^32]: Ibid., at para. 136. [Citations omitted.]

[^33]: Ibid., at para. 77.

[^35]: Ibid., at para. 1.

[^37]: Ibid., at para. 5.

[^38]: Ibid., at para. 95.

[^39]: Ibid., at para. 98.

[^40]: Ibid., at para. 99, quoting R. c. Rayo, 2018 QCCA 824 at para. 175 [translation] and citing R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, 276 C.C.C. (3d) 86, at para. 58.

[^41]: Ibid., at para. 107.

[^42]: Ibid., at para. 114. [Citations omitted. Emphasis added.]

[^43]: R. v. Poulin, 2019 SCC 47, [2019] S.C.J. No. 47, 379 C.C.C. (3d) 513.

[^44]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^45]: R. v. B. (A.), 2015 NLCA 19, 365 Nfld. & P.E.I.R. 160, at para. 26.

[^46]: R. v. Revet, 2010 SKCA 71, 350 Sask. R. 292, at paras. 24-26. [Citations omitted.] See also R. v. Norton, 2016 MBCA 79, 330 Man. R. (2d) 261, where the Manitoba Court of Appeal substituted a sentence of three years imprisonment.

[^47]: R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, 276 C.C.C. (3d) 86, cited with approval in Friesen, at paras. 113-114.

[^48]: R. v. Mullings, 2012 ONCA 911, [2012] O.J. No. 6087, at para. 1.

[^49]: R. v. Hussein, 2017 ONSC 4202, [2017] O.J. No. 3567 (S.C.J.).

[^50]: R. v. D. (J.), 2015 ONSC 5857, [2015] O.J. No. 4857 (S.C.J.).

[^51]: R. v. K.S., 2018 ONSC 5678 (S.C.J.).

[^52]: R. v. Krishnanada, 2017 ONCJ 81, [2017] O.J. No. 953,

[^53]: R. v. Saccoccia, 2017 ONSC 5531 (S.C.J.), at para. 36, citing R. v. W. (G.P.) (1998), 106 B.C.A.C. 239, [1998] B.C.J. No. 838 (B.C.C.A.), at para. 35, and R. v. Li, 2009 BCCA 85, 267 B.C.A.C. 77 (B.C.C.A.), at para 47. See also R. v. Goulding, 2017 ONSC 4376 (S.C.J.), at para. 17; R. v. Soon, 2017 ONSC 2037 (S.C.J.), at para. 24; and R. v. Sadikov, 2015 ONSC 4447 (S.C.J.), at para. 9.

[^54]: R. v. Houle, 2008 ONCA 287, at para. 4, citing R. v. Gummer, 1983 5286 (ON CA), [1983] O.J. No. 181, 38 C.R. (3d) 46 (C.A.), at p. 49 [cited to C.R.]: “We do not consider the rule that sentences for offences arising out of the same transaction or incident should normally be concurrent necessarily applies where the offences constitute invasions of different legally-protected interests, although the principle of totality must be kept in mind.” See also R. v. Sadikov, at para. 10.

[^55]: R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34, at para. 88.

[^56]: Friesen, at para. 155.

[^57]: R. v. Schulz, 2018 ONCA 598, 142 O.R. (3d) 128, 142 O.R. (3d) 142, at para. 41, leave to appeal to S.C.C. refused, [2019] S.C.C.A. No. 537.

[^58]: There was no presentence custody and no claim for credit for same.

[^59]: Sex Offender Information Registration Act, S.C. 2004, c. 10.