COURT FILE NO.: CR-17-3884

DELIVERED ORALLY AND MADE AN EXHIBIT: January 25, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JIMMIE WAYNER

Kimberley M. Bertholet, for the Crown

Paul F. Esco, for the Defence

HEARD: December 16, 2020

REASONS FOR SENTENCE

Howard J.

Overview

[1] The offender, Jimmie Wayner, was charged in a nine-count indictment with seven sexual offences, all involving the same under-age victim, a female person, who is shielded from identification in this proceeding; hence, I refer to her as “the victim” or by the initials “J.D.”[^1]

[2] At the time of the alleged incidents, Mr. Wayner was dating the victim’s mother, to whom I refer by the initials “P.E.”

[3] The charges in question involve incidents that are said to have occurred in Mr. Wayner’s apartment, when P.E. and her children came to visit him.

[4] Mr. Wayner pleaded not guilty to all charges. The issue at trial was whether the Crown had proven beyond a reasonable doubt that the alleged sexual touchings actually occurred.

[5] On August 25, 2020, following an eight-day trial held without a jury, during which I heard evidence from eleven witnesses, including the victim and Mr. Wayner, I found Mr. Wayner guilty of all seven sexual offences as charged.[^2]

[6] In particular, I found Mr. Wayner guilty of:

a. committing a sexual assault upon the under-aged victim, J.D., contrary to s. 271 of the Criminal Code, as charged in counts 1, 4, and 7 of the indictment;

b. committing the offence of sexual interference upon the said J.D., contrary to s. 151 of the Code, as charged in counts 2, 5, and 6 of the indictment; and

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

[7] Mr. Wayner is now before me for sentencing, the sentencing hearing having been held on December 16, 2020.

Factual Background

Circumstances of the Offence

[8] The facts relating to the offences are set out in my written reasons for judgment. I will not repeat them here in the same detail.

[9] At the time of the offences, Mr. Wayner was living in an apartment in Kingsville, Ontario.

[10] Mr. Wayner and P.E., the victim’s mother, had begun dating in the summer of 2015. P.E. was about 31 years old at the time, and Mr. Wayner was 27 years old.

[11] P.E. has four children, including the victim. The victim was born in September 2006,[^3] and was not yet nine years of age at the time of the offences.

[12] It is common ground that the victim is a child with special needs. While there was no medical or psychological evidence at trial as to the exact nature or extent of J.D.’s limitations, she presented with some degree of intellectual or developmental delay. Crown counsel observed that J.D. “functioned at a lower age-level” than her chronological age. The evidence of J.D.’s caregiver at trial was that her wages were paid out of a “disability” fund that had been established for J.D.[^4]

[13] In a similar vein, it is common ground that the victim’s mother also functions with some mental health challenges, the precise nature of which was not explained in the evidence at trial.

[14] From time to time during the course of their relationship, P.E. went to visit Mr. Wayner at his apartment in Kingsville. On some of these occasions, she brought her children with her to visit. All of the offences involve incidents that occurred in Mr. Wayner’s apartment.

[15] In her statements to the police, the victim said that, inter alia, Mr. Wayner touched her “private parts,” that she and Mr. Wayner played the “private parts and bums game,” that this happened when J.D. was sitting on a mattress in the living room while her mother and her siblings were in the bedroom, that she put her mouth on Mr. Wayner’s “private part,” and using a pen to represent Mr. Wayner’s private part, she demonstrated how she put her mouth on his private part, moving the pen in and out of her mouth, in a manner that simulated oral sex. J.D. also said that when Mr. Wayner’s private part was in her mouth, “pee” came out of his private part.[^5]

[16] In my reasons for judgment, I found that the victim’s statements to the police were confirmed by expert evidence concerning the DNA profiles found on a used condom taken from the bathroom in Mr. Wayner’s apartment[^6] and Mr. Wayner’s confession to the police,[^7] the voluntariness of which statements was initially challenged by the defence but subsequently conceded.[^8]

[17] The expert evidence at trial confirmed, and I found, that the DNA profile found on the inside of the used condom came from the victim.[^9] I found that the DNA profile of the male individual found on the inside and outside of the used condom came from Mr. Wayner’s sperm.[^10]

[18] Considering the evidence of Mr. Wayner’s confession to the police, I rejected the defence argument that Mr. Wayner offered false confessions merely in order to extricate himself from a stressful interview.[^11]

[19] I found that Mr. Wayner was very considered and deliberate in what he did and did not confess to. He admitted that on one occasion he put his penis in J.D.’s mouth and on other occasions he touched her vagina and buttocks. But he vehemently denied having sexual intercourse with the victim or touching other parts of her body with his penis.[^12]

[20] Mr. Wayner said that the incidents in question happened “last month,” that is, in August 2015.[^13] The initial disclosure of the touchings came from J.D. to her caregiver on September 1, 2015.[^14] Mr. Wayner was arrested on September 8, 2015.

[21] Considering the totality of the evidence, I found that Mr. Wayner put his penis in the mouth of the victim on one occasion (which forms the basis for counts 1, 2, and 3), that Mr. Wayner touched the vagina of the victim on at least one occasion (which forms the basis for counts 4 and 5), and that Mr. Wayner touched the buttocks of the victim on at least one occasion (which forms the basis for counts 6 and 7).[^15]

[22] For the purposes of sentencing, it should be said that Mr. Wayner did not stand in a position of trust or authority towards J.D.

Circumstances of the Offender

[23] A pre-sentence report was prepared on December 14, 2020, and marked as Exhibit No. 1 on the sentencing hearing. There was no objection to the facts asserted, with the exception of the negative comments made by P.E. against Mr. Wayner. For present purposes, nothing turns on those comments, and I have given them no weight in considering the just and fit sentence for Mr. Wayner.[^16]

[24] Mr. Wayner was born on June 22, 1988, and, as such, was 27 years at the time of the offences in August 2015 and 30 years old at the time of trial.

[25] Mr. Wayner has never been married and has no children. He is currently in a relationship with a woman, which began in June 2019, and the couple are engaged to be married.

[26] As reflected in the pre-sentence report, Mr. Wayner experienced a very difficult and traumatic upbringing. His biological mother “is said to have been an alcoholic who subjected [Mr. Wayner] to serious physical and sexual violence as well as a high level of neglect.” He resided with his biological mother intermittently until the age of five. The Children’s Aid Society was involved with the family, and Mr. Wayner was placed in more than one foster home. At the age of five years, he was made a Crown ward with no access and was placed in the foster home of the Baker family, with whom he resided until he turned eighteen years of age.

[27] The pre-sentence report notes that Mr. Wayner “has significant mental health concerns and has been diagnosed with intellectual delays.”[^17] The defence expert called at trial, Dr. Saadia A. Ahmad, assessed Mr. Wayner and diagnosed him as having a Nonverbal Learning Disability.[^18] It was the opinion of Dr. Ahmad that for a person with Nonverbal Learning Disability, it is “the immediate dominant need that dictates the behaviour” and that such a person “may not think of the consequences of their action.”[^19]

[28] In her testimony at trial, Dr. Ahmad spoke of the long history of Mr. Wayner being variously diagnosed with different mental health disorders over the years, including Fetal Alcohol Syndrome, Attention Deficit Hyperactivity Disorder (“ADHD”), Obsessive Compulsive Disorder, Schizophrenia, and others. Dr. Ahmad testified that his “clinical picture was consistent with someone who has a number of longstanding mental disorders.”[^20] The pre-sentence report notes that the “collateral contacts have confirmed that [Mr. Wayner] is prescribed medications for such diagnoses and is taking his medications responsibly.”[^21]

[29] Mr. Wayner’s foster mother reported that he was in “poor condition,” off his medications, and using illicit substances at the time he was arrested.[^22]

[30] Mr. Wayner had a challenging time in school. He received poor grades and reported that his progress was impaired by his ADHD and learning disability. He reported that he was expelled from high school in Grade 10 due to behavioural difficulties with other students.[^23] He attended an alternative program school and ultimately obtained his general secondary school diploma.

[31] Mr. Wayner has had a very limited employment history, including a newspaper route as a teenager, a landscaping job while in high school, and working in a greenhouse for a short period several years ago.[^24] He applied to the Ontario Disability Support Program, was deemed disabled, and has been receiving ODSP financial support since he was 18 years old.

[32] The pre-sentence report notes that Mr. Wayner “reported a history of substance use disorder and advised that he was been sober for two years. He indicated that he uses alcohol and marijuana regularly.”[^25]

[33] Mr. Wayner advised that he began consuming marijuana on a regular basis since Grade 8, began consuming alcohol on a regular basis since Grade 9, and previously “used acid and ecstasy regularly for a period of two years; crystal meth regularly for a period of one year; and crack cocaine intermittently for a period of five years.”[^26] Mr. Wayner reported that he suffered several overdoses, including one that he says was intentional.

[34] However, the pre-sentence report also reports, more favourably, that Mr. Wayner currently remains engaged with regular appointments with his psychiatrist, nurse practitioner, and mental health support worker from the Canadian Mental Health Association.

[35] As reflected in the pre-sentence report, it is the assessment of the Probation/Parole Officer who authored the report that Mr. Wayner “does not take responsibility for any of the behaviours for which he has been found guilty and places blame on the victim’s family for his involvement with the Criminal Justice System.”[^27] The pre-sentence report goes on to say that Mr. Wayner “has maintained his innocence and has offered no insight into his offending behaviours for which he has been found guilty, denied all responsibility and placed blame on the victim’s family.”[^28]

[36] The pre-sentence report concludes by stating that, “[a]reas of concern include sexual offending behaviours, mental health concerns and suicidal ideations, anger management deficits, poor impulse control, fixation with death and violence, difficulty residing independently, and a lack of concern for his own well-being.”^29

[37] The pre-sentence report confirms that Mr. Wayner has no criminal record.

[38] Mr. Wayner 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. Wayner stated, inter alia, that he “didn’t do it, and I stand by that.” He said that he just hopes that one day the victim will “come clean” and admit that he did not commit these offences. That said, Mr. Wayner advised that he does not “hold anything against” the victim or her mother. Mr. Wayner said that he is “moving on,” that he has turned his life around, that he is not and never has been a threat to society, and that he “just want[s] to put it all behind me and move on with my life.”

Impact on the Victim

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

[40] The victim, J.D., provided a victim impact statement, which was marked Exhibit No. 2 on the sentencing hearing. The victim’s statement was half-printed and half-drawn. In response to the query about how the offence affected her emotionally, the victim simply indicated that, “[i]t made me sad. It made me angry.” In the same vein, she drew pictures that indicated the same feelings about how the offences impacted her.

[41] A victim impact statement was also provided by P.E., the victim’s mother, which was marked as Exhibit No. 3 on the sentencing hearing, and which also expressed feelings of fear and anger. As well, the mother expressed that her daughter has had nightmares, that she is worried about her, and that she remains afraid of Mr. Wayner.

[42] I also received and considered a victim impact statement from P.E.’s mother, the victim’s grandmother, which was marked as Exhibit No. 4, who expressed sentiments generally similar to those of P.E.

Legal Parameters

[43] At the time of the offences, the provisions of s. 271(a) of the Code relevant to counts 1, 4, and 7 in the indictment provide that everyone who commits a sexual assault is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year.

[44] At the time of the offences, the provisions of s. 151(a) of the Code relevant to counts 2, 5, and 6 in the indictment provide that everyone who commits the offence of sexual interference upon an under-aged victim 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.

[45] At the time of the offences, the provisions of s. 152(a) of the Code relevant to count 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

[46] I have carefully considered the submissions of counsel for both parties. Ms. Bertholet submitted on behalf of the Crown that an appropriate global sentence for Mr. Wayner in the circumstances of the instant case would be imprisonment for a term of four years in respect of all offences.

[47] For the offender, Mr. Esco agreed with the legal principles articulated by the Crown but submitted that, given the personal circumstances of Mr. Wayner and his troubled upbringing, this court should consider a global sentence of just three years.

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

Analysis

Principles of Sentencing

[49] 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.”[^30] 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.”^31

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

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

[51] 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.”[^32]

[52] In Lacasse, the Supreme Court observed that determining “a proportionate sentence is a delicate task.”^33 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.

One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.[^34]

[53] 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.

[54] 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.

[55] 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.

[56] The Supreme Court has also repeatedly recognized that sentencing is an “inherently individualized process.”[^35] 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.[^36]

[57] My task is to impose a sentence that is appropriate for Mr. Wayner “based on the particular facts of the offence and of the offender within the applicable principles of law.”[^37]

Mitigating Factors

[58] I consider the following mitigating factors.

Lack of criminal record

[59] Mr. Wayner had no criminal record at all. That is a primary consideration.

Personal circumstances

[60] As I have reviewed above, the pre-sentence report indicates that Mr. Wayner experienced a very difficult and traumatic upbringing. He experienced serious physical and sexual violence at the hands of his biological mother, as well as a high level of neglect. Further, Mr. Wayner suffers from significant mental health issues and has been diagnosed with intellectual delays.

[61] It appears that, as referenced at trial, and as confirmed by Mr. Wayner’s foster mother in the pre-sentence report, he was in poor condition and off his medications at the time of the offences.

Support of the community

[62] It appears that Mr. Wayner has certain support in the community, and that is a mitigating factor. In this regard, I note that the pre-sentence report speaks to the considerable support that Mr. Wayner enjoys, and has always benefitted from, his foster family. Mrs. Baker, whom Mr. Wayner described as “his mother,” advised that hers is the only family that Mr. Wayner has known, that she is very protective of him, and that she will continue to support Mr. Wayner “in any way that she can, regardless of the sentence the Court imposes.”[^38] Mrs. Baker reported that Mr. Wayner has always shared a positive relationship with herself and her husband, as well as her biological and other foster children.[^39]

[63] In the same vein, Mr. Baker, the foster brother of Mr. Wayner, who is ten years older than the offender, has served as Mr. Wayner’s surety (along with Mrs. Baker) on Mr. Wayner’s bail conditions. Mr. Wayner has been residing at Mr. Baker’s residence ever since he was granted bail after his arrest on the present offences. “Mr. Baker reported that he ‘keeps an eye’ on [Mr. Wayner’s] mental health and reported that he is doing well. He stated that since [Mr. Wayner’s] arrest, he has taken accountability for his mental health and has taken his medications steadily and as prescribed.”[^40]

[64] As indicated in the pre-sentence report, Mr. Baker “reported that he has always shared a positive relationship with [Mr. Wayner].” Mr. Baker “reported an intention to continue to support [Mr. Wayner] in any way that he is able and advised that [Mr. Wayner] would be welcome back to reside with him at any time.”[^41]

Considerations of remorse

[65] As I have noted, the pre-sentence report indicates that Mr. Wayner does not take responsibility for any of the behaviours for which he has been found guilty, places blame on the victim’s family, and has offered no insight into his offending behaviours.

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

[67] In his allocution statement, Mr. Wayner said that he hopes that one day the victim will “come clean” and admit that he did not commit these offences.

[68] In the circumstances, I perceive that Mr. Wayner has not truly expressed responsibility for his actions or demonstrated insight into the gravity of his conduct and its impact on the victim. Indeed, he has engaged in victim-blaming to a degree. On balance, I find that Mr. Wayner has not exhibited any real remorse for his conduct and the impact it has had on J.D.

[69] That said, while an offender’s expression of remorse is a mitigating factor,[^42] the failure to express remorse is not an aggravating factor,[^43] and it will not be used as an aggravating factor. The failure of Mr. Wayner to express any real remorse is simply a neutral factor.

Aggravating Factors

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

Abuse of a young person

[71] 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.[^44] 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.[^45]

Profound age difference

[72] In R. v. Friesen, a unanimous Supreme Court of Canada held that the age of the victim is a “significant aggravating factor.”[^46] 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 … . [^47]

[73] Here, there is a profound age difference between the victim and the offender. Again, at the time of the sexual offences, J.D. was still just 8 years of age, and Mr. Wayner was 27 years old. Mr. Wayner was more than three times the age of the victim. In my view, this is a significant aggravating circumstance.

Circumstances of the victim

[74] As I have said, it is common ground that the victim here is a child with special needs. Her limitations make her vulnerable to exploitation. In my view, Mr. Wayner took advantage of J.D.’s particular vulnerabilities, and that is a material aggravating factor.

Repeated offences

[75] This is not a case where there was a single instance of inappropriate touching. Rather, in the instant case, Mr. Wayner engaged in wrongful sexual activity with an underage person with special needs on repeated occasions.

Appropriate Sentence

[76] In considering an appropriate sentence for Mr. Wayner, 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.”[^48]

[77] 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.^49

[78] 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.[^50]

[79] 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.[^51]

[80] 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. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in … “toughened sanctions” … . Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.[^52]

[81] 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.[^53]

[82] 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 … .[^54] [Emphasis added.]

[83] Turning to the appropriate sentence for the sexual offences committed by Mr. Wayner, I have considered all of the numerous principles of sentencing involved in this case. They include denunciation, rehabilitation, deterrence, separation from society, and promoting a sense of responsibility in the offender and acknowledgement of the harm done to the victim and community. While all of these principles are operative here, the primary sentencing principles that apply in this context are denunciation and deterrence, as mandated by s. 718.01.

[84] Ms. Bertholet for the Crown submits, relying on Friesen’s admonition that “mid-single digit penitentiary terms for sexual offences against children are normal,” that the appropriate starting point here is a sentence of five years. However, recognizing Mr. Wayner’s personal circumstances and limitations, the sentence should be reduced to four years.

[85] While Mr. Esco acknowledges the authority of Friesen and further acknowledges that the primary objectives here are denunciation and deterrence, he suggests a custodial sentence of three years.

[86] On balance, I am not satisfied that the sentence proposed by Mr. Esco gives sufficient weight to the primary considerations of denunciation and deterrence on the facts of this case. This was a 27-year-old man sexually assaulting an extremely vulnerable 9-year-old girl with special needs.

[87] An appropriate sentence for Mr. Wayner 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. Wayner and a general deterrence for other adults who would contemplate sexual activity with a child. 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 with special needs.

[88] Consequently, I have come to the conclusion that the approach of the Crown is sound and that, in all of the circumstances of this case, a just, fit, and proportionate sentence for Mr. Wayner is a term of imprisonment for four years.

Application of the Kienapple principle

[89] Mr. Wayner was found guilty of the seven sexual offences charged, which involve sexual assault, invitation to sexual touching, and sexual interference, as follows:

a. Mr. Wayner put his penis in the mouth of the victim on one occasion, which forms the basis for count 1 (sexual assault), count 2 (sexual interference), and count 3 (invitation to sexual touching);

b. Mr. Wayner touched the vagina of the victim on at least one occasion, which forms the basis for count 4 (sexual assault), and count 5 (sexual interference); and

c. Mr. Wayner touched the buttocks of the victim on at least one occasion, which forms the basis for count 6 (sexual interference), and count 7 (sexual assault).

[90] I agree with Mr. Esco that these offences engage the rule against multiple convictions and the Kienapple principle.[^55] In my view, the offence of sexual interference, contrary to s. 151, best captures the nature of the delict in this case. I did not hear argument on this specific issue; however, LeMay J. of our court has decided this issue in his well-reasoned judgment in R. v. L. (F.), and I adopt his reasoning as follows:

The offender argues that the sexual assault charge is the most serious of the charges. I do not agree for two reasons. First, given the age of the Complainant and the fact that the Crown has proceeded by way of indictment, the sentences for both offences are the same. Second, one of the required elements of the sexual interference charge is that the victim must have been under the age of fourteen at the time that the assaults took place. This is not an element of the offence of sexual assault.

This brings me to why a conviction for sexual interference is more appropriate in this case. In my view, the sexual interference charge is a more precise and complete explanation of the crime that was committed in this case. It includes a recognition that the crime was committed against a victim who was a child. This is, in my view, a key element of this case.[^56]

[91] Accordingly, Mr. Wayner should be sentenced on the convictions for sexual interference on counts 2, 5, and 6, and the other charges should be stayed.

Concurrent versus Consecutive Sentences

[92] 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.”[^57] This is a factual assessment.

[93] That said, consecutive sentences may be imposed where the offences are temporally linked but constitute invasions of different legally protected interests.[^58]

[94] The totality principle – reflected in s. 718.2(c) of the Code – requires that a sentencing judge who orders an offender to serve consecutive sentences for multiple offences must ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.[^59] In short, the sentencing judge must craft a global sentence that is not excessive.[^60] In such circumstances, the sentencing judge should follow the approach endorsed by our Court of Appeal that one should “first determine a global sentence and then assign sentences for each offence and designate each as concurrent or consecutive to fit within the global sentence.”[^61]

[95] In the case at bar, I am satisfied that the sentences on the counts of sexual interference, contrary to s. 151 of the Code, should be served concurrently. 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.”

[96] In the circumstances of the instant case, the three offences for sexual interference involved the same victim, occurred during the same time period, 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.

[97] I am satisfied that, having regard for the factual circumstances here, the wrongful acts of Mr. Wayner constituted, to use the phrase from Friesen, “a single criminal adventure.”[^62] For all of these reasons, I would impose the sentence on the three convictions for sexual interference concurrently.

Ancillary Orders

[98] As I have said, the Crown seeks a number of ancillary orders, none of which was expressly opposed by the defence.

[99] 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.

[100] 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.[^63]

[101] Ms. Bertholet does not seek an order under s. 161(1)(d), which would prohibit Mr. Wayner from using the internet, because use of the internet was not a feature of the instant case. That is in keeping with the admonition in Schultz that, “the content of the order must respond carefully to an offender’s specific circumstances.”

[102] That said, the Crown’s requests for orders under paragraphs (a), (a.1), (b), and (c) of s. 161(1) are, in my view, well founded. The court heard evidence at trial of how Mr. Wayner’s limitations cause him to act impulsively. Again, the evidence of Dr. Ahmad was that for a person with Nonverbal Learning Disability, it is “the immediate dominant need that dictates the behaviour” and that such a person “may not think of the consequences of their action.” One of the areas of concern highlighted in the pre-sentence report was “poor impulse control.” I agree with Ms. Bertholet that Mr. Wayner’s poor impulse control and his Nonverbal Learning Disability should inform the court’s consideration of Mr. Wayner’s future behaviour. I am satisfied that, given his circumstances, Mr. Wayner poses a foreseeable risk to children and that, in these particular circumstances, preventative orders under s. 161 are warranted.

[103] Section 161(1)(a.1) provides for an order prohibiting an offender from being within two kilometres of the residence of a victim or any other place. I agree with Ms. Bertholet that, in the circumstances of this case, the two-kilometre prohibition is unnecessary. It would unduly restrict the mobility rights of Mr. Wayner and may lead to unintentional breaches. I agree with the Crown that a restriction of 200 metres is more appropriate.

[104] I also agree with the Crown that, for the purposes of the supervision contemplated by an order under s. 161(1)(c), either Mr. Wayner’s foster mother or foster brother would make an appropriate and responsible supervisor. I note that, as reviewed above and reflected in the pre-sentence report, both Mrs. Baker and Mr. Baker advised that they would each continue to support Mr. Wayner in any way they can.

Final Disposition

[105] Mr. Wayner, I impose the following sentence on you.

[106] With respect to your conviction on count 2 for committing the offence of sexual interference upon the under-aged victim, J.D., contrary to s. 151 of the Criminal Code, I sentence you to a term of imprisonment for four years.[^64]

[107] With respect to your conviction on count 5 for committing the offence of sexual interference upon the said J.D., contrary to s. 151 of the Code, I sentence you to a term of imprisonment for four years to be served concurrently with your sentence on count 2.

[108] With respect to your conviction on count 6 for committing the offence of sexual interference upon the said J.D., contrary to s. 151 of the Code, I sentence you to a term of imprisonment for four years to be served concurrently with your sentence on count 2.

[109] The charges on counts 1, 3, 4, and 7 are stayed.

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

[111] As sexual interference is 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 2 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 5 and 6 for sexual interference. I also make an order in Form 5.041 requiring you to attend forthwith to give such samples.

[112] Sexual interference is a designated offence under s. 490.01(1)(a) of the 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[^65] for life.

[113] Pursuant to s. 109(1)(a) of the Code, you are hereby prohibited from possessing any firearm or codified weapon or device for a period of ten years.

[114] Pursuant to s. 161(1)(a) of the Code, you are hereby prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre.

[115] Pursuant to s. 161(1)(a.1), you are hereby prohibited from being within 200 metres of any place of residence, place of employment, or place of schooling of the complainant (J.D.), her mother (P.E.), or her maternal grandmother (K.D.), or any of them, or any other place where you know any one of them to be present.

[116] Pursuant to s. 161(1)(b), you are hereby prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.

[117] Pursuant to s. 161(1)(c), you are hereby prohibited from having any contact – including communicating by any means – with a person who is under the age of 16 years, unless you are present with and supervised by either or both of Mrs. Bonnie Baker and Mr. Matthew Baker.

[118] These prohibitions under s. 161(1) are effective for a period of ten years from today.

“Electronically signed and released by Howard J.”

J. Paul R. Howard

Justice

Delivered Orally: January 25, 2021

COURT FILE NO.: CR-17-3884

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JIMMIE WAYNER

REASONS FOR SENTENCE

Howard J.

Delivered Orally: January 25, 2021

[^1]: In her closing submissions at trial, Crown counsel advised that the Crown was not seeking convictions on counts 8 and 9 in the indictment, which involve allegations that Mr. Wayner allegedly made certain threatening remarks, contrary to s. 264.1 of the Criminal Code, R.S.C. 1985, c. C-46 [Code]. Accordingly, Mr. Wayner was acquitted on those counts.

[^2]: R. v. Wayner, 2020 ONSC 5063 (S.C.J.) [Conviction Decision].

[^3]: Conviction Decision, at para. 14.

[^4]: Ibid., at para. 15.

[^5]: Ibid., at paras. 78-79.

[^6]: Ibid., at paras. 97-116.

[^7]: Ibid., at paras. 117-139.

[^8]: Ibid., at paras. 39-40 and 118-119.

[^9]: Ibid., at para. 102.

[^10]: Ibid., at para. 101.

[^11]: Ibid., at para. 137.

[^12]: Ibid., at para. 130.

[^13]: Ibid., at para. 38.

[^14]: Ibid., at para. 29.

[^15]: Ibid., at para. 147.

[^16]: Pre-Sentence Report, dated December 14, 2020, Exhibit No. 1, at p. 11 [Pre-Sentence Report].

[^17]: Ibid., at p. 11.

[^18]: Conviction Decision, at para. 17.

[^19]: Ibid., at para. 18.

[^20]: Ibid., at para. 19.

[^21]: Pre-Sentence Report, at p. 11.

[^22]: Ibid., at p. 10.

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

[^24]: Ibid., at p. 6.

[^25]: Ibid., at p. 11.

[^26]: Ibid., at p. 6.

[^27]: Ibid., at p. 5.

[^28]: Ibid., at p. 12.

[^30]: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, 333 C.C.C. (3d) 450 [Lacasse], at para. 1.

[^32]: Ibid., at para. 12.

[^34]: Ibid., at paras. 3-4.

[^35]: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at p. 567.

[^36]: 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 CanLII 25 (SCC), [1987] 2 S.C.R. 309; R. v. M. (C.A.); and R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1 (C.A.).

[^37]: R. v. Johnson, 2016 ONSC 6656 (S.C.J.), at para. 18.

[^38]: Pre-Sentence Report, at p. 5.

[^39]: Ibid., at p. 3.

[^40]: Ibid., at p. 9.

[^41]: Ibid., at p. 5.

[^42]: Friesen, at para. 165, citing Lacasse, at paras. 77-78.

[^43]: R. v. Rockey, 2016 ONCA 891, 3 M.V.R. (7th) 1, at para. 31.

[^44]: Friesen, at para. 95.

[^45]: Ibid., at para. 116.

[^46]: Ibid., at para. 134.

[^47]: Ibid., at para. 136. [Citations omitted.]

[^48]: Ibid., at para. 1.

[^50]: Ibid., at para. 5.

[^51]: Ibid., at para. 95.

[^52]: 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.

[^53]: Ibid., at para. 107.

[^54]: Ibid., at para. 114. [Citations omitted.]

[^55]: Kienapple and The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524. See also R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, at pp. 491-503; and R. v. Bienvenue, 2016 ONCA 865, at paras. 8-15.

[^56]: R. v. L. (F.), 2016 ONSC 1215, [2016] O.J. No. 844 (S.C.J.), at paras. 22-23. See also R. v. Hussein, 2017 ONSC 4202, [2017] O.J. No. 3567 (S.C.J.), at para. 46 per Code J.

[^57]: 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.

[^58]: R. v. Houle, 2008 ONCA 287, at para. 4, citing R. v. Gummer, 1983 CanLII 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.

[^59]: R. v. M. (C.A.), at p. 531; R. v. Gummer, at p. 49; and R. v. J.S., 2018 ONCA 675, at para. 65.

[^60]: R. v. Saccoccia, at para. 37.

[^61]: R. v. B. (R.), 2014 ONCA 840, 327 O.A.C. 20, at para. 8, followed in R. v. J.S., at para. 66. See also R. v. Ahmed, 2017 ONCA 76, 136 O.R. (3d) 403, 346 C.C.C. (3d) 504, at paras. 85-86.

[^62]: Friesen, at para. 155.

[^63]: 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.

[^64]: There was no pre-sentence custody and no claim for credit for same.

[^65]: Sex Offender Information Registration Act, S.C. 2004, c. 10.