REASONS FOR SENTENCE

Speyer j.

Overview

1B. W. was found guilty, after trial, of sexually abusing his two stepdaughters.¹ He was found guilty of two counts of sexual assault, two counts of sexual interference, one count of invitation to sexual touching, one count of exposure for a sexual purpose, and one count of making sexually explicit material available to a child for the purpose of facilitating the offence of sexual interference.

2The Crown submits that count 1 (sexual assault on L.), count 3 (sexual assault on S.), and count 6 (sexual exposure to S.) should be conditionally stayed pursuant to the rule against multiple convictions for the same delict. The defence agrees. The rule prevents an accused from being convicted of multiple offences arising from the same conduct where the elements of the offences are substantially the same. In such circumstances, the accused should only be convicted of the most serious of the offences, and the findings of guilt in relation to the other similar offences should be stayed: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, at pp. 744-754; R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, at pp. 491-503. Therefore, counts 1, 3 and 6 are conditionally stayed. Mr. W. is convicted of counts 2, 4, 5 and 7. Mr. W. will be sentenced for sexual inference in relation to L., and sexual interference, invitation to sexual touching, and making available sexual material in relation to S.

3The Crown seeks a jail sentence of seven years. The defence submits that a jail sentence of five years would be appropriate.

4The Crown also seeks ancillary orders: a DNA order, a s. 109 weapons prohibition order for 10 years, a SOIRA order for life, a s. 743.21 order prohibiting contact with M., L. and S., and a s. 161 order for 10 years. The defence agrees that the orders sought by the Crown should be made, with some exceptions to the s. 161 order. I will address those at the conclusion of these reasons.

The Facts

(a) The circumstances of the offences

5In November 2016, Mr. W. moved into M’s house, to live with M. and her three children, the two victims and their younger brother. Until May 7, 2019, they lived as a very integrated blended family. M.’s children regarded Mr. W. as their step-father. He took an active role in their care and looked after the children when M. was at work. He was regularly responsible for putting the children to bed.

6The offences took place in 2019 in the home Mr. W. shared with M. and her children. At the time, L. was 9 years old, and S. was 11 years old.

7On May 7, 2019, the relationship between Mr. W. and M. and her children ended abruptly. L. and S. told their mother what he did to them, and she immediately ordered him to leave the house.

8The event that triggered Mr. W.’s departure occurred on May 7, 2019. Mr. W. came into 9-year-old L.’s room when she was getting ready for bed. He picked her up and put her on her bed face down on her belly with her legs over the side of the bed and her knees on the floor. She was wearing only her underwear. He positioned himself on top of her and gave her a massage and tickled her. She told him to stop but he did not. Then he gave her a “wedgie”. He moved his penis against her buttocks “like going up and down”. He then stood up and left the room. L.’s older sister, S. came into the room and asked what was happening and L. told her what Mr. W. had done. S. realized that Mr. W. had done to L. what he also did to her, and disclosed the abuse to her mother.

9L. testified that Mr. W. put her in that same position on earlier occasions, but she was unable to provide any details about those times.

10Mr. W. abused 11-year-old S. repeatedly over a period of about seven weeks on numerous occasions when her mother was not at home. He pulled down her pants and underwear and simulated intercourse with her by rubbing his penis against her buttocks while she was in a “downward dog” position. He grabbed her legs and put them over her shoulder and licked and touched her vaginal area. He inserted his finger in her vagina. Sometimes the defendant pulled down his pants and exposed his penis. He placed S.’s hand on his penis and made her move her hand up and down until he ejaculated on her hand or on her bed. He told her not to tell anybody. Mr. W. told S. that kids do this sort of thing all the time with their stepfathers, and he showed her two videos on his phone of adult males engaged in sexual activity with girls. In one, a girl put the man’s penis in her mouth. He showed S. the videos in her bedroom, on her bed.

(b) The circumstances of Mr. W.

11Mr. W. is 36 years old. He was 33 years old when the offences occurred.

12Mr. W. and his two siblings were raised by his mother and maternal grandmother. Although he moved frequently and attended numerous schools, his childhood was not marred by abuse in the home. He was an ordinary and active child. He described his childhood as “very good”.

13Mr. W. has been employed for most of his adult life, holding jobs as a cab driver and tow truck operator. He also worked clearing snow and in the construction/renovation field.

14Mr. W. has three children, aged 6, 9, and 14, from two different relationships. He remains actively involved in the lives of his children.

15In 2021, Mr. W. began a relationship with a 23-year-old single mother of two sons. By all accounts, he enjoys a good relationship with her and her sons.

16Mr. W. has a criminal record. It contains no convictions for sexual assault, but two of the convictions are for offences against Mr. W.’s domestic partners: harassing phone calls against his ex-wife in 2009, and assault against the mother of his two youngest children in 2013.

17Mr. W. does not abuse substances. He does not experience any mental health challenges. He is physically healthy.

(c) Impact on the victims

18The impact of Mr. W.’s crimes on the two girls has been profound. S. had nightmares and was unable to sleep in her own room for over a year. She has struggled to concentrate and focus in school, and her grades have suffered. She experiences anxiety and depression, for which she receives therapy. L. experienced pain and anxiety. She worries about what might happen if her mother has another relationship, and what steps would have to be put in place to ensure that another man does not hurt them. M. blames herself for what Mr. W. did. She has experienced depression and anxiety. She cannot trust anyone. She feels that she cannot have another relationship because she will never be able to trust another person sufficiently to allow them into her family’s life.

(d) The positions of the parties

19The Crown relies on the Supreme Court of Canada's decision in R. v. Friesen, 2020 SCC 9, and decisions from this court since Friesen was decided, in support of its position that a sentence of seven years is required. The Crown notes that this case involved multiple incidents of highly invasive sexual abuse of two young children by a person in a position of trust who committed offences that resulted in significant harm to the children and that reflect significant moral culpability.

20The defence acknowledges that Friesen and sentencing decisions post-Friesen support a significant mid-single digit penitentiary sentence in the circumstances of this case. The defence submits that post-Friesen decisions suggest that a sentence of 5 years would balance the aggravating and mitigating factors in this case.

(e) Analysis

21The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. To that end, sanctions for criminal behaviour can denounce criminal conduct, deter it both by deterring the particular offender before the court, and by generally deterring others who might choose to do the same thing, separate the offender from society where necessary, foster rehabilitation and promote a sense of responsibility in offenders: Criminal Code, s. 718.

22The paramount principle that governs sentencing is that sentences must be proportionate to the gravity of the offence and the offender’s degree of responsibility in the unique circumstances of each case: Criminal Code, s. 718.1; Friesen, at para. 30. “The goal in every case is a fair, fit and principled sanction”: R. v. Parranto, 2021 SCC 46, at paras. 10, 12.

23The principles of parity and individualized sentencing also govern the imposition of a fit sentence, but they are secondary to the principle that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The parity principle, which is codified in s. 718.2(b) of the Criminal Code requires that similar offenders who commit similar offences in similar circumstances should receive similar sentences. The parity principle helps courts to impose a proportionate sentence. Individualized sentencing also furthers the search for a proportionate sentence: Parranto, at paras. 11-12.

24Offences against children are particularly grave. Section 718.01 of the Criminal Code states that when dealing with offences against children a court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Section 718.2 of the Criminal Code specifies that the following factors are aggravating factors that elevate the gravity of an offence:

(i) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(ii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

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

25Each of the offences of which Mr. W. has been convicted has a maximum penalty of 14 years imprisonment.

26The sentencing of offenders convicted of sexual offences against children has been recently considered by the Supreme Court of Canada in Friesen. In Friesen, the unanimous Supreme Court, at para. 5, was clear that sentences for sexual offences against children must increase:

[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.

27I have considered, as I determine a fit sentence for Mr. W., the following directions provided by the Supreme Court in Friesen:

(a) Sentences must recognize and reflect both the harm caused by sexual offences against children and the profound inherent wrongfulness of sexual violence. The sentence must fully reflect the “life-altering consequences” that can and often do flow from the sexual violence. I must weigh the harm done to L., S., and M. and to their community in a manner that reflects society’s deepening and evolving understanding of that harm. The sentence must recognize the inherent wrongfulness of Mr. W.’s conduct, which impacts both the gravity of the offence and Mr. W.’s degree of responsibility: Friesen, at para. 74-75.

(b) It is necessary to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children. Specifically, the sentence must recognize and give effect to both the actual and potential harm to L. and S.: Friesen, at para. 50.

(c) I must consider forms of potential harm that have not yet materialized but that are a reasonably foreseeable consequence of the offences against L. and S. and may in fact materialize later as they grow up and become adults. To do otherwise would falsely imply that these children will simply outgrow the harm of sexual violence: Friesen, at para. 84.

(d) Sexual violence against children can cause serious emotional and psychological harm that, may often be more pervasive and permanent in its effect than any physical harm: Friesen, at para. 56.

(e) Any 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 injury: Friesen, at para. 77.

(f) Where sexual violence against a child is committed by a family member who breaches a trust relationship, that breach of trust can damage a child’s relationships with their families, caregivers and other social relationships: Friesen, at paras. 60-61.

(g) The ripple effects of sexual violence against children can make the child's parents, caregivers, and family members secondary victims who also suffer profound harm because of the offence. Sexual violence can destroy parents’ and caregivers' trust in friends, family, and social institutions and leave them feeling powerless and guilty. Parents and caregivers may also bear financial, personal, and emotional costs as they help their children recover and cope with their trauma: Friesen, at para. 63.

(h) Sexual violence against children also harms the communities in which children live and society as a whole. The costs are profound: Friesen, at para. 64.

28Sentencing ranges, which are summaries of sentences imposed in the past, are guidelines, not hard and fast rules.

29The sentencing range for sexual offences against children was specifically addressed in Friesen, at para. 114: mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

30Counsel have helpfully provided me with cases decided since the Supreme Court of Canada’s decision in Friesen. Those cases consider circumstances with varying levels of similarity to this case. Of course, no two cases are alike, and sentencing is an individualized process. I have considered R. v. C.F., 2020 ONSC 5975; R. v. G.R., 2020 ONSC 7411; R. v. A.B., 2021 ONSC 484; R. v. C.B., 2021 ONSC 187; R. v. Wayner, 2021 ONSC 588; R. v. R.A., 2022 ONSC 1161; R. v. R.I., 2022 ONSC 1615; R. v. K.R.S., 2021 ONSC 8018, R. v. R.N., 2022 ONCJ 145; and R. v. W.S., 2021 ONCJ 482. These cases inform my application of the parity principle, in aid of determining a sentence that is proportionate to the harm done by Mr. W. and the inherent gravity of his conduct.

31There are many aggravating factors in this case:

(1) Mr. W. abused of a position of utmost trust. He was in the position of stepfather to the victims and took advantage of his time alone with them when they were in his care. He breached his duty to protect and care for the victims and this enhances his moral blameworthiness.

(2) The sexual violence against S. occurred frequently and over a period of many weeks. This increases the severity of the offence and Mr. W.’s moral blameworthiness. His actions were not isolated. His actions reflected a pattern of conduct and repeated victimization of children.

(3) The degree of physical interference in this case is high. It involved several forms of sexual contact, with two victims. Mr. W. violated the bodily integrity of S. and L. to a significant degree.

(4) Mr. W. showed explicit sexual videos to S. to normalize his assaultive conduct. One of those videos recorded an act of sexual violence by an adult male towards a female child. Mr. W. thus re-victimized that child for the purpose of grooming S. to be similarly victimized.

(5) The 9- and 11-year-old children were very vulnerable. They depended on Mr. W. to care for them when the assaults occurred. Their understanding of what was being done to them was incomplete, and that diminished their ability to report what he did to them.

(6) The offences occurred in the victims’ home, and in their bedrooms. I do not have to surmise that sexual violence against children that takes place in their home is particularly harmful, because it damages the child’s sense of security in the home. In this case, there is direct evidence from S. that for over a year after the offences, she had nightmares and was unable to sleep in her own bed.

(7) The reasonably foreseeable future harm to the children and their mother is substantial. They have learned that an adult male cannot be trusted, and that will continue to affect their lives in the future.

(8) Mr. W. was or ought to have been aware of the harm his wrongful exploitation of the vulnerable children could cause and his moral blameworthiness is high.

(9) Mr. W. has previous convictions for domestic violence-related conduct. He reoffended after completing a rehabilitative program for abusive domestic partners, which suggests that his rehabilitation will not be straightforward.

32Mitigating factors

(1) Mr. W. has support in the community from his family. This increases the prospects for his rehabilitation.

(2) Mr. W. is relatively young and healthy, and he is capable of being a good parent to his children. This also increases his prospects for rehabilitation.

(f) The sentence

33An appropriate sentence for Mr. W. must reflect the primary considerations of denunciation and deterrence. The appropriate sentence in this case should specifically deter Mr. W. and generally deter other adults who contemplate sexual abuse of a child. As well, the appropriate sentence must reflect society's revulsion and unequivocal disapproval of Mr. W.’s conduct, which involved multiple instances of sexual violence against two young girls who were in his care and who viewed him as a parent.

34The general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences: Friesen, at para. 155.

35The offences against S. and L. require consecutive sentences because they are not linked to each other at all. Rather, the offences reflect Mr. W.’s decision to violate the sexual integrity of two victims.

36The principle of totality requires that where consecutive sentences are imposed, the court must ensure that the total sentence is not unduly long or harsh and does not exceed the offender's overall culpability: Criminal Code, s. 718.2(c); Friesen, at para. 157; R. v. Ahmed, 2017 ONCA 76, at para. 79. To achieve this, I must determine an overall fit sentence, and then impose individual sentences that add up to that total.

37In Friesen, the Supreme Court directed that courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender. In this case, a total sentence of six years imprisonment is necessary to adequately reflect the gravity of Mr. W.’s offences and the harm he has caused. The sentences will be broken down as follows:

Count 2: Sexual Interference, contrary to s. 151 of the Criminal Code of Canada in relation to L: Two years imprisonment.

Count 4: Sexual Interference, contrary to s. 151 of the Criminal Code of Canada in relation to S: Four years imprisonment, consecutive to Count 2.

Count 5: Invitation to Sexual Touching, contrary to s. 152 of the Criminal Code of Canada in relation to S: Four years imprisonment, concurrent to Count 4.

Count 7: Making Sexually Explicit Material Available to a Child, contrary to s. 171.1 of the Criminal Code in relation to S: 2 years imprisonment, concurrent to Count 4.

38In addition to the custodial sentence, the following ancillary orders are made:

(1) Mr. W. is prohibited pursuant to s. 743.21 of the Criminal Code from contacting L., S., or M., directly or indirectly, while he is serving his sentence;

(2) Section 161 of the Criminal Code 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, or having any contact or communicating with persons under 16, or using the internet.

In R. v. Schulz, 2018 ONCA 598, leave to appeal denied 2020 CanLII 27703 (SCC), the Court of Appeal 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.

Mr. W. is prohibited pursuant to s. 161 of the Criminal Code for a period of 10 years, as follows:

(i) 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, except when he is there with his own children and in the direct company of an adult who is aware of the circumstance of his conditions;

(ii) From being within one kilometre of any place where S., L., or M. ordinarily reside, attend school, attend a place of worship, or is known by Mr. W. to frequent, or where Mr. W. knows any of them to be present;

(iii) 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 of age;

(iv) From having any contact, including communicating by any means, with a person who is under the age of 16 years, except his biological children or when he is in the direct company of an adult who is aware of the circumstance of his conditions.

(3) The offences of which Mr. W. has been convicted are designated offences under s. 490.011(1) 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 order that Mr. W. shall be subject to the provisions of the Sex Offender Information Registration Act for life.

(4) The offences of which Mr. W. has been convicted are primary designated offences under s. 487.04 of the Code for the purposes of DNA collection and storage, and a DNA order is mandatory. Accordingly, pursuant to s. 487.051(1) of the Code, I order that Mr. W. provide samples of his bodily substances for the purposes of forensic DNA analysis.

(5) Mr. W. is prohibited from possessing firearms and other weapons and devices specified in the order I am making pursuant to s. 109 (1)(a) of the Criminal Code for 10 years.

Justice J. Speyer

Released: May 10, 2022

CITATION: R. v. W., 2022 ONSC 2399

COURT FILE NO.: CR-21-15498

DATE: 20220510

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

B. W.

Defendant

REASONS FOR JUDGMENT

Justice J. Speyer

Released: May 10, 2022

Footnotes

R. v. W., 2022 ONSC 592.

R. v. B. W., 2022 ONSC 2399

Case Summary

REASONS FOR SENTENCE

Overview

The Facts

(a) The circumstances of the offences

(b) The circumstances of Mr. W.

(c) Impact on the victims

(d) The positions of the parties

(e) Analysis

(f) The sentence

SUPERIOR COURT OF JUSTICE

Footnotes

R. v. B. W., 2022 ONSC 2399

Case Summary

REASONS FOR SENTENCE

Overview

The Facts

(a) The circumstances of the offences

(b) The circumstances of Mr. W.

(c) Impact on the victims

(d) The positions of the parties

(e) Analysis

(f) The sentence

SUPERIOR COURT OF JUSTICE

Footnotes

Cited By (4 cases)

R. v. B.O., 2025 ONSC 3507

R. v. S.S., 2024 ONSC 3568

R. v. N.Z., 2023 ONSC 5005

R. v. Hilal, 2023 ONSC 4270

Cited By (4 cases)

R. v. B.O., 2025 ONSC 3507

R. v. S.S., 2024 ONSC 3568

R. v. N.Z., 2023 ONSC 5005

R. v. Hilal, 2023 ONSC 4270