COURT FILE NO.: CR-19-081

DATE: 20220909

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

N.S. Defendant

Sarah Tarcza for the Crown Christien Levien for N.S.

HEARD: July 15, 2022

sentencing reasons

C. Boswell J.

[1] The defendant is a 31-year-old Indigenous male who stands convicted of two counts of sexual assault and two counts of sexual interference. The complainants were, for all intents and purposes, his stepsisters. There is a publication ban in effect that prevents the publication of any information that may identify a complainant or a witness in this case. In the result, whenever a person is referenced in these reasons, he or she will be identified by initials only.

[2] Crown and defence counsel are agreed that the two counts of sexual assault should be stayed pursuant to the principles of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. Those principles provide that multiple convictions should not be registered where, in substance, only one crime has been committed. I accept counsel’s submissions on this point and counts 1 and 3 are conditionally stayed.

[3] The following reasons explain the sentences I impose today on counts 2 and 4, which reflect the convictions for sexual interference.

The Circumstances of the Offences

[4] This was a jury trial. Juries do not provide reasons for their decisions. Sometimes it is relatively easy to determine what facts the jury relied upon to reach a verdict. For instance, in the case of the complainant, PWC, only one incident was alleged. The facts associated with that incident are relatively straightforward and it is readily apparent what findings the jury must have made.

[5] A jury’s factual findings are not always so readily apparent, however. In relation to the complainant, EC, for instance, a number of incidents of sexual touching were described in evidence. Given that the indictment includes only one count of sexual interference in relation to EC, each juror needed only to be satisfied that the elements of sexual interference were made out, to the reasonable doubt standard, in relation to at least one of the incidents. The jurors did not need to agree on which incident was made out to the requisite standard of proof.

[6] It can be challenging to describe the circumstances of an offence for sentencing purposes, where like here, alternative bases for verdicts are present. A sentencing court must, nevertheless, set out in express terms the circumstances of the offence that support the appropriateness of the sentence imposed.

[7] Section 724 of the Criminal Code establishes the general rules of fact-finding for sentencing purposes. Section 724(1) provides that the sentencing judge is entitled to accept as proven, any information disclosed at trial, or at the sentencing hearing, as well as any facts agreed upon by counsel.

[8] Section 724(2) provides that, in jury trials, the court must accept as proven all facts, express or implied, that were essential to the jury’s verdict of guilty. Moreover, the court may find any other relevant fact that was disclosed by evidence at the trial to be proven. The court must be careful, of course, not to find any fact that is inconsistent with the jury’s verdict.

[9] In R. v. Ferguson, 2008 SCC 6, [2008] S.C.J. No. 6, the Supreme Court instructed trial judges on the appropriate manner in which to approach their fact-finding task on sentencing. Writing for a unanimous court, former Chief Justice McLachlin said, at paras. 16-18:

16 …[U]nlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

17 Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 CanLII 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).

18 Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 CanLII 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.)). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[10] Counsel made no submissions on the facts I should (or should not) find. With the foregoing principles in mind, I find the circumstances of the offences to be as follows.

Background

[11] Some brief background will help put the circumstances of the offences into context.

[12] The complainants’ mother began a relationship with the defendant’s father in March 2013. They began to cohabit in June 2015 at a home at Rama First Nations near Orillia, Ontario. The home at Rama was that of the defendant’s father.

[13] EC moved to the Rama residence a number of months before the rest of her family. She was having troubles at her school and was looking for a fresh start. She was partway through grade six at the time and was about 12 years old. Eventually, EC’s mother and two of her siblings (including PWC) joined her.

[14] The defendant was living in the home with his father when EC moved there. He was about 24 years old at the time. He continued to live in the home at Rama until shortly after the complainants’ mother moved in. After that he moved to his own apartment in Orillia.

[15] The sleeping arrangements at the Rama residence were as follows. The complainant’s mother and the defendants’ father shared a room. The defendant had his own room. The complainants shared a room. The complainants’ brother had a room in the basement on his own.

[16] The cohabitation between the defendant’s father and the complainants’ mother continued until about late 2016 or early 2017 when they separated after a disagreement. The complainants and their mother moved out of the Rama residence at that time.

[17] Roughly six weeks after the break-up, the defendant’s father and the complainants’ mother reconciled to some extent. The complainants and their mother did not move back into the Rama residence, but regularly stayed there on weekends. At some point, the defendant moved back into the Rama residence.

[18] The relationship between the defendant’s father and the complainants’ mother came to an abrupt end in August 2017 when EC disclosed to her mother that she was being sexually abused.

The Offence Against PWC

[19] As I alluded to, the circumstances of the offence against PWC are relatively straightforward.

[20] PWC was in grade three. She fell ill at school one day. The defendant’s father picked her up from school and dropped her off at the defendant’s home in Orillia so that he could babysit her.

[21] The defendant had a small apartment, possibly a bachelor unit. The defendant told PWC she could sit on his bed and watch a movie. She selected Alvin & the Chipmunks.

[22] PWC and the defendant were on the bed together. She described herself as sitting up somewhat and the defendant “kind of lying down”. There was a blanket covering PWC’s legs that was also covering the defendant’s waist. The defendant was wearing shorts.

[23] After about 15 minutes, the defendant told PCW to touch something under the blanket. She said no. He grabbed her hand and placed it on his penis under the blanket. She pulled her hand away and then just sat there and watched the movie until she was picked up. She thought it was her mother who picked her up, but her mother denied doing so. It may well have been the defendant’s father who came to collect her.

The Offence Against EC

[24] EC described eight incidents of sexual touching by the defendant. The jury obviously accepted her testimony as sufficiently credible and reliable to support a guilty verdict against the defendant. I too observed her to be a credible and reliable witness.

[25] In my view, there is no rational basis to conclude that the jury may have accepted her evidence in relation to some incidents of alleged sexual touching but not others.

[26] EC gave her evidence in a matter-of-fact and straightforward manner, with a flat affect. She exhibited a rather numb demeanour. There were no inconsistencies in her evidence save for that she agreed she may have told the police that there were 10 incidents of sexual touching, when she described only 8 at trial. She was not sure. Her police statement was not specifically put to her. Like EC, I am not sure how many incidents she described to the police.

[27] EC’s evidence was not otherwise undermined on cross-examination. She testified that the defendant’s penis is circumcised. He filed a doctor’s note indicating that it is uncircumcised. In my view, that is a very minor discrepancy for two reasons. First, at 12-14 years old, EC would not have had any real familiarity with the appearance of penises, though she did testify at trial that she knew the difference between circumcised and uncircumcised penises. Second, and perhaps more compelling, EC’s observations of the defendant’s penis appear to have been made at times when he had an erection. When erect, an uncircumcised penis often appears no different than a circumcised one.

[28] I find as a fact that all of the alleged sexual touching took place as described by EC. The number of incidents is an aggravating factor, so I must be satisfied beyond a reasonable doubt that each occurred before I consider it as aggravating on sentencing. I am so satisfied with respect to each of the incidents described by EC.

[29] I will briefly set out the circumstances of each incident.

[30] The first incident occurred in the defendant’s bedroom during a movie night. EC and her two siblings were together with the defendant in his room. They were lying on the defendant’s bed watching a movie. EC was lying beside the defendant. She was lying on her right side. The defendant put his hand down her pants and touched her vagina. The touching lasted for several minutes.

[31] The balance of incidents, as I describe them, are not necessarily in chronological order in terms of when they occurred. The order in which I am describing them was the order in which they were recounted during EC’s testimony.

[32] The second incident occurred in the defendant’s car as he drove EC over to his girlfriend’s house. His girlfriend had a sister about EC’s age and they were going to have a sleepover. The defendant picked EC up at the Rama home and was driving her to his girlfriend’s house, which was in Orillia. While driving, the defendant took EC’s hand and placed it on his penis. He had his pants partially down. He then undid her seatbelt and pushed her head towards his penis. His penis went into her mouth “a few times”. They stopped before they arrived at the girlfriend’s home and the defendant masturbated to ejaculation.

[33] The third incident occurred when the defendant was driving EC to school. While driving, the defendant took EC’s hand and placed it on his penis and made it go up and down.

[34] The fourth incident occurred at the time when the defendant was moving from the Rama home to his apartment in Orillia. EC was helping with the move and was driving in a vehicle with the defendant. The defendant took EC’s hand and placed it on his penis. She subsequently performed fellatio on him.

[35] The fifth incident occurred at the home at Rama. EC was sitting on the floor of her bedroom. The defendant entered the room with his pants halfway down to his knees. He masturbated in front of EC. He inserted his penis into her mouth despite her resistance.

[36] The sixth incident also occurred at the Rama residence. EC was sitting on a couch watching television. Her siblings were at a neighbourhood park. The defendant approached EC and attempted to make her suck his penis. She pushed him away. He told her she had to go upstairs. On the way upstairs the defendant pulled her into his room. He forced her to her knees, pulled her pants down and had vaginal intercourse with her.

[37] The seventh incident occurred in the garage at the Rama home. EC and the defendant were looking for an HDMI cord. When EC entered the garage to search for it, she found the defendant masturbating. He grabbed her hand and placed it on his penis. He offered her money to suck his penis, but she refused.

[38] The eighth incident occurred at the defendant’s girlfriend’s house. The girlfriend lived at her parents’ residence but in a garage that had been converted into an apartment. EC and the defendant were alone in the apartment while the defendant’s girlfriend went into the main house for something. EC was sitting on the floor by the bed. The defendant approached her and pushed his penis into her mouth. He stopped when a noise indicated that his girlfriend was returning.

The Circumstances of the Offender

[39] As I noted, the defendant is 31 years old. Most of the information I have about him comes from a Gladue Report prepared by Julie Broomfield of Aboriginal Legal Services dated July 13, 2022. The report is comprehensive and understandably took some considerable time to prepare. The need for a Gladue Report – and the wait for its completion – informs the delay between the defendant’s conviction on March 14, 2022 and his sentencing today.

[40] Gladue Reports take their name from the Supreme Court’s decision in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688.

[41] In 1996 the Criminal Code was amended to codify the fundamental purpose and principles of sentencing. One of the provisions added was s. 718.2(e) which provides that the court should consider all available sanctions other than imprisonment that are reasonable in the circumstances, with particular attention to the circumstances of Aboriginal offenders. In Gladue, the Supreme Court was called upon to consider, for the first time, the application of that section to the sentencing of Aboriginal offenders.

[42] In a unanimous decision penned by Justices Cory and Iacobucci, the Supreme Court held that s. 718.2(e) signalled that the sentencing of Aboriginal offenders was to be undertaken differently than other offenders in order to achieve truly fit and proper sentences in the particular circumstance of each case. An altered method of analysis was necessary to give effect to what the court described as “the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system.” (Gladue, paras. 33-34). Indeed, the impetus of including s. 718.2(e) in the 1996 amendments to the Code was the overrepresentation of Indigenous people in the Canadian criminal justice system. (See R. v. Ipeelee, 2012 SCC 13, at para. 58).

[43] At para. 93 of Gladue, the court summarized a number of principles associated with the altered method of analysis to be applied to sentencings involving Indigenous persons. Those principles include:

(i) Section 718.2(e) mandates that sentencing judges are to consider all available sanctions other than imprisonment, and to pay particular attention to the circumstances of Indigenous offenders. This is not meant to convey that Indigenous offenders are to be afforded preferential treatment. It is meant to convey that the court must pay particular attention to the circumstances of Indigenous offenders because those circumstances are unique in the Canadian criminal justice system;

(ii) The purpose of s. 718.2(e) is to ameliorate the serious problem of overrepresentation of Indigenous people in prisons and to encourage judges to have recourse to a restorative approach to sentencing;

(iii) All of the principles and purposes of sentencing set out in Part XXIII of the Criminal Code must be taken into account when sentencing all offenders, including Indigenous offenders. But the court must undertake the sentencing of Indigenous offenders differently, because they are unique. With Indigenous offenders, the court must consider:

a. The unique systemic or background factors which may have played a part in bringing the particular offender before the courts; and

b. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Indigenous heritage or connection.

(iv) In order to undertake the necessary considerations, the sentencing judge will require information about the accused. Judges may take judicial notice of the broad systemic and background factors affecting Indigenous people;

(v) If there is no alternative to incarceration, the length of the term must be carefully considered. That said, section 718.2(e) is not to be taken as a means of automatically reducing prison sentences for Indigenous offenders. Based, however, on the unique factors that may have played a part in the offending, a jail term imposed on an Indigenous offender may in some circumstances be less than the term imposed on a non-Indigenous offender for the same offence; and,

(vi) Generally, the more serious and violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for similar offences and offenders, regardless of the offender’s Indigenous status.

[44] The principles articulated in Gladue were reconsidered and affirmed by the Supreme Court in R. v. Ipeelee, as above. At para. 60 of the ruling in Ipeelee, Justice LeBel emphasized that courts sentencing Indigenous offenders:

must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.

[45] No causal link is required between an Indigenous offender’s heritage and the offences before the court for the sentencing judge to take these factors into account. See Ipeelee, paras. 81-83 and R. v. Kreko, 2016 ONCA 367 at para. 21.

[46] These factors do not immediately translate into lower sentences for Indigenous offenders. The Gladue principles are not meant to be a form of race-based discount. What these factors do is provide significant context in which to evaluate the case-specific information about the offender provided to the court at the sentencing hearing.

[47] Justice LeBel went to explain that the circumstances recognized in Gladue bear on the ultimate question of what a fit and just sentence is for the particular offender before the court. He elaborated at paras. 73 and 74 as follows:

74. First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness…

75. Second…the types of sanctions which may be appropriate — bear not on the degree of culpability of the offender, but on the effectiveness of the sentence itself. As Cory and Iacobucci JJ. point out, at para. 73 of Gladue: “What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities.”

[48] N.S. identifies as Indigenous. He is a registered member of the Chippewas of Rama First Nation. For that reason, a Gladue Report was requested.

[49] The report delivered was comprehensive in scope. It provided a good deal of information about the historical impact of colonialism, displacement and the residential schools system. It went on to examine the impact of these factors on N.S.’s family and the intergenerational trauma they have experienced. And it included a focus on N.S., his personal circumstances and how those circumstances have been impacted by unique systemic background factors. I will take a moment to examine each of these three areas.

Historical and Systemic Factors

[50] At page 20 of the Gladue Report, Ms. Broomfield reflected on the effects of colonialism as follows:

The colonization of Aboriginal peoples has resulted in loss of land, traditional subsistence activities, and control over living conditions, as well as the suppression of belief systems and spirituality, the weaking of social and political institutions, and racial discrimination. These outcomes have produced cultural changes that have disrupted traditional roles, identities, and patterns of social interaction and support, all of which have been found to be significant causal factors in the increasing rates of suicide among Indigenous peoples worldwide.

[51] The Truth and Reconciliation Commission of Canada reported in 2015 that Canada’s Aboriginal Policy, which included church-run Indian Residential Schools, aspired to eliminate Aboriginal governments, ignore Aboriginal rights, terminate the Treaties, and through a process of assimilation, cause Aboriginal people to cease to exist as distinct legal, social, religious and racial entities in Canada. They described the policy as “cultural genocide”.

[52] The Truth and Reconciliation Commission determined that the legacy of the Residential Schools program includes significant educational, income, health and social disparities between Aboriginal people and other Canadians.

[53] Ms. Broomfield observed that “today, the children and grandchildren of those who went to residential schools … live with the … legacy of broken families, broken culture and broken spirit.”

[54] Intergenerational effects include communication barriers, the absence of familial affection, discomfort expressing love for children in physical ways, addictive and self-destructive behaviours and children being taken into custody by Children’s Aid Societies.

Intergenerational Trauma

[55] Both of the defendant’s paternal grandparents attended government-run schools. His grandmother attended a residential school, while his grandfather attended a day school.

[56] The defendant’s father reported that his childhood was horrible due to his parents’ drinking and abuse. That same pattern of alcoholism and spousal abuse was repeated in the defendant’s father’s life.

[57] The defendant’s mother reported that her relationship with the defendant’s father was an abusive one, even when she was pregnant.

[58] The defendant’s father was in and out of jail when the defendant was a child. He abused alcohol. He got violent when he was drinking. The family struggled financially. The defendant’s parents eventually separated when he was eight years old. His father subsequently attempted to commit suicide.

[59] The defendant experienced through his formative years: physical abuse, exposure to violence against his mother; living with his mother’s mental health issues; exposure to his father’s abuse of alcohol; and his father’s multiple incarcerations.

[60] Ms. Broomfield noted, at para. 13 of her report:

The legacy of the residential school experience has been well-documented and is clearly linked to symptoms of post-traumatic stress disorder, as well as to a wide range of social problems, including addiction and physical and sexual abuse.

…[f]amily violence and abuse in Aboriginal communities has its roots, at least in part, in historical trauma and in the social realities created by those historical processes.

The Defendant’s Circumstances

[61] The defendant did not complete high school. At age 19 he began to work at the Smoke Shop at Rama. There he met AC, who would become his girlfriend and eventually the mother of his daughter, who was born in May 2020. Their relationship ended in 2021. Following the defendant’s conviction for the index offences, AC has apparently cut off contact between him and his daughter.

[62] The defendant presently resides with his mother near Orillia. He is employed on a full-time basis as a labourer working with plastic rolls.

[63] The defendant has mental health challenges. He suffers from depression and, arguably, PTSD. He has recently been hospitalized for mental health reasons.

[64] He has a criminal record. In 2011 he was convicted of assault, though I am not aware of the underlying circumstances.

The Impact of the Offences

[65] The offences have had a profound impact on the complainants and their immediate family. Each of the complainants filed a victim impact statement, as did their mother.

[66] PWC said she looked up to the defendant and trusted him. They had good times together, but he destroyed those. She did not deserve what he did to her. She now has a problem trusting people. Her family is not the same. She and EC are distant from one another and do not really talk. She is fearful of going out into town because she may run into the defendant. She has struggled in school.

[67] EC said that her whole life has changed. The defendant took her childhood from her and she is a different person because of this. She hates to be alone with her constant thoughts about what happened. She suffers from depression and anxiety, she has a difficult time sleeping, and experiences panic attacks. Her schooling has been negatively affected.

[68] The complainants’ mother confirmed that the complainants do not like to leave the home. She too has trust issues and sleepless nights as a result of what happened. Their family has been deeply affected. She says the defendant has destroyed EC, whom she is now distanced from. Even her son has been impacted – he has blamed himself for failing to protect his sisters.

[69] There may well, of course, be long-term effects of the offences that we cannot know from our current vantage point. In its recent, seminal decision in R. v. Friesen, 2020 SCC 9, the Supreme Court observed that sexual violence against children frequently has long-term effects on victims. They noted, at para. 81, that those effects include difficulty forming loving, caring relationships in adulthood, an increased likelihood of engaging in sexually abusive conduct towards children themselves, and an increased likelihood of struggles with substance abuse, mental illness, eating disorders, depression and self-destructive behaviours. At para. 84, they directed sentencing judges to consider the reasonably foreseeable future harm that may only materialize later in the child’s life when assessing the gravity of the offence.

The Principles and Purposes of Sentencing

[70] The objectives of sentencing are codified in s. 718 of the Criminal Code (“Cr. C.”) and include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[71] The importance of these individual objectives, and how they interact, varies from case to case. It is well-settled that, in child sexual abuse cases, the key sentencing objectives are denunciation and deterrence. See s. 718.01 Cr. C. and R. v. Friesen, as above, at para. 101.

[72] In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality. Indeed, the starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C.

[73] Proportionality engages two distinct concepts: censure and restraint. See R. v. Ipeelee, as above, at para. 37. It ensures that a sentence reflects the gravity of the offence, promotes justice for victims and ensures public confidence in the justice system. At the same time, it ensures that a sentence does not exceed what is appropriate, in light of the moral blameworthiness of the offender.

[74] The concept of proportionality compels courts to treat like cases alike and to recognize where there are material differences between different offenders and different offences. Section 718(2)(b) Cr. C. specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.

[75] At the same time, the court must recognize that sentencing is an acutely individualized exercise. The court must carefully consider the particular circumstances of the offence and of the offender. Any aggravating and mitigating circumstances must be taken into account.

The Legal Parameters

[76] Pursuant to s. 151 of the Criminal Code, an offender convicted of sexual interference is liable to a maximum sentence of imprisonment for a term of not more than 14 years. There remains “on the books” a minimum punishment of imprisonment for a term of one year. That minimum sentence provision was struck down as unconstitutional, however, by the Court of Appeal for Ontario in R. v. B. J. T., 2019 ONCA 694 at para. 75.

The Parties’ Positions

[77] The Crown seeks a very significant sentence. She asks that the court impose a sentence of 2 years for the offence involving PWC and 8 years consecutive for the offence involving EC.

[78] Crown counsel submits that there are a great many aggravating circumstances present here that warrant a substantial sentence. She notes that the defendant was in a position of trust with respect to the two complainants, both of whom were regularly left in his care. He took advantage of their vulnerability and abused them in locations where they should have felt safe. The offences, she says, robbed the complainants of their innocence.

[79] The Crown relies, of course, on the recent Supreme Court ruling in R. v. Friesen, where the court held that sentencing ranges for cases involving the sexual abuse of children have historically been too low and need to increase. The Supreme Court directed that sentencing judges must give effect to (1) the inherent wrongfulness of these types of offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences.

[80] The Crown seeks a number of ancillary orders as well including:

(a) A DNA order on both counts 2 and 4;

(b) An order that the defendant comply with the provisions of the Sex Offender Information Registration Act for life;

(c) A lifetime weapons prohibition under s. 109 of the Criminal Code; and,

(d) A lifetime order, under s. 161 of the Criminal Code, prohibiting the defendant from attending at specific locations where children under the age of 16 are likely to be present and from interacting with children under the age of 16 in specific ways.

[81] Defence counsel urges the court to impose a substantially lighter sentence than that proposed by the Crown. He acknowledges deterrence and denunciation are the principal sentencing objectives in this case. But in his submission, those objectives can be achieved with a sentence of 18 to 24 months.

[82] Defence counsel points to a number of circumstances he views as mitigating, including:

(a) The defendant was relatively youthful, at 25 years old, at the time of the offences;

(b) The defendant is Indigenous and has been impacted by the tragedy of the Residential Schools system. His paternal grandmother attended a residential school and his paternal grandfather attended a government-run day school. Their experiences impacted significantly on their lives, the life of the defendant’s father, and in turn, the defendant’s life. It is readily apparent that there is intergenerational trauma in play;

(c) There was a single, non-invasive incident with PWC;

(d) There were multiple incidents with EC, but they occurred over a relatively short period; and,

(e) The defendant is a productive citizen. He has full-time employment and a two-year-old daughter.

[83] Defence counsel further submits that while the Supreme Court’s direction in Friesen is clear, it must be noted that on facts not dissimilar to the ones here, a two-year sentence was imposed in that case.

[84] The defence does not take strong objection to the ancillary orders sought, save to submit that none of the ancillary orders should be for life, but rather limited to 10 years.

Discussion

[85] The determination of a just and fit sentence usually begins with a search for an applicable sentencing range. Sentencing ranges aid in realizing the goal of proportionality and ensuring that like cases are treated alike.

[86] In the case of sexual offences against children, the applicable range of sentence is in flux as a result of the Friesen decision. There is no doubt that the yardsticks are moving and that they are moving towards more significant sentences. It remains premature, in my view, to say with any confidence, what the post-Friesen range for sexual interference is.

[87] Friesen does offer guidance, however, as to where the appropriate range ought to be. At the outset of the ruling, the court emphatically instructed that sentences for offences against children must increase, saying, at para. 5:

…[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.

[88] They went on to note, at para. 114, that while it is not the function of that court to set ranges, they considered it important to send the following message:

…[T]hat 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.

[89] The Supreme Court left no doubt that sexual offences against children are grave offences with profound and long-lasting consequences for the children victimized by them. They highlighted a number of compelling factors engaged in the sentencing process for offenders who commit sexual offences against children. These include:

(a) Sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. Sentences must reflect the “life-altering consequences” that can and often do flow from sexual violence (Para. 74);

(b) The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers and communities (Para. 76);

(c) The wrongfulness of the exploitation of children is always relevant to the normative character of the offender’s conduct and thus the gravity of the offence (Para. 78); and,

(d) Intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable. The use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions (Para. 90).

[90] Friesen directs that sentencing judges take into account a number of factors when passing sentence for an offence of sexual violence against a child. They include:

(a) The likelihood to re-offend;

(b) The abuse of a position of trust or authority;

(c) Duration and frequency;

(d) Age of the victim(s);

(e) Degree of physical interference; and,

(f) Victim participation.

[91] It is difficult to find similar cases to utilize as comparators to this one, given the relative recency of the Friesen decision. The Crown referred the court to two cases that she submits support the sentence she has proposed.

[92] The first is R. v. T.J., 2021 ONCA 392. The Crown submits that this case is informative of the length of sentence that should be imposed for the offence against PWC. In T.J., the complainant was a six- or seven-year-old female. She was at T.J.’s residence for a sleepover with T.J.’s children. Late at night, T.J. directed the complainant into the bathroom. He took her hands and placed them on his penis. He used her hands to rub his penis. He invited her to put his penis in her mouth. At that point, she pulled away and left the room.

[93] The trial judge sentenced T.J. to 9 months in custody. The Court of Appeal for Ontario described that sentence as demonstrably unfit, noting that it failed to give sufficient attention to the inherent wrongfulness of the conduct, its highly morally blameworthy nature, and the extent of harm to the victim. He further failed to give paramountcy to the objectives of denunciation and deterrence. A 24-month period of incarceration was substituted.

[94] One could argue about minor factual differences between R. v. T.J. and the case at bar. But the main elements appear consistent. There was a breach of trust. The complainants were in the same age bracket. They were each exploited by a person in the role of a caregiver. The touching was relatively non-intrusive and of short duration. The touching was arguably worse in T.J., but only by a slight degree.

[95] The Crown also referred me to the case of R. v. H.S., 2021 ONCA 916, where the Court of Appeal upheld a 4 ½ year sentence imposed on an offender for two incidents of sexual touching by a person in the role of a caregiver. The sentencing decision of the trial judge has not been reported, but I was able to obtain a transcript of it. An acutely sad feature of R. v. H.S. is that the offender is the defendant’s father and the victim, EC. In other words, after moving into the Rama residence with her mother and siblings, EC was sexually abused by both the defendant and his father.

[96] In terms of the offences of HS, the trial judge found that there were two incidents. They occurred when EC was 12 or 13 years old. HS was 47. The first incident occurred on an occasion when EC and her two siblings were in HS’s bedroom watching a movie. HS came into the room. He was wearing shorts but no shirt. He laid down on the bed beside EC. He pulled a blanket over himself and EC. He then grabbed EC’s hand and placed it inside his shorts. She pulled it away after a few seconds. He grabbed it and placed it back on his penis and moved it up and down. She pulled it away again. He then rolled EC onto her side. He pulled his shorts down and also pulled her pants and underwear down partway to her knees. He attempted to put his penis into her vagina. She pulled away but he pulled her back and managed to penetrate her vaginally for a few seconds.

[97] The second incident described by the trial judge occurred on the couch when EC and HS were watching television. HS laid down on the couch and told EC to lay beside him. She did. He pulled a blanket on top of them. EC had her back to HS. He reached over her and put his hand down her pants and rubbed her vagina. He then touched one of her breasts under her sports bra. He put his hand back down her pants and inserted two fingers into her vagina. Someone knocked on the door and the incident ended.

[98] The Crown asked the court to imprison HS for 5-7 years. The defence urged the court to consider a sentence of 2-3 years in the penitentiary, emphasizing the Gladue factors that needed to be taken into account.

[99] As I noted, the trial judge settled on 4 ½ years – a figure upheld by the Court of Appeal. It was broken down as 2 years for the couch incident and 2 ½ years for the bedroom incident.

[100] It is apparent that the facts of the couch incident were more aggravating than the facts surrounding the defendant’s offence in relation to PWC here. But I point out that the trial judge in R. v. H.S. did not have the benefit of the Supreme Court’s decision in Friesen.

[101] It is readily apparent that Crown counsel is looking to push the sentencing range upwards, in keeping with the Supreme Court’s direction in Friesen. There do not yet, however, appear to be many precedents, in similar circumstances, to support the length of sentence she seeks.

[102] A recent decision of Justice Trotter of the Court of Appeal for Ontario on an application for bail pending appeal is somewhat instructive. The case is R. v. M.S., 2022 ONCA 348. The trial judge’s sentencing reasons do not appear to be published, but Justice Trotter’s ruling provides a reasonably comprehensive overview. The circumstances involved an adult male convicted of three counts of sexual interference in relation to three young girls in their early teens. Two of the victims were sisters; the third was their cousin. The appellant and his wife were friends with the families of the victims. The offences included sexual intercourse, attempted intercourse, touching of the victims’ breasts, touching them with his penis and forcing the victims to touch his penis. Threats were made by the offender to the girls in order to ensure their silence.

[103] M.S. was sentenced to a total of 8 years in prison. He appealed and applied for bail pending appeal. His application was rejected on the basis that the proposed grounds of appeal were weak while the public interest in enforceability was strong. In relation to the sentence imposed by the trial judge, Justice Trotter observed that it was “well grounded in applicable authority”, citing R. v. Friesen.

[104] Other recent cases involving sentences in the range sought by the Crown here include R. v. J.F., 2021 ONSC 7613 and R. v. Guindon, 2020 ONSC 6065.

[105] In R. v. J.F., the offender was convicted of sexually assaulting his biological daughter on multiple occasions when she was between the ages of 11 and 15. The assaults included multiple occasions of vaginal intercourse. The fact that it was an incest case was a seriously aggravating factor. Carey J. held that the applicable sentencing range was 6-10 years. Given the repeated and invasive conduct involved and the gross breach of trust, he concluded that an appropriate sentence fell near the “high range set out in Friesen”. He imposed a sentence of 9 years.

[106] R. v. Guindon was an historical sexual assault case. The offender was convicted of indecent assault, sexual assault and buggery. The victim was placed into foster care in the offender’s home when he was about 6 years old. The trial judge found that the offender sexually assaulted the victim on multiple occasions over a number of years. The assaults included touching, oral sex, and masturbation. The Crown sought a 9-year sentence, while the defence argued that 4 years was appropriate. O’Bonsawin J., citing the principles from Friesen, sentenced the offender to 7 years imprisonment.

[107] A case with somewhat less aggravating circumstances than Guindon and J.F. is R. v. Roper, 2020 ONSC 7411. There, the offender was convicted of sexual assault and sexual interference for offences committed against his 9-year-old stepdaughter. The trial judge found three incidents of sexual touching. On the first occasion, the offender put his hand down the victim’s pants and touched her vagina. On the second, he held her on the floor and manipulated her nipples. On the third, he put his hands down the victim’s pants and touched her vagina. He then rubbed his penis against her and pushed it against her vagina.

[108] Citing the age of the victim, the multiple incidents, the serious breach of trust and the impact on the victim and her mother, Bloom J. imposed a sentence of 5 ½ years in custody. The sentence was upheld by the Court of Appeal who observed that the sentence imposed was within the appropriate range. See R. v. G.R., 2022 ONCA 374.

[109] In response to the Crown’s position, defence counsel referred me to a number of decisions that he said supported the continued availability of a reformatory sentence in circumstances similar to those present here. Two of the three cases referred to me pre-date the Friesen decision.

[110] In R. v. M.K., 2014 ONSC 3130, the offender was convicted of one count each of sexual assault, sexual interference and invitation to sexual touching. The victim of the offences was his stepsister. The offences appear to have occurred when the victim was between the ages of 10-12 and the offender was roughly 21-23. They occurred in the hot tub of the family’s home. The offender touched the victim’s vagina over the top of her bathing suit on a number of occasions and, once, touched her vagina directly. The victim touched the offender’s penis – sometimes over his bathing suit and sometimes under. The conduct was repeated as many as 100 times.

[111] The Crown sought a sentence of a minimum of three years. The defence suggested 8-10 months would be appropriate. Gilmore J. described M.K.’s conduct as falling at the “lower end of the sentencing range” and imposed a total sentence of 2 years less 1 day. The sentence was upheld on appeal. See R. v. M.K., 2015 ONCA 563.

[112] In R. v. F.F., 2016 ONSC 5366, the offender was convicted of sexually assaulting his two nieces. The offender was between the ages of 22 and 28 at the relevant times and the victims were between 11 and 13 years of age. The offences against each victim were similar. They involved the offender lying behind the victim on a couch and rubbing his erect penis on her behind. Other times he rubbed the victims’ breasts over their shirts. There were multiple incidents.

[113] The offences were historical in nature. By the time F.F. was sentenced, he was 55 years old. The Crown sought a sentence of 18-24 months. The defence sought a conditional sentence of 9 months. O’Marra J. imposed a total sentence of 12 months in custody, representing six-month sentences with respect to each victim, imposed consecutively.

[114] In my view, the pre-Friesen cases cited by defence counsel are of little assistance. While they may have reflected the sentencing ranges in place at the time they were released, I think both the sentences imposed in F.F. and M.K. would now be considered too low, in light of the Supreme Court’s direction in Friesen.

[115] R. v. Green, 2022 ONSC 3786 is a more recent case cited by defence counsel. The offender was a 55-year-old teacher. The victim, a 14-year-old student. The offender asked the student to stay after class. He asked if she was sexually active and told her she should look for a boyfriend like him. He squeezed her thigh and ran his hand up her leg. On a second occasion, he told her she needed someone, was sensitive and had a good heart. He placed his hand on her chest and moved it to her breast. He told her not to tell anyone what happened.

[116] The Crown urged the trial judge to impose a 3-year sentence on Mr. Green, while defence counsel suggested an appropriate sentence would be 12 months. The trial judge considered the circumstances to be at the low end of the scale of seriousness. She considered the case to be roughly on par with the Court of Appeal decision in T.J., but she determined that Mr. Green required a lengthy period of supervision in addition to a custodial sentence. In the result, she imposed an 18-month custodial sentence plus 3 years of probation.

[117] Obviously, the offence of sexual interference can be committed in a wide range of circumstances. The particular circumstances of the offending and of the offender are what generally inform the differences in sentences seen in the caselaw.

[118] In each case, close attention needs to be paid to the aggravating and mitigating circumstances present. In addition, the court must consider the factors specifically identified in Friesen. Turning to those factors now, I find as follows:

(a) The defendant abused a position of trust. It may not be as serious a breach of trust as would be the case with a parent who sexually abuses a child or a stepchild. Relationships of trust exist on a spectrum. Nevertheless, I do find that the defendant stood in a position of trust in relation to both complainants. He was much older than them and was entrusted, from time to time, with their care. Each of the incidents giving rise to the charges occurred while one or the other of the complainants was in his care;

(b) With respect to PWC, there was only one, brief incident. Though all incidents of sexual violence are serious, I would place it at the lower end of the spectrum of seriousness. With respect to EC, on the other hand, there were multiple incidents that took place over a period of months;

(c) The complainants were young girls. PWC was only about 7 and EC was no older than 14;

(d) The incident with respect to PWC involved minor physical interference. The incidents involving EC were far more intrusive and included forced oral sex and vaginal intercourse. These incidents involved significant violence and domination; and,

(e) Victim participation is not a live issue in this case.

[119] The Friesen factors serve to illuminate the presence of aggravating circumstances. In particular, the breach of trust, the number and age of the victims, the multiple incidents of sexual wrongdoing, and the level of physical intrusion (at least with respect to EC) are all aggravating. In addition to those circumstances, I find the following to be aggravating:

(a) The offences took place in locations where the complainants should have felt safe and protected; and,

(b) The offences have had a profound impact on the complainants and their extended family.

[120] By way of mitigation, I note that the defendant was somewhat youthful at the time of the offences, but not so youthful that it is a significant mitigating factor. His counsel urged me to consider him a youthful first-time offender, but he does in fact have a prior conviction for assault on his record.

[121] The principal mitigating circumstance here is the application of the Gladue factors. I have to give very serious consideration to those factors and their application to this case. It is not enough to simply note them. They must be put into application.

[122] The tragic history of the Residential Schools policy has had a direct impact on the defendant and his extended family. He grew up in a dysfunctional family, with an alcoholic and abusive father who was in and out of prison. His mother suffered with mental health challenges. It is impossible not to recognize the defendant’s behaviour as the continuation of a cycle of abuse that began with his grandparents. The intergenerational trauma that has resulted from the Residential Schools tragedy and other historical and systemic factors unique to Indigenous offenders is patently evident in the defendant’s family.

[123] Moreover, the defendant’s personal history features limited educational attainment, a low income, and mental health issues, including depression. All of these features are recognized as long-term effects of the Residential Schools system.

[124] I can and do take judicial notice of the history of colonialism, displacement and Residential Schools and of how that history continues to haunt Indigenous communities. The defendant is not required to show a causal connection between that history and his offending, but here the connection is readily apparent.

[125] The core question is to what extent does a consideration of the Gladue factors impact on the sentence to be imposed?

[126] Chief Justice Wagner observed in R. v. Lacasse, 2015 SCC 64, that sentencing is one of the most delicate stages of the criminal justice process. That is certainly true in cases like this where the principles enunciated in Gladue butt up against the principles enunciated in Friesen.

[127] Friesen underscores the gravity of offences of sexual violence against children. These offences are so grave because of the serious and long-lasting consequences they have on their victims.

[128] It is readily apparent here that the offences against EC have had very profoundly negative consequences on her. She suffers from depression, anxiety and trust issues. Her schooling has been affected. And she is having difficulty maintaining close and loving relationships with her immediate family members. I am satisfied that she is at serious risk of experiencing many of the long term effects of sexual violence identified in Friesen, including a difficulty forming loving, caring relationships in adulthood and an increased likelihood of struggles with substance abuse, mental illness, eating disorders, depression and self-destructive behaviours.

[129] JWC has also been significantly impacted by the offence against her, though it is premature to know to what extent she will be impacted in the long run.

[130] The Gladue principles do not in any way lessen the gravity of the offences. To the extent that they may mitigate any sentence to be imposed on the defendant, it must be because of a tendency to reduce the moral blameworthiness of the offender.

[131] In Friesen, however, the Supreme Court emphasized that the moral blameworthiness of those who commit offences of sexual violence against children is high because children are so vulnerable. They observed that the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions.

[132] The gravity of the offences committed here – particularly against EC – is very significant. And the defendant’s moral blameworthiness is also significant. The complainants were two young girls who, with their mother and brother, had moved into the home of the defendant and his father with the intention of forming a new family unit, and in the hope of a better life. Instead of that better life, they were sexually abused – EC repeatedly.

[133] There is no way, in my mind, that the defendant did not appreciate the wrongfulness of his actions.

[134] Justices Cory and Iacabucci held in Gladue that the more serious and violent the crime, the more likely it will be that the terms of imprisonment will be the same for similar offences and offenders, regardless of the offender’s Indigenous status. The offences here – particularly against EC – cannot be described as anything less than acutely serious.

[135] Having said that, the defendant is a product of historical discrimination and mistreatment of Indigenous peoples and has been directly impacted by the intergenerational trauma of the Residential Schools program. While he is not entitled to a race-based discount, he is entitled to have that unique context factored into any sentence to be imposed.

[136] In my view, the sentence sought by the Crown with respect to the offence against PWC – two years – is in the appropriate range, in light of the Court of Appeal’s decision in J.T. as well as the sentence imposed in Green. It is the starting point of the sentence to be imposed here, subject to certain mitigating factors which I will come to momentarily.

[137] The sentence sought by the Crown with respect to the offence against EC also falls, in my view, within a range applicable to sexual offences by an adult against a child where there is a breach of trust and where there are multiple incidents of sexual offending involving intrusive acts. It is also consistent with the length of sentences mentioned in Friesen.

[138] That said, my view of the limited post-Friesen caselaw suggests that the circumstances here fall a little short of the aggravating circumstances present in the cases that support an 8-year sentence, for instance, R. v. J.F. and R. v. Guindon.

[139] In my view, an appropriate sentence for the offending involving EC is 6 years, again subject to the application of the Gladue principles and other mitigating factors, which I will address momentarily.

[140] My global starting point for the two offences, considered together and imposed consecutively is therefor 8 years. I reduce that global sentence, however, to 7 years on account of the following factors:

(a) This is the first sentence of imprisonment imposed on the defendant;

(b) The totality principle. The defendant remains youthful, has been a contributing member of society and has a child. There are reasons to be hopeful that he can turn his life around. The sentence imposed remains significant and, in my view, anything more would be crushing; and,

(c) My consideration of the Gladue factors and their impact on the length of sentence to be imposed.

[141] The global sentence of 7 years will be reflected as 1.5 years for the offence involving JWC and 5.5 years for the offence involving EC.

[142] I impose the following ancillary orders:

A. A DNA order on both counts 2 and 4;

B. A s. 109 weapons prohibition for life on both counts 2 and 4;

C. A SOIRA order for life, given the two convictions and the application of s. 490.013(2.1) of the Criminal Code; and,

D. An order under s. 161, for a period of 10 years, that prohibits the defendant from:

(a) 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;

(b) being within 2 kilometres of any dwelling-house where PWC or EC ordinarily reside;

(c) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and,

(d) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless he does so under the supervision of another adult of at least 25 years of age.

C. Boswell J.

Released: September 9, 2022