SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 21-056 (Owen Sound)
DATE: 2022-12-19

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

-and-

Mark Ross Monteath

A. Camilletti, for the Crown

H. Thompson, for Mr. Monteath

Justice R. Chown

REASONS FOR SENTENCE

These reasons are subject to a publication ban under s. 486.4 of the Criminal Code prohibiting the publication, broadcast, or transmission, in any way, of any information that could identify the victims.

1Mr. Monteath has been found guilty of:

1. sexual exploitation (touching) (s. 153(1)(a));

2. sexual exploitation (inviting touching) (s. 153(1)(b));

3. sexual assault (s. 271);

4. invitation to sexual touching (s. 152); and

5. failure to comply with an order of prohibition (s. 161(4)).

2The first four charges were the subject of the trial. Mr. Monteath pled guilty to the fifth charge. The parties agree that no conviction shall be entered for count 3, the charge under s. 271, but rather that charge will be stayed under the Kienapple principle. There will be convictions entered on the other four charges.

The Parties’ Positions

3The Crown seeks a global sentence of twelve years. The defence suggests a sentence of four to five years is appropriate.

Facts of the OffeNces

4The facts are set out in detail my judgment from the trial: R. v. Monteath, 2022 ONSC 4851. Briefly, at the time of the offences, Mr. Monteath was subject to a lifetime order of prohibition that prohibited him from having any contact with a person who is under 16 unless under the supervision of a person the court considers appropriate. He was on probation and the terms of his probation included a term that he was “Not to be in any dwelling, residence, motel/hotel room, cottage or mobile home, including any outdoor space of these areas, where there is a child under the age of 16 years of age present, unless the child’s parent or guardian is also present and that parent or guardian is fully aware of your criminal record having been made aware of same by the Probation Officer.”

5The victims, K and T, were sisters. K was 16 at the time of the alleged offences. T was 13. Mr. Monteath was 63. I want to point out that in my reasons for judgment I made an error when I said Mr. Monteath was 59 at the time.

6K was looking for a job and applied at the liquidation store where Mr. Monteath worked. Mr. Monteath was in a position to offer K a job, and he did so. However, K only worked two shifts before being fired because the owner of the store did not want part-time employees.

7Mr. Monteath lived in the same housing complex as K and T. He told them that he would pay them to do work for him. K went to Mr. Monteath’s apartment somewhere between four and ten times. T went with her on most of these occasions.

8Mr. Monteath said he was going to have K help him build a desk, but she was never in fact asked to do this. He said he had business ideas and that he would have K and T help him with his business. He had K pour him alcoholic drinks. K and T did not do any actual work for Mr. Monteath. However, Mr. Monteath paid them for each time they went to his apartment. During the visits to his apartment, Mr. Monteath engaged the girls, and especially K, in sexualized discussions.

9On one occasion during Christmas break of 2020, or shortly after, Mr. Monteath gave K and T a ride home from across town.

10On the second last visit, which took place between January 9 and January 12, 2021, Mr. Monteath supplied two cans of Smirnoff Ice to K and invited T to drink. K only allowed T to have a capful. He encouraged the girls to stay and to drink more. As they were getting ready to go, he told T to suck K’s toes and offered her $5 if she would. When she refused, Mr. Monteath sucked K’s toes in a sexualized manner.

11Only K went to the last visit at Mr. Monteath apartment, which was on Saturday, January 16, 2021. T was at a friend’s for a sleepover. Mr. Monteath asked K to have a drink with him. He offered her a gin. She drank part of it. Mr. Monteath played “caps,” a drinking game, with K. Mr. Monteath engaged K in sexual conversation. He persuaded K to bet on the caps game, and if she lost, she would have to give him a leg massage. She lost. Mr. Monteath had K massage his upper leg. His pants were removed but his boxers were on. This activity was interrupted when K’s youngest sister, R, came and knocked on the door.

Mr. Monteath’s Record

12Mr. Monteath’s criminal record is a seriously aggravating factor for sentencing. The Court of Appeal said in R. v. Taylor, 2004 7199 (ONCA), at para. 39:

it is wrong to punish a person for his or her past crimes by using a criminal history in effect to impose a “double punishment” on that person, i.e., to impose a sentence for the offence in question and then to add something more for the criminal record. Thus, it is not proper to treat the record of the accused as an aggravating factor in the sense that the trial judge is entitled to raise the sentence beyond what would otherwise be a fit sentence. However, a criminal record, depending on its nature, may be an “aggravating” factor in the sentencing context in the sense that it renders a stiffer sentence “fit” in the circumstances because it rebuts good character and because of what it tells the trial judge and society about the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism. [Citations omitted.]

13In this case, Mr. Monteath’s record includes the following relevant convictions:

Date

Offence

1996-07-31

• Invitation to sexual touching

1998-08-31

• Sexual assault

2010-01-14

• Sexual exploitation x 3

• Makes, prints, publishes or possesses for the purpose of publication any child pornography

• Fail to comply with recognizance x 3

• Sexual exploitation

2018-10-10

• Invitation to sexual touching x 2

14Some of the details of the 1996 and 2018 convictions were made available to me at the sentencing hearing. The similarities between these prior offences and the offences I convicted Mr. Monteath of are gravely concerning.

15The details available to me are in the form of a transcript of the December 20, 2017 reasons for judgment of K. Moore J. There were two complainants in that matter. Moore J. convicted Mr. Monteath in connection with one of the complainants, whom I will refer to as C.

16Mr. Monteath had asked C to go to his motel to do some work for him and she attended on August 19, 2015. C did some work for Mr. Monteath folding papers and putting them in envelopes. C was 13 years old.

17The evidence of C included:

• Mr. Monteath gave her “Vodka Ice.”

• Mr. Monteath invited her to play caps. C was not familiar with the game, but Mr. Monteath showed her the game and they played it.

• Mr. Monteath asked C to give him a leg massage as he had blood clots in his legs.

• Mr. Monteath took his pants off and was sitting in his boxers.

• C massaged his calf and then he moved her hand up and said he wanted her to rub his thighs.

• Mr. Monteath engaged C in sexualized conversation.

18Moore J. specifically made findings that:

• C went to Mr. Monteath’s to work knowing that she would receive $100 for school supplies.

• Mr. Monteath provided C with alcohol.

• Mr. Monteath introduced C to the game of caps.

• Mr. Monteath asked her to remove her bra and hang it on the chair.

• Mr. Monteath asked C to massage his legs and when she rubbed his calf he moved her hand to his thigh. He’d removed his pants and was in his boxers while C was massaging his leg.

• Mr. Monteath told her while she was massaging him that if she could make his doofus jump she could get $100, and if she could get him in the zone she would get what she wanted.

• Mr. Monteath made comments about C’s sister giving good blow jobs.

• While driving C home. Mr. Monteath suggested to C that she perform oral sex on her boyfriend and invited her to demonstrate either a blowjob or a hand job on his thumb which he placed near her face.

19A similar fact witness testified before Moore J. It is clear from the description of this evidence that the witness was the victim in Mr. Monteath’s 1996 or 1998 conviction (probably the 1996 conviction). This witness’s testimony to Moore J. included the following:

• She was 14 years old and in grade 9 at the time of the offences.

• Through friends of hers she learned about a potential babysitting job for Mr. Monteath for his young daughter. She and her friends went to Mr. Monteath’s on a few occasions.

• The very first time there, Mr. Monteath introduced her and her friends to a drinking game called caps.

• On the one occasion when the victim went on her own to Mr. Monteath’s, a little girl was there, but Mr. Monteath sent her to her room. This victim and Mr. Monteath talked and played the caps game. She got very drunk.

• She was getting very drunk when he asked her to take her bra off, and a few times she was asked to lift up her shirt to show her breasts.

• He then provided lotion and asked her to sit on his couch and massage his upper leg as he was sore.

• He took her hand and guided her through massaging his genital area and penis until he possibly ejaculated. She was not sure about the ejaculation as there was also lotion. She was very scared and very drunk. She went into the bathroom afterwards and was crying.

• Mr. Monteath drove her partway home. She got home, avoided her mother and called her friends. She met those friends, told them what happened. Although one of those friends agreed not to tell, she did tell her parents and the victim’s mom became aware.

• The police then became involved. The victim eventually had to go to court but did not testify. Mr. Monteath pled guilty. She believed he was sentenced to 90 days in jail that he served on weekends.

20I should point out that none of this information was available to me at the trial.

21Until now, Mr. Monteath has not received a long jail sentence. He received a suspended sentence and two years probation for the 1996 invitation to sexual touching. He received 90 days intermittent and two years probation for the 1998 sexual assault conviction. Again, I suspect C’s evidence relates to the 1996 conviction, but it could be the 1998 conviction. Whichever one it is, I have no details about the other conviction.

22I have a few details about the 2010 convictions from a presentence report I will discuss in more detail below. For current purposes, that report says the following about the 2010 convictions:

The subject’s Ministry file indicated he was particularly successful in the sales of wholesale plumbing items in 2000, and moved from employer to employer as various companies offered him increasing opportunities. One plumbing company in particular set him up as a manufacturer’s agent, with his own company. The subject indicated he was making more money than he ever had, and that the sense of power this success gave him, was what led to 2010 convictions and the demise of the company. The subject’s Ministry file indicated he had recruited minors to work for him, and was in a position of authority over them when the sexual offences were committed in the workplace.

23The report also says that alcohol was a factor in the 2010 convictions. Mr. Monteath received two years concurrent and two years probation for these convictions.

24For the 2018 convictions, Mr. Monteath received 13 months and probation of three years on the charges tried by Moore J. as well as the prohibition order that he has now pled guilty to breaching. In addition, he had served seven months of pre-sentence custody.

Pre-Sentence Report

25No pre-sentence report (PSR) has been prepared specifically for this sentencing hearing. However, as stated above, the PSR prepared for Moore J. has been made available to me. It is dated December 20, 2017.

26The PSR describes that Mr. Monteath had a good childhood. He has a high school education plus some college courses and some sale courses. The report briefly describes Mr. Monteath’s two marriages, one common-law relationship and one further romantic relationship. At the time of the current offences, Mr. Monteath was not involved in a relationship and was not in a parental role to any children.

27The PSR further describes that Mr. Monteath’s longest term of employment was as a sales manager, which lasted approximately five years.

28Mr. Monteath told the probation and parole officer who prepared the report that he has never had a problem with alcohol consumption, although his Ministry file indicated he previously admitted to abusing alcohol as a coping mechanism following the dissolution of his second marriage. Alcohol has been a factor in at least some of his prior convictions, and was a factor here.

29The report states:

The subject denied any interest in voyeurism, sadism/masochism, cross dressing, or other paraphilias. That being said, his criminal record suggests a deviant sexual preference as both past and current victims were minors. The subject’s Ministry file indicated feelings of inadequacy and his fear of trusting women, led the subject to seek out teenage girls, which gave him a sense-of power and control. He indicated that [as] opposed to age appropriate women, teenage girls required no commitment or effort, and they appeared to only want money and alcohol.

The subject’s Ministry file indicated that although the subject did not use any violence, he would abuse his position of authority over the victim, and offer them drinks and money to win their trust and/or facilitate his sexual offending behaviours. He also admitted to deliberately making others feel left out, if they did not participate; which he acknowledged as a method of coercion. To his credit, according to his Ministry file, the subject acknowledged using a variety of cognitive distortions in order to justify his sexual offending behaviours.

Principles of Sentencing

30Under the Criminal Code, s. 718,

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.

31Under s. 718.1, it is a fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

32Under s. 718.01, “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.”

Sentencing in Sexual Offences Against Children

33The Supreme Court in R. v. Friesen, 2020 SCC 9 identified six significant factors to determine a fit sentence in sexual offences against children. This list is not exhaustive and is not a checklist, but the discussion at paras. 121 to 154 is helpful.

1. Likelihood to reoffend

34At para. 123 of Friesen, the court said:

Where the sentencing judge finds that the offender presents an increased likelihood of reoffending, the imperative of preventing further harm to children calls for emphasis on the sentencing objective of separating the offender from society in s. 718 (c) of the Criminal Code. Emphasizing this objective will protect children by neutralizing the offender’s ability to engage in sexual violence during the period of incarceration. The higher the offender’s risk to reoffend, the more the court needs to emphasize this sentencing objective to protect vulnerable children from wrongful exploitation and harm. [Citation omitted.]

35Here, Mr. Monteath’s record indicates a high likelihood that he will reoffend. I hope that, wherever he is imprisoned, there will be programming to assist him in controlling his sexual impulses. However, to the extent that previous programming helped, its impact did not last. The 2017 PSR noted:

The subject’s Ministry file further indicated the subject completed extensive programming for sexual offending while incarcerated at Warkworth Institution, as well as the first level of Sexual Offending Relapse Prevention programming offered by the Ministry. While incarcerated at Warkworth Institution, the subject completed the Moderate Intensity National Sex Offender Treatment Program. The program started on October 12, 2010 and ended on March 24, 2011 and consisted of daily two and one-half hour group sessions, four or five days a week. The subject was described as an active participant in discussions since the beginning of the program, and made efforts to personalize the material on a consistent basis. He was able to use the Monitor, Challenge, Modify (MCM) model of cognitive restructuring to change his negative thinking and behaviours, and indicated he continued to utilize MCM during his Pre-Sentence Report interview. Moreover, his Ministry file indicated the subject showed a good level of insight into his own tendencies, and how they affected his risk to reoffend. The subject’s avoidance strategies were deemed to be fairly good, and included a lot of things to avoid such as teenage girls, blaming others for his problems and being in a position of authority.

36Despite this relatively positive picture in 2011, Mr. Monteath reoffended. Mr. Thompson argued that the treatment was effective because Mr. Monteath’s record contains no convictions from 2011 when he completed this programming until 2018. However, the offence date for 2018 convictions was August 19, 2015.

37I do not have information one way or the other as to whether Mr. Monteath took any programming while in prison in 2018. What I do know is that after he was released and while he was still on probation for those convictions he committed the offences here, using the same modus operandi he had used before.

38He completed his custodial sentence on July 1, 2019 for the 2018 sentencing and his probation order did not expire until June 30, 2022. He was out of custody for only about 1½ years at the time he committed the offences before me.

39Further, Mr. Monteath must have known, from his past experience and from the circumstances of his crimes, that there was a strong likelihood he would be caught. He was violating his probation and faced an immediate return to prison. Despite this, over a period of about a month, he violated his order of prohibition and his probation, groomed his victims, and committed the offences. This indicates a profound and deep-rooted lack of self-control.

40It must be concluded that the likelihood of Mr. Monteath reoffending is high.

2. Abuse of a position of trust or authority

41The court in Friesen noted, at para. 125, that trust relationships arise in varied circumstances and should not all be treated alike. It was submitted on behalf of Mr. Monteath that this was not the highest breach of trust. In fact, there were elements in the evidence that in fact showed a level of distrust by the victims towards Mr. Monteath.

42While I agree with this position, grooming was a factor here. The court in Friesen noted, at para. 125, that grooming can build a relationship of trust. Indeed, that is the design behind it. The breach of trust that occurs when a close family member commits a sexual offence by a minor is shocking. At the same time, grooming is calculated and predatory. It is aggravating because the patient effort that grooming requires demonstrates planning and deliberation. Throughout the process, Mr. Monteath had time to reflect on his behaviour and recognize the likely harm it would cause, but despite this, he did not stop.

43The court in Friesen further noted, at para. 129, that the abuse of a position of trust is aggravating because it increases the offender’s degree of responsibility. It is also aggravating because it is likely to increase the harm to the victim. That is a factor here because the victims have both stated they can no longer trust men.

3. Duration and frequency

44The court in Friesen noted, at para. 132, that the harms to the victim can be more pronounced where the sexual violence is repeated and prolonged. This is not a strong element here.

45Here, the offences of invitation to sexual touching (s. 152) and the two counts of sexual exploitation (s. 153(1)(a) and (b)) occurred on only the second last and last visits to Mr. Monteath’s apartment although, as indicated, Mr. Monteath was patiently building towards this goal.

4. Age of the victim

46The court in Friesen, at para. 135, said that moral blameworthiness is greater when the victim is particularly young. However, the court went on to say, at para. 136, that, historically, disproportionately low sentences have been imposed 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.” [Citations omitted.]

5. Degree of physical interference

47The offences in this case did not involve any touching of genitals or breasts. None of the victims’ clothing was removed except for K’s sock. It was submitted on behalf of Mr. Monteath that this was not the most intrusive sexual touching or assault.

48The last event was interrupted. Mr. Monteath’s pants were off and he had K rubbing his upper thigh.

49The court in Friesen, at para. 138, acknowledged that the degree of physical interference is a recognized aggravating factor.

This factor reflects the degree of violation of the victim’s bodily integrity. It also reflects the sexual nature of the touching and its violation of the victim’s sexual integrity.

The degree of physical interference also takes account of how specific types of physical acts may increase the risk of harm. For instance, penile penetration, particularly when unprotected, can be an aggravating factor because it can create a risk of disease and pregnancy. …

50However, at para. 141, the court cautioned against overemphasizing the importance of the actual physical acts that occurred:

[A]ttributing intrinsic significance to the occurrence or non-occurrence of penetrative or other sexual acts based on traditional notions of sexual propriety is inconsistent with Parliament’s emphasis on sexual integrity in the reform of the sexual offences scheme.

51And, at para. 142:

[C]ourts should not assume that there is any clear correlation between the type of physical act and the harm to the victim. … Judges can legitimately consider the greater risk of harm that may flow from specific physical acts such as penetration. However, … an excessive focus on the physical act can lead courts to underemphasize the emotional and psychological harm to the victim that all forms of sexual violence can cause. Sexual violence that does not involve penetration is still “extremely serious” and can have a devastating effect on the victim. This Court has recognized that “any sexual offence is serious,” and has held that “even mild non-consensual touching of a sexual nature can have profound implications for the complainant.” The modern understanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only on bodily integrity. [Citations omitted.]

52And, at paras. 82 and 144:

[A]ny manner of physical sexual contact between an adult and a child is inherently violent and has the potential to cause harm.

[W]e would strongly caution courts against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation.

53In this case, it is important not to downgrade the acts that did occur or to suggest that they were not harmful. They were serious, and they were harmful.

6. Victim participation

54The court in Friesen emphasized, at para. 153, that “In no case should the victim’s participation be considered a mitigating factor.”

55And, at para. 154: “[A] victim’s participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity between children and adults.” [Citation omitted.]

56The victims here laughed a lot when Mr. Monteath took K’s toes and named them, and then licked between her toes and stuck them in his mouth. Also, K was persuaded to rub Mr. Monteath’s upper thigh with massage oil. These facts in no way mitigate what Mr. Monteath did. If anything, their participation is likely to complicate the way these adolescent victims will remember and process these crimes over time rather than mitigate the consequences of the crime.

Sentences Imposed in Similar Cases

57A principle that I must take into consideration is that an offender’s sentence should be similar to the sentences imposed on similar offenders for similar offences committed in similar circumstances: Criminal Code, s. 718.2(b).

58However, cases of sexual offences against children decided before Friesen was released in 2020 must be read carefully. Maximum sentences for various offences have increased significantly in successive revisions to the Criminal Code. “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”: Friesen, at para. 100. And at para. 108 and 110 of Friesen, the court said: “Courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose a proportionate sentence. … [T]here has been a considerable evolution in Canadian society’s understanding of the gravity and harmfulness of these offences.”

59The parties submitted numerous authorities to me. Because of the comments in Friesen, counsel rightly focused on the most recent cases. I was advised that, in part because of this, it is difficult to find cases that are factually similar to this case.

60The sentencing cases that the defence referred me to include: R. v. Shilling, 2021 ONCA 916; R. v. Senwasane, 2022 ONSC 120; R. v. R.I., 2022 ONSC 1615; R. v R.G., 2021 77633; R. v. R.F., 2020 ONSC 7931; R. v. R.A., 2022 ONSC 1161; R. v. M.O., 2022 ONSC 3162; R. v. K.R.S., 2021 ONSC 8018; R. v. K.K., 2020 ONSC 7198; R. v. Green, 2022 ONSC 3786; R. v. Eichner, 2021 ONSC 520; R. v. D.A., 2021 BCPC 317; R. v. Buschmeyer, 2021 ABQB 1008; R. v. Benson, 2022 ONCJ 370; R. v. A.D., 2022 ONCJ 261; R. v. T.J., 2021 ONCA 392; R. v. O’Neill, 2021 ONSC 5025; R. v R.M., 2019 ONCJ 435; R. v. Excell, 2015 ONCA 704; R. v. Bansfield, 2008 ONCJ 383, and R. v. I.P., 2020 ONSC 1754.

61In most of these cases, the offender had no relevant criminal record, and the likelihood of reoffending was low. Such cases offer limited guidance to what would be a fit sentence in this case. However, several of these cases did involve offenders with relevant criminal records.

62In Shilling, the accused was convicted of two counts of sexual interference with an 11- to 14-year-old victim. He was in a position of trust. He had a prior conviction for sexual assault. He received a sentence of 4.5 years, and this was upheld by the Court of Appeal. There are few other details in the reported decision.

63Buschmeyer, an Alberta Court of Queen’s Bench case, involved a 44-year-old offender with a lengthy criminal record that included convictions for violence, including a 2014 sexual assault, and convictions for breaches of court orders. He was sentenced to 5 years and 9 months in total for two counts of sexual assault, one common assault, three counts of sexual exploitation, and two counts of failing to comply with an order or prohibition. While under an order of prohibition directing him not to have any communication with any person under age 16, Mr. Buschmeyer entered into a relationship with a woman who had children ages 11 and 14. During the relationship, he had sexual contact with the 11 year old by touching her bare chest on one occasion and rubbing her leg and groin region on another. The common assault involved pushing her onto her bed. M.D. Gates J. found that Mr. Buschmeyer was in a position of trust or authority over the victim and that he posed a moderate to high risk of reoffending. Gates J. described the breach of the order of prohibition as flagrant, but did not indicate that there was any deliberate grooming.

64Benson and R.M. are sentencing cases on breach of prohibition convictions. In Benson, the accused had 2007 convictions for 20 counts of sexual assault involving adolescent girls and some women. Following a period of incarceration, he was released in 2008, after which he was bound by a 10-year s. 161 order. His partner opened a home daycare in 2012 and ran it until 2019. Investigation revealed that Mr. Benson had been left alone with children at the daycare on multiple occasions. Mr. Benson was convicted under s. 161 of breaching the order and under s. 171.1 of showing pornography to a four-year old child at the daycare, for the purpose of facilitating sexual interference or invitation to sexual touching. He received a global sentence of two years less a day plus three years of probation.

65In R.M., the accused had a prior record for sexual interference and an associated five-year prohibition order under s. 161. In 2018, three years into the prohibition order, he was in the company of a child under 16, contrary to the order. At the time of this offence the offender was on a probation order that was breached by the same actions. This was treated as an aggravating factor. He became friends and then a partner in a home business with a woman who had a husband and three children. He “fully integrated himself” into the social and professional networks of this couple and was a frequent guest in their home. He stayed with them overnight approximately 12 times and was twice in the company of one of the children with no adult present. There was no evidence that anything inappropriate occurred during these two occasions. The court found that the offences involved “[s]ome level of deception, at least by omission,” and that there was a high degree of moral responsibility on the part of R.M. for his conduct. However, his choices were “situational and not the product of a deliberate course of conduct. He did not plan to be alone with either child, but when the opportunity presented itself in the natural course of everyday events, he failed to remove himself from the situation” (see para. 32 of R.M.). The sentence was six months for each occurrence, consecutive, for a total of 12 months. The circumstance in R.M. was obviously very different to this case.

66In Excell, the accused attended a “spa day” at a secondary school and had his hair cut and nails trimmed by students. This was contrary to an order of prohibition that prohibited him from attending any school ground. The Court of Appeal overturned the absolute discharge the trial judge had given, imposing a sentence of six months. Again, the circumstances in Excell were obviously very different and much less serious than this case. Furthermore, the offence date in Excell was in 2010. Section 161 was amended in 2015 to increase the maximum penalty from two to four years.

67In Bansfield, a 2008 case, an offender was convicted of seven breaches of an order of prohibition for accompanying his new girlfriend’s boys to various places contrary to the order. His past history included previously assaulting, sexually assaulting, drugging, and abducting minors, and failure to comply with a probation order designed to protect young boys. However, there was no evidence that he abused or mistreated his girlfriend’s boys. He received a sentence of seven years globally on the seven breaches.

68Of the cases cited to me and the cases I have reviewed on my own, the case that most resembles the facts and circumstances here is R. v. I.P., 2020 ONSC 1754. The accused was found guilty of:

• Communicating for the purpose of facilitating sexual interference (s. 172.1(b);

• Breach of an order of prohibition (s. 161);

• Possession of child pornography (s. 163.1(4)); and

• Invitation to sexual touching (s. 151).

69The most salient similarities to this case were:

• The accused was under an order of prohibition.

• The accused’s victim was an adolescent, and the accused was aware of his age (age 15).

• The accused’s conduct involved grooming.

• The accused had a significant criminal record for similar offences. His prior offences involved grooming (in that case, through internet luring). His prior victims were 13 and 14.

• There was a high likelihood of re-offending.

70The accused in I.P. was considerably younger than Mr. Monteath. He was 28 at the time of the offences and 30 at the time of sentencing. He was approximately 23 at the time of his earlier offences. A further mitigating factor was that the accused pled guilty. An aggravating factor was that the accused performed anal intercourse on the victim, without a condom.

71The Crown suggested a sentence of eight years. The defence suggested six. Sosna J. imposed a global sentence of eight years.

Aggravating and Mitigating Circumstances

72Another principle that I must take into consideration is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender: Criminal Code, s. 718.2(a).

1. Mitigating Factors

73A mitigating factor here is the harsh conditions that Mr. Monteath has experienced while awaiting sentencing. These harsh conditions both to date and going forward could also be considered collateral consequences and therefore a mitigating factor.

74Mr. Monteath has spent 290 days in 24-hour lockdown (up to the date that records are available). I understand that he was allowed out of his cell generally once every other day to shower and that was it.

75I accept that this would be exceptionally hard to endure.

76The Court of Appeal has explained in R. v. Marshall, 2021 ONCA 344, at para. 11, that credit may be given on account of particularly difficult and punitive presentence custody conditions, sometimes referred to as “Duncan” credit: R. v. Duncan, 2016 ONCA 754. The court held, at para. 50 of Marshall, that the very restrictive conditions in the jails and the health risks brought on by COVID-19 are good examples of the kind of circumstance that may give rise to Duncan credit. The court also noted, at para. 51, that credit for time in pre-trial custody (sometimes referred to as “Summers” credit: R. v. Summers, 2014 SCC 26) is statutorily capped under s. 719(3.1) of the Criminal Code at 1.5 to 1, and it is wrong to think of the Summers credit as a mitigating factor. The Duncan credit, on the other hand, is a mitigating factor to be taken into account – but it cannot justify the imposition of a sentence that is inappropriate having regard to all the relevant mitigating or aggravating factors. At para. 53 of Marshall, the Court of Appeal discouraged giving a specific number of days or months as Duncan credit as there is a risk that this will improperly treat the Duncan credit as a deduction from the appropriate sentence in the same way as the Summers credit. Duncan credit should not be permitted to take on an unwarranted significance in fixing the ultimate sentence imposed.

77The defence submitted that, for longer sentences, the court should consider allowing ½ day of credit for each lockdown day. That would amount to 145 days or almost five months in this case. The argument was that for a two-year sentence, five months would be inappropriate Duncan credit because it would take away the meaning of two years. However, for a longer sentence the meaning of the longer sentence is preserved. It was further submitted that the lockdown requirements in jails are a function of under-resourcing jails, and it is appropriate for the court to signify that the circumstances are unacceptable, and that there are consequences that result from these under-resourced conditions. I agree that a Duncan credit is appropriate here and I have taken it into consideration.

78The defence also submitted that Mr. Monteath’s heart condition should be considered as a mitigating factor. Mr. Monteath had quadruple bypass surgery in 2002. It was acknowledged that he has had and will have access to appropriate medical care in prison. It would therefore be an error to treat Mr. Monteath’s health status as a mitigating factor: R. v. H.S., 2014 ONCA 323, at para. 38; R. v. Hanse, 2022 ONCA 843, at para. 52. It was also submitted that Mr. Monteath’s health concern is significant enough that I can infer he will have a shortened life expectancy and whatever the sentence is, it is going to eat up a large part of the rest of his life. In response, I note that Mr. Monteath’s quadruple bypass was a long time ago (2002) and that his current convictions are his third set of sexual offences since then. The medical records I have been provided indicate that Mr. Monteath is receiving nitroglycerin, and a cholesterol-reducing medication, and high blood pressure medication. However, the records do not provide any further specifics about Mr. Monteath’s life expectancy. There is nothing to indicate the treatment he is receiving is not effective.

79At age 65, Mr. Monteath should not be considered to be of “advanced age,” as was the case in R. v. Premji, 2021 ONCA 721, where a 13½ year sentence to a 77-year-old in poor health was reduced. This case is more akin to R. v. M.F., 2022 ONCA 371.

80This will be Mr. Monteath’s first time receiving a penitentiary sentence. Some of the sentencing jurisprudence says that a first penitentiary sentence should be “the shortest possible sentence will achieve the relevant objectives”: R. v. Borde, (2003) 63 O.R. (3d) 417, 2003 4187 (C.A.), at para. 36; R. v. Addow, 2014 ONSC 3225, at para. 38; R. v. Clifford, 2018 ONCJ 495, at para. 29. Those cases generally involve youthful offenders or other mitigating factors not present here. Nevertheless, this is a factor I have considered as a mitigating circumstance in this case.

2. Aggravating Factors

81I have reviewed most of the aggravating circumstances already, but to summarize, they include:

• The likelihood that Mr. Monteath will re-offend.

• Mr. Monteath’s criminal record.

• The fact that there were two victims.

• The ages of the victims, which were known to Mr. Monteath at the time.

• The major age discrepancy between Mr. Moneath (age 63 at the time) and his victims (16 and 13 at the time).

• The fact that the victims were particularly vulnerable. K had an eating disorder and body image issues, which Mr. Monteath knew and indeed which he exploited. T had a severe learning disability.

• The fact that Mr. Monteath engaged K in sexualized conversations.

• The impact on the victims.

• The fact that Mr. Monteath supplied significant alcohol to K and attempted to supply alcohol to T.

• The fact that Mr. Monteath put himself in a position of authority, which includes the way he paid the girls each time they visited his apartment and the grooming aspects of the crime.

• The fact the grooming was sustained over at least a month, including giving the victims “pay” on every visit.

• The fact that, at the time he committed the offences, Mr. Monteath had only recently been released from custody for similar offences.

• The fact that, at the time he committed the offences, he was on probation and he disregarded his probation conditions.

• The fact that Mr. Monteath engaged in prior programming for sexual offending but went on to commit further offences.

• The close similarity of Mr. Monteath’s conduct in this set of offences and some of his past offences.

Sentence

82I have decided that the most appropriate approach to take in this case is to determine a global sentence for counts 1, 2 and 4, and a separate consecutive sentence for count 5, being the breach of the order of prohibition.

83The sentences below incorporate reductions for the Duncan credit but not the Summers credit. I was careful not to duplicate the Duncan credit but rather I shared it roughly proportionally between the sentence on count five and the sentence on the other three counts.

1. Sentence for Count 5

84Starting with count 5, the primary sentencing objectives are denunciation and deterrence.

85The maximum penalty under s. 161 is four years. The Supreme Court of Canada held in R. v. L.M., 2008 SCC 31, at para. 18, that “judges are influenced by an idea or viewpoint to the effect that maximum sentences should be reserved for the worst cases involving the worst circumstances and the worst criminals.” However, at para. 20, the court said this notion had been “firmly rejected” in R. v. Cheddesingh, 2004 SCC 16, at para. 1. If the maximum sentence is reserved only for the abstract case of the worst crime committed in the worst circumstances, it would never be imposed. It will always be possible to think of something worse. “Instead, all the relevant factors provided for in the Criminal Code must be considered on a case‑by‑case basis, and if the circumstances warrant imposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases”: L.M., at para. 20.

86The breach in this case was flagrant. The order was repeatedly breached. When Mr. Monteath told K that she should not bring T around anymore, he undoubtedly had the prohibition order in mind. And yet he let T into his apartment again. While breaching the order, Mr. Monteath repeated the very acts that had resulted in the order and that, to his knowledge, the order was designed to prevent. The offence was committed relatively close in time to the date of the lifetime order and to Mr. Monteath’s release from prison. Mr. Monteath was on probation at the time. Mr. Monteath’s criminal record includes a conviction for fail to comply with recognizance x3, for which he received a sentence of two years concurrent on each charge.

87Mr. Monteath pled guilty to this offence, and that is a mitigating factor, but the plea did not occur until the outset of the trial. A guilty plea in the face of a strong Crown case is entitled to less weight: I.P., at para. 41; R. v. Daya, 2007 ONCA 693, at para. 15. In the circumstances, the strength of this factor as a mitigating factor is very limited. Of course, an accused person’s election to exercise the right to be presumed innocent is not an aggravating factor, but the offender “will be denied the significant mitigation of sentence which flows from an early plea and expression of remorse”: G. R. Clewley et al, Sentencing: The Practitioner’s Guide, online version (Toronto: Thomson Reuters Canada Ltd., 2022), at § 1:10.

88The circumstances require a sentence that approaches the maximum of four years for the conviction for breaching the order of prohibition. I find that a fit and appropriate sentence is three years and two months. Again, I have factored in the Duncan credit as a mitigating factor so this figure is somewhat less than it otherwise would be.

2. Sentence for Counts 1, 2, and 4

89I will now turn to counts 1, 2, and 4. These are sexual exploitation (touching – s. 153(1)(a)), which relates to Mr. Monteath sucking K’s toes; sexual exploitation (inviting touching – s. 153(1)(b)), which relates to Mr. Monteath inviting K to massage his upper leg; and invitation to sexual touching (s. 152), which relates to Mr. Monteath inviting T to suck K’s toes.

90The primary sentencing objectives for these offences are denunciation and deterrence, and in this case, separating the offender from society.

91These offences all carry a maximum sentence of 14 years. The seriousness of the offences in this case are not such that they would attract a sentence near to the maximum.

92The Supreme Court in Friesen, at para. 114, said 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.”

93I find that a fit and appropriate global sentence for counts 1, 2, and 4 is four years and nine months. Again, I have factored in the Duncan credit (but not the Summers credit) in this figure. This is to be served consecutively to the sentence on count 5, so that the total time to be served is seven years and eleven months.

94Mr. Monteath, please stand.

95For the reasons I have given above, it is necessary that I impose a lengthy custodial sentence. A factor that is very important in determining your sentence is that there is a high likelihood that you will re-offend. The sentence that I am imposing reflects an emphasis on sentencing the objective of separating you from society. A lengthy sentence is also necessary to denounce what you have done and to deter you from doing it again. I therefore sentence you to 7 years and 11 months in custody.

96This sentence incorporates a reduction because there is a mitigating circumstance in that you have endured harsh conditions while you have been in jail, resulting from frequent lockdowns as a result of the pandemic.

97The Crown has agreed that you should also receive a credit for the time served at 1.5 days for every day that you have served. You were arrested on January 16, 2021 and have been in custody since then.

98The net sentence after deducting this credit for time served is 1,830 days remaining on your sentence.

99In addition, there shall be ancillary orders as follows:

1. A s. 109 weapons prohibition for life.

2. A primary DNA order.

3. A SOIRA order for life.

4. A non-Communication Order under s. 743.21 relating to the victims and their mother.

5. A further order under s. 161 for life.

Chown J.