Warning An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 .
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 .
COURT FILE NO.: CR-21-54 DATE: 20230209
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – H.M. Defendant
Counsel: B. Bhangu for the Crown Yuvika Johri, for the Defendant
Heard: July 11, October 5, and December 22, 2022
Before: Verner J.
REASONS FOR SENTENCE
[1] On July 11, 2022, H.M. pleaded guilty to one count of sexual exploitation. He admitted to having sexual relations with the complainant between 1995 and 1998, when she was 14 to 17 years old and when he was in a position of trust. On the basis of the facts admitted, I found him guilty of the one count on the indictment.
[2] In particular, I found him guilty of an offence under s.153 of the Criminal Code, which at the relevant time read as follows:
- (1) Every person who is in a position of trust or authority towards a young person or is a person with whom the young person is in a relationship of dependency and who (a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the young person, or (b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction.
Definition of "young person"
(2) In this section, "young person" means a person fourteen years of age or more but under the age of eighteen years.
[3] Since the time of the offence, the maximum sentence for sexual exploitation has increased from 5 years to 14. However, in accordance with s.11(i) of the Charter, H.M. faces the maximum sentence that the Code allowed for at the time of the offence. The Crown before me is seeking that maximum of 5 years. While H.M. submits that 18 months to 2 years less a day is appropriate.
The Relevant Facts
[4] The complainant met H.M. through her church when she was 10 years old. They belonged to a gospel community in which only the male elders were permitted to speak to the congregation on the Christian Bible. H.M., who was married and 28 years old when he met the complainant, spent a lot of time with the youth at the church, taking them canoeing, camping, roller skating and to the beach. Although other adults often came on the trips, H.M. was usually the oldest one and in charge. In fact, with respect to the camping trips, he was always in charge and responsible for driving people and bringing the supplies.
[5] In addition to the trips, H.M. also organized activities for the church youth every Friday at the local school. During this period, H.M.’s wife held weekly Bible classes for 10- to 12-year-old girls in their home. The complainant participated in the excursions, the Friday night activities and the Bible classes.
[6] When the complainant was 13 years old, H.M. held her hand, which made her feel like she had a friend, like she was included, like she belonged. She also recalls that at 13 or 14, she rubbed his shoulders to assist him with migraine headaches.
[7] When she was 14, their relationship became intimate. He kissed her on the mouth, touched her leg while he was driving, touched her breasts over her shirt and digitally penetrated her. They told each other they loved each other. The relationship progressed to intercourse and fellatio. They had sex hundreds of times while she was between the ages of 14 and 17.
[8] At one point she learned H.M. was also in another adulterous relationship with an adult female from the church, named D.Y. The three of them engaged in “three-ways”. He encouraged the two females to have sex with each other while he watched and when the complainant turned 16, H.M. encouraged her to leave her family home and move in with D.Y. H.M. was still with his wife at that point. H.M. warned the complainant not to tell anyone about their relationship as no one would understand.
[9] When the complainant was 17, H.M.’s wife left him and the complainant moved in with him. After she moved in the sex progressed to include, at his request, BDSM (bondage, domination, sadism, masochism), as well as anal intercourse and him video recording them having sexual relations.
[10] When she was 18 and even before that, the complainant felt that there was an imbalance in power between them with “how the relationship began and how he was so much older than she was”. At 19, she recognized that their relationship was wrong in that they were living together and engaging in intercourse, but were not married. She accordingly left him. She believed that they loved each other up until the end and it was not until years later that she realized that it had not been love, but abuse.
[11] The complainant read her victim impact statement to the court. It was both compelling and touching. She described how the prolonged abuse of H.M. impacted all aspects of her entire teenage life and went on to describe the severe impact of that abuse in her day-to-day life now, over 20 years later. Here are a couple of poignant passages:
In 2016, our eldest child turned the age I had been when [H.M.] first began to sexually assault me. The anxiety I had been experiencing off and on until then developed into depression which lasted about one year. Seeing my child at that age in “real time”, I was able to begin to really see how very young and immature I had been. While in the past I had felt responsibility, and even guilt over our supposed “relationship”, this was when I really started to see the imbalance of it all. While the “Me Too” movement had begun years before, I was listening to personal stories, or reading about it more in the news. It was traumatizing to read stories that were similar to my own. I felt helpless and angry and sad.
[H.M.], you stole a big part of my growing up years. You hurt me. You hurt me deeply, and there were times when you almost crushed me; when you almost won. I don’t feel like I ever got to be a normal teen, and even as I grew into adulthood my life was tainted by what you had done to me. I didn’t know that I was actually escaping you when I left you at 19. Physically, I was finally free from you. But for years and years afterward I felt like I was still tied to you – so you were still stealing from me – emotionally and mentally and sexually. The consequences of your actions and abuse have affected nearly every area of my life.
H.M.’s Background
[12] There was no psychiatric or psychological report provided to the court, no pre-sentence report and no letters of support. Through submissions I learned that H.M. is 62 years old. He came to Canada from Germany in 1969. He has three daughters, who are very close to him and are supportive of him through these proceedings. He has been married to the same woman L.M. for twelve years and has twin stepsons, as well as step-grandchildren. He has always been gainfully employed, mainly in manufacturing plants.
Mitigating and Aggravating Factors
[13] The key mitigating factors in this case include:
- H.M. has no criminal record. He comes before me as a first offender;
- These offences ended over twenty years ago and there is no suggestion that he has had other issues in the interim. Therefore, although there is no pre-sentence or expert report, there is reason to believe he is a low risk to reoffend;
- He apologized to the complainant, expressing recognition that what he did was wrong and showing what appeared to be sincere remorse; and
- He pleaded guilty.
[14] With respect to the guilty plea, I note that it was not an early plea (The complainant was required to testify at a preliminary inquiry before the plea was entered). However, there was a triable issue as to whether H.M. stood in a position of trust and moreover, H.M. not only admitted guilt, but admitted a number of aggravating features that may have been difficult to prove to the requisite degree. I further note that H.M. recognizes the seriousness of the offences, as he submitted that a conditional sentence would not sufficiently denounce his actions. I give significant weight to his plea of guilty.
[15] In terms of mitigating factors, H.M. also provided the court with three short newspaper articles, which stated that he had been charged with historic sexual offences. The articles were all very short. They all dated from the same day, September 7, 2018 and two of the three were in small local publications. None of them provided much detail. There was no evidence or submissions before me that suggested the publicity of his offences impacted his life in any respect. I give the articles no weight.
[16] The aggravating feature common to all sexual exploitation cases is the abuse of the position of trust. The complainant trusted H.M., who chaperoned her church youth group camping trips and other excursions and in whose home she took Bible study class. He took advantage of that trust and that is a factor I must consider.
[17] The key aggravating factors over and above the elements of the offence include:
- The age difference, H.M. was 18 years older than the complainant;
- The prolonged nature of the offence;
- The frequency of the assaults;
- The nature of the sexual acts. It included fellatio, vaginal intercourse, anal intercourse, BDSM and video recording; and,
- The serious impact on the victim.
Sentencing principles
[18] Section 718.1 of the Criminal Code requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. While s. 718.2(b) requires that a sentence be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[19] Although sentences should be similar to other sentences in similar cases, the court has also recognized that sentencing “is a highly individualized exercise” (R. v. Lacasse, 2015 SCC 64 at para. 58), such that no two cases are identical. As recognized by Wagner J. (as he then was) in Lacasse, sentencing “involves a variety of factors that are difficult to define with precision”. The appropriate sentence “depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case”.
[20] In cases where incarceration is appropriate, the restraint principle requires judges to impose the “least quantum which will achieve the overall purpose of being an appropriate and just sanction” (see R. v. Hamilton, 2004 ONCA 5549, 72 O.R. (3d) 1 (Ont.C.A.) at para. 96).
[21] While judges must impose the lowest sentence that will achieve the overall purpose, in sexual child abuse cases the sentence must be high enough to reflect the seriousness of the offence. The Supreme Court recently emphasized in R. v. Friesen, 2020 SCC 9 that the sentences imposed for sexual offences against children in particular needed, as of 2020, to be increased. Wagner C.J. and Rowe J. explained the need for the increase as follows:
[109]…As noted previously, Parliament’s decision in 2015 to increase maximum sentences for sexual offences against children should shift the range of proportionate sentences as a response to the recognition of the gravity of these offences. Sentences should increase as a result of this legislative initiative (Rayo, at para. 175). In certain cases, a sentencing judge [TRANSLATION] “must feel free to impose sentences above” a past threshold (R. c. Régnier, 2018 QCCA 306 (C.A. Que.), at para. 78). As the Quebec Court of Appeal has reasoned, courts must give “the legislative intent its full effect” and should not feel bound to adhere to a range that no longer reflects Parliament’s view of the gravity of the offence (para. 40). Such a range may in fact be “obsolete and must be revised upwards” (para. 30).
[110] A second reason why upward departure from precedents may be required is that courts’ understanding of the gravity and harmfulness of sexual offences against children has deepened, as we have sought to explain above. As Pepall J.A. observed in Stuckless (2019), there has been a considerable evolution in Canadian society’s understanding of the gravity and harmfulness of these offences (para. 90). Sentences should thus increase “as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims” (Scofield, at para. 62). Courts should accordingly be cautious about relying on precedents that may be “dated” and fail to reflect “society’s current awareness of the impact of sexual abuse on children” (R. v. Vautour, 2016 BCCA 497 (B.C. C.A.), at para. 52). Even more recent precedents may be treated with caution if they simply follow more dated precedents that inadequately recognize the gravity of sexual violence against children (V. (L.), at paras. 100-102). Courts are thus justified in departing from precedents in imposing a fit sentence; such precedents should not be seen as imposing a cap on sentences (see Stuckless (2019), at paras. 61-62, per Huscroft J.A.).
[22] Wagner C.J. and Rowe J. emphasized in Friesen that deterrence and denunciation were the primary considerations in sentencing offenders for offences against children. They said:
[105] Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative and educative role of law (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.), at para. 102). It reflects the fact that Canadian criminal law is a “system of values”. A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code of values”; it “instills the basic set of communal values shared by all Canadians" (M. (C.A.), at para. 81). The protection of children is one of the most basic values of Canadian society (L. (J.-J.), at p. 250; Rayo, at para. 104). As L'Heureux-Dubé J. reasoned in L.F.W., "sexual assault of a child is a crime that is abhorrent to Canadian society and society's condemnation of those who commit such offences must be communicated in the clearest of terms" (para. 31, quoting L.F.W. (C.A.), at para. 117, per Cameron J.A.).
[23] The Court in Friesen further provided guidance in sentencing on the offence of sexual exploitation in particular. They discussed the aggravating nature of abusing a position of trust:
[125] We also wish to offer some comments on the factor of the abuse of a position of trust (Criminal Code, s.718.2(a)(iii)). Trust relationships arise in varied circumstances and should not all be treated alike (see R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183 (Ont. C.A.), at para. 27). Instead, it makes sense to refer to a "spectrum" of positions of trust (see R. v. B. (R.), 2017 ONCA 74 (Ont. C.A.), at para. 21). An offender may simultaneously occupy multiple positions on the spectrum and a trust relationship can progress along the spectrum over time (see R. v. Vigon, 2016 ABCA 75, 612 A.R. 292 (Alta. C.A.), at para. 17). In some cases, an offender's grooming can build a new relationship of trust, a regular occurrence in child luring cases where children are groomed by complete strangers over the Internet, or move an existing trust relationship along the spectrum. Even where grooming does not exploit an existing relationship of trust or build a new one, it is still aggravating in its own right.
[126] Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. As Saunders J.A. reasoned in W. (D.R.), the focus in such cases should be on "the extent to which [the] relationship [of trust] was violated" (para. 41). The spectrum of relationships of trust is relevant to determining the degree of harm. A child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender (see R. v. J.R., 1997 NLCA 14665, 157 Nfld. & P.E.I.R. 246, at paras. 14 and 18). This is likely to be the case in what might be described as classic breach of trust situations, such as those involving family members, caregivers, teachers, and doctors, to mention a few.
[127] The presence of a trust relationship may inhibit children from reporting sexual violence. The breach of trust may produce "feelings of fear and shame" that further discourage reporting (Stuckless (2019), at para. 131, per Pepall J.A.). Threats or emotional manipulation may have a greater inhibiting impact because the victim trusts the offender (D.O., at pp. 439-40, per L'Heureux-Dubé J.; R. v. L.(J.), 2015 ONCJ 777 (Ont. C.J.), at para. 58, aff'd 2016 ONCA 593 (Ont. C.A.)).
[24] In terms of where H.M. falls on the spectrum for positions of trust, I recognize that he is not a parent, or a teacher. Unlike if he had been a teacher or parent, it was not necessarily obvious to him that he was abusing a position of trust in committing these offences. However, when he was a 32-year-old man in charge of taking a group of children camping, he should have realized it was wrong to engage in sexual relations with one of the children he was chaperoning, who was only 14 years old at the time. Thus, I do not find that H.M. falls on the highest end of the spectrum, but not at the lowest end of the spectrum either.
Should the principles from Friesen apply retroactively?
[25] H.M. submits that instead of sentencing H.M. in proportion to sentences imposed for recent offences, I should rely on the sentencing range that was being applied at the time the offences were committed, namely 1991 to 1995. According to H.M., s. 11(i) of the Charter requires that he be sentenced in proportion to the sentences imposed during that period, and as a result I should not consider the principles articulated in R. v. Friesen, 2020 SCC 9, which state that the range from that 1991 to 1995 was too low.
[26] Section 11(i) reads:
- Any person charged with an offence has the right: i. if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
[27] I reject the Defence’s position that the principle from Friesen - namely that there should be a jump in child sexual abuse sentences – does not apply retroactively to cases like the one before me. In the recent case of R. v. Solomon, 2022 ONCA 706, the Court of Appeal for Ontario cited Friesen with approval, in the course of concluding that the sentence imposed in that case – one of five years for sexual exploitation, sexual assault and threats for offences committed from 1996-2001 – was appropriate. In other words, the Court of Appeal for Ontario has approved of the Friesen principles being applied retroactively. (See also R. v. Stuckless, 2019 ONCA 504 and R. v. J.T., 2021 ONSC 366).
[28] Thus, as was directed in Friesen, I will focus on deterrence and denunciation, which means that the severity of the offence is a key factor in determining the appropriate sentence. And in assessing the severity of the offence, I will consider the harm we now know these types of offences cause to children as was described in Friesen.
[29] There are, however, other factors aside from the severity of the offence to consider, such as “the offender’s degree of responsibility” (R. v. Lacasse). I find that the Friesen principles should be given minimal weight in assessing the moral blameworthiness of the offender. In other words, in assessing H.M.’s degree of responsibility, I must keep in mind that the extent of the harm suffered by 14 to 17-year-old girls from sexual offences that did not involve gratuitous violence, was not recognized at the time of the offences to the same degree it is today.
[30] Indeed, there was a maximum of 5 years for the offence at that time, whereas now the maximum sentence is 14 years. And the sentences imposed for sexual exploitation were very low at that time. Bruce J. of the British Columbia Provincial court did a thorough review of sentences imposed in sexual exploitation cases in R. v. C.M., 2000 BCPC 65. In C.M. itself, the accused, who was a high school teacher, was sentenced to an 8-month conditional sentence for having a romantic and sexual relationship with his student, who was 35 years younger than him, for a period of seven months. C.M. and the cases relied on by Bruce J. in C.M. provide some guidance in assessing H.M.’s moral blameworthiness.
Caselaw
[31] There are no cases that are on all fours with the case at bar, but the Crown provided two cases that were particularly helpful, R. v. Fisher and R. v. Raymer.
[32] In R. v. Fisher, 2020 NSSC 325, the accused met the complainant through his capacity as head of the ministry for the youth in his church. She was 14 at the time and he was 26. He recognized that she was a vulnerable person and was experiencing significant issues at home and school. He became her spiritual advisor. He groomed her over a period of three years and hid their relationship from others in the church. Five months before her eighteenth birthday, the relationship turned sexual and involved intercourse, even though he knew that she had intended to save her virginity until she was married. Mr. Fisher went to trial and did not take responsibility for his actions. He attempted to minimize his position of trust. After a thorough review of the relevant factors, a number of cases with similar facts and the principles emerging from Friesen, Mr. Fisher was sentenced to 27 months imprisonment.
[33] In R. v. Raymer, [2013] O.J. No. 4262 (Ont.C.J.), the accused was a youth pastor who met the complainant, a congregant, when she was 11 and he was 23. The complainant was a vulnerable young woman, having been hospitalized for six months in relation to mental health issues. Mr. Raymer, who was married with two children, initiated a relationship with the complainant when she was 16, which quickly turned sexual. It lasted for seven months and included intercourse. The sentencing judge noted that Mr. Raymer was “not only a person in a legal position of trust” as a youth pastor, but he was “also a trusted family friend”. After pleading guilty, Mr. Raymer was sentenced to 12 months imprisonment and two years probation.
[34] In relying on Fisher and Raymer, I keep in mind that the offence in the case at bar lasted much longer than the offences in those cases; H.M. stole all of the complainant’s teenage years. I also keep in mind that the sexual relations started at the young age of 14 in this case, that there was an 18-year age difference and that the offences involved BDSM, anal intercourse and video recordings. And I recognize that Raymer was pre-Friesen.
[35] On the other hand, this case can also be distinguished from one or both of those cases on the basis that H.M. pleaded guilty, there is no evidence that the complainant in this case was vulnerable beyond being youthful, the accused was not a trusted friend of the complainant’s family, and there is reason to believe he is a low risk to reoffend. Moreover, the offences were committed in the 1990s when the maximum sentence for sexual exploitation was much lower, and the sentences imposed for sexual offences against children in their teenage years and did not involve gratuitous violence were relatively low. Thus, the moral culpability of H.M. is less than the degree of responsibility of the offenders in Fisher or Raymer.
[36] A third case which is similar to the case at bar is that of R. v. Solomon, 2021 ONSC 1729, aff’d at 2022 ONCA 706. The appellate decision in this case was released after counsel in the case at bar made their initial sentencing submissions before me. Counsel accordingly made supplementary submissions regarding the applicability of Solomon.
[37] In Solomon, the accused was a “prayer warrior” in a Celestial Church when the 15-year-old complainant and her mother took refuge there in 2001. In addition to being young and naive, the complainant was a vulnerable victim, in that she feared that if she did not have sexual relations with the accused, her immigration status would be in jeopardy, as would her access to food and a place to live. The accused had a sexual relationship with her when she was 16 to 21 years old. They shared three daughters. When she was pregnant with her first daughter, she attempted suicide. The sentencing judge noted she was a very young and naive mother “without supports, education or prospects”. The relationship was not “harmonious”. The sentencing judge compared the facts of the offence in Solomon to those in R. v. M.(D.), 2012 ONCA 520, in which the 15-year-old complainant’s uncle had sexual intercourse with her regularly over a three-year period, under the threat of deportation from Canada. Mr. Solomon pleaded not guilty to the sexual exploitation charge and showed no remorse or insight. He was sentenced to five years for sexual exploitation, sexual assault and uttering threats. The Court of Appeal found that “[o]verall, the sentence imposed was fit” and upheld the sentence.
[38] Although similar, there are a number of aggravating factors present in Solomon, which are not present in this case. The relationship in this case, could not be compared to an uncle having intercourse with his niece over a period of years under the threat of deportation. The complainant before me did not have any children with the accused, let alone three. And while H.M. is guilty of the one offence of sexual exploitation, Mr. Solomon is guilty of sexual exploitation, sexual assault and uttering threats. Finally, I note there are mitigating factors in the case at bar not present in Solomon, including H.M.’s guilty plea and the fact he took responsibility for his actions.
[39] Given the length of the offence and the degrading nature of some of the sexual acts in this case, I find that the sentences imposed in Raymer and Fisher to be insufficient to adequately address deterrence and denunciation in this case. On the other hand, I find that in light of the list of aggravating factors in Solomon that are not present here, as well as the lack of mitigating factors in Solomon that are present here, the sentence in this case should be well below the five years that was fit in that case. Considering all of the relevant factors with an emphasis on deterrence and denunciation, the sentences imposed in similar cases, and the principles emerging from Friesen, I find that 30 months in a federal institution is an appropriate sentence.
Conclusion
[40] I sentence H.M. to 30 months in custody.
[41] As for ancillary orders, the Crown and the Defence jointly submit that in light of the language in the Criminal Code as of the dates of the offence and the ratio in R. v. K.R.J., 2016 SCC 31 and R. v. J.D., 2021 ONCA 376, I do not have the jurisdiction to impose either a s.161 order (since in 1998 a s.161 order could only be imposed for offences involving children under the age of 14) or a weapons prohibition. I accept that submission. The Defence further agreed that there was no reason the victim fine surcharge should not be imposed in this case. Overall, counsel were in agreement with respect to all of the ancillary orders.
[42] In addition to the period of imprisonment, I impose the following ancillary orders in accordance with the joint position of counsel on these issues:
(1) Pursuant to s.743.21 of the Criminal Code, I order that H.M. have no contact directly or indirectly with the complainant while he is serving his custodial sentence. The Crown’s request for this order was not opposed by H.M.
(2) I order that H.M.’s DNA be taken pursuant to 487.051 of the Criminal Code. (Section 153 is a primary designated offence).
(3) Pursuant to s.737 of the Criminal Code, I order that H.M. pay the victim fine surcharge.
(4) Pursuant to s. 490.012 of the Criminal Code, I make a SOIRA order for 10 years. [1]
The Honourable Madam Justice Catriona Verner Released: February 9, 2023
COURT FILE NO.: CR-21-54 DATE: 20230209 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – H.M. Defendant REASONS FOR SENTENCE The Honourable Madam Justice Catriona Verner Released: February 9, 2023
[1] I note that in R. v. Ndhlovu, 2022 SCC 38, the Supreme Court recently declared s.490.012 to be unconstitutional. However, the court suspended the declaration for one year in order to allow Parliament time to amend the provision to bring it into constitutional compliance. Therefore, at this juncture, an accused must bring a constitutional challenge in order to be exempt from a SOIRA order (see R. v. Cusick, 2022 ONCJ 590, R. v. Fall, 2022 PESC 42 at para. 176; R. v. Z.J.L.B., 2022 SKPC 45 at para. 55). There is no such application before me and therefore a SOIRA order is mandatory. I further note that at para. 140 of Ndhlovu, the court indicated that offenders could apply to be removed from the registry, after a SOIRA order is made. I explicitly invite H.M. to make such an application if he deems it appropriate to do so.
