COURT FILE NO.: CR- 22-10000009-0000 DATE: 20230922

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - J.N.Z.

Counsel: Cara Sweeny, for the Crown Jacob Stilman and Feven Glaizghi, for Mr. N.Z.

HEARD: July 24, 2023

WARNING PUBLICATION BAN Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s 486.4 of the Criminal Code of Canada, R.S.C., 1985, c. C-46

J.M. BARRETT J.

REASONS FOR SENTENCE

INTRODUCTION

[1] On April 15, 2023, J.N.Z. (“Mr. N.Z.”) was found guilty by a jury of invitation to sexual touching and sexual interference, committed against RM, when RM was between eight and twelve years old.

[2] Following conviction, a pre-sentence report was ordered. It provides helpful information regarding Mr. N.Z.’s background and present circumstances. It was filed as an exhibit at the sentencing hearing held on July 24, 2023.

THE FACTS

Circumstances of the Offence

[3] Given that this was a jury trial, I must begin by determining the material facts required for sentencing. This is a two-step process: R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at para. 106. First, s. 724(2)(a) of the Criminal Code directs that I must “accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty”. This requires that I “identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender”: Aragon, at para. 106; see also R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18. Second, s. 724(2)(b) of the Criminal Code directs that I may “find any other relevant fact that was disclosed by evidence at the trial to be proven”.

[4] In this case, the defence was one of denial. The jury was presented with two diametrically opposed accounts as to whether any inappropriate sexual touching occurred. To find Mr. N.Z. guilty of the offences alleged, the jury necessarily had to reject Mr. N.Z.’s testimony that no inappropriate touching occurred. The jury also necessarily accepted RM’s evidence that the incidents took place as described. Therefore, the facts described by RM in relation to the two counts in the indictment form the factual basis for my sentencing decision.

[5] Those facts are that the incidents started when RM accompanied his mother for hair-colouring appointments at Mr. N.Z.’s apartment. While RM’s mother waited for her colour to set, Mr. N.Z. would sometimes cut RM’s hair. It was during these hair-cutting visits that Mr. N.Z. engaged in inappropriate sexual conduct.

[6] The conduct began with Mr. N.Z. whispering in RM’s ear. This progressed to Mr. N.Z. rubbing his groin against RM’s hand. The conduct that formed the basis of the charges before the court involved multiple incidents of Mr. N.Z. placing his penis in RM’s hand and having RM rub it. The precise number of times that these acts of masturbation occurred is unclear. This is the only ambiguity in the jury’s verdict. RM testified that there were eight or nine occurrences. I find that there were three or four incidents. This finding is consistent with RM’s testimony that these acts only occurred when Mr. N.Z. washed his hair and with the dates recorded in Mr. N.Z.’s appointment calendar. [1] There was also one incident of oral sex. This occurred when Mr. N.Z. went to RM’s home for dinner. During the visit, he cut RM’s hair and accompanied RM to the bathroom to wash RM’s hair. When alone with RM in the bathroom, Mr. N.Z. sucked RM’s penis for about 30 seconds.

Circumstances of the Offender

[7] Mr. N.Z. is currently 55 years old. Since 2015, he has resided in Windsor, Ontario. He lives with his partner and his partner’s parents, all of whom are supportive. Until recently, Mr. N.Z. had been steadily employed since his arrival in Canada. Health issues have resulted in his unemployment for about the past three years.

[8] Mr. N.Z. was born and raised in El Salvador. His parents are now deceased. All but one of his siblings live in El Salvador. Before immigrating, he trained as a teacher. He came to Canada in 1987, via the United States, as a refugee. About five years after his arrival, he obtained Canadian citizenship. His hairdressing career began in 1991 and involved placements in several prestigious Toronto salons. He has no issues with substance abuse, nor does he suffer from any mental health issues. Before meeting his current partner, Mr. N.Z. was married twice. He has no children.

[9] In September 2015, Mr. N.Z. was convicted, after a judge alone trial, of six sexual offences involving MG, who was between 10 and 11 years old at the time: R. v. J.N., 2015 ONSC 5795. On December 17, 2015, he was sentenced to the mandatory minimum prison sentence of 12 months. He was also placed on probation for two years and ordered to comply with a number of ancillary orders: R. v. J.N., 2015 ONSC 7929. His conviction and sentence were upheld on appeal: see R. v. J.N., 2017 ONCA 335.

[10] Mr. N.Z. was fully compliant with his probation conditions. His probation term ended in December 2019 without incident.

[11] There is some overlap between the timeframe of the acts involving RM and the timeframe of the acts involving MG. [2] The conduct involving MG occurred between December 26, 2012 and October 21, 2013. The conduct involving RM started in the spring or summer of 2012, and continued until the summer of 2015, when Mr. N.Z. moved to Windsor. Accordingly, while Mr. N.Z.’s conviction from 2015 is not a prior conviction, the overlapping timeframe is a relevant factor in determining an appropriate sentence.

[12] The pre-sentence report indicates that Mr. N.Z. denies responsibility for the offences. He and his partner believe that he has been wrongfully convicted.

[13] Two letters of reference were filed. The letters speak of Mr. N.Z.’s kind, caring, and generous nature.

Victim Impact

[14] No victim impact statement was filed. The Crown advised that RM and his mother declined the opportunity to submit a statement.

[15] At trial, RM testified that by the time he was about twelve years old, he began to understand what was happening. Consequently, he resisted having his hair cut by Mr. N.Z. and was angry with his mother whenever Mr. N.Z. was invited for dinner. However, he only disclosed the abuse in 2021, when his mother was asking him about his childhood. When he told his mother of the abuse, his mother said she had failed him as a mother.

[16] RM is now 19 years of age. He is in his first year of a four-year university program. He presented as an exceptionally well-adjusted young adult. He testified that he no longer thinks about what happened. But, as a boy of 14 years of age, he had suicidal thoughts and likely would have killed himself if he had a gun at the time.

POSITIONS OF THE PARTIES

[17] The Crown seeks a seven-year jail sentence. The Crown also seeks the following ancillary orders: a 20-year Sex Offender Information Registration Act, S.C. 2004, c. 10 order under s. 490.012 of the Criminal Code; a DNA order under s. 487.051 of the Criminal Code; a 10-year weapons prohibition under s. 109 of the Criminal Code; and a lifetime order under s. 161 of the Criminal Code [3] prohibiting Mr. N.Z. from employment and other activities that involve contact with persons under the age of 16 years.

[18] The defence argues that an upper reformatory jail sentence is appropriate in the circumstances of this case. The defence does not oppose any of the ancillary orders. However, the defence argues that a lifetime order under s. 161 of the Criminal Code is excessive and unnecessary. Instead, the defence proposes that it be limited to 10 years, and that there be no restriction on Internet access under s. 161(d).

CASE LAW

[19] The parties agree that the leading decision applicable in this case is R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. In Friesen, the Supreme Court of Canada addressed the governing principles applicable when sentencing offenders for sexual offences against children. Recognizing the need for sentencing judges to have flexibility “to do justice in individual cases”, the Supreme Court did not establish a set range of sentences for child sexual offences: Friesen, at para. 114, quoting from R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.), at para. 33. It found, however, that an “overall message” was required. The message being 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”: Friesen, at para. 114.

[20] In Friesen, the court restored a six-year jail sentence for a single incident of sexual interference involving a four-year-old girl by a twenty-nine-year-old first offender who pleaded guilty. The offence did not involve a breach of trust. The accused was also abused as a child. In restoring the sentence imposed by the trial judge, the court expressed its view that the six-year jail sentence was “lenient”: Friesen, at para. 169.

[21] In addition to Friesen, the Crown filed the following decisions: (i) R. v. G.H., 2023 ONCA 89: A five-year jail sentence was upheld on appeal for an accused convicted, after a judge-alone trial, of sexually assaulting his stepdaughter when she was eight to twelve years old. The acts involved inappropriate touching of the complainant’s buttocks and other more intrusive acts, such as the complainant straddling the accused and the accused rubbing his penis on her vagina. (ii) R. v. G.R., 2020 ONSC 7411: The fifty-year-old first offender received a jail sentence of five-and-a-half years for three separate incidents of inappropriately sexually touching his nine-year-old stepdaughter. The acts involved rubbing her vagina with his fingers and rubbing his penis against her. (iii) R. v. Lloyd, [2021] O.J. No. 5163: The fifty-three-year-old first offender received a jail sentence of fifteen months for a single count of sexual assault involving the touching of a ten-year-old girl’s vagina over her clothing during a camping trip six years earlier.

[22] During the sentencing hearing, defence counsel acknowledged that Friesen has altered the legal landscape as it relates to sentencing offenders for sexual offences against children. However, he argued that post- Friesen, a reformatory sentence remains an appropriate sentence in circumstances such as this case, where the offender has no prior criminal record, there are a limited number of incidents, no penetration was involved, the offender is of otherwise good character, and there exists no on-going risk of danger. A reformatory sentence would also permit Mr. N.Z. to receive specialized treatment through the Ontario Correctional Institute.

[23] Defence counsel filed the following decisions in support of an upper reformatory sentence: (i) R. v. M.G., 2023 ONSC 2990: The accused was sentenced to eighteen months’ imprisonment concurrent for two counts of sexual interference involving two victims. Victim One was the accused’s stepson, who awoke one night to find the accused sucking his penis. He was eight or nine years old at the time. Victim Two was the accused’s step-nephew. He awoke one night to find the accused rubbing his erect penis on his backside and attempting to touch his genitals. This occurred during a sleepover at Victim One’s home. In that case, the parties made a joint submission for a conditional sentence, which the trial judge rejected as inappropriate in light of Friesen. (ii) R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161: A nine-month jail sentence was increased, on Crown appeal, to twenty-four months. The accused was convicted, after a judge alone trial, of sexual assault, sexual interference, and invitation to sexual touching. All offences stemmed from a single incident in which a six or seven-year-old girl was made to rub the accused’s penis. The accused also invited the complainant to put her mouth on his penis, but she pulled away. The incident occurred during a sleepover with the accused’s children. (iii) R. v. B.W., 2022 ONSC 2399: The thirty-six-year-old accused was found guilty, after trial, of sexually abusing his two stepdaughters (L and S), who were nine and eleven years old. There was a single incident involving L, in which the accused rubbed his penis against her buttocks. The conduct involving S occurred over a seven-week period, and it included digital penetration and masturbation to the point of ejaculation. The accused had an unrelated and dated record for domestic assault. He received a total sentence of six years’ imprisonment: two years in relation to L and four years’ consecutive in relation to the offences involving S. (iv) R. v. B.M., 2023 ONCA 224: The Court of Appeal increased a conditional sentence of two years less a day to seven years’ imprisonment. The accused was between the ages of eighteen and twenty-two years old at the time he sexually abused the two victims over a period of forty-three months. He pleaded guilty. The victims’ father befriended the accused through their local church, and the accused was invited to live with the family. Both victims were about twelve years old at the time the abuse started. The abuse included anal penetration on four occasions with the male victim and twenty to thirty incidents of vaginal penetration with the female victim. In increasing the sentence to seven years, it is clear that the Court of Appeal viewed the original sentence as too lenient, given the “horrific” aggravating factors. (v) R. v. D.B., [2021] O.J. No. 4381 (C.J.): The accused was sentenced to eighteen months’ imprisonment, to be followed by two years’ probation, for the offences of sexual interference and invitation to sexual touching involving his twelve-year-old niece. Conduct involved humping, touching her vaginal area over her clothes, attempted kissing, and exposure of the accused’s penis. The accused suffered from “significant health issues”. (vi) R. v. D.S., 2021 ONSC 3972: The first offender was sentenced to fifteen months’ imprisonment, after being found guilty of sexual assault by a jury, in relation to two incidents of touching involving a thirteen-year-old girl. The victim lived with her family in the basement of the accused’s home. The accused was a close friend of the family. (vii) R. v. Gunaratnam, 2021 ONSC 8270, 77 C.R. (7th) 145: The trial judge accepted a joint submission for a conditional sentence of two years in relation to a sixty-year-old first offender who was convicted of two counts of touching his niece when she was seven years old, and again when she was about twelve years old. Shortly after this conviction involving his niece, the accused pleaded guilty to a charge of sexual interference in British Columbia in relation to a family friend who was thirteen years old at the time. In accepting the joint submission, the trial judge noted his “serious reservations” of its appropriateness. An upper reformatory sentence was found to be within the range post- Friesen. (viii) R. v. R.L.S., 2020 ONCA 338: A jail sentence of nine months was affirmed on appeal for the fifty-one-year-old first offender who pleaded guilty to two counts of sexual touching involving his daughter, who was four and six years of age at the time. Acts involved having her touch his erect penis and having her sit on his lap when his penis was exposed. The accused was at risk of deportation. (ix) R. v D.J.S., 2021 ONCJ 671: The thirty-one-year-old accused was found guilty of sexual interference and sexual assault in relation to his niece on four occasions. The acts involved having his ten-year-old niece masturbate him to the point of ejaculation. The accused was twenty-two years old at the time. He had a difficult childhood. He was sentenced to fourteen months’ imprisonment and three years’ probation.

MITIGATING AND AGGRAVATING FACTORS

[24] A consideration of the mitigating and aggravating factors is mandated by s. 718.2 of the Criminal Code.

[25] In terms of mitigation, Mr. N.Z. is now 55 years old. At the time of these offences, he had no prior criminal record. He is married and has the strong support of his partner and his partner’s family. He had a traumatic childhood. Until recently, he was gainfully employed. He is currently unemployed due to health issues.

[26] The aggravating factors in this case are many: (i) RM’s young age: RM was a young boy of eight to twelve years of age at the time of the offences. This is a statutory aggravating factor: see Criminal Code, s. 718.2(a)(ii.1); see also Friesen, at para. 134. (ii) Victim impact: Although RM and his mother declined the opportunity to file victim impact statements, their trial testimony speaks to the impact of the offence. RM’s evidence was that he contemplated suicide as a fourteen-year-old boy. In his testimony, RM spoke of being angry with his mother for inviting Mr. N.Z. to their home. His abuse was kept secret for years. His recent disclosure to his mother has caused her to feel that she failed RM as a mother. (iii) Multiple incidents: The abuse of RM was not an isolated incident. Rather, RM was groomed over several years. There were multiple incidents of sexual touching and one act of oral sex by Mr. N.Z. on RM. (iv) Position of trust: Mr. N.Z. was in a position of trust in relation to RM. This is a key distinguishing feature from the facts underlying Mr. N.Z.’s 2015 conviction involving MG, in which the court found there to be no position of trust: R. v. J.N., 2015 ONSC 7929, at para. 29. Trust relationships vary in form and degree: Friesen, at para. 125. While the position of trust in this case is at the lower end of the spectrum, it very much existed. Mr. N.Z. was a frequent dinner guest at RM’s home. He joined the family on special occasions. Mr. N.Z. gave RM gifts. Mr. N.Z. was not just the family hairdresser, he was a trusted family friend. He violated this position of trust for his own sexual gratification. (v) The gravity of the offences: All of the acts were committed when RM’s mother was in close proximity. The act of oral sex occurred in RM’s home. During one year of RM’s abuse, Mr. N.Z. was also abusing MG. While not a prior conviction, it shows a pattern of opportunistic behaviour, wherein Mr. N.Z. preys on young pre-pubescent boys. This pattern is relevant when assessing Mr. N.Z.’s character, rehabilitative prospects, and degree of responsibility: R. v. De Jesus Carrasco, 2021 ONSC 6891, at para. 29; R. v. Shaikh, 2020 ONSC 438, at para. 33.

ANALYSIS

[27] All sentencing begins with the fundamental principle of proportionality. This requires that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. A proportionate sentence must have one or more of the following objectives set out in s. 718 of the Criminal Code: (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 the rehabilitation of 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 acknowledgement of the harm done to victims or to the community.

[28] The gravity of the offence and the degree of responsibility of Mr. N.Z. is significant. The offences occurred over several years. They involve the grooming of RM from a young age. RM was subjected to escalating degrees of sexual exploitation. Mr. N.Z. violated the security and safety of RM’s home. As recognized in Friesen, “[a] parent’s home is a place where the child should feel safe and secure under the care and guardianship of the parent”: at para. 178. As a prepubescent boy, RM was incredibly vulnerable to Mr. N.Z., who was a trusted friend of the family.

[29] Mr. N.Z.’s level of insight is non-existent. He considers himself a victim of a wrongful conviction. This lack of insight is a concern. It certainly poses challenges for any treatment as proposed by the defence.

[30] In Friesen, sexual offences against children were described as crimes that are “abhorrent to Canadian society”, requiring that “society’s condemnation of those who commit such offences … be communicated in the clearest of terms”: Friesen, at para. 105, quoting from R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132. The Supreme Court described sexual offences against children as inherently “violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities”: Friesen, at para. 5. Consequently, the sentence imposed must give primary consideration to the principles of denunciation and deterrence: see Criminal Code, s. 718.01; Friesen, at paras. 101, 104-5.

[31] The upper reformatory sentence proposed by the defence would be unfit in this case. Anything less than a penitentiary sentence would erroneously prioritize the sentencing objective of rehabilitation: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at para. 37.

[32] When sentencing for sexual offences against children, primary consideration must be given to the objectives of denunciation and deterrence: Criminal Code, s. 718.01. Prioritizing these objectives will result in “mid-single digit penitentiary terms” being the norm: Friesen, at para. 114. I recognize that Mr. N.Z.’s offences were committed before the enactment of the 2015 legislative amendments that triggered the recent upward shift in sentences for sexual offences involving children. However, when sentencing for historical offences, “proportionality demands recognizing the increased gravity with which today’s society understands sexual offences against children”: R. v. R.O., 2023 BCCA 65, at para. 49.

[33] While defence counsel referred in submissions to the absence of penetration, Friesen is clear that this is not a mitigating factor. All sexual offences against children are inherently violent: Friesen, at para. 77. Further, the offence of sexual interference involving a child should not be treated as less serious than a sexual assault of a child: Friesen, at paras. 107, 120. This does not mean that the degree of physical interference is irrelevant. It is relevant. However, “[s]exual violence that does not involve penetration is still ‘extremely serious’ and can have a devastating effect on the victim”: Friesen, at para. 142. This recognizes that the harm “to the victim is not dependent on the type of physical activity involved”: Friesen, at para. 143. Any sexual offence is a violation of the child’s bodily integrity and security of the person, particularly if committed by a person in a position of trust who exploits the child’s vulnerability on multiple occasions. As noted by Moldaver J.A. (as he then was) in D.D., at para. 34, “[a]dult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price.”

[34] I have also considered the principle of parity. Parity means that similar offenders who commit similar offences in similar circumstances should receive similar sentences: Criminal Code, s. 718.2(b); Friesen, at para. 31. Parity is an “expression of proportionality” and “gives meaning to proportionality” in practice: Friesen, at para. 33. In considering proportionality and parity, I have considered all of the cases filed by the parties. These cases reflect a vast range in sentences: at the low end of the range is a maximum reformatory sentence; at the high end is a mid to upper single-digit penitentiary sentence. This range reflects the fact that determining an appropriate sentence is a highly individualized process, which must take into account the purposes and principles of sentencing, as well as the aggravating and mitigating factors in each case.

[35] In this case, a mid-level penitentiary sentence is required to recognize and give effect to: (i) the inherent wrongfulness of the offences; (ii) the potential harm to RM that flows from these offences; and (iii) the actual harm suffered as a result of these offences: Friesen, at para. 76.

[36] In this case, there is direct evidence of the actual harm caused to RM and his mother. RM did not disclose the abuse immediately. Instead, he suffered in silence. As a fourteen-year-old boy, he ruminated and contemplated suicide. His mother, now aware of the abuse, has also suffered emotionally and psychologically, believing that she failed RM as a mother. That is the actual harm. The potential long-term harm is impossible to gauge at this stage. RM presents as an exceptionally mature, well-adjusted young man who is pursuing university studies. The extent to which potential harm will materialize and impact RM’s future relationships, his mental health, and overall life path is presently unknown. It would be naïve and fundamentally wrong to conclude that there is no risk of future harm materializing based simply on RM’s presentation at trial. As noted in Friesen, at para. 80, the sexual exploitation of children carries with it a risk of “long-term harm that only becomes evident during adulthood.”

DISPOSITION

[37] Mr. N.Z. will be sentenced to four-and-a-half years’ imprisonment concurrent on each charge.

[38] I also make the following mandatory ancillary orders: (i) Mr. N.Z. will provide the number of bodily substances that are reasonably required for forensic DNA analysis, pursuant to s. 487.051(1) of the Criminal Code; (ii) Mr. N.Z. will not possess any weapons for a period of 10 years, pursuant to ss. 109(1) and (2) of the Criminal Code; and (iii) Mr. N.Z. will comply with the provisions of the Sex Offender Information Registration Act, S.C. 2004, c. 10, for a period of 20 years, pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code.

[39] With respect to an order under s. 161, this is not mandated by the Criminal Code. It is a discretionary order. It can only be ordered where an evidentiary basis exists to believe that the accused poses a risk to children. Also, the specific terms of the order must “constitute a reasonable attempt to minimize the risk” and “respond carefully to an offender’s specific circumstances”: R. v. Schulz, 2018 ONCA 598, 142 O.R. (3d) 142, leave to appeal refused, , at para. 41. In this case, there is an evidentiary basis for such an order. The offences involved opportunistic behaviour with a young boy, when the boy’s mother was in close proximity. In the absence of any evidence that Mr. N.Z. has accepted responsibility for the offences, his pattern of preying on young boys where an opportunity exists necessitates an order. The risk posed, however, is not linked in any way to Internet access. Accordingly, I find that an order under s. 161(d) is not necessary.

[40] When sentenced by Justice Corrick in December 2015, a 10-year order was issued. I find that a further fifteen-year order under ss. 161(1)(a)(a.1)(b) and (c) is appropriate. Specifically, the prohibitions are as follows: (i) Mr. N.Z. is prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre (s. 161(l)(a)); (ii) Mr. N.Z. is prohibited from being within two kilometres of any place where RM ordinarily resides, attends school, or is known by Mr. N.Z. to frequent or be present at (s. 161(1)(a.1)); (iii) Mr. N.Z. is prohibited from 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 (s. 161(l)(b)); and (iv) Mr. N.Z. is prohibited from having any contact — including communicating by any means — with a person who is under the age of 16 years, unless done under the supervision of adult who is aware of his criminal convictions (s. 161(l)(c)).

J. M. Barrett J. Released: September 22, 2023

Footnotes from Original Document:

[1] At trial, the Crown did not dispute the accuracy of the dates recorded in Mr. N.Z.’s appointment calendar.

[2] Given the overlapping timeframe, Mr. N.Z. was charged with two counts of fail to comply with a court order. On July 24, 2023, the Crown withdrew these charges, acknowledging the absence of any evidence that Mr. N.Z. violated the term to not be “alone” with any child under the age of 16 years. The evidence in this case is that RM’s mother was present, albeit in a different room when the offences occurred.

[3] The issue of an order under s. 161 was initially raised by the Court during the sentencing hearing. Counsel were invited to make submissions on the appropriateness of such an order and its duration.