Court File and Parties

COURT FILE NO.: 18-5153 DATE: 2023/09/20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Richard Hall Accused

Counsel: Carl Lem, for the Crown Ross Stewart, for the Accused

HEARD: Sentencing submissions heard April 26 and June 19, and oral decision given September 15, 2023

Restriction on Publication

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.

REASONS FOR SENTENCE

SOMJI J.

Introduction

1Richard Hall was convicted following trial of sexual touching and sexual assault of his teenage stepdaughter between December 2011 and September 2016: R. v. Hall, 2022 ONSC 6497. The sexual touching of a young person charge was conditionally stayed on the basis of the Kienapple principle. This decision addresses the sentence to be imposed for the remaining single count of sexual assault.

2The Crown seeks a jail term of three and a half years on the basis of the Supreme Court of Canada’s decision in R v Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, which sets out the governing principles, as well as guidelines, for sentencing ranges where sexual offences have been committed against children.

3Defence argues that the circumstances of this case and this offender warrant a deviation from the guidelines set out in Friesen and seek a custodial sentence of 2 years less 1 day to be served conditionally followed by a 2 or 3 year probation order. Defence notes that while the sexual offence is serious, the acts for which the accused was convicted are limited to rubbing, touching, and hugging, and do not involve penetrative acts. Defence highlights that although Mr. Hall has lived in Canada for over 20 years, he is not a Canadian citizen and, therefore, a custodial sentence greater than six months or a custodial sentence that cannot be served as a conditional sentence will likely result in his deportation back to Ireland.

4The issue to be decided is what is a fair and reasonable sentence. All references are to the Criminal Code, R.S.C. 1985, c. C-46, unless otherwise stated.

General principles of sentencing

5Section 718 sets out the fundamental purpose and objectives of sentencing. The provision states as follows:

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.

6Denunciation requires that a sentence express society’s condemnation of the offence that was committed: R v Bissonnette, 2022 SCC 23, 469 D.L.R. (4th) 387, at para 46. Deterrence has two forms. Specific deterrence is aimed at discouraging the offender from reoffending, whereas general deterrence is aimed at discouraging members of the public who might be tempted to engage in the criminal activity for which the offender is convicted: Bissonnette, at para 47.

7In imposing a sentence, I also consider the proportionality principle, which is that the sentence must reflect the gravity of the offence and the responsibility of the offender: s. 718.1. Proportionality also has a restraining function and serves to guarantee that a sentence is individualized, just and appropriate: Bissonnette, at para 51.

8Section 718.2 sets out additional principles which must also be taken into consideration in imposing a sentence. Section 718.2(a) states that the court shall consider increasing or reducing the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and lists factors that are deemed to be aggravating. As discussed further below, I find the following aggravating factors are present in this case:

• s. 718.2(a)(ii): evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family;
• s. 718.2(a)(ii.1): evidence that the offender, in committing the offence, abused a person under the age of eighteen years;
• s. 718.2(a)(iii): evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and
• s. 718.2(a)(iii.1): evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

9Finally, section 718.2(b) to (e) requires a sentencing judge to consider the following additional principles when imposing a sentence:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Application of the sentencing principles

A. Circumstances of the offence

10Mr. Hall met the complainant’s mother in/around 2002. He was 20 and the mother was 28. They moved in together after about five months. The mother had one child, and Mr. Hall was in a loco parentis relationship with the complainant since the age of four. The complainant did not know her biological father. She testified that Mr. Hall was the only father she knew.

11The complainant testified that Mr. Hall groomed her and engaged in sexual activity with her as she entered into adolescence, and the sexual activity continued even after she moved out of the home at the age of 16. However, Mr. Hall was acquitted for all offences involving sexual misconduct before the complainant was 16. I did find, however, that Mr. Hall had exposed the complainant to pornography while she was still in the family home and under the age of 16: R v Hall, at para 89.

12The complainant testified that following her departure from the family home, she struggled with substance abuse and was, at times, homeless until she was 18 and moved to Kingston. During this period, the complainant had no real relationship with her mother, and Mr. Hall was her only family support.

13Mr. Hall was convicted of sexually assaulting the complainant after she moved out of her parents’ home at the age of 16. The sexual assaults involved sexual touching of the complainant’s legs, genital areas, and breasts.

14I found that during the period of these sexual acts, the accused had not withdrawn from a parental relationship with complainant: R v Hall, at para 86. On the contrary, Mr. Hall continued to financially support the complainant. He provided her with marijuana and also consumed it himself at her apartment. In addition, Mr. Hall would assist the complainant by providing her with rides for errands and dropping her home after the few visits she did have at the family home. It was while in the car and in her apartment that the sexual touching occurred. While in the car, Mr. Hall would put his hands on the complainant’s thigh and move his hands over her pants along her leg and towards her vaginal area. In addition, when Mr. Hall would come to the complainant’s home, he would lie on her bed with her, and she also sat on his lap. During this time, he touched her breasts under her bra. At times, he told her to sit on his lap while he felt her breasts under her shirt and bra. The facts in relation to these incidents are set out in further detail in my decision at paragraphs 17-28.

15Finally, I found that Mr. Hall’s inappropriate text messages to the complainant during this period corroborated her testimony of their continued contact after she left home and lent credence to her account of his sexually inappropriate behaviour: R v Hall, at para 85.

B. Aggravating factors

16Section 718.2 requires a sentencing judge to address the aggravating and mitigating factors and adjust a sentence upward or downward accordingly.

i. Breach of trust

17I find it is a highly aggravating factor that the sexual offences occurred on the accused’s stepdaughter. As she testified, Mr. Hall was the only father she ever knew. Mr. Hall was in a position of trust at the time and breached a duty of care owed to the complainant as her loco parentis father: R v Hall, at paras. 86-88; s. 718.2(a)(ii) and (iii). Moreover, Mr. Hall was well aware of the challenges the complainant was facing when she left the family home. Rather than assisting her with her substance abuse issues, he enabled her by providing her with marijuana, which he also used himself when with her. He took advantage of her vulnerability.

ii. Complainant’s youthful age and vulnerability

18The offences occurred when the complainant was 17-18, and therefore, in the eyes of the law, still a child. It is an aggravating factor when a criminal offence is committed on a person under 18: s. 718.2(a)(ii.1).

19Section 718.01 directs that in cases involving abuse of children, the sentencing judge must give “primary consideration to the objectives of denunciation and deterrence”. In Friesen, the Supreme Court of Canada noted that this provision reflects Parliament's intention to reset the approach to offences against children to better reflect the seriousness of these crimes: at para 102.

20Most notably, at paragraph 5 of Friesen, the Court writes about the vulnerability of children, the profound harm that results to children and families when children are wrongfully exploited, and the need to ensure sentences are proportional to the gravity of the offences:

[S]exual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

21The fact that the sexual acts did not involve penetration is immaterial. The sexual offences were exploitative and an affront to the complainant’s physical and personal dignity. Furthermore, while Mr. Hall was not convicted of committing any sexual offences while the complainant was still living in the family home, I found he showed the complainant pornography when she was a teenager, which is a form of grooming and constitutes an aggravating factor.

iii. Impact on the complainant

22The impact of the sexual assaults on the complainant, considering her age and personal circumstances, including her health and financial situation, is also an aggravating factor that I have considered: s. 718.2(a).

23The complainant moved to Kingston in September 2016 when she discovered she was pregnant and took steps to address her substance abuse. Her life gradually stabilized. She obtained further education and stable employment. The complainant is now partnered and the mother of two young children. In the fall of 2017, at the age of 21, she disclosed the incidents first to her mother who did not believe her and then to the police.

24It is to the complainant’s credit that she was able to make the turnaround that she did and is now living a healthier and more stable life. Nonetheless, it was clear during the complainant’s testimony and from her Victim Impact Statement that these sexual acts significantly impacted her. The complainant was an only child. Having become largely estranged from her mother during her teenage years, she felt hugely betrayed and exploited by the only person in her family she felt she could turn to for support. The complainant’s relationship with her mother only worsened after she disclosed the sexual offences to her, leaving the complainant now effectively without any family.

25In her oral and written Victim Impact Statement, the complainant discussed the physical, mental, and psychological impact the offences had on her. The complainant has suffered from depression, anxiety, anger, and low self-esteem. She struggles with trusting people, and this has impacted her relationships. She feels abandoned. Despite the progress she has made in various areas of her life, she finds it difficult to love herself and appreciate how far she has come.

iv. Nature, duration, and frequency of the sexual assaults

26The complainant could not put a number on how many times Mr. Hall would have touched her while they were driving in his car, but testified he touched her multiple times. Similarly, she could not specify how often the touching occurred while in her apartment, but believes he came over to her apartment about six to eight times: R v Hall, at paras 29-33.

C. Mitigating factors

27In considering the sentence to be imposed in this case, I must consider the particular circumstances of this offender as well as other mitigating factors.

28Mr. Hall is 41 years of age. He comes before this Court with no prior criminal record.

29A pre-sentence report was prepared which provides considerable detail about the history and circumstances of the offender. According to the probation officer, Mr. Hall was pleasant, open, and forthcoming in the preparation of the report, and did not appear to withhold information. He also provided the probation officer with contacts to verify information provided.

30Mr. Hall is from Northern Ireland. He spent his early years and youth in Wales with his mother and sister. His mother moved to Montreal in 1990, and he followed for one year before returning to Northern Ireland to live with his father for nine years and finish school. He describes himself as having an “unsettled” youth, but says that he was never involved in anything serious, largely because of his father’s status as a police officer. Mr. Hall returned to Canada in his early 20s and has been here since 1999. His mother passed away in 2008. His father and sister remain in Ireland.

31Mr. Hall met the complainant’s mother in 2002. They were together until just after the completion of this trial in 2022. During this time, Mr. Hall and the family lived in several provinces across Canada, including British Columbia (five years), Nova Scotia (one year), and Québec (several months), before settling in Ottawa in 2009. While Mr. Hall is a permanent resident, he did not take steps to become a Canadian citizen.

32Mr. Hall was asked about the reasons why he and the complainant’s mother separated. He attributed it to the fact that he and the mother raised a cat for 18 years, and its passing triggered their separation. The mother, on the other hand, explained, after being pressed by the probation officer during their interview on the issue several times, that the couple stayed strong through the ordeal of the trial, but eventually the situation took its toll on the relationship. The mother did not want to speak about the subject further. Although separated, the mother continues to maintain her support for Mr. Hall. She disbelieves the complainant, her daughter, and has not spoken to her since she reported the offences in July 2017. She filed a letter for the sentencing hearing attesting to Mr. Hall’s character and maintains her support for him which I have considered.

33Mr. Hall received a high school diploma and attended a technical college in Ireland. He has held a variety of jobs. While in Ireland, he did some work in computers, and since being in Canada, he has worked in construction, transportation, and sales. He is also an avid musician and has, at times, played professionally in a band. Mr. Hall is presently employed by a plumbing company as a consultant for the design of showrooms for bathrooms and kitchens. He has been in this position for five years, loves it, and finds it has been one of the greatest jobs he has ever had. He filed a letter of support from a friend and work colleague which I have considered.

34As noted in my trial decision, Mr. Hall is a cannabis user. He has taken medical marijuana to address various health ailments. He was diagnosed at an earlier age with colon cancer but is in full remission. Mr. Hall reports that the complainant’s mother used to cook with marijuana to assist him in managing his pain. Mr. Hall admitted to using cannabis recreationally a few times a week. Counsel takes the position he does not have a substance abuse issue.

35The accused maintains he is innocent of the offences.

36Mr. Hall was on judicial interim release while awaiting trial for a period of four years. During this time, he did not breach any bail conditions, and in this respect, defence argues he has demonstrated his ability to comply by a court order. The probation officer reports he is a good candidate for a community-based sentence and, if imposed, he would be referred to the Sexual Behaviour Clinic for an assessment from which treatment and programming would be determined. Details about the extent of the programming that is offered was not provided. The probation officer did caution that if a client is in denial, an assessment can prove to be futile.

37The probation officer reported following further inquiries that in the provincial jail system, persons may be eligible to serve time at the St. Lawrence Valley Treatment Centre, where programming is supervised by the Royal Ottawa Hospital, but it is unclear if this is sex offender specific programming. The probation officer reported that the federal penitentiary system has programs including the Sex Offender High Intensity Program, Moderate Intensity Program, and Institutional Maintenance Program at its various detention centers.

D. Collateral immigration consequences

38Mr. Hall has been in Canada for 20 years as a permanent resident. Defence counsel submits that should this court impose a jail sentence greater than 6 months, Mr. Hall risks being deported back to Ireland pursuant to s. 36 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) (“IRPA”): see also R v Ramzan at para 60. Defence argues that one exception might be if the jail sentence is served as a conditional sentence pursuant to s. 742 of the Criminal Code. Defence submits that a conditional sentence is not considered a term of imprisonment for the purposes of s. 36(1)(a) IRPA and would not lead to inadmissibility or a loss of appeal rights: R v Ramzan at para 62 quoting Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50.

39Defence argues that notwithstanding Friesen, the circumstances of this case and this offender warrants a sentence of less than 2 years jail and if the court agrees, urges that any jail sentence imposed be served conditionally to minimize the risk of the accused’s deportation.

40The Crown cautions against tailoring the disposition to allow for the accused to avoid deportation. The Crown argues that disproportionate sentences cannot be imposed by a judge in order to avoid collateral immigration consequences. The Crown relies on the decision in R v B.M., 2023 ONCA 224, where the Ontario Court of Appeal states as follows:

Disproportionate sentences cannot be imposed to avoid collateral immigration consequences which flow from other legislation… While these considerations may be taken into account, they cannot be applied in such a way as to result in the imposition of a sentence that is otherwise wholly inappropriate in the circumstances: B.M. at para 33; see also R v G.F., 2022 ONCA 44, at para 8.

41In R v Pham, 2013 SCC 15, the Supreme Court of Canada confirmed that collateral immigration consequences flowing from conviction are relevant in determining a fit sentence. Collateral consequences are neither aggravating nor mitigating factor because they do not relate directly to the gravity of the offence or the degree of the responsibility of the offender. Their relevance flows from the application of the principles of individualization and parity: at para 11.

42In other words, collateral immigration consequences form part of the court’s assessment of the personal circumstances of the offender including their prospects of rehabilitation which are relevant to the determination of a fit and appropriate sentence: at para 11. The jurisprudence recognizes that collateral consequences, including those related to immigration, could in some circumstances have a more significant impact on the accused than the criminal sanction itself. People who are deported may experience consequences such as leaving a home where they have been for decades, returning to a country where they no longer have personal connections, or separating from family ties they have developed in Canada: R v Wong 2018 SCC 25 at para 72.

43While the Supreme Court of Canada confirmed in Pham that judges may consider collateral immigration consequences in exercising their sentencing discretion, they warned that the discretion must not be misused to impose inappropriate and artificial sentences. As summarized in Pham at paras 14 and 15:

The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender: at para 14.

…The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament's will: at para 15.

44Recently in R v Sousa, the Ontario Court of Appeal reiterated the Supreme Court’s comments in Pham and surveyed cases where judges had adjusted their sentences to take into account unforeseen immigration consequences. The Court of Appeal noted that in these cases, sentences which were close to the six months’ imprisonment threshold were adjusted to account for significant immigration consequences: 2023 ONCA 100 at para 13. However, in Sousa, the Court of Appeal found that the facts before them related to forced vaginal and anal sexual assault were so egregious that no reasonable adjustment in the sentence could obviate any immigration consequences. While the Court of Appeal did proceed to reduce the sentence from 10 to 8 years jail, it did so for other reasons.

E. Penalty range and jurisprudence on sentences

45In Friesen, the Supreme Court of Canada declined to provide a starting point or set a range for sexual offences on children so as to permit discretion and flexibility for sentencing judges. However, the Court did send a message that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit penitentiary terms should be neither unusual nor reserved for rare and exceptional circumstances. The Court states:

D. (D.), Woodward, S. (J.), and this Court’s own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.), “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 35). That message is 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. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para 20). [Emphasis added.]: Friesen at para 114.

46In Friesen, the accused was 29 years of age with no prior criminal record. The accused had experienced an abysmal upbringing marked with his own sexual abuse. The accused was convicted of attempting forced fellatio on a four-year-old victim who was a stranger to him, and not in a position trust. In those circumstances, the Supreme Court found that the six-year sentence imposed for sexual interference was fit and appropriate.

47The range of sentences imposed for sexual assaults on children post-Friesen vary in accordance with the circumstances of the offence, the number and nature of the sexual acts, the number of victims involved, whether the offender was in a position of trust, and the circumstances of the offender including whether they have a prior criminal record. While no two cases are the same, I set out below some examples of sentences imposed post-Friesen involving elements of comparable circumstances to this case.

48In R v GR, 2020 ONSC 7411, aff’d 2022 ONCA 374, the accused was the stepfather to a 9-year old girl and was convicted of three incidents of sexual touching. The sexual acts included prying open the complainant’s legs, rubbing her vagina, exposing his penis, manipulating the complainant’s nipples, and touching the complainant’s vagina under her shorts and underwear. Defence sought a sentence of 2 years less 1 day while the Crown sought 6 ½ to 7 years jail. The sentencing judge found that the accused was in a position of trust and engaged in multiple incidents that had a profound emotional impact on the young complainant. In mitigation, the accused had no criminal record and was gainfully employed. In addition, the sentencing judge was aware of the impact of COVID-19 on prisoners and that a penitentiary sentence would result in the accused losing his right to appeal a deportation order. The sentencing judge found, however, that these collateral consequences could not reduce the sentence imposed such that it would be disproportionate to the gravity of the offence and the responsibility of the offender. Consequently, the judge imposed a sentence of 5.5 years.

49In R v TM., 2022 ONSC 4976, the complainant was the stepdaughter to the accused. The accused was found guilty of sexual assault in relation to three incidents that occurred during her teenage years. In one incident, the accused touched the complainant’s breasts. In a second incident he touched her vagina. In a third incident he engaged in touching and digital penetration. The accused had no prior criminal record and was identified to have mental health issues. He had a supportive family and was noted to be at low risk to reoffend. Defence sought a sentence of 2 ½ years jail while the Crown sought a penitentiary term in the range of 5 to 7 years. Notwithstanding the mitigating circumstances of the offender, the court imposed a sentence of 4 years due to the age and vulnerability of the complainant, the breach of trust, and the multiple incidents of sexual assault.

50In R v TJ, 2021 ONCA 392, the accused was convicted of sexually touching a 6 or 7-year old complainant who had slept over at his family home. The accused had directed the complainant into the bathroom at night where he made her rub his penis with her hand and then told her she could put her mouth on his penis. The complainant pulled away and left the room. The accused had no prior criminal record. The Crown sought 18 months to 3 years jail while defence asked for a conditional sentence of 9-12 months. The sentencing judge rejected the defence request for a conditional sentence and that found that the breach of trust and vulnerability of the young child warranted a jail sentence of nine months.

51On appeal, the Ontario Court of Appeal (“Court”) found that based on Friesen, the sentence was demonstrably unfit and increased the sentence to 24 months jail. The court reiterated the three relevant messages from Friesen: (1) the importance of properly considering the wrongfulness and harmfulness of sexual offences against children in determining a proportionate sentence; (2) the priority given by Parliament to the sentencing objectives of denunciation and deterrence for these offences; and, (3) the guidance given on the length of sentences for these offences: R v T.J. at para 18. In addressing the issue of wrongfulness and harm, the Court of Appeal emphasized the need to recognize the long-term effects of sexual assaults on children. Citing passages from Friesen, the Court of Appeal states at para 23:

The harm caused by sexual offences against children must be weighed “in a manner that reflects society’s deepening and evolving understanding of their severity”: at para 74. This includes considering, in addition to actual harm that may have been experienced up to the time of sentencing, the reasonably foreseeable potential harm that may only materialize later in childhood or in adulthood. To do otherwise would falsely imply that children simply outgrow the effects of sexual offences against them: at paras. 84-86.

52The Court also cautioned against prioritizing the sentencing principles that focused on the personal circumstances of the offender and the impact of a custodial sentence on the offender over other sentencing principles such as denunciation and deterrence which Friesen emphasized in cases involving sexual offences involving children: R v TJ at para 37.

53In R v Green, 2022 ONSC 3786, the accused was found guilty of sexually assaulting a 14-year old complainant on two occasions. The accused was 51 years of age and in a position of trust by virtue of his role as the complainant’s teacher. The sexual acts involved squeezing the complainant’s upper thigh, sliding a hand up her leg, and rubbing his hand over her chest and breasts. The accused had no criminal record. The Crown sought a sentence of three years and defence sought one year jail plus three years of probation. The sentencing judge found that Friesen changed the sentencing analysis and range of sentences for childhood sexual abuse. Having regard to the breach of trust, the accused’s grooming behaviour, and the resulting harm to the complainant, the court found that a fit sentence was 18 months imprisonment followed by three years of probation.

54In R v Lloyd, 2021 ONSC 6900, the accused was found guilty of sexual assault of a 10-year old complainant. The accused was a family friend and a person the complainant considered as a father figure. The accused touched the complainant’s vagina over her clothes while lying next to her in bed during a family overnight camping trip. The accused had no criminal record. He had a supportive family. Having regard to the breach of trust, the complainant’s age, the impact of the offences on her, and the court’s direction in Friesen, the sentencing judge imposed a sentence of 15 months jail and two years’ probation.

55In R v D.S., 2021 ONSC 3972, the accused was convicted of sexual assault following a judge and jury trial. The complainant was 13 years of age and the accused was her uncle. The complainant described 4-5 incidents of sexual touching that took place in the accused’s car and in the basement where she was living. The sexual acts involved the accused touching the complainant’s breast and legs and kissing her. The accused had no prior record and was employed. Citing the principles and sentencing framework set out in Friesen for offences involving children, the judge rejected the defence request for a 90-day conditional sentence and imposed a jail sentence of 15 months.

56In R v P.L., 2022 ONSC 452, the accused was convicted of sexual assault on a 16-year old who was visiting the accused’s family. The accused was 70 years of age and highly intoxicated having had possibly 10 to 12 drinks at the time of the offence. The teenage complainant had also consumed alcohol. She awoke in the middle of the night to find herself undressed with the accused performing oral sex on her. She tried to move away and the accused persisted in trying to penetrate her. In the morning, she awoke to find him trying to have oral sex on her again. The Crown sought a sentence of 2-3 years jail and defence sought a conditional sentence of two years less a day. The sentencing judge found there was a breach of trust and the accused had exploited a vulnerable young person who had been served alcohol. The sentencing judge considered the accused’s age, his Indigenous heritage, that he was in full remission from alcoholism for a lengthy period of time, that he was at low level of risk to reoffend, and that he had performed well on bail. While the accused expressed remorse, the sentiment was tempered by the “absence of a meaningful expression of insight into the effect of his actions.”: at para 91(f). The judge imposed a sentence of 12 months custody followed by a one-year period of probation.

57Defence suggests that notwithstanding the sentencing framework and guidelines set out in Friesen, a conditional sentence is available. In this regard, defence cites R v R.S. and R v Cacdac and R v S.C., 2017 ONCJ 891. I find these cases distinguishable for several reasons, but primarily because they do not involve sexual offences on children.

58In R v R.S., 2021 ONSC 2263, the accused was convicted of a sexual assault on a female friend following a night out together. This was not a case, where the offender was in a breach of trust position over a significantly younger complainant. The accused was an Indigenous young man with no prior criminal record. He was also highly remorseful, recognized that alcohol had played a strong factor in his conduct, and had strong prospects of rehabilitation. Based on these mitigating factors, and in particular the Gladue considerations, Justice Nakatsura found that a reformatory sentence served conditionally would be consistent with the principles of sentencing and imposed a conditional sentence of 2 years less one day for sexual assault: at paras 222, 223, 233, and 241.

59R v Cacdac, 2022 ONCJ 492 is also distinguishable. While a 16 month conditional sentence was imposed in this case, the case proceeded by way of summary conviction, the accused entered a guilty plea, the accused and complainant were acquaintances and the offence occurred following a date. In short, the offence did not involve a child or youth so as to invoke the legal sentencing framework set out in Friesen. Similarly, R v S.C. was also a case where the Crown proceeded by way of summary conviction and did case does not involve a sexual offence on a child/youth or breach of trust.

60While I was able to identify one case in which a conditional sentence was imposed post-Friesen for sexual assault on a young person, the circumstances of that case are also distinguishable. In R v T.M., 2022 ONCJ 600, Sigurdson J of the Ontario Court of Justice imposed a conditional sentence of 16 months for a sexual assault involved a single incident of touching by the accused of the complainant’s breast while she was sleeping. The accused was the complainant’s stepfather and in a position of trust. The distinguishing factors, however, were that the accused entered a very early guilty plea, was highly remorseful, and the Crown and defence proceeded on the basis of a joint submission on sentence.

61Finally, while Friesen does not close the door to the availability of conditional sentences, the Ontario Court of Appeal cautioned that conditional sentences for sexual offenses involving children will rarely be appropriate. As explained in R v M.M., 2022 ONCA 441 at paras 15-16:

[15] The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

[16] Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.

CONCLUSION

62This is a case where the accused was the complainant’s stepfather and the only dad she ever knew from a very young age. The accused was in a position of trust and breached that trust when he engaged in multiple sexual acts of touching the complainant’s legs, genital areas, and breasts. Mr. Hall’s inappropriate text messages echoed his abuse of her. There is some evidence of earlier grooming through exposure to pornography. In addition, these sexual acts occurred at a time when the complainant was still a teenager but had moved out of the family home. Mr. Hall was still in a loco-parentis relationship with the complainant. Furthermore, the complainant was struggling at the time with substance abuse and highly vulnerable. The sexual acts had a profound impact on her and resulted in destroying the family unit. In mitigation, Mr. Hall does not have a prior criminal record. He is gainfully employed and adhered to the conditions of his release while on bail.

63Upon consideration of all these factors, the principles of sentencing set out in the Criminal Code and emphasized in Friesen, and the sentencing ranges and jurisprudence for sexual offences involving children post-Friesen, I find a fit and appropriate sentence is a jail term of 2 years less a day followed by a period of probation for 2 years.

64In arriving at this disposition, I have considered the collateral immigration consequences to Mr. Hall who risks being deported back to Ireland after living in Canada for 20 years. However, I find that to accede to the defence request for a conditional sentence would, as stated in R v B.M, result in a disproportionate sentence that is wholly inappropriate in the circumstances of this case.

65Mr. Hall, you are ordered to serve two years less one day in jail. This means you will serve your sentence in the provincial jail system rather than the penitentiary. This will be followed by a two year probation order, the terms of which are as follows:

1. Keep the peace and be of good behaviour.
2. Report as directed to a Probation Officer within 48 hours and thereafter directed.
3. Attend and actively participate in any assessments and rehabilitation programs as directed by the Probation Officer including but not limited to sex offender programs or programs related to substances abuse.
4. Perform 100 hours of community service work.
5. No direct or indirect contact with the victim, A.C., and her children.

Ancillary orders

66Finally, the Crown seeks the following ancillary orders. Defence does not object. I find the orders are appropriate in this case.

1. A 20-year SOIRA order pursuant to s. 490.012(1) and 490.013(2)(b).
2. DNA order pursuant to s. 487.051(1) for the primary designated offence of sexual assault.
3. A 10-year firearm’s prohibition order pursuant to s. 109.
4. A non-communication order with the complainant pursuant to s. 743.21.
5. Victim fine surcharge in the amount of $600 within 30 days.

67Should there be any discrepancy in the wording of the oral and written decision, the written decision shall prevail.

Somji J.