R. v. S.E., 2023 ONSC 6259

COURT FILE NO.: 8500/21

DATE: 2023-11-03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

S.E.

Defendant

Matthew Caputo, for the Crown

Jessica Belisle, for the Defendant

HEARD: July 21, and September 15, 2023

rasaiah j.

reasons for sentence

OVERVIEW

[1] On April 19, 2023, during a period of remand after the commencement of trial, at the request of the offender, S.E., and on consent of the Crown, his plea of not guilty on count two of the indictment was struck.

[2] Count two alleged that S.E., between the 1st day of June in the year 1994 and the 30th day of November in the year 1996 at the Township of Michipicoten, in the said Region, being in a position of trust or authority towards J.E.L., a young person, did for a sexual purpose, touch directly the body of J.E.L., a young person, with a part of his body, contrary to Section 153(1)(a) of the Criminal Code.

[3] The offender was re-arraigned on count two and entered a plea of guilty. He agreed that the facts read in were substantially correct, and a finding of guilty was made on count two; a pre-sentence report was ordered; and the case was remanded to set a date for the sentencing hearing.

[4] The sentencing hearing was held July 21, 2023, and September 15, 2023.

INTRODUCTION

[5] Section 153(1)(a) of the Criminal Code provides:

153(1) Sexual Exploitation

Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whom the young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the young person, 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 […]

[6] The Crown submits that a custodial reformatory sentence of two years less one day is a fit sentence for S.E., along with ancillary orders. The defence joins the Crown’s submission that a sentence of two years less one day imprisonment is fit, but submits that a conditional sentence should be imposed, permitting the offender to serve his sentence in the community, followed by probation for a period of two years. The defence submits the offender is a changed man who lives a simple life with his m­other in Wawa, Ontario. He poses no risk to the community. Terms can be placed on the offender that will satisfy deterrence and denunciation, which the defence accepts are the primary considerations for sexual offences against children.

[7] The Crown opposes the imposition of a conditional sentence. They submit that this is not a case for which a conditional sentence should be imposed, and argue that this type of violent crime against children, that exploits their vulnerability, is prevalent in today’s society. The Crown specifically emphasizes that the offender was admittedly in a position of authority or trust at the time of the commission of the offence; that the victim was 14 years old when the exploitation started, and was 16 years old when it ended; that the offender took advantage of the victim for his own sexual gratification (he was the adult); and that there were numerous instances of sexual contact including full sexual intercourse. The Crown does not agree that a conditional sentence would satisfy the principles of denunciation and deterrence.

[8] In R. v. Friesen, 2020 SCC 9 [Friesen], the Supreme Court of Canada at para. 5 wrote:

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

[9] In Friesen, at para. 44, the Court went on to comment that this decision provides guidance to judges on the sentencing principles for the offence of sexual interference and closely related offences, such as sexual touching, sexual exploitation, incest, and sexual assault. In paragraphs 56, 59 and 64, the Court set out the contemporary understanding of sexual violence against children, which includes a developed understanding of the wrongfulness and harmfulness of sexual violence against children, and the actual and potential long-term effects it can have them.

[10] Friesen also set out a non-exhaustive list of applicable factors to consider when sentencing such sexual offences, of which I note the following paragraphs:

a. On likelihood to reoffend;

124 The offender’s likelihood to reoffend is clearly also relevant to the objective of rehabilitation in s. 718(d) of the Criminal Code. Courts should encourage efforts toward rehabilitation because it offers long-term protection (Gladue, at para. 56). Rehabilitation may also weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourable to rehabilitation than prison (see Proulx, at paras. 16 and 22). At the same time, depending on the offender’s risk to reoffend, the imperative of providing immediate and short-term protection to children may preclude early release. In these cases, efforts at rehabilitation must begin with such treatment or programming as is available within prison (see R. v. R.M.S. (1997), 1997 12497 (BC CA), 92 B.C.A.C. 148, at para. 13). In some cases, the only way to achieve both short-term and long-term protection of children may thus be to impose a lengthy sentence (see R. v. Gallant, 2004 NSCA 7, 220 N.S.R. (2d) 318, at para. 19, per Cromwell J.A., as he then was).

b. On abuse of a position of trust or authority;

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 14665 (NL CA), 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.

129 The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility. An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. The breach of the duty of protection and care thus enhances moral blameworthiness (R. v. S. (W.B.)(1992), 1992 2761 (AB CA), 73 C.C.C. (3d) 530 (Alta. C.A.), at p. 537). The abuse of a position of trust also exploits children’s particular vulnerability to trusted adults, which is especially morally blameworthy (D. (D.), at paras. 24 and 35; Rayo, at paras. 121-22).

c. On duration and frequency;

133 In sum, sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime. Judges cannot permit the number of violent assaults to become a statistic. Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risks of long-term harm will materialize.

d. On age of victim;

136 At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence.

e. On degree of physical interference;

140 We would not go so far in this case as to hold that defining a range or starting point according to the type of physical acts that it captures necessarily amounts to an error of law. However, we would strongly caution provincial appellate courts about the dangers of defining a sentencing range based on penetration or the specific type of sexual activity at issue.

f. On victim participation:

150 Some courts have, while acknowledging that a victim’s participation is not a mitigating factor, nevertheless treated it as relevant to determining a fit sentence (see Scofield, at para. 39; Caron Barrette, at para. 56). This is an error of law: this factor is not a legally relevant consideration at sentencing. The participation of a victim may coincide with the absence of certain aggravating factors, such as additional violence or unconsciousness. To be clear, the absence of an aggravating factor is not a mitigating factor.

[11] With respect to mitigating factors highlighted in Friesen, the Court commented on the following:

a. A child’s participating cannot be considered a mitigating factor (at paras. 149-154);

b. The personal circumstances of an offender can have a mitigating effect (at para. 91);

c. A guilty plea is a recognized and relevant mitigating factor (at para. 164); and

d. Remorse is a relevant mitigating factor (at para. 165).

[12] In Friesen, the Court made the following comment regarding the trial judge’s weighing of the aggravating and mitigating factors at para 174:

174 We share the Court of Appeal’s view that Judge Stewart properly weighed the mitigating factors. Friesen is a relatively youthful first offender and he experienced a traumatic and painful childhood involving physical, emotional, and sexual abuse. Judge Stewart was right to recognize these as “important” mitigating factors and to identify how Friesen’s traumatic and abusive upbringing could “shed some light” on his actions (A.R., at p. 2). However, Judge Stewart had to weigh these against the aggravating factors and the need to prioritize denunciation and deterrence as well as separation of Friesen from society because of the high risk he posed to children. This all supported a reasoned and principled basis to impose a substantial custodial term.

AGREED FACTS/CIRCUMSTANCES OF THE OFFENCE

[13] The offender, S.E., was born April 7, 1965. He was 29 in the summer of 1994, when the exploitation started.

[14] The offender was the employer at a restaurant in the Municipality of Wawa (formerly the township of Michipicoten) at all times during the time period of the offence.

[15] In the summer of 1994, the victim, J.E.L. (now J.G.) was hired as a dishwasher for the restaurant, where she worked from 1994 to 1996. Throughout her employment, the offender held a position of trust and authority over the victim as he was her employer and supervisor, her “boss”. She worked under, and reported directly to, the offender.

[16] Between June 1, 1994, and October 31, 1996, the victim was between the ages of 14 and 16. During that period, the offender and the victim had numerous occasions of sexual contact. The sexual contact between the victim and the offender included numerous occasions of full sexual intercourse.

[17] Due to the nature of the employment relationship, namely the offender was the employer and supervisor over the victim, she could not consent to sexual contact.

[18] The victim moved away from the Township of Michipicoten when she was 16 years old.

[19] The victim reported the sexual exploitation to police on August 16, 2019, and made a statement that led to an investigation which resulted in the offences being charged against S.E., that are now before the court.

[20] Ontario Provincial Police, during the course of their investigation, interviewed the offender on October 31, 2019. During this interview, the offender gave a full candid inculpatory statement to police, where in he admitted to sexual contact, including sexual intercourse with the victim. He admitted that he was in a position of trust and authority over the victim during the relevant time frame.

[21] The offender was arrested on February 4, 2020, and was then released on an undertaking that same day.

PRESENTENCE REPORT EXCERPTS (“PSR”)/CIRCUMSTANCES OF THE OFFENDER

[22] A PSR was filed, dated July 10, 2023, completed by Probation and Parole Officer Ryyppo (“Ryyppo”). Ryyppo reports that 11 sources of information were consulted to prepare the report. The Crown made no submissions about the veracity of the information gathered and/or reported by Ryyppo.

[23] The PSR sets out that S.E. is now 58 years of age. He has no criminal record. He was born and raised in Wawa, Ontario, and is the second of four children. He described his childhood as a “loud and chaotic household” for reasons outlined in the PSR.

[24] When S.E. was about eight years old, he was sexually abused by a friend’s uncle. When he was an adult, he reported the abuse to police, however, the investigation did not lead to charges. This left him feeling re-victimized without any closure. Having commenced the trial, I also note that S.E. in his statement to police, when describing multiple traumas he has been through, referred to this abuse, and described how he had reported it and that nothing had been done about it.

[25] The PSR reports that collateral sources confirmed that the offender was bullied by other children growing up. He was an honour roll student in grade nine and ten, however, as an adolescent, he started getting into trouble. His behaviours affected his grades, and he lost interest in school. He described being the “black sheep of the family”, becoming self-destructive, and began using substances. He was punished by the strap.

[26] The offender did graduate from high school, and went on to post-secondary school to complete a one-year chef training program.

[27] In terms of employment history, the offender started working at age 14. He worked in Wawa, Ontario, as a cook, before going to Toronto, Ontario. After working at several restaurants, he would make his way back to Wawa to open his own restaurant with the financial support of his parents. The offender also worked in the mining sector in Wawa, as well as the construction field out west. He thus, has a history of being a contributing member of society. Since he declared bankruptcy, he has not held consistent employment and has worked seasonally. He does not have any future employment plans.

[28] In terms of his past relationships, the offender met a woman in 1996, and they were together until 2008. The offender was experiencing substance use issues, financial issues and unresolved trauma, which contributed to the breakdown in this relationship.

[29] In 2001, while ice fishing with his father, his father became stuck in the slush, had a heart attack, and died. The offender continues to feel the trauma from this incident.

[30] The offender met and became involved with another woman after his relationship breakdown in 2008. However, that woman was involved in an accident that left her injured. On the same day as the accident, her son died by suicide. The offender reported that the woman left him and took his money. This led to his return to Wawa, Ontario, where he declared bankruptcy and moved in with his mother.

[31] The offender moved on to another relationship, however, five years ago, he found this girlfriend deceased at her home due to a medical episode. She was his sole source of support, and he has had difficulty moving past her untimely passing.

[32] In terms of substance abuse, the offender reports that he started drinking and using marijuana as a teenager. He has used cocaine, marijuana, and methamphetamines, and has experienced periods of substance misuse and sobriety. Substance use has been a means of coping with past trauma. He has attended residential treatment and counselling to address substance use, trauma, and mental health. The offender is currently not using alcohol but admits to some intermittent drug use (marijuana) with intention to abstain. Although not currently engaging with substance use counselling, he attends AA meetings, and he expressed a willingness to reconnect with counselling.

[33] In terms of his mental health, the offender reports that he grew up “angry” due to the negative and traumatic events he has experienced. However, he has been involved with mental health supports through residential treatment, counselling, and medication. He has also, in the past, disengaged from medication treatment as he did not feel the benefits from same. He suffers from PTSD and has suffered several major depression episodes. Christa Melo, Assessment Counsellor with the Wawa office of the Canadian Mental Health Association (CMHA) confirms that if the offender is willing to form a treatment plan to address his mental health concerns, he would benefit from individual counselling services that are available to him in the community.

[34] The offender’s sister is a registered nurse of 20 years in Wawa. The PSR notes that she confirmed that the offender experienced significant traumas in his lifetime; that he had difficulty fitting in when he was younger; that he has difficulty with concentration; and that she believes him to have an addictive personality. She also sees symptoms of depression with highs and lows with an ongoing mild suicide risk. She has attended some medical appointments with the offender and has witnessed his vulnerability and honesty with doctors.

[35] With respect to his community involvement, the offender has previously volunteered with the local food bank and at various community events.

[36] The offender’s family believes that his mental health would benefit from more structure, community involvement, and counselling to address his mental health concerns and past trauma.

[37] When asked about the offence, the offender accepted ownership for his actions and recognized that he was in a position of trust, as the victim’s “boss”.

[38] The PSR reports that the offender attended two appointments at the Wawa Probation office as scheduled. He actively engaged in the pre-sentence report, was polite, appeared forthcoming, and signed all requested releases of information. He also attended a follow-up telephone interview. He pledged his intention to abide by any conditions imposed upon him by the court.

[39] The offender reported to the writer (and in the past to his psychiatrist and to the police when interviewed) that at the time of the offence, he believed the victim to be older, and had believed that the sexual relationship was consensual, and that he had felt deceived. However, the offender did not present this as an excuse. The offender has reported sincere remorse notwithstanding and it presents as genuine. He recognizes that J.E.L. states that she did not consent, and given her age, was unable to consent. He takes full responsibility.

[40] The PSR recommends the following, should the court consider a period of community supervision in whole or part with its disposition, to assist the offender in addressing recidivism:

1. Report in person, as and when directed, by a probation and parole officer.

2. Attend and actively participate in programs, assessments, and counselling, as recommended.

3. Sign releases of information to assist in monitoring compliance, attendance, and successful completion of programming and counselling.

4. Abstain from the purchase, possession and consumption of alcohol and drugs except in accordance with a medical prescription.

5. Do not associate, communicate, or contact the victim directly or indirectly.

IMPACT ON THE VICTIM AND COMMUNITY

[41] A victim impact statement was filed. The victim provided a statement that describes the harm she has suffered and how she has been affected. It was not completed on the standard form. Counsel agreed to its filing as is, subject to submissions.

[42] The victim expresses that her children and husband have had to live with her anxiety and depression, which is a direct result of the repeated sexual assaults, and then PTSD. She received a very late diagnosis for PTSD, and the pain has been catastrophic to her personally and her family. She has been negatively affected to a great degree emotionally and mentally and her family has been affected by that. She has found some comfort in her faith. She expresses that she hopes the offender seeks forgiveness and that he is forgiven.

[43] I accept and acknowledge that this victim has suffered significant long-term negative impact. It is very admirable in my view, that part of her statement was centered on a hope that one day S.E. will be forgiven.

[44] As acknowledged by both Crown and defence, there are portions of the victim impact statement that refer to content that I acknowledge are not permitted to be considered. I have considered only those comments relating to the impact on the victim and her family as required in this sentencing. I have disabused myself of the rest.

MITIGATING/AGGRAVATING/OTHER FACTORS

[45] I considered the offender’s background including:

a) his age at the time;

b) his troubled family/behavioural issues attributed to lack of guidance and/or support;

c) report of childhood sexual abuse by a friend’s family member when he was eight years old;

d) report of physical and emotional family abuse;

e) that his father had an alcohol use disorder;

f) that he had difficult personal relationships;

g) that academic issues started arising for him in high school;

h) that he has suffered traumatic events including the loss of his father, loss of his girlfriend and other traumatic relationship related issues;

i) that he has had a variable but consistent employment history until Covid;

j) that he suffers chronic mental health issues (depression; PTSD; trauma; and being a victim of bullying);

k) he has substance abuse issues (alcohol and drugs – noting his recognition of same and willingness to reconnect with counselling, and also have a history of having taken steps to engage in treatment in the past and continue maintaining sobriety by attending AA);

l) that he made past contributions to the community as a volunteer;

m) that the offender is remorseful;

n) that the offender has accepted ownership for his actions; and

o) that he recognized he was in a position of trust.

[46] I am of the view that it would be fair to say that S.E. has faced multiple challenges and setbacks in his life and had a difficult childhood. His homelife he reported as chaotic. He suffered sexual abuse by his friend’s uncle at age eight, which has had a significant and life-long effects on him, in every area of his life.

[47] The offender is now taking mediation to address his mental health concerns. He filed a 2020-Mount Sinai Hospital report, on consent, which I reviewed. Dr. Peck was the staff psychiatrist who wrote the report. Dr. Peck reported an impression that S.E. is a man with a history of chronic depressive episodes including suicidal ideation with alcohol and cocaine disorders, which disorders were currently in remission with no acute safety concerns. Dr. Peck reports that S.E. benefits from his medications and has benefitted from counselling in the past.

[48] There are resources/assistance available to help the offender with his health and substance issues. As set out, he has benefitted from counselling in the past. Family members expressed that being in the community and having community involvement would be of benefit to S.E.

[49] The offender has the support of his sister who is a nurse, and who has confirmed a number of the significant traumas reported by the offender that he suffered.

[50] The offender has a supportive mother and has been acting as her caregiver. The defence filed a letter dated February 13, 2023, prepared by his mother. She is aging and relies on the offender for assistance and sense of security in order to continue to live independently. His assistances include, but is not limited to, daily household activities; managing snow in the winter; managing her wood stove; and managing other general chores around the home.

[51] As his mother ages, it is more challenging for her to live on her own without his support. She sustained fractures in 2019 which resulted in difficulty in meeting her activities of daily living. The offender lives with her, and she describes him doing many positive things for her. She also communicates a belief that sending the offender to prison would be detrimental to him and asks for leniency.

[52] A letter from his mother’s doctor also confirms their situation, namely that the offender is caring for, and provides support to, his mother.

[53] The evidence concerning his mother does, in my view, for purposes of sentencing, demonstrates that the offender is currently living a prosocial life.

[54] The offender has two adult children, ages 31 and 33. Little information was provided about them other than the offender reporting to Dr. Peck that he saw them once a year after he and his ex-wife separated and she moved away with them. The children were young when they moved, with his youngest being 8 or 9 at the time.

[55] I note that the offender, with respect to the investigation, cooperated with police and attended for questioning when asked. There were no issues with his arrest, and he was cooperative. Additionally, the following facts are undisputed:

a. The offender was released on an undertaking after his arrest, on February 4, 2020, which he complied with for approximately three years and eight months.

b. The offender has not interfered with any witnesses for the case.

c. The offender has refrained from any criminal activity since release.

d. The offender has been keeping the peace and being of good behaviour since charged and released.

[56] The offender does not have a record. He appears as a first-time offender with no other offences in approximately 27 years. He is now 58 years old, and was 28-29 years old in 1994).

[57] The plea of guilty came after the trial had commenced, which is not an early stage in the proceeding. However, it can be said that the time that was set aside for the trial was saved, and the victim was shielded from having to testify again regarding the events because of his decision to enter a plea of guilty.

[58] Defence counsel points to Crown disclosure which includes Facebook messages between the offender and the victim in which he expresses sincere remorse and accepts responsibility. He tells the victim that he has changed. In these messages, he encourages the victim not to carry guilt or shame, and that it is his to carry, not hers. These messages were sent prior to the investigation and his arrest. This, accordingly, corroborates that S.E. has been demonstrating genuine remorse for some time, and has been accepting responsibility for, and appreciates the wrongfulness of, his actions.

[59] At the conclusion of sentencing submissions, the offender addressed the court and advised of his remorse, with an apology for his actions. He stated that he behaved foolishly; advised that he has learned from his mistakes; that he has not consumed alcohol for 26 years; and that he has tried to be a better person. He stated that he sincerely apologizes to J.G. and society in general. Thus, to his credit, he has not engaged in minimization and takes full responsibility for his behaviour.

[60] The victim unquestionably has been impacted negatively and significantly as set out herein. She has been traumatically affected. Her family has been affected. The effects have been long-term. She has experienced PTSD, which can disrupt one’s whole life, job, relationships, health, and the enjoyment of everyday life, which I interpret the victim as communicating to the court. Namely, that this experience has disrupted her relationships, health, and enjoyment of everyday life. This is very aggravating.

[61] There is no question that S.E. was in, and abused, a position of trust or authority in relation to the victim. This is very aggravating.

[62] The victim was 14 to 16 years old over the course of the exploitation, a child, in a vulnerable group. The offender was her boss at the time, in a position where he ought to have appreciated same and the extent of harm that could be caused, and in a position where he ought to have appreciated the victim’s age. The stage of her adolescence has no bearing. He was the adult. Further, it would be an error in law to consider the victim’s participation in the acts. Accordingly, the offender’s degree of responsibility attracts high moral blameworthiness and increases the gravity of the offence. Full repeated acts of sexual intercourse while in a position of trust is a high level of violation. Long-term harm did materialize.

[63] In Freisen the Supreme Court of Canada wrote that: “…sexual violence against children remains inherently wrongful regardless of the degree of physical interference.” Nevertheless, the Court finds “…penetration, fellatio [as in the present matter], or cunnilingus…” to be sexually violent conduct (paras. 144-145). The acts complained of in this case were multiple and included full sexual intercourse when the victim was age 14 to 16, and accordingly, certainly very aggravating. That being said, on the agreed statement of facts, there is an absence in this case of certain other aggravating facts, such as additional violence or unconsciousness.

APPROPRIATE SENTENCE

[64] I have considered the principles of sentencing and the applicable provisions of the Criminal Code.

[65] I considered the case authorities and law submitted by the Crown and Defence and all of the above articulated to this point and reviewed authorities on range of sentence.

[66] A review of the case authorities supports both counsel’s submissions, that a sentence of 2 years less a day is appropriate in the case of a single count of sexual exploitation on comparison of the facts of this case with the facts in the authorities, including mitigating and aggravating factors: see Schedule A attached to this decision.

Conditional Sentence

[67] Next, based on submissions, counsel agree that a custodial sentence is the only appropriate sentence. The question is whether it should be in jail or outside of jail, under strict, jail-like conditions.

[68] Section 153(1.1), as it’s read today, has a mandatory minimum sentence. However, a conditional sentence is legally available in this case. S.E. was convicted of one count of sexual exploitation from the period between June 1, 1994, to November 30, 1996. Therefore, section 11(i) of the Canadian Charter of Rights and Freedoms is relevant and requires the court to look at the wording of section 153, and the law on conditional sentencing, between 1994-1996.

[69] Between June 1, 1994, and November 30, 1996, on an indictable offence, an offender was liable to imprisonment for a term not exceeding five years and there was no mandatory minimum for the offence of sexual exploitation. Conditional sentences were introduced into the Criminal Code in 1995 pursuant to Bill C-41, An Act to Amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c.22, s.6. This Act came into force on September 3, 1996, 130 Can. Gaz. 2718 (see: R. v. Pierce, 1997 3020 (ON CA), 1997 32 O.R. (3d) 321 (C.A.)). As such, prior to the conclusion of the period for which S.E.’s conviction spans, conditional sentences were an available option. The Crown did not dispute that conditional sentence was not an available sentence for consideration.

[70] From the date conditional sentences became available, being September 3, 1996, until May 2, 1997, section 742.1 read as follows:

742.1 Imposing of Conditional Sentence

Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court,

(a) Imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community,

the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

[71] In the case of R. v. R.A.R., 2000 SCC 8, the Court concluded that this amendment was meant to clarify that judges should consider the principles of sentencing twice: first when determining if and for how long incarceration was required, and then again when determining whether that sentence should be served in the community (at para. 10).

[72] I have dealt with the range and length of incarceration required above.

[73] As to whether the sentence should be served in the community, I noted that in R. v. M.M., 2022 ONCA 441, [MM] the Ontario Court of Appeal commented on Friesen and on conditional sentences for sexual offences against children, 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. [Emphasis added.]

[74] I acknowledge that MM unquestionably articulates that conditional sentences for sexual offences against children will only rarely be appropriate and their availability must be limited to exceptional circumstances that render incarceration inappropriate. The question that flows from this articulation is whether there are exceptional circumstances present in this case that render incarceration inappropriate. I further appreciate that there must be an evidentiary basis.

[75] In R. v. P.S., 2021 ONSC 5091 [PS], before imposing a conditional sentence, the Court at para. 70 confirmed that the following principles from Proulx are still applicable post-Friesen:

a. Conditional sentences are meant to be punitive in nature;

b. A conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions are imposed, and the term of the sentence is longer than it would have been imposed as a jail sentence;

c. A conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed;

d. When the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence;

e. While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may still be imposed even if such factors are present.

[76] In this case, recognizing the very aggravating factors and increased need for denunciation and deterrence for such offences, I find that a conditional sentence is appropriate in the circumstances even though these factors are unquestionably present. In my view, there is an evidentiary foundation present in this case that supports a finding that there are exceptional circumstances that would render incarceration inappropriate. I am of the view that sufficiently punitive and onerous conditions are imposable in this case to meet denunciation and deterrence that will realistically promote further sense of responsibility and rehabilitation to achieve long-term protection. I believe the offender will comply with conditions. I am satisfied that serving a sentence in the community would not endanger the safety of the community. The following are my reasons.

[77] S.E. on the record before me poses as a low to unlikely risk of re-offending. He comes before the court with no criminal record, a first-time offender, and presenting as having taken steps to better himself. He has worked on his issues with doctors, counsellors, and support groups and is willing to re-engage. He has expressed genuine remorse and has taken responsibility for his actions. He has not downplayed his culpability. The offender has been a contributing member of society and has volunteered in the community. He is currently living a prosocial life taking care of his mother, being of great assistance to her and living a quiet life.

[78] On my assessment, I believe that S.E. will unlikely find himself in a similar position in the future and has truly learned from the criminal justice process.

[79] S.E. has followed his release conditions for a significant period of time without issue. He presents as appreciating the full extent of the harm he caused, apologizing not only to the victim but to society in general. Specific deterrence, in my view, is not an issue.

[80] This offender has strong potential for continued rehabilitation with his insight and having supportive family members, one being a nurse. I believe him that he has changed. His alcohol and substance use disorders are in remission. He has refrained from alcohol consumption for 26 years. At the time he committed the offence, these disorders were live and out of control. He is currently on medication for his mental health issues.

[81] S.E.’s mental health struggles have been chronic, supported by Dr. Peck’s reported impression. S.E.’s chronic mental health issues include suicidal ideation. He also has a history of hypertension. He has suffered many instances of trauma. In 2020, S.E. received a DSM 5 diagnosis of persistent depressive disorder with intermittent major depressive episodes, cocaine use disorder and alcohol disorder, currently in remission. These are not minor mental health issues. Concern has been expressed by family members of S.E.’s detrimental decline, and that being in the community is a better place to further his rehabilitation and meet his health needs. S.E. has demonstrated rehabilitation potential and willingness to continue counselling.

[82] Importantly, S.E. himself was a victim of sexual abuse as a young child and was also a victim of emotional and physical abuse as a child and adolescent. His family life was chaotic. During the time frame of the offence, in my view, it would be fair to say that he was on a spiraling path of poor choices directly related to this background.

[83] In subsequent years following the sexual abuse he would experience chronic mental health issues, and alcohol and substance abuse/addiction. He was troubled and self-destructive. He suffered financial issues and declared bankruptcy. He would find himself questioning his sexual orientation.

[84] Regarding the sexual abuse, when S.E. reported same to the police as an adult, he felt re-victimized. This abuse was traumatic for him. This is apparent on his video statement to police, and seemingly to the PSR writer, and Dr. Peck. In my view, objectively, it can be said that he suffered from all the usual things that children who are victims of sexual abuse tend to struggle with throughout their life. During the period when S.E. was struggling with his traumas, which included the sexual abuse, he committed a sexual offence against J.E.L. S.E.’s struggles by the psychiatrist’s report filed, include the component of the sexual abuse he experienced as a child.

[85] S.E.’s experience is quintessential of the Court’s comments in Friesen, that victims like S.E. can become abusers themselves. In 2020, S.E. reported to Dr. Peck that the traumas he has faced have affected him and set him back in life. He reported that he is still reminded of the sexual abuse he suffered at times. It was still at the forefront of his mind in the statement he made to police in October of 2019. He reported to Dr. Peck that the investigation into the sexual abuse he experienced, which did not lead to charges, left him feeling re-victimized without any closure. In my view, this evidence establishes a correlation between the abuse he suffered, and the resulting life struggles he has dealt with and can be classified as a significant causal connection.

[86] In my respectful view, there are ways to impose a sentence that will meet the primary principles of denunciation and deterrence. The lengthiest conditional sentence can be ordered with strict terms including house arrest for a lengthy time frame, followed by a curfewed confinement, with terms for counselling, non-communication protection provision with the victim, community service, and prohibitions with respect to alcohol, substances, and weapons, followed by a lengthy term of probation with some similar terms.

[87] In sum, for all of these reasons, on the specific facts of this case, in respect of count two, I find that the just and fit sentence for S.E. is a conditional sentence followed by probation along with the required/appropriate ancillary orders.

ANCILLARY ORDERS

DNA Order

[88] In respect of count two, being a primary compulsory designated offence, it is mandatory that I direct that a DNA order issue pursuant to section 487.04 of the Criminal Code, in the prescribed form, authorizing the taking from S.E. the number of samples of bodily substances that is reasonably required for forensic DNA analysis.

Sex Offender Information Registration Act

[89] Pursuant to s. 490.012 of the Criminal Code, in this case, it is mandatory to direct that an order issue in the prescribed form requiring S.E. to comply with the Sex Offender Information Registration Act for a period of 10 years.

Section 109 of the Criminal Code

[90] On a first offence, pursuant to s.109 of the Criminal Code, it is mandatory to direct that an order issue a prohibiting the offender from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for ten years; and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

Other Possible Orders

[91] No orders pursuant to s. 161 of the Criminal Code was being sought. I agree that the facts of the case to not support the making of this order.

Victim Fine Surcharge

[92] As to victim fine surcharge, the amount is $200.

[93] The defence made no submissions as to why it should be waived and/or with respect to time to pay if it was ordered.

CONCLUSION

[94] For reasons stated, I sentence S.E. as follows:

1. On count two on the indictment, S.E. shall be imprisoned for a period of 2 years and is ordered to serve this sentence of imprisonment in the community, subject to complying with the following conditions, namely that he shall:

2. Keep the peace and be of good behaviour.

3. Appear before the Court when required to do so by the Court.

4. Report in person to a supervisor within 2 working days and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in his supervision.

5. Remain within the Province of Ontario unless written permission to go outside the province is obtained from the Court or his supervisor.

6. Subject to other conditions set out herein, notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change in employment or occupation.

7. Co-operate with his supervisor.

8. Sign any releases necessary to permit the supervisor to monitor compliance and provide proof of compliance with any condition of this Order to his supervisor on request.

9. Live at a place approved of by his supervisor and not change that address without obtaining the consent of his supervisor in advance.

10. Remain in his residence or on the property of his residence at all times for the first 12 months of the sentence (“home confinement”) EXCEPT:

i. between 12 pm and 4 pm every Saturday in order to acquire the necessities of life;

ii. for any medical emergencies involving himself or any member of his immediate family (spouse, child, parent, sibling);

iii. for going directly to or from and being at assessment, treatment, or counselling sessions. He will confirm his schedule in advance with the supervisor setting out the times for these activities;

iv. with the prior written approval of his supervisor which written approval is to be carried with him during these times, which includes taking his mother for appointments and attending medical or dental appointments;

v. for carrying out any legal obligations regarding compliance with this Conditional Sentence Order.

10. During his period of home confinement:

i. He shall not change his place of residence without first obtaining the written permission of his supervisor.

ii. He must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition.

11. Following his home confinement, for the balance of his sentence, remain in his residence or on the property of his residence at all times daily between the hours of 10 p.m. and 7 a.m. EXCEPT:

i. for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling)

ii. for going directly to or from and being at assessment, treatment, or counselling sessions. He will confirm his schedule in advance with the supervisor setting out the times for these activities;

iii. with the prior written approval of his supervisor which written approval is to be carried with him during these times;

iv. for carrying out any legal obligations regarding compliance with this Conditional Sentence Order.

12. He shall not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with J.E.L., now J.G.

13. He shall not be within 100 metres of any place where he knows J.E.L., now J.G. to live, work, go to school, frequent or any place he knows J.E.L., now J.G. to be.

14. He shall not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person.

15. He shall attend and actively participate in all assessment, counselling or rehabilitative programs as directed by his supervisor and complete them to the satisfaction of the supervisor and sign any release of information forms as will enable his supervisor to monitor his attendance and completion of any assessments, counselling or rehabilitative programs as directed. He shall provide proof of his attendance and completion of any assessments, counselling or rehabilitative programs as directed.

16. He shall not buy, possess, or consume alcohol or other intoxicating substances. He shall not possess or consume any unlawful drugs or substances (refer to the Controlled Drugs and Substances Act) except with a valid prescription in his name.

17. He shall perform 100 hours of community service work on a rate and schedule directed by his supervisor but must complete same at a rate no less than 6 hours per month. He shall complete the work as directed by and to the satisfaction of his supervisor. He must complete all of his community service hours within 18 months of the date of this Order.

18. I further direct that a probation order issue that is in addition to the conditional sentence order that will begin on completion of the conditional sentence and will be in force for a period of two years and that he must obey all the following conditions:

i. Keep the peace and be of good behaviour;

ii. Appear before the court when required to do so by the court;

iii. Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change of employment or occupation;

iv. Report to a probation officer within 2 working days after completion of his conditional sentence and thereafter when required by the probation officer and in the manner directed by the probation officer;

v. He shall not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with J.E.L, now J.G.;

vi. He shall not be within 100 metres of any place where he knows J.E.L, now J.G. to live, work, go to school, frequent or any place he knows J.E.L, now J.G. to be;

vii. He shall attend and actively participate in all assessment, counselling or rehabilitative programs as directed by his probation officer and complete them to the satisfaction of the probation officer. He shall sign any release of information forms as will enable his probation officer to monitor his attendance and completion of any assessments, counselling or rehabilitative programs as directed. He shall provide proof of his attendance and completion of any assessments, counselling or rehabilitative programs as directed.

viii. He shall perform 50 hours of community service work on a rate and schedule directed by his probation officer but must complete same at a rate no less than 3 hours per month. He shall complete the work as directed by and to the satisfaction of his probation officer. He must complete all of his community service hours within 18 months of the date of this Order.

3. On count two, the offence being a primary compulsory designated offence, I order that a DNA order shall issue pursuant to section 487.04 of the Criminal Code of Canada, in the prescribed form, authorizing the taking of, from S.E., the number of samples of bodily substances that is reasonably required for forensic DNA analysis.

4. Pursuant to s. 490.012 of the Criminal Code, I order that an order shall issue in the prescribed form requiring S.E. to comply with the Sex Offender Information Registration Act for the period of 10 years.

5. Pursuant to s. 109 (2) of the Criminal Code of Canada, I order that:

i. S.E. shall be prohibited from possessing any firearm other than a prohibited firearm or restricted firearm, and any crossbow, any prohibited weapon, restricted weapon, ammunition, and explosive substance for ten years beginning on the day on which the order is made and ending not earlier than ten years after conviction for the offence; and

ii. any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

6. I order that an order shall issue requiring that S.E. pay a victim fine surcharge in the amount of $200.

7. I direct that S.E. read or have read to him both the conditional sentence order and probation order and sign name.

8. As to counts one and three on the indictment, at the request of the Crown, they are hereby directed to be marked withdrawn.

Rasaiah J.

Released: November 3, 2023

Schedule A:

Table of Cases Considered

Name	Facts	Mitigating and Aggravating Factors	Sentence
R. v. Jongsma, 2021 ONSC 796	1 count child pornography. The offender’s USB had 24 videos of child pornography varying in length. Offender grew up with strict fundamentalist Christian family. He was a victim of sexual abuse by a family member as a child, which lasted 7 years. Specific deterrence was not an issue. General deterrence and denunciation could be satisfied by conditional sentence.	Mitigating: • Offender was child victim of sexual abuse for 7 years, which led to this offence. • He did not seek out the material. • Pursuing therapy, drug counselling, and toxicology screenings. • Remorseful. • Significant insight into his offences and understands gravity of offence. • Guilty plea. • Had not consumed drugs since his arrest, reducing likelihood of re-offending. • No criminal record. • Employment. • Pro-social friends and long-term relationship. Aggravating: • Quantity and nature of the child pornography. • He downloaded them (not just watching online). • Physical interference for the children in the videos was significantly intrusive.	1-year conditional sentence, and 3 years probation.
R. v. P.S., 2021 ONSC 5091	1 count of sexual exploitation. Historical sexual offence. On 3 occasions, offender performed oral sex on victim. Victim was 12-13, and offender was in mid-30s. Victim looked up to PS, who was an adult figure in his life. Trust relationship turned into one of dependency. PS had good life, finished school, and had employment. At sentencing, he suffered from Parkinson’s disease and required specialty care.	Mitigating: • No criminal record. • 71 years old. • Expressed true remorse, understanding, and insight into harm he caused. • Now understands wrongfulness of his behaviour and impact on victim. • Serious health issues. • Diligent about health and treatment plans. • Positive PSR; Strong social supports. • Low risk of re-offending. • No issues while on bail. Aggravating: • Multiple sexual acts. • Breach of trust. • Victim was 15 at the time. • Made marijuana available to victim. • Long-term significant negative impact on victim.	2-year conditional sentence minus a day, plus 1 year probation.
R. v. M.M., 2022 ONCA 441	1 count possession of child pornography and 1 count making child pornography. Complainant was foster daughter of MM’s aunt. Over 3-year period, MM (31 years old) and complainant (15 years old) exchanged texts discussing their desire to have sex with each other. They sent each other explicit photographs as well.	Aggravating: • Breach of trust. • Victim under 18. • Victim was child in foster care.	15 months’ prison followed by 12 months’ probation. (However, based on fact that accused had almost entirely completed sentence, the interests of justice would not be served by having him complete small final portion of sentence in jail.)
R. v. O’Neill, 2022 ONSC 5025	Conviction for 1 count of sexual interference arising from 2 incidents of digital penetration during a single occasion in complainant's bedroom while offender was intoxicated. Offender was family friend, and complainant was a 12-year-old babysitter for offender's children.	Mitigating: • Has support of some family and friends. • Favourable character references. • Followed all release conditions. • Some medical conditions and addictions. Aggravating: • Effect on victim was significant. • Little remorse and no insight into his behaviour.	18 months imprisonment.
R. v. Claxon, 2020 ONSC 7368	1 count of sexual interference (since indecent assault had since been repealed) and 1 count extortion. The offender manipulated his boyfriend to commit a sexual act with him, against the boyfriends’ younger sibling. The offender also committed a sexual act against the boyfriend, which all took place during the single incident. The defence was requesting a conditional sentence, given the offender’s serious medical concerns. However, denunciation and deterrence were only live sentencing principles needing to be addressed.	Mitigating: • 71 years old. • Had lived a crime free life, aside from this incident 40 years ago. • He pleaded guilty (after prelim). • Did not engage in minimization. • Took responsibility for his behaviour. • Remorseful. • Unlikely to re-offend. Aggravating: • Victim was 12-13. • Abused position of trust. • Degree of physical interference was high and had significant impact on the victim.	9 months in custody, followed by 12 months probation
R. v. B.M., 2023 ONCA 224	2 counts of sexual interference. The two child victims were stepsiblings who lived in the same family household. BM committed acts of sexual violence perpetrated over prolonged period of time. Trial judge granted conditional sentence. Court of Appeal overturned decision as there were no exceptional circumstances that would justify conditional sentence.	Mitigating: • BM was young when crimes occurred. • First time offender. • Remorseful • Pleaded guilty. • Mental health struggles. Aggravating: • Abused position of trust. • Extreme physical violation. • 2 victims. • Multiple acts of abuse over lengthy period of time. • Significant harm to the victims.	7 years imprisonment
R. v. Gunaratnam, 2021 ONSC 8270	Joint submission presented on 2 counts of historical sexual offences against 2 children (7 and 13 years old) on 2 occasions. In accepting the joint submission, the trial judge noted his "serious reservations" of its appropriateness.	Mitigating: • No criminal record. Aggravating: • Downplayed his own culpability. • Only expressed remorse after he was found guilty of first offence. • Abused position of trust.	2 years conditional sentence and 3 years probation.
R. v. Gutierrez, 2023 ONSC 2990	2 counts of sexual interference against stepson and step-nephew. On each occasion, the offender went into the children’s bedroom while they were sleeping and performed sexual acts on them.	Mitigating: • No criminal record. • Taken responsibility and expressed remorse. • Has generally led pro-social life. • Maintains employment. • Strong community connections. Aggravating: • Abused position of trust or authority. • 2 victims, on 2 occasions. • Offence had significant impact on both victims.	18 months’ prison, plus three years probation
R. v. Senwasane, 2022 ONSC 120	2 counts sexual assault (other charges were stayed). Historical sexual offences. Victim was 13-16 years old, working part-time at local bakery. Offender’s father owned bakery, and son supervised victim. Offender was 40 at the time of offence. On 3 occasions, assaults included intercourse. He did not accept responsibility or express remorse.	Mitigating: • No criminal record Aggravating: • Position of trust or authority. • Victim under the age of 18. • Offence had significant impact on victim. • 3 occasions of sexual abuse, over protracted period.	5.5 years incarceration.
R. v. M.R., 2023 ONSC 3812	1 count sexual exploitation, and 1 count sexual interference. MR was a female high school teacher who engaged in two lengthy sexual relationships with two students at different schools.	Mitigating: • Pleaded guilty four days before jury trial was to start (but 4 ½ years after arrest). • No criminal record. • Followed bail conditions. • Pro-social life apart from these incidents. • Genuine remorse and regret. • Started appreciating full extent of harm caused. • Strong rehabilitative potential. • Supportive family. Aggravating: • Significant breach of trust; was the teacher of one of the victims during the time of offence. • Significant duration and escalating behaviour. • Nature of sexual activity involved was extensive and involved sexualized communications, nude photos, oral sex, digital penetration, ejaculation, and repeated sexual intercourse with one of the victims. • Told one victim to lie to police. • Threatened one of the victims. • Significant impact on victims and their families.	Global sentence of 4 years in prison (2 years for each count)
R. v. Lavergne, 2023 ONCA 492	1 count sexual assault, and 1 count sexual exploitation. This was a sentence appeal, which was dismissed. Male high school teacher who maintained informal relationships with students. Atmosphere was often sexualized, independent of offences forming subject of prosecution. DR was 18-year-old victim who was assaulted on single occasion. A decade later, offender committed sexual exploitation on 16–17-year-old victim, LG, over 18-month period.	Aggravating: • Profound impact on LG. victims were vulnerable. • Abused position of trust and power. • Grooming behaviour. • High moral culpability.	Global sentence of 17-months imprisonment. (14 months’ prison for sexual exploitation, and 3 months prison for sexual assault, to be serve consecutively)

COURT FILE NO.: 8500/21

DATE: 2023-11-03

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

S.E.

REASONS FOR SENTENCE

Rasaiah J.

Released: November 3, 2023