COURT FILE NO.: CR-22-50000266 DATE: 20240308
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – I.C. Defendant
Counsel: Simran Dosanjh, for the Crown Brian Brody, for the Defendant
HEARD: March 8, 2024
SPIES J. (Orally)
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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way PURSUANT TO S. 486.4(2) of the Criminal Code.
REASONS FOR SENTENCE – PART 2
Overview
[1] On September 28, 2023, following a trial by judge and jury, I.C. was found guilty of one count of sexual interference contrary to s. 151(a) of the Criminal Code and one count of sexual assault contrary to s. 271(a) of the Criminal Code, both against his stepdaughter, A.W. The allegations were historic, dated back to some time between 2008 and 2010, approximately eleven to thirteen years prior to I.C.’s arrest in July 2021. At the outset of the sentencing hearing, Ms. Dosanjh for the Crown agreed that one of the convictions should be conditionally stayed pursuant to the principles in R. v. Kienapple, [1974] S.C.J. No. 76 (S.C.C.), because both convictions arose out of the same circumstances. As she requested, a conviction on count #1, the charge of sexual interference was entered and count # 2, the charge of sexual assault, was conditionally stayed.
[2] Sentencing submissions were made by both the Crown and defence on December 1st, 2023. Both the Crown and the defence submissions were based on the presupposition that for the purpose of sentencing I would find as fact that the jury would have found I.C. guilty of two separate incidents, referred to in this trial as the "Horsey Incident" and the "Oral Incident".
[3] On January 10th, 2024, I gave reasons for why, after assessing the credibility and reliability of the complainant and her mother that I could not find whom to believe with respect to the "Oral Incident" which I.C. denied had occurred when he testified. As a result, I stated that sentencing would only be based on the "Horsey Incident”; see R. v. I.C., 2024 ONSC 156 (“Sentencing Decision Part 1”).
[4] As I found the facts for the purpose of sentencing to be quite different that the facts relied upon by counsel in their sentencing submissions, I advised counsel that before I would proceed to sentence I.C., they would have an opportunity to make further submissions as to what an appropriate sentence should be based on my factual findings. In addition, counsel were advised that the statutory minimum sentence for sexual interference was struck down in R. v. B.J.T., 2019 ONCA 694 and that a conditional sentence was available on sexual interference as a result of the ruling in R. v. Sharma, 2020 ONCA 478.
[5] I received further written submissions from counsel and I.C. is before me again for this final sentencing hearing and the imposition of sentence.
Circumstances of the Offence
[6] I reviewed the evidence concerning the Horsey Incident in my Sentencing Decision Part 1 and I will not restate all that evidence. In summary, the complainant testified that I.C. pulled her on top of his pelvis, while he was lying on the bed in the master bedroom, and that he then began to move her up and down. She testified that I.C. held her by the arms and refused to stop when she asked him to. He got "more aggressive" and told her that “horsey doesn’t want to stop”. She also testified that she felt something that she now knows was an erection-in other words an erect penis. After she asked him to stop a number of times, I.C. let go of her arms and she got off the bed.
[7] There was an inconsistency in the complainant’s evidence as to how long the incident itself lasted. Initially she said it lasted about 20-30 seconds. In cross-examination she testified that this was how long she felt the erection. In any event at most this incident did not last longer than a minute or two and there was not attempt by I.C. to remove any of his or the complainant’s clothing.
[8] I found for the purpose of sentencing that what was alleged by A.W. with respect to this incident occurred as she testified to at trial and that this finding supported the finding of guilt by the jury of both charges.
Circumstances of I.C. and the Complainant
[9] The circumstances of I.C. and the complainant are set out in my Sentencing Decision Part 1.
Positions of Counsel
[10] Based on only the facts of the Horsey Incident the Crown submits that a jail sentence in the range of 18 months to 2 years along with the following ancillary orders:
a) a DNA order, pursuant to section 487.051(1) of the Criminal Code;
b) a mandatory weapons prohibition order for a period of 10 years, pursuant to s. 109(1) and (2) of the Criminal Code;
c) an order that I.C. comply with the provisions of the Sex Offender Information Registration Act, pursuant to s. 490.012 of the Criminal Code;
d) an order pursuant to s. 743.21 of the Criminal Code, prohibiting I.C. from communicating with A.W. during the custodial period imposed; and
e) an order, pursuant to s. 161 of the Criminal Code, prohibiting I.C. for a 10-year period from:
i) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; from being within two kilometers of any place where A.W. ordinarily resides, attends school, or is known by I.C. to be;
ii) seeking, obtaining or continuing any employment, whether or not such employment is renumerated, or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and
iii) having any contact with a person who is under the age of 16 years old, pursuant to s. 161(1)(b) of the Criminal Code.
[11] Ms. Dosanjh submitted that this order should include I.C.’s biological daughters.
[12] Mr. Brody submitted that a fit sentence in all the circumstances would be an 18–24-month conditional sentence, with strict conditions of house arrest. In the alternative, the defence submits that a 60-to-90-day term of incarceration, to be served on an intermittent basis, is an appropriate and fit sentence. With respect to the ancillary orders requested, the only issue Mr. Brody raised was the ability of I.C. to see his biological daughters.
Legal Parameters
[13] The conviction for sexual interference contrary to s. 151(a) of the Criminal Code carries a maximum sentence of 14 years and a minimum punishment of imprisonment for a term of one year. The Ontario Court of Appeal has struck down the mandatory minimum of 12 months imprisonment in R. v. B.J.T., 2019 ONCA 694.
Principles of Sentencing
[14] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to ensure respect for the law and the maintenance of a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives referred to in that section, which the sentence I impose should attempt to achieve. These are denunciation and deterrence; both specific and general, separation of offenders from society, when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility in offenders and acknowledgment of the harm which criminal activity brings to our community. However, Parliament has prioritized denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code.
[15] In addition, in imposing sentence I must consider the principle of proportionality and the applicable aggravating and mitigating circumstances relating to the offences as set out in s. 718.2. In particular, ss. 718.2(ii.1), (ii.2) and (iii) provide that the fact I.C. abused a member of his family, abused a position of trust and authority related to A.W. and the fact that she was under 18 years old at the time are all aggravating factors. In addition, s. 718.2(iii.1) requires that I can consider the significant impact of the offences on A.W. as she expressed in her evidence at trial and in her VIS.
[16] As the Supreme Court of Canada instructed in R. v. Parranto, 2021 SCC 46, at para. 10, proportionality is the organizing principle in reaching the goal of a fair, fit and principled sanction for a specific case; the principles of parity and individualization, while important, are secondary principles. As Fairbairn A.C.J.O., speaking for the court stated in a recent decision of the Court of Appeal, R. v. K. (A.J.), 2022 ONCA 487, 162 O.R. (3d) 721 at para. 81, the principle of parity is a tool that helps calibrate proportionate sentences because, at its core, parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way by reference to sentences that have been imposed in other cases. She continued at para. 82 to refer to the principle of individualization as another tool designed to help calibrate proportionate sentences in that it demands focus upon the individual circumstances of each offender.
[17] As this will be the first time I.C. is sentenced to a custodial sentence, I must also consider R. v. Priest, [1996] O.J. No. 3369 from the Court of Appeal where at para. 23 the court held that even where a custodial sentence is appropriate, a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the defendant rather than solely for the purpose of general deterrence. However, in R. v. Thurairajah [T. (K.)], 2008 ONCA 91, 229 C.C.C. (3d) 331 at para. 41, Doherty J.A. observed that for serious crimes of personal violence, particularly sexual assaults, while rehabilitation and other sentencing objectives remain important, denunciation and general deterrence "gain prominence" even in cases involving first offenders.
Relevant Sentencing Case Law
[18] Both counsel relied on R. v. Friesen, 2020 SCC 9, [2020] 1 SCR 424 and the statements made by the Supreme Court of Canada about the offence of sexual interference and related sexual offences against children and for its statements about the harmful effects of these types of offences. I will not repeat all of the principles from this case, but with respect to sentencing they include the following:
a) female children are particularly vulnerable and are disproportionately impacted by sexual violence, at para. 68;
b) sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence, at para. 74;
c) courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence. The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender, at para. 75;
d) the court must recognize and give effect to (1) the inherent wrongfulness of these offences and (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences, at para. 76;
e) while the degree of physical interference and intensity of physical and psychological violence can vary depending on the facts of an individual case "any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury," at para. 77;
f) even a single instance of sexual violence can "permanently alter the course of a child's life;" at para. 58;
g) these types of offences embrace a wide spectrum of conduct and an offender’s conduct will be less morally blameworthy in some cases than in others, at para. 92;
h) an offender’s likelihood of reoffending is relevant to the objective of rehabilitation, at para. 124;
i) any breach of trust is likely to increase the harm to the complainant and thus the gravity of the offence, at para. 125;
j) the duration and frequency of sexual violence is a further important factor in sentencing as it can significantly increase the harm to the complainant, at para. 131;
k) the age of the complainant is a significant aggravating factor and impacts the gravity of the offence and the degree of responsibility of the offender, at para. 134;
l) the degree of physical interference is a recognized aggravating factor and reflects the degree of violation of the complainant’s bodily integrity, the sexual nature of the touching and its violation of the complainant’s sexual integrity, at para. 138; and
m) courts should not assume that there is any clear correlation between the type of physical act and the harm to the complainant. Judges can legitimately consider the greater risk of harm that may flow from specific physical acts such as penetration, however, “even mild non-consensual touching of a sexual nature can have profound implications for the complainant”, at para. 142.
[19] The Court went on to state that although it was not its role to establish a range or to outline in which circumstances substantial sentences should be imposed or to set out binding or inflexible quantitative guidance, the overall message that is clear 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. The Court added that substantial sentences can be imposed even where there was only a single instance of sexual violence and/or a single complainant, at para. 114.
[20] Finally, in terms of general sentencing principles that I must consider, the Crown relies on R. v. J.(T.), 2021 ONCA 392, 156 O.R. (3d) 161, where at para 37 the court held that while other sentencing objectives such as rehabilitation, and the effect a sentence may have on an offender, will always warrant consideration, the objectives of denunciation and deterrence must take priority in assessing sexual offences against children. It is an error to give priority, or even equal weight, to other sentencing principles.
[21] Both counsel provided new authorities for me to consider in support of their respective positions.
[22] Ms. Dosanjh submitted that the cases she relies upon, suggest that a sentence in the range of 18 months to two years would be appropriate in the circumstances and would give effect to the clear principles, factors, and direction provided by the Supreme Court in Friesen. She provided four cases and submitted that the case at bar is factually similar to these cases and in fact this offence was more serious because of certain aggravating factors. As I will explain, in my view all of the cases from this court that Ms. Dosanjh relies on were more serious and in particular, the degree of physical interference, as a recognized aggravating factor in Friesen, was more significant than the case at bar. Those cases are as follows:
[23] The offender was found guilty of two counts of sexual interference: one with his nine-year-old niece and the other with his two-year-old daughter. He had masturbated on his two-year-old daughter and had put his hands down his nine-year-old niece’s pants to touch her vagina for approximately five seconds. The incident with the nine-year-old, which the Crown relies on, occurred at a hotel room after the accused was “goofing around on the bed” with his son and the complainant. Justice Davies imposed a two-year sentence for sexually interfering with the nine-year-old.
[24] I accept that there are similarities to the case at bar in terms of the age of the complainant and the touching was by a person in a position of trust although as the Crown argues not as strong as this case where I.C. was the complainant’s father. I also accept in this case the offence occurred in the family home. That said, it is in my view an important distinction is that the offender in J.C. put his hands down his niece’s pants and touched her vagina. In my view, the gravity of that offence is considerably more serious than the case at bar.
[25] The complainant was the seven-year-old daughter of the offender at the time of the incident. She was lying in bed when her father came to bed. She had her back to him, but as she was falling asleep, she felt him pull her pyjamas down to her knees. She either told him not to pull her pyjamas down or asked him why he was doing so. She then felt her father place his bare penis on the top of her buttocks for two to three seconds and then between her legs. There was no penetration. Justice Shaw imposed a custodial sentence of two years less a day, followed by three years of probation, for a single count of sexual interference.
[26] I accept that there are similarities to the case at bar in terms of the age of the complainant and the touching was by the complainant’s father and the touching occurred in a bedroom in the family home. That said, it is in my view an important distinction is that the offender in S.D.C. pulled his daughter’s pants down and then touched her with his bare penis. In my view, the gravity of that offence is considerably more serious than the case at bar.
[27] I did not find this case of assistance as there are too many differences. The offender was a high school teacher who on one occasion grabbed the complainant's thigh, squeezed it, and then slid his hand higher on her leg while asking if she was looking for a boyfriend. On a second occasion, he touched her chest and moved his hand to her breast, over her clothes. He did not have a criminal record. I accept that like the case at bar the touching was over clothing, but the complainant was a student of the offender, the touching occurred twice and there was a finding that the offender had been engaged in grooming behaviour prior to these assaults that was not spontaneous but rather was part of a “long and escalating series of transgressive behaviors and words”. In addition, the court found that statements of the offender blaming the complainant revealed a “startling lack of insight and a disregard for appropriate personal boundaries”.
R. v. Lloyd, 2021 OJ No 5163 (unreported)
[28] Of the Crown’s cases, this case is the most similar to the case at bar. In this case, Justice Wheeler of the Ontario Court of Justice imposed a 15-month sentence for a single count of sexual assault, against at 10-year-old complainant. The offender touched the complainant’s vagina, over her clothes, while lying next to her in bed. The complainant viewed the offender as a father figure. I agree, as the Crown argues, that like the case at bar, this touching was over clothing, although the fact the touching was of the complainant’s vagina, in my view, is a distinction. I also agree that the position of trust that I.C. occupied was more significant because he lived with the family and had assumed a parental role although the complainant testified that she did not call him dad.
[29] Mr. Brody provided a number of cases that were decided before Friesen. Unfortunately, they are therefore not that helpful. Friesen marked a turning-point in sentencing in sexual assault cases involving children and provided clear direction to this court to consider imposing more significant sentences.
[30] Mr. Brody did refer me to some cases that were decided after Friesen, as follows:
R. v. S. (R.L.), 2020 ONCA 338
[31] In this case the Court of Appeal dismissed an appeal against a nine-month sentence for a 51-year-old first-time offender convicted of sexual offences against his four-to six-year-old daughter. However, as the Court of Appeal stated in R. v. J. (T.), supra, at para. 44, in that case the issue was whether the sentence was too harsh. In explaining why, it was inappropriate to reduce the sentence, the court noted that the sentence was "lenient in light of the principles explained in R. v. Friesen": at para. 9. The court was not required to consider the question of whether the sentence was so lenient that it was unfit.
[32] Mr. Brody also relies on R. v. Gunaratnam, 2021 ONSC 8270 in support of his position that I.C. should be sentenced to a conditional sentence. In that case Justice Schreck imposed a conditional sentence of two years less a day where I agree that the offences were far more serious than the case at bar. The difficulty in relying on this case however is that Schreck J. was dealing with a joint submission and although the offender had pleaded not guilty, by the time of sentencing the offender had admitted his crimes and claimed to be remorseful.
[33] Justice Schreck did consider the jurisprudence relied upon in support of a conditional sentence and held, at para. 31 that he was only aware of only two post-Friesen cases where conditional sentences were imposed for sexual exploitation convictions: R. v. P.S., 2021 ONSC 5091 and R. v. K.K., 2020 ONSC 7198. He noted that in both cases, concerns about the offender's health if incarcerated appear to have played a central role in the decision to impose a conditional sentence: P.S., at para. 81; K.K., at para. 31. In the case at bar there is no health concern either.
[34] Justice Schreck stated at para. 34, that the second prerequisite in s. 742.1(a) of the Criminal Code is that a conditional sentence must be "consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2." He went on to say: “In light of the dicta in Friesen, I have serious reservations in this regard. Ordinarily, I would not hesitate in rejecting a conditional sentence in the circumstances of this case. The only reason I am considering it is because there has been a joint submission”.
[35] One decision that I do find helpful, that Mr. Brody referred to is R. v. A. (R.), 2022 ONSC 1161. In that case the offender was convicted of sexual interference against his 11-year-old stepdaughter that started with hugging and kissing with his tongue and ended 10 seconds later after he put his hands down her pajama shorts and touched her vagina on the "inside." He was also convicted of a second count related to his having kissed his daughter on the lips on two separate occasions when they were alone in a car. The offender, age 41, had no criminal record and a history of employment after the family immigrated to Canada from Chile.
[36] Justice Goldstein considered the most important aggravating factor to have been the gross violation of trust by a person that the complainant called "Dad." Having regard to other aggravating factors - the complainant's young age, two to three occurrences and digital penetration, recognizing that even non-penetrative sexual abuse can be highly traumatizing - the offender was sentenced to two years imprisonment on the first count and six months concurrent on the count based on the two kissing incidents. Mr. Brody submits that this case is factually more aggravating than the case at bar. He submits that the facts related to two kissing incidents are similar and support a six-month sentence in this case. It is hard to compare the facts of that case and the case at bar, but I agree both cases are at the low end of the spectrum.
[37] Counsel made brief oral submissions today to supplement their written submissions.
[38] Ms. Dosanjh advised me that there is a recent case from the Court of Appeal on the issue of whether a conditional sentence is appropriate in these circumstances: R. v. B.N., 2023 ONCA 224. In that case
[39] The case of B.N. referred to and applied its earlier decision in R. v. M.M., 2022 ONCA 441, [2022] OJ No 2527, a case dealing with a conviction for child pornography. In M.M. the court found that a conditional sentence was demonstrably unfit in light of Friesen. At paras. 15-16 the court stated:
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.
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]
[40] The court in BN found that at para. 2, following M.M. that absent limited exceptional circumstances, conditional sentences for sexual offences against children will very rarely be appropriate. In that case the underlying facts of the were found to be “horrific”, at para. 40.
[41] Mr. Brody submitted that this is one of those rare cases where a conditional sentence is appropriate because this is a historical case and given the time that has passed the risk of reoffending is low. He also submitted that I.C. remains gainfully employed and I.C. advised me that he continues to provide financial support to his children.
Determination of a Fit Sentence
[42] I turn then to what is a fit sentence in this case.
[43] While I accept that deterrence and denunciation are the primary objectives, I must also consider I.C.’s rehabilitation. Although I have no specific evidence to assess the risk of I.C. re-offending in my opinion, given the historical nature of the offence and given I.C. is a first offender, and given I.C. has been on bail since his arrest on July 26, 2020, a period of more than two- and one-half years without incident, the risk of re-offence is very low. In my view, he does not require counselling.
[44] I find that the following facts are aggravating:
(a) A.W. was eight to 10 years old at the time of the offence.
(b) As her stepfather, I.C. was in a position of trust and authority in relation to A.W.
(c) The incident occurred in the family home where the complainant should have felt safe.
(d) I.C. physically restrained A.W. by holding her by the arms and became "more aggressive" when A.W. asked him to stop.
(e) The incident violated A.W.’s sexual integrity.
(f) The incident had a significant impact on A.W. and reflects many of the concerns highlighted by the Supreme Court in Friesen.
(g) The incident also had had a significant impact on A.W.’s mother.
[45] The Crown argued that because the sexual touching occurred as a pretense of a game, this resulted in a greater violation of the complainant’s trust and greater moral blameworthiness for I.C. In my view, to the extent that may be true, it is not a significant aggravating factor as the complainant only came to realize the sexual aspect of the conduct once she was older.
[46] With respect to the mitigating factors, the Crown submits that the fact that there was only a single instance of sexual abuse is not mitigating; it simply reflects the absence of an aggravating factor. I agree but as already stated, the court in Friesen stated that these types of offences embrace a wide spectrum of conduct and an offender's conduct will be less morally blameworthy in some cases than in others, at para. 92. The court went on at paras. 131 and 138 to specifically refer to the duration and frequency of the sexual violence and the degree of physical interference as factors in sentencing. In my view, considering the wide spectrum of conduct in these cases as demonstrated in the cases I have been referred to, and considering the facts that I have found for the purpose of sentencing, I.C.’s moral blameworthiness, and the seriousness of this incident, falls on the low end of the spectrum of such conduct. That is a relevant factor in considering the cases counsel referred to in terms of the important principle of parity.
[47] I accept however that sexual violence against children is inherently wrong, regardless of the degree of physical interference and that I must also focus on the wrongfulness and harmfulness of sexual offences against children. Even one instance as in this case can have a serious impact on a complainant as was the case here.
[48] I find that the fact I.C. has no criminal record or outstanding charges and that apart from these offences he has been a productive member of society for over 45 years to be mitigating factors. The fact that he has been employed steadily over the years except for when he suffered a serious injury and has been providing financial support for his children is also mitigating. As already stated, I also find the likelihood of him reoffending to be low.
[49] I.C. cannot be penalized for insisting on his right to a trial, but he does not get the benefit of a reduced sentence because of a guilty plea and an expression of remorse. This is a neutral factor.
[50] I.C. was arrested on July 26, 2021, and up to this date he has not been able to see his three daughters. Mr. Brody advised that otherwise his terms of release have not been onerous. I considered discounting his sentence pursuant to R. v. Downes, 79 OR (3rd) 321 (Ont. CA) as a result but as I have no evidence that I.C. sought supervised access to his children and given Mr. Brody did not provide any evidence on this point, I have not done so.
[51] I have considered whether a conditional sentence would be appropriate as the Crown is no longer seeking a penitentiary sentence. I accept that I.C. is a good candidate for a conditional sentence in the sense that he has led a pro-social life and will likely comply with any order a court might impose. I also think it is likely that serving his sentence in the community would not endanger the safety of the community. That said, in light of Friesen and the recent guidance from the Court of Appeal in M.M., supra, I have come to the conclusion that given the absence of any health concerns that the facts asserted by Mr. Brody to not fall into what the Court of Appeal likely had in mind in terms of “rare exceptional circumstances”. As for the length of a jail sentence, I have concluded that the sentence requested by the Crown is too long, but I have also concluded that this would not be an appropriate case for an intermittent sentence as proposed by Mr. Brody in light of the guidance expressed by the court in Friesen.
[52] In determining what I consider to be the fit and appropriate sentence, I have considered the objectives of sentencing that I have set out, the nature of the offence, the impact on the complainant, I.C.’s personal circumstances and the cases I have been referred to. I have concluded that a fit sentence in all the circumstances is 10 months, less pre-sentence credit which counsel agree is three days.
[53] As for the ancillary orders requested, in my view, the s. 161 order sought by the Crown should not preclude I.C. from seeing his biological daughters if he can satisfy a family court judge that he ought to be permitted to do so. In my view, given the historical nature of the conduct in this case that gave rise to the conviction, and my finding that the risk of re-offence is low, I hope that a judge considers my findings of fact and any other relevant evidence and will be able to determine what is in the best interests of these children, including whether or not there should be supervised access and if so, on what terms.
Final Disposition
[54] I.C. with respect to your conviction of one count of sexual interference contrary to s. 151(a) of the Criminal Code, I sentence you to a period of 10 months in custody less a pre-sentence credit of three days.
[55] I make a mandatory DNA order, pursuant to section 487.051(1) of the Criminal Code.
[56] I also make a weapons prohibition order for a period of 10 years, pursuant to ss. 109(1) of the Criminal Code.
[57] There will also be an order pursuant to s. 743.21 of the Criminal Code prohibiting you from communicating with A.W. during the period when you are in custody.
[58] In addition, I make an order that you comply with the provisions of the Sex Offender Information Registration Act, for a 20-year period pursuant to s. 490.012 of the Criminal Code.
[59] Finally, subject to the exception I will come to, there will be an order pursuant to s. 161 of the Criminal Code for a 10-year period prohibiting you from:
i) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
ii) from being within 2 kilometers of any place where A.W. ordinarily resides, attends school, or is known by I.C. to be;
iii) seeking, obtaining or continuing any employment, whether or not such employment is renumerated, or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and
iv) having any contact with a person who is under the age of 16 years old, pursuant to s. 161(1)(b) of the Criminal Code. This term of the order will not apply to your three biological daughters IF a family court judge orders that you may have access and contact with them, provided you comply with all of the terms of that order.
[60] Pursuant to s. 726(3) of the Criminal Code, the complainant would like to receive information about the administration of I.C.’s sentence. The complainant has been advised of her ability to apply to revoke or vary the publication ban in this case and I understand that she wishes the publication ban to remain in place for now.
Spies J.
Released: March 8, 2024
