WARNING
The Court hearing this matter directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT FILE NO.: CR-2022-02
DATE: 2024/08/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DEVIN LANGLOIS
Accused
J. Lefebvre, for the Crown
N. Lust, for Mr. Langlois
HEARD: July 23, 2024
HOLOWKA J.
REASONS FOR SENTENCE
[1] Mr. Langlois has been found guilty of sexual assault and sexual interference following a trial. The sexual interference count was stayed at the request of the Crown pursuant to the principle articulated in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
[2] Mr. Langlois met the victim, C.S., and her friend online, after which they communicated online for a few months. On May 17, 2020, Mr. Langlois met with C.S. and her friend in person late at night at a hockey arena parking lot. Sexual intercourse and oral sex took place between Mr. Langlois and C.S. in Mr. Langlois’ car. C.S. was 15 years old at the time. Mr. Langlois was 21 years old. I found that the defence of mistake of age was not available to Mr. Langlois.
[3] The Crown’s sentencing position is that Mr. Langlois should be sentenced to a period in the penitentiary for 24 months to 30 months. The Crown also seeks the following ancillary orders under the Criminal Code:
a. s. 743.31 order prohibiting contact with the complainant and her immediate family;
b. s. 109 order for a period of ten years
c. a s. 487.051 DNA order (primary designated offence)
d. a SOIRA order for a period of 20 years; and
e. a s. 161 order for a period of ten years.
[4] Concerning the s. 161 order, the Crown requests that the order prohibit the accused from:
a. 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;
b. being within 500 meters, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;
c. seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years;
d. having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.
[5] Mr. Langlois’ position on sentence is that the Court should impose a conditional sentence of 2 years less one day. In the alternative, should the Court determine that a conditional sentence order is not fit in the circumstances, a reformatory period of 12 months incarceration is sought. Counsel for Mr. Langlois takes the following position regarding the ancillary orders:
a. The Defence agrees with the Court imposing the s. 743.21 order as sought by the Crown;
b. The Defence opposes the Court making either the s. 161 or s. 109 orders;
c. A SOIRA order of 20 years applies to the circumstances.
[6] The victim has declined to provide a victim impact statement.
[7] A pre-sentence report was prepared and made available for sentencing submissions.
[8] I also had the benefit of the following material filed with the Court by the Defence:
a. Character reference letter, dated July 21, from the sister of Mr. Langlois, Ms. Ivy Langlois-Greenwood.
b. Character reference letter, dated May 13, 2024, by Mr. Justin Dupuis, owner of Rockland Pizza.
PRINCIPLES OF SENTENCING
[9] Under the Criminal Code, s. 718,
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[10] Under s. 718.1, it is a fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
CIRCUMSTANCES OF THE OFFENCE
[11] I must consider the principle that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence with the offender: Criminal Code, s. 718.2(a).
[12] The offence is a serious offence. The circumstances of the offence are set out in my written reasons for judgment. The acts of non-consensual sexual conduct consisted of sexual intercourse and oral sex. The victim was 15 years old and was vulnerable.
[13] The victim was contacted during the preparation of the pre-sentence report. She advised the writer of the presentence report that she did not intend to prepare a victim impact statement. She did advise the writer that “she felt very upset, vulnerable, and taken advantage of at the time of the offences. Now, she said she has “learned to live with it” and is coping the best way she can, although she said it still hurts when she thinks about it…”
[14] The victim advised the pre-sentence report writer that she is angrier with her friend than Mr. Langlois.
CIRCUMSTANCES OF THE OFFENDER
[15] Mr. Langlois is currently 25 years old. He has no prior criminal record.
[16] The pre-sentence report reveals that Mr. Langlois’ father committed suicide when Mr. Langlois was an infant. He was raised by his mother but was placed in foster care between the ages of fourteen and eighteen. Before that, he was physically and psychologically abused by members of his family over an extended period.
[17] Mr. Langlois’ mother and stepfather struggled with alcohol abuse. Mr. Langlois’ upbringing was troubled and chaotic. As the mother and stepfather did not know how to deal with Mr. Langlois’ apparent ADHD, Mr. Langlois became the focus of abuse in the family.
[18] Mr. Langlois has used alcohol since the age of nine. He grew up in households where heavy alcohol use was the norm. He abused alcohol between the ages of 14 and 18 but then experienced a period of sobriety. Mr. Langlois reported that he recommenced abusing alcohol after he was arrested for the present charges. Since then, he has regained his sobriety, only consuming alcohol on special occasions.
[19] In early 2024, Mr. Langlois worked as a seasonal worker at an amusement park in Moose Creek, Ontario. He has previously worked at a golf course and a pizza restaurant. In May 2024, he commenced working as a food production line worker for 30 hours a week.
[20] Mr. Langlois has admitted to suicidal thoughts on multiple occasions since his arrest for the present charges. The pre-sentence report outlines his attempts at self-harm.
[21] The pre-sentence report writer feels that Mr. Langlois would be suitable for a period of community supervision and could benefit tremendously from counselling related to past family trauma. The writer elaborated and recommended a condition for treatment/counselling for PTSD and that he attend the Royal Ottawa Health Care Group’s Sexual Behaviours Clinic for an assessment and follow their recommendations.
AGGRAVATING AND MITIGATING CIRCUMSTANCES
[22] I must consider the principle that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence with the offender: Criminal Code, s. 718.2(a).
Aggravating Circumstances
[23] There are several aggravating circumstances present in the case before me.
[24] C.S. was 15 years old at the time of the offence: Criminal Code, sections 718.01 and 718.1(a)(ii. 1).
[25] C.S. was vulnerable. This factor is apparent concerning the victim’s age and the isolated location of the offence: Criminal Code, s. 718.201.
[26] The sexual offence for which Mr. Langlois has been found guilty involved a very high degree of physical interference. C.S. continues to experience the impact of the offence: Criminal Code, s. 718.2(a)(iii.1).
[27] While Mr. Langlois did not express remorse for the offence when asked by the probation and parole officer during the preparation of the pre-sentence report, his failure to express remorse is not an aggravating factor.
[28] I do not find any proven planning or deliberation in this case. I agree with the defence submission that planning and deliberation are not aggravating circumstances established on the evidence.
Mitigating Circumstances
[29] There are also several mitigating circumstances.
[30] The abusive upbringing of Mr. Langlois is a mitigating circumstance that must be acknowledged and given considerable weight. I have considered the mental health circumstances of Mr. Langlois and his self-harming behaviour in the circumstances of the outstanding offences.
[31] Despite his challenges and the stress of his present circumstances, Mr. Langlois has taken steps to regain his sobriety for the past two years.
[32] The strong support of Mr. Langlois’ sister, Ms. Ivy Langlois-Greenwood, is a mitigating factor that must be acknowledged. Mr. Langlois is fortunate to have her steadfast support. I have also noted the letter of support from Mr. Dupuis.
[33] Notably, Mr. Langlois has no prior criminal record. This is a significant mitigating factor.
[34] The defence submits that the offence before me reveals a very low degree of moral blameworthiness on the part of Mr. Langlois. While I did not find any planning and deliberation present in the case before me, neither do I accept that the circumstances of this offence demonstrated a low degree of moral blameworthiness.
SENTENCES IMPOSED IN SIMILAR CIRCUMSTANCES
[35] An offender’s sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances: Criminal Code, s. 718.2(b)
[36] Counsel for the Crown and Mr. Langlois cited several cases during their sentencing submissions.
[37] The Crown cited two cases for me to consider:
a. R. v. Basso, 2024 ONCA 168: The accused was convicted of sexual assault with a minor and was sentenced to a (mandatory minimum) sentence of 12 months in jail followed by 12 months probation. The facts are similar to the case before me, except that Mr. Basso had a mild intellectual disability.
b. R. v. K.K.M., 2020 ONCA 736: The accused was convicted of sexual assault with a minor in circumstances where the defence of mistake of age was raised. The victim was 12 years old, and the accused built a Facebook relationship with the victim, which the trial judge described as grooming. Regardless of the term grooming, it is clear the behaviour of the accused K.K.M. was more extensive. The accused was sentenced to 3 years in the penitentiary. The judge had determined that there was no air of reality to the defence of mistake of age.
[38] The defence cited the following cases to me:
a. R. v. P.S., 2021 ONSC 5091: The 71-year-old accused was sentenced to a conditional sentence of two years less a day and one year of probation. He was found guilty after a trial for sexual exploitation for three incidents that occurred in 1988. This case was, notably, a case that post-dated R. v. Friesen, 2020 SCC 9.
b. R. v. W.G., 2019 ONSC 1146: The accused was found guilty of sexual assault. He was sentenced to a conditional sentence of one year in circumstances where the defence of mistake of age was engaged. Specifically, the defence points to paragraph 31 of the case, where the judge stated that the offence is more akin to negligence. This case pre-dated R. v. Friesen.
[39] While these sentencing cases relate to the mistake of age defence, they are nevertheless factually dissimilar to the case before me. Broadly, the range established by these cases ranges from a conditional sentence to three years in the penitentiary.
AVAILABILITY OF CONDITIONAL SENTENCE ORDER
[40] Section 742.1 of the Criminal Code gives a judge the authority to impose a conditional sentence instead of a jail term if the following criteria are satisfied:
a. The sentence of imprisonment must be for a period of less than two years.
b. The court is satisfied that the sentence served in the community would not endanger the safety of the community and is consistent with the fundamental principles and purposes of sentencing set out in sections 718 to 718.2 of the Criminal Code.
c. The offence is not punishable by a minimum term of imprisonment.
d. The offence is not one of certain listed offences such as murder, torture, or concerning terrorism or a criminal organization.
[41] The defence cited R. v. Wells, 2000 SCC 10 to me for the proposition that a conditional sentence has a deterrent and denunciatory effect. I accept this proposition as clear and well-established in the jurisprudence.
[42] In light of s. 742.1 of the Code and the cases cited by defence counsel, a conditional sentence is among the available sentencing options that I must consider.
IMPORTANCE OF DENUNCIATION
[43] In light of section 718.01 of the Criminal Code, in light of the victim's age, primary consideration shall be given to the objectives of denunciation or deterrence of such conduct.
[44] In determining the fit sentence in this case, I must have regard to the cornerstone case of R. v. Friesen 2020 SCC 9. It forcefully sets out the following considerations:
a. Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. This objective recognizes that protecting children from becoming victims of sexual crimes is vital in a free and democratic society.
b. Sentences must recognize and reflect both the physical and psychological harm that sexual offences against children cause and the wrongfulness of sexual violence. This fully reflects the "life-altering consequences" that can and often do flow from sexual violence.
c. Parliament has recognized the profound harm that sexual offences against children cause and has determined that sentences for such crimes should increase to match its view of their gravity.
d. In keeping with these initiatives, the following guidelines apply:
i. Upward departure from prior precedents and sentencing ranges could be required to impose a proportionate sentence;
ii. Sexual offences against children should generally be punished more severely than sexual offences against adults; and
iii. Sexual interference with a child should not be treated as less serious than sexual assault of a child.
[45] Regarding the gravity of sexual offences against children, the Supreme Court in Friesen observed that “it is not sufficient for our courts to simply state that sexual offences against children are serious.” The sentence imposed must give effect to
a. The inherent wrongfulness of these offences;
b. The potential harm to children that flows from these offences, and
c. The actual harm that children suffer as a result of these offences (Friesen at para.76)
[46] The Supreme Court emphasized the inherent wrongfulness of these offences against children. At para 154, the Court stated:
Finally, a victim's participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity between children and adults (George, at para. 2; R. v. Audet, 1996 CanLII 198 (SCC), [1996] 2 S.C.R. 171, at para. 23). We would adopt the words of Fairburn J. (as she then was) in R. v. J.D., 2015 ONSC 5857:
Nor is it a mitigating factor that a child appears to acquiesce or even seek out the sexual attention of an adult. Where children appear to be seeking out such attention, it is often an outward manifestation of the child's confusion arising from personal difficulties. It is the legal responsibility of adults who are faced with children who already exhibit signs of struggle, to protect them. Adults who see these situations as opportunities to satisfy their own sexual urges, are no better or worse than those who take steps to actively seek out their victims.
CUSTODIAL SENTENCES TO BE AVOIDED FOR YOUTHFUL FIRST OFFENDERS
[47] There are, of course, competing principles to the importance of denunciation and deterrence in this case. Here, Mr. Langlois is a first offender. He is also relatively youthful.
[48] It is well-established that rehabilitation and specific deterrence are the paramount considerations in sentencing a youthful first offender. As such, undue weight should not be placed on general deterrence: R. v. Beauchamp, 2015 ONCA 260 at para 379.
[49] The principle of restraint applies in this case. It is well-recognized that where an offender has never served a period of incarceration, the shortest sentence possible ought to be imposed: R. v. Hoang, 2024 OCNA 361 at para. 78. See also R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 at para 36.
APPLICATION TO THIS CASE
[50] I considered the aggravating and mitigating circumstances in this case. This includes the serious nature of the sexual offence, Mr. Langlois’ blameworthiness, and the impact that the offence has on the victim today and will have going forward. I have also considered the mitigating circumstances present, including Mr. Langlois’ difficult upbringing, his age, the absence of a criminal record, and the support of his sister. I have considered his mental health and his efforts to remain sober.
[51] The shortest sentence possible must be imposed in the circumstances.
[52] I have considered the imposition of a conditional sentence. The rehabilitative efforts identified by the author of the pre-sentence report are counselling for PTSD and to address the abuse Mr. Langlois experienced growing up. No detailed rehabilitative plan was proposed in relation to the imposition of a conditional sentence advocated for by the defence.
[53] The mitigating factors suggest that a conditional sentence would address the restorative objectives of sentencing set out in section 718(d). With the imposition of a conditional sentence, Mr. Langlois could maintain employment and commence counselling/treatment.
[54] I have considered the guidance from the Supreme Court of Canada in Friesen and sections 718 to 718.2 of the Criminal Code. In particular, I have considered the principle of restraint.
[55] In weighing these factors, I have concluded that the least restrictive sentence sanction to be imposed must be a custodial one. A conditional sentence is not a fit and appropriate sentence with regard to the nature of the offence and the primary considerations of deterrence and denunciation. A conditional sentence is inconsistent with these paramount sentencing objectives.
SENTENCE
[56] I sentence you to 18 months in custody.
[57] I further sentence you to a period of probation for 18 months. The conditions of your probation will be the following:
a. Keep the peace and be of good behaviour;
b. Appear before the court when required to do so by the court;
c. Notify your probation office in advance of any change of name or address, and promptly notify your probation officer of any change of employment or occupation;
d. Report to a probation officer:
i. Within two days of your release from custody;
ii. And after that, when required by the probation officer and in the manner directed by the probation officer.
e. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
f. Attend for and participate in treatment or counselling for Post-Traumatic Stress Disorder (PTSD);
g. Attend the Royal Ottawa Mental Health Centre’s (Royal Ottawa Hospital) Sexual Behaviours Clinic for an assessment and follow their recommendations;
h. Do not contact or communicate with the victim, directly or indirectly;
i. You are not to be within 500 meters of the victim.
[58] I make a non-communication order pursuant to section s. 743.21. During your custodial sentence, you shall not communicate directly or indirectly with the victim, C.S. or anyone in her immediate family.
[59] A mandatory s. 109 firearm prohibition is made for 10 years. In my view, having regard to the nature of the offence, it is mandatory.
[60] A Sex Offender Information Registration Act (SOIRA) order is made for a period of 20 years.
[61] The Crown seeks an extensive s. 161 order for a period of 10 years. The defence is opposed to an order being made. Given the circumstances of the offence and the age of the victim, a s. 161 order shall be issued for a period of 5 years. The order shall prohibit the accused from seeking, obtaining, or continuing any employment, whether or not the employment is renumerated, or becoming a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.
Mr. Justice B. Holowka
Released: August 16, 2024
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
DEVIN LANGLOIS
REASONS FOR SENTENCE
Mr. Justice B. Holowka
Released: August 16, 2024