R v. S.P., 2024 ONSC 4951
Court File No. CR-21-037
Date: 2024 08 21
ONTARIO
SUPERIOR COURT OF JUSTICE
5
10
15
N :
HER MAJESTY THE QUEEN
vs
S. P.
Defendant
R E A S O N S F O R
S E N T E N C I N G
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BEFORE THE HONOURABLE JUSTICE C. CONLAN AUGUST 21, 2024 at OWEN SOUND, Ontario
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Counsel for the Crown Counsel for S.P.
(i) Table of Contents
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
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WITNESSES:
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REASONS FOR SENTENCE 1
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E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
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25 Transcript Order Received: August 26, 2024 Transcript Completed: September 14, 2024
WEDNESDAY, AUGUST 21, 2024
R E A S O N S F O R S E N T E N C E
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CONLAN, J. (Orally):
I would like to thank Ms. McKay and Mr. O’Connor for their submissions. I am prepared to give some oral reasons for the sentence now. So as not to hold the interested
parties in suspense, in particular the victim, and the
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offender, Ms. S.P., I will say at the outset that I will be granting Ms. S.P. a conditional sentence. The duration of the conditional sentence will be twelve months. The conditional sentence order will be followed by a period of probation for eighteen months and all of the ancillary
15 orders sought by the Crown are granted. I will say more about the details of those orders in a moment. This is undoubtedly a serious case. I think, Ms. S.P., you understand the seriousness of it. I have been doing this a long time. I have seen many, many offenders over the
20 years and I can tell by your behaviour and your expression here today and your allocution to the Court that you are genuinely remorseful for what happened, that you are sincerely apologetic to your niece, the victim, and others who have been hurt by your offending behaviour and that
25 you unequivocally accept responsibility for your wrongdoing. Those things cannot be said for all offenders. In fact, I think those things can be said for relatively few offenders who come to court. This is a case where you and Mr. E.K. took advantage of a sixteen
30 year old and not just any sixteen year old but your family
member, your niece. You and Mr. E.K. took advantage of the young lady and in the course of taking advantage of her, she was sexually assaulted. She was encouraged – I
5 would say quasi-forced to touch Mr. E.K. in a sexual way, to essentially humiliate herself in front of her aunt and
with this man, Mr. E.K., who was behaving very inappropriately, aggressively with the victim. Instead of standing up for your niece and protecting your niece, you
actively participated in taking advantage of her and in
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the course of doing that, you committed a gross betrayal of trust and you may have irreparably damaged your relationship with some of your family. You have pleaded guilty today to the section 271 Criminal Code sexual assault offence. You must be given significant credit for
15 your guilty plea. Your guilty plea in and of itself is an acceptance of responsibility. It is a sign of your remorse. It does save the victim from having to come to court for a contested trial. It does save the administration of justice the resources that would have
20 been required to be expended for that trial. It does bring finality to the prosecution. It does bring perhaps, I hope, some small measure of peace to the victim in knowing that the matter is over. So your guilty plea is a strong mitigating factor on sentence. Also in mitigation
25 in this case is the fact that you are a first offender and the law is clear that Courts ought to take a measured approach with first offenders. Courts ought to consider all other alternatives besides incarceration behind bars for first offenders. You are not a youth, you are an
30 adult but you are – I suppose everything is relative but
you are perhaps not a youthful adult but still in your early thirties. You have had no problems with the law in the past. That is a mitigating factor. Also in
5 mitigation is that you have been a relatively productive member of society. You have a full time job that you have
had for a while. It appears that you work very hard at that job. I also consider it perhaps not mitigating but it is a factor to consider on sentence that you have your
own young child, who would presumably suffer a great deal
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if you went to a custodial facility for a lengthy period of time. So I have to take that into consideration. The Crown is correct that this is a serious case that involves a significant aggravating factor of familial sexual abuse. I am not suggesting that this is the type of familial
15 sexual abuse that we sometimes see prolonged over years. It is one incident but this victim was your niece. That betrayal of trust is highly aggravating in this case. In my view, the paramount principles of sentencing in this case are denunciation, general deterrence, to a lesser
20 extent, specific deterrence and rehabilitation. Denunciation, because this Court must impose a sentence that denounces your serious unlawful conduct. General deterrence, because any sentence imposed by this Court must send a message to like-minded members of the
25 community, that they engage in this type of reckless sexual behaviour at their own peril. And that if they are found guilty of this type of offence, they will not receive a slap on the wrist from the Court. I say specific deterrence to a lesser degree because I am quite
30 confident that you will not do something like this again.
Still, I want the sentence that is imposed to deter you individually from engaging in this type of conduct or any criminal conduct in the future. And finally,
5 rehabilitation. The jurisprudence is clear that rehabilitation is particularly important for first time
offenders. You are not what we sometimes refer to as a “rounder”. You are not a criminal recidivist. Your prospects for rehabilitation are strong and I suspect that
you have already taken some steps towards that. In fact,
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you talked about that in your allocution to the Court, that you have reached out to try to damage control what has been done. Ms. McKay, for the Crown, is correct, that conditional sentence orders for sexual offences involving children ought to be very rarely made. They ought to be
15 reserved for unique cases with exceptional features to them. I think that this case qualifies as a unique case. The sentence being imposed today by this Court, I would say, has little precedential value because the facts of this case are unique. You committed a very serious
20 offence. You were not, in my assessment of the facts, the aggressor during the incident. That was Mr. E.K. You were not, on my assessment of the facts, the main protagonist for the incident. That was Mr. E.K. You have entered a guilty plea in the face of a situation where
25 this other person, in my view, just as morally culpable if not more so than you, Mr. E.K. has actually had his charges stayed, I understand. Now perhaps the Crown has appealed that but the fact is that Mr. E.K. has not accepted any responsibility for what happened. You have.
30 I think that the constellation of facts of this case
justify an exceptional sentence. They justify a conditional sentence order. Conditional sentence orders can be punitive. As the Courts have told us, they are
5 sentences of imprisonment. They ought to include severe restrictions and this one will. I will go over the terms
in a moment but it will include severe restrictions and it will be followed by eighteen months of probation. A conditional sentence order is statutorily available in
this case in that the sentence imposed by the Court is
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less than two years in duration, and the Crown’s range of sentence based on the four decisions provided, is bang on. I agree with the range. The Crown advocated for nine to twelve months. The conditional sentence order is for twelve months but my point is that even the Crown agrees
15 that the appropriate sentence is less than two years.
That part of the test for a conditional sentence order has been met. I am satisfied that allowing you, Ms. S.P., to serve your sentence of imprisonment in the community would not endanger the safety of the community and would be
20 consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2. This is not an offence that is punishable by a minimum term of imprisonment and this is not an offence that falls within the other clauses under section 742.1, where a conditional
25 sentence order is not statutorily available. Those are some reasons why the Court has decided to grant you a conditional sentence order and allow you to serve your sentence of imprisonment in the community. Before I outline the conditions of the conditional sentence order
30 and the conditions of the probation order, I will review
in more detail the ancillary matters. I want you to listen carefully, Ms. S.P., because at the end I will be asking you if you understand these orders. I will be
5 cautioning you about the consequences of breaching any of these orders. The victim fine surcharge is not being
waived. The victim fine surcharge is imposed because Ms.
S.P. is employed. Ms. S.P. will be granted ninety days to pay the victim fine surcharge. There is a primary DNA order issued. There is a Sex Offender Registry order
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issued for a duration of twenty years. There is a section
110 Criminal Code firearms and weapons prohibition order issued for five years. There is an order made under section 161(1) of the Criminal Code for a duration of ten years. All of the clauses under section 161(1) apply
15 except for ‘d’ as in David. Under section 161(1)(a), Ms.
S.P. is prohibited for a period of ten years from attending a public park or a public swimming area where persons under the age of sixteen years are present or can reasonably be expected to be present or a daycare centre,
20 school ground, playground or a community centre. There is an exception if Ms. S.P. is in the direct presence of her child. What is your child’s name again, please, ma’am? MS. S.P.: P.H.
THE COURT: So that child’s name will be inserted into the
25 order. Under 161(1)(a.1), for a duration of ten years, Ms. S.P. is prohibited from being within two kilometres of any dwelling house where the victim ordinarily resides. Under 161(1)(b), for a duration of ten years, Ms. S.P. is prohibited from seeking, obtaining or continuing any
30 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 sixteen years. Under section
5 161(1)(c), for a duration of ten years, Ms. S.P. is prohibited from having any contact including communicating
by any means with a person who is under the age of sixteen years except for Ms. S.P.’s child, unless Ms. S.P. does so under the supervision of an adult person, twenty-one years
of age or older who is aware of the order made under
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section 161. As I indicated earlier, 161(1)(d) does not apply. Finally, in terms of ancillary orders, there is an order made under section 743.21 of the Criminal Code.
That order – I have to remind myself whether that order applies during the currency of a conditional sentence
15 order. I am not imposing that order. I will leave it as a term of the conditional sentence order and then the probation order. So there is no order made under 743.21 of the Criminal Code. So to repeat, the ancillary orders are the victim fine surcharge with ninety days to pay, the
20 section 110 Criminal Code firearms and weapons prohibition order for five years, the primary DNA order, the Sex Offender Registry order for a period of twenty years, the order under section 161(1) of the Criminal Code, all clauses except (d) as in David for a period of ten years.
25 On the count that Ms. S.P. has been found guilty and convicted of, the Court sentences Ms. S.P. to a period of imprisonment for twelve months. Ms. S.P. is permitted to serve that sentence of imprisonment in the community by way of a conditional sentence order under section 742.1 of
30 the Criminal Code. All of the statutory terms, the
compulsory conditions of a conditional sentence order apply. Those are that Ms. S.P. shall keep the peace and be of good behaviour. Ms. S.P. shall appear before the
5 Court when required to do so by the Court. Ms. S.P. shall report to a supervisor within two working days of today
and thereafter when required by the supervisor and in the manner directed by the supervisor. Ms. S.P. shall remain within the jurisdiction of the Court unless written
permission to go outside that jurisdiction is obtained
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from the Court or the supervisor. And Ms. S.P. shall notify the Court or the supervisor in advance of any change of name or address and promptly notify the Court or the supervisor of any change of employment or occupation. In terms of optional conditions of a conditional sentence
15 order, the following terms apply; Ms. S.P. shall abstain from the consumption of drugs except in accordance with a medical prescription. Ms. S.P. shall abstain from the consumption of alcohol or any intoxicating substance. Ms.
S.P. shall abstain from communicating directly or
20 indirectly with the victim or from going to any place that Ms. S.P. knows the victim to be. Do you want an exception with the prior written revocable consent of the victim or just leave it as is?
MS. MCKAY: I would leave it as is for the conditional
25 sentence and maybe add that into the probation.
THE COURT: Okay, thank you. Ms. S.P. shall abstain from owning, possessing or carrying a weapon. Ms. S.P. shall continue to provide and care for her dependant, your daughter. Over the course of the twelve month conditional
30 sentence order, Ms. S.P. shall perform one hundred hours
of community service. The place or places of the community service work, the schedule of the community service work, those are items that are in the discretion
5 of the supervisor. I know that you are working full time, Ms. S.P., but you can pay back something to the community.
One hundred hours over a course of twelve months is not much. In addition, and perhaps this is the most restrictive term that I will be talking about, I am not
going to put you on electronic monitoring but you will be
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subject to home confinement, house arrest for the duration of the twelve months, 24 hours a day, seven days a week.
There are exceptions. The exceptions are as follows. These are all exceptions to the twenty-four hour home confinement clause, to be clear. There is an exception
15 for travel directly to and from work and while at work. There is an exception to attend religious services. There is an exception for medical or dental appointments for Ms.
S.P. or a member of her immediate family including Ms. S.P.’s daughter. There is an exception for any purpose
20 with the prior written permission of the supervisor, which written permission must be carried on Ms. S.P.’s person. There is an exception for travel directly to and from and while meeting with a lawyer. There is an exception for travel directly to and from and while attending court.
25 There is an exception for travel directly to and from and while meeting with the supervisor. And now the final exception is going to be more of a catch-all. It is going to be a few hours one day a week where I am going to permit you, Ms. S.P., to do other things like banking,
grocery shopping, going to the drug store. What day do you want that to be, what day of the week?
Ms. S.P.: Probably Saturday, Your Honour.
5 THE COURT: And what hours are you suggesting? Ms. S.P.: Probably ten a.m. so my husband watch (unintelligible).
THE COURT: So there is – you may have a seat. The final exception on the home confinement is each and every
Saturday between the hours of ten a.m. and two p.m., is
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that enough time? Between the hours of ten a.m. and two
p.m. for shopping, banking and other things that are necessary.
MME. REGISTRAR: An exception for community service hours, Your Honour?
15 THE COURT: There is an exception for direct travel to and from and while performing the community service hours.
Ms. MCKay, is there anything else that you would like included in the conditional sentence order?
MS. MCKAY: I think generally - I didn’t hear Your Honour
20 say a general exception for medical emergencies involving herself or her immediate family.
THE COURT: I did say that.
MS. MCKAY: Oh, I heard the appointments.
THE COURT: It is medical appointments or emergencies.
25 MS. MCKAY: And I just – perhaps you can – I’m sure her conditional sentence supervisor would carve this out but if there’s any specific exceptions needed for child care, the Crown wouldn’t have an issue with that. I’m sure the supervisor will approve that. And I didn’t know if you
were intending to impose any counselling or if that would be for probation.
THE COURT: I am going to leave the counselling for the
5 probation.
MS. MCKAY: Okay.
THE COURT: Mr. O’Connor, is there anything that you want to say about the terms of the conditional sentence order? MR. O’CONNOR: No, sir.
THE COURT: Ms. S.P., is there anything that you would
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like clarified about the conditional sentence order before I move on to the probation order?
MS. S.P.: No, sir.
THE COURT: Okay, thank you. At the end of my reasons I am going to explain to you the consequences of failing to
15 obey these orders. I am sure that those consequences will not arise, that you will obey the orders but I am statutorily obliged to review those items with you. So that is the twelve month conditional sentence order. It is a sentence of imprisonment and that is why it has
20 several restrictions to it, some more significant than others like the home confinement clause. At the conclusion of the conditional sentence order, Ms. S.P. shall be the subject of a probation order for eighteen months. All of the statutory terms apply. It is a
25 reporting probation order. Ms. S.P. shall report to a probation officer within two working days of the commencement of the probation order and thereafter as directed by the probation officer. During the probation order, Ms. S.P. shall not be in possession of any firearm
30 or weapon as defined by the Criminal Code. During the
probation order, Ms. S.P. shall not have any contact or communication directly or indirectly by any means whatsoever with the victim, except with the prior written
5 revocable consent filed with Probation in advance by the victim. For the 18 month probation order, Ms. S.P. shall
attend for any counselling or treatment as directed by the probation officer and not leave that counselling or treatment without the prior written approval or permission
of the probation officer. In order to monitor Ms. S.P.’s
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progress with the counselling and/or treatment, Ms. S.P. shall sign any necessary releases of information demanded of her. During the eighteen month probation order, Ms.
S.P. shall not attend at any place she knows the victim to be, except with the prior written revocable consent of the
15 victim filed in advance with the probation office. The protection of the victim here is an important consideration when one considers the profound impact that this offence has had on the victim, as very eloquently set out in writing in the victim impact statement. That is
20 why the Court is imposing many of these conditions that relate to the victim, both in the conditional sentence order and in the probation order. Is there anything else that the Crown would like included in the eighteen month probation order? And the reason the Court did not include
25 the counselling in the conditional sentence order is because you are subject to home confinement, you are working full time and you have to perform a hundred hours of community service work so I did not want to overload you, Ms. S.P., during the twelve month conditional
sentence order. But the counselling or treatment, if recommended, is mandatory during the probation order. MS. MCKAY: Nothing to add, thank you.
5 THE COURT: Mr. O’Connor, any comment about the probation order terms?
MR. O’CONNOR: None, sir.
THE COURT: Ms. S.P., is there anything you would like clarified about the probation order or its terms?
MS. S.P.: No, sir.
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THE COURT: Madam Registrar, does anything come to mind in terms of the standard form that I have left out?
MME. REGISTRAR: Your Honour, the SOIRA form requires a reporting date when they’re serving a non-custodial sentence.
15 THE COURT: So what date do you suggest I insert for the reporting on the Sex Offender Registry order?
MS. MCKAY: We could leave it to Ms. S.P.. I don’t know if it would make sense for her to report today or if she would rather go on a different day. You might also need
20 to carve an exception for her to leave court today. I guess she’s probably – are you going to work? Okay, so that’ll work.
THE COURT: So for the initial reporting on the Sex Offender Registry order, we will put – do you want it to
25 be today, Ms. S.P., or tomorrow?
MS. S.P.: What do I need to do, sorry?
THE COURT: Where does she go for that initial reporting? MME. REGISTRAR: Grey Bruce OPP Detachment six and ten.
THE COURT: The Grey Bruce OPP Detachment?
MS. S.P.: Can we do that today so I don’t have to miss any more work?
THE COURT: Yes. So you want today’s date inserted?
5 Okay, so the date is today, Madam Registrar. Do you need a time?
MME. REGISTRAR: I do not think it allows for a time. THE COURT: Okay. So today, ma’am. Do not forget to go there. And I do not think you need to put this in the
conditional sentence order, Madame Registrar, because I
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want this to be comprehensible to Ms. S.P. These orders are already cumbersome enough but I want to put this on the record just in the very off chance that there is a problem, Ms. S.P. is the subject of a conditional sentence order. It takes effect immediately but Ms. S.P. is
15 authorized – she is permitted to travel to the OPP detachment today for the purpose of the reporting on the SOIRA order.
MS. MCKAY: And just for her benefit, Your Honour, the conditional sentence supervisor will just be in the
20 probation office downstairs.
THE COURT: Yes, it is the probation office in this building. You should go today because you are here. Before I ask Ms. S.P. about her understanding of the various orders, is there anything that I left out as part
25 of the sentence?
MS. MCKAY: No, Your Honour. THE COURT: Mr. O’Connor?
MR. O’CONNOR: No, sir.
THE COURT: Okay, Ms. S.P., you can remain seated but I
30 would like you to listen carefully. The victim fine
surcharge – I think it is 200 dollars, is that right, Madam Registrar?
MME. REGISTRAR: I’m not certain of the amount. I was
5 going to look it up.
THE COURT: Okay, I am fairly certain that for indictable matters, the victim fine surcharge is 200 dollars. You must pay that within ninety days of today or ask for an extension. If you do not pay it on time and you are not
granted an extension, you could get into trouble.
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MS. S.P.: Where do I pay it?
THE COURT: You pay it here at the court. MS. S.P.: I can pay today?
THE COURT: I think so. Is it paid here?
MME. REGISTRAR: Yes. I’ll give her instructions for it,
15 Your Honour.
THE COURT: Yes. Yes, so the registrar will help you with that, okay? But you must pay it on time or get an extension or else there could be serious consequences for failure to pay it. You could even be charged criminally
20 for failure to pay it because the police could lay a charge of disobey a court order. And if found guilty of that, you could be sentenced to a period of time in jail, just for that, do you understand?
MS. S.P.: Yes, Your Honour.
25 THE COURT: The DNA order, it is complied with by way of a blood sample. You must cooperate with the police in giving the sample of your blood for DNA. If you do not, you could be charged criminally because of failing to cooperate, and if found guilty, you could be sentenced to
30 a period of time in jail. Do you understand?
MS. S.P.: Yes, Your Honour.
THE COURT: Do I have to insert a place and time for the DNA sample?
5 MS. MCKAY: I believe generally you would and it would just be here today at the courthouse.
THE COURT: So the DNA sample will be provided here today at the courthouse. The section 110 Criminal Code firearms and weapons prohibition order for five years. I do not
imagine you have a big interest in these items but you
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must obey that order entirely. If you do not, you could be charged with a criminal offence of breaching the order and if found guilty, you could be sentenced to a period of time in jail. Do you understand?
MS. S.P.: Yes, Your Honour.
15 THE COURT: The Sex Offender Registry order is for a duration of twenty years and has many responsibilities that you must adhere to. You must obey that order. If you do not, you could be charged with breaching it and if found guilty, you could be sentenced to a period of time
20 in jail. Do you understand? MS. S.P.: Yes, Your Honour.
THE COURT: The section 161(1) order, that order that dealt with public places and swimming places. There was an exception for your daughter. But that order, you must
25 comply with that order. If you do not, you could be charged with breaching the order and if found guilty, you could be sentenced to a period of time in jail. Do you understand?
MS. S.P.: Yes, Your Honour.
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THE COURT: The eighteen month probation order which will start after the conditional sentence order, if you violate that order, you could be charged with breach of probation.
5 Normally, people who are found guilty of breach of probation go to jail as the penalty. Do you understand?
MS. S.P.: Yes, Your Honour.
THE COURT: And last but certainly not least perhaps, most draconian is the potential consequence if you breach the conditional sentence order. That is the twelve month
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order that has the home confinement clause. You must obey that order to the letter. If you have any questions about the order, you should ask your supervisor about the order. If you need the order amended, you should speak to the supervisor about that. There are ways to amend
15 conditional sentence orders. It happens frequently. It happens without even coming to court. I approve of amendments on a regular basis if they are reasonable and so does the Crown usually consent. But you don’t just take things in your own hands. You obey the conditional
20 sentence order. If you need a change, you speak to the supervisor about it. If you do not obey that order, various things could result. First of all, you could be charge with breaching a conditional sentence order. You would likely not be granted bail. You would likely be
25 held in custody. You could be forced to serve a period of time in jail as the sentence for the breach alone. Just for the breach of the conditional sentence order, you could be sentenced to a period of time in jail. You could be forced, if you are found to have breached the order,
30 you could be forced to serve the entire balance of the
twelve month sentence in a jail behind bars in a cell. So if you are to violate this order one month in and you are found to have breached the order, you could go to jail for
5 many months. Do you understand the consequences of failing to adhere to the conditional sentence order?
MS. S.P.: Yes, Your Honour.
THE COURT: Do you understand all of the orders that have been made by the Court? Do you have any questions you want to ask the Court about any aspect of the sentence?
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MS. S.P.: Can I get a copy of it?
THE COURT: You will receive copies of the orders. MS. S.P.: Okay. Yes, Your Honour.
THE COURT: Do you have any questions though that you want to ask me about any of the aspects of the sentence?
15 MS. S.P.: No, Your Honour.
THE COURT: My hope for the victim of the offence is that she continues her recovery that she speaks about in her victim impact statement. At the end of her victim impact statement, the victim says, “I thankfully now have a
20 loving partner that I grew up with and can trust but other than him, I was not able to bring myself to do any sort of sexual interaction with another person.” I hope the victim continues to receive support from her partner and I hope that she moves on with her life and that it is a
25 happy and healthy life. And for you, Ms. S.P., I wish the very best for you and for your daughter. I hope that you continue with your employment. I hope that you focus on your own best interests and your family’s best interests and your daughter’s best interests, and I am confident
that we won’t see you back in the Courts. Anything further, Ms. McKay?
MS. MCKAY: Just the sexual exploitation charge to be withdrawn, please.
5 THE COURT: The other count or counts – is there just one other count?
MS. MCKAY: Yes.
THE COURT: The other count on the indictment is withdrawn at the request of the Crown. Mr. O’Connor, is there anything else, sir?
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MR. O’CONNOR: Oh, no, sir.
THE COURT: Okay. MS. S.P., best wishes. MS. S.P.: Thank you.
THE COURT: And, Ms. McKay, thank you. Mr. O’Connor, thank you.
15 MS. MCKAY: Thank you, Your Honour. MR. O’CONNOR: I hear, Your Honour.
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5 FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I, JANE BUICK, ,
10 (Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
ONTARIO SUPERIOR COURT OF
R v. S.P. in the JUSTICE
(Name of Case) (Name of Court)
held at OWEN SOUND, ONTARIO
15
taken from Recording
20
(Court Address)
1011_CRTRM#201_20240821_0
84947 10_CONLANC.dcr
, which has been certified in Form 1 by Jennifer Palmer.
September 15, 2024 , ACT # 3807876820
(Date) (Signature of Authorized Person(s))
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