COURT FILE NO.: CR-23-0735

DATE: 2024-10-01

Corrected: 2024-12-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

R. Butler and M. Dwyer, for the Crown

and -

L.C.

D. Doney, for the Defendant

HEARD: July 4, August 9, 13, 16, October 1, 2024

RESTRICTION ON PUBLICATION

Pursuant to an order of this court, issued under s. 486.4(1) of the Criminal Code, no information that could serve to identify the complainant in this prosecution shall be published in any document or broadcast or transmitted in any way.

CORRECTED REASONS FOR SENTENCE

Corrected decision: The text of the original Reasons for Sentence released on October 1, 2024, was corrected on December 5, 2024 and the description of the corrections is appended.

Restriction on Publication

By court order made under subsection 486.4 (1) of the Criminal Code information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner.

MIRZA J.

INTRODUCTION

[1] This is a complex sentencing decision that must address the harms of sexual violence crimes against children.

[2] On February 5, 2024, in the city of Guelph, L.C. was found guilty by a jury of four counts of sexual interference regarding six incidents between 2019 and 2020 in relation to F.G.[^1]

[3] In determining a proportionate sentence, I must adhere to the paramount obligation to denounce and deter L.C.’s commission of grave sexual offences against a child. I must keep in the forefront of my mind the multi-faceted harms caused to F.G. and her family by these crimes. Their trust and faith in humanity has been shattered.

[4] At the same time, I have a duty to individualize the sentence by considering that L.C.’s commission of these serious crimes is directly connected to his experience with systemic anti-Indigenous discrimination and sexual violence that he experienced as a child in the 1980s while he attended “Indian Day Schools.”

[5] I will strive to impose a just sentence that considers the required statutory and common law principles. However, words alone cannot capture the long-term devastating harm caused to everyone involved due to the sexual abuse of children and the impact of anti-Indigenous racism.

THE CRIMINAL CODE OFFENCE OF SEXUAL INTERFERENCE

[6] Section 151 of the Criminal Code defines the offence and punishment for sexual interference:

Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year…

[7] The one year mandatory minimum jail sentence was struck down. See R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238.

CIRCUMSTANCES OF THE OFFENCES

[8] The offences committed by L.C. against F.G. started when she was an 11-year-old child. They occurred over multiple visits over two years. They escalated over time, were intrusive and breached trust.

[9] At the sentencing hearing, the Defence conceded that the jury’s verdict found L.C. guilty of all the offences alleged in all of the counts on the Indictment. In other words, the Crown had proven all facts beyond a reasonable doubt. See Criminal Code, s. 724(2).

[10] The following are the facts for the offences.

[11] L.C. met F.G. and her mother A.G. in Edmonton, Alberta. Sometime before 2018, they lived together as roommates.

[12] L.C. developed a friendship and then an on-and-off romantic relationship with A.G.

[13] During their relationship, L.C. became a father figure to F.G.

[14] In 2018, A.G. and F.G. moved to Ontario after A.G. found employment. Although they were no longer a couple, L.C. maintained a friendship with A.G. and F.G.

[15] L.C. helped them move to Ontario and then returned to live in Alberta. By this point, L.C. had been in their lives for about 3 years.

[16] Starting in 2019, L.C. periodically visited F.G. and A.G. at their home in Guelph, Ontario. He visited in 2019 and again in 2020, spring and summer. Each time he would stay for about ten days.

[17] During these visits to their Guelph home, L.C. sexually violated F.G.

[18] The sexual touching occurred while F.G. was between the ages of 11 and 13.

[19] The multiple incidents of sexual interference included the following.

[20] In 2019, F.G. was 11 years old. While playing a board game together in her room, they sat on the ground. She leaned up against the bed. He got closer to her, scooting beside her. He called her names like “baby love,” and told her she was “hot and sexy.” She told him to stop. He tried to kiss her on the lips and cheeks. He kissed her once on the lips and she pushed him away. [Count 1].

[21] A few days later, L.C. whispered something in her ear and grabbed her chest. He touched her breasts over her clothes. [Count 2].

[22] In the spring of 2020, F.G. was 12 years old and taking school online. While her mother was at work, L.C. was at home and helped her with math. She was on the futon. L.C. started rubbing F.G.’s thighs. Then he pulled down her pants and started to put his fingers inside of her vagina. Then he gave her oral sex. She told him to stop. She tried to push him away. It lasted 2 to 3 minutes. It ended when her mother put the key in the door. She believed that her mother came home for either a lunch break or was getting off work. [Count 3].

[23] A day or two later, F.G. played with craft beads, making a key chain. When she went to get another colour bead from her organizer, L.C. grabbed her butt and squeezed it. She pushed his hand off and continued making a key chain. She was sitting on a chair. He was as well. A few moments later, L.C. started to rub her thigh. Then he got on his knees, pulled down her pants and engaged in oral sex. He said to her – “I want you to be mine.” The incident ended when F.G.’s mother came home from work. [Count 3].

[24] Later the same night, at around 1 to 2 a.m., F.G. was trying to go to bed. She was tossing and turning, and L.C. came into her room and got into her bed. L.C. put his hands in her pants and started touching her vagina under her clothes. He put his fingers inside and rubbed her vaginal area. Her mom was sleeping on the futon and her aunt was sleeping in her own room. She pushed him away and told him to stop. After about 2 minutes he got up and left. [Count 3].

[25] During a visit in the summer of 2020, A.G., F.G. and L.C. went camping. During this trip he called her “love” and told her that they were “soul mates,” and that they should get married and have kids.

[26] After returning from the camping trip, L.C. continued to stay with F.G.’s family. One night she fell asleep on the cot. Her mother was close by, about four feet away, and asleep on the futon. F.G. woke up and noticed L.C. behind her. L.C. rubbed her chest, grabbed her breasts, and put his hands in her pants. She tried to move. He tried to put his fingers in her vagina but failed. She used her arms and legs to get him off of her. During the incident L.C. said to F.G. words to the effect of I want you; I need you; you should be mine. She said stop. F.G. moved from the cot to the futon and the incident ended. [Count 4].

[27] F.G. disclosed to her mother L.C.’s touching after her mother discovered that L.C. was texting F.G. sending messages expressing love and affection beyond a parental bond. The messages read in the context of the proven allegations indicate a troubling duality of father figure and exploiter.

IMPACT ON VICTIM

[28] In her testimony and victim impact statement, F.G. told the court that the unwanted sexual contact made her feel very uncomfortable and gross.

[29] After one incident, where L.C. performed oral sex on her despite her protests, she ran to the bathroom. She recalled not talking much and wanting to be alone because she felt embarrassed.

[30] She did not tell others when it happened and was particularly worried about her mother finding out, as it would “hurt her.”

[31] In her victim impact statement, F.G. explained some of the physical and psychological harms she has suffered:

When this all started, I didn't know how to feel other than hurt and disappointed. You were like a father to me. I felt hurt and I lost so much of me. Before I was a bubbly kid, I was talkative, I could trust people better, I was good at making friends, I was also easy for people to trust. But after this happened, I was a totally different person. Instead of talkative I became quiet, stopped talking to people, I stopped trusting people. I now take people months before I give them my trust. I cannot make friends the same way I did before, I feel uncomfortable around people I don't know. I stopped liking to go out. I still do just not as much as before. I lost things as well with this. I lost school time friends by not going out, not always talking to, then I distance myself from then I lose them. This made my education off and I’m behind. [Spelling corrected and punctuation edited].

[32] The detrimental impact of the incidents will stay with F.G. throughout her adult life. Children are uniquely vulnerable victims. See Friesen, at para. 58, quoting from Otis J.A. in R. v. L. (J.-J.) (1998), 1998 CanLII 12722 (QC CA), 126 C.C.C. (3d) 235 (Que. C.A.). at p. 250:

The shattering of the personality of a child at a stage where [the child’s] budding organization as a person has only a very fragile defensive structure, will result — in the long term — in suffering, distress, and the loss of self‑esteem.

[33] Moreover, a sexual assault on a child has severe repercussions beyond the individual victim. Parents, caregivers, and the broader community suffer negative impacts through a loss of trust, guilt, and the breakdown of relationships: Friesen, at paras. 62-63; see also R. v. D. (D.), 2002 CanLII 44915 (ON CA) at paras. 34-38; R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610, at para. 72.

[34] F.G.’s mother, A.G. provided a victim impact statement. She discussed the pain and long-term loss of security, trust, and dignity that has resulted from L.C.’s conduct.

PARTIES’ POSITIONS

[35] The Defence position is for a conditional sentence of 2 years less 1 day, with a probation order for 3 years, followed by a non-communication order, SOIRA, DNA, a s. 161 order and a section 109, no weapons order. The Defence placed considerable reliance on the concurring reasons in R. v. R.S., 2023 ONCA 608.

[36] The Defence submitted that there was 6 days of pre-trial custody warranting 9 days of credit pursuant to Summers credit. The Defence did not seek Duncan or Downes mitigation.

[37] The Crown submits that a fit sentence is in the range of 4.5 to 5.5 years of jail, plus ancillary orders for a DNA sample, s. 109, SOIRA and s. 161 protections.

PROCEEDINGS

[38] Since this is a complex sentencing, and additional relevant medical records were filed late, the sentencing process and hearing took more time than usual to complete.

[39] Sentencing judges require full information from records and reports with informed submissions by counsel to help to determine the correct sentence for Indigenous people. Efficiency is important but it should not compromise the goal of proportionality, which is paramount. Vulnerable people should not be sentenced on inadequate sentencing records.

[40] The Defence waived 11b throughout the sentencing phase. The following is a summary of the sentencing proceedings.

[41] On March 8, 2024, after the verdicts were received, the court ordered a Gladue report. A return date of May 3 was set for an update on the report’s status. I also directed that both parties provide a concise written outline of their sentencing positions with case law. At the May 3 appearance, receipt of the Gladue report dated May 1 and filed May 2, was confirmed. A return date of June 7 and target hearing date of July 4 were set. With the benefit of the information in the Gladue report, Defence counsel requested time to determine medical records to submit that would shed more light on the mental health issues. For the June 7 date, I asked the parties to update their positions based on the Gladue report, defence records to be filed in the interim, and confirm the mandatory minimum for sexual interference was struck down. By July 4, the Defence filed records and updated their written position, but the Crown did not. Their respective positions on sentence noted above remained the same.

[42] On July 4, oral arguments were heard and August 16 was set for sentencing reasons. An interim confirmation date of August 9 was set. On August 9, the Defence indicated that they had obtained more important mental health records and requested an adjournment of the sentencing set for August 16 so that the records could be considered and L.C. could attend an Indigenous ceremony. I directed the parties to return on August 12, for Defence counsel to file and properly advise of the contents of those records. I also directed that they provide submissions on the Supreme Court decision in R. v. Hilbach, 2023 SCC 3, and the Correctional Investigator reports that dealt with the differential treatment of Indigenous people in jail since neither side had addressed them. On August 12, the Crown indicated they needed time to consider their position. Supplementary oral submissions were set for August 16 with the parties to file a 2 page written update in the interim. On August 16, I heard further oral submissions. The case was set for October 1 for reasons.

[43] On August 16, the Crown acknowledged that upon further consideration of the Gladue report, medical records and case law, their position was reduced but generally maintained the position of 4.5 years. The Defence relied on the additional information to continue to request a conditional sentence and probation.

[44] All of the materials are marked as Exhibits on sentencing.

CIRCUMSTANCES OF THE OFFENDER

[45] L.C. is a 50-year-old Indigenous man. He was born in Fort Simpson, Northwest Territories, on May 13, 1974.

[46] He is an Aboriginal person as defined by s. 35 of the Constitution Act, 1982. He is recognized as a “Status Indian” under the Indian Act, R.S.C., 1985, c. I-5. His parents are Dene from Liidlii Kue First Nation.

[47] He has two children, an adult daughter and a young teenage daughter. He is not married. He was married twice in the past. Those relationships ended in part due to his mental health and addiction problems.

[48] L.C. was between 45 and 46 years old at the time of the offences.

[49] He has no prior criminal record.

[50] The Gladue report establishes that L.C.’s life has been significantly and continuously impacted by state-sanctioned colonialism and anti-Indigenous racism.

[51] Counsel for L.C. also filed mental health and therapeutic records from 2017 to 2021 and health records from around 2000 to 2001. The defence also submitted letters of reference that indicate L.C.’s family support. In addition, on consent, a newspaper article identifying anti-Indigenous discrimination in the Edmonton fire department, where L.C. previously worked, was filed.

[52] L.C.’s depression, anxiety, and PTSD were exacerbated based on his experience working as a firefighter which included work-related trauma in the field and racist attacks.

[53] The Gladue report author, Ms. Trudel, provided the court with essential particulars, context, and historical information. The Crown accepts the entire contents of the report. I will summarize this information below.

ATTENDANCE AT “INDIAN DAY SCHOOLS”

[54] L.C. attended “Indian Day School” for three periods of his childhood: from 1980-82 and 1984-85 he attended Bompas Hall. From 1989-1990 he attended Grollier Hall, the Roman Catholic hostel/residence for the Inuvik Federal Day School.

[55] To put this background in context, the Gladue report explains that beginning in the 1920s, close to 200,000 Indigenous children attended over 700 federally operated “Indian Day Schools”. Many students who attended these schools experienced trauma and in some cases, physical and sexual abuse at the hands of individuals entrusted with their care.

[56] The public’s knowledge is relatively less about the devastating impact of “Indian day schools” on Indigenous children as compared to the more notorious residential schools. Day schools are part of an understanding of the broader residential school structural system.

[57] It is essential to appreciate that serious harms also transpired specifically in the day school environment. Recently, the government of Canada acknowledged their devastating impact on Indigenous families. As explained in the Gladue report:

In August 2019, the Federal Court of Canada approved the Federal Indian Day Schools (McLean) settlement agreement to address abuse suffered by Indigenous children who attended day schools, which was similar to abuse experienced by those who attended residential schools. The settlement was to compensate survivors for harms, including physical and sexual abuse, associated with attending a Federal Indian Day School. The government recognized the “mistreatment of Indigenous children is a tragic and shameful part of Canada’s history that has had devastating effects on generations of families.” [Citations omitted.]

[58] Residential schools, including day schools, were designed to “take the Indian out of the child,” and assimilate Indigenous people into the dominant European settler culture. Many reports have documented the rampant abuse experienced by young Indigenous children forced to attend the same schools as L.C. His experience fits within a broader experience of state-sponsored assimilation and cultural genocide.

[59] L.C. states that when he was 12 years old, following his attendance at Bompas Hall, he and his parents moved to Aklavik.

[60] L.C. wanted to stay in Fort Simpson. L.C’s father allowed him to stay in Fort Simpson and enrolled him in a government program designed for students. L.C. stayed in a foster home for two years. While staying at the foster home he confided in a social worker and reported his history of sexual abuse at the day school and affiliated Church.

ABUSE and TRAUMA

[61] L.C. suffered extreme physical and sexual abuse as a child in those school institutions. The abuse resulted in long-term psychological harm and mental illnesses.

[62] He described being subject to corporal classroom punishment and being sexually abused by a priest, Henri Posset, who was the subject of numerous allegations of sexual assault before his own death by suicide. L.C. recalls trying to report the assault but being shut down by the Royal Canadian Mounted Police (RCMP).

[63] He also recalls experiencing extreme violence from other children at the schools. L.C. described a situation that is consistent with a divide and conquer abusive approach where young people are pitted against each other while they are trying to survive a hostile institutional environment:

a) “A few times by students. At Grollier Hall, by students. I was gang raped a few times up there. They were terrible, I was fighting them daily to get them away from me.”

b) “You go up north and to the far north. I looked different, spoke different. It was really difficult.”

c) L.C. said he attended church when he was nine or ten and was the altar boy. He was sexual abused by Henri Posset, a priest. “The priest who abused me, moved to another school. When they went to charge him, he hung himself”. L.C. said he was abused three times before he went to the Royal Canadian Mounted Police to report it. [Citation omitted.]

d) “They were a couple houses away, I wanted them to arrest him for hurting me the way he did. They threatened to take me away from my parents; to lock my parents up; they didn’t do anything. I shut down. I went into the dark and thought about everything and tried to find a way out of it. Everything; thoughts of abuse. It wasn’t my fault. I blamed a lot of this on myself.”

(Gladue report, at p. 12.)

[64] During submissions, it was not opposed that the abuse from the priest came about in the context of a Church that operated within the overall federal mandated residential and day school system.

[65] L.C. is the third generation of his family to have attended residential or “Indian Day Schools”.

[66] The school system has negatively impacted his whole family and manifested in domestic violence and cycles of abuse and poverty. He described that his father was physically abusive to him, indicative of intergenerational trauma.

[67] The Crown accepted the entirety of the Gladue report and, in particular the parts that identified that because of these detrimental systems, Indigenous youth in Canada are more likely than non-Indigenous youth to witness family violence and to be subjected to physical and sexual abuse. As a result of this trauma, which includes the failure of the state to take steps to protect children and take action to address the crimes, many Indigenous victims, including L.C., are also more likely to commit sexual violence.

[68] In this way, there is a causal chain to L.C.’s experience with sexual violence trauma, his associated mental illnesses, and the offending behaviour. This distinct consequence from being a victim of abuse is specifically recognized in Friesen, at para. 64.

In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood (D. (D.), at paras. 37-38). Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community (Standing Senate Committee on Human Rights, The Sexual Exploitation of Children in Canada: the Need for National Action, November 2011 (online), at pp. 10, 30 and 41).

[69] The recognized nexus between a person being sexually abused and committing sexual offences is longstanding. See also the Court of Appeal’s recognition of the cycle of trauma in Woodward at para. 72, citing D.D. that is applicable to the victim, F.G. and the offender, L.C.:

[T]hree such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

[70] At page 15 of the Gladue report, Ms. Trudel explains how Indigenous people have a distinct and disproportionate experience with sexual violence:

a) In the 1990s, First Nations police forces reported child sexual abuse existed at a rate five times the national average;

b) In 2004, statistics based on police reports showed sexual assaults on reserves occurred at a rate seven times higher compared with the rest of Canada;

c) Studies of Aboriginal adults show they were more likely to report experiences of child sexual abuse in their adult life that were not reported or investigated by child protection authorities at the time of the incident; and

d) Incidence reports show child sexual abuse cases involving Aboriginal children are less likely to be investigated by authorities compared with non-Aboriginal cases.

[Citations omitted.]

[71] The Gladue report further describes that due to the historic and traumatic relationship between Aboriginal people and state operated systems, Indigenous people may also be unlikely to trust the justice system and unwilling to disclose childhood sexual abuse as a result of their suspicion. For similar recognition of this systemic discrimination factor, see Gladue (decision) at para. 61

[72] Furthermore, the Gladue report explains that Aboriginal traditional beliefs view sexual abuse as an illness requiring community participation and healing of both the abuser and the victim in order to restore community balance and harmony. This approach is fundamentally different from judicial approaches that separate the abuser from the victim and isolate the abuser in prison. As a result, many Aboriginal people may believe the justice system does not address the root causes of the imbalances that allowed child sexual abuse to occur in the first place.

[73] The report clarifies that Indigenous people’s distinct exposure to sexual abuse and violence connected to colonization has allowed abusive patterns to be accepted and perpetuated. Child sexual abuse in Aboriginal communities is linked with the loss of traditional Aboriginal values and practices. Communities are left without basic ways of teaching community members about healthy living, and the loss of traditional customs and practices undermines their capacity to educate children about sexuality. A 1991 study of sexual abuse in Inuit communities found widespread child sexual abuse and social treatment of the issue can threaten societal norms. It may lead people to misunderstand and believe child sexual abuse is commonplace in Inuit culture.

[74] To be clear, a straight line between L.C.’s Indigenous background and the offences is not required. R. v. F.H.L., 2018 ONCA 83 at para. 38. That said, a clear correlation is helpful to the assessment of context and moral blameworthiness.

ADDICTION

[75] For L.C., the fallout from the abuse included an addiction to alcohol since at least 2000. Health reports filed indicate that the addiction resulted in seizures and hospital visits. Alcoholism limited his ability to hold consistent employment and maintain loving relationships. It is well-established that addiction is related to and compounds mental health problems.

MENTAL HEALTH

[76] L.C. has significant mental health issues due to the trauma and abuse he has experienced. Continuing experiences with racism have compounded these problems.

[77] In this part, I have kept foremost in mind that F.G. is at risk for many of the same adverse health impacts due to sexual abuse for which she is a victim.

[78] L.C.’s mental health reports from December 2017 through September 2021 together with the Gladue report, make clear that L.C. has struggled with serious mental health issues due to the abuse. The reports establish L.C. has severe depression, chronic PTSD, anxiety, panic disorder, and periods of suicidal ideation.

[79] In 2017, prior to the offence dates, in relation to workplace disability issues, psychiatrist Dr. Ko diagnosed L.C. with PTSD, persistent depressive disorder with major depressive episodes. He has anxiety, low self-esteem, under-eats, engages in self-harm, impulsive behavior due to PTSD, and takes high-risk jobs hoping he will die in service so his life would mean something. He has been symptomatic since the age of ten. These conditions are related to traumatic events over his life including sexual abuse in the school system, physical abuse in his family, and racial discrimination that he experienced as a firefighter.

[80] The report concludes, “the prognosis is guarded. This is an individual who has suffered horrific and brutal mental and sexual abuse since childhood, and this has caused him to develop very deeply entrenched beliefs of being worthless, as well as having poor interactions and intense mistrust of other individuals…” The doctor states the medications and cognitive behavior treatment up to that point are woefully inadequate because the PTSD and underlying pathology have not been treated. An intense psychotherapy treatment regime with an experienced psychologist is recommended.

[81] An October 23, 2020, psychologist report by Dr. Moorthy states that he responded well to treatment, but after being charged his coping deteriorated and symptoms of anxiety, depression, and suicidal ideation returned. In other parts of the report it identifies that he has a depressive disorder and a tendency to disown his shortcomings. The report has other particulars that cannot be entirely summarized but clearly demonstrate complex mental illnesses from the sexual abuse.

[82] In 2021, post-dating the offence dates, Dr. John Hickie, a medical consultant reviewed L.C.’s continuing assessments. Different doctors continued to indicate that L.C. has pro-longed PTSD arising from trauma that pre-dates his work as a firefighter. In my view, the totality of the assessments support that L.C.’s experience with physical and sexual abuse are primary triggers for his mental health problems.

[83] Dr. Hickie reviewed psychiatrist Dr. Quickfall’s report and indicated that it is noted that L.C. had difficulties interacting with other workers, anger management difficulties, fear of abandonment, and interpersonal dysfunction long before his employment with the fire department. The psychological symptoms could increase in stressful situations. Over four years after Dr. Ko’s assessment, it was found that L.C. was still not fit to return to work as a firefighter due to chronic trauma related disorders. He would be fit for low stimulation work when working along with little to no interaction with the public.

[84] Health records dating back to 2000 to 2001 identify a long-term history of anxiety, panic attacks, and alcoholism requiring hospitalization.

[85] These complex circumstances have negatively impacted L.C.’s aspirations for continuing education, and ability to sustain steady work, and stable relationships. L.C. informs the writer of the Gladue Report that he applied to go back to university but was unable to attend due to the depression.

[86] In 2000 he and his first wife moved back to Fort Simpson, where they had a daughter. However, after 4 years together L.C.’s alcoholism and depression ultimately ended his marriage.

[87] L.C. reports that his depression increased in 2003 due to traumatic events and deaths that had occurred in his family. While working for the fire department, he was on ambulance duty in Fort Simpson and two of his family members died.

“I started giving up, I didn’t care anymore. My mother almost lost her life at work. My younger sister, at the time we didn’t know how sick she was, but she was in the early stages of schizophrenia. She ended up stabbing my mom several times. I brought her to the hospital in the ambulance to the airport to vac her out. The day after my mom returned, we had a call to pick up a deceased person on the trail, it ended up being my Uncle Wilfred. He fell off his snow machine and froze. I had to collect his body and tell my mom. In spring of 2003, my uncle’s wife, Cecilia, drank herself to death shortly after his passing. I was on ambulance duty, and she died on the way to the airport.”

[88] In 2021, L.C. was experiencing acute symptoms due to recalling the stress he experienced during his childhood in combination with the criminal charges.

RACISM

[89] Throughout his life L.C. experienced anti-Indigenous discrimination in the community and workplace. His sister describes the impact of the discrimination he faced when he tried to join the RCMP in his 20s and went for training in Regina. Discrimination ultimately ended his career with the Edmonton Fire Department. The Gladue report explains:

In 2014, [L.C.] was working on the critical stress management team with the fire department and became a fire investigator until 2016. [L.C.] said after he attended a call regarding a six-month-old baby he was unable to save, he decided to go back to fire fighting. “I wanted to calm down. My life was getting out of hand.” [L.C.] said investigations were discriminatory and he was told by co-workers: “‘You’re not being an Indian correctly. You’re not supposed to be here.’ It was pretty brutal for a while. A lot of racism”.

SENTENCING PRINCIPLES and RANGES

[90] Friesen emphasizes that the primary principles in sentencing offenders for child sexual assault are denunciation and deterrence.

[91] Parliament has prioritized denunciation and deterrence in the sentencing of sexual offences against children. This is codified in s. 718.01 of the Criminal Code.

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[92] At para. 114 of Friesen, the Supreme Court held 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:

[114] D. (D.), Woodward, S. (J.), and this Court’s own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.), “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).

SEXUAL INTERFERENCE SENTENCING CASES

[108] The following are recent appellate cases for sexual interference charges. They are not cases that involve Indigenous offenders and engage Gladue factors. Subject to the date of the offences and applicable statutory sentences, the decisions are helpful to understand the general range while recognizing that they include distinguishing features. Due to individualization the sentences imposed are varied for this serious offence.

[109] In R. v. E.H., 2024 ONCA 74, the offender was convicted of multiple counts of sexual assault, sexual interference, and invitation to sexual touching in relation to his 11 to 12 year-old-cousin, when E.H. was 21 to 22 years old. This included a year of oral sex, mutual masturbation, and (eventually) anal sex. Aggravating factors included a significant breach of trust, and the volume and seriousness of the acts. Mitigating factors included his sincere remorse, acknowledgement of the acts in his police statement, and his youthfulness. The Court of Appeal held that the trial judge erred in principle by overemphasizing the significance of the appellant’s decision not to formally plead guilty to the offences on which he was plainly admitting his guilt, and by then failing to give sufficient weight to the appellant’s full acknowledgement of his criminal conduct, his responsibility for it, and his expressions of remorse. The sentence on appeal reduced to 5.5 years from 7.5 years.

[110] In R. v. M.V., 2023 ONCA 724, 169 O.R. (3d) 321, M.V. pled guilty to touching and attempting to penetrate his 5-year-old daughter’s vagina, and to fondling his partner’s 10 to 11 year old son’s penis when he was asleep. Aggravating factors included that he abused a family relationship of a position of trust, the young age of the children, and the multiple incidents. Mitigating factors included the guilty plea, remorse, and that the offender was maintaining his sobriety. Sentence reduced on appeal to 5.5 years from 8 years.

[111] In R. v. B.M., 2023 ONCA 224, 166 O.R. (3d) 721, the offender pled guilty to sexual abuse over a period of 43 months of two, 12-year-old children. B.M. was between 18 to 22 years at the time and was in a relationship with the children’s father. B.M.’s abuse of both children included anally penetrating one child on four occasions and vaginally penetrating the other between 20 to 30 times. B.M. rarely used a condom, and showed the children pornography, and solicited intimate images. The significant aggravating factors included grooming, the abuse of a position of trust, the age of victims, and the length of abuse. Mitigating factors included his youthfulness, guilty plea, lack of a criminal record, and mental health issues which were indirect contributing factors to the appellant’s criminal conduct. The sentence increased on appeal to 7 years from a conditional sentence.

[112] In R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, the offender was found guilty of a single incident of sexual interference. He placed the 6 to 7 years old victim’s hands on his penis, used her hands to rub his penis, and asked the child to perform fellatio. Aggravating factors included that he abused a family relationship and position of trust, as well as the child’s young age. Mitigating factors included that he had no prior criminal record, and a history of substance abuse and counselling. The Court of Appeal increased the sentence from 9 months to 2 years in jail plus probation.

[113] In R. v. R.H., 2021 ONCA 236, R.H. pled guilty to sexual interference, making child pornography, and accessing child pornography. He continuously abused the complainant, beginning when she was aged 10. The abuse included overnight trips with touching and later oral and anal intercourse. If the complainant did not communicate with the appellant every day, he would have to atone for it by performing sexual acts. Aggravating factors included the abuse of trust, escalating abuse, a large number of incidents, severity, and that it led the victim to self-harm and suicidal ideation. Mitigating factors included the guilty plea, lack of a criminal record, and the fact that he was the sole provider for his elderly mother. The sentence imposed of 6 years global upheld on appeal.

[114] R. v. R.D., 2020 ONCA 23, 460 C.R.R. (2d) 206, R.D. was convicted of sexual interference, sexual assault, and uttering threats to cause bodily harm. At age 18, he forced his younger sister, aged 9, to perform oral sex and digitally penetrated her, had intercourse with her, and threatened to hurt her if she told anyone. The victim’s age, frequency of assaults, and their nature were all aggravating. Mitigating factors included the offender’s intellectual disability and his young age. A sentence of 3 years (30 months for sexual interference; 30 months concurrent for sexual assault; and six months consecutive for uttering threats) was upheld.

GLADUE SENTENCING

[115] Section 718.2(e) of the Criminal Code mandates that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[116] This provision requires that sentencing reflects not only the offences’ gravity but also the individual circumstances of offenders, including their experiences of systemic discrimination and historical injustices.

[117] The Supreme Court in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, emphasized that Parliament included s. 718.2(e) to mitigate the over-representation of Indigenous peoples in the penal system.

[118] The principle of restraint as reflected in sections 718.2(d) and (e), also means that even when jail is required, the quantum of jail must only be to the extent necessary to fulfill punitive, remedial and restorative objectives and deterrence of criminal behavior. This respects sentencing’s fundamental goals of fairness, proportionality, and considers the broader social context in judicial decisions. Gladue, at paras.33, 79, 93. The principle of restraint also recognizes that no person should spend a day longer in jail than is justified.

[119] The courts have interpreted s. 718.2(e) as signaling Parliament’s direction that a different approach must be taken when applying the restraint principle to the sentencing of Indigenous offenders. That approach was first explained in Gladue and further developed in Ipeelee.

[120] To apply this principle, it is essential to consider systemic and background factors that “may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness”: Ipeelee, at para. 73.

[121] The unique circumstances of Indigenous offenders, which require special consideration when addressing the restraint principle, include both the systemic and background factors that played a role in bringing the offender before the court, and the unique Indigenous perspective as to how best to achieve a just sentence which protects the community: Gladue, at paras. 66, 93.

[122] As observed by the Supreme Court in Friesen at para. 92, the sentencing judge must apply the Gladue principles even in extremely grave cases of sexual violence against children. See also Ipeelee, at paras. 84-86. This is because the systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness.

[123] In Ipeelee, at para. 73, the court acknowledged that systemic and background factors, including institutional biases and discrimination, could play a role in determining the Indigenous offender’s degree of moral responsibility for the crime. These circumstances are often uniquely mitigating, and “[f]ailing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: Ipeelee, at para. 73.

[124] In addition, the unique cultural and historical factors, that shaped Indigenous attitudes toward crime and punishment, could influence the selection of the sanction that best achieves the purpose of sentencing as laid down in s. 718. Addressing the significance of cultural and historical differences, LeBel J. observed, at para. 74:

The second set of circumstances — the types of sanctions which may be appropriate — bears not on the degree of culpability of the offender, but on the effectiveness of the sentence itself. As Cory and Iacobucci JJ. point out, at para. 73 of Gladue: “What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities.” As the [Royal Commission on Aboriginal Peoples] indicates, at p. 309 [of its report, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa, 1996)], the “crushing failure” of the Canadian criminal justice system vis-à-vis Aboriginal peoples is due to “the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice”. The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.

[125] Gladue factors are not uniform across cases. Individualization requires recognition that every person experiences and is impacted by colonialism, discrimination, abuse, and trauma in their own way. Intersectional factors can compound suffering and mental illnesses over a person’s life and at different times. For example, L.C.’s ability to cope with abuse for periods in his life and not engage in criminality does not minimize the necessity to recognize the trauma transpired and that its effects are continuing.

[126] It is also important to acknowledge that broad generalizations are of limited value in sentencing. Acknowledging in a general way that an individual is a survivor of intergenerational trauma or systemic discrimination is helpful to a limited extent as context, but the details of the individual’s experience are necessary to fully and fairly consider how they impact the application of the sentencing factors.

[127] Since anti-Indigenous racism is a national problem, and L.C. was sexually abused in the N.W.T, I will review sexual interference cases nationally that have considered the impact of Gladue factors. The Crown and Defence did not submit sexual interference cases where Gladue factors existed. It is useful to summarize some of them.

[128] That said, I recognize that the Supreme Court in Friesen at para. 106, stated that it is for provincial appellate courts to set ranges based on their knowledge of the circumstances in their jurisdictions. This is why I have also reviewed the cases noted above.

[129] The decisions I will review that follow reflect a significant variance based on the facts of the case, jurisdiction, and the court’s interpretation of the Gladue factors. Although some cases involve an offender who has experienced sexual abuse, none of them address squarely a situation where the accused was repeatedly sexually abused in the residential or “Indian Day School” context and has suffered significant mental illnesses as a result. That does not mean similar cases do not exist, either unreported or reported.

[130] In R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, an Indigenous man pled guilty to repeatedly sexually assaulting two victims, his 13-year-old and 15-year-old nieces while asleep. The trial judge imposed a sentence of 8 years above the sentence sought by the Crown. The Supreme Court reviewed the procedure in this situation and ultimately upheld the sentence.

[131] The abuse spanned years, and one victim “lost track of the number of assaults because they happened so frequently.” Aggravating factors included that both victims were Indigenous females, who were especially vulnerable victims, and that they had unprotected intercourse, thus exposing the victims to a risk of pregnancy and sexually transmitted infections. Mitigating factors included a guilty plea, and that he had no prior criminal record. However, the Supreme Court specifically observed that there was a lack of systemic factors in the Gladue report that would have reduced blameworthiness. In particular, the Court cites the trial judge’s reasoning at para. 20:

[20] Smith Prov. Ct. J. considered Mr. Nahanee’s Indigenous background at length. She reviewed the Gladue report, the evidence of Mr. Nahanee’s mother, and Mr. Nahanee’s background, and found that none of the personal mitigating factors often present in cases of Indigenous offenders existed here. Hence, there was no basis to reduce his blameworthiness on account of his Indigeneity. Although Smith Prov. Ct. J. took into account his family’s historic experiences, including his grandparents’ and father’s attendance at residential schools, this was partly offset by the fact that both victims were Indigenous females who were more vulnerable to sexual assault than non-Indigenous women. [emphasis added].

[132] In my review of the trial decision, 2020 BCPC 41 at para. 68, the judge’s comments and conclusions about the offender are markedly different than the circumstances before this court:

“He enjoyed a safe household as a child. He did not suffer abuse himself, sexual, physical, or emotional. He was not exposed to substance abuse or violence. While an Aboriginal man, his parents effectively created a home in which the intergenerational effects of colonization, particularly the impact of the Indian Residential System, were ameliorated successfully.”

[133] In R. v. Nanibush, 2024 ONSC 737, a 21-year-old Indigenous man, was found guilty of sexually assaulting a 16-year-old Indigenous girl. They had briefly been in a relationship, and the assault occurred after she withdrew her consent. He continued intercourse after her consent withdrawal, and over her yells. Aggravating factors included that the victim was an Indigenous female and the assault was a breach of trust. Mitigating factors included the offender’s youth, lack of criminal record, and Gladue factors, but not specified in the appellate ruling. A sentence of 12-month conditional sentence order followed by a 15-month probation order was upheld on Summary Conviction Appeal.

[134] In R. v. T.J.H., 2023 YKCA 2, a 20-year-old Indigenous man pled guilty to two separate sexual interference counts in 2018 involving separate young girls, aged seven and ten. The facts included that he pulled down the victim’s pants and underwear, lifted and bent her over on a chest freezer, and rubbed his clothed body against the victim’s buttocks and vaginal area with his hips while he masturbated. Aggravating factors included the breach of trust, and age of the victims. Mitigating factors included that the offender had, himself, been victim of sexual assault as a child, that he was an inter-generational residential school survivor, that he was 20 at the time of the offence, that he grew up around abuse, drinking and neglect, and his guilty plea. On summary conviction appeal, R. v T.J.H., 2022 YKSC 45, the sentence appeal was granted, and the Summary Conviction Appeal judge imposed an 18-month conditional sentence plus two years’ probation. The Court of Appeal of Yukon dismissed the Crown's application for leave to appeal.

[135] In R. v. Sturgeon, 2022 ONSC 5218, an Indigenous man was found guilty of three counts of sexual interference, sexual touching, and sexual assault of his stepdaughter from ages 6 to 9. The sexual acts consisted of the accused making the victim perform oral sex on him, removing her panties, sexually touching her with his penis against her anal area. Aggravating factors included the age of the victim, the breach of trust, the highly intrusive nature of the acts, the significant impact on the victim, and the prolonged pattern of abuse. Mitigating factors included that the offender had, himself, been victim of sexual assault as a child by a baby-sitter, that he was an inter-generational residential school survivor, and that he had no prior criminal record. A sentence of 6 years was imposed.

[136] In R. v. N.S., 2022 ONSC 5123, an Indigenous man was found guilty of two counts of sexual assault and two counts of sexual interference against his stepsisters. Aggravating factors included the breach of trust, and number of incidents. Mitigating factors included that he was an inter-generational residential school survivor, and that he was somewhat youthful but not so youthful that it was a significant factor. A sentence of 7 years was imposed.

[137] In a sexual assault case involving an adult Indigenous offender with an adult victim, in R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641, "the trial judge sentenced R.S. to a conditional sentence of two years less a day followed by two years of probation (for the sexual assault) and 90 days of custody to be served intermittently (for the choking), concurrent to the conditional sentence. A majority of the Court of Appeal found that the sentence imposed by the sentencing judge was demonstrably unfit and that a penitentiary sentence of 3 years should have been imposed.

[138] The rulings reviewed above must be understood as decisions responsive to the essential law but ultimately applicable to the facts. They do not create a presumption of uniform or specific sentences to be ordered in sexual offences involving children. There are no tariffs or mandatory minimums. T.J.H., at para. 27.

[139] For example, in R.S. there were important systemic factors but (without diminishing their significance), the facts are different as R.S. was not identified in pre-sentence materials to be a repeated victim of sexual abuse in the residential school system.

[140] As noted in Friesen at para. 92, the British Columbia Court of Appeal in R. v. Hagen, 2021 BCCA 208, 405 C.C.C. (3d) 211, at para. 42, the Saskatchewan Court of Appeal in R. v. Bear, 2022 SKCA 69, at paras. 125 and 131, and the Yukon Court of Appeal in R. v. T.J.H., 2023 YKCA 2 at para. 27, there will be times when significant Gladue factors justify a different sentence for grave offences involving children, as an offender’s specific circumstances may affect the judge’s findings about their moral blameworthiness.

APPLICATION OF THE PRINCIPLES

AGGRAVATING FACTORS

[141] For the assessment of aggravating factors, I will review the non-exhaustive set of factors listed in Friesen that provide an analytical framework to assess the wrongfulness and harmfulness of L.C.’s conduct.

i. Likelihood to Reoffend

[142] L.C. is 50 years old and he has no other criminal record, despite a major trauma history. He has no record of breaching conditions he has been on since July 2020, including no contact, an Alberta residence requirement, and reporting any address change.

[143] When considering all of the circumstances, I find that since he has no other history of offending, no breaches of conditions, and has otherwise lived a pro-social life to his mid-40s, together with his recent self-reflection, he is less likely to re-offend with a sentence that includes culturally responsive rehabilitative programming. Although not required to find a likelihood to re-offend, I observe that this is not a case with multiple victims as some of the others cited in this ruling.

[144] I accept the Crown concession that they have not proven a likelihood to re-offend as an aggravating factor beyond a reasonable doubt.

[145] Moving past the existence of an aggravating factor, I am satisfied that L.C. poses an increased risk given the repetition of his conduct towards F.G. (see the statutory language in s. 490.013(3)(b)). I pause to observe the Crown’s submission that the medical reports most recently filed include a diagnosis of impulsivity and recklessness. I cautiously acknowledge those symptoms as relevant but since the diagnosis by Dr. Ko does not contemplate this criminal conduct I give them limited weight only.[^2]

[146] On a related point, by not admitting his wrongdoing earlier, and relieving the victim from testifying, saving court time, and community from a jury trial, L.C. does not receive this category of mitigation.

[147] However, L.C.’s proceeding to trial, and his decision not to plead guilty is not an aggravating factor.

Remorse

[148] The related topic of remorse is complicated in this case. I will address LC.’s remorse now, even though it is normally dealt with under mitigating factors. L.C. expressed specific remorse for his actions in his statement to the court during sentencing on August 16, 2024. However, at trial he testified that he did not commit the offences. This evidence was rejected by the jury.

[149] I find that his apology post-finding of guilt during the sentencing phase was genuine based on self-reflection over the past several months of the harm to the victim and her mother. During that intervening period a Gladue report was prepared exploring his own history with abuse and his medical records were subject to submissions. In his statement to the court on August 16, L.C. broke down and specifically said sorry to the victims (F.G. and her mother) for his reprehensible conduct. He also apologized to his daughter, for what I interpreted was for having brought shame to their family, and harming F.G. who was also his daughter’s friend. This was a significant step on his part since the trial.[^3] That said, the timing means it is subject to some mitigation, but less than had it been expressed prior to trial.

[150] In some cases, absence of remorse is a relevant factor with respect to the issues of rehabilitation and specific deterrence, in that an accused’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed and demonstrate a substantial likelihood of future dangerousness. R. v. Shah, 2017 ONCA 872, at para. 8.

[151] This case demonstrates that the appearance of remorse or the absence thereof should be considered carefully especially in relation to offenders with complex personal and mental health circumstances. L.C. is also a victim of abuse and his mental health reports indicate his particular illnesses contributes to distrust, impulsive conduct, and denial. L.C. denied he committed the offences at trial, indicating a lack of insight and remorse at that important time. However, I must also consider that he has come full circle to acknowledge what he did was profoundly wrong.

ii. Abuse of Position of Trust or Authority

[152] L.C. abused a person under the age of eighteen years. This is specifically identified as an aggravating factor to consider in sentencing: s. 718.2(a)(ii.1) of the Code. That the victim was between 11-13 years old at the time of the assaults, and that this has negatively impacted her psychological health, is further aggravating. See s. 718.2(a)(iii.1)

[153] L.C. abused his position of trust as a father figure to F.G. This breach of trust and responsibility to the child increases the harm to the victim and thus the gravity of the offence, and the offender’s degree of responsibility. The abuse of a position of trust “exploits children’s particular vulnerability to trusted adults, which is especially morally blameworthy”: Friesen, at paras. 126, 129, s. 718.2(a)(iii).

[154] The assaults all took place in the victim’s home. All people, especially a young person, is entitled to feel safe in their home. Sexual violence against children that takes place in the home is particularly damaging because it damages the child’s sense of security in their home environment: Friesen, at para. 178.

iii. Duration and Frequency

[155] The assaults included multiple, opportunistic, escalating intrusive incidents. Some incidents were ultimately interrupted by A.G.’s mother coming home.

[156] The frequency and duration can significantly increase the harm to the victim. To be clear, I recognize that even one instance of sexual abuse can permanently alter the course of a child's life. R. v. Stuckless, 2019 ONCA 504. Sexual violence that does not involve penetration is still “extremely serious” and can have a devastating effect on the victim. Every sexual offence is serious. Even “mild” non-consensual touching of a sexual nature is harmful and can have profound implications for the victim. R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 63, per McLachlin C.J., and para. 121, per Fish J.

[157] Although one incident is devastating, the immediate harm the victim experiences during the assault is multiplied by the number of assaults and their escalating intrusiveness. Moreover, the long-term emotional and psychological harm to the victim can also become more pronounced where the sexual violence is repeated and prolonged.

[158] This increased harm magnifies the severity of the offences. It also increases the offender’s moral blameworthiness because the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults. Repeated, and prolonged assaults show that the sexually violent conduct is not an isolated act, a factor which increases the offender’s degree of responsibility. The assaults occurred during visits separated by months from 2019 to 2020. As commented on in Friesen, each further instance of sexual violence “traumatizes the child victim anew and increases the likelihood that the risks of long-term harm will materialize.” See para. 133.

iv. Age of the Victim

[159] F.G. was 11 years old when the abuse started. It continued over 15 months until she was 13 years old.

[160] The vulnerable age of the victim is also a significant aggravating factor. The power imbalance between children and adults is even more pronounced for younger children, whose “dependency is usually total” and who are “often helpless without the protection and care of their parents.” R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 66. Their personality and ability to recover from harm is still developing. Children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life. Friesen, at para. 135.

v. Degree of Physical Interference

[161] The increasing intrusiveness of the sexual assaults are further aggravating. They involved repeated instances of forced oral sex and digital penetration, in serious violation of the victim’s physical, psychological, and sexual integrity.

[162] The emotional and psychological harm to the victim is profound from each and all acts of sexual violence.

[163] The modern understanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only on violations of bodily integrity. R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488, at para. 127, per Rowe J.

vi. Impact on the Victim

[164] Throughout these reasons, I acknowledge the significant and multi-dimensional detrimental impacts on the victim. She has suffered significantly taking into consideration her circumstances including but not limited to her young age, dependency, vulnerability, violation of her home environment and trust. It is important to acknowledge that this is a statutory aggravating factor. See section 718.2 (iii.1). I also recognize the harm to her mother.

MITIGATING FACTORS

[165] At the age of 50, L.C. is a first-time offender. He is not a youthful offender. However, despite the severe trauma of his childhood and adolescence, he persevered to live a productive life that contributed to the community. He described working in various occupations, including the Edmonton fire department for about 11 years while also dealing with racism.

[166] L.C. also has the support of his family members, and a good relationship with the mother of one of his children, in Edmonton.

[167] His sister submitted a strong letter speaking to her brother’s care for his two daughters and desire to parent them, ties to community, and meaningful role within their family. As noted above, he ultimately took responsibility and apologized for harming F.G.

GLADUE FACTORS

[168] L.C. has exceptional personal circumstances and systemic factors associated with anti-Indigenous racism. As a victim of extreme violence in the “Indian Day School” system, I find that this is critical context and a significant mitigating factor because of its nexus to the commission of the offences.

[169] L.C. was abused because he was a vulnerable child, but he was also preyed on because he is an Indigenous person, viewed as not deserving of respect for his dignity, culture and heritage.

[170] In addition, from a intersectional perspective, L.C.’s life has been greatly impacted by colonialism and racism, including through addiction, abuse, and poverty.

[171] In laying out the remedial role that sentencing judges must play, the Court has explained that s. 718.2(e) of the Criminal Code is a “direction to members of the judiciary to inquire into the causes of the problem and to endeavour to remedy it, to the extent that a remedy is possible through the sentencing process”: Gladue, at para. 64.

[172] When sentencing an Aboriginal offender, sentencing judges must consider:

a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and

b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Gladue, at para. 66.

[173] The Court in Gladue also laid out several helpful questions for sentencing counsel and judges to contemplate.

[80] As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? [Emphasis in original.]

[174] Adopting the words of Justice Lebel in Ipeelee at para. 2, L.C.’s life has been “far removed from the experience of most Canadians.”

[175] However, his background is tragically relatable for residential or “Indian Day school” survivors.

[176] L.C. is the third generation in his family to survive residential schools. The Gladue report cites that on June 11, 2008, Prime Minister Stephen Harper, on behalf of the government of Canada and all Canadians, issued a formal apology to Aboriginal peoples for Canada’s role in the Indian Residential School system, calling it “a sad chapter in our history”:

Two primary objectives of the residential schools system were to remove and isolate children from the influence of their homes, families, traditions and cultures, and to assimilate them into the dominant culture.

These objectives were based on the assumption aboriginal cultures and spiritual beliefs were inferior and unequal. Indeed, some sought, as it was infamously said, ‘to kill the Indian in the child.’ Today, we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country [...] that the consequences of the Indian Residential Schools policy were profoundly negative and that this policy has had a lasting and damaging impact on aboriginal culture, heritage and language.

[177] In addition, Prime Minister Harper recognized that far too often, these institutions gave rise to abuse and were inadequately controlled. The legacy of Indian residential schools has contributed to social problems that continue to exist in many communities today. Prime Minister Trudeau also acknowledged the harms of residential schools and apologized to survivors in 2017, 2021, and in 2022 with a statement supporting Pope Francis’s apology.[^4]

[178] The abuse that L.C. was subject to at the “Indian Day school” resulted in unresolved issues of trauma and abuse similar to those described aptly by Justice Chamberlain in R. v. Buswa, 2023 ONCJ 146:

[22] Those who survived the physical, sexual, emotional, and psychological abuse returned to their communities a mere shadow of their former selves. They were traumatized, and the connection with their family, community, language, spirituality, and culture was crushed. The survivors quickly learned that they did not fit in and were not wanted in mainstream societies, and they quickly realized they did not fit in their own homes and communities.

[23] Meanwhile, families whose children were stolen were themselves traumatized. Communities were in a downward spiral toward poverty, addiction, and mental health crises, leading to violence, trauma, and despair. Is it a wonder that people seek comfort from the false promises of mind-altering drugs and alcohol? Is it a wonder that people resort to violence and criminal behaviours when they have been victims of the most horrid crimes and find themselves as adults, perpetuating the hurt and trauma they had imposed on them?

[24] The resulting harm from the legacy of Indian residential schools has led to people losing their way, leaving their communities, and finding themselves lost and alone, often in larger centres like Toronto. The over-representation of Indigenous people in the Courts who struggle with mental health challenges, poverty and addiction is staggering.

[179] L.C.’s experience of rape, both at the hands of other students and a priest, are unfortunately the legacy of this system.

[180] Consistent with the Court of Appeal’s finding in Woodward at para. 72, Volume 5 of the Final Report of the Truth and Reconciliation Commission of Canada (TRC at p. 229-230 ) finds that research supports that there is a “disturbingly strong connection between being sexually abused as a child and the later sexually abusing of others.”

[181] The Gladue report explains this unique systemic problem at p. 16:

The Royal Commission on Aboriginal Peoples has noted that in residential schools, adults commonly used their power and control to abuse the children. Of the approximately 20 per cent of Aboriginal people who went to residential schools, 32.6 per cent reported sexual abuse. To put this in perspective, as of December 31, 2015, the Independent Assessment Process had received 37,998 applications for compensation for physical and sexual abuse experienced at the schools.

Sexual abuse and physical abuse at the residential schools were often intertwined.Reports of these abuses at the residential schools were often ignored or poorly investigated, and rarely ever prosecuted, meaning the vast majority of the perpetrators of this abuse were treated with impunity. The pattern of sexual abuse in residential schools was cyclical, as students who had been subject to sexual abuse by residential school staff would in turn abuse smaller or more vulnerable children. These lessons were then repeated as children became parents, with the result that many survivors of the residential school system often inflicted abuse on their own children.

[Citations omitted.]

[182] At page 230, the TRC report finds that there is a need for culturally appropriate forms of treatment that recognize the widespread sexual abuse that occurred in residential or “Indian Day schools”, and continues tragically. Suffering abuse by racist state systems destroys an individual’s belief in themselves and trust in essential institutions necessary for a healthy life and sense of security. It results in long-term and distinct mental health damage.

[183] In R. v. Sharma, 2022 SCC 39, 486 D.L.R. (4th) 579, the Supreme Court recognized this distinct context and held that judges retain broad discretion to impose a range of available sentences for Indigenous people:

[79] It is undisputed that the sentencing judge must take account of the particular circumstances of Indigenous offenders, as that is what Parliament has directed in s. 718.2(e). How this is to be done may take various forms and the Criminal Code provides judges broad discretion to craft a proportionate sentence, given the offender’s degree of responsibility, the gravity of the offence and the specific circumstance of each case (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58). For instance, sentencing judges may consider other non‑carceral options such as suspended sentences and probation. They may also reduce sentences below the typical range.

[184] The court must “look to the ways in which the circumstances of Aboriginal offenders are different due to the effects of colonization and a history of discrimination” in considering what is a proportionate sentence. R v. Whitehead, 2016 SKCA 165, 344 C.C.C. (3d) 1, at para. 30.

[185] That said, the gravity and seriousness of the offences are not attenuated by the personal circumstances of the accused. See Sharma at para. 108 citing R. v. Neary, 2017 SKCA 29, [2017] 7 W.W.R. 730, at para. 39; see also, R. v. Morris, 2021 ONCA 680, at para. 76.

[186] The offences are an intrusive violation of a young girl’s sexual and personal autonomy by a father figure in a position of trust. Pursuant to Friesen, at para. 76, I recognize (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that the victim has suffered as a result of these offences.

[187] The grooming, repetition, intrusiveness, and breach of trust, all increase L.C.’s moral blameworthiness.

[188] Intentionally applying force of a sexual nature to a child is morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child, because it involves the wrongful exploitation of the child by the offender, and because children are so vulnerable. The blameworthiness increases when it is repeated.

[189] However, L.C.’s moral culpability is significantly attenuated by the unique circumstances tied to systemic racism that contributed to the commission of these offences.

[190] This background also contextualizes and provides insight, but of course does not justify, the offending behaviour. As explained by the Supreme Court in Ipeelee:

[73] […] While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability. As Greckol J. of the Alberta Court of Queen’s Bench stated, at para. 60 of R. v. Skani, 2002 ABQB 1097, 331 A.R. 50, after describing the background factors that lead to Mr. Skani coming before the court, “[f]ew mortals could withstand such a childhood and youth without becoming seriously troubled.”

OVER-INCARCERATION AND JAIL CONDITIONS

[191] In addition to the over-incarceration of Indigenous people, the material conditions under which L.C. will serve his sentence is a relevant factor to determine a fit sentence. In particular, the mistreatment of Indigenous inmates.

[192] “Canada’s correctional population is becoming disturbingly and unconscionably Indigenized.” Office of Correctional Investigator Annual Report, 2022-2023. Ten Years since Spirit Matters: Indigenous Issues in Federal Corrections (Part II) at p. 53.

[193] The 2022-2023 OCI report at p. 52, states that Indigenous over-representation is getting worse:

As far back as 1999, Canada’s highest court, in the seminal decision of R. v. Gladue observed that Indigenous over-representation reflected a “crisis” in Canada’s criminal justice system. When the Office’s original Spirit Matters investigation was tabled as a Special Report to Parliament in March 2013 the rate of representation of Indigenous peoples in federal prisons stood at just under 25%. Ten years later, the rate stands at just under 33%, representing more than 4,200 Indigenous individuals. The steady and unabated increase in the disproportionate representation of Indigenous peoples under federal sentence is nothing short of a national travesty and remains one of Canada’s most pressing human rights challenges.

[194] Recognized by the Supreme Court in R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at paras. 135-136, the principle of proportionality implies that where the impact of imprisonment is greater on a particular offender, a reduction in sentence may be appropriate. Sentencing judges should consider how the conditions of confinement including the difference between the supports available while serving a non‑custodial conditional sentence versus serving a custodial sentence in a federal institution would affect an individual offender.

[195] In Hilbach, at para. 62, the Supreme Court acknowledged the OCI’s 2021-2022 report’s findings that indigenous people serve harder time are deserving of significant weight:

[I]ndigenous offenders are more severely affected by incarceration and are often treated in discriminatory ways in custodial environments. Indigenous people are more likely to experience use-of-force incidents in federal penitentiaries and are provided limited access to culturally appropriate programming (Office of the Correctional Investigator, Annual Report 2021-2022 (2022)). Further, incarceration itself is often a culturally inappropriate consequence for wrongdoing for Indigenous offenders (Gladue, at para. 68).

[196] The OCI reports for the past ten years have consistently found that the jail environment is harsher and unequal for Indigenous inmates.

On this very same and significant point, the Office’s original 2013 Spirit Matters report concluded, “CSC has failed to make the kind of systemic, policy and resource changes that are required in law to address factors within its control that would help mitigate the chronic over-representation of Aboriginal people in federal penitentiaries.” Unfortunately, in the present context I found no divergent or compelling evidence to change or counter this conclusion. Increasing rates of Indigenous representation in federal prisons, the persistently high number of Indigenous peoples who only gain release from prison at mandatory or warrant expiry, and the overall disparate and distressing outcomes on nearly every measure of correctional performance affirms the very stubborn reality that Canada’s federal correctional system continues to fail Indigenous peoples.

At the same time, it is important to acknowledge that there are limitations to what may be accomplished within the federal correctional system as it currently exists. Penitentiaries are historically and inherently colonial institutions. One of Canada’s first and most imposing symbols of colonial power, Stony Mountain Penitentiary in Manitoba, began operations in 1877 and is now Canada’s oldest and largest continuously operating penitentiary. It was used to imprison Indigenous peoples taking part in the North-West Rebellions of 1885. Today it still holds an overwhelming percentage of Indigenous peoples. Given this history and legacy, to expect “healing” to take place inside the walls of some of these unmistakably Indigenous facilities seems a somewhat forced and paternalistic conceit.

It bears noting that today, like yesteryear, most Indigenous persons serving a court sentence in a federal penitentiary are not involved in any of CSC’s Indigenous “continuum of care” interventions. As documented in this report, selection and participation in CSC’s signature continuum of care initiatives, such as Pathways and Healing Lodges, seem reserved for only the most motivated, compliant and engaged Indigenous person. The overwhelming majority of Indigenous peoples in CSC custody do not benefit from early or timely conditional release and reintegration, contributing to shockingly high rates of reoffending and returns to prison. The system is simply and largely unresponsive to their needs, realities and potential. Even my Office had to stretch to reach these largely forgotten and abandoned people, some accounts of which are embedded throughout this report. They are part of the unheard, unseen, and often excluded Indigenous majority languishing inside federal prisons.

[Emphasis in original. Underline added]

(OCI 2022-2023 report at p. 58.)

[197] In addition, Hilbach at para. 106, recognizes that a term of imprisonment can be more severe for a person with complex mental illnesses.

[A] term of imprisonment can result in a more severe penalty for an accused with a mental illness than it may for others. Courts have noted that individuals may not have access to appropriate treatment while incarcerated and, for some mentally ill offenders, any period of incarceration may be extremely harmful to their mental state: R. v. Wallace (1973), 1973 CanLII 1434 (ON CA), 11 C.C.C. (2d) 95 (Ont. C.A.), at p. 100; R. v. Folino (2005), 2005 CanLII 40543 (ON CA), 77 O.R. (3d) 641 (C.A.), at paras. 29-32.[^5]

SENTENCE IMPOSED

[198] Proportionality is the organizing principle in achieving the goal of a fair, fit and principled sentence: R v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 10. Proportionality is the fundamental principle of sentencing that a sentence must reflect the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Criminal Code; Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30; and Parranto, at para. 10.

[199] Based on the applicable law and in accordance with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2, I find that a sentence of less than two years in custody, is inconsistent with the fundamental purposes and principles of sentencing. A suspended sentence with probation and a reformatory sentence are excluded as fit sentencing outcomes.[^6] Accordingly, a conditional sentence is not a fit sentence in the total circumstances of this case.

[200] Pursuant to s. 742.1, if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, and the statutory conditions are met, 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:

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, 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 conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),

(ii) section 269.1 (torture), or

(iii) section 318 (advocating genocide); and

(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

[201] Conditional sentences target “offenders who would otherwise be in jail but who could be in the community under tight controls.” R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 36. They are designed to “permit the accused to avoid imprisonment but not to avoid punishment” and can achieve the objectives of general deterrence and denunciation. Proulx, at paras. 35 and 127-128.

[202] In Proulx, at para. 79, the Supreme Court held that “a conditional sentence is available in principle for all offences in which the statutory prerequisites are satisfied.” The Court explained that while the gravity of offences is relevant to determining whether a conditional sentence is appropriate in the circumstances, it was both “unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences.” See para. 81; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; see also Sharma, at para. 95.

[203] In L.C.’s case there is no mandatory minimum jail sentence.

[204] The circumstances of the offences and aggravating factors support that there is an increased risk of L.C. re-offending. However, based on L.C.’s background including his advanced age with no other criminal record, compliance with release conditions, recent insight and overall circumstances including mental health issues, serving the sentence in the community would not likely endanger the safety of the victim or community, especially with appropriate conditions, programs, and orders. Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence. Proulx, at para. 72.

[205] Still, the risk level in this case is more than minimal at this time even with appropriate conditions. L.C. did not engage in an assessment or counselling specific to the offending behaviour prior to sentencing. He recently accepted responsibility. Whether L.C. engaged in offence responsive counselling was raised by the court with his counsel more than once during the longer than usual sentencing phase and nothing further was submitted. I recognize that L.C. is not legally required to engage proactively in offence specific therapy pending sentencing.

[206] Even with a reduced risk of re-offending, the gravity of the potential damage to victims and the community in case of re-offending is high. Given the nature and impact of the crimes, a lower risk of very harmful future offending supports that a conditional sentence is not fit. Proulx, at para. 74.

[207] Based on the available sentencing options, after considering all of the circumstances, a jail sentence is necessary in this particular case to adhere to the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, even if the other statutory factors are met. This is after taking into consideration the fundamental purpose and principles of sentencing, while factoring L.C.’s personal circumstances, the gravity and nature of the offences, the aggravating factors, the child and community context, restraint and restorative justice options, with requirements to prioritize the objectives of deterrence and denunciation. Proulx, at para. 106.

[208] The totality of sexual violence committed by L.C. against a young person, F.G., on multiple occasions, over an extended period, with increasing intrusiveness requires a jail sentence to reflect the full cumulative seriousness of the crimes. Friesen, at para. 133.

[209] L.C. abused his position of trust over a young child. His conduct included escalating and repetitive sexual touching of oral sex and digital penetration. His conduct was violent, exploitative, and extremely harmful.

[210] At the same time, I must consider that L.C. has a background with exceptional circumstances that impact the duration of the jail sentence. The length of the jail sentence and the application of the principle of restraint must account for L.C.’s distinct personal circumstances and mistreatment as an Indigenous person that contributed to his offending behaviour. The full context is that he has suffered profound disadvantage and harms by the state that put him on this path because of anti-Indigenous racism. Ipeelee at para. 73.

[211] In addition, the overall contextual information, even when not mitigating of moral culpability, enables a more accurate assessment of how to best blend competing sentencing objectives such as deterrence, denunciation, restraint and rehabilitation to comply with the proportionality principle and fundamental purpose of sentencing articulated in the Code. Morris, at para. 102.

[212] The Supreme Court has recognized that there will be cases where the circumstances of the offence and the offender call for a sentence that falls outside of the normal sentencing range. Sharma, at para. 72; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 4; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 92; R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at para. 46. For Indigenous people like L.C. there is an added obligation to consider the remedial aspect of section 718.2(e).

[213] I have factored L.C. is 50 years old. He has no prior criminal record. He has good rehabilitative prospects with a supportive family. He requires culturally competent programming to address the trauma he has endured as a day school survivor.

[214] It is unacceptable that a decade of reports from the Correctional Investigator confirm that as an Indigenous person he will face barriers in receiving culturally competent and adequate responsive programming in jail. He will also likely serve a harsher sentence because he is Indigenous and has mental illnesses.

[215] In Friesen, the Supreme Court discusses the complexity that is directly applicable in this case. In particular, the recognition of the elevated moral blameworthiness for sexual offences against children with the requirement that a judge maintains perspective that proportionality also requires consideration of an Indigenous person’s unique background circumstances that can mitigate moral blameworthiness and help to determine the right sentence.

[90] The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 153). As L’Heureux-Dubé J. recognized in R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, “[a]s to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions” (para. 31, quoting R. v. L.F.W. (1997), 1997 CanLII 10868 (NL CA), 155 Nfld. & P.E.I.R. 115 (N.L.C.A.), at para. 117, per Cameron J.A. (“L.F.W. (C.A.)”)). Offenders recognize children’s particular vulnerability and intentionally exploit it to achieve their selfish desires (Woodward, at para. 72). We would emphasize that the moral blameworthiness of the offender increases when offenders intentionally target children who are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society.

[91] These comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle requires that the punishment imposed be “just and appropriate . . . and nothing more” (M. (C.A.), at para. 80 (emphasis deleted); see also Ipeelee, at para. 37). First, as sexual assault and sexual interference are broadly defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability (R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 64; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 180).

[92] Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexual violence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74).

[216] The complicated total circumstances in this case require an all-encompassing individualization method.

[217] In R. v. Boudreault, 2018 SCC 58, the Supreme Court affirmed the need to adapt criminal sentencing given “the history of the treatment of Aboriginal peoples within the Canadian criminal justice system” citing Gladue at para. 34. The emphasis is that a fair sentence specific to an offender like L.C. considers this complexity in-depth.

[218] I have considered the Crown’s submission that a sentence of 4.5 to 5.5 years in jail be imposed. In my view, this position aligns with the general guidance in Friesen at para. 114. However, this position was taken before the Gladue report and updated medical records were filed. Despite the significant details in the combined reports that explain L.C.’s exceptional background that inform the application of all relevant principles and reduce his level of moral blameworthiness, the Crown maintained this position.

[219] This case is an important reminder that when sentencing an Indigenous person, Crown and Defence counsel have a duty to both obtain relevant background information and to engage thoroughly with that material with applicable case law. Wells, at para. 54; See also Criminal Code, ss. 718.2(e), 723, 726.1. Generalizations such as recognizing the person to be sentenced is a survivor of residential schools, intergenerational trauma or a victim abuse are an important starting point but do not go far enough.

[220] During oral submissions, the Crown eventually acknowledged the unique circumstances but was reluctant to submit the extent that they warranted a reduction from their original position.[^7] With respect, I find that the Crown’s argument helpful about the aggravating factors but it did not sufficiently consider the full record regarding L.C.’s unique personal circumstances with anti-Indigenous racism, sexual abuse, addiction and mental illness. The public interest requires the Crown position take into account the full circumstances. On the other hand, the defence position for a conditional sentence does not adequately address the aggravating factors and is not tenable in law based on these specific total circumstances.

[221] After considering the essential principles and complex total circumstances, I find that a fit and just sentence is 3 years in jail.

[222] This is a significant jail sentence that denounces the serious crimes and harms committed against F.G. and her family. It specifically deters L.C. from re-offending, while protecting the victim and society. This sentences reflects the seriousness of the offences and the long-term consequences for the victim, her family and the community within which it occurred. The sentence imposed factors that L.C. has now taken responsibility, demonstrated some insight and has reasonably good rehabilitative prospects with support.

[223] I have applied general deterrence to this sentence as mandated pursuant to the Code and common law. See sections 718.01. See also the combined impact of subsections of 718.2 (ii),(ii.1),(iii), (iii.1).

[224] A three year jail sentence communicates a clear message to the community that people that commit this crime will face significant consequences.

[225] However, general deterrence must be applied with precision to the total circumstances of this case to achieve proportionality. Indigenous offenders that are victims of repeated violence in residential school systems, that suffer long-term mental health and addiction problems as a consequence, are not situated similarly to ordinary members of the general Canadian public that are most likely to be deterred by the threat of severe penalties or punitive sentences imposed on others. Lacasse, at para. 73. See also R. v. Wismayer, 1997 CanLII 3294 (ON CA).

[226] L.C. is from of a distinct community targeted for abuse due to racism. As a result, a careful application of general deterrence is required.

[227] In this case, the Crown concedes that the repeated sexual abuse L.C. experienced as a child in the “Indian Day school” context, caused severe trauma and mental health conditions that ultimately rendered him likely to commit similar offences.

[228] Given the Supreme Court’s repeated recognition of the long-standing legitimate concerns about the effectiveness of general deterrence, sentencing L.C. to more jail time merely to make an example of him to others in general society, irrespective of his distinct experience with anti-Indigenous racism connected to the commission of the offences, would compound discrimination. I must be alert to the reality that he is differently situated from the general public. Bisonnette at para. 47; Hilbach at paras. 62, 102; Ipeelee at para. 60; Sharma, at para 123. Reasonably informed members of the community would understand that the court must consider that L.C. is uniquely situated and that Indigenous people are over-incarcerated.

[229] I pause to address an important legal point. I acknowledge that the law mandates a different methodology for assessing a fit sentence for an Indigenous offender, but it does not necessarily mandate a different result. Wells, at para. 44. However, the Supreme Court’s statement in 1999 in Gladue, that “generally, the more serious and violent the crime, the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders, whether the offender is aboriginal or non‑aboriginal” must be considered carefully based on the specific information before this court. Gladue, at paras. 33 and 93(13).

[230] First, the Supreme Court is clear that this passage does not supersede individualization and proportionality. Sentencing is a fact and legal specific task. A category based approach to sentencing is not appropriate. Wells, at para. 45-46, 51.

[231] In Wells, this was explained as a generalization and practical recognition that “particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders.” Wells, at para. 42, 44; Gladue, at para. 33.

[232] However, the Court in Wells specifically recognized that this general understanding is subject to the information before the sentencing judge. It does not mean that the duration of jail will necessarily be the same for an Indigenous and non-Indigenous offender.

50 The generalization drawn in Gladue to the effect that the more violent and serious the offence, the more likely as a practical matter for similar terms of imprisonment to be imposed on aboriginal and non-aboriginal offenders, was not meant to be a principle of universal application. In each case, the sentencing judge must look to the circumstances of the aboriginal offender. In some cases, it may be that these circumstances include evidence of the community’s decision to address criminal activity associated with social problems, such as sexual assault, in a manner that emphasizes the goal of restorative justice, notwithstanding the serious nature of the offences in question. [Emphasis added].

[233] Second, the dominant emphasis in the Gladue decision concerns the importance to apply a different approach to sentencing Indigenous people based on the full sentencing record. This obligation is complex but more necessary than ever based on current understanding of aggregate impacts of anti-Indigenous discrimination.

[234] Third, in numerous cases since Gladue, the Supreme Court has repeatedly recognized that due to the unique systemic or background factors which may have played a part in bringing the particular Indigenous offender before the court, when jail must be imposed, the circumstances may warrant that the jail term be less than the term imposed on a non‑Indigenous offender for the same offence. Gladue at paras. 93(6), (8), (12); Ipeelee, at para. 73, 84-86; Sharma at para. 79; Friesen at paras. 91-92; Hilbach at para. 62; R. v. Hills, 2023 SCC 2 at para. 87.

[235] In the particularized context of this case, restraint continues to be an essential consideration when jail is required. The Crown agreed with this understanding.

[236] Denunciation and deterrence are paramount and prioritized but should not be elevated above the cardinal principle of proportionality. Boudreault, at paras. 81-83.

[237] The 3 year jail sentence imposed on L.C. is a significant jail term but below the range because the assessment of his circumstances recognizes that L.C. has distinct disadvantages that reduce the extent his moral blameworthiness.

[238] Even though the history of reports indicate ongoing systemic discrimination in jails, my hope is that is that Corrections Canada will act on the latest OCI recommendations and place L.C. in culturally competent rehabilitative and restorative programming in custody and as he transitions back to the community. It is my recommendation that they do so as soon as possible. This is essential based on the current superior recognition about the impact of sexual violence applicable to L.C. as both a victim, then offender.

[239] In addition to the jail term, there shall be the following orders.

[240] There shall be a lifetime non-contact order pursuant to combined orders under ss. 161(1) and 743.21(1).

[241] Pursuant to s. 490.012(1), a judge is required to make an order requiring the person to comply with SOIRA when:

a) A sentence of imprisonment of two years or more is imposed;

b) For a designated offence that was prosecuted by indictment;

c) and The victim of the designated offence was under 18 years of age.

[242] Pursuant to s. 490.013(3), and order for life applies if the following requirements are satisfied:

(a) in the same proceeding, the person has been convicted of, or a verdict of not criminally responsible on account of mental disorder is rendered for, two or more designated offences in connection with which an order under any of subsections 490.012(1) to (3) may be made; and

(b) the court is satisfied that those offences demonstrate, or form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature.

[243] I am imposing a lifetime SOIRA order because L.C. has been convicted in the same proceedings of multiple counts of a designated offence that carries a maximum punishment of 14 years; and the pattern of behaviour shows that he presents an increased risk of reoffending by committing a crime of a sexual nature. The offences repeatedly targeted F.G. and were committed on multiple occasions between 2019 to 2020. During submissions, the Defence and Crown both agreed with this interpretation of 490.013(3).

[244] There will also be a mandatory DNA sample order.

[245] Finally, I pause to comment that additional sentencing tools would be useful to satisfy the competing sentencing principles and enhance public safety through effective long-term rehabilitation. In some cases, statutory restrictions on the unavailability of probation for a sentence beyond 2 years in jail, or limits to the structure and blending of conditional sentences are at the expense of superior and just sentences for Indigenous and other vulnerable people. See ss. 731(1) and 732.2(2)(b) of the Criminal Code. Section 732.2(2)(b). See also, R. v. Knott, 2012 SCC 42, 348 D.L.R. (4th) 582, at paras. 33-34; R. v. Ploumis (2000), 2000 CanLII 17033 (ON CA), 150 C.C.C. (3d) 424 (Ont. C.A.), at paras. 13-26. See also R. v. R.A.R, 2000 SCC 8, [2000] 1 S.C.R. 163, at para. 35.

[246] Additional sentencing options that permit judges to impose sentences that denounce and deter while facilitating rehabilitation and restorative justice for Indigenous people are required to responsively address the complex harms done to victims of sexual violence, and to Indigenous people.

CONCLUSION

[247] On Count 3 on the indictment, the accused is sentenced to 3 years in jail. For each of counts 1, 2, and 4, there will be a concurrent sentence of 3 years in jail.

[248] There shall be 9 days of credit for time spent in pre-trial custody.

ORDERS

There will be a DNA order pursuant to s. 487.051(1)(a).
There will be a noncommunication order prohibiting L.C. from contact and communication with F.G. and A.G. while in custody pursuant to s. 743.21.
There will be section 161 orders:

a. An order for life prohibiting L.C. to contact the victim and her mother, except through legal counsel.

b. An order for 3 years prohibiting L.C. from being within two kilometres of any dwelling-house where the victim, F.G. and A.G. ordinarily resides, goes to school, works, or is known to be.

There will be section 109 order for life. The Crown proceeded by indictment and violent offences were committed.
There will be a SOIRA order for life.

RECOMMENDATIONS FOR CORRECTIONS

I recommend that while incarcerated, L.C. immediately receive access to all available therapeutic and rehabilitative programs suitable for an Indigenous offender specific to his background, including but not limited to a healing lodge, so that he may address sexual abuse, offending, mental health, trauma, and alcohol addiction.
I recommend that L.C. be permitted to serve his sentence in a facility in the province of Alberta that is located as close as possible to his children and family and that will facilitate programming, unless he specifically requests placement in a facility outside of Alberta that will enable programming.
I recommend that upon release from custody that L.C. receive treatment in the community in culturally competent Indigenous programs including but not limited to:

i. Indian Residential Schools Resolution Health Support Program

ii. Federal Indian Day Schools health support services

iii. Indigenous Wellness Clinic through the Alberta Health

iv. The Red Road Healing Society

v. If any of those programs are unavailable, suitable culturally competent alternatives in consultation with Indigenous program leadership to be considered.

I recommend that the parts of the sentencing record that discusses L.C.’s experience with trauma and sexual abuse not be improperly used as a basis to deny him release and community based treatment.

MIRZA J.

Released: October 1, 2024

Appendix

Paragraph [62] comma added after the name “Posset”, the acronym “R.C.M.P.” added after Royal Canadian Mounted Police.

Paragraph [82] the word “that” was added to the last sentence. The word “had” replaced with “has”.

Paragraph [152] the word “that” was added before “this”

Paragraph [184] Open quotation mark added before the word “look”.

Paragraph [218] The words “that inform the application of all relevant principles and reduce his level of” added after the word background.

Paragraph [220] The word “that” was added after the word extent.

Paragraph [225] the words “with precision” added.

The following paragraph replaces the corresponding paragraph in the original judgment issued on October 1, 2024:

COURT FILE NO.: CR-23-0735

DATE: 2024-10-01

Corrected: 2024-12-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

R. Butler, for the Crown

and –

L.C.

D. Doney, for the Defendant

REASONS FOR SENTENCE

Mirza J.

Released: October 1, 2024

[^1]: I have anonymized the name of the victim, her mother and the offender to protect the identity of the victim. I also find that it is appropriate to anonymize the offender as he is a victim of sexual abuse in the residential school structural system. That history will be part of this decision.

[^2]: L.C.’s psychological assessments should be considered carefully to assist with responsive programming. At the same time, the trauma and illnesses should not unjustly be used to deny or impede L.C. from receiving fair consideration for re-integrative programming and parole.

[^3]: During the delivery of sentencing reasons on October 1, 2024, L.C. was genuinely and visibly upset but not disruptive as he listened respectfully to the review of the impact of his conduct and revisited his own trauma. He said thank you to the court as he exited, taken into custody.

[^4]: See also Remarks by Prime Minister Trudeau to apologize on behalf of the Government of Canada to former students of the Newfoundland and Labrador residential schools. November 27, 2017. Happy Valley-Goose Bay, Newfoundland and Labrador; Apology to the Cowessess community and Treaty Four communities, Saskatchewan, on June 25, 2021; and Statement by the Prime Minister on the apology from His Holiness Pope Francis regarding the residential school system in Canada. April 1, 2022. Ottawa.

[^5]: I acknowledge the federal government Correctional Service Canada’s response to the recommendations in the most 2022-2023 OCI report in their document entitled: Response to the 50th Annual Report of the Correctional Investigator 2022 to 2023, wherein they accept the need to address the concerns and recommendations. For example in response to recommendation 15, the report indicates that it is working to respond to increase culturally competent programs and making progress. https://www.canada.ca/en/correctional-service/corporate/library/reports/correctional-investigator/response-annual-report/2022-2023.html

[^6]: In the search for a fit sentence I gave serious consideration to imposing a sentence of up to 2 years plus 3 years of probation. I considered the possibility that the safety of the community and L.C.’s rehabilitation are better accomplished such that after he serves a significant jail term, through a lengthy period of probation with conditions responsive to the Gladue report, there will be monitoring that protects the victim while fostering rehabilitation so that L.C.’s risk factors are reduced, and he may obtain culturally appropriate sexual offender, mental health, and addiction treatment responsive to the trauma he has experienced. In another case with similar offender circumstances and fewer aggravating factors, a lesser sentence than imposed here may be appropriate. However, on this record and based on the sentencing tools available, I have concluded that 3 years is a fit sentence. Unfortunately, probation of up to three years with rehabilitative programming is not available for a sentence that exceeds two years in jail. See ss. 731(1) and 732.2(2)(b) of the Criminal Code. Probation generally cannot be used to substitute for jail time that is warranted to satisfy denunciation. R.v. Stuckless, 1998 CanLII 7143 (ON CA).

[^7]: The Crown’s initial written submission tendered before the Gladue report was filed said that it anticipated the Gladue report will refer to sexual abuse and other ways that L.C. was disadvantaged by the legacy of colonization, colonialism and racism. The Crown declined to provide updated written submissions addressing the specifics in the Gladue report after it was filed. After the Gladue report was received, during oral submissions the Crown acknowledged the reports significant contents but struggled to identify the extent of mitigation. The Crown’s initial position also did not consider the Supreme Court’s recognition in Hilbach about jail sentences being harsher and longer for mentally ill and Indigenous people. The overall circumstances was subsequently addressed by both counsel at the direction of the court. Recognizing this is a complex case, going forward the particular circumstances and social context must be engaged by counsel and the court.

R. v. L.C., 2024 ONSC 5427

Case Summary

MIRZA J.

INTRODUCTION

THE CRIMINAL CODE OFFENCE OF SEXUAL INTERFERENCE

CIRCUMSTANCES OF THE OFFENCES

IMPACT ON VICTIM

PARTIES’ POSITIONS

PROCEEDINGS

CIRCUMSTANCES OF THE OFFENDER

ADDICTION

MENTAL HEALTH

RACISM

SENTENCING PRINCIPLES and RANGES

SEXUAL INTERFERENCE SENTENCING CASES

GLADUE SENTENCING

APPLICATION OF THE PRINCIPLES

AGGRAVATING FACTORS

i. Likelihood to Reoffend

ii. Abuse of Position of Trust or Authority

iii. Duration and Frequency

iv. Age of the Victim

v. Degree of Physical Interference

vi. Impact on the Victim

MITIGATING FACTORS

GLADUE FACTORS

OVER-INCARCERATION AND JAIL CONDITIONS

CONCLUSION

ORDERS

RECOMMENDATIONS FOR CORRECTIONS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 1

Legislation 9