Court File and Parties

COURT FILE NO.: 93-22 DATE: 2024/10/08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

K.E. Defendant

Counsel: Konrad de Koning, for the Crown Brian Chambers, for the Defendant

HEARD: January 30, 2024

REASONS FOR SENTENCE

JUSTICE I.F. LEACH (ORALLY)

Introduction

[1] On September 22, 2023, following a five-day trial by judge and jury, K.E. was found guilty of having committed the following offences:

a. sexual interference, contrary to section 151 of the Criminal Code of Canada, (“the Code”); and

b. child luring, contrary to section 172.1 of the Code.

[2] In relation to each offence, the victim was S.W., (“S.”), who was 18 at the time of trial, but either 10 or 11 years old when the relevant underlying offensive conduct took place at some point between May 1^st and November 30^th of 2016.

[3] Following delivery of the jury’s verdict and the aforesaid findings of guilt, on September 22, 2023, I directed the preparation of a pre-sentence report pursuant to section 721 of the Code, after which the matter initially was adjourned to be spoken to in the next criminal assignment court here in London, (on October 17, 2023), for the scheduling of a further hearing before me for the receipt of submissions regarding sentence. On October 17, 2023, the matter was adjourned again to a sentencing hearing before me on January 30, 2024.

[4] On that date, (by which time I had been supplied with the aforesaid pre-sentence report, which was marked as an exhibit on the sentencing hearing), I received counsel submissions, as well as copies of further documents tendered by the Crown, which also were marked as exhibits on the sentencing hearing. In particular:

a. I was presented with a Victim Impact Statement prepared by C.B., S.’s adoptive mother, which was read aloud in court by Crown counsel. In that regard, I was informed that inquiries had been made to determine whether or not S. herself wished to provide a Victim Impact Statement of her own; inquiries which resulted in an indication that S. was “going through a rough patch”, and that she therefore had asked her mother to tender such a statement instead. I will also note that the Victim Impact Statement, as originally tendered by Ms B., contained some particular comments that needed to be redacted; some on consent, and some at my direction after receiving counsel submissions in that regard. Those redactions were addressed on the record, and marked on the copy of the statement from Ms B. that was marked as an exhibit.

b. I was presented with a copy of Mr E.’s brief criminal record, which consists of one conviction, imposed in adult court in June of 2009, for Mr E.’s apparent failure to comply with terms of a recognizance contrary to s.145(3) of the Code, in respect of which he received a custodial sentence of a single day after receiving credit for five days of presentence custody. I nevertheless also note that the parties were agreed that Mr E.’s criminal record was minimal, dated and not relevant to the offensive conduct that brings Mr E. before me now, such that this sentencing exercise should be approached on the basis of Mr E. essentially being regarded as a first-time offender.

[5] At the sentencing hearing on January 30, 2024, I also was presented with a brief of authorities compiled and submitted by the Crown; a brief containing authorities emphasizing relevant general principles of sentencing in relation to such matters, but also suggesting examples of analogous or “benchmark” authorities that might lend assistance, for purposes of comparison, in relation to parity of sentencing.

[6] The defence chose not to tender any material or authorities in relation to the sentencing hearing.

[7] After the completion of sentencing submissions from counsel, Mr E. was asked, pursuant to section 726 of the Code, if he wanted to make any direct comments to me prior to imposition of sentence. He declined the opportunity.

[8] The matter then was adjourned to May 24, 2024, (the first available hearing date at the time), for imposition of sentence and delivery of my associated reasons in that regard. However, imposition of sentence did not proceed that day, owing to the hearing being adjourned at the eleventh hour, at the request of defence counsel, in light of indications by counsel for E. that he had been informed late the day before that Mr E. was experiencing serious health difficulties that would prevent his physical attendance at the courthouse – although Mr E. was able to participate in the adjournment hearing by telephone. While I adjourned the matter that day, (i.e., on May 24, 2024), I did so only until May 30, 2024, for the presentation of medical documentation confirming Mr E.’s condition and limitations, focused in particular on his ability to attend the courthouse for imposition of sentence.

[9] When the matter was spoken to on May 30, 2024, I was informed by counsel for Mr E. that the medical documentation I had requested was not available, and that Mr E. actually did have the physical ability to attend the London courthouse, albeit through necessary use of a walker if he was required to take more than a few steps unassisted. In the result, imposition of sentence was rescheduled to July 30, 2024, following consultation with the trial coordinator to obtain another available date.

[10] On July 30, 2024, Mr E. nevertheless once again failed to appear for the contemplated imposition of sentence, in the circumstances described at greater length in the endorsement I made that day on the electronic indictment. A bench warrant without discretion was issued and, (after further consultation with counsel and the London trial co-ordinator to confirm the next available date on which imposition of sentencing could proceed), the matter was rescheduled to today for contemplated imposition of sentence.

[11] On October 3, 2024, (i.e., five days ago), the aforesaid bench warrant for Mr E.’s arrest was executed and he was brought before Justice Tranquilli. At that time, Mr E. apparently was remanded in custody until today, pursuant to section 516 of the Code, with Justice Tranquilli also making a non-communication order pursuant to s.516(2) in relation to a number of named individuals, including S.W. and C.B.

[12] Mr E. accordingly now finally appears before me, in custody, for imposition of sentence; i.e., apparently having spent the past five days in presentence custody. In that regard:

a. At the time of the sentencing submissions made by Crown and defence counsel on January 30, 2024, it was not disputed that, following his initial formal arrest in September of 2020, (in relation to the charges that resulted in the convictions that bring him before me now), Mr E. was released on conditions that had not been breached in any way prior to his repeated non-attendance for imposition of sentence; i.e., a release which thereby allowed him to remain out of custody from the date of his arrest onwards. In other words, until his repeated non-attendance at his trial continuation for imposition of sentence, there was no presentence custody in respect of which Mr E. needed to be given credit in relation to any custodial sentence I might impose.

b. Again, Mr E. now has spent five days in actual presentence custody, following execution of the bench warrant I issued after his second failure to attend court for his trial continuation and imposition of sentence. That in turn raises the question of whether Mr E. should receive any credit for that time spent in presentence custody pursuant to subsections 719(3) and 719(3.1) of the Code. In particular:

i. Pursuant to s.719(3) of the Code, “In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody”. [Emphasis added.]

ii. Pursuant to s.719(3.1) of the Code, “Despite subsection (3), [i.e., s.719(3)], if the circumstances justify it, the maximum is one and one-half days for each day spent in custody”.

c. I received further submissions from counsel this morning, in relation to the narrow question of whether Mr E. should receive any credit for his time spent in presentence custody since October 3, 2024. In that regard:

i. Crown counsel asked that Mr E. receive credit for his five days of time spent in actual presentence custody on a “one for one” basis; i.e., receiving one day of credit for each day spent in presentence custody, for a total credit of five days; and

ii. Counsel for Mr E. asked that Mr E. receive such credit on a “1½ for one” basis; i.e., receiving a credit of 1½ days for each day spent in presentence custody, for a total credit of 7 ½ days.

d. In my view, Mr E. should and will receive credit for his five days spent in actual presentence custody pursuant to s.719(3) of the Code, on a “one for one” basis; i.e., receiving five days of credit, towards service of the custodial sentence I will be imposing. In that regard:

i. The wording of s.719(3) of the Code makes it clear that the court’s authority to extend such credit is permissive, not mandatory; i.e., a court “may” extend credit for time spent in presentence custody, but is not required to do so. In my view, that discretion is carried over into s.719(3.1), which permits enhancement of such a credit beyond the “one day for one day” basis “if the circumstances justify it”, in the opinion of the presiding judge.

ii. The wording of s.719(3) of the Code also makes it clear that the court’s authority to extend credit for time spent in presentence custody is contingent on the time spent in presentence custody being “time spent in custody by the person as a result of the offence”. A court considering the exercise of that authority accordingly must assess whether a sufficient link exists between the detention for which credit is sought and the offence for which the offender is being sentenced, so as to meet the “as a result of” requirement in s.719(3) of the Code. See R. v. W. (2008), 2008 ONCA 510, 236 C.C.C. (3d) 285 (Ont.C.A.), and R. v. Barnett (2017), 2017 ONCA 897, 356 C.C.C. (3d) 480 (Ont.C.A.).

iii. My preliminary view, subject to hearing from counsel, was that the time Mr E. has spent in presentence custody since October 3, 2024, was not, in the sense required, “time spent in custody … as a result of the offence[s]” which bring Mr E. before me today for imposition of sentence. Without limiting the generality of the foregoing:

1. Decisions clearly were made, prior to Mr E.’s repeated failure to attend continuation of his trial proceeding for imposition of sentence, that he otherwise would have been entitled to remain out of custody prior to that formal imposition of sentence, notwithstanding his being charged with the two offences that bring him before me now, and notwithstanding his being found guilty of those two offences that bring him before me now.

2. Had Mr E. surrendered himself to authorities on July 30, 2024, or as soon as possible thereafter, to address his non-attendance at court that day, and done so with a reasonable explanation for why he did not attend court as required on July 30, 2024, despite his clearly having knowledge that he had an obligation to do so, he might very well have been released again until today. He nevertheless apparently took no voluntary steps to present himself to authorities, in relation to that non-attendance, between July 30, 2024, and the time of the bench warrant’s execution on October 3, 2024.

3. In the circumstances, it seemed to me that the time Mr E. has spent in presentence custody since October 3, 2024, accordingly was not “time spent in custody … as a result of” his relevant sexual interference and child luring offences, but time spent in custody as a result of his repeated failure to attend court for the continuation of his trial, (and imposition of sentence in particular), and his failure to voluntarily present himself to address his non-attendance at court prior to the resulting bench warrant for his arrest being executed, when Mr E. reasonably ought to have known that he should have taken appropriate steps in that regard.

iv. However, Mr Chambers, on behalf of Mr E., candidly acknowledged on the record today that he may have erred in the information he relayed to Mr E., in terms of the nature of the bench warrant I issued on July 30, 2024; i.e., indicating that it was merely a bench warrant with discretion, and suggesting that it might suffice if Mr E. simply appeared today for imposition of sentence. That in turn would suggest a greater nexus, in fact, between Mr E.’s detention in pretrial custody and the charges which bring him before me today.

v. Moreover, I am persuaded by Crown counsel’s candid acknowledgment that, had Mr E. spent the intervening months in presentence custody, (i.e., if the bench warrant without discretion had been executed immediately after July 30, 2024, with Mr E. being remanded in custody until today), that almost certainly would have been regarded as Mr E. having begun to serve his probable custodial sentence, such that the current situation should be approached on a similar basis.

vi. On balance, I therefore am persuaded that Mr E. should at least receive credit for his presentence custody on a “one for one” basis. However, I am not persuaded that the circumstances of Mr E.’s presentence custody, outlined above, warrant enhanced credit. In my view, the failures of Mr E. to attend on the two previous scheduled dates for imposition of sentence, both of which were known or admittedly made known to Mr E., lie at his doorstep. His time spent in presentence custody stems directly from those failures. Enhanced credit for presentence custody is not a right but a discretionary benefit, and in my view Mr E. is not deserving of that enhanced credit in the circumstances. There otherwise would be no disincentive for someone in Mr E.’s position to do what he has done by repeatedly not attending for imposition of sentence.

e. In those circumstances, and pursuant to my exercise of the discretion extended to me by s.719(3) of the Code, Mr E. therefore shall receive, for the five days he has spent in actual presentence custody, five days of credit towards the custodial sentence I intend to impose.

Circumstances of the offences

[13] I turn next to consideration of the circumstances underlying the offences in respect of which Mr E. has been convicted.

[14] In that regard, pursuant to the provisions of subsections 724(1) and 724(2) of the Code, I accept the following matters as proven, based on the information disclosed at trial and during the sentencing proceedings, including facts, express and implied, which in my view were essential to the jury’s verdicts of guilt in relation to both counts of the underlying indictment, and reflected in large measure implicit acceptance of S.’s testimony in relation to matters disputed at trial:

a. S. was born in May of 2005; the second of 12 children who progressively were born to, and initially resided with, S.’s birth mother; i.e., “C.”.

b. During the period of May through November of 2016, (i.e., the period addressed by the counts in the underlying indictment), C. was a single parent who formally was responsible for the immediate care of five of her children, including S., (who was 10 or 11 years old during the relevant period, depending on whether events took place before or after her eleventh birthday in May of 2016), and four of S.’s younger siblings; i.e., three of S.’s younger brothers, and one of S.’s younger sisters.

c. Initially, all six members of that single-parent family, (i.e., C. and the five children I have indicated, including S.), were living in the rear unit, (Unit 3), of a small apartment building located at a specified address here in the city of London. Despite being only 10-11 years old at the time, (and having finished grade 5 in June of 2016 before starting grade 6 in September of 2016), S. was called upon to look after herself and her four younger siblings during times when her mother C. would leave the children alone in the residence, trusting S. to take care of herself and the other children.

d. Unfortunately, the degrees of child neglect and burden inappropriately cast upon S. at such a young age were compounded when S.’s mother C. met and started dating Mr E.. Initially, Mr E. repeatedly was welcomed into the already crowded Unit 3 residence of C. and her five young children as a frequent overnight visitor. However, he then moved into another unit at the front of the same small apartment building, (Unit 1), into which C. also then relocated a few weeks later, essentially leaving her five young children behind in the other unit, (Unit 3), such that the four younger children were entrusted for the most part to the primary care of S., their 10 or 11 year old sister. In particular, although the two units of the relevant small apartment building literally were under the same roof, they otherwise were completely separated, and apparently accessible to each other only by stepping outside the building and walking around it from one exterior entrance to the other. Although C. would return to the children’s unit occasionally, she spent the majority of her time living with Mr E. in his unit, including sleeping there overnight while the children were left on their own in the other unit under S.’s care. If the children needed their mother, they conveyed that message to their mother either in person, (i.e., by exiting the building and walking around its exterior to the unit shared by Mr E. and their mother), or by S. using an electronic “tablet” she had in the children’s residence to communicate with her mother C.’s mobile phone, via her mother’s “Facebook” account. In time, S. also located and linked to Mr E.’s Facebook account, with his consent, so that S. could attempt to reach her mother by sending messages to her via Mr E.; e.g., if her mother was not responding to direct messages.

e. At times, C.’s children also would leave their unit to come visit at the separate unit occupied by Mr E. and their mother C. In that regard, S. in particular liked to visit that unit on occasions when one or both of Mr E.’s two young children, (who were in the primary care of other adults but came to visit and stay with Mr E. from time to time), would attend the small apartment building to be with their father. In that regard, Mr E. himself confirmed, during the course of his trial testimony, that he regarded S. as a trustworthy child who liked his two children and was sometimes asked to play with them.

f. At some point into the living and communications arrangements I have described, (i.e., after Mr E. had come to live in a different unit of the same small apartment building, after S.’s mother had relocated to that unit leaving her children alone in the other unit under S.’s primary care, and after electronic communications had been established between S., her mother and Mr E.), and during the period addressed by the counts in the underlying indictment, matters took a sinister turn when Mr E. initiated the exchange of intimate photographs with S.. In particular:

i. those exchanges began with Mr E. spontaneously sending S. a single photo of his erect penis;

ii. a naive S. responded by sending Mr E. a photo of her vagina, because that was something she unfortunately had done during electronic communication with others prior to the relevant electronic communications with Mr E.;

iii. that in turn led to Mr E. and S. exchanging additional intimate photos; and

iv. in the result, S. received approximately three photos of Mr E.’s penis and sent Mr E. approximately three photos of her vagina, for an estimated total of six intimate photos being exchanged between the two of them over the course of a few days.

g. Sometime after that exchange of intimate photos, (i.e., after a passage of time the duration of which S. could not recall with certainty), S. received a Facebook message from Mr E. That message, sent after school hours and in the early evening, indicated that Mr E.’s children were visiting his unit, (i.e., the unit primarily occupied by Mr E. and S.’s mother C.), and that S. should come over to that unit and “hang out” with those children, as S. had done on six or seven previous occasions. At trial, S. could not recall with certainty where her mother was at the time; i.e., when that message and invitation were sent and received. However, she believed her mother probably was then visiting with her children in Unit 3, as S. did not think she otherwise would have left her siblings alone there to go to the other unit.

h. When S. arrived at the separate unit primarily occupied by Mr E. and S.’s mother C., she was greeted by Mr E., who already was in a state of partial undress; i.e., wearing only his sweatpants. S. entered the unit and immediately went to its bedroom where Mr E.’s children usually spent time during their visits, only to find that his children actually were not there. At that point, she returned to the unit’s “living room” area, which Mr E. and S.’s mother C. also effectively used as their bedroom.

i. During an encounter that then lasted for approximately 45 minutes, and which S. described in vivid detail at trial but I will describe here only in broad terms:

i. Mr E. directed S. to take off her clothes and lie down on her back, on the room’s mattress;

ii. S. complied with Mr E.’s directions because, even though she admittedly did not know him well, (i.e., with S. agreeing that Mr E. had made it quite clear to S.’s mother and her children that he only intended to be C.’s boyfriend and not a stepfather to C.’s children), and even though Mr E. admittedly did not use any physical force to restrain her or compel her compliance with his directions on the occasion in question, she felt at the time that she was in a situation where an adult had authority over a child, telling the child what to do, and she felt obliged to do what she was told;

iii. Mr E. then removed the remainder of his own clothing, positioned himself on top of S., and proceeded to have vaginal intercourse with her for what seemed like a “long time” to S., (and which S. estimated with more particularity to have lasted approximately 20 minutes), with S. not being sure as to whether or not Mr E. had used any condom during that vaginal intercourse;

iv. when Mr E. ended that vaginal intercourse, (apparently without having ejaculated), he then directed S. to perform oral sex on his still erect penis;

v. S. then complied with Mr E.’s directions in that regard, performing oral sex on Mr E.’s penis for approximately 15 minutes, during which time Mr E. definitely was not wearing a condom; and

vi. that oral sex ended with S. indicating to Mr E. that she wanted to go home, at which point she was permitted to stop what she was doing, get dressed and leave that unit for the one in which she resided, but not before Mr E. indicated to her that she was not to tell anyone what had happened or he would not love her and she would no longer get the level of attention she had been receiving to date.

j. No other incidents of inappropriate electronic communication or inappropriate physical contact between Mr E. and S. were alleged or described at trial.

k. The relationship between Mr E. and S.’s mother C. ended a month or two after the aforesaid incident of vaginal intercourse and oral sex, for reasons which, (to the best of S.’s knowledge), had nothing to do with that incident. Although Mr E. continued to live in the front unit of the same small apartment building, (i.e., after S.’s mother had returned to live primarily with S. and the other children in the unit at the rear of the building), there was no further communication or other interaction between Mr E. and S., with S. seeing him thereafter only once and in a public setting; i.e., on an occasion when both happened to be in the same grocery store, and no words were exchanged between them. S. otherwise had no further direct or indirect involvement with Mr E. prior to S. eventually reporting Mr E.’s conduct to the police, leading to the charges which in turn led to this proceeding.

l. Sometime after the underlying events giving rise to those charges, S. and her siblings were apprehended by the Children’s Aid Society of London and Middlesex and went into foster care, which eventually led to S. being formally adopted by Ms B..

[15] With those introductory comments, and that outline of the circumstances underlying Mr E.’s offences in mind, I now return to my current task of determining the appropriate sentence Mr E. should receive in relation to his offences and convictions, in respect of which, (as I have said), he now has spent five days in actual presentence custody.

Circumstances of the offender

[16] The personal circumstances of Mr E. were outlined in the presentence report I have mentioned, which was supplemented to some degree by the submissions I received from counsel in that regard.

[17] I have reviewed and considered all of that information, but note that Mr E.’s personal circumstances include the following:

a. He was born here in London on a specified date in May of 1988, making him 28 at the time of the offensive conduct that brings him before me now, and 36 at the time of sentencing.

b. He was the fifth of six children born to his parents; i.e., such that he has two older brothers, two older sisters, and one younger sister.

c. Although his birth parents separated when Mr E. was only a few months old, with Mr E.’s mother leaving her husband and taking the children with her as the result of domestic violence, Mr E. himself apparently has no personal recollection of difficulties in that regard. Indeed, Mr E.’s mother thereafter entered into what appears to have been a very positive relationship with Mr E.’s stepfather that lasted for approximately 34 years up until the time of that stepfather’s death, with Mr E. himself indicating to the author of the presentence report that he recalls a happy childhood and upbringing, in a positive and supportive family environment; e.g., an environment free of any family violence, sexual abuse or mental health concerns, and characterized by happy memories of spending a good deal of time with his mother, stepfather, siblings and extended family, (including his cousins and maternal grandparents), and engaging in numerous sporting activities.

d. Mr E. acknowledges that he nevertheless experienced challenges in relation to his education. In particular, after completing elementary school and attending high school for a couple of years, he left school altogether following the 10^th grade after he came to associate with what he himself described as “the wrong crowd” during his teenage years.

e. To his credit, Mr E. nevertheless generally has maintained a generally prosocial life, apart from the misconduct that brings him before me now. Without limiting the generality of the foregoing:

i. Mr E. apparently has never used or had any issue with illicit drugs; something confirmed via information provided to the author of the presentence report by Mr E.’s mother. As for alcohol use, Mr E. says he was introduced to alcohol use at the age of 18, but personally feels he thereafter never experienced any concerning behavioural issues in that regard. Information provided by his mother to the author of the presentence report does not really suggest otherwise, although she referred to her son having a “history of alcohol use” that nevertheless appears to have ended completely approximately two years ago, since which time Mr E. seems to have abstained completely from any use of alcohol. In any event, there is no indication whatsoever that use of drugs or alcohol had anything to do with the misconduct giving rise to this proceeding and sentencing.

ii. As noted earlier, Mr E. also has only a very minimal and dated criminal record; a record which, (both parties agree), is irrelevant and so inconsequential that Mr E. essentially should be regarded as a first-time offender for the purposes of this sentencing process.

iii. Moreover, Mr E. actively maintained various forms of remunerative employment over the course of many years, (e.g., working at an automotive wrecking facility for approximately 16 years immediately after leaving school, and thereafter working for a property maintenance company providing landscaping and snow removal services), with his sustained formal employment by others coming to an end only 3½ years ago, as a consequence of his stepfather and mother experiencing severe health issues which required more and more of Mr E.’s time and active caregiving assistance. In that regard, Mr E.’s stepfather apparently experienced a severe stroke and related complications, (which led to an extended period of rehabilitation), while Mr E.’s mother suffered and suffers from health difficulties that include glaucoma and severe visual impairment. Mr E. had been providing more and more part time assistance and care in that regard, while he continued to work for the property maintenance company I mentioned, but when his stepfather succumbed to his health issues and died of heart failure approximately 3½ three years ago, Mr E. felt obliged to give up his outside employment altogether; i.e., so that he could return to live with his mother as her fulltime personal caregiver, while receiving financial support via Ontario Works. His mother was said to now depend and rely on Mr E. extensively, (i.e., 24 hours a day, seven days a week), requiring the assistance of Mr E. “to function daily” now that Mr E.’s stepfather is gone. The relationship between Mr E. and his mother nevertheless appears to be a symbiotic one, insofar as both advised the author of the presentence report that they depend on each other “for daily living needs”.

iv. Clearly, not all of Mr E.’s intimate partner relationships have been successful, but a number of them have been sustained for many years; e.g., with Mr E. being in a relationship with the mother of his two children for approximately six years, and in his current intimate partner relationship, (with a partner who is employed and lives with Mr E. in his mother’s residence while also contributing regularly to the household expenses), for more than five years. Mr E. personally regards that latter and ongoing relationship as positive and supportive, although Mr E.’s mother and responding sister indicated to the author of the presentence report that the relationship now seems strained at times because of this proceeding, and both expressed concern that Mr E. does not assert himself sufficiently in the relationship to ensure he is not being treated poorly.

v. While not having primary care of his two children, (as his now 12-year-old daughter generally resides with Mr E.’s sister and his 10-year-old son generally resides with his maternal grandparents), Mr E. commendably remains involved in the lives of his two children; e.g., sharing a positive and supportive relationship with his daughter, whom he sees every weekend, although he apparently gets to see his son less frequently than that and perhaps as infrequently as once every three months. Mr E. commendably was described by his responding sister as a parent who “would do anything for his kids”.

vi. Beyond the support Mr E. continues to enjoy from his mother, current partner and children, he also apparently continues to enjoy the ongoing support of his more extended family, which is quite large; i.e., with Mr E. having not only five siblings but 24 nieces and nephews, some of whom apparently also have children of their own. Having said that, the author of the presentence report was unable to establish contact with such potential familial supports apart from Mr E.’s mother and one of his sisters, neither of whom believes that Mr E. committed the offences which bring him before me now.

f. Consistent with his pleas of “not guilty”, Mr E. also continues, (as is his right), to deny his commission of the underlying misconduct the jury found to have been established beyond a reasonable doubt, and to maintain his innocence in that regard. He accordingly does not accept any responsibility for such misconduct, and has expressed no remorse in that regard; factors which generally suggest a lack of insight into an offender’s underlying offensive behaviour, which in turn generally may place an offender in a situation of greater risk of reoffending, with corresponding risk to the community. In that regard, however, I also think it worth noting the following:

i. According to information provided by Mr E.’s responding sister to the author of the presentence report, and statements made to that author by Mr E. himself, Mr E. at least professes to understand, and expressly acknowledges, the abhorrent and completely inappropriate nature of such sexual misconduct directed towards a child; e.g., with Mr E.’s responding sister emphasizing that her brother Mr E. is a caring parent towards his own children, as well as “great person who is so against this stuff”, (i.e., the sexual abuse of children), and Mr E. himself emphatically stating, while proclaiming his innocence, that he would “never in [his] life” do something like this, as he is “so against it”.

ii. While the author of the presentence report indicated there were “no expressions of victim empathy” from Mr E., in my view that may not be entirely accurate. In particular, I note from the presentence report that, while continuing to deny that he is guilty of the crimes in respect of which he now has been found guilty by the jury, it seems Mr E. personally accepts and believes that S. was indeed victimized sexually in the ways she described, but by someone other than Mr E.. In that regard, I note in particular Mr E.’s statements to the author of the presentence report such as “I didn’t do it”, and “I feel that there is an offender, but it isn’t me”.

g. Finally, I note that, as emphasized by the author of the presentence report and defence counsel during the course of submissions, although Mr E. continues to assert his innocence and does not take responsibility for the matters before the court, he nevertheless did indicate his intention to cooperate with the legal process and to accept and abide by whatever sentence I may impose; an attitude that includes his stated willingness to accept and comply with whatever conditions or ancillary orders I may impose.

Position of the Crown

[18] The Crown submits that, having regard to all the circumstances, an appropriate global custodial sentence for Mr E.’s sexual interference and child luring convictions would be 6½ years, with a suggestion of that global sentence being generated by:

a. a custodial sentence of 5½ years being imposed in relation to Mr E.’s sexual interference offence; and

b. a custodial sentence of one year being imposed in relation to Mr E.’s child luring offence, with that sentence to be served consecutively, (rather than concurrently), with the custodial sentence imposed in relation to his sexual interference offence.

[19] In that regard, Crown counsel emphasized the Crown’s position that the sexual interference sentence on its own now should attract a sentence of five to six years “at the bottom end”, (having regard to the aggravating considerations present in this case), and that the request for a global custodial sentence of 6½ years for Mr E.’s two offences reflected consideration of the “totality” principle. Making the custodial sentences for the sexual interference and child luring offences consecutive rather than concurrent, (notwithstanding that they were committed in relation to the same victim, and chronologically or sequentially close in time), was said to reflect principled consideration that the two offences nevertheless were discrete crimes which address different and distinct societal concerns and wrongs.

[20] Crown counsel also sought ancillary orders that would include the following:

a. pursuant to subsections 487.04(a)(i.1) and 487.04(a)(i.91) of the Code, which expressly include the offences of sexual interference contrary to section 151 and luring a child contrary to s.172.1 within the definition of what constitutes a “primary designated offence” for the purposes of subsection 487.051(1) of the Code, a mandatory order compelling Mr E. to provide the number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis;

b. pursuant to subsections 109(1)(a) and 109(2) of the Code, a mandatory weapons prohibition order for a period of ten years;

c. pursuant to section 743.21 of the Code, a discretionary order prohibiting Mr E. from communicating directly or indirectly, during the custodial period of his sentence, with S. W. and her adoptive mother C. B.;

d. pursuant to subsections 161(1)(a), (b), (c) and (d) of the Code, discretionary orders, for the life of Mr E. or for any shorter duration the court considers desirable pursuant to subsection 161(2) of the Code, prohibiting Mr E., (subject to appropriate qualifying provisions recognizing that Mr E. has children of his own and past employment requiring him to perform landscaping and snow removal services in various locations, and that persons in today’s society reasonably are required to use the internet on a regular basis subject to possible conditions ensuring that is done appropriately, with the court accordingly specifying appropriate exceptions and allowances in that regard), from:

i. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

ii. seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity, that would involve Mr E. being in a position of trust or authority towards persons under the age of 16 years;

iii. having any contact, including communication by any means, with a person who is under the age of 16 years, unless Mr E. does so under the supervision of a person whom the court considers appropriate; or

iv. using the internet or other digital network, unless Mr E. does so in accordance with conditions set by the court; and

e. pursuant to the recently amended provisions of subsections 490.011(1), 490.012(1), 490.013(2)(b) and 490.013(3) of the Code, an order in Form 52 requiring Mr E. to comply with the Sex Offender Information Registration Act, (or “SOIRA”), for life.

[21] In relation to the last ancillary order request, I will clarify that, during the course of sentencing submissions, Crown counsel actually suggested that I consider making a SOIRA order requiring Mr E.’s compliance with such an order for a specified period of more than 20 years; a request which, in my view, compels the court to consider whether such an order should remain in place for the balance of Mr E.’s life, having regard to the wording of the recently amended Code provisions enacted by Parliament relating to SOIRA compliance orders. In particular:

a. Crown counsel specifically suggested that I consider making an order requiring Mr E.’s SOIRA compliance for a period of 30 years, which would make such an order applicable until Mr E. reaches the age of 65. By that time, Crown counsel suggested, it would be more likely that Mr E. would have “aged out” of any child sexual abuse inclinations, although the very hypothesis of such offenders “aging out” of such inclinations was acknowledged by Crown counsel to have its detractors.

b. In my view, however, the newly amended versions of subsections 490.013(2), (3) and (4) of the Code addressing SOIRA compliance orders simply do not grant the court complete flexibility and/or discretion in relation to the duration of such orders; e.g., a flexibility or discretion similar to that granted to the court in relation to the duration of prohibition orders made pursuant to section 161 of the Code. To the contrary, in my view, a careful reading of the recently amended provisions of the Code relating to SOIRA compliance orders makes it clear that the duration possibilities in relation to such orders effectively are limited to 10 years, 20 years or life, depending on the specified underlying determinations now required to be made in that regard; i.e., as to which of those three alternative SOIRA compliance order duration possibilities should apply in the circumstances. An order duration falling between 20 years and life is simply not a possibility, according to the relevant Code provisions.

c. In the circumstances, as the Crown clearly was not content with a SOIRA compliance order with a duration limited to 20 years, but wanted such an order to have a longer duration, I have approached the matter as a request by Crown counsel that the requested order in that regard apply for the duration of Mr E.’s life.

Position of the defence

[22] Defence counsel generally took no issue with the ancillary orders being sought by the Crown, subject to the following:

a. in relation to the prohibition orders being sought by the Crown pursuant to section 161 of the Code, defence counsel asked that appropriate exceptions and limitations be made to permit Mr E.’s continued unfettered interaction with his own two children during the period of their minority, execution of his possible future employment duties, (e.g., insofar as they may relate to landscaping or snow removal duties as they have in the past), and use of the internet subject to reasonable restrictions such as terms prohibiting any unsupervised communication with children other than his own and/or any internet or digital network communications by Mr E. that fail to indicate his full name; and

b. it was said that a SOIRA compliance order with a duration of 20 years was sufficient and appropriate in the particular circumstances of this case.

[23] Defence counsel otherwise focused his sentencing submissions on the duration of the custodial sentence or sentences Mr E. should receive.

[24] In that regard, it was defence counsel’s primary submission that, having regard to all the circumstances, (but particularly the suggested importance of Mr E. remaining available to provide ongoing care and assistance to his significantly disabled mother, who was said to be extraordinarily dependent on the help Mr E. has been providing over the past three years in particular), it would be appropriate to impose a global custodial sentence of two years less a day, to be served in the community pursuant to a conditional sentence order made in accordance with section 742.1 of the Code. Defence counsel refrained from suggesting any particular conditions to be imposed in that regard, (i.e., pursuant to section 742.3 of the Code), apart from indicating that Mr E. was willing to abide by any conditions I might think appropriate in the circumstances.

[25] It was also suggested that such a custodial sentence, for a period of less than two years, could and should be followed by a lengthy period of probation. Defence counsel nevertheless once again refrained from suggesting any particular conditions to be imposed in that regard; i.e., indicating instead that any such imposition of probation should be accompanied by whatever unspecified conditions I might consider appropriate in the circumstances.

[26] In the alternative, defence counsel submitted that, if I felt imposition of a penitentiary sentence was required in the circumstances, a global custodial sentence of no more than two to three years would be appropriate.

Sentencing objectives – Legislative directions and general principles

[27] As emphasized by section 718 of the Code, the fundamental purpose of sentencing is to protect society and to contribute, (along with crime prevention initiatives), to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a. denunciation of unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

b. deterring the offender and others from committing offences;

c. separation of offenders from society, where necessary;

d. assisting in the rehabilitation of offenders;

e. providing reparations for harm done to victims or to the community; and

f. promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and to the community by their conduct.

[28] Pursuant to section 718.1 of the Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

[29] Pursuant section 718.2 of the Code, I note that, amongst other considerations, the court is obliged to take into account:

a. that a sentence should be reduced or increased to account for any mitigating or aggravating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing, factors deemed by Parliament to be aggravating circumstances include, pursuant to s.718.2(iii.1), evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation;

b. that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

c. that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

d. that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

e. 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.

[30] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at a just sentence for Mr E., in relation to the offences that bring him before me now.

[31] However, the legislation provides further guidance as to how these general sentencing objectives should be applied in dealing with offences of this particular nature. In particular:

a. pursuant to subsection 718.2(a)(ii.1) of the Code, evidence that an offender, in committing an offence, abused a person under the age of 18 years is deemed to be an aggravating circumstance;

b. pursuant to subsection 718.2(a)(iii) of the Code, evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, is deemed to be an aggravating circumstance;

c. section 718.01 of the Code provides that, 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; and

d. section 718.04 provides that, when a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, (including but not limited to vulnerability because the person is female), the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

[32] The seriousness with which the crimes of sexual interference and child luring are regarded by our society is reflected in the severity of potential punishment provided by the Code in relation to each offence. In particular:

a. pursuant to s.151(1) of the Code, a person guilty of sexual interference is liable to imprisonment for a term of up to 14 years in length; and

b. pursuant to s.172.1(2)(a) of the Code, a person guilty of child luring is similarly liable to imprisonment for a term up to 14 years in length.

[33] Not surprisingly, (having regard to the legislative provisions and directions from Parliament I have cited), our courts have imposed significant penal sanctions in cases involving the sexual abuse of children, especially if the offender is in a position of authority or commits a breach of trust.

[34] However, the need to adopt an even more stringent approach in that regard was emphasized by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, which provided updated guidance in relation to the sentencing principles to be applied in relation to such matters. Points emphasized in that regard include the following:

a. Recognizing that children are the future of our country and our communities, that they are also some of the most vulnerable members of our society, that they deserve to enjoy a childhood free of sexual violence, and that offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year, courts must impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.

b. The Supreme Court expressly intended to send a “strong message” to sentencing judges that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities, and that sentences imposed in relation to such crimes must increase; i.e., with courts imposing sentences proportional to the gravity of sexual offences against children and the degree of responsibility of such offenders, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences imposed in that regard must reflect the wrongfulness of sexual violence against children, as well as the far-reaching and ongoing harm that it causes to children, families and society at large.

c. Sentencing judges need to properly understand the wrongfulness of sexual offences against children, and the profound harm that they cause. In that regard:

i. Sexual violence against children is wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, gravely wounds their dignity, and jeopardizes their equality interests – particularly insofar as those who sexually abuse children treat children as sexual objects whose vulnerability can be exploited by more powerful adults. In that regard, sexual relationships between adults and children are inherently exploitative by reason of the lack of maturity, judgment and experience of children.

ii. For such reasons, society has come to understand that the focus of the sexual offences scheme created by Parliament, (including the provisions Parliament has enacted in that regard in relation to sexual offences involving children), is not on sexual propriety but on wrongful interference with sexual integrity; e.g., with greater focus on violations of trust, humiliation, objectification, exploitation, shame and loss of self-esteem, rather than simply or only on deprivations of honour, chastity or bodily integrity.

iii. For related reasons, courts sentencing offenders who have victimized others in a sexual way are required to focus their attention not only on physical harm, but on emotional and psychological harm as well; harm that may often be more pervasive and permanent in its effect than any physical harm. Such forms of harm are particularly pronounced for children, in that they can interfere with children’s self-fulfilment and healthy and autonomous development to adulthood at a time when children are still developing and learning the skills and qualities needed to overcome adversity. Sexual violence also causes additional harm to children by damaging their relationships with their families and caregivers, tearing families apart or rendering them dysfunctional, even when a parent or caregiver is not the perpetrator; e.g., because such children lose trust in the ability of other family members to protect them, and/or because other family members reject victims of sexual violence because those family members unfortunately blame such victims for their own victimization. Such harm is compounded when other members of the community take the side of the offender and/or humiliate or ostracize such child victims.

iv. Courts therefore need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle, as both considerations impact the gravity of the offence and the degree of responsibility of the offender. Taking that wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function; i.e., ensuring that offenders are held responsible for their actions and that their sentences properly reflect and condemn their role in their offences and the harm they caused. In that regard:

1. Courts must recognize that sexual offences against children are not only inherently wrongful, but also that violence is always inherent in the act of applying force of a sexual nature to a child, with the sexual dimension aggravating the wrongfulness.

2. In imposing sentences commensurate with the gravity of sexual offences against children, it is not enough for courts to simply state that such offences are serious. The sentences imposed must reflect the normative character of the offender’s actions and the consequential harm to children, their families, their caregivers and communities, with courts taking into account not only the actual harm children suffer as a result of such offences, (e.g., the harm that may have materialized or manifested itself to date), but also the potential longer term harm to such victims, (e.g., frequent difficulty in forming loving and caring relationships, as well as frequent struggles with a wide variety of mental health issues, substance abuse, thoughts of self-harm and poor self-esteem), that often flows from such offences during the remainder of such victims’ childhood and into their adult years. In other words, even if an offender commits a crime that fortunately results in no harm or limited harm discernible to date, courts imposing sentence in relation to such sexual offences against children must consider the well-established potential for reasonably foreseeable additional harm; i.e., forms of potential harm that have yet to manifest themselves at the time of sentencing, but which are a reasonably foreseeable consequence of such offences and may in fact materialize later in the victim’s life. To do otherwise falsely implies that a child simply outgrows the harm of sexual violence.

3. Direct evidence of harm from children and/or their caregivers is not required for the court to find that children have suffered actual harm as a result of sexual violence and violations of their sexual integrity. In other words, courts recognize that such harm inherently flows from the commission of such offences.

v. Judges imposing sentences in relation to sexual offences against children also must take into account the wrongfulness and harmfulness of sexual violence against children when determining the offender’s degree of responsibility. In particular:

1. Courts must not discount the degree of responsibility of such offenders by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children.

2. Courts must recognize that intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender was aware, or ought to have been aware, that such actions can profoundly harm a child.

3. Courts must recognize that all forms of sexual violence are morally blameworthy because they involve the wrongful exploitation of the victim by the offender, (i.e., with the offender treating the victim as an object and disregarding the victim’s dignity), and that such exploitation and objectification are even more morally blameworthy in relation to sexual offences committed against children because children are so inherently vulnerable; something recognized and exploited by such offenders to achieve their selfish desires. Moreover, such moral blameworthiness increases when offenders target children who are particularly vulnerable; e.g., in situations where such children belong to groups that already face discrimination or marginalization in our society.

d. When imposing sentences for sexual offences committed in relation to children, sentencing judges need to give effect to Parliament’s clear and repeated signals, (e.g., through repeated increases in the maximum permissible custodial sentences for such offences, and clear direction that courts must give primary consideration to the objectives of denunciation and deterrence in relation to such misconduct), that the sentences imposed in relation to such offences should increase. In that regard:

i. Upward departure from prior precedents and sentencing ranges in relation to sexual offences committed in relation to children may well be required in order to impose a proportionate sentence; e.g., recognizing that sentencing ranges are not “straightjackets” but “historical portraits”, that Parliament has been signalling the need for longer custodial sentences in relation to such offences, and that there has been a deepening understanding of society and the courts of the severity of harm arising from such offences. In particular:

1. Courts should be cautious about relying on precedents that may be “dated” and fail to reflect society’s current awareness of the impact of sexual abuse on children. Even more recent precedents may be treated with caution if they simply follow more dated precedents that inadequately recognize the gravity of sexual violence against children.

2. Sentencing ranges based on precedents that appear to restrict the discretion of sentencing judges, (e.g., by imposing a cap of three to five years on sentences that can only be exceeded in exceptional circumstances), are inappropriate. Sentencing judges must have the ability to impose substantial sentences for sexual offences against children when the gravity of the offence and the degree of responsibility of the offender so demand. There is no requirement for there to be rare or special circumstances in order to impose a substantial sentence where that substantial sentence is proportionate.

3. Mid-single digit penitentiary terms for sexual offences against children are normal, and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. Moreover, substantial sentences can be imposed in such cases where there was only a single instance of sexual violence and/or a single victim.

ii. Sexual offences against children merit more severe punishment than sexual offences against adults. In particular, while sexual violence against either a child or an adult is serious, Parliament has determined that sexual violence against children should be punished more severely, and has signalled that determination in numerous ways, including:

1. its prioritization of deterrence and denunciation for offences that involve the abuse of children;

2. its identification of abuse of persons under the age of 18 as a statutory aggravating factor;

3. its identification of the abuse of a position of trust or authority, (something more common in sexual offences against children than in sexual offences against adults), as a statutory aggravating factor; and

4. its use of maximum sentences to indicate that sexual violence against persons under the age of 16 should be punished more severely than sexual violence against adults.

iii. Sexual interference and sexual assault of children must be treated equally, when it comes to sentencing in relation to such offences. In particular, it is an error of law to treat sexual interference as less serious than sexual assault of a child, bearing in mind that Parliament has established the same maximum sentences for sexual interference and sexual assault of a person under the age of 16, that the elements of each offence are similar, and that a conviction for sexual interference and sexual assault of a child frequently can be supported by the same factual foundation.

e. For present purposes, I note that the Supreme Court of Canada also commented more specifically on sexual offences committed in relation to children in circumstances involving abuse of a position of trust or authority; i.e., as one of numerous significant factors to be considered in determining a fit sentence. In that regard:

i. It was emphasized that such relationships arise in varied circumstances and should not all be treated alike. It instead makes sense to refer to a “spectrum” of such relationships, while also recognizing that an offender may simultaneously occupy multiple positions on that spectrum, and that such relationships can progress along the spectrum over time.

ii. Any abuse of such a position is likely to increase the harm to the victim and therefore the gravity of the offence, with the proper focus in that regard being on the extent to which the relationship was violated; i.e., bearing in mind that, in the case of breach of trust, a child likely will suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender.

iii. However, abuse of positions of authority and trust in the commission of sexual offences against children is also aggravating because it increases the offender’s degree of responsibility. An offender standing in such a position owes a duty to protect and care for the child that is not owed by a stranger. It also exploits children’s particular vulnerability to abuse by those holding such positions vis-à-vis children. An abuse of such a position thereby enhances moral blameworthiness.

iv. All other things being equal, an offender who abuses a position of trust or authority to commit a sexual offence against a child therefore should receive a lengthier sentence than an offender who is a stranger to the child; e.g., having regard to the increased gravity and degree of offender responsibility of such offences committed in such circumstances.

f. For present purposes, I also note the Supreme Court of Canada’s comments concerning the degree of physical interference involved in particular sexual offences committed against children as another one of the significant factors to be considered in determining a fit sentence. Matters emphasized by the Supreme Court of Canada in that regard included, but were not limited to, the following:

i. The degree of physical interference with a victim is a recognized aggravating factor, reflecting the degree of violation of the victim’s bodily integrity. It also reflects the sexual nature of the touching, its violation of the victim’s sexual integrity, and how specific types of physical acts may increase the risk of harm; e.g., insofar as penile penetration can create a risk of disease and pregnancy, (especially when unprotected), and penetration of any kind also may cause physical pain and injuries, bearing in mind that children’s bodies are especially vulnerable to physical injury from penetrative sexual violence.

ii. Courts were cautioned nevertheless about the dangers of defining sentencing ranges based on penetration or the specific type of sexual activity at issue, bearing in mind that doing so risks resurrection of distinctions Parliament has abolished, (e.g., based on whether penile penetration was involved), that it is wrong to assume any clear correlation between the type of physical act and harm to the victim, (particularly insofar as some courts mistakenly have assumed that less invasive forms of sexual touching may be less harmful or even relatively benign), and that it is an error of law to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts.

g. Finally, I note the Supreme Court of Canada’s comments in R. v. Friesen, supra, recognizing the additional potential harm inflicted upon a child victim of sexual abuse when that abuse takes place in the home of a parent; a location where the child should feel safe and secure. In particular, sexual violence against children that takes place in such a home may be particularly damaging because it damages the child’s sense of security in a home environment.

[35] Before leaving a discussion of the general principles and approach to sentencing in this area mandated by Parliament and our appellate courts, and returning to more specific consideration of the case at hand, I think it appropriate to note that I also am mindful of our Court of Appeal’s relatively recent decision in R. v. A.J.K., 2022 ONCA 487. In that regard:

a. As noted above, the Supreme Court of Canada now has emphasized in no uncertain terms that sexual offences against children merit more severe punishment than sexual offences against adults, and that sexual interference and sexual assault of children must be treated equally.

b. In R. v. A.J.K., supra, our Court of Appeal, (noting and echoing the Supreme Court of Canada’s observations that previously indicated “ranges” and “starting points” for sentencing are not “straitjackets” but “historical portraits” and/or otherwise malleable products of their time, and that departures from previous decisions in that regard are justified to reflect deepening societal understanding of offences and the severity of harm arising from those offences), chose to revisit a general sentencing range, suggested by our Court of Appeal’s earlier decision in R. v. Smith, 2011 ONCA 564, of 21 months to four years in cases of sexual assault involving forced intercourse with a spouse or former spouse. For further detailed reasons set forth by the Court of Appeal, (which I will not attempt to outline in detail here), it chose:

i. to leave that particular “sentencing artefact” behind;

ii. to eliminate perceptions that a victim’s prior relationship with an offender justified a sentencing range below that applicable in cases of non-intimate partner sexual violence;

iii. to indicate that, “absent some highly mitigating factor”, the “forced penetration” of another person, (i.e., whether vaginal, oral or anal), “will typically attract a sentence of at least three years in the penitentiary”; and

iv. to note that the general three-to-five year range of sentencing in relation to such offences suggested by the Court of Appeal’s earlier decision in R. v. Bradley, 2008 ONCA 179, was “just a range”, (i.e., “a quantitative sentencing tool designed to assist busy trial judges with where to start”), in respect of which there will be circumstances where departure from that range, (either above or below the range), is “entirely appropriate”.

c. In my view, the combined effect of the Supreme Court of Canada’s indications in R. v. Friesen, supra, and our Court of Appeal’s indications in R. v. A.J.K., supra, is that, absent some highly mitigating factor, sexual abuse of a child via misconduct that includes “forced penetration” of the child victim typically will attract a sentence that is more lengthy than the penitentiary sentence of at least three years imposed on those who commit such offences in relation to adult victims, and that the starting range of sentencing in relation to such offences against children must be higher, a fortiori, than the general three-to-five years applied to those who commit such offences in relation to adult victims. How much longer or higher remains to be seen. In any event, it seems absolutely clear that, barring some form of highly exceptional and unusual circumstances, the sentences typically imposed on those who commit such offences in relation to children should not be lower than the sentences imposed on those who commit such offences in relation to adults.

[36] Bearing in mind the general sentencing objectives and guidelines outlined above, I turn next to a consideration of possible aggravating and mitigating factors.

Aggravating factors

[37] Mr E.’s assertion of innocence certainly is not an aggravating circumstance, although it may undermine a basis for inferring that he has insight into his behavior, and the absence of such insight may be relevant to the need for specific deterrence and/or Mr E.’s prospects for rehabilitation. See R. v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434 (C.A.), at paragraph 57.

[38] This case nevertheless does present numerous aggravating considerations, which in my view include the following:

a. In committing the two offences that bring him before me now, Mr E. abused a person under the age of eighteen years. As noted above, this is deemed to be an aggravating factor pursuant to s.718.2(a)(ii.1) of the Code.

b. Another aggravating factor, in my view, is the degree of physical interference involved in Mr E.’s sexual abuse of S.. In that regard:

i. As noted above, our courts now have been cautioned by the Supreme Court of Canada against effectively defining sentencing ranges based on penetration and/or other specific types of sexual activity per se. However, as also emphasized by the Supreme Court of Canada, the degree of physical interference with a victim continues to be a recognized aggravating factor in sentencing, insofar as it reflects the sexual nature of the relevant touching, the extent to which the sexual integrity of the victim was violated, and the increased risk of harm flowing from specific types of physical acts, which may very well compound the wrongfulness and moral blameworthiness of what the offender has done.

ii. In this particular case, Mr E.’s relevant physical interference with S. included not only forced oral penetration, (through his directing S. to perform oral sex upon him), but the forced vaginal penetration of a young girl who was only 10 or 11 years old at the time. As emphasized in R. v. Friesen, supra, the severe violation of S.’s sexual integrity inherent in such penile penetration not only carries risks of disease and pregnancy, (especially but not only when there is no use of protection such as a condom), but the risk of physical pain and injury when one bears in mind the reality that the still developing body of such a young child is especially vulnerable to physical injury from such penetrative sexual violence.

c. In my view, Mr E. also abused a position of trust and/or authority in relation to S. when committing his offences; something which, as noted above, also is deemed to be an aggravating factor, pursuant to s.718.2(iii) of the Code. In that regard:

i. The testimony of both S. and Mr E. at trial included indications that Mr E. effectively made it clear, during the course of his relationship with S.’s mother C., that he was intent on being a partner to C. without taking on any additional parental role vis-à-vis S. or C.’s other children. In particular:

1. S. acknowledged that, before the activity underlying Mr E.’s two offences, Mr E. never paid much attention to her or her siblings, that Mr E. had made it very clear that he was “just” her mother’s boyfriend and had no intention of acting as a stepfather towards S. or her siblings, and that she herself felt that she had no “real” or “direct” relationship with Mr E..

2. While acknowledging that he had met C.’s children, including S., Mr E. denied having developed any special relationship with any of C.’s children, emphasizing that he actually did not spend much time with them at all, and certainly never acted or treated any of C.’s children as if he was their stepfather. In particular, Mr E. stressed that he had made it clear to C. that he was dating her but was not there to play the role of father to her children, as he already had children of his own. He acknowledged having stayed overnight repeatedly in Unit 3 of the relevant apartment building, (i.e., the unit initially occupied by C. and her children), but denied having anything but brief and perfunctory interactions with C.’s children during such visits; e.g., simply to say “hello” in passing, as he went to and from C.’s bedroom or the bathroom of the residence, which were the two rooms of the residence where he spent the majority of his time while visiting there. He acknowledged that C.’s children, (including S.), visited the unit where he and C. maintained their primary residence together, (i.e., Unit 1 of the relevant small apartment building), but claimed that was always done under adult supervision, and that such visits did not happen “all the time” or even frequently, in the case of S..

ii. In my view, the fact that Mr E. did not assume a role of “stepfather” or parent to S. does not detract from the reality that, in committing his offences vis-à-vis S., Mr E. was abusing a position of trust or authority he had developed in relation to S.. Without limiting the generality of the foregoing:

1. The underlying offences committed by Mr E. do not involve a situation where the offender was a stranger to the child victim; e.g., a person who, in committing such offences, stumbled by accident upon a means of electronically communicating directly with a child in a context where such electronic communications were unlikely to come to the attention of others, (and other adults in particular), or a person who relied upon circumstantial opportunities to engage in sexual activity with his child victim in a private setting via an opportunity that arose through happenstance.

2. To the contrary, Mr E. acquired the means of communicating electronically with S., (i.e., the fundamental modality for his child luring offence), because Mr E. was her mother’s boyfriend and living with her mother in the same residential unit, and both C. and S. and her mother obviously trusted Mr E. on that basis to act as a medium of communication between S. and her mother if and as necessary, (i.e., as a means of relaying messages between S. and her mother, to address and overcome at least some of the challenges created by C. leaving S. and the other children alone in Unit 3 of the relevant apartment building for extended periods of time), with S. and her mother effectively entrusting Mr E. with an ability to communicate electronically and directly with S., (then just 10 or 11 years old), for that purpose. That was a significant ability, provided to Mr E. in his capacity as C.’s cohabiting intimate partner, that a stranger to S. normally would not have.

3. Similarly, in my view there is no question that Mr E. abused his position as the trusted cohabiting intimate partner of S.’s mother to bring about the opportunity to sexual violate S. in a private setting; a setting in which S. also would comply with his instructions, having regard to his position of authority within that particular setting. Without limiting the generality of the foregoing:

a. Mr E., as the intimate partner of S.’s mother, and then the cohabiting intimate partner of S.’s mother, also assumed a position whereby it effectively was made clear to S. that her mother regarded Mr E. as an individual sufficiently trustworthy to be welcomed repeatedly into the Unit 3 residence as an overnight visitor, and thereafter share her mother’s primary residence and home in Unit 1 of the same small apartment building. S. also understandably came to view Mr E. as a trustworthy adult vis-à-vis children, insofar as she repeatedly was exposed, (because of Mr E.’s status as C.’s boyfriend and cohabiting partner), to situations in which Mr E. was visibly interacting with his own children in a completely benign and positive manner during their visits with Mr E., during which S. was not only welcomed into the residence her mother shared with Mr E. but also encouraged to play with his children. In such circumstances, it was hardly surprising that S. would have anticipated no apprehension of danger when Mr E. sent her a message inviting her to come to Unit 1 and play with his supposedly visiting children, and/or when S. initially entered that unit on the occasion in question mistakenly believing, (based on Mr E.’s misrepresentation), that his children were somewhere inside.

b. It also had been made clear to S. that Mr E. was not only an adult, (in comparison to her status as a child), but that Mr E. also stood in a position of authority in terms of what was and was not to happen in the residence he shared with S.’s mother; i.e., in terms of who was permitted to enter and remain in that residence, and what they did there. As S. emphasized during the course of her testimony, she complied with Mr E.’s instructions, when they were together in that Unit 1 residence on the occasion of the offensive sexual activity, precisely because he was the adult and she was the child; i.e., she obeyed Mr E.’s instructions because, at the time and within that residence, he stood in a position of authority vis-à-vis S..

c. As emphasized by authorities such as R. v. R.G., 2019 ONCA 135, at paragraphs 4 and 5, and R. v. Colson, [2001] N.S.J. No. 525 (N.S.S.C.), at paragraph 4, an adult who invites and/or welcomes a child into his or her residence for the purpose of looking after and/or playing with his or her children assumes a position of trust and/or authority in relation to that child visitor to his or her home; i.e., insofar as that adult becomes a person in charge, a person in control, and/or a “caretaker” vis-à-vis that child.

d. On a related note, in my view the location of Mr E.’s sexual violation of S. also was an aggravating circumstance. In particular, while that sexual violation did not occur within the four walls of S.’s primary residence, (i.e., Unit 3 of the relevant small apartment building), it occurred literally under the “same roof” as S.’s home located within the same small apartment building, and within what was then the primary home of S.’s mother. As emphasized by the Supreme Court of Canada in R. v. Friesen, supra, a child like S. should feel safe and secure in the home of his or her parent, and when sexual abuse of a child takes place in such a home, it may be particularly damaging because it seriously undermines the child’s sense of security in a home environment. In this case, a place where S. should have been entitled to a sense of security was not only transformed into the scene of her sexual violation, but also effectively served as a constant reminder of what had happened to her there; i.e., a reminder S. was forced to endure every time she thereafter visited her mother in Unit 1, or was obliged to look upon Unit 1 when travelling to and from her nearby primary residence in Unit 3 of the same small apartment building.

e. Another aggravating consideration, in this case, is the very serious matter of the consequences inflicted on S. by Mr E.’s sexual misconduct. In that regard:

i. As noted above, a sentencing judge must take into consideration, as a circumstance deemed to be an aggravating factor pursuant to s.718.2(a)(iii.1) of the Code, evidence that an offence has had a significant impact on a victim having regard to his or her age and other personal circumstances, including the victim’s health and financial situation.

ii. In that regard, (and as noted above), I did not hear from S. directly in relation to such matters, (e.g., via any form of Victim Impact Statement prepared by S., and presented by S. or someone on her behalf), owing to what was described as S. “going through a rough patch” at the time she was asked whether she wished to present me with such information. However, as emphasized by the Supreme Court of Canada in R. v. Friesen, supra, direct evidence from a victim of child sex abuse is not required for the court to find that such a victim has suffered actual harm as a result of such sexual violence and violations of her sexual integrity. Even without such direct evidence, courts recognize the serious harm and potential further harm inherently flowing from the commission of such offences, and I have no doubt that S. has suffered and will suffer such harm in this case.

iii. In this case, (as also noted above), specific evidence of the harm suffered by S. as a result of Mr E.’s offensive conduct nevertheless was presented through the Victim Impact Statement prepared by S.’s adoptive mother Ms B.; i.e., the statement which was read aloud in court by Crown counsel on Ms B.’s behalf. In that regard:

1. In my view, Ms B.’s statement was remarkably charitable to Mr E. in a number of ways. In particular, Ms B. openly recognized and acknowledged that Mr E. was not the only one to have neglected and victimized S. during the course of her childhood, and therefore not the only one to have contributed to the pain, suffering and life challenges S. has experienced as a result of such neglect and victimization. In the words of Ms B.: “there [were] a lot of crimes that took place in S.’s life that led up to the crime[s] that [Mr E.] committed”. Ms B. also indicated, during the course of her statement, that she wishes “no harm” to come to Mr E. as he serves whatever sentence the court may impose, and instead simply hopes that he “works on himself” during the course of serving that sentence; i.e., that he can “find the strength” to engage in self-reflection, be honest about who he is and what he did, come to understand how he became a man who could think it was “okay” to do what he did to S., and start a process of healing in that regard that will lead to what Ms B. regards as an undoubted possibility of forgiveness.

2. At the same time, however, the statement prepared by Ms B. and delivered on her behalf also makes clear that Mr E.’s misconduct has had a devastating impact on S., particularly from an emotional and psychological perspective. In particular, Ms B. emphasized that Mr E.’s offensive conduct reinforced and perversely “validated”, in S.’s mind, the feelings already instilled by prior neglect and victimization; i.e., that she was unloved and “worthless”, and effectively belonged to anyone inclined to use her for their own selfish purposes.

3. The statement prepared by Ms B. and delivered on her behalf also makes clear that the horrendous emotional and psychological damage inflicted on S. in that regard has been profound and continues, despite the concerted and sustained efforts made by S. and her supporters, (e.g., through “hundreds of hours of therapy, journaling, reading and self-reflection”, over the past five years), to address and hopefully alleviate some of that harm.

iv. While that damage inflicted upon and still being experienced by S. cannot and should not be understated, I also note that S. was not the only victim of harm brought about by Mr E.’s misconduct. As noted and emphasized by the Supreme Court of Canada in R. v. Friesen, supra, the consequential harm from sexual violence committed in relation to children, which courts must recognize and take into account, includes that suffered by their families and caregivers. In my view, that includes, in this case, the impact effectively inflicted upon S.’s adoptive mother Ms B.; someone whose emotional pain and suffering, (while Ms B. commendably devotes substantial empathy, care and support to S., as her adopted daughter works through the consequences of the sexual abuse perpetrated by Mr E.), was obvious and palpable even though Ms B. apparently felt unable to present or read her statement to me personally.

Mitigating factors

[39] As for mitigating considerations, I start by noting the absence of various mitigating considerations frequently seen and relied upon in relation to such offences. Without limiting the generality of the foregoing:

a. Insofar as Mr E. was approximately 28 at the time of the offending conduct that brings him before me now, and is 36 at the time of sentencing, I do not think he can or should be regarded as a youthful offender.

b. Having regard to the personal circumstances of Mr E. outlined above, I am not persuaded that Mr E. experienced any serious impactful challenges in his upbringing or later life deserving of any significant mitigation consideration.

c. There are no guilty pleas for which I can give Mr E. any credit. Nor have there been any other indications that Mr E. accepts responsibility for his conduct, or feels any remorse for his actions. In that regard, I will emphasize again that Mr E.’s ongoing assertion of his innocence is most certainly not an aggravating consideration. For present purposes, I am simply emphasizing that the absence of guilty pleas, acceptance of responsibility for misconduct and/or indications of remorse for his misconduct eliminates the possibility of any mitigating considerations in that regard.

d. Although Mr E. advised the author of the presentence report that he intends to “cooperate with the legal process” and whatever sentence I may impose, (including compliance with any conditions I might impose in that regard, which obviously might include the imposition of terms or conditions regarding participation in counselling if I were to accept defence counsel’s submissions regarding imposition of a conditional sentence and/or a custodial sentence allowing for imposition of a period of probation thereafter on specified terms and conditions), there was no indication whatsoever that Mr E. has taken, to date, any voluntary steps whatsoever towards his rehabilitation. Again, I think the most that can be said in that regard is that Mr E. repeatedly has professed, (e.g., to his responding sister and the author of the presentence report), that he is keenly aware of how wrong it is to sexually abuse a child.

[40] Having said all that, in my view there are a number of mitigating considerations to be taken into account. In particular:

a. As noted earlier, despite the fact that Mr E. formally has a criminal record, Crown counsel and defence counsel agreed that sentencing of Mr E. in relation to the matters that bring him before me now should be approached on the basis of Mr E. essentially being a first-time offender. I independently agree with that approach. Mr E.’s criminal record is not only limited, dated and unrelated to the offences now before the court, but also makes clear that Mr E. has never experienced any degree of substantial incarceration in the past. Our courts have emphasized that the principle of restraint, reflected in subsections 718.2(d) and (e) of the Code, takes on added importance in relation to such first-time offenders, in respect of whom an extended custodial sentence almost invariably will have a more profound impact.

b. Apart from the isolated conviction noted in his limited, dated and unrelated criminal record, Mr E. has demonstrated the capacity to lead a generally pro-social life over the course of many years; e.g., in terms of remaining gainfully employed, demonstrating the capacity to maintain extended intimate partner relationships for many years at a time, apparently acting as a loving and supportive father to his own children throughout their lives, (despite the practical limitations created by his separation from the children’s mother and the resulting residential and visitation arrangements made in that regard), and his provision of substantial assistance and care to his mother and stepfather, with the ongoing care being provided by Mr E. to his mother being something on which she greatly relies. All of that bodes well for Mr E.’s potential rehabilitation.

c. Mr E. also seems to enjoy not only the ongoing support of his mother, (who depends so substantially on his continued presence and availability), but also that of his responding sister, his current live-in female partner of many years, and a large extended family which is said to be important to him and vice versa. An extended support network of that nature also usually bodes well for an offender’s potential rehabilitation. Having said all that, I think it must be recognized that there inherently is a significant degree of self-interest in his mother’s ongoing support. I also think it noteworthy that there are indications of lack of stability in Mr E.’s relationship with his partner, (who seems to have made no effort to engage with the author of the presentence report or otherwise actively indicate her support for Mr E.), and that no members of Mr E.’s extended family apart from his mother and one responding sister seem to have made any effort to express their support for him directly.

[41] To the extent the mitigating considerations I have mentioned are relevant to the principle of restraint and to Mr E.’s potential rehabilitation, I will expressly note that I am mindful that assisting and promoting such potential rehabilitation of an offender is always a relevant consideration in sentencing, and I certainly do not lose sight of that throughout this process.

[42] However, I also am mindful that, in this context, such considerations take a figurative “back seat” to consideration of necessary denunciation and deterrence. In that regard:

a. I once again note the provisions of s.718.01 of the Code, which requires a court imposing a sentence for any offence involving the abuse of a person under the age of eighteen years to give “primary consideration to the objectives of denunciation and deterrence of such conduct”.

b. I also once again note the provisions of s.718.04 of the Code, which requires a court imposing a sentence for an offence that involved the abuse of a person vulnerable because of personal circumstances to give “primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence”. In my view, S. was clearly such a person at the time of Mr E.’s offensive conduct. Through poverty and neglect, S. was a young child at the margins of our society; a child who, at the tender age of 10 or 11, not only inherently lacked the ability to stand up for herself but also apparently had no one actively protecting her and looking out for her interests. Of necessity, from her perspective, she lived a life where her time outside of school essentially was devoted, through no choice of her own, to serving as the primary caregiver to at least four of her younger siblings; i.e., as the five children essentially were left on their own in a residence separate from that of their mother, and without any father or other adult exercising active and ongoing parental responsibility in that regard. In short, at the time of Mr E.’s offensive conduct, S. was a child effectively deprived of a childhood, including the attention, care and protection she no doubt craved and certainly deserved. In my view, S. accordingly was among the most vulnerable members of our society when her autonomy, bodily integrity, sexual integrity and dignity were violated by Mr E. through his criminal conduct.

Further analysis

[43] With all of the above in mind, I now turn to determination and imposition of an appropriate sentence for the offences of Mr E. which are now before the court.

[44] In that regard, I begin by noting my view that any custodial sentences imposed on Mr E., in relation to his sexual interference and child-luring offences, should be served consecutively rather than currently. Without limiting the generality of the foregoing:

a. I am mindful of subsection 718.3(4)(b) of the Code, which generally provides that a court sentencing an accused shall consider directing that the terms of imprisonment that it imposes at the same time for more than one offence be served consecutively, and subsection 718.3(4)(b)(i) of the Code, which provides that the circumstances in which subsection 718.3(4)(b) applies include, (but are not limited to), situations where the multiple offences in respect of which a court is simultaneously imposing sentence do not arise out of the same event or series of events.

b. I also am mindful of substantial appellate authority indicating a “general” rule or “basic” approach that sentences for offences that are separate and distinct, (e.g., because they occur on separate occasions), generally will be served consecutively, while sentences for offences that are sufficiently connected or related because they arise out of the “same transaction”, “a single transaction”, “a single criminal adventure” and/or “a single enterprise”, (usually determined by whether the acts constituting the offence were part of a linked series of acts within a single endeavour, having regard to such matters as the nature and timing of the offences), generally will be served concurrently. It nevertheless is difficult to exemplify circumstances where consecutive or concurrent sentences should be imposed, as the sentence imposed in any case always depends on the particular circumstances involved, which inevitably will embody a wide range of pertinent but varied factors. Indeed, it has been thought “impractical and undesirable” to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served consecutively or concurrently. Ultimately, the “tests” in that regard are very flexible, and turn on fact-specific inquiries. See, in that regard: R. v. Charchuk (1973), 1973 CanLII 2351 (NS CA), 6 N.S.R. (2d) 519 (C.A.); R. v. Desmarest, [1986] Q.J. No. 1611 (C.A.); R. v. Crocker, 1991 CanLII 2737 (NL CA), [1991] N.J. No. 303 (C.A.); R. v. W.(G.P.), [1998] B.C.J. No. 838 (C.A.); R. v. Lynch, [1999] O.J. No. 241 (C.A.); R. v. Mascarenhas, 2002 CanLII 41625 (ON CA), [2002] O.J. No. 2989 (C.A.); R. v. Beyse, 2006 NBCA 55; R. v. Dube, 2006 QCCA 699; R. v. Newhook, 2008 NLCA 28, [2008] N.J. No. 258 (C.A.); R. v. Wozny, 2010 MBCA 115, [2010] M.J. No. 384 (C.A.); and R. v. Leroux, 2015 SKCA 48. See also Clayton C. Ruby et al., Sentencing, 7^th ed. (Markham: Lexis Canada Inc., 2008).

c. Moreover, additional appellate authorities, (including numerous decisions of our own Court of Appeal), emphasize that the approach described above is only a “general” rule, and that sentences may be imposed consecutively, (even in circumstances where the underlying offences may be connected, related and/or otherwise arguably arise from the same transaction or incident), where the relevant offences protect different societal interests. In particular, the rule or principle of sentencing generally requiring that sentences for offences arising out of the same transaction or incident should normally be concurrent does not necessarily apply when the offences constitute invasions of different legally protected interests. Subject to the principle of totality, consecutive sentences may very well still be warranted in such situations. See, for example: R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 181, at paragraph 13; R. v. Clarke, [1994] N.S.J. No. 474 (C.A.), at paragraph 4; R. v. Van Puyenbroek, 2007 ONCA 824, at paragraph 63; R. v. Gillis, 2009 ONCA 312, at paragraph 9; and R. v. Clouthier, 2016 ONCA 197, at paragraph 55.

d. In this particular case, it might be argued that Mr E.’s offences of child-luring and sexual interference were part of the same criminal transaction, enterprise or endeavour; e.g., insofar as the two offences may have occurred relatively close in time to each other, clearly targeted the same child victim, and involved telecommunications sent by Mr E. to S. which apparently were intended to “groom” S. for Mr E.’s contemplated sexual interference activity, and secure her attendance in Unit 1 of the relevant apartment building while Mr E. could be alone with her there, in a private setting, to commit that sexual interference. In that regard, I also am mindful that the very wording of the relevant child-luring offence created by s.172.1(b) expressly links that offence with the offence of sexual interference addressed by section 151 of the Code; i.e., insofar as it specifies that a person commits the offence of child-luring when he or she, “by a means of telecommunication, communicates with … a person who is … under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 … with respect to that person”.

e. However, I also am mindful that not all of Mr E.’s child-luring misconduct was reasonably contemporaneous with his acts of sexual interference. In particular, while the telecommunication Mr E. used to lure S. to his residential unit for the commission of that sexual interference was sent shortly before that sexual interference took place, (with Mr E. sending S. a message via Facebook falsely indicating to S. that his children were with him in Unit 1, and suggesting to S. that she come over to Unit 1 from Unit 3 to “hang out” with his children), S. indicated that Mr E.’s other telecommunications grooming her for contemplated sexual interference activity, through the exchange of intimate photographs, occurred over the course of several days; days which were separated from the subsequent sexual interference by some unspecified period of time, the precise length of which S. could not remember, (apart from saying it was “less than months”), but which nevertheless was notably and significantly earlier in time than the sexual interference that followed.

f. More importantly, however, in my view the offences of sexual interference and child luring protect different societal interests, and Mr E.’s offences in that regard constitute invasions of different legally protected interests. Without limiting the generality of the foregoing:

i. As emphasized by the Supreme Court of Canada in R. v. Friesen, supra, the sexual violence against children inherent in the crime of sexual interference contrary to section 171 of the Code is wrongful because it constitutes a very direct invasion of their personal autonomy, violates their bodily and sexual integrity, gravely wounds their dignity, and jeopardizes their equality interests. Society clearly has a distinct interest in addressing such violations.

ii. As emphasized by the Supreme Court of Canada in R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, the offence of child luring created by Parliament, via section 172.1 of the Code, is focused on a separate and distinct societal interest; i.e., the need to prevent use of the internet for the exploitation of children. In particular, section 172.1 of the Code was enacted by Parliament to “shut the door” on predatory adults who, for a sexual purpose, use internet communications to target vulnerable children and adolescents, gain their trust, and then tempt or entice them into sexual activity over the internet or in person.

iii. Although the offence of child luring may have the purpose of facilitating the commission of sexual interference, the separate and distinct nature of the two offences, (reflecting the separate and distinct societal interests they address and protect), is underscored by appellate authority emphasizing that child luring is an “inchoate” offence separate and apart from the sexual offence it may precede. In particular, it does not require that contemplated later sexual offence to have occurred. Indeed, an accused does not need to have actually gone to meet the victim in person. Nor is it necessary for the accused to be “objectively capable” of committing the secondary offence. The offence of child luring may “crystallize” and become complete even before any actions are taken on the part of the accused to execute the relevant secondary offence, such as sexual interference. See, for example: R. v. Chiang, 2012 BCCA 85, at paragraph 18; R. v. Collins, 2013 ONCA 392, at paragraph 2; R. v. Legare, supra, at paragraphs 25 and 42; and R. v. McSween, 2020 ONCA 343, at paragraph 101, leave to appeal to the Supreme Court of Canada refused, 2020 CarswellOnt 18370.

iv. The separate and distinct societal interests and invasions the two offences committed by Mr E. were designed to address and protect are clearly demonstrated in this case. In particular, before Mr E. violated S.’s bodily integrity and sexual integrity through his extremely invasive physical actions, (i.e., forcing this young girl to engage in vaginal intercourse and perform oral sex), he violated her safety and trust by using the internet to effectively reach into the sanctity of her home to engage her in highly inappropriate, wrongful and morally blameworthy telecommunications of a highly sexualized nature, through the exchange of extremely intimate images.

v. In my view, ordering the custodial sentences imposed on Mr E. for each of his two offences to run concurrently, rather than consecutively, effectively would ignore and fail to address the separate, distinct and different societal interests the two offences were designed to protect. I therefore think the custodial sentences imposed in relation to those two offences accordingly should be served consecutively, rather than concurrently.

[45] In reaching that conclusion, I nevertheless remain mindful that the simultaneous imposition of consecutive sentences requires consideration of the totality principle reflected in s.718.2(c) of the Code; i.e., a provision indicating that, “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”.

[46] In that regard, as noted by the Supreme Court of Canada in R. v. Friesen, supra, at paragraphs 37 and 157, and by our Court of Appeal in R. v. Owusu-Sarpong, 2023 ONCA 336, at paragraphs 23-30:

a. Two methods have been used by courts across Canada to apply the totality principle when imposing consecutive sentences, whereby:

i. some courts consider individual sentences for each offence first, and then check to ensure that the total sentence resulting from the imposition of sentences to be served consecutively does not exceed the offender’s overall culpability; and

ii. other courts begin with an articulation of the overall fit sentence, and then impose individual sentences which add up to the overall total or global sentence the court considers appropriate to reflect the gravamen of the offender’s overall criminal conduct.

b. While the latter method is the one primarily used or “established” here in Ontario, neither method constitutes an error in principle.

c. If done properly, both methods can be appropriate ways to ensure that the total sentence is not overly long and harsh, and not disproportionate to the gravity of the offences and conduct of the offender.

[47] In this case, I intend to employ the first method, if only because it facilitates a more direct comparison with certain other cases to be considered in relation to parity of sentencing.

Suggested comparable cases

[48] In that regard, I have considered, in addition to the matters outlined above, the authorities provided to me by counsel; i.e., bearing in mind the sentencing objective, noted above, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[49] The reality, however, is that no two cases are exactly alike. As emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[50] Crown counsel nevertheless referred me, for purposes of comparison, to the following sexual interference sentencing precedents, all decided after the Supreme Court of Canada’s decision in R. v. Friesen, supra, indicating the need for increased severity of sentencing in relation to such matters:

a. In R. v. R., [2020] O.J. No. 5263 (S.C.J.), the 50-year-old offender was convicted, after a judge-alone trial, of having committed sexual assault and sexual interference in relation to his intimate partner’s 9-year-old daughter. The sexual assault charge was then conditionally stayed through application of the rule against multiple convictions in relation to the same misconduct; i.e., the principle emphasized in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. As for the offender’s remaining sexual interference offence:

i. The presiding judge found that the offender was a caregiver in a position of trust in relation to his victim, but nevertheless had abused her on three separate occasions:

1. On the first, the victim had been playing in the offender’s lap when he used his legs to open hers until it was hurting her, following which he moved his hands past her underwear to her vagina, rubbed her vagina while laughing, and “stuck out” his penis.

2. On the second, the offender and the victim had been playing together when he went onto the floor and tried to hold the victim down while manipulating her nipples and putting his lip on her ear.

3. On the third, the offender and the victim where in a kitchen when he went through her shorts and underwear to touch her vaginal area with his finger, while taking his penis in and out of his pants, rubbing his penis against her, including placement of the “back of her vagina” on his penis.

ii. The offender had no criminal record, had been gainfully employed for decades, (having been forced to enter the workforce at an early age), enjoyed a good relationship with his still supportive family, (which included three children ranging in age from 19 to 5), and continued to profess his innocence.

iii. As a result of the offender’s misconduct, his child victim suffered emotional and psychological harm whereby she remained withdrawn and generally frightened of others, frequently clung to her mother, appeared to have no sense of self-worth, and was sometimes suicidal. Her mother, (the offender’s former intimate partner), also was impacted significantly in that regard, insofar as she was afraid to enter new romantic relationships or leave her children alone with anyone after the offender’s misconduct.

iv. After noting many of the applicable principles I have outlined above, (including those emphasized by the Supreme Court of Canada in R. v. Freisen, supra), the presiding judge imposed a custodial sentence of 5 ½ years.

v. By way of comparison:

1. The personal circumstances of Mr E. seem broadly similar to those of the offender in R. v. R., supra; e.g., insofar as both can be described as first-time offenders with supportive families and a prosocial history. However, the offender in R. v. R., supra, had a more extended pro-social history than Mr E., and was still actively employed and financially supporting his children.

2. Both cases involve an offender’s violation of a position of trust, without any acceptance of responsibility or demonstration of remorse, and the child victim and her mother suffering inherent and demonstrated emotional and psychological harm as a result of the offender’s sexual interference.

3. While there had been three separate instances of sexual interference in R. v. R., supra, as opposed to the one incident of physical violation in this case, Mr E.’s violations of S.’s sexual integrity clearly were far more invasive, (e.g., involving Mr E. using his penis to penetrate S. orally and vaginally at a very young age), thereby exposing S. to far greater risks and dangers, as well as commensurate emotional and psychological harm that is likely to be more profound and lasting.

4. In my view, the gravamen and moral culpability of Mr E.’s misconduct are more serious than that described in R. v. R., supra, and warrant more serious denunciation and deterrence.

b. In R. v. G.R., 2022 ONCA 374, our Court of Appeal upheld the sexual assault conviction and sentence of an offender who had sexually assaulted a young girl. In that regard:

i. The Court of Appeal’s decision contains no detailed description of the offender’s personal circumstances, the offender’s underlying misconduct, or the impact of that misconduct. However, the decision does make it clear that the victim was nine years old when she was sexually assaulted “at various times” by the offender, who repeatedly violated a position of trust in that regard; i.e., as the victim was the daughter of the intimate partner with whom the offender was residing at the time, and the violations occurred when the victim’s mother was not at home.

ii. At first instance, the presiding judge had imposed a custodial sentence of 5½ years in relation to the offender’s sexual assault conviction. The Court of Appeal found “no basis upon which to interfere with that sentence”, insofar as “the sentence imposed was within the range” and otherwise suitable; e.g., given the offender’s position of trust and repeated violations of that trust by sexually assaulting his nine-year-old victim.

iii. As noted above, the Supreme Court of Canada expressly indicated in R. v. Freisen, supra, that sexual assault of children and sexual interference “must be treated equally”; e.g., insofar as the elements of each offence are similar and convictions for each offence frequently can be supported by the same factual foundation. I therefore readily accept that the Court of Appeal’s decision in R. v. G.R., supra, upholding a 5½ year sentence for sexual assault of a child, should extend equally to sentencing in relation to sexual interference. The decision also provides an example of such sentencing falling within the range contemplated by the Supreme Court of Canada in R. v. Freisen, supra; i.e., a now “normal” mid-single digit penitentiary term for a sexual offence committed against a child. Beyond those observations, however, in my view it is difficult to draw more precise or reliable comparisons between the situation underlying the sentence imposed in R. v. G.R., supra, and the situation before me, without having access to more detailed information regarding the facts giving rise to that earlier decision.

c. In R. v. G.S., 2023 ONCA 712, the appellant had been found guilty, after trial by judge and jury, of five offences; i.e., two counts of sexual assault, one count of sexual interference, and two counts of sexual exploitation. However, the sexual interference and sexual exploitation charges were stayed pursuant to R. v. Kienapple, supra. By way of further comment on that case:

i. I note that the underlying misconduct had taken place more than 20 years before trial, when the offender and then young victim were both working at a bakery owned and operated by the offender’s parents over a period of approximately three years. During that time, the families of the offender and victim were friends, and the victim considered the offender to be her “boss”.

ii. The offender’s sexual abuse of the victim began when he was 37 and she was 13, and involved the offender sexually assaulting the victim on three occasions:

1. On the first, the victim was working at the bakery when she was told by the offender to come to and enter the rear of the bakery’s delivery van. After removing his pants and instructing the victim to remove hers, the offender had sexual intercourse with the victim who, at the time, was just 13 and weighed 100 pounds. He thereafter told the victim not to tell anyone and clean herself up before she returned to work.

2. On the second occasion, the offender and victim had finished making deliveries in the bakery’s van when the offender once again instructed her to get into the back of the van and take off her pants. The victim, aged 15 at the time, once again complied as she felt she had no other choice; i.e., as there was no one there to help her and she believed she could not successfully run away. The offender then once again had sexual intercourse with her.

3. On the third and final occasion, (which took place approximately one year after the second occasion, when the victim was 16), the victim and her family had attended a gathering to honour the offender’s recently deceased father, during which the offender asked the victim to go with him to his parents’ home to retrieve something. Once there, however, the offender called for the victim to come upstairs, where he was preparing for intercourse by putting on a condom, and instructed the victim to remove her clothes. She once again complied, explaining at trial that she was only 16 at the time, and had “no idea” what else to do in the circumstances.

iii. At the time of sentencing, the offender was 61, had no criminal record, had struggled significantly with depression since his arrest, and had a wife who depended on him. He continued to profess his innocence and deny that he had ever engaged in sexual activity with the victim. His victim had continued to struggle with the long-term harmful consequences of the sexual assaults that had been perpetrated upon her during her teenage years, including debilitating trauma.

iv. Taking into account the above considerations, (as well as the aggravating fact that the offender had abused a position of trust and authority in committing the sexual assaults), the trial judge apparently imposed a 5½ year custodial sentence on the offender in relation to each of the remaining counts, (i.e., in relation to each of the two sexual assault convictions), although those two custodial sentences were to be served concurrently.

v. The offender appealed his conviction and sentence. However, his appeal was denied in both respects, subject only to a 20-year SOIRA compliance order being substituted for the lifetime SOIRA compliance order imposed at first instance. Comments and observations made by our Court of Appeal, in dismissing the appeal relating to sentence, included the following:

1. It was emphasized that the Court of Appeal intervenes to vary a sentence only in cases where a sentencing judge has erred in principle in a manner which had an impact on sentence, or where the sentence imposed at first instance was manifestly unfit. Neither situation applied in the case at hand.

2. Emphasis was placed on the principles highlighted by the Supreme Court of Canada in R. v. Freisen, supra, including the need for primary consideration of denunciation and deterrence in sentencing offenders who have sexual abused children; i.e., having regard to the precious value children have in our society, the right of children to safety and security, and the profound long-term harm caused to child victims and society by such abuse, all of which explained why “mid-single digit penitentiary sentences are not unusual for offences of this nature”.

3. Not only was the 5½ year sentence imposed by the sentencing judge “not demonstrably unfit”, but the Court of Appeal emphasized that “in most cases, a three-year to five-year range for sexually abusing children in the context of a position of trust is too low”.

vi. By way of comparison:

1. There are similarities between the personal circumstances of Mr E. and those of G.S.; e.g., insofar as G.S. was also a first-time offender, also had an extended prosocial history in terms of employment, (although that of G.S. was longer than that of Mr E.), and also had a significant dependent.

2. Like the misconduct of Mr E., the offences committed by G.S. also involved violation of a position of trust and authority, without any acceptance of responsibility or demonstration of remorse, and resulted in the victim experiencing long-term harm and debilitating trauma that were manifest by the time of trial.

3. The physical violations of sexual integrity committed by G.S. were more extensive than those committed by Mr E. in terms of repetition, (i.e., insofar as the sexual intercourse perpetrated by G.S. occurred on three separate occasions rather than one), but less serious, invasive and morally reprehensible in other ways,; e.g., insofar as Mr E. used his penis to vaginally and orally penetrate a girl who, at the age of 10 or 11, was even younger than the victim of G.S. at the time of her first victimization. Having regard to such considerations, in my view Mr E.’s misconduct warrants a custodial sentence at least as serious as that imposed on G.S. and upheld by the Court of Appeal.

d. In R. v. T.K.N., 2023 ONC 488, (the last sentencing precedent submitted by Crown counsel for purposes of comparison), the accused was charged with assault, sexual interference and sexual assault. He pled guilty to the assault simpliciter charge at the opening of his trial by judge alone, and after trial was found guilty of sexual interference and sexual assault. However, the sexual assault charge was then conditionally stayed, pursuant to R. v. Kienapple, supra. By way of further comment on the case:

i. The Court of Appeal’s decision does not include a detailed account of the offender or his underlying misconduct, but the situation was said to have involved “five to six acts of intercourse by a 26-year-old man with a 13/14-year-old teenager”, and aggravating factors that included the following:

1. the sexual interference had involved a breach of trust, in that the offender had “ingratiated himself into a family” and used his position as an individual welcomed into that family to perpetrate his sexual abuse of the victim;

2. the sexual interference had been preceded by grooming;

3. the offensive conduct took place in the victim’s family home, where she should have felt safe; and

4. the victim lost her virginity as a result of the offender’s misconduct.

ii. The Court of Appeal’s decision does not include detailed information about the offender, apart from his having experienced difficulties in childhood, (specified in a presentence report but not in the decision), his being a first-time offender, and his having been 26 at the time of his misconduct.

iii. Although the decision also does not include detailed information about the impact of the offender’s misconduct, the victim and her family were said to have suffered “profound harm” because of the offender’s actions.

iv. In the result, the trial judge imposed a sentence of 3 months in relation to the charged assault, (in respect of which the accused had pled guilty), and a concurrent 6½ year sentence in relation to the offender’s sexual interference conviction after trial.

v. The offender appealed his conviction and sentence in relation to the sexual interference charge, but the appeal was dismissed in both respects. In relation to the appeal from sentence, the Court of Appeal’s concluding remarks included the following comments: “Particularly in light of the guidance provided in R. v. Friesen, [supra], concerning the need to recognize the wrongfulness of, and harm caused by, sexual offences against children, we are not persuaded that the sentence imposed by the trial judge was demonstrably unfit. As Friesen makes clear, mid-single digit penitentiary terms for sexual offences against children are normal and substantial sentences can be imposed even where there is only one victim.”

vi. Precise and reliable comparisons between that case and the case before me are difficult, insofar as information relating to the former was provided in a general way. However:

1. The circumstances of T.K.N. and Mr E. seem similar in certain respects, (e.g., at least in terms of the offenders being close in age at the time of offending, and having the status of first-time offenders), and the sexual interference they perpetrated shared a number of aggravating factors; e.g., abuse of a position of trust, grooming activity, perpetration of sexual abuse in the home of the victim’s parent where she was entitled to feel safe, and loss of the victim’s virginity.

2. Although the sexual interference committed by T.K.N. was more extensive and serious than that committed by Mr E. in certain respects, (e.g., in terms of T.K.N. having sexually violated his victim on five or six occasions rather than one), Mr E.’s misconduct arguably was comparatively more serious in other ways, insofar as it involved vaginal intercourse with a significantly younger victim, (i.e., 10-11 years of age rather than 13-14), as well as both vaginal and oral penetration.

3. On the whole, it seems to me that the sexual interference perpetrated by Mr E. warrants a custodial sentence somewhat less, but not significantly less, than that imposed on T.K.N.

[51] Crown counsel provided me with no sentencing precedents in relation to the offence of child luring and, as noted above, I received no authorities whatsoever from defence counsel.

[52] As for possible comparable decisions related to the offence of child-luring, decided after R. v. Freisen, supra, I independently have regard to sentencing precedents such as the following:

a. In R. v. Jissink, 2021 ABQB 102, the offender was in a position of trust vis-à-vis his child luring victim; i.e., as a 43-year-old teacher, teaching at the school of his 16-year-old victim. He added the victim to his “Snapchat” messaging network, and over the next few months sent her sexual messages and images of himself. He pled guilty to child-luring on the basis of an agreed statement of facts. He was a first-time offender who expressed remorse for his actions, who still enjoyed the support of his wife and family, and who already had experienced significant collateral consequences as a result of his misconduct, including loss of his teaching employment. He was sentenced to one year in custody, to be followed by two years of probation. By way of comparison to the situation before me, Mr E. is also being sentenced as a first-time offender, with a prosocial history and supportive family. He too engaged in child-luring by texting and the sending of images, facilitated by breaching a position of trust. However, he does not enjoy the benefit of a guilty plea or any other expression of remorse in relation to his child luring offence, and has not experienced any notable collateral consequences to date as a result of his misconduct. While his child luring conduct was less sustained or prolonged, the texts/images exchanged with his victim were more sexually graphic than those sent by Mr Jissink. Having regard to such considerations, in my view Mr E.’s sentence for child luring should be greater.

b. In R. v. A.B., 2024 NSPC 9, the offender was the 23-year-old karate instructor of his 16-year-old victim, and therefore in a position of trust or authority in that regard. Over the course of several months, he and his teenage child luring victim exchanged texts of a sexual nature, including increasingly intimate photographs and videos of masturbation. He was found guilty after trial in relation to three counts of child luring. Although the offender came from a loving family environment, he had experienced severe and sustained verbal and physical bullying at school, which had led to profound self-esteem and relationship issues. He also was a first-time offender, who had experienced severe collateral consequences as a result of the criminal proceedings and associated media coverage, all of which had led to severe social stigma as well as ostracization from his work and social communities. Moreover, he expressed sincere remorse for his conduct, and the impact which that conduct had on the victim and her family. In the result, he received a custodial sentence of two years less a day, to be served in the community; i.e., a conditional sentence. By way of comparison to the situation before me, Mr E. is also being sentenced as a first-time offender, with a prosocial history and supportive family. He too engaged in child luring by of texting and the sending of images, facilitated by breaching a position of trust, although his child luring conduct apparently was less sustained and less graphic than that in which A.B. engaged. However, Mr E. does not enjoy the benefit of a guilty plea or any other acceptance of responsibility or expression of remorse in relation to his child luring offence, and he has not experienced any notable collateral consequences to date as a result of his misconduct. He also has no troubled personal history similar to that of A.B., and is not as youthful an offender. On balance, it seems to me that Mr E.’s sentence for child luring should be greater than that which A.B. received.

c. In R. v. Wall, 2023 ABPC 3, the offender was 22 years old, and communicated “online” with the 15-year-old sister of his girlfriend over a two-month period, during which he requested nude photos of the victim and sent messages encouraging her to meet with him for sexual contact. The victim eventually sent him photos with her breasts exposed. The offender had experienced a troubled and traumatic childhood involving family separation, abuse and foster homes, but had no criminal record and, quite remarkably, proactively had reported his own misconduct to the police. It was noted and emphasized by the sentencing judge that, without that self-reporting, Mr Wall’s misconduct might never have been discovered. He pled guilty to one count of child luring, and received a custodial sentence of two years less a day to be served in the community, (i.e., a conditional sentence), with the sentencing judge emphasizing that outcome was justified by the “exceptional” circumstances of the case. By way of comparison to the situation before me, Mr E. also is being sentenced as a first-time offender, and in relation to child luring communications which may have been less sustained or prolonged. In most other respects, however, Mr E.’s child luring misconduct seems deserving of a greater custodial sentence than Mr Wall. Without limiting the generality of the foregoing, Mr E. had no similar troubled upbringing, is not as youthful an offender, did not report his own misconduct, does not enjoy the benefit of a guilty plea or other indication of acceptance of responsibility and/or expression of remorse for that misconduct, and engaged in the exchange of sexual images with his victim which were far more intimate.

Assessment – Custodial sentences

[53] With all of the above considerations in mind, I turn finally to assessment of an appropriate sentence to be imposed on for Mr E. for his two offences in this particular case, starting with determination of the appropriate custodial sentences to be imposed.

[54] In that regard, I begin by noting my view that the conditional sentence and probation disposition suggested by defence counsel is effectively a “non-starter”, insofar as I regard it as an outcome which would be a manifestly unfit sentence even if it remains a legal possibility according to the provisions of the Code. In that regard:

a. I am mindful that one of the preconditions for imposition of a conditional sentence pursuant to section 742.1 of the Code is that the relevant offence, in respect of which the offender is being sentenced, “is not an offence punishable by a minimum term of imprisonment”. See, in particular, subsection 742.1(b) of the Code for that express limitation. In this case, the underlying offences in respect of which Mr E. currently is being sentenced are sexual interference contrary to section 151 of the Code and child-luring contrary to section 172.1 of the Code, each of which, when prosecuted by indictment, (as in this case), ostensibly carries a mandatory minimum punishment of imprisonment for a term of one year. See, in particular in that regard, the current legislated wording of subsections 151(a) and 172.1(2)(a) of the Code. However, I also am mindful that the mandatory minimum sentences set forth in s.151(a) and s.172.1(2)(a) of the Code have both been declared unconstitutional and of no force and effect; i.e., insofar as each is contrary to section 12 of the Canadian Charter of Rights and Freedoms, (“the Charter”), and not saved by section 1 of the Charter. In relation to s.151(a) of the Code in that regard, see R. v. J.E.D. (2018), 2018 MBCA 123, 368 C.C.C. (3d) 212 (Man.C.A.); R. v. Ford (2019), 2019 ABCA 87, 371 C.C.C. (3d) 250 (Alta.C.A.); and R. v. B.J.T. (2019), 2019 ONCA 694, 378 C.C.C. (3d) 238 (Ont.C.A.). In relation to s.172.1(2)(a) in that regard, see R. v. Bertrand Marchand, 2023 SCC 26. Imposition of a conditional sentence in relation to either of the two offences that bring Mr E. before me now accordingly is not precluded by the ostensible (but unconstitutional) mandatory minimum sentence suggested by the Code in relation to each offence.

b. However, even if the aforesaid mandatory minimum sentence provisions do not present an impediment to imposition of a conditional sentence, in relation to the offences committed by Mr E., in my view such a sentence still would be manifestly inappropriate in this case. In particular:

i. Section 742.1 of the Code also makes it clear that imposition of a conditional sentence is possible only if the sentencing judge thinks it appropriate to impose a custodial sentence of less than two years, and is “satisfied that the service of the sentence in the community would not endanger the safety of the community” and “be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2” of the Code.

ii. As noted above, the Supreme Court of Canada now has made it clear that, as interpreted and applied in relation to matters concerning the sexual abuse of children, consistency with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Code normally will result in mid-single digit penitentiary terms for serious offences against children, (which in my view most certainly includes vaginal intercourse and oral sex with a 10-11 year old girl, after engaging in child luring with the same victim that facilitated commission of that extremely serious and harmful violation of the victim’s sexual integrity), and that, for the same reasons, upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional cases.

iii. While such sentencing starting points and ranges are not “straightjackets”, and deviation from such starting points and ranges certainly is possible in appropriate cases, in my view imposition of a conditional sentence for Mr E.’s misconduct would be a gross and altogether excessive deviation from the normal sentencing starting point and range applicable to such misconduct, without any discernible and/or adequate reason for that deviation. Without limiting the generality of the foregoing, the limited mitigating considerations I have outlined are in my view neither extraordinary nor unusual, and do not warrant a sentencing outcome such as that suggested by defence counsel, which in my view would fail to prioritize denunciation and deterrence as required, or recognize the gravamen, moral culpability, wrongfulness and extraordinarily harmful nature of Mr E.’s misconduct.

iv. More specifically, I fail to see any demonstrable justification in this case for imposing a custodial sentence, in relation to Mr E.’s vaginal and oral penetration of his 10-11 year old victim, that would be significantly less than what our Court of Appeal now has indicated, in R. v. A.J.K., supra, to be the normal minimum sentence for offenders who commit such crimes in relation to adult victims. In that regard:

1. As noted above, our Court of Appeal emphasized, in R. v. A.J.K., supra, that “absent some highly mitigating factor”, the “forced penetration” of another person, (i.e., whether vaginal, oral or anal), “will typically attract a sentence of at least three years in the penitentiary”.

2. In my view, no such factor exists in this particular case to justify Mr E. receiving a penitentiary sentence less than three years, let alone a sentence less than two years to be served by way of a conditional sentence. Without limiting the generality of the foregoing, the fact that Mr E.’s mother depends greatly on him for her everyday care, and will be deprived of that care from him while he serves a custodial sentence in the penitentiary for his misconduct, is certainly unfortunate but it is not unusual. There sadly are a great many senior citizens and others in our communities who struggle greatly with physical challenges and limitations, and not all of them have large extended families such as that of Mr E. who can step in to provide assistance to his mother if and when his immediate care is rendered unavailable because of the more pressing sentencing concerns and demands of our criminal justice system.

3. I also independently am aware of our Court of Appeal’s relatively recent decision in R. v. S.W., 2024 ONCA 173, wherein a conditional sentence imposed on an adult offender who had sexually assaulted his intimate partner via repeated unwanted vaginal intercourse over the course of one night, causing her significant psychological harm, was found to be manifestly unfit and vacated with a three-year penitentiary sentence being substituted in its place. The offender in that case had no criminal record, a history of steady employment, and three dependent children, (one of whom had been diagnosed with autism), was a good son to his two aging parents, and expressed what was described as “considerable remorse” for his misconduct. In my view, if a conditional sentence of two years less a day was manifestly unfit in R. v. S.W., supra, it self-evidently would be manifestly unfit in this case involving the sexual abuse of a child, in respect of which more severe sentences are required as per the Supreme Court of Canada’s admonitions in R. v. Friesen, supra.

[55] That still leaves, for determination, the appropriate custodial sentences to be imposed on Mr E. in this particular case.

[56] It has been said many times and in many ways that determination of an appropriate custodial sentence is more of an art than a science. However, having regard to all the circumstances and considerations outlined above, in my view appropriate custodial sentences for Mr E.’s offences, (prior to consideration of their possible modification through application of the totality principle), would be:

a. in relation to his offence of sexual interference, contrary to section 151 of the Criminal Code, a custodial sentence of six years; and

b. in relation to his offence of child luring, contrary to section 172.1(2) of the Criminal Code, a custodial sentence of 1½ years.

[57] As the custodial sentences of Mr E. are to be served consecutively rather than concurrently, (for the reasons outlined above), that initially would suggest imposition of a global custodial sentence of 7½ years.

[58] However, mindful of the need to check and ensure that the total sentence resulting from the imposition of sentences to be served consecutively does not exceed Mr E.’s overall culpability, in my view the aforesaid custodial sentences, otherwise appropriate to the situation, can and should be reduced somewhat to account for such totality considerations, while still ensuring a global custodial sentence that is just and proportionate to the gravity of Mr E.’s offences and his degree of responsibility for that misconduct.

[59] In particular, I find that:

a. in relation to his offence of sexual interference, contrary to section 151 of the Criminal Code, Mr E. should receive a custodial sentence of 5½ years, to be served consecutively in relation to the custodial sentence to be imposed for his offence of child luring; and

b. in relation to his offence of child luring, contrary to section 172.1(2) of the Criminal Code, Mr E. should receive a custodial sentence of 1 year, to be served consecutively in relation to the custodial sentence to be imposed for his offence of sexual interference.

[60] In other words, for the reasons outlined above, I intend to impose a global custodial sentence of 6½ years in this case, prior to Mr E. receiving credit for his time already spent in actual presentence custody.

Ancillary orders

[61] As for the various further ancillary orders requested by the Crown:

a. In the circumstances of this case, an order compelling Mr E. to provide the number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis is not only advisable but mandatory, having regard to the combined effect of subsections 487.04(a)(i.1), 487.04(a)(i.91) and 487.051(1) of the Code. An order in Form 5.03 therefore shall issue in relation to Mr E..

b. As emphasized by the Supreme Court of Canada in R. v. Friesen, supra, violence is always inherent in the act of applying force of a sexual nature to a child. The indictable offence of sexual interference committed by Mr E. in relation to S. therefore inherently involved the use of violence against her. As noted above, sexual interference also is an indictable offence for which a perpetrator may be sentenced to imprisonment for a maximum of 14 years; i.e., a period of imprisonment “for ten years or more”, within the meaning of s.109(1)(a) of the Code. Pursuant to that subsection, a mandatory order therefore is required and shall be made prohibiting Mr E. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. Pursuant to s.109(2) of the Code, that mandatory weapons prohibition order shall begin today and remain in place for a period of 10 years, as this is Mr E.’s first conviction for sexual interference.

c. The making of non-communication orders pursuant to section 743.21 of the Code is discretionary. While there is no indication that Mr E. intends to communicate with S. or her adoptive mother in the future, I think it appropriate to provide the two of them with further peace and assurance in that regard. They have been put through enough, without having to contemplate the prospect of possibly hearing from Mr E. while he is serving his custodial sentence. An order therefore shall be made prohibiting Mr E. from communicating directly or indirectly, during the custodial period of his sentence, with S.W. and/or her adoptive mother C.B..

d. As for the various discretionary prohibition orders sought by the Crown pursuant to subsections 161(1)(a), (b), (c) and (d) of the Code:

i. In relation to the Crown’s request that Mr E. be prohibited from attending public parks or public swimming areas where persons under the age of 16 years are present or reasonably can be expected to be present, or daycare centres, schoolgrounds, playgrounds and/or community centres, pursuant to subsection 161(1)(a) of the Code:

1. While Mr E.’s violation of S. W. is obviously a matter of serious concern, and must not be minimized in any way, nothing in the underlying circumstances addressed by the evidence presented at trial, and/or in the information provided in the context of sentencing, indicates or suggests any inclination, tendency or temptation on the part of Mr E. to target or otherwise prey upon unknown children he might encounter in a public setting. To the contrary, Mr E.’s only identified victim was a child who was clearly known to him; a child with whom he had regular contact, and whom he was able to abuse through planning, grooming and execution in a private setting, all of which was facilitated by an ongoing intimate relationship with the child’s mother.

2. I am mindful that Mr E. has two children of his own, (aged 12 and 10), with whom he apparently enjoys ongoing and supportive relationships. He also has 24 nephews and nieces, (some of whom are old enough to now have children of their own), who comprise members of an extended family that apparently continues to interact supportively with Mr E. on a regular basis. Moreover, the fact that Mr E. resides with and greatly assists his mother, (i.e., the matriarch of his extended family), undoubtedly gives rise to frequent contact between Mr E. and young members of his extended family; i.e., as his mother is visited by her grandchildren and great-grandchildren. During the course of trial and sentencing submissions, there was no indication or suggestion that any of Mr E.’s ongoing relationships with his children, nephews and nieces, or great nephews and nieces pose any risk or danger to those numerous children, or that any restrictions whatsoever should be imposed in that regard. However, it seems likely that imposing restrictions on Mr E.’s ability to attend the various locations mentioned in s.161(1)(a) of the Code inevitably would complicate and compromise Mr E.’s ability to interact with his own children and other young members of his extended family; i.e., insofar as the locations mentioned in s.161(1)(a) of the Code were listed there, by Parliament, precisely because they are among those most frequently enjoyed and/or used by children. That seems likely to be true of Mr E.’s own children, and the children in his more extended family. Restrictions imposed on Mr E. in that regard therefore seem likely to compromise those ongoing supportive relationships, which in my view are inherently important to Mr E.’s prospects for rehabilitation.

3. I also am mindful of the reality that Mr E.’s most recent extended employment, (and the employment to which he therefore seems most likely to return after caring for his mother), was focused on the performance of landscaping and snow removal services in various locations; i.e., work which might require Mr E. to attend some of the locations mentioned in s.161(1)(a) of the Code. That in turn seems likely to create complications with his securing and retaining employment in that regard; i.e., if he is obliged to disclose such restrictions to employers or potential employers, and/or such conditions effectively prevent him from carrying out his job responsibilities. In my view, Mr E.’s ability to obtain and retain remunerative employment also has inherent importance to his prospects for rehabilitation, particularly when one bears in mind the reality that there inevitably will come a time when the provision of care to his mother will no longer be required.

4. Having regard to such considerations, I am not inclined to impose any restrictions on Mr E.’s ability to attend public parks or public swimming areas where persons under the age of 16 years are present or can reasonably be expected to be present, or community centres. Such public venues play an important role in the recreational and social lives of people in and around Mr E.’s longstanding home here in London; e.g., given its extensive park and conservation path areas, (and the numerous festivals, concerts and other public events held therein), its abundance of nearby lake beaches and public swimming pools, and the reality that its various community centres are used for a wide variety of public gatherings ranging from sporting events to concerts and other forms of entertainment. In my view, there is an absence of any demonstrated significant risk to children, arising from Mr E. attending such public venues, that would justify the burdens associated with restricting his attendance there even if he should choose to do so in the absence of a child relative or on his own.

5. In my view, the balance to be struck nevertheless is different in the case of daycare centres, schoolgrounds and playgrounds, in respect of which Mr E. likely will have no reason for attendance unless it pertains to one of his own children, or another young member of his more extended family. I therefore intend to make an order prohibiting Mr E., for life, from attending any daycare centre, schoolground or playground unless he is in the company of one of his children or another member of his extended family under the age of 16, or attending such a venue for the purpose of retrieving such a child or other young person.

ii. Having regard to the underlying circumstances, including not only Mr E.’s offensive conduct but the breaches of trust and authority involved in its commission, I think it entirely appropriate to make an order pursuant to s.161(1)(b) of the Code prohibiting Mr E. from seeking, obtaining or continuing any employment, (whether or not the employment is remunerated), or becoming a volunteer in a capacity, that would involve Mr E. being in a position of trust or authority towards persons under the age of 16 years.

iii. In relation to the Crown’s request for an order pursuant to s.161(1)(c) of the Code, prohibiting Mr E. from having any contact, (including communication by any means), with a person under the age of 16 years unless Mr E. does so under the supervision of a person whom the court considers appropriate:

1. There was no Crown opposition to defence counsel’s request that any such restriction not apply in relation to Mr E.’s own children, and I independently agree that such a restriction is neither necessary nor appropriate in the circumstances. As noted above, there was no indication or suggestion that Mr E. poses any danger to his own children. To the contrary, the information provided to me during sentencing made it clear that Mr E. prioritizes their welfare, and I think it likely that any order effectively requiring supervision of the time Mr E. spends with his children, and/or his communications with them, almost certainly would undermine their mutually supportive relationship without any countervailing benefit.

2. As for Mr E.’s interaction with children other than his own, in my view the nature of his offences and the circumstances in which they were committed gives rise to legitimate concerns about the need for supervision in that regard, but also strongly suggests that Mr E. would be unlikely to act inappropriately towards a child in the presence of others. Having regard to the information presented during the sentencing hearing, I certainly do not think he would be inclined to engage in any such misconduct in the presence of his own children or other adults. I therefore think such concerns can be addressed reasonably and sufficiently, (and in a manner unlikely to interfere greatly with the ongoing mutually supportive interactions Mr E. has with members of his more extended family), by the imposition of more limited prohibitions whereby, for the remainder of his life:

a. Mr E. shall be prohibited from having any in-person contact with anyone under the age of 16, other than his own children, unless that contact takes place in the presence of another adult or at least one of his own children; and

b. Mr E. shall be prohibited from communicating in writing and/or via telecommunication with anyone under the age of 16, other than his own children, unless such written communications are simultaneously copied to another adult and/or directed to the person under the age of 16 through another adult, and/or another adult is present during any telephone conversations Mr E. may be having with anyone under the age of 16.

iv. In relation to the Crown’s request for an order pursuant to s.161(1)(d) of the Code that Mr E. be prohibited from using the internet or any other digital network, unless he does so in accordance with conditions set by the court:

1. I am mindful of the reality that Mr E.’s underlying offences would not have been possible without use of the internet and the telecommunications Mr E. was able to exchange with S. via Facebook. In particular, he would not have been able to groom her for sexual activity through the exchange of intimate images, (the sending of which he tried to cloak with anonymity, despite S.’s ability to recognize the sender via familiar backgrounds in the relevant photographs), and he would not have been able to secure S.’s attendance in the residential unit where she was violated had Mr E. not been able to send a message to her in her home, falsely indicating that his children were visiting his unit and that S. should come there for the supposed purpose of playing with them. At first blush, the argument for denying Mr E. access to the internet and telecommunications therefore may seem compelling.

2. I nevertheless also am mindful of observations made by our Court of Appeal, in R. v. Brar, 2016 ONCA 724, [2016] O.J. No. 5143 (C.A.), at paragraphs 24 and 25, recognizing that, in modern society, prohibition orders restricting access to the internet and telecommunications have a significant impact on offenders. The need for such access is largely unavoidable in today’s world; i.e., for innocent purposes such as accessing services, obtaining directions, corresponding with friends and family, finding employment, banking, reading the news and shopping. In such an environment, an order preventing an offender from having any access to the internet or ability to communicate via telecommunications is not merely preventative but also inherently punitive, may inadvertently put an offender in breach of restrictive court orders, and may very well create a serious impediment to an offender’s rehabilitation and productive reintegration into society. While such absolute orders may be appropriate in some cases, they should be avoided if more limited preventative restrictions, tailored to the situation, are possible and appropriate.

3. In my view, the relevant internet and digital network communication concerns raised by Mr E.’s underlying misconduct focus on his use of the internet and Facebook:

a. to communicate with S. inappropriately in a clandestine fashion without that coming to the immediate attention of other adults, who hopefully would have intervened to protect S.; and

b. to groom S. for sexual activity under an initial cloak of anonymity, which no doubt emboldened Mr E. and thereby encouraged such misbehaviour.

4. The former concern will be addressed sufficiently, I think, by the prohibition order I intend to make pursuant to s.161(1)(c) of the Code; i.e., the order I described a short time ago, whereby Mr E. will be prohibited from engaging in telecommunications with persons under the age of 16, (other than his own children), unless such communications are copied to another adult, or relayed through another adult.

5. As for the latter concern, I think that can be addressed sufficiently by an order that Mr E., for the remainder of his life, be prohibited from using the Internet or other digital network except in accordance with a condition that requires any internet or email address used by him, any website created by him, and all messages, photographs, videos, advertisements or other content he directly or indirectly sends or posts to or through any website, internet service or digital network, to use and display his proper legal first name and surnames, (i.e., “K. E.”), together in full.

e. As for the Crown’s request for an order requiring Mr E. to comply with the Sex Offender Information Registration Act, (or “SOIRA”), for life:

i. In R. v. Ndhlovu, 2022 SCC 38, the Supreme Court of Canada declared, inter alia, that section 490.012 of the Code as it then stood was constitutionally defective, (i.e., insofar as its provisions threatened the liberty interests of offenders in a manner which was overly broad and therefore contravened section 7 of the Charter, in a way that was not justifiable under section 1 thereof), and therefore of no force or effect. However, at paragraph 143 of its decision, the Supreme Court of Canada also indicated that its declaration in respect of section 490.012 was to be suspended for one year before the declaration then would apply prospectively.

ii. On October 26, 2023, (two days prior to the one-year suspension of the Supreme Court of Canada’s declaration of invalidity in relation to section 490.012 running its full course), Bill S-12, “An Act to Amend the Criminal Code, the Sex Offender Information Registration Act and the International Transfer of Offenders Act”, received Royal Assent and became law.

iii. Pursuant to that legislation, extensive legislative amendments were made to the provisions of the Code relating to the making of SOIRA compliance orders. I will not attempt to reiterate all of those amendments here, but they include the following changes:

1. The previous definition of “designated offence” in subsection 490.011(1) has been removed and replaced by a new definition, found in the new subsection 490.011(1), indicating that a “designated offence” now means “a primary offence or a secondary offence” as further defined by the wording of the new subsection 490.011(1), which includes listings of indicated offences falling within the meanings of “primary offence” or “secondary offence”, with subsection (a)(ii) of the “primary offence” definition expressly including the crime of sexual interference contrary to section 151 of the Code, and subsection (a)(xiv) of the “primary offence” definition expressly including the crime of child luring contrary to section 172.1 of the Code.

2. The previous version of section 490.012 has been removed and replaced by an entirely new section, the provisions of which are lengthy. However, they include a new subsection 490.012(1), which directs that, when a court imposes a sentence on a person for a designated offence, it shall make an order in Form 52 requiring the person to comply with SOIRA if:

a. the designated offence was prosecuted by indictment;

b. the sentence for the designated offence is a term of imprisonment of two years or more; and

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

3. The new section 490.013 contains provisions governing the duration of such orders. In that regard:

a. Subsection 490.013(1) provides that an order made under section 490.012 begins on the day on which it is made.

b. Subsection 490.013(2) provides, inter alia, that an order made under subsection 490.012(1):

i. subject to subsections 490.013(3) and (5), (the latter of which has no relevance to the present case), ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years;

ii. subject to subsections 490.013(3) and (5), (the latter of which once again has no relevance to the present case), ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and

iii. applies for life if the maximum term of imprisonment for the offence is life.

c. Subsection 490.013(3) provides, inter alia, that an order made under subsection 490.012(1) applies for life if, as addressed by sub-paragraphs 490.013(3)(a) and (b) respectively:

i. in the same proceeding, the person has been convicted of two or more designated offences in connection with which an order under any of subsections 490.012(1) to (3) may be made; and

ii. 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.

d. Subsection 490.013(4) provides that, if subsection 490.013(3)(a) applies in the circumstances but the court is not satisfied as set out in subsection 490.013(3)(b), the duration of the SOIRA compliance order is determined by applying the sub-paragraphs of 490.013(2), described above, to the designated offence with the longest maximum term of imprisonment.

iv. The parties did not dispute that a SOIRA compliance order was required in this case pursuant to the provisions of section 490.012(1) of the Code, and I independently agree as all the triggering conditions for the making of a mandatory SOIRA compliance order pursuant to section 490.012(1) are present here. In particular:

1. the court is imposing sentence in relation to two “designated offences”, as defined by section 490.011;

2. those two designated offences were prosecuted by indictment;

3. for the reasons outlined above, I am imposing a custodial sentence of 5 ½ years in relation to the designated offence of sexual interference, (as well as a global custodial sentence of 6 ½ years in relation to the two designated offences of sexual interference and child luring), and therefore a sentence of “two years or more”; and

4. the victim of the two designated offences, S. W., was under the age of 18 years when each of those two designated offences was committed.

v. The parties similarly did not dispute, and I independently agree, that the mandated SOIRA compliance order should have a duration of 20 years pursuant to subsection 490.013(2)(b) of the Code, (i.e., ending 20 years after it is made, as the maximum term of imprisonment for each of the two designated offences committed by Mr E. is 14 years), unless the Crown established that the order’s duration should be governed by subsection 490.013(3), so as to make the mandatory order applicable for life. Again, for the reasons outlined above, I have interpreted Crown counsel’s oral submissions in that manner, notwithstanding Crown counsel’s suggestion, (not contemplated or permitted by the applicable Code provisions, in my view), that such an order might possibly have a duration of 30 years.

vi. In relation to subsection 490.013(3), it was not disputed, and I independently agree, that the requirements of s.490.013(3)(a) have been satisfied; i.e., insofar as Mr E. unquestionably now has been convicted, in the same proceeding, of two designated offences, (sexual interference and child luring), “in connection with which an order under … subsection … 490.012(1) … may be made”.

vii. The dispute concerning application of subsection 490.013(3) centred on whether the Crown had met its onus of satisfying the court that the two designated offences committed by Mr E. “demonstrate, or form part of, a pattern of behaviour showing that [Mr E.] presents an increased risk of reoffending by committing a crime of a sexual nature”. In that regard:

1. I was not presented with any relevant authorities in that regard, (i.e., indicating how best to approach that issue), for reasons no doubt stemming from the relatively recent enactment of the relevant amended provisions of the Code. Nor was I independently able to locate any helpful authority in that regard. In the metaphoric words of Crown counsel, the necessary determination of such matters therefore effectively requires me to sail jurisprudentially into “uncharted waters”.

2. Crown counsel conceded that Mr E.’s two offences were committed in relation to the same victim, that the two offences were factually connected, that they occurred within a narrow timeframe, that there was nothing to suggest that Mr E. had engaged in any similar conduct outside that narrow timeframe, and that many years actually had passed since Mr E.’s commission of those two offences without any reported misbehaviour of any kind, let alone any apparent indication that Mr E. was at risk of reoffending by committing a crime of a sexual nature.

3. Crown counsel nevertheless submitted that the requisite evidence of Mr E.’s “increased risk of reoffending by committing a crime of a sexual nature”, justifying a SOIRA compliance order for life, was discernible from the nature of the two offences committed by Mr E.. In particular, it was argued that the underlying circumstances, (i.e., the “constellation of acts” of what Mr E. did to groom and lure S. to his residence, and the “invasiveness” of his sexual interference), demonstrated what Mr E. was “capable of” doing in that regard, in turn giving rise to the possibility of discerning an “increased risk” in the sense required.

4. As I indicated during the course of submissions, I certainly would not want to foreclose or discount the possibility of the designated offences in respect of which an offender is being sentenced being sufficient, in and of themselves, to satisfy the condition set forth in section 490.013(3)(b) of the Code. Indeed, the wording of that subsection speaks not only to the possibility that the underlying designated offences will “form part of” a pattern of behaviour in the sense required, but also to the possibility that they themselves “demonstrate” such a pattern of behaviour. However, I also think the court must be wary of arguments that the evidence of “increased risk” contemplated by section 490.013(3)(b), and warranting a SOIRA compliance order for life, is inherent in the nature of the designated offences committed by the offender. In my view, such an approach comes perilously close to effective reinstatement of the constitutionally flawed approach to the making of SOIRA compliance orders rejected by the Supreme Court of Canada in R. v. Ndhlovu, supra. Moreover, the wording of section 490.013(3)(b) clearly does not speak merely to “increased risk” of reoffending by committing a crime of a sexual nature, but “a pattern of behavior showing that the person presents an increased risk” in that regard. [Emphasis added.]

5. The current online version of the Oxford English Dictionary (https://www.oed.com/dictionary/) defines “pattern”, (as used in relation to “pattern of behaviour”), as “a regular and intelligible form or sequence discernible in certain actions or situations; especially one on which the prediction of successive or future events may be based”.

6. In my view, the evidence in this case falls short of establishing such a pattern. Without limiting the generality of the foregoing, I think there is insufficient evidence of any regularity in Mr E.’s conduct, or any intelligible form or sequence discernible in his actions, indicating that he presents, in the sense required, an increased risk of reoffending by committing a crime of a sexual nature. In particular:

a. “Regularity” implies repetition, and in my view there was no evidence of any conduct repetition on the part of Mr E. apart, perhaps, from his sending not one but three photos to S. within a relatively short period of time during his initial grooming telecommunications with her.

b. Moreover, although certain aspects of Mr E.’s misconduct obviously followed upon others, (e.g., insofar as his sexual interference followed his child luring activity), and were sequential in that sense, I find it difficult if not impossible to discern any “pattern” in that regard. He engaged in an initial grooming telecommunication exchange with S. that included his sending of three intimate photos, thereafter sent a further single message inviting S. to his residence under false pretenses, and then physically violated S. on one discrete occasion. While those sequential actions were and are clearly reprehensible and serious, in my view they do not suggest the sort of “pattern” of behaviour contemplated by section 490.013(3)(b). In particular, the sequence or chain of wrongful acts in this case was deplorable but relatively short, and involved each general link in that chain essentially being executed only once. In the circumstances, I see no relevant “pattern” here, let alone one providing any reasonable basis for predicting future misconduct of a similar nature.

viii. As the Crown accordingly has failed to established both conditions required for the application of subsection 490.013(3) of the Code, the present situation is governed by subsection 490.013(2)(b), and the mandatory SOIRA compliance order to be made in relation to Mr E. shall have a duration of 20 years.

Formal imposition of sentence

[62] Stand up please Mr E..

[63] For the reasons I have outlined:

a. in relation to your offence of sexual interference, contrary to section 151 of the Criminal Code, I am imposing a custodial sentence of 5½ years, less five days, with those five days being a credit extended pursuant to s.719(3) of the Code for your five days spent in actual presentence custody, for the reasons I outlined earlier;

b. in relation to your offence of child luring, contrary to section 172.1(2) of the Criminal Code, I am imposing a custodial sentence of 1 year; and

c. those two custodial sentences shall be served consecutively to one another.

[64] There will, as well, be further ancillary sentencing orders whereby:

a. pursuant to subsections 487.04(a)(i.1), 487.04(a)(i.91) and 487.051(1) of the Criminal Code, a mandatory order in Form 5.03 shall issue, compelling you to provide the number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis;

b. pursuant to subsections 109(1)(a) and 109(2) of the Criminal Code, you also shall be subject to a mandatory weapons prohibition order as described therein, for a period of ten years;

c. pursuant to section 743.21 of the Criminal Code, an order shall issue prohibiting you from communicating directly or indirectly, during the custodial sentences I have imposed, with S.W. and/or her adoptive mother C.B.;

d. pursuant to subsection 161(1)(a) of the Code, you shall be subject, for the remainder of your life, to an order prohibiting you from attending any daycare centre, schoolground or playground unless you are in the company of one of your children or another member of your extended family under the age of 16, or you are attending such a venue for the purpose of retrieving such a child or other young person;

e. pursuant to subsection 161(1)(b) of the Code, you shall be subject, for the remainder of your life, to an order prohibiting you from seeking, obtaining or continuing any employment, (whether or not the employment is remunerated), or becoming a volunteer in a capacity, that would involve your being in a position of trust or authority towards persons under the age of 16 years;

f. pursuant to subsection 161(1)(c) of the Code, you shall be subject, for the remainder of your life, to:

i. an order prohibiting you from having any in-person contact with anyone under the age of 16, other than your own children, unless that contact takes place in the presence of another adult or at least one of your own children; and

ii. an order prohibiting you from communicating in writing and/or via telecommunication with anyone under the age of 16, other than your own children, unless such written communications or telecommunications are simultaneously copied to another adult and/or directed to the person under the age of 16 through another adult, and/or another adult is present during any telephone conversations you may be having with anyone under the age of 16;

g. pursuant to subsection 161(1)(d) of the Code, you shall be subject to a further order, for the remainder of your life, prohibiting you from using the internet or other digital network except in accordance with a condition that requires any internet or email address used by you, any website created by you, and all messages, photographs, videos, advertisements or other content you directly or indirectly send or post to or through any website, internet service or digital network, to use and display your proper legal first name and surnames, (i.e., “K.E.”), together in full; and

h. pursuant to the recently amended provisions of subsections 490.011(1), 490.012(1), 490.013(2)(b) and 490.013(3) of the Code, you shall be subject to a further order in Form 52 requiring you to comply with the Sex Offender Information Registration Act, (or “SOIRA”), for a period of 20 years.

[65] The e-indictment will be endorsed accordingly.

[66] Please be seated.

Justice I.F. Leach

Released: October 8, 2024