BARRIE COURT FILE NO.: CR-22-092
DATE: 20240208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
– and –
Donato D’Orazio
Defendant
J. Dafoe for the Crown
V. Strugurescu, for the Defendant
HEARD: December 20, 2023
Reasons for Sentence
LEIBOVICH J.
[1] On September 19, 2023, Mr. D’Orazio pleaded guilty to sexual interference and child luring. The sentencing hearing was originally scheduled for October 11, 2023, but it was adjourned at the request of Mr. D’Orazio in order to file a constitutional challenge to the one year minimum for the child luring offence[1]. The sentencing hearing was adjourned to
December 20, 2023. Prior to the start of the sentencing hearing, the Supreme Court of Canada struck down the mandatory minimum for child luring in R. v. Bertrand Marchand, 2023 SCC 26.
[2] The Crown seeks a total sentence of 5 years, a DNA order, a lifetime s.109 order, a 20 year SOIRA order and a 10 year s.161 order. The defence is seeking a 2 year less a day conditional sentence followed by 3 years probation. In the alternative, the defence is seeking a reformatory sentence in the range of 1-2 years. In addition to their oral submissions, the Crown and defence filed helpful written submissions. My decision with respect to sentence was adjourned to today’s date.
Circumstances of the offence
[3] The victim, A.S., was born in 2001. Mr. D’Orazio, was born on March 3, 1991. He is ten years older than A.S.. They began communicating through Twitter on approximately October 15, 2015. A.S. was 14 years old at the time. She initially told him that she was 15. She told him this in a message very early on in their communications on October 15, 2015.
[4] Mr. D’Orazio asked the victim to send him nude photographs on November 2, 2015. She initially resisted but did end up sending him nude photographs and he sent photographs back. They also had sexual video calls when he believed she was 15.
[5] Their conversations were primarily sexual in nature. A.S. reiterated to Mr. D’Orazio in later conversations that she was 15. Mr. D’Orazio knew that her birthday was in April. They both suggested meeting somewhere to engage in sexual activity. At the time, A.S. was living up north in the Timmins area and Mr. D’Orazio was living in Bolton.
[6] A.S.’s mother found the communications between the two of them in early 2016 and informed Mr. D’Orazio that A.S. was only 14 years old and to stop communicating with her. There was a period of time where they didn’t speak but they resumed communications shortly before her 15th birthday.
[7] On March 10, 2016, Mr. D’Orazio messaged A.S. via Twitter and said: “I can’t believe I was this close to hooking up with a 14 year old lol”. He told her that he would have done it “hands down” and that he probably would still do it. After her 15th birthday, they made plans to meet in Penetanguishene to engage in sexual activity. Mr. D’Orazio did not end up meeting her on this occasion.
[8] They continued communicating through text message, video calls, phone calls and other messaging. They planned to meet at the Super 8 Motel in Barrie on the night of October 20, 2016. Mr. D’Orazio knew that the victim was 15 years old at the time. They met on this occasion and had vaginal sexual intercourse.
[9] Mr. D’Orazio knew that she was staying in a room with her mother and coached A.S. on what to do to meet him in the room that he booked. The police obtained the hotel records confirming that Mr. D’Orazio stayed at the motel.
[10] A.S. provided 35,000 text messages exchanged between the two of them as well as Twitter and other social media messages. The text exchanges also confirmed that they met at the motel and had sex.
[11] They met a second time when she was 15 at a hotel in Toronto. On this occasion, Mr. D’Orazio stayed in his vehicle in the parking lot. A.S. went out to see him after her mother fell asleep. Mr. D’Orazio knew that she was staying with her mother at the hotel. He knew she was there for an appointment at Sick Kids hospital. They had sexual intercourse in his car in the parking lot. She then returned to her hotel room.
[12] As time progressed, Mr. D’Orazio wanted to end their relationship but A.S. continued to message him. He became increasingly hostile towards her in their messages. By his own acknowledgement, she is the only person he treated that way.
[13] Mr. D’Orazio went to the police in 2019 to complain that A.S. would not stop messaging him or others that he knew. The police cautioned A.S.. A.S. provided the police with some information about their relationship but she did not want to move forward with an investigation.
[14] A.S. provided a statement to the police in 2020 but she did not want to proceed with criminal charges as it would be too difficult for her and would aggravate mental health issues. Charges were not laid until October of 2021.
[15] Mr. D’Orazio provided a police statement and insisted that A.S. told him that she was 16 and that nothing sexual happened until after she was 16. These claims were not accurate.
Victim Impact
[16] The offences have had a significant impact on A.S.. She has been treated by health care professionals for the past few years to deal with the impact of Mr. D’Orazio’s actions. Letters from A.S.’s family physician, from her therapist and from her psychiatrist were filed at the sentencing hearing. A.S.’s psychiatrist diagnosed A.S. as follows:
I diagnosed her with Post-traumatic Stress Disorder (PTSD), Social Anxiety Disorder, Mixed Personality Disorder, probable Obsessive - Compulsive Disorder and Depressive Disorder. At this time, she continues to suffer from PTSD, Mixed Personality Disorder, Social Anxiety Disorder, and Depressive Disorder. The PTSD was diagnosed in reference to the trauma she was exposed to in the abusive relationship with the accused, who was emotionally, sexually, and physically abusive toward her, beginning at and since age 14. The mixed personality disorder, with features of borderline and avoidant personality disorder prominently, appears also to have developed largely as a consequence of the abusive relationship with the accused……..
… As a consequence of the traumatic relationship with the accused, A.S.’s emotional, psychological, social, intimate partner relationships and development have been significantly affected. She also experiences mental health and health symptoms on a daily basis, as a result of the ensuing disorders, which also interfere with her function. Overall, A.S. experiences severe and impairing dysfunction and disability on a day to day basis as a consequence of the actions of the accused, which are outlined below.
[17] The psychiatrist wrote that A.S. struggles to see herself as a worthy, competent, desirable person whom others would wish to be involved with in a friendship or intimate relationship. She has significant difficulties trusting others and developing healthy, consistent, relationships. She has difficulty interacting with roommates and has few friends. She has trouble sleeping, eating and has low energy and high anxiety.
[18] A.S. provided a victim impact statement. She described meeting Mr. D’Orazio online and how he made her feel special. She described how devastated she was when her mother found out about their relationship and ended any contact. She described how happy she was when he reached out to her again. She described their first sexual encounter and his change in attitude towards her afterwards.
[19] A.S. described her pain in her victim impact statement:
After years of regular therapy sessions, I finally started to see our relationship for what it truly was: a twisted game of cat and mouse−only I was portrayed as the instigator.
When I made attempts to separate myself from him, he didn’t let me; whether it was directly or indirectly. It then came to the point where there was no escape; he was everywhere and nowhere. I just wanted to be left alone.
Throughout this time, I watched him achieve milestones such as becoming a Godfather, fiancé, husband and now brother in-law; while my life has perished due to the psychological, emotional, and sexual abuse I have endured. What is worse, is that I had to suffer in complete silence.
I used to think that the conclusion of this trial would bring me comfort, but I was wrong. During my first lecture of the term, my professor asked the class to discuss appropriate responses to sexual violence among youth. When students started to share their opinions, my body began to tremble and my eyes filled with tears−I was having a panic attack. As my symptoms began to worsen, I ran to the student wellness centre for mental health support. By that time, I was hysterical; the only words that came out of my mouth were “I didn’t know, I didn’t know.”
Finally, I would like to end my statement with a quote by Clarence Darrow: “There is no such thing as justice−in or out of the courtroom.”
Circumstances of the offender
[20] The defence filed a psychiatric assessment which included a thorough review of Mr. D’Orazio’s background and the circumstances of the offence. Dr. Wang, who conducted the assessment found that Mr. D’Orazio was a low risk to re-offend sexually or violently.
[21] Mr. D’Orazio has two younger sisters. He described a positive upbringing and a good relationship with his parents. The family was financially stable. Mr. D’Orazio lived with his parents until 2020. Mr. D’Orazio got married in 2021.
[22] Mr. D’Orazio graduated from high school and completed a diploma in HVAC at Humber College. Mr. D’Orazio’s parents have a family HVAC business. After graduating, Mr. D’Orazio worked in the family business and he started a small online business making and selling clothes. Mr. D’Orazio had a lump in his thyroid removed in February 2020 and it was found to be thyroid cancer. He had another surgery to remove the remainder of his thyroid.
[23] Dr. Wang’s report references witness statements and the synopsis. The Crown and defence agree, and I concur, that with respect to the circumstances of the offence, I am bound by what is set out in the agreed statement of facts. Dr. Wang reviewed the offences with Mr. D’Orazio. He wrote:
It was explained to Mr. D’Orazio that the messages exchanged between A.S. and himself clearly indicated that he was aware of her being 15 years old when they first began communicating. He could not recall the specific contents of the messages they exchanged, as there were many, and he could not specifically recall having learned that she was 15 years old. However, he did not deny or dispute the accuracy of the record and stated he would accept responsibility for his actions, as he recognized that communication of a sexual nature with an individual below the age of 16 was inappropriate and he simply could not explain his actions at that time. As best as he could recall, he believed that he was of the impression that she would have turned 16 years old by the time of their first meeting. Again, when confronted with messages that were exchanged at the time that clearly suggested otherwise, he had no specific recollection of this. Nonetheless, he did not deny meeting with her and accepted that, if the record suggested that he was aware of her age, he must have known her true age and decided to meet with her regardless. He could not explain why he decided to do so, as he could not recall his thought process at the time in question.
[24] Dr. Wang performed a number of risk assessment tools on Mr. D’Orazio. Dr. Wang concluded:
There is no evidence of a major mental illness, personality disorder, paraphilic disorder, or significant psychopathic traits. The clinical risk assessment does not reveal any significant historical risk factors (i.e. history of violence, history of traumatic experiences, or history with problems with relationships) that would be relevant to this case. Although his recollection of the details surrounding the alleged offences, particularly in relation to his communication with A.S. and his understanding of her age at the time, does not entirely align with the established record, this has limited bearing on the overall assessment of his risk. It is clear that he demonstrated poor judgement at the time, but his actions did not appear motivated by pedophilic, antisocial, or psychopathic tendencies. He is a pro-social individual, without any evident violent attitudes. The estimation of his risk generated by the actuarial tools (SORAG and Static- 99R) is influenced by his relatively young age at the time of the alleged offences, which is risk-enhancing. However, in concert with the overall clinical risk assessment, I would conclude that Mr. D’Orazio is at low risk for sexual recidivism and general violent recidivism.
Letters of support
[25] The defence filed 16 letters of support from friends, coworkers, neighbors, and family members. They uniformly describe Mr. D’Orazio as a person of good character. He is described as caring, kind, generous, honourable, a hard worker and a role model. For example:
From all my experiences and interactions with him, Donato has always displayed nothing short of honorable characteristics and integrity. I can confidently say he is one of the most caring, honest, and responsible people I know, with a loyalty that is unmatched.
Donato is an extreme asset to our company. He is reliable, trustworthy, and responsible to get the job done to the highest standards taking great pride in his work. He has built a great working relationship with our long time customers and contractors alike through the years.
My brother is a thoughtful, caring, and loving person. He displays this each and every day as a brother, husband, son, cousin, and friend to many.
[26] Mr. D’Orazio’s uncle wrote that Mr. D’Orazio would donate toys at Christmas to the more needy and that he would donate clothing from his business. Mr. D’Orazio’s wife wrote:
During our years together, Donato has shown me many wonderful qualities that he brings to the world and to our relationship. He has a charismatic, outgoing personality, has the biggest heart and is always willing to help everyone and anyone whenever in need. He has embodied everything that a man should be. He has shown me and my family his love and respect over the years and has been an amazing uncle to my nephews who absolutely adore him. They look up to him as like an older brother and always have fun when he is around.
Aggravating and Mitigating Factors
[27] The following are the aggravating factors:
a) The offences took place over an extended period of time;
b) The offences involve elements of grooming and planning;
c) The sexual activity involved sexual intercourse;
d) Mr. D’Orazio continued to reach out to the victim even after her mother warned him to stay away and that she was 14; and
e) The offences have had a devastating affect on the victim and caused significant psychological harm.
[28] The following are the mitigating factors:
a) Mr. D’Orazio has pleaded guilty thereby saving the victim the trauma of having to testify;
b) Mr. D’Orazio has no criminal record nor is there any evidence of any other anti-social behaviour;
c) Mr. D’Orazio is a low risk to re-offend;
d) Mr. D’Orazio is a cancer survivor; and
e) Mr. D’Orazio has the support of his family and friends.
Law and Analysis
[29] Section 718 of the Criminal Code describes the purpose of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. to deter the offender and other persons from committing offences;
c. to separate offenders from society, where necessary;
d. to assist in rehabilitating offenders;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[30] Section 718.01 of the Criminal Code states that when dealing with offences against children a court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Section 718.2 of the Criminal Code specifies that the following factors are deemed to be aggravating factors:
• evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
• evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
[31] “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender – this is the fundamental principle of sentencing.”; R. v. T.J., 2021 ONCA 392 at para. 19, s. 718.1 of the Criminal Code.
[32] The parity principle, which is required now by s. 718.2(b) of the Criminal Code requires that similar offenders who commit similar offences in similar circumstances be given similar sentences. Past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by ACJO Fairburn in R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230 at para. 71:
The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are "historical portraits" that provide insight into the operative precedents of the day, but they are not "straitjackets" and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, it is not unusual "for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change": R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.
[33] This case involves the sexual abuse of a minor and the use of the internet to lure that minor. The Supreme Court of Canada in Friesen and Bertrand Marchand provided direction to the courts on the appropriate principles that should be considered in sentencing those convicted of such offences. The appropriate principles are as follows:
A) Denunciation and Deterrence
[34] Sentencing in these cases must emphasize the principles of denunciation and deterrence. Zarnett J.A. explained these terms in R.v. T.J., 2021 ONCA 392 at para. 26 as follows:
A sentence expresses denunciation by condemning “the offender for encroaching on our society’s basic code of values”; it expresses deterrence by “discouraging the offender and others from engaging in criminal conduct”. Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis, at para. 55.
[35] And as stated by the Court of Appeal in R.v. M.M., 2022 ONCA 441, at para. 15:
The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.
[36] A court must still consider other sentencing objectives such as rehabilitation but it cannot be given equal or greater priority than denunciation and deterrence. As explained by Zarnett J.A. in T.J. at para. 27:
The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence”. These other objectives may be given significant weight, but not priority or equivalency: Lis, at paras. 47-48, 53; Friesen, at paras. 101-4.
B) The harm caused by sexual violence
[37] Sexual violence against children invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. A child should be able to grow and develop free from sexual interference and exploitation by adults. Sentences must fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.
[38] Harm includes not just physical harm, but the often more pervasive and permanent emotional and psychological harm caused by sexual violence. A court must consider the harm caused and the reasonably foreseeable harm that could result. As stated in Friesen at para. 84:
As a result, courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence. Even if an offender commits a crime that fortunately results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence (A. Manson, The Law of Sentencing (2001), at p. 90). When they analyze the gravity of the offence, sentencing judges thus must always take into account forms of potential harm that have yet to materialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize later in childhood or in adulthood. To do otherwise would falsely imply that a child simply outgrows the harm of sexual violence.
C) High degree of moral responsibility
[39] An offender who sexually abuses a child has a high degree of moral responsibility because, except in the rarest of cases, the offender will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child.
D) The offence of luring is a distinct wrongful act that can cause distinct harm
[40] Children are vulnerable to online manipulation. The luring offence is designed to help keep children safe. As expressed in Bertrand Marchand at para. 7:
The online world and digital communications between adults and children warrant special regulation because children are particularly vulnerable to manipulation in online settings (R. v. Rayo, 2018 QCCA 824, at para. 141, per Kasirer J.A.). The internet has infinitely expanded the opportunity for offenders to attract or ensnare children and the enactment of a distinct crime protects them from the possibility of sexual exploitation facilitated by the internet (R. v. Reynard, 2015 BCCA 455, 378 B.C.A.C. 293, at para. 19). The luring offence helps keep children safe in a virtual environment and was intended to meet “the very specific danger posed by certain kinds of communications via computer systems” (R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 36, per Doherty J.A.).
[41] And at para. 34:
Sexual offences against children are crimes that wrongfully exploit children’s vulnerability (Friesen, at para. 5). In committing the offence of luring, the adult takes advantage of the child’s weaker position and lack of experience and by doing so repudiates the fundamental value of protecting children (para. 65; R. v. Melrose, 2021 ABQB 73, [2021] 8 W.W.R. 467, at para. 54). Children are particularly exposed and helpless online: the internet allows offenders direct, sometimes anonymous, and often secret or unsupervised access to children, frequently in the privacy and safety of their own homes (R. v. Folino (2005), 2005 40543 (ON CA), 77 O.R. (3d) 641 (C.A.), at para. 25; R. v. Symes, [2005] O.J. No. 6041 (QL), at para. 29; R. v. Paradee, 2013 ABCA 41, 542 A.R. 222, at para. 12). In these online fora, there is often very little that can be done to shield children from the inherent power imbalance present in luring (R. v. Sutherland, 2019 NWTSC 48, [2020] 3 W.W.R. 771, at para. 50; Hajar, at para. 279). Luring wrongfully takes advantage of this unsupervised access to children and “wrongfully exploits children’s vulnerabilities” (R. v. Wall, 2023 ABPC 3, at para. 42).
[42] Committing the offence of luring is a separate highly morally blameworthy offence against a child as the offender manipulates the child to satisfy their sexual urges; Bertrand Marchand at para. 35.
[43] Child luring can also cause distinct psychological and developmental harm as it allows “for abusers to get into the victim’s head and abuse remotely” and for “manipulation and control over time” which can lead to serious and lasting psychological consequences (Rafiq, at para. 44).”; Bertrand Marchand at para. 38. In addition, online offenders can control the victim and manipulate them into engaging with the abuse. “Victims of luring often feel that they actively participated in their own abuse, which may increase self-blame, internalization and shame. This worsens the psychological harm”; Bertrand Marchand at para. 39
E) Consecutive sentences
[44] Sentences imposed for luring should be imposed consecutively to recognize that the offence protects a separate interest. As stated by the Supreme Court of Canada in Bertrand Marchand at para. 98:
This is not to say that luring must always be sentenced consecutively. Unless so mandated by s. 718.3(7), sentencing judges retain discretion on this point. However, in exercising their discretion, judges must remain cognizant of the fact that the offence of luring constitutes an invasion of a different legally protected interest. The judge is obliged to explain why the sentence is to be served concurrently with the penalties imposed for other infractions. The reason for imposing a concurrent sentence must be provided. I also note that judges must be mindful not to double count: where a judge orders that a sentence for luring be served consecutively to any sentence for a secondary offence, the secondary offence cannot act as an aggravating factor in determining the luring sentence.
[45] While a judge shall determine what the appropriate sentence is for each offence, the trial judge must ensure that the total sentence imposed is fit and appropriate; s. 718.2(a) of the Criminal Code, Bertrand Marchand at para. 91.
F) Significant Factors to determine a fit sentence
[46] The Supreme Court of Canada in Friesen provided additional guidance and listed the following significant factors that a court should consider in sentencing an accused for sexual abuse of a child:
• The likelihood of re-offending;
• The abuse of a position of trust or authority;
• The duration and frequency of the abuse;
• The age of the victim;
• The degree of physical interference;
[47] The Supreme Court of Canada in Bertrand Marchand noted the following aggravating factors for internet luring:
• The presence of any grooming
• The character of the communication (including the duration, frequency and language used)
• The presence of deceit
• The abuse of a position or relationship of trust
• The age of the victim
Applying the legal principles to this case
[48] The defence submits that a conditional sentence or a reformatory sentence is appropriate given that Mr. D’Orazio pleaded guilty, is a first time offender, otherwise of good character and who is, based on the expert evidence filed, a low risk to re-offend. The Crown submits that despite the guilty plea a sentence of five years is appropriate given the extensive nature of the sexual activity, the length and duration of the luring, the grooming nature of the luring and the devastating impact on the victim.
[49] A conditional sentence is only available if the imposition of a sentence of less than two years is fit. If a penitentiary sentence is warranted than a conditional sentence cannot be imposed; R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, R. v. Basque, 2023 SCC 18.R. v. Johnston, 2023 ONCA 808 at para. 6.
[50] Counsel for Mr. D’Orazio has provided a very helpful chart in support of the defence request for a reformatory sentence and/or a conditional sentence. I have read the cases set out in the chart and I will comment later about the appropriateness of a conditional sentence but, as stated, the threshold issue is whether a non-penitentiary sentence is warranted.
[51] There are a number of mitigating factors. Mr. D’Orazio was himself a young adult at the time he met the victim. He was 25. He has no history of any anti-social behaviour or criminal record. He has a kind, caring family, who supports him. He has a job, he is married and the psychiatric evidence, which I do accept, shows that he is a low risk to re-offend. He has also pleaded guilty and in doing so, he has saved the victim from testifying and going through what would have been for her, a very difficult process.
[52] These are all mitigating factors that must be considered in imposing sentence. However, one cannot forget that Mr. D’Orazio has committed two very serious offences with devastating results. What Mr. D’Orazio did can only be viewed as a nightmare to any parent with a teenager. The internet provided Mr. D’Orazio with unlimited private access to the victim and he abused that access. He used that access to groom her first with sexual banter, then with the exchange of nude pictures, then with clandestine meetings to have illegal sexual intercourse, first in a motel and then in the parking lot. He engaged in illegal sexual intercourse with the victim even after he was warned off by her mother. The victim’s mother’s warnings were no match for the lure of Mr. D’Orazio. Mr. D’Orazio was 10 years older than the victim, who was 14 turning 15; a teenager. As stated by the Supreme Court of Canada in Friesen at para. 153:
Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality. As Feldman J.A. wrote in P.M., to exploit young teenagers during this period by leading them to believe that they are in a love relationship with an adult "reveals a level of amorality that is of great concern" (para. 19).
[53] The results of Mr. D’Orazio’s actions were devastating to the victim. The Supreme Court of Canada has described the harm that one often sees in cases of sexual abuse. The harm that one can expect to see can actually be seen in this case. The victim has been diagnosed with post-traumatic stress disorder, social anxiety disorder, mixed personality disorder, probable obsessive-compulsive disorder and depressive disorder. These conditions affect her daily experiences. Put another way, the victim’s life is very difficult. She has felt shame and self-loathing and blamed herself for Mr. D’Orazio’s actions even though the blame is his alone.
[54] In my view, despite the mitigating factors, having regard to the fact that the sexual activity in question involved two acts of intercourse and the devastating impact on the victim, a sentence of three years is appropriate. Had Mr. D’Orazio not pleaded guilty the sentence would have been substantially more.
[55] With respect to the count of luring, the mitigating factors that I set out above clearly still apply. However, there are a number of aggravating factors. The duration, frequency and the nature of the communications are aggravating. Over an extended period of time, there were 35,000 digital messages between the two of them. Mr. D’Orazio, as mentioned, used this time to groom the victim, and ultimately to coach her on how they could meet to engage in sexual activity. The ten-year gap between the two of them increases the power imbalance and increases Mr. D’Orazio’s moral blameworthiness; Bertrand Marchand at para.87. In my view, having regard to all the aggravating and mitigating factors, a sentence of 18 months is appropriate. To properly reflect the principles set out in Bertrand Marchand, the luring sentence should be served consecutively to the sexual interference offence to reflect the separate harm caused by the luring offence.
[56] I must still consider whether the total sentence of four and a half years is fit and appropriate. In my view, reducing the sentrence by 6 months to 4 years is necessary to fully reflect the mitigating factors, espcially his plea, which again, saved the victim from testifying, which would have been devastating. I appreciate that 4 years is still a significant sentence for a first time offender who is a low risk to re-offend, however, such a sentence is necessary to properly denounce Mr. D’Orazio’s conduct and deter others from following along the same path and to prevent another life from being damaged, like the victim’s.
[57] Given that a penitentiary sentence is imposed, a conditional sentence is not an available option. I would simply note that the cases relied upon by the defence in support of their request (R. v. S.E., 2023 ONSC 6259, R. v. P.S., 2021 ONSC 5091, R. v. G., 2021 ONSC 8270) involve cases where the offences took place many years earlier. In R. v. S.E, the offences took place between 1994-1996, In R. v. P.S., the offences took place in 1988 and in R. v. G., the offences took place in the late 1980s and early 1990s, and was the result of a joint submission. Given the inherent differences in sentencing when dealing with a current offence and a historical offence that occurred over 30 years earlier, I did not find these cases to be of assistance. The Court of Appeal has clearly stated that the imposition of a conditional sentence involving the sexual abuse of a child would rarely be appropriate. As stated by the Court of Appeal in M.M. at para. 16:
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so.
Ancillary orders
[58] The Crown seeks the following ancillary orders:
a) A DNA order;
b) A section 109(1)(a) weapons prohibition order;
c) A section 743.21 order with respect to A.S. and her mother M.S.;
d) A 20 year SOIRA order.
[59] The defence does not oppose these orders and they will be granted.
[60] The Crown seeks various orders under s. 161 of the Criminal Code for 10 years with the following prohibitions:
a) An order that Mr. D’Orazio be prohibited from “attending a public park or public swimming pool 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” (s.161(a));
b) An order that Mr. D’Orazio be prohibited from attending within two kilometres of the victim’s residence or any place where she is known to be (s.161(a.1));
c) An order that Mr. D’Orazio be prohibited from seeking employment or volunteer positions involving positions of trust towards persons under 16 years old (s.161(b)); and
d) An order that Mr. D’Orazio be prohibited from communicating with any persons under the age of 16, unless under the supervision of a person whom the court considers appropriate (s.161(c)).
[61] The defence does not oppose an order under s.161(a.1) (b) or (c). The defence does oppose an order under s.161(a). Before such a term is imposed, a court needs an evidentiary basis upon which to conclude that the particular offender poses a serious risk to young children and that the terms of the order are a reasonable attempt to minimize it. As stated by the Court of Appeal decision in R. v. Schulz, 2018 ONCA 598, leave to appeal denied 2020 27703 (SCC), at para. 41:
The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. J. (K.R.), 2016 SCC 31, [2016] 1 S.C.R. 906 (S.C.C.), at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and the content of the order must respond carefully to an offender's specific circumstances: J. (K.R.), at paras. 48-49.
[62] I agree with the defence that given the circumstances of this case, there is not the requisite evidentiary basis to restrict Mr. D’Orazio’s attendance at parks or at the other designated areas set out in s.161(a).
[63] I will make an order under s.161(a.1) (b) and (c) but with respect to s.161(c) I will allow an exception for family members.
Request for a restitution order
[64] The Crown seeks a $10,000 restitution order to pay for one year of therapy for the victim. The defence opposes the request.
[65] Section 738(1)(b) states:
738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable.
[66] There is no dispute that the victim is undergoing treatment. There is also no real dispute that she will have to undergo such treatment in the foreseeable future. The Crown relies on the letter filed by Dr. Munn that addresses the cost of such treatment. Dr. Munn wrote that the victim would, “benefit potentially from Cognitive Processing Therapy, Dialectical Behavior Therapy, Eye-Movement Desensitization and Reprogramming (EMDR), and possibly other therapies. Therapy of this type and intensity requires private pay, typically at a rate of $175-225 per hour with psychologists and highly trained counsellors, which she cannot afford.” Dr. Munn indicated that the victim would likely have to undergo therapy weekly for 3-5 years. Therfore, a $10,000 restitution order would cover roughly a year of therapy for the victim.
[67] The Crown submits that Mr. D’Orazio has the ability to pay the order. The defence submits that a term of imprisonment would result in Mr. D’Orazio’s family losing their house. Furthermore, the defence points out that it is Mr. D’Orazio’s family not Mr. D’Orazio who owns the HVAC company. I have sentenced Mr. D’Orazio to four years in jail. Clearly he will not be able to work during that time.
[68] Per s. 739.1 of the Criminal Code, restitution orders can be made irrespective of the offender’s ability to pay. However, the imposition of a restitution order should not undermine an offender’s prospects for rehabilitation. The Ontario Court of Appeal explained in R. v. Robertson, 2020 ONCA 367, at paras. 7-8:
An order for compensation should be made with restraint and caution: Devgan, at para. 26, citing The Queen v. Zelensky, 1978 8 (SCC), [1978] 2 S.C.R. 940.
While the offender’s ability to make restitution is not a precondition to the making of a restitution order, it is an important factor that must be considered before a restitution order is imposed. A restitution order made by a sentencing judge survives any bankruptcy of the offender: Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 178(1)(a). This means it is there for life. A restitution order is not intended to undermine the offender’s prospects for rehabilitation. This is why courts must consider ability to pay before imposing such an order: Castro, at paras. 26-27; R. v. Popert, 2010 ONCA 89, 251 C.C.C. (3d) 30, at para. 40, citing R. v. Biegus (1999), 1999 3815 (ON CA), 141 C.C.C. (3d) 245 (Ont. C.A.), at para. 15. It is not enough for the sentencing judge to merely refer to or be aware of an offender’s inability to pay. The sentencing judge must weigh and consider this: Biegus, at para. 22. [Emphasis added].
[69] In this case, I find that the victim’s future therapy costs is readily ascertainable. The amount requested will cover only a year of such costs but the reality is that she will need therapy for much longer, based on the materials that have been filed. I agree that Mr. D’Orazio will be unable to pay for such costs in the short term as he will be in custody. I see no reason though that he would not be able to pay restitution costs after he is released from jail. I expect that Mr. D’Orazio, once released, will be able to resume working in the family business. I do not believe that the requested restitution order will interfere with his rehabilitation or make the total sentence imposed unfit and it will certainly assist A.S, in paying for her recovery.
[70] Pursuant to s. 738(1)(b) of the Criminal Code, Mr. D’Orazio shall be the subject of a restitution order in favour of A.S. in the amount of $10,000, to be paid by February 8, 2028, which shall give Mr. D’Orazio time to pay after he is released from custody (assuming he is released on parole after serving a third or two thirds of his sentence); R v. J.P., 2018 ONSC 7841 at para. 56.
Conclusion
[71] Mr. D’Orazio you are sentenced as follows:
A) Count 2: Three years, plus a DNA order, a 20-year SOIRA order, a s.109 order for 10 years, a s.743.21 order and a s.161 order pursuant to s.(a.1)(b) and (c). There will also be a $10,000 restitution order payable by February 8, 2028;
B) Count 4: One year consecutive.
The Honourable Justice H. Leibovich
Date Released: February 8, 2024
[1] The mandatory minimum had been struck down by other superior court decisions but had not been decided at that time by a higher court. The mandatory minimum for sexual interference was struck down by the Court of Appeal in R. v. B.J.T, 2019 ONCA 694.