Publication Restriction Notice

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.

Reasons for Decision on Sentence

Overview

[1] Norman Ellis pleaded guilty to one count of sexual exploitation contrary to s. 153(1)(b) of the Criminal Code (the “Code”). He is before me now for sentencing.

[2] The parties agree that a sentence of imprisonment is called for in the circumstances of the case. The central issue is whether it can be served in the community or must be served in a custodial facility. The Crown seeks a sentence of five years, to be served in a penitentiary. The defence seeks a sentence of less than two years, to be served in the community.

[3] To arrive at an appropriate sentence, I must consider the circumstances surrounding the offence, those of the offender and the victim, and the relevant principles of sentencing.

The Offence

[4] The offender and his wife own and operate an equestrian business. The victim had been a student there from the time she was 10 or 11 years old.

[5] In the summer of 2021, when the victim was 16 years old, she was not getting along with her parents. As a result, the offender and his wife took the victim in. They gave her a bedroom in the basement of their residence. They provided her with food. They also provided her horse with lodging. In exchange, the victim was required to help with daily chores around the farm.

[6] Soon after the victim moved into the offender’s home, he began offering her alcoholic beverages and money. On one occasion in July 2021, the victim consumed four coolers and became intoxicated. The offender told the victim that he loved her and sexually desired her. He kissed her for about 20 seconds. He stopped when he noticed that she was not kissing him back and said something about it. The victim agreed and retreated to her bedroom.

[7] In the following weeks, the offender began to touch the victim sexually. In one such incident, the offender and the victim were alone at the residence. The offender told the victim that he wanted to lay naked with her in bed. He undressed himself and then undressed the victim. He then performed oral sex on the victim while she was seated at the end of the bed. The incident ended when the offender told the victim to get dressed and to carry on with her duties for the rest of the day.

[8] On another occasion, the offender asked the victim to join him on his weekly trip to the garbage dump. At some point during the trip, the offender stopped his truck on a secluded gravel road and came around to the passenger side. He told the victim that he “just couldn’t wait any longer”. He pulled her pants and underwear down and performed oral sex on her while she was seated in the truck.

[9] A few days later, the victim texted the offender, asking him to end the relationship. Initially, he agreed. However, a few days later, he approached the victim and told her that he could not end the relationship because he was in love with her. He brought the victim to his bedroom. He removed her pants and underwear and lifted her onto the bed. He then performed oral sex on the victim for five-to-ten minutes. He then told the victim to perform oral sex on him, which she did briefly.

[10] The incident escalated when the offender told the victim he wanted to try having sex with her. After applying lubricant to himself, the offender inserted his penis into the victim’s vagina. However, he told the victim that he could not continue due to erectile dysfunction and the incident ended. The offender told the victim not to tell anyone about it.

[11] On August 24, 2021, the victim tried again to stop the relationship by messaging the offender. He responded by asking her what her next move was going to be. He later asked her if she was going to go to the police or if they could just carry on as friends. He threatened to kill himself if the police showed up.

[12] On September 3, 2021, while the victim was in Ottawa at a horse show, she disclosed the sexual exploitation she had experienced to an adult and the police were contacted, leading to the charge against the offender for which he is now being sentenced.

The Offender

[13] The offender is now 66 years old. He has lived in the Powassan area all of his life.

[14] He has no criminal record other than the one resulting from this offence. He was well-provided for by his parents in a close-knit family when he was growing up, although he feels that the degree to which religion played a role in his formative years had a negative impact on his relationships with people his own age.

[15] Mr. Ellis completed high school but preferred the work world to the academic one. He began working in the retail sector and became a district manager responsible for 14 stores before he was let go without cause after 16 years with the same employer. He started his own retail store and operated that for a period of 11 more years before starting the equine business with his wife.

[16] Their marriage is the offender’s second. He has two adult children from his first marriage. He and his current wife have two children from their relationship. This offence has had a negative impact on the offender’s relationship with his family. He is no longer invited to family functions, one of the sons from his first marriage no longer talks to him, and he is not allowed to see his grandchild. I was also told that the offender’s relationship with his present wife was ending at the time of the sentencing hearing.

[17] This offence has also had a negative impact on the couple’s equestrian business, which is struggling financially.

[18] Mr. Ellis suffers from some health issues. I was given a list of the medications he is on by his counsel. It is long. However, without some additional evidence, the names of the medication taken by the offender are not enough to tell me what they are for. I do accept counsel’s submission that the offender suffers from a heart condition, mental health issues, and erectile dysfunction.

[19] The one, and probably the only, positive thing resulting from the offence is that the offender has stopped drinking. By all accounts, including that of the offender’s wife, friends, and the victim herself, the offender had a serious drinking problem prior to being charged. He was drinking daily, sometimes as many as a dozen beer a day. The offender maintains that alcohol played a role in the offence and, given the evidence, I am prepared to accept that.

[20] However, the offender does not blame only alcohol for what happened. He also blames the victim. I will come back to this when I address the aggravating and mitigating circumstances affecting sentence.

The Positions of the Parties

[21] As I stated earlier, the Crown seeks a carceral sentence of five years, together with certain ancillary orders, none of which are in issue. It submits that the need for denunciation and deterrence of sexual offences against children and the moral blameworthiness of such offences requires that the offender be incarcerated in the circumstances of this case.

[22] The offender submits that the appropriate sentence is one of less than two years imprisonment, thereby allowing the court to impose a conditional sentence and a lengthy period of probation that can equal the length of the carceral sentence sought by the Crown. On his client's behalf, counsel highlights that the victim consented to the sexual contact that occurred with the offender. I will return to this submission, as well.

The Relevant Legal Principles

Fundamental Purpose of Sentencing

[23] Before I address counsel’s submissions, I will briefly discuss the law of sentencing.

[24] The fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society: Code, s. 718.1.

[25] Section 718 of the Code sets out a number of objectives to be achieved in fulfilling the fundamental purpose of sentencing. They include denunciation of the unlawful conduct and the harm caused by it, deterrence of the particular offender and others, and the rehabilitation of offenders.

[26] In the case of offences such as this one that involve the abuse of a child under the age of eighteen years, s. 718.01 of the Code requires the court to give primary consideration to the objectives of denunciation and deterrence of such conduct. A sentence expresses denunciation by condemning the offender for encroaching on our society's basic code of values and expresses deterrence by discouraging the offender and others from engaging in criminal conduct: R. v. T.J., 2021 ONCA 392, at para. 26.

Fundamental Principle of Sentencing

[27] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Code, s. 718.1.

[28] In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada explained in detail the gravity of sexual offences committed against children. As the court explained, violence is inherent in the act of applying force of a sexual nature to a child: Friesen, at para. 77, citing R. c. M. (L.), 2008 SCC 31, at para. 26. The wrongfulness of sexual violence against a child derives from the interference with the child's security of the person and the bodily integrity which “lies at the core of human dignity and autonomy”: R. v. Ewanchuk, at para. 28. As the court also explained in Friesen, the harm can take many forms, including low self-esteem, inability to form emotional attachments, and self-destructive behaviour: Friesen, at para. 80, citing R. v. D. (D.), at para. 10.

[29] Offences of sexual violence against children involve a high degree of moral blameworthiness on the part of the offender because children are so vulnerable and because the offender is or ought to be aware that such action can profoundly harm the child: Friesen, at paras. 88 and 90.

Aggravating and Mitigating Factors

[30] Section 718.2 of the Code requires that a sentence be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender. The section lists a number of circumstances that are presumptively aggravating. Three of those listed circumstances are relevant in this case: (1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (2) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, and (3) evidence that the offence had a significant impact on the victim, considering her age and other personal characteristics: Code, s. 718.2(a)(ii.1)(iii), and (iii.1).

[31] Under the Code, the burden of proving the existence of an aggravating circumstance falls upon the Crown, who must prove the existence of such a circumstance beyond a reasonable doubt: Code, s. 724(3)(e).

[32] Before I get to the aggravating and mitigating circumstances of this case, I would like to address one more area of the law, namely, the availability of conditional sentences for sexual offences committed against children.

The Availability of a Conditional Sentence

[33] Mr. Primeau urges me to impose a conditional sentence of up to two years, under strict house arrest, to be followed by a three-year period of probation. Since the decision of the Ontario Court of Appeal in R. v. Basso, 2024 ONCA 168, conditional sentences have been available for sexual offences committed against children. However, there are two reasons why such a sentence is not available in this case.

[34] The first is that a conditional sentence can only be imposed where the appropriate sentence for an offence is less than two years imprisonment: Code, s. 742.1. That is certainly not the case here. In my view, the appropriate sentence in a case like this is in the range of five-to-seven years.

[35] One need look no further than the Supreme Court's decision in Friesen to determine the appropriate range of sentence. In Friesen, the Supreme Court held that while the appropriate length of sentences for sexual offences committed against children and the setting of sentencing ranges or starting points is a matter best left to provincial appellate courts, mid-single digit penitentiary terms for sexual offences are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances: Friesen, at paras. 106 and 114.

[36] It is true that the victim in this case was not a child at the time of the offences because she was 16 years of age. However, the Supreme Court in Friesen stated specifically that the principles of sentencing set out therein apply to the offence of sexual exploitation, which necessarily involves persons 16 years of age or more but under the age of 18 years: Friesen, at para. 44; Code, s. 153(2).

[37] Moreover, even where a sexual offence has been committed against an adult involving penetration, as occurred here, a sentence of at least three years imprisonment is the starting point: R. v. A.J.K., 2022 ONCA 487, at para. 77. All other things being equal, where the victim is under the age of 18 years, that sentence can only go up: Criminal Code, s. 718.2(a)(ii.1); Friesen, at para. 90.

[38] Even if the appropriate range of sentence in this case permitted the imposition of a conditional sentence, I would not impose one. The Court of Appeal has stated on more than one occasion that such sentences will only rarely be appropriate in cases involving child sexual abuse, and only in exceptional circumstances: see R. v. M.M., 2022 ONCA 441, at para. 16; R. v. B.M., 2023 ONCA 224, at para. 2. There are no such exceptional circumstances in this case.

[39] Mr. Primeau submits that a carceral sentence would have a negative impact on his client’s health. That has not been established. As I said earlier, the long list of medications tells me nothing about the underlying medical issues. And there is no evidence that Mr. Ellis cannot obtain all of those medications while incarcerated.

[40] Mr. Primeau also asks me to consider the negative financial impact that a carceral sentence will have on the equestrian operation. I do have some sympathy for Mr. Ellis's spouse. However, as both trial and appellate courts have said repeatedly, the focus in sentencing an offender for sexually abusing a child must be on the harm caused to the victim and on the offender's conduct, not on the effect of the sentence on the offender, or even his spouse: T.J., at para. 37; R. v. Williams, 2023 ONSC 6127, at para. 66.

[41] For these reasons, I reject the submission that a conditional sentence should be imposed. Instead, I accept the Crown's submission that Mr. Ellis must serve a carceral sentence. I turn now to the question of how long that sentence should be.

The Principles Applied

[42] I will begin by examining the aggravating factors in this case and I will then examine those that mitigate the sentence.

Aggravating Factors

[43] As I mentioned earlier, there are three aggravating factors present in this case that are mentioned in s. 718.2 of the Code.

[44] The first is the age of the victim at the time of the offence. She was only 16 years old. The offender was in his 60s. In Friesen, the Supreme Court poignantly laid out the potential harm that sexual abuse of a young person can cause, and why. As the court explained, at para. 56, sexual violence against children can cause serious emotional and psychological harm that “may often be more pervasive and permanent in its effect than any physical harm”. The court explained why, at para. 58:

Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity... For this reason, even a single instance of sexual violence can “permanently alter the course of a child’s life”. [Citations omitted.]

[45] That is exactly what happened here. In her Victim Impact Statement, the victim eloquently articulated the profound effect this offence has had on her. As she wrote, the abuse she suffered changed “every aspect” of her life.

[46] Prior to the abuse, the victim loved going to the equestrian centre more than anything else. The offender and his family were like a second family to her. The horse barn became a safe place for her, where she could escape her stress and anxieties. However, that all suddenly changed. As she put it:

I never knew that such a safe and happy place could quickly become so awful. It happened after a single night with no warning.

[47] Following her disclosure of the abuse and the laying of charges against the offender, the victim was again victimized, this time by the offender's friends and associates in the equestrian world. In the months after, her name and reputation were tarnished. She lost all of her “horse world” friends and any chance she had of continuing in the sport.

[48] The abuse has continued to harm the victim. I cannot put it any better than she did:

I would like to say I have moved on, that my life turned out okay and this was just a bump on the road. I would like so very much to tell you that I turned out okay, but the reality is that this ruined me. I was raised in a good and hard-working family who supported me in everything, I was a straight "A" student heading to university, and I had big plans for my life. Until I couldn't concentrate in school because I was thinking about unwelcome hands on my body. Until I couldn't socialize like I used to because of the memories of my barn family turning against me. Until I couldn't regulate my relationships because everything I said to them felt like it would get me into trouble. Until the word “no” was taken out of my vocabulary when I needed it most.

[49] The third and final statutory aggravating factor is the fact that the offender abused a position of trust or authority over the victim.

[50] On behalf of the offender, Mr. Primeau submits that his client did not use his position of authority over the victim to commit the offences. On the basis of the admitted facts, I cannot accept that submission.

[51] The victim had known the offender since she was 10 or 11 years old. She was so close to the offender and his wife that they took her in when she was having issues with her parents. There is no evidence that they did this regularly or for anyone else. Both the victim and her parents trusted the offender to care for and protect the victim.

[52] The victim was also dependant on the offender and his wife for food and lodging. However, that does not mean that the offender was not also in a position of trust in relation to the victim. As one of the only two adults in the house, he most certainly was. As the court explained in Friesen, at para. 126, “any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence.”

[53] There are other aggravating factors in this case beyond those referred to in s. 718.2. One is the grooming of the victim in which the offender engaged: Williams, at para. 49; R. v. Green, 2022 ONSC 3786, at para. 43. He was supplying her with alcohol and offering her money before he began to abuse her.

[54] Another aggravating feature is the fact that the offender isolated the victim: Williams, at para. 51. He did this when he stopped his truck in the middle of nowhere and performed oral sex on her.

[55] Yet another is the offender's efforts to silence the victim: Williams, at para. 52. He did this while the abuse was occurring by telling the victim not to tell anyone and again when the victim tried to end the abuse when he threatened to kill himself if the police showed up.

[56] Perhaps the most aggravating non-statutory feature of the facts in this case is the degree of physical interference with the victim's bodily integrity. The court in Friesen acknowledged that the degree of physical interference is a recognized aggravating factor: Friesen, at para. 138. As I mentioned earlier, our Court of Appeal has held that forced penetration of any kind, whether it be oral, anal, or vaginal, increases the starting point of a sentence. In this case, the offender forced the victim to fellate him and penetrated her vagina with his penis.

[57] I turn now to the mitigating factors.

Mitigating Factors

[58] There are not many mitigating factors in this case.

[59] Among them is the fact that the offender has no criminal record. He has also been a contributing member of the community throughout his life.

[60] Probably the most important mitigating factor is the offender's plea of guilty. This plea spared the victim from having to undergo the ordeal of a trial.

[61] Mr. Primeau also relies upon the offender's self-imposed isolation since his arrest in 2021 and the fact that he was not able to attend horse shows due to the terms of his release as mitigating factors. I do not see these as overly mitigating. I have no idea exactly what restrictions the offender placed upon himself, as I might have had if his isolation had been imposed by the terms of a release order. I am also told by the Crown that the condition that the offender not attend horse shows was varied to allow him to do so, except for two such shows where the victim was expected to be.

[62] As I understand Mr. Primeau's submissions, the fact that the offender has stopped drinking and started helping more around the farm is also a mitigating factor in the sense that it shows the potential for rehabilitation. There are two problems with this submission.

[63] The first is that, in sentencing an offender for the sexual abuse of a child, rehabilitation takes a back seat to denunciation and deterrence by virtue of the Code: s. 718.01. The second is that, to have rehabilitative potential, the offender must accept responsibility for the offence: R. v. B.C., 2008 ONCA 486, at para. 57. The offender has not done that here.

[64] The offender told the author of the pre-sentence report that the victim “lured and seduced” him. He described her as “promiscuous” and “precocious”. During submissions, Mr. Primeau did not deny that his client had said these things but, rather, tried to explain them away by saying that the comments by the offender were spoken out of a sense of frustration. That is not sufficient in my view. The offender should not be feeling frustration. He should be feeling remorse. If he is frustrated, it shows that he still blames the victim.

[65] This leads me to the submission made by Mr. Primeau on behalf of the offender, that all of the offences were consensual, even though they were criminal. I cannot accept this submission, either.

[66] The offence of sexual exploitation is based on the premise that 16- and 17-year-olds cannot validly consent to having sexual contact with adults who are in positions of trust or upon whom they are dependant. As the Supreme Court made clear in Friesen, the fact that a victim has participated is not a mitigating factor: Friesen, at para. 149.

[67] Finally, I come to Mr. Primeau's submission that it is a mitigating factor that the offender did not threaten to take away the victim's room and board. This is not a mitigating factor. Had the offender done this, it would have been an aggravating factor. However, the absence of an aggravating factor is not a mitigating factor: Friesen, at para. 150.

Appropriate Sentence

[68] Having considered all of the sentencing purposes and principles mentioned earlier, and all of the circumstances surrounding the offence, the offender, and the victim, I agree with the Crown that the appropriate sentence in this case is five years imprisonment. Anything less than this would not express society’s condemnation of the offender’s behaviour, discourage others from behaving likewise, or address the harm that the offender has done to the victim.

[69] Had the offender been found guilty after a trial, I would have sentenced him to a term of imprisonment in the six-to-seven-year range in the circumstances of this case.

Ancillary Orders

[70] The following ancillary orders will also be made:

1. The offender shall provide a sample of his DNA under s. 487.051 of the Code.
2. He shall be registered under the Sex Offender Information Registration Act pursuant to s. 490.12 of the Code, for a period of 20 years.
3. He shall be prohibited from possessing any firearm, ammunition, or other thing mentioned in s. 109 of the Code for a period of 10 years.
4. And, finally, the offender shall be prohibited from communicating, directly or indirectly, with the victim during the duration of his sentence, pursuant to s. 743.21 of the Code.

Released: February 27, 2025