Ontario Superior Court of Justice

Court File No.: CR-22-13-00
Date: 2025-03-06

B E T W E E N:
His Majesty the King
Applicant, represented by O. Eskicioglu

• and -
  S.K.
  Respondent, represented by P. Lewandowski

Heard: August 26, 2024 by Zoom
Justice: T. J. Nieckarz

Reasons for Sentence

Overview

[1] S.K. faced twenty-five (25) charges related to three complainants. Those charges included assault, assault with a weapon, unlawful confinement, touching persons under the age of 16 years for a sexual purpose, sexual assault, and invitation to a person under 16 years to touch for a sexual purpose. Two of the complainants were the children of a former domestic partner, while the other was a biological child.

[2] The trial of this matter was heard virtually from August 15–28, 2023, and October 3, 2023. All three complainants and S.K. testified. My decision was delivered, in part, orally on March 27, 2024. A written decision was delivered April 10, 2024. The facts and the reasons are set out in greater detail in that decision, reported as R. v. S.K., 2024 ONSC 2114.

[3] The Accused was found not guilty of all charges on the indictment, save and except one charge of assault as against complainant H.J.P. S.K. was found guilty of this charge.

[4] The Crown and the Defence disagreed as to what constituted a fit and appropriate sentence.

[5] The Crown took the position that a fit and appropriate sentence given the circumstances of the offence and the offender is:

• a 3-month period of custody;
• probation for 18 months;
• non-communication order pursuant to s. 743.21 with respect to H.J.P.;
• DNA order under s. 487.051 for a secondary designated offence; and
• mandatory weapons and firearms prohibition order under s. 109 for life.

In addition, the Crown brought a separate application for a common law peace bond with respect to all three complainants, another biological child, and the mother of all four of the children, to be in effect for a period of 5 years.

[6] The Defence took the position that this is an appropriate case for a suspended sentence with 12 months of probation. The Defence denied that a common law peace bond is required and argued that the Crown failed to satisfy the test requiring there to be a reasonable fear on the part of the persons to be protected. The Defence denied that a peace bond is required in the circumstances.

[7] The Defence further denied that the weapons prohibition is a mandatory order under s. 109 of the Criminal Code. With the weapons prohibition being discretionary, it was argued there is no need for it. The offence of which S.K. was convicted did not involve a weapon, and S.K. is a sustenance hunter. If I disagree and find that the weapons prohibition is mandatory, then this adds an additional punitive aspect to the sentence that adds a specific and general deterrent effect, that makes the Defence’s proposed sentence even more appropriate.

[8] On November 22, 2024, I imposed a 3-month suspended sentence on S.K., a period of probation, and made an ancillary order, with reasons to follow. I was guided by the principles set out in the Criminal Code, and those set out in the case law that the courts have developed. These reasons will set out those principles and other factors I considered in arriving at the sentence imposed.

Facts

Circumstances of the Offence

[9] In determining a just and fit sentence, I must consider the circumstances of the offence that S.K. was convicted of. I must not consider the circumstances of the other offences with which he was charged, but not convicted.

[10] My findings with respect to the offence are found at paragraphs 77, 78, and 118(d)(ii) of my reasons for the verdict. Specifically, I found that S.K. delivered an open palm slap across the face when H.J.P. dropped and broke a bowl during breakfast. I found H.J.P.’s recollection of this incident to be credible and reliable. His recollection also involved S.K. grabbing him after H.J.P. ran from the room upon seeing S.K.’s face turn red. It happened approximately 10 to 14 years ago. I found that S.K.’s assault against H.J.P. was not reasonable disciplinary action within the meaning of s. 43 of the Criminal Code. While I made no specific findings at trial as to whether any discipline was warranted, I did find that the breaking of the bowl was accidental.

Circumstances of the Offender

[11] Sentencing is an individualized process. The circumstances of the offender are to be taken into consideration in determining a fit sentence.

[12] S.K. is a residential and general contractor. He is also a volunteer firefighter. He has re-partnered and is engaged to be married. He changed his previous employment to be able to spend more time with his current partner to support her through a cancer diagnosis. The Defence argued that S.K. has moved on from the toxic relationship he had with the complainants’ mother.

[13] S.K. has not had contact with any of the complainants, or their mother, since May 2021. He was charged in November 2021. The offence is said to have occurred between 2010–2014. While the Accused has a conviction for a prior domestic assault in 2009 (against the complainants’ mother), other than the charges associated with this proceeding, he has had no further involvement with the criminal justice system.

Victim Impact

[14] No victim impact statement was provided, although H.J.P. testified at trial as to the fear he felt after he broke the bowl and saw S.K.’s face turn red. He testified that he ran to get away from S.K., but S.K. followed him. He testified that he was disoriented from the slap and his face stung.

Sentencing Principles

[15] Section 718 of the Criminal Code sets out the following principles and objectives 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.

[16] Denouncing unlawful conduct, also known as the principle of denunciation, refers to public condemnation of the criminal behavior.

[17] The principle of deterrence reflects a message to be sent to the offender (specific deterrence), or to the community (general deterrence), that breaking the law by committing a crime of this nature will attract punishment and consequences. The hope is to deter the offender and others from further breaches of the law.

[18] When it comes to imposing a sentence for an offence that involves the abuse of a person under the age of 18 years, s. 718.01 of the Criminal Code directs the court to give primary consideration to the objectives of denunciation and deterrence of such conduct.

[19] Section 718.1 requires that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the harsher the sentence will be: R. v. Lacasse, 2015 SCC 64.

[20] Further sentencing principles that must guide the court are set out in s. 718.2 of the Criminal Code.

[21] Section 718.2(a) requires that a sentence be increased to account for any aggravating factors or reduced to account for any mitigating circumstances. Aggravating circumstances generally tend to make the offence more troubling while mitigating circumstances moderate the severity of the offence.

[22] Section 718.2(d) requires restraint in sentencing, acknowledging that sentences are not only intended to be punitive, but also remedial. Imprisonment should be the penal sanction of last resort, to be used only where no other sanction or combination of sanctions are appropriate to the offence and the offender.

Sentencing Principles for Offences Against Children

[23] In support of the sentence it seeks, the Crown has submitted cases that have adopted the principles set out in R. v. Friesen, 2020 SCC 9 (“Friesen”) to offences involving physical abuse against children.

[24] Friesen was a case about sexual offences against children. In Friesen, the Supreme Court sent a strong message that Courts must impose sentences that are proportional to the gravity of the offence committed against a child, the degree of the responsibility of the offender, and by the wrongfulness and harmfulness of sexual violence against children. While the Supreme Court engaged in a comprehensive review of the concerns with respect to the sexual abuse and exploitation of children, the primary theme of the case emphasized the need to protect children from harm by ensuring that the wrongfulness of the act is emphasized in sentencing. The Court referred to s. 718.01 of the Criminal Code, as signaling Parliament’s decision to prioritize denunciation and deterrence when it comes to abusive conduct against children. The Supreme Court delivered a clear message that sentences need to increase for sexual offences committed against children.

[25] In R. v. Marchand, 2023 SCC 26, para 123, the Supreme Court elaborated further by noting at para. 123:

[123] [Section 718.01 directs judges to give primary consideration to denunciation and deterrence when sentencing offences involving abuse against children. At the same time, judges do retain judicial discretion to weigh other relevant sentencing objectives in the circumstances. Courts must individualize the sentence by accounting for the gravity of the offence, the offender’s individual circumstances and the offender’s moral culpability…Even where Parliament has directed that the objectives of denunciation and deterrence are paramount at sentencing, judges must apply all the principles mandated by ss. 718.1 and 718.2 to craft a sentence that “furthers the overall objectives of sentencing” (Ipeelee, at para. 51). Deference to Parliament’s objectives is not unlimited, to ensure respect for human dignity, the door to rehabilitation must remain open…]

[26] In R. v. MAC, 2023 ABCA 234, a mother was convicted of multiple counts of assault, assault with a weapon, and assault by choking, suffocating, or strangling. The Crown appealed a sentence of 2 years’ imprisonment that was imposed by the trial judge and sought a sentence in the range of 4 to 5 years. The Alberta Court of Appeal allowed the appeal and substituted a sentence of 4 years. In doing so, the Court at para. 48 noted that in Friesen, “[t]he Supreme Court signalled that courts had not treated offences against children sufficiently seriously.” At para. 49, the Court stated:

[49] While Parliament has not increased the sentences for common assault and assault with a weapon or by choking, we continue to develop a greater understanding of the harm caused to children, families and society by offences committed against children. Even in non-sexual assault cases, acknowledging this harm reminds sentencing judges to appropriately assess the gravity of any offence against children when determining a proportionate sentence [citations omitted].”

The Alberta Court of Appeal was clear that Friesen was to factor into the analysis of the appropriate sentence for common and other assault offences against children.

[27] Similarly in R. v. A.A. [2024] O.J. No. 2745, W.L.H. Bentley J., engaged in a detailed review of the principles applicable to sentencing an offender for having committed a crime against children. It was found that the Friesen principles apply to cases of physical abuse. Ultimately, Bentley J. found that a sentence of 12 months in custody was appropriate for offences that involved a father disciplining his 15-year-old daughter by requiring her to undress down to her underwear, repeatedly striking her with a metal broom for 30 minutes with such force that the broom handle bent and lacerations were caused to her body, threatening her with a sharp utensil, grabbing her by the hair and banging her head against the fridge repeatedly, threatening her multiple times with more physical harm and with ending her life. She was covered in bruises and lacerations and emailed her school principal, saying that she did not know if she would come out of the day alive. The accused pleaded guilty, demonstrated remorse, took counselling, and had no criminal record. Regardless, the judge rejected the Defence submission of a conditional sentence and 6 months probation.

[28] While the facts of the cases cited by the Crown are distinguishable from this case, particularly with respect to the offending behaviour, I agree with the Crown that the Friesen principles are applicable to this case. Otherwise, there were no comparative cases for my consideration.

Positions of the Crown and the Defence

The Crown’s Position

[29] In support of a 3-month custodial sentence, the Crown argues that the assault committed against H.J.P. should be considered in the context of the bigger picture of the pervasiveness of domestic violence in this family. Specifically, the Crown points to the following findings made by me:

• That S.K.’s evidence minimized what transpired in the home.
• That I was left with the impression that the arguments between S.K. and the children’s mother were more serious than he would have the Court believe.
• That the relationship between S.K. and the children’s mother was more volatile than S.K. was prepared to acknowledge, with the children often being afraid during arguments and feeling the need to hide.
• That physical discipline of the children happened far more frequently than S.K. acknowledges.

[30] The Crown argument is that this was not a one-time isolated incident, but rather a reflection of a pattern of domestic violence. The Crown relies on S.K.’s 2009 convictions for three counts of assault against the children’s mother to demonstrate the continued nature of the domestic violence that H.J.P. and the other children who lived in this household were exposed. Based on the evidence, the assault against H.J.P. would have occurred after S.K. had been convicted for the assaults against the children’s mother and sentenced to 6-month conditional sentences (served concurrently) and 6 months’ probation. These prior incidents of domestic violence, combined with my findings from the evidence of the children, explain why H.J.P. was so scared during this incident, and why S.K.’s conduct should not be minimized as merely a slap.

[31] The Crown argues that the domestic violence is an aggravating factor, as is the fact that S.K. was in a position of trust to H.J.P. who was, at the time of the assault, a person under the age of 18 years. S.K. was in a parental role to H.J.P., but rather than fostering an atmosphere of safety for the child within the home, fostered one of fear. The Crown submits that such conduct, which represents a pattern of ongoing domestic violence, must be strongly denounced, and deterred. The Crown submits that denunciation and deterrence should be the guiding principles of this sentence.

[32] With respect to the common law peace bond, the Crown argues that the complainants, their sibling, and their mother all have reasonable grounds for concern. They have made serious allegations against S.K. and have reason to fear that there may be some retribution. Two of the children testified that the behaviour of S.K. can be unpredictable, and this contributes to their fear and anxiety. They had previously been protected by the terms of the release order of the Accused, and no longer have this protection. The children testified during the trial that they were afraid of S.K. before. From this I can infer there is a reasonable apprehension of fear, and a need to give them some peace of mind.

The Defence Position

[33] In support of a suspended sentence and 12 months’ probation, the Defence acknowledges that denunciation and deterrence are paramount considerations but argues that the circumstances of the offence S.K. was convicted of, as well as circumstances of the offender, simply do not support the sentence sought by the Crown.

[34] The Defence agrees with the Crown that the age of the H.J.P. at the time of the offence and the parental relationship constitute aggravating factors in this case. The Defence disagrees with the Crown as to the significance of S.K.’s prior convictions for assaults against the children’s mother. The Defence argues that this matter involves a conviction for conduct of a lesser degree and magnitude than the 2009 conviction. The Defence further argues that the lack of criminal justice involvement since the relationship with the children’s mother has ended demonstrates that the behaviour was situational, in the context of a toxic relationship. S.K. is no longer in that situation and there has been no further offending conduct. Furthermore, he has had no contact with the complainants or their mother since May 2021, which was 6 months prior to the charges even being laid. He has not tried to interfere with their lives. S.K. simply wishes to move on with his own.

Analysis

[35] The following are the aggravating factors:

• as a step-father, S.K. was in a position of trust towards H.J.P. (s. 718.2(a)(iii));
• S.K. committed the offence against H.J.P. while H.J.P. was a child (s. 718.2(a)(ii.1));
• as a step-father, S.K. committed the assault against a member of his family (s. 718.2(a)(ii));
• H.J.P. was a vulnerable person being a child dependent upon his step-father (and also his mother); and
• H.J.P. was so fearful of S.K.’s reaction, that he immediately ran from the table and was pursued by S.K.

[36] As set out above, I agree with both counsel that the principles of denunciation and deterrence are paramount considerations in this sentencing for an act of violence against a child for whom the offender was in a parental role. While I agree with the Crown that I must consider the offending conduct in the context of my other findings (namely that I did not believe this was an isolated incident), I cannot conclude that a 3-month custodial sentence is appropriate in these circumstances. Taking into consideration the circumstances of the offence and the offender as set out above, I do not find that a custodial sentence is required to give effect to the principles of denunciation and deterrence.

[37] S.K.’s conduct amounted to excessive discipline in a situation in which I am doubtful that any discipline was warranted. In other words, H.J.P. should not have been struck for accidentally dropping a bowl, let alone across the face with such force that he felt momentarily disoriented. H.J.P. was a child. The fear demonstrated by the child, and the fact that he immediately ran from the table, suggested to me (and I found as a fact) that this was not the first instance in which he or his siblings had been struck by their step-father. S.K. did not deny having “spanked” the children. The chase and the immediate rage that S.K. displayed must have heightened the fear for this child. I also accept the Crown’s argument that the fear and victim impact was further heightened by the domestic violence H.J.P. witnessed as between his parents. In making this conclusion, and consistent with my findings at trial, I am not saying that S.K. was the only parent responsible for the children’s exposure to domestic violence. S.K. was, however, charged and convicted of assault as against the children’s mother. This is not his first offence.

[38] Having said all of this, I have taken into consideration that since S.K.’s relationship with the complainants’ mother has ended, he has had no further involvement with the criminal justice system. He is engaged in meaningful employment, and in the care of his current partner. He is not in a caregiving role to other children that I am aware of.

[39] The circumstances of the offence are significantly different than those in the cases cited by the Crown as warranting a custodial sentence. While both counsel recognize that denunciation and deterrence, and Friesen, necessitate serious consequences for the assault committed against H.J.P., I am satisfied that on the facts of this case a suspended sentence with a period of probation, combined with certain ancillary orders are sufficiently serious to send a message to this and other offenders that such an assault against a child will not be condoned.

[40] A suspended sentence will leave S.K. with a criminal record that may impact employment opportunities, bonding, travel, and have other consequences (such as restricted volunteer opportunities). A sufficiently lengthy period of probation will subject S.K. to the ongoing supervision of the criminal justice system and shall require him to complete such programming as determined appropriate by his probation officer. While S.K. is not incarcerated, the effect of the probation order is to still place restrictions on his liberty. I find that an appropriate period of probation is 18 months.

[41] I am further satisfied as to the denunciatory and deterrence effect of the sentence by the impact it will have on S.K.’s ability to engage in hunting for sustenance or recreation. Defence counsel has indicated that this is something of importance to S.K. I find that s. 109(3) is applicable in the circumstances of this case and necessitates the imposition of a life-long weapons prohibition.

[42] Section 109(1)(a.1)(ii) provides that where a person is convicted of an indictable offence in the commission of which violence was used, threatened, or attempted against a child of the person or their intimate partner, then the court shall make an order prohibiting the person from possessing any firearm, or other weapon for a period determined in accordance with subsections 109(2) or (3). Subsection 109(2) provides that for a first conviction of the offence, the prohibition is 10 years. Subsection 109(3) requires a lifetime prohibition for anything other than a first conviction for the offence. S.K. was previously convicted of assault as against the child’s mother. I find that ss. 109(3) is applicable.

Common Law Peace Bond

[43] The Crown argues that a common law peace bond is required for a period of 5 years, requiring S.K. to keep the peace and be of good behaviour, and prohibiting him from having any contact whatsoever with the complainants, their mother, or S.K.’s other biological child, R.K. In addition, S.K. is to be prohibited from attending within 100 metres from any place where he knows any of these individuals to live, work, go to school, or otherwise be. The Crown seeks a promise to pay $500, with no deposit.

[44] I agree with the Defence that the Crown has failed to establish the basis for a common law peace bond. Specifically, there is no evidentiary basis to reasonably apprehend that S.K. will breach the peace. In my view, the Crown’s argument amounts to speculation or conjecture, which does not satisfy the onus.

[45] The Crown argues that given S.K.’s volatile temper and propensity for domestic violence, as demonstrated by the evidence at trial, and given that he will no longer be subject to the no contact provisions of his recognizance, there is reason for his former partner and her children to fear retribution or reprisals from S.K. The Crown argues that a peace bond is required to protect these individuals, who bravely came forward with their allegations.

[46] The evidence at trial was that any violence or volatility occurred during the relationship between S.K. and T.G. There are no allegations of any such behaviour following the separation in 2018. The allegations were not made against S.K. until 2021, and therefore for a 3-year period he was subject to no recognizance. In the approximately six months prior to being charged, S.K. had no communication with T.G. and the children (including his biological children). I am also satisfied that S.K. has moved in a different direction with his life, one that he knows does not involve his children. Out of an abundance of caution, S.K. will be subject to an 18-month probation order that will prohibit contact with the individuals concerned. This should provide those individuals with reassurance that they need not fear unwanted contact from S.K. for a lengthy period of time.

Sentence and Ancillary Orders

[47] After considering all relevant factors and principles of sentencing, both in general and specifically with respect to S.K., he shall be subject to a 3-month (90 day) suspended sentence, with 18 months’ probation. S.K. shall report to probation by telephone within 7 working days (of the date of imposition of sentence), and thereafter as directed by probation. In addition to the statutory probation terms, S.K. shall not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means with H.J.P., H.E.P., B.K., R.K., or T.G. S.K. shall also not be within 100 metres of any place any of these individuals live, work, go to school, frequent, or may be known to be, except for court attendances. S.K. shall attend and participate in any assessments, counselling or rehabilitative programs as directed by probation, and complete them to the satisfaction of the probation officer.

[48] In addition to the foregoing, pursuant to s. 109(3), S.K. is prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosives substance for life.

“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Released: March 6, 2025