Reasons for Sentence

Court File No.: CRIM 339/23 (Brampton)
Date: 2025-06-24
Ontario Superior Court of Justice
Between:
His Majesty the King – and – B.O.

Appearances:
R. Raeesi, for the Crown
M. Mattis, for the Defence

Heard: June 3, 2025

Table of Contents

• Introduction
• Circumstances of the Offences
• Circumstances of the Offender
• Sentencing Objectives
• Restraint
• Proportionality
  • Wrongfulness of Sexual Offences Against Children
  • Actual Harm Suffered by M.A.
  • Potential Long-Term Harm to M.A.
• Aggravating Circumstances
  • Young Age of the Victim
  • Duration and Frequency of Offences
  • Presence of Grooming
  • Predatory Behaviour in a Parent’s Home
  • Breach of Trust
  • Threats of Violence
• Mitigating Circumstances
  • No Record of Prior Convictions
  • Consistent Compliance with Court Orders
  • Strong Prospects for Rehabilitation
• Parity
  • Sexual Interference
  • Exposing a Child to Sexually Explicit Materials
• Conclusions on Sentence
• Concurrent Sentences
• Ancillary Orders

Introduction

[1] I convicted Mr. O. of the following offences: (i) sexual assault contrary to s. 271 of the Criminal Code, (ii) sexual interference contrary to s. 151 of the Code, and (iii) exposing a person under 16 years of age to sexually explicit material for the purpose of facilitating the offence of sexual interference, contrary to s. 171.1(1)(b) of the Code. My Reasons for Judgment were released on November 15, 2024 and are reported here: R. v. B.O., 2024 ONSC 5937.

[2] The Crown submits that the rule against multiple convictions for the same acts should be applied in the circumstances of this case: R. v. Kienapple, [1975] 1 S.C.R. 729. The rule prevents an accused from being convicted of multiple offences arising from the same conduct where the elements of the offences are substantially the same. The Defence agrees with the Crown’s position, and so do I. I therefore order a conditional stay of the sexual assault charge pending final disposition of the charge of sexual interference. The stay will become permanent upon dismissal of all appeals of the conviction for sexual interference or expiry of the appeal period for that conviction.

[3] These Reasons set out my decision on the appropriate sentence to be imposed for the two remaining offences. I have reviewed the pre-sentence report prepared for the Court, a victim-impact statement, and nine letters of support for Mr. O. I heard counsel’s submissions regarding sentence on June 3, 2025. Mr. O. elected not to make an allocution.

[4] The Crown submits that Mr. O. should be sentenced to 7 years’ imprisonment for sexual interference and should receive a concurrent sentence of 2 to 3 years’ imprisonment for making sexually explicit material available to a child. The Defence takes the position that a global sentence in the range of 4 to 4.5 years is more appropriate.

Circumstances of the Offences

[5] The victim in this case is Mr. O.’s daughter, M.A. The conviction for sexual interference covers multiple incidents spanning a period of 18 months from January 2018 to June 2019. The conviction under s. 171.1(1)(b) also covers several incidents, but over a shorter time frame of about six months from January 2018 to June 2018. M.A. was 8 and 9 years old at the time of the offences.

[6] All the offences were committed in Mr. O.’s home during parenting time that he had with M.A. or with all three of his children. He had recently separated from the children’s mother in late 2017. They were involved in a high-conflict family law proceeding over parenting issues.

[7] On several occasions between January and June 2018, Mr. O. signed M.A. out of school and brought her to his apartment alone over the lunch hour. He played sexually explicit videos for her and told her to watch them thoroughly. He sometimes watched with her and sometimes left the room, but later questioned her about whether she liked the video. He told her she would soon like them. During these lunchtime incidents, he put makeup on her face, made her change her clothes into revealing dresses, played music and made her dance for him. He sat her on his lap and hugged her tightly, which made her uncomfortable. He complimented her appearance. He told her that her bottom is big and that soon she will look much prettier. He touched her breasts, buttocks, and the front of her thighs over her clothing. A few times, he asked her to caress and rub his stomach and chest. After these visits to his apartment, he returned her to school.

[8] Approximately six months after these incidents started, M.A. and her two brothers began visiting their father on weekends due to a change in their parenting schedule. During those visits, when M.A. was in the shower in her father’s apartment, he routinely entered the bathroom, peered at her from behind the shower curtain, and insisted on washing her body despite her telling him not to because she felt uncomfortable. He rubbed her chest area and her vagina while she was naked in the shower. She told him to stop, but he said he was just washing her.

[9] M.A. kept silent about what her father was doing to her for several years because he threatened to make her regret it if she told anyone. He threatened to harm her and other family members if she disclosed to anyone what was going on in his apartment.

Circumstances of the Offender

[10] Mr. O. is 52 years old. He was born in Kabul, Afghanistan. He is the second youngest of seven siblings. His father died when he was 9 years old. He was raised by his mother and eldest sister. He reports no abuse during his childhood. His mother died when he was in his early 20s.

[11] Mr. O. earned a master’s degree in civil engineering in Afghanistan in 1996. He lived and worked in Pakistan for a few years after completing his studies, then returned to Afghanistan after the Taliban collapsed in 2001. He was working as a construction engineer and district manager for the United Nations - Habitat when he met his ex-wife M.I. in Afghanistan in 2005. She was living in Canada but had travelled to Kabul to attend her grandmother’s funeral. Her cousin introduced them. Within five days, a marriage between them had been arranged.

[12] They married in Afghanistan in 2007. M.I. sponsored Mr. O. for immigration to Canada. He arrived in the fall of 2008 and has lived in Ontario for the past 17 years. He became a Canadian citizen in 2014.

[13] Mr. O. has three children with M.I., two sons and their daughter M.A. He was a very involved father. He provided particular support and care to his eldest son, M.C., who was born with a developmental disability. He discovered, during the marriage, that his wife had been unfaithful to him, and that M.C. was not his biological child. He was deeply hurt by this deception, but it did not diminish his love for his son.

[14] Mr. O. and M.I. separated in the fall of 2017. An acrimonious family law proceeding ensued. He became separated from his children in the summer of 2019, when he was charged with an assault on his ex-wife. The COVID-19 pandemic resulted in delays in both the family and criminal court proceedings. The assault charge was eventually resolved with a one-year peace bond in July 2020. The charges before this court arose about 18 months later, at a time when Mr. O. was about to resume parenting time with his children.

[15] Mr. O. has not seen any of his children in almost six years. The separation from his children has been emotionally devastating to him. He has struggled with depression in recent years.

[16] Mr. O. has some family supports in Canada. During his testimony at trial, he explained that his eldest sister came to Canada in 2016. She lived with him for a short time, but now lives with her husband and two children in Brampton. His younger sister and his brother live in Afghanistan. His three other sisters live in the United States. They left Afghanistan after the Taliban returned to power in August 2021.

[17] When Mr. O. first arrived in Canada, he obtained short-term work through employment agencies. He chose not to pursue getting Canadian accreditation for his engineering degree because he prioritized earning an income to support his wife and children. He eventually secured a permanent full-time position as a roaster of dry nuts. He has worked for the same employer for the past 15 years. His manager spoke to the probation officer who completed the pre-sentence report. He described Mr. O. as a dedicated and reliable worker, who gets along well with everyone in the workplace. Mr. O. has recently reduced his hours of work due to depression and the stresses associated with this trial.

[18] Nine letters of support were submitted by Defence counsel in this case. Eight of the letters were written by family members, namely siblings, nieces, and a nephew. The authors know him intimately and are aware of the nature of the offences for which he has been convicted. Several expressed disbelief that he could be guilty because of their knowledge of him as a caring, peaceful and compassionate individual who shows respect for women.

[19] Support letters are commonly adduced in sentencing hearings. They are typically complimentary about an offender’s character. The letters in this case are more effusive in their praise than usual. They are heartfelt testaments to the central role that Mr. O. has played in his family. The authors describe him as “a constant source of kindness, guidance, and support”, “the most kind-hearted and well-behaved individuals I have ever known”, “a pillar of strength and compassion for everyone around him”, “someone we could count on in times of need, whether it was for emotional support or practical assistance”, “a man of integrity and high moral character”, “a pillar of support”, “a man of honour, kindness and unwavering integrity”, “a mentor, a role model, and a source of unwavering support”, “someone who puts others before himself, always willing to lend a helping hand without expecting anything in return,” and “a good man with a kind heart.” The authors also used the following adjectives to describe their uncle and brother: kind, generous, caring, patient, understanding, selfless, respectful, honest, hard-working, calm, level-headed, thoughtful, responsible, reliable, supportive, well-mannered, polite, dependable, and compassionate.

[20] Mr. O.’s siblings, who have known him the longest, spoke of his ability to foster positive relationships with those around him throughout his life. They described him as well-behaved and well-liked as a child, as a considerate student who never fought with anyone, and who neither harmed others nor allowed anyone to harm his peers. They described how talented, collaborative, and well-regarded he was as university student. They also spoke of his reputation for integrity, professionalism, and a strong work-ethic when he was a young man working in Afghanistan. One sister stated that he was “known for mentoring his colleagues, sharing his knowledge, and ensuring a respectful and supportive work environment. Female colleagues were particularly appreciative of his guidance and the safe atmosphere he fostered.”

[21] Mr. O.’s siblings stated that, when he lived in Afghanistan, he provided financial assistance to relatives in need and to people living in poverty in their community. When his workplace required labourers, he prioritized hiring workers from underprivileged backgrounds.

[22] A friend who has known Mr. O. for the past three years, and who also immigrated to Canada, wrote a letter in which he described the support, guidance, and mentoring he received from Mr. O. while trying to navigate the overwhelming cultural dislocation and adjustment. Mr. O.’s nieces and nephew also expressed gratitude for the support and assistance he provided them when they arrived in Canada.

[23] It is clear from the multiple letters of support that Mr. O. has had a profound positive impact on the lives of many people around him. As one of his sisters stated, the offences for which he has been convicted are “entirely inconsistent with the values he has upheld throughout his life.”

[24] Having summarized the circumstances of the offences and the circumstances of the offender in this case, I will now review the legal principles that must govern my sentencing decision.

Sentencing Objectives

[25] In determining an appropriate sentence, I must be mindful of the fundamental purpose of sentencing namely, to protect society and contribute to respect for the law and the maintenance of a just, peaceful, and safe society: Criminal Code, s. 718. In a case such as this one, society’s interest in protecting vulnerable children must be prioritized.

[26] The sentence I impose must be a just sanction that serves one or more of the objectives set out in s. 718 of the Criminal Code, which include denunciation of unlawful conduct and of the harm done to victims by unlawful conduct; deterrence of the offender and other persons from committing similar offences; separation of the offender from society, where necessary; assistance in rehabilitation of the offender; promotion of a sense of responsibility in the offender, and acknowledgment of the harm done to the victim.

[27] These statutory sentencing objectives are not equally important in every case. Pursuant to s. 718.01 of the Criminal Code, I must give priority to denunciation and deterrence because the offences in this case involve abuse of a child. In such cases, other objectives may still be considered and given significant weight but cannot be given equal or greater weight than denunciation and deterrence: R. v. Friesen, 2020 SCC 9, at paras. 101-104; R. v. Lis, 2020 ONCA 551, at paras. 47-48, 53; R. v. S.S., 2024 ONSC 3568, at para. 26.

Restraint

[28] The principle of restraint articulated in s. 718.2(e) of the Criminal Code requires me to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victim. I have done so and have concluded that incarceration is necessary in this case.

[29] Where incarceration cannot be avoided, the restraint principle dictates that the term of imprisonment be as short as possible and be tailored to the individual circumstances of the offender: R. v. Priest, at p. 545. I must exercise restraint by imposing the most lenient sentence of imprisonment that will satisfy the primary objectives of denunciation and deterrence: R. v. A.B., 2023 ONCA 254, at para. 55.

Proportionality

[30] Sentencing requires me to consider and balance a multiplicity of factors, but proportionality is the organizing principle: R. v. Parranto, 2021 SCC 46, at paras. 9-10. I must impose a sentence that is proportionate to the gravity of the specific offences and to the degree of responsibility and moral culpability of the particular offender: Criminal Code, s. 718.1.

[31] The Supreme Court of Canada has directed that, as part of the proportionality analysis, I must recognize and give effect to (i) the wrongfulness of sexual offences against children, (ii) the potential harm to children that flows from these offences, and (iii) the actual harm suffered by M.A. in this case: Friesen, at paras. 75-76; R. v. T.J., 2021 ONCA 392, at paras. 19-20. I will consider each of these three factors in turn.

Wrongfulness of Sexual Offences Against Children

[32] Sexual offences always constitute morally blameworthy behaviour because they disregard the victim’s human dignity and personal autonomy. Sexual offences against children are particularly morally blameworthy because children are so vulnerable: Friesen, at paras. 87-90.

[33] The wrongfulness of sexual abuse of children flows from its inherently exploitative and violent nature. The exploitation is rooted in the power imbalance between children and adults, and the act of treating a child not as a person with equal dignity but instead as a sexual object to be used by adults. The violence is rooted in the interference with not only the child’s bodily integrity but also their sexual integrity: Friesen, at paras. 77-78. The law recognizes that unwelcome sexual contact constitutes a form of psychological violence as well as physical violence because bodily and psychological integrity are closely linked: Friesen, at para. 77.

[34] The seriousness of the sexual offences in this case escalated from touching over M.A.’s clothing to touching her skin when she was fully naked in the shower. It escalated from touching her chest, thighs, and buttocks, to touching her vagina.

[35] The offences did not include vaginal or anal penetration. There was no oral sex performed on M.A. or demanded from her. Mr. O. used his hands, not his mouth or genitals to touch her. I do not mention these facts to minimize the gravity of the offences committed. I recognize that the psychological harm suffered by the victim is not necessarily defined by the type of physical activity involved. Sexual violence that does not involve penetration can still have devastating effects on the victim. The modern understanding of sexual offences requires greater emphasis on psychological and emotional harm, rather than only bodily integrity: Friesen, at paras. 142-144. Attributing intrinsic significance to the occurrence or non-occurrence of penetrative or other sexual acts is rooted in outdated notions of sexual propriety that are inconsistent with the law’s focus on the harm caused to the personal autonomy and dignity of the victim: Friesen, at para. 141.

[36] However, the Supreme Court of Canada has ruled that the degree of physical interference involved in a child sexual offence is a relevant factor in sentencing because it takes into account how specific types of physical acts may increase the risk and spectrum of harm. For instance, penile penetration, particularly when unprotected, can be an aggravating factor because it can create a risk of disease transmission and pregnancy. Penetration, whether penile, digital, or with an object, may also cause physical pain and injuries to the victim. Children’s bodies are especially vulnerable to physical injuries from penetrative sexual violence: Friesen, at para. 139.

[37] The absence of penetration in the circumstances of this case does not downgrade the gravity of the offences committed. As discussed in the next section of these Reasons, there was significant harm caused to M.A. from the sexual touching. Her personal autonomy, human dignity and sexual integrity were violated. The offences were inherently and seriously morally blameworthy. However, I am cognizant that, when I compare other cases for the purpose of applying the principle of parity in sentencing, I must note whether penetrative or other physical acts were present as aggravating features in those cases, because that could serve to distinguish those cases from this case.

Actual Harm Suffered by M.A.

[38] In analyzing the harm caused by sexual offences against children, the Supreme Court in Friesen underscored the shift in the law’s focus away from issues of sexual propriety, such as deprivations of honour and chastity, toward consideration of violations of children’s personal autonomy, bodily integrity, sexual integrity, dignity and equality. Consequently, as a sentencing judge, I am required to focus my attention on the emotional and psychological harm caused to M.A., not simply the physical harm she endured: Friesen, at paras. 51-58.

[39] M.A. gave evidence at trial about some of the effects she suffered because of her father’s actions. When she reported the offences to the police in April 2022, she had not seen or communicated with her father since July 2019. She explained that she decided to go to the police shortly after learning that her father would soon start exercising parenting time again because she was experiencing nightmares. She described “dreams of him chasing me, dragging me, hurting me saying I will regret everything.” She said she wanted to be in a safe environment. She adopted those statements to the police when she testified under oath at trial in 2024.

[40] Intense fear and nightmares are therefore some of the harmful consequences of Mr. O’s offences. At the sentencing hearing, I heard more about the negative impact of the offences on her through a Victim Impact Statement. The Statement is cogent and relatively short, so I will reproduce it in full rather than try to summarize it:

For the longest, I felt sick in my own body. Fear consumed me and all I could feel was disgust when I looked in the mirror to see a face of my own to be the exact resemblance of my own father – one who made me feel unsafe my whole life. After what happened to me, and I stopped seeing him, his image still lingered within me. I spent hours in the shower alone, rubbing my skin with the tip of my fingernails until it was red from the boiling water and the rough scratches I had left, yet I could still feel his hands on my skin. I wanted to rip my skin. I live in the very same body that he violated, knowing I can’t get back what I felt before my vulnerability. I blame him. I blamed myself for not defending my own skin. But, all I can do is feel sorry for the same girl who was a helpless victim of sexual abuse without any awareness. For a while, all I could feel was hate – for him, myself and everyone else – and that very same hate always ended in shameful sadness, knowing I can’t get my life back before it was stolen from me – by him, my own blood.

[41] The harm suffered by M.A. is grievous and enhances the gravity of Mr. O’s offences.

[42] Except in rare circumstances, offenders in child sexual abuse cases will have or ought to have awareness that their actions can profoundly harm the child: Friesen, at paras. 88, 90. Mr. O. is intelligent. I believe he knew that his actions would damage his daughter’s emotional and psychological wellbeing. In any event, he ought to have known. This knowledge enhances the degree of his moral blameworthiness and responsibility.

Potential Long-Term Harm to M.A.

[43] Not all the harms caused by child sexual abuse manifest themselves in childhood. As a sentencing judge, I must consider forms of potential harm that have yet to materialize but that are a reasonably foreseeable consequence of the offences and may materialize later in M.A.’s life: Friesen, at para. 84.

[44] For example, the jurisprudence recognizes that victims of childhood sexual abuse can develop overly compliant behaviour (an intense need to please) that causes them to suppress their own needs. Other recognized effects of childhood sexual abuse include self-destructive or self-harming tendencies, hyper vigilance, social withdrawal, inability to trust significant others, feelings of guilt or shame, poor self-esteem, sexually aggressive behaviour, hostility and unresolved anger towards others, sleep disturbances, anxiety, depression, eating disorders, post-traumatic stress disorder, and substance abuse: Friesen, at paras. 51, 57-58, 61, and 80-81.

[45] Based on her Victim Impact Statement, M.A. has already experienced some of these foreseeable effects. She mentions feeling sick in her own body, having to live in the same body that was violated, and feeling disgust when seeing her own image in a mirror. She says she blamed herself and hated herself for what happened to her. These self-esteem issues could potentially be long-lasting or even permanent: Friesen, at para. 85; R. v. Woodward, 2011 ONCA 610, at para. 76.

[46] In her Victim Impact Statement, M.A. also describes feeling hatred toward her father “and everyone else”. Feelings of hostility and distrust could negatively impact her ability to forge meaningful relationships as an adult.

[47] M.A. describes feeling sorry for her younger self, for the “girl who was a helpless victim of sexual abuse without any awareness.” She says she now feels “shameful sadness” because she realizes that her life was stolen from her. She laments not being able to revert to the way she felt before she was victimized. These thoughts and emotions suggest a vulnerability to depression that could mar her adult life.

[48] M.A.’s Victim Impact Statement also reveals deeply concerning self-harming ideation and tendencies, namely showering under excessively hot water, scratching her skin with her fingernails, and wanting to rip her skin because she could still feel her father’s hands on it. These statements suggest she may be at risk for self-harming behaviour.

[49] Time alone will tell whether M.A. is able to overcome the harmful effects of what she experienced in childhood, or whether she will continue to struggle with these effects in adulthood. She says, “I can’t get back my life before it was stolen from me”. She cannot change her past, but many survivors of childhood sexual abuse are able to build a future that is healthy, happy, and filled with meaningful relationships. The prospect of a contented future may seem unattainable to M.A. at the moment, but she appears to be strong, courageous and resilient. She may have the requisite coping mechanisms and internal fortitude to overcome the damage caused by these traumatic childhood experiences, particularly with the benefit of professional counseling. I must not assume that she is “forever broken” by what her father did to her: Friesen, at para. 59. But I must also recognize the significant risk that certain forms of harm may persist into adulthood, or only materialize later in her life. She is not to blame if she is unable to overcome the harm caused to her. Mr. O. bears responsibility for the consequences of his actions.

Aggravating Circumstances

[50] Subsection 718.2(a) of the Criminal Code stipulates that I must increase or reduce the sentence to account for any aggravating and mitigating circumstances relating to the offences or the offender.

[51] In addition to the significant harmful impact of the offences on M.A., which is a statutory aggravating factor listed in s. 718.2(iii.1) of the Code, I have identified six more aggravating factors in this case.

Young Age of the Victim

[52] Parliament has identified the abuse of persons under the age of 18 as a statutory aggravating factor: Criminal Code, s. 718.2(a)(ii.1). By definition, all victims of offences committed under s. 151 and s. 171.1(1)(b) of the Code will be under the age of 18, but the age of the victim is still a relevant factor that can have an aggravating effect on the gravity of the offence and the degree of moral culpability of the offender. The power imbalance between children and adults is even more pronounced for younger children, who are usually totally dependent on adults: Friesen, paras. 134-135.

[53] In this case, M.A. was only 8 years, in grade 3, when the offences started. Her sense of personhood was evolving. She was exploring her emerging personal autonomy and defining the boundaries of her bodily and sexual integrity. She was still learning coping mechanisms to deal with adversity. Her ability to recover from harm was still developing: Friesen, at para. 134.

[54] Moreover, as the Supreme Court noted in Friesen (para. 134), children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life. M.A. is only 16 years old, and she has already spent half her life dealing with the consequences of these offences. Her young age at the time of the offences is an aggravating factor in this case.

Duration and Frequency of Offences

[55] The long-term emotional and psychological harm to a victim can become more pronounced where the sexual violence is repeated and prolonged: Friesen, at para. 131. The Supreme Court of Canada has ruled that sexual violence committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime: Friesen, at para. 133.

[56] Each instance of sexual interference in this case traumatized M.A. anew and increased the likelihood that the risks of long-term harm will materialize. Each further instance showed a renewed choice by Mr. O. to continue to victimize her. The repeated nature of the incidents over a period of 18 months enhances both the gravity of the offences and Mr. O.’s moral culpability in this case.

Presence of Grooming

[57] There is evidence of grooming in this case, including Mr. O.’s comments about M.A.’s body and appearance, his exposure of her to pornographic videos, his questions to her about them, and his application of make-up and revealing clothing to her. The presence of grooming is an aggravating factor because it suggests planning and deliberation in the commission of the offences. These were not impulsive or opportunistic acts.

Predatory Behaviour in a Parent’s Home

[58] M.A. was not living full time at the apartment where the offences were committed. Her parents had recently separated, and she resided in the matrimonial home with her siblings and mother. Still, she was entitled, as a child, to feel safe in her father’s home when he exercised parenting time with her. The fact that the offences took place in his apartment is therefore an aggravating factor. As the Supreme Court noted in Friesen (para. 178): “A parent’s home is a place where the child should feel safe and secure under the care and guardianship of the parent. Accordingly, sexual violence against children that takes place in the home may be particularly damaging because it damages the child’s sense of security in the home environment.”

Breach of Trust

[59] Abuse of a position of trust or authority is a statutory aggravating factor: Criminal Code, s. 718.2(a)(iii). Evidence that the offender abused a member of their own family is also a statutory aggravating factor: Criminal Code, s. 718(a)(ii). Both these factors intersect and apply in this case.

[60] Any breach of trust is likely to increase the harm to the victim, but the spectrum of relationships of trust is relevant to determining the degree of harm. In this case, Mr. O. is M.A.’s biological father. M.A. will likely suffer more harm from these sexual offences because of her close relationship to the offender, and because of the high degree of trust that she had in him: Friesen, at para. 126.

[61] Mr. O.’s abuse of his position of trust as a parent is also aggravating because it increases his degree of responsibility. As a father, he owed M.A. a duty of care and protection. The breach of that duty enhances his moral blameworthiness: Friesen, at paras. 129-130.

Threats of Violence

[62] The final aggravating feature of this case are the threats of harm that Mr. O. made to discourage M.A. from disclosing the offences to anyone. The threats compounded her fear, forced her to deal with the traumatic experiences in isolation for several years, and also reinforced her feelings of shame.

Mitigating Circumstances

[63] There are several mitigating circumstances in this case, which demonstrate that these offences are completely out of Mr. O.’s character.

No Record of Prior Convictions

[64] Mr. O. is a first-time offender. He has been a law-abiding citizen of this country since his arrival many years ago. There is no evidence that he had any conflicts with the law prior to immigrating to Canada.

Consistent Compliance with Court Orders

[65] Mr. O. has been fully compliant with court orders.

[66] In July 2020, when he was subjected to a peace bond as a result of allegations made by his ex-wife, he fully respected the terms and conditions of the bond.

[67] He has been on bail since being charged with these offences and has fully complied with his conditions of bail. He has not been charged with any new offences since these charges were laid.

Strong Prospects for Rehabilitation

[68] Mr. O. has contributed to his extended family’s well-being and to his community. He has been consistently gainfully employed despite the challenge of not having his university engineering degree accredited in Canada. He has been generous of spirit and has also provided financially for others in need. He adapted well to living in Canada and helped others to do the same. He has been a productive member of society. He has demonstrated resourcefulness and resilience, all of which bodes well for his rehabilitation. The unwavering support of his family members also enhances the prospects of his rehabilitation.

[69] The Supreme Court of Canada in Friesen (para. 106) directs that a sentencing judge should consider the likelihood of re-offending as a factor. Mr. O. continues to assert his innocence, which he has the right to do. The probation officer who prepared his pre-sentence report concludes that he lacks insight into his crimes because he does not accept accountability for the offences and maintains that all the charges are false. I am not prepared to infer, from his ongoing professed innocence, that he is more likely to re-offend. Apart from the convictions in this case, Mr. O. has led a pro-social and law-abiding life. There have been no allegations of inappropriate behaviour by his nieces and nephew, with whom he has had close contact. In the circumstances, I have no basis to believe that he is at high risk of reoffending. On the contrary, indicators suggest that he has strong prospects for rehabilitation.

Parity

[70] Although proportionality is the overriding principle in sentencing, I must “calibrate the demands of proportionality by reference to the sentences imposed in other cases”: Friesen, at para. 33; Parranto, at para. 11. Section 718.2(b) of the Criminal Code requires that I impose a sentence on Mr. O. that is comparable to those imposed on similar offenders for similar offences committed in similar circumstances.

[71] Appellate courts provide guidance to sentencing judges in the form of ranges of sentences, which are basically summaries of the minimum and maximum sentences imposed in other cases in the past. The ranges serve as guidelines, not hard and fast rules: Friesen, at para. 37. I will review the range for each of the two offences in this case.

Sexual Interference

[72] The applicable range of sentences for the crime of sexual interference has increased since the Supreme Court of Canada decision in the Friesen case in 2020. A departure from past sentences was required to reflect the contemporary understanding of the harm caused by sexual violence toward children, and to give effect to Parliament’s decision in 2015 to increase maximum sentences for sexual offences against children. The Supreme Court stated that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”: Friesen, at para. 114.

[73] Consequently, sentencing decisions of this court and of the Court of Appeal for Ontario that pre-date the Friesen decision no longer reflect the current state of the law. The fact that Mr. O.’s offences were committed before the Friesen case was decided does not alter the approach to sentencing or the range of sentence applicable in this case: R. v. Wright, 2024 ONCA 516, at paras. 10-12.

[74] Both the Crown and the Defence provided me with several post-Friesen cases involving sentencing for the offence of sexual interference. I reviewed the following decisions and the cases cited within them: R. v. N.K., 2024 ONSC 2761; R. v. R.R., 2020 ONSC 7411; R. v. C.N.B., 2024 ONSC 5850; R. v. R.H., 2022 ONCJ 225; R. v. C.N., 2024 ONCJ 572; R. v. A.B., 2023 ONCA 254; R. v. A.S., 2023 ONSC 983; R. v. G.H., [2023] OJ No. 533; R. v. Shilling, 2021 ONCA 916; R. v. C.B., [2021] OJ No. 748; R. v. K.R.S., [2021] OJ No. 7285.

[75] I will not summarize the facts of all these cases. The decisions in the aggregate are helpful in assessing the appropriate sentencing range for this offence. The sentences cover a span from 2 years less a day to 7 years. All but one of them involve a penitentiary sentence. The only reformatory sentence was imposed in a case where there was a single incident of sexual interference: R.H., at para. 23. In all other cases, as in the case before me, there were multiple incidents committed over time. In the cases where a sentence of more than 5 years was imposed, the offences typically started when the victim was younger than M.A., the offences lasted several years longer than the offences in this case, or the accused had a record of prior convictions (or a combination of these factors was present). Some of the cases cited involved acts of penetration. In several cases, there was grooming behaviour, including exposure to pornography. In most of the cases, the circumstances amounted to a breach of trust, often by a family member (e.g. brother, grandfather, step-parent).

[76] While no case is directly on point, I find that the decision of the Court of Appeal for Ontario in A.B. is most comparable to the circumstances of the case before me. In that case, the accused was a first-time offender. He occupied a position of immense trust as the victim’s stepfather. He groomed her using pornographic materials. His actions were serious but did not include penetration. He began violating his stepdaughter when she was 10 years old, and his offences continued for approximately four years. The offences had a profound impact on her. The Court of Appeal substituted a sentence of 5 years imprisonment for the trial judge’s sentence of 7 years, which had exceeded the sentence sought by the Crown. The Court of Appeal stated, “five years is a significant penitentiary sentence for a first offender,” and concluded that five years was sufficient to promote the primary goals of denunciation and deterrence, while also respecting the principle of restraint. I find that the same applies in this case.

Exposing a Child to Sexually Explicit Materials

[77] The Crown submits that a sentence of 2-3 years should be imposed for the conviction under s. 171.1(1)(b) of the Criminal Code. The Defence did not specify a proposed sentence for this offence but maintained that the totality of the sentence should not exceed 4.5 years.

[78] A review of the case law reveals that the sentencing range for an offence under s. 171.1(1)(b) is usually 1 to 3 years: R. v. Burch, 2021 ONSC 484; R. v. S.S., 2024 ONSC 3568; R. v. B.W., 2022 ONSC 2399, aff’d 2024 ONCA 412; R. v. Cooper, 2023 ONSC 875; and R. v. Storey, 2021 ONSC 1760. In cases where a more severe sentence is imposed, there are often multiple victims, or the offender has a record of prior convictions. Neither of those circumstances applies in this case. The principle of parity therefore dictates that this case does not fall at the more serious end of the range. However, the breach of trust and the repeated nature of the incidents over a period of 6 months elevates this case above the lower end of the range.

Conclusions on Sentence

[79] Based on all the above factors and considerations, I conclude that:

(a) a sentence of 5 years’ imprisonment is proportionate and just for Mr. O.’s offence of sexual interference; and
(b) a sentence of 2 years’ imprisonment is proportionate and just for Mr. O.’s conviction under s. 171.1(1)(b).

Concurrent Sentences

[80] Because Mr. O. is being sentenced for more than one offence, I must decide whether the sentences should be served at the same time (concurrently) or one after another (consecutively). The general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences: R. v. Arbuthnot, 2009 MBCA 106, at paras. 18-21; R. v. Hutchings, 2012 NLCA 2, at para. 84; R. v. Desjardins, 2015 QCCA 1774, at para. 29; Friesen, at para. 155.

[81] In R. v. Keough, 2012 ABCA 14, the Alberta Court of Appeal stated (at paras. 61-63):

Where different offences constitute “one continuous criminal act” the court should impose concurrent sentences. Similarly, if there is “sufficient nexus between the offences”, concurrent sentences are warranted. Conversely, where there is a break in criminal activity, consecutive sentences will be appropriate. Also, where different offences, although arising out of the same transaction or incident, violate separate legally protected interests, the normal rule of concurrent sentences does not apply.

[82] Both the Crown and Defence counsel submit that concurrent sentences are appropriate in the circumstances of this case. I agree because there is a nexus between the two offences. Mr. O.’s exposure of M.A. to sexually explicit material was done specifically for the purpose of facilitating the offence of sexual interference. The two offences are therefore closely linked. Both offences violated the same legally protected interests, namely M.A.’s dignity and bodily and sexual integrity.

[83] I therefore impose concurrent sentences. That means the second sentence will be served at the same time as the first sentence. The total sentence is five years.

Ancillary Orders

[84] There are some mandatory ancillary orders that I must make. The Crown has requested some additional ancillary orders that are within my discretion to make. I have considered all the orders requested by the Crown. I am not persuaded that they are all warranted in the circumstances of this case.

[85] I make the following orders.

[86] Pursuant to s. 109 of the Criminal Code, Mr. O. is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for a period of 10 years. Pursuant to the same section of the Code, he is further prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[87] Pursuant to s. 161(a.1) of the Criminal Code, Mr. O. is prohibited from being within two kilometres of his daughter M.A.’s residence and school for a period of five years.

[88] Mr. O, you are not prohibited, by this Court, from seeing or communicating with your two sons. I do not know whether there is any family court Order that restricts your access to those children.

[89] Pursuant to s. 161(b) of the Criminal Code, you are prohibited from seeking, obtaining or continuing any employment, or becoming a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years, for a period of five years.

[90] Pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code, you shall comply with the Sex Offender Information Registration Act for a period of 20 years.

[91] Finally, pursuant to s. 487.051 of the Criminal Code, I make an order authorizing the taking of a sample of your bodily substances for the purpose of DNA analysis and registration in a national database.

Justice C. Petersen
Released: June 24, 2025