Ontario Superior Court of Justice

Court File No.: CR-22-0171-00
Date: 2025-06-23

Between:
His Majesty the King
G. Fillmore, for the Crown
and
G.M.
G. Labine, for the Accused

Heard: December 11, 2023, April 12, 2024, and December 30, 2024, at Thunder Bay, Ontario
Justice: W.D. Newton

WARNING
An order restricting publication of any information that could “identify” the complainant or witness has been made in this proceeding under section 486.4 of the Criminal Code of Canada.

Criminal Sentencing

Overview

[1] In this case, I was presented with sentencing submissions following guilty pleas and advised Counsel that I was troubled with the Crown position on sentence.

[2] What follows are my reasons for not accepting what became a joint submission on sentence.

The Facts

The Pleas and Convictions

[3] Mr. M.’s trial was set to commence on the morning of December 11, 2023, and take three days.

[4] At the commencement of trial, counsel for Mr. M. requested a “few more minutes to speak with” his client. The Crown did not object, stating the following:

[W]e have had some discussions. I think Mr. Labine wants to secure his instructions to make sure we are ad idem and if not, well, we’re still prepared to proceed. [Emphasis added.]

[5] When court resumed, the Crown advised that Mr. M. would be entering pleas of guilty to counts four and six on the indictment as amended. The Crown further advised that the Crown and defence counsel did not have a joint submission but a “range”, and that Mr. M. was to be arraigned, that he was to enter pleas, that facts be read in, and that a pre-sentence report was to be ordered with Mr. M. being remanded into custody until the next court date when a hearing on “contested sentencing within the range” would be held.

[6] Mr. M. was arraigned and pleaded guilty to the following counts:

a. Count 4 - Between September 2, 2010 and May 31, 2020 did commit a sexual assault on J.N. contrary to s. 271 of the Criminal Code; and
b. Count 6 - Between May 1, 2017 and January 31, 2018 did commit a sexual assault on R.N. contrary to s. 271 of the Criminal Code.

[7] The pleas were confirmed after a plea inquiry. Mr. M. was specifically asked if he understood that I was not bound by any agreement made between him and his counsel and the Crown as to sentence and he answered yes.

[8] The Crown read in the facts as follows:

Count 4

With respect to count four, on May 29th, 2020, J.N. attended the Thunder Bay O.P.P. detachment and provided officers with an audio-video statement with respect to that count, which included the following information. She lived with the accused, G.M., when her mother, E.N., began a relationship with him. The family resided in Slate River before moving to O’Connor Township. Shortly after Mr. M. and Mrs. E.N. started dating, he began to sexually assault her. The assaults continued for approximately 10 years until she requested they stop in March or April of 2020. She advised that the first assault occurred when she was approximately seven years old in the fall of 2010. The last assault occurred in either March or April of 2020. The first assault occurred in the residence at Slate River. They lived in an older home there on Highway 130. They went out to the barn to get firewood. While they were in the barn, he put his hand down the front of her pants, underneath her pants, under her garments. He digitally penetrated her for approximately five to six minutes. He told her that it was because he loved her and that it needed to be their secret and not to tell anyone. He also told her before he did it that it was going to “tickle.”

The second assault occurred approximately one to two weeks after the first. J.’s mother, E.N., was at work with her two younger brothers outside. Mr. M. told J. to go upstairs to the bedroom. Once they were in the room, he again told her that he was doing this because he loved her. He had her lie on the bed. He removed her pants as well as his own. He said it would only hurt for a second and then it would feel good, and you would want more. He digitally penetrated her vagina—oh, sorry, he, yes, without a condom, and then he ejaculated in her mouth and told her to swallow. She told him that it hurt her vagina. He then on subsequent occasions began to penetrate her anally with his penis, again while she was still very young, approximately seven. This happened again in the Slate River residence. There was another incident of anal penetration approximately two weeks later. Then there was a further incident when he brought her into the living room when no one else was around. He removed the cushions off the couch, put one on the floor, and had her kneel. He then had directed her to bend over the arm rest of the couch and place her hands on the cushions prior to penetrating her anally, and he ejaculated. During the sexual assault, he was the one to remove her pants, her pants as well as his own. She noted she remembers the couch being green in colour. Again, the penetrative assaults lasted for a couple of weeks. She said he stopped doing it for a while because he didn’t care anymore. She was instructed on other occasions to perform fellatio upon him and to swallow his semen. There was one incident where she spit it out and he became very upset and accused her of being “ungrateful." The sexual assaults continued on a weekly basis, with her performing fellatio on him and he vaginally penetrated her with his penis, over the next 10 years until she was 17 years of age.

In the summer of 2017, she started texting a boy. She stated she had a crush on him. Both Mr. M. and E.N. found the text messages on her phone. He took her out to the tent for “a sleepover.” These sleepovers happened quite often—he being Mr. M. When she got out to the tent, she sat on the floor. He would put a movie on and start eating chips. He would then grab her by the hair, remove her pants as well as his own, and put her on the air mattress. He vaginally penetrated her with his penis and told her, “That’s what she wanted.” “This is what would happen if she liked other boys.” It became a regular occurrence for J. and Mr. M. to sleep together in the tent. He would tell her to come out. J. would listen in fear of him and get angry, sorry, would listen in fear, for fear of him getting angry. J. stated that he would make her do everything that “a married couple would do.” She described him as making her perform oral sex on him. He would penetrate her vaginally with his penis and also would do so digitally. On occasion, he would perform oral sex upon her. When she wasn’t lubricated enough for sex, he would require her to spit as lubricant. In June of 2019, she had an I.U.D. placed by a doctor, which she indicated he had pressured her for so he would be able to ejaculate inside of her without fear of her becoming pregnant. She ultimately broke off all contact with him and ended the relationship. He did not take that well and texted her. Out of fear of him, she attended at the O.P.P. station and advised them of these facts. Those are the facts upon which the Crown relies.

Count 6

October 26, 2020, E.N. attended the O.P.P. station with her son, R.N. He had disclosed to her recently that he’d been sexually assaulted by his stepfather in the past. He advised that he had been sexually assaulted on two separate occasions between the 1st of May 2017 and the 31st of August when he was living at 267 Sitch Road, O’Connor Township, with his stepfather and mother and sister, J.N. He usually slept in his own bedroom, but on this occasion the accused asked him if he would like to watch movies and sleep in the camper trailer outside. He agreed and went to the trailer. When he entered the trailer, the accused locked the door, removed his pants, and had R.N. remove his pants. He then sexually assaulted him by inserting his penis into his anus. The sexual assault lasted for an extended period of time and then ended when Mr. M. got dressed and fell asleep in the bed in the camper trailer.

The other occasion occurred in the fall of 2017 or the very early January of 2018. On that occasion, R. was at a short term stay at 267 Sitch Road, O’Connor, for Christmas break. He had been residing elsewhere. Between December 1st, 2017, and January 31st, 2018, while at home, Mr. M. offered to take R. for an A.T.V. ride. The two left the residence and continued to a trail and a cabin off of Rosengren Road. The cabin was owned by a local community member and intended for public use and was left unlocked and intended to be used for people accessing the A.T.V. trail, but when they arrived at the cabin, Mr. M. removed his pants and had R. remove his clothing. He then bent R. over benches in the room and sexually assaulted him. At this point in time, R. was 13 years old. He assaulted him by inserting his penis into R’s anus. The assault continued for approximately 30 minutes. Then they both got dressed and returned home. Those are the facts upon which the Crown relies.

[9] On behalf of Mr. M., Mr. Labine acknowledged these facts.

[10] Accordingly, convictions were entered with respect to Counts 4 and 6 on the indictment and a presentence report was ordered. Mr. M. surrendered himself into custody.

The Sentencing Hearing

The Victim Impact Statements

[11] I have summarised each victim impact statement using the words of the speaker.

Stepson and Victim of Count 6

• During the offence I was angry and horrified
• After I was disgusted with myself, mortified, embarrassed and in shock
• I feel angry that I cannot trust people like I used to
• I now push away loved ones and prefer to be by myself
• I feel like if I stay by myself no one can hurt me
• I have been unable to attend school due to anxiety and stress
• Recently, I returned, however find it very difficult to attend regularly
• I am always anxious and fidgety
• I am constantly on guard around strangers in settings I should be comfortable in or in public
• I always look for all the exits anywhere I go and map out the way to get out
• I feel I will never be safe if the accused is free

Stepdaughter and Victim of Count 4

• I stand before you today as a survivor, not just of rape or sexual assault, but of a decade long emotional prison
• Deeply affected every crevice of my life
• Tightly controlled by his manipulation
• Impossible to avoid flashbacks
• Not only did I lose my sense of safety, I lost a good majority of support in my life at 17
• When I first started school and my careers, I was terrified
• I knew that I was going to be consistently alone and it started to affect my attendance in both
• Only through years of therapy was I able to learn how to construct a support group and safety plans
• Although I strive to heal from the wounds that G inflicted upon me the journey feels like an uphill battle
• Throughout my formative years and in my childhood, G instilled a profound fear for my safety
• This continues to pervade every aspect of my life
• From a constant barrage of threats and intimidation in my childhood, I grew up to live in a state of perpetual anxiety
• This fear has become deeply engrained in me manifesting a reluctance to go anywhere alone in fear of encountering harm
• Due to this, for a significant portion of my life, I have avoided solitary excursions seeking safety in the presence of others
• This has affected all of my closest relationships
• Haunted by the specter of vulnerability and unsafety
• The persistent sense of unease and concern has cast a shadow on my adult life shaping my decisions and interactions with an ever-present apprehension

Son of Mr. M. and half brother to victims

• After finding out what the offence was, I was angry, depressed, filled with anxiety, lost and confused
• Offence was going to change my life forever
• I was angry that someone I trusted could hurt my brother and sister in that way
• I no longer want any extended family to be involved with me and no longer want my last name to the same as the accused
• I lost time with my sister that I will never get back
• I now suffer from insomnia
• Every day I have nightmares of the offences and the pain my siblings went through
• My trust is broken
• I suffer from depression and am now medicated
• It is easier for me to be alone because I fear if I do make friendships that they will hurt me in the same way as the accused
• I suffer from bad anxiety and panic attacks
• I don’t know what will ever make me feel safe
• I never want the accused to know the location where I live with my family

Mother of Victims and former wife of G.M.

• Every morning I need to remind my children and myself that they will never be hurt again
• My relationship with my children and my family will never be the same
• My sons do not trust anyone other than myself
• My relationship with my daughter is so strained I am unsure if it will ever be fixed
• I have completely lost the ability to have any quality sleep
• I have become a very irritable person and experience mood swings
• It is very difficult to eat anything
• Continuous feelings of sadness, emptiness and hopelessness haunt me every day
• Allowing new people into our lives is next to impossible
• I don’t know if my children and I will ever feel safe again

The Pre-Sentence Report

[12] The probation and parole officer interviewed Mr. M., his parents, his then-roommate, his stepdaughter, and his former spouse. She also reviewed the victim impact statements, Children’s Aid Society records, and records from the police and Ministry of the Solicitor General.

[13] Mr. M. is 49, born in 1976. He graduated from secondary school, worked initially as a janitor with his father and then attended and completed transport truck driving school. He drove transports for about 13 years, and then gravel trucks.

[14] In late 2012, Mr. M. became ill with blastomycosis pneumonia, which required hospitalization followed by a long period of recovery. He did not return to work and was on social assistance and then, in 2017, received a CPP disability pension. He has been diagnosed with Chronic Obstructive Pulmonary Disease (COPD) and also suffers from chronic fatigue. He has also received treatment for chronic pain. He has suffered from mental health issues, including anxiety, and received treatment in 2018. He has also had counselling.

[15] He met the mother of his victims, E.N., in 2006 when he was 30 years old. Her two children from a previous relationship had been apprehended by the CAS. They had a son together and her two children were returned to their care in 2011. In 2012, all three children were apprehended by the CAS and were returned about a year later. In late 2017, the stepson was placed with his maternal grandparents.

[16] Mr. M married E.N. in 2012. E.N. acknowledged that she loved her husband but is now able to see the manipulation and control that enveloped her marriage and family.

[17] The probation and parole officer conducted two in-person interviews with Mr. M. She noted that he had no prior criminal record and that, following his arrest for these offences, he remained in the community without incident for approximately three years. The officer stated as follows:

He did state his remorse for the current offending. However, his remorse was difficult for this writer to ascertain, given he denied culpability during the interviewing process and, only days ago in a telephone message, stated he would 'like to change his statement to very remorseful'. No further details were able to be attained by this writer.

Statement to the Court

[18] When given an opportunity to speak to the Court, Mr. M. said that he was sorry, “just super sorry”, and that, if he could take it back, he would.

Positions of the Parties

April 12, 2024

[19] The Crown made written and oral submissions. In the Crown’s submission, “due to the acceptance of responsibility and remorse” a sentence of four years imprisonment for both offences was appropriate—two-and-one-half years for the sexual assaults on his stepdaughter from age seven to seventeen and one-and-one-half years for the two sexual assaults on his stepson. The Crown described this sentence as the “absolute minimum” that the Court should consider. The Crown noted, citing R. v. A.K. and R. v. Friesen, that the overarching sentencing principles applicable to sexual assaults on children are denunciation, deterrence, and the protection of children, and that offences involving the repeated sexual abuse of a child where the offender is in a position of trust should routinely attract sentences in the mid to high single digit range.

[20] The Crown conceded that Mr. M. should receive credit for his time in custody since December 11, 2023, at a 1.5 to 1 credit.

[21] The Crown also sought the following ancillary orders: s. 109 weapons prohibition order for ten years; an order that Mr. M provide a sample of his DNA; an order that Mr. M. be placed on the Sex Offender Registry for 20 years pursuant to s. 490.013(2)(b); and an order under s. 161 of the Criminal Code that, for a period of ten years following his release Mr. M. not attend any public area when children under the age of sixteen might be present or seek any employment or position where he would be in a position of trust with any persons under the age of sixteen.

[22] In justifying capping the Crown’s sentencing submission at four years, the Crown noted that Mr. M. entered his pleas before trial, albeit at the commencement of trial, and spared both victims the trauma of having to testify and the “trauma of having to be examined by an experienced criminal lawyer, no doubt at great length.” The Crown described the guilty pleas as a “not inconsequential concession”.

[23] At the conclusion of the Crown’s submissions, I expressed concern with the Crown’s submission that the sentencing range should be capped at four years. I referenced the recent Court of Appeal decision of R. v. B.M.. In that case, the Court of Appeal imposed a sentence of seven years imprisonment for a young man who assaulted a boy and a girl starting at about age twelve. The offender lived in the same house as the children but was not a parent. The seven-year sentence was imposed notwithstanding that the Crown’s stated position was for a four-year sentence.

[24] On this occasion, counsel for Mr. M. suggested that a fit sentence was a sentence of two years less a day plus the presentence custody, which then would have been equivalent to a sentence of 31 months. In addition, it was submitted that the offender could be placed on probation for three years with a condition that he not contact the victims.

[25] At the conclusion of the submissions, I asked counsel to return before me for further submissions so that I can be satisfied that the “cap” is appropriate in the circumstances.

Further Sentencing Submissions – December 30, 2024

[26] When this matter was next before me the Crown advised that counsel for the defence “has adopted the position that this is a joint submission for four years.” Other than the plea of guilty, the Crown offered no further submissions in support of a sentence of four years for these offences.

[27] Counsel for Mr. M. stated that this was a joint submission from “the most senior Crown and the senior defence”, that this was now a joint submission, and that I had misinterpreted the submissions made previously.

[28] Counsel for Mr. M. also submitted that, if I did not accept the joint submission, I should give Mr. M. the option of vacating his guilty pleas.

[29] The Crown replied that it was not mandatory that I allow Mr. M. the option of vacating his pleas.

[30] The Crown also sought an order that Mr. M. have no contact with either victim under s. 743.21 of the Criminal Code.

The Law

Sentencing for Sexual Abuse of Children – The Cases

2020

[31] In 2020, the Supreme Court of Canada released its landmark decision on sentencing of offenders who have sexually abused children.

[32] In Friesen, Mr. Friesen pleaded guilty to sexual interference of a four-year-old child on one occasion and received a sentence of six years. Mr. Friesen was 29, had no prior record, and was deemed to be a high risk to re-offend. Chief Justice Wagner and Justice Rowe emphasized several considerations for sentencing in these cases:

To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. [Friesen, para. 50]

Sexual violence cause additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is also accompanied by a breach of a trust relationship. [Friesen, para. 60]

The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, or participate in social activities. [Friesen, para. 61]

The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents and caregivers’ trust in friends, family, and social institutions and leave them feeling powerless and guilty. [Friesen, para. 63]

[M]id-single digit penitentiary terms for sexual offence against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional cases. [Friesen, para. 114]

[33] In Friesen, the Supreme Court listed some of the significant factors to determine a fit sentence:

a. likelihood to reoffend;
b. abuse of a position of trust or authority;

The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility. An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. [Friesen, para. 129]

…an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. [Friesen, para. 130]

c. duration and frequency;

The duration and frequency of sexual violence is a further important factor in sentencing. The frequency and duration can significantly increase the harm to the victim. The immediate harm the victim experiences during the assault is multiplied by the number of assaults. Moreover, the long-term emotional and psychological harm to the victim can also become more pronounced where the sexual violence is repeated and prolonged. It also increases the offender’s moral blameworthiness because the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults. [Friesen, para. 131]

In sum, sexual violence against children that is 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, para. 133]

d. age of the victim;

These realities flowing from the age of the victim are both relevant to the gravity of the offence and the degree of responsibility of the offender. Sexual offences against children are wrongful precisely because the perpetrators recognize and exploit children’s special vulnerability. It follows that the moral blameworthiness of the offender is enhanced when the victim is particularly young and is thus even more vulnerable to sexual violence. [Friesen, para. 135]

2022

[34] In A.K., the Ontario Court of Appeal upheld a post-trial sentence of eight years when a great uncle, with no prior record, sexually assaulted his great niece approximately 15-20 times over a six-year period starting when his great niece was seven years old.

[35] In R. v. A.P., the Ontario Court of Appeal imposed a post-trial sentence of nine years for the offender’s sexual abuse of his stepdaughter over many years from when she was around ten years old until she was around eighteen years of age. The abuse involved all manner of sexual abuse, including oral, vaginal, and anal penetration. The court noted that these were “egregious offences, involving a breach of trust, committed repeatedly over many years, in what should have been the safety of this child’s home”. The court noted that as “expected, there is profound victim impact here.”

2023

[36] In B.M., as noted, the accused was between 18 and 22 years of age when he sexually abused two children, a male and a female, who resided in the same home. The abuse extended over a period of 43 months and started when the children were about twelve years old. With the male, the abuse started with touching and escalated to anal penetration on four occasions. When the male child refused any further sexual activity, the offender started to abuse the female, which consisted of 20 to 30 incidents of vaginal penetration. This was a Crown appeal from a conditional sentence. On appeal, the Crown sought a four-year sentence based on the stage of the proceedings. The Court gave notice that this sentence might be considered lenient and requested further written submissions. The Court considered the following mitigating factors. The offender was young when these offences started—18. He entered a guilty plea, but only after the victims had testified at a preliminary inquiry. He had mental health issues which were indirect contributing factors and appeared genuinely remorseful. In light of these factors, the passage of time, and the Crown’s position on sentencing, the Court concluded that fit sentence was seven years less time served.

2024

[37] In R. v. K.G., the offender repeatedly abused his niece for over 11 years, until she was 16. Following trial, he was sentenced to imprisonment for nine years. The Court of Appeal dismissed the sentence appeal.

[38] In R. v. T.J.W., the offender was sentenced to five years concurrent for two counts of sexual interference upon his niece when she was between eight and twelve years old. The offences involved touching, but no penetration. The offender was 76 years old at sentencing. The main ground of the sentence appeal was that the trial judge failed to consider how a penitentiary sentence would impact the offender given his age. Of the trial judge’s reasons, the Court of Appeal stated as follows:

He held, correctly, that the primary sentencing objectives in the case were denunciation and specific and general deterrence. He found the appellant’s moral blameworthiness to be “very high”, given that the appellant abused a vulnerable young girl’s trust and used her for his sexual gratification many times over a lengthy timeframe.

2025

[39] In R. v. L.B., the offender was convicted of sexually abusing his adopted daughter and physically assaulting his adopted son. In not interfering with the ten year “global” sentence imposed by the sentencing judge, the Court of Appeal stated as follows, at para. 9:

[9] The aggravating features of the appellant’s offences were severe. The appellant’s unrelenting and hideously vicious, protracted abuse of his adopted children in their home where they should have felt safe represented a gross breach of trust and had a significant impact on the victims. As the sentencing judge concluded, the appellant’s actions “all call out for the strongest possible public condemnation”. Moreover, the appellant had a serious albeit dated criminal record including two relevant entries for violent crime—an armed robbery and a sexual assault.

Departing From Joint Submissions and Exceeding the Crown’s Submissions on Sentence

[40] In R. v. Anthony-Cook, the Supreme Court of Canada set out a stringent test for the rejection of joint submissions, stating that trial judges should exhibit restraint by “rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.”

With respect to this stringent test the Court stated as follows:

[44] Finally, I note that a high threshold for departing from joint submissions is not only necessary to obtain all the benefits of joint submissions, it is appropriate. Crown and defence counsel are well placed to arrive at a joint submission that reflects the interests of both the public and the accused. As a rule, they will be highly knowledgeable about the circumstances of the offender and the offence and the strengths and weaknesses of their respective positions. The Crown is charged with representing the community’s interest in seeing that justice is done. Defence counsel is required to act in the accused’s best interests, which includes ensuring that the accused’s plea is voluntary and informed. And both counsel are bound professionally and ethically not to mislead the court. In short, they are entirely capable of arriving at resolutions that are fair and consistent with the public interest. [Citations omitted].

[41] The Court also set out some guidance for trial judges when they are “troubled by a joint submission on the sentence.”

[42] First, trial judges should approach joint submissions on “an ‘as-is’ basis”, that is, the trial judge should not add or detract from a joint submission except for mandatory orders.

[43] Second, trial judges should apply the public interest test when they are considering “jumping”, or “undercutting”, a joint submission. Under this test, trial judges “should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest”.

[44] As noted by Justice Moldaver:

Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.

[45] Third, the trial judge will need to know about the circumstances of a joint submission when presented with a contentious joint submission. This would include any benefits obtained by the Crown, or concessions made by the accused. The Court stated the following:

For example, if the joint submission is the product of an agreement by the accused to assist the Crown or police, or an evidentiary weakness in the Crown’s case, a very lenient sentence might not be contrary to the public interest. On the other hand, if the joint submission resulted only from the accused’s realization that conviction was inevitable, the same sentence might cause the public to lose confidence in the criminal justice system.

[46] This places a corresponding obligation on counsel:

Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence, and the joint submission without waiting for a specific request from the trial judge. As trial judges are obliged to depart only rarely from joint submissions, there is a “corollary obligation upon counsel” to ensure that they “amply justify their position on the facts of the case as presented in open court”. Sentencing—including sentencing based on a joint submission—cannot be done in the dark. The Crown and the defence must “provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence”, in order to give the judge “a proper basis upon which to determine whether [the joint submission] should be accepted”.

This is not to say that counsel must inform the trial judge of “their negotiating positions or the substance of their discussions leading to the agreement”. But counsel must be able to inform the trial judge why the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest. If they do not, they run the risk that the trial judge will reject the joint submission. [Citations omitted].

[47] Fourth, if not satisfied with a joint submission, the trial judge should notify counsel that the judge has concerns and invite further submissions.

[48] Fifth, if unsatisfied by the submissions, the judge may allow the accused to withdraw the guilty plea.

[49] Finally, the trial judge should provide “clear and cogent” reasons for departing from the joint submission to explain why the proposed sentence was unacceptable and facilitate appellate review.

[50] In R. v. Nahanee, the Supreme Court of Canada held that the Anthony-Cook framework does not apply to contested sentencing hearings following a guilty plea. However, if the sentencing judge is considering imposing a sentence harsher than the sentence proposed by the Crown, the judge should notify the parties and give them an opportunity to make further submissions.

[51] A sentence following a contested sentencing hearing will only be set aside if the sentencing judge failed to provide adequate notice that the judge was considering imposing a sentence that exceed the Crown’s position, and the judge committed an error in principle that impacted the sentence.

Analysis

The Proposed Sentence

[52] Contrary to the submission made by counsel for Mr. M on December 30, 2024, when Mr. M. pleaded guilty, which pleas were confirmed after plea inquiry, there was not a joint submission on sentence but a contested sentencing hearing with a sentence “cap” agreed to by the Crown of four years imprisonment.

[53] I expressed concern that the “cap” was not in alignment with similar cases and requested additional submissions. When counsel appeared before me again, I did not receive any further submissions or any other information to allay my concerns that the proposed “cap” was inadequate, but instead I was told that there was now a joint submission for a four-year sentence.

[54] Contrary to the obligation imposed on counsel, I was not informed “why the proposed sentence would not bring the administration of justice into disrepute or otherwise be contrary to the public interest”.

[55] The pleas came three years after Mr. M. was arrested and on the morning that trial was to commence. There was no indication that there was any issue with proof of the Crown’s case. The Crown indicated on the record that the Crown was prepared to proceed. There was no indication, in any submissions from the Crown or defence, that there was any evidentiary weakness in the Crown’s case or reluctance of witnesses to testify. Trial was set for three days, so there were no systemic advantages gained by a guilty plea such as eliminating a lengthy and costly trial with many witnesses. The only rationale given was it saved the victims from having to testify. I accept that this is a significant factor that weighs heavily in favour of accepting a joint submission. However, the reluctance of the witnesses to testify was never raised as factor for my consideration.

[56] As the cases cited confirm, denunciation and deterrence are the primary sentencing goals. Mr. M. was in a position of trust and authority. He was the stepfather of these children. He was to protect them, not abuse them. Instead, he perpetrated sexual violence upon them; in the case of his stepdaughter, acts of sexual violence over a ten-year period starting around the extremely vulnerable age of seven years old. The acts started with digital penetration of her vagina, penile penetration of her vagina and anus, and forced fellatio. These acts continued until she was about 17 years old. Mr. M. pressured her to get an IUD inserted in 2019 so she would not become pregnant. He sodomized his stepson on two occasions when he was around 12 or 13 years old. As the victim impact statements indicate, these acts of sexual violence have profoundly harmed the victims in all aspects of their lives. The “ripple effects” of sexual violence, as set out in Friesen, are present for both victims. Relationships have been permanently damaged. Future relationships are compromised.

[57] The cases of A.K., A.P., K.G., and L.B. are similar in terms of the age of the victims and the duration of the sexual assaults, with the offenders being in positions of trust: a great uncle, uncle, stepfather, and adoptive father. The sentences imposed after trial were eight, nine, and ten years imprisonment.

[58] The sentence in B.M. was seven years imprisonment after guilty plea. The offences involved two victims over less than four years.

[59] T.J.W. received five years concurrent for sexually assaulting his niece when she was between eight and twelve years old. However, he was 76 years old at sentencing.

[60] Mr. M. is 49. His guilty plea came at the last possible moment, three years after his arrest. He expressed remorse. He has health issues that prevent him from being able to work. He surrendered into custody on December 11, 2023. He has been in custody 561 days and in custody following his arrest for 19 days, for a total of 580 days.

[61] Given these circumstances, the factors set out in Friesen, and the sentences imposed or confirmed by the Court of Appeal in other cases, I am of the opinion that the proposed sentence would bring the administration of justice into disrepute and is not otherwise in the public interest. Mr. M. preyed upon his young and vulnerable stepchildren through repeated acts of sexual violence and has caused long lasting damage to children he should have protected. The proposed joint submission is, in the words of Justice Moldaver, “so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.”

Should I Allow Mr. M. to Apply to Withdraw his Pleas?

[62] In Anthony-Cook, the accused entered a guilty plea to manslaughter on the basis of the joint sentence submission. The trial judge rejected the joint submission and imposed a longer custodial sentence than the joint submission and added a three-year period of probation. The trial judge noted that counsel had overestimated the credit for presentence custody and was concerned that, with that the probation order, the public would not adequately be protected. He invited Anthony-Cook to withdraw his guilty plea, if he wished to do so. Anthony-Cook declined to do so.

[63] As noted, Justice Moldaver said the following about the withdrawal of guilty pleas when a joint submission is not accepted:

Fifth, if the trial judge’s concerns about the joint submission are not alleviated, the judge may allow the accused to apply to withdraw his or her guilty plea. The circumstances in which a plea may be withdrawn need not be settled here. However, by way of example, withdrawal may be permitted where counsel have made a fundamental error about the legality of the proposed joint submission, for example, where a conditional sentence has been proposed but is unavailable.

[64] Since Anthony-Cook, other cases have dealt with withdrawal of guilty pleas when a joint sentence submission may be rejected. In R. v. Espinoza-Ortega the Ontario Court of Appeal stated that rejection of a guilty plea is not limited to cases involving an illegal sentence. In that case, the accused did not know the legal consequences of his plea because he did not know that the Crown would not argue that the joint position would not be contrary to the public interest. The trial judge did not allow the accused to withdraw the guilty plea and the Court of Appeal ordered a new trial.

[65] In R. v. Fuller the trial judge expressed concern with a joint submission following a guilty plea for robbery where the offender had a lengthy criminal record. At counsel’s request, sentencing was adjourned to permit the offender to bring an application to set aside the guilty. On the next return date, Crown and defence submitted a joint submission that provided for a sentence that was one year longer. The judge did not accept the joint submission but did not give any reasons for rejecting the second joint submission. He did not allow the offender to withdraw his plea as the plea was voluntary, unequivocal, and informed. The trial judge noted that the case against Fuller was overwhelming and there was nothing that Mr. Fuller gave up by pleading guilty.

[66] In this case, Mr. M pleaded guilty but not on reliance of a joint submission as to sentence but with a “cap” agreed to by the Crown.

[67] Although a plea inquiry was conducted with Mr. M. acknowledging that he understood that I was not bound by any agreement as to sentence and, although Mr. M admitted the facts supporting the convictions, I cannot say that the case against Mr. M. was overwhelming.

[68] Accordingly, Mr. M. will be given an opportunity to apply to have his plea withdrawn. He is remanded to assignment court July 28, 2025 to set a date for that application.

“Original signed by”
W.D. Newton

Released: June 23, 2025