CITATION: R. v. E.J., 2025 ONSC 3829
CR-23-00000026-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
E.J.
Defendant
Hanieh Azimi, for the Crown
Michael Hayworth, for the Defendant
HEARD: December 20, 2024
NOTE: This ruling is being delivered orally today; however, the written version is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the written version that is the official record to be relied upon.
Secondly, while I am using given names today, names will be anonymized in the written version.
1On December 8, 2023, following an eight-day trial, E.J. was convicted of the following counts in respect of his stepdaughter, E.M.:
Sexual assault
Sexual interference
Forcible confinement
Assault
Assault with a weapon
Choking
2Crown submitted, and defence agreed, that counts 1 and 5 should be stayed pursuant to the principles set out in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. I accept counsels’ submissions on this issue, and counts 1 and 5 are hereby stayed.
3Sentencing submissions were scheduled for May 23 and May 24, 2024 for both E.M.’s mother, D.T., and E.J.
4On May 23, 2024, E.J. did not attend court, and a bench warrant was issued. He did, however, surrender himself into custody, where he has remained since.
5On May 24, 2024 three procedures occurred in court. First, counsel for E.J. requested, and was granted, an adjournment to permit preparation of both a Gladue Report and Pre-Sentence Report.
6Second, E.J. plead guilty to the following four counts in respect of his niece, G.S.:
Sexual interference
Invitation to sexual touching
Sexual assault
Assault
7Finally, G.S. and E.M. provided their powerful victim impact statements to the court. The Crown read out G.S.’s statement, while E.M. read her own.
8Sentencing submissions for E.J. were heard on December 20, 2024. The following reasons explain the sentences I impose today on the eight counts before me.
9In addition to the evidence at trial, the Gladue Report and the Pre-Sentence Report, there was a letter of recommendation from the Enaahtig Healing Lodge and Learning Centre, a letter of support from the Barrie chapter of the Salvation Army, and a letter of apology penned by E.J.
10The details of the offences and my findings in respect of E.M. are set out in my oral reasons delivered on December 8, 2023. I need not repeat them here other than to note that E.M. is E.J.’s stepdaughter. She was sexually and verbally abused by E.J. E.M. was locked in closets for misbehaving. She was tied up. She was punched, choked, and made to stand in a corner for hours at a time. She was locked outside overnight more than once. These offences were visited upon E.M. between the ages of 12 and 16, and stopped only once she ran away from home to the safety of relatives.
11I will outline the offences against G.S. in greater detail, as they have not been memorialized in a decision. G.S. is E.J.’s niece by marriage. The sexual assaults started in 2003 when G.S. was 13 years old. She and her family were visiting the Js on an extended holiday. During the visit E.J. first digitally penetrated G.S., and then had vaginal intercourse with her on the floor of the basement bathroom while others were upstairs.
12G.S. returned home and told no one about what had happened. She was having difficulty at home, and it was decided that she would live with E.J. and his wife. E.J. picked up G.S. on February 18, 2004. On the way back to his home he stopped at a motel and had vaginal intercourse with her.
13From 2004 to 2008 E.J. continued to receive oral sex and have sexual intercourse with G.S. He initiated anal intercourse until G.S. refused to allow him to any longer. The assaults generally happened at home, but on occasion took place elsewhere. E.J. told her he had had a vasectomy so he did not use protection.
14When she was 14 years old G.S. became pregnant. E.J.’s wife could not have children, so they adopted the child. E.J.’s wife did not know who the father was, and the Js raised G.S.’s child as their own.
15Following the child’s birth G.S. continued to live with the Js, and E.J. maintained his sexual relationship with her. On occasion he would withhold or promise G.S. something to facilitate her sexual compliance. On one occasion he was jealous and threatened to kill her.
16G.S. left the J. home to attend university. E.J. would visit there, and take her to a hotel to have sex, although he could not maintain an erection.
17During a visit to the Js over the Christmas break in 2008, E.J. got mad at G.S. and was physically abusive.
18Following that visit G.S. returned to university and separated herself from the Js. This is when the sexual assaults stopped.
Circumstances of the Offender
19E.J. is 52 years old. He is Indigenous. He has a lengthy criminal record dating back to 1993 for theft, assaults, assault with a weapon, uttering threats, and failures to comply. He was convicted of sexual assault in 1999, which I am advised consisted of a pat on someone’s bottom, and received a 60 day intermittent sentence.
20He has two children, a son and a daughter.
21I note the following from the reports tendered into evidence.
Pre-Sentence Report
22The report states that E.J. was born in Vancouver to Indigenous parents. He never met his biological father, as his conception was the result of a sexual assault on his mother.
23His mother met and began a relationship with his step-father, but she eventually left E.J. and his siblings to be raised by his stepfather. E.J. viewed his stepfather as his father, so I will refer to him as E.J.’s father. E.J. maintained a relationship with his father until he passed in 1997.
24He described a positive familial environment until the age of seven, when his stepsister died. This exacerbated his father’s alcoholism, leading to abusive and violent behaviour. There was physical abuse in the house, including beatings, slapping, the use of a belt. E.J. was pulled around by his hair, and left outside in winter without suitable clothing.
25When he was around twelve he was kicked out of his father’s home for a period of time and moved in with a family friend. This family friend sexually abused him.
26CAS was involved with the family often, resulting in various placements in foster homes.
27When he was fifteen E.J. returned to Vancouver. He relocated to Watson Lake Yukon at eighteen, following which he returned to Kirkland Lake. E.J. has lived in Barrie since the age of twenty-one.
28E.J. met his biological mother when he was fourteen. She passed in 2001.
29E.J. was close to his biological brother, Er. who was murdered in 2023. He also had five stepsisters, but only one that he has any semblance of a relationship with. He believed their lives were burdened by substance abuse.
30E.J. had behavioral issues in high school – fighting, truancy, threatening others to get them to do his work, and left after grade 10. When he was twenty he was diagnosed with dyslexia.
31He graduated from college with a culinary certificate. He worked as a chef at a local golf club, and ran his own catering business.
32E.J. has a history of substance abuse. He started drinking at thirteen, and his addiction affected all aspects of his life, including school, employment, and his introduction to the criminal justice system. He was also addicted to narcotics, progressing from marijuana to any and all forms of drugs, including crack and crack cocaine.
33E.J. tried to commit suicide several times as a youth and young man.
34E.J. has been sober since being incarcerated on May 23, 2024. He hopes to receive treatment for his mental health and substance abuse.
Gladue Report
35Gladue reports provide information about an Indigenous offender’s background, and identify systemic factors that may have contributed to their involvement in the justice system.
36The Gladue report prepared on E.J.’s behalf confirms many of the findings from the pre-sentence report regarding E.J.’s personal history, and adds the following contextual overlay.
37E.J. is from the Anspayaxw Band. His aboriginal heritage comes from his mother, who was the sixth of nine children. E.J. did not know his maternal grandparents, both from the Kispiox Band of the Gitskan. He was close to his maternal uncle, and maternal aunt, both of whom are deceased.
38E.J.’s grandparents, mother, uncles and aunts all attended the Alberni Residential School on Vancouver Island. The majority of them died young from addictions, and suicides, and even homicide.
39Alberni garnered a reputation for mistreatment of children, and employed two dormitory supervisors who were eventually convicted of sexual assault.
40E.J. said his family only ever talked about their residential school experiences when they were drinking. His mother was sexually assaulted there multiple times. His uncle was beaten.
41According to the findings complied in “Reclaiming Connections: Understanding Residential School Trauma Among Aboriginal People1,” the intergenerational effects of residential schools include:
communication barriers, especially an inability to express affection;
families where no nurturing or affection was present for generations;
discomfort expressing love for children in physical ways, especially hugs;
lack of communication within the family;
children taken into custody by CAS;
addictive and self-destructive behaviours.
42E.J. reported that his grandparents, aunts and uncles were impacted by their attendance at residential school. Parenting was interrupted. There were addiction and mental health issues: his mother was sexually assaulted at 13 by her uncle; his grandfather shot his grandmother and then shot himself; most of his family on his mother’s side, including his mother, committed suicide and suffered from mental health issues.
43Twice E.J.’s father tried to kill him and his brother.
44Life in Kirkland Lake was difficult. As the only natives in a white community, they were disparaged. E.J. had to fight every day. He was beat up many times. He hated white people for the way they were treated.
45E.J. moved to Vancouver when he was fourteen and connected with his mother. Their time together at first was meaningful, she taught him how to bead and loom. But things grew difficult as she started to drink and use drugs, introducing E.J. to crack, heroin and pills at fifteen. His mother’s friend sexually abused him multiple times, leading E.J. to run away and live on the streets.
46E.J. made multiple attempts to take his life. As he stated “I hated being Native, that’s why I tried to kill myself. I’m surprised from 15 to now, I’m still alive. Drugs, needles, pills, alcohol, very bad drugs: heroine, crack.”
47The Gladue report concluded with the following:
Intergenerational burdens carried by E.J.’s family due to colonial impacts include interruption in parenting, addiction and suicide. E.J.’s maternal grandparents, mother, aunts and uncles attended residential school resulting in suicide. E.J.’s mother endured sexual abuse and committed suicide. E.J. was apprehended, sexually abused, homeless and coped through drugs and alcohol abuse. Like his grandfather, mother and some of her siblings, E.J. also attempted suicide.
48E.J. would like to return to British Columbia and introduce his children to their heritage.
Impact on the Victims
49The Supreme Court in Friesen spoke to the impact of sexual assaults on children and their lasting effects:
Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity. Citations omitted. For this reason, even a single instance of sexual violence can “permanently alter the course of a child’s life” (Stuckless, (2019), at para. 136, per Pepall J.A.) As Otis J.A. explained in L. (J.-J.), at p. 250:
[Translation] The shattering of the personality of a child at a stage where the child’s budding organization as a person has only a very fragile defensive structure, will result – in the long term – in suffering, distress and the loss of self-esteem.
R. v. Friesen, 2020 SCC 9, at para. 58.
50As I listened to the victim impact statements it was brought home to me how the offences perpetrated by E.J. have had a profound impact on G.S., E.M., and their families.
G.S.
51G.S. has known E.J. since she was eight. The period of the Indictment covered events that occurred when G.S. was between thirteen and eighteen. The incidents of sexual assault were too numerous to put a number on.
52The sexual abuse led G.S. to become overly cautious of others. She is unable to connect with men in a healthy way, which prevents her from having a romantic relationship. This is particularly painful given her life-long dream of having a husband and children.
53Now 33, G.S. leads a single life. Any kind of sexual intimacy repulses her. Years of therapy have not been able to alleviate these feelings.
54G.S. felt she was tricked, lured, groomed and manipulated into being taken from her family when she was experiencing difficulty in her home life. She was led to believe she was in a secret romantic relationship with Mr. Johnston. She was estranged from her family for almost five years, and she feels immense guilt and sadness for making choices that she does not believe were her own. She struggles with guilt and regret daily.
55G.S. suffers from a life-long STD caused by the sexual assaults. At 14 she had to hide her body from the signs of pregnancy.
56She is on medication for anxiety, and experiences physical stress in the form of nausea, which can last for months at a time.
57G.S. is concerned for her safety once E.J. is released.
58G.S. was devastated and angry as she watched her son being raised as her cousin. Being convinced to give him up has caused her immense sadness, regret, pain and suffering. She dwells upon what life might have been had she been able to raise him. She has never stopped loving him as a mother, and wishes he could have known who she truly was as he grew up.
E.M.
59The period of the Indictment covered events when E.M. was between the ages of twelve and eighteen.
60E.M. outlined the significant impact the mental and physical abuse visited by E.J. has had on her. She described the many nights she cries herself to sleep, the many times she washed blood from her face. She still struggles with suicidal thoughts.
61E.M. was told she caused every fight that happened and she deserved her beatings. She believed E.J. when he told her she was stupid. She became numb to every kick, punch and slap that she suffered at his hands.
62The first time E.J. sexually assaulted her it felt like a nightmare. She did not completely understand how she processed what he did to her until the first time she tried to be intimate with someone. She ended up holding her knees to her chest as the person she was with held her shaking body.
63For a long time E.M. had trouble going into a garage or basement for fear of being locked in. She remembered how she would cry for hours, pleading against the door locking her away, yelling over and over that she was sorry, feeling the cold concrete under her feet.
64E.M. has panic attacks that cause her to miss work. She has been diagnosed with PTSD.
65E.M. has considered suicide. But she is strong within herself, and she battles against that urge.
66E.M.’s last words to E.J. were that she hoped no one else has to experience the pain and torture he subjected her to. While she is healing from the wrongs he inflicted upon her, the 12-year old girl he stole so much from will never know what it is like to live without pain.
Positions of Crown and Defence on Appropriate Sentence
67The Crown is seeking a sentence of 20 years. The Crown referred to a number of cases she submits supports the length of sentence proposed, including:
R. v. Friesen, 2020 SCC 9 where, after a guilty plea, the offender received a 6 year sentence for one instance of sexual interference with a four-year old child and attempted extortion of child’s mother
R. v. NBM, 2021 ABCA 248 where, after a trial, the offender received a 16 year sentence for nine sexual offences against his biological daughter who was between two-and-a-half and four-and-a-half
R. v. JDW, 2021 MBCA 39 where, after a trial, the offender received an eight year sentence for incest against his biological daughter, who was seven years old
R. v. A.R., [2017] OJ. No. 6840 where, after a trial, the offender received a twenty year sentence for 30 counts of egregious offences against all five of his children, and family pets, over many years. His eldest daughter suffered sexual abuse and incest at his hands
R. v. J.T., [2021] O.J. No. 314 where, after a trial, the offender received a sixteen year sentence for sexually abusing his three stepdaughters over an eight year period
R. v. K.D.M., [2021] M.J. No. 164 were, after a trial, the offender received a 15-and-one-half year sentence for sexual assault, incest, assault, assault with a weapon, sexual interference and sexual assault causing bodily harm, perpetrated against his daughter when she was between five and eight
R. v. J.B., [2023] O.J. No. 5868 where, after a jury trial, the offender received a 25 year sentence for repeated acts of sexual violence against his children and their friends for several years, and almost two decades for one daughter who was developmentally delayed. Other offences including assault, assault with a weapon, and failing to provide the necessities of life
68Defence counsel agrees that a term of incarceration is called for, but submits that a sentence of between 10-12 years is appropriate, citing, inter alia, the following decisions:
R. v. N.S., [2022] O.J. No. 3984 where, following jury trial, the offender received a seven year sentence for one incident of sexual touching of one complainant, and eight incidents of sexual assault of another complainant, both his young stepsisters
R. v. D.M.S., 2022 ONSC 5218 where, after a trial the offender received a six year sentence for sexual assault, sexual interference, and sexual touching of his stepdaughter when she was between the ages of six and nine years
R. v. J.B., 2023 ONSC 1275 where, after a trial the offender received a nine year sentence for sexual interference of the complainant, for whom he occupied a father-like position, over the course of two years when she was between the ages of ten and twelve years
69While the cases submitted by counsel provide some guidance, sentencing is a highly individualized process, and each case turns on factors unique to both the victim and the offender.
The Legal Parameters
70At the time of the offences against G.S., the maximum penalty for sexual interference was 10 years imprisonment. In 2015, the maximum penalty was increased to 14 years. This penalty applies to the offences against E.M.
Applicable Principles of Sentencing
71The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1, Criminal Code, R.S.C., 1985, c. C-46.
72The fundamental purposes of sentencing are as set out in s. 718:
... 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 …
(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 and to the community.
73Given that the complainants were under eighteen at the material times, s. 718.01 is engaged:
When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
74Other principles applicable to this case are set out in s. 718.2, which are:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
shall be deemed to be aggravating circumstances;
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
75Section 718.2(e) acknowledges, inter alia, the vestiges of colonialism and its impact on Indigenous offenders.
76In R. v. N.S., [2022] O.J. No. 3984, Boswell J. provided a thorough analysis of the rationale behind s. 718.2(e):
42In a unanimous decision penned by Justices Cory and Iacobucci, the Supreme Court held that s. 718.2(e) signalled that the sentencing of Aboriginal offenders was to be undertaken differently than other offenders in order to achieve truly fit and proper sentences in the particular circumstance of each case. An altered method of analysis was necessary to give effect to what the court described as “the tragic history of the treatment of aboriginal peoples within the Canadian criminal justice system.” (Gladue, paras. 33-34). Indeed, the impetus of including s. 718.2(e) in the 1996 amendments to the Code was the overrepresentation of Indigenous people in the Canadian criminal justice system. (See R. v. Ipeelee, 2012 SCC 13, at para. 58).
43At para. 93 of Gladue, the court summarized a number of principles associated with the altered method of analysis to be applied to sentencings involving Indigenous persons. Those principles include:
(i) Section 718.2(e) mandates that sentencing judges are to consider all available sanctions other than imprisonment, and to pay particular attention to the circumstances of Indigenous offenders. This is not meant to convey that Indigenous offenders are to be afforded preferential treatment. It is meant to convey that the court must pay particular attention to the circumstances of Indigenous offenders because those circumstances are unique in the Canadian criminal justice system;
(ii) The purpose of s. 718.2(e) is to ameliorate the serious problem of overrepresentation of Indigenous people in prisons and to encourage judges to have recourse to a restorative approach to sentencing;
(iii) All of the principles and purposes of sentencing set out in Part XXIII of the Criminal Code must be taken into account when sentencing all offenders, including Indigenous offenders. But the court must undertake the sentencing of Indigenous offenders differently, because they are unique. With Indigenous offenders, the court must consider:
a. The unique systemic or background factors which may have played a part in bringing the particular offender before the courts; and
b. The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Indigenous heritage or connection.
(iv) In order to undertake the necessary considerations, the sentencing judge will require information about the accused. Judges may take judicial notice of the broad systemic and background factors affecting Indigenous people;
(v) If there is no alternative to incarceration, the length of the term must be carefully considered. That said, section 718.2(e) is not to be taken as a means of automatically reducing prison sentences for Indigenous offenders. Based, however, on the unique factors that may have played a part in the offending, a jail term imposed on an Indigenous offender may in some circumstances be less than the term imposed on a non-Indigenous offender for the same offence; and,
(vi) Generally, the more serious and violent the crime, the more likely it will be, as a practical matter, that the terms of imprisonment will be the same for similar offences and offenders, regardless of the offender’s Indigenous status.
44The principles articulated in Gladue were reconsidered and affirmed by the Supreme Court in R. v. Ipeelee, as above. At para. 60 of the ruling in Ipeelee, Justice LeBel emphasized that courts sentencing Indigenous offenders:
must take judicial notice of such matters as the history of colonialism, displacement and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples.
45No causal link is required between an Indigenous offender’s heritage and the offences before the court for the sentencing judge to take these factors into account. See Ipeelee, paras. 81-83 and R. v. Kreko, 2016 ONCA 367 at para. 21.
46These factors do not immediately translate into lower sentences for Indigenous offenders. The Gladue principles are not meant to be a form of race-based discount. What these factors do is provide significant context in which to evaluate the case-specific information about the offender provided to the court at the sentencing hearing.
47Justice LeBel went to explain that the circumstances recognized in Gladue bear on the ultimate question of what a fit and just sentence is for the particular offender before the court. He elaborated at paras. 73 and 74 as follows:
First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness…
Second…the types of sanctions which may be appropriate — bear not on the degree of culpability of the offender, but on the effectiveness of the sentence itself. As Cory and Iacobucci JJ. point out, at para. 73 of Gladue: “What is important to recognize is that, for many if not most aboriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of aboriginal people or aboriginal communities.”
77Maximum sentences for sexual assault and sexual interference are not reserved for the most rare or extreme cases. Per Friesen at para. 114:
[M]id-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.
78Sexual contact with a child is inherently violent, as the Supreme Court illuminated in Friesen, at para. 77:
As this court recognized in L.M., violence is always inherent in the act of applying force of a sexual nature to a child (para. 26). Far from removing the violence, the sexual dimension instead aggravates the wrongfulness of the violence by adding interference with the child’s sexual integrity to the interference with the child’s bodily integrity. Physical contact of a sexual nature with a child always means that the offender has interfered with both the child’s “security of the person from any non-consensual contact or threats of force” and the child’s bodily integrity, which “lies at the core of human dignity and autonomy” (R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 28 …) Such physical sexual contact is also a form of psychological violence precisely because bodily and psychological integrity are closely linked … [A]ny physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence…
79Grooming is identified as an aggravating factor in Friesen at para. 153:
Where a breach of trust or grooming led to the participation, that should properly be seen as an aggravating factor (R. v. P.M. (2002), 2002 CanLII 15982 (ON CA), 155 O.A.C. 242, at para 19; R. v. F. (G.C.) (2004) 2004 CanLII 4771 (ON CA), 71 O.R. (3d) 771 (C.A.), at paras. 7 and 21; Woodward, at para 43) … As Feldman J.A wrote in P.M., to exploit young teenagers during this period by leading them to believe that they are in a love relationship with an adult “reveals a level of amorality that is of great concern” (para 19).
80The Supreme court also spoke of duration and frequency of sexual violence in Friesen. See for example para. 131:
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 (see Scalera, at para. 123; R. v. O.M., 2009 BCCA 287, 272 B.C.A.C. 236, at para. 7; Bauman, at p. 359). This increased harm magnifies the severity of the offence. It also increases the offender’s moral blameworthiness because the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults (see Scalera, at para. 123). Moreover, repeated and prolonged assaults show that the sexually violent conduct is not an isolated act, a factor which increases the offender’s degree of responsibility (see L. (J.-J.), at p. 246; Parent and Desrosiers, at pp. 107-9).
81Friesen reminds sentencing judges not to improperly diminish or discount the sentence for an offence because the complainant is an adolescent (at para. 136):
At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and 314; L. (D.O.), at pp. 464-65, per L’Heureux-Dubé J.). In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy (I. Grant and J. Benedet, “Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019), 97 Can. Bar Rev. 1, at p. 5; “The ‘Statutory Rape’ Myth”, at p. 269; R. v. Hess, 1990 CanLII 89 (SCC), [1990] 2 S.C.R. 906, at pp. 948-49, per McLachlin J.).
82Friesen also recognizes that despite the statutory priority of denunciation and deterrence, Gladue factors may have significant mitigating weight. The Court wrote, at para. 92:
[W]here the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexual violence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74).
83E.J. read his statement aloud to the court. He described how his drug and alcohol problems stemmed not only from the abuse he suffered growing up, but also from the racism he experienced. Since incarceration he has been working on turning his life around. He has taken courses in anger management, substance abuse, problem solving and bible studies.
84E.J. apologized for the hurt he has caused everyone, including his family. He hopes that with access to treatment while incarcerated he can become a contributing member of society upon his release.
85Just before court opened this morning I was provided with a copy of E.J.’s Ontario Secondary School Diploma, a goal he had set for himself. Congratulations for achieving this milestone. Given the commitment you put forth in obtaining your grade 12 diploma, I am confident you will be equally successful in your recovery.
86The principles that I must weigh and balance in arriving at a fit and proper sentence, vis a vis E.J.’s indigeneity, must themselves be weighed and balanced against the approach to sentencing for child sex offences set out by the Supreme Court in Friesen. The Supreme Court’s pronouncement was clear: sentences for sexual crimes perpetrated against children must increase. See for example, para. 76:
Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities…
Analysis
87Despite the sexual violence that has been perpetrated against G.S. and E.M., I must apply the Gladue factors when considering a fit and appropriate sentence. E.J.’s childhood consisted of many painful experiences, including racism, physical abuse, and sexual abuse. The Gladue report outlined significant intergenerational trauma endured by E.J. and his family members, marked by substance abuse, suicide and murder.
88However, even where E.J.’s moral blameworthiness is reduced in light of the intergeneration harm that impaired his moral compass, I must not, and cannot, ignore the seriousness of the offences, and the magnitude of the harm done.
89The list of those who have suffered as a result of E.J.’s careless and flagrantly wanton actions is long: G.S. and E.M., who were children at the time they were victimized, Daniel, the child E.J. fathered with G.S., E.M.’s brother Richard, E.M.’s stepbrother, Carson, the complainants’ wider families, and the community at large. The magnitude of pain in this courtroom has been staggering and overwhelming. However, I was struck by the love and support the complainants are so clearly surrounded by each time they appeared before me. The resilience of G.S. and E.M., in the face of what they have endured, shows there can be light out of great darkness.
90I find the following factors to be aggravating in this case:
G.S.
a) As G.S.’s uncle, E.J. was in a position of trust and authority.
b) E.J. was in his early 30s, and G.S. was between 13 and 18, when the sexual assaults occurred.
c) E.J. groomed G.S., manipulating her into a false sense of security.
d) E.J. convinced G.S. to leave the security of her family home and move in with his family, thereby guaranteeing easy and frequent access to G.S. for his sexual gratification.
e) The abuse was perpetrated in what G.S. understood to be a sanctuary home, where she could reasonably expect safety and protection.
f) E.J. perpetrated psychological harm as well as physical harm, threatening to kill G.S., and withholding or promising something to ensure her compliance. He was jealous of her relationship with friends her own age.
g) The degree of physical interference in this case was significant. E.J. had unprotected sex with G.S., which led to her pregnancy at the age of fourteen, and a life-long struggle with STDs.
h) The sheer duration and frequency of the sexual abuse is significantly aggravating.
E.M.
i) As E.M.’s stepfather, E.J. was in a position of trust and authority.
j) E.M. was under the age of 18.
k) E.M. identifies as Indigenous.
l) This was not an isolated incident of abuse, but a pattern of abusive behaviour, both physical and sexual, that occurred over a number of years.
m) The abuse has had a potentially life-long impact on E.M.
n) The abuse was perpetrated in the family home, where E.M. should have been safe.
o) The offences have had a significant impact on E.M.
p) The assaults occurred over an extended period of time.
q) The degree of physical and sexual interference was significant.
Mitigating Factors
91I find the following to be mitigating factors:
a) E.J.’s upbringing has been shaped by colonialism, and his offending behaviour no doubt stems from unresolved childhood trauma.
b) E.J. plead guilty to the charges against G.S., sparing her from testifying at trial.
Conclusion
92For the reasons stated, including the aggravating factors of abusing a position of trust, years of unprotected sexual intercourse with G.S., the physical and sexual abuse visited upon E.M., a significant penitentiary sentence is warranted even when viewed through Gladue’s purposive lens.
93I find that an appropriate global sentence is 18 years. I reduce this global sentence, however, to 15 and one-half years considering: (a) the Gladue factors that have informed E.J.’s life circumstances; (b) E.J.’s guilty plea in respect of G.S.; and (c) E.J.’s sincere expression of remorse.
94E.J., please stand. I sentence you to the following:
95On those counts involving G.S.:
Count 4 – Sexual Assault – 8 years
Count 2 – Sexual Interference – 1 year concurrent
Count 3 – Invitation to Sexual Touching – 1 year concurrent
Count 8 – Assault – 60 days concurrent
96On those counts involving E.M.:
Count 2 – Sexual Interference – 6 years
Count 3 – Forcible Confinement – 1 year concurrent
Count 4 – Assault – 1 year concurrent
Count 6 – Choking – 1.5 years consecutive
97You may be seated.
98My decision to make certain offences concurrent rather than consecutive is supported by the principal of totality. Consecutive sentences for all eight counts would have resulted in a crushing sentence for E.J.
99Turning now to pre-trial custody, counsel jointly submit that as of June 26, 2025 E.J. had served 400 days of pre-sentence custody. This equates to 600 days after the Summers credit is applied.
100Counsel are also in agreement that E.J. is deserving of a Duncan credit for the 170 days he has spent in lockdown.
101Accordingly, E.J.’s sentence is to be reduced by 770 days (600 days Summers credit + 170 days Duncan credit).
102The following ancillary orders are also made:
i. DNA order pursuant to s. 487.051 for primary designated offences on counts 4 (G.S.) and 2 (E.M.);
ii. A s. 109 weapons prohibition for life on counts 4 (G.S.) and 2 (E.M.);
iii. A SOIRA order for life;
iv. No contact or communications with the complainants or their families during the period of incarceration, pursuant to s. 743.21, except with the written and revokable consent of said person.
v. An order under s. 161, for life, that prohibits E.J. from:
(a) being within two kilometres of any dwelling-house where G.S. and E.M. ordinarily reside;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and
(c) having any contact – including communicating by any means – with a person who is under the age of 16 years, except for routine retail transactions, unless in the company and presence of another adult family member of that minor, or pursuant to a Court Order.
103The Crown has asked for an Order pursuant to s. 161(a). I do not agree that this condition is warranted on the facts of this case.
104Finally, as recommended in the Gladue Report, it is my hope and preference that E.J. will be permitted to attend either the Waseskun Healing Centre, affiliated with Correctional Services of Canada, which facilitates holistic healing (Gladue Report author’s recommendation) or Beaver Creek Institution, which offers programming that is sensitive to cultural needs and traditions (defence counsel’s recommendation). E.J. is agreeable to either option.
105The “Recommendations” portion of the Gladue Report shall follow E.J. to the correctional institution for classification purposes.
106This completes this sentence.
CASULLO J.
Released: June 26, 2025
