minicounsel

Court File No.: CR-23-00000056-0000 Date: 2025-07-30 Ontario Superior Court of Justice

Between: His Majesty the King – and – S.W., Defendant

Counsel: Jenna Dafoe, on behalf of Carlynne Bell, for the Crown Andrew Bigioni, for the Defendant

Heard: May 15, 2025

NOTE: These written Reasons, although delivered orally, are to be considered the official version and takes precedence over the 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.

Justice A. Casullo

Introduction

1On February 10, 2025, following a seven day trial, I found S.W. guilty of two counts of sexual assault and two counts of sexual interference against his niece and nephew, T-J.J. and B.J., contrary to sections 271 and 151 of the Criminal Code.

2N.C. is mother to T-J.J. and B.J. S.W. is married to N.C.'s sister, C.W.

3The court received a number of victim impact statements: one from each of the complainants, N.C., their father, M.J., and their stepmother, T.B.

4S.W. filed a report from Ms. Joanne Smith, Master of Social Work, akin to a Pre-Sentence Report, as well as five letters of reference: from his wife, C.W., his mother, L.W., his father, T.W., his brother, K.W., and T-J.J. and B.J.'s grandparents, N.C. and D.C.

5On May 15, 2025, I heard submissions on sentence and reserved my decision. What follows are the reasons for the sentence I am about to impose.

Circumstances of the Offences

6The details of the offences and my findings in respect thereof were set out in my oral reasons, and I will not repeat them here in detail other than to note the following.

7In respect of T-J.J., one incident happened at a sleepover at S.W.'s home. While C.W. was in the shower, S.W. sat beside T-J.J. on the couch with his penis out of his pyjama bottoms. As T-J.J. moved to get away from him, S.W. moved along with her such that their movements ended with S.W. lying behind T-J.J., on the couch, rubbing his erect penis on her back and stroking her torso and upper thighs.

8The other incident happened at a family function, again at S.W.'s home. While T-J.J. and S.W. were alone in his darkened bedroom, testing a lamp that projected light onto the ceiling, S.W. took off his jeans. When T-J.J. turned to look at him, he told her not to tell anyone. As T-J.J. made to leave the room, S.W. moved toward her saying "no, no."

9The incident with respect to B.J. happened one evening while B.J. was in his bedroom playing video games with S.W. As they sat side by side, S.W. touched B.J. three times with his right hand. First on his thigh, then closer to his penis, and then directly on his penis. Each time S.W. touched him, B.J. would push his hand away.

10At some point after the touching, B.J.'s mother called up to him to get into the shower. S.W. asked if he could get into the shower with B.J. To B.J.'s answer of no, S.W. offered him money if he would let him in the shower with him.

Victim Impact Statements

11T-J.J.'s victim impact statement reveals that S.W.'s actions have had a profound impact, not just on her, but her entire family. She described how his offences stole both her and her brother's childhood. How S.W. shattered the cheerful girl she once was, paralyzing her with such fear that she was afraid to speak out. One powerful statement directed at S.W. stood out in particular: "You didn't just harm me. You erased me. You stole me from me."

12T-J.J. blames S.W. for tearing apart her family. She no longer has a relationship with her mother, aunt, or maternal grandparents, and her father is no longer the tower of strength he once was.

13While T-J.J. spoke of how S.W. took all the joy from her and left her broken, she also expressed that she is no longer silenced and broken. T-J.J. has shown great resilience.

14B.J.'s statement also spoke of how he is no longer the happy child he once was. He suffers from nightmares, poor focus, and serious trust issues. He finds himself drifting away from friends because his nature has become much more solitary.

15The remaining victim impact statements spoke of how all of their lives have been turned upside down by S.W.'s actions. The emotional impact has had a devastating effect, not only on T-J.J. and B.J., but their families and extended families as well.

The Circumstances of S.W.

16S.W. is currently 35 years of age. He reports a stable and loving upbringing. After high school he attended Cambrian College to become a powerline technician. He achieved this goal, became a red seal technician, and was proud of what he achieved through twelve years at Hydro. He was dismissed following the subject charges being laid, but found work as a foreman for winter highway maintenance.

17S.W. lives a prosocial life. He is married and enjoys the continued support of his wife, parents, and brother.

18There are no substance abuse issues.

19S.W. maintains his innocence, expressing as much when he gave his allocution.

Positions of the Parties

20The Crown asks that the two s. 271 counts of sexual assault be stayed, leaving the two s. 151 counts of sexual interference.

21The Crown submits that pursuant to R. v. Friesen, 2020 SCC 9, the appropriate sentencing range is between 6-8 years. Accordingly, the Crown seeks a custodial sentence of 5 years for the assaults on T-J.J., and a 3 year sentence, served consecutively, for the assaults on B.J.

22While the acts S.W. was found guilty of were non-penetrative, they were sexual, and committed in the context of a trust relationship.

23The Crown also seeks a number of ancillary orders.

24Defence argues that a reformatory sentence of two years less a day, followed by 2-3 years of probation is a fit sentence in this case.

25While accepting that denunciation and deterrence are paramount considerations, defence argues that the court should not lose sight of the very personal and individual circumstances of S.W.

26The letters of support all speak to S.W.'s upstanding personality. Each writer expressed that the charges S.W. has been found guilty of are completely out of character. They know S.W. to be a man of integrity, compassion, with a keen sense of responsibility.

27The defence agrees with the conditional stays requested by the Crown.

28The defence takes issue with certain of the ancillary orders.

The Principles of Sentencing

29 Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is "to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions."

30This is accomplished in reference to six objectives:

the denunciation of unlawful conduct;
deterrence, both general and specific;
separation of the offender from society where necessary;
rehabilitation;
reparation for harm done to the victims or the community; and
promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

31Given that the complainants were under 18 when the abuse occurred, s. 718.01 applies, and primary consideration must be given to the objectives of denunciation and deterrence of such conduct.

32 Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

33 Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, including the age of the victim, and that the offender abused a position of trust or authority.

34 Section 718.2(a) provides that the sentence shall be increased if, inter alia, the following aggravating factors are present: the victim is under 18 (ii.1), evidence that the offender abused a position of trust or authority (iii), and evidence that the offence has had a significant impact on the victim, including their health (iii.1).

35 Section 718.2(b)-(e) requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances must be considered.

Analysis

36As agreed to by the parties, I conditionally stay the two s. 271 counts set out above, applying the principle against multiple convictions for the same criminal conduct, as set out by the Supreme Court of Canada in R. v. Kienapple, [1975] 1 S.C.R. 729.

37In sentencing the remaining counts, I am instructed by Friesen, in which the Supreme Court of Canada provided guidance on the particular sentencing principles that are to be applied to sexual abuse offences against children. Several of the principles set out therein are applicable to this case.

38Sexual offences against child victims should be punished more severely than sexual offences against adult victims: Friesen, at paras. 115-118.

39Any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury: Friesen, at para. 77.

40Sexual interference with a child should not be treated as less serious than sexual assault of a child: Friesen, at para. 107.

41While there is no strict sentencing range for sexual offences against children, substantial sentences will frequently be required, with mid-single digit penitentiary terms being normal, and upper-single and double-digit penitentiary terms being neither unusual nor reserved for rare or exceptional circumstances: Friesen, at para. 114.

42The Criminal Code also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances must be considered.

43Counsel provided a number of decisions for my consideration. I have reviewed and considered each of them, but reference only those most applicable.

44In Friesen, the accused was in the midst of sexually assaulting a four-year-old when a friend of her mother's intervened. Following a guilty plea, the accused received a six-year sentence concurrent on both sexual assault and attempted extortion. The Manitoba Court of Appeal reduced the sentence to four and one-half years concurrent on both charges. The Supreme Court of Canada allowed the Crown's appeal, restoring the lower court's sentence.

45In R. v. G.R., [2020] O.J. No. 5263, the accused was found guilty of 3 incidents of inappropriate touching when the complainant was nine years old, including placing his hands under her underpants to her vagina, rubbing her vagina with his fingers, sticking out his penis, rubbing his penis against her, and placing the back of her vagina on his penis. He received a five-and-a-half year sentence, which was upheld on appeal.

46In R. v. T.J., 2021 ONCA 392, the complainant was six or seven years old when the accused directed her into a bathroom and placed her hands on his penis. He used her hands to rub his penis, which became aroused. He then invited the complainant to put her mouth on his penis, at which point the complainant left the bathroom.

47The accused was found guilty and received sentence of 9 months in custody, followed by two years probation. The Court of Appeal found that the sentence was demonstrably unfit, increasing the period of incarceration to 24 months.

48In R. v. Dawson, 2016 ONCA 880, a decision predating Friesen, one complainant was five years old when the accused touched her vagina with his finger and his penis. A second complainant was the same age when the accused played a game with her where they took turns being naked like a baby, and he ejaculated on her.

49The accused was found guilty of two counts of sexual interference against each complainant and sentenced to two years consecutive on each of the sexual interference charges. His sentence was upheld on appeal.

50In R. v. D.B., [2021] O.J. No. 4381, the complainant was 12 when the accused touched her over several visits to her home, variously putting his hand inside of her shirt, touching her vaginal area over her clothes and over her underwear, trying to kiss her on the mouth, showing her his penis, and forcing her to touch his buttocks. Following trial, the accused was sentenced to 18 months for sexual assault and 9 months concurrent for invitation to sexual touching.

51I find that the following features of this case are aggravating:

(a) The age of the complainants when the assaults occurred. T-J.J. was between 11 and 13, and B.J. was around 10;

(b) There were two complainants;

(c) S.W. was in a position of trust – as a relative of the complainants they were left alone with him under the assumption no harm would come to T-J.J. and B.J.;

(d) Repetition is an aggravating factor, although each incident was of short duration.

(e) The offences occurred in a home the children were familiar with, and where they should have felt safe; and

(f) The offences have had a devastating impact, particularly on T-J.J.

52I find the following features of this case to be mitigating:

(a) S.W. is before the court as a first-time offender;

(b) S.W. has strong familial support and prospects for rehabilitation (Ms. Smith advised in her report that S.W. would like to continue counselling);

(d) The collateral consequences are significant, in regard to his job and reputational losses, the support he provides to his aging parents, and his ability to participate in fertility treatments with his wife.

53I am sentencing S.W. after trial, so there is no mitigation for a guilty plea. To be clear, the absence of a guilty plea does not equate to an aggravating factor.

54I note that I cannot rely on remorse as a mitigating factor in this case. It is apparent from the pre-sentence report, and S.W.'s allocution, that he does not accept any responsibility for, or show any insight into, the harm he visited on the complainants. Conversely, however, I of course do not consider this absence of remorse as an aggravating factor for sentencing purposes.

55The edict from the Supreme Court in Friesen is clear. Sexual violence, particularly when perpetrated against minor victims, must be clearly denounced.

56While the acts themselves may be fleeting and non-penetrative, they have had reverberating effects on both complainants.

57However, I am required to look at similar conduct with similar offenders when crafting an appropriate sentence. The acts S.W. was found guilty of fall on the less severe end of the spectrum. In so saying, I am not to be taken as minimizing the impact that S.W.'s actions have had on the complainants.

58I acknowledge that no sentence I impose today will repair the harm that T-J.J. and B.J. have suffered.

59While the Crown is seeking a significant penitentiary term, there are cases post-Friesen in which mid-to-upper reformatory sentences are being given in instances of sexual interference that I find to be of similar and even greater seriousness. I provide the following examples:

R. v. R.L.S., 2020 ONCA 338: Accused pleaded guilty to sexual touching of his daughter when she was four and six years of age, including having her touch his erect penis and having her sit on his lap with his penis exposed. A nine month sentence was affirmed on appeal. While the trial predated Friesen, the appeal was heard after Friesen was released, and was referenced by the panel.
R. v. D.J.S., 2021 ONCJ 671: Accused found guilty of sexual interference and sexual assault in relation to his ten-year-old niece, including having her masturbate him to the point of ejaculation. The sentence was fourteen months' imprisonment and three years' probation.
R. v. M.G., 2023 ONSC 2990: Accused found guilty of two counts of sexual interference. One complainant was his stepson, who awoke one night to the accused sucking his penis. He was between eight and nine years old at the time. The second complainant was the accused's step-nephew, who awoke one night to the accused rubbing his erect penis on his backside and attempting to touch his genitals. The accused was sentenced to 18 months concurrent.

60As Doherty J.A. held in R. v. Ramage, 2010 ONCA 488, at para. 70"Sentencing is a fact-specific exercise of judicial discretion. It is anything but an exact science. In the vast majority of cases, there is no single sentence that is clearly preferable to all others. Instead, there is a range of reasonable options from which the trial judge must make his or her selection."

61S.W., please stand. After considering all relevant factors, I find a fit sentence to be two years less one day for the sexual interference of T-J.J., and five months concurrent for the sexual interference of B.J., followed by two years probation.

62You may be seated.

63I also make the following ancillary orders:

DNA order;
SOIRA order for 20 years. The lifetime registration sought by the Crown is overbroad; and
s. 161(1)(a) and (b) order for 10 years; and
while in custody, S.W. shall not have contact, directly or indirectly, with either T-J.J. or B.J.
s. 109(1)(a) weapons prohibition for ten years

Restitution

64At the conclusion of sentencing submissions, I asked whether the complainants would be seeking restitution. This avenue had not yet been explored with them, and I permitted the Crown an opportunity to do so.

65The court received written submissions advising that T-J.J. is desirous of receiving mental health therapy to address the repercussions of S.W.'s actions. A letter from C. Johansen, Clinical Director of Mind Matters Psychotherapy & Creative Education, and Registered Psychotherapist, accompanied the Crown's written submissions. Ms. Johansen posits that therapy for two years would cost $22,800.

66B.J. is not seeking restitution at this time.

67This morning I heard oral submissions from Mr. Bigioni on the issue of restitution. Ms. Dafoe provided reply submissions.

68 Section 738(1)(b) of the Criminal Code states as follows:

Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

(b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable;

69The language of the legislation is clear. A restitution order is "in addition to" any other measure imposed by the court. Restitution does not form part of a fit and proper sentence. Restitution is factored in only after a fit and proper sentence is determined.

70Further, restitution orders are in the form of pecuniary damages which can be readily ascertainable. Pecuniary damages are both retrospective and prospective.

71Ability to pay is a factor the court should take into consideration, although a restitution order may be imposed even if there does not appear to be any likelihood of repayment: R. v. Castro, 2010 ONCA 718.

72There is evidence before the court that S.W. has suffered significant financial losses since these charges were brought to light, including the loss of his chosen career, and the need to sell his home to pay his legal fees.

73As noted above, Ms. Johansen has estimated the cost of T-J.J.'s therapy at $22,800 for two years.

74The Crown advises that for the past couple of years T-J.J. has utilized free treatment services through agencies, given her status as a student.

75In these particular circumstances, I find that S.W. shall be the subject of a restitution order in favour of T-J.J. in the amount of $10,000 to be paid by July 30, 2029 after he is released from custody (assuming he is released on parole after serving a third or two thirds of his sentence).

Terms of Probation

76The terms of S.W.'s two-year period of probation are as follows:

Report to a probation officer within two working days following your release from custody, and thereafter when required by the probation officer.
Live at an address approved by your probation officer, and do not change that address, unless you receive the permission of your probation officer in advance.
Do not have any contact, directly or indirectly, with either T-J.J. or B.J.
Attend and actively participate in such rehabilitative programs, counselling, or assessments, as directed by your probation officer; do not discontinue that counselling without the permission of your probation officer; provide written proof to your probation officer upon completion of the rehabilitative program(s); and sign any consents or releases necessary to ensure compliance with this condition.
To keep a 100 metre distance from both T-J.J. and B.J.

Justice A. Casullo

Delivered Orally: July 30, 2025

R. v. S.W., 2025 ONSC 4450

Case Summary

Introduction

Circumstances of the Offences