PUBLICATION BAN

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

REASONS FOR SENTENCE

Nishikawa J.

Overview and Background

[1] After a trial by judge and jury, on April 24, 2025, the jury found the defendant, L.M., guilty of one count of sexual interference, contrary to s. 151 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the "Code").

The Circumstances of the Offence

[2] After a jury renders a guilty verdict, the sentencing judge must decide the facts upon which the offender is to be sentenced: Code, s. 724(2). I need not arrive at a complete theory of the facts but must make those factual determinations necessary for the appropriate sentence: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 98, at para. 16; R. v. Aragon, 2022 ONCA 244, 413 C.C.C. (3d) 79, at paras. 104-106.

[3] As sentencing judge, I am bound by the express and implied factual implications of the jury's verdict. I must accept as proven all facts, express or implied, that are essential to the jury's finding of guilt. On the other hand, I must not accept any facts that are only consistent with a verdict that the jury rejected: Ferguson, paras. 17-18.

[4] Where the factual implications of the jury's verdict are ambiguous, I must come to my own independent determination of the relevant facts consistent with the jury's verdict: Ferguson, paras. 17-18. I am not required to assume that the jury took "the most lenient path to conviction": R. v. Nelson, 2014 ONCA 853, 325 O.A.C. 381, para. 56. However, to rely upon an aggravating factor, I must be convinced of the existence of the fact beyond a reasonable doubt.

[5] To summarize the factual background, the complainant, S.J., is the step-daughter of the defendant's brother, R.M. During the relevant time period, L.M. and R.M. lived on different floors in the same apartment building. L.M. lived there with his spouse, J.A., and their three children.

[6] R.M. and S.J.'s mother, F.M., were married in 2019. In December 2021, F.M. arrived in Toronto with her three children, D.B., S.J., and Z.M. to live with R.M. L.M.'s family and R.M.'s family frequently saw each other and celebrated special occasions together. L.M. drove S.J. to school and saw her brother, D.B., almost every day. S.J. and D.B. saw L.M. as the "cool uncle" and enjoyed spending time with him.

[7] On the night of July 8, 2022, the two families went to the drive-in movie theatre together, each in their respective vehicles. L.M.'s mother and father in-law (the "in-laws") also went to the drive-in theatre with their younger daughter, resulting in a total of three vehicles. At the time, S.J. was 14 years old. The in-laws also lived in the same apartment building.

[8] R.M. and F.M. decided to leave the drive-in movie early because R.M. had to work the next day. S.J., who had been watching the movie from the in-law's vehicle, stayed behind to watch the end of the movie. She eventually went back to the apartment building with the in-laws. When L.M.'s father-in-law brought S.J. back to her apartment, both R.M. and F.M. were sleeping, and no one answered the door. Because of a system-wide outage that night, they could not be reached on their mobile phones. L.M.'s father-in-law then took S.J. to L.M.'s apartment. J.A. gave S.J. clothes that she could change into because it appeared that she would have to sleep over.

[9] At the apartment, S.J., L.M. and J.A. were sitting in the living room watching television. At some point, J.A. went to check on the children, who were sleeping in their rooms. S.J. testified that L.M. went to the balcony door to smoke some marijuana and that he offered her some. He then returned to sit on a mattress on the living room floor. L.M. testified that there was a mattress in front of the television where he would sleep because he had "night terrors." L.M. then told S.J. that his back was hurting and asked her to massage it. S.J. testified that she massaged his back as L.M. told her.

[10] S.J. testified that she eventually turned to go to sleep on the mattress. L.M. began to rub her back. She testified that he then put his hand under her shirt and into her bra. S.J. testified that L.M. pulled her pants and underpants down below her knees and inserted his fingers into her vagina. She did not know how long that lasted. S.J. testified that after that, L.M. tried to push his penis into her vagina but that "nothing happened" and he then started to put his fingers into her vagina again. S.J. testified that after that, L.M. pulled her pants back up. He then got up and went to the kitchen to wash his hands. S.J. testified that she was not sure if L.M.'s penis was erect or if he ejaculated.

[11] When L.M. was returning from the kitchen, S.J. ran to the washroom where she sat on the floor and cried. L.M. opened the door and asked if she was O.K. S.J. told him that she wanted to go home and walked past him to gather her things. L.M. accompanied S.J. in the elevator to the floor of her parents' apartment but did not come out of the elevator to bring her to the door. S.J. testified that after R.M. opened the door, she ran down the hallway screaming for her mother. She eventually fell to the floor crying and F.M. came over and hugged her. S.J. testified that she told her that "Uncle Leslie touched me."

[12] S.J. testified that after the assault, she experienced swelling and a burning sensation in her vaginal area.

[13] The day after the assault, L.M. sent R.M. a text message which stated as follows:

I know i fucked up everything we Bin working for and I did something u would never expect from me i failed you as a brother a brother in and mostly a uncle a father and a husband im going To the doctor to get some help next week and figure out myself (but please let me know when we can have a conversation in person im Sorry i betray You

[14] L.M. also sent a text message to D.B. saying that he had "fucked up." At trial, L.M. denied touching S.J. for a sexual purpose. When asked why he apologized to R.M., L.M. testified that he realized that he had woken up from a nightmare and grabbed S.J.'s leg.

[15] It is clear from the jury's verdict that they were satisfied beyond a reasonable doubt that L.M. touched S.J. for a sexual purpose and that they rejected L.M.'s testimony that he had grabbed S.J.'s leg. The above text message and subsequent messages exchanged between R.M. and L.M. belie L.M.'s explanation that he was apologizing for grabbing S.J.'s leg.

[16] It is also evident from the jury's verdict that they rejected the defence theory that S.J. fabricated the allegations because she was upset that L.M. had told R.M. earlier that evening that a mark on her neck was a hickey, and not the result of a Tiktok challenge, as S.J. had explained to R.M. and F.M. The jury also rejected the defence theory that it was F.M. who planted the allegations in S.J.'s mind and that R.M. and F.M. were motivated to fabricate the allegations for financial gain.

[17] In my view, the jury's verdict leaves no ambiguity. There is no basis on which to find that any part of the touching as described by S.J. was not proven beyond a reasonable doubt. Therefore, I find that L.M. touched S.J.'s breasts, digitally penetrated her vagina twice and attempted to penetrate her vagina with his penis once but was unsuccessful.

Victim Impact Statements

S.J.

[18] In her victim impact statement, S.J. expressed the pain and trauma of L.M. having broken her trust, after she had recently arrived in Canada and confided in him. She had known L.M. since she was four years old. She expressed the feeling of having her teenage years, "the most joyful years" taken away from her. She described having flashbacks when she should be sleeping and having panic attacks that prevented her from remaining at school for a full day. At trial, S.J. testified that the police became involved after she left the classroom crying one day and disclosed the incident to a teacher, who then informed the police. S.J. described going from being an outgoing person to a person who is "closed off", even from her parents. She describes feeling like what happened was her fault, feeling "icky" in her own body and being in the shower for hours trying to wash that feeling off.

[19] S.J. stated that she could not start college this year because she is too scared to be in a new environment.

F.M.

[20] In her victim impact statement, F.M. states that she will never erase from her memory the moment that her daughter, S.J., came screaming and telling her what L.M. did to her. She describes the pain of seeing her happy child become "locked away" as well as seeing S.J. not wanting to go to school and seeing her grades fall. She describes constantly checking S.J.'s location out of fear. F.M. states that L.M. destroyed their trust in people and that they are unable to allow their children to participate in the childhood activities like sleepovers or summer camp because they are all now sources of anxiety.

[21] When interviewed for the PSR, F.M. spoke about the impact of the offence on S.J. and the rest of the family. She advised that S.J. has anxiety and panic attacks and gets scared and triggered in certain situations. S.J. is attending therapy. S.J. was supposed to start a post-secondary program this fall, but has opted to defer her education for one year because she feels she is not "mentally focused." Before the offence, the two families were very close and lived in the same apartment building. F.M. reported that they moved out of the building because of the offence and because S.J. is afraid of seeing L.M. F.M. reported that as a result of what happened they no longer trust anyone.

R.M.

[22] In his victim impact statement, R.M. speaks about how he trusted L.M. with his life and his family's lives but that he was betrayed within six months of their arrival in Canada. Their relationship as brothers has been destroyed, as well as the relationship between his children and L.M. as their uncle.

[23] R.M. disclosed that he lost his job after the incident because he could not focus, resulting in financial difficulty for the family. It took him a year and a half to pull himself together to be able to focus again. He describes not trusting anyone anymore and the shame that he feels that the assault was committed by a member of his family.

The Circumstances of the Offender

Criminal Record

[24] L.M. is currently 41 years old. He has no criminal record.

The Pre-Sentence Report

[25] A pre-sentence report ("PSR") was ordered and was completed on August 7, 2025 by Probation and Parole Officer Andrea Wilkinson (the "Officer"). The Officer interviewed L.M., his common law spouse J.A., and the complainant's mother F.M.

[26] L.M. was born in Georgetown, Guyana and immigrated to Canada when he was 14 years old. He reported having a very close relationship with his mother and father. He recalled having a good relationship with his brother, R.M., when they were children but said that their relationship changed when he left for Canada. After immigrating to Canada, L.M. lived with his aunt and uncle for six years. R.M. later joined him in Canada and they moved in together. In 2013, L.M.'s parents were violently murdered and their home was set on fire. L.M. reported that when he went to Guyana to survey their house, he found his parents' remains, which caused him to become very distraught.

[27] L.M. has been in a common law relationship with J.A. for 12 to 13 years. They have three children, an 11-year-old girl, a nine-year-old boy and a four-year-old girl. J.A. disclosed that she has recently been diagnosed with Meniere's disease and has episodes of vertigo. This requires L.M. to take care of both her and the children. J.A. described L.M. as a caring person and a devoted father who is involved in their community and enjoys helping people. She said that the children would be devastated if he was not around.

[28] L.M. has a high school education and has never been suspended or expelled. He has been employed by a wine importing company for the past 10 years.

[29] L.M. reported that he only drinks alcohol on special occasions and even then, only drinks one or two beers at a time. He indicated that he uses marijuana in the form of edibles and cigarettes every couple of weeks when he has back pain. J.A. has no concerns relating to substance use by L.M.

[30] L.M. is currently participating in therapy through an online platform and provided a letter from his therapist to confirm. He has also attended a sleep clinic because he was having night terrors after the death of his parents. L.M. advised that he is willing to attend counselling to address the trauma he suffered from his parents' murders. J.A. has noted an improvement in L.M. since he has been attending therapy. The officer described L.M. as cooperative and forthcoming.

[31] While L.M. mentioned post-traumatic stress disorder and J.A. spoke of L.M. having depression, no medical diagnoses were provided.

[32] L.M. continues to deny responsibility for the offence. As noted above, at trial, L.M. testified that he woke from a nightmare and grabbed S.J.'s leg. L.M. testified that R.M. was involved in their parents' murder and that he has spent a lot of their money. L.M. continued to make those allegations in the PSR.

Letters of Support

[33] L.M. has provided a letter from his employer, which describes him as responsible, committed and enjoyable to work with. The letter describes L.M. as having positive relationships with his co-workers and with clients. The letter describes L.M. as an engaged, loving and committed father who is raising three smart, caring and enthusiastic children.

[34] L.M. provided a letter from Mitchell Rotenberg, a therapist in St. Petersburg, Florida, dated "01/12/2022". Since the letter states that Mr. Rotenberg originally met L.M. in April 2022, I assume that the letter was written after that date. The letter refers to L.M.'s difficulty sleeping and nightmares as a result of his parents' deaths in 2013. The letter mentions R.M. and F.M.'s attempts to take advantage of L.M. for their own benefit. The letter states that it is in L.M.'s best interest to keep R.M. and F.M. out of his life. The letter makes no mention of the allegations against L.M. and sheds no light on L.M.'s rehabilitative potential.

[35] L.M. also provided a brief letter from an individual named Wendy Bons who describes L.M. as honest, hard-working and responsible and always ready to lend a hand. Ms. Bons states that she has known L.M. for more than eight years but does not state in what context or how well she knows him. It appears from the address that she is a neighbour of L.M. The letter is lacking in any detail or specifics and I place minimal weight on it.

[36] The defendant provided the curriculum vitae of Mark German, with no other attachments. It is unclear for what purpose this document was provided.

Analysis

The Parties' Positions

[37] The Crown seeks a sentence of five to six years in the penitentiary.

[38] The defence seeks a conditional sentence.

The Principles of Sentencing

General

[39] In determining an appropriate sentence, I must consider the sentencing objectives in s. 718 of the Code, which provides as follows:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[40] Pursuant to s. 718.1 of the Code, "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence and the blameworthiness of the offender: R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 40.

[41] The sentencing judge must also have regard to the following:

any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (vii) of the Criminal Code;
the principle of parity, in that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b));
the principle of totality, meaning that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and
the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)).

[42] The principles of parity and individualization mandate that a sentence must both be similar to sentences imposed on similar offenders for similar offences and highly individualized: s. 718.2(b); R. v. Parranto, [2021], 2021 SCC 46, 3 S.C.R. 366, at para. 12.

Sexual Offences Against Children

[43] The sentencing principles of denunciation and deterrence should be the main animating sentencing factors in cases involving the sexual abuse of children: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 101. Section 718.01 of the Code also directs that in cases involving the abuse of a person under the age of 18, sentencing courts must give "primary consideration to the objectives of denunciation and deterrence of such conduct" when imposing a sentence.

[44] In R. v. Friesen, at para. 114, the Supreme Court of Canada called for "substantial sentences" in cases involving child sexual abuse. The Supreme Court held that a proportionate sentence in cases of child sexual abuse must account for the weighty societal interest in protecting children and the wrongfulness and harmfulness of sexual violence against them:

Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large: Friesen, at para. 5.

[45] The Supreme Court emphasized that sexual offences against children "always put children at risk of serious harm", and held that sentences must recognize:

(i) The inherent wrongfulness of these offences;

(ii) The potential harm to children that flows from these offences; and

(iii) The actual harm that children suffer as a result of these offences: Friesen, at para. 76. [Emphasis added.]

[46] The fact that the victim is a child increases the offender's degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable: Friesen, at para. 90. The Court articulated that "substantial sentences" means that mid-single digit penitentiary sentences are the norm, and upper-single digit and double-digit penitentiary sentences are not exceptional or rare: Friesen, at para. 114.

[47] In addition, it is an error to assess the degree of physical interference in terms of a hierarchy of acts because "there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference": Friesen, at para. 146.

The Appropriate Range

[48] The Crown relies on a number of cases to support its position that a five to six year sentence is appropriate in this case:

R. v. T.J.W., 2024 ONCA 924, in which the Court of Appeal upheld a sentence of five years concurrent on two counts of sexual interference. The defendant was found to have regularly touched his niece's thighs, vagina, breasts and buttocks when she was between eight and 12 years old;
R. v. G.R., 2020 ONSC 7411, in which the defendant was sentenced to 5.5 years in prison after being found guilty of sexual assault and sexual interference for three incidents of touching the victim's vagina and breasts and placing his penis on her vagina when she was nine years old. The victim was the child of the defendant's partner;
R. v. D.W., 2023 ONCJ 363, in which the defendant pleaded guilty to sexual exploitation of the victim, who was 13-15 years old at the time, and received a sentence of 3.5 years. The defendant was in a relationship with the victim's mother. The touching involved the breasts, digital penetration and the defendant forcing the victim to perform oral sex on him; and
R. v. C.P., [2025] O.J. No. 2545 (O.C.J.), in which the defendant was found guilty of sexual interference and sexual assault in relation to one incident in which he put his face in the victim's vaginal area and touched her genitals for approximately two minutes. The defendant was sentenced to 4.5 years in prison. The victim, who was seven or eight years old at the time, was his girlfriend's child.

[49] The defence relies on the following cases to support its position:

R. v. S.D.C., 2023 ONSC 6010, in which the defendant was sentenced to two years less a day and three years probation for one count of sexual interference against his seven-year-old daughter. The defendant was found to have put his penis on her buttocks for two to three seconds and then between her legs; and
R. v. D.J.B., 2018 ONCA 566, in which the Court of Appeal upheld a sentence of 30 months for two counts each of sexual touching and invitation to sexual touching. The defendant was found to have attempted to kiss his nine-year-old grand-daughter on two occasions, touched her genitals and exposed himself to her.

[50] The defence relies on cases that pre-date Friesen: R. v. W.T., 2016 ONSC 7776; R. v. R.(A.), 2007 ONCJ 497. I find those cases of limited relevance and do not rely on them. I agree with Shaw J.'s analysis in S.D.C., at para. 34 that Friesen "marked a turning point in sentencing in sexual assault cases involving children and provided clear direction to this court to consider imposing more significant sentences." Moreover, at the time the cases relied on by the defence were decided, the maximum sentence for the offence of sexual interference was 10 years. Parliament subsequently increased the maximum sentence to 14 years, signalling the seriousness of sexual offences against children.

[51] The defence has provided no cases in which a conditional sentence was ordered for the offence of sexual interference. In R. v. M.M., 2022 ONCA 441, the Court of Appeal held that "[c]onditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate…[.]" I address the appropriateness of a conditional sentence in the circumstances of this case further in these reasons.

The Principles Applied

Aggravating Factors

[52] Section 718.2(a) of the Code identifies circumstances that are to be considered aggravating. The relevant aggravating circumstances in this case are the following: (i) in committing the offence, the offender abused a child (s. 718.2(a)(ii.1)); (ii) in committing the offence, the offender abused a position of trust or authority (s. 718.2(a)(iii)); and (iii) evidence that the offence had a significant impact on the victim, considering her age and other personal circumstances, including her health and financial situation (s. 718.2(a)(iii.1)).

[53] At the time of the offence, as an adolescent girl who had just recently come to Canada with her mother and brother, S.J. was particularly vulnerable. L.M. was in a position of trust or authority in relation to S.J. He was trusted to take S.J. to school every day. S.J. and her brother developed a close relationship with L.M., whom they considered their uncle. He was someone they spent a lot of time with and spoke to regularly. In addition, as detailed earlier in these reasons, the assault has had a significant impact on S.J.

[54] The Crown argues that it is also aggravating that L.M. told S.J. not to tell anyone about the assault because it would ruin the family. I have no difficulty finding beyond a reasonable doubt that L.M. did so, and agree that this is aggravating. In fact, despite S.J. telling F.M. about the assault upon returning home and the significant family upheaval that took place afterwards, R.M. and F.M. did not go to the police. S.J. testified that she was worried that L.M. and J.A.'s children would be taken away from them. The allegations only came to light after S.J. became overwhelmed at school and reported the incident to a teacher, who then contacted the police.

[55] The Crown argues that it is aggravating that L.M. offered S.J. marijuana on the night of the assault. L.M. admitted that he smoked marijuana that night and that he offered some to J.A. He denied offering any to S.J. Based on the evidence, I am not satisfied beyond a reasonable doubt that L.M. offered S.J. marijuana that night and I do not rely on the offering of marijuana as an aggravating factor.

Mitigating Factors

[56] There are a number of mitigating factors in this case. First, I find that L.M.'s rehabilitative potential is good. He does not have a criminal record. Despite challenging life circumstances, including losing his parents to a violent crime, L.M. has been a law-abiding person. L.M. came to Canada on his own at a young age and has remained employed steadily since that time. He does not appear to have any substance use issues. J.A. describes L.M. as a caring father to his children. He has consistently spent time with them and been involved in their lives.

[57] In my view, there is a low to moderate risk of L.M. reoffending. L.M. has remained in the community without incident since his arrest in October 2022. He has abided by the conditions of his release and has not demonstrated conduct that would suggest an ongoing risk to public safety. He has the support of his family.

[58] I have some concern that L.M. has not taken responsibility for his actions and has expressed no understanding of the impact of the sexual assault on S.J. L.M.'s comments in the PSR reflect that he continues to see himself as the victim of R.M. and F.M. While he is willing to seek counselling, it is in relation to the impact on him of his parents' violent death and not his offending conduct. As a result, I do not see L.M.'s willingness to seek counselling as mitigating.

[59] The defence argued that L.M. expressed remorse by apologizing for his actions the day after. L.M.'s testimony at trial, however, was that he apologized for grabbing S.J.'s leg after waking from a nightmare. In my view, given that L.M. has never acknowledged that he touched S.J. for a sexual purpose, the apology cannot constitute an expression of remorse. While L.M. has not expressed remorse, an absence of remorse is not an aggravating factor. In the circumstances, I do not consider remorse to be a mitigating factor.

[60] In R. v. D.B., 2025 ONCA 577, the Court of Appeal reduced the sentence for a conviction for sexual assault of the 16-year-old victim from four to three years. The Court of Appeal held that the sentencing judge erred in principle in failing to consider meaningfully the collateral consequences of family separation, including financial hardship, loss of housing and emotional harm to the defendant's partner and young children. Because such consequences increase a sentence's impact, they must be taken into consideration in arriving at a proportionate sentence.

[61] In this case, L.M. has three young children, ages eleven, nine and four years old. In the PSR, J.A. disclosed that she has Meniere's disease and relies on L.M. to take care of her and the children when she is unwell. In arriving at an appropriate sentence, I am mindful that I must take into consideration the collateral consequences of a lengthy sentence on L.M.'s ability to support his children, financially and emotionally.

Systemic Factors

[62] The defence requests that this court take into consideration the systemic factors embedded in the criminal justice system that work consistently to the disadvantage of racialized men such as L.M.

[63] In R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 102, the Court of Appeal confirmed that social context relating to the offender's life experiences may be used where relevant to mitigate the offender's degree of responsibility for the offence and/or to assist in the blending of the principles and objectives of sentencing to achieve a sentence which best serves the purposes of sentencing. Where past hardship including the impact of anti-Black racism is connected to the criminal activity, that is a relevant mitigating factor to be taken into account. While a direct causal link is not required, there must be some connection between the overt and systemic racism identified in the community and the circumstances that are said to explain or mitigate the criminal conduct in issue: Morris, at paras. 96-97.

[64] In this case, the PSR does not provide much insight into the impact of systemic racism on L.M. or the potential connection between his experiences with systemic racism and the offences at issue in this case. The defence has not suggested any connection between L.M.'s experiences of systemic racism and the circumstances that are said to explain or mitigate the criminal conduct at issue. See: Morris, at paras. 96-97. In the circumstances of this case, I am unable to conclude that the impact of systemic racism on L.M. is a relevant mitigating factor.

Summary of the Application of the Sentencing Principles

[65] The most significant principles engaged in this case are denunciation, deterrence and the separation of the offender from society. I remain mindful of the Supreme Court's direction in Friesen regarding the rationale for substantial sentences in cases involving sexual offences against children. In sentencing an adult for sexual exploitation of a child, it is an error to give priority to restraint or rehabilitation over denunciation and deterrence: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 33, 37.

[66] When determining a fit sentence for sexual offences against children, the court should consider the following factors: the likelihood to reoffend, abuse of a position of trust or authority, duration and frequency, the age of the victim, the degree of physical interference, and victim participation: Friesen, at paras. 121-154. I have considered each of the relevant factors in determining a fit and appropriate sentence.

[67] In this case, which involves digital penetration and attempted penetration, the degree of intrusion is high. The harm to S.J. is not limited to physical harm, but includes psychological harm caused by the offence.

[68] In my view, the PSR does not provide a basis to find that L.M.'s lived experiences as a racialized man mitigate his moral blameworthiness for the criminal conduct. However, given L.M.'s lack of a criminal record and his prosocial life to date, rehabilitation should also be an important sentencing objective in the circumstances: see Morris, at paras. 80-81. L.M.'s prospects for rehabilitation are good. He has strong support from his spouse. He has consistently been employed and motivated to work. As a devoted father, his children provide him with strong motivation to refrain from criminal activity in the future.

[69] At the same time, L.M. does not admit that he committed the offence at issue. While he is willing to go to therapy, his willingness relates to addressing the trauma from the violent death of his parents and the associated sleep issues. The PSR does not reflect that L.M. has gained any insight into his conduct toward S.J., the consequences of his actions, and the harm caused to S.J.

[70] Based on all of the circumstances, taking into consideration the gravamen of the offence, as well as the aggravating and mitigating factors detailed above, and applying the principle of restraint, I find that an appropriate sentence is three years in the penitentiary. As a result, it is not necessary for me to consider whether a conditional sentence is appropriate in the circumstances. In any event, a conditional sentence would not be proportional to the seriousness of the offence, the moral blameworthiness of L.M. violating S.J.'s trust to exploit her bodily integrity and dignity, and the profound impact it has had upon her. In the circumstances of this case, a conditional sentence would not be in line with the Supreme Court's direction in Friesen.

Conclusion

[71] For the foregoing reasons, L.M. is sentenced to three years in the penitentiary.

Ancillary Orders

[72] The defence does not oppose the ancillary orders sought by the Crown. The following ancillary orders shall be made:

(a) Pursuant to s. 487.051 of the Code, a DNA order;

(b) Pursuant to s. 490.012(1) and s. 490.013(2)(b) of the Code, an order to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for a period of 20 years from this order;

(c) Pursuant to s. 743.21(1) of the Code, an order not to communicate with S.J. or her immediate family members, R.M., F.M., Z.M., or D.B., for the duration of the sentence;

(d) Pursuant to s. 161(1) of the Code, an order not to, for a period of 10 years:

(i) seek, obtain, or continue any employment, whether remunerated or not, or become a volunteer, where it involves being in a position of trust or authority towards a person under the age of 16 years;

(ii) be within 200 metres of anywhere he knows S.J. to live, work, worship, attend school or is otherwise known to be; and

(iii) be in the presence of any person under the age of 16 unless in the company of a person over the age of 18, except in respect of L.M.'s own children.