Court File and Parties

Court File No.: CR-23-7 Date: 2025-10-27 Ontario Superior Court of Justice

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

Counsel: Shane Wright, for the Crown Ron Ellis and Laura Ellis, for the Accused

Heard: Sentencing Submissions October 2, 2025

Restriction on Publication

By court order made under s. 486.5 of the Criminal Code, information that may identify the names of victims, witnesses and justice participants, described in this judgment may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Moore J.

I. Overview

[1] The accused S.W. was convicted by a jury of June 12, 2025 on counts 1, 2, 3, 4, 6 and 7 and of an attempt on count 5 following an eight day trial. Counts 1-3 related to his stepdaughter J.S. and count 4 related to another stepdaughter, G.S. There is a publication ban in place for any information which could identify the complainants. For this reason, if these reasons are to be published, their names, their mother's name, the accused's name and any family members names would have to be initialized. The counts were as follows:

• Sexual touching of J.S., contrary to s. 151 of the Criminal Code of Canada
• Invitation to sexual touching to J.S., contrary to s. 152 of the Criminal Code of Canada
• Administering a stupefying or overpowering drug to assist/enable commission of sexual interference of J.S., contrary to s. 246(1)(b) of the Criminal Code of Canada
• Sexual Assault of G.S., contrary to s. 271 of the Criminal Code of Canada
• Voyeurism, contrary to s. 162(1)(a) of the Criminal Code of Canada [Note: convicted of Attempt Voyeurism]
• Possession of stolen medication, a hospital in London, contrary to s. 355(b) of the Criminal Code of Canada
• Possession of stolen medication, a hospital in Kitchener, contrary to s. 355(b) of the Criminal Code of Canada

[2] Sentencing submissions were heard on June 12, 2024 and the sentencing was scheduled for January 2, 2025. The sentencing was further adjourned as I was tied up in another matter and then further adjourned due to Mr. S.W.'s knee surgery. This Court must now determine the facts upon which the accused is to be sentenced and impose an appropriate and fit sentence.

II. Facts

Determining Facts Following a Jury Trial

In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-19, the Supreme Court of Canada described how a judge ought to determine the relevant facts for the purposes of sentencing following a jury trial:

[U]nlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, [1991] 2 S.C.R. 518 (S.C.C.), p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.).

Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (Alta. C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, [1982] 2 S.C.R. 368 (S.C.C.); R. v. Lawrence (1987), 58 C.R. (3d) 71 (Ont. H.C.)). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

In determining whether any real ambiguity has been created by the verdicts returned, I must consider how the case was presented by the parties and the nature of the evidence led: R. v. J.M., 2016 ONSC 5139, [2016] O.J. No. 6819, at para. 12. Only if there is ambiguity based on the evidence, the defences asserted at trial, and/or the verdicts does the Court have jurisdiction to undertake its own independent factual assessment: see R. v. Braun (1995), 95 C.C.C. (3d) 443 (Man. C.A.), at paras. 24-25, 30; R. v. Gauthier (1996), 108 C.C.C. (3d) 231 (B.C.C.A), at paras. 23-24; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16-18; R. v. L.M., 2014 ONCA 640, 122 O.R. (3d) 257, at paras. 49-51. It is not necessary for the trial judge to find a series of facts that least implicate the accused, particularly if the weight of the evidence convinces her of a more onerous foundation in the facts: R. v. Medwid, [2008] O.J. No. 1992.

[3] In this case, the Crown proceeded with two global counts of sexual interference and invitation to sexual touching relating to J.S. There are five different incidents recounted by J.S. that could ground the conviction for sexual interference and two incidents which could ground the conviction for invitation to sexual touching. The express and implied factual implications of the jury's verdict with respect to the other counts are not ambiguous.

[4] The events charged occurred when S.W. was living with J.S., G.S., and their mother as a family in the same residence. The accused also had shared custody of two biological children from a previous marriage that lived at the same residence part of the time.

[5] At the trial, the complainants J.S. and G.S. testified as did their mother. The accused's biological son testified. A police officer involved in the search of the residence testified. There was an expert in pharmaceutical drugs called as to the nature and effects of the drugs found in the residence at the time of the search warrant. Ms. Seward who works in the digital forensics department at London Police also testified. Much of the evidence underlying the two counts of possession of medication from a hospital in London and two locations where the accused worked as a nurse was introduced by an agreed statement of fact.

[6] The accused did not testify, and no other defence evidence was called.

Count 1 – Sexual Interference

[7] J.S. testified about a number of incidents that occurred over a four year period when she was 9-13 years old. J.S. used her bedroom renovation in 2016/2017 and a trip to Canada's Wonderland in 2016 as her main touchstones for time but testified that she wasn't sure which incident of a sexual nature came first. She thought it might be a request to perform fellatio which I included under count 2.

[8] J.S. recalled an incident when the accused invited her into his bedroom and asked her to lay on his bed and take off her pants and underwear. She was laying on her back with her legs over the side of the bed. He then removed his pants and boxers and rubbed his erect penis on her until he ejaculated on her. She recalled asking him if she was going to get pregnant and he responded "no" because he didn't ejaculate inside of her. She got dressed and left.

[9] Another incident occurred when she was 13 and they went as a family to Canada's Wonderland on July 26, 2016. Her mother slapped her on the bum and the accused pretended it was him. Later, he approached her and slapped her on the bum and said "this time it was me."

[10] J.S. testified that the accused would frequently ask her to expose herself to him by flashing him or exposing part of her naked body. He would expose himself to her and she described a piercing near the base of his penis. She said this would occur when she would go downstairs to use the downstairs shower as the upstairs one was broken. One day, he asked her to come down to the basement where he had his office and had her completely undress and sit in his gaming chair. He sat in front of her and licked the outside of her vagina. It lasted about 5 minutes.

[11] J.S. testified that on another occasion around the time of her bedroom renovation, he asked her if she could get naked and go sit in the living room. They sat on the couch for about 10 minutes and then her Mom and G.S. came into the driveway. Near this same time, J.S. was sitting in the living room in a dress and the accused asked if she had any underwear on. He asked her to take her underwear off and proceeded to lick her vagina. She testified that it made her uncomfortable, "grossed out" and ashamed.

[12] There was an incident which is connected to count 3 where G.S. testified that she walked in on the accused on top of J.S. with his hands touching her bare chest. He said that J.S.'s stomach was hurting. G.S. said that when he saw her, he jumped back but J.S. didn't move. The accused was wearing tight black boxers. J.S. appeared to be unconscious.

Count 2 – Invitation to Sexual Touching

[13] J.S. testified that during one incident the accused came into her bedroom wearing boxers when she was about to fall asleep. He took off his boxers and sat on the edge of her bed and ask her to "suck his dick" and to put her mouth on his penis. J.S. testified that she recalls bending down, but then said "no, no, no I don't want to". She believes her mouth may have touched his penis. She testified that this is one of the earliest incidents she can recall and happened before her room was redecorated. She testified she felt "weirded out" and confused.

[14] Another incident occurred in the basement sometime after the basement renovations. J.S. testified that it happened during the period when the accused asked her to flash him. She said that he asked her to come to the basement and to sit in the gaming chair and to "suck his dick". The accused was wearing boxers. J.S. said, "no". The accused then asked if he could see her naked. J.S. didn't recall for sure, but believed she flashed him and then left.

[15] It is clear from the jury's verdict that they believed J.S. that she was inappropriately sexually touched by the accused and that he invited her to touch a part of his body. It is impossible to know the exact facts the jury relied on for these two convictions on the sexual interference and invitation to sexual touching counts.

[16] In order to make findings on these counts, I must make my own assessment of the credibility and reliability of the complainant and consider any exculpatory evidence that may impact on those findings. J.S. was able to provide details about the incidents outlined above even if she wasn't able to place them in time with a great deal of specificity. This is not surprising given the frequency of the events and the age she was at the time. J.S. was able to provide a description of where the events took place, and in some cases conversations that were had at the time and to recount how the events made her feel at the time. While there were some inconsistencies in her testimony such as whether she took a photo of a post-it note or showed the actual note to her mother and in her account of what she disclosed to her mother when, I find that overall these inconsistencies do not undermine J.S.'s overall credibility and reliability in relation to her accounts of the various sexual encounters. She was not shaken on her testimony about these incidents. She wrote an angry letter to the accused about what a bad step-father he was but did not include accusations of sexual abuse within the letter. I do not find this detracts from her testimony. J.S. testified that she was angry with the accused but also afraid her mother might find the letter so didn't put any of the sexual events in it.

[17] I accept the events outlined by J.S. as true and am not left with a reasonable doubt that there were multiple incidents of sexual touching and oral sex by the accused and more that one request for J.S. to fellate him.

Count 3 – Administering a Stupefying Drug

[18] The Court heard evidence that the accused would sometimes give J.S. cough medicine or Gravol either in a pill cup or in liquid form. J.S.'s mother testified that on one occasion she observed J.S. walking unsteadily from wall to wall one morning and asked the accused what he had given her. She was told that he had given J.S. Gravol and she told him not to do it again. There was evidence that the accused had medications from hospitals he worked at when the family lived with him. There was evidence about various medication found in the residence during a search warrant which was executed years after J.S./G.S. and their mother had moved out of the residence. It appears the stolen medications found during the search warrant were obtained after the family had moved out of the residence. I have therefore not considered these medications as a source of the drug used in relation to J.S.. The pharmacy expert testified that Dimenhydrinate or Gravol is a ward stock drug and is available to nurses on a ward without controls. She described the effect of Gravol and of other drugs found. Gravol can cause dizziness and drowsiness.

[19] As already indicated under the sexual interference count, G.S. saw the accused touching J.S.'s bare chest and she testified that J.S. appeared to be unconscious and did not move. G.S. ran from the room and cried but testified she did not tell anyone at the time.

[20] The accused told his biological son, Z.W., that there was an incident when J.S. was sick and the accused had to take off her top as part of what he had to do and either G.S. or their Mom walked in to the bedroom and that created conflict and the Mom or all of them were upset about the conflict.

Count 4 – Sexual Assault

[21] G.S. testified that when she was 14 or 15, she was standing at the kitchen sink doing dishes in a T-shirt with no bra, when the accused came up behind her, put his hands in the dishwater and then on her breast area leaving wet marks and said "here is your new bra". G.S. immediately ran from the kitchen to change as the water had left hand marks on her breasts. G.S. testified that she felt uncomfortable, ashamed and confused. She didn't tell anyone as she felt ashamed and thought it was her fault of not wearing a bra.

Count 5 – Attempt Voyeurism

[22] The evidence on this count came from the accused's son, Z.W., and from Ms. Seward. Z.W. testified that he found a ring camera hidden in a bag of floss in the downstairs bathroom and it faced the shower area. He took photos of the device and texted his father who tried to convince him it had been modified to detect humidity. His son did not believe him. The upstairs bathroom was being renovated and it appears the whole family was using the basement bathroom to shower. The accused asked his son to leave the device on his desk but to cover it up.

[23] When the police did a search of the accused's residence they located a ring camera with the same serial number. Ms. Seward also located a Ring Camera app on the accused's phone. The camera was motion activated and could be used in live view or would record and could be played back one time without a paid subscription. There was no indication the Ring camera had been modified in any way.

[24] It was unclear if the ring camera in the basement bathroom actually captured anyone in a naked state before it was discovered, and the jury convicted the accused of Attempt Voyeurism.

Count 6 – Possession of Stolen Medication (London Hospital)

[25] The accused worked as a nurse at a hospital in London for a period of time. Medication which was the property of a hospital in London was located in his residence at the time of the search warrant. It was agreed that he did not have a lawful excuse for having those medications.

Count 7 – Possession of Stolen Medication (Kitchener Hospital)

[26] The accused also worked as a nurse at a hospital in Kitchener for a period of time. Medication which was the property of a hospital in Kitchener was located in his residence at the time of the search warrant. It was agreed that he did not have a lawful excuse for having those medications.

III. The Impact on the Victims

[27] J.S. provided a victim impact statement which she read in court. G.S. and the complainants' mother O.S. also provided victim impact statements.

[28] J.S. talks in her statement about the devasting impact these offences have had upon her. She advises that she blamed herself as well as the accused for what happened and felt ashamed. She became very angry. She talks about wanting to kill herself to end the negative feelings and torment she was enduring.

[29] Even 10 years later, she writes that she still has nightmares and when this happens the "rage, shame, disgust" all comes back. She suffers from depression and learned to disassociate. This trauma has impacted her schooling, ability to share her feelings with others, personal relationships and employment and still haunts her. She speaks of being fearful of seeing the accused when she is out in public.

[30] J.S. advised that the depression and anxiety caused by these events have impacted her physically to the point she describes having panic attacks and feeling like she is "suffocating on my pain" and not being able to breathe. She also suffers from Borderline Personality Disorder and PTSD and takes medication to help manage her mood regulation and depression.

[31] J.S. wrote a poem entitled "Burned and Buried" as a vehicle to express the impact these offences have had on her and their ongoing impact. It speaks of her childhood being stolen from her. One of the lines from the poem is quite poignant, "My childhood can be found underground, locked away/Burned and buried/". She writes in her VIS that the poem represents her unresolved pain, anger, grief, sadness and sense of misjustice (sic) that she feels everyday and is a representation of her traumatic childhood from the accused and her inescapable suffering even into adulthood.

[32] G.S. provided a victim impact statement in which she details the significant impact this offence has had upon her. She states that it has resulted in increased anxiety and depression and a loss of trust in her relationships with others. She indicates that she lives in fear of seeing the accused to the point of suffering agoraphobia and not wanting to leave her house. These issues caused her to drop out of college and be in debt.

O.S. provided a victim impact statement. In it, she indicates that she experienced overwhelming shock, anger, sadness, guilt and shame when she found out what her partner did to her daughters. She blamed herself for not protecting them. She buried herself in work, but the court proceedings have brought all the emotions flooding back. She describes herself as robot-like and says she doesn't like talking or noise. She had to take a mental health leave from work because of her anxiety. She has a hard time trusting others. She lost about 9 months of work.

IV. The Circumstances of the Offender

[33] The accused S.W. is 55 years old and has no prior criminal record.

[34] A pre-sentence report was prepared. It indicates that he had a positive relationship with his parents who are both now deceased. His father was in the army, law enforcement and was a meat inspector and his mother was a secretary and the family moved quite frequently. He has twin sisters whom he advised the report writer sexually abused him between the ages of 5-20 years old. He told his parents about the abuse after he was an adult.

[35] The accused was married in 1994 and has three biological children from that marriage ages 23-26 years old. He was divorced in 2010 and had an 8-10 year relationship with O.S. with whom he lived with J.S. and G.S.. He remarried in September 2020 to L.W. and became a stepfather to her 10 year old daughter. L.W. submitted a letter of support but also spoke with the report writer and advised that she shares a supportive and loving relationship with the accused.

[36] The accused had to change schools often as his family moved which led to him repeating Gr. 7. He obtained a Certificate of Qualification as an Automotive Technician and was a mechanic for 12 years before returning to school in 2004 and graduating with a Bachelor of Science in Nursing in 2009. The accused then worked as a RN for the next 8 years. He had some workplace issues and due to the current charges has been working full time at a car dealership for the last year. His employer described him as acting professionally and showing exceptional work habits.

[37] The accused reported to the report writer that he was involved in the community through volunteering with the church youth groups and coaching co-ed baseball at the church. He has been an umpire for over 25 years. He spends his leisure time completing home renovations and mechanic work, walking his dogs, attending church and taking day trips with his wife. The report writer spoke to some of the same people who provided letters of support to the Court.

[38] The accused advised that there were some alcohol abuse issues in his family but that he does not have any issues with drugs or alcohol. He shared that he requires knee surgery for one of his knees and has an artificial disc in his back and has been diagnosed with asthma. He advised that he attended community based counselling services including 12 weeks of individual counseling in the past year.

[39] Defence filed a number of letters of support for the accused including letters from the following:

• L.W. – the accused's current wife
• W.L. - friend
• R.S. – friend
• I.W. – son
• D.C. – friend
• C.R. – friend
• Rev. Dr. J.K. – the accused's pastor

[40] I have read the letters of support and while I will not repeat their contents in detail here, it is clear to me that the accused is held in high regard by his family and friends who authored the letters and has a great deal of community support. The letters indicate that the authors who are not family members met the accused through umpiring, through church or through work. A number of themes came through the letters including the accused's reputation for kindness and compassion. In addition, the accused is described as reliable, trustworthy, thoughtful, loving and supportive. Almost every person mentioned the accused's generous nature and how he often goes out of his way to help others, even to his own detriment.

[41] It is clear that many of the writers have a hard time reconciling the person they know with the person convicted of these serious offences. Ironically, it is often the case that persons who commit sexual offences against children in their care are otherwise upstanding members of their community with strong and positive relationships. Reading the letters was a reminder that people are more than their worst acts and that the fallout from a criminal trial often impacts a wide circle of people around both the offender and the victims.

V. Crown and Defence Positions

[42] The Crown seeks a total sentence of 8-10 years in custody.

[43] They propose the sentence be broken down as follows:

• Counts 1 and 2, sexual offences in relation to J.S. represent seven incidents which the Crown suggests warrants a sentence of 5-6 years.
• Count 3, administering stupefying drug should be 2 years consecutive.
• Count 4 sexual assault in relation to G.S. should be 6-12 months consecutive.
• Count 5, attempt voyeurism should be 6-12 months consecutive.
• Counts 6 and 7, possession of medications, should be 3-6 months consecutive.

[44] The Crown submits that the range of sentence would be 8 years 3 months at the low end and 10 years 6 months at the high end, so a sentence in the 8-10 year range is appropriate.

[45] The Crown also seeks ancillary orders including a s. 743.21 order in relation to J.S., G.S., and O.S., DNA order, s. 109 order for life, a s. 161(a)(a.1)(b)(c) and (d) order with an exception in the company of an adult over 18 years old, and SOIRA.

[46] The Crown focused its submissions on the shift to increased sentences in cases of child sexual offences mandated by the Supreme Court in R. v. Friesen, 2020 SCC 9, and by the legislature. The Crown points to the nature and duration of the offences over four years against J.S., the fact there are multiple victims, the statutory aggravating factors set out in s. 718 of the Criminal Code, the age of the complainants and the significant breach of trust and impact on them.

[47] The Defence submits that a total sentence of 5-6 years in custody is appropriate.

[48] The Defence suggests the following breakdown is appropriate:

• 4-5 years for Count 1 and 2 relating to J.S. concurrent.
• 12-18 months concurrent on Count #3.
• 6 months consecutive on Count 4 relating to G.S.
• 4-6 months consecutive for Attempt Voyerism.
• 30 days each consecutive to each other but concurrent to non-sexual offences for Counts 6 and 7, possession of medications.

[49] The Defence does not take issue with s. 740.21, SOIRA, DNA or s. 109 orders being sought. The Defence submits that there is no need for a prohibition on use of the internet and that would be much too onerous on the facts. They also argue that a s. 161 prohibition in relation to employment and playground, school grounds, swimming pools and daycares with an exception unless in the company of an adult is fine, but submit that there is no need for a prohibition in relation to public parks and community centers. The accused's current bail conditions simply prohibit him in engaging in any activity with a person under 16 unless supervised by an adult.

[50] The Defence points out that it is not uncommon for the abused to become the abuser which is not an excuse but is part of the factual matrix the Court must consider. They point to the accused's strong family and community support. They also point to his strong employment history and community involvement. They point out that the accused has no criminal record and that the sentence they are proposing would still be a significant sentence for a first-time offender.

VI. The Fit and Proportionate Sentence in This Case

Sentencing Principles to be Applied

[51] The offences of sexual interference and invitation to sexual touching, carry a maximum term of 14 years imprisonment. Attempt voyeurism has a maximum penalty of 2.5 years imprisonment. Administration of a stupefying/overpowering drug to enable/assist with commission of a sexual interference has a maximum penalty of life imprisonment. Possession of stolen property under five thousand dollars has a maximum penalty of two years imprisonment.

[52] The fundamental purpose of sentencing is to protect society; to ensure respect for the law; and to maintain a just, peaceful, and safe society. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A just sentence meets the goals of deterrence, denunciation, retribution, rehabilitation, and protection of society.

[53] In arriving at a just sentence, the Court must consider the aggravating and mitigating factors unique to each case. Sentencing is a highly individualized process, and each case must turn on its own specific facts. Individualization is central to the assessment of proportionality as it requires a focus on the individual circumstances of the offender: R. v. Parranto, 2021 SCC 46, 411 C.C.C. (3d) 1, at para. 12; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58.

[54] The Court of Appeal has stated that sentencing judges have wide discretion when imposing sentences: R. v. Kerr (2001), 153 O.A.C. 159 (Ont. C.A.).

[55] I have considered the principles of sentencing as set out in Section 718 to 718.2 of the Criminal Code, R.S.C., 1985, c. C-46 (the "Criminal Code"). One must keep in mind the goals of parity, consistency, and fairness in applying those principles. Specifically, s. 718.01 requires a court imposing a sentence for an offence that involved the abuse of a person under the age of eighteen years old, to give primary consideration to the objectives of denunciation and deterrence of such conduct. S. 718.2 sets of a number of aggravating factors including consideration if the offender in committing the offence: abused of a person under 18 years of age, abused of a position or trust or authority in relation to the victim and evidence that the offence has a significant impact on the victim, considering their age and personal circumstances.

[56] In 2020, in the seminal case of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court of Canada took the opportunity to review sentencing in child sexual offences. The Court called for tougher punishment of sexual violence against children and encouraged an upwards departure from prior precedent. The Court noted that Parliament had consistently increased the maximum sentences for child sexual assaults. The decision focused on society's deepening and evolving understanding of the severity of harm caused by child sexual offences. The harmfulness and wrongfulness of child sexual assault impacts both the gravity of child sexual offences and the degree of responsibility of offenders. Paras. 74-76. Courts must impose sentences which are proportionate and reflect that new understanding.

[57] Some of the factors that the court in Friesen set out as having an impact on sentencing included:

i. Likelihood to reoffend (paras. 122-124). Court must protect children from harm and where there is an increased risk of re-offence, there should be a greater emphasis on separating the offender from society.

ii. Abuse of a position of trust or authority (para. 125). Abuse of a position of trust or authority can lead to more harm to a victim and is deserving of a stricter sentence.

iii. Duration and frequency of abuse (para. 131). The duration and frequency of abuse is an aggravating factor. Multiple sexual assaults risk multiplying the harm to children in the short term. Also, on a long-term basis a prolonged sexual relationship could lead to more pronounced psychological harm. The moral blame worthiness of the offender rises with each assault they choose to commit.

iv. Age of the victim (paras. 134-136). The Court found that the power imbalance increases the younger the child and the young age can be an aggravating factor. However, the risk of harm to adolescent victims should not be underestimated and the Court notes that this cohort had been disproportionately victimized and the sentences have been low.

v. Degree of physical interference (paras. 137-146, 148-154). The Court found that the degree of physical interference is an aggravating factor but cautioned courts to be careful not to create hierarchies of physical acts. It moved away from assessing harm based on penile penetration. The Court also rebuked the notion of victim participation being a mitigating factor.

[58] In this case, I find that denunciation and deterrence are key principles which factor into the sentencing of the accused. Having said that, I must consider all of the goals of sentencing, including rehabilitation and restraint. Restraint is codified in section 718.2(d) and means that a sentencing court should seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction: see R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.), at para. 96. Restraint is of particular importance when sentencing first-time and youthful offenders: see R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.) at pp. 543-544 and R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para. 36.

[59] Counsel for both the Crown and Defence provided the court with a number of authorities in support of their positions. Crown provided thirteen cases and Defence provided eight cases.

[60] The Crown provided: R. v. Friesen, 2020 SCC 9; R. v. J.C., [2021] O.J. No. 7396 (OCJ); R. v. G.R., 2020 ONSC 7411; R. v. F.G., [2021] O.J. No. 7397 (OCJ) (3 victims, 5 years); R. v. M.K., 2016 ONCA 589; R. v. F.P., [2005] O.J. No. 2747 (CA) (2 victims, 12 counts, anal intercourse, 6 years); R. v. J.H., 2018 ONCA 245 (3 daughters, touching and rubbing, 6 years); R. v. R.S., 2018 ONSC 1328 (3 victims in a group home, multiple incidents fondling, 5 years concurrent); R. v. R.T.M., 2008 ONCA 47, [2008] O.J. No. 229 (CA) (guilty plea, increased on appeal to 5 years); R. v. G.M., 2014 ONCA 602 (victim was GF's daughter, between ages 11.5-12 years old, non-penetrative sexual offences, 5 years); R. v. D.M., 2012 ONCA 520 (niece, 3 years of abuse including intercourse, 3 year sentence increased on appeal to 7 years); R. v. T.J., 2021 ONCA 392 (6 year old, brief incident of touching, 9 months sentence increased on appeal to 24 months); R. v. Lemon, 2012 ABCA 103.

[61] The Defence provided: R. v. B.W., [2022] O.J. No. 2193; R. v. G.R., [2020] O.J. No. 5263; R. v. H.W., [2022] O.J. No. 2284 (mother's partner, 2 victims, 4 incidents, 2 years per victim consecutive); R. v. I.C., [2024] O.J. No. 1118 (step-daughter, one incident, Crown - 18 mos-2 years, Defence - conditional sentence, 10 months imposed); R. v. J.S., [2023] O.J. No. 139 (poss'n of child pornography and voyeurism, 4 months jail); R. v. Jainarayan, [2017] O.J. No. 5427 (employee theft, Suspended Sentence); R. v. Phillips, [2018] O.J. No. 3633 (sexual interference, administer noxious substance, other offences, guilty plea, five years); R. v. Shaw, [2023] N.S.J. No. 744 (3 victims, ages 6, 8, 11 at time, daycare setting, 5 incidents, 7 years 3 months).

[62] I have carefully reviewed all the authorities provided but will only touch on some of them for these reasons. The cases provided inform my application of the parity principal and aid me in determining a sentence that is proportionate to the harm done by the accused and the inherent gravity of his conduct.

[63] I will start with Friesen. In that case, the Supreme Court restored the trial judge's sentence of 6 years finding that it was on the lenient end of the spectrum of fit sentences (Para. 166). Mr. Friesen had plead guilty and was not in a position of trust toward the child and the offence involved a single incident. Aggravating factors included that the child was only 4 years old, appeared to have cried out in pain and the offender abused his position of trust with the child's mother and co-ordinated his abuse with the mother. Mr. Friesen was a relatively youthful first offender and had experienced a traumatic and painful childhood involving physical, emotional and sexual abuse. The Supreme Court went on to comment on additional aggravating factors which could have been taken into account including the potential harm to the mother from the extortion, the fact the offence was committed in the child's home and evidence of misogynistic attitudes. (Para 178) Sexual violence against children that takes place in the home may be particularly damaging as it damages the child's sense of security in the home environment. (Bauman, at p. 370; R. v. M.J. 2016 ONSC 2769 at para. 31).

[64] The Supreme Court noted at para. 166-168 that in R. v. Woodward, 2011 ONCA 610 another case involving a single instance of sexual interference of a child where the offender was not in a position of trust, Moldaver J.A. of the Ontario Court of Appeal found the six-and-one-half year sentence "lenient" and that case pre-dated the increase in maximum sentences for sexual interference.

[65] The other cases the Crown provided demonstrated a range of sentences between 53 months to 7 years.

[66] In R. v. J.C., [2021] O.J. 7396, the offender was convicted after trial and the Court sentences him to 35 months for total for 3 incidents of sexual contact with his 14 year old niece over one weekend involving a slap on her buttocks, a massage which included unhooking her bra and grabbing of her breasts over and under her clothing and grabbing of her vagina. He also asked her to call him so they could "fool around" and was given a consecutive 9 months sentence for invitation to sexual touching. He pled guilty and was sentenced to 9 months consecutive for voyeurism in relation to his 25-year-old niece. He put a camera in an upstairs bathroom and surreptitiously took photos of her naked or in various stages of undress. He was also convicted of two breaches of recognizance. The accused had a minor unrelated record. I mention this case as it has both sexual offences and voyeurism. On their face, the facts in that case underlying the offences concerning the 14-year-old were less serious than the facts before this court and attracted a 44 month sentence.

[67] In R. v. G.R., [2020] O.J. No. 5263, the accused was found guilty of three incidents of inappropriate touching when the victim was 9 years old. The accused was the victim's mother's partner and lived with the victim and her siblings in an apartment where the abuse took place. The incidents included touching her vagina with his fingers, both over and under clothing, touching her nipples and rubbing his penis against her vagina. The accused was 50 years old, maintained his innocence, he had no record and was gainfully employed. The incidents had a significant impact on the victim and her mother. The trial judge imposed a sentence of five-and-one-half years in the penitentiary.

[68] In R. v. M.K., [2016] ONCA 589, the appellate decision focuses mainly on the conviction appeal and indicates that the sentence appeal was "faintly pressed". The Court indicates that the accused was in a position of trust towards the complainant and abused the complainant when she was between the ages of 13-19. The only facts indicated are that the conduct included kissing, fondling and partial intercourse. The Court found that they were satisfied that the sentence of seven years imposed was entirely fit and that it fell within the appropriate range and showed no error in principle or disproportionate emphasis on any relevant sentencing objective, principle or factor.

[69] In R. v. B.W., 2022 ONSC 2399, the offender was seen as a step-father by the two female victims. He had a prior conviction for domestic violence. He was convicted of two counts of sexual interference, invitation to sexual touching, and making available sexual materials. The offences took place in 2019 when the victims were nine and eleven. The incident involving the youngest involved giving her a wedgie and rubbing his penis against her buttocks. She testified that this occurred several times but was unable to provide details of the other incidents. The abuse of the eleven-year-old occurred over seven weeks and involved "simulated intercourse" by rubbing his penis against her buttocks, licking and touching of her vagina, digital penetration, exposing himself to her, and putting her hand on his penis and making him rub it until ejaculation. He also showed her two child pornography videos. The abuse had a profound impact on the victims. The trial judge imposed a 2 year sentence in relation to the 9 year old and a 4 year sentence consecutive for sexual interference in relation to the 11 year old with all other sentences running concurrently for a total sentence of 6 years.

VII. Analysis

[70] Each case is unique and while the court must consider parity in sentencing, no two cases are exactly alike. I must consider the particular facts in this case, along with the mitigating and aggravating factors to arrive at an appropriate sentence.

[71] It is clear that particularly with respect to the sexual offences involving J.S. and G.S., denunciation and deterrence are the primary sentencing factors. I must also consider the accused's rehabilitation especially in light of the fact he is a first-time offender. However, Doherty J. observed in R. v. Thurairajah, 2008 ONCA 91, at para. 41 that for serious crimes of personal violence, particularly sexual assaults, while rehabilitation and other sentencing objectives remain important, denunciation and general deterrence 'gain prominence' even in cases involving first offenders.

[72] The Supreme Court in Friesen at para. 114 stated that mid-single digit penitentiary sentences for sexual offences involving children are normal and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional cases. Substantial sentences can be imposed where there was only a single incident of sexual violence and/or a single victim. Moldaver J. had earlier stated in R. v. D.(D.), (2002) 44915 that "as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms."

Aggravating and Mitigating Factors

[73] I must consider both the mitigating and aggravating factors when deciding a fit and proportionate sentence.

[74] In this case, I find the aggravating factors to include:

• The accused's role as a step-father to J.S. and G.S.. He lived with them in their home and was a father figure to them. These offences were a significant breach of trust.
• The fact that there is more than one victim.
• The age of J.S. when the abuse occurred. She was only 9-13 years old and very vulnerable.
• The presence of multiple incidents in relation to J.S.; The sexual violence against J.S. occurred frequently and over a period of years. This increases the severity of the offence and the accused's moral blameworthiness. His actions were not isolated. Rather, his actions reflected a pattern of conduct and repeated victimization of children.
• The incidents took place in the victims' home where they should have felt safe. Not only were they not safe from sexual violence but the accused attempted to spy on them in the privacy of the bathroom which was a further step taken with the intent to interfere with their personal dignity.
• The profound impact on both victims and their mother. This abuse has had a significant and long term impact on both victims, but most significantly on J.S.
• The possession offences involve a breach of trust as the drugs were stolen from the hospitals that the accused worked at as a nurse.

[75] Mitigating factors in this case include:

• The accused does not have a criminal record.
• He has strong community and family support.
• He has maintained a strong employment history.

[76] The accused cannot be penalized for insisting on his right to a trial, but neither does he get the benefit of a reduced sentence because of a guilty plea and an expression of remorse. This is a neutral factor.

[77] The accused told the author of the PSR that he was the victim of sexual violence by his sisters when he was a child. While I don't find this to be a mitigating factor in this case, it is a factor that makes up part of the factual matrix and I have consider it as part of the accused's individual history and characteristics.

[78] An appropriate sentence for the accused must reflect the primary considerations of denunciation and deterrence. The appropriate sentence in this case should deter the accused specifically, and generally deter other adults who contemplate sexual abuse of a child. As well, the appropriate sentence must reflect society's revulsion and unequivocal disapproval of the accused's conduct, which involved multiple instances of sexual violence against one young girl and single incident of sexual violence against another girl, both of whom were in his care and who viewed him as a parent. The sentence must reflect the Court's increased understanding of the serious emotional harm and psychological harm that sexual offences against children cause which may be "more pervasive and permanent in its effect than any physical harm" R. v. McCraw, [1991] 3 S.C.R. 72 at p. 81; Friesen, at para. 56.

[79] The general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences: Friesen, at para. 155. The offences against J.S. and G.S. as well as the offences of attempt voyeurism and possession require consecutive sentences because they are not linked to each other at all. Rather, the offences reflect the accused's decision to violate the sexual integrity of two child victims, to invade the privacy of everyone in his household, and to breach the trust of his employer.

[80] The Supreme Court of Canada recently reviewed the methodological considerations about how to approach sentencing for multiple offences and when sentences should run concurrently or consecutively in R. v. Bertrand Marchand, 2023 SCC 26, 431 C.C.C. (3d) 1.

[81] The Court approved the following approach regarding sentencing: first, determine the sentence for each offence individually; second, determine whether the sentences ought to be consecutive or concurrent; and third, consider the principle of totality in s. 718.2(a): see Bertrand Marchand, at paras. 91-93.

[82] The principle of totality requires that where consecutive sentences are imposed, the court must ensure that the total sentence is not unduly long or harsh and does not exceed the offender's overall culpability: Criminal Code, s. 718.2(c); Friesen, at para. 157; R. v. Ahmed, 2017 ONCA 76, at para. 79.

[83] I have struggled with whether the administer a stupefying drug to assist/enable a sexual interference should be concurrent or consecutive. To some degree, I find that this decision may be fact specific and depend on the nature of the drug, the degree of risk that it posed to the victim and any additional impact the administration had on the victim. In this case, I find that on all the evidence, the drug administered was either cough syrup or Gravol, and while both are not without possible serious side-effects, this offence can be properly considered as a step taken to facilitate the offence of sexual touching. It may be viewed as an aggravating factor related to the act of sexual interference and therefore in the interest of totality a concurrent sentence may be imposed. There is no evidence that J.S. was aware of the substance being administered or if the drug had anything other than short-term effect. Having said that, administering a stupefying drug to an already extremely vulnerable victim, a child, is a serious aggravating factor.

[84] When I consider all of the sentencing principles, and the circumstances of this case including aggravating and mitigating factors, I have concluded that the appropriate sentence should be broken down as follows:

• Count 1: Sexual interference J.S. – 5 years;
• Count 2: Invitation to sexual touching to J.S. – 12 months consecutive;
• Count 3: Administering a stupefying drug to assist/enable sexual interference – 15 months concurrent to Count #1
• Count 4: Sexual assault on G.S. - 12 months consecutive;
• Count 5: Attempt voyeurism – 6 months consecutive;
• Counts 6 and 7 Possession under of medication – 30 days each consecutive to each other and consecutive to counts 1, 2, 4, and 5. Therefore 60 days consecutive.

[85] Therefore, the total sentence before considering totality would be 7 years and 8 months. I find that this sentence is somewhat too long to properly take into account the principle of restraint given that the accused is a first-offender and the principle of totality, as such I have made the following adjustments:

• Count 1: Sexual interference J.S. – 5 years;
• Count 2: Invitation to sexual touching to J.S. – 10 months consecutive;
• Count 3: Administering a stupefying drug to assist/enable sexual interference - 15 months concurrent to Count #1 - Sexual interference
• Count 4: Sexual assault on G.S. - 11 months consecutive;
• Count 5: Attempt voyeurism - 4 months consecutive;
• Counts 6 and 7 Possession under of medication – 30 days each concurrent to the other and consecutive to sexual offences. For a total of 30 days consecutive.

With this adjustment for totality, the total sentence would be 7 years 2 months which I find still emphasizes the importance of denunciation and deterrence and recognizes the harmfulness of Mr. S.W.'s actions and the gravity of the offences of which he has been convicted.

Ancillary Orders

[86] In addition to the custodial sentence, the following ancillary orders are made:

(1) Section 743.21 No-Contact Order

The accused is prohibited pursuant to s. 743.21 of the Criminal Code from contacting J.S., G.S. or O.S., directly or indirectly, while he is serving his sentence;

(2) Section 161 Prohibition Order

Section 161 of the Criminal Code requires the court to consider prohibiting the offender from attending various locations where persons under 16 years of age can reasonably be expected to be present, obtaining or continuing employment that involves being in a position of trust or authority towards a person under 16, or having any contact or communicating with persons under 16, or using the internet. In R. v. Schulz, 2018 ONCA 598, leave to appeal denied, the Court of Appeal held that: The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. J. (K.R.), 2016 SCC 31, [2016] 1 S.C.R. 906 (S.C.C.), at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and the content of the order must respond carefully to an offender's specific circumstances: J. (K.R.), at paras. 48-49. Given the circumstances of this case, the accused is prohibited pursuant to s. 161(a)(a.1)(b)(c) of the Criminal Code for a period of 20 years following his release from prison, including release on parole, mandatory supervision or statutory release, as follows:

(a) From attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, except when he is there with his own children and in the direct company of an adult who is aware of the circumstance of his conditions;

(a.1) From being within one kilometre of any place where J.S. or G.S. ordinarily reside, attend school, attend a place of worship, or is known by the accused to frequent, or where the accused knows any of them to be present;

(b) From seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years of age;

(c) From having any contact, including communicating by any means, with a person who is under the age of 16 years, except when he is in the direct company of an adult who is aware of the circumstance of his conditions or purely incidental contact at a retail establishment.

I have declined to impose an internet condition under ss. 161(1)(d).

(3) Sex Offender Information Registration Act (SOIRA)

The offences S.151, 152, 271, and 246(1)(b) of which the accused has been convicted are designated offences under s. 490.011(1) of the Code for the purposes of the provisions dealing with sex offender information. Pursuant to ss. 490.012(1) and 490.013(2.1) of the Code, I order that the accused shall be subject to the provisions of the Sex Offender Information Registration Act for life.

(4) DNA Order

The offences of s. 151, 152, 246(1)(b) and s. 271 which the accused has been convicted are primary designated offences under s. 487.04 of the Code for the purposes of DNA collection and storage, and a DNA order is mandatory. Accordingly, pursuant to s. 487.051(1) of the Code, I order that the accused provide samples of his bodily substances for the purposes of forensic DNA analysis.

(5) Firearms Prohibition

The accused is prohibited from possessing firearms and other weapons and devices specified in the order I am making pursuant to s. 109(1)(a) of the Criminal Code for 10 years after his release from imprisonment and pursuant to s. 109(1)(b) from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device or prohibited ammunition for life.

[87] Mr. S.W., should you breach any of these orders, you shall be subject to further prosecution and, if convicted, face possible jail sentence.

[88] The Crown has not sought the imposition of a victim fine surcharge and given the length of this sentence, I decline to make such an order.

VIII. Conclusion

[89] Mr. S.W., please stand, I sentence you to a total sentence of 7 years 2 months broken down as set out in these reasons and order you to comply with the ancillary orders detailed already.

Justice P.J. Moore

Released: October 27, 2025