CITATION: R. v. Mazinakouskang, 2026 ONSC 1099

COURT FILE NO.: CR-24-0235-00

DATE: 2026-02-23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Carolynne Krueger, for the Crown

• and -

JACOB AMBROSE MAZINAKOUSKANG

Felix Camire, for the Accused

HEARD: September 19, 2025, with sentence imposed at Thunder Bay, Ontario on October 3, 2025.

Madam Justice T. J. Nieckarz

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING

UNDER S. 486(4) OF THE CRIMINAL CODE OF CANADA

Reasons For Sentence

OVERVIEW:

1On June 26, 2025, I found Mr. Mazinakouskang guilty of sexual interference contrary to s. 151 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Criminal Code”).

2The charge pertained to H.H. (who prefers to be referred to as A.H.), who was approximately 6 ½ years old at the time of the offence. The facts and the reasons for the conviction are set out in greater detail in my trial decision reported as R. v. Mazinakouskang, 2025 ONSC 3922 (the “Decision”).

3The sentence in this matter was imposed on October 3, 2025, with written reasons to follow. Given that Mr. Mazinakouskang was in a time-served position based on the sentence I was imposing, it was clear that the sentence should be imposed without delay. These are my reasons for the sentence imposed.

4The Crown argued that a just and fit sentence in the circumstances of this case required a custodial sentence of 3 years, which is in addition to the 260 real-time days of pre-sentence custody served. In addition, the Crown sought a s. 490.012 SOIRA for life (but conceded the Defence request for 20 years), a s. 487.051 DNA order, a lifetime weapons prohibition (s. 109 of the Criminal Code), a s. 161 order for 10 years, and a non-communication order pursuant to s. 743 with respect to the victim.

5The Defence argued that the sentence sought by the Crown is excessive. The Defence submitted that an appropriate sentence would have Mr. Mazinakouskang deemed to be in a time served position, subject to an additional two to three years’ probation. This, the Defence argues, is a more appropriate sentence having regard to the circumstances of the offence and the offender.

6In determining the sentence to impose I was guided by the principles set out in the Criminal Code, and those set out in the case law that courts have developed. These reasons will set out those principles and other factors I considered in arriving at a sentence.

7Upon consideration of the applicable principles, I found that a sentence that is proportionate to the gravity of the offence and degree of responsibility of the offender is 12 months and two years’ probation. After applying the appropriate credit for pre-sentence custody, there was no time remaining to be served in a custodial facility.

FACTS:

Circumstances of the Offence:

8In determining an appropriate sentence, I must consider the circumstances of the offence that Mr. Mazinakouskang was convicted of.

9In the Decision, I made the following findings with respect to the offence:

a. Based on the dates provided by A.H.’s mother, and if those dates were correct, J.M. committed sexual interference against A.H. on one occasion when she was approximately six years’ old and seven months. A.H. testified she may have been seven or eight years old. Either way, she was a young child.

b. The sexual interference occurred when A.H. was at a friend’s house. Mr. Mazinakouskang was at the home visiting his cousin. He was drinking and intoxicated.

c. The sexual interference consisted of one occasion during which Mr. Mazinakouskang had the child on his lap, touched her thighs, kissed her on the back of her neck and on her cheek, and touched her on her lower back, her abdomen, and her stomach up to her chest, for a sexual purpose. There was no allegation that the touching occurred under clothing.

d. The Accused did not remember the offence, likely because of the degree of his intoxication on that date.

Circumstances of the Offender:

10Sentencing is an individualized process. The circumstances of the offender must be taken into consideration in determining a fit sentence.

11At the time of sentencing, Mr. Mazinakouskang was a 43-year-old member of the Ginoogaming First Nation. At the time of the offence, he would have been approximately 37 years’ old.

12The Defence did not seek an Indigenous Sentencing Report (commonly referred to as a “Gladue” report). This was primarily to avoid delay in sentencing Mr. Mazinakouskang. Instead, the Defence sought and obtained a Pre-Sentence Report (“PSR”).

13Based on the facts and circumstances outlined in the PSR, Mr. Mazinakouskang has clearly suffered intergenerational trauma caused by residential schools. Both of his parents are survivors of residential schools. His parents were verbally and physically abusive to each other, and both abused alcohol. They separated when their children were young and continued to experience their own struggles. Mr. Mazinakouskang’s father passed away in 1993. His mother suffered from issues related to chronic alcohol abuse, and dysfunctional relationships. Three of his mother’s other children became Crown Wards.

14Mr. Mazinakouskang was in and out of the child welfare system himself due to concerns of neglect but often ran away from foster placements to return home. Home was not a stable place, and the family moved to various places. Foster placements were described by the PSR writer as being “throughout” Northern Ontario. Mr. Mazinakouskang started to get into trouble and become involved with the criminal justice system at an early age. He spent time in a group home, a child welfare boarding home, and day school. By the age of 15 years, he was allowed to return home to Ginoogaming to live with his mother and a brother, but he was in and out of custody repeatedly.

15Mr. Mazinakouskang has lived a life characterized by alcohol abuse and crime. In 2007, Mr. Mazinakouskang was the victim of a vicious murder attempt. He was stabbed at least nine times, hospitalized for an extended period, and suffered multiple injuries.

16This is only some of the trauma he has experienced. He began drinking alcohol at approximately age twelve or thirteen after his father passed away. His ongoing issues with substance abuse were exacerbated when he met his partner approximately six years ago. The couple consumed alcohol daily, and Mr. Mazinakouskang has acknowledged having committed offences against his partner while intoxicated. He further acknowledges that much of his extensive criminal record is related to offences committed while under the influence of alcohol. He says that the only times he has been sober have been when he was in custody. He is well-known to police. He regularly associated with other individuals who are substance users and who have extensive criminal records.

17Mr. Mazinakouskang has a very limited education and has been unable to maintain any type of meaningful employment. He has been supported by Ontario Works for much of his adult life. Alcohol has impacted all aspects of his life including his familial relationships, his education, employment, and social opportunities. He reports mood swings, verbal and physical aggression, and blackouts while under the influence. Alcohol may bear some responsibility for what the PSR writer described as “difficulty recollecting information” and “recollecting chronological information, such as dates or how old he was during certain life events”. Difficulty recollecting information applies to the offence for which he has been convicted. Mr. Mazinakouskang indicated both at trial and to the PSR writer that he has no recollection of the events and finds it hard to believe he would do such a thing.

18Mr. Mazinakouskang’s extensive criminal record dates back to his youth in 1995. His youth record consists of multiple assault and failure to comply charges. His adult record is the same. He has one sexual assault conviction as a youth, for which he received a sentence of two weeks’ open custody. I have no evidence about the circumstances surrounding that offence.

Priscilla Shaganash, an elder of the Ginoogaming First Nation and child welfare worker wrote a letter speaking about what she has witnessed of Mr. Mazinakouskang’s character while surviving within an “extraordinarily dysfunctional household and a toxic community”. She spoke about how Mr. Mazinakouskang has been unfairly treated by the community as “the lowest of the lower class”, due to his parents’ and the community’s dysfunction. She spoke about how the community used to ignore the intergenerational trauma that has torn it apart. She spoke about how Mr. Mazinakouskang has never been provided the proper support, counselling, and intervention that he needed to help him as a child and an adult with trauma. Ms. Shaganash believes that had Mr. Mazinakouskang been provided with the proper support, he had the potential to be a “fine man” and community leader. She noted that when he is sober, he is kind, caring, respectful, and considerate. I too witnessed that side of Mr. Mazinakouskang at his trial and sentencing hearing. Ms. Shaganash has confidence that if his healing path is encouraged, he will have a bright future ahead of him.

PSR Recommendations:

19The PSR writer expressed concern about Mr. Mazinakouskang’s criminal record and prior response to community supervision orders. As a youth, he had been subject to two terms of probation. As an adult he was sentenced to probation at least nine different times. His reporting habits were said to be subpar, with frequent missed appointments. He re-offended while on probation and has numerous breaches of probation charges and convictions. There was a concern expressed by the PSR writer that Mr. Mazinakouskang had previously taken no efforts to address his substance use issues, and that his motivation to address issues leading to recidivism was lacking. His longstanding substance use issues, ongoing associations with negative peer groups, limited education and employment experiences, lack of positive personal supports, combined with problem-solving deficits and anger management issues lead to the conclusion by the PSR writer that he was at a high risk to reoffend. The conclusion was that he is not an appropriate candidate for community supervision. If incarcerated, it was recommended that he attend a correctional facility that offers specialized and intensive treatment for offenders with substance abuse issues, impulse control issues, and anger management. Alternatively, it was recommended he attend a facility with programming designed for sexual offenders.

Victim Impact:

20A.H. was only 12 years old at the time of trial. Neither A.H., nor her mother provided a written or verbal victim impact statement.

21Despite this, there was evidence at the trial as to the impact Mr. Mazinakouskang’s actions have had on the child.

22The child’s mother, T.C. testified that she began noticing changes in her daughter following September 2019. A.H. became increasingly withdrawn to the point that she would not go out and it became increasingly difficult to get her to attend school or go out at all. Prior to September 2019, her mother says that A.H. was a very social child.

23T.C. also testified as to A.H.’s reaction on two occasions when she saw Mr. Mazinakouskang in the community. On the first occasion when they were riding in a medical van, A.H. refused to acknowledge Mr. Mazinakouskang. On the second occasion at a public skating rink, A.H. ducked down in the backseat of the car as soon as she saw Mr. Mazinakouskang and she refused to get out of the car. A.H. would refer to Mr. Mazinakouskang as the “creep”.

24T.C. further testified that A.H. suffers cognitive defects, and she has suffered from severe mental health issues. She has attempted suicide more than once. She demonstrates a fear and discomfort around men, including family members. T.C. acknowledged that A.H. has also suffered other trauma including two incidents of harassment from Mr. Mazinakouskang that scared the child, the death of her father, and the death of her grandfather. These losses and events have likely exacerbated her social isolation and other conditions. She has also been the victim of bullying at school, and she identifies as transgender. Despite all these other traumas, T.C. testified that the changes in her daughter began after September 2019.

SENTENCING PRINCIPLES:

25Section 718 of the Criminal Code sets out the following principles and objectives of sentencing:

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.

26When imposing a sentence for an offence that involves the abuse of a person under the age of 18 years, s. 718.01 of the Criminal Code directs the court to give primary consideration to the objectives of denunciation and deterrence of such conduct.

27Similarly, s. 718.04 of the Criminal Code provides that when imposing sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances, including because the person if Aboriginal and female, the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis for the offence.

28Section 718.1 requires a sentence to be proportionate to the gravity of the offence and the degree of responsibility of the offender. In other words, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the harsher the sentence will be: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

29Specifically with respect to sexual offences against children, the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, [2019] S.C.J. No. 100, directed trial courts to impose sentences that reflect the wrongfulness of sexual violence against children and the harm it causes. The fact that the victim is a child increases the offender’s degree of responsibility because children are particularly vulnerable (Friesen, at para. 90). Condemnation of those who commit such offences must be communicated in the clearest of terms (Friesen, at para. 105).

30In R. v. Marchand, 2023 SCC 26, at para. 123, the Supreme Court of Canada provided further guidance as to the application of sentencing principles involving crimes committed against children:

123Section 718.01 directs judges to give primary consideration to denunciation and deterrence when sentencing offences involving abuse against children. At the same time, judges do retain judicial discretion to weigh other relevant sentencing objectives in the circumstances. Courts must individualize the sentence by accounting for the gravity of the offence, the offender’s individual circumstances and the offender’s moral culpability…Even where Parliament has directed that the objectives of denunciation and deterrence are paramount at sentencing, judges must apply all the principles mandated by ss. 718.1 and 718.2 to craft a sentence that “furthers the overall objectives of sentencing” (Ipeelee, at para. 51). Deference to Parliament’s objectives is not unlimited, to ensure respect for human dignity, the door to rehabilitation must remain open…

31Further sentencing principles that must guide the court are set out in s. 718.2 of the Criminal Code.

32Section 718.2(a) requires that a sentence be increased to account for any aggravating factors or reduced to account for any mitigating circumstances. Aggravating circumstances generally tend to make the offence more troubling while mitigating circumstances moderate the severity of the offence.

33Section 718.2(d) requires restraint in sentencing, acknowledging that sentences are not only intended to be punitive, but also remedial. Imprisonment should be the penal sanction of last resort, to be used only where no other sanction or combination of sanctions are appropriate to the offence and the offender.

34Section 718.2(e) directs sentencing judges to undertake the sentencing of Aboriginal offenders differently. This section is intended to address the unique systemic and background factors that may have played a part in bringing the offender before the court.

35Furthermore, in determining the moral blameworthiness of an Aboriginal offender, the court must apply the principles from R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688, and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433. Systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness and different sanctions may be more effective in achieving sentencing objectives (Friesen, at para. 92).

36While these other sentencing objectives and principles cannot be forgotten and may be afforded significant weight if I feel that to be appropriate, they do take a backseat to the dominant principles of denunciation and deterrence: Friesen, at para. 104, and R. v. Lemus, 2024 ONSC 46, [2024] O.J. No. 63, at para. 33.

ANALYSIS:

37I have considered and applied the foregoing principles in making the following findings.

38Mr. Mazinakouskang violated the physical and sexual integrity of a very young, vulnerable child. Her vulnerability was heightened as an Indigenous female (Friesen, at para. 70) and by her very young age, which are aggravating factors. Parliament (through the Criminal Code) and the Supreme Court of Canada have directed that such crimes be treated very seriously. Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children: Friesen, at para. 42.

39Mr. Mazinakouskang’s actions attract a high level of moral blameworthiness. This is regardless of the fact that Mr. Mazinakouskang was intoxicated. He showed a disregard for the child’s human dignity. While the offence involved limited touching, the use of a vulnerable child for sexual gratification “cannot be viewed as anything but a crime demonstrating the worst of intentions”: Friesen, at paras. 89 and 90.

40I believed Mr. Mazinakouskang when he testified that he is not sexually attracted to children. While I accept this event to have been out of character for Mr. Mazinakouskang, I have found that the Crown has proved beyond a reasonable doubt that the offence did occur. I have found that in circumstances in which he was intoxicated and does not recall, he touched a child for a sexual purpose. His actions have caused enduring harm to this child. Even though Mr. Mazinakouskang does not remember what he did, this child does, and she lives with it daily. While the child has suffered other traumas, and therefore not all her current (or future) challenges can be attributed to Mr. Mazinakouskang, it is clear from her mother’s evidence and her presentation at trial that the sexual offence committed has had a profound impact on her. In Friesen, it was recognized that such an impact is often enduring and extends beyond the child to her family and community at large. The profound harm caused is an aggravating factor.

41Mr. Mazinakouskang’s criminal record is lengthy and concerning, with few periods of breaks in his pattern of criminality. Many of his convictions are for assault. He has one entry on his youth record for sexual assault, the details of which are unknown to me.

42Having said this, there are significant mitigating factors.

43The principles set out in R. v. Gladue and R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, must be followed when determining a fit sentence for Indigenous offenders even when the offence involves acts of sexual violence against children.

44In this case, in arriving at a just and fit sentence I accept the Defence submission that there are factors applicable to this Indigenous offender that mitigate his moral blameworthiness to a certain extent. Those factors include very significant intergenerational trauma, exposure to domestic violence at an early age, neglect, and exposure to substance abuse from an early age. Substance abuse not only played a large role in the offence committed against A.H. but has played a significant role in Mr. Mazinakouskang’s lengthy criminal record. Ms. Shaganash’s letter outlining Mr. Mazinakouskang’s circumstances was compelling. I find that systemic and background factors have played a large role in Mr. Mazinakouskang’s criminality. This is an important mitigating factor. Despite the significant and compelling Indigenous sentencing factors present, I acknowledge that I cannot give them greater weight than the primary objectives of denunciation and deterrence.

45Mr. Mazinakouskang has expressed some remorse. It is difficult for him to accept full responsibility for his actions because he does not remember them and has a hard time accepting that he is capable of such behaviour. Despite this, with the assistance of counsel he wrote a letter of apology to A.H. and her mother. He also thanked A.H. for coming forward and being the impetus he needed to start his own path to healing. Even the possibility that he could commit such an act while intoxicated has scared him. He states that if it was in fact him who grabbed A.H., touched, and kissed her, he is truly sorry for the harm caused. He maintains that if he did do this, it was not for sexual gratification, but because he is a “goofy” person around children. I accept that Mr. Mazinakouskang has expressed as much remorse as he can given his lack of memory of the events. Given my finding that this event was out of character for him, it is understandable that Mr. Mazinakouskang has a difficult time accepting that he could have done this to a child. However, characterizing such conduct as merely acting “goofy” demonstrates a lack of insight into the seriousness of his behaviour and the harm done. Pulling a child that he barely knows onto his lap, rubbing parts of her body, and kissing the back of her neck and face cannot reasonably, or objectively be considered as “goofy” behaviour. It was a violation of this child, and it has hurt her. As an element of the offence, I have already found that the act was committed for a sexual purpose.

Rehabilitation:

46While denunciation and deterrence remain the primary sentencing objectives and must be given priority, rehabilitation must still be considered: R. v. J.(T.), 2021 ONCA 392, at para. 37, and R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (4th) 84, at para. 38.

47I acknowledge the PSR writer’s concern that Mr. Mazinakouskang presents as a high risk for recidivism. Having said this, I accept that Mr. Mazinakouskang is at a low risk for committing further sexual offences against children (and other offence), if he remains sober. I accept that this offence was largely driven by alcohol use. I am more hopeful than the PSR writer that this represents a turning point for Mr. Mazinakouskang. The difference this time are the steps Mr. Mazinakouskang has taken towards sobriety and the supports he has put in place. Supports that Ms. Shaganash has explained were not previously available to him.

48Mr. Mazinakouskang has taken rehabilitative steps since being charged with this offence, and since being incarcerated. He has engaged in mental health and wellness services with the Matawa Health Co-Operative, which can be continued upon release. He is sober and is trying to seek out resources and supports to assist him in maintaining his sobriety after being released from jail. Most notably, is the support of Andrea Collins and Ulf Runnesson, who have agreed to have him living on their property to support him in his recovery journey.

49Ms. Collins became familiar with Mr. Mazinakouskang in 2023 when she taught an Essential Skills course at the Ginoogaming First Nation. She is a teacher with Confederation College, and Mr. Runnesson is a professor at Lakehead University. Ms. Collins has extensive experience in working with First Nations. She teaches about trauma and trauma triggers. She is aware of the significant trauma Mr. Mazinakouskang has experienced in his life. Her education and employment make her well-equipped to support Mr. Mazinakouskang. She feels strongly that if Mr. Mazinakouskang is released back into the community without proper supports in place, his sobriety will be at considerable risk. She notes that his only supports have been his mother and his girlfriend, both of whom have their own addictions struggles. She is prepared to give him somewhere safe and supportive to stay until he can transition into a residential treatment program that is appropriate for him. She will support him in attending probation meetings and counselling appointments.

50Mr. Mazinakouskang recognizes that if he returns to Ginoogaming upon release, his sobriety and the progress he has made while incarcerated, is at considerable risk. He does not want this to happen. He has expressed a commitment to his continued rehabilitation despite the significant obstacles he faces. His ongoing efforts should be encouraged, and he should be supported as much as possible in those efforts. Having said this, they do not change the harm done to this child.

Parity:

51In determining what is a proportionate sentence, I have looked at the decisions that the Crown and Defence have referred me to, to guide me.

52All the cases cited have provided me with some guidance as to a potential range of sentences to consider, even though there are distinguishing facts in each case that calls for a different sentence. What these cases do tell me is that the sentence suggested by the Crown is not necessary to achieve the objectives of sentencing applicable to Mr. Mazinakouskang.

Crown Cases:

53The Crown relies on Friesen in asking the Court to impose a significant penitentiary sentence. In Friesen, the offender was sentenced to six years’ incarceration for sexual interference and a concurrent six-year sentence for attempted extortion. The Manitoba Court of Appeal reduced the sentence to four and one-half years. While finding the sentence on the lenient end of the spectrum of fit sentences, the Supreme Court upheld the sentencing judge’s decision.

54Friesen is factually different from this case. A four-year-old child was subjected to sexual violence by her mother’s boyfriend, with the participation of the child’s mother. This was one incident, but it involved the child being held down so that Friesen could try to force his penis into her mouth. The child’s distress awoke another occupant of the home, who removed the child. The offender pleaded guilty. He was determined to be a high risk to re-offend. He had been the victim of sexual violence himself and suffered from mental health concerns. While the case signals that sexual violence against a child demands a significant penalty, the factual differences in Friesen distinguish the result.

55The Crown also cited R. v. I.C., 2024 ONSC 1406. Having reviewed the case, it supports the Defence position that the sentence sought by the Crown is excessive. I.C. was a 45-year-old first time offender, who was sentenced to t10 months in custody for one count of sexual interference against his young stepdaughter. The offence for which he was sentenced involved the offender lying on the bed next to the child, pulling her onto his pelvis, then moving her up and down causing his penis to become erect. He also held her arms and did not stop when asked. Aggravating factors included the child’s age, position of trust, the incident occurred in the family home, the child was restrained, her sexual integrity was violated, and the incident had a significant impact on the child and her mother. The mitigating factors included that I.C. had been a productive member of society, steadily employed, he provided financial support to his children, and his risk of reoffending was low.

56The Crown’s sentencing brief also includes R. v. Lloyd, 2021 O.J. No. 5163. Mr. Lloyd was found guilty of sexual assault of a child. The offence consisted of him touching a 10-year-old child’s vagina over her clothes while lying next to her on a bed. At the time of sentencing, he was 53 years old. He was sexually abused as a child, for which he sought counselling. He was married with adult children. He had productive employment and was active in the community. He was found to be in a position of trust. Like A.H., the victim experienced a startling change in behaviour following the assault. The Crown sought an 18-month sentence. The Defence sought a sentence of three to six months.

57After reviewing several cases, Wheeler J., found that a just and fit sentence was 15 months’ imprisonment, followed by two years’ probation. One of those cases was R. v. T.J., 2021 ONCA 392, a case dealing with the impact of Friesen on the range of sentence for sexual touching of a child. In that case, T.J. was sentenced by the trial judge to nine months for touching that involved directing the child to the bathroom when she was visiting his home, placing her hands on his penis and using them to rub him until he became erect. He told the victim to put her mouth on his penis, but she pulled away and left. The offender had no criminal record and was a productive member of society. He had a history of substance use, for which he had attended counselling. He was found to be in a position of trust with respect to the child. The Court of Appeal for Ontario determined that the sentence was demonstrably unfit and failed to focus on the inherent wrongfulness of the conduct and extent of harm caused. While the court concluded that the trial judge was entitled to give “significant weight” to the mitigating circumstances and principle of restraint, he was not entitled to give them priority, or even equal weight, to denunciation and deterrence. The court increased the sentence to 24 months: R. v. T.J., at para. 37. While the result in T.J. is distinguishable from this case given the lack of a position of trust between Mr. Mazinakouskang and A.H., the significant Gladue factors present here, but also the presence here of a criminal record, the clarification of the application of Friesen is instructive.

58Finally, the Crown relies on R. v. P.R.J., 2023 BCCA 169. The British Columbia Court of Appeal found that a three-year prison term was an appropriate sentence for 44-year-old first time offender, P.R.J., for one count of sexual interference against her then seven or eight-year-old daughter. The sexual act consisted of digitally penetrating and kissing the child’s vagina. The Crown sought four years’ imprisonment. Clearly P.R.J. was in a position of trust, and the offence occurred in the child’s home. Although the child was doing well by the time of trial, the potential for future adverse effects was recognized. P.R.J. suffered from her own mental health concerns. She was “extremely intoxicated” at the time of the offence, and the offence was found to be an isolated incident. Having said this, like T.J., the British Columbia Court of Appeal felt that the 23-month conditional sentence with two years’ probation that was imposed by the trial judge, did not properly reflect the inherent wrongfulness of the conduct, its highly morally blameworthy nature, or the harm caused.

Defence Cases:

59The Defence refers to the following cases in support of a sentence that places Mr. Mazinakouskang in a time-served position:

a) R. v. R.L.S., 2020 ONCA 338

The offender pleaded guilty to three incidents of sexual abuse of his daughter when she was between the ages of four and six years. The acts included having the child on his lap, when his clothes were off, and his penis exposed, and having the child touch his erect penis with his hand while he watched pornography depicting incest. The offender was remorseful and had attempted suicide. He was a 51-year-old first offender who was also the victim of sexual abuse during his adolescence. He otherwise led a pro-social life. The aggravating and mitigating factors are quite different in R.L.S. from those applicable to Mr. Mazinakouskang. In R.L.S. the Crown had sought a 12-month sentence, while the Defence sought six months less a day sentence. While a nine-month sentence was upheld on appeal, it was also described by the Court of Appeal as “lenient” considering the principles explained in Friesen.

b) R. v. R.A., 2022 ONSC 1161

The offender was convicted of two counts of sexual interference against his 11-year-old stepdaughter. The first count started with hugging and kissing with his tongue and culminated with him putting his hands down her pyjamas and touching her vagina on the “inside”. The second count involved kissing on the lips on two separate occasions.

The 41-year-old offender had no prior criminal record, no history of substance abuse, and a positive history of employment. He was a business owner and supported his children. R.A. was sentenced to two years’ imprisonment for the first count, and six months on the second count. The Defence argues that the second count is similar to the offence that Mr. Mazinakouskang was convicted of, except that in R.A.’s case he was in a position of trust, which is more aggravating.

While I acknowledge that both R.A. and Mr. Mazinakouskang have significant mitigating factors, they are different in nature and difficult to compare. The aggravating factors are also different.

c) R. v. R.A.M., 2021 ONCJ 319

The offender was found guilty of sexual interference and sexual assault involving a 15-year-old. The offender touched the child several times for a sexual purpose by running his hands up her left thigh, touching her buttocks over her shorts, rubbing her back, placing his hands inside her shorts up to her buttocks, and attempting to reach further into her shorts. He also lay over her and attempted to put hand hands down her pants and kissed her shoulder.

The offender was 39 years old with no criminal record. He was the sole financial supporter of his spouse and children. He had been on bail conditions for a lengthy period of time. He had lost employment because of the charges but had found other employment. He was noted to be hardworking and devoted to family. He was sentenced to 90 days, intermittent, with a two-year probation order and ancillary measures. Of significance to the sentencing judge, and distinguishing the case from Mr. Mazinakouskang, was the need to maintain the offender’s ability to support his family. Otherwise, this decision is difficult for me to reconcile with the Friesen principles.

d) R. v. G.H., 2020 NUCJ 33

A 13-year-old friend of the offender’s daughter was touched on her buttocks and genital area (over her clothes) while she attempted to sleep. The offender was a 42-year-old Inuk man, who had no criminal record, was respected in his community, and was married with four children. He experienced childhood trauma, including sexual abuse. He experienced flashbacks related to his childhood sexual abuse, which contributed to his drinking. His Gladue factors were significant in tempering the jail time ordered. He entered a guilty plea and provided written apologies. Alcohol played a significant role in the conduct. He stopped drinking. He was found to be in a position of trust towards the victim, and it was aggravating that she was sleeping. He was sentenced to 4 months, with 1 year of probation and ancillary orders.

e) R. v. Labrecque, 2021 QCCQ 1613

The offender was 53 years old with no prior criminal record. Otherwise, very little about the offender is revealed in the decision. The victim was 17 at the time of the offence but had the cognitive functioning of a pre-adolescent. The circumstances of the offence involved approaching the victim from behind, placing a hand over her mouth, inserting his hands under her clothing, and grabbing and pinching her breasts. The offender was intoxicated at the time. He characterized the act as being “funny” and attributed to intoxication. He apologized for his actions. The victim suffered in ways similar to A.H., exhibiting her trauma in the form of withdrawal, fear of men, and other concerns. Labrecque was sentenced to 6 months’ imprisonment, followed by two years’ probation.

f) R. v. D.A.D., 2022 YKSC 62

The offender pleaded guilty to one count of sexual interference. The victim was 15 at the time of the offence, while the offender was a 28-year-old cousin. While watching a movie, the victim fell asleep. She awoke to the offender touching her vaginal area over her clothes. He stopped when she rolled over. The aggravating factors included breach of trust and significant ongoing harm to the victim. Mitigating factors included Gladue factors that reduced culpability, engagement in counselling, employment, and personal circumstances. On appeal, the offender was sentenced to a 90-day custodial term.

g) R. v. Marchand, 2023 SCC 26

The offender met the victim when he was 22 and she was 13. He pleaded guilty to one count of child luring and one count of sexual interference. Mr. Marchand was in contact with the child through social media, and they subsequently met in person. They had sexual intercourse on four separate occasions. While it was not forced, it was still illegal due to the inability of the child to consent given her age. Marchand is a case about the constitutionality of mandatory minimums and sentencing principles for child luring in the Criminal Code, and this was the focus of the case. The fitness of the decision imposed by the sentencing judge for sexual interference was not an issue before the Supreme Court. That sentence was a 10-month term of imprisonment. In addition, the Supreme Court imposed an additional 12-month consecutive sentence, for a total of 22-months imprisonment.

h) R. v. Gunaratnam, 2021 ONSC 8270

The offender was convicted of two counts of touching his niece for a sexual purpose when she was first seven years old, and later when she was 12 or 13. After his conviction he pleaded guilty to sexual interference with respect to another victim. The offences were historical. At the time of sentencing the offender was 60 years old with no prior criminal record. A joint submission on sentence of a two-year conditional sentence followed by probation for three years was accepted by the trial judge.

i) R. v. R.N., 2022 ONCJ 145

A 57-year-old offender with no prior criminal record pleaded guilty to sexual interference against his 13-year-old step-granddaughter. The offence involved five incidents of sexual touching over a three-month period when the offender was living in the same home as the victim’s family. The offence involved touching her breasts and digitally penetrating her. Noting the significant mitigating value of the guilty plea, the pandemic, and low risk of reoffending, the court imposed a custodial sentence of two years less one day. A probationary term of three years, in addition to other ancillary orders was also imposed.

j) R. v. J.H., 2022 ONCJ 271

The 30-year-old offender pleaded guilty to sexually abusing his partner’s daughter when she was ten years old. He was sentenced to four years’ imprisonment. The abuse took place over four months and involved five separate incidents. One incident involved placing his hand up her shirt, inside her bra, and fondling/licking her breasts. He then forced her hand briefly onto his penis before masturbating himself. Another incident involved kissing on the mouth and touching her bare breasts. The duration and intrusiveness of the abuse were aggravating factors, as was the harm suffered by the victim and her mother. Mitigating factors included the guilty plea and significant counselling taken by the offender to prevent re-offending.

k) R. v. G.H., 2023 ONCA 89

The offender was convicted of historical sexual abuse of his stepdaughter over a period of several years when she was a pre-teen. The abuse included repeated episodes in which the child was compelled to sit or straddle the offender while she was naked or partially clothed, and he was partially clothed. The offender would rub his penis against the girl’s vagina, touch her vagina with his hand, and he performed oral sex on year. The Court of Appeal upheld a five-year sentence of imprisonment. The offender had a prior, albeit dated, convicting for a sexual offence against a 16-year-old.

Balancing:

60An act of sexual violence was committed against this child. She has suffered enduring harm. Upon considering the legislation, guidance provided by the cases reviewed regarding sexual offences against children, the aggravating and mitigating factors, the potential for rehabilitation (which shall not take precedence over denunciation and deterrence), I find that a just and fit sentence that properly reflects the gravity of the offence and degree of responsibility of the offender is 12 months’ imprisonment, followed by two years’ probation.

Summers Credit:

61I accept that an appropriate credit for pre-sentence custody is 1.5 days for each one day served, in accordance with the provisions of the Criminal Code and R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575. This was not a contested issue in the sentencing hearing.

62As of the date of sentencing Mr. Mazinakouskang had served 274 days of time with respect to these charges. At a ratio of 1.5 to 1, he shall receive pre-sentence custody credit of 411 days.

SENTENCE AND ANCILLARY ORDERS:

63For the reasons outlined in this decision, Mr. Mazinakouskang was sentenced to incarceration for 12 months, subject to Summers credit of 411 days. At his time served exceeded his sentence, he was in a time served position, and was released from custody when sentence was imposed on October 3rd.

64He shall be subject to a two-year period of probation. In addition to the statutory terms, the terms of his probation shall include:

a. Report within seven days of release;

b. Upon release he shall live on the property of Andrea Collins and Ulf Runesson while awaiting entry into a residential treatment program for substance abuse, or at such other address as approved of by probation.

c. He shall undertake such counselling as recommended by probation, and provide proof of attendance, which shall include but not be limited to an appropriate residential treatment program.

d. He shall have no contact with A.H. (a.k.a. H.H.) or T.C. (her mother) during the period of probation, nor shall he go to any place he knows them to be.

65Mr. Mazinakouskang shall be subjected to a lifetime weapons prohibition pursuant to s. 109 of the Criminal Code, subject to an exception for sustenance hunting and fishing, provided that he shall not be under the influence of an intoxicating substance while engaging in these activities, and shall be in the presence of another license/registered hunter and fisher.

66Mr. Mazinakouskang has been convicted of primary designated offences as defined in s. 487.04 of the Criminal Code and therefore a DNA order shall issue requiring him to submit a sample.

67An order shall also be made pursuant to s. 490.012 of the Criminal Code, requiring Mr. Mazinakouskang to comply with the Sex Offender Information Registration Act (SOIRA) for a period of 20 years. I agree with the Defence that compliance for life is not warranted in the circumstances.

68Pursuant to s. 161(a.1), Mr. Mazinakouskang shall be prohibited from being with 100 meters of any place where he knows A.H. to live, work, or attend school for a period of 10 years. In my view, this limited application of s. 161(a.1) satisfies the objectives of the legislation on the facts and circumstances of this case. It also should not be onerous for Mr. Mazinakouskang to comply with if he returns to the area of the Ginoogaming First Nation.

69Mr. Mazinakouskang has been incarcerated, and he has limited means. The victim fine surcharge is waived.

The Hon. Madam. Justice T. J. Nieckarz