CITATION
CITATION: R. v. Miller, 2026 ONSC 229
BARRIE COURT FILE NO.: CR-24-074
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
– and –
Spencer Miller
Defendant
L. Sela, for the Crown
J. Rabinovitch, for the Defendant
HEARD: December 18, 2025
LEIBOVICH, J.
REASONS FOR SENTENCE
1On September 22, 2025, Mr. Miller pleaded guilty to sexual interference. Sentencing submissions were heard on December 18, 2025. The matter was adjourned to today’s date, and Mr. Miller is before me today for sentencing.
2The Crown seeks a sentence of two years less a day, plus two years probation along with various ancillary orders. The defence does not oppose the ancillary orders and is content with a sentence of two years less a day but only if that sentence is served conditionally.
Circumstances of the offence
3In July 2022, Mr. Miller and AB, met through an online platform called “Amigo”. The two were open about their ages. AB told Mr. Miller she was 13 and Mr. Miller admitted he was 20. The two chatted for approximately three weeks on various online platforms. AB told Mr. Miller she was not 100% certain about their relationship and she didn’t want anyone to get into trouble. Mr. Miller told her that it was fine as long as no one knew about it, and she did not tell her friends and family his actual age. AB believed that she and the accused were boyfriend and girlfriend.
4Throughout their online communications, Mr. Miller sent AB explicit photos, including approximately 10 pictures of his erect penis. He asked AB to send him nude photos of herself. AB eventually sent a picture of herself in a bikini and one with her in just a bra.
5On August 13, 2022, Mr. Miller was dropped off by his parents at AB’s friend’s house. They all went to a pool party down the road. A plan had been formulated in advance to tell the parents that Mr. Miller was someone that used to live in the area, had been friends with AB’s friend and was 15 years old. A number of adults were present at the pool party, including AB’s mother. Mr. Miller told AB’s mother that he was 15.
6After the pool party, they all went back to the friends’ house and there was a sleepover. AB awoke to find that Mr. Miller was trying to make out with her. Mr. Miller had put his hands down AB’s pants and was attempting to digitally penetrate her vagina. Mr. Miller also took AB’s hand and put it down his pants onto his penis to have AB give him a hand job. Mr. Miller tried a number of times to get AB to go to the washroom with him, but stopped when a friend woke up.
7The following day after the incident, AB told her parents what happened. The parents called the police and Mr. Miller was arrested.
8A victim impact statement was not provided but the pre-sentence report writer spoke to the victim’s mother. She stated that the offence has had a negative impact on the victim, who immediately following the incident attempted to end her life. The family has been under significant stress as a result of the incident and the elongated court process. The victim’s brother has also suffered as he felt he should have been able to protect his sister and prevent the incident. The mother is concerned that her daughter has used alcohol as a coping mechanism. The mother stated that:
Her daughter has difficulty discussing the incident; therefore, she avoids pressuring her to talk about it and instead emphasizes her availability to provide support and access to necessary resources. Although the victim initially agreed to attend counseling, she later declined to participate, and [she] observed that when the topic arises, her daughter often shuts down and, at times, refuses to eat.
Circumstances of the offender
9Mr. Miller has no criminal record. He was raised in a supportive family and his parents have remained supportive throughout these proceedings. Mr. Miller’s mother suffered a stroke and the accused helps her. As noted in the pre-sentence report:
Mrs. Miller reported that the subject plays a significant role in supporting the household. She disclosed that she suffered a “stroke” five years ago, which has resulted in ongoing limitations and the need for supervision and assistance, as she “cannot be left alone.” She indicated that when the subject’s father is unavailable, the subject remains with her and provides necessary support with her care.
10Mr. Miller’s parents rely on the accused’s salary to help pay for household expenses. He contributes approximately $500 a month.
11Mr. Miller’s mother described him as a,
“Highly empathetic” individual. She noted that he experiences “some anxiety-related issues,” though he generally manages well in day-to-day life. She stated that, in her view, he presents as “young for his age,” but she is not aware of any formal mental or physical health diagnoses.
12Mr. Miller has some Indigenous ancestry, but he does not self-identify as Indigenous and counsel purposely did not seek a Gladue report. Mr. Miller told the pre-sentence report writer that he had trouble fitting in growing up. He was bullied in elementary school and to a lesser extent in high school. He tended not to associate with his peers while in high school. His father also noted that Mr. Miller has trouble making and developing long-term relationships.
13Mr. Miller graduated from high school but has not pursued a post-secondary education. He has worked part time at a fast-food restaurant for the past six years. His employer said that Mr. Miller is a good worker and does all the work assigned to him. The employer believed that Mr. Miller struggled with anxiety and was socially awkward. Mr. Miller’s employer stated that the franchise employs minors and Mr. Miller will lose his job once sentenced.
14Mr. Miller also helps a man with Down syndrome once a week by taking him to the gym.
15With respect to the offence, Mr. Miller stated that he was struggling with depression at the time and was at rock bottom. After he was charged, he sought counselling. A letter from his counsellor was filed at sentencing. The counsellor noted:
Mr. Miller has successfully completed 10 sessions of individual counselling. He consistently presented as responsible, thoughtful and respectful. He is focused on being accountable. He completed additional reading and study on a weekly basis, outside of his scheduled appointments.
Throughout counselling Mr. Miller was engaged in a critical exploration of his beliefs, attitudes and behaviours. Factors that lead to sex offending behavior were reviewed. Research evidence based relapse prevention strategies were discussed. Our most recent session concluded with Mr. Miller demonstrating that he has a strong and clear understanding of the subject matter explored. I would categorize Mr. Miller's overall engagement and commitment to counselling as excellent.
16Mr. Miller told the pre-sentence report writer that he has continued to have intermittent contact with the counsellor in the past two years.
Aggravating and mitigating factors
17The following are the aggravating factors:
(a) The offence involves victimization of a child, a statutorily aggravating factor;
(b) The offence commenced when the victim was asleep, when she would not have been able, irrespective of age, to have consented to the sexual activity;
(c) There are elements of luring and planning as the accused and the victim met online and sexual images were sent online. In addition, the accused planned a lie to explain his presence and his age; and
(d) The offence had a devastating impact on the victim.
18The following are the mitigating factors:
(a) The accused has pleaded guilty and admitted responsibility for his conduct;
(b) The accused is a youthful first offender who does not have a criminal record nor is there any evidence of any other anti-social behaviour. He was a few months shy of his 21st birthday at the time of the offence;
(c) The accused has the support of his family;
(d) The accused provides assistance to his mother who suffered a stroke and financial assistance to his family;
(e) The pre-sentence report is positive; and
(f) I am satisfied that the accused can be rehabilitated.
Law and analysis
19Section 718 of the Criminal Code, R.S.C. 1985, c. C-46, describes the purpose 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.
20“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender – this is the fundamental principle of sentencing.”: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at para. 19; s. 718.1 of the Criminal Code.
21Section 718.01 of the Criminal Code states that when dealing with offences against children, a court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Zarnett J.A. explained these terms in R. v. T.J., at para. 26 as follows:
A sentence expresses denunciation by condemning “the offender for encroaching on our society’s basic code of values”; it expresses deterrence by “discouraging the offender and others from engaging in criminal conduct”. Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis, at para. 55.
22A court must still consider other sentencing objectives, such as rehabilitation, but it cannot be given equal or greater priority than denunciation and deterrence. As explained by Zarnett J.A. in R. v. T.J., at para. 27:
The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence”. These other objectives may be given significant weight, but not priority or equivalency: Lis, at paras. 47-48, 53; Friesen, at paras. 101-4.
23Section 718.2 of the Criminal Code specifies that the following shall be taken into consideration by the court and are deemed to be aggravating factors:
evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
24Past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process, and sentencing ranges are not meant to handcuff the court. As stated by Fairburn A.C.J.O. in R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230, at para. 71:
The Supreme Court recently reiterated that ranges and starting points are malleable products of their time. They are "historical portraits" that provide insight into the operative precedents of the day, but they are not "straitjackets" and can be departed from as societal understanding of offences and the severity of harm arising from those offences deepens: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 57; R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 108. To that end, it is not unusual "for sentences to increase and decrease as societal and judicial knowledge and attitudes about certain offences change": R. v. Parranto, 2021 SCC 46, 436 D.L.R. (4th) 389, at para. 22, citing R. v. Smith, 2017 BCCA 112, at para. 36, citing R. v. Nur, 2011 ONSC 4874, 275 C.C.C. (3d) 330, at para. 49; Friesen, at para. 108.
25In this regard, the Supreme Court of Canada has stated that sentences for sexual offences against children must increase. As stated by the Court of Appeal in R. v. M.M., 2022 ONCA 441, at para. 15:
The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.
26The critical reason for this change is the recognition of the harm caused by sexual violence. Sexual violence against children invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. A child should be able to grow and develop free from sexual interference and exploitation by adults. Sentences must fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. Harm includes not just physical harm, but the often more pervasive and permanent emotional and psychological harm caused by sexual violence. A court must consider the harm caused and the reasonably foreseeable harm that could result. As stated in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 84:
As a result, courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence. Even if an offender commits a crime that fortunately results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence (A. Manson, The Law of Sentencing (2001), at p. 90). When they analyze the gravity of the offence, sentencing judges thus must always take into account forms of potential harm that have yet to materialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize later in childhood or in adulthood. To do otherwise would falsely imply that a child simply outgrows the harm of sexual violence.
27Furthermore, an offender who sexually abuses a child has a high degree of moral responsibility because, except in the rarest of cases, the offender will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child.
28The Supreme Court of Canada in Friesen provided additional guidance and listed the following significant factors that a court should consider in sentencing an accused for sexual abuse of a child:
The likelihood of re-offending;
The abuse of a position of trust or authority;
The duration and frequency of the abuse;
The age of the victim; and
The degree of physical interference.
Applying the legal principles to this case
29The defence submits that the sentence should be served in the community. Both the Crown and the defence agree that a reformatory sentence is appropriate and thus a conditional sentence is an available sentence. While the Crown agrees that serving the sentence in the community would not endanger the safety of the community, the Crown submits that such a sentence would, in the circumstances of this case, be inconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
30Counsel for Mr. Miller acknowledges the seriousness of the offence and the legal principles set out by the Criminal Code and cases post-Friesen. However, he submits that sentencing is an individualized process. He submits that in this case, a conditional sentence is consistent with the principles of sentencing as Mr. Miller is a youthful, remorseful first offender who is young in years and maturity. He was subject to bullying as a youth and grew up sheltered and not able to form lasting friendships. While any sexual offence is serious, in this case, the amount of physical interference is at the low end. Furthermore, the defence submits that Mr. Miller has received counselling, has supportive family, and has excellent prospects of rehabilitation.
31I agree with many aspects of defence counsel’s submissions. As stated, sentencing is an individualized process. Mr. Miller was only 20 at the time of the offence and can be described as immature and socially awkward. He does have strong family support, and he has strong prospects of rehabilitation. There are also collateral consequences to his incarceration. But, in my view, a conditional sentence would not be consistent with the fundamental principles of sentencing. While Mr. Miller was young and immature at the time, he was fully aware of the wrongfulness of his actions. He told the victim not to tell anyone his age and the day of the incident, he organized a ruse to explain his presence and age to those at the party, including the victim’s mother. He also sexually touched the victim while she was sleeping, when she clearly was incapable of consenting, irrespective of age. Finally, the victim was 13, and the offence has had, and continues to have a serious effect on her. In the immediate aftermath of the offence, she attempted to take her own life. As stated by the Court of Appeal in M.M., at para. 16:
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so.
32This is not one of those exceptional circumstances. However, a sentence of two years less a day does not fully reflect the mitigating factors and the collateral consequences of Mr. Miller’s imprisonment. In R. v. D.B., 2025 ONCA 577, 451 C.C.C. (3d) 400, the Court of Appeal reiterated that a court must, in sentencing an accused, consider the collateral consequences, which includes any consequences arising from the commission of the offence, the conviction or sentence imposed that impacts the offender. The collateral consequences need not be unique and they must be considered even in serious cases. In D.B., the Court of Appeal found that the trial judge erred in not adequately dealing with the collateral consequences that were at play. The Court stated, at paras. 23 and 24:
The trial judge also did not consider the impact of employment consequences on housing, income, caregiving, or the defendant's family. These broader effects must also be accounted for: [citations omitted].
These consequences merited weight despite the trial judge's conclusion that they were not unique and were almost inevitable. As Justice Moldaver explained in Suter, common and foreseeable consequences of conviction and sentence must be considered to respect proportionality.
33In this case, Mr. Miller lives with his parents and helps take care of his mother who suffered from a stroke. The family also depends, in part, on his salary to help make ends meet. His incarceration will clearly have negative collateral consequences on them. In my view, having regard to all the aggravating and mitigating factors and the collateral consequences on Mr. Miller’s family, a sentence of 18 months of incarceration plus two years of probation is appropriate.
Ancillary orders
34The Crown seeks the following ancillary orders:
(a) A s. 487.051 DNA order;
(b) A s. 743.21 order with respect to AB;
(c) A 20-year Sex Offender Information Registry Act order; and
(d) A 10-year s.161 order.
35With respect to s. 161, the Crown seeks the following prohibitions:
(a) An order that Mr. Miller be prohibited from “attending a public park or public swimming pool 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” (s.161(a));
(b) An order that Mr. Miller not have any contact with AB;
(c) An order that Mr. Miller be prohibited from attending within two kilometres of the victim’s residence or any place where she is known to be (s.161(a.1)); and
(d) An order that Mr. Miller be prohibited from seeking, obtaining, or continuing employment or volunteer positions involving positions of trust towards persons under the age of 16 years (s.161(b)).
36The defence does not oppose these ancillary orders and they will be granted.
37With respect to the probation order, it will contain the mandatory conditions in s. 732, as well as a reporting condition (s. 732.1(3) (a)), a no-contact provision (s. 732.1(3) (a.1)), and a condition that Mr. Miller attend for counselling as directed.
The Honourable Justice H. Leibovich
Date Released: January 14, 2026