R. v. Baxter, 2026 ONSC 231

CITATION: R. v. Baxter, 2026 ONSC 231

COURT FILE NO.: CR-23-0065

DATE: 2026-01-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Barbara Baxter

Kelli Frew, for the Crown

Carson Hurley, for the Defence

HEARD: October 3, 2025

REASONS FOR SENTENCE

coats j.

I. OVERVIEW:

1On February 25, 2025, Barbara Baxter, was found guilty by a jury of the following offences:

A. Count 1 – Between September 1, 1982 and January 3, 1983, committing acts of gross indecency against S.M., contrary to s. 157 of the Criminal Code;

B. Count 2 – Between January 4, 1983 and June 30, 1983, committing a sexual assault on S.M., contrary to s. 246.1 of the Criminal Code;

C. Count 3 – Between September 1, 1983 and June 30, 1984, committing a sexual assault on T.W., contrary to s. 246.1 of the Criminal Code;

D. Count 5 – Between January 4, 1983 and June 30, 1985 committing a sexual assault on G.T., contrary to s. 246.1 of the Criminal Code;

E. Count 6 – Between September 1, 1983 and June 30, 1985, committing a sexual assault on J.S., contrary to s. 246.1 of the Criminal Code; and

F. Count 7 – Between September 1, 1984 and June 30, 1987, committing a sexual assault on M.B., contrary to s. 246.1 of the Criminal Code.

2Barbara Baxter was found not guilty on Count 4 – an allegation that between September 1, 1982 and January 3, 1983, Barbara Baxter committed acts of gross indecency against G.T.

II. THE FACTS

a) Circumstances of the Offences

3Section 724(2) of the Criminal Code provides:

(2) Where the court is composed of a judge and jury, the court

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

4The applicable law on findings of fact open to a judge after a jury’s verdict is set out at paras. 19-24 of R. v. I.C., 2024 ONSC 156:

19In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the Supreme Court considered the findings of fact open to a judge after a jury’s verdict and provided guidance as follows commencing at para. 15:

15 The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction. …

16 This poses a difficulty in a case such as this, since, unlike 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.

17 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" …. 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 …

18 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 ... 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). 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.

19 Following these principles, the trial judge in this case was required to find facts, consistent with the jury's manslaughter verdict, to the extent that this was necessary to enable him to sentence Constable Ferguson… [Citations omitted, emphasis added]

20I was also referred to a decision of Allen J. of this court; R. v. J.P., 2019 ONSC 6298, where the defendant was found guilty of sexual interference and sexual assault. Hundreds of incidents were alleged, including touching of the complainant’s buttocks as well as several instances of sexual intercourse. The offender was the complainant’s stepfather, and the assaults took place over the course of six years. Justice Allen found serious credibility issues in the complainant's testimony, particularly inconsistencies in her statements as well as credibility, reliability, and plausibility problems in the allegations.

21At para. 10 Justice Allen stated as follows:

The following considerations assist the sentencing judge in arriving at factual findings:

(a) The sentencing judge must not attempt to reconstruct the jury's logical reasoning which recognizes that jurors arrive at a unanimous verdict for different reasons and on different theories of the case.

(b) It is speculative and artificial to attribute a single set of factual findings to the jury unless it is clear that the jury must have unanimously … found those facts.

(c) Where any ambiguity on this exists the trial judge should consider the evidence and arrive at his or her own findings of fact consistent with the evidence and the jury's findings.

(d) The jury must be given the benefit of the doubt regarding the basis on which an accused was convicted by the jury.

(e) For the purpose of sentencing, in cases involving significant credibility and reliability issues, it is open to the sentencing judge to find the minimum consistent facts consistent with the jury verdict.

(f) The offender is not entitled to the most lenient interpretation of the jury's verdict. …

22At para. 51, Justice Allen concluded:

This is clearly a case with substantial credibility and reliability problems for NP. It is therefore, for the purpose of sentencing, open to me to find the minimum consistent facts consistent with the jury verdict. NP testified that some incidents involved JP touching her buttocks. I accept the defence's submission that there is the factual basis to find that one incident of JP touching her buttocks has been proven beyond a reasonable doubt and that those facts can support the charge of sexual interference and sexual assault.

23In the subsequent decision on sentence, Justice Allen sentenced J.P. to 60 days in custody with two years’ probation: R. v. J.P., 2019 ONSC 7047. The conviction was upheld on appeal: R. v. J.P., 2023 ONCA 570. Justice George endorsed Justice Allen’s decision to make "minimum findings of fact consistent with the jury’s verdict": at para. 52 and rejected the submission that the findings of fact for the purposes of sentencing made the decision unreasonable.

24The other decision of assistance on this point that Justice Allen referred to is R. v. M. (L.) 2017 ONCA 33, [2017] O.J. No. 211, where the Court acknowledged the trial judge’s advantage of observing the complainant testifying in court. The Court upheld the trial judge’s decision to reject some of the complainant’s evidence about incidents of sexual abuse by the offender because of obvious credibility and reliability issues with the complainant’s evidence that arose in the facts before the jury.

5The Crown’s position is that I should find the facts to be those which the five complainants testified to at the trial. This would include repeated incidents in regard to S.M., G.T. and J.S. and single incidents in regard to T.W. and M.B.

6The Defence takes no issue with the facts in regard to T.W. and M.B. The Defence takes issue with respect to the Crown’s position that the incidents were over a prolonged period or of a repeated nature with respect to S.M., G.T. and J.S. The Defence position is that the Court should find that only one incident happened for each count. This would be two incidents with respect to S.M. and one incident in regard to each of G.T. and J.S.

7The Defence says that I should be concerned about certain memory issue in regard to S.M., as portions of his evidence were not corroborated by Ms. M. (another witness). S.M. also acknowledged that he suffered from drug addiction over the years. The Defence position is that with respect to S.M., I should find that on one occasion Ms. Baxter touched his penis over his clothes and that on one occasion she performed oral sex on him in the classroom.

8With respect to J.S., the Defence submits that there were similar issues with his testimony. In cross-examination, J.S. acknowledged that he had never told the police about incidents he described at trial involving ejaculation. He had gaps in his memory and potential reliability issue. The Defence gave the example that he could not give an exact number when asked how many times the incidents happened.

9In regard to G.T., the Defence says his evidence had similar issues to J.S.’s evidence. He never informed the police about one incident involving ejaculation. According to the Defence, G.T. told the police he was not sure his memories were valid and that the incidents were condensed in his mind.

10I agree with the Crown’s position. It is clear from the jury’s verdict that they accepted the evidence of all of the complainants and rejected Ms. Baxter’s evidence that none of the incidents happened. I also agree with the Crown that on the one non-guilty verdict of gross indecency against G.T., it was a result of the time frame in the count and not the result of any credibility issues. The jury’s verdict indicates that they wholly accepted the evidence of the complainants.

11I did not find that there were any obvious credibility issues with S.M., G.T. and J.S. that would cause me to reject any of their evidence. There is no ambiguity in this case. The jury accepted the complainants’ evidence and rejected Ms. Baxter’s evidence. Accepting the evidence of the complainants was essential to the jury’s verdicts in circumstances where the defence was a complete denial.

12To parse out portions of S.M., G.T., and J.S.’s evidence and find, as the defence suggests, that a single incident happened, would be wholly inconsistent with the jury’s verdict. Accepting all of the complainants’ evidence, as they gave it, permits a proper sentence to be imposed in this case.

13Specifically in regard to S.M., Ms. M. in her evidence confirmed the multiple incidents. In regard to G.T., his evidence was that he did recall multiple incidents. He said the memories are in one place in his mind and he could not give a timeline, but he absolutely could recall multiple incidents. With respect to J.S., his testimony was clear and forthright that there were multiple incidents.

14I will briefly summarize the evidence of each complainant that I have accepted as facts for the purpose of sentencing. In all incidents, Barbara Baxter was the complainant’s teacher.

1. Evidence of S.M.

15From the beginning in Ms. Baxter’s class, she was touching him. She was constantly grabbing him and putting her “boobs” on him. She would try to sit on his lap, shake her boobs in his face and constantly touch his hair. She grabbed him on his penis a few times and grabbed his “ass” constantly. It happened all school year long.

16After Christmas when he was in grade eight, Ms. Baxter performed oral sex on him. It happened in the classroom, after school, when he was in detention. He ejaculated in her mouth.

17The touching did not stop after the oral sex.

2. Evidence of T.W.

18Ms. Baxter was his teacher when he was in grade eight. He and his friend were asked to stay behind to put away supplies in the space off the classroom. He was on a step stool putting things on the top shelf. He felt Ms. Baxter’s hands on the small of his back. It was both of her hands. Her hands moved to his buttocks then down underneath, around the front to his genital area. She did not grab or squeeze. She brushed over his genitals. He believes it was both her hands that brushed him, but at least one of her hands. She very quickly, momentarily, brushed his genitals.

3. Evidence of G.T.

19Ms. Baxter exposed her bra to him dozens of times over three years. There were times she took her bra off and was bare chested.

20From the start of grade six touching occurred. He was probably in grade eight when she touched him and he ejaculated.

21Ms. Baxter would place his hands on her breast and genitals and ask him to rub back and forth. It was under her clothing.

22Ms. Baxter would touch his pants to see if he was erect. One time she took his penis out and he ejaculated. She cleaned it with a rough paper towel that she put in her purse.

23He has a direct memory of ejaculating. He was touching her breast and genitals. He was aroused. She gently touched him and he ejaculated in her hand and got some ejaculate on her sweater.

4. Evidence of J.S.

24Ms. Baxter was his teacher in grades seven and eight. The classroom had a back room. When J.S. was in the back room for discipline, or to get something off a shelf, Ms. Baxter would touch him and lean over him. She touched his penis over his pants. Ms. Baxter’s top was on and she would put her breasts in his face. It happened multiple times, to the point he had an orgasm. At times, he was late for the next class because he had an erection. He described Ms. Baxter’s touching of his penis as elongated. It was caressing and touching, not accidental.

25Ms. Baxter touched his penis, and her breasts made contact with his face. It happened numerous times.

26It happened at times when Ms. Baxter had her top off and was wearing a bra.

27Ms. Baxter drove him home 4 – 5 times. He remembers her groping and touching him. She touched his penis outside his pants.

28J.S. remembers ejaculating once in the back room of the classroom and having to go to the water fountain to clean up. He remembers being late for the next class.

5. Evidence of M.B.

29When he was in grade eight, Ms. Baxter invited him to her home. He played the saxophone and she played the piano. She offered a duet.

30Ms. Baxter asked him if he wanted a snack and a drink and he said yes. She came out of the kitchen with a snack and a drink. This is the last thing he remembers. He does not know if they played the duet. The saxophone was set up and ready to play. He remembers afterwards walking outside her home. He was crying. He was struggling to carry his things. It was kind of dark. He knew where the babysitter lived.

31He remembers waking up on the couch with his pants around his knees. He did not feel conscious at first. He felt the sensation of being touched. His eyes were closed. The touch started to bring him back to consciousness. At first, he could only feel arms on his legs.

32He felt a struggle in his legs at his knees. When he got up, he had to pull his pants and underwear up.

33It was a touch on his thigh that brought him back. He did not see the touch. He felt it. He was struggling to move. He could not comprehend the situation. He could not see or focus. He had sensory input of someone down on his legs. His pants stopped him from moving. He was seated on the couch. Someone held onto his legs.

34Later the skin on his penis felt irritated.

b) Circumstances of the Offender

35This information comes from the Pre-Sentence Report, dated May 15, 2025.

36Barbara Baxter is currently 88 years of age.

37Ms. Baxter described an overall happy childhood, with no significant issues or concerns.

38Ms. Baxter got married in 1960 and she and her husband have a daughter born in 1968. Both Ms. Baxter and her husband are teachers.

39Ms. Baxter has lived with her husband in a home they built in Burlington since 1963. They continue to live there today. Both Ms. Baxter and her husband spent their working careers in the education system and were financially steady. Ms. Baxter described having a strong and healthy marriage.

40Ms. Baxter’s daughter described her mother as an “incredibly humble and classy lady” and as a caring and involved mother. Her daughter advised that Ms. Baxter took on a lead role as an international diving judge and became a director of the Canadian Amateur Diving Association.

41It was reported that Ms. Baxter was actively involved in the community, including volunteer work and political involvement. She was elected president of the Federation of Women Teachers’ Association., volunteered at Maplehurst Correctional Complex and at the Burlington Seniors’ Centre. Ms. Baxter described that she was an honorary member of the Federation of Women Teachers’ Association of Ontario for two decades, recognizing her dedicated service to education in Ontario.

42Ms. Baxter has been diagnosed with rheumatoid arthritis, which has led her to become reliant on canes and wheelchair bound. She is diabetic and has high blood pressure. She is on a medication for each ailment. Her husband is her caregiver.

43Ms. Baxter reports no mental health concerns prior to her arrest. Since her arrest Ms. Baxter reported she has been struggling with depression and managing stress. She is not on medication to address the depression. She is willing to accept counselling to address stress and depression.

44Ms. Baxter and her husband have participated in activities to maintain a pro-social lifestyle since her arrest.

45Ms. Baxter began her teaching career in 1968, retiring in 1994. She stated that she continuously maintained gainful employment and succeeded academically and professionally throughout her career.

46In terms of the offences, as she is entitled to do, Ms. Baxter maintains that she is innocent.

47The author of the Pre-Sentence Report spoke to the investigating officer who reported that Ms. Baxter followed her release conditions without incident and that she did not have any concerns that Ms. Baxter would not abide by community supervision, if imposed. The investigating officer did not believe that Ms. Baxter poses a risk to the complainants given her current age and limited mobility.

48A family friend described Ms. Baxter to the author of the report as a “pillar in the community.” Ms. Baxter’s daughter described Ms. Baxter as a “pro-social member of the community.”

49Ms. Baxter is a first-time offender.

50The author of the Pre-Sentence Report recommended that the following conditions be imposed should the court consider community supervision and/or a custodial sentence in whole or as a part of a sentence:

1. Report in person, to a probation officer at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

2. Reside at a place approved of by the probation officer, provide proof that you are residing at the approved residence and not change that address without obtaining prior permission from the probation officer.

3. Do not possess any weapon(s) as defined by the Criminal Code.

4. Attend and actively participate in all assessment counselling or rehabilitative programs that are appropriate as directed by the probation officer and complete them to the satisfaction of the probation officer including, but not limited to sexual offending behaviours.

5. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling, or rehabilitative programs as directed.

6. Do not associate or communicate in any way, by any physical, electronic, or other means, with a person under the age of 16, unless you have the written permission from your probation officer.

7. Do not be within 100 metres of any park or swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school grounds, playground, or community centre.

8. Do not associate or communicate in any way, by any physical, electronic, or other means, or be in the company of any victims named on the order.

9. Do not be within 200 metres of any place you know the victims or any member of their family live, work, go to school, attend for worship, frequent, or any place you know them to be.

c) Evidence at the Sentencing Hearing

51There were six exhibits filed at the sentencing. One of the exhibits filed was the Pre-Sentence Report, which I have already summarized. The remaining five exhibits were Victim Impact Statements, one from each of the five complainants. Three complainants, S.M., M.B. and G.T. chose to read their statements themselves in court and for two complainants, the Crown read their statement.

52A summary of the Victim Impact Statements is set out herein. The summaries vary in length to reflect the length of the statements.

S.M.

He feels that his voice was stolen from him by those in a unique position of authority over children. He stopped talking about what was happening to him because no one believed him. He was made to feel that he had no value as a human being. He felt unlovable and that this experience distorted any chance for him to have a normal family. He went to college with 10 credits from high school and became a Red Seal Electrician. His apprenticeship took 3 times as long. He did not feel safe at school, nor home and turned to drugs to self-medicate when he was 13 years old. Self-medicating has caused much mental and physical harm to him. He has had to attend four drug and alcohol rehabilitation programs. He suffers from PTSD and anxiety and has constant nightmares. He will be in therapy for the rest of his life. He can no longer work due to the impact of what has occurred. The costs of therapy have been a constant burden. He has suffered mentally, physically, emotionally, financially and experienced the loss of friends and family.

T.W.

He has tried to “bury” this experience but when he hears the name of the school, he feels the memory vividly surface. The emotional impact has carried on through decades and has left an overwhelming sense of guilt to those feelings. He feels guilty about not speaking up when he was young. The stress and trauma have impacted his health. He suffers from a lack of sleep from stress and anxiety. He gets nightmares about what occurred. He feels anger and disgust at how he was robbed of his childhood and innocence. He states that time will pass but that these scars will be carried forever.

G.T.

He has been living with the emotional, psychological and financial consequences of Ms. Baxter’s choices. One of the most damaging aspects of the abuse was the profound confusion it instilled in him. She would alternate offering and withholding affection in a cycle and this left him feeling worthless and alone. He experiences thoughts of self-blame related to these experiences. This dynamic morphed his understanding of healthy relationships and set him on a path of attempting to emulate similar, unhealthy dynamics in other relationships. The abuse impacted the trajectory of his education. It resulted in a premature departure from school with adult levels of extreme stress, sexual trauma, and boundary violations. At work, he is occasionally mentally pulled back to the past which leaves him with an immense feeling of fear. To this day he feels ashamed, he struggles with PTSD, anxiety and depression.

J.S.

He describes the impact of Ms. Baxter’s abuse as “mental torture”. For over 40 years, he has suffered from unconscious PTSD with anxiety and depression. Her choices have left him with long-term financial insecurity and emotional trauma. These events have given him suicidal thoughts. Extreme fear and trauma impact not only his ability to live life but have impacted his ability to manage and form healthy relationships. He feels robbed of his childhood and innocence.

M.B.

He described himself as a “broken man”. Every aspect of his life was dominated by the need to protect himself from a perceived threat. He suffered the trauma of being lured, drugged and assaulted and this continues to impact him. He struggles with addiction. He has no savings, no financial security and lives paycheck to paycheck. No friends to speak of. His children struggle because of his behaviours. Only through intensive trauma therapy and self-reflection does he understand the deep harm this event has caused him. He felt that this could have been stopped before it occurred to him.

III. LEGAL PARAMETERS

53Under s. 157 of the Criminal Code, R.S.C. 1970, c.. C-34, everyone who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.

54Under s. 246.1(1) of the Criminal Code, R.S.C. 1970, c. C-34, as amended 1980-81-82, c. 125, proclaimed in force January 4, 1983, everyone who commits a sexual assault is guilty of an indictable offence and is liable to imprisonment for 10 years.

IV. POSITIONS OF THE CROWN AND DEFENCE

a) Position of the Crown

55The Crown is seeking the following sentence:

1. Three years in custody for the conviction for gross indecency against S.M.;

2. Three years in custody for the sexual assault on S.M., to be served concurrently to the three years on the gross indecency count related to S.M.;

3. Six months in custody for the sexual assault on T.W., to be served consecutively;

4. Two years in custody for the sexual assault on G.T., to be served consecutively;

5. Two years in custody for the sexual assault on J.S., to be served consecutively; and,

6. Six months in custody for the sexual assault on M.B., to be served consecutively.

56The total sentence would be eight years in custody. The Crown submits that this is before any consideration for totality or any other factors the court may wish to take into consideration with respect to Ms. Baxter, such as Ms. Baxter’s age and the time that has elapsed between the offences and now.

57Drawing on R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Crown emphasizes that the Court must take into account the significant harm that sexual abuse has on child victims. The Court in Friesen, at paras. 51-52, provided guidance that sentencing decisions must recognize the harm caused by such conduct to the personal autonomy, bodily integrity, sexual integrity, dignity and equality of children. Penitentiary sentences should be the norm in sexual abuse cases.

58The aggravating circumstances in this case are significant. Ms. Baxter was the victims’ teacher, occupying a position of trust and authority over the children in her care. As noted in Friesen, at paras. 125–126, and R. v. M.M., 2022 ONCA 441, at para. 17, a breach of trust by an educator increases both the harm to victims and the moral gravity of the offence. The substantial age difference between Ms. Baxter and the child victims further exacerbates the misconduct, highlighting their vulnerability. The Victim Impact Statements demonstrate the profound and lasting effects of these offences, emphasizing the importance of denunciation and deterrence in sentencing.

59Ms. Baxter’s pro-social lifestyle has limited relevance in sentencing for sexual offences against children, as such crimes generally occur in private. Similarly, her lack of a prior criminal record is not mitigating; it simply reflects the absence of an aggravating factor and cannot justify an otherwise unfit sentence. Caselaw also indicates that a conditional sentence order (CSO) is inappropriate for offences of this nature. The Crown submits that deterrence and denunciation must take precedence, while rehabilitation is of lesser concern. The pre-sentence report confirms that Ms. Baxter is not interested in pursuing counselling or treatment, further limiting the relevance of rehabilitation.

60Regarding incarceration, the Crown acknowledges that jail is challenging but does not accept that imprisonment would harm Ms. Baxter’s health or prevent her from receiving adequate medical care while in custody.

b) Position of the Defence

61The defence position is that the appropriate sentence is a global sentence of two years less a day, to be served conditionally, and to be followed by the maximum three-year term of probation. The defence breaks down the global sentence as follows:

1. A six-month sentence for each count involving S.M., to be served concurrently;

2. A four-month sentence on the one count involving T.W.;

3. A five-month sentence on the one count involving G.T.;

4. A five-month sentence on the one count involving J.S.; and,

5. A four-month sentence on the one count involving M.B.

62The defence acknowledges that, in most post-Friesen cases, a CSO would not be appropriate except in exceptional circumstances. However, counsel submits that this case is one such exception, citing several mitigating factors that distinguish it from typical sentencing outcomes.

63In mitigation, Ms. Baxter’s advanced age and the passage of time since the offences are relevant, given that these are historical sexual assaults committed decades ago. She has no prior criminal record, suggesting the conduct was isolated, and she has strong family support, indicating stability and potential for rehabilitation. While these factors may temper the sentence, they do not diminish the seriousness of the offences.

64Ms. Baxter is 88 years old and has significant age-related health issues, including rheumatoid arthritis, diabetes, and high blood pressure. Her arthritis has caused severe physical deterioration, leaving her wheelchair-bound. While the defence does not contend that a correctional facility could not meet her medical needs, incarceration at her age would likely exacerbate her health problems and cause considerable discomfort. The defence asks the court to take judicial notice that jail is physically and mentally taxing, particularly for someone of Ms. Baxter’s advanced age; she would be in her early nineties upon release, facing heightened health risks.

65The defence also notes collateral consequences arising from Ms. Baxter’s personal circumstances. Her husband is elderly, and the couple rely on one another for daily care. A lengthy custodial sentence would negatively impact his well-being. While not formally a mitigating factor, this is a relevant collateral consequence that the court may consider when assessing a fit sentence.

66The key mitigating factors advanced are:

1. Ms. Baxter’s advanced age and health issues, which make incarceration particularly harsh;

2. The passage of time since the offences, reflecting that Ms. Baxter today is not the same person who committed them in the 1980s; and

3. Her pro-social conduct and extensive community involvement over the past several decades, demonstrating rehabilitation and positive societal contributions.

67Although other cited cases by the defence pre-date Friesen, they remain useful in analyzing and assessing historical sexual offences.

V. CASELAW

a) Crown’s Cases

68The following are the cases relied on by the Crown including, where relevant, a summary of each case, the facts in the case and the positions of counsel:

i. R. v. Sheppard, 2025 SCC 29 - Post-Friesen:

Summary:

The Supreme Court of Canada addressed the sentencing of offenders convicted of historical sexual offences against children, clarifying how the passage of time should be considered in light of R. v. Friesen. The Court emphasized that historical sexual offences are no less grave or morally reprehensible than those committed in the present and must be sentenced according to contemporary understandings of the harm caused by sexual violence against children. As stated in para. 1, “Sexual offences against children are among the most profoundly immoral acts an individual can commit. Historical sexual offences against children are no less grave, and demand no less accountability, than ones committed today.” The decision reaffirms the applicability of Friesen to historical offences.

Facts:

The case involved a teacher who sexually assaulted a grade seven student in the early 1990s, committing ten instances of sexual touching. The trial judge found no mitigating factors, as there was no guilty plea and the matter proceeded to trial. The judge imposed six-year concurrent sentences on each of the two counts, emphasizing the gravity of the offences and the offender’s breach of trust. (Paras. 7-16)

The Court of Appeal for Ontario reduced the sentence to three years and eleven months, but the Supreme Court reinstated the original six-year sentence, holding that the trial judge properly applied Friesen’s principles to a historical sexual assault. (Paras. 17, 98)

Crown Position:

The Court’s analysis (paras. 66–83) focused on whether the trial judge had correctly applied Friesen and post-Friesen jurisprudence in determining a fit sentence. The Court confirmed that sentencing judges are not required to “balance” Friesen against pre-Friesen jurisprudence or cushion its impact when sentencing for historical offences.

Rather, contemporary principles of sentencing must prevail, and pre-Friesen cases are only relevant if they are factually analogous and reflect an awareness of the harms recognized in Friesen (paras. 80–83). As the Court explained at para. 67, “Sentences for historical offences are properly determined in accordance with the sentencing regimes and societal perspectives that prevail at the time of sentencing.”

The rationale for this approach lies in the principle of proportionality—sentences must reflect both the gravity of the offence and the offender’s moral blameworthiness (para. 68). The Court stressed that proportionality cannot be achieved by adhering to outdated or disproportionately lenient precedents, noting at para. 69 that “there is no value in achieving parity with disproportionate sentences.” The offender’s role as a teacher, the victim’s vulnerability, and the historical disbelief faced by victims of child sexual abuse underscores the heightened need for denunciation and deterrence.

The Court further explained that applying current sentencing norms ensures fidelity to the objectives set out in s. 718(a)–(f) of the Criminal Code (para. 71). Citing Friesen, the Court reiterated that lenient historical sentencing practices were rooted in misconceptions about the gravity of sexual offences against children (para. 72). Consequently, “so long as the sentence imposed does not exceed the maximum penalty at the time of the offence, sentencing judges should base their reasoning on the most accurate and up-to-date understanding of the gravity of the offence” (para. 77). While contemporary case law should guide analysis, the Court acknowledged that older cases may still be considered “insofar as they align with contemporary principles” and accurately reflect the harm caused to children (para. 80).

ii. R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424:

Summary/Crown Position:

The Supreme Court of Canada fundamentally reshaped the sentencing framework for sexual offences against children. The Court observed that sentences historically imposed for such crimes had been disproportionately lenient, reflecting outdated societal misconceptions about the gravity and long-term harm of these offences. The decision called on courts to update their understanding of both the nature of these offences and the profound damage they inflict on victims. The Court underscored that sentencing must give proper effect to the profound harmfulness of these crimes, emphasizing that they cause not only immediate physical or emotional trauma but also enduring psychological, relational, and social harm (paras. 51, 56, 60–64, 79–84, 107 onward).

iii. R. v. M.M., 2022 ONCA 441– Post-Friesen:

Facts:

Appellant was convicted of possessing and making child pornography and sentenced to a 15-month CSO and 12 months’ probation. (Para. 1).

The complainant was the foster daughter of the appellant’s aunt. She met the appellant when she was 12 years old. The appellant and the complainant texted each other over a three-year period. During the course of their texting, the complainant sent the appellant photos of her breasts and a video of her masturbating. The appellant sent the complainant photos of his penis. The appellant and complainant made arrangements to have sex following the complainant’s 16th birthday, but the trial judge found there was no evidence they did so. (Paras. 3-4)

The Court on appeal found the CSO to be unfit and imposed a 15-month sentence of imprisonment with 12 months probation. (Paras. 13-14, 19)

Crown Position:

The Court of Appeal for Ontario built on Friesen’s principles while addressing the appropriateness of CSOs for sexual offences involving children. The Court held that CSOs for sexual offences against children will only rarely be appropriate, stressing that their use must be limited to exceptional circumstances, such as when incarceration would create a medical hardship that could not adequately be addressed in a correctional facility (para. 16).

M.M. involved a non–hands-on offence—breach of trust through texting and the exchange of sexual images and videos—but even in that context, the Court rejected a CSO. The decision reinforces that denunciation and deterrence remain paramount in sentencing for child sexual offences, even where physical contact is absent.

iv. R. v. Nygard, 2024 ONSC 4837 - Post-Friesen:

Crown’s Position:

The Court addressed the complex issue of sentencing an elderly offender convicted of serious historical sexual offences. The Crown emphasized that allowing an individual to benefit from escaping justice for decades is inconsistent with the principles that should guide sentencing. Justice Goldstein highlighted that the fundamental principle of sentencing is proportionality, and as such, a sentence must reflect both the gravity of the offence and the offender’s degree of responsibility: Para. 109. The principle of totality, as a component of proportionality, ensures that the global sentence does not exceed the offender’s overall culpability.

Although there is no “senior discount” in sentencing, the court acknowledged that an offender’s age must be taken into account. Sentences imposed on elderly offenders should not surpass any reasonable estimation of their remaining natural lifespan: Para. 110. However, Justice Goldstein noted that in Nygard’s case, this consideration carried limited weight because, statistically, Nygard had already exceeded the average lifespan.

The court found that Nygard, who was 83 at the time of sentencing, was largely the author of his own misfortune in being sentenced so late: Para. 111. He had committed these crimes in an era where wealthy and powerful men often operated with a sense of immunity, and for many years, he benefited from that societal protection. To reduce his sentence on the basis of age, the court reasoned, would validate that historical immunity and run counter to public policy. It would also devalue the importance of denunciation and deterrence, suggesting that the wealthy and powerful could escape accountability simply by delaying justice. While age remained a relevant consideration, Justice Goldstein concluded that only limited weight should be given to it (para. 112).

The Crown analogized this reasoning to Ms. Baxter’s situation, arguing that she too held a position of power and benefited from a social environment in which adults’ words were given more credibility than those of children. Granting leniency because she had delayed the “day of judgment,” the Crown argued, would send the wrong message.

Defence Position:

The defence emphasized the principle that sentences should not be so severe as to crush any hope of rehabilitation. Citing R. v. Johnson, 2012 ONCA 339, 291 O.A.C. 350, at para. 18 and R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 74, as cited in Nygard, at para. 107, the defence argued that the totality principle requires a sentence to balance the full range of sentencing objectives, including denunciation, deterrence, rehabilitation, separation from society where necessary, and the broader goal of maintaining a just and peaceful society. As stated in Johnson, when a sentence deprives an offender of any realistic hope of release or rehabilitation, it loses its functional value: para. 23. The defence argued that a lengthy custodial term would serve no rehabilitative purpose for Ms. Baxter, given the life she has lived over the past forty to fifty years, marked by community involvement and good character.

The defence also cited M. (C.A.), which established that a sentence should not exceed any reasonable estimation of an elderly offender’s remaining lifespan (Nygard, at para. 110). In Ms. Baxter’s case, a sentence of eight years would likely extend beyond her life expectancy—she would be approximately 96 years old by its conclusion—creating a serious risk that she would not outlive the sentence.

Finally, the defence sought to distinguish Ms. Baxter’s situation from Nygard’s. While acknowledging that her offences involved a breach of trust as a teacher, they argued that the broader factors underpinning Nygard’s culpability—his exploitation of wealth, power, and social immunity—did not apply to her. Ms. Baxter’s decades of service, empathy, and volunteerism demonstrated her positive character. Unlike Nygard, she was not the author of her own misfortune, and her advanced age should be treated as a significant mitigating factor.

v. R. v. P.R.J.,2023 BCCA 169 - Post-Friesen:

Summary:

The British Columbia Court of Appeal addressed whether a CSO imposed for child sexual offences was fit in light of Friesen. The offender was convicted of sexual interference, invitation to sexual touching, and sexual assault involving a child in 2018. The trial judge imposed a 23-month CSO, reasoning that incarceration was not necessary to achieve the objectives of sentencing (paras. 30–34). The Crown had sought a four-year custodial sentence (para. 34). The British Columbia Court of Appeal set aside the CSO and imposed a 36 month period of incarceration (Para. 80).

Crown Position:

The Crown acknowledged that historically, a four-year sentence may have been considered outside the range for a first-time offender involved in a single incident. However, post-Friesen, a penitentiary term should generally be expected for sexual offences against children (para. 36).

The Court of Appeal found that while the trial judge did not misapprehend the law (paras. 45–46), he failed to adequately consider the harm to the victim and society, and his sentence did not give sufficient weight to denunciation and deterrence (paras. 47–61). As a result, the Court set aside the CSO and imposed a three-year term of imprisonment.

vi. R. v. Solomon, 2022 ONCA 706 - Post-Friesen:

Summary:

The Court of Appeal for Ontario again affirmed and applied the principles from Friesen, holding that these principles apply even to historical sexual offences. The complainant was 15 years old when she and her mother took refuge in the Church. The appellant was assigned the task of providing her with guidance. He began a sexual relationship with her lasting until she was 21 years old. (Paras. 1-3).

The offender was convicted of sexual exploitation, assault, and uttering threats for offences committed between 1996 and 2001, involving a single victim. The Court concluded that the overall sentence—five years for sexual exploitation, six months for assault, and 90 days for uttering threats—was appropriate and proportionate in the circumstances. (Para. 14)

Crown’s Position:

The Court explicitly endorsed the application of Friesen’s principles to historical offences (para. 14), signaling that sentencing courts should reflect modern understandings of harm and wrongfulness even for older offences. This approach was later echoed in R. v. D.W., 2023 ONCJ 363, and affirmed in R. v. Wright, 2024 ONCA 516.

Although Solomon was decided before Sheppard, it illustrates the growing willingness to apply Friesen retroactively when assessing sentences for historical sexual violence.

vii. R. v. T.J., 2021 ONCA 392, 156 OR (3d) 161 (C.A.) – Post-Friesen:

The Court of Appeal for Ontario applied the Supreme Court’s guidance in Friesen emphasizing the need for stronger denunciation and deterrence in cases of sexual offences against children. The respondent was charged with sexual interference, invitation to sexual touching, and sexual assault against C.M., a child. The offences occurred on one occasion in 2010 or 2011 when C.M. and her brother were at the respondent’s home for a sleepover with his sons. At the time, C.M. was six or seven years old. The sentencing judge convicted the respondent of all three offences. He conditionally stayed the sexual interference and invitation to sexual touching convictions. On the sexual assault conviction, he imposed a sentence of 9 months in custody, followed by two years probation. (Paras. 1-3).

The Court of Appeal substituted a custodial sentence of 24 months’ imprisonment. The Court found that the reasons as a whole do not take into account the inherent wrongfulness of the conduct, its highly morally blameworthy nature, and the extent of harm caused to C.M., the centrality that Friesen demands in sentencing. (Paras. 32, 50).

Crown’s Position:

Key Sentencing Principles

The Court reaffirmed that any sexual contact with a child constitutes a wrongful act of physical and psychological violence: para. 21.

The Court underscored that denunciation and deterrence are the primary sentencing objectives in such cases (paras. 25–28). Sentences must reflect the wrongfulness and harmfulness of sexual offences against children and the far-reaching, ongoing harm caused to victims, their families, and society (para. 17, citing para. 5 of Friesen).

The Court in T.J. emphasized that, consistent with Friesen, mid single-digit penitentiary terms are normal for sexual offences against children, and upper single-digit sentences are not unusual in more aggravated cases (para. 30, citing para. 114 of Friesen).

Errors of the Trial Judge

The Court of Appeal found that the trial judge undervalued the gravity of the offence and placed excessive weight on the offender’s personal circumstances (paras. 32–41).

The trial judge gave only brief attention to the harm suffered by the child and failed to consider the continuing harm likely to result from the offence (para. 35). Instead, he emphasized the hardship that a custodial sentence would impose on the offender, which improperly minimized the seriousness of the crime.

Similarly, at para. 37, the Court clarified that while personal circumstances and prospects for rehabilitation may be relevant, they cannot take precedence over denunciation and deterrence.

viii. R. v. D.W., 2023 ONCJ 363- Post-Friesen:

The accused pleaded guilty to one count of sexual exploitation for offences that occurred between 1988 and 1990. At the time of the offences, the maximum sentence under the Criminal Code for sexual exploitation was five years’ imprisonment (paras. 1–2).

Since then, Parliament has increased the maximum penalty for sexual exploitation to fourteen years’ imprisonment, reflecting a significant shift in how Canadian society and the courts understand the gravity and harmfulness of sexual violence, particularly against children and other vulnerable persons.

Pursuant to s. 11(i) of the Canadian Charter of Rights and Freedoms, D.W. could only be sentenced under the maximum sentence in effect at the time of the offence, not the current higher maximum. The Crown sought a sentence of four to five years, while the defence submitted that a sentence of 18 months to two years less a day would be appropriate (para. 42).

At para. 44, the trial judge emphasized that, when applying the principle of proportionality, sentencing courts must consider the current understanding of the gravity and impact of sexual violence. Even when dealing with historical offences, courts should recognize the evolution in society’s awareness of the harm caused by sexual exploitation.

Crown Position:

This approach aligns with the principle articulated in R. v. Sheppard. Historical offences must be sentenced in light of contemporary understandings of their seriousness, while still respecting the statutory limits that applied at the time the offences were committed.

ix. R. v. Wright,2024 ONCA 516 (Affirming R. v. D.W.) – Post-Friesen:

On appeal, the Court of Appeal in R. v. Wright upheld the three-and-a-half-year sentence imposed in D.W., finding it neither unfit nor overly harsh (para. 6).

The appellant argued that it was unfair for the trial judge to rely on contemporary sentencing ranges for an offence committed decades earlier (para. 8). The Court rejected this argument, confirming that while the statutory maximum at the time must be respected, the sentencing analysis must reflect modern understandings of sexual offending (paras. 9, 11). The Court held that the trial judge made no error in relying on Friesen when sentencing a historical sexual offence involving a vulnerable child (para. 7).

Crown’s Position:

At para. 10, the Court confirmed that trial judges are required to apply modern sentencing principles, including those articulated in Friesen, even when the underlying offence is historical.

x. R. v. Dimmick,2015 ONCA 402 - Pre-Friesen:

Facts/Summary:

The Court of Appeal for Ontario upheld a seven-year sentence imposed after the accused was convicted of numerous historical sexual offences. Following a judge-alone trial, the appellant was convicted on 14 counts of indecent assault involving four complainants, and two counts of buggery relating to two of those complainants (para. 2).

The offences occurred between 1968 and 1978, during which the appellant was a friend of the victims’ family and served as a hockey coach to some of the boys. The appellant developed a close relationship with the family, frequently visited their home, and took the boys on week-long camping trips in two successive years (para. 3).

The sexual assaults involved repeated acts of fondling, oral sex, and anal intercourse committed over an extended period of time and against multiple victims. The Court found that a seven-year penitentiary sentence for these repeated assaults was not outside the appropriate range and was fit in the circumstances (para. 10).

Crown’s Position:

Although the trial judge considered the offender’s advanced age, the Court of Appeal agreed that no “senior’s discount” was warranted. Age, without evidence of infirmity or inability to serve a sentence, does not justify a reduction in penalty for serious sexual offences.

xi. R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.) - Pre-Friesen:

Facts:

The Court of Appeal upheld a sentence of six and a half years’ imprisonment for an adult offender who had sexually abused a child over a seven-year period. The abuse began in 1990, when the offender was 25 years old, and continued until 1997, when he was 32 (para. 6). The offender was in a position of trust in relation to the victim (para. 7).

Crown’s Position:

The Court addresses what the appropriate sentencing range for adult offenders who prey on children to satisfy deviant sexual desires should be (para. 1). It emphasized that offences of this nature cause profound and lasting harm to child victims and warrant strong denunciation and deterrence (paras. 34–38, 44–46).

The Court reiterated key sentencing principles applicable to cases involving child sexual abuse. Adult predators who exploit and violate children must face significant penitentiary terms; leniency is inconsistent with the gravity of such crimes and the vulnerability of the victims. The Court underscored society’s obligation to protect children and to condemn, through meaningful punishment, those who abuse positions of trust to commit sexual offences against them.

xii. R. v. B.R., 2023 ONSC 3380: - Post-Friesen:

B.R. was convicted after trial of sexual assault against a 15-year-old former student. Although B.R. was employed at a different school at the time of the offence, he maintained contact with the complainant. The sexual contact involved B.R. touching and rubbing the student’s thigh for approximately 10 to 20 minutes while they sat together on his couch. He commented on how much he liked her thighs, massaged her back and shoulders, and kissed the back of her neck (paras. 3–6).

The defence sought a CSO, relying on B.R.’s extensive community support, his prospects for rehabilitation, and the fact that the sexual assault did not involve penetration (para. 9). The Crown sought a sentence of three years’ imprisonment but acknowledged that a sentence of two years, followed by three years’ probation, could also be appropriate (para. 8).

Crown’s Position:

The court identified several statutory aggravating factors: the complainant, M.L., was under 18 years old; B.R. abused his position of trust; the offence had a significant impact on the complainant; and he had engaged in grooming behaviour (paras. 20–22). The court noted that B.R.’s strong reputation and community standing were both mitigating and aggravating. On one hand, he was a respected teacher with strong family and community support, a young son for whom he was a caregiver, and elderly parents under his care. On the other hand, his reputation and position in the community were the very tools that enabled the offence (para. 25).

While the court recognized B.R.’s strong potential for rehabilitation, it concluded that a CSO would not adequately satisfy the sentencing objectives of denunciation and deterrence in a case involving a teacher sexually exploiting a student (para. 37). B.R. was sentenced to 18 months in custody, followed by three years of probation (para. 39).

Ms. Baxter is most analogous to the offender in R. v. B.R. In B.R., the court noted that prior good character has limited significance when sentencing someone for a sexual offence, because an offender’s background and reputation often help enable the commission of the offence (para. 19). Like Ms. Baxter, the offender in B.R. was a teacher with accolades from colleagues and family for being pro-social, but the court found this irrelevant to mitigating the sentence. For Ms. Baxter, her role as a teacher—not her pro-social character—enabled the offences, representing a clear breach of trust and abuse of power over the students.

xiii. R. v. B.R., 2024 ONCA 424 - Post-Friesen:

Summary:

For facts, see R. v. B.R., 2023 ONSC 3380 above. The Court of Appeal for Ontario upheld B.R.’s sentence of 18 months in custody, followed by three years of probation, finding no errors in the trial judge’s reasoning. The Court confirmed that it was appropriate to treat the offender’s good character as both an aggravating and mitigating factor, depending on the circumstances. (Paras. 19-20).

Crown’s Position:

At para. 19, the Court of Appeal reiterated the principle that prior good character carries limited weight in sexual offence cases because an offender’s background and reputation often facilitate the commission of the crime. The court cited R. v. M.V., 2023 ONCA 724, 169 O.R. (3d) 321 (C.A.), at para. 69, and R. v. Drabinsky, 2011 ONCA 582, 107 O.R. (3d) 595 (C.A.), to emphasize that an offender’s standing in the community can, in some contexts, be “the tools by which they commit” their offences.

xiv. R. v. Denis Guindon, 2020 ONSC 6065 – Post-Friesen:

Facts:

Mr. Guindon, who was 69 years old at the time of sentencing, was convicted of historical sexual offences against two boys over whom he held a position of authority. The offences included indecent assault, sexual assault, and buggery, contrary to the Criminal Code. The two complainants had been placed in the care of the Guindon family as foster children.

At the time of sentencing, Mr. Guindon had been married for over 30 years, had an adult daughter, and was a grandfather. He also had the support of his family.

Crown’s Position:

The court noted at para. 52 that advanced age is not a mitigating factor. With respect to the accused’s health issues, the court found no evidence to suggest that these conditions could not be managed in custody. The judge emphasized that while compassion is a relevant consideration, it must be balanced against the seriousness of the offences. In this case, the seriousness of the crimes weighed more heavily (para. 53).

The mitigating factors included Mr. Guindon’s supportive family and lack of a prior criminal record (para. 31). The aggravating factors were significant: the attempted anal penetration of a child, his position of trust as a foster parent, the grooming of the complainants, and the threats made to prevent disclosure of the abuse. Mr. Guindon was sentenced to a global sentence of seven years’ imprisonment (para. 61).

b) Defence Cases

69The following are the cases relied on by the Defence including, where relevant, a summary of each case, the facts in the case and the positions of counsel:

i. R. v. Simailak, 2022 NUCJ 39 - Post-Friesen:

Facts:

The court sentenced a 70-year-old offender for a historical sexual assault that occurred approximately 46 years earlier, in 1973. The victim was a 14-year-old Indigenous girl working at a radio station managed by the accused, then 21. (Paras. 1-5)

Despite the severity of the offence and the lasting harm described in the Victim Impact Statement, the trial judge imposed a suspended sentence, recognizing the case’s unique circumstances, considering Gladue factors, and taking into account the small, close-knit nature of the community where everyone knew the offender. (Paras. 13, 21-22, 47, 50)

Defence Position:

While recognizing that Simailak was a “singular case,” the defence argues that Ms. Baxter is similarly exceptional. The Simailak decision emphasizes that sentencing is individualized, granting judges broad discretion to balance aggravating and mitigating factors to reach a fit sentence.

The court noted that sexual assault convictions—particularly involving child victims—generally warrant significant custodial sentences to reflect denunciation and general deterrence (para. 37). It also stated that the mere passage of time between offence and conviction is not automatically mitigating, and that courts of appeal often recognize custodial starting points of around three years for major sexual assaults, with higher ranges for child victims. Nonetheless, the court reaffirmed that sentencing remains a nuanced exercise requiring careful consideration of all relevant factors.

Ms. Baxter’s situation parallels Simailak in terms of age, elapsed time since the offences, and sustained community engagement. Ms. Baxter, now 88, lives in Burlington with her 89-year-old husband, to whom she has been married since 1960. They have lived in the same home since 1963 and have one adult daughter, aged 57, who is supportive. Ms. Baxter maintains strong community ties, including family, friends, and long-standing involvement in local sports, volunteering, political engagement, and the Women Teachers Association, establishing her as a pillar in her community.

The defence acknowledged that unlike Mr. Simailak, Ms. Baxter lacks significant Gladue factors, however, she arguably presents additional mitigating considerations, including her advanced age—18 years older than Mr. Simailak—and potentially stronger evidence of lifelong community contribution and rehabilitation.

The Defence further referred to commentary from Clayton Ruby’s Sentencing (10th ed.), cited in Simailak, which recognizes that an offender’s advanced age—particularly beyond seventy—may serve as a mitigating factor, especially when paired with evidence of good character. Public shame and reputational harm arising from conviction can have a significant denunciatory impact, particularly for offenders of previous good standing, justifying a reduced custodial sentence. The defence argued that these principles applied to Ms. Baxter, emphasizing that this is not a “senior discount” but rather a legitimate mitigating factor acknowledging that imprisonment has a disproportionately harsh impact on elderly offenders.

Crown Position:

This case involved one count and one victim making it different from the case at hand. The offender was 21 years old at the time of the offence, making him significantly younger than Ms. Baxter at the time of her offences. The sentencing of Mr. Simailak relied heavily on Gladue factors, as the accused had attended residential school, and the context of a small community where the fact that everyone knew the offender was emphasized. There was no breach of trust, authority, or power; the Crown’s suggestion otherwise was explicitly rejected by the court: at para. 42. The offender was considered a young, first-time offender. In contrast, Ms. Baxter, though a first-time offender, was not young when she committed her offences—she was an established teacher, married, and had a daughter. There is also no discussion of Friesen in the decision.

ii. R. v. R.C., 2022 ONCA 389 – Post-Friesen:

Facts:

The offender was convicted of indecent assault for conduct that took place about 50 years earlier involving a 12-13-year-old family friend. She was staying with the accused and during that time, he and his brother had entered the victim’s room and forced her to perform oral sex on them. (Para. 5)

At the time of sentencing, the offender was 73 years old. The court imposed a nine-month custodial sentence followed by twelve months of probation, rejecting the defence’s request for a CSO (Para. 1). The degree of physical interference, including sexual touching and oral sex, was treated as a significant aggravating factor, justifying a custodial term despite the offender’s age and the historical nature of the offence. The sentence was upheld on appeal (Para. 4).

Defence Position:

Although a CSO was not imposed, the length for this singular event involving a family member and a group sexual assault was a nine-month custodial sentence and 12 months probation.

Crown Position:

This case involved a single victim and a single incident. The offender pled guilty, and the court did not find a breach of trust. COVID-19-related circumstances were considered. Although the accused had engaged in counselling and had some pro-social activities, the court held that a CSO was not appropriate, even taking the offender’s age into account.

iii. R. v. A.C.,2012 ONCA 608; R. v. A.C., 2011 ONSC 4389 – Pre-Friesen:

Facts:

A.C., 37 years old, was found guilty of one count of sexually assaulting the complainant between April 1, 2000 and August 13, 2001. A.C. was married to the complainant’s older sister. A.C. and his wife lived in the basement apartment of the complainant’s family home at the material time. The complainant’s bedroom was on the second floor of the home. Several events of sexual assault took place. In one encounter, the accused entered the complainant’s bedroom at night and assaulted her by touching under her shirt and attempting to kiss her, lying on top of her and placing his penis near her vagina. Other encounters involved similar behaviour. (Paras. 1-7). The trial judge imposed a CSO of two years less a day for sexual assault: para 41. The sentence was upheld on appeal (Para. 11).

Defence Position:

Although the case pre-dates Friesen, the court applied a Friesen-like analysis, considering factors such as the aggravating nature of the offences at the time they occurred, the lasting impact on the complainant, the prolonged period over which the offences took place, and the accused’s failure to seek counselling. On appeal, the Crown sought to overturn the CSO and impose a custodial term, but the trial judge’s approach was upheld, and the sentence was not varied.

Crown Position:

This case involved a single victim, whereas in the present matter, there are five victims. The case predates Friesen, so it does not fully reflect the updated principles regarding the gravity and harm of sexual offences against children.

iv. R. v. E.S.M., 2017 NSPC 56 – Pre-Friesen:

Facts:

The accused was convicted of two counts of indecent assault and one count of gross indecency for offences that occurred approximately 30 years earlier. The two complainants were his niece and nephew, who were between the ages of 7 and 9. The incidents involved varying degrees of sexual assault, including oral sex and masturbating in front of the complainants. (Paras. 2-4). The case resolved with a guilty plea on a joint recommendation, resulting in a global sentence of 90 days intermittent for all counts. (Paras. 21, 25)

Defence Position:

This case demonstrates the low end of where historical sexual offences can fall in terms of sentencing.

Crown Position:

This case involved a guilty plea based on a joint recommendation. It was an exceptional case where the Crown explained why it would have been difficult to get a conviction and provided reasoning as to why they agreed to a joint submission (Para. 16). The offender had undergone counselling for forensic sexual behaviours, which Ms. Baxter has not. The case is of limited assistance for sentencing guidance in the present matter.

v. R. v. F.C.,2016 ONSC 6059 – Pre-Friesen:

Facts:

The accused, an 87-year-old, was sentenced to a 9-month custodial term for sexually assaulting his great-granddaughter, aged 4. (Para. 31)

M.M., the complainant, recounted two instances of sexual assault to her mother involving penetrative sexual acts and one instance where the accused invited the complainant to touch his penis. These offences took place while the accused and his wife were caring for their great-granddaughter during the daytime, while her parents were at work. The court found a significant breach of trust. (Paras. 11-15)

Defence Position:

While the offender’s advanced age was considered a mitigating factor, there were no additional mitigating circumstances comparable to those in other cases, such as significant community involvement or a pro-social lifestyle which Ms. Baxter possesses.

Crown Position:

This pre-Friesen case involved a single victim. It can be referenced primarily for context, but its applicability to current sentencing standards is limited due to its pre-Friesen timing.

VI. MITIGATING FACTORS

70Ms. Baxter is 88 years of age with multiple health issues. I agree with the Crown’s submission that although jail will be challenging for Ms. Baxter, I have no evidence that imprisonment will harm her health or prevent her from receiving adequate medical care in custody.

71Considerable time has passed since the offences.

72Ms. Baxter has led a pro-social life with decades of community involvement.

73She has a supportive husband, daughter, family and friends.

VII. AGGRAVATING FACTORS

74Ms. Baxter was the complainants’ teacher; occupying a position of trust and authority over the children in her care. As set out in Friesen at paras. 125-126 and M.M., at para. 17, a breach of trust by an educator increases both the harm to victims and the moral gravity of the offence.

75There was a substantial age difference between Ms. Baxter and the child victims, which further exacerbates the misconduct. The children were vulnerable.

76The Victim Impact Statements reflect the profound, lasting and grievous impact of these offences.

77The offences happened over a period of time, with five victims.

VIII. PRINCIPLES OF SENTENCING

78In determining a just sentence, I must consider the purpose and principles of sentencing as set out in ss. 718, 718.1 and 718.2 of the Criminal Code. The sentence must denounce and deter the unlawful conduct. It must be proportionate to the gravity of the offence and the degree of responsibility of the offender. It must take into consideration any relevant aggravating or mitigating circumstances. It should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

79As set out in s. 718.2(d) “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.”

80Section 718.2(e) provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or the community, should be considered for all offenders…”

IX. ANALYSIS

81As set out in Sheppard, sentencing in historical sexual assault cases must be done in accordance with contemporary understandings of the harm caused by sexual violence against children. Historical sexual offences “are no less grave, and demand no less accountability, than ones committed today”: Sheppard, at para. 1. This is the framework with which I approach this sentencing. I apply Friesen and post-Friesen jurisprudence to this determination.

82Ms. Baxter was a teacher. The complainants her vulnerable students. They were not believed when they came forward as children. As set out in Sheppard, this underscores the need for denunciation and deterrence.

83I am basing my reasoning on the current understanding of the gravity of offences of this nature against children.

84A CSO is not appropriate in this case given the gravity of the offences (see M.M., P.R.J. and B.R.). The complainants were students, sexually assaulted by their teacher. This is not an exceptional case. While Ms. Baxter has medical issues and is elderly, there was no evidence before me that her issues could not be addressed in a correctional facility.

85A CSO would not adequately satisfy the sentencing objectives of denunciation and deterrence in a case involving a teacher (Ms. Baxter) exploiting five students.

86This case is distinguishable fromSimailak. In this case, there are no Gladue factors as there were in Simailak. The Simailak case also involved one count and one victim. The offender in Simailak was 21 years of age at the time of the offences, much younger than Ms. Baxter was when she committed the offences. There was also no breach of trust in Simailak.

87This case is also distinguishable from the Court of Appeal decision in A.C. The decision in A.C. predates Friesen. There was also only one complainant.

88As set out in Nygard, an individual cannot benefit from escaping justice for decades. This would be inconsistent with the principles of sentencing. There is no “senior discount”. I accept that any sentence imposed on an elderly offender should not surpass any reasonable estimation of their remaining lifespan. As in Nygard, Ms. Baxter, has most likely, statistically, already exceeded the average lifespan. I am also mindful that as set out in Nygard, sentences should not crush any hope of rehabilitation. The totality principle involves a balancing of all sentencing objectives, including denunciation, deterrence and rehabilitation.

89As set out in T.J., sexual contact with a child constitutes a wrongful act of physical and psychological violence. In this case five complainants, who were all children at the time, were impacted. Denunciation and deterrence are the primary sentencing objectives (paras. 25 – 28 T.J.) The Victim Impact Statements demonstrate the far-reaching and ongoing harm to the complainants caused by Ms. Baxter’s action (see para 17 of T.J.).

90Ms. Baxter was the victims’ teacher, occupying a position of trust and authority over them. As noted in Friesen and M.M., a breach of trust by an educator increases both the harm to victims and the moral gravity of the offences. The substantial age difference between Ms. Baxter and the child victims further exacerbates the misconduct. The victims were vulnerable. The offences were very serious. The offences related to S.M. involved ongoing sexual touching and an act of oral sex. The offence related to G.T. involved multiple incidents of sexual touching and an incident of ejaculation by the victim. The offence related to J.S. involved multiple incidents of sexual touching and an incident of ejaculation by the victim. The offence related to T.W. involved an incident of sexual touching. The offence related to M.B. involved an incident of sexual touching.

91I find that the Crown’s proposed starting point sentence, prior to applying the totality principle and other considerations, is appropriate. Mid single digit penitentiary terms are the norm for sexual offences against children (para. 30 of T.J., citing para. 114 of Friesen). The Crown’s position recognises the gravity of these offences, the wrongfulness of the conduct, the highly morally blameworthy nature of the conduct and the extreme harm caused to the complainants in this case. Similarly to the situation in the Court of Appeal’s decision in B.R., Ms. Baxter’s good character is both an aggravating and mitigating factor. Ms. Baxter has lived a pro-social life but it was her background and position as a teacher which enabled her to commit these offences. Ms. Baxter’s standing as a teacher in the community facilitated the commission of the offences.

92In my view, the case of R.C., relied on by the Defence, is also distinguishable. In R.C. there was a single complainant and a single incident. There was also a guilty plea. There was no breach of trust. COVID-19 related circumstances were considered.

93Further, in my view, the case of E.S.M., relied on by the Defence, is also distinguishable. E.S.M. was decided pre-Friesen. It also involved a guilty plea. There was a joint submission on sentencing and the Crown explained why it would have been difficult to get a conviction.

94The case of F.C., also relied on by the Defence, is also distinguishable. It was a pre-Friesen decision which involved one victim.

95After accepting the sentence proposed by the Crown, I have considered the principle of totality. I have considered how to balance the need for denunciation and deterrence with the recognition of Ms. Baxter’s advanced age and that an eight-year custodial sentence may well exceed her remaining years of life. This is not a “senior discount” but a recognition that rehabilitation is an aspect of sentencing and that there would be no reflection of rehabilitation if the total sentence exceeds her remaining life.

96I, therefore, sentence Ms. Baxter to a total custodial sentence of sixty-five months in custody, broken down as follows:

1. Count one – 25 months in custody;

2. Count two – 25 months in custody to be served concurrently with Count one;

3. Count three – 4 months in custody to be served consecutively;

4. Count five – 16 months in custody to be served consecutively;

5. Count six – 16 months in custody to be served consecutively;

6. Count seven – 4 months in custody to be served consecutively.

X. ANCILLARY ORDERS

97The Crown is requesting the following ancillary orders:

1. A D.N.A order;

2. A SOIRA order for life;

3. A s. 109 of the Criminal Code weapons prohibition, for life;

4. An order under s. 743.21 of the Criminal Code prohibiting Ms. Baxter from communicating, directly or indirectly, with any of the five complainants during the custodial period of sentence;

5. An order under s. 161(1)(a), (a.1), (b) and (c) of the Criminal Code for 10 years.

98The Defence took no issue with the ancillary orders requested by the Crown.

99When sentencing for historical conduct, a sentencing judge cannot always impose ancillary orders that constitute “punishment” if those orders were not possible at the time the offences were committed. The limitation is grounded in s. 11(i) of the Canadian Charter of Rights and Freedoms, which guarantees an accused the right to the benefit of the lesser punishment where the sentence changes between the offence date and the date of sentencing.

100The Supreme Court of Canada in R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 38, summarized the types of measures found to constitute punishment and those found not to constitute punishment:

[38] Numerous measures and sanctions have been assessed against the s. 11(i) concept of “punishment”. The following measures have been found to qualify as punishment: the timing of eligibility for parole (Liang v. Canada (Attorney General), 2014 BCCA 190, 355 B.C.A.C. 238, at paras. 27 and 43); pre‑sentence custody (R. v. S. (R.), 2015 ONCA 291, 333 C.R.R. (2d) 160, at para. 32); the conditions governing the “faint hope” regime (R. v. Simmonds, 2018 BCCA 205, 362 C.C.C. (3d) 215, at paras. 88‑89); Criminal Code driving prohibition orders (R. v. Wilson, 2011 ONSC 89, 225 C.R.R. (2d) 234, at para. 37); and weapons prohibition orders (Bent, at para. 71; see also R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R. 895, at para. 3 (although not a s. 11(i) case)). By contrast, the following sanctions have been found not to constitute s. 11(i) “punishment”: post‑conviction DNA databank orders (R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554, at paras. 64‑65); sex offender registration (or “SOIRA”) orders (see, for instance, R. v. Cross, 2006 NSCA 30, 241 N.S.R. (2d) 349, at para. 84); and provincial driving suspensions imposed in response to criminal convictions (Wilson, at para. 34). However, without commenting on their merits, I observe that these latter decisions were rendered prior to K.R.J.

101In Poulin, at para. 40, the Supreme Court of Canada confirms that the concept of punishment is broad and captures ancillary orders:

40As the cases outlined above reveal, “punishment” is a broad concept. It captures not only traditional prison sentences, but also ancillary orders and other statutory measures. The consequence of this is significant: in light of the meaning of “punishment”, s. 11(i) does not involve the simple comparison of two or more whole sentencing provisions. Rather, s. 11(i) requires that the applicable sentencing provisions be parsed into their various measures. Each type of measure must then be evaluated under the K.R.J. test for “punishment”. In this evaluation, attention must also be paid to whether the measure at issue has been found to constitute “punishment” under ss. 11(h) or 12 of the Charter, as “punishment should be defined consistently across ss. 11 and 12 of the Charter” (R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599, at para. 38).

102I, therefore, decline to make a weapons prohibitions order. This is consistent with the decision in R. v. Doiron (I.) et Gionet (S.), (1999) 1999 CanLII 32730 (NB CA), 220 N.B.R. (2d) 398 (C.A.). In that case the appellant made an argument that the s. 109 order should be quashed as s. 109 was not in effect at the time the offences were committed. The court agreed.

[103] I also decline to make the s. 161 order. In R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, the court concluded that a retrospective application of s. 161(c) to offences that occurred before the section came into effect, infringed the offender’s s.11(i) Charter rights and could not be saved by s. 1 of the Charter. Therefore, s. 161(c) cannot be applied retrospectively. This is also consistent with R. v. J.B., 2022 ONCA 214, at para. 59, wherein the Court agreed with the parties that a s.161(1)(c) order should be removed from the sentence imposed because the subsection cannot be applied to an offence that occurred before the section came into force.

104Further, in R. v. J.D., 2021 ONCA 376, 156 O.R. (3d) 126 (C.A.), leave to S.C.C. refused, [2021] S.C.C.A. No. 297, the Court set aside ancillary orders made under ss. 161 (1)(a) and (b) because these sections did not exist when the offences occurred. The court determined, with the Crown’s concession, that these orders amounted to punishment and their retroactive application violated s. 11(i) of the Charter. The Court also found that the infringement was not justified under s. 1 of the Charter.

105I, therefore, decline to order the s. 109 order requested by the Crown and the s. 161 order requested by the Crown and make all other ancillary orders.

XI. CONCLUSION

106I, therefore, sentence Ms. Baxter to a total custodial sentence of sixty-five months in custody, broken down as follows:

1. Count one – 25 months in custody;

2. Count two – 25 months in custody to be served concurrently with Count one;

3. Count three – 4 months in custody to be served consecutively;

4. Count five – 16 months in custody to be served consecutively;

5. Count six – 16 months in custody to be served consecutively;

6. Count seven – 4 months in custody to be served consecutively.

107I also make the following ancillary orders:

1. A D.N.A. order;

2. A SOIRA order for life;

3. An order under s. 743.21 of the Criminal Code prohibiting Ms. Baxter from communicating, directly or indirectly, with any of the five complainants during the custodial period of sentence.

Coats J.

Released: January 13, 2026

CITATION: R. v. Baxter, 2026 ONSC 231

COURT FILE NO.: CR-23-0065