SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. D.A.
BEFORE: Rees J.
COUNSEL: M. Soucy, for the Crown
J. Coulter, for D.A.
HEARD: April 23, 2026
Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code. These reasons have been anonymized and may be published.
Reasons for sentence
Overview
1For reasons reported at R. v. D.A., 2025 ONSC 6141, I found D.A. guilty of two counts of invitation to sexual touching, two counts of sexual interference, and two counts of sexual assault in relation to K.H.
2I will not repeat my findings in detail here. Briefly, D.A. was in an intimate relationship with K.H.’s mother, H.H., and living with them at the time of the offences. The abuse occurred multiple times during approximately two years while H.H. was at work and D.A. was supposed to be looking after K.H. On multiple occasions, D.A. anally penetrated K.H. with his penis and directed her to touch his penis and masturbate him. Although it was uncharged conduct, the Crown established beyond a reasonable doubt that D.A. took sexual photographs of K.H., and he also used his phone to put K.H. on a website with men who asked her to take off her shirt.
3Sentencing submissions were originally scheduled for February 6, 2026, but were adjourned because D.A. brought an application to reopen the trial. The application was ultimately dismissed and I heard sentencing submissions on April 23, 2026.
The parties’ positions
4The Crown seeks a global sentence of between 12 and 14 years. Because the victim, K.H., was under the age of 16 at the time of the offences, the maximum sentence under s. 271(a) of the Criminal Code, R.S.C. 1985, c. C-46, for sexual assault is 14 years.
5The defence argues that an appropriate global sentence is seven years (eight years accounting for time-served and mitigation).
The law
General principles of sentencing
6I am guided by the principles set out in ss. 718, 718.1 and 718.2 of the Criminal Code. Section 718 recognizes that “just sanctions” will have one or more of the objectives identified in subsections (a) to (f), including denunciation, general and specific deterrence, and rehabilitation. These objectives may not necessarily pull toward the same sentencing disposition. The sentencing process requires the sentencing judge to prioritize and blend the different objectives of sentencing to properly reflect the seriousness of the offence and the responsibility of the individual offender: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at paras. 58-59. The goal is a fair, fit and principled sanction. Proportionality is the organizing principle. Individualization is central to the proportionality assessment. The question is always whether the sentence reflects the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of each case: R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at paras. 10, 12; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37.
Sexual offences against children
7When dealing with offences against children, s. 718.01 requires the court to give primary consideration to the objectives of denunciation and deterrence. Nevertheless, rehabilitation remains a consideration.
8In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court set out principles that are relevant to the circumstances of this case. In what follows, I draw extensively from the Court’s reasons in Friesen.
9To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that these offences cause. The legislative scheme of sexual offences against children primarily protects the interests of personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. This requires courts to focus their attention on emotional and psychological harm, not simply physical harm: Friesen, at para. 56.
10It must be recognized that sexual violence also has a disproportionate impact on girls and young women and that children who belong to groups that are marginalized are at a heightened risk of sexual violence that can perpetuate the disadvantage they already face: Friesen, at paras. 68, 70.
11In addition, the Criminal Code recognizes that the harm flowing from an offence is not limited to the direct victim against whom the offence was committed. Instead, the Criminal Code provides that parents, caregivers, and family members of a sexually victimized child may be victims “in their own right”: Friesen, at para. 62.
12Courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence. The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender: Friesen, at para. 75.
13Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities: Friesen, at para. 76.
14Specifically, courts must recognize and give effect to: (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences: Friesen, at para. 76.
15Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to. For sexual offences against children, offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child: Friesen, at para. 88.
16Nevertheless, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. In addition, the personal circumstances of offenders can have a mitigating effect: Friesen, at para. 91.
17Ultimately, I must consider what an appropriate sentence is looking at D.A.’s specific circumstances and the specific circumstances of the offences he committed against K.H., while balancing the mitigating factors against the aggravating factors.
Analysis
D.A.’s personal history and circumstances
18D.A. is 27. He was born in Ottawa and raised in Ottawa, Alfred, and St. Isidore. He and his family returned to Ottawa when he was around 18. He is the eldest of three children, and he also has a half-brother on this father’s side. D.A. was raised in subsidized housing. His parents had limited resources. During his childhood, his mother had significant health issues and was on disability support, and his father was a handyman but had periods of unemployment. His childhood was generally positive and free of neglect. Although his parents occasionally used spanking as discipline, D.A. does not characterize it as abusive. There is no evidence before me that D.A. was sexually abused as a child. CAS was involved with his family, but neither he nor his siblings were removed from the home. His parents separated a few years after he turned 18.
19D.A. was struck by a SUV when he was eight and sustained serious injuries. He continues to struggle with pain related to the accident, including chronic back pain and leg pain, particularly on days when he has been very active. There is no evidence, however, that this childhood injury contributed to his offending.
20D.A. was in a relationship with a woman he met in high school. They had a son together when he was 19. Their relationship ended when their son was still an infant. D.A. has not had contact with this son for several years.
21After his parents’ separation, D.A. moved frequently and experienced a period of being unhoused. He and his father were unable to secure adequate housing and so they each purchased a tent and lived outdoors for about a year, until they were able to find housing.
22At the time of the offences, D.A. was 21 to 23 years old. He met H.H. through social media and moved into her apartment at the start of the pandemic lockdown in March 2020.
23Since the fall of 2024, D.A. has been in a relationship with his current intimate partner. They are engaged but have never cohabited. D.A. and his current partner recently had a daughter. His current partner also has a young daughter from a previous relationship.
24Although D.A. has not received a mental health diagnosis, he struggles with anxiety and panic attacks. He has experienced depression and has intermittently thought of suicide since he was young.
Education and employment
25D.A. finished grade 11, leaving school following the birth of his son. He has a limited work history. After his son was born, he secured employment for a couple of months with a home-care business. He also worked at a garage for three to four months. He did not have employment during his relationship with H.H., although I note that a portion of this period was during the pandemic. He is currently unemployed and receives Ontario Works benefits.
Substance use
26D.A. began consuming alcohol at the age of 14 with friends. His alcohol use was infrequent throughout his teenage years and early twenties. He started using marijuana when he was eight or nine years old. His use increased over time. He has used marijuana daily since the age of 14. He experimented with cocaine three or four times as a teenager.
27After his arrest, D.A. began drinking regularly and using crack cocaine a few times a week. This continued for about a year, until the substance use began to make him feel unwell. He stopped using crack cocaine and significantly reduced his alcohol consumption. He reported to the PSR writer that he currently drinks a few times a year and continues to use marijuana daily.
Indigeneity
28D.A. identifies as Indigenous. While I did not have a Gladue report as such, the PSR was prepared with a particular focus on Gladue principles: R. v. Gladue, [1999] 1 S.C.R. 688. D.A.’s father advised the PSR writer that his background may include Métis, Ojibway, Blackfoot, and Mi’kmaq ancestry. D.A. was introduced to Indigenous cultural activities in high school and became interested in his background. He and his family began attending powwows. He has become increasingly interested in exploring Indigenous cultural and spiritual practices. D.A.’s father was not raised on a reserve, nor did he attend residential school. Nor is D.A.’s father aware of any member of his family having been raised on a reserve or attending residential school.
29The defence did not argue that D.A.’s Indigenous background or the effects of colonialism contributed to D.A.’s commission of the offences. While one can generalize about the impact of colonialism on all Indigenous people, Gladue is intended to redress the consequences of colonialism, particularly the impact of residential schools. Although D.A. does not bear the onus of establishing a causal link between systemic and background factors and the commission of the offences, for an offender’s Indigenous background to influence their ultimate sentence, the systemic and background factors affecting Indigenous people must have impacted the offender’s life in a way that bears on moral blameworthiness or indicates which types of sentencing objectives should be prioritized in the offender’s case: R. v. J.N., 2013 ONCA 251, 305 O.A.C. 175, at paras. 46-48; R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, at para. 40; R. v. Bourdon, 2024 ONCA 8, 95 C.R. (7th) 219, at para. 26; and R. v. Robson, 2024 ONCA 817, at paras. 9-10.
30Here, the evidence that D.A.’s ancestry played a role in his offending is weak. Based on the record, I find that it had little to no impact on D.A.’s moral blameworthiness. D.A.’s ancestry also provides me with little assistance in determining which types of sanctions may be appropriate to effectively achieve the objectives of sentencing.
31Further, the defence acknowledged that the impact of D.A.’s Indigenous identity on crafting a fit sentence is attenuated given the gravity of the sexual offences in this case: Gladue, at paras. 33, 78-79.
Aggravating factors
32Several aggravating factors are present in this case.
33First, K.H. was a young child when D.A. committed these offences. She was between six and eight years old. K.H.’s young age is “a significant aggravating factor”: Friesen, at para. 134. It is also a statutory aggravating factor: s. 718.2(a)(ii.1). This is because of the power imbalance between children, particularly younger children, and adults. D.A. was meant to be looking after K.H. when he sexually abused her. Her mother was away from the home working. K.H. had a significant dependency on D.A. Moreover, given her young age, K.H. will have to endure the consequential harm of sexual violence for a significant period of time. The sexual violence D.A. inflicted on K.H. will have a significant impact on her because her personality and ability to recover is still developing. These factors are relevant to both the gravity of the offences and D.A.’s degree of responsibility.
34Second, D.A. abused K.H.’s and her mother’s trust. He sexually abused K.H. when he stood in the place of a parent. His primary responsibility was to look after K.H. when H.H. was at work. He was H.H.’s live-in intimate partner. H.H. and K.H. depended on D.A. He had a duty to protect and care for K.H. Instead, D.A. exploited K.H.’s vulnerability in her own home where she should have been safe and secure. The breach of trust is at the higher end of the spectrum. Abusing his position of trust increases D.A.’s degree of responsibility. It also increased the harm to K.H.
35Third, the impact on K.H. has been profound. K.H. recounts in her Victim Impact Statement that D.A. caused her to hate her mother and not trust her. D.A. also caused K.H. to hate herself. She has trouble sleeping and needs medication to sleep because she worries that something will happen and she thinks about what she went through. She also takes anti-anxiety medication. As a result of D.A.’s sexual abuse, she did not want to go to school. It has impacted her ability to learn at school. It has impacted her normal relationships. She describes how she has become emotionally overloaded when boys at school tried to be around her. She lives with flashbacks of the abuse. It made her want to end her life. She started to self-harm. She required medical care.
36K.H. explained in her Victim Impact Statement that things are starting to get better, because she is learning to love herself and trust again. She expressed optimism for the future. She hopes that she can share her story when she is older to help others. I raise this not to minimize the profound harm caused by D.A. but to recognize that K.H. shows remarkable courage and resilience in the face of suffering that no child ought to bear.
37D.A.’s offences have also been deeply harmful to H.H. They have harmed her mental health, undermined her ability to trust others, and caused her to lose her job because she needed to care for K.H. in the aftermath of D.A.’s offences. She and K.H. also had to leave their home because they could not bear to live where the offences took place. H.H. was not able to provide a home for K.H. for a period while she was on income support.
38Fourth, the duration and frequency of the abuse is an important aggravating factor. This was not an isolated incident of abuse. The harm was repeated and ongoing over a period of around two years. The duration and frequency of the sexual abuse significantly increased the harm to K.H. It also increases D.A.’s moral blameworthiness because additional harm to the victim is a reasonably foreseeable consequence of multiple assaults. The Supreme Court directed in Friesen that “sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime”: at para. 133.
39Fifth, the nature of the abuse is an aggravating factor. The degree of violation of K.H.’s bodily integrity was profound. On multiple occasions, D.A. anally penetrated K.H. and ejaculated into her anus or onto her anal region. In doing so, he caused K.H. pain. On multiple occasions, D.A. also directed her to touch his penis and masturbate him.
40Sixth, there are facts forming part of the circumstances of the offences that could constitute the basis for a separate charge. At trial, I found that the Crown had established beyond a reasonable doubt that D.A. used his phone to put K.H. on a website with older men who asked K.H. to take off her shirt. I also found beyond a reasonable doubt that D.A. took sexually explicit photos of K.H. He directed her to take off her clothes and to bend over.
41The Crown asks me to take this into account as an aggravating factor. The defence did not make submissions opposing the consideration of the uncharged conduct.
42Section 725(1) of the Criminal Code provides certain circumstances in which evidence of untried offences can be considered by a sentencing judge as aggravating factors. Under s. 725(1)(c), a sentencing judge may consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. A sentencing judge may resort to s. 725(1)(c) where an accused does not consent where:
a. the facts of the untried conduct could constitute a separate charge;
b. the facts have been proven beyond a reasonable doubt;
c. the facts are related to the offence before the court (i.e., there is a sufficient nexus or connexity); and
d. there is no unfairness to the accused: R. v. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762.
43Here, these criteria are met. The taking of sexually explicit photos could constitute a separate charge for making child pornography (as the offence was known at the time), contrary to s. 163.1(2). I found beyond a reasonable doubt that D.A. took sexually explicit photos of K.H. The facts were directly related to the offences before the court—they were part and parcel of D.A.’s sexual abuse of K.H. There was no unfairness to D.A. Although K.H. disclosed the facts for the first time on re-examination, the defence was afforded an opportunity to cross-examine on her evidence. The defence also relied on the evidence in closing submissions to argue that there was an inconsistency in K.H.’s evidence which undermined her credibility and reliability—a submission I rejected.
44The Crown submits that had the making child pornography formed a separate charge, it would have attracted a three-year consecutive sentence, but it is approached more holistically as an aggravating factor. The Crown argues that it calls for the imposition of the maximum sentence of 14 years for sexual assault under Count 6.
45Although I am not persuaded that this calls for the imposition of a maximum sentence, I agree that the making of child pornography is an aggravating factor, which must be considered holistically.
46Finally, the Crown argues that D.A.’s risk of reoffending is an aggravating factor. The Crown argues that the PSR demonstrates D.A.’s lack of insight because he refuses to take responsibility for his offending and his father and intimate partner reinforce the view that he is “innocent”. The Crown also argues that it is a red flag that D.A. formed a relationship with a woman who has a young daughter.
47I must treat D.A.’s continuing denial of guilt with care. It would be an error to consider D.A.’s denial of his guilt at trial as an aggravating factor. An accused person is entitled to maintain their innocence: R. v. Bradley, 2008 ONCA 179, 243 O.A.C. 363.
48That said, an absence of remorse is relevant in sentencing when considering rehabilitation and specific deterrence. An offender’s absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed and demonstrate a substantial likelihood of future dangerousness: R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.), at p. 205; R. v. B.P. (2004), 190 O.A.C. 354 (C.A.), at para. 2; R. v. Shah, 2017 ONCA 872, at para. 8; R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, at paras. 82-83; and Morris, at paras. 157, 159. Although a heightened risk of recidivism is relevant, it is not aggravating. It informs what sentencing objectives may require primacy.
49I return to this below when considering rehabilitation.
Mitigating factors
50First, D.A. has no criminal record. He is a youthful first-time offender. The objectives of individual deterrence and rehabilitation are normally paramount in sentencing first-time offenders. The principle of restraint requires a sentencing judge to consider all sanctions apart from incarceration and, where incarceration is required, make the sentence as short as possible and tailor it to the individual circumstances of the offender. Further, a first penitentiary sentence should be as short as possible: R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at p. 545, R. v. Desir, 2021 ONCA 486, at paras. 31, 41; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-33; and R. v. Borde (2003), 63 O.R. (3d) 417 (C.A.), at para. 36.
51The principle of restraint also requires me to consider rehabilitation: R. v. K.L., 2026 ONCA 300. That said, in serious crimes of violence, including sexual assault, rehabilitation alone is not the determinative factor; general deterrence and denunciation must be considered and gain prominence: Desir, at para. 41; Batisse, at para. 34; and R. v. Thurairajah, 2008 ONCA 91, 89 O.R. (3d) 99, at para. 41.
52D.A.’s refusal to take responsibility for his criminal conduct is relevant to his potential for rehabilitation. Although I do not have an expert assessment of D.A.’s risk of reoffending, there is some information in the PSR to assist me in assessing D.A.’s prospects of rehabilitation. He continues to deny responsibility for the offences after conviction, but he has expressed willingness to participate in counselling to address sexual behaviours.
53Contrary to the Crown’s argument, there is no evidence before me to support the contention that he entered into a new relationship to gain access to his current partner’s daughter. This would be speculation. As I will discuss below, however, this does not mean his partner’s daughter is not at risk.
54Although not an aggravating factor, I conclude that D.A.’s prospects for rehabilitation are limited. While his willingness to participate in counselling to address sexual behaviours offers some hope of treatment, his refusal to acknowledge—much less take responsibility for—his sexual offending does not bode well for his potential for rehabilitation, and it raises real concerns about the risk that he will reoffend: Morris, at para. 159. Also, given that his father and current partner continue to refuse to acknowledge his responsibility since his conviction, they would not assist in holding him accountable.
55Second, the defence argues that D.A. is prosocial. I have some difficulty with this. While D.A. has no criminal record, his personal history is such that he has not made a positive contribution to society or to those around him. I recognize he has a limited education, became a father at a young age, experienced housing instability and homelessness, and has few economic opportunities. Yet, there is no persuasive evidence that D.A. has been motivated to seek employment or otherwise contribute to society or towards others. Ultimately, this is a neutral factor.
56Third, I have considered familial dependence as a collateral consequence, even though it was not specifically raised by the defence: R. v. D.B., 2025 ONCA 577, 178 O.R. (3d) 214; R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110; R. v. Brown, 2025 ONCA 164; and R. v. Spencer (2004), 72 O.R. (3d) 47 (C.A.), leave to appeal refused, [2005] S.C.C.A. No. 4. D.A. has a son from a previous relationship and recently had a daughter with his current partner. There is no evidence before me that D.A. provides them with financial support. D.A. has not had contact with his son in the last few years. The record lacks the detail needed to establish that D.A.’s role within his family justifies a reduction in sentence: see Brown, at paras. 11–12. And given D.A. is being sentenced for sexual offences against a young female child, unsupervised parenting time with his daughter and unsupervised access to his partner’s daughter would be concerning. His ability to support his current partner as a co-parent is therefore attenuated. Overall, D.A.’s family circumstances do not pull significantly in favour of mitigation.
Presentence custody and restrictive bail conditions
57The defence argues that I should take into account the restrictive nature of D.A.’s bail conditions and the conditions of his detention while on remand.
58In accordance with R. v. Downes (2006), 79 O.R. (3d) 321 (C.A.), I have considered D.A.’s time on bail and the fact that he was under house arrest, except when he was in the presence of his surety or for medical emergencies, and was required to wear an ankle monitor. Although this was a significant restriction on his liberty, I note that its impact was not as severe as it could be in some circumstances. The PSR notes that D.A. “reported that he spends most of his day at home playing video games and smoking marijuana. He also noted that he speaks with his partner regularly and listens to music. He stated that his current house arrest conditions limit his ability to leave his residence; however, he acknowledged that his routine was largely the same prior to being placed on house arrest.” D.A. also formed a relationship with his current partner and fathered a child with her while on bail.
59Although I give some consideration to his stringent bail conditions, I find that the impact on D.A. has not been significant.
60For completeness, I also note that there is an outstanding charge for breaching his bail conditions. While unproven, there is some evidence, which the defence agrees is before me, that D.A. was not residing with his principal surety, as required by his release order. I make no finding in this regard.
61The defence argues that his sentence should take into account time served in presentence custody. I agree.
62In determining a sentence, a court may take into account any time spent in custody by the person as a result of the offence, but the court shall limit any credit for that time to a maximum of 1.5 days for each day spent in custody: see Criminal Code, ss. 719(3)-(3.1); R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 70. To ensure that an offender who spent time in pre-sentence custody does not serve longer in jail than an identical offender who was granted bail, a day of incarceration requires at least a credit of one day towards the sentence: Summers, at para. 21. Courts generally give enhanced credit to account for: (a) lost eligibility for early release and parole during pre-sentence custody, and (b) the relative harshness of the conditions in detention centres: Summers, at para. 70.
63The Summers credit is a deduction from what the court determines to be the appropriate sentence for the offence. The credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence that the offender has effectively served by virtue of the pre-sentence incarceration: R. v. Marshall, 2021 ONCA 344, at para. 51.
64D.A. has served two periods in pre-sentence custody. He was in custody between July 3 to October 24, 2023, which I calculate as 114 days. He was also in custody from February 21, 2026 to the present, which I calculate as 94 days. In total, he has served 208 days in pre-sentence custody. I credit this at a rate of 1:1.5, which is 312 days.
65The defence argues that I should consider the particularly difficult and punitive pre-sentence custody conditions in determining the appropriate sentence, in accordance with Marshall. D.A. has filed a Ministry of Solicitor General report indicating that he was “triple bunked”, that is housed with two other inmates in a cell, for a total of 23 days while in custody. Triple bunking means that at least one inmate must sleep on a mattress on the floor.
66He also experienced several lockdowns at the Ottawa Carleton Detention Centre, as follows:
All day – 8
Morning and afternoon – 1
Afternoon and evening – 4
Morning – 4
Afternoon – 7
Evening – 30
67Although D.A. has not provided me with specific evidence that these conditions were “particularly difficult and punitive” for him, I am satisfied that triple bunking and lockdowns make the conditions of presentence detention more difficult and have a negative impact on persons awaiting trial. While I do not assign a specific number of days of credit to these conditions, I have taken them into account in determining the appropriate sentence.
Parity: other cases
68Parity assists courts in determining a proportionate sentence. Courts must “calibrate the demands of proportionality by reference to the sentences imposed in other cases”: Parranto, at para. 11, citing Friesen, at para. 33.
69The defence has provided me with a chart of relevant cases. While I have considered them, I will not discuss them all. The defence relies on two in particular. First, the defence argues that R. v J.B., 2023 ONSC 1275, shares several characteristics with the present case. J.B. had been found guilty after a trial; stood in a position of trust towards the complainant; the complainant was young; there were multiple sexual assaults, including vaginal penetration; and the offender did not have a criminal record. J.B. was given an eight-year sentence.
70The defence also relies on R. v. B.M., 2023 ONCA 224, 166 O.R. (3d) 721, at paras. 36-49, in which the Court of Appeal held that a fit and proportionate sentence was seven years of incarceration less time served. Over several years, B.M. sexually abused two young people towards whom he was in a position of trust; he lived in their home while in an intimate relationship with the children’s father and was also the children’s religious teacher. The abuse included repeated anal and vaginal penetration. He pleaded guilty after a preliminary inquiry, but before trial. The Court found that the immigration and mental health consequences mitigated the sentence.
71The defence argues that D.A.’s sentence falls within the range of J.B. and B.M. As discussed, the defence argues that a fit global sentence is one of seven years (eight years, less Summers credit and after Downes and Marshall mitigation is added).
72The Crown relies on several cases. Again, while I have considered them, I will not discuss them all. The Crown placed significant weight on the recent sentencing appeal in R. v. B.F.-S., 2026 ONCA 88. I found this case particularly instructive. B.F.-S. sexually abused his stepson on a regular basis over three-and-a-half years, when the victim was between the ages of four and seven years old. B.F.-S. was in a position of trust towards his stepson. The abuse included anal penetration, touching the victim’s penis, inviting the victim to touch B.F.-S.’s penis, and making the victim perform oral sex on B.F.-S. The offender shared pictures of the victim performing sexual acts on him on the internet.
73B.F.-S. appealed a global sentence of 11 years and 3 months, less credit for pre-sentence custody, imposed on him for sexual interference, invitation to sexual touching, making child pornography, distributing child pornography, possession of child pornography, and two counts of failure to comply with a release order. The sentence included a nine-year concurrent sentence for sexual interference and invitation to sexual touching, and a consecutive sentence of 27 months for making child pornography (the latter included a nine-month deduction to account for harsh conditions of pre-sentence custody).
74The Court of Appeal upheld the sentence. It held that “[a]lthough the nine-year concurrent sentences for the sexual interference and invitation to sexual touching counts are at the high end of the range set in Friesen, the sentence is not unfit or inconsistent with the principle of parity”: at para. 11.
75Importantly, the sentence for sexual interference in B.F.-S. accounted for the offender’s guilty pleas, the fact that he had no prior criminal record, and his prospects for rehabilitation. Unlike B.F.-S., D.A. does not benefit from the mitigation of a guilty plea. Also, unlike B.F.-S., I must take into account the aggravating uncharged conduct of making child pornography when considering the appropriate sentence for sexual assault under Count 6. In B.F.-S., the making child pornography count attracted a consecutive sentence.
76On my review of the case law, including the authorities filed by the parties, there is a significant range of sentences imposed for sexual interference and sexual assault. A range only offers guidance as to what sentences have been imposed on similar offenders for similar offences in similar circumstances. I must also bear in mind that the Supreme Court provided an overall message that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”: Friesen, at para. 114.
The appropriate sentence
77Having regard to the circumstances of the offence and of D.A., the fit sentence is 11 years, less a year of presentence custody and mitigation under Downes and Marshall.
Ancillary orders
78As for ancillary orders, the Crown requested a DNA order, and a lifetime weapons ban, lifetime SOIRA order, and lifetime prohibitions under ss. 161(1)(a), (b) and (c). The defence did not initially oppose the lifetime SOIRA order because it was under the misapprehension that s. 490.013(5)(a) applied and mandated a lifetime order. The defence proposed prohibitions under ss. 161(1)(a), (b), (c), and (d), but subject to proposed exceptions that I address below.
79The parties initially made few submissions on the ancillary orders sought. In particular, lifetime orders represent significant additional restrictions which must be justified. I therefore invited further submissions on the ancillary orders when this matter returned for the imposition of sentence.
80On the return of this matter, the parties agreed that s. 490.013(3) applies to the duration of the SOIRA order. The defence position is that there is no evidentiary foundation for a lifetime SOIRA order and says it should be for a duration of 20 years. The Crown disagrees. The Crown argues that a lifetime order ought to be imposed based on the pattern of conduct in the offences themselves which demonstrate an increased risk to reoffend.
(a) SOIRA
81In R. v. Ndhlovu, 2022 SCC 38, [2022] 3 S.C.R. 52, the Supreme Court of Canada considered the constitutionality of the predecessor SOIRA orders scheme. It held that lifetime registration for more than one offence without an intervening offence is overbroad because there was no discretion to exempt offenders in these circumstances. Parliament has since responded to this decision by enacting a new scheme. For a general discussion of the evolution of the scheme see R. v. Eldon, 2025 ONCA 348.
82The imposition of the SOIRA order is mandatory in these circumstances: Criminal Code, s. 490.012(1). The only question is the duration of the order.
83As I read ss. 490.013(3), 490.013(4) and 490.013(2)(b), the mandatory SOIRA order should have a duration of 20 years in this case (as the maximum term of imprisonment for the designated offences committed by D.A. is 14 years), unless the Crown established that the requirements under 490.013(3) have been met. Section 490.013(3) provides that the SOIRA order applies for life if (a) in the same proceeding, the person has been convicted of, or a verdict of not criminally responsible on account of mental disorder is rendered for, two or more designated offences; and (b) the court is satisfied that those offences demonstrate, or form part of, a pattern of behaviour showing that the person presents an increased risk of reoffending by committing a crime of a sexual nature.
84Paragraph (a) is satisfied here, that is, D.A. has been convicted of two or more designated primary offences. The real issue is whether I am satisfied that those offences demonstrate, or form part of, a pattern of behaviour showing that D.A. presents an increased risk of reoffending by committing a crime of a sexual nature.
85There is little case law interpreting s. 490.013(3)(b). It was considered in R. v. K.E., 2024 ONSC 5581, at para. 61. In my view, the Crown must establish a pattern of behaviour showing that the person presents an increased risk of committing another sexual offence. The pattern of behaviour may be established either (i) through the designated offences in respect of which an offender is being sentenced, if the offences themselves establish the requisite pattern of behaviour, or (ii) by establishing that the designated offences in respect of which an offender is being sentenced form part of a broader pattern of behaviour.
86I echo Leach J.’s observations in K.E. that the designated offences for which an offender is being sentenced may be sufficient to satisfy the condition set forth in s. 490.013(3)(b). As he observed, “the wording of that subsection speaks not only to the possibility that the underlying designated offences will ‘form part of’ a pattern of behaviour in the sense required, but also to the possibility that they themselves ‘demonstrate’ such a pattern of behaviour”: at para. 61.
87That said, the court must be mindful that it is not simply a conviction for a designated offence which will satisfy the provision. This would be inconsistent with the constitutional finding in Ndhlovu. Rather, the Crown must establish the requisite pattern of behaviour showing the increased risk of committing a further sexual offence.
88Although I do not have expert evidence supporting a finding that D.A. is at a heightened risk of future sexual offending, I do not view such evidence as being a precondition for making a finding under s. 490.013(3)(b).
89When determining whether an offender poses an increased risk of reoffending within the meaning of s. 490.013(3)(b), the court is not confined to expert opinion evidence but may properly ground its assessment in the factual matrix underlying the conviction itself. While expert evidence may assist, it is not a prerequisite where the circumstances of the offence are sufficiently serious and revealing. Where the sexual abuse of a child is particularly serious, repeated, prolonged, and highly invasive, those collective features may themselves demonstrate a heightened risk of future sexual offending. This is especially so where the offender has neither accepted responsibility nor demonstrated any meaningful insight into the harm caused. In such cases, the gravity and pattern of the offending conduct itself can provide a sufficient basis to conclude that the offender poses a long-term, increased risk, justifying the imposition of a lifetime order. For an analogous analysis under s. 161, see R. v. Miller, 2017 NLCA 22, 354 C.C.C. (3d) 58.
90These are D.A.’s first convictions for any offence, including sexual offences. The convictions have been imposed for more than one sex offence without an intervening conviction. That said, I am satisfied that on the facts of this case, the Crown has established that D.A. is at increased risk of reoffending given his pattern of abuse of K.H. The evidence at trial established that D.A. exploited his position of trust to repeatedly sexually abuse K.H. over the course of around two years. The sexual abuse was not an isolated or single instance. It was a repeated, prolonged pattern of highly invasive sexual abuse of a young child. The designated offences themselves establish the pattern which shows that D.A. presents an increased risk of committing another sexual offence. This is particularly so given D.A.’s limited prospects of rehabilitation.
91Accordingly, I will impose a SOIRA order for life.
(b) Prohibitions to protect children
92The Crown seeks orders under ss. 161(1)(a), (b), and (c) for life. As discussed, the defence proposed prohibitions under ss. 161(1)(a), (b), (c), and (d), but subject to proposed exceptions. The defence opposes a lifetime duration for the orders, which it described as crushing given D.A.’s age and the fact that he has a young child from his current relationship and an older child from a previous relationship, who he will wish to reconnect with after he has served his custodial sentence. The defence proposes that the s. 161 orders be imposed for a duration similar to the range of sentence.
93The defence sought an exemption so that D.A. could have contact with his own biological children without supervision. The defence also sought an exception so that D.A. could attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community, while accompanied by a person 18 years or older, or at a school or daycare centre for the purpose of picking up or dropping off D.A.’s biological children from those facilities.
94Section 161 orders are not available as a matter of course. They can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk. The content of the order must carefully respond to an offender’s specific circumstances: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 48.
95As the British Columbia Court of Appeal explained in R. v. R.J.H., 2021 BCCA 54, 402 C.C.C. (3d) 568, at para. 19, leave to appeal refused, [2021] S.C.C.A. No. 109:
the scope and duration of the prohibition is informed primarily by the nature and extent of the risk, with emphasis on the risk factors particular to the offender and the pool of potential victims. The duration should also take into account the length of the sentence, the age of the offender upon release into the community, and the prospects for rehabilitation.
96The British Columbia Court of Appeal further held that the analytic approach in Friesen that focuses on the protection of children from sexual abuse should inform the s. 161 analysis: at paras. 20-21. I adopt this guidance here.
97D.A. sexually abused K.H. between the ages of around six to eight. Based on this, I am satisfied that D.A. poses a risk to children. I am also satisfied that the terms proposed by the Crown and the internet prohibition proposed by the defence are a reasonable attempt to minimize the risk.
98In tailoring the orders to D.A.’s specific circumstances, I have taken into account his increased risk of committing another sexual offence, which I have discussed under my analysis of the appropriate SOIRA order. I am also mindful that “an emphasis on the protection of children from wrongful exploitation and harm takes on increased importance the higher the risk of re-offence and the younger the victim”: R.J.H., at para. 21, citing Friesen at paras. 123, 134–135. After serving his penitentiary sentence, D.A. will still be a young man. Given my concerns about D.A.’s limited prospects of rehabilitation and increased risk of reoffending, a significant duration of the prohibition orders is necessary: R.J.H., at para. 41. I therefore impose the s. 161 orders for 15 years.
99Given the potential breadth and length of the impact on D.A.’s liberty under s. 161(1)(a), I order an exception to the s. 161(1)(a) order for when D.A. is with a person over the age of 18 years who he has personally informed of these convictions in writing in advance. An exception will be made to permit D.A. to attend at a school or daycare centre for the purpose of picking up or dropping off his own biological children, if he were permitted unsupervised contact with his children by the Children’s Aid Society under the exception that I have crafted under the s. 161(1)(c) order, which I address next. This manages the risk D.A. poses to children while proportionately limiting this liberty.
100I have also considered that D.A. has a biological son and infant daughter. It would be a significant additional restriction on his liberty if D.A. were not permitted to have any contact with them while they were under the age of 16. That said, I have particular concerns given his daughter’s young age. D.A. sexually abused K.H. when he stood in the place of a parent towards her. His biological daughter is therefore at increased risk and requires protection. I will, however, make an exception which is subject to CAS approval. CAS is currently involved with the family. D.A. is presently not permitted to have any contact with his partner’s daughter and he may only have contact with his biological daughter in public settings with his partner present to supervise the visits. I order an exception to the s. 161(1)(c) order in relation to his own biological children if approved by and subject to conditions made in writing by CAS in the jurisdiction the children reside. I direct the Crown provide a copy of these reasons to the CAS.
101Finally, I am satisfied given D.A. used his phone to put K.H. on a website with men who asked her to take off her shirt, that an order under s. 161(1)(d) ought to be made. I therefore make an order under s. 161(1)(d) prohibiting D.A. from using the Internet or any similar communication service to access any content that violates the law.
102Given D.A.’s limited means and the hardship it would impose on him, I waive the victim surcharge.
Disposition
103Under Count 6, I impose a sentence of 11 years, less a year of presentence custody and mitigation under Downes and Marshall. I impose six years concurrent for sexual assault under Count 3.
104I impose a sentence of two years concurrent for invitation to sexual touching under each of Counts 1 and 4. I impose concurrent sentences because the invitations to sexual touching and sexual assaults were essentially part of the same ongoing transaction.
105At the request of the Crown, I enter a conditional stay of Count 2 and Count 5 for sexual interference given their factual and legal nexus with Counts 3 and 6.
106I impose the following ancillary orders:
a. a DNA order, which I impose for Counts 1, 3, 4 and 6 as primary designated offences;
b. an order under s. 109 prohibiting D.A. for ten years from possessing a firearm, crossbow, restricted weapon, ammunition, and explosive device from the date D.A. is released; and an order prohibiting D.A. for life from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition;
c. an order that D.A. comply with the Sex Offender Information Registry Act for life, which I impose for Counts 1, 3, 4, and 6 as primary designated offences;
d. an order under s.161(1)(a) prohibiting D.A. for 15 years from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
i. EXCEPT with a person over the age of 18 years who D.A. has personally informed of these convictions in writing in advance;
ii. EXCEPT at a school or daycare centre for the purpose of picking up or dropping off D.A.’s biological children from those facilities;
e. an order under s. 161(1)(b) prohibiting D.A. for 15 years from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
f. an order under s. 161(1)(c) prohibiting D.A. for 15 years from having any contact — including communicating by any means — with a person who is under the age of 16 years,
i. EXCEPT in relation to his own biological children if approved by and subject to conditions made in writing by the Children’s Aid Society;
g. an order under s. 161(1)(d) prohibiting D.A. for 15 years from using the Internet or any similar communication service to access any content that violates the law.
h. an order under s. 743.21 prohibiting D.A. from communicating with K.H. and H.H.
Justice Owen Rees
Date: May 26, 2026