



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Stuckless, 2019 ONCA 504

DATE: 20190618

DOCKET: C62350

Rouleau, Pepall and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Gordon Stuckless

Respondent

Gregory Tweney and Philippe Cowle, for the appellant

Lydia Riva, for the respondent

Heard: November 27, 2018

On appeal from the sentence imposed by Justice Mara B. Greene
    of the Ontario Court of Justice on June 9, 2016, with reasons reported at 2016
    ONCJ 338.

Huscroft J.A.:

OVERVIEW

[1]

This is a horrific case of sexual abuse. The question on appeal is the
    fitness of the sentence.

[2]

Gordon Stuckless was convicted on 102 counts of sexual offences against
    18 young boys, abuse that was committed during a period of over 20 years. He pleaded
    guilty to 43 counts of indecent assault on a male; 47 counts of gross
    indecency; and 10 counts of sexual assault. He pleaded not guilty but was found
    guilty of 2 additional counts of gross indecency. He was found not guilty of 2
    counts of buggery.

[3]

The sentencing judge imposed a sentence of 6.5 years, less 6 months
    credit for the three years the respondent spent on restrictive bail. The resulting
    6-year sentence was imposed for each of the 102 counts concurrently.

[4]

The Crown seeks leave to appeal the sentence imposed by the sentencing
    judge.

[5]

I have concluded that the sentence imposed was demonstrably unfit. I
    would grant leave to appeal and allow the appeal for the reasons that follow.

BACKGROUND

[6]

Gordon Stuckless is a sexual predator. The magnitude of his offending is
    staggering. The harm that he has caused is incalculable.

[7]

Stuckless abused 18 young boys, most of them 9-11 years old, over a
    period of more than 20 years. He preyed upon boys who were vulnerable: boys
    raised by single parents; boys whose parents were busy working; boys who were
    in special programs at school. One of his victims was a relative of his.

[8]

He acquired a series of positions of trust in order to gain access to
    young boys, working as a teachers assistant, an assistant gym teacher, and at
    a community centre. He took on volunteer activities, coaching minor league
    hockey and lacrosse. He was also employed at Maple Leaf Gardens.

[9]

Stuckless groomed his victims, providing them with hockey sticks and
    sports memorabilia, promising to introduce them to Toronto Maple Leaf players,
    taking them to movies and hockey games, and so on, all with a view to gaining
    an opportunity to abuse them. He also used psychological and physical threats.
    He sexually abused the boys in cars, in the woods, at schools, at hockey rinks,
    in movie theatres, at a dental office, and at Maple Leaf Gardens. He abused
    some of the boys in their own homes while he was a guest of their families. He
    assaulted many of the victims numerous times over a period of several years.

[10]

Stuckless
    has an extensive record of similar behaviour. In 1998, he was sentenced to a
    term of 6 years imprisonment for offences committed against 24 boys. He has
    now been convicted of sexually abusing approximately 50 boys over a period of
    three decades, from 1965-1995.

[11]

At
    the outset of what was scheduled to be a lengthy preliminary inquiry in 2014, Stuckless
    re-elected to be tried in the Ontario Court of Justice and pleaded guilty to
    100 counts on the information. A trial was held on four remaining counts, in
    which two of the 18 victims testified. Stuckless was convicted of two counts of
    gross indecency in relation to digital penetration of two of his victims, M.S.
    and Lloyd Forde, but acquitted of two counts of buggery because the trial judge
    had a reasonable doubt whether the victims were penetrated by Stucklesss penis
    or his finger.

[12]

Many
    of the relevant facts were agreed upon, but a
Gardiner
hearing was
    held to determine aggravating factors in respect of five victims: the two victims
    who testified at trial and three other victims (S.K., K.P., and J.D.), all of
    whom testified.

THE SENTENCING JUDGES DECISION

[13]

The
    Crown initially proposed to make a dangerous offender application and the sentencing
    judge ordered an assessment pursuant to s. 752.1 of the
Criminal Code
,
    R.S.C. 1985, c. C-46. Dr. Mark Pearce expressed the opinion that, despite the
    results of actuarial risk assessment tools including the PCL-R, the SORAG, and
    the Static-99R, which predicted that the respondent was a moderate to high risk
    to reoffend, he considered the respondent a very low to low risk for future
    sexual offence.

[14]

The
    Crown chose not to proceed with the dangerous offender application and sought a
    global sentence of 12 years, imposed concurrently on each count. Stuckless
    sought a sentence of 5 years, less credit for the time spent on restrictive
    bail.

[15]

The
    sentencing judge acknowledged the overarching principle that the sentence
    imposed must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender. She noted, further, that although there are
    several objectives of sentencing, the case law has established that in
    sentencing child sex abusers, the focus must be on denunciation, deterrence,
    and protection of the public. The sentencing judge accepted that denunciation
    and deterrence demanded a lengthy period of incarceration in this case  in her
    words, they scream out for a lengthy sentence. However, based on Dr. Pearces
    opinion, which she accepted, she concluded that a lengthy period of
    incarceration was not necessary in order to protect the public.

[16]

The
    sentencing judge then assessed the aggravating and mitigating factors. The
    numerous aggravating factors included:

1)

The age of the victims;

2)

The respondents breach of trust;

3)

The significant and profound victim impact;

4)

The sexual abuse occurred in places that should
    have been safe havens for the victims;

5)

The respondent targeted vulnerable children and
    vulnerable families;

6)

The respondent threatened two of the victims;

7)

The respondents conduct was calculated,
    premeditated, and manipulative;

8)

The offences were invasive and escalated with
    some victims;

9)

The offences involved persistent, systematic,
    and prolonged abuse over three decades;

10)

There were numerous victims.

[17]

The
    sentencing judge found that Stucklesss decision to plead guilty to 100 counts
    was a meaningful mitigating factor. Although she rejected much of his evidence
    at trial and found him to be both unreliable and at times not credible, the sentencing
    judge accepted that he was truly remorseful for his conduct. In addition, she
    found that he was dedicated to his rehabilitation: he had lived in the
    community without incident since he completed a six-year sentence in 2001; continued
    to take the medication Lupron to control his sexual urges; and worked with a
    community-based organization that helped him to avoid re-offending. The sentencing
    judge also accepted that Stuckless had himself been a victim of sexual abuse in
    his youth, which she considered a relevant factor.

[18]

The
    sentencing judge considered the sentence she would have imposed for each offence
    per victim before assessing the impact of the principle of totality. She
    considered that 4 years was appropriate for offences involving forced digital
    penetration and prolonged sexual abuse; 3-4 years was appropriate for offences
    involving digital penetration or attempted digital penetration and a couple of
    other incidents of sexual assault; 2-3 years was appropriate for offences
    involving sexual touching in excess of 20 incidents per child; 2 years was
    appropriate for repeated offences involving sexual touching; and 1-2 years was
    appropriate for offences involving between one and six acts of fellatio on each
    victim. The sentencing judge concluded that if the sentences relating to each
    child victim were imposed consecutively, the result would be a sentence of more
    than 30 years, which she described as an excessive sentence outside the range.

[19]

The
    sentencing judge then addressed the Crowns submission that a 12-year sentence
    was appropriate. She considered that the facts in this case were not sufficiently
    different to justify a doubling of the sentence the respondent received from
    this court in 1998, charges to which he had also pleaded guilty:
R. v.
    Stuckless
(1998), 41 O.R. (3d) 103 (C.A.) (
Stuckless 1998
). She
    also considered that a 12-year sentence was not in accordance with the case law
    and would fail to take into account Stucklesss rehabilitation, his years of
    non-offending in the community, and his remorse.

[20]

The
    sentencing judge concluded that a 6.5-year sentence was appropriate. I set out
    her conclusion:

When I consider all the evidence presented through this
    extended sentencing hearing, the range of sentence recognized by the appellate
    courts and all the relevant principles of sentencing including the need to
    focus on denunciation and deterrence that [
sic
] a sentence of six and
    a half years ought to be imposed. This sentence takes into account the
    aggravating factors, the prolonged and persistent nature of the abuse, the vast
    number of victims, the profound impact on the victims, the prior sentence in
    1998 and Mr. Stuckless prospects for rehabilitationwhile also taking into
    account the fact that Mr. Stuckless has already served a six year sentence for
    offences in the same time frame, the fact that there are fewer victims in this
    case, that he has been in the community since 2001 without committing further
    offences and that he has been voluntarily taking Lupron.

[21]

The
    6.5-year sentence was reduced to six years to account for pre-trial credit.

DISCUSSION

The respondents crimes

[22]

I
    have described the respondents crimes in general terms. The generality of this
    description risks understating the magnitude and gravity of his offending, so
    it is necessary to outline in greater detail exactly what he did to each victim.
    The following details are taken from an agreed statement of fact, as well as the
    sentencing judges ruling on the
Gardiner
hearing. Two of the victims
    asked to be exempt from the publication ban under s. 486.4 of the
Criminal
    Code
, and their names are listed below.

[23]

T.J.
    was 11 years old when he met the respondent, who was working as an assistant
    gym teacher at his school. The respondent masturbated T.J., fondled his penis,
    attempted to perform oral sex on him, and masturbated to the point of
    ejaculation in front of him. The sentencing judge found that T.J. was digitally
    penetrated by the respondent. Throughout their interactions, the respondent
    promised to give T.J. Toronto Maple Leafs gear. He also threatened to tell
    T.J.s father that he had misbehaved if T.J. told anyone about the abuse. The sentencing
    judge found that this was a substantial threat because the respondent knew that
    T.J.s father had been abusive toward him.

[24]

K.P.
    was 13 years old when the respondent, who was working as an assistant gym
    teacher at his school, first assaulted him by grabbing his penis. K.P.s father
    was an alcoholic and the family struggled financially. The respondent arranged
    with K.P.s father to drive him to his hockey games, and proceeded to abuse
    K.P. 20-30 times over an 18-month period. The respondent would masturbate
    himself while rubbing KPs groin or watching his penis, or would make K.P.
    masturbate him. The respondent masturbated K.P. in the gym teachers locker
    room. The sentencing judge found that the respondent threatened to run K.P.
    over with a vehicle and make it look like an accident if he told anyone about
    the abuse. The respondent also groomed K.P. by taking him to the movies and
    giving him hockey sticks from NHL players, brand name clothing, and food.

[25]

R.C.
    was 11 or 12 years old when he met the respondent, who was the local hockey
    coach, at a hockey rink. The respondent groomed R.C. by providing him with
    access to Maple Leaf Gardens and promising to introduce him to his favourite
    hockey player. The respondent took R.C. to a secluded area and masturbated him
    on several occasions and required R.C. to masturbate him. The respondent took
    R.C. into a basement room at Maple Leaf Gardens on 6-10 occasions, and on each
    occasion R.C. would masturbate the respondent. The respondent told R.C. that if
    anyone found out, he would tell everyone that R.C. was a fag.

[26]

S.F.
    was 10 years old when the respondent befriended him and his family. The
    respondent was an overnight guest in S.F.s family home on a weekly basis. The
    respondent masturbated in front of S.F. several times daily and fondled S.F.s
    genitals. This occurred 25-75 times in the basement of S.F.s home, and
    additionally at movie theatres. The respondent also masturbated S.F. and
    performed fellatio on him on approximately 5 occasions.

[27]

J.D.
    was 11 years old when he was taken to a room at Maple Leaf Gardens by John Paul
    Roby, an usher at the Gardens and now a convicted pedophile. J.D. was forced to
    perform fellatio on the respondent, who ejaculated.

[28]

The
    respondent abused M.S. when he was 9-12 years old. The respondent masturbated
    M.S. on numerous occasions, masturbated himself while fondling M.S., and
    performed fellatio on M.S. The last incident of abuse involved anal
    penetration. The respondent denied charges of buggery and gross indecency and a
    trial was held, at which M.S. testified. The trial judge found that M.S.
    honestly believed that he had been penetrated by the respondents penis. M.S.
    screamed in pain and begged the respondent to stop, but he did not. The trial
    judge was left with a reasonable doubt on the count of buggery because M.S. did
    not see the object that penetrated him, but she found the respondent guilty of
    gross indecency.

[29]

K.D.
    was 13 years old when he met the respondent, who was then an assistant gym
    teacher at his school and coach of the school hockey team. The respondent
    befriended K.D. and his single mother, and as a regular visitor to the family
    home would masturbate K.D. after offering to tuck him and his brothers into
    bed. This happened on at least four occasions.

[30]

Donald
    Bond was only 8 years old when he met the respondent at a travelling carnival.
    He recalls telling his mother that the respondent had touched him and being
    very shaken up. Four years later, he saw the respondent at Maple Leaf Gardens
    on two occasions. The respondent followed him into a washroom and masturbated
    him, and did so again some months later after offering to drive him home.

[31]

P.S.
    was a 12-year-old student when the respondent, then an assistant gym teacher at
    his school, abused him on three occasions while he was getting changed in the
    change room. The respondent fondled his penis, attempted to perform fellatio on
    him on another occasion, and once performed fellatio on P.S. until he managed
    to escape.

[32]

C.B.
    was 12 years old when the respondent coached his hockey team. The respondent befriended
    him and his parents, and took C.B. to Maple Leaf Gardens and out for meals. On
    approximately seven occasions, the respondent took C.B. to a school where he
    masturbated him, performed fellatio on him, and would masturbate himself until
    he ejaculated into a Kleenex.

[33]

K.M.
    was 9 years old when the respondent was a teachers assistant at his school. The
    respondent was also his hockey coach. K.M. was in a class for students with
    behavioural problems and the respondent often would refuse to allow him to
    leave the class for recess, on the pretext that he had done something wrong.
    Each time this occurred, the respondent would masturbate K.M. On another
    occasion, K.M. was kept behind following a hockey game and the respondent put
    his hands on K.M.s knees and thighs while K.M. was in his underwear, but the
    assault stopped when the respondent was interrupted by the school principal.

[34]

S.M.
    was 11 years old when he was befriended by the respondent, who took him to
    wrestling matches, golfing, and to the movies. On numerous occasions, the
    respondent took S.M. to a dental office he cleaned, and there he licked S.M.s
    ears and armpits while he sat in a dental chair. He performed fellatio on S.M.
    until S.M. ejaculated, then masturbated himself until ejaculation. On several
    occasions the respondent did the same thing to S.M. at a home where he was
    house-sitting.

[35]

J.S.
    was 13 years old when the respondent was a teachers assistant in a special
    class he attended. The respondent threatened the students with the prospect of
    being held back. The sentencing judge found that the respondent stroked J.S.s
    penis, performed oral sex on him, and attempted to digitally penetrate his
    anus. This behavior was repeated on a second occasion.

[36]

G.P.
    (deceased) met the respondent when he was 12 years old. The respondent, who was
    the coach of his hockey team, befriended G.P. and took him to movies and hockey
    games at Maple Leaf Gardens. The respondent also befriended G.P.s parents. He
    was welcomed into the family home and was permitted to take G.P. for a
    sleepover at a neighbourhood farm. The respondent touched G.P.s penis and
    buttocks while he was in the hockey change room.

[37]

S.L.
    was 10 or 11 years old when he met the respondent, who was a teachers
    assistant at his school and coach of his minor hockey team. The respondent befriended
    S.L. and took him to Maple Leaf Gardens, to movie theatres, and fishing. He also
    befriended S.L.s parents and was welcomed into the family home. While they
    were in his car, the respondent grabbed S.L.s penis over his clothing. At the
    hockey arena change room, the respondent put his hand into S.L.s underpants to
    grab his penis.

[38]

B.B.
    was 10 years old when he met the respondent, who was a teachers assistant at
    his school. The respondent groomed him by taking him to hockey games at Maple
    Leaf Gardens and to the movies. The respondent was always touching and rubbing
    against B.B. and would grab his penis. The respondent masturbated B.B. at the
    movies, in the school change room, and on three occasions in a swimming pool at
    a private home.

[39]

S.K.
    was 10 years old and sometimes lived in a foster home. The respondent was a
    teachers assistant at his school, where S.K. was in a class for students with
    behavioural problems. On numerous occasions the respondent told S.K. that he
    had done something bad and was not allowed outside for recess. The respondent then
    masturbated S.K. and tried to push S.K.s hand towards the respondents penis. The
    respondent frequently promised to take S.K. to Maple Leaf Gardens and get a
    signed hockey stick for him, but would then refuse, telling S.K. that he would
    not do so because S.K. had been bad. On at least four occasions, the respondent
    took S.K. from his class to the boys washroom, where he masturbated him. The sentencing
    judge was left with reasonable doubt that the respondent had exercised a
    criminal degree of force to take S.K. to the washroom. The respondent also
    threatened to take S.K. to the principals office if he did not go with him to
    the washroom. S.K. testified at the
Gardiner
hearing that he felt as
    though he had to choose between getting in trouble and being sexually abused.

[40]

Lloyd
    Forde was abused by the respondent over a period of two years. The trial judge
    made no findings at the time of sentence as to how old he was, but he testified
    that he was 8-9 years of age. The respondent fondled him on multiple occasions
    and performed fellatio on him while masturbating himself. He denied charges of
    buggery and gross indecency and a trial was held, at which Forde testified. The
    trial judge found that the respondent penetrated Fordes anus and that Forde
    honestly believed that the respondent used his penis. He cried out in pain and
    asked the respondent to stop, but the respondent did not. The trial judge had a
    reasonable doubt on the count of buggery because Forde did not see the object
    that penetrated him, but she found the respondent guilty of gross indecency.

The impact of the respondents crimes

[41]

The
    impact of the respondents offending has been sustained and profound.

[42]

All
    of the victims suffered terribly at his hands. Virtually all of them met the
    respondent when he occupied a position of trust and that trust was shattered. Many
    of the boys stopped playing sports because of him, and hockey in particular 
    the game they loved, but a game the respondent had used as part of his grooming
    strategy. Many of the boys became withdrawn from family and friends and began
    using alcohol and drugs.

[43]

Some
    victims considered suicide. One victim died of a drug overdose in 2004.

[44]

Numerous
    victims have abused alcohol and drugs throughout their lives. Some went on to
    have criminal records. Many were beset by depression, anxiety, post-traumatic stress
    disorder, and/or other mental illness. Many have had difficulties establishing
    and maintaining relationships, both personal and professional, throughout their
    lives. Many have long been in therapy. Most report that they continue to be
    affected by the respondents offending, decades after the abuse they suffered.

[45]

The
    impact of the respondents crimes extends well beyond the boys to their
    families: to their parents, who expressed guilt about having failed to protect
    their children from the respondent, and having failed to see the signs of
    abuse; to their spouses, who have in many cases lived with troubled partners,
    unaware of their emotional turmoil; and to their children, with whom many of
    the victims have been unable to function well as fathers.

The positions of the parties

[46]

The
    Crown submits that the sentencing judge erred in applying the totality
    principle and that this error caused her to unreasonably discount the
    substantial sentence that ought to have been imposed. In particular, the Crown
    points out that the sentencing judge failed to apply the approach set out in
R.
    v. Jewell
(1995), 100 C.C.C. (3d) 270 (Ont. C.A.), which at the outset
    requires identifying the gravamen of the entirety of the offending behaviour,
    and likewise the total sentence to be imposed, before imposing sentences for
    each offence within the confines of that total. Instead, the sentencing judge
    decided on the appropriate sentence for each count and then adjusted the
    cumulative sentence in order to give effect to the totality principle.

[47]

The
    Crown also argues that the sentence was demonstrably unfit in any event: it is
    disproportionate to the gravity and scope of the respondents crimes and the
    extent of his moral blameworthiness; it is inconsistent with this courts
    emphasis on the need for exemplary sentences; and it erodes public confidence.
    The Crown submits that an appropriate global sentence is 10-12 years.

[48]

The
    respondent points out that the Crown did not argue that the total sentence
    should be apportioned amongst the various counts at trial. The Crown did not
    even mention
Jewell
or its progeny and cannot now do so on appeal. The
    respondent says that the sentencing judge made no error in law and
    characterizes the Crowns position as merely a disagreement as to the
    appropriate sentence.

[49]

The
    respondent argues that the sentence was fit and emphasizes that the sentencing judges
    decision is entitled to deference.

The standard of review

[50]

It
    is well established that judges sentencing decisions are entitled to deference
    on appeal. As the Supreme Court held in
R. v. Lacasse,
2015 SCC 64, [2015]
    3 S.C.R. 1089, at para. 11, except where a sentencing judge makes an error of
    law or an error in principle that has an impact on the sentence, an appellate
    court may not vary the sentence unless it is demonstrably unfit. Put another
    way, an appellate court can vary a sentence only if 1) it identifies an error
    of law or principle that affected the sentence imposed, or 2) regardless of any
    such error, the sentence imposed is demonstrably unfit.

[51]

The
    Supreme Court has emphasized that the appellate inquiry into the fitness of a
    sentence must remain focused on the fundamental principle of proportionality,
    noting at para. 53 of
Lacasse
:

This inquiry must be focused on the fundamental principle of
    proportionality stated in s. 718.1 of the
Criminal Code
, which
    provides that a sentence must be proportionate to the gravity of the offence
    and the degree of responsibility of the offender. A sentence will therefore be
    demonstrably unfit if it constitutes an unreasonable departure from this
    principle. Proportionality is determined both on an individual basis, that is,
    in relation to the accused him or herself and to the offence committed by the
    accused, and by comparison with sentences imposed for similar offences
    committed in similar circumstances. Individualization and parity of sentences
    must be reconciled for a sentence to be proportionate: s. 718.2(
a
) and
    (
b
) of the
Criminal Code
.

The sentence is demonstrably unfit

[52]

In
    my view, the 6.5-year sentence imposed is demonstrably unfit whether or not any
    errors or law or principle were made in determining it.

[53]

Once
    the sentencing judge found that consecutive sentences would result in a
    sentence of more than 30 years, her decision to reduce fix the appropriate
    sentence at 6.5 years was a reduction that is indeed startling, as the Crown
    submitted. A substantially higher sentence was required.

[54]

The
    ultimate question in determining whether a sentence is demonstrably unfit is
    whether it is an unreasonable departure from the fundamental principle of
    sentencing, that the sentence be proportionate to the gravity of the offence
    and the degree of responsibility of the offender:
Criminal Code
, s.
    718.1. As the Supreme Court explained at para. 53 of
Lacasse
,
    proportionality is determined on both individual and comparative bases: that
    is, in relation to the accused and the offence he or she has committed, and by
    comparison with sentences imposed in similar circumstances. Of course, the
    court also must consider the principles set out in s. 718.2 in determining a
    fit sentence, and the relative importance of these principles varies in
    accordance with the nature of the crime and the circumstances in which it was
    committed.

[55]

Moldaver
    J.A. set out this courts approach to sentencing in sexual abuse cases in
R.
    v. D.(D.)
(2002), 58 O.R. (3d) 788 (C.A.), which was decided after this
    courts decision in
Stuckless

1998
. He summarized the
    relevant considerations and principles from that case in
R. v. Woodward
,
    2011 ONCA 610, 107 O.R. (3d) 81, at para. 72:

(1)  Our
    children are our most valued and our most vulnerable assets.

(2)  We
    as a society owe it to our children to protect them from the harm caused by
    sexual predators.

(3)
     Throughout their formative years, children are very susceptible to being
    taken advantage of by adult sexual offenders and they make easy prey for such
    predators.

(4)
     Adult sexual predators recognize that children are particularly
    vulnerable and they exploit this weakness to achieve their selfish ends,
    heedless of the dire consequences that can and often do follow.

(5)
     Three such consequences are now well-recognized: (i) children often
    suffer immediate physical and psychological harm; (ii) children who have been
    sexually abused may never be able, as an adult, to form a loving, caring
    relationship with another adult; (iii) and children who have been sexually
    abused are prone to become abusers themselves when they reach adulthood.

(6)
     Absent exceptional circumstances, in the case of adult predators, the
    objectives of sentencing commonly referred to as denunciation, general and
    specific deterrence and the need to separate offenders from society must take
    precedence over the other recognized objectives of sentencing.

[56]

Moldaver
    J.A. emphasized that in sentencing adult sexual predators who have abused children,
    the focus of the sentencing hearing must be the harm caused to the child.
    Although the effect on an offenders prospects for rehabilitation is a relevant
    consideration, the
objectives of denunciation,
    deterrence, and the need to separate sexual predators from society for
    societys well-being and the well-being of our children must take precedence:
Woodward
,
at para. 76.

[57]

The
    sentencing judge began her analysis with the protection of the public and found
    that the respondent was at a low risk to re-offend. She went so far as to say
    that the protection of the public did not necessarily require a further period
    of incarceration. The sentencing judge then stated that the real focus had to
    be on the objectives of denunciation and deterrence.

[58]

Once
    the sentencing judge evaluated the individual sentences per victim that would
    have been appropriate, it is difficult to see how she could go on to conclude
    that a total sentence of 6.5 years was appropriate.

[59]

The
    sentencing judge made two points in this regard. First, she stated that the
    facts in the case at bar are not sufficiently different from the facts from Mr.
    Stuckless 1998 convictions to justify doubling the sentencing. Second, she
    stated that the 12-year sentence proposed by the Crown was not in accordance
    with the case law and failed to take into account Mr. Stuckless successful
    rehabilitation, his years of non-offending in the community and his remorse.

[60]

As
    to the respondents 1998 sentence, it is important to emphasize, as this court did
    in
D.(D.)
, not only that the sentence imposed in
Stuckless

1998
was at the lower end of the range of sentences then available but also that
    appropriate sentences for adults who prey on young children would be significantly
higher
in future, and that the sentencing
    objectives of denunciation and deterrence must take precedence over other valid
    sentencing objectives. Indeed,
D.(D.)
has been described as the
    beginning of a sea change in this courts approach to sentencing adults who
    prey on young children:
R. v. D.M.
, 2012 ONCA 520, 111 O.R. (3d) 721,
    at paras. 24-26; see also
Woodward
.

[61]

The
    circumstances of this case are unusual: the respondent is the same offender who
    was sentenced in
Stuckless 1998
, and his offences were committed
    during the same time frame in which he committed the offences in that case. Nevertheless,
    it was incumbent on the sentencing judge to impose a sentence with regard to
    the jurisprudence and understanding of sexual offending as it exists today. Previous
    sentencing decisions are historical portraits, not straitjackets:
Lacasse
,
    at para. 57. The sentencing judge appears to have overlooked the significant
    evolution in sentencing jurisprudence that has taken place since
Stuckless

1998
.

[62]

The
    sentencing judge also appears to have considered
D.(D.)
to establish a
    cap on the range of available sentences, given what she described as the additional
    aggravating factors at play in that case. Although there were significantly
    different aggravating factors in
D.(D.)
,

I do not agree that
    there were necessarily more aggravating factors in that case. But in any event,
    it is important to note that
D.(D.)
was an appeal from sentence by the
    accused. There was no Crown cross-appeal and Moldaver J.A. specifically
    cautioned that, far from being too high, if anything the sentence imposed at trial
    in that case fell at the lower end of the appropriate range: at para. 4. Thus,
    while
D.(D.)
articulates the relevant principles for sentencing adults
    who prey on children, it was not intended to and does not operate as a cap on
    sentences.

[63]

The
    Crown has proffered several cases that it says are relevant in determining the
    appropriate total sentence in this case. The authorities range from sentences
    of comparable length imposed in cases with far fewer victims (for example, 6
    years in
R. v.

C.(T.)
),

to much lengthier sentences
    imposed in cases with comparable or higher numbers of victims:
R. v. Snook
,
    2014 NBCA 71, 439 N.B.R. (2d) 10, (18 years) and
R. v. De Jaeger
, 2015
    NUCJ 2, affd 2018 NUCA 7 (19 years).

[64]

Although
    s. 718.2(b) of the
Criminal Code
requires courts to impose similar sentences
    on similar offenders for similar offences committed in similar circumstances,
    similarity or likeness  and hence, the extent to which offenders and offences
    can be compared  is a matter of degree, not kind. As Frederick Schauer has
    explained, likeness is a characteristic that is ascribed or attributed by the
    court, usually despite significant differences that exist across things being
    compared: On Treating Unlike Cases Alike (2018) 33 Const. Commentary 437 at
    446. In other words, the identification of similarity for purposes of determining
    sentencing parity involves choice  a decision to treat some prior cases as
    relevantly similar for purposes of determining the appropriate sentence in
    another case.

[65]

So
    it is here. Sexual abuse cases are usually similar in some respects and necessarily
    different in others, and their similarities and differences may be considered
    more or less significant. In any particular case there may be more or fewer
    victims; more or fewer instances of abuse suffered by each victim; and
    different sorts of abuse suffered by each victim. Parsing those similarities
    and differences is only so helpful in determining sentencing parity. Parity
    cannot be achieved with anything approaching mathematical precision.

[66]

Thus,
    the guidance Moldaver J.A. provided as to the appropriate sentence in sexual
    abuse cases at para. 44 of
D.(D.)
was general in nature:

To summarize, I am of the view that as a general rule, when
    adult offenders, in a position of trust, sexually abuse innocent young children
    on a regular and persistent basis over substantial periods of time, they can
    expect to receive mid to upper single digit penitentiary terms. When the abuse involves
    full intercourse, anal or vaginal, and it is accompanied by other acts of
    physical violence, threats of physical violence, or other forms of extortion,
    upper single digit to low double digit penitentiary terms will generally be
    appropriate. Finally, in cases where these elements are accompanied by a
    pattern of severe psychological, emotional and physical brutalization, still
    higher penalties will be warranted. (See, for example,
R. v. M. (C.A.)
,
    [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored
    the 25-year sentence imposed at trial and
R. v. W. (L.K.)
(1999), 138
    C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a
    half years imposed at trial.)

[67]

In
    this case, the respondent occupied a position of trust when he perpetrated his
    abuse, and he perpetrated that abuse on a regular and persistent basis over a
    substantial period of time. Although this case does not involve anal
    intercourse  an aggravating factor that leads to an increased sentence  the
    absence of an aggravating factor does not translate into a mitigating factor.
D.(D.)
is not to be read as suggesting that full intercourse is required in order to
    raise the possibility of a double-digit sentence. Where intercourse occurs, it
    is simply one factor among many to be used to determine a fit sentence.

[68]

Further,
    I do not accept that fellatio and digital penetration are somehow lesser forms
    of sexual abuse than intercourse. It is impossible to conclude that either is
    on this record.

[69]

The
    sexual abuse in this case involved fondling, masturbation, and fellatio, both forced
    on the victims and forced to be performed by the victims, in addition to
    digital penetration of three of the victims. It also involved the threat of
    physical violence and other forms of extortion. The harm caused by this abuse is
    not to be discounted because it involved sexual activity other than
    intercourse. The abuse did not involve penetration in every case, but it was no
    less invasive on that account  no less a violation of the victims sexual
    integrity  and certainly no less harmful to the victims.

[70]

In
    my view, and in light of the guidance from
D.(D.)
, the magnitude and
    gravity of the respondents offending requires a penitentiary sentence in the
    low to mid double digit range. Nothing less meets the need for denunciation and
    deterrence in these circumstances.

[71]

The
    question then arises: is it appropriate to adjust the sentence in this case
    because the respondent committed the offences during a period in which he
    committed other offences for which he has already been punished?

[72]

The
    answer is plainly no.

[73]

The
    proportionality principle operates having regard to the circumstances of the
    offences for which an accused person is being sentenced. It is inappropriate to
    speculate as to the sentence the respondent would have received if all of his
    crimes committed during the relevant period had been before this court when he
    was sentenced in 1998:
R. v. James,
2013 MBCA 14, 288 Man. R. (2d)
    269, at para. 56.

[74]

The
    respondent avoided detection for much of his offending committed during the
    relevant period and so escaped punishment for that offending. He cannot now invoke
    his prior sentence, already served, in order to limit the sentence he receives
    for having committed the offences presently before the court, simply because
    these offences were committed during the same time frame:
James,
at
    para. 58.

[75]

Nor
    is respondents 1998 sentence to be treated as a mitigating factor in this case:
R. v. Leroux
, 2015 SKCA 48, 460 Sask. R. 1, at para. 60.

As
    the sentencing judge acknowledged, the prior sentence may be considered as part
    of the respondents background and may be factually relevant to his prospects
    for rehabilitation, but the focus must remain on the offences currently before
    the court. The 1998 sentence is not to be considered as forming a part of, or
    mitigating, the sentence to be imposed.

The appropriate sentence

[76]

Having
    determined that the sentencing judge imposed a demonstrably unfit sentence, it
    now falls to this court to fashion the appropriate sentence.

[77]

As
    the sentencing judge recognized, many of the offences in this case would
    normally result in consecutive sentences. The offences were committed against separate
    victims, unconnected with each other in time or place. The only common thread
    was that they were victimized by the respondent, and joined on the same
    indictment.

[78]

When
    consecutive sentences are imposed, the totality principle is designed to ensure
    that the imposition of consecutive sentences does not result in a total
    sentence that is unjust. The application of the principle was explained by this
    court in
Jewell
, at p. 279:

In my view, the appropriate approach in cases such as the two
    under appeal is to, first, identify the gravamen of the conduct giving rise to
    all of the criminal offences. The trial judge should next determine the total
    sentence to be imposed. Having determined the appropriate total sentence, the
    trial judge should impose sentences with respect to each offence which result
    in that total sentence and which appropriately reflect the gravamen of the
    overall criminal conduct. In performing this function, the trial judge will
    have to consider not only the appropriate sentence for each offence, but
    whether in light of totality concerns, a particular sentence should be
    consecutive or concurrent to the other sentences imposed.

[79]

Jewell
has been applied consistently in this court. Recent examples include
R. v.
    J.H.,
2018 ONCA 245;
R. v. Ahmed,
2017 ONCA 76, 136 O.R. (3d) 403;
    and
R. v. R.B.,
2013 ONCA 36, 114 O.R. (3d) 465.

[80]

By
    first identifying the gravamen of the entirety of the offending conduct, this
    approach aids in ensuring that the sentence is proportionate to the offending
    conduct and the offender before the court. The imposition of consecutive sentences
    should not lengthen the sentence imposed beyond what is just and appropriate:
R.
    v. M. (C.A.)
, [1996] 1 S.C.R. 500, at para. 42. At the same time, however,
    the offending conduct should not be viewed in a compartmentalized fashion that
    minimizes the interrelation of the crimes and the corresponding heightened
    gravity of the offences and moral blameworthiness of the offender:
R. v.
    D.G.F.
, 2010 ONCA 27, 98 O.R. (3d) 241, at paras. 26-27.

[81]

In
    all of the circumstances, I would impose a global sentence of 10 years
    imprisonment. I emphasize that, absent the significant mitigating factors,
    including the respondents guilty plea to most of the charges and the sentencing
    judges findings concerning his rehabilitation, a lengthier sentence would be
    warranted.

[82]

I
    would apportion the counts on the basis set out in Pepall J.A.s concurring
    reasons.
[1]


Conclusion

[83]

I
    would grant leave to appeal, allow the appeal, and impose a sentence of 10
    years imprisonment. The respondent is entitled to 6 months credit for the
    three years the respondent spent on restrictive bail, making an effective
    sentence of 9.5 years. The ancillary orders remain in place.

Grant Huscroft J.A.


Pepall J.A. (Concurring):

Introduction

[84]

As
    recently stated by the Supreme Court in
R. v. Suter
, 2018 SCC 34,
    [2018] 2 S.C.R. 496, at para. 23, it is well established that appellate courts
    cannot interfere with sentencing decisions lightly. Sentencing is an
    individualized process that demands a deferential standard of appellate review.
    Appellate intervention is only permitted where the sentencing judge has
    committed an error in law or principle that impacted the sentence or otherwise
    imposed a sentence that was demonstrably unfit:
R. v. Lacasse
, 2015
    SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 44-46. Appellate review of a
    sentence is not simply an opportunity to substitute a second opinion for that
    of the sentencing judge. The court must be convinced that the sentence is not
    fit, that is, that  the sentence [is] clearly unreasonable:
R. v. M.
    (L.)
, 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 14. Moreover, deviation
    from a sentencing range does not in itself justify appellate intervention:
Lacasse
,
    at para. 67. On the other hand, as noted by Wagner J. (as he then was) in
Lacasse
,
    [i]t is possible for a sentence to be demonstrably unfit even if the judge has
    made no error in imposing it: at para. 52.

[85]

In
    this case, the sentencing judge gave considered reasons. In my view however, it
    is one of those rare instances where the resulting sentence was demonstrably
    unfit.  In concluding that the sentence of six-and-a-half years is unfit, I
    focus on the sentencing judges mischaracterization of the gravity of the
    respondents offences and their scope, which in turn impugns the reasonableness
    of the sentencing judges proportionality analysis.

Purport of a Demonstrably Unfit Sentence

[86]

At
    paras. 52 to 53 of
Lacasse
, Wagner J. (as he then was) stated that a
    sentence would be demonstrably unfit if it constitutes an unreasonable
    departure from the proportionality principle which holds that a sentence must
    be proportionate to the gravity of the offence and the degree of
    responsibility of the offender:

[T]he courts have used a variety
    of expressions to describe a sentence that is demonstrably unfit: clearly
    unreasonable, clearly or manifestly excessive, clearly excessive or
    inadequate, or representing a substantial and marked departure:
R. v.
    Rezaie
, [1996] 31 O.R. (3d) 713 (Ont. C.A.), at p. 720. All these
    expressions reflect the very high threshold that applies to appellate courts
    when determining whether they should intervene after reviewing the fitness of a
    sentence.

This inquiry must be focused on
    the fundamental principle of proportionality stated in s. 718.1 of the
Criminal
    Code
, which provides that a sentence must be proportionate to the gravity
    of the offence and the degree of responsibility of the offender. A sentence
    will therefore be demonstrably unfit if it constitutes an unreasonable
    departure from this principle. Proportionality is determined both on an
    individual basis, that is, in relation to the accused him or herself and to the
    offence committed by the accused, and by comparison with sentences imposed for
    similar offences committed in similar circumstances. Individualization and
    parity of sentences must be reconciled for a sentence to be proportionate: s.
    718.2(a) and (b) of the
Criminal Code
.

[87]

In
    addressing the principle of proportionality, this court in
R. v. Hamilton
(2004), 72 O.R. (3d) 1 (C.A.), at paras. 90-91, elaborated on the meaning of
    the gravity of the offence and the degree of responsibility of the
    offender:

The gravity of the offence
    refers to the seriousness of the offence in a generic sense as reflected by the
    potential penalty imposed by Parliament and any specific features of the
    commission of the crime which may tend to increase or decrease the harm or risk
    of harm to the community occasioned by the offence... Some of the factors which
    increase the gravity of the offence are set out in s. 718.2(a).

The degree of responsibility of
    the offender refers to the offenders culpability as reflected in the
    essential substantive elements of the offence  especially the fault component
     and any specific aspects of the offenders conduct or background that tend to
    increase or decrease the offenders personal responsibility for the crime.

[88]

Thus
    the inquiry focuses on the gravity of the offence and the degree of responsibility
    of the offender both in a general sense based on the offences committed, and in
    relation to the specific features of the commission of those offences by the
    accused. There is also a need for comparison with other sentencing cases as
    proportionality is determined on both an individual basis and through a
    comparison with sentences imposed for similar offences committed in similar
    circumstances:
Lacasse
, at para. 55.

Gravity of the Offences

A.

Evolution in the Approach to Sentencing for Sexual Abuse of Children

[89]

My colleague, writing for the majority, has outlined the
    disturbing features of the commission of the offences in this case, including
    the respondents pattern of exploitation and abuse of vulnerable young boys,
    and his assumption of positions of trust as a coach or teacher in order to gain
    access to these boys in their youth. I will not repeat those details here,
    except to note that the pattern of abuse perpetrated by the respondent spanned
    multiple decades and involved many, many victims, defenceless young boys who
    were groomed and promised gifts. In addressing the respondents 1998
    convictions for sexual abuse, Abella J.A. (as she then was) wrote, at para. 38,
    that these offences were not unconnected, isolated acts of sexual or indecent
    assault, they were part of a systemic  pattern of unrelenting predatory and
    exploitative sexual conduct involving children.

[90]

Societys understanding of the gravity of sexual offences and
    their impact on children has evolved considerably. Histori
cally,
    Canadian courts often treated sexual offences against children as deserving of
    modest sentences. In the respondents case, he was first convicted of sexually
    assaulting a young person while he was a teachers assistant and received a
    two-month sentence in 1988. In 1996, he was convicted of one count of indecent
    assault and two counts of sexual assault against young persons and received 14
    months.  Perhaps the community at large was unaware of the negative impact of
    sexual abuse on the bodily integrity and self-worth of vulnerable young
    victims. Perhaps with a diet of murders and aggravated assaults, sexual
    offences against children seemed less important or reflective of misguided
    attitudes that suggested a get over it approach to victims. With
R.
    v. D.(D.)
(2002), 58 O.R. (3d) 788 (C.A.)
, this court
    opened the door to a fresh approach to sentencing for offences involving sexual
    abuse of children, and
R. v. D.M.
, 2012 ONCA
    520, 111 O.R. (3d) 721, pressed further. As my colleague Huscroft J.A. has
    written, the harm to children subjected to sexual abuse was described in 2011
    by Moldaver J.A. (as he then was) in
R. v. Woodward
, 2011 ONCA 610, 107 O.R. (3d) 81. As directed in that decision, the
    focus in sentencing adult sexual predators is on the harm caused to the child:
    at para. 76. This direction was amplified by subsequent legislative initiatives
on sentencing for offences involving sexual exploitation and abuse
    against children
undertaken by Parliament and which I will
    address.

[91]

However,
    before turning to a discussion of these changes, it is important to note that
    the offences in this case were committed between 1965 and 1985. The statutory
    provisions that govern charges against an accused are those in effect at the
    time the offence was committed. This raises the issue of the appropriate
    sentencing principles applicable to determining the fitness of the sentence
    imposed here.

B.

Principles Governing Sentencing of Historic Offences

[92]

In
    this case, the respondent was charged with 43 counts of indecent assault on a
    male; 49 counts of gross indecency; 2 counts of buggery; and 10 counts of
    sexual assault. Indecent assault, gross indecency, and buggery are historic
    sexual offences which have since been repealed from the
Criminal Code
.
    The respondent was convicted of all counts except for the two buggery offences.
    For his conviction on these 102 counts against 18 boys ages 8 to 13, he
    received a six-and-a-half year sentence less six months pre-sentence credit
    for a net sentence of six years. The offences against each victim attracted
    convictions for both indecent assault and gross indecency, or sexual assault
    and gross indecency. The sentencing judge did not detail which acts anchored
    the convictions.

[93]

Appellate
    jurisprudence from across the country directs that an accused should be
    sentenced in accordance with the provisions of the
Criminal Code
and
    the case law in effect at the time of the sentencing unless they [are]
    inconsistent with statutory provisions to the accuseds benefit such as
    maximum penalties set out in the
Criminal Code
:
R. v. Fones
, 2012 MBCA 110, 288 Man. R. (2d) 86, at para. 60;
R. v.
    Paradis
(1991), 92 Nfld. & P.E.I.R. 271 (Nfld. C.A.),
    at paras. 10-11;
R. c. L.(L.)
, 2016 QCCA 1367,
    at paras. 149-151, leave to appeal refused, 2018 CarswellQue 6151. The Newfoundland
    Court of Appeal explained the reasoning for this approach in
Paradis
, at para. 11:

Regard must be had to the
    offender, to the offence and to the interests of society, at the time of
    sentencing. It is only at the time of sentencing ... that the elements of
    general and individual deterrence, punishment, and rehabilitation, and the
    degree to which any or all should be applied, can be considered in arriving at
    a fit sentence.

[94]

Criminal
    laws generally do not operate retrospectively, and an accused is entitled to
    the benefit of a lesser punishment if the legislated punishment for an offence
    has changed between the time of the commission of the offence and the time of
    sentencing:
R. v. J.(K.R.)
, 2016 SCC 31, [2016] 1 S.C.R. 906, at para.
    22;
R. v. S.(R.)
, 2015 ONCA 291, 334 O.A.C. 239, at para. 21.

[95]

A
    consideration of the seriousness of the offences requires the court to look to
    the potential penalty imposed by Parliament. In order to determine the
    legislative parameters governing the sentencing of the respondent in this case,
    it is necessary to review the historical sexual offences with which the
    respondent was charged.

(1)

Indecent Assault

[96]

When
    the respondent committed the offence of indecent assault, it was a gendered
    offence, split into two provisions  one governing indecent assault on a male
    and the other governing indecent assault on a female.
The
Criminal
    Code
provision governing the offence of indecent assault
    on a male during the relevant time stated:
[2]


Every male person who assaults
    another person with intent to commit buggery or who indecently assaults another
    male person is guilty of an indictable offence and is liable to imprisonment
    for ten years and to be whipped.

The provision was amended in 1972 to remove the words and to be
    whipped:
Criminal Law Amendment Act, 1972
,
S.C. 1972, c. 13, s. 70
. The term indecency was not defined in the
Criminal Code
, but
    indecent assault was understood to be 
an assault, accompanied with circumstances of
    indecency: Hamish C. Stewart,
Sexual
    Offences in Canadian Law
,
    loose-leaf (Toronto: Thomson Reuters, 2004), at §2:300.20.30. Thus, an assault
    committed as part of an attempt to  force a man to submit to an indecent act
    would be an indecent assault, and assault involving specific sexual acts might
    be found to be indecent: Stewart, at §2:300.20.30. The offence of indecent
    assault was repealed in 1983.
[3]

[97]

Of the 43 counts of indecent assault, 37 would have been subject
    to a maximum penalty of 10 years imprisonment and six would have been subject
    to 10 years imprisonment plus whipping at the time they were committed.

(2)

Gross Indecency


[98]

The
Criminal Code
provision governing the offence of gross indecency when the
    respondent committed the 49 offences stated:
[4]


Every one who commits an act of
    gross indecency with another person is guilty of an indictable offence and is
    liable to imprisonment for five years.

An act of gross indecency was an act which constituted
    a marked departure from decent conduct expected of the average Canadian in the
    circumstances that existed:
R. v.
    Quesnel
(1979), 51 C.C.C.
    (2d) 270 (Ont. C.A.), at p. 280. An act could be deemed to be grossly indecent
    by the nature of the act itself, or the circumstances in which the act was
    committed. Some cases held that certain acts such as buggery, fellatio, and
    cunnilingus were
per se
grossly indecent regardless of the
    circumstances: Stewart, at §2:500.10.10. Other acts that were not grossly
    indecent in themselves, could become so depending on the circumstances, for
    example if they involved a child: Stewart, at §2:500.10.10. The offence of
    gross indecency was repealed in 1988.
[5]

(3)

Buggery

[99]

When the events took place, the offence of buggery was an
    indictable offence with a maximum term of imprisonment of fourteen years.
[6]

The
Criminal Code
did not contain a definition of
    buggery, but it was defined at common law as sexual intercourse
per
    anum
with another person or, in other words, anal
    intercourse: Stewart, at §5.300.10, citing
R. v. Ross
, [1986] N.W.T.J. No. 3 (S.C.). Sexual intercourse was defined, and
    continues to be defined in s. 4(5) of the
Criminal Code
, as follows: For the purposes of this Act, sexual intercourse is
    complete on penetration to even the slightest degree, notwithstanding that seed
    is not emitted.

[100]

The offence of buggery was repealed and replaced with the offence of
    anal intercourse in 1987.
[7]
Although the offence of anal intercourse is still enumerated in s. 159 the
Criminal
    Code
, the provision was struck down by this court as
    violating s. 15 of the
Charter
in 1995:
R.
    v. M.(C.)
(1995), 23 O.R. (3d) 629 (C.A.).
[8]


(4)

Sexual Assault

[101]

In addition to the
    historic sexual offences of indecent assault, gross indecency, and buggery, the
    respondent was convicted of 10 counts of sexual assault for incidents that
    occurred after 1983. The offence of sexual assault was enacted in 1983 and
    replaced the offences of rape, indecent assault on a female, and indecent
    assault on a male which were repealed by the same amendment to the
Criminal
    Code
. The offence of sexual assault removed distinctions based on the
    gender of the accused and the complainant, and the presence or absence of
    sexual intercourse, and characterized sexual offences as a form of assault:
    Stewart, at
§
3.100;
R. v. Cuerrier
, [1998] 2
    S.C.R. 371, at paras. 10-12,
per
LHeureux-Dubé J. At the time the
    respondent committed the offences, the maximum sentence for sexual assault was
    10 years for conviction on indictment.

(5)

Conclusion

[102]

The foregoing review
    illustrates that two aspects of the
Criminal Code
regime in effect at
    the time of the respondents commission of the offences had to inform the
    analysis of a fit sentence. First, the statutory maximum sentence for the
    offences of indecent assault on a male and gross indecency were 10 years (plus
    whipping for 6 of the 43 counts) and 5 years respectively, and 10 years for
    sexual assault. Second, prior to 1983, the
Criminal Code
made a
    distinction between sexual offences involving sexual intercourse and sexual
    offences involving other sexual acts. Offences involving sexual intercourse,
    being rape and buggery, carried higher maximum terms of life imprisonment and
    14 years respectively, suggesting that Parliament viewed these offences as more
    serious in nature.
Sexual acts not involving sexual
    intercourse fell within the offences of indecent assault and gross indecency.
As
    I will discuss, contemporary appreciation of the harm occasioned by sexual
    offences suggests that the seriousness of the offence should not be wed to the
    presence or absence of sexual intercourse. However, this distinction was made
    in the
Criminal Code
at the time the respondent committed the offences
    of indecent assault and gross indecency, and accordingly the respondent is
    entitled to the benefit of this distinction in determining the gravity of his
    offences along with the benefit of lesser maximums than currently exist. However,
    this does not serve to take the respondents conduct out of the higher range of
    these maximums. Put differently, the seriousness of the respondents conduct is
    not erased simply due to the absence of sexual intercourse. Although more
    recent legislative initiatives do not govern the respondents sentencing,
    regard may nonetheless be had to the enhanced concern for the sexual abuse of
    children and the need for emphasis on denunciation and deterrence.

C.

Legislative Changes to Sentencing for the Sexual Abuse of
    Children

[103]

The evolution of
    Parliaments and thus Canadians view of the gravity of offences involving the
    sexual exploitation and abuse of children can be ascertained from Parliaments
    treatment of sentencing principles and ranges applicable to these sexual
    offences. Since 2005, Parliament has advanced a number of legislative changes
    to the sentencing principles applicable to sexual offences against children.

[104]

In 2005, Bill C-2,
    entitled
An Act to Amend the Criminal Code (Protection of Children and
    Other Vulnerable Persons)
, S.C. 2005, c. 32, was enacted to protect
    children and other vulnerable persons from sexual exploitation, violence, abuse
    and neglect:  Legislative Summary  Bill C-2: An Act to amend the
Criminal
    Code
(protection of children and other vulnerable persons) and the
Canada
    Evidence Act
 (Parliamentary Information and Research Services, October
    2004), at p. 1. Bill C-2 added mandatory minimum penalties, and increased the
    maximum penalty for certain sexual offences against children. The Bill also
    amended the Purpose and Principles of Sentencing portion of the
Criminal
    Code
by making abuse of a person under the age of 18 an aggravating
    factor, and directing courts to give primary consideration to the objectives of
    denunciation and deterrence in sentencing for offences involving abuse of a
    person under the age of 18: see
Criminal Code
, ss. 718.01,
    718.2(a)(ii.1).

[105]

The significance of these amendments was discussed by Saunders J.A.
    of the British Columbia Court of Appeal in
R. v. W.(D.R.)
, 2012 BCCA 454, 330 B.C.A.C. 18, at paras. 32-34:

It would be
    fair, I think, to describe s. 718.01 and the other augmented provisions for
    offences concerning abuse of children as an attempt by Parliament to re-set the
    approach of the criminal justice system to offences against children
.

I recognize that
    there are many clear examples in cases pre-dating the Act that responded firmly
    to offences against young people  but
there has been significant legislative
    action, all to the emphasis of protection of young people
.

With these
    observations, I would say that the range of sentences drawn from a former era
    may not reflect the appropriate balance of principles now required by the
Criminal
    Code
. [Emphasis added.]

[106]

In 2012, Parliament
    increased the mandatory minimum sentences introduced by Bill C-2 for sexual
    offences involving children through Bill C-10, known as the
Safe Streets
    and Communities Act
, S.C. 2012, c. 1. The mandatory minimum penalties for
    ss. 151 (sexual interference of a person under the age of 16), 152 (invitation
    to sexual touching of a person under the age of 16), and 153 (sexual
    exploitation of a young person) were increased from 14 days to 90 days on
    summary conviction, and from 45 days to 1 year for conviction on indictment.
[9]


[107]

In 2015, Parliament
    then increased the maximum sentence for these offences from 10 years to 14
    years through Bill C-26:
Tougher Penalties for Child Predators Act
, S.C. 2015, c. 23. Bill C-26 also introduced s. 718.3(7) which
    requires the court to impose a consecutive sentence where an offender is
    sentenced at the same time for a child pornography offence and another sexual
    offence committed against the same child; or, as would be the case here but for
    the dates of the offences, where the offender is sentenced at the same time for
    sexual offences other than child pornography offences committed against more
    than one child. Section 718.3(7) is still subject to the totality principle set
    out in s. 718.2(c): see
R. v. S.C.
, 2019 ONCA
    199, at para. 12.

[108]

The current 14 year
    maximum penalty for sexual offences against children certainly exceeds the
    maximum penalty of 10 years for indecent assault against a male that is applicable
    to the respondents offences. As mentioned, recourse to new statutory maximums
    is unhelpful insofar as the appropriate sentence is guided by the maximum
    penalties in effect at the time of the commission of the offences. However, as
    noted by this court in
R. v. Sanatkar
(1981), 64 C.C.C. (2d) 325 (Ont.
    C.A.), at p. 327, the maximum penalty provided for an offence is an important
    indicator of the gravity of an offence. The Alberta Court of Appeal stated in
R.
    v. King
, 2013 ABCA 3, 542 A.R. 43, at para. 20, that although changes set
    out in the
Criminal Code
for sexual offences involving children cannot
    be applied retrospectively, the court 
need not be
    oblivious to what [the changes] suggest about Parliaments view of the gravity
    of such offences
 (emphasis added).

[109]

This principle is
    illustrated in this courts decision in
Woodward
. There, the appellant
    was sentenced to six-and-a-half years imprisonment for child luring and a
    single incident of sexual abuse involving fellatio and vaginal intercourse with
    a 12 year old in December 2008. The offences were committed in September 2006.
    The appellant argued that the sentence imposed was unfit and that a range of 12
    months to 24 months for the offence of child luring had been established in
    this courts decision in
R. v. Jarvis
(2006), 214 O.A.C. 189 (C.A.).
    Moldaver J.A. (as he then was) rejected this submission and noted at para. 58
    that even if
Jarvis
did purport to set a range of 12 to 24 months for
    the offence of luring, that range needed to be revised given the 2007 amendment
    to the
Criminal Code
in which Parliament doubled the maximum
    punishment for the offence from five to ten years.

[110]

In
R. v. J.S.
,
    2018 ONCA 675, 142 O.R. (3d) 81, Strathy C.J.O. considered the fitness of a
    sentence imposed for offences involving sexual abuse of young children and
    child pornography. In considering the relevant sentencing principles, Strathy
    C.J.O. discussed the significance of the 2015 amendments to the
Criminal
    Code
including the amendment introducing s. 718.3(7) which requires
    sentences for certain offences against children to be served consecutively. He
    stated, at paras. 96, 98:  Moreover,
although the
    provision was not in effect at the time of the offences
, it is
    appropriate to note that the
Tougher Penalties for Child Predators Act
,
    S.C. 2015, c. 23, increased mandatory minimum and maximum sentences for certain
    sexual offences against children
Parliaments concern
    is reflected in increasing judicial concern about the sexual abuse of children

    (emphasis added).

[111]

In a similar vein, the
    Alberta Court of Appeal considered the significance of Parliaments increase of
    penalties for offences involving sexual abuse of children stating in
R. v.
    E.J.B.
, 2018 ABCA 239, 72 Alta. L.R. (6th) 29,

at para. 40,
    application for leave to appeal to the Supreme Court of Canada filed on October
    24, 2018: The changes reflect both Parliaments and societys recognition that
    people who use positions of trust, authority or dependency to sexually exploit
    a young person should be subject to serious penalties.  See also
R. v.
    Norton
, 2016 MBCA 79, 330 Man. R. (2d) 261, at paras. 18-25;
R. c.
    Rayo
, 2018 QCCA 824, at para. 125;
R. v. P.E.S.
, 2018 MBCA 124,
    368 C.C.C. (3d) 500, at paras. 58-61.

[112]

As the foregoing
    review of Parliaments legislative initiatives and appellate jurisprudence from
    across the country suggests, there has been significant recognition of the
    impact of sexual abuse on a child, particularly when that abuse is perpetrated
    by a person in a position of trust or authority. Parliaments legislative
    reforms governing sexual offences signal that societys denunciation of this
    conduct must be reflected in the sentences imposed by courts. These legislative
    amendments, while not applicable to the offences committed by the respondent,
    indicate a significant societal recognition of the gravity of sexual offences
    against children. This recognition is not an alteration of weight to be
    assigned to a factor,

or justification for
    imposing a higher sentence than is fit in the circumstances.  Understanding the
    gravity of the offences in a general sense is an important aspect of imposing a
    proportionate sentence. It serves to contextualize the seriousness of the
    offences and recognizes that sentencing should not be divorced from a
    contemporary understanding of the harm occasioned by the offences. The
    legislative amendments are not a standalone justification for imposing a higher
    sentence, nor do I rely on them for that purpose. As mentioned, they simply
    reflect societys better understanding of harm caused by these offences to
    victims and the community, and the need to address this harm in the sentencing
    process as argued by the Crown.
[10]

D.

Sentencing Judges Treatment of the Gravity of the Offence

[113]

Turning to the
    sentencing judges reasons in this case, the sentences attributed by the
    sentencing judge to each grouping of victims and her treatment of the number of
    victims abused by the respondent are indicative of her characterization of the
    gravity of the offence. In my view, they demonstrate that she failed to
    adequately capture the gravity and scope of the offences committed by the
    respondent, and as a result, she imposed an unfit sentence.

[114]

I do not propose to
    review the sentencing judges reasons which have already been described in my
    colleagues reasons. I will limit my discussion to her sentencing allocations
    and her treatment of the number of victims.

[115]

In determining the
    appropriate sentence in this case, the sentencing judge reviewed the range of
    sentences imposed by courts for sexual offences against children, including the
    principles enunciated in the 2002 decision of this court in
D.(D.)
.
    The sentencing judge summarized her review of the principles articulated in the
    case law at para. 107 of her reasons:

It is my view, that what can be
    gleaned from this case law is that for sexual assaults on children that are
    limited to fondling and dont take place persistently over long periods of time
    lower sentences in the range of 2-3 years seem to be appropriate. As the level
    of sexual abuse, the number of victims and the number of incidents of abuse
    increases, the sentences increase  up to double digits for the more
    egregious and persistent acts of abuse. In many of the cases I have reviewed,
    the acts of violence were worse and the sexual abuse included acts of anal
    intercourse. While in almost all the cases there were fewer victims, the number
    of individual acts of abuse tend to be quite similar to the number of acts of
    abuse in the case at bar because in many of the cases, each victim was abused
    more frequently and for longer periods of time than Mr Stuckless victims.
    These differences, in some respects are not that meaningful. At the end of the
    day all the cases reviewed had key facts in common which include:

a) breach of trust;

b) prolonged and persistent sexual
    abuse;

c) on young children; and

d) with profound effects on the
    victims.

[116]

The sentencing judge
    then determined the sentence that she could have imposed for the offences per
    victim, and then considered the impact, if any, of the totality principle. In
    doing so, the sentencing judge grouped the victims based on the type of sexual
    contact, and the frequency and duration of the abuse that they suffered. The
    sentencing judges allocations, at paras. 109-114, were as follows:

For the offences involving M.S.
    which included forced digital penetration and prolonged sexual abuse on him a
    sentence in the range of 4 years would have been appropriate.

For the offences on Lloyd Forde
    which included forced digital penetration and prolonged sexual abuse a sentence
    in the range of 4 years would be appropriate.

For the offences on T.J. and J.S.
    that also involved digital penetration or attempted digital penetration but
    included only a couple of other incidents of sexual assault, a sentence in the
    range of 3 to 4 years would have been appropriate.

For the offences on K.D., R.C.,
    Donald Bond, K.M., G.P., S.L., B.B. and S.K. given the number of incidents
    involved with each victim and the nature of the sexual abuse, a sentence in the
    range of [2] years for each victim would be appropriate.

For the offences on KP and SF
    here the sexual acts were limited to sexual touching but involved in excess of
    20 incidents per child a sentence in the range of [2 to 3] years per victim
    would have been appropriate.

For the offences on JD, PS, CM
    and SM which included between one and six acts of fellatio on each victim, a
    sentence in the range of [1 to 2] years would have been appropriate for each
    victim.

[117]

The description of the
    acts perpetrated on these boys omitted important details. For instance, both
    M.S. and Lloyd Forde were also subjected to fellatio on a number of occasions,
    and when the respondent penetrated them, both screamed in pain and begged the
    respondent to stop without success. With victim K.P., the respondent sexually
    abused him over 20 times over 18 months and threatened to run him over with a
    car (though K.P. did not believe he would follow through with the threat).
    Moreover, many of the convictions involved fellatio or attempted fellatio. The
    offences against T.J. involved attempted fellatio, and both J.S. and S.F. were
    subjected to fellatio in addition to the abuse summarized by the sentencing
    judge. S.F. estimated that the respondent abused him between 25-75 times. K.D.
    was abused by the respondent in his own home on at least four occasions when
    the respondent put K.D. to bed. The offences against both S.K. and K.M.
    occurred when the respondent was a teaching assistant, and the respondent took
    advantage of his position at the school to falsely accuse the boys of wrongdoing
    to hold them back after school and sexually abuse them.

[118]

The sentencing judge
    determined that if each of the sentences outlined above were to be imposed
    consecutively, it would amount to a sentence of more than 30 years. Such a
    sentence would be excessive and outside the range identified in the case law.
    The sentencing judge determined that a sentence of six-and-a-half years ought
    to be imposed in light of the totality principle: at para. 121. Although not
    fatal in this case, I do note that the sentencing judge did not apply the
    totality principle in the manner set out in
R. v. Jewell
(1995), 100 C.C.C. (3d) 270 (Ont. C.A.).

[119]

As I will describe,
    this sentence was not proportionate to the gravity of the respondents
    offences, their scope, and the respondents degree of responsibility. This is a
manifestly unfit sentence, a sentence that is unresponsive to
    the call for exemplary sentences in cases involving prolonged sexual abuse of
    multiple victims, and that serves to erode public confidence in our system of justice.

E.

Analysis

(a)

Sentences Allocated Based
    on Sexual Acts

[120]

As Rowe J. observed in
R. v. Jarvis
, 2019 SCC 10, 52 C.R. (7th) 62, at paras. 124-125, there
    is extensive jurisprudence from the Supreme Court that defines sexual offences
    in terms of the violation of ones autonomy and sexual integrity. It is well
    settled that sexual assault is described as an assault committed in
    circumstances of a sexual nature, such that the sexual integrity of the victim
    is violated:
R. v. Chase
, [1987] 2 S.C.R. 293, at

p. 302.
    Rowe J. observed that the interests of personal autonomy, physical integrity
    and dignity protected by the criminalization of sexual offences represent a
    shift in the conception of sexual offences away from sexual propriety and
    towards a focus on sexual integrity: at para. 127. In discussing this shift in
    emphasis, Rowe J. quoted from Professor Elaine Craig,
Troubling Sex:
    Towards a Legal Theory of Sexual Integrity
(Vancouver/Toronto: UBC Press,
    2012), at p. 68:

[T]his shift from focusing on
    sexual propriety to sexual integrity enables greater emphasis on violations of
    trust, humiliation, objectification, exploitation, shame, and loss of
    self-esteem rather than simply, or only, on deprivations of honour, chastity,
    or bodily integrity (as was more the case when the laws concern had a greater
    focus on sexual propriety).

[121]

The necessity of
    focusing on sexual integrity over sexual propriety in the context of sexual
    abuse of children is evident in the case law which affirms that the gravity or
    seriousness of the abuse does not turn solely on whether there is penetration
    or not. In
R. v. Leroux
, 2015 SKCA 48, 460 Sask. R. 1, the 74-year-old
accused was convicted of eight counts of indecent assault, and
    two counts of gross indecency for abuse against eight complainants. The
    Saskatchewan Court of Appeal found that the sentencing judge had erred in
    principle by concluding that a major sexual assault is one that involves
    penetration, and dividing the offences committed by the accused into two
    classes  major sexual assaults involving penetration, and assaults that did
    not involve penetration.
The court stated, at para. 67:

[W]hen it comes to the sustained
    sexual abuse of a child, the absence of penetration cannot be said to discount
    the seriousness of the offence. Rather, the absence of penetration is a
    circumstance that must be considered when determining the seriousness of the
    offence in question, along with all of the other circumstances, including the
    age of the victim, the physical and psychological harm done to the victim, the
    duration of the abuse, the nature of the abuse, the abuser's position with
    respect to the victim, etc.

[122]

Similarly, in
Stuckless
    1998
, Abella J.A. stated at para. 42: The absence of penetration does not
    automatically relegate the sexual abuse of children to the lower range of
    sexual offences.  These offences were, individually and collectively,
    unconscionable. Any characterization which purports to diminish their
    magnitude, is unacceptable.
Leroux
and
Stuckless 1998
instruct that while penetration is certainly an aggravating factor and must be
    considered when sentencing an offender, the seriousness of the offence does not
    turn on the presence or absence of penetration. The court must look beyond the
    nature of the physical acts themselves to the interests protected by the
    criminalization of sexual offences, and the circumstances in which the offences
    were committed.

[123]

The approach the
    sentencing judge adopted in determining the appropriate sentence was to
    classify the offences based on the nature of the sexual act. In describing the
    aggravating factors at para. 71(h), the sentencing judge stated that [a]ll of
    Mr. Stuckless offences were invasive and escalated with some victims from
    sexual touching to forced fellatio to digital penetration. While this suggests
    that the sentencing judge recognized that forced fellatio and digital
    penetration are more invasive than sexual touching, her reasons disclose that
    the nature of the sexual contact dominated her consideration of the gravity of
    the offences, and the appropriate sentence to allocate for the abuse of each
    victim.

[124]

While physically
    different, digital penetration and fellatio constitute a serious invasion of
    the sexual integrity of the victim. Put differently, if sentencing courts are
    to focus on the harm caused to the child by the offenders conduct as Moldaver
    J.A. (as he then was) instructs in
Woodward
, at para. 76, distinctions
    among these forms of sexual abuse may be unhelpful and are not determinative of
    the seriousness of the offence. Is fellatio any less intrusive than digital
    penetration? Surely not.

[125]

Indeed, the factual
    circumstances of this case underscore the point that the impact on the physical
    and psychological integrity of the victims is often no different simply because
    the penetration is found to be digital rather than penile. As the sentencing
    judge noted in her reasons, while it was unclear whether the respondent
    penetrated Mr. Forde and M.S. with his penis or finger, both victims cried out
    in pain, asked the respondent to stop, and the respondent nevertheless
    persisted: at paras. 29-30. In these circumstances, where the line between a
    conviction for buggery versus indecent assault was drawn based only on the fact
    that the victims were unable to see what part of the respondents body was
    being used to penetrate them against their will, it is difficult to conceive
    how digital penetration was a lesser violation of their bodily integrity than
    penile penetration. Even accepting that the punishment was lower in light of
    the differing maximums for indecent assault and buggery, a 4 year sentence for
    Mr. Forde and M.S. and a global 6.5 year sentence would be demonstrably unfit.

[126]

As I have noted, at
    the time of the commission of the offences, the
Criminal Code
distinguished between sexual offences involving sexual intercourse, and those
    that did not. The respondent is entitled to the benefit of this statutory
    distinction. However, in light of the legislated sentencing parameters and the
    necessary focus on harm to the child, the gravity of the offences before the
    court should not be reduced to the low to medium spectrum of indecent assault,
    which carried a maximum of ten years (and in some cases whipping) per count,
    due to the absence of anal intercourse, which carried a maximum of 14 years per
    count. Given the separate offence of buggery, the respondents conduct would
    clearly fall at the serious end of the offence of indecent assault.

[127]

It is unquestionable
    that the respondents conduct constituted a serious invasion of the sexual
    integrity of his victims. Even within the sentencing parameters circumscribing
    the offence of indecent assault of a male, when viewed in the context of the
    circumstances of the commission of the offences, the gravity or seriousness of
    the abuse perpetrated by the respondent was significant.

[128]

The emphasis placed by
    the sentencing judge on the physical acts rather than the sexual integrity of
    the victims is evident from the sentences she determined would be appropriate
    for the different groupings of victims. To reiterate, the sentencing judge
    attributed four years to offences against the victims that involved forced
    digital penetration and prolonged sexual abuse; three to four years for
    offences involving digital penetration or attempted digital penetration, along
    with other incidents of abuse; and one to two years for between one to six acts
    of fellatio.

[129]

The sentencing judges
    conclusion not only draws an unjustifiable distinction between digital
    penetration and fellatio but also contradicts her summary that for sexual
    assaults on children that are limited to fondling and dont take place
    persistently over long periods of time lower sentences in the range of 2-3
    years seem to be appropriate: para. 107. While a deviation from sentencing
    ranges alone is not a basis upon which to disturb a sentence on appeal, in this
    case the sentences attributed to each grouping of victims illuminates the
    sentencing judges view of the gravity of the offences. Implicitly she found
    that the abuse involving one to six acts of fellatio fell below the level of
    sentence appropriate for fondling, and the abuse involving digital penetration
    was only slightly above the low range of sentence she identified for fondling.

[130]

In my view she
    unreasonably underestimated the gravity of the respondents offences. In
R.
    v. D.M.
, this court elaborated on the principles set out in
D.(D.)
and
Woodward
. Feldman J.A.

noted, at para. 36, that while
D.(D.)
involved multiple child victims (four to be exact), the principles enunciated
    in
D.(D.)
have been and should be applied in cases involving a single
    child:

Second, and most importantly,
    while the court in
D.D.
set specific ranges for categories of cases
    described by the court that were similar to the facts in
D.D.
, Moldaver
    J.A. also made two things clear: 1) ranges of sentence are only guidelines;
    they leave trial judges with the flexibility to do justice in individual
    cases. (para. 33); 2) for conduct where an adult in a position of trust
    sexually abuses children on a consistent basis and over an extended period of
    time, a higher range of sentence is called for. Depending on the specific
    facts, a penitentiary sentence, ranging from upper single digit to low double
    digit or beyond is appropriate.
Although Moldaver J.A. referred to
    children in the plural, it is the conduct that is aimed at; while the number
    of victims will be a factor, the instruction from
D.D.
does not become
    inapplicable where there is only one victim
. [Emphasis added.]

[131]

Further still,
D.(D.)
was decided in 2002, well before Parliaments amendments to the
Criminal
    Code
between 2005 and 2015. As has been acknowledged by this court, and
    other appellate courts across Canada, sexual offences against children must be
    interpreted in the context of these amendments and what they signal about the
    gravity of the offence. The sentence imposed by the sentencing judge fails to
    capture the seriousness of the offences generally, and the circumstances in
    which the respondent committed them. These offences were not isolated acts,
    rather they were part of a systemic pattern of abuse and exploitation. The
    respondents pattern of abuse involved building a relationship of trust with
    his victims by taking on positions as a teacher or hockey coach. He often
    targeted children of single parents or children who were experiencing
    difficulty in their homes. He would groom his victims and then subject them to
    all manner of sexual abuse, sometimes with threats of violence, leaving his
    victims with feelings of fear and shame that prevented them from reporting the
    abuse. It bears emphasis that the respondent was convicted of over 100 counts
    of sexual offences against 18 different children.

[132]

This brings me to my
    next point  the sentencing judges treatment of the number of victims.

(b)

Treatment of the Number of
    Victims

[133]

In setting out the
    aggravating factors, the sentencing judge made mention at para. 71(j) that the
    respondent had numerous victims. However, most of the cases reviewed by the
    sentencing judge involved far fewer victims. The sentencing judge reconciled
    this issue at para. 107 by stating: While in almost all the cases there were
    fewer victims, the number of individual acts of abuse tend to be quite similar
    to the number of acts of abuse in the case at bar because in many of the cases,
    each victim was abused more frequently and for longer periods of time than Mr.
    Stuckless victims.

[134]

Frequency and duration
    of abuse are important factors to consider in attempting to achieve parity in
    sentencing. However, by minimizing the significance of the number of victims, the
    sentencing judge failed to appreciate the depth of harm occasioned on both the
    victims and the community by the respondents conduct.

[135]

In this case, the
    number of victims is a factor that responds to the principles of denunciation,
    deterrence, and proportionality. An offenders assault of a large number of
    victims should neither be treated as less morally blameworthy or equally as
    blameworthy as an offender who assaults fewer victims more frequently. The
    gravity of the harm imposed by the respondents conduct cannot be diminished
    because there are fewer instances of abuse per victim such that it can be
    equated to cases involving fewer victims but more incidents. The shortcoming in
    the sentencing judges analysis is reflected in her summary of the victim impact.
    The impact on the victims was not reduced due to the number of assaults they
    experienced. Sentencing in child sexual abuse cases must focus on the harm
    occasioned on each of the victims. As this court noted in
Woodward
, at
    para. 72, the consequences of child sexual abuse are now well-recognized:

(i) children often suffer
    immediate physical and psychological harm; (ii) children who have been sexually
    abused may never be able, as an adult, to form a loving, caring relationship
    with another adult; (iii) and children who have been sexually abused are prone
    to become abusers themselves when they reach adulthood.


Pre-sentence reports involving child sex offenders frequently provide a
    testament to this last point.

[136]

As is evident from the
    victim impact in this case, even one instance of sexual abuse can permanently
    alter the course of a childs life. The gravity of this harm cannot and should
    not be overlooked in sentencing offenders who abuse multiple children. Indeed,
    although inapplicable to this case, Parliament has recognized this with the
    2015 legislative amendments requiring the imposition of consecutive sentences
    in cases involving sexual offences against more than one child.

[137]

The sentencing judge
    mischaracterized the gravity of the offence due to her emphasis on the physical
    act perpetrated on the victims by the respondent and by her conflation of the
    number of incidents with the number of victims in her consideration of
    proportionality. This contributed to her imposition of an unfit sentence.
    Proportionality requires the court to place both the gravity of the offence and
    degree of responsibility of the offender at the centre of the sentencing
    process. Indeed, Wagner J. in
Lacasse
described proportionality as the
    cardinal principle of sentencing. Here, the sentencing judge failure to
    appropriately capture the gravity of the offence, it follows that the sentence
    imposed cannot reasonably be said to be proportionate. The sentence of
    six-and-a-half years imposed in this case failed to effectively capture the
    gravity of the respondents offences and thus was manifestly unfit.

A Fit Sentence

[138]

This brings me to what would be a fit sentence.

[139]

I readily recognize that although the respondents actuarial risk of
    reoffending was described as moderate to high, the sentencing judge agreed with
    Dr. Pearce that the respondent posed no real risk to reoffend and that he had
    been taking the drug Lupron.

[140]

Considering the sentencing judges findings relating to the
    respondents rehabilitation and remorse, his age, the position of trust he
    held, the harm he perpetrated on the 18 young boys, aged 8 to 13, the other
    aggravating and mitigating factors identified by the sentencing judge, and the
    maximum punishment applicable to these historical offences that serves to
    moderate the available sentence, I am of the view that a global sentence of ten
    years less six months for pre-sentence credit on account of house arrest for a
    net sentence of nine-and-a-half years is a fit sentence in all the
    circumstances.

[141]

Turning to the cases that the sentencing judge identified as
    comparable, this sentence is somewhat higher than the sentence of eight years
    imposed in
Leroux
on an offender who had
    abused eight young boys while working as a dormitory supervisor at a
    residential school.
Leroux
was also a case
    involving historic sexual abuse and sexual offences of indecent assault and
    gross indecency. While
Leroux
involved some
    aggravating factors not present in this case, it also involved many fewer
    victims. Similarly, the case of
R. v. James
,
    2013 MBCA 14, 288 Man. R. (2d) 269, in which a hockey coach was sentenced to
    five years for prolonged abuse of two young boys also involved fewer victims.
    In considering
James
,

the sentencing judge rightly concluded
    that a sentence of five years would not properly reflect the extent of the harm
    caused by the respondent in this case and the number of victims he abused.

[142]

Having determined that ten years is a fit global sentence, I must
    assign sentences for each offence. Here, the goal is to impose sentences with
    respect to each offence which result in the ten year sentence and which
    appropriately reflect the gravamen of the overall criminal conduct:
Jewell
, at p. 279. In imposing sentences for each offence, a court must consider
    not only the appropriate sentence for each offence, but whether in light of
    totality concerns, a particular sentence should be consecutive or concurrent to
    the other sentences imposed: at p. 279. Thus, the sentence allocations per
    offence are bounded by the applicable statutory maximums I have described, and
    the totality principle. The totality principle serves to ensure that a combined
    sentence is not unduly long or harsh, and the total sentence imposed on an
    offender who commits multiple offences is just and appropriate:
R.
    v. Johnson
, 2012 ONCA 339, 285 C.C.C. (3d) 120, at paras.
    17-19.

[143]

Many of the sentences in this case could be imposed consecutively
    given that the offences against each victim are distinct and may be viewed as
    separate events. However, in light of the totality principle and my earlier
    analysis, I would assign the following sentences to run
concurrently
:

·

for the offences of
    indecent assault against M.S. and Mr. Forde, victims subjected to digital
    penetration and/or fellatio, and additional violence over and above that which
    is inherent in sexual offences against children, sentences of eight years, and
    for the offences of gross indecency against them, sentences of four years;

·

for the offences of
    indecent assault against T.J., S.F., J.D., P.S., C.B., S.M., J.S. and the
    offences of sexual assault against C.B., victims subjected to abuse, sometimes
    prolonged abuse, and digital penetration and/or fellatio but no additional
    violence, sentences of seven years, and for the offences of gross indecency
    against them, sentences of four years;

·

for the offences of
    indecent assault against K.P., who was subjected to prolonged abuse and
    threats, a sentence of six-and-a-half years, and for the offences of gross
    indecency against him, a sentence of four years;

·

for the offences of
    indecent assault against R.C., who was subjected to prolonged abuse, a sentence
    of six years, and for the offences of gross indecency against him, a sentence
    of four years; and

·

for the offences of
    indecent assault against K.D., Donald Bond,  B.B., and S.K. and the offences of
    sexual assault against K.M., B.B., and S.K., victims subjected to inappropriate
    touching and/or masturbation by the respondent, sentences of four years, and
    for the offences of gross indecency against them, sentences of four years.

[144]

I would then assign the following sentences to run
concurrently
to each other within this
    group but, as a group, to run
consecutively
to the sentences imposed above:

·

for the offences of
    indecent assault against S.L. and the offences of sexual assault against G.P.,
    victims subjected to fondling by the respondent, I would impose sentences of
    two years, and for the offences of gross indecency against them, sentences of one
    year.

[145]

This apportionment results in a global sentence of ten years (i.e
.
eight years for the first group of offences plus two
    years for the second group of offences) and a net sentence of nine-and-a-half
    years after deduction for pre-sentence credit. This is an apportionment in the
    context of the global sentence appropriate in this case. It is not to be taken
    as indicative of the appropriate sentence for any of the counts on an
    individual basis.

Disposition

[146]

For these reasons, I
    would grant leave to appeal and allow the appeal of sentence.

[147]

The conduct of the respondent called for an exemplary sentence.
    However, the sentence that was imposed on him was neither just nor appropriate,
    and certainly not exemplary. I am not the first to say that offenders must
    understand that sexual abuse of children cannot be countenanced and I will not
    be the last. But, an exemplary sentence may at least go some way to serve to
    deter others from embarking on vulturine predacious conduct comparable to that
    pursued by the respondent.

S.E.
    Pepall J.A.


Rouleau J.A. (Dissenting):

OVERVIEW

[148]

This appeal raises
    only one issue: whether the sentence imposed on Mr. Stuckless was
    demonstrably unfit, such that it warrants appellate intervention. As my
    colleagues explain in their reasons, the circumstances in which an appellate
    court may vary a sentence are narrow. Absent an error of law or an error in
    principle that had an impact on the sentence, intervention from this court will
    only be justified if the sentencing judge imposed a sentence that is
    demonstrably unfit:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089,
    at para. 11.

[149]

To be demonstrably
    unfit, the sentence imposed must depart unreasonably from the principle of
    proportionality. As explained in
Lacasse
:

Proportionality is determined
    both on an individual basis, that is, in relation to the accused him or herself
    and to the offence committed by the accused, and by comparison with sentences
    imposed for similar offences committed in similar circumstances: at para. 53.

[150]

In concluding that the
    respondents sentence was demonstrably unfit, my colleague Huscroft J.A.
    identifies two principal concerns. These concerns focus on the use of Mr.
    Stuckless previous sentence by the sentencing judge and her treatment of this
    courts decision in
R. v. D.(D.)
(2002), 58 O.R. (3d) 788 (C.A.)
.
The result, in his view, is that the sentencing judge placed insufficient
    weight on the aggravating factors present in this case, and imposed an unfit
    sentence.

[151]

My colleague Pepall
    J.A., for her part, focuses her discussion on two other concerns. She first
    concludes that the sentencing judge underestimated the gravity of the offences,
    pointing to recent parliamentary reforms to support her point. She also finds
    that the sentencing judge inadequately considered the number of victims and the
    harm they suffered.

[152]

With respect, I am of
    the view that these concerns are not made out on the record. On the contrary,
    it is clear from the sentencing judges reasons that she correctly applied the
    principle of proportionality, such that appellate intervention is not warranted
    in the instant case.

ANALYSIS

[153]

The sentencing in this
    case concerned numerous serious sexual offences committed against children and
    the harm caused to the many victims was incalculable. My colleagues take no
    issue with the sentencing judges findings of fact, nor do they suggest that
    she applied the wrong sentencing principles. They have not identified any
    aggravating and mitigating factors different from those recognized by the
    sentencing judge.

[154]

The sentencing judges
    reasons demonstrate a thorough understanding of the gravity of the offences and
    the applicable sentencing principles. After an eight-day sentencing hearing,
    including two days of victim impact evidence from the majority of Mr.
    Stuckless victims and extensive submissions by counsel, the sentencing judge
    understood that the objectives of denunciation and deterrence in this case
    scream[ed] out for a lengthy period of incarceration: at para. 59.

[155]

The sentencing judge
    correctly observed the following:

[I]n sentencing child sex
    offenders the focus of the sentence must be on denunciation, general deterrence
    and protection of the public. While the other objectives are still relevant,
    they are not the primary focus of sentencing: at para. 55.

In her view, it was important that the sentence send a clear message
    that adult offenders who put the lives of innocent children at risk will pay a
    very heavy price and that it acknowledge the harm suffered by all of Mr.
    Stuckless victims and the courage and strength of all the victims that have
    come forward: at para. 1.

[156]

At sentencing, the
    Crown argued that a 12-year sentence was warranted in part because Mr.
    Stuckless represented a continuing danger to the public. As a result, the Crown
    urged the sentencing judge to give considerable weight to the principle of
    protection of the public in the determination of a fit sentence. This
    submission was, however, rejected by the sentencing judge, as she found that
    Mr. Stuckless, while he was a pedophile, represented no real risk to the
    public. This conclusion played an important role in her determination of the
    appropriate sentence. It is one of several unusual features of the sentencing
    in this case. It both explains the sentencing judges rejection of the Crowns
    proposed sentence and supports the finding that a six-and-a-half year sentence
    was, in all of the circumstances, fit.

[157]

Another unusual
    feature is that Mr. Stuckless was found guilty in 1997 of similar offences
    committed against 24 boys within the same time period as the offences now
    before the court. For these offences, this court considered a six-year sentence
    to be appropriate:
R. v. Stuckless
(1998), 41 O.R. (3d) 103 (C.A.) (
Stuckless
    1998
). That sentence has now long been served. As I will explain later in
    my reasons, this sentence was a useful benchmark that could be used by the
    sentencing judge as a starting point when she fashioned an appropriate sentence
    in this case.

[158]

After assessing Mr.
    Stuckless conduct since serving his sentence on the earlier charges, including
    the therapy he has received and the fact that he has been taking Lupron (a sex
    drive reducing drug) since 2002, the sentencing judge agreed with the expert
    evidence led at the hearing to the effect that Mr. Stuckless, who was 67 years
    old at the time, posed no real risk to reoffend. In fact, the trial judge went
    one step further by concluding, in effect, that Mr. Stuckless had been
    successful in his rehabilitation: at paras. 76, 116.

[159]

The sentencing judge
    also compared Mr. Stuckless offences and circumstances to those of
    offenders in approximately ten cases, identifying relevant similarities and
    differences with this case. In my view, the Crown has not demonstrated that
    these comparisons were flawed, nor have my colleagues made such a finding. The
    sentencing judges review of the jurisprudence demonstrates that she properly
    assessed the relevant cases and the sentence she set aligns with established
    precedent.

[160]

The sentencing judges
    reasons demonstrate that the sentence she fashioned accounts for both bases
    according to which proportionality is determined. She considered Mr. Stuckless
    personal circumstances, including his successful rehabilitation, and the
    offences he committed. She then situated these features relative to other
    relevant sentencing decisions. Balancing these considerations, she concluded
    that a six-and-a-half year sentence was fit in the circumstances. This result
    was consistent with the principle of proportionality and did not constitute an
    unreasonable departure therefrom.

A.

The sentencing judge did not misuse
Stuckless 1998
.

[161]

Contrary to my
    colleague Huscroft J.A., I do not consider that the sentencing judge
    overlooked the significant evolution in sentencing jurisprudence that has
    taken place since this courts decision in
Stuckless 1998
. The
    sentencing judge twice acknowledged that this courts decision in
D.(D.)
stood as the leading authority in sentencing for crimes of this nature, and
    that the sentence she imposed must be guided by that decision.

[162]

In
D.(D.)
,
    this court confirmed that the sentence imposed on Mr. Stuckless in 1998 was
    within the appropriate range of sentences to be imposed in the post-
D.(D.)
era, albeit at the lower end of the appropriate range of sentences for crimes
    of the magnitude committed by Stuckless: at para. 4.

[163]

The sentencing judge
    was careful not to apply
Stuckless 1998
blindly. She acknowledged that
    the range of sentences for sexual assault on children had increased since that
    sentence was imposed. She also found that the convictions she was dealing with
    involved more serious conduct than those in the 1998 sentence, including a few
    incidents of violence beyond what was implicit to the sexual offences, as well
    as four incidents of digital penetration.

[164]

However, as explained
    by the sentencing judge, the 1998 sentence was also relevant as the catalyst
    for Mr. Stuckless road to rehabilitation. She noted that, in 1998, there had
    been only a prospect of rehabilitation, but that rehabilitation was now a fact.
    This created an unusual situation. As Mr. Stuckless was being sentenced for
    offences committed in the same time period as those underlying the 1998
    sentence, he could, for sentencing purposes, be viewed as a first offender
    despite these earlier convictions. He would also benefit from the courts knowledge
    that the prior sentence had resulted in his successful rehabilitation and that
    he no longer constituted a risk to the public.

[165]

Stuckless 1998
thus provided a good starting point for the determination of a fit sentence in
    the present case. The sentencing judge took the aggravating factors that were
    not present in 1998, as well as the additional mitigating factors that were
    also present in this case, to determine that a somewhat higher sentence than
    the 1998 sentence would be necessary for a fit sentence to meet the principle
    of proportionality.

[166]

As a result, the use
    of the 1998 sentence, in the circumstances, contributed to, rather than
    departed from, the respect for the proportionality principle. It reflected both
    an awareness of personal considerations, especially Mr. Stuckless
    rehabilitation, and an exercise in comparing the facts of the underlying
    offences to those of similar cases.

B.

The sentencing judge did not consider herself limited to the
D.(D.)
ranges.

[167]

Another concern raised
    by my colleague Huscroft J.A. is that the sentencing judge appears to have
    considered
D.(D.)
to establish a cap on the range of available
    sentences, given what she described as the additional aggravating factors at
    play in that case.

[168]

I do not share this
    concern. Nowhere does the sentencing judge say that
D.(D.)
somehow set
    hard and fast categories, nor does she fixate on the presence or absence of any
    specific aggravating or mitigating factor to justify a given level of sentence.

[169]

The sentencing judge
    identified important differences between aggravating and mitigating factors
    involved in
D.(D.)
and in the case before her. It was ultimately for
    her to determine the weight to be given to these differences and to determine
    where, in the sample of comparable sentences, the sentence in this case should
    fall.

[170]

The sentencing judge
    was well aware of the aggravating features present but concluded that a
    sentence in the range of eight years or higher would not take into account all
    the mitigating factors she highlighted: at para. 119. As explained in
Lacasse
:

[D]etermining the weight to be
    given to aggravating or mitigating circumstances falls strictly within the
    sentencing judges discretion. The decision to weigh such factors in a given
    way is not in itself an error that opens the door to appellate intervention
    unless the weighing is unreasonable: at para. 78.

More than mere disagreement with the sentencing judges weighing is
    required in order to justify appellate intervention. The sentencing judges
    weighing must be found to be unreasonable.

[171]

Moreover, the fact
    that my colleague would have selected a different range from
D.(D.)
does not necessarily render the sentence demonstrably unfit. In
Lacasse
,
    the court held:

[T]he choice of sentencing range
    or of a category within a range falls within the trial judges discretion and
    cannot in itself constitute a reviewable error. An appellate court may not
    therefore intervene on the ground that it would have put the sentence in a
    different range or category: at para. 51.

[172]

In my view, the sentencing
    judge did not consider
D.(D.)
as a cap on the range of available
    sentences. It was another benchmark  albeit an important one  that she
    applied in fashioning Mr. Stuckless sentence. Her comparison of
D.(D.)
to the present case, as well as her choice of a sentencing range within the
    ones enumerated in that decision, are owed deference. Absent the identification
    of an unreasonable departure from the proportionality principle, appellate
    intervention is not justified.

C.

Legislative changes that took place after the offences were
    committed should not be considered on this appeal.

[173]

My colleague Pepall
    J.A. argues that the sentencing judge in this case unreasonably underestimated
    the gravity of the respondents offences. To support her argument, she references
    this courts decision in
R. v. D.M.
, 2012 ONCA 520, 111 O.R. (3d) 721,
    and relies on legislative changes introduced by Parliament in recent years.

[174]

I see no error in the
    sentencing judges consideration and application of
D.M. D.M.
was, in
    effect, a reiteration of the message delivered by this court in
D.(D.)
and, in any event, was applied by the sentencing judge. Further, as I will
    explain, my colleagues reliance on legislative changes to support her decision
    to impose a higher sentence is unfair and unwarranted.

(1)

The argument was not made on appeal

[175]

The legislative
    changes surrounding the offences with which the respondent was charged, as well
    as the legislative changes to the sentencing for the sexual abuse of children,
    were not argued on this appeal, nor were these changes mentioned in the
    parties submissions.

[176]

The 2005 and 2012
    changes were not even raised at the sentencing hearing. In his sentencing
    submissions, the trial Crown noted the recent passage of the
Tougher
    Penalties for Child Predators Act
, S.C. 2015, c. 23 (Bill C-26).
    Although he acknowledged that it could not be applied in this case, he asked
    the sentencing judge to recognize the clear and strong recognition from
    Parliament for the need for tougher penalties. The trial Crown also mentioned
    the
Victims Bill of Rights Act
, S.C. 2015, c. 13, which my colleague
    did not refer to in her reasons. Concerns over the sentencing judges
    consideration or use of the 2015 Acts were not raised on this appeal.

[177]

Moreover, not only do
    the offences predate the 2015 Acts  making them inapplicable  but Mr.
    Stuckless guilty plea also predates them. Mr. Stuckless pleaded guilty on
    April 22, 2014 and would certainly not expect that the sentence that may be
    imposed would be increased because the court would take into account a
    subsequent statutory amendment. This unfairness is exacerbated by the fact that
    the delay between his plea and sentencing is largely attributable to the
    Crowns decision to assess the respondent in relation to a dangerous offender
    application, an application that it ultimately abandoned.

(2)

What Parliament did when it amended the
Criminal Code
and
    the impact of these changes

[178]

My colleague argues
    that Parliaments legislative reforms governing sexual offences signal that
    societys denunciation of this conduct must be reflected in the sentences
    imposed by courts. She acknowledges that the amendments are not applicable in
    this case but nonetheless finds that they indicate a significant societal
    recognition of the gravity of sexual offences against children and reflect
    societys better understanding of harm caused by these offences to victims and
    the community, and the need to address this harm in the sentencing process.

[179]

I take no issue with
    the need for sentences to reflect societys understanding of the harm caused by
    offenders to victims and the community. This is the daily fare of sentencing
    judges: see
Lacasse
, at paras. 48, 102. In fact, it was the
    recognition of the horrific consequences of child sexual abuse that led this
    court, in
D.(D.)
,

to substantially raise the sentences
    imposed on these offenders.
D.(D.)
brought about a real sea change to
    the sentencing of offenders who sexually assault children:
D.M.
, at
    para. 26. A review of the various statutory amendments since
D.(D.)
shows
    that, in essence, they enact the principles developed by this court in
D.(D.)
and other courts well before Parliament chose to codify them: see e.g.
R.
    v. DeJaeger
, 2015 NUCJ 2, at para. 130, affd 2018 NUCA 7;
R. c.
    Bergeron
, 2013 QCCA 7, EYB 2013-216007, at para. 70.

[180]

The sentencing judges
    reasons show that she clearly understood the need to address the harm caused to
    victims and the community. She referenced and applied the principles that my
    colleague argues flow from the various statutory amendments, albeit as flowing
    from this courts decision in
D.(D.)
and cases such as
DeJaeger
.
    At the very outset of her reasons, she stated:

[T]he starting point must be that
    the sentence I impose must protect the public and ensure that Mr. Stuckless
    will never again hurt another child. My sentence must also send a clear message
    that adult offenders who put the lives of innocent children at risk will pay a
    very heavy price. My sentence must also acknowledge the harm suffered by all of
    Mr. Stuckless victims and the courage and strength of all the victims that
    have come forward: at para. 1.

[181]

To suggest that the
    legislative amendments supported the imposition of a sentence in excess of that
    reached as a result of the application of the
D.(D.)
principles is
    unjustified as it would, in effect, involve the application of the same
    aggravating factors twice to the same offences.

[182]

Later in her reasons,
    however, my colleague references the 2005, 2012, and 2015 amendments and states
    that this court and other appellate courts across Canada have acknowledged that
    sexual offences against children must be interpreted in the context of these
    amendments and what they signal about the gravity of the offence.

[183]

To the extent that my
    colleague is thereby suggesting that the statutory amendments signaled the need
    for sentencing judges to change how they would otherwise appropriately assess
    the gravity of these offences resulting in higher sentences, I respectfully
    disagree. Such an interpretation would, in effect, amount to a retrospective
    application of legislated changes regarding sentence.

[184]

Section 11(i) of the
Charter
provides that a convicted person is entitled to the benefit of the lesser
    punishment that is in place between the time of the commission of the offence
    and the time of sentencing. The use of post-offence legislative changes to
    alter the weight to be assigned to a given factor, and thus increase the
    sentence that would otherwise be imposed, amounts to doing indirectly what
    cannot be done directly and is thus in violation of the
Charter
.

[185]

It is well-established
    that a legislative amendment setting or increasing a minimum sentence should
    generally not be applied retrospectively: see
R. v. K.R.J.
, 2016 SCC
    31, [2016] 1 S.C.R. 906, at para. 22. In my view, there is no substantive
    difference between a higher sentence that results from the retrospective
    application of a parliamentary amendment setting a minimum sentence and a
    higher sentence that is due to the retrospective application of an amendment
    signalling that offences must be considered to be more serious. Both
    scenarios involve the consideration of post-offence legislation to give a
    higher sentence to an offender. In both cases, therefore, this results in a
    violation of s. 11(i) of the
Charter
.

D.

The sentencing judge did not omit important details and she
    properly considered the significance of the number of victims and the harm they
    suffered.

[186]

My colleague Pepall
    J.A. also argues that, when the sentencing judge allocated the sentence among
    the charges, she omitted important details, such as the fact that two of the
    victims had screamed in pain while being assaulted and that one victim was
    threatened with being run over by a car. Each of these facts, however, were set
    out in the sentencing judges reasons: at paras. 12, 29 and 30. There is no
    basis for the suggestion that, while being aware of these facts, the sentencing
    judge somehow neglected to factor them in her assessment of the appropriate
    sentence.

[187]

My colleague suggests
    that the sentencing judge did not give adequate consideration to the victims in
    this case. According to my colleague, the sentencing judge minimized the
    significance of the number of victims and failed to appreciate the depth of
    harm caused by the respondent.

[188]

I disagree. The
    profound psychological impact the assaults had on the victims was central to
    the sentencing judges reasoning and determination of the appropriate sentence.
    She specifically stated that the sentence proposed by the defence did not
    properly reflect the extent of the harm caused by Mr. Stuckless and the large
    number of victims who have suffered: at para. 119.

[189]

The sentencing judge
    had the benefit of eight days of hearings on sentencing, including extensive
    testimonies from some of the victims. At the very outset of her reasons, the sentencing
    judge stated that her sentence needed to acknowledge the harm suffered by all
    of Mr. Stuckless victims: at para. 1. She said that [i]t [was] difficult, if
    not impossible, to put into words the harm that Mr. Stuckless has caused so
    many people: at para. 50. She found that the victim impact statements were
    tangible, overwhelming, at times and utterly heart wrenching and recognized
    the extensive harm each victim has suffered: at para. 50.

[190]

The sentencing judge
    also readily acknowledged that [t]he harm suffered does not go away and that
    the memories, the flashbacks, the post-traumatic stress disorder, the broken
    relationships, lost dreams, all continues even today so many years later: at
    para. 52.

[191]

A fair reading of the
    reasons demonstrates that the sentencing judge considered the number of victims
    and its significance in her analysis and appreciated the extent of the harm
    that the victims suffered, and still suffer today.

CONCLUSION

[192]

There is no denying
    that these were truly horrendous crimes with severe impacts on the numerous
    victims. The aggravating factors present in the case were extensive, including
    the number of victims, abuse of trust, the use of manipulation, and the
    prolonged and persistent nature of the abuse. The sentencing judge was,
    however, aware that her role involved more than the assessment of the harm
    caused to the victims. As she explained:

I am mindful that given the harm
    caused by Mr. Stuckless over so many years to so many people that it is
    difficult and often unpopular to even suggest any mitigation. I am required,
    however, by law, to consider all the evidence objectively, put emotion aside
    and make findings of fact on the evidence presented before me: at para. 72.

[193]

The mitigating factors
    included Mr. Stuckless remorse, the abuse he suffered as a child, his guilty
    plea, his low risk of reoffending, his presence in the community without
    incident since 2001, and his dedication to his rehabilitation, as he had been
    taking Lupron since 2002.

[194]

The resulting sentence
    is not a minimization of the harm of the victims. Rather it is, as it must be,
    a balancing exercise that must take both aggravating and mitigating factors
    into account.

[195]

Ultimately, what is
    relevant at this stage of the proceedings is whether the 6.5-year sentence
    imposed is demonstrably unfit, such that this court may intervene. In my
    opinion, having regard to the deference that is owed to sentencing judges, the
    answer is no.

[196]

The sentencing judges
    reasons exhibit a full appreciation of the relevant sentencing principles,
    aggravating factors, personal circumstances, and relevant case law. She
    conducted extensive jurisprudential comparisons, and her assessment was a
    proper application of the proportionality principle. Absent an unreasonable
    departure from that principle, it is not open for this court to vary the
    sentence.

[197]

Indeed, as stated by
    Sharpe J.A. in
R. v. S.C.
, 2019 ONCA 199, [a] longer sentence could
    discourage guilty pleas and undermine the interest of rehabilitation: at para.
    35. In this case, as it is not clear that a longer sentence would appreciably
    add to the deterrent effect of the sentence that was imposed, this court
    should defer to the sentencing judges assessment of the proper sentence:
S.C.
,
    at para. 35.

[198]

For these reasons, I
    would grant leave to appeal sentence but, with one exception, dismiss the
    appeal. The parties agree that the six-year net sentence imposed for the counts
    of gross indecency should be reduced to the maximum of five years, concurrent
    to the sentence imposed on the other counts.

Released: June 18, 2019

PR

Paul Rouleau J.A.





[1]
The
Tougher Penalties for Child
    Predators Act
, S.C. 2015, c. 23, enacted s. 718.3(7) of the
Criminal
    Code
to require that sentences of imprisonment for sexual offences
    against multiple children be served consecutively. This law does not
    apply in the circumstances of this case. It was not raised by the
    parties and its impact need not be addressed here.



[2]

Criminal Code
, S.C. 1953-54, c. 51, s. 148;
Criminal
    Code
,

R.S.C. 1970, c. C-34, s. 156.



[3]

An Act to amend the Criminal Code in relation to sexual offences and other
    offences against the person and to amend certain other Acts in relation thereto
    or in consequence thereof
, S.C. 1980-81-82-83, c. 125, s. 9 (came into
    force 1982, effective date of repeal January 4, 1983).



[4]

Criminal Code
, S.C. 1953-54, c. 51, s. 149;
Criminal
    Code
, R.S.C. 1970, c. C-34, s. 157.



[5]

An Act to amend the Criminal Code and the
    Canada Evidence Act
, R.S.C. 1985 (3d Supp.), c. 19, s.
    4 (came into force in 1987, effective date of repeal January 1, 1988).



[6]

Criminal Code
, S.C. 1953-54, c. 51, s. 147;
Criminal
    Code
, R.S.C. 1970, c. C-34, s. 155.



[7]

An Act to amend the Criminal Code and the
    Canada Evidence Act
, S.C. 1987, c. 24, s. 3.



[8]
In 2016,
Bill C-32,
An Act related to the repeal of section 159 of
    the Criminal Code
, was introduced in the House of
    Commons to repeal s. 159.



[9]
The one year mandatory minimum sentences enumerated in ss. 151 and 152 of the
Criminal Code
have been struck down as
    unconstitutional in a number of Superior Court decisions including
R. v. B.J.T.
, 2016 ONSC 6616, and
R. v. Hussein
, 2017 ONSC 4202.
B.J.T.

has been appealed to this
    court. One of the grounds of appeal relates to the constitutionality of the
    mandatory minimum. The appeal was heard by this court in February 2019. The
    judgment is currently under reserve (C62978).



[10]
The Crowns submissions before the sentencing judge referenced the most recent
    amendments to the
Criminal

Code
relating to sexual offences against
    children and which were part of a series of legislative reforms that included
    the 2005 and 2012 amendments.


