



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. T.J., 2021 ONCA 392

DATE: 20210608

DOCKET: C68889

Hoy, Hourigan and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

T.J.

Respondent

Erica Whitford and Madeline Lisus, for the appellant,
    the Crown

Wayne A. Cunningham, for the respondent

Heard: May 7, 2021 by videoconference

On appeal from the sentence imposed on November 10, 2020
    by Justice Alexander D. Kurke of the Superior Court of Justice.

Zarnett
    J.A.:

I.

INTRODUCTION

[1]

As a result of a complaint to the police in 2017, the respondent was
    charged with sexual interference, invitation to sexual touching, and sexual
    assault against C.M., a child. The offences occurred on one occasion in 2010 or
    2011 when C.M. and her brother were at the respondents home for a sleepover
    with his sons. At the time, C.M. was six or seven years old.

[2]

The trial judge found that late at night, the respondent directed C.M.
    into the bathroom. He took her hands and placed them on his penis. He used
    C.M.s hands to rub his penis, which became aroused, telling her that this is
    how you do it. This went on for a few minutes; the respondent then told C.M.
    that she could put her mouth on his penis. At that point, C.M. pulled away and
    left the room.

[3]

The trial judge convicted the respondent of all three offences. He
    conditionally stayed the sexual interference and invitation to sexual touching
    convictions. On the sexual assault conviction, he imposed a sentence of 9
    months in custody, followed by two years probation. He also made certain
    ancillary orders.

[4]

The Crown seeks leave to appeal the sentence arguing that the 9-month
    sentence failed to recognize and reflect the inherent wrongfulness and
    harmfulness of the respondents conduct and is demonstrably unfit. The Crown
    asks that a two-year sentence be imposed.

[5]

For the reasons that follow, I would grant leave to appeal and allow the
    appeal. The trial judge erred in principle and imposed a sentence that was
    demonstrably unfit. I would increase the period of incarceration to 24 months.

[6]

Based on the fresh evidence, it would not be in the interests of justice
    to reincarcerate the respondent who has completed the custodial sentence the
    trial judge imposed; accordingly, I would stay the execution of the additional
    sentence.

II.

The sentencing DECISION

[7]

In deciding an appropriate sentence, the trial judge noted several
    matters about the respondent and his circumstances:

·

he had no prior criminal record;

·

he was a devoted father and a supportive ex-spouse;

·

he had previously been arrested for the domestic assault of
    another woman, but the matter was diverted upon his completion of the Partner
    Assault Response course;

·

he was in a new relationship and has helped to raise two children
    (in addition to his children from a prior relationship);

·

he has a history of substance use, for which he has attended
    counselling;

·

he had been on bail for three years without any concerns; and

·

he had worked for his father over a lengthy period.

[8]

The trial judge referred to the principles in s. 718 of the
Criminal
    Code of Canada
, R.S.C., 1985, c. C-46 and in
R. v. Friesen
, 2020
    SCC 9, 444 D.L.R. (4th) 1. He noted that C.M. was very youthful and very
    vulnerable vis-à-vis the respondent, who was clearly and undoubtedly in a
    position of trust over her. The trial judge also referred to the victim impact
    statement by C.M.s mother which discussed the stress of court proceedings and
    the difficulties that [C.M.] has faced in dealing with this incident and its
    sequelae. He also observed that the respondent had not expressed any remorse.

[9]

The trial judge explained that the principles of denunciation and
    deterrence required him to reject the defence request for a conditional
    sentence of 9-12 months:

there was sexual interaction with a young child by a person in
    a position of trust. The public, quite frankly, would be shocked if a jail
    sentence was not imposed, but they would understand that the pro-social conduct
    of [the respondent] and the risks of COVID-19 in jail cannot be entirely
    disregarded. Proportionality has to be considered. Those factors have to be
    taken into account in the individualized process of sentencing.

[10]

The
    trial judge concluded that if not for so many things that speak in [the
    respondents] favour and COVID-19, an appropriate sentence would have been 15-24
    months. However, he would not impose a sentence that would keep the respondent from
    resuming being a contributing member of society  that would be crushing. The
    trial judge settled on 9 months in custody, and in so doing, rejected the Crowns
    request for a period of incarceration between 18 months and 3 years.

III.

THE PARTIES POSITIONS

[11]

The
    appellant argues that the trial judge:

1)

failed to give meaningful effect to
Friesen
;

2)

improperly overemphasized mitigating factors;

3)

erred in reducing the sentence based on COVID-19; and

4)

imposed a demonstrably unfit sentence.

[12]

The
    appellant asks that a sentence of two years incarceration be substituted.

[13]

The
    respondent submits that the trial judge made no error of law or principle that
    affected the sentence and that the sentence imposed is not demonstrably unfit. He
    also seeks to introduce fresh evidence. The Crown does not oppose this request.
    The fresh evidence indicates that the respondent has completed his custodial
    sentence and has been granted full parole, effective February 9, 2021. The
    respondent submits that even if this Court increases the sentence, it should
    stay any additional period of incarceration, as it would not be in the interests
    of justice to reincarcerate him.

IV.

ANALYSIS

A.

When is Appellate Intervention in a Sentencing Decision Warranted?

[14]

The
    standard of review applied to a sentencing decision was reaffirmed in
Friesen
:
    [A]n appellate court can only intervene to vary a sentence if (1) the sentence
    is demonstrably unfit or (2) the sentencing judge made an error in principle
    that had an impact on the sentence: at para. 26.

[15]

A
    sentence is demonstrably unfit if it is clearly unreasonable, clearly excessive
    or inadequate, or if it represents a substantial and marked departure from the
    fundamental principle of proportionality:
R. v. Lis
, 2020 ONCA 551,
    152 O.R. (3d) 125, at paras. 43, 69. If a sentence is demonstrably unfit, or if
    the sentencing judge made an error in principle that had an impact on the
    sentence, we must perform our own sentencing analysis to determine a fit
    sentence using the applicable sentencing principles but deferring to the
    sentencing judges findings of fact and identification of aggravating and
    mitigating factors, except to the extent they are affected by an error in
    principle:
Lis
, at para. 44.

B.

Was the Sentence in this Case Demonstrably Unfit or Affected by Errors
    in Principle?

[16]

I
    agree with the Crown that the sentence imposed by the trial judge reflects
    errors in principle and was demonstrably unfit. That result follows directly
    from
Friesen
.

(1)

Friesens
Message

[17]

In
Friesen
, the Supreme Court of Canada sent a strong message that:

sexual offences against children are violent crimes that
    wrongfully exploit childrens vulnerability and cause profound harm to children,
    families, and communities.
Sentences for these crimes must increase.
Courts must impose sentences that are proportional to the gravity of sexual
    offences against children and the degree of responsibility of the offender, as
    informed by Parliaments sentencing initiatives and by societys deepened
    understanding of the wrongfulness and harmfulness of sexual violence against
    children.
Sentences must accurately reflect the wrongfulness of sexual violence
    against children and the far-reaching and ongoing harm that it causes to
    children, families, and society at large. [Emphasis added.]:
at para. 5.

[18]

Three
    parts of the message in
Friesen
are relevant here: (1) the importance
    of properly considering the wrongfulness and harmfulness of sexual offences
    against children in determining a proportionate sentence; (2) the priority
    given by Parliament to the sentencing objectives of denunciation and deterrence
    for these offences; and, (3) the guidance given on the length of sentences for
    these offences.

Wrongfulness, Harmfulness and
    Proportionality

[19]

A
    sentence must be proportionate to the gravity of the offence and the degree of
    responsibility of the offender  this is the fundamental principle of
    sentencing. As
Friesen
explains, the wrongfulness and harmfulness of
    sexual offences against children are pivotal to both aspects of the assessment
    of proportionality: at para. 75.

[20]

When
    considering the gravity of the offence, courts
must
recognize and give
    effect to (1) the inherent wrongfulness of these offences; (2) the potential
    harm to children that flows from these offences; and, (3) the actual harm that
    children suffer as a result of these offences (emphasis added): at para. 76.

[21]

The
    inherent wrongfulness of sexual offences against children flows from the violent
    and exploitative nature of the conduct:

any physical contact of a sexual nature with a child
always
constitutes a wrongful act of physical and psychological violenceCourts must
always
give effect to this inherent violence since it forms an integral component of
    the normative character of the offenders conduct [emphasis added.]: at para.
    77.

[22]

And,
    since it is always inherently exploitative for an adult to apply physical force
    of a sexual nature to a child, courts must
always
give effect to the
    wrongfulness of this exploitation in sentencing (emphasis added): at para. 78.

[23]

The
    harm caused by sexual offences against children must be weighed in a manner
    that reflects societys deepening and evolving understanding of their
    severity: at para. 74. This includes considering, in addition to actual harm
    that may have been experienced up to the time of sentencing, the reasonably
    foreseeable potential harm that may only materialize later in childhood or in
    adulthood. To do otherwise would falsely imply that children simply outgrow the
    effects of sexual offences against them: at paras. 84-86.

[24]

These
    elements of wrongfulness and harm pertain as well to the offenders degree of
    responsibility. Intentionally applying force of a sexual nature to a child is:

highly morally blameworthy because the offender is or ought to
    be aware that this action can profoundly harm the child.



The fact that the victim is a child increases the offenders
    degree of responsibilitythe intentional sexual exploitation and
    objectification of children is highly morally blameworthy because children are
    so vulnerable
[1]
:
    at paras. 88, 90.

Parliament Gives Primacy to Denunciation
    and Deterrence

[25]

Section
    718.01 of the
Code
gives priority to denunciation and deterrence over
    other sentencing objectives where the offence involves the abuse of children.

[26]

A
    sentence expresses denunciation by condemning the offender for encroaching on
    our societys basic code of values; it expresses deterrence by discouraging
    the offender and others from engaging in criminal conduct. Considerations of
    general deterrence lead to an offender being punished more severely than he or
    she might otherwise deserve in order to send a message to others:
Lis
,
    at para. 55.

[27]

The
    provisions of s. 718.01 not only mean that denunciation and deterrence must be
    the primary objectives of the sentence, but that it is no longer open to a
    sentencing judge to elevate other sentencing objectives, for example
    rehabilitation, to equivalent or greater priority than denunciation and
    deterrence in determining a proportionate sentence. These other objectives may
    be given significant weight, but not priority or equivalency:
Lis
, at
    paras. 47-48, 53;
Friesen
,
at paras. 101-4.

[28]

As
    the court in
Friesen
concluded, prioritizing the objectives of
    denunciation and deterrence confirms the need for courts to impose more severe
    sanctions for sexual offences against children: at para. 101. That need is
    directly related to the form of sanction required, as separation from society
    reinforces and gives practical effect to denunciation and deterrence: at para.
    103.

The Length of Sentences

[29]

To
    ensure that effect is given to the wrongfulness and harmfulness of sexual
    offences against children and Parliaments sentencing initiatives,
Friesen
provided guidance about the appropriate length of sentences. To follow that
    guidance, upward departure from prior precedents and sentencing ranges may be
    required: at paras. 108-14.

[30]

While
    noting that judges must retain the flexibility to do justice in individual
    cases,
Friesen
conveyed an overall message that:

mid-single digit penitentiary terms for sexual offences against
    children are normal and that upper-single digit and double-digit penitentiary
    terms should be neither unusual nor reserved for rare or exceptional
    circumstances. We would add that substantial sentences can be imposed where
    there was only a single instance of sexual violence and/or a single victim: at
    para. 114.

[31]

Friesen
also re-emphasized the importance of certain aggravating factors in sexual
    offences involving a child. It noted that abuse of a position of trust or
    authority should usually result in a higher sentence than one of an offender
    who is a stranger to the child, and that the age of the victim is a significant
    aggravating factor because of the length of time they must endure the
    consequential harm of sexual violence: at paras. 130-34.

(2)

The Trial Judge Made Errors in Principle That Impacted the Sentence

[32]

In
    my view, the reasons as a whole do not give the inherent wrongfulness of the
    conduct, its highly morally blameworthy nature, and the extent of harm caused to
    C.M., the centrality that
Friesen
demands in sentencing. Nor do the
    reasons give paramountcy to the principles of denunciation and deterrence. Those
    errors impacted the sentence and justify appellate intervention.

[33]

Where
    the overall focus of a sentencing decision is on the personal circumstances of
    the offender and the need for restraint, so as to underestimate the gravity of
    the offences and their harm, the sentencing decision is not consonant with
Friesens
message. As Spivak J.A. stated in
R. v. S.A.D.F
., 2021 MBCA 22:

The sentencing judge stated that the offending behaviour was
    serious, and referred generally to the harmful consequences of this type of
    abuse, and the need to send a message to protect children. However, as
    indicated in
Friesen
, it is not sufficient to simply state that
    sexual offences against children are serious; sentences imposed must reflect
    the normative character of the offenders actions and the consequential harm.
    The sentencing judge spoke, at some length, about the accuseds background and
    the principle of restraint. Yet, there was little comment on the specifics of
    these offences and the circumstances under which they were committed, beyond
    saying that the children were very young and the accused was in a position of
    trust. In my view, the sentencing judges focus on the personal circumstances
    of the accused, rather than the circumstances of the offences, led her to
    unreasonably underestimate the gravity of the offences and the paramount
    principles of denunciation and deterrence: at para. 34.

[34]

That
    is what occurred here.

[35]

Although
    the trial judge referred briefly to the circumstances of the offence, C.M.s
    young age, and the respondents position of trust, he paid particular attention
    to the personal circumstances of the respondent. He made a brief reference to
    the harm C.M. suffered, and no reference to the harm she may continue to suffer,
    from the inherently violent and exploitative conduct to which the respondent
    subjected her. Conversely, he emphasized the consequences the respondent would
    suffer from a significant custodial sentence.

[36]

The
    trial judge relied on the respondents circumstances including that he was a
    first offender who was supportive of and supported by his family. He also
    expressed a desire not to impose a sentence that would prevent the respondent
    from being a contributing member of society and considered the effect of the
    pandemic.

[37]

The
    trial judge was entitled to give significant weight to the sentencing
    principles those circumstances engage, but he was not entitled to give them
    priority, or even equal weight, to denunciation and deterrence:
Friesen
at paras. 101-4;
Lis
at paras. 47-48. He was also entitled to consider
    the pandemic as a collateral consequence, because it bears on the impact of the
    sentence on the offender. He was not, however, entitled to permit it to reduce
    a sentence to one that is disproportionate to the gravity of the offence or the
    moral blameworthiness of the offender:
R. v. Morgan
, 2020 ONCA 279, at
    paras. 10-11. As this court noted in
R. v. Woodward
, 2011 ONCA 610,
    107 O.R. (3d) 81, at para. 76, the focus of sentencing an adult who has
    exploited an innocent child should be on the harm caused to the child and the
    offenders conduct; the effects of the sentence on the offender and his
    prospects for rehabilitation, while warranting consideration, cannot take
    precedence.

[38]

Here,
    the trial judge allowed these considerations to take precedence and reduce the sentence
    below what was appropriate. The trial judge stated that a sentence between 15
    to 24 months in custody would have been appropriate, which I take to mean
    appropriate given the gravity of the offence and the moral blameworthiness of
    the offender. But he was not prepared to impose a sentence in that range.
    Instead, he relied on these considerations to reduce the sentence by 15 months
    from the top, and 10.5 months from the midpoint, of his range  in either case
    by an amount greater than the length of the sentence he did impose  resulting
    in a sentence significantly below the low point of what he deemed appropriate.

[39]

The
    result reached by the trial judge does not comport with the guidance in
Friesen
as to the length of sentences.
Friesen
does not simply contain a list
    of principles and factors to be mentioned in a sentencing decision; it insists
    that those factors be reflected in a sentence that is of sufficient length to
    recognize them. I repeat
Friesens
guidance: mid-single digit
    penitentiary terms for sexual offences against children are normalsubstantial
    sentences can be imposed where there was only a single instance of sexual
    violence and/or a single victim: at para. 114.

[40]

The
    trial judge did not explain why the sentence he imposed could be considered
    substantial. He began with a range which, at its high end, was the lowest
    possible penitentiary term. He then imposed a sentence substantially reduced even
    from that range.

[41]

For
    these reasons, I conclude that the trial judge erred in principle and that the
    errors had an impact on the sentence he imposed.

(3)

The Sentence Was Demonstrably Unfit

[42]

A
    sentence may be demonstrably unfit if it was required, but fails, to respect
    the primacy of the sentencing objectives of denunciation and deterrence. Such a
    sentence is a substantial and marked departure from the principle of
    proportionality:
Lis
, at paras. 98-99. This sentence suffers from that
    flaw.

[43]

The
    respondent relies on
R. v. R.L.S.
, 2020 ONCA 338, where this court
    dismissed an appeal against a nine-month sentence for a 51-year-old first-time
    offender convicted of sexual offences against his 4 to 6 year-old daughter.

[44]

R.L.S.
does not assist the respondent. In that case, the issue was whether the
    sentence was too harsh. In explaining why it was inappropriate to reduce the
    sentence, the court noted that the sentence was lenient in light of the
    principles explained in
R. v. Friesen.
: at para. 9. The court was not
    required to consider the question of whether the sentence was so lenient that
    it was unfit  the issue here.

[45]

In
    my view, the sentence imposed was demonstrably unfit.

C.

What is the Appropriate Sentence?

[46]

The
    respondents behaviour was inherently wrongful. He abused his position of trust
    over a young child. His conduct included not only sexual touching but an
    invitation that C.M perform fellatio. It was highly morally blameworthy. His
    conduct was violent, exploitative, and harmful to C.M. and her family.

[47]

Giving
    priority, as is required, to the objectives of deterrence and denunciation, a
    substantial sentence of incarceration is required. I would set that period at 24
    months. Doing so gives weight (but neither priority nor equality) to the other factors
    the trial judge took into account, and maintains the two-year probation order that
    the trial judge imposed.

D.

Should the Respondent be Reincarcerated?

[48]

As
    I would increase the respondents sentence, the controlling question becomes
    whether it is in the interests of justice for him to be reincarcerated
: R.
    v. Cheng
(1991), 50 O.A.C. 374 (C.A.), at para. 5.

[49]

I
    would admit the fresh evidence on this issue. The respondent has served the
    custodial portion of his sentence and has been released into the community by
    the Parole Board, in part on the basis that treatment available to him there,
    which will advance his reintegration, surpasses that available to him in
    custody, and in part based on his low risk of re-offending. These considerations,
    along with the likelihood of early parole if there were reincarceration and the
    recognition that reincarceration would impose considerable additional hardship,
    lead to the conclusion that the interests of justice do not require
    reincarceration in this case:
R. v. Davatqar-Jafarpour
, 2019 ONCA 353,
    146 O.R. (3d) 206, at paras. 50, 53-54.


V.

CONCLUSION

[50]

Accordingly,
    I would grant leave to appeal, allow the sentence appeal, and substitute a
    custodial sentence of 24 months. The other terms of the sentence imposed by the
    trial judge should remain in effect. I would stay the execution of the balance
    of the sentence of incarceration not yet served.

Released: June 8, 2021 A.H.

B. Zarnett J.A.

I agree. Alexandra Hoy
    J.A.

I agree. C.W. Hourigan
    J.A.





[1]

Moral
    culpability may be reduced in specific cases, such as for person who suffer
    from mental disabilities or where systemic and background factors played a role
    in bringing an Indigenous person before the court:
Friesen
, at
    paras. 91-92.


