R. v. W.V., 2022 ONCJ 278

ONTARIO COURT OF JUSTICE CITATION: R. v. W.V., 2022 ONCJ 278 DATE: March 31, 2022 COURT FILE No.: Central East Region BETWEEN: HER MAJESTY THE QUEEN — AND — W.V. Before Justice F. Javed Heard on August 13, September 30, December 2, 2021, February 22, 28, 2022 Reasons for Sentence: March 31, 2022 B. Hart/M. Fabre ............................................................................... counsel for the Crown W.V. ................................................................................................................ self-represented F.

JAVED J.: Overview [ 1 ] “I DD take full responsibility for all my actions towards you. I am truly sorry.” – These were the words written by the offender, W.V., in a letter of apology to his younger foster-sister J.D., after he confessed to sexually assaulting her over the span of 8 years during their childhood. W.V. began to have sexual intercourse with his foster-sister when he was 12 and she was 8 years old. The sexual abuse continued, largely interrupted, until he was 20 and she was 16 years old. J.D. tried to tell the world she was being sexually assaulted, but nobody listened.

W.V. denied sexually assaulting J.D. until 2020 when he found religion and confessed his crimes to his pastor. J.D. told the police she was sexually assaulted over two hundred times. W.V. says in fact, it was well over a thousand times. W.V. believes he suffers from a serious sexual addiction which ruined his life and consumed him with years of guilt. [ 2 ] W.V. pled guilty to one count of sexual assault contrary to s.271(1) of the Criminal Code (“ Code ”) . The police laid two informations charging him as an adult and as a youth.

The Crown proceeded by indictment on the adult information which spans two years from November 29, 1998, to December 31, 2000 [1] . [ 3 ] The court is tasked with sentencing W.V. for his crimes which is especially challenging for three reasons. First, W.V. chose to represent himself despite recommendations he engage the services of legal counsel. He refused and it was his right to do so. The court respected his decision and the matter proceeded as a self-represented litigant. Second, both W.V. and J.D. have Indigenous (or Aboriginal) roots as adopted foster-children.

Despite attempts to obtain meaningful information about W.V.’s Aboriginal roots that would help the court with fashioning an appropriate sentence, this information is not available.

Third, W.V.’s crimes involve historical sexual offences which pose unique sentencing challenges. [ 4 ] The legal question for the court to decide can be framed as follows: What is a fit and proportionate sentence in the circumstances of this historical sexual abuse case involving an exceptionally remorseful offender? [ 5 ] The Crown says a fit sentence is 8 years imprisonment with several ancillary orders which would give effect to the dominant sentencing principles of general deterrence and denunciation. W.V. is a mature first offender and doesn’t want to be separated from his

support network in the community but understands he may be incarcerated for the harm he inflicted on his foster-sister. His greatest hope is to get counselling for his sexual addiction. He threw himself at the mercy of the court. [ 6 ] On August 13, 2021, the guilty plea was entered after a Judicial Pre-trial and a comprehensive plea comprehension inquiry under s.606(1.1) of the Code . Given W.V.’s decision to represent himself and the courts obligation to provide reasonable assistance to a self- represented litigant, the sentencing hearing became delayed for two reasons.

First, the court ordered a Pre-Sentence Report (“PSR”) pursuant to s.721 of the Code to learn about W.V.’s background, which revealed W.V.’s Aboriginal roots. The court ordered a separate report from Aboriginal Legal Services pursuant to the principles in R. v. Gladue [2] (“ Gladue report”) which assists courts in applying specific principles when sentencing Aboriginal offenders. A fulsome Gladue report could not be prepared for reasons I will discuss below. Second, the sentencing hearing was delayed due to the circumstances of the pandemic which limited in-person court appearances.

While W.V. offered to participate virtually, the court ordered an in-person hearing which is presumed in the Code . Unfortunately, a safe in-person hearing became delayed and in the interim, W.V. sought medical treatment at Ontario Shores in Whitby, Ontario. The court requested written sentencing submissions from the Crown so W.V. could meaningfully respond. The Crown obliged and W.V. was given an opportunity to respond in writing but chose to make oral submissions. On February 28, 2022, the parties delivered oral arguments and I fixed a date for judgment.

I permitted W.V. to file any new arguments in writing one week prior to the sentencing date in case he forgot to tell the court everything he wanted to before being sentenced. W.V. did not file any further materials. On March 29, 2022, the court was unavailable to attend in-person and the Crown sought to reopen the sentencing submissions to permit J.D. to have her victim input, which was previously filed as an exhibit, read into the record. The Crown advised, through inadvertence, this was not done at the hearing when J.D. had clearly expressed her right to do so.

After W.V. consented, I ruled it was in the interests of justice do so and permitted W.V. to make further submissions, if any, after the victim input was read in. He chose not to – simply apologizing again. [ 7 ] These are the courts’ reasons for sentence. The reasons will proceed in three parts.

Part 1 will examine the facts including the circumstances of the sexual offences, the background of W.V. and the circumstances of the victim, J.D.

Part 2 will involve a discussion of the applicable legal principles that must guide the courts’ analysis. These two sections will provide some necessary context.

Part 3 will apply the facts to the law and explain how the court arrived at its sentence in this case.

Part 1 – The Facts A. The Circumstances of the Offence [ 8 ] At the insistence of the court, the parties agreed to reduce the agreed facts to writing pursuant to s.655 of the Code . This resulted in an interesting development. When the Crown shared their proposed version of the facts with W.V., he agreed with them but wanted to add more so the court could have a clear and complete picture of what happened.

As a result, he provided a typed note to the Crown explaining the true nature of the sexual assaults which increased the severity of the sexual intercourse from 200 occasions as estimated by J.D., to 1172 occasions based on W.V.’s memory. This stunning revelation came with a note explaining how W.V. arrived at this number which included memorializing the assaults in a notebook. Accordingly, the parties re-drafted the facts, which were jointly tendered as an exhibit. A

summary of the material facts, with appropriate editing for grammar, are as follows. [ 9 ] W.V. and J.D. are foster siblings who were raised in a foster family with other foster siblings. W.V. is approximately four years older than J.D. W.V. began to sexually assault J.D. when she was 8 years old. From the ages of 8-10, W.V. touched her inappropriately. He would ask her to play in tents in the yard and touch her vagina and breasts. He also pulled down her pants and put sticks in her vagina. [ 10 ] From 10-13, the sexual touching escalated to sexual intercourse.

This took place in the woods on the family’s rural property as well as in the basement on a pull-out couch. W.V. would rub her leg while she was watching Charlotte’s Web and push himself on her and have intercourse with her. She often wore a nightgown, which he would leave on but pulled down her underwear. J.D. also recalled one occasion when W.V. had intercourse with her in a truck. There were occasions where W.V. would make her pull on his penis or suck on it.

J.D. recalled W.D. had sexual intercourse with her about 200 times. [ 11 ] When J.D. turned 13, she disclosed the sexual abuse to friends at church who reported the matter to her foster mother. The Children’s Aid Society (“CAS”) were contacted and investigated the matter. J.D. said her foster parents forced her to write a letter recanting the criminal allegations because they lived in a small and very religious Mennonite community. She alleged her foster parents and CAS told her she had Fetal Alcohol Syndrome and “kids with FAS lie”.

W.V. denied sexually assaulting her. [ 12 ] After the CAS investigation, J.D. said W.V. left her alone for about 1 year, but when she turned 14, the sexual abuse continued. When she was taking a shower in the family home, W.V. would enter the bathroom and have intercourse with her on the floor and tell her to clean herself up.

She said W.V. would “shake at the end of the intercourse and his penis was really hard, so [she believed] he ejaculated”. [ 13 ] The sexual abuse stopped when J.D. turned 16 when W.V. realized he could get potentially get her pregnant. [ 14 ] J.D. became estranged from her foster family and community based on W.V.’s denials of criminal conduct. She left her foster family’s home and started a new family. She is presently married with children. [ 15 ] In 2020, J.D. heard from her foster sister that W.V. had confessed to their foster parents that he sexually assaulted J.D. as a child.

She was approached by the police for an interview and decided to reveal what happened to her. [ 16 ] In March 2021, W.V. wrote her a letter of apology admitting his crimes and seeking forgiveness. This was shared with the police and became part of Crown disclosure. [ 17 ] After the Crown prepared an agreed statement of facts, W.V. wrote a note to the Crown correcting J.D.’s version of the facts. He clarified the following facts: (

i) the frequency of the sexual contact was not 200 but 1172 occasions because he recorded every interaction in a notebook, (ii) the sexual abuse continued until J.D. was 18 years old, not 16 as she recalled, (iii) the sexual abuse continued 1 month, not 1 year after the CAS investigation closed, (iv) J.D. never “started” the abuse nor “enticed” him to have sexual intercourse with him, and (

v) his [sexual] addiction forced her to run away from their foster family’s home. In the Pre-Sentence Report,

W.V. told the author while engaging in sexual acts with J.D., he would “leave weapons [he had] in his room on display describing this as his ‘tactic’. This was not something J.D. recalled. [ 18 ] W.V. volunteered the above facts to the Crown.

When the legal significance of this voluntary information was explained to W.V., including the burden on the Crown to prove aggravating facts beyond a reasonable doubt, the Crown took a principled position. [3] The Crown submitted that in light of W.V.’s status as a self-represented litigant and not having the benefit of legal advice on this issue, the Crown would not seek to have W.V.’s voluntary disclosure of new facts relating to the duration and frequency of the abuse treated as an aggravating factor on sentence.

The Crown says the court can rely on J.D.’s memory of being sexually assaulted over 200 times but the important point is the assaults continued for years which is what makes the conduct aggravating. The Crown also agrees W.V.’s revelation of the true duration of the assaults speaks to the extent of his remorse. B. Victim Impact [ 19 ]

Section 722 of the Code allows a victim of a crime to present a victim impact statement to the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as a result of the commission of an offence. J.D. did not prepare a formal victim impact statement in Form 34.2 of the Code but instead, prepared a lengthy letter.

After reviewing this material, I directed the Crown to edit the victim input to comply with s.722(4) of the Code . [4] The Crown agreed which resulted in a revised two- page letter which was made an exhibit. [ 20 ] J.D. was present at the sentencing hearing by audio. As noted, I permitted the Crown to read her input into the record given her right to participate in the hearing. Having reviewed her victim input carefully, I am satisfied the offences had a lasting and profound psychological impact on her. The victim input is devastating to say the least. J.D. is now 37 years old.

She explained when she first disclosed the sexual abuse at 13 years of age, she was told by her foster-parents she had Alcohol Spectrum Disorder (or Fetal Alcohol Syndrome) and shouldn’t spread lies which might result in her foster-brother going to jail. Like W.V., J.D. has Aboriginal roots and was never diagnosed as having Alcohol Spectrum Disorder or FAS. This was a deliberate lie designed to keep her quiet about her abuse. She was disbelieved, ridiculed and diminished when she came forward. [ 21 ] J.D. said the revelations have turned her new family upside down.

She is unable to sleep, concentrate at work or enjoy time with her family. She is pursuing counselling for “different kinds of trauma”.

J.D. ended her input by adding “I am very, very glad that finally justice will be done and I’m praying that the right justice will be done.” I have not treated this latter comment as a recommendation for a stiff sentence, something the law does not permit me to do. [ 22 ] I am satisfied J.D.’s input establishes W.V.’s crimes had a significant impact on her, considering her age and other personal circumstances and is therefore an important aggravating factor on sentence: s.718.2(a)(iii.1). C.

Circumstances of the Offender [ 23 ] W.V.’s personal circumstances were detailed in the Pre-Sentence Report (“PSR”) which the court ordered to assist with sentencing. W.V. accepted the assertions in the PSR as accurate. It was made an exhibit. [ 24 ] W.V. is 40 years old. He does not have a criminal record. [ 25 ] W.V. was born in Prince Albert Saskatchewan and apprehended at birth. He entered the Foster Care system and was adopted by W.V. and M.V. The PSR author spoke with his foster mother, M.V. She said W.V. was raised in Ontario after he was adopted.

She also added she had limited information about his background except being told he was of Metis origin and his birth mother was involved in the criminal justice system. W.V. has nine biological siblings, all of whom were also involved with Family Services and adopted by various families. [ 26 ] W.V. told the author he has not pursued any contact with his birth parents noting Prince Albert is “full of crime where he did not feel safe”. He acknowledged his First Nations roots and said he was 40% Indigenous origin.

W.V. added he “has never seen a need to obtain [Indigenous] status”. [ 27 ] W.V. said his foster-parents “did their best” to raise him and his siblings and he was considered “the golden boy” in the family. His upbringing was stable, caring and loving – this was confirmed by M.V. M.V. added they raised their children as devoted Christians. They did allow not allow illicit substances in their home as drugs and alcohol have ravaged First Nations communities.

They didn’t want their children to be exposed to this environment. [ 28 ] W.V. was initially home schooled but later attended Knox Christian School in Bowmanville. He was known as a “jokester” and didn’t fare well at school because he had difficulty focusing and paying attention. He was also bullied. [ 29 ] At 19 years old, W.V. worked as a dairy farmer which continued until 2015.

W.V. believed he was struggling with a sexual addiction and decided to quit working on the farm because there were four younger girls who worked on the farm and: “I was tempted – I knew one day that I would force myself on one of them and that scared me”. He added: “I am addicted to sex, I could find women anywhere, online – it’s so easy to get”. He explained he used the website “LeoList” and was still in the throes of his addiction until January 2021. He would pay for sexual services at least once to three times a day sating “one wasn’t enough”.

He spent about $1000 per week on paid sex services and about 90% of his income was spent on sexual services. [ 30 ] W.V. was married for 12 years with C.L.V. The union produced four children – all boys. He is separated from his ex-spouse, and they don’t have a healthy relationship. The author spoke with C.L.V. who said the marriage was a roller coaster ride and the relationship quickly became stale. She said W.V. abused her mentally and emotionally but not physically. The parties sought marriage counselling and religious intervention, but it didn’t help.

C.L.V. said there were too many financial stressors and she suspected W.V. wasn’t loyal. She didn’t know much about the sexual addiction but confirmed she didn’t know where the family income went which resulted in significant debt and stress.

[ 31 ] C.L.V. said W.V. was an absent father - something he confirmed. In light of the offences, the CAS only permits supervised access with his children, but even this has been sporadic. [ 32 ] W.V. added his disclosure of his crimes to his family has shattered his foster family. M.V. told the PSR author the family dynamic has “shifted” and “he knows [they] won’t take his lies anymore”. W.V.’s biological children are well supported by his foster parents. [ 33 ] W.V. told the PSR author he has killed and harmed animals in the past but is not himself suicidal.

At his foster-parents insistence, he attended at Ontario Shores in Whitby for a mental health assessment. The writer spoke with Dr. Kevin Chopra who opined: “the patient’s presentation is consistent with anti-social personality disorder. He has a long history of violent behavior, particularly to animals – he denies any active violent intent to harm anyone”. Dr. Chopra was not tasked to do a formal risk-assessment and recommended W.V. be referred to the Sexual Disorders Clinic at CAMH. W.V. said the intervention with Dr.

Chopra was “traumatic” because it gave him some insight into his addiction, and he indicated he is amenable to any counselling. [ 34 ] W.V. denied being sexually abused as a child. There is no history of substance or alcohol abuse. This information was self- reported and confirmed by his foster mother, M.V. [ 35 ] W.V. discussed his sexual addiction openly and said when he was very young, he began to have very strong desire for girls. He said: “I wanted it, I needed it – I don’t know why”. In the past, he has been aroused by younger and older women including those who hug him.

However, he has never been sexually attracted to members of the same sex (men). [ 36 ] W.V.’s remorse is palpable. I will review this in detail when discussing the mitigating factors in this case but when asked by the PSR author about this topic, he said he came forward because “it ate him up.” He went into detail explaining when J.D. first disclosed the abuse to her mother as a child, he lied about it, and he was believed while she was disbelieved. He was saddled with guilt. He later authored a letter of apology which was replete with genuine remorse.

He apologized to J.D. and her family and begged for their forgiveness. He acknowledged he made her life “a living nightmare”. He wrote: “I’m a changed man now. Until we meet again … your loving Brother. To God be the Glory.” [ 37 ] Despite the expression of remorse, the PSR reveals a troubling comment which is hard to discern. He told the author: “I regret it but when it was happening, I enjoyed it – if I could rewind, I’d probably do it again”. This comment is perplexing.

On the one hand, W.V. came forward because he knew what he did was wrong and it ate him up for years but on the other, he said he would “probably” do it again. I did not have the benefit of any submissions from the parties on this comment and I have taken it with a grain of salt. I don’t know if W.V. meant to say he would do it again because he doesn’t think what he did was wrong, or he would do it again because he knows it’s wrong but wouldn’t be able to stop himself because of his addiction. The latter

interpretation might show some insight into his conduct and be relevant to his rehabilitative potential, while the former would show little insight suggesting he poses a risk to others. Unfortunately, apart from the opinions of Dr. Chopra at Ontario Shores, I have a dearth of medical evidence that assists the court in assessing future dangerousness.

Part 2 – The Law D. The Sentencing Principles [ 38 ] The courts’ analysis of an appropriate sentence must be guided by the sentencing provisions in the Code and decisions of courts interpreting these provisions. This includes the recent decision from the Supreme Court of Canada, R. v. Friesen [5] , which is a seminal authority applicable to sentencing sexual offenders and in particular, sexual offences involving children. W.V. was provided with a copy of the decision in Friesen and the court invited submissions in areas that are directly applicable to his situation.

I will now spend some time discussing the applicable Code provisions, then discuss the offence of sexual assault. [ 39 ] The purpose of sentencing an offender is set out in s. 718 to 718.2 of the Code .

Section 718 of the Code provides that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of a number of sentencing objectives including: (

a) Denounce the unlawful conduct; (

b) Deter the offender, and others, from committing such an offence; (

c) Separate the offender from society, where necessary; (

d) Assist in the rehabilitation of the offender; (

e) Provide reparation for harm done to victims, or the community; and (

f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the victims and the community. [ 40 ]

Section 718.1 of the Code provides that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In assessing the gravity of the offence, I must take into account the penalties prescribed by Parliament and the circumstances relating to W.V.’s commission of the crime, with a focus on any features that either increase or decrease the harm, or the risk of harm, to J.D. or to the community.

In Friesen , the Supreme Court held “[t]he maximum sentence the Code provides for offences determines objective gravity by indicating the ‘relative severity of each crime’. … [M]aximum penalties are one of Parliament’s principal tools to determine the gravity of the offence: at para. 96, (citations omitted). [ 41 ] The assessment of an offender's "degree of responsibility" refers to the W.V.’s culpability. I must consider W.V.’s moral blameworthiness in committing the sexual assaults. This is informed, in part, by his mindset and motivation in committing the offence

and takes into account his background and circumstances. [ 42 ]

Section 718.2 of the Code provides that in determining the appropriate sentence, a sentencing judge must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender. Judges are also directed to look to other cases where sentences were imposed for similarly situated offenders. This is known as the principle of parity which promotes respect for the administration of justice. [ 43 ]

Section 718.2 (

d) of the Code provides that “an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances”. This codifies the principle of restraint which requires a sentencing judge to consider rehabilitation in determining an appropriate length of the sentence: R. v. Priest , [6] at p.545; R. v. Batisse [7] , at paras. 32 to 34 . In cases where a court is tasked with sentencing a first offender to a penitentiary term, the Court of Appeal in R. v.

Borde , [8] held that the sentence should not solely focus on general deterrence and denunciation, rather the sentencing court should seek to impose the shortest possible sentence that will achieve the relevant sentencing objectives: at para. 36. See also R. v. Dubinsky , [9] at para. 1 . [ 44 ]

Section 718.2 (

e) of the Code provides that “all available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.” In cases involving Aboriginal offenders, sentencing judges must take judicial notice of the systemic or background factors that may have affected such offenders, and the use of a restorative approach to sentencing is encouraged: R. v. Gladue , at para. 93 , R. v. Ipeelee [10] , at para. 59 and R. v. Friesen , at para. 92 . This

section has a remedial purpose for all offenders with a particular remedial role for Aboriginal offenders. E. The Offence of Sexual Assault [ 45 ]

Section 271 of the Code sets out the penalties for the offence of sexual assault. Where the Crown proceeds by indictment, the maximum penalty prescribed by s.271 (

a) of the Code is 10 years imprisonment. However, if the victim is under 16 years of age, the maximum penalty increases to 14 years imprisonment with a minimum term of imprisonment of 1 year. [ 46 ]

Section 718.01 of the Code codifies the protection of children by mandating that the primary sentencing consideration for an offence that involves the abuse of a child under the age of eighteen are the objectives of denunciation and deterrence. This case is unique because W.V. must be sentenced for offences committed against J.D. from 1998 to 2000 when he was an adult and J.D. was a young person. The maximum penalty in the Code for offences committed on victims who are under 16 (14 years imprisonment) does not apply to W.V. because this provision was not in effect from 1998 to 2000. As a constitutional matter, s.11(

i) of the Charter of Rights and Freedoms provides that if the punishment for an offence has varied between the date the offence was committed and the date of sentencing, the offender has the right to the benefit of the lesser punishment. In R. v. Poulin [11] , the Supreme Court held this requires a comparison of the punishments under the laws in force at two set points in time (i.e., commission of the offence and time of sentencing) and the right to receive the lesser of these two. At the time W.V. committed his crimes, the maximum penalty was 10 years imprisonment.

Therefore, the maximum penalty I can impose in this case is 10 years imprisonment. The Crown is not seeking a maximum penalty nor a penalty beyond 10 years. [ 47 ] Canadian courts have recognized that the crime of sexual assault is “an evil”: R. v. D.A.I . [12] , at para. 1 . In sentencing offenders for crimes of sexual violence, the law requires courts to focus on the core principles of deterrence and denunciation: R. v. Friesen , [13] R. v. E.C . [14] at para. 12 , R. v. Al-Shimmary [15] at para. 6 and R. v. D.D . [16] .

Courts have reminded that all forms of sexual violence are morally blameworthy because they involve the wrongful exploitation of the victim by the offender. Sexual offences are morally serious because the offender is treating the victim as an object and disregarding the victim’s human dignity: Friesen , at para. 89 , citing R. v. Mabior , [17] at paras. 45 and 48 . [ 48 ] Cases involving historical sexual abuse pose unique challenges.

Courts have held the passage of time can, in the appropriate cases, be a relevant sentencing factor in so far as impacting the fundamental purpose of sentence including proportionality and other objectives such as rehabilitation. However, courts have also noted that general deterrence and denunciation are not impacted by the passage of time: R. v. H.S . [18] , at para. 54 . In cases where the offender demonstrates remorse and accepts responsibility, the passage of time may act as a mitigating factor in cases of historical sexual abuse: R. v. Brown [19] , at para. 14; R. v.

Curto [20] , at para. 54 . [ 49 ] In R. v. Stuckless [21] at para. 112 , the Ontario Court of Appeal held that while historical sexual offences are not governed by more recent legislative changes to the sentencing regime, courts may recognize the enhanced concern over the sexual abuse of children and the need to emphasize denunciation and deterrence. This was affirmed by the Supreme Court in R. v.

Friesen and is consistent with the evolution of decisions that have examined the appropriate range of sentences for sexual offenders. [ 50 ] In 2002, the Ontario Court of Appeal in D.D. held that absent exceptional circumstances, in cases involving sexual violence against children, the sentencing principles of deterrence and denunciation and the need to separate offenders from society must take precedence over other recognized objectives of sentencing.

The Court held adult offenders in a position of trust who sexually abuse innocent children over a protracted period of time can expect to receive mid to upper single-digit penitentiary terms. [ 51 ] Almost nine-years later in 2011, the Ontario Court of Appeal revisited the issue in R. v.

Woodward [22] and held that adult offenders involved in an extreme form of sexual abuse including full intercourse, violence, threats of violence and other forms of extortion should attract penitentiary sentences from “upper single digits to lower double digits to reflect the increased gravity of the offence and the enhanced moral culpability of the offender”: at para. 75. [ 52 ] In 2020, the Supreme Court of Canada, returned to the topic of sentencing sexual offenders. The decision in R. v.

Friesen provides sentencing judges with clear and authoritative guidance on how to approach the task of sentencing a sexual offender. The Crown relied on Friesen in support of its submissions of an 8-year jail sentence and pointed to paragraphs 46, 56 and 114. [ 53 ] In R. v. T.J ., at para. 17, the Ontario Court of Appeal explained the message from Friesen in the following terms:

In Friesen (at para. 5 ), the Supreme Court of Canada sent a strong message that: . . . sexual offences against children are violent crimes that wrongfully exploit children's 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 Parliament's sentencing initiatives and by society's 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. [ 54 ] The Court of Appeal in T.J. held there were three parts of the message in Friesen that were relevant: (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. [ 55 ] On the latter point, Friesen provided guidance about the appropriate length of sentence and to follow that guidance, “[an] upward departure from prior precedents and sentencing ranges may be required”: at para. 29, Friesen , supra at paras. 108-114 .

In discussing sentencing ranges, I realize that ranges are merely guidelines and are “one tool among others that are intended to aid trial judges in their work”: R. v. Lacasse [23] , at para. 69 ; R. v. Suter [24] , at para. 25 . While sentencing judges must have the flexibility to do justice in individual cases, Friesen conveyed an overall message (at para. 114) 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. [ 56 ] With these legal principles in mind, I will now turn to a discussion of a fit and proportionate sentence. This requires a discussion about the aggravating, mitigating and neutral factors that are present in this case. It also requires an examination of similar cases for similarly situated offenders which helps in achieving the sentencing objective of parity.

Part 3 – Discussion F. Aggravating, Mitigating and Neutral Factors [ 57 ] The burden rests on the Crown to prove aggravating facts beyond a reasonable doubt before they can be treated by the court as an aggravating factor on sentence. I am satisfied the evidence proves the following aggravating factors: 1. Age of victim .

Section 718.2 (a)(ii.1) of the Code provides that the age of a victim is a relevant consideration and the youthful age of a victim is an aggravating factor: R. v. A.A . , at para. 24 . In this case, J.D. was 8 years old when the abuse started and was a vulnerable child. This is an aggravating factor because W.V. took advantage of a child. 2. Position of trust . The Code does not define the term “position of trust or authority” however guidance on this issue can be gleaned from Friesen which reminded that trust relationships arise in varied circumstances and should not all be treated alike: at para. 125.

Instead, it makes sense to refer to a “spectrum” of positions of trust: R. v. R.B. [25] , at para. 21 . Further, “any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. The focus in such cases should be on "the extent to which [the] relationship [of trust] was violated": at para. 41. The spectrum of the relationship of trust is relevant to determining the degree of harm. Here, there was a 4-year gap between the parties and W.V. was an older foster-brother and therefore stood in a position of trust towards his younger sister.

There was both an element of trust and authority because J.D. should have reasonably been expected to assume her older brother would not harm her by sexually assaulting her. When the assault was disclosed, W.V. took advantage of his status as an older brother and denied the assault and was believed over his younger sister. Parents reasonably leave their younger children in the care of older children assuming they will not be harmed. That trust was shattered. This factor significantly elevates the degree of harm to J.D. 3. Duration and frequency of sexual abuse .

Courts have recognized that prolonged and repeated sexual abuse are aggravating factors: R. v. D.D . , at para. 26 . The criminal conduct in this case involved sexual intercourse at the tender age of 10 years old. This represents a gross violation of J.D.’s sexual autonomy. J.D. recalled over two hundred occasions while W.V. remembered well over a thousand occasions. The aggravating feature of the frequency of the sexual assaults, even without considering W.V.’s admission of the true state of affairs is three-fold.

First, the sexual assaults were repeated, not an isolated event and normalized a very intimate act of intercourse for a young person. This would have been an incredibly confusing and harmful act for J.D. to endure as a child. Second, W.V. took advantage of his position as her older brother and it is reasonable to infer he knew what he was doing was wrong because he took the step of noting it. Third, it is aggravating that even after J.D. complained she was being assaulted, he continued to sexually assault her. The disclosure to the CAS and their foster mother did not deter him.

This factor speaks directly to his moral responsibility in committing the crimes and the harmful impact on J.D. 4. Type of sexual abuse : Courts have recognized that the infliction of various types of abuse are aggravating factors. I’m satisfied W.V. groomed his younger foster-sister and his sexual offending escalated in severity starting with touching to digital penetration to sexual intercourse. The grooming is linked to his position as an older brother and is therefore aggravating.

5. Impact of sexual abuse on J.D . I find W.V.’s sexual abuse had a palpable impact on J.D. and acts as an important aggravating factor. For years, J.D. was disbelieved, shamed and falsely accused of suffering from a serious disease (Fetal Alcohol Syndrome) that has ravaged Indigenous communities. She was forced to suppress the impact of his crimes and lived with the ordeal on her own without any support. In decisions such as D.D ., Woodward and Friesen , the court has repeatedly held sexual abuse as a child has devastating and lasting effects on a child’s psychological and emotional development.

Families are negatively impacted, and this case is no different. J.D. was forced to leave her foster family to escape the abuse and the revelations have opened up new wounds. I have also considered that the Code requires sentencing Judges to consider the circumstances of vulnerable victims (i.e. victims with Aboriginal background) in fashioning an appropriate sentence. Unfortunately, I don’t know much about J.D.’s background, but it is important to acknowledge her truth that she was disbelieved because of a deliberate lie that ‘kids with FAS lie’.

This is simply a false and cruel stereotype. [57] Turning next to the mitigating factors. A mitigating factor must be proven on a balance of probabilities. While W.V. didn’t specifically make pointed submissions about these factors, the Crown did point to some that arise on this record. I’m satisfied the following are mitigating factors: 1. First offender - W.V. is a first offender and does not have a criminal record. This triggers the principle of restraint. It cannot be forgotten that W.V. started his criminal conduct when he was a young person, and it continued in his early adulthood and then stopped.

Unlike mature sexual offenders who offend well into their adult years and stop only because they get caught, W.V. stopped on his own accord. 2. Guilty plea and remorse – In R. v. Faulds , [26] the Ontario Court of Appeal held that the amount of credit a guilty plea attracts will vary with each case, stating at para. 14: The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case. In some cases, a guilty plea is a demonstration of remorse and a positive first step towards rehabilitation. In other cases, a guilty plea is simply a recognition of the inevitable.

That is this case. Even where the plea is not a manifestation of genuine remorse, it may still save valuable judicial resources and provide a degree of finality from the perspective of the victims which would not exist without the plea. Those features are present in this case and should be taken into consideration in assessing the appropriate sentence. I find W.V.’s guilty plea and apology to J.D. is a true expression of remorse and an exceptional mitigating factor on sentence.

It would be hard pressed to find circumstances that aren’t deserving of more credit on this basis because without W.V.’s moral burden to rid himself of years of guilt to his pastor, it is very likely that J.D.’s sexual abuse would have never surfaced. It would appear from J.D.’s victim input that she was able to suppress the trauma for years until W.V. came forward. A guilty plea not only spared J.D. from reliving her horrific abuse as a child in the courtroom but also the trauma of putting her new family through the ordeal.

It is important that W.V. gets credit for coming forward because it should send a message to others who may be bearing the same moral burden as W.V. to come forward and break the cycle of victimization for sexual abuse victims who aren’t believed (like J.D.) or may not have the courage to bear the trauma of coming forward. W.V.’s remorse is an exceptional factor in this case. 3. Cooperation – A separate but related mitigating factor related to W.V.’s remorse is his cooperation with the police but also his candidness in admitting facts that painted a true picture of his criminal conduct.

This is a unique factor in this case because W.V. admitted the frequency of the sexual assault was far in excess of what J.D. could remember. While I was invited by the Crown to not aggravate the sentence based on this voluntary information, it would be an error in principle to not treat this as a mitigating factor which is relevant to W.V.’s remorse and in some respects, his insight into his conduct. It speaks to his rehabilitative potential because he acknowledged in this letter of apology that he knew every time he sexually abused her, it was wrong – both morally and legally.

It also speaks to the true extent of the harm he inflicted on J.D. 4. W.V.’s First Nations background . I find W.V.’s background as an Aboriginal offender is a mitigating factor but given the sparse record on this issue, I can only attribute limited weight to this factor. This case bears similarity to the factual circumstances of the decision in R. v. Kreko [27] in which the offender was born into an Aboriginal family and was placed in foster care at a young age because the offender’s mother was an alcoholic. Like W.V., Mr. Kreko was adopted and raised in a family that was not Aboriginal.

He committed very serious offences and the sentencing judge did not treat his Aboriginal roots as mitigating. The Court of Appeal held it was an error for the sentencing judge to require a causal link between an offender’s Aboriginal heritage and the offences because “this [demonstrates] an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples” and also imposed an evidentiary burden on the offender that was not intended by Gladue ” : at para. 21 .

In this case, the Gladue writer tried but couldn’t get access to W.V.’s adoption records and therefore could not assist the court with Gladue specific information relevant to sentencing. However, I accept based on W.V.’s self-report that his biological mother was involved in the criminal justice system which resulted in him being apprehended at birth. He was separated from his 8 biological siblings on this basis who were all raised in different foster families.

W.V. was born in Prince Albert, Saskatchewan and tried later in life to make connections with his Indigenous heritage but couldn’t because the area “was full of crime” and “he didn’t feel safe”. While W.V. was raised in a pro-social home, I can draw a reasonable inference that his dislocation from his mother and siblings at birth was due in part to systemic disadvantages as an Aboriginal woman who was battling alcoholism and crime. W.V. didn’t have the benefit of growing up with his biological siblings and was unable to form strong bonds and connections with his mother’s Metis roots.

Section 718.2 (

e) of the Code is meant to be remedial in nature and is meant to address overrepresentation of Aboriginals in Canadian prisons. To this extent, W.V.’s background as an Indigenous offender is relevant to his moral blameworthiness and cannot be ignored. Given the limited information, it does not figure prominently in the sentence and does not justify a community-based sentence or an exceptional departure from an

appropriate range of a custodial sentence. 5. Insight . W.V. appears to have some insight into his conduct although it is hard to measure if his insight is rooted in his sexual addiction or something else. I accept his statement to the PSR author that he felt guilt and shame when J.D. initially disclosed the abuse and he “falsified” the accounts which led to her unfortunate “excommunication” (or breakdown) with her foster family. This suggests W.V. knew his actions were wrong. It is also noteworthy that W.V. was quick to correct the facts and distance J.D. from any responsibility.

He took full responsibility for his actions. It is hard to draw any factual findings from W.V. deciding to keep track of every assault he committed on his sister. Given that this started at a young age, it may be indicative of a mental health concern, or it could be rooted in his early understanding that something was wrong with his carnal desires which he took out on J.D. 6. Addiction – Where there is evidence that an addiction is the root cause of criminal conduct and there is evidence that the offender is taking steps to address the addiction, this can be treated by courts as a mitigating factor on sentence.

An addiction can speak to the moral blameworthiness of an offender. W.V.’s self-report to the PSR author and his letter of apology make it clear he believes he committed the sexual abuse due to a “sex addiction”. W.V. said at a young age he had a strong desire for sexual activity and realizes he needs help. Dr. Chopra suggested he participate in a Sexual Disorders clinic. I am prepared to accept W.V.’s comments at face value because his comments share the hallmark of an addict. It describes a person who wants to stop committing

an act but can’t for reasons outside their control. W.V.’s actions in quitting his job for fear of assaulting his employer’s children is some evidence that speaks to the sincerity of a known addiction. W.V. is amenable to intervention for his sexual addiction which also speaks to his rehabilitative potential. 7. Community support – W.V. has some supports in the community including the support of his pastor who was his confidant and likely played a critical role in bringing the sexual abuse to light. W.V.’s pastor attended court with him which is some evidence of continued support.

W.V. also has young children and until recently was intermittently involved in their lives. There is no allegation that he sexually abused them which is consistent with W.V.’s evidence that he is attracted to females. It would appear even though there is now a falling out with his foster-family, they remain involved with his biological children and provide support for his ex-spouse.

There is no evidence that W.V. poses a risk to his children and if he chooses to resume a relationship with them in the future and is permitted to do so, this may assist with his rehabilitation. [ 58 ] A neutral factor on sentence is neither aggravating nor mitigating and does not play a meaningful role in crafting a fit sentence. In my view, there is an important neutral factor which is the unknown of the risk W.V. poses to J.D. or to members of his community, including children. This issue is important in cases involving sexual offences because it speaks to a core objective of protecting the public.

However, it is largely unknown in this case. W.V.’s comments to Dr. Chopra about the extent of his sexual addiction raises concerns for the court about protecting the public but it is hard to draw any firm findings on this issue. G. Sentencing Parity [ 59 ] In Friesen , Chief Justice Wagner held the principle of [sentencing] parity is an expression of proportionality. It is hard to achieve true sentencing parity because while there are many reported cases involving sexual offenders, there is no case which shares the unique facts of this case.

Apart from Friesen , the Crown did not point me to similar cases in arriving at an 8-year sentence but instead made the general submission that after Friesen , the trend is an upward increase in sentences involving crimes of sexual violence on children. I agree with this submission. [ 60 ] Since W.V. did not provide me with any cases, I have conducted a comprehensive review of cases on my own. In many cases, courts sentenced offenders who victimized more than one victim and sometimes for more than one crime, therefore imposed consecutive sentences, or one after another, which resulted in long prison terms.

This factor does not exist here as there is only one victim and one offence. While the unique facts of this case cannot be duplicated, I’ve looked to cases where offenders stood in a position of trust and committed crimes of historical sexual abuse on a vulnerable family member. I also looked for cases where there were exceptional mitigating factors (i.e. remorse) and the role it played in determining an appropriate sentence. [ 61 ] I reviewed several cases and do not propose to review all of them below. Instead, I will highlight five cases which I found to be most helpful in achieving sentencing parity. (

i) In R. v. R.S . [28] , Justice Olver, who like me, presides in the Durham Region, sentenced an offender after trial to a global sentence of 12 years imprisonment which was upheld by the Court of Appeal. The offender was convicted of 25 counts against four victims over a decade when the victims were 5 to 16 years of age. The conduct included forced sexual intercourse, fellatio, masturbation and involved the use of force. The offender was of advanced age and had health problems.

Olver J. imposed an 11-year sentence on the sexual conduct and imposed a consecutive penalty of 1-year for offences after the abuse came to light. It is noteworthy that the sentence involved many victims allowing the court to add sentences together. In my view, R.S. is helpful because it is a decision from the Durham region and provides a local pulse of the community, helping to situate W.V.’s sentence. Lacasse requires sentencing Judges to be mindful of local conditions and how prominent a particular crime might be in their community.

The case also juxtaposes W.V.’s factual situation because many of the aggravating factors (i.e., number of victims, use of violence) are not present in this case. (ii) In a different decision, also cited as R. v. R.S . [29] Justice Deluzio sentenced an offender who pled guilty to sexual offences involving his biological daughters commencing at the age of 13. The offender confessed to having sexual intercourse with his daughters, monthly for about 10 years. The Crown sought a global sentence of 11 to 12 years imprisonment while the defence sought a sentence of

8 to 9 years. The offender was 44 years old and the court, like here, was confronted with a situation where absent his confession, the sexual abuse may have never come to life. The offender rooted his sexual deviance in abuse as a child, loneliness and boredom. He was deemed to be an average risk to reoffend. Justice Deluzio considered several cases (at paras. 23 to 27) which I have reviewed as well. In the end, the court held the appropriate global sentence was 11-years imprisonment and would have been at least 15 years but for “significant credit” for his confession: at para. 31. (iii) In R. v.

A.A . [30] , Justice Allen sitting in the Ontario Superior Court sentenced an offender who was 82 years old for historical offences spanning 27 years involving his stepdaughter and one sexual offence against his niece. The offences involving his stepdaughter included vaginal intercourse without a condom, fondling, forcing his penis into her mouth, forcing oral sex and ejaculating into her mouth and on her body from the time when she was 4 to 9 years old. The offences occurred 2 to 3 times per week in their family home. The sexual abuse involving the niece included touching of her vagina through her clothes.

The offender was a first offender and elderly with medical issues and was open to counselling. There was medical evidence that he posed a low risk to reoffend. The court engaged in a helpful review of the cases at paras. 44 to 46 which I reviewed as well. The decision is a helpful contrast because the offender was found guilty after trial and expressed no remorse for his crimes which is the opposite of the situation here. The court settled on a 5-year term of imprisonment for the crimes involving his stepdaughter and 45 days imprisonment for the sexual touching of his niece.

The court was motivated by the exceptional factors of the offenders’ age and health issues – both of which are not present here. It is noteworthy that A.A . was decided before Friesen and appears to be at the lower end of the range for similar conduct. (iv) In R. v. S.C . [31] , the Ontario Court of Appeal upheld a sentence of 6 years imprisonment imposed on an offender who was convicted after trial of three counts of historical sexual assaults against two of his teenage nieces. The offences spanned 10 years.

The victims were between 14 and 16 and the abuse occurred routinely on weekend family gatherings in their home. In upholding the sentence, the court held at para. 31: “[T]he appellant repeatedly sexually abused his teenage nieces. The abuse spanned many years. The acts escalated over time, including a full act of vaginal intercourse. The appellant bribed the complainants to remain quiet or threatened them that things would get worse if they told anyone.

In these circumstances, it cannot be said that this was an unfit sentence.” The facts of S.C . share some similarities to this case but it too pre-dated Friesen . (

v) In R. v. W.D ., a post- Friesen case from the Queen’s Bench of New Brunswick the court sentenced an offender after trial on four counts of historical sexual offences against children. The offences involved two different victims and spanned 1977 to 1985. The offences involved sexual intercourse and other sexual acts. The offender was 68 years old and had a dated and unrelated criminal record. W.D . was identified as an Aboriginal offender but the court did not treat the offender’s background as an important mitigating factor. The court imposed a global sentence of 10-years imprisonment.

This case is helpful because of the exceptional mitigating factor of old age and the Aboriginal background of the offender. H. The Sentence [ 62 ] While sentencing is inherently an individualized process, the decision of Justice Deluzio in R.S . is probably the most similarly situated case with the case at bar with some notable differences. The offender in R.S. stood in a position of trust and authority as a biological father whereas W.V.’s position vis a vis J.D. was her older foster-brother.

He did not share the same parental bond which makes the conduct of R.S . more morally blameworthy because his daughters were dependant on him. It was aggravating that R.S. knew of his daughter’s cognitive challenges and took advantage of this by his repeated abuse. In similar fashion, W.V. continued to abuse J.D. after her failed protests to her mother and school. R.S. was not a youthful offender when he started his abuse and as Deluzio J. noted “[He has been a criminal for at least a decade, committing repeated criminal acts of sexual violence against his own children.”: at para. 28.

W.V. started sexually abusing his foster-sister when he was 12 and stopped when was 20 and therefore did not share the same developed maturity as the offender in R.S. R.S. pled guilty after he was caught take a nude picture of his daughter whereas W.V. was not caught, but instead came forward because of his guilt. Deluzio J. imposed an 8-year sentence on the counts involving sexual intercourse.

While it’s difficult to parse out the exact breakdown of the sentence, it gives me some comfort in concluding that the Crown’s submission of 8-years is on par with similar cases. [ 63 ] I have considered the analysis of Justice Allen in A.A . which unlike R.S . involved one victim which is similar to the case at bar.

However, and with respect, I share the same views of Olver J. who commented that the global sentence of 5-years and 45 days in A.A . was out of step with cases post- Friesen and largely attributed to the offender’s age and health conditions – both of which don’t apply in this case and merit different treatment by courts. I share the views of Olver J. and find A.A . does not assist me in this case and a low penitentiary sentence would be unfit having regard to the facts of this case and this offender.

In S.C . , which was decided pre- Friesen , the court imposed a 6-year sentence where the offender abused his teenage nieces. The facts in S.C . are different from the facts of this case because while the conduct in S.C . also escalated into sexual intercourse, it was far less frequent than W.V.’s sexual conduct towards J.D. which was well over 200 occasions, normalizing sexual intercourse for a young and vulnerable child. Finally, the conduct of the offender in R.S . decided by Olver J. was more aggravating and did not involve a guilty plea.

It also involved numerous victims which justified the global 12-year sentence. Here there is one victim and one global count. [ 64 ] I’m satisfied a fit sentence in this case must reflect a prison term in the upper single digit range which is consistent with appellate direction. W.V. repeatedly sexually assaulted his foster-sister for 8 years during her formative years. His conduct involved a gross breach of trust. The abuse happened in their family home. He groomed her into highly invasive sexual activity culminating with sexual intercourse in circumstances where she was extremely vulnerable.

He was a young person when he started but an adult when he stopped and clearly understood what he was doing was wrong. Even if he committed the acts because of an addiction that remains unresolved, he knew the impact his crimes had on his foster-sister and family. He helped to silence her cries for help when a brother should do the

opposite. He victimized her repeatedly and normalized sexual intercourse for a child which is a highly intimate act between consenting partners. He caused irreparable damage to her childhood. [ 65 ] Balancing all the unique aggravating and mitigating factors in this case, I find an appropriate sentence in this case is 7 years imprisonment. The Crown’s position of 8 years is completely reasonable and within the appropriate range of sentence but in my view does not give due weight to the exceptional mitigating factor of remorse.

It bears repeating again that if W.V. never decided to rid himself of his moral guilt, the sexual abuse would have gone undetected and undeterred. It is only his decision to come forward that resulted in J.D. having some closure with finally having her victimization acknowledged. W.V. deserves significant credit for coming forward and the sentence must reflect this. But at the same time, doing the right thing cannot translate into a sentence becoming disproportionate to W.V.’s actions and the harm it caused to J.D. [ 66 ] W.V. must also get appropriate credit for pleading guilty – not just coming forward.

A trial would have revictimized and retraumatized J.D. and her new family. If W.V. insisted on the Crown proving his guilt, he would have lost the full mitigation of pleading guilty and expressing remorse. If he was convicted after trial, the maximum sentence I could have imposed would have been 10 years and it stands to reason, the facts of this case might have justified a maximum sentence or close to it.

However, W.V. did not have a trial and given his exceptional remorse, his background as a person with Aboriginal roots and his guilty plea, I’m satisfied a sentence of 7 years imprisonment strikes the right balance. Anything less would be inconsistent with the clear direction in Friesen . [ 67 ] The Crown seeks several ancillary orders, including an Order under s.161(1)(a), (

b) and (

c) but not (

d) of the Code . In oral argument, I invited submissions about the availability of a s.161(1) Order which is aimed at shielding children from sexual violence. Section 161(1) Orders prohibit offenders from engaging in everyday activities that might put the person in contact with children, such as attending in public parks or spaces where children may be. In R. v. K.R.J . [32] , the Supreme Court held subsection (1) constitutes “punishment” for the purposes of s.11(

i) of the Charter and therefore cannot be applied retrospectively. This was not something that was contemplated at the Judicial Pre-trial or prior to the guilty plea and given the sparse record, the Crown later abandoned this request all together. [ 68 ] Notwithstanding the Crown’s position on the s.161(1) Order, I’ve considered imposing a similar order using my common law powers in order to protect vulnerable children from W.V. who will eventually be released into the community after his prison term expires.

However, and after careful reflection, I have chosen not to use my common law powers in this case for two reasons. First, I was not invited by anybody to exercise my common law powers and therefore it would be unfair to a self-represented litigant. Second, and more importantly, I’m not sure I have an adequate record to make a common law Order. In my view, it is open to the Attorney General of Ontario to seek an Order under s.810.1 of the Code if they fear on reasonable grounds that W.V. will commit a sexual offence upon release from the penitentiary.

This will permit the Crown to have more complete information to make the appropriate application, should they choose to, based on current information as it relates to W.V.’s risk to reoffend and commit sexual offences. I expect the institution will take steps to address W.V.’s sexual proclivities towards children and his risk to reoffend in general. At the present time, this information is unavailable. [ 69 ] I will impose the following ancillary orders: (

i) A DNA Order pursuant to s.487.051(1) of the Code ; (ii) An Order under s.490.11(1) of the Sex Offender Information Registration Act (SOIRA) for 20 years in view of the Crown’s indictable election, and (iii) An Order under s.743.21 of the Code prohibiting any contact and or communication with J.D. during the term of W.V.’s imprisonment. [ 70 ] In light of W.V.’s impending incarceration, I will exercise my discretion and waive the $200 victim fine surcharge. [ 71 ] I will direct the clerk to send a copy of these reasons to the institution to assist with W.V.’s classification.

I strongly recommend that W.V. be considered for programing in the institution to address sexual offending and psychological counselling. I would also recommend that the institution heed the medical opinion of Dr. Chopra at Ontario Shores that W.V. would benefit from a thorough risk assessment and/or a referral to a Sexual Disorders Clinic. In my view, both would be appropriate. [ 72 ] In conclusion, I return to the comments of Justice Christie in W.D . who addressed both the offender and the victim while passing sentence, stressing that being a victim is not necessarily a life sentence.

He quoted from Friesen at para. 59 , which I find apt to the extraordinary circumstances of this case: In emphasizing the harmfulness of sexual offences against children, we do not intend to stereotype child victims of sexual violence as forever broke. To the contrary, it takes great “strength and courage” to survive sexual violence as a child. … Many victims go on to live healthy and meaningful lives with fulfilling and loving relationships.

Offenders cannot rob children of their “strength, compassion, love for others and intelligence” and “resolve to take back their lives.” [ 73 ] W.V. has a debt to pay to himself, J.D., his foster-family and his community. It is hoped he takes advantage of the counselling and treatment he has requested in the penitentiary. It is also hoped that J.D. can pick up the broken pieces of her old life and take back her new life which she so deserves. [ 74 ] The court would like to thank the Crown for assisting W.V. as a self-represented litigant in this very unfortunate and challenging case. Released: March 31, 2022

Signed: Justice F. Javed