R. v. Polay, 2021 BCSC 1872

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Polay, 2021 BCSC 1872 Date: 20210812 Docket: 34951 Registry: Cranbrook Regina v. Robert David Polay Restriction on publication: A publication ban has been imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of any information that could identify a complainant. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Matthews Oral Reasons for Sentence Counsel for the Crown: P.G. Corbett Counsel for the Accused: M.

Jasper (by telephone) Place and Date of Trial/Hearing: Cranbrook, B.C. August 9, 2021 Place and Date of Judgment: Cranbrook, B.C. August 12, 2021 Overview [ 1 ] Robert Polay pleaded guilty to Count 2 on a three-count indictment. Count 2 is as follows: Robert David POLAY, from the 27th of July, 2013 to the 23rd day of February, 2016, inclusive, at or near Cranbrook, in the Province of British Columbia, did sexually assault J.L., contrary to

Section 271 of the Criminal Code . [ 2 ] At the time of the sexual assaults, J.L. was between the ages of 13 and 15. In 2020 she made a complaint about sexual abuse by Mr. Polay. Mr. Polay indicated he would plead guilty shortly after the charges were laid. [ 3 ] The Crown seeks a custodial sentence of three to four years based on the application of the sentencing principles in sexual offences involving minors enunciated by the Supreme Court of Canada in R. v. Friesen , 2020 SCC 9 and taking into account the significant mitigating factor of Mr. Polay's early guilty plea.

The Crown also seeks ancillary orders pertaining to DNA testing, a lifetime firearms prohibition, registration in the sexual offenders' registry, and post-custodial limits on Mr. Polay's use of the Internet, employment, and location in relation to children and J.L. [ 4 ] Mr. Polay agrees that a federal custodial sentence is warranted and he does not object to the ancillary orders sought. However, he does not agree that a three-year sentence is warranted because the sexual assaults were committed years before Friesen increased the range of sentences for sexual offences involving children.

He argues that he should benefit from the lower ranges applied pre- Friesen . He also argues that because he was charged with other crimes involving sexual offences against children at the time the sexual assaults on this indictment were committed, had the charges been laid at that time, he would have pleaded guilty to them then. In such circumstances, he would have had the benefit of a global sentence, including the other offences, and the application of the totality principle.

He argues fairness dictates that because he does not have the benefit of a global sentence and the application of the totality principle the sentence should be at the lower end of the range. [ 5 ] Determining a fit sentence in this case involves:

a) consideration of the appropriate ranges for the offence, taking into account the facts and circumstances, including aggravating and mitigating factors;

b) determining the appropriate balance of deterrence, denunciation, and rehabilitation; and

c) consideration of Mr. Polay's submission that he has been unfairly deprived of a global sentence and the totality principle. [ 6 ] I delivered these reasons orally. I have edited them without changing the substance.

The Facts [ 7 ] J.L. was born in July 2000. Mr. Polay was born on August 6, 1981, and so he is 19 years older than J.L. When they met, J.L. was 13 and Mr. Polay was 32. [ 8 ] J.L. was introduced to Mr. Polay by a man with whom J.L. had been sexually involved. That person told J.L. that Mr. Polay wanted to have sex with J.L. J.L. told Mr. Polay that she was 13 years old. They had multiple instances of sexual relations. There was a period of time when there was a break in their relationship because Mr. Polay had a girlfriend.

The relations recommenced and then stopped when J.L. was 15. [ 9 ] The relations stopped at that time because, during the course of their relationship, Mr. Polay was out on bail for charges of sexual offences against minors. Those charges were laid on March 27, 2014, and were pending when Mr. Polay met J.L. In December 2015, Mr. Polay pleaded guilty to three offences involving minors. He was sentenced in February 2016 until 2020 when he was paroled and was living in Kamloops. [ 10 ] These charges were laid by warrant on September 24, 2020, and the warrant was executed on October 26, 2020, while Mr.

Polay was still serving the earlier sentence. Mr. Polay was subsequently paroled on the earlier charges and was released on bail with respect to these charges. He has not served any time in custody for the charges on this indictment. Circumstances of the Offender [ 11 ] Mr. Polay has a criminal record. [ 12 ] In September 2002, he was convicted of theft over $5,000, break and enter with an intention to commit a crime, mischief, and theft under $5,000.

He was given a six months' conditional sentence. [ 13 ] The sexual offences to which he pleaded guilty in late 2015 and on which he was sentenced in February 2016 were accessing child pornography and sexual assault against two young girls. He received sentences of six months for the child pornography, three years consecutive for one of the sexual assault victims, and two years and six months consecutive for the second sexual assault victim for a total of six years. I will refer to these as the 2015 convictions. [ 14 ] I find that the Crown has proved, beyond a reasonable doubt, Mr.

Polay’s prior convictions as described. [ 15 ] Counsel for Mr. Polay advised that Mr. Polay has sexual addiction, depression, anxiety, and has had suicidal ideation. There is no evidence as to whether those mental health conditions were active at the time of the offences and so play a role in his moral culpability. [ 16 ] While in custody on the 2015 convictions, Mr. Polay undertook three sexual offender programs:

a) the Non-Intake Primer Program;

b) the Integrated Correctional Program Model Moderate Intensity Sex Offender Program; and

c) the Integrated Correctional Program Model Sex Offender Community Maintenance Program. I said that he took those while in custody. The latter of them may have been taken after he was on parole. [ 17 ] The Integrated Correctional Program Model Sex Offender Community Maintenance Program report was provided to me and contains a history of his attendance at the program. I will describe the report by its short name, the RAPP report. [ 18 ] The RAPP report indicates that when Mr. Polay was first released on parole in Kamloops, he felt worthless because he could not find work.

He started talking to people online and met a 17 year old, who told Mr. Polay she was 19 years old. He had intercourse with her. This was a breach of his parole conditions and he was sent back to the institution. He was then released on parole in Vancouver. [ 19 ] J.L., in her victim impact statement, stated that when Mr. Polay was released "last time," which I understand to be his release to Kamloops, he contacted her. [ 20 ] The RAPP report states that Mr.

Polay attended the third program, the Integrated Correctional Program Model Sex Offender Community Maintenance Program, starting January 12, 2021, and concluding March 30, 2021. The report does not provide details of the first two programs that Mr. Polay attended. The report writer described him as engaged, on time, and respectful during the telephone sessions. The report includes descriptions of strategies that were developed during the program as “specific risk management strategies”. These strategies include:

a) Risk Factor #1: Sexual pre-occupation and sex drive. Mr. Polay reported that his sex drive was high when he was in Kamloops. He reported that his sex drive is now non-existent because of anti-anxiety medications he takes. He finds the medications limit his ability to maintain an erection. The report writer concluded that he is rated as satisfactory/moderate in this domain where he was previously rated as “needs some improvement”.

b) Risk Factor #2: Relationships with intimate partners are harmful and/or ineffective. Mr. Polay told the report writer that he has a fear of rejection, but also a fear of being alone. He has a person in mind for a relationship, but he does not know how it will work out due to his lack of sex drive. He stated that he needs to treat intimate partners with respect. The report writer stated that Mr. Polay has not

demonstrated hostility towards “the women and men he has been involved with”. He is rated as satisfactory/moderate in this domain.

c) Risk Factor #3: Poor Emotions Management. Mr. Polay told the report writer that when he was in Kamloops, his emotions were all over the place, but he does not feel that way in Vancouver. He advised that the medications improve his anxiety and he spends time watching movies, playing videogames, and doing puzzles. He was rated satisfactory/moderate in this domain where his previous rating was “needs some improvement”.

d) Risk Factor #4: Problematic Sexual Fantasies. Mr. Polay told the report writer that, while in Kamloops, he continued to pursue the girl he had sex with, even though he knew he should not have. I infer this was the 17-year-old. Based on what Mr. Polay told the report writer about how he reacts to situations where he was around women or children, the report writer concluded he was still having deviant sexual interests/fantasies/and preferences. The report writer rated him as needs some improvement in this domain.

e) Risk Factor #5: Thoughts, attitudes, and beliefs justify risky sexual behaviour. The report writer attributed Mr. Polay's problem in this domain to his frequent accessing of pornography and impulsive thinking that he needs to be with someone. Mr. Polay advised the report writer that he misses having sex, but since he cannot maintain erection and reach arousal, he would disappoint a person he was having sex with. The report writer saw no evidence that Mr. Polay was currently accessing pornography and, based on Mr. Polay's report, concluded that Mr. Polay is currently managing this factor. [ 21 ] Mr.

Polay successfully completed the third program. The report writer concluded that his “current overall ability and commitment to use the skills required to manage his various risk factors is mixed”. [ 22 ] I have difficulty crediting the report writer's comment that decision-makers should take into account that Mr. Polay has not demonstrated hostility to the women and men with whom he has been involved. Mr. Polay's convictions involved sexual offences against children and his parole violation was sexual intercourse with a 17-year-old. Sexual offences involving children are violent.

I take the point that the report writer referred to hostility. To the extent that the report writer’s intent was to address whether Mr. Polay's behaviour is dangerous, I conclude that his behaviour is dangerous. I agree with Crown counsel’s submissions that not much can be taken from the self-reporting on which the report is based. It is not a sound basis for a finding that Mr. Polay has a low risk to reoffend, especially given that the report writer considered his overall ability to manage his risks as “mixed”. [ 23 ] Nevertheless, the report demonstrates that Mr.

Polay has been engaged in corrective programming and has improved his rating on most of his identified risk factors. [ 24 ] Mr. Polay addressed the Court after J.L. presented her victim impact statement to which I will come. J.L. was present when he did so. [ 25 ] Mr. Polay stated that he has had a lot of time to think about what he has done. He stated that there is nothing he can do to take it back. He stated that he is regretful and has taken as many steps as he can. He states that he needs help and has been asking for and getting the help that he needs.

He stated that he is sorry for all the pain and anguish he has caused. Impact on the Victim and/or Community [ 26 ] J.L. provided a victim impact statement in writing and presented it in ourt. She stated that, as a result of the sexual assaults by Mr. Polay, she feels that everyone else has power over her. She feels that her body is not hers during sexual interactions. She feels that her body has always been other people's to enjoy and she feels powerless over her body. She feels like other people bulldoze her emotions and her decisions. She struggles with confidence to make her own decisions and stand by them.

She stated that because the assault happened when she was so young, her body was not prepared for regular intercourse and she suffers from frequent discomfort. She experiences severe anxiety and throws up for days. She takes medication to relieve her anxiety enough to eat food and drink. [ 27 ] In addition to the fact that J.L. was clearly manipulated into having sex with Mr. Polay as a young teenager of 13 years, J.L. described that when Mr. Polay got out of jail, she was the first person he contacted.

She described that she sent him a TV, clothing, and a game system in jail and that she is afraid he will contact her again and “pull [her] back into his grasp”. This demonstrates that the manipulation of J.L. as a child was so complete that even now, as an adult, she does not trust herself to resist a renewed attempt at manipulation. Positions of the Crown and the Defence [ 28 ] The Crown seeks a sentence of three to four years. [ 29 ] The Crown seeks ancillary orders. The first is for a provision of a DNA sample pursuant to s. 487.051(1) of the Criminal Code , R.S.C. 1985, c. C-46 .

The second is a lifetime prohibition of non-prohibited and non-restrictive firearms, ammunition, devices and a lifetime prohibition on restricted and prohibited firearms pursuant to s. 109(2) of the Criminal Code . The Crown also seeks a mandatory sexual offenders' registry application pursuant to the Sex Offender Information Registration Act, S.C. 2004, c. 10 , and limits on Mr. Polay's movements and Internet access pursuant to s. 161 of the Criminal Code . [ 30 ] Mr. Polay submits that the appropriate sentence is two years. He does not take issue with the ancillary orders sought by the Crown. Discussion

Principles of Sentencing [31]

Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute torespect for the law and the maintenance of a just, peaceful and safe society. Subsections (

a) through (

f) of s. 718 set out objectives toachieve the fundamental purpose, namely:

a) denouncing unlawful conduct and its resultant harms;

b) deterrence, both general and specific;

c) separating offenders from society where necessary to protect the public;

d) assisting in rehabilitation;

e) providing reparation for harms done; and

f) promoting responsibility in offenders and acknowledging the impact of their conduct. [32] As explained in R. v. Nasogaluak, 2010 SCC 6 at para. 43, none of these factors are inherently more important than the other.Rather, the sentencing judge must determine which are important and persuasive, given the circumstances of the case. [33] Sentencing is a discretionary exercise.

The sentencing judge is charged with the responsibility of determining a sentence that isappropriate, taking into account the nature and circumstances of the offence and offender, in accordance with the principles andobjectives of sentencing and paying due regard to the ranges for certain offences set by caselaw: Nasogaluak. [34] Sections 718.1 and 718.2 of the Criminal Code provide a non-exhaustive list of sentencing principles.

Section 718.1 mandatesthat a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides forthe consideration of aggravating and mitigating circumstances, the principles of parity and totality, and instruction to consider allavailable sanctions, other than imprisonment, that are reasonable in the circumstances. The most fundamental of these principles isproportionality: R. v. Ipeelee, 2012 SCC 13 at para. 37. [35] In Friesen at paras. 30-33, the Supreme Court of Canada reiterated the importance of proportionality and the role that parityplays and its relation to proportionality. Parity provides that similar offenders who commit similar offences should receive similarsentences.

Parity gives meaning to proportionality. [36] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences toensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. The totality principle seeks to ensurethat a sentence is not crushing to a particular accused given his age, circumstances, and prospect, or to extinguish his rehabilitationprospects: R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, [1996] 1 R.C.S. 500 [M. (C.A.)] at para. 42; R. v.

Wozny, 2010MBCA 115 at paras. 59 and 96. [37] In Friesen at paras. 43, 44, 50 and 75-92, the Court also explained that in sentencing for sexual offences against children, thelegislative objective of protecting children from wrongful exploitation and harm must be reflected in the sentence. The sentencing judgemust act in accordance with society's “contemporary understanding of the nature and gravity of sexual violence against children” (para.50).

The sentencing judge must also focus on the potential and actual emotional and psychological harm, as well as the physical harm ofthe offence both in the short and long term. The proportionality principle is served by a sentence that reflects that sexual offences againstchildren are inherently wrongful, i.e., have high intrinsic moral blameworthiness, and the potential and actual harm of these offences, i.e.,the gravity, is extremely high. The Court also reminds sentencing judges that not all offenders are the same in terms of moralblameworthiness.

The Court suggested that persons who suffer from mental disabilities and Indigenous persons who themselves havebeen the victims of the legacy of residential schools may have relatively reduced moral blameworthiness that should be taken intoaccount. [38] In Friesen, the Court admonished sentencing courts to reject any suggestion that the failure of a child to object to a sexualinteraction lessens the moral blameworthiness of the offence.

It is not a mitigating factor nor can it be equated with consent and takeninto account in the sentence: para. 52. [39] The Court held that society has shifted its thinking to the need to protect and address the sexual integrity of potential and actualvictims of child sexual offences. The Court pointed out that s. 718.01 of the Criminal Code is part of this societal recognition and placesupward pressure on sentences in cases involving sexual offences against children. [40] In Friesen, the offence at issue was a single sexual assault of a four-year-old.

The Court upheld the sentencing judge's sentenceof a six-year sentence. [41] In R. v. Zimmerman, (BC SC), [1998] B.C.J. No. 1968, 39 W.C.B. (2d) 361 (S.C.)., many years beforeFriesen, Mr. Justice Romilly of this court noted the following statistic in fitting a proportionate sentence in a sexual assault: One out of every ten violent crimes in Canada in 1995 was a sexual assault. 85% of sexual assault victims were female and, with 28,216sexual assaults reported in 1995, there was an average of over three (3) such assaults for every hour of every day of the year. [42] Crown counsel provided the statistics for 2014.

There were 75.5 sexual assaults per hour for every day in 2014. The Appropriate Range in Precedent Cases

[ 43 ] Sentencing ranges are a tool to determine a fit sentence. They assist the court to determine a fit sentence that applies to similar offenders convicted of similar crimes, i.e., the parity principle: R. v. Smith , 2017 BCCA 112 at para. 35 , citing M. (C.A.) at para. 92 . [ 44 ] However, they must not overtake the unique circumstances of the offender before the court and the principle of proportionality: Smith at para. 35 . [ 45 ] In Friesen para. 107 , the Court provided guidance on sentencing sexual offenders involving child victims as follows:

a) upward departure from previous sentencing ranges may be required to impose a proportionate sentence;

b) sexual offences against children should generally be punished more severely than sexual offences against adults; and

c) sexual interference with a child should not be treated as less serious than sexual assault of a child. [ 46 ] A fit sentence for a sexual offence against a child will often be mid-single digit penitentiary terms. Upper single-digit and double-digit penitentiary terms should not be unusual or reserved for the most severe cases: Friesen at paras. 108-120 . [ 47 ] Mr. Polay submits that he should be sentenced on the caselaw that governed at the time he committed the offence.

He submits that had he been tried and convicted on the offences when they occurred, he would have been sentenced long before Friesen provided guidance that placed upward pressure on sentences for sexual offences involving children. [ 48 ] I do not accept this submission. In Friesen , the Court discovered the law, it did not amend it. This principle has been discussed in many cases including Canada (Attorney General) v.

Hislop , 2007 SCC 10 at paras. 84-86 . [ 49 ] The post- Friesen caselaw is clear that the general principles articulated in Friesen regarding society's understanding of the severity of child sexual assault, restriction of strict sentencing ranges, as in R. v. Williams , 2020 BCCA 286 [ Williams (2020)], and the list of aggravating factors all apply to a case where the offences were committed prior to the release of Friesen . In R. v.

Plehanov , 2020 BCCA 249 at para. 19 , Justice Grauer confirmed the general application of Friesen to cases predating it: [19] Since that judgment was rendered, the tragic seriousness of sexual offences against children has been emphasized by the Supreme Court of Canada in R v Friesen , 2020 SCC 9 , where appropriate sentencing considerations are discussed in detail.

Although the circumstances of the sexual offence involved in that case were more egregious than those before us, and the case was decided in the context of legislative amendments that postdated the offence here, the Supreme Court made it clear that the guidance it provides is of general application to the imposition of sentences over the wide spectrum of sexual offences against children (at para 44). See also R. v. Alfred , 2021 BCCA 71 at para. 33 ; R. v.

Gerrard , 2021 BCSC 1219 . [ 50 ] As the Court explained in Friesen at para. 114 , even before the 2015 amendment to the Criminal Code increasing the maximum sentence from 10 to 14 years, child sexual assault has frequently merited substantial sentences: [114] D. (D.) , Woodward , S. (J.) , and this Court’s own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message.

It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.) , “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear ( D. (D.) , at paras. 34 and 45).

That message is 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, as in this case, Woodward , and L.M. In addition, as this Court recognized in L.M. , maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22).

Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). [ 51 ] With regard to the cases cited by Mr. Polay, neither supports the proposition that pre- Friesen sentencing authorities should be applied. R v. Williams , 2019 BCCA 295 [ Williams (2019)] was proceeding through the courts as Friesen was before the Supreme Court of Canada. The Supreme Court of Canada remanded Williams (2019) to the British Columbia Court of Appeal to be decided in accordance with Friesen .

The Court of Appeal subsequently reheard the appeal and upheld the sentencing judge's six-year sentence in Williams (2020). I will address the circumstances of that case in more detail below. [ 52 ] In R. v. G.T.A. , 2021 BCPC 51 , the offence took place after 2015 and the sentencing judge applied Friesen . The sentencing judge did not suggest that Friesen did not apply. [ 53 ] Mr. Polay submits that had he been tried at the same time as the offences for which he was on bail when he committed the sexual assaults on this indictment, he would have had the benefit of the totality principle.

He asserts that to not apply the totality principle in sentencing is unfair to him. [ 54 ] I do not accept this submission. The totality principle does not operate to reduce the sentence for an offence that was committed at a similar time to other offences for which the offender has already been sentenced. The Ontario Court of Appeal addressed this issue in R. v.

Stuckless , 2019 ONCA 504 , at paragraph 71 to 75 : [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 respondent’s 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 respondent’s 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. [ 55 ] Both Stuckless and R. v. James , 2013 MBCA 14 , referred to in Stuckless , concerned historical sexual abuse where the offender had already served a sentence in relation to similar offences committed against other victims. Mr.

Stuckless was sentenced to six years in 1998. In the subsequent sentencing, the Ontario Court of Appeal overturned the sentencing judge's sentence of six-and-a-half years' imprisonment and imposed a sentence of ten years. In James , the offender served three-and-a-half years in 1997 and was sentenced to five years for the subsequent charges. [ 56 ] The Crown relied on the following cases in support of its submission that the appropriate sentence is three to four years. [ 57 ] In R. v. Harley , 2000 BCCA 333 , the offender sexually touched two girls, one eight and one ten. They were not known to him.

The touching was one occasion and was interrupted by an adult. The offender had a serious criminal record, including for sexual offences. The offender offered evidence that he had undertaken therapy, made changes, and did not pose a risk. The Court of Appeal imposed two seven-year sentences to be served concurrently. [ 58 ] In R. v. Conway , 2007 BCCA 389 , the offender had previous convictions for sexual offences. On appeal, the issue was to determine the appropriate sentence for three counts of sexual touching of girls at a public swimming facility.

The Court of Appeal replaced the sentence at trial with a four-year global sentence for the three instances of sexual touching. Medical evidence indicated that his risk of reoffending was high. [ 59 ] Mr. Polay relies on Williams (2019). This decision was released pre- Friesen. Mr. Williams pleaded guilty on two counts of sexual interference with a person under 16 years of age. The sentencing judge imposed a global sentence of seven-and-a-half years in custody, three-and-a-half years on one count and four years consecutive on the other counts.

Each were reduced by six months in accordance with the totality principle, for a net sentence of six-and-a-half years. The Court of Appeal reduced the net custodial sentence to a total of four years, one-and-a-half years on the first count and two-and-a-half years consecutive on the other count. I will come back to that. [ 60 ] As I have already recounted, when the Crown sought leave to the Supreme Court of Canada, the Court remanded the matter to the Court of Appeal to be addressed in accordance with Friesen .

In Williams (2020), the Court of Appeal upheld the sentence of the trial judge, i.e., three-and-a-half years on one count and four years on the second count. [ 61 ] The victims in Williams were 14 and 15 years old, respectively. Although their ages were not known to the offender at the outset of the sexual relations, he came to know their ages. He carried on sexual relations with them on multiple occasions over several years. He controlled them and manipulated them. He was approximately ten years older than the victims and was a first-time offender. Mr.

Williams had personal circumstances including mental health conditions that were mitigating. In Williams (2020), the Court of Appeal considered those personal circumstances relevant and a mitigating factor. However, the Court of Appeal still upheld the trial judge's sentences, taking into account the principles explained in Friesen . The Court of Appeal also addressed the appropriate duration of a prohibition under s. 161 of the Criminal Code to which I will turn to in due course. [ 62 ] Mr. Polay also relies on G.T.A.

In that case, the accused pleaded guilty to sexual assault and threats of death or bodily harm to a 15-year-old with whom he had a sexual relationship over many months. He threatened death to her, following which she went to the police. He was 23 years old at the time. He had no prior criminal record. He had significant mental health issues with depression, anxiety, and suicidal ideation. The sentencing judge stated that the 36-month sentence for sexual assault was at the low end of the range following Friesen . He was also sentenced to six months consecutive for the threat.

Mitigating and Aggravating Factors [ 63 ] Crown submits, and Mr. Polay agrees, that his guilty plea is a significant mitigating factor. By pleading guilty, he saved J.L. the additional stress and harm of reliving the sexual abuse through a trial. I agree that this is a significant mitigating factor. [ 64 ] Mr. Polay argues that he is at a low risk to reoffend. He argues that the significant work he has done and insight he has gained reduces the need to incarcerate him to protect the public. The Crown submits that the basis of the RAPP report author's views are Mr.

Polay's self-reporting not tested by cross-examination. The Crown submits that the RAPP report cannot support a finding that he is at a low risk to reoffend especially in light of the evidence that when he was first paroled, he violated his parole by having sex with a 17- year-old. He also contacted J.L. [ 65 ] In my view, the evidence does not support a finding that Mr. Polay is at a low risk to reoffend. His parole violation and his contact of J.L. are extremely concerning. His contacting J.L. is aggravating because of the further harm it did to her and the concern of re-offending.

The RAPP report does not support a finding that he is at a low risk to reoffend. It described behaviours and risk that raise concerns and an overall conclusion that his risk is “mixed”.

[66] Overall, the need to protect society is an aggravating factor in this case. [67] Mr. Polay's previous record, including that he was on bail for other charges for sexual offences against minors when he engagedin multiple acts of sexual assault on J.L., knowing she was only 13 to 14 years-old, is seriously aggravating. [68] The duration of the sexual assaults is an aggravating factor. [69] Based on the RAPP report and Mr. Polay's allocution, Mr.

Polay has some insight into his problems and the harm they cause.However, I cannot find he has control of them, especially in stressful situations. [70] J.L.'s victim impact statement demonstrates that Mr. Polay caused serious ongoing harm to her. What she describes dovetails withwhat Friesen describes as the reasons for upward pressure on sentences for sexual offences involving children. [71] Mr.

Polay's expression of regret for what he has done, his acknowledgment that he has done harm, and his acknowledgment thathe cannot change it and needs help are mitigating factors. [72] Taking all of this into account, I conclude that denunciation, specific deterrence, general deterrence, and protection of the publicare key elements of a fit sentence in this case. Considering the parity principle, in connection with the cases I have discussed, I impose asentence of four years. [73] Mr. Polay has not served time in custody on these charges to date so there is no deduction for time served.

Ancillary Orders [74] The offence to which Mr. Polay pleaded guilty, sexual assault, is a primary designated offence under s. 487.04 of the CriminalCode. The Crown seeks an order for samples of Mr. Polay's DNA to be taken for the purposes of registering it in the DNA nationaldatabank pursuant to s. 487.051 of the Criminal Code. I make that order. [75] Pursuant to s. 109(1)(

a) of the Criminal Code, a firearms prohibition order is mandatory upon conviction for these offences. Thisis a second offence and the Crown seeks a lifetime ban for non-prohibited and non-restricted firearms. However, the Crown has notgiven notice that a lifetime ban would be sought. The Crown asserts that the language of s. 109(2)(

a) requiring the court to issue a ban of"no less than ten years" gives the court discretion to issue a lifetime ban notwithstanding that no notice has been given. The Crown hasnot provided any authority for that position other than the language of the provision. Given appellate authorities from other jurisdictionsholding that notice must be given, for example: R. v. Jobb, (SK CA), [1988] 6 W.W.R. 268, 43 C.C.C. (3d) 476(Sask. C.A.) and R. v. Ellis, (ON CA), [2001] O.J. No. 1262, 143 O.A.C. 43 (Ont.

C.A.), and the absence of aprincipled or articulated reason for a ban that is to be “no less than ten years” to be set at lifetime, I order a ban of ten years for non-prohibited and non-restricted firearms. The s. 109(2)(

b) ban shall be lifetime. [76] The Criminal Code s. 490.012 mandates the application of the Sex Offender Information Registration Act. Because this isMr. Polay's second conviction, he is required to comply with the Sex Offender Information Registration Act for life. [77] The Crown also seeks a prohibition under s. 161 of the Criminal Code, including:

a) restrictions pertaining to public places where Mr. Polay may attend if there are children under the age of 16;

b) that he not be permitted within two kilometres of a dwelling place of J.L.;

c) that he not be permitted to seek employment involving a position of trust for persons under the age of 16;

d) that he not have contact with a person under the age of 16; and

e) that he be restricted in using the Internet. I am persuaded that such an order is appropriate. I will detail it in due course. [78] The question arises as to the appropriate duration of such an order. I consider ten years appropriate in this case. The CriminalCode allows for it to be commenced at the end of the custodial sentence and continue for a period up to for life. In Williams (2020), theCourt of Appeal addressed such a ban in similar circumstances and reduced a 20-year ban to ten years. I consider 10 years appropriate inthis case. Sentence [79] Mr. Polay, please stand.

I sentence you to four years in custody. [80] Pursuant to s. 487.051(3) of the Criminal Code, I make an order authorizing the taking of samples of bodily substances from youfor the purpose of registration in the DNA national databank. The samples will be taken from you while you are in jail and you mustsubmit to the taking of the samples. [81] You are prohibited from possessing any weapon, other than a prohibited firearm or restricted weapon, or any crossbow, restrictedweapon, ammunition, and explosive substance for a period of ten years.

You are prohibited from possessing any prohibited firearm,restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life. Any such items presently in your possessionmust be surrendered within 24 hours.

[ 82 ] Pursuant to s. 490.012 of the Criminal Code , you must comply with the Sex Offender Information Registration Act . Because of your prior convictions and pursuant to s. 490.013(2.1), you are required to comply with the Sex Offender Information Registration Act for life. [ 83 ] I order that pursuant to s. 161 of the Criminal Code , you are prohibited, for ten years, from:

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground, or community centre;

b) being within two kilometres (or any other distance specified) of any residence, school, or workplace of J.L.;

c) seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity that involves a position of trust or authority towards persons under the age of 16 years;

d) having contact or communication with a person who is under the age of 16 years; and

e) using the Internet or other digital network, except for the purpose of obtaining, maintaining, and in the course of lawful employment, with the circumstances of employment being approved in advance in writing by the court, your probation officer, your parole officer, a member of the Royal Canadian Mounted Police, or the person to whom you are reporting under the Sex Offender Information Registration Act . You must carry a copy of the written permission with you.

In no event may you use the Internet to access any illegal content, communicate with persons under the age of 16, other than immediate family members, or access any social media. In no event may you use the Internet to directly or indirectly access any social media sites, social network, Internet discussion forum or chatroom, or maintain a personal profile on any such service, for example, Facebook, Twitter, Tinder, Instagram, or any equivalent or similar service. [ 84 ] You may have a seat, Mr. Polay. [ 85 ] Mr.

Polay, your guilty plea and your comments to the Court today provide the Court and the public with some reassurance that you are coming to grips with the nature of your behaviour and the harm you have done. I do not know if you have had an opportunity to hear from a victim of your offences before. I hope that you can reflect on what J.L. has said about the real damage that you have done to her. I urge you to take that on board and to use that in your rehabilitation. I hope you are able to take advantage of further opportunities while incarcerated to overcome your problems and to further rehabilitate.

I wish you the best of luck in that regard. [ 86 ] Anything arising, counsel? [ 87 ] CNSL P. CORBETT: No, My Lady, stays on one and three. [ 88 ] THE COURT: All right, thank you. The Crown enters stays on Counts 1 and 3 of the indictment. “Matthews J.”