R. v. Poulsen, 2020 ONCJ 440

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

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

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

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

summary conviction. CITATION : R. v. Poulsen , 2020 ONCJ 440 DATE : September 30, 2020 Ontario Court of Justice (Toronto Region) Her Majesty The Queen – And – Christian Poulsen Reasons For Sentence Heard : 10 September 2019, 10 September 2020; Judgment : 30 Sept 2020 (85 paras) Counsel for the Accused: Kas Marynick Counsel for the Crown: Rick Nathanson Libman J.: - History of the Proceedings [ 1 ] Christian Poulsen stands charged with two counts of sexual assault and two counts of sexual interference (touching with his hands and touching with his penis) against E.B. on 27 January 2014.

The parties knew each other from sharing drugs together. They were doing so that day. At the time in question, Mr. Poulsen was 36 years old; E.B. was 14. [ 2 ] E.B. made the police aware of the allegations on 5 May 2017 after being arrested for possession of stolen property and drugs in April. The charges against the accused were laid on 27 June 2017. The Crown elected to proceed by indictment; the accused elected to be tried in the Ontario Court of Justice.

[ 3 ] The trial commenced on 30 October 2018. The Crown’s case consisted of a forensic toxicologist, Nathalie Desrosiers, who testified about the effects of the drugs ketamine and ecstasy, on the human body. Both have the potential to cause, among other things, confusion and hallucinations. It was these drugs that the accused gave to the complainant at his house. The complainant also commenced her testimony that day. It continued on 31 October and 6 November, these being the three dates that were scheduled for the trial. E.B.’s testimony continued on 22 November.

It was followed the next day by her mother’s evidence. The Crown’s case then concluded. [ 4 ] Mr. Poulsen testified in his own defence. This occurred over December 19 and 21. Submissions were heard on 28 January 2019. [ 5 ] I rendered judgment on 25 February 2019, finding the accused guilty of the sexual interference charges and entering conditional stays on the sexual assault counts. [ 6 ] The sentencing hearing in this case has been protracted. The parties first appeared before me on 12 March 2019 to fix a date for sentencing. A pre-sentence report was ordered at that time.

A half-day for sentencing was set aside for 17 June. [ 7 ] The pre-sentence report was in fact completed on 14 May 2019. It contained a recommendation that the accused attend for a forensic sexual behavior assessment. Unfortunately, the defence did not receive the pre-sentence report in a timely manner and applied for an adjournment of the sentencing hearing which was granted. It was also indicated that the forensic assessment would be pursued by the defence.

Sentencing was then adjourned until 19 July 2019. [ 8 ] A further adjournment was granted to the defence on this date as a pathological risk assessment of Mr. Poulsen had not been completed in time. The author, Dr. David Simourd, did finish the report on 14 August 2019. Sentencing was re-scheduled for 10 September 2019. [ 9 ] Crown counsel made his submissions on the 10 September date. Victim impact evidence was also provided by the complainant and her mother. Mr.

Marynick requested an opportunity to make his submissions on a subsequent date so that he could pursue a matter that he considered relevant on sentencing. This led to the hearing being adjourned first to November 27 and subsequently to March 31 of 2020. The latter date, of course, was impacted by the COVID pandemic and regular sittings of the court were not available. The defence submissions were ultimately made by audio-conferencing on 10 September 2020, followed by the Crown’s reply. Sentencing was then adjourned until today’s date, 30 September, for the parties to attend in court in person.

Evidence on Sentencing Pre-Sentence Report [ 10 ] Exhibit 1 on sentencing is the pre-sentence report. It indicates that the offender has a dated criminal record for unrelated offences such as shoplifting as a youth and assault going back to 1997. Mr. Poulsen was raised in various parts of Ontario, and currently lives near Ottawa. He had a daughter at a young age and has raised her as a single father. She is now 14-years old. He currently resides with her and his girlfriend of two and one-half years.

He also helps look after his parents and takes his father, who is unwell, to his medical appointments. [ 11 ] For employment, Mr. Poulsen works in a furniture store as well as a manager in a cannabis shop. He did not finish high school as he preferred to be involved in music. He has been involved in many illicit drugs such as ecstasy, cocaine and ketamine, but not heroine. He was also around the drug culture in Toronto where he and his brothers owned a nightclub. [ 12 ] According to the pre-sentence report, the accused does not accept responsibility for his conduct in these proceedings.

The complainant was the one making sexual advances on him, and her condition was impacted by the drugs she took. He did not realize she was so young. He considers that his “normal common sense failed” him being around her while she was under the influence of drugs. Persons close to the offender describe the offences as out of character for him. [ 13 ] The author of the pre-sentence report indicated in her assessment that she had some concerns, given the offender’s lack of acceptance of responsibility for what occurred, as well as his being around his daughter’s friends, who are the same age as the complainant.

She went on to recommend that a forensic sexual behaviour assessment might be helpful as it would provide information as to Mr. Poulsen’s level of risk in the community, given his community involvement, interests and past history. Psychological Risk Assessment [ 14 ] Dr. Simourd’s report is set out of the defence sentencing brief. His report is dated 14 August 2019. The accused was 41 years old at this time. Dr.

Simourd interviewed the defendant for two hours on 15 July 2019, and administered a number of psychological tests, including broad based criminal risk/needs measure (Level of Service Inventory – Revised) and sexual risk potential (STATIC-99). [ 15 ] In his interview, the offender fully acknowledged knowing the victim through their mutual involvement in the “drug scene” at the time. However, he denied that the two had any sexual relations, either historically or on the day of the alleged offences.

Apart from his denial of the alleged offence, the accused presented as a person who understood the seriousness of his behavior and had altered his lifestyle as a result, such as moving away from Toronto to be near his parents. [ 16 ] In terms of sexuality, the offender described himself as a heterosexual in orientation with a sexual preference for age concordant females. He described a fully normal sexual development and experiences, according to the Doctor. He denied sexual preoccupation, a history or current access to pornography, infidelity in his romantic relationships, or use of sex trade workers.

Overall, he had a subdued but “fully normal” sexual profile. [ 17 ] Dr. Simourd also noted that Mr. Poulsen has a history of several self-improvement initiations. He considered that his most impressive initiative has been his abstinence from drug use: he had separate five year and two periods of abstinence. He presented as a person who had improved himself during his lifetime and has considerable potential for self-improvement in the future.

[ 18 ] With respect to test results, the offender was found not to have excessive antisocial cognitions. In terms of risk for criminal conduct and need for treatment, his scores placed him in the low risk/need range, which is the lowest of the five risk bands. The STATIC-99 measurement of sexual offending risk potential placed Mr. Poulsen in the low range. Individuals with scores in this range have a 6% probability of committing a sexual offence within 5 years. It was also noted that the scores that produced Mr. Poulsen’s risk rating were from items of the non-sexual type. [ 19 ] In

summary, Dr. Simourd opined that in the case of Mr. Poulsen, the balance of clinical evidence suggested that he is an appropriate candidate for a low severity disposition. Psychologically and emotionally he is a stable person. The criminal offences for which he was found guilty were at “considerable odds with his personality style and sexual profile”. His risk for future criminal acts of either a sexual or general nature were at the lowest assessed level. As a result, a disposition matched to this risk level has a “high probability of compliance from Mr. Poulsen and success”.

Victim Impact Statement of E.B. [ 20 ] Exhibit 2 is the victim impact statement of the victim. It begins with this sentence: After I was sexually assaulted at 14 years old, my life changed for the worse. [ 21 ] E.B. goes on to describe how she had just started Grade 9 and suddenly was different than her classmates. The assault was a “horrible event” and a “new ugliness” in her life that she couldn’t tell her teachers, youth worker, family or friends, so she “drifted away” from everyone she knew. It took away from her exploring her new sexuality.

Instead her experience from the offender was “darkness, objectification and pain”. [ 22 ] Her relationship with her mother also became increasingly strained. She was sent out of the country to Brazil for six months by her mother to keep her out of harm’s way and dropped out of Grade 9. The offender caused her mother’s side of the family to be deeply hurt. After the assault, she never talked to her father again. [ 23 ] Addressing the accused, E.B. writes: For years I was plagued by unresolved feelings and confusion about what you did to me.

Not enough to have one confusing sexual experience, I became wary of most of the sex I would have after my assault, thinking critically and negatively about it. Since this guilty verdict, its like I am free. I’m not confused anymore. I feel a weight lifted off me. I feel like I can almost just feel normal. I’m so thankful for this closure, which has given me permission to heal. I hope you can do the same. [ 24 ] The victim also expressed her concern about photos that the offender took of her during the sexual assault.

It gave her a “heavy feeling” to think that they could be on the internet for others to see or contribute to the mindset that “abuse is okay”. It also worried her that knowing the accused had a daughter of his own, she was concerned that by legally pursuing the matter his daughter might be left without a father, just as she had been. Victim Impact Statement of E.B.’s Mother [ 25 ] From the age of 3, E.B.’s mother raised her on her own. They became best friends.

They shared a deep affection, the love for arts and literature, love for animals, empathy and compassion for their fellow human beings. [ 26 ] In her victim impact statement, Exhibit 3, the witness writes that what the accused did to her daughter hurt her more than anything else in her life. Aged 60 now, she could never forget the pain of finding out that her daughter had been drugged, sexually assaulted and photographed by him. [ 27 ] Following the assault, her daughter fell into “an abyss of misery, drug addiction and eventual homelessness.” This caused Ms.

B., in turn, to fall into depression and fear she would lose her job due to her becoming socially isolated. She was put on medication for depression and developed feelings of low self-esteem as she blamed herself for not being able to protect her daughter “from the predatory acts of an adult man”. [ 28 ] The witness continues to have nightmares about what happened to her daughter. She wakes up in the middle of the night crying. When she does not see or hear from her daughter for a couple of days she has anxiety from imaging what might be happening to her. She goes on to say: I lost my child at the age of 14.

Christian Poulsen stole her from me with his abominable actions. It took us years to heal our relationship, years that I will never have back with my child. After two years of struggle, E. left our house when she was 16 to live in the streets, and never returned. [ 29 ] She concludes by stating she knows her daughter is a kind, bright, intelligent beautiful girl, but it does not help her to sleep when “I think of what happen to her and how I could not protect her, even when I left my country to have a child out of harms way in Canada.” Position of the Parties on Sentencing Position of the Crown [ 30 ] Mr.

Nathanson, for the Crown, made his initial submissions on sentencing on 10 September 2019. At that time he set out that the Crown was seeking a penitentiary sentence of 4 and one-half years as well as two ancillary orders: a lifetime order under the Sex Offender Information Registration Act pursuant to s.490.022(3)(

d) and a DNA order as sexual interference is a primary designated offence: s.487.04(a)(i.1). [ 31 ] In support of his position, Crown counsel states that there are a number of aggravating factors. He notes, first, that there is evidence

that the offence has had “a significant impact” on the victim, as set out in s.718(a)(iii.1). It has devastated not just the victim, but hermother and their mother-daughter relationship as well. [32] The age difference between the accused and the victim is also particularly troubling, submits the Crown. The accused was morethan twice her age. She was also obviously vulnerable to him, being high on drugs and in an emotional state. He committed multiplesexual acts that were highly invasive, such as digital touching, sexual intercourse and fellatio.

Photographing her while he had his penisin her mouth also caused her great distress. The power imbalance between them is highly aggravating. And neither is it lessened by thefact that E.B. told him she was okay with some of the touching around the time of having intercourse. Consent by an underage party isneither a defence nor mitigating factor: R v E.C., 2019 ONCA 688 at para. 13. [33] Being a victim under the age of 18 is also a statutory codified aggravating factor: s.718.2(a)(ii.1). The accused gave the victimdrugs, brought her to his house, and she trusted him while she was in his company.

However, he gave a 14-year old powerful drugs, andproceeded to sexually assault her while she was under the drugs’ influence. It is an aggravating factor for a drug dealer to assault avulnerable client in this context: see R v A.H. (2000), (ON CA), 136 O.A.C. 91 at para. 17. The accused exploited avulnerable and young teenager for his own sexual purposes, a seriously aggravating factor: see R v P.M. (2002), (ONCA), 155 O.A.C. 242 at para. 19. [34] In Crown counsel’s view, denunciation and deterrence must be the paramount considerations in sentencing Mr. Poulsen.

Insentencing adult sexual predators who have abused children, the focus of the sentencing hearing must be the harm caused to the child: Rv Stuckless, 2019 ONCA 504 at paras. 56, 90. There is a need in such cases to separate sexual predators from society.

This approach istypified in R v Woodward, 2011 ONCA 610, where a sentence of 6 and one-half years was upheld where a 30-year old defendant with anunrelated record lured a 12-year old child and sexually assaulted her. [35] A sentence of 4 and one-half years is supported, according to the Crown, by the case of R v K.M., 2017 ONSC 2690 ,[2017] O.J. 2198 (S.C.J.) where the 13-year old victim was sexually assaulted by the accused who was almost 40 at the time and had norecord.

The acts included sexual intercourse on more than one occasion, mutual masturbation and rubbing oil on the complainant’sstomach for a sexual purpose. A sentence of 5 and one-half years was imposed. [36] Following the resumption of sentencing submissions on 9 September 2020, Crown counsel noted that the release of the SupremeCourt of Canada’s decision in April 2020 of R v Friesen, 2020 SCC 9, supports his position of a mid-single digit penitentiary termsentence.

In that case, a 6-year sentence imposed by the trial judge following the accused’s guilty plea to sexual interference with ayoung child and attempted extortion of the child’s mother was restored by the Supreme Court after it was reduced to 4 and one-half yearsby the Manitoba Court of Appeal. [37] In doing so, the Supreme Court stated it wished to make the following overarching point: Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerabilityand cause profound harm to children, families, and communities.

Sentences for these crimes must increase. Courts must imposesentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, asinformed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexualviolence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching andongoing harm that it causes to children, families and society at large. (para. 5) [38] The Supreme Court went on to make a number of comments that are of particular application here. These include that sexualviolence has a disproportionate impact on girls and young women. (para. 68).

Sentences that are imposed must recognize and reflect boththe harm that sexual offences against children cause and the wrongfulness of sexual violence. (para. 74) There are two categories ofharm: harm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood. (para. 80). The Courtnoted that direct evidence of actual harm may be provided by victim impact statements, including those from parents. Such evidence isavailable in the case at bar, notes the Crown. [39] With respect to specific guidance for sentences for sexual offences against children, Mr.

Nathanson relies on the Supreme Court’sobservations that: upward departure from prior precedents and sentencing ranges may well be required to impose a proportionatesentence; sexual offences against children should generally be punished more severely than sexual offences against adults; and sexualinterference with a child should not be treated as less serious than sexual assault of a child. (para. 107).

As for the range of sentence to beimposed, the Court states at para. 114: That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit anddouble-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add thatsubstantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim… [40] Also set out in its decision is a list of significant factors to determine a fit sentence.

These include: likelihood to reoffend; abuse of aposition of trust or authority; duration and frequency; age of the victim; degree of physical interference; and victim participation. TheCourt makes clear that participation of the victim is not a mitigating factor. [41] In

summary, the Crown submits that a penitentiary sentence for this offender committing this offence is fully warranted, and that asentence in the range of 4 and one-half years is in accordance with the Friesen decision. Position of the Defence [42] Mr. Marynick, for the defence, submits that a penitentiary sentence is not warranted. He has filed a Sentencing Brief requesting ablended sentence of 1-year imprisonment for the first count of sexual interference consecutive to and followed by a sentence of 1 yearless a day to be served conditionally in the community for the second count of sexual interference.

A period of probation of two years isalso recommended. The defence takes no issue with the ancillary orders proposed by the Crown.

[43] In a chart contained in his sentencing brief, Mr. Marynick has set out a number of Ontario cases where sentences in the midreformatory and conditional sentence range have been imposed for sexual offences involving children committed by adults. Heacknowledges, however, that the Friesen case supersedes these authorities. [44] According to the defence, the accused’s moral blameworthiness is distinguishable from other offenders convicted of sexual activitywith children because he was not the one who sought her out. There was no grooming conduct.

Indeed, it was the complainant whoinitiated their getting together on the day in question, for the purpose of buying drugs. [45] Mr. Marynick emphasizes Mr. Poulsen’s significant and positive prospects for rehabilitation. He is now 42 years old. More than 6years has passed since the time of the offences. During this time, he has made many positive changes in his lifestyle.

He has moved awayfrom Toronto and the negative influences of the drug culture so as to embrace the responsibilities of being a single parent andcontributing to his community by being gainfully employed and supporting his parents. [46] Particularly of importance in this regard is that in Dr. Simourd’s assessment report, the offender is placed at the lowest actuariallevel for both general and sexual reoffending. He is also in a committed romantic relationship with a woman.

He will also comply withcommunity supervision in the opinion of the author of the pre-sentence report, who noted that he was cooperative during its preparation.His low risk to reoffend coupled with these prospects for rehabilitation are significant factors in favour of the accused. [47] A blended one year/one year conditional sentence is also appropriate given the COVID-19 pandemic. The sentence advocated bythe Crown would expose Mr. Poulsen to being moved through and around the federal system, thereby putting him at risk of beingexposed to the virus.

He relies in this regard on the comments of Oleskiw J. in R v Rose, 2020 ONCJ 381 at para. 52 and Ghosh J. in R vKochanska, 2020 ONCJ 385 at para. 74 where sentence reductions were granted due to the pandemic and the psychological andpotentially physical impact it poses to inmates. [48] The defence argues that the penitentiary sentence sought by the Crown, even following the Friesen decision, is “a grosslydisproportionate punishment”.

While the complainant is a child and thus there is “overall an aggravating context” as mandated byss.718.01 and 718.2(a)(ii.1), he notes there was consent by the victim or participation by her “in-and-around the sexual assault sexualactivity.” [49] Mr. Marynick disputes a number of the aggravating factors relied upon by the Crown. To begin, he takes issue with the suggestionthat his client can be considered to have abused a position of trust by being a drug dealer to the complainant.

Relying on R v A.H., (OCA) at para. 17, he notes the Court observed that the relationship between a drug dealer and an addicted client “is notone of an imbalance of power per se.” Neither was there was an exploitation of the victim by making the use of drugs dependent on thesexual activity as in a quid pro quo. [50] With respect to the duration and frequency of the conduct, the defence states that the offences may be viewed as a single continuingevent. It occurred in a single day, and in a single place.

While it was not brief or fleeting, neither was it prolonged or more than once interms of the acts that occurred. [51] It is conceded that there is an age discrepancy between the parties. They were separated by more than 20 years. However, it is notedthat the complainant was not a young child, and in fact was mature for her age. Indeed, in the cases relied upon by the defence thatsupport a reformatory sentence, the age discrepancy between the accused and complainant is similar.

For example, in R v K.S., 2018ONSC 5678, a sentence of 15 months was imposed where a 30-year old offender engaged in forced oral sex and intercourse with acomplainant aged 14. [52] Mr. Poulsen’s lack of remorse is not an aggravating factor, notes the defence. Indeed, this is noted in the pre-sentence report wherethe defendant does acknowledge he made “an error in judgment” in his approach to drugs and being alone with the victim while she wasunder the influence of the illicit drugs that he gave her.

The offender’s attitude toward his conduct, and that of the complainant, is not adisqualifying factor: see R v Hussein, 2017 ONSC 4202 at para. 20 where a 15-month sentence was given to an offender 14 years olderthan the victim who had full intercourse with a 13-year old. [53] The defence concedes that the degree of physical interference is a recognized aggravating factor. As stated in Friesen, this factorreflects the degree of violation of the victim’s bodily integrity as well as the sexual nature of the touching and its violation of the victim’ssexual integrity. (para. 138). Mr.

Marynick goes on to note, though, that all children all vulnerable, and a vulnerable child victim does nothelp to distinguish one offence or offender from another. He cites in this regard R v J.D., 2015 ONSC 5857 where the complainant metthe offender, who was 16-years her senior, in a homeless shelter. A 15-month sentence was imposed following the accused’s guilty pleato full intercourse on two to five occasions. [54] As for participation by the victim, the defence submits that the offence was not planned in advance as it was the complainant whocontacted the accused in order to buy drugs.

It was the first time they did so. There was no attempt to groom her for sexual activities or toreach out to her further. Neither did this amount to a loving relationship with an adult over a period of time. [55] In

summary, it is the position of the defence that the gravity of the offence and degree of responsibility of the offender can beaddressed by a sentence that does not send Mr. Poulsen to the penitentiary. Instead, the sentence the defence proposes would subject himto further supervision by the court in the form of the blended sentence of one year imprisonment consecutive to and followed by a oneyear sentence less a day to be served conditionally in the community, with two years of probation being imposed as well. Mr. Poulsen’s Statement to the Court [56] Following the submissions of counsel on 9 September 2020, Mr.

Poulsen indicated that he wished to address the court onsentencing. This is his right pursuant to s.726 and there is no obligation that he does so. The parties appeared before me by audio-conference on this date and Mr. Poulsen made his comments in this manner as well. [57] In what appeared to me to be an emotional tone, Mr. Poulsen expressed his regret to the complainant and her mother for what

happened. He said he realized that what he did was not helpful in meeting E.B. and providing her with drugs. He was very sorry for the harm he caused her and to their families. Analysis [ 58 ] Parliament’s attitude towards sexual offences involving children could not be clearer. While the purpose of sentencing and its objectives are broadly set out under s.718, there are at present three categories of victims where it stated that primary consideration should be given to the objectives of denunciation and deterrence.

One of these is where the offence involves the abuse of a person under the age of 18-years: s.718.01. [ 59 ] This is further reflected in the sentencing principles provision where an enumerated aggravating factor is that the offender, in committing the offence, abused a person under the age of 18: s.718.2(a)(ii.1). [ 60 ] At the time of the offences, E.B. had been a teenager for less than two years. [ 61 ] The offence of sexual interference under s.151 carries a maximum punishment of 14 years when punishable by indictment. The former maximum ceiling was 10 years.

This increased maximum punishment was noted by the Supreme Court in Friesen in an appendix accompanying the judgment where the provisions of the Tougher Penalties for Child Predators Act , S.C. 2015, c.23, is set out. [ 62 ] The election by the Crown to proceed by way of indictment in this case thus evidences its view of the seriousness of the offences for which I have found Mr. Poulsen guilty. [ 63 ] The Supreme Court of Canada’s blunt message in Friesen that sentences for such offences must increase therefore informs these Reasons for Sentence.

As the Court put it, mid-single digit penitentiary terms for sexual offences against children are to be the norm and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

Substantial sentences may also be imposed where there is only a single instance of sexual violence and/or a single victim. [ 64 ] It is thus clear that the sentencing jurisprudence decided beforehand must be viewed through the Friesen prism. [ 65 ] Accordingly, I must respectfully reject the position put forth by the defence that a penitentiary sentence is not required. A conditional sentence, or indeed any sentence within the reformatory range, is not in keeping with the gravity of the offence and degree of responsibility of the offender.

Stated shortly, such sentences would not reflect the fundamental principle of proportionality in the circumstances of this case. [ 66 ] I reach this conclusion, being mindful that there are real prospects for rehabilitation for this offender. The psychological assessment places him at low risk to reoffend. He appears to have taken several pro-social initiatives, such as moving away from the drug culture in which he was immersed and not getting into further trouble following the commission of these offences. His previous record is dated and unrelated.

There will also be significant negative impact to his young daughter, girlfriend and his parents, all of whom he cares for and rely upon him. [ 67 ] The offences that occurred here occasioned a gross violation of the sexual dignity of the victim. She was not just under the influence of hallucinogenic drugs at the time, but under Mr. Poulsen’s direct control in his house, and completely unable to fend off the sexual advances of a man twice her age who was well aware of her emotional and vulnerable state.

That the complainant appeared mature or experienced for her age is no excuse, and certainly no mitigating factor. [ 68 ] The impact on the victim and her family has been devastating. The offences, in the words of s.718.2(a)(iii.1), clearly have occasioned “a significant impact” on them. Being assaulted and sexually exploited robbed E.B. of her youth, as she so poignantly described it in her victim impact statement. There have been both immediate and long-term consequences to her.

The former included her being sent away for six months to live overseas with her mother’s family, an estrangement with her mother, dropping out of Grade 9 and living on the streets. As for the latter, it is apparent that five years after the commission of the offences, at the time that E.B. and her mother read their victim impact statements, there are still scars and feelings of guilt and shame from these events. Mr.

Poulsen may have physically distanced himself from the events and moved on; the complainant and her family have not. [ 69 ] E.B.’s confusion as to what happened, and her viewing the offender as an adult she trusted, even though he assaulted her, may be seen by their conversation with each other days after the incident. Exhibit 4 at trial is the text conversation between the parties on 30 January 2014, that is, three days after the incident. Unlike their first conversation where E.B. sought out the defendant and she wound up at his house doing drugs, it was Mr.

Poulsen who contacted her, telling her right away that it was “really not cool” to tell people he raped her. After he next stated, “I did not rape u”, E.B.’s response was to say, “I know you didn’t delete any pics you took”. She went on to state she told him she did not want to “blow” him.

In the course of the conversation that followed, she said she was “really high” and maybe she was wrong about what happened, stating at one point “I’m sorry when I said anything to anyone I was high as tits and just being dumb and I can tell them so okay.” [ 70 ] Five years later, at the time of giving her victim impact statement in September 2019, E.B. is still disturbed about the thought of these sexual pictures of her being recorded and able to be posted on the internet, and the message that others may take from seeing them and normalizing such abuse. The evidence of harm to her is direct and present.

It is psychological and real, past and present. [ 71 ] At the time Crown counsel made his submissions, the sentence proposed of 4 and one-half years may have appeared to be at the outer range or even excessive compared to sentences for like conduct. In light of Friesen , however, it is well within the range that is mandated.

In my respectful opinion, a penitentiary sentence in the range of 4 to 5 years for these offences is required to give effect to the principle that the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large must be reflected in the sentence imposed for such offences by the Court.

No lesser sentence, respectfully, would suffice, given that primary consideration is to be given to the objectives of denunciation and deterrence, as mandated by s.718.01. [ 72 ] Count 1 on the information is the sexual interference consisting of the accused touching the complainant with his hand. They had

been doing drugs in his bedroom and she was feeling dizzy and disassociated. It was at this time that the accused put his finger in her vagina. She had never been touched this way before. That the complainant was “nervous but okay with it”, as she put it, is no excuse: Friesen , para. 149 . The accused was old enough to be her father and had a daughter not much younger than E.B. He was the adult, not her. It was his responsibility to act like one. [ 73 ] I am satisfied that a fit and appropriate sentence for this conduct, bearing in mind that there is a further count for which I am to sentence Mr.

Poulsen for another act of sexual interference, is 2 years’ imprisonment in the penitentiary. [ 74 ] The second count of sexual interference I consider to involve considerably greater moral blameworthiness on the part of the offender. The circumstances of this offence are also more grave and egregious. By this time E.B. had been laying mostly naked in his bed in a completely helpless state. More than an hour had passed. Other people came into the room to see her in this condition. It was then that Mr.

Poulsen returned to the room and gave her more ketamine. [ 75 ] The acts that comprise this count involve far more invasive and degrading sexual conduct. The accused immediately attempted sexual intercourse with her. She was fragile emotionally. Physically she could hardly move. It was readily apparent to him that the victim was barely participating. The accused was well aware of what the effects of these powerful drugs were on her. After twenty minutes of such activity, he proceeded to put his penis in her mouth. By this point it was clear that E.B. was not a willing or active participant.

As she explained, she did not know how to engage in oral sex. [ 76 ] It was then that the accused took out his phone and began recording the complainant in this vulnerable position. She told him to stop. He did not. She felt scared and uncomfortable and violated. [ 77 ] She continues to feel this way today. [ 78 ] The circumstances of this count would ordinarily attract a penitentiary sentence of three years’ imprisonment in my respectful view. They comprise multiple acts of gross sexual interference involving the accused’s penis and the complainant’s sexual autonomy.

That he would seek to exploit her further by recording her while having fellatio is despicable. This was the final act of degradation and humiliation. Of all the things that happened this day to E.B. it is this final act of being photographed and recorded that constitutes the grossest violation of all and continues to haunt her.

She told the accused this on 30 January 2014 when they spoke by text, and she told the court this in her victim impact statement on 10 September 2019. [ 79 ] While I would be inclined to impose a three year sentence on this count alone, I must be mindful that the totality principle applies. This is set out in s.718.2(b)(

c) where it is stated that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. The Supreme Court of Canada echoed this principle in Friesen where it commented that where consecutive sentences are imposed, the total sentence should not exceed the offender’s overall culpability: para. 157. The acts that comprise count 3, while distinguishable from count 1, did occur on the same day and in the same location, within hours of each other. [ 80 ] For this reason. I have declined to impose a consecutive sentence of three years’ imprisonment on count 3.

But for the sentence of two years’ imprisonment on count 1, a sentence of three years’ imprisonment would be a just and fit sentence. [ 81 ] Additionally, I am mindful that courts have recognized that the COVID-19 pandemic, and its impact on those who serve sentences while subject to it, may properly be considered to be a collateral consequence to be considered: see R v Morgan , 2020 ONCA 279 at para. 9 .

That said, the fundamental principle of proportionality must prevail. [ 82 ] Taking into account, then, these considerations, I am of the respectful opinion that an adjustment should be made in the sentence I impose for count 3. In respect of this count, I sentence Mr. Poulsen to 2 and one-half years in the penitentiary, consecutive to count 1. [ 83 ] The total sentence imposed is therefore 4 and one-half years (54 months). Conclusion [ 84 ] For the reasons I have given, I have determined that Mr. Poulsen must be sentenced to imprisonment for 2 years on count 1, and 2 years and one-half on count 3, consecutive.

The total sentence is 4 and one-half years (54 months) imprisonment. [ 85 ] There will also be a lifetime order under the Sex Offender Information Registration Act pursuant to s.490.022(3)(

d) and a DNA order as sexual interference is a primary designated offence: s.487.04(a)(i.1).