R. v. P.G., 2020 ONCJ 596

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara​graph (

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 complainant of the right to make an application for the order; and (

b) on application made by the complainant, 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. ONTARIO COURT OF JUSTICE CITATION: R. v. P.G. , 2020 ONCJ 596 DATE: December 17, 2020 BETWEEN: HER MAJESTY THE QUEEN — AND — P.G.

Before Justice P.K. Burstein Heard on February 10 and 19, July 24 and October 22, 2020 Reasons for Judgment released on December 17, 2020 N. Young............................................................................................... counsel for the Crown M. Stellato...................................................................................... counsel for the Defendant BURSTEIN J.: Overview [1] When is a joint recommendation as to the appropriate sentence a “joint submission” that demands the high level of judicialdeference prescribed by the Supreme Court of Canada’s decision in R. v.

Anthony-Cook, 2016 SCC 43 , [2016] S.C.J. No. 43? In view of the Supreme Court of Canada’s recent decision in R. v. Friesen, 2020 SCC 9 , [2019] S.C.J. No. 100, emphasizingthe need to promote more deterrence and denunciation when sentencing child sex offenders, what role should a delay in the offender’sparole eligibility period (pursuant to s. 743.6 of the Code) play in that sentencing deter​mination? [2] In this case, the Defendant pleaded not guilty to a charge of sexually touching his young stepdaughter over a three-year period,contrary to s. 151 of the Criminal Code.

He admitted the facts upon which the Crown relied to prove its case, but sought a psychiatricassessment in support of a potential mental health defence. When that assessment report arrived showing that the Defendant wasmalingering, that defence was abandoned and the Defendant admitted that the agreed upon facts proved the charge beyond a reasonabledoubt.

Accordingly, at the invitation of the defence, I found the Defendant guilty of the s. 151 offence. [3] At the sentencing hearing a few months later, the Crown and defence jointly recommended a sentence of 5 years imprisonment,along with the requisite ancillary sentencing orders. Despite judicial pre-trial discussions dating back to December of 2019, I queriedwhether that joint recommendation was still appropriate in light of the Supreme Court’s 2020 decision in Friesen.

I also asked whether,in view of the Defendant’s “not guilty” plea, the parties’ joint recommendation as to sentence was to be afforded the same high level ofdeference as a “joint submission” following a guilty plea. Finally, I asked the parties to address the issue of whether or not this was acase where it would be appropriate for me to make an order pursuant to s. 743.6 of the Code delaying parole eligibility until theDefendant had served one-half of his penitentiary sentence. The parties acknowledged that their joint recommendation had not involvedany discussion about a s. 743.6 order.

The Crown ultimately took no position on that issue. The defence, however, submitted that suchan order would be unfair as it would effectively undermine the intent of the parties’ joint recommendation on sentence. Procedural history of this case [4] I first became involved in the Defendant’s case in mid-2019 as the pre-trial judge when the Defendant appeared self-represented. The Defendant eventually was able to retain counsel.

There were further judicial pre-trials conducted in December, 2019and February, 2020, where the prospect of a potential plea bargain was discussed. [5] On February 10, 2020, the Defendant appeared before me and entered a plea of “not guilty” to the single count of sexualinterference, contrary to s. 151 of the Code. The count particularized the allegation as having spanned a period of three years. The othercharges against the Defendant were eventually withdrawn. [6] At the hearing on February 10, 2019, I was presented with an agreed statement of facts.

The agreed facts represented theCrown’s case against the Defendant. Given that the defence had provided notice of its intention to seek a mental health assessmentpursuant to s. 671.11 of the Code, I was invited to only make a finding, pursuant to s. 672.34 of the Code, that the Defendant hadcommitted the criminal act.

Following that finding, at the defence request, I remanded the Defendant to the custody of Ontario ShoresCentre for Mental Health Services to allow for an assessment of whether the Defendant suffered from a mental disorder which renderedhim either unfit to stand trial or not criminally responsible (“NCR”). [7] That mental health assessment was completed by April 20, 2020. However, as a result of the COVID-19 pandemic, we were notable to arrange a continuation of the case until July 24, 2020.

At the request of the defence, the assessment report, dated April 20, 2020,was entered as an exhibit (albeit for limited purposes). The Defendant appeared before me that day and admitted that the agreedstatement of facts had proven the charge against him beyond a reasonable doubt. Consequently, I found the Defendant guilty of thecharge. A presentence report was ordered, and sentencing was adjourned. [8] On October 22, 2020, the Defendant appeared for sentencing. The complainant’s mother, V.C., presented a victim impactstatement on behalf of her daughter and herself.

A copy of the victim impact statement was entered as Exhibit 2 on sentencing. Thepresentence report was Exhibit 1. At the conclusion of the hearing that day, I reserved judgment. As he had come to court that dayexpecting to go straight to prison, the Defendant elected to surrender himself into custody pending the release of my judgment. Facts of the offence

[ 9 ] The victim, A.M., was 10 years old when the Defendant began dating her mother, V.C., in May of 2016. The Defendant, who was 28 years old at the time, moved in with A. and her mother in August of 2016. [ 10 ] At the time, V.C. was a nurse who was working evening and night shifts. Consequently, the Defendant helped look after A. when V.C. was at work. A. came to think of him as a father figure. She referred to him as her stepdad. [ 11 ] Shortly after having moved in, the Defendant started pulling A. towards him and would then remove her shirt.

Initially, A. tried to break away from him and would go and put on a new shirt. When he removed her shirt, the Defendant would grab and touch her breasts. These incidents would take place in the living room while V.C. was either sleeping in her room or was away at work. [ 12 ] The sexual touching progressed to the Defendant removing A.’s pants and putting his fingers up her vagina.

A. said that this occurred approximately three to four times a week in various locations in the apartment, again, either while her mom was sleeping or at work. [ 13 ] By the summer of 2017, the sexual interference had escalated to the Defendant exposing his penis and having A. masturbate him. This occurred in V.C.’s bedroom several times a week. [ 14 ] The accused purchased several “anal plugs” to use on A. One had a long “cat's tail” extending from it. The Defendant would refer to A. as his "little cat". He would have her lie naked on her stomach and would then insert one of the plugs into her anus.

He would tell her to not take it out and that she would get used to it. According to A.,, this activity occurred on three occasions. She said the first two occasion involved the use of an anal plug with an orange-yellow gem. The cat-tail plug was used on the third occasion. [ 15 ] On that third occasion the Defendant had A. get on all fours while she was naked. He then attempted to insert his penis into her anus. He kept telling her "it’s just a butt". She pulled away and kept saying “no". He continued to try but then stopped. [ 16 ] In November of 2018, the Defendant was in a car accident.

As a result of the injuries he suffered in the car accident, the Defendant claimed that he was going to need A. to provide him with more pleasure and that masturbating him would not be enough. He suggested that she give him "blowjobs". He showed her how to perform fellatio and would move her head up and down with his hands. The Defendant would say things like "deeper" as was performing fellatio. The Defendant would usually insert his fingers into A.’s vagina while she was performing fellatio.

A. told the Defendant him that she did not like giving him "blowjobs." As a reward for performing fellatio, the Defendant would allow A. to watch one episode of Japanese anime, something which she was not otherwise to do. The Defendant would initiate the oral sex several times a week. [ 17 ] In and around December 2018, V.C. discovered evidence suggesting that A. was masturbating. V.C. purchased a vibrator for her daughter. Unbeknownst to V.C., the Defendant began having A. masturbate herself with the vibrator while he would touch her breasts. [ 18 ] The Defendant also began showering with A.

He would wash her body while they showered together. In doing so, he would put his fingers up her vagina and would place his mouth on her breasts. He tried to insert his penis into her vagina during some of the showers but never actually did so. [ 19 ] The Defendant was arrested on June 13, 2019. He provided a voluntary statement to the police upon arrest. He described A. as “a cute kid, full of energy and a handful”. From his perspective, they had a father-daughter relationship.

When asked about him having showered with A., the Defendant admitted to doing so “three or four times” because he needed help after the car accident. He also admitted that she had seen his penis and was asking him questions about it. The Defendant admitted that his penis had touched A.’s buttocks. The Defendant claimed that, in response to A. having asked, he had showed her how he would clean his penis. She then did it for him. He also said that she had asked him how to masturbate. Finally, the Defendant admitted to having used the vibrator and “anal plugs” on A.

Evidence at the sentencing hearing [ 20 ] The evidence at the sentencing hearing consisted of a presentence report about the Defendant and a victim impact statement about A. and her mother. In the spirit or recognizing the primacy which concerns about victims must be given in cases like this, I will first outline the victim impact evidence before summarizing the information provided about the Defendant in the presentence report (“PSR”). [ 21 ] Any sexual offence involving a child is abhorrent; however, the Defendant’s repeated sexual abuse of A. over a period of three years was especially so.

It wreaked immeasurable harm upon both A. and her mother. The fact that the Defendant’s actions may not have been physically invasive most of the time is, as Friesen has made clear, entirely irrelevant to an assessment of the seriousness of his offence. The victim impact statement demonstrated that the regular and frequent sexual abuse of A. over the 3 year period caused significant emotional and psychological harm to A. and her mother. As V.C.’s victim impact statement eloquently described, the Defendant’s abuse has almost destroyed A.’s ability to function as a student, as a friend and as a daughter.

She now finds it very hard to trust any adult, even her own mother. As a result of the Defendant’s sexual abuse, A. has suffered mental breakdowns and has attempted suicide. In turn, A.’s mental breakdowns have caused V.C. to miss a lot of work. More significantly, V.C.’s inability to overcome her daughter’s mistrust of adults has only added to the stress and guilt which V.C. has suffered as a result of the Defendant’s abuse of her daughter. [ 22 ] At the time of the PSR, the Defendant was 29 years old. He had been working part-time between 2015 and 2018 but had been unemployed since.

He was now living with his mother in Ajax. His mother was financially supporting him. The Defendant is single and has no dependants. [ 23 ] The Defendant had a relatively normal upbringing. Together with his younger brother, he was raised by his mother. His father had left the home when the Defendant was 6 years old. The Defendant completed grade 12 but has never enrolled in post-secondary

education. [ 24 ] There was nothing in the PSR to suggest that the Defendant had sought any treatment since his arrest in June of 2019 to address his sexual misconduct. According to the author of the PSR, “[h]e reported not remembering or recalling having sexual thoughts that disturb him or that were unusual”. [ 25 ] Since his arrest in June of 2019, the Defendant has largely been out of custody. He has, however, spent some time in presentence custody and now seeks mitigative credit for those periods of custody. First, the Defendant seeks credit for the 2 days he spent in custody prior to being released on bail.

Second, he seeks credit for the 62 days he spent at Ontario Shores for the forensic mental health assessment he had sought. Finally, the Defendant seeks credit for the 57 actual days and the 6 “lockdown” days he has spent in custody pending my decision on sentence. Analysis and findings

(1) Joint recommendations vs. joint submissions [ 26 ] The parties both contend that the circumstances of this case did amount to a “joint submission” on sentence as contemplated by the Supreme Court of Canada’s decision in R. v. Anthony-Cook . Accordingly, say the parties, I must accept the joint proposal for a 5- year term of imprisonment unless I am satisfied that such a sentence would be contrary to the public interest or would bring the administration of justice into disrepute.

If this case is properly characterized as a “joint submission” then I am satisfied that there is not just cause to disregard that joint sentencing recommendation. Despite my initial concerns about the fitness of that sentence in light of the Supreme Court’s recent decision in R. v. Friesen , I am prepared to accept the Crown’s submission that 5 years of imprisonment would, even for the very aggravating circumstances of this case, still fall within the appropriate range.

While other provincial appellate courts may have set an unreasonably low range prior to the Supreme Court’s criticisms in Friesen , that was not the case in Ontario. For over a decade, the Ontario Court of Appeal had recognized that “where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary”: see R. v. D.M. , 2012 ONCA 520 at para. 44 .

Arguably that range is consistent with what the Supreme Court of Canada has more recently suggested in Friesen (at para. 114 ). [ 27 ] On the other hand, I am not persuaded that this case can properly be characterized as a “joint submission” that triggers the deferential requirements of Anthony-Cook . In Anthony-Cook (at paras. 35 to 41 ), the Supreme Court explained why deference must be afforded to the sentencing position advanced by way of a “joint submission”. The Court’s explanation hinges on the fact that a true joint submission is premised on the accused agreeing to enter a guilty plea .

An accused is entitled to have the resulting agreement about sentence respected because they have agreed to plead guilty and give up their right to seek a verdict other than “guilty”. More recently, the Ontario Court of Appeal in R. v. M.C. , [2020] O.J. No. 3428 (C.A.) , refused to characterize a partial agreement on the appropriate resolution of a case as partially a “joint submission” meriting the level of deference described in Anthony-Cook .

The absence of agreement on the core procedural aspects of a case, such as whether the accused should be convicted or not, precludes any other collateral agreements from being characterized as a “joint submission”. [ 28 ] In this case, there never was a “guilty” plea. The Defendant did not forfeit his right to contest the Crown’s efforts to convict him of the offence until after he recognized that there would be no evidentiary merit to his phoney defence.

While it is true that the Defendant agreed to admit the Crown’s case without the need to hear from any witnesses, the Defendant was still attempting to avoid being found criminally responsible for the offence by feigning a mental illness and securing expert opinion evidence for an NCR verdict. As Dr. Harrigan described in her April 20, 2020 assessment report (at page 45): Mr. P.G. never reported the existence of “PJ” to his mother, to Ms. C. to his friend in text messages just days after the Index Offences, or during his police interview.

He only began to speak about “PJ” after having been admitted to CAMH [in December of 2019]. Notes from psychiatrists during that time indicate that Mr. P.G. had spoken with his lawyer about utilizing the NCR defence. He explicitly stated that his strong preference would be to remain in hospital, as opposed to going to jail, which he recognized could be a likely outcome. During his admission to CAMH, numerous psychiatrists reported that his description of “PJ” was highly atypical and inconsistent with symptoms reported by those suffering from a psychotic disorder.

Many of them strongly suspected that he was malingering psychotic symptoms for the purpose of secondary gain. There was no evidence from objective observations of Mr. P.G. that he was experiencing hallucinations. His thinking remained logical and goal oriented, and his concentration was intact during extended assessments. This clinical presentation remained consistent during his admission to Ontario Shores. Recent psychological testing has also strongly indicated that Mr.

P.G. has been malingering psychotic symptoms in order to avoid incarceration, an outcome which he has stated he is fearful of. [1] Although the Defendant ultimately conceded that the Crown’s case could prove his guilt, he did so only when the forensic mental health experts had exposed his attempt at concocting a fraudulent defence [2] . The Defendant has never sought to change his plea to “guilty” and thereby provide some finality to the issue of criminal responsibility.

Indeed, absent such a plea, it would still be open to the Defendant to appeal against his conviction. [ 29 ] In all the circumstances, I find that there was no quid pro quo which gave rise to a “joint submission” in this case. There is no suggestion that the Defendant gave up any procedural rights in order to persuade the Crown to recommend a sentence of 5 years of imprisonment.

While the Crown’s sentencing position may have been influenced, in part, by the Defendant’s willingness to relieve the witnesses from having to testify at trial, the procedural history of this case makes it difficult to believe that this sentencing position was the product of a “plea bargain”. Rather, history of this case shows that the Defendant simply came to adopt the Crown’s proposed submission that 5 years imprisonment was an appropriate sentence given this offence and this offender. Agreement on the appropriateness of a submission on sentence is not the same as a “joint submission”.

The joint recommendation on sentence in this case was not entitled to the level of judicial deference required by Anthony-Cook for “joint submissions”.

[ 30 ] In view of the recent decision of the Supreme Court of Canada’s in R. v. Friesen , supra , setting out the proper approach for determining an appropriate sentence in cases involving the sexual abuse of a child, I would have been inclined to impose a term of imprisonment in the range of 6 to 7 years. While expressly refraining from setting out a range of appropriate sentences for child sexual abuse cases, the Court did say (at para. 114): 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…. [ 31 ] In deciding that the circumstances of this offence and this offender merit a sentence of 6 to 7 years of imprisonment using the approach set out in Friesen (see, especially, paras. 121 to 138 ), I emphasize the following aggravating features of this case:

(1) The evidence before me convincingly shows that there is still a very significant risk that the Defendant will re-offend. As noted in the PSR (at p. 10): “Given the nature of his charges, [Dr. Harrigan] recommends that [the Defendant] be referred for an assessment at the Sexual Behaviours Clinic at CAMH, for the purpose of determining whether he has a diagnosis of paraphilic disorder, or a deviant sexual preference.” The Defendant’s attitudes towards his sexual abuse of A., as reflected in his statement to the police, demonstrates that he fails to perceive his sexual abuse as inherently wrong.

There was no evidence at the sentencing hearing to suggest that that the Defendant had done anything in the year since being arrested to mitigate his risk of reoffending or even that he has developed any insight into his obviously distorted views of appropriate sexual behaviour. The sentence imposed on the Defendant must be punitive enough to overcome his own cognitive distortions and drive home the message that he must never again sexually abuse a child.

(2) As noted in the PSR, the Defendant’s offences “were highly organized, methodical, and suggestive of a well thought out grooming process….” Those features of the offence demonstrate that the Defendant was keenly aware that what he was doing to A. was wrong. The planned and deliberate nature of the sexual abuse significantly increases the Defendant’s moral blameworthiness and the corresponding need for a more punitive sentence.

(3) The Defendant’s moral blameworthiness is also greatly increased by the fact that he knowingly took advantage of a position of trust he enjoyed due to his relationship with A.’s mother. A. perceived the Defendant as a father figure in her life and so was unwilling to believe that there was anything wrong in his abuse of her. Furthermore, the record before me shows that the Defendant’s breach of trust increased the psychological and emotions harm suffered by A. as a result of the sexual abuse. Feeling betrayed by her “stepfather”, A. now struggles to trust any adult in her life, including her mother and father.

In Friesen (at para. 3 ), the Court recognized that “[t]he ripple effects of sexual violence against children can make the child's parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence.”

(4) The Defendant sexually abused A. frequently and regularly over a three year period. As the Supreme Court observed in Friesen (at para. 133 ), this “should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender’s increased degree of responsibility”.

(5) When the Defendant started sexually abusing her, A. was only 10 years old. She had just completed Grade 4. It continued through to when she was 12 years old. Ages 10 to 12 are the formative years of a child’s development to adulthood.

As the Supreme Court noted in Friesen (at para. 58 ): “ Sexual violence can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity sexual awareness and, thus, ages when a child is most vulnerable to sexual offences which impact their autonomy and bodily integrity.” The victim impact evidence in this case shows that the Defendant’s sexual abuse caused A. to develop low self-esteem and a negative self-image as she has moved into her early teens.

As a result, she has started to engage in self-harm and has isolated herself from her peers. Put simply, A.’s ages during the years of sexual abuse is yet another aggravating factor on sentence. [ 32 ] Taken together, the many aggravating features in this case weigh heavily in favour of a sentence in the upper penitentiary range, even for this first offender. The only mitigating factor in the Defendant’s favour is the fact that his approach to advancing his mental health defence would have relieved A. from having to testify.

Sparing her from the emotional turmoil of testifying is a significant factor weighing in his favour. I am, however, unable to conclude that the Defendant agreed to relieve A. from testifying because he has accepted responsibility for the harm he caused by sexually abusing her. The Defendant has never admitted that he is guilty of that sexual abuse. Despite some hearsay remarks relayed by the Defendant’s mother to the author of the PSR, when considered as a whole, the record before me shows that the Defendant has never demonstrated any real remorse for what he did to A. and her mother.

The Defendant is sorry only that he got caught, not for what he has done. [ 33 ] In the end, however, the unique procedural history of this case has led me to nevertheless accept the parties’ joint recommendation for a 5-year penitentiary sentence. While there was no formal guilty plea, the fact remains that the Defendant made important decisions on how to proceed with his case before the Supreme Court of Canada had released its decision in Friesen .

Although Friesen may eventually motivate a slight upward departure from Ontario’s existing range of sentences for child sexual abuse cases, as I have explained above, the sentence proposed by the parties in this case is supported by past precedent from the Ontario Court of Appeal. It was only after the Defendant had already sought his forensic assessment and had already agreed to admit the Crown’s case, that the decision in Friesen was released.

Given that the Ontario Court of Appeal has not (yet) said that the existing range of sentences in child sexual abuse cases “ no longer responds to society's current understanding and awareness of the gravity of [those offences]” ( see R. v. Friesen , supra at para. 35 ), I am prepared to accept that the proposed 5-year term of imprisonment is still within the legally appropriate range, albeit just barely. Fairness dictates that the Defendant should not be prejudiced by a significant change in the sentencing jurisprudence after he had already decided how to plead and how to conduct his defence. While s. 11(

i) of the Charter does not strictly apply in these circumstances, the principle underlying that right certainly does. It would be unfair for me to now rely upon Friesen as a justification for departing from the Ontario Court of Appeal’s past precedents setting out the range of sentences for child sexual abuse offences. Doing so would risk undermining one of the fundamental purposes of sentencing; namely, promoting the idea that we are a “just” society which only imposes “just” sanctions.

(2) Delayed parole eligibility [34] In view of my finding that this case did not involve a “joint submission”, I need not wrestle with the question as to whether thecollective failure to consider a potential sentencing measure must be taken to mean that the Crown and defence jointly intended it to beomitted from the proposed sentence. That issue often arises in the Ontario Court of Justice with respect to ancillary sentencing measures,such as DNA databank orders or forfeiture orders, which were not discussed by the parties prior to a “joint submission” being presentedin court.

However, because I have found that there was no “joint submission” in this case, the parties’ failure to have turned their mindsto the appropriateness of imposing a delayed parole eligibility order is inconsequential to my determination of that issue. In any event,contrary to the Defendant’s submission, an order delaying parole eligibility in this case would not unfairly subvert the parties’ agreementon the appropriate sentence because that issue was never contemplated when the parties reached that agreement. [35]

Section 743.6 of the Code empowers a sentencing court to order that an offender must serve at least one-half of a penitentiarysentence before becoming eligible for release on full parole. Absent an order made pursuant to s. 743.6, the Corrections and ConditionalRelease Act would normally permit release on full parole at one-third of a penitentiary sentence.

Section 743.6 restricts the availabilityof a delayed parole eligibility declaration to certain prescribed offences. The offence for which the Defendant has been convicted, sexualinterference contrary to s. 151 of the Code, is one of the listed offences. [36] In R. v. Zinck, 2003 SCC 6 , [2003] S.C.J. No. 5, the Supreme Court of Canada outlined the limited circumstances inwhich an order for delayed parole ought to be made. The Court made clear that such orders should not be commonplace, nor should theyautomatically attach to every penitentiary sentence imposed for one of the prescribed offences.

While the burden of demonstrating theappropriateness of delaying parole eligibility lies with the Crown, a sentencing judge may raise the issue so long the offender is given anopportunity to fairly respond before the determination is made. No special or separate hearing is required to determine the issue.

As s.743.6 specifically says, an order of delayed parole eligibility may only be made if a court is satisfied, “having regard to thecircumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’sdenunciation of the offence or the objective of specific or general deterrence so requires”. [37] The Supreme Court’s judgment in Friesen strongly suggests that orders delaying parole eligibility must now be considered animportant tool when trying to craft an appropriate sentence in cases of serious child sexual abuse.

As Zinck made clear, such orders willnot be necessary or appropriate in all cases involving child sexual abuse.

However, where the offence involves many of the aggravatingfeatures identified in Friesen such that a lengthy penitentiary sentence is appropriate, a sentencing court must also consider whetherthose same aggravating features make it necessary to delay the offender’s parole eligibility in order to satisfy the overarching need fordeterrence and denunciation. [38] For the reasons set out above at Paragraph 31 of this Judgment, I find that the circumstances of this case and of this offender cryout for specific and general deterrence.

In addition to those reasons, however, I also rely on the fact that the Defendant attempted toevade criminal responsibility by feigning a mental illness. While the manner by which an accused conducts his or her defence will rarelyjustify increasing the quantum of sentence, this case presents an example of when it may be appropriate to delay parole eligibility. Byhis conduct, the Defendant has demonstrated a willingness to go to great lengths to mislead or subvert the legal process.

While theparole authorities may well take such misconduct into account when deciding whether to grant an offender parole, it is equally, if notmore, appropriate for the court that was involved in the accused’s attempted subversion to take steps to mitigate the risk of similarmisconduct succeeding in the future.

That is especially true when such subversion could result in the inappropriate release of a childsexual offender into the community. [39] In addition to the compelling need for specific and general deterrence, the aggravating features of this case also weigh heavily infavour of a sentence that promotes denunciation. Knowing that a serious child sex offender will be forced to spend more of their prisonsentence in actual custody, as compared to other types of offenders, helps reinforce the court’s condemnation of child sexual abuse.

Atthe same time, child victims of serious sexual abuse will be comforted by knowing that their abuser will not somehow gain early releaseand that their abuser is truly spending a significant period in prison for the irreparable harm caused. [40] During the presentation of her victim impact statement, V.C. asked me to impose “the maximum sentence that can be given”. She made the point that victims like her daughter can only begin to heal if they know that they are safe and that “there is some justice inthe world”.

While I recognize that judges must be cautious in relying upon victims’ views about the quantum of sentence, our system ofsentencing has long invited community input on the issue of whether to delay parole eligibility for certain violent offences: see, forexample, s. 745.2 and jury recommendations on parole following convictions for second degree murder. In this case, the interests ofboth society and the victim create a compelling need to denounce the Defendant’s misconduct. An order, pursuant to s. 743.6, delayingthe Defendant’s parole eligibility period will help achieve that sentencing goal.

(3) Credit for pre-sentence custody [41] There is no issue that the Defendant ought to be awarded mitigative credit for the 57 days he has spent in pre-sentence custodysince October 22, 2020 or for the 2 days he spent in custody immediately following his arrest. According to R. v. Summers, 2014 SCC26 , [2014] S.C.J. No. 26, the Defendant should be given credit on a 1.5:1 basis for those 2 months of pre-sentence custody.

Inaddition, having regard to the more significant impact on his liberty and security of the person interests occasioned by pre-sentencecustody during the COVID-19 pandemic, it is appropriate to grant the Defendant some further mitigative credit for the time he hasrecently been forced to spend at the Central East Correctional Centre. I find that it is appropriate for me to reduce his sentence by a totalof 4 months. [42] I would not, however, afford the Defendant any mitigative credit for the time that he spent in the custody of Ontario Shores fromFebruary 19 to April 20, 2020.

While it is sometimes appropriate to award mitigative credit for time spent in a treatment facility or amental health facility prior to sentence, doing so in this case would bring the administration of justice into disrepute. The Defendant was

only in custody at Ontario Shores because he had sought a forensic psychiatric assessment to support his efforts to fool the justice system into believing that he should be excused for his serious criminal misconduct because it was attributable to a feigned mental illness. It was the Defendant who asked the court to vacate his judicial interim release so that the assessment could be conducted.

The public would be appalled at the thought that the Defendant would now benefit from his failed attempt to fool the system by receiving a reduction in the sentence he was desperately trying to avoid when he was feigning a mental illness. If ever there was a case where an accused should not be given credit for presentence custody in a mental health facility, this was it. Conclusion [ 43 ] For the reasons set out above, the appropriate sentence in this case is 5 years of imprisonment less 4 months of credit for the time he has spent in presentence custody.

Accordingly, the Defendant is sentenced to 4 years and 8 months of imprisonment. [ 44 ] Pursuant to s. 743.6, I have determined that “the expression of society’s denunciation of the offence” and “the objective of specific … deterrence” very much requires an order of delayed parole eligibility. Accordingly, I order that the Defendant will not be eligible for full parole pursuant to the Corrections and Conditional Release Act until he has served at least one half of his 4 years and 8 months of imprisonment. [ 45 ] In addition to his term of imprisonment, I will also make the following ancillary orders:

(1) A s. 161 prohibition order for 10 years, including terms that the Defendant: (

a) not attend 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, schoolground, playground or community centre except in the immediate presence of another adult (

b) not be within 100 metres of where A.M. ordinarily resides, goes to school or is known to be. (

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

d) not have contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of another adult; and (

e) not use the Internet or other digital network, unless he is at his place of employment and solely for the purpose of your employment.

(2) An order pursuant to s. 743.21 that he not contact or communicate with either A.M. and V.C., directly or indirectly, by any means, for the duration of his term of imprisonment.

(3) A SOIRA order, pursuant to s. 490.013, for 20 years.

(4) An order, pursuant to s. 487.04, that the Defendant provide samples of his DNA for submission to the national databank.

(5) An order forfeiting the items listed in the proposed forfeiture order, pursuant to s. 490 and s. 164.2. Released: December 17, 2020 Signed: Justice P.K. Burstein