R. v. T.K.B., 2022 NSSC 150

SUPREME COURT OF Nova Scotia Citation: R. v. T.K.B. , 2022 NSSC 150 Date: 20220519 Docket: CRH No. 481789 Registry: Halifax Between: Her Majesty the Queen v. T.K.B. DECISION ON SENTENCE Restriction on Publication: Sections 486.4 and 486.5 of the Criminal Code Judge: The Honourable Justice Scott C. Norton Heard: March 29, 2022, in Halifax, Nova Scotia Decision: May 19, 2022 Counsel: Josie McKinney and Stephanie Morton, for the Crown Drew Rogers, for T.K.B. Order restricting publication — sexual offences 486.4

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 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). NOTE: In reducing to writing the oral decision rendered in this matter, editing has taken place to include omitted citations and quotes from secondary sources and to make changes to format or to grammar for readability. No changes have been made to the substantive reasons for decision.

By the Court (Orally): Introduction [1] By written decision reported at 2021 NSSC 221, I found TKB guilty of the following offences beyond a reasonable doubt: (

a) That he did, between August 31, 2017 and December 14, 2017, for a sexual purpose touch E.A., a person under the age of 16directly with a party of his body, contrary to

section 151 of the Criminal Code. (

b) And further that he did, between November 1, 2008 and April 1, 2013, sexually assault E.A. contrary to

section 271 of theCriminal Code. [2] Applying the Kienapple principle, I grant the Crown’s request for a stay of the sexual assault charge (section 271), as theelements of that offence are comprised in the offence of sexual interference (section 151). [3] The facts found in support of the guilty findings are set out in the reported decision. [4] With regard to sentence, the Crown seeks a sentence of 12 months imprisonment and 3 years probation. TKB seeks aConditional Sentence Order (“CSO”) under

section 742.1 of the Criminal Code. [5]

Section 742.1(

c) of the Criminal Code provides that a CSO is not available as the offence was prosecuted by way ofIndictment and it is an offence for which the maximum term of imprisonment is 14 years or life. TKB asks this Court to find that thesubsection is unconstitutional and that a CSO is legally available. [6] TKB relies on the decision of the Ontario Court of Appeal in R. v. Sharma, 2020 ONCA 478, leave to appeal granted January14, 2021, SCC docket 39346, and R. v. Boyde, 2021 NLSC 28, which followed Sharma. The Supreme Court of Canada heard argumentin Sharma on March 23, 2022, and took its decision under reserve.

As of the date of this decision the Sharma decision remains underreserve. Issues [7] The issues on this sentencing are as follows: 1. Would a CSO be a fit and proper sentence for TKB? 2. Is

section 742.1(

c) of the Criminal Code constitutional? Victim Impact Statements [8] A Victim Impact Statement (“VIS”) was filed by E.A. and her mother. [9] The VIS filed by E.A. reveals that as a 14 year old girl, she was shocked and confused by the actions of her mother’s 55 yearold boyfriend. Each assault seemed to escalate to a higher degree than the one before. His unwanted attacks left her feeling helpless andweak. She no longer felt safe in her family home. This was in part due to her mother accepting TKB’s version of events at the time. E.A. came to understand that TKB could not be trusted.

He left her feeling violated, ashamed, and humiliated. The events had asubstantial impact on the family dynamic and contributed to E.A. not being able to live with the people that she had lived with for 14years, leaving the family structure in ruins. [10] On a positive note, E.A. has availed herself of various support systems. The home she moved into was filled with love for her. She expresses that she has taken great strides to compartmentalize what TKB did to her and how he made her feel. She writes: “Restassured, though, I am on the mend. I am so much stronger than he ever thought I was.

I will succeed in life, despite him.” [11] The VIS filed by her mother reveals that as a result of the events leading to the charges, E.A.’s mother has lost both custodyand contact with her daughter. Despite being a victim of abuse herself, she did not recognize the conduct of TKB as being abusive, northe gravity of the impact of the abuse on E.A. She now recognizes that she failed to protect E.A. The totality of the events has resulted inincreased physical and mental health issues for her. Pre-Sentence Reports [12] A pre-sentence report was filed on September 9, 2021, and an update was provided on March 3, 2022.

TKB is a 59 year oldoffender with minimal previous involvement in the criminal justice system. He admits to mental health and addiction issues that plaguedhim throughout his adult life, although the addiction issues have been apparently resolved for a long time. He has maintainedemployment throughout his adult life and in the past 10 years was substantially involved in the Freemasons. Although he maintains hisinnocence of the offences charged, as is his right, he has expressed a willingness to comply with the Court’s disposition.

His health hascontinued to deteriorate including diagnoses of anxiety, depression, diabetes, arthritic pain in his hands, and glaucoma. Law and Analysis [13] I agree with the Crown that the first issue to be determined is whether a CSO would be a fit and proper sentence for TKB. Ifnot, the constitutional question is moot. A court should not engage in an analysis of the constitutional validity of a statute unless it istruly necessary: Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) (SCC), [1995] 2 S.C.R.97, at paras. 5-11. [14] In R. v.

Lloyd, 2016 SCC 13, McLachlin C.J., for the majority of the Court, wrote at para. 18:

18 To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality.

To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as a condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-making process. [Emphasis added] [ 15 ] This approach was recently endorsed by my colleague, Justice Bodurtha, in R. v.

Kennedy , 2021 NSSC 75 , at para. 73 : [73] Similarly, in the case before me where I have found the appropriate sentence is not a conditional sentence, the constitutional issue is moot. The question then becomes whether I should exercise the Court’s discretion to decide the question regardless. In this respect, I find it relevant that Sharma has been granted leave to appeal before the Supreme Court of Canada: [2020] SCCA No. 311. It is at least possible that there will be a decisive determination of the issue by our highest court.

These considerations strongly favour against deciding a moot constitutional issue in this case. [ 16 ] Accordingly, I begin my analysis by determining if a CSO would be a fit and proper sentence for TKB. [ 17 ] I am instructed on the fundamental purpose and principles of sentencing set out in

section 718 of the Criminal Code and following. The parties agree that denunciation and deterrence are primary considerations. Further, the sentence to be imposed must be proportional to the gravity of the offence and the degree of responsibility of the offender. The principal of parity mandates that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. A sentence must be the least restrictive sanction that meets the fundamental principles and purposes of sentencing. [ 18 ]

Section 718.01 states: Objectives — offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 19 ] The rationale for this principle was articulated by the Newfoundland Court of Appeal in R. v. Branton , 2013 NLCA 61 , at para. 19 : 19 By enacting

section 718.01, Parliament has recognized that offences involving the abuse of children and young persons call for special attention. Abuse which constitutes criminal conduct is wrong no matter what the age of the victim, but criminal abuse of persons under 18 years of age is particularly serious because young persons are less able than mature adults to withstand assaults to their persons because of their physical, mental and emotional immaturity. They are also more likely to be more vulnerable to emotional scarring, as they are still “finding themselves” in these formative years.

For this reason offenders who criminally abuse young people are particularly deserving of society's denunciation. They must be made to realize, or to be reminded, that what they have done is wrong. This denunciation also affords some reparation to young victims, who need reassurance that they are not to be blamed for what has happened to them so that they can move on with their lives.

Offenders and like-minded others who abuse young people must also be deterred from repeating or engaging in the criminal abuse of young persons by the knowledge that sentences involving such conduct are going to be treated seriously by the justice system. [ 20 ] The Nova Scotia Court of Appeal used similarly strong language in describing the role of denunciation in such cases in R. v. E.M.W. , 2011 NSCA 87 , at para. 26 : Crimes involving abuse of children by people who should be protecting them are ones where a clear and unequivocal statement must be made. Children are valued.

If you treat them as objects for sexual gratification, you will suffer serious consequences… The nature of the offence is such that the denunciation of it must be in very strong terms. [ 21 ] In 2020, the Supreme Court of Canada provided direction and guidance with respect to sentencing adults for sexual crimes against children in R. v. Friesen , 2020 SCC 9 . At the outset of the reasons, Chief Justice Wagner and Justice Rowe said: 1 Children are the future of our country and our communities. They are also some of the most vulnerable members of our society.

They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. [ 22 ] In Friesen , the accused was engaging in consensual sexual intercourse with the victim’s mother when he instructed the mother to bring her sleeping 4-year-old daughter into the bedroom.

At the accused’s direction, the victim’s mother held her head down so the accused could force his penis into her mouth. The Court agreed with the sentence imposed by the trial judge of 6 years imprisonment for a charge of a single incident of child abuse. The accused was 29 years old, under the influence of alcohol at the time, and had no prior criminal record. [ 23 ] The Supreme Court of Canada signalled an increase in sentences for sexual offences against children at para. 5: …we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and

cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentencesthat are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed byParliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violenceagainst children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoingharm that it causes to children, families, and society at large. [24] At paras. 42-45, the Supreme Court directed that the focus must be on imposing sentences commensurate with the far-reachingharm caused to victims and communities from the sexual abuse of children: 42 Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offencesagainst children in the Criminal Code.

Our society is committed to protecting children and ensuring their rights and interests arerespected (Baker v. Canada (Minister of Citizenship & Immigration), (SCC), [1999] 2 S.C.R. 817(S.C.C.), at para. 67).As Otis J.A. stated in R. c. L. (J.) (1998), (sub nom. R. v. L. (J.-J.)) (QC CA), 126 C.C.C. (3d) 235(C.A. Que.)[hereinafter L. (J.-J.)], [TRANSLATION] "the protection of children constitute[s] one of the essential and perennial values" of Canadiansociety (p. 250). Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society (R. v.

Mills,2019 SCC 22 (S.C.C.), at para. 23). 43 This case presents an opportunity for this Court to consider the sentencing principles for sexual offences against children.Sentencing is one of the most important and "most delicate stages of the criminal justice process" (Lacasse, at para. 1). It is at this stagethat the judge must weigh the wrongfulness of sexual violence and the harm that it causes and give effect to both in imposing a sentence(C. L. M. Boyle, Sexual Assault (1984), at p. 171).

It is important for this Court to provide guidance so that sentencing judges imposesentences that accurately reflect the nature of sexual offences against children and their impact on the victim (see P. Marshall, "SexualAssault, The Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216, at p. 219). To do otherwise would improperly permit myths thatParliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge at thesentencing stage (R. P. Nadin-Davis, “Making a Silk Purse?

Sentencing: The ‘New’ Sexual Offences” (1983), 32 C.R. (3d) 28, at p. 46).This result could undermine the credibility of the criminal justice system in the eyes of victims, their families, caregivers, andcommunities, and the public at large (see Lacasse, at para. 3). 44 Given the facts of this case, the guidance we provide is focused on sentencing principles for the offence of sexual interference andclosely related offences such as invitation to sexual touching (Criminal Code, s. 152), sexual exploitation (Criminal Code, s. 153(1)),incest (Criminal Code, s. 155), and sexual assault (Criminal Code, s. 271).

However, the principles that we outline also have relevance tosentencing for other sexual offences against children, such as child luring (Criminal Code, s. 172.1).2 Courts should thus draw upon theprinciples that we set out in this case when imposing sentences for such other sexual offences against children.

Courts may also drawupon these principles when imposing sentences for child abduction and human trafficking offences where the victim is a child and thefactual foundation for the conviction involves sexual violence or exploitation. 45 We wish to make clear at the outset of our discussion of these sentencing principles that we recognize that criminal justiceresponses alone cannot solve the problem of sexual violence against children.

Rather, guaranteeing children in Canada a childhood freeof sexual violence requires coordinated action by all levels of government and by civil society across policy domains as diverse ashealthcare, education, and child welfare. Nonetheless, the criminal law in general and sentencing law specifically are importantmechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and tocommunicate the wrongfulness of sexual violence against children.

It is our duty to give Parliament's sentencing initiatives their fulleffect. [25] The Supreme Court then provided specific instruction on how courts should approach sentencing in relation to child sexualabuse: • Courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying theproportionality principle (para. 75). • Courts must impose sentences that are commensurate with the gravity of the sexual offences against children. It is not sufficientfor courts to simply state that sexual offences against children are serious.

Specifically, courts must recognize and give effect to: (1) theinherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm thatchildren suffer as a result of these offences (para. 76). • Violence is always inherent in the act of applying force of a sexual nature to a child (para. 77). • Sexual violence against children has the potential to cause several recognized forms of harm: harm that manifests itself duringchildhood and long-term harm that only becomes evident during adulthood (paras. 79-80).

Courts must consider the reasonablyforeseeable potential harm that flows from sexual violence against children when determining the gravity of the offence (para. 84). • When possible, courts must consider the actual harm that a specific victim has experienced as a result of the offence (para. 85). • Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to beaware that this action can profoundly harm the child.

In assessing the degree of responsibility of the offender, courts must take intoaccount the harm the offender intended or was reckless or willfully blind to (para. 88). The fact that the victim is a child increases theoffender’s degree of responsibility.

The moral blameworthiness of the offender increases when offenders intentionally target childrenwho are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society (para. 90). • Sentences for sexual offences against children should correspond to Parliament’s legislative initiatives and contemporaryunderstanding of the profound harm that sexual violence against children causes. The following guidance is provided to courts (at para.107): o Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

o sexual offences against children should generally be punished more severely than sexual offences against adults; and o sexual interference with a child should not be treated as less serious than sexual assault of a child. • There is no requirement for there to be rare or special circumstances in order to impose a substantial sentence where that substantial sentence is proportionate (para. 112). [ 26 ] The Supreme Court articulated additional significant factors to consider for sexual offences against children: (

a) Likelihood to reoffend : where the sentencing judge finds that the offender presents an increased likelihood of reoffending, the imperative of preventing further harm to children calls for emphasis on the sentencing objective of separating the offenders from society (para. 123). The offenders likelihood to reoffend is relevant to the objective of rehabilitation. In some cases, the only way to achieve both short term and long term protection of children maybe two impose a lengthy sentence (para. 124). (

b) Duration and frequency of sexual violence : can significantly increase the harm to the victim. The immediate harm the victim experiences during the assault is multiplied by the number of assaults. Long term emotional and psychological harm to the victim can also become more pronounced where the sexual violence is repeated and prolonged. This increased harm magnifies the severity of the offence. It also increases the offender’s moral blameworthiness because the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults.

Repeated and prolonged assaults show that the sexually violent conduct is not an isolated act, a factor which increases the offender’s degree of responsibility (para. 131). The duration and frequency of the sexual violence must receive weight in sentencing. A court should not discount a sentence simply because numerous incidents of sexual violence are covered by a single charge instead of multiple charges (para. 132).

Sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentence is that reflect the full cumulative gravity of the crime (para. 133). (

c) Age of the Victim : the power imbalance between children and adults is ever more pronounced for younger children (para. 134). This consideration is relevant to both the gravity of the offence and the degree of responsibility of the offender (para. 135). (

d) Degree of physical interference : the degree of violation of the victim's bodily integrity is a recognized aggravating factor (para. 138). However, the court cautions courts about the dangers of defining a sentencing range based on penetration or the specific type of sexual activity at issue (para. 140). [ 27 ] Friesen was considered by Justice Arnold in R. v. Hughes , 2020 NSSC 376 . In sentencing the offender to 6 years imprisonment in relation to sexual offences against a child, he said at para. 76: [76] The message from Parliament and from the Supreme Court of Canada is crystal clear.

Denunciation and deterrence are of paramount importance in sentencing an adult for a sexual crime on a child, as the court is dealing with in this case. Mid-single digit penitentiary terms 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. Balancing against that direction is the fact that Mr.

Hughes is 71 years old with some health issues. [ 28 ] I now apply these principles to TKB. [ 29 ] TKB argued that the circumstances of this case are distinct from those before the Supreme Court in Friesen and the facts here do not call out for incarceration in an institutional setting. The circumstances of the abuse he says did not involve penetration; did not involve his genitals or the victim’s genitals; and did not involve any threats of violence. The worst facts involved a licking of the victim’s face and neck. TKB asserts that these are not the facts of the usual

section 151 offences that too often come before the court and involved a substantially lower degree of moral blame. The custodial sentence sought by the Crown is only one year. There is no evidence that TKB is a danger to the community. Accordingly, TKB should have the opportunity to serve his custodial sentence in the community. The facts do not require that TKB be separated from society. [ 30 ] TKB referred to R. v. Scott , 2021 NSPC 42 and R. v. C.D.C ., 2021 NSSC 287 . In Scott , the court dealt with a facts where the accused hugged and touch the buttocks of a 14 year old boy.

The Court ordered a three month CSO and three years probation. However, that case is distinguishable. It dealt with a single incident compared to the multiple incidents involving TKB. It was also tried as a

summary conviction offence. [ 31 ] In CDC , the accused was part of the victim’s family. The accused exhibited grooming behaviour and the facts were more aggravated than in the present case. The court ordered 22 months custody. In Obiter , Justice Murray commented that it would be wrong to interpret Friesen as requiring longer sentences for every case of sexual assault involving children. [ 32 ] There are no mitigating factors present. Aggravating factors include: (

a) The age of the victim ( Code

section 718.2(a)(ii.1). The abuse of a victim under the age of 18 years is an aggravating factor. E.A. was between the ages of 14 and 15 years when the events comprising the charge took place. Her age at the time increases the gravity of the offence and TKB’s degree of responsibility ( Friesen at para. 90 and 134-136 ). At para. 136 of Friesen the Court said (citations omitted): 136 At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent.

Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence. In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy. (

b) The repeated nature of the abuse. I found that there were four separate incidents of sexual interference. The repeated nature of the offences increases TKB’s moral blameworthiness, degree of responsibility, the harm caused to E.A., and the severity of the offence

( Friesen paras. 131-133 ). (

c) The nature of the sexual abuse. The sexual abuse perpetrated by TKB involved a range of abuse which escalated throughout their relationship. (

d) The harm done to the victim is a significant aggravating factor discussed at length in Friesen referenced above and is mandated by

section 718.2(a)(iii.1) of the Code. In her victim impact statement, E.A. stated that TKB’s conduct left her feeling violated, ashamed and humiliated. In addition, Friesen pointed out that it may be impossible to determine the nature and extent of the harm caused at the time of sentencing, since the particular forms of harm may materialize at a later date, or into adulthood (para. 83).

As a result, “sentencing judges must always take into account forms of potential harm that have yet to materialize at the time of sentencing that are a reasonable foreseeable consequence of the offence and may in fact materialize later in childhood or adulthood” (para. 84). [ 33 ] In R. v. Gerrard , 2021 BCSC 1219 , the accused was convicted of one count, contrary to

section 151 of the Criminal Code . The accused sexually interfered with an 11 or 12 year old child by touching her breasts over her shirt and moving his hands under her underwear, touching her close to her vagina. [ 34 ] In determining that a CSO was inappropriate, the Court in Gerrard made the following comments at paras. 71, 84 and 89, respectively: [71] Given that Mr. Gerrard is at a very low risk to reoffend, I find that specific deterrence is not required in this case. However, the circumstances of the offence, coupled with the high moral blameworthiness of Mr.

Gerrard, lead me to conclude that a significant term of imprisonment is warranted. [84] Denunciation and general deterrence are the key sentencing principles applicable in this case when determining a just sentence. I accept that given that Mr. Gerrard is at very low risk to reoffend, the safety of the community would not be endangered if he was to serve his sentence in the community. I also accept that a properly-crafted CSO can serve the principle of denunciation, in the appropriate circumstances: R. v. Proulx , 2000 SCC 5 at para. 67 ; R. v. Carrillo , 2015 BCCA 192 at para. 37 .

However, in my view, a CSO in this case would be inconsistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Code . [89] I agree with the Crown counsel’s submission at para. 41 of the Crown’s brief of argument, that: A conditional sentence order in this case would not give clear effect to the fact that society condemns the behaviour Mr. Gerrard stands convicted of. He encroached on our normative social values in a serious way. He violated a child. He destroyed lives. He caused pain, suffering and distress. He stole the ability for J.I. to grow up free from harm.

And with that, he tore our social fabric. Permitting him to serve a sentence for a crime this significant in the community would…fail to give proper effect to the Friesen principles. [ 35 ] I adopt these comments and I find that that a CSO would not be a fit and proper sentence for TKB. TKB was dating E.A.’s mother. He was an adult in the home. He was in a family relationship with E.A., closer to a parent than a stranger. His conduct amounts to a breach of trust in this context. This was not a single incident.

The behaviour was repetitive, predatory, and increasing in severity. [ 36 ] A conditional sentence can be granted only if it respects the purposes and principles of sentencing. As Judge Jamie Campbell, as he then was, said in R. v. E.M.W , 2009 NSPC 65 , at paras. 42-43 : A man who sexually violates his own ten-year-old daughter in these circumstances cannot be allowed to serve his sentence by going to work, going out to the grocery store for a few hours on Saturday, watching television from his favourite chair and enjoying the fellowship of friends and family in his home.

A conditional sentence does not, in these circumstances, provide for punishment that is measured and thoughtful. It would, to put it simply, be the kind of sentence that does not speak of justice and compassion but of weakness and naivete. [ 37 ] In my opinion, in the circumstances of this case and in light of the direction by Friesen , a conditional sentence would not respect the purposes of and principles of sentencing. Accordingly, the determination of whether

section 742.1(

c) is constitutional is moot and I decline to exercise the Court’s discretion to decide the question regardless. [ 38 ] I find that the sentence proposed by the Crown achieves the principles and purposes of sentencing as enunciated by the Supreme Court of Canada in Friesen . [ 39 ] TKB please stand. [ 40 ] On the charge that you did, between August 31, 2017 and December 14, 2017, for a sexual purpose touch E.A., a person under the age of 16 directly with a part of his body, contrary to

section 151 of the Criminal Code , I sentence you to 12 months imprisonment to be followed by 3 years probation including the following conditions pursuant to

section 732.1(2) and 732.1(3) of the Criminal Code : (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court; and (

c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. (

d) Upon expiration of the sentence of imprisonment imposed, report to a probation officer within two working days and thereafter, when required by the probation officer and in the manner directed by the probation officer;

(

e) do not communicate, directly or indirectly, with E.A.; (

f) do not be within 200 meters of the premises known as the home, school, or workplace of E.A.; (

g) do not have in your possession any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive device; (

h) attend for assessment, counseling, or a program directed by your probation officer; (

i) attend for assessment and counseling for mental health, anger management, and violence intervention as directed by your probation officer; and (

j) participate and cooperate with any assessment, counseling, or program directed by your probation officer. [ 41 ] The following ancillary orders are granted: (

a) DNA order pursuant to

section 487. 051 of the Criminal Code (primary designated offence); (

b) SOIRA order for 20 years pursuant to

section 490.013(2)(

b) of the Code , as TKB has been convicted of a designated offence in subsection 490.011(1)(

a) and the maximum term of imprisonment is 14 years; (

c) Firearms prohibition order for 10 years (mandatory pursuant to

section 109 of the Code) ; (

d) An order pursuant to

section 743.21 of the Code prohibiting TCB's communication with E.A. during his custodial sentence; (

e) An order pursuant to

section 161 of the Code with prohibitions in subsections (a), (a.1), (b), (

c) for period of five years. Norton, J.