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| John L. Hill |
M.F. was charged with sexual assault and sexual interference and sentenced to 24 months’ probation on the sexual interference charge. The finding of guilt for sexual assault was stayed pursuant to Kienapple v. R., [1975] 1 S.C.R. 729. The sentence required him to perform 120 hours of community service. The trial judge had found that even though the girl had consumed alcohol and smoked cannabis, she had all her faculties and could have said no if she had not wanted to engage in sexual activity.
The judge had no difficulty finding M.F.’s guilt. Confirmation that sexual intercourse occurred was evident
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The Crown had asked for a 90-day custodial sentence in an adult facility followed by two years’ probation. M.F. was 24 when the sentence was imposed. The Crown also disagreed with the judge’s finding that M.F. had not committed a “violent offence.” The Crown appealed to the Ontario Court of Appeal.
A presentence report contained both positive and negative factors for the trial judge’s consideration. M.F. came to Canada from a country in South America where there was conflict with a guerrilla rebel group and his family was constantly on the move. He grew up in a city in northwestern Ontario. His father was physically abusive to his mother and their 10 children. The family struggled with culture shock and the cold weather.
Eventually M.F.’s mother left her husband and moved to a women’s shelter with M.F. and four of the youngest children. The father left Canada in 2009 and returned to South America. M.F. described his mother as being great and supportive of him. She began a relationship with another man, and together they had two children. Although M.F. frequently missed classes, he did graduate from high school in 2018. At age 18, he moved in with his sister. He sometimes consumed alcohol to excess and engaged in daily use of marijuana but stopped using these substances when he was 18.
M.F. was also involved in sports and physical activities. He trained in a dedicated sport for four years at a gym and hoped to participate in competitive sports events. In 2020, he joined a construction trade union. At the time of sentencing, he was working toward securing his journeyman Red Seal endorsement and was also doing residential construction work. He bought a house in April 2024. He had had no previous involvement with the youth criminal justice system. This was his first youth finding of guilt.
On the negative side, M.F. had a Feb.13, 2023, finding of guilt for sexual assault for which he received a conditional discharge. He had completed three psychological educational sessions in the spring of 2023 but did not show a desire to change and there was no buy-in by him.
Justice Sarah E. Pepall, writing on behalf of a three-judge panel, did not minimize the seriousness of the offence (R. v. M.F., 2025 ONCA 596). As explained in R. v. Friesen, 2020 SCC 9, a child’s participation in sexual conduct is not a mitigating factor and cannot be used as consent. Moreover, in R. v. Bertrand Marchand, 2023 SCC 26, psychological harm may be worsened if the victim believes they participated in their own abuse. It could lead to self-blame and internalization of shame.
The trial judge placed unwarranted emphasis on the victim’s participation. In doing so, the judge fell into error. Nonetheless, the Appeal Court found the sentence was fit. The Appeal Court examined the Youth Criminal Justice Act, ss. 38(1) and (2) and determined that a custodial term should be imposed only when there are no reasonable alternatives. In looking at M.F. as an individual, the court recognized M.F. had a challenging childhood. He has complied with over half of his term of probation. He has done so while he has been working. He has purchased and maintains a home and appears to have altered his lifestyle. This was his first finding of guilt. Therefore, he must be treated as a first offender, despite his additional 2023 finding of guilt as an adult.
The Crown’s appeal was dismissed.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books) was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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