Her Majesty the Queen v. R.A.

[Indexed as: R. v. A. (R.)]

Ontario Reports Court of Appeal for Ontario Tulloch, Harvison Young and Jamal JJ.A. March 1, 2021

154 O.R. (3d) 552 | 2021 ONCA 126

Case Summary

Criminal law — Sexual offences — Child luring — Sexual assault — Sentence — Thirty-five-year-old accused pleading guilty to sexual assault, making sexually explicit material available to a child, and child [page553] luring — Complainant aged 15 — Sentencing judge imposing global sentence of five and one-half years' imprisonment-- Court finding that sentencing judge considered significant mitigating factors bearing on accused's rehabilitative potential — Court holding that sentencing judge made no error in principle and sentence not demonstrably unfit — Appeal dismissed.

The 15-year-old complainant met the 35-year-old accused online and they began living together. The complainant's biological parents were aware of the living situation. The Children's Aid Society learned of the situation and apprehended the complainant. He was placed in foster care and directed to cease all contact with the accused. However, the accused and the complainant continued to exchange inappropriate electronic messages and the complainant was subsequently moved to a group home. Police discovered that the accused and the complainant had engaged in sexually explicit chats, sexual mutual touching and fellatio, and they had exchanged sexually explicit material. The accused had also anally penetrated the complainant. An undercover police officer posing as a 14-year-old male communicated with the accused, who suggested that they get together and that they keep their communications secret. The accused pleaded guilty to sexual assault, making sexually explicit material available to a child, and two counts of child luring. The sentencing judge noted that the accused had a difficult upbringing in that he was sexually abused by a peer during high school, his parents divorced at a young age, and his mother's new partner was alcohol and drug dependent and abusive. At the time of sentencing the accused was living in a monogamous relationship with an age-appropriate partner. A psychiatrist diagnosed an attraction to pubescent males and recommended treatment for the accused while in custody and in the community. The sentencing judge considered the mitigating factors to be the guilty plea, the accused's remorse, his openness to therapeutic intervention, absence of criminal record, no drug or alcohol issues, his current relationship, and strong work history with support in the community. The aggravating factors were the complainant's age and the perceived young age of the undercover officer, the age gap, the grooming techniques employed by the accused, the complainant's vulnerability, engaging in prohibited communication, and the repeated instances of sexual activity. The Crown requested a global sentence of six years of imprisonment. The defence requested two years, followed by three years of probation. The judge imposed a global sentence of five and one-half years of imprisonment, reduced to five years for pre-sentence custody and restrictive bail conditions. The accused appealed.

Held, the appeal should be dismissed.

The sentencing judge did not err in principle nor was the sentence demonstrably unfit. Contrary to the accused's submissions, the judge considered significant mitigating factors bearing on the accused's rehabilitative potential when reaching the decision as to sentence, and did not appear to hold it against the accused that he had not obtained counselling at the time of sentencing. The accused preyed on a vulnerable young person for an extended period of time. He tried to prey on another young person not knowing that he was an undercover officer. The sentence imposed properly reflected the wrongfulness and the harmfulness of such offences against children, which carry with them longstanding consequences. Although the Supreme Court of Canada hasn't set out a precise range of sentences for such offences, it has recognized that it was "normal" to receive a mid-single digit penitentiary sentence for offences against children. While the accused was remorseful, and hopefully would make efforts to obtain counselling, it could not be said that the sentence imposed was demonstrably unfit. [page554]

Cases and Statutes Referred To

Cases referred to

R. v. A. (R.), 2019 ONCJ 684; R. v. B. (R.), 2014 ONCA 840, 327 O.A.C. 20; R. v. D. (D.), 58 O.R. (3d) 788, [2002] O.J. No. 1061, 157 O.A.C. 323, 163 C.C.C. (3d) 471 (C.A.); R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, 62 C.R. (7th) 1, 391 C.C.C. (3d) 309; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 24 C.R. (7th) 225, 86 M.V.R. (6th) 1, 478 N.R. 319, 333 C.C.C. (3d) 450, 396 D.L.R. (4th) 214; R. v. M. (D.) (2012), 111 O.R. (3d) 721, [2012] O.J. No. 3616, 2012 ONCA 520, 294 O.A.C. 71, 288 C.C.C. (3d) 564; R. v. Saliba, 2019 ONCA 22; R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610, 276 C.C.C. (3d) 86, 284 O.A.C. 151

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, s. 718.01

Appeal Details

APPEAL by accused from sentence imposed by Band J., reported at 2019 ONCJ 684, for sexual offences involving children.

Counsel: Paul Calarco, for appellant. Vallery Bayly, for respondent.

The judgment of the court was delivered by

TULLOCH J.A. : —

A. Introduction

1This is an appeal of the sentence imposed on September 30, 2019. The appeal relates only to the length of the sentence, and not to any ancillary conditions imposed as part of the sentence.

2The appellant pled guilty to sexual assault, making sexually explicit material available to a child, and two counts of child luring. He was sentenced to five and one-half years of imprisonment, reduced to five years after factoring in time served.

3For reasons that follow, the appeal is dismissed.

B. Background Facts

(1) M.D.

4The complainant, M.D., was 15 years old. The appellant met M.D. online. They chatted over Facebook for a few weeks and then met in person in January 2016. In July 2016, the Children's Aid Society ("CAS") learned that M.D. was residing with the 35-year-old appellant. While they lived together, M.D. slept in a spare bedroom. The appellant sometimes took M.D. to movies, gave him beer and food, and gifted him an old iPhone. [page555]

5M.D.'s biological parents were aware of the living situation. Due to concerns about M.D.'s relationship with the appellant, the CAS apprehended him and placed him in foster care. M.D. was also directed to cease all contact with the appellant.

6M.D. and the appellant continued to contact each other with inappropriate electronic messages. The CAS took steps to prevent further communication.

7By October 2016, M.D. was moved to a group home after his foster parents reported finding child pornography on his phone.

8The police subsequently found further online sexual communications between the appellant and M.D., which were sent between February and April 2016. These communications revealed that there had been sexual contact, and that the parties had exchanged sexually explicit material. The appellant and M.D. called each other pet names, had engaged in oral sex, and the appellant had sent the complainant sexually explicit images of naked males and anal penetration. A fictitious Facebook account was used to allow the parties to maintain contact without detection.

9In September 2017, the police interviewed M.D. He indicated that: the parties had engaged in sexually explicit chats; the appellant touched M.D.'s penis over his clothing while he was at the appellant's home; there was mutual touching of this nature; they performed fellatio on each other; and the appellant anally penetrated M.D. on at least two occasions. M.D. kept these incidents secret.

(2) "Drake"

10Between August 2016 and March 2017, an undercover police officer communicated with the appellant. The officer claimed to be a 14-year-old male named "Drake". When they first started chatting, the appellant was 35.

11The appellant sought to have sexual contact with "Drake". He asked to have Drake's picture and suggested that they go for coffee or to a movie or hotel together. He also suggested that Drake could sleep at the appellant's house. The appellant asked Drake to keep their communications secret.

C. The Sentencing Decision

(1) Circumstances of the offender

12After setting out the facts surrounding the offence, summarized above, the sentencing judge turned to the circumstances of the offender. [page556]

13R.A. is now 38 years old. He had a difficult upbringing. His parents divorced at a young age. His mother's new partner was alcohol and drug dependent; he became abusive towards her. Beyond the instability in his childhood home, R.A. was sexually abused by a peer during high school.

14Since then, the appellant has held steady employment. He lived with his mother and her partner until 2012, when his mother died unexpectedly. He is currently involved in a monogamous relationship with an age-appropriate partner. His partner has expressed a willingness to continue the relationship provided that R.A. makes changes in his life.

(2) Reports of Dr. Julian Gojer

15The sentencing judge next considered the reports of a psychiatrist, Dr. Julian Gojer, which were adduced by defence counsel.

16Dr. Gojer diagnosed the appellant with homosexual hebephilia, being an attraction to pubescent males. The appellant was also attracted to adult males. His history demonstrated no major mental illness, substance abuse disorder or personality disorder. He took responsibility for his offending and accepted the need for counselling.

17The doctor's original report indicated that the appellant was a risk to underaged males, but the risk was in the low range and could be further lowered with treatment, which the appellant admitted that he needed. Upon request, Dr. Gojer provided two further reports that clarified and qualified this finding: he was careful to note that the appellant's assessment of low risk was predicated on his participation in treatment, which had not yet occurred.

18Dr. Gojer recommended treatment for the appellant while in custody and in the community. The indications were that the appellant would engage in treatment. He had the capacity to benefit from treatment, and since the appellant was also attracted to adult males, he could re-direct his urges in a lawful way.

(3) Mitigating and aggravating factors

19The sentencing judge set out several mitigating and aggravating factors.

20The mitigating factors listed by the sentencing judge included: the appellant pled guilty; he was open to therapeutic intervention; he expressed remorse; he had no criminal record; he had no drug or alcohol issues; he was currently in an age-appropriate relationship; and he had a strong work history with support in the community.

21The sentencing judge also properly considered the aggravating factors, which included: the young age of M.D. and the [page557] perceived young age of the undercover officer ("Drake"); the 20-year age gap between the appellant and M.D.; the "grooming" techniques employed by the appellant; the vulnerability of M.D.; the appellant kept in contact with M.D. knowing that they were not supposed to communicate with each other; the use of a fictitious Facebook page to conceal their contact; the progression of the conduct over a nine-month period; and the repeated instances of fellatio and unprotected anal penetration with M.D.

(4) Counsel proposals for the sentence and the disposition

22At the sentencing hearing, the Crown requested a global sentence of six years' imprisonment. The defence requested two years, followed by three years of probation.

23The sentencing judge imposed a global sentence of five-and-one-half years, reduced to five years after taking into account pre-sentence custody and restrictive bail conditions.

D. Positions of the Parties

(1) Position of the appellant

24The appellant argues that the sentencing judge erred by not considering the appellant's rehabilitative prospects as mitigating. Specifically, it is submitted that the sentencing judge erred by considering the fact that the appellant had not engaged in counselling without also considering the practical availability of counselling. The appellant had been arrested in January 2018 and was held in pre-trial custody. There was no basis to believe he could receive counselling in provincial pre-trial facilities. He was released on very restrictive bail conditions in March 2018, which provided little, if any, opportunity to engage in counselling. The appellant argues that the sentencing judge effectively held it against him that he had not engaged in counselling, while not appreciating how difficult it was for him to actually obtain counselling. In doing so, the sentencing judge erred in law.

(2) Position of the respondent

25The respondent argues that there is no basis for appellate intervention. The appellant has not shown that the sentencing judge committed any error of law or principle, nor that the sentence is demonstrably unfit.

26The sentencing judge did not exercise his discretion unreasonably in weighing the relevant aggravating and mitigating factors. The weight that the judge assigned to each individual factor is owed deference. [page558]

27The sentencing judge did not fail to consider the appellant's rehabilitative prospects. When considering the evidence before the court in its totality, it was open to the judge to conclude that the appellant's risk of re-offending was not so low that it comprised a separate mitigating factor. The judge's treatment of this factor as neither mitigating nor aggravating was within his discretion and is owed deference on appeal. Furthermore, the appellant's sentence is fit when measured against the gravity of the offence and moral culpability of the offender.

28Regarding Dr. Gojer's report, the respondent submits that the sentencing judge did not disregard Dr. Gojer's expert opinion. Rather, he acknowledged Dr. Gojer's finding that the risk of reoffending was in the low range. The sentencing judge declined to characterize the appellant's risk level as mitigating because Dr. Gojer was careful to predicate his finding of low risk on the appellant's participation in counselling. As of the date of the sentencing hearing, the appellant had not engaged in counselling or treatment. The respondent submits that this was not in error. The evidence indicated that there was some risk to re-offend, but again the risk would be lowered if the appellant made a strong commitment to his rehabilitation.

29The respondent submits that the sentencing judge was not required to consider the "practical availability" of counselling under the appellant's bail conditions. A finding that counselling was unavailable would have required speculation. There was no evidence about the availability of treatment while the appellant was on bail, either before or after the house arrest condition was considerably loosened to permit the appellant to pursue employment opportunities. Further, the respondent points out that defence counsel did not raise this issue in submissions at the hearing, despite affirming that the appellant had not yet engaged in treatment.

E. Discussion

(1) The standard of review

30On review, appellate courts afford significant deference to sentencing judges in crafting a proportionate sentence. An appellate court may intervene only if: (i) the sentence was demonstrably unfit, or (ii) the sentencing judge made an error of law or error in principle that had an impact on the sentence: R. v. Friesen, 2020 SCC 9, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, at paras. 39-41, 44, 51. [page559]

31The sentencing judge's weighing of relevant factors is a matter of discretion that is owed deference: Lacasse, at para. 49. It can constitute an error in principle "[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably": Friesen, at para. 26. In other words, an appellate court cannot intervene simply because it would have weighed the relevant factors differently: Lacasse, at para. 49. Moreover, not every error in principle is material. Again, intervention is only justified where it is apparent from the judge's reasons that the error impacted the sentence: Friesen, at para. 26.

32On appeal, the court must show deference to the sentencing judge's findings of fact and their identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle: Friesen, at paras. 26, 28.

(2) The sentencing judge did not err in law or principle

33I do not see any error of law or principle committed by the sentencing judge. The sentencing judge properly considered and weighed the mitigating and aggravating factors. If the appellant receives counselling now, that will be to his credit. However, the fact that he had not obtained counselling at the time of sentencing does not appear to have been of any overriding importance to the sentencing judge. It was only one consideration and related to the risk posed by the appellant. Moreover, the sentencing judge cannot be faulted for failing to consider the unavailability of counseling when that was neither raised nor explored in the evidence.

34Contrary to the appellant's submissions, the trial judge considered significant mitigating factors bearing on the appellant's rehabilitative potential when reaching the decision as to sentence: namely, his openness to therapy; his guilty plea; his expression of remorse; his lack of a criminal record; his strong work history; and his support in the community. In light of the absence of any error in law or principle, the sentencing decision is entitled to deference.

(3) The sentence imposed was not demonstrably unfit

35Deterrence and denunciation are of prime importance for offences involving a sexual assault of a child: see the Criminal Code, R.S.C. 1985, c. C-46, s. 718.01; Friesen, at paras. 101-105. Sentences for such offences should be strict. Factors justifying longer sentences include conduct found to be "grooming", as well as the degree of physical interference with the victim's bodily integrity: Friesen, at paras. 125, 138, 153. [page560]

36It must be considered that the appellant expressed remorse, which reflects some insight into his conduct, and also that he was willing to seek treatment.

37However, the Supreme Court of Canada recently emphasized the need to impose sentences that accurately reflect the wrongfulness and harmfulness of sexual offences against children: Friesen, at para. 5. Courts must take heed of the well-known and longstanding consequences of sexual offences against children. This court summarized some of these consequences in R. v. M. (D.) (2012), 111 O.R. (3d) 721, 2012 ONCA 520, at para. 38, citing this court's earlier decision in R. v. D. (D.) (2002), 58 O.R. (3d) 788, [2002] O.J. No. 1061 (C.A.):

. . . (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

38While the Supreme Court did not establish a precise range, it stressed that "mid-single digit penitentiary terms for sexual offences against children are normal": Friesen, at para. 114. This court has also stated that adults who sexually abuse children "must face the prospect of a significant penitentiary term": R. v. Woodward (2011), 107 O.R. (3d) 81, 2011 ONCA 610, 276 C.C.C. (3d) 86, at para. 75. It has upheld sentences between four and six-and-one-half years in similar circumstances: see Woodward, at para. 75; R. v. Saliba, 2019 ONCA 22, at para. 28; R. v. B. (R.), 2014 ONCA 840, 327 O.A.C. 20, at paras. 7-12; D. (D.), at paras. 32-35, 44; and M. (D.), at paras. 36-44.

39The sentence imposed on the appellant fell within the mid-single digit range.

40The appellant preyed on a vulnerable young person for an extended period of time. He tried to prey on another young person not knowing that he was an undercover officer. While the appellant is remorseful, and hopefully will make efforts to obtain counseling, it cannot be said that the sentence imposed by the sentencing judge was demonstrably unfit.

F. Disposition

41Leave to appeal the sentence is granted. The sentence appeal is dismissed.