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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
John Woodason
Before: Justice Freeman
Heard on: March 19, 20, 21, August 20, 21, 22, 2018 and April 17, 2019
Reasons for Judgment released: November 19, 2018
Reasons for Sentence released: June 12, 2019
Counsel:
- M. Occhiogrosso — counsel for the Crown
- F. Genesee — counsel for the accused, John Woodason
REASONS FOR SENTENCE
I. Overview
1On November 19, 2018, I found John Woodason guilty of one count each of sexual assault, sexual interference and invitation to sexual touching. The offences against the complainant, TS, occurred during the period of May 1 to July 31, 2016.
2On February 8, 2019, the count of sexual assault was conditionally stayed, pursuant to the principles in R. v. Kienapple, [1975] 1 S.C.R. 729.
3At the time of the assaults, the complainant was 14 years of age. John Woodason was 27 years of age.
II. Circumstances of the Offences
4On one occasion, Mr. Woodason rubbed the complainant's vagina both over and under her clothing. He also took her hand and put it on his penis overtop of his clothing at which point she started rubbing his penis for a little bit and then she took her hand away. There was also kissing on this occasion. The following day, while sitting in his motor vehicle, Mr. Woodason asked TS to get on top of him. TS obliged and they kissed. Mr. Woodason touched her thighs over her pants before he slid his hands into her pants to touch her clitoris. Mr. Woodason then placed her hand on his penis while still fully clothed. On three or four other occasions, similar touching, over the clothes, occurred in the motor vehicle of Mr. Woodason.
5At no time was there any penetration.
III. Position of the Parties
6The Crown seeks a sentence of 12 months custody on the sexual interference count and 6 months on invitation to sexual touching, to be served consecutively for an 18 month global sentence.
7The defence seeks a sentence of 90 days on each count, concurrent, to be served intermittently.
IV. Personal Circumstances of the Accused
8Mr. Woodason is 30 years of age. He is the eldest child of four, and resides with his parents. He enjoys strong family support as evidenced by the presence of family members throughout the trial and sentencing phase.
9Mr. Woodason has a high school education. He began working within the landscaping industry following his graduation from high school. Mr. Woodason has been employed with his current company since August, 2017. His project manager provided a letter of support during the sentencing phase and his direct supervisor provided input to the probation officer and attended the sentencing hearing on April 17, 2019. Both men attest to Mr. Woodason's excellent work ethic, leadership abilities and his ability to work hard. Both men consider Mr. Woodason to be an asset to the company. Further, it is clear that Mr. Woodason's employment will be in jeopardy with a jail sentence.
10One additional letter of support was provided from a family friend and another family friend spoke to the probation officer for the Presentence Report. Both had only glowing words for the good character of Mr. Woodason.
11Mr. Woodason has no criminal record. I have little doubt that his prospects for rehabilitation are excellent.
V. Impact of the Offences on TS
12TS did not provide a victim impact statement. Her sister, AT, read a letter into court during the sentencing hearing on April 17, 2019. AT advised the court that TS, now 17 years of age, has given up on school, is afraid of men, and does not think very highly of herself. AT advised the court that Mr. Woodason has "ruined" her sister's life.
13I have no doubt that AT is extremely angry with Mr. Woodason, who was her friend and a frequent guest at the family home. I also have no doubt that AT loves her sister, TS, very much and feels enormous concern for her future well-being.
14I am mindful, however, that TS was experiencing difficulties with school prior to the assaults committed by Mr. Woodason. While I would not blame Mr. Woodason for ruining the life of TS, the fact that TS was experiencing difficulties at the time of the assaults underscores how vulnerable she was.
15In R. v. D.D., 157 O.A.C. 323 (CA) the Court of Appeal referenced the decision of the Court of Appeal of Alberta in R. v. S. (W.B.) and R. v. P. (M.), 73 C.C.C. (3d) 530, at p. 535, in which that Court stated:
One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving caring relationship with another [adult] being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.
16Accordingly, while I do not find that Mr. Woodason ruined the life of TS, he took advantage of her youth and innocence at a vulnerable time in her life thereby seriously aggravating the difficulties she was then facing and continues to face today.
VI. Principles of Sentencing
(a) Statutorily Aggravating
17Section 718.2(a)(ii.1) of the Criminal Code makes it an aggravating factor where an offender abused a person under the age of 18 years.
18Where an accused abuses a position of trust or authority over the victim, s. 718.2(a)(iii) deems this to be an aggravating factor.
19In R. v. A.G., 2017 ONCA 474, the Ontario Court of Appeal found that the step-father of the friend of a 10 year old complainant was in a position of trust towards the complainant.
20While Mr. Woodason was not in a position of trust or authority, as that term is ordinarily applied, I am mindful that he was the adult friend of the sister of TS and, therefore, he was trusted to be with TS during a sleepover and alone in his motor vehicle where the offences took place. As such, there was an element of a breach of trust that I must consider.
(b) Consecutive or Concurrent?
21The Crown seeks a 12 month sentence for the sexual interference charge and a 6 month sentence, to be served consecutively, on the invitation to sexual touching charge.
22In determining whether I should impose concurrent or consecutive sentences, I am guided by the principles as set out by the Manitoba Court of Appeal in R. v. Taylor, 2010 MBCA 103, 263 CCC (3d) 307 at para. 11:
11 When sentencing on multiple offences, the judge must first determine whether any or all of the sentences are to be served concurrently or consecutively. This determination has nothing to do with the overall length of the sentence and more to do with the nature and the quality of the criminal activity. If the offences are sufficiently interrelated or have a reasonably close nexus, the judge will impose a sentence with concurrent dispositions. If the offences are separate and distinct, then consecutive sentences are to be imposed. It must be remembered that the totality principle considerations under s. 718.2(c) of the Code apply only when consecutive sentences are imposed. When a judge sentences an accused to concurrent sentences, no such considerations arise.
23The Court continues at para. 12 to set out the concurrent approach:
12 When a judge decides to impose concurrent sentences for all offences, it will be because they were found to be sufficiently interrelated to merit concurrent dispositions. In accordance with the appropriate sentencing principles, including proportionality, the judge will either determine the fit sentence for the most serious of the offences, and make the other sentences lesser in length, but concurrent, or a fit period of imprisonment (or other type of disposition as the case may be) will be determined for that one set of offences.
24At para. 15, the Court set out the approach when sentences are to run consecutively:
15 When a judge decides to impose consecutive sentences for all of the offences, it will be because they were each found to be separate and distinct from the others. The judge will then determine a fit sentence for each one of the offences, in accordance with the appropriate sentencing principles, including proportionality.
I note that our Court of Appeal cited para. 12 of Taylor with approval in R. v. J.H., 2018 ONCA 245, [2018] O.J. No. 1354.
25In the within case, the offences of invitation to sexual touching and sexual interference are clearly interrelated: both offences occurred on the same day, with the same complainant, and were part of the same interaction. Although the offences differ in nature, it would be artificial to separate a touching of the accused from the touching of the complainant so as to impose consecutive sentences. The offences before the Court are sufficiently interrelated to warrant a concurrent sentence.
VII. Directing Principles of Deterrence and Denunciation
26Section 718.01 of the Criminal Code states:
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.
27Further, there are numerous appellate decisions directing the principles that must be considered in imposing a sentence for the sexual assault of a child. As Justice Moldaver stated in R. v. D.D., supra, at paras. 33-36:
33 Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.
34 The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.
35 We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
36 In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.
28While the principles of rehabilitation must still be given weight, the overall emphasis must be general deterrence and denunciation. As the Ontario Court of Appeal noted in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81 at para. 76, while the principles of rehabilitation and the impact of a sentence on the offender must be considered"the objectives of denunciation and deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence."
VIII. Cases Produced by the Crown
29The Crown relied on the following cases to support her position that a 12 month sentence for sexual interference and a 6 month sentence for invitation to sexual touching was warranted: R. v. D.A.P., [2009] A.J. No. 191, R. v. Johnson, [2010] A.J. No. 1101, R. v. F. (M.G.), 2010 ABCA 102.
30As is ordinarily the case in sentencing, each case can be distinguished on its facts. In R. v. D.A.P., supra, the Alberta Court of Appeal refused to overturn a trial judge's imposition of a 15 month sentence imposed upon the accused who was the grandfather of the victim. In that case, the accused was convicted on 5 counts of squeezing the buttocks, rubbing the vagina, and kissing, licking and biting the young girl's chest as well as rubbing the child's hand over his penis. The victim was 7-9 years old at the time. Clearly, those offences were more serious, given the age of the child, the accused was her grandfather, and, of less concern, there is no suggestion of any touching of the buttocks or chest of TS in the case before me. The accused pled guilty. The Court of Appeal noted that the sentence was on the "extreme low end of the range" of appropriate sentence.
31In R. v. Johnson, supra, the accused deliberately positioned himself beside a 14 year old girl sleeping on a public bus. The accused touched the girl's ankle, leg and then placed his hand down the front of her underwear. The Alberta Court of Appeal overturned the trial judge's imposition of a 90 day intermittent sentence and substituted a 12 month custodial sentence. The Court noted that the "predatory, deliberate nature" of the offence made it more serious, coupled with the fact that the victim was developmentally delayed.
32In R. v. F. (M.G.), supra, the Alberta Court of Appeal overturned the trial judge's imposition of a 90 day intermittent sentence and imposed a sentence of 18 months custody. The accused rubbed the 10 year old's vagina twice on the same day and admitted there had been previous similar incidents. The fact that the victim was only 10 years old, the accused was a father figure and the assaults took place in her own home made the offences more serious. However, I do not ignore the fact that in F. (M.G.), the accused pled guilty which is a significant mitigating factor not present in the within case.
IX. Cases Produced by the Defence
33The defence relied on a number of cases: R. v. Krishnanada, 2017 ONCJ 81, [2017] O.J. No. 953, R. v. Trotman, 2011 ONCJ 604 and R. v. W.G., [2019] O.J. No. 868. In Krishnanada, the accused, believing that the age of consent was still 14 years of age, had sexual intercourse with a complainant whom he believed to be 15 years old. In imposing a 90 day sentence, the Court placed great weight on the plea of guilt which he found to be of "considerable mitigative value." Additional mitigating factors included strict bail for 22 months and the fact that there was no breach of trust or authority.
34Although the defence in submissions did not go through the cases, aside from Krishnanada, I will comment on a few. In Trotman, supra, the accused pled guilty to a sole count of sexual assault although the facts on another sexual assault were read in. In the count to which he entered the guilty plea, the accused approached a 15 year old stranger, tried to hug and kiss her, and placed his hands down her pants, rubbed her vagina with his hands and penis and ejaculated while holding her. In the second instance, the accused grabbed another 15 year old, hugged her and tried to kiss her. The Court found the guilty plea to be an important mitigating factor, as well as the fact that the accused had spent 12 days in custody and almost 2 years on house arrest. The accused did have a criminal record. In that case, the accused received 8 months custody in addition to credit of almost 4 months for pre-trial custody and house arrest, making the sentence akin to a nearly 12 month custodial sentence.
35In W.G., supra, the accused received a 1 year conditional sentence for one count of sexual interference. In that case, the Court found that as a result of the complainant's actions, the accused honestly believed the complainant was over the age of 16 years. The Court placed great weight on its finding that the offence was "really one of negligence rather than one of actively seeking sexual gratification from a minor." Clearly, the facts in the case before the Court are substantially different involving breach of trust, knowledge of the age of the complainant and multiple offences. W.G. has no precedential value that assists my decision.
X. Factors Considered in Sentencing
Mitigating Factors
36I consider the following factors to be mitigating:
(i) Supportive family and community; and
(ii) Gainful employment since graduation.
37Mr. Woodason has a family and the letters of support exhibit a degree of community support.
38Mr. Woodason is a hard worker and a valued employee of the company currently employing him.
Aggravating Factors
39I consider the following factors to be aggravating:
(i) Youth of complainant;
(ii) Breach of trust;
(iii) Multiple occasions; and
(iv) Impact on TS.
40In terms of aggravating factors, TS was only 14 years old. She was a vulnerable young person who was, to the knowledge of Mr. Woodason, struggling with school.
41Additionally, Mr. Woodason was in a position of trust. He was a friend of AT, the older sister of TS. For that reason, he was trusted to take her to a sleepover, and drive her in his motor vehicle where the assaults occurred.
42I also consider the fact that this was not an isolated incident but occurred on at least 5 occasions.
43Finally, it is clear that the offences have had a significant impact on TS. She has now stopped attending school completely. While I cannot attribute this wholly to the actions of Mr. Woodason, given that at the time of the offences TS was struggling with school, the offences clearly aggravated an existing struggle for TS.
44The aggravating factors in this case underscore the need for a substantial custodial sentence to address the issues of denunciation and deterrence. In my view, a 90 day sentence is woefully inadequate in this regard.
XI. Conclusion
45Bearing in mind the overriding need to express denunciation of such offences and send a message to the community, I believe the fit sentence is one of 9 months incarceration concurrent on both counts. This sentence meets the principles of deterrence and denunciation while still remaining mindful of the rehabilitation prospects of Mr. Woodason. In my view, given the age, breach of trust, multiplicity of occurrences, the fact that Mr. Woodason not only touched TS but also had her touch his penis and the impact on TS, nothing less will suffice.
46Following his incarceration, Mr. Woodason will be placed on probation for 12 months. In addition to the statutory terms, he will:
(i) Report within 72 hours after release from custody and thereafter as directed;
(ii) Have no contact directly or indirectly with TS or any member of her immediate family;
(iii) Not attend within 200 m of any place he knows TS or her immediate family to live, work or be; and
(iv) Take counselling for sexual offending behaviour as directed and sign necessary releases to monitor progress.
XII. Ancillary Orders
47The following ancillary orders are made on the consent of the defence:
(i) Pursuant to s. 487.051, Mr. Woodason is to provide samples of bodily substances reasonably required for forensic DNA analysis.
(ii) Pursuant to ss. 490.012 and 490.013, Mr. Woodason is to comply with the provisions of the Sex Offenders Information Registration Act, S.C. 2004, c. 10 for a period of life.
(iii) Pursuant to s. 109, I impose a mandatory firearms prohibition for 10 years.
(iv) Pursuant to s. 161(1)(a.1), Mr. Woodason is prohibited from being within 2 km of the residence in which TS ordinarily resides for a period of 5 years.
(v) Pursuant to s. 161(1)(b), Mr. Woodason is prohibited from seeking, obtaining or continuing 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, for a period of 5 years.
Released: June 12, 2019
Signed: Justice Jaki Freeman