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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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 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.
Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: June 9, 2022 COURT FILE No.: Newmarket 21-02555
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
J.H.
Before: Justice David S. Rose Heard on: June 1, 2022 Reasons for Judgment released on: June 9, 2022
Counsel: A. Barkin............................................................................................. counsel for the Crown S. Jack....................................................................................... counsel for the accused J.H.
Endorsement
1On December 3, 2021 Mr. J.H. pleaded guilty to sexual touching and invitation to sexual touching. Both offences took place between August 1, 2020 and 30 November 2020. The complainant in each was the same, DD, who is the biological daughter of Mr. J.H.’s intimate partner.
2Mr. J.H. admitted to the following facts:
3The victim, DD, was born in the Philippines on […], 2010, and so was 10 years old when the offences occurred.
4D’s mother, MD, moved from the Philippines to Canada in 2015. Ms. D worked as a “nanny” or caregiver at first, then studied for her P.S.W. qualifications which she obtained. Ms. D now works as a P.S.W.
5Ms. D brought her daughter D to Canada in 2019. At this time, she was in a relationship with J.H.
6Ms. D and Mr. J.H. had lived together for approximately 2 years but had known each other for about 4 years, starting out as friends and then becoming romantically involved. Ms. D and Mr. J.H. ended their relationship in about December 2020.
7Mr. J.H.’s employment involved selling Pokemon cards. He had more free time than Ms. D who worked outside the home. As a result, when the pandemic hit, Ms. D often relied on Mr. J.H. to watch D when she was attending virtual school from home.
8On February 12, 2021, members of the Toronto Police Service attended at a residence in the City of Toronto in response to a call that had been made in relation to D.
9D had recently disclosed to her mother that she had been sexually assaulted by Mr. J.H. Ms. D confronted Mr. J.H. and he told her that D was lying. Ms. D took D to her cousin’s home in Toronto. The cousin called the police.
10The case was transferred to York Regional Police for jurisdictional reasons. The incidents had occurred in York Region.
11D and her mother were interviewed on video on February 15, 2020 by Detective Kim Pierce of York Regional Police. In her statement, D disclosed multiple incidents of sexual interference.
12On the next day, February 16, 2020, Mr. J.H. attended at 2 District to surrender himself. He was arrested for offences of sexual assault and sexual interference. Mr. J.H. was read his rights to counsel and was cautioned. He provided an inculpatory videotaped statement admitting to sexually offending against 10 year old D. He described 4 separate incidents and recalled that the abuse occurred on 4 or 5 occasions. He talked about kissing her “boobs”, fingering her and having her touch his penis. Mr. J.H. said that he had started thinking of her in a sexual way. He told police that he was ashamed. In his first interview with the police he gave a full confession.
13As a result of information gathered during Mr. J.H.’s interview, Detective Pierce conducted a second videotaped interview with D on March 5, 2020. D provided some further details during this interview.
14The sexual incidents occurred on about 4 or 5 separate occasions between August 1 and November 30, 2020. The incidents occurred when Mr. J.H. was residing with D and her mother. They were always alone when it would happen. D kept the sexual abuse to herself until she told her mother in February 2021. She hadn’t told anyone else. The facts J.H. admitted to were:
- D and Mr. J.H. were watching the movie, Jurassic Park, in the basement. Mr. J.H. turned to D and said, “I love you”. He then kissed D on the mouth, using his tongue. He put his hand down her underwear and rubbed her vagina. He put his hand up her shirt, inside her sports bra and fondled and licked her breasts. D felt “weird” about what was happening and she was afraid. She froze, not knowing what to do. Mr. J.H. then pulled down his pants, exposing his penis. He grabbed her hand and forced her to rub his penis. D was initally unable to pull her hand away. Mr. J.H. then began masturbating and ejaculated in his own hand in front of D. D described it by stating that he rubbed his penis until “liquid” came out of it. She said that the liquid went on his hand and that some got on the carpet. D estimated that this went on for about 15 to 20 minutes. Afterwards, Mr. J.H. went to the washroom and washed his hands.
- D and Mr. J.H. were watching television in the living room. D was sitting on the couch on her cell phone and got up to use the washroom. When she returned, Mr. J.H., who had taken her cell phone, sat on the couch beside her. He told her that she is on the phone too much. He then kissed her on the mouth, using his tongue. He put his hand up her shirt underneath her sports bra and touched her bare breasts. D was scared and didn’t move. She grabbed the remote she changed the channel to SpongeBob SquarePants. Mr. J.H. stopped a few minutes later.
- D was asleep in her bed when Mr. J.H. entered her bedroom, lay down in her bed with her and attempted to cuddle and hug her. D began trying to kick him in the stomach to get him away from her. She accidentally kicked him in the penis. Mr. J.H. stated, “that didn’t hurt”. He proceeded to grab her hand and place it on his erect penis. D pulled her hand away and ran out of her bedroom and into the living room.
- D and Mr. J.H. were in the basement watching a movie, The Shining. During the movie, Mr. J.H. asked D, “Can I suck your vagina?” D replied “no”. Mr. J.H. pleaded with her stating, “Come on! Let me know how it feels!” D was afraid and moved away from Mr. J.H., wrapping herself in a blanket.
Victim Input
15Ms. D gave a victim input statement which described how this has affected her. She suffers from sleep deprivation and has taken on the obsessive habit of cleaning her house each day, in order to cleanse the house of things that remind her of Mr. J.H. She has been taking therapy. Most importantly, her daughter D went back home to the Phillipines after the incident to heal and forget what happened here. Mr. J.H. is therefore responsible for the separation of a mom and her daughter.
16DD described an inability to focus, sleep interruption, having nightmares and profound sense of wanting to withdraw from the world. She has panic attacks and is angry, because she trusted Mr. J.H. She said that she went back to the Phillipines because she is trying to forget what happened here in Canada. The abuse ruined her life, and the life of her mom.
The Offender
17Mr. J.H. is 30 years old and has no criminal record. I had the benefit of both a pre-sentence report, as well as a lengthy report prepared by Dr. Monik Khalia who is a forensic psychologist. Both documents are consistent with each other.
18Mr. J.H. had a difficult upbringing. He was sexually abused by another boy in the neighbourhood when he was 7. His father was abusive and left the family, eventually settling in England when Mr. J.H. was 8 years old. That left the family in difficulty. What is clear is that Mr. J.H. was left scarred from the experience. He has a Grade 12 education and some post secondary education. He worked in menial jobs until more recently.
19Mr. J.H. has had a number of intimate relationships over the years but the reports disclose that none have been stable or long term. This may be because Mr. J.H. began indulging in pornography when he was 12. He describes himself as a pornography addict. In his statement to me at sentencing he told me that this left him with an unhealthy and skewed sense of intimate relationships.
20Dr. Khalia’s report discussed a number of diagnostic tests which Mr. J.H. completed. It diagnoses Mr. J.H. as a pedophile, insofar as the phallometric testing shows him to having higher responses to female children than adult children. Dr. Khalia’s diagnosis is that Mr. J.H. is a non-exclusive pedophile insofar as he relates sexually to adult females as well as children.
21The report confirms that there is some risk of Mr. J.H. re-offending. He is in the middling category of risk distribution. According to the Static-99 test Mr. J.H. is in a category where the rate of re-offending for individuals is equivalent to the average rate of sexual re-offending in the overall population, which is generally low. His needs are problematic but generally amenable to intervention.
22The RSVP test concludes that he is in the low range of risk for offending sexually.
23Dr. Khalia’s report concludes that Mr. J.H.’s “average risk he poses can be attenuated if he makes concerted efforts to follow recommended” therapies. Importantly, Mr. J.H. has thus far been a motivated participant in 15 sessions of therapy geared toward sexual offenders.
24I therefore find that Mr. J.H. has done much himself to reduce his risk of re-offending. I also find that he has real insight into his offending. On the facts before me Mr. J.H. is not running away from anything.
25There are many aggravating and mitigating factors.
Aggravating Factors
26Several serious aggravating factors are present in 718.2 (ii), (ii.1), (iii), (iii.1), that is to say, the victim was 10 years old, and Mr. J.H. was in an intimate relationship with victim’s mother, and were living together. Mr. J.H. exploited Ms. D’s absence from the apartment to abuse D.
27It is aggravating that the abuse carried on for 4 months on 4 – 5 separate occasions. The abuse involved some level of violation insofar as the assault involved fondling under victim’s underwear, licking her breasts, and masturbation leading to ejaculation.
28It is aggravating that the assaults resulted in the victim leaving Canada to go back to the Philippines because of the trauma experienced from this incident. These assaults have had a profound impact on a young person and her mother. There is every reason to believe that the impact will be felt deeply, and for many years.
Mitigating Factors
29Mr. H. has no CR, he pleaded guilty. The case was never set down for trial. The victim has been spared having to re-live the moment in a public setting. The reports of Dr. Khalia and the PSR confirm that J.H.’s remorse is deep and genuine. As he said, he was “risky and heartless”, and felt “absolutely horrible for his actions”. His police statement was a full blown confession. He admitted to his involvement from the very beginning. In his statement to the Court at the sentencing proceeding he spoke of his remorse and understanding of how this affected the victim.
30It is mitigating that J.H. has been attending 15 counselling sessions over several months until mid-March. Those counselling sessions are focused to sex-offence specific issues, like cognitive errors with child sexual abuse, victim empathy, sexual fantasy, use of pornography and its impact. In other words, Mr. J.H. has commenced the process of rehabilitation on his own in a way which appears focussed and effective.
31J.H. has commendable community involvement with the Prison Fellowship Canada program. Members of that community group took the time to appear in Court at sentencing. He also has a supportive family. His mother and brothers and sisters appeared in Court with him.
32J.H.’s risk of re-offending is not high. Dr. Khalia reports that according to the Static – 99 test Mr. J.H. is in the middle of the risk distribution.
The proportionate sentence
33I find that denunciation and deterrence are the predominant factors in this sentencing. Parliament has mandated this in s. 718.01 of the Criminal Code. Dr. Khalia’s report in particular his passages about J.H.’s work and ongoing amenability to treatment and intervention, lead me to find that separation of Mr. J.H. from society is a present, but much lessened factor in this sentence. As Dr. Khalia reports, Mr. J.H. is a pedophile, but a non-exclusive one. He has attractions to adult females, as well as children. This provides some hope for treatment and therefore rehabilitation.
34Ms. Barkin argues that an appropriate sentence in this case is 5 – 6 years. Mr. Jack argues for a sentence of 4 – 5 years. Those positions are not far apart, indeed they meet in the middle.
35Ms. Barkin places much of her legal argument on the Supreme Court of Canada’s 2019 ruling R. v. Friesen, 2020 SCC 9, where the Supreme Court of Canada restored a 6 year sentence for what can only be described as a horrific sexual assault on a 4 year old girl. That case involved abuse at the hands of Friesen and the child’s biological mother. In Friesen the Court restored the sentence imposed at first instance, which the Manitoba Court of Appeal had reduced to 4.5 years. The 6 year sentence was lenient according to the Supreme Court at par. 169, and so not demonstrably unfit.
36Notably, the Court in Friesen gave considerable guidance on the factors which animate sentencing in cases of child sexual abuse. Notably, the Court said that sentences must increase for those who exploit children’s vulnerability and cause harm to children, their families and communities (Friesen at par. 5).
As noted previously, Parliament's decision in 2015 to increase maximum sentences for sexual offences against children should shift the range of proportionate sentences as a response to the recognition of the gravity of these offences. Sentences should increase as a result of this legislative initiative (Rayo, at para. 175). In certain cases, a sentencing judge [TRANSLATION] "must feel free to impose sentences above" a past threshold (R. v. Régnier, 2018 QCCA 306, at para. 78). As the Quebec Court of Appeal has reasoned, courts must give "the legislative intent its full effect" and should not feel bound to adhere to a range that no longer reflects Parliament's view of the gravity of the offence (para. 40). Such a range may in fact be "obsolete and must be revised upwards" (para. 30).
37In Ontario the range of sentences for such offences was outlined in the 2002 decision R. v. DD (2002), 58 O.R. (3d) 788, where the Court of Appeal said that the range of sentences for this type of offence was mid to upper single digit penitentiary terms. When the abuse involves full intercourse, and is accompanied by other acts of violence or extortion the range increases to upper single digit to low double digit penitentiary sentences. See DD at par. 44, R. v. D.M. 2012 ONCA 894.
38That range outlined by the Court of Appeal in DD is above the result in Friesen, who received only a 6.5 year sentence for conduct which would otherwise seem to fall in the upper range suggested by the Court of Appeal in DD quoted above. In Friesen the Supreme Court noted that DD was appropriate appellate guidance on sentencing child sexual abuse cases but which came “with the caution that the 2015 statutory amendments were not yet in effect at the time of the offences in these cases”.
39Trial level cases for similar facts have sentences imposed as 5.5 years after trial (R. v. G.R. 2020 ONSC 7411 – Bloom J.), 4 years 8 months for abuse of two victims on a guilty plea (R. v. M.C. 2018 ONCJ 632 – Dellandrea J.). Ms. Barkin argues that case law from Ontario before Friesen, such as M.C. is of limited value because it did not take into account the call for longer sentences in Friesen. Given that the 6 year sentence imposed in Friesen was lenient, but within the range of appropriate sentences, I find that the range outlined by the Court of Appeal in DD remains valid, as do those sentencing cases which follow DD.
40Recent decisions from the Ontario Court of Appeal lead me to conclude that Friesen marked an emphasis to push sentences involving sexual abuse of children upward. In R. v. T.J. 2021 ONCA 392 the Court of Appeal overturned a sentence for an offender who had been convicted after trial of invitation to sexual touching and sexual assault upon a “6 or 7” year old child. The facts in that case are similar to those J.H. admitted to.
41T.J. was given a 9 month sentence, which the Court of Appeal found was demonstrably unfit. The Court of Appeal found that a 24 month sentence was appropriate. In coming to that conclusion the Court said (at par. 18):
Three parts of the message in Friesen are relevant here: (1) the importance of properly considering the wrongfulness and harmfulness of sexual offences against children in determining a proportionate sentence; (2) the priority given by Parliament to the sentencing objectives of denunciation and deterrence for these offences; and, (3) the guidance given on the length of sentences for these offences.
42Other cases from the Court of Appeal reflect a post Friesen range for sexual interference and invitation to sexual touching cases which go from mid reformatory, see R. v. R.L.S. 2020 ONCA 338 where a 9 month sentence was described as lenient but upheld, to 4 years after a jury convicted the appellant of sexual assault and sexual interference where penetration occurred, see R. v. P.C. 2022 ONCA 19. It is axiomatic that the length of sentence increases with the addition of “well recognized” aggravating factors, see M.C. (supra) at par. 41. These cases inform my finding that the range of 4 – 6 years offered in this case is not itself lenient. I find that, on the facts before me, this range fits with both the pronouncements of Friesen, DD, and their progeny.
43Sentencing is not an exercise in precision. It must be individualized, considering all of the aggravating and mitigating factors. Given the remorse and prospects for rehabilitation I would impose a sentence in the lower end of the range.
44Given all of these factors I find that the appropriate sentence is one of 4 years, concurrent on each count.
45There will be a SOIRA order for life.
46There will be an order for DNA databanking on both counts.
47I received written submissions to supplant oral submissions on the terms of an Order under s. 161. Considering the evidence before me, there will be an order under s. 161 for 10 years. The Order will prohibit J.H. from:
(a) attending any 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; unless in the direct and immediate presence and under the direct supervision of S.H., M. H. or J. H.;
(a.1) being within 500 metres of any dwelling house where DD or MD ordinarily reside s;
(b) 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;
(c) having any contact - including communication by any means - with any person under the age of 16 years, unless in the direct and immediate presence and direct supervision of S.H., M.H., J.H.;
(d) using the Internet or other digital network, in any manner that would enable the offender to communicate with females under the age of 16, including but not limited to social media sites, chat rooms and dating sites, except for the express purpose of selling goods on applications [“apps”] that serve this function [ie. Facebook Marketplace, Kijiji, Craigslist]. This term does not prohibit. J.H. from accessing the internet or other digital network for accessing consultation with a health professional, including physician, nurse, psychologist or mental health therapist for purposes of physical or mental health.
Released: June 9, 2022 Signed: Justice Rose
