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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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) .
(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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
DATE: November 18, 2024 COURT FILE No: 22-0119
O N T A R I O C O U R T OF J U S T I C E
B E T W E E N:
HIS MAJESTY THE KING
-AND-
B.N.
Before Justice M. G. March
Judgment rendered orally on February 7, 2024 Submissions on Sentence heard on August 8, 2024 Crown’s Written Reply Submissions delivered on August 18, 2024 Reasons for Sentence released on November 18, 2024
Caitlin Downing……………………………………………………………….Crown Counsel Mark Huckabone……………………………………………………………..Counsel for B.N.
Introduction
1On February 22, 2022, B.N. pleaded guilty to the offence of exposing his genitals to M.N., a person under the age of 16 years contrary to s. 173(2) Criminal Code of Canada (“the Code”).
[2] Almost two full years later, on February 7, 2024, I found B.N. guilty at the conclusion of a disjointed, eight-day trial for the following offences: a) sexual assault contrary to s. 271 of the Code, b) sexual touching contrary to s. 151 of the Code, and c) invitation to sexual touching contrary to s. 152 of the Code.
3I found him not guilty of sexual touching contrary to s. 153 of the Code, since M.N. did not meet the definition of “young person” as set out in subs. (2) of s. 153.
4The offences were historically committed over the span of three consecutive days somewhere between November 1, 2011 and March 31, 2012 when the accused, B.N. was taking care of his granddaughter, the victim, M.N. and her two older brothers while their parents were away from their family home in Deep River, Ontario on military exercises.
5For various reasons, chief amongst them, B.N.’s advancing age and health difficulties, the conflicting schedules and general unavailability of counsel, and a clogged, overburdened criminal justice system in Renfrew County, the sentencing was delayed inordinately for some nine months.
Circumstances of the Offences
[6] In my oral reasons for judgment, I made the following findings of fact: a) when M.N. was roughly 7 years of age, B.N. received a call from her school informing him that she was sick, b) he picked her up early and took her to the hospital the next day to be seen by an emergency room doctor, c) she possibly had strep throat, d) consequently, she was suffering from fever, as well as other cold and flu like symptoms, e) he asked her that evening if she would like to sleep in his bed to stay warm and she accepted his offer, f) during the first night she spent in bed with her grandfather, she awoke to him masturbating beside her, g) over the course of three consecutive nights, B.N. repeatedly touched M.N.’s vagina while she was in bed next to him, h) on at least one occasion, he digitally penetrated her, i) on another occasion, he directed her head toward his genital area and had her put his penis in her mouth, j) he used her hand on yet another occasion to masturbate him and he removed it prior to ejaculating into a tissue, k) she did not know what the ejaculate was, but she did see liquid coming from his penis, l) he encouraged her to touch herself in the vaginal area, and m) he told her he was surprised she had not been doing it already, because it was something everybody does.
7B.N. asked M.N. not to tell anyone about the sexual activity they engaged in, because if she did, she would get into trouble. People would get really mad at her. Her grandmother would hate her for it.
8Some years later, M.N. wrote in her journal that she was “raped as a kid”. She did not know the difference between rape and sexual assault. She clarified that she was referring to what had transpired between her grandfather and her when she was a young child.
9In 2019 or 2020, her mother came across the journal entry and asked her about it. Eventually, they contacted police.
10M.N. kept the “secret” for many years before complaining to the authorities.
Circumstances of the Offender
11At present, B.N. is 77 years old. He has no criminal record, nor has he ever been charged prior to the subject offences.
12He resides at present in Anola, Manitoba, in an assisted living facility.
13The author of his lengthy and detailed presentence report (“PSR”) delved into B.N.’s past in some depth. The author chronicled how he suffered physical, emotional and verbal abuse as a child at the hands of his father, who B.N. described as an alcoholic. His parents separated when he was 8 years old.
14Following the breakdown of the family unit, B.N. went to live with his father and his paternal grandparents. As punishment for misbehaviour, his grandparents would lock him in their mud floor basement without any lighting.
15The PSR author received several accounts of neglect and abuse from B.N., to which he was subjected at the hands of his father, including being left in the car to freeze while his father was at the bar in Lac du Bonnet, Manitoba.
16On other occasions, his father would beat him on his knuckles with a ruler if he was unable to play violin, having been woken in the wee hours of the morning to entertain his father’s drinking buddies.
17A year following the separation of his parents, B.N. went to live with his mother again. She explained to him that his father had threatened to kill him if she had taken him to live with her.
18Fortunately, B.N. had minimal contact with his father after he moved back with his mother.
19At age 19, B.N. had his first serious relationship with a woman he met in high school. They married in 1968 when he was 21 and she was 20. Together they have a 58-year-old son and a 53-year-old daughter.
20The marriage lasted 7 years. The strain placed on the young couple was too great. Their son was born with hydrocephalus. As a result of this condition, his stature was small, and it affected his physical characteristics and other aspects of his development. He required annual surgeries.
21Their son was able to work at a department store but when the company’s operations folded in Canada, his employment ended. He continues to this day to reside with his mother and her new partner of 20 years.
22B.N. appears to have a close relationship with his daughter, who was a major contributor to the background information obtained by the PSR author. She expressed her concern about B.N.’s future if he were to receive a period of incarceration as part of his sentence due to his declining health and his inability to comprehend any correctional programming offered to him.
23B.N.’s second wife was a psychiatric nurse he met in Winnipeg, Manitoba while the subject frequented the facility, at which she worked, to repair washers and dryers.
24Initially, they lived together and later married in 1986. They did not have any children, but B.N.’s second wife went on to become friends with his first.
25B.N. began to study at Bible College in Saskatchewan in 1997. His second wife and he were facilitators of the church they attended. There, B.N. met his eventual third wife, with whom he remained married for 22 years. It ended when they separated in 2019 after he was charged with the subject offenses. His third wife is the grandmother of the victim, M.N.
26In terms of education, B.N. dropped out of school in grade 10. He then went on to work at various jobs including at a nuclear facility in Pinawa, Manitoba and for a while in the Canadian Navy in Halifax, Nova Scotia. As an adult, he received his high school equivalency and then attended community college in Winnipeg, Manitoba.
27He completed an electrician program and found employment repairing appliances. Eventually, he went to work for Eaton’s specializing in the repair of microwave ovens, but the employment ended with the company filing for bankruptcy after he was employed there for 3 and a half years.
28In 1997 and 1998, he studied at Bible College hoping to become a minister, although it appears he never did receive his accreditation. He was assigned nonetheless to various churches over the years and retired in his late 50s.
29B.N. reported that he never had issues with drugs or alcohol. This fact was confirmed by his daughter.
30Regarding his sexual experience, B.N. informed his PSR author that he learned from the woman who became his first wife when he was 19 years old. Prior thereto, he had no sexual partners and did not recall receiving sex education in school.
31He expressed no interest in pornography. He denied having any sexual fetishes. He only engaged in “mainstream” sexual activities with his former partners, adding that he felt his sexual needs were met by them.
32He was “unclear” about any sexual abuse he may have experienced as a child although information received in the PSR request stated he was a victim of sexual assault when he was young.
33B.N. was diagnosed with anxiety and major depression disorder with suicidal ideations. He meets with a psychiatric nurse regularly, who under the supervision of a psychiatrist, determines how to manage his care.
34He is in poor physical health and cognitive decline. One of his treating physicians described his mental condition as “mild cognitive impairment”. He also suffered from “stroke and stroke related effects”.
35In addition, B.N. has had a heart attack and two coronary stents were implanted roughly 2 years ago to assist with blood flow. He takes a host of prescription medications to manage his health.
36The PSR author expects that due to B.N.’s failing health, which is occurring at a fairly rapid pace, he will likely be moved soon to a nursing home.
37His mobility is restricted and he uses a walker. He had a recent fall and received 17 stitches to close the wound he suffered to his head.
38In utilizing a “Level of Service/Case Management Inventory” and a “Static 99R” actuarial tool, the PSR author on July 15, 2024 assessed B.N. as a “low risk to reoffend” and at a “very low risk” for sexual recidivism over the next 5 years. Only 1 in 100 sexual offenders with the same Static 99R score (-3) as B.N. would be expected to reoffend within that timeframe.
39Lastly, the PSR author stated that “it will be difficult to formulate a relapse prevention plan that would address any risk of reoffending in the future due to his cognitive limitations”.
Crown’s Position on Sentence
40Crown counsel seeks a period of incarceration of two years plus three years of probation to follow with a focus on preventing B.N. from having any contact in future with M.N. and her family members. But for B.N.’s advancing age and ill health, the Crown would be asking for sentence in the range of 4 to 5 years.
41There is no “current, clear and convincing” evidence to suggest that B.N. would not survive service of the carceral component of the sentence the Crown wishes to have the Court hand down. To the contrary, the current medical information suggests that B.N. has experienced “mild cognitive impairment”, has had coronary stents for the last couple of years and uses a walker for mobility to maintain his balance, so as not to injure himself in a fall.
42Denunciation and deterrence are the salient sentencing principles to be taken into account by the Court. The provision of a conditional sentence ought not to be considered as an option. This is far from the exceptional case where a conditional sentence could be imposed. The moral blameworthiness of B.N., in taking advantage of a vulnerable child as he did, is simply too high.
43The gravity of the offences committed by B.N. demand that the Court’s focus be on the harm caused to the child. Paying lip service to the horror of these types of crimes is not enough. Sentences must increase and trend upward.
44B.N. breached the trust placed in him by M.N.’s parents. The victim was only 7 years of age when the offender seriously sexually assaulted her. He masturbated beside her for his own sexual gratification. He invited her to touch him and perform fellatio upon him. All of this occurred when he was in a caregiving role.
45His medical condition is not a mitigating factor. Rather, the fact that his condition will make custody harder for him than a person in good health should be regarded as a collateral consequence. Simply put, his poor health does not diminish in the slightest his moral blameworthiness.
46In the Crown’s submission, the benchmark decision of the Supreme Court of Canada (“SCC”) in R. v. Friesen, 2020 SCC 9 completely changed the landscape of child sexual abuse law. The SCC could not have been clearer when it stated at para. 5:
[W]e 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 sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
47Further, at para. 107, the SCC enunciated the following three principles to be respected by lower Courts:
We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:
(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;
(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,
(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child.
[48] By way of ancillary orders, Crown counsel submitted that B.N. should: a) be required to comply with the Sex Offender Information Registration Act (“SOIRA”) under s. 487.051(1) for a period of 20 years, b) be prohibited from possessing any weapon or thing as set out in s. 109 of the Code for a period of 10 years, c) provide forthwith a sample of his DNA to the authorities under section 487.051 of the Code, d) refrain from attending within 200 metres of public parks, public swimming areas, daycare centres, school grounds, playgrounds and community centres, and not occupy a position of trust or authority towards persons under the age of 16 pursuant to s. 161 of the Code for a period of 10 years, and e) not have any contact with M.N. or her immediate family members under s. 743.21 of the Code.
Defence Position on Sentence
49Defence counsel submits that the proper range of sentence in the post-Friesen era is from 18 months to 2 years less a day imprisonment to be served conditionally in his community, or alternatively, 6 to 12 months jail. Following service of the imprisonment component of the sentence, B.N. should be placed on probation for three years on appropriate conditions.
50The age and poor health of the offender has to be a significant consideration. To fail to account for it would cause the Court to fall into error.
51Conditional sentences with punitive terms can meet the objectives of denunciation and deterrence which are, of course, paramount for sex offenders whose victims are children. Such sentences are rare and exceptional, but can be imposed in B.N.’s personal circumstances, notwithstanding the seriousness of his crimes. A conditional sentence can still be “just and appropriate”.
52Restraint must be exercised, even if rehabilitation, in light of his declining cognitive abilities, is no longer practical.
53It must be remembered that B.N. is a 77-year-old residing in a home for the aged. His access to children is limited to non-existent. His health is failing fast following a heart attack and stroke. He is prone to falls and needs the assistance of a walker. Furthermore, he poses no real risk to reoffend.
54He endured a difficult childhood. He raised his children as best he could. He is not “all bad”.
55In short, the Court must be mindful of B.N.’s life expectancy and not wish upon him that he breathe his last gasp behind bars.
56Defence counsel took no issue with any of the ancillary orders sought by the Crown.
57Given the likelihood of the imposition of a lengthy sentence for B.N. and his modest means, defence counsel asked this Court to waive the imposition of victim fine surcharges.
Analysis
58In arriving at a fit disposition for B.N., I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.
59B.N.’s sentence must be an appropriate one upon consideration of the circumstances of the offences he committed as well as his personal circumstances.
60Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.
Denunciation and Deterrence
61The principles of denunciation and deterrence are paramount when one sentences an adult who abuses a position of trust and treats a vulnerable child as an object for his or her sexual gratification.
62While I appreciate B.N. is not in need of specific deterrence, given his present state of ill health, I find that nothing short of incarceration will sufficiently deter others from acting as B.N. did. Child molesters must never take comfort in the passage of time. The past can come back to haunt them, when the bravery of victims such as M.N. allows them to come forward and see that justice can be done after a long legal process plays out, as it tends to.
63In R. v. T.J., 2021 ONCA 392, Zarnett J.A. explained:
25Section 718.01 of the Code gives priority to denunciation and deterrence over other sentencing objectives where the offence involves the abuse of children.
26A sentence expresses denunciation by condemning “the offender for encroaching on our society’s basic code of values”; it expresses deterrence by “discouraging the offender and others from engaging in criminal conduct”. Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis, at para. 55.
27The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence”. These other objectives may be given significant weight, but not priority or equivalency: Lis, at paras. 47-48, 53; Friesen, at paras. 101-4.
28As the court in Friesen concluded, prioritizing the objectives of denunciation and deterrence “confirms the need for courts to impose more severe sanctions for sexual offences against children”: at para. 101. That need is directly related to the form of sanction required, as separation from society reinforces and gives practical effect to denunciation and deterrence: at para. 103.
Separation from Society
64Offenders must be separated from society where necessary. Clearly, incarceration must be the penal sanction of last resort.
65Unfortunately for B.N., it is the only sanction, in my view, which can adequately pay respect to the principles of denunciation and deterrence, and which must be reflected in the sentence this Court must craft. A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing as referred to in s. 742.1 of the Code.
[66] I accept the submission of the defence that B.N. would not endanger the safety of his community. However, his unlawful conduct and the harm it caused M.N., her parents, her siblings and her grandmother, B.N.’s former wife, was profound. In her Victim Impact Statement (“VIS”) written with the assistance of her father while she was away, studying at university out of province and trying to focus on her work and healing through therapy she attended, M.N. highlighted the following three devastating effects which B.N.’s crimes had upon her: a) a pronounced difficulty to trust, especially men, in all areas of her life, b) poor self-esteem brought on by keeping the “secret” and blaming herself for what happened, and c) deep feelings of guilt that her silence was wrong; it put an end to her grandmother’s marriage and financially impacted family members who flew to be with her during court dates, paid for therapy fees and experienced their own pain and anguish for not having protected or supported her in her time of need.
67In the VIS of D.G., M.N.’s paternal grandmother and B.N.’s former wife, she explained how she was in shock for days after she was told how her then husband sexually abused their granddaughter. She described herself as being “numb and drained”. D.G. flew to Ontario to be with M.N. and her family. The first two nights D.G. and M.N. spent together, they cried for hours.
68D.G. was also physically affected. She lost 20 pounds. The inside and outside of her mouth was covered with sores periodically over the four years or more since finding out what B.N. did to M.N.
69D.G. suffered periods of insomnia requiring medication to be able to sleep. She also developed anxiety and depression, for which she takes prescription drugs to this day. She fears any form of further contact with B.N.
70As D.G. aptly put it herself:
“Trust issues will haunt us all for the rest of our lives; I feel like I can never fully trust anyone again, as my faith in humanity has been corroded. This was my husband, the person I thought I was closest to in life, who betrayed my innocent granddaughter, me, and all the rest of the family. He took away her innocence at the age of 8, and for years after. I feel so much anger and bitterness towards him, a trained pastor that I thought I could trust, which created a deep struggle for me in my Christian faith.”
Rehabilitation
71There is little hope any institutional programming or assessment, treatment and counselling which can be offered to B.N. in the community can be of benefit to him due to his advanced age and compromised mental faculties. Sadly, that ship has sailed.
Promotion of a Sense of Responsibility and Acknowledgement of Harm
72B.N.’s cognitive decline will likely prevent him from appreciating the horror he visited upon M.N. and those who care about her. Notwithstanding, he ought to have known the damage he was inflicting at the time he committed his crimes. His acts were truly despicable and reprehensible.
73I can only hope that his pending incarceration will offer some acknowledgement of the harm he caused to M.N. and to the community at large.
Aggravating and Mitigating Circumstances
[74] I find the following features of the offences committed by B.N. to be aggravating: a) he abused the trust placed in him by M.N.’s parents and took sexual advantage of an innocent child at a time when he was enlisted to provide her care and comfort (see s. 718.2 (a)(iii) of the Code), b) there were repeated incidents of perversion perpetrated upon M.N. over the course of three consecutive nights, c) he attempted to downplay his moral blameworthiness in choosing to masturbate next to his 7-year-old granddaughter by suggesting in his testimony that she was already aware of what he was doing, as she lived in a household with three other males, d) he engaged in sexual activity with M.N. knowing that she was under the age of 18 years (see s. 718.2 (a)(ii.1) of the Code), e) M.N. was psychologically manipulated by him into keeping his mistreatment of her “a secret”, which in turn caused her significant emotional harm (see s. 718.2 (a)(iii.1) of the Code), and f) as mentioned, his crimes had a deep impact upon M.N. and her family members, which required ongoing therapy for M.N. to be able to cope.
[75] The mitigating factors are as follows: a) B.N. is a first-time offender, and b) B.N. has proven himself to be, for the most part, a hardworking, gainfully employed and contributing member of society for his entire adult life, c) B.N., despite the childhood challenges he faced, went on to become a good provider to his daughter, and likely his son as well, and d) B.N. clearly enjoys the ongoing support of his daughter.
Parity
76Section 718.2 (b) of the Code provides:
“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
The Case Law
77Crown and defence counsel drew my attention to numerous authorities to assist the Court in identifying the appropriate range for the sentence which ought to be imposed in B.N.’s case.
78Below I will refer to several cases which I find to be helpful to my task of arriving at a proper sentence for B.N.
79Defence counsel referred me to two pre-Friesen decisions, one from the Superior Court of Justice by K.L. Campbell J., R. v F.C., 2016 ONSC 6059 and the other from the British Columbia Court of Appeal, R. v. A.E.S., 2018 BCCA 478. I shall deal with both in order.
80In F.C., the offender, the 82-year-old, great-grandfather had the four-year-old victim play a “secret game” with him on May 15, 2012. He touched her vagina with his hand and penis. He also invited her to fondle his testicles.
81The offender had no prior criminal record. According to a letter from his family physician and a psychiatric report filed on the sentencing, he was described as a “simple man of average intelligence” in “frail physical condition”. For over a decade, he also suffered from high blood pressure or hypertension, periodically experiencing chest pain or angina on exertion. He had a “history of poor compliance with medications”. Additionally, he had hearing problems and osteoarthritis in his knees and ankles.
82His family doctor expressed the opinion that he was “not fit to be confined in jail” due to his advanced age and “precarious health condition.”
83Most importantly, on the application to this case on the facts in mine, K.L. Campbell J. observed:
23The personal circumstances of the accused must factor significantly in the sentence to be imposed in this case. Notwithstanding the gravity of his sex crimes against his young great-granddaughter, his productive and nearly crime-free life, very advanced years and his serious ongoing health problems must weigh heavily in the determination of the appropriate sentence. While the upper reformatory custodial disposition sought by the Crown might well be appropriate for other sex offenders committing similar offences, the compelling personal circumstances of the accused require a significant reduction in the custodial sentence that might otherwise have been appropriate. In my view, a sentence of nine months imprisonment gives fair and appropriate consideration to all of those unique personal circumstances, including all of his ongoing health concerns.
24While the accused’s family physician expressed the personal view that the accused was “not fit to be confined in jail,” the evidence adduced at the sentencing hearing in this matter does not support this conclusion. Rather, the evidence supports the conclusion that the medical issues of the elderly accused can be safely accommodated in a number of Ontario correctional facilities. More particularly, the testimony of Mr. Brad Tamcsu, the Deputy Superintendent of Administration at the Toronto South Detention Centre, established that the accused will be well cared-for, medically speaking, if sentenced to any reformatory term of imprisonment. While the elderly accused certainly suffers from a number of serious ongoing health problems, the testimony of Mr. Tamcsu established that, if imprisoned, there will be a variety of nurses, doctors and other health care professionals who will be responsible for all of the accused’s unique health care needs, and who will be well-equipped to meet those needs in a timely way. For example, in his testimony Mr. Tamcsu described the facilities and services available at the “medical housing unit” at the Toronto South Detention Centre, and it was apparent that, if the accused was placed in this unit to serve his sentence, all of his health problems would be fully and adequately addressed. The Toronto South Detention Centre is not, however, the only correctional institution capable of appropriately addressing the health concerns raised by the elderly accused. There are a number of custodial facilities across the province which are similarly equipped to appropriately address the accused’s health concerns and his general geriatric issues.
84I have no doubt after proper classification within the penal system, an appropriate setting for B.N. to serve a period of incarceration will be found for him as well.
85As well, to state the obvious, K.L. Campbell J. did not have the benefit of Friesen before reflecting upon and determining a fit sentence for F.C.
86In A.E.S., the offender was convicted of historic sexual offences against his three daughters between 1969 and 1976. The sexual acts were perpetrated upon the victims some 40 to 50 years into the past.
87The sentencing judge would have imposed a 9 year period of incarceration for the various incidents of sexual touching, but reduced the actual sentence to 6 years imprisonment applying the totality principle, and taking into account the offender’s age, 79, and his poor health.
88At para. 45 of A.E.S., the British Columbia Court of Appeal was clear that fresh, credible, medical evidence admitted on the hearing of the appeal before that Court established that the offender was “gravely ill”, and his life expectancy was “reduced to a median survival of 13 months”.
89By contrast, the evidence placed before me is not nearly as clear. There is simply the secondhand information obtained by the author of the PSR to suggest B.N. experienced “stroke and stroke related effects”, “a heart attack” and “mild cognitive impairment”. There was no prediction as to his mortality from his treating physician, Dr. Aleesha Gilette, or any other health professional qualified to render such an opinion.
90I appreciate B.N. is elderly, in significant mental and physical decline and taking a host of medications, but I have nothing to suggest he will die in jail, if I give effect to the Crown’s position on sentence.
91Lastly, in a post-Friesen decision, R. v. S.E., 2023 ONSC 6259, Rasaiah J. saw fit to impose a conditional sentence for the offender before him, albeit on a vastly different factual scenario. In that case, during the summer of 1994, the offender hired the victim and occupied a position of trust and authority over her. He was her “boss”. She worked under and reported directly to him.
92Over the course of the next two years, while the victim was between the ages of 14 and 16, he had sexual intercourse with her on numerous occasions. Due to the nature of the employment relationship, she could not consent to sexual contact.
93The victim moved away from the town where she had worked with the offender when she was 16 years old. She did not report the sexual exploitation to police until August 16, 2019.
94During the ensuing police investigation, the offender gave a formal statement on October 31, 2019. During this interview, the offender gave a thorough and candid inculpatory statement to police. He admitted to his full sexual history with the victim. He admitted that he was in a position of trust and authority over the victim over the relevant time frame.
95Like B.N., the offender in S.E. suffered an extremely difficult childhood, having been sexually abused by a friend’s uncle, bullied at school, falling into drug and alcohol abuse to cope with his inner pain and then witnessing the death of his father while ice fishing.
96On his way to satisfying himself a conditional sentence would be appropriate for the offender in F.E., Rasaiah J. stated:
73As to whether the sentence should be served in the community, I noted that in R. v. M.M., 2022 ONCA 441, [MM] the Ontario Court of Appeal commented on Friesen and on conditional sentences for sexual offences against children, at paras. 15-16:
15 The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.
16 Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate — for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed. [Emphasis added.]
74I acknowledge that MM unquestionably articulates that conditional sentences for sexual offences against children will only rarely be appropriate and their availability must be limited to exceptional circumstances that render incarceration inappropriate. The question that flows from this articulation is whether there are exceptional circumstances present in this case that render incarceration inappropriate. I further appreciate that there must be an evidentiary basis.
97Addressing what the “exceptional circumstances” were before him, Rasaiah J. observed:
77S.E. on the record before me poses as a low to unlikely risk of re-offending. He comes before the court with no criminal record, a first-time offender, and presenting as having taken steps to better himself. He has worked on his issues with doctors, counsellors, and support groups and is willing to re-engage. He has expressed genuine remorse and has taken responsibility for his actions. He has not downplayed his culpability . . .
78On my assessment, I believe that S.E. will unlikely find himself in a similar position in the future and has truly learned from the criminal justice process.
98To my mind, S.E. is readily distinguishable on its facts from the case before me. While I appreciate B.N., like the offender in S.E., is a very low risk to reoffend, there was little to no appreciation on B.N.’s part for the harm he caused to M.N., nor did he express an ounce of remorse for what he admitted doing – namely – masturbating in bed next to a young child. He does not get it. Sadly, his cognitive impairment brought on by age will likely hinder his ability to take stock of the harm and horror he visited upon his granddaughter, or allow for any real appreciation for his criminal wrongdoing.
99I add as well that the victim in S.E. was roughly twice the age of M.N. Friesen reminds us, younger children are more susceptible to sexual abuse, making those who treat them as objects for their sexual gratification all the more sinister.
100Crown counsel referred me to a number of authorities as well. In R. v. G.R., 2020 ONSC 7411, Bloom J. imposed as the carceral component of his sentence a five and one-half-year penitentiary term, some seven months following the declaration of the Covid 19 pandemic, for a 50 year old man with no criminal record. The offender on three occasions sexually touched the nine-year-old victim, the daughter of his domestic partner at the time.
[101] The touching involved: a) rubbing the child’s vagina having forced her legs open with one of his own, laughing while doing so, and at points, sticking out his penis, b) holding her, manipulating her nipples and placing his lip on her ear, and c) touching her vaginal area under her shorts and underwear, and rubbing his penis against her while it was in and out of his pants.
102In settling upon the five and one-half years, Bloom J. emphasized the tender age of the victim, the multiplicity of the incidents, the aggravating feature of the offender’s role as a caregiver, albeit limited, and the emotional harm caused to the young victim and her mother.
103In R. v. J.C., 2021 ONCJ 7396, my colleague, Masse J. was tasked with sentencing, following trial, a 48-year-old offender with an unrelated criminal record on three counts of sexual interference, and one count of invitation to sexual touching perpetrated against his 14-year-old niece.
[104] The facts involved three instances over the course of a weekend in January 2019 during which the offender: a) slapped his niece’s buttocks, b) gave her a back and neck massage during which he reached under her shirt, unhooked her bra, and touched just beneath her breasts, c) came from behind her, grabbed her breasts under her shirt, groped her vagina and pressed against her while he had an erection, and d) gave her his telephone number and invited her to call him, so they could get together and “fool around”.
[105] At para. 17 of his decision, His Honour distilled a helpful, “non-exhaustive list of significant factors” to be considered in determining a fit sentence in cases of sexual offences against children as follows:
- a. Firstly, the higher the offender's risk to offend, the more the Court needs to emphasize the objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm.
- b. Secondly, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence then an offender who was a stranger to the child. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender's degree of responsibility.
- c. Thirdly, sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility.
- d. Fourthly, the age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthiness of the offender is enhanced in such cases.
- e. Fifth, defining a sentencing range based on the specific type of sexual activity at issue poses several dangers. In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference is less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts.
- f. Sixth, a child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non-resistance should not be equated to " de facto consent"; a victim's participation should not distract the court from the harm that the victim suffers as a result of sexual violence; a breach of trust or grooming that led to the victim's participation is an aggravating factor; and adults always have a responsibility to refrain from engaging in sexual violence towards children.
106Masse J. meted out, in addition to other ancillary orders, a cumulative 44-month penitentiary term for the offences committed in relation to the niece.
107In R. v. Green, 2022 ONSC 3786, Gomery J., as she then was, had before her for sentencing a 51-year-old high school teacher, who sexually touched his 14-year-old student by grabbing her upper thigh, and on another occasion, sliding his hand from her upper chest to her breast.
108At para. 49, Her Honour commented on the head injury, psychotic episodes and thyroid cancer which affected Mr. Green’s health in the two years lead up to the commission of his offences. However, she pointed out that the lack of medical evidence to suggest any connection between Mr. Green’s condition and his offending. Ultimately, Gomery J. imposed a sentence of 18 months imprisonment to be followed by three years of probation.
109In R. v. S.C., 2024 ONCJ 206, my colleague, Fiorucci J., was dealing with a 44-year-old, first time offender, who sexually assaulted and sexually interfered with his 14- and 15-year-old, adoptive daughter. While purportedly teaching her how to drive a car, he would sit her on his lap and he would have an erection. He told her it was caused by a medical condition. On one such occasion, he told her, if she wore a low-cut shirt, it might help. In another instance, he mentioned to her that even though he masturbated before going on the drive, it did not prevent him from having an erection. At one further time, while massaging her foot, he continued the touching almost to her pelvic bone.
110After a detailed review of the applicable Friesen principles, at paras. 36 and 37 of his Reasons for Sentence, His Honour emphasized the “position of trust” the offender occupied vis-à-vis his daughter, and the serious way he violated it. Fiorucci J. also highlighted the “wrongfulness and harmfulness of child sexual abuse” and the high moral blameworthiness which attaches to it.
111His Honour went on to impose a sentence of two years less a day imprisonment to be followed by three years of probation.
112The sentence I impose must, of course, prioritize the high moral blameworthiness of B.N.’s reprehensible conduct in victimizing his 7-year-old grandchild.
A Fit Sentence for B.N. in the Circumstances of the Offences He Committed and His Personal Circumstances
113It warrants repeating that the length of time for which I will incarcerate B.N. must pay adequate respect to the principles of denunciation and deterrence. The impact of his crimes was devastating upon M.N. and her family.
114Upon consideration of all relevant principles of sentencing and their purpose, I shall impose a sentence of two years for the sexual interference with M.N, two years for the sexual assault concurrent and two years for the invitation to sexual touching be served concurrent.
115On February 3, 2022, B.N. pleaded guilty to one count of exposing his genitals to M.N., a person under the age of 16 years, contrary to section 173(2) of the Criminal Code. On this charge, I sentence B.N. to six months concurrent.
116If not for the fact that B.N. is elderly, in failing health and a first-time offender deserving of a measured application of the restraint principle, I would have had no qualms sending him away for a longer penitentiary term.
Conclusion
117Upon assessment of all relevant provisions of the Code, I must incarcerate B.N. for a period of two years going forward from today’s date. I find I can go no lower, if I am to adequately address the principles of sentencing in this case, namely deterrence and denunciation. A conditional sentence would simply not do justice to those paramount principles, nor would a lesser sentence recognize B.N.’s high level of moral blameworthiness.
[118] Upon his release from custody, I shall place B.N. on probation for a period of three years on the following terms: a) report to a probation officer within 72 hours of his release from custody and thereafter as required, b) reside at a residence approved by the probation officer and not elsewhere, c) attend for any assessment and counselling recommended by the probation officer and sign any releases required of him by the probation officer to ensure he is following up on any such assessment and counselling recommendation made for him, d) abstain from any contact directly or indirectly with M.N., her immediate family members, and D.G., his former spouse, e) not attend within 500 metres of their places of employment, schooling, worship, or any other places he knows them to frequent, and f) keep the peace and be of good behaviour.
[119] By way of ancillary orders, B.N. shall be required: a) to comply with SOIRA under s. 487.051 of the Code for a period of 20 years, b) to provide a sample of his DNA to the authorities under section 487.051 of the Code, c) to be prohibited from possessing any weapon or thing as set out in s. 109 of the Code for a period of 10 years, d) to refrain from attending within 200 metres of public parks, public swimming areas, daycare centres, school grounds, playgrounds and community centres, and not occupy a position of trust or authority towards persons under the age of 16 pursuant to s. 161 of the Code for a period of 10 years, and e) to refrain from any contact directly or indirectly with M.N. of her immediate family members and D.G., his former spouse, under s. 743.21 of the Code.
120Lastly, I will waive the imposition of any victim fine surcharge for B.N. I find it will cause him undue hardship to face any type of monetary penalty upon his release from custody, given the significant length of time he is to be incarcerated and the financial struggles he will likely face upon release.
DATED: November 18, 2024
March, M.G., J.