WARNING
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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) 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.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
486.6(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.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.
COURT OF APPEAL FOR ONTARIO
Fairburn A.C.J.O., Harvison Young and Favreau JJ.A.
BETWEEN
His Majesty the King
Appellant
and
B.M.
Respondent
Jeremy D. Tatum, for the appellant
Geoff Haskell, for the respondent
Heard: December 23, 2022
On appeal from the sentence imposed by Justice Thomas J. Carey of the Superior Court of Justice on May 26, 2022.
A. Overview
1It is a well-established principle of this court that “[s]exual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless”: R. v. Stuckless (1998), 1998 CanLII 7143 (ON CA), 41 O.R. (3d) 103 (C.A.), at p. 117, per Abella J.A. (as she then was).
2This is a Crown appeal from a conditional sentence. The acts of sexual violence which were perpetrated over a prolonged period of time against the two child victims call out for a denunciatory sentence. Absent limited exceptional circumstances, conditional sentences for sexual offences against children will very rarely be appropriate: R. v. M.M., 2022 ONCA 441, at para. 16.
3In my view, this is not one of those rare, exceptional cases. For the following reasons, I would allow the appeal from sentence and impose a custodial sentence of seven years.
B. Factual Background
4The respondent, B.M., moved to Canada with refugee status when he was 16 years old. As described in the presentence report and the trial judge’s reasons, the respondent was born in “the Congo”. At the age of 5 years old, his family settled in Rwanda.
5After standing charged with these offences for four years, the respondent pleaded guilty to various crimes involving the sexual abuse of two children over a total period of 43 months. He was between 18 and 22 years of age when he committed the crimes. The victims were much younger, the crimes commencing when they were about 12 years of age. The two child victims, I.A. and M.K., lived in the same family household as step-siblings.
6The respondent first came into contact with the victims through I.A.’s father, whom he befriended through their local church. I.A.’s father developed a sexual relationship with the respondent. He eventually invited the respondent to stay in the family home. This gave the respondent access to the children.
7The various acts of sexual interference with I.A. extended over a period of 43 months, beginning when he was 12 years old. I.A. trusted the respondent like a brother, and the respondent taught I.A. about “the Bible and God.” When I.A. was about 12 years of age, the respondent started sexually abusing him. This started with touching and escalated to anal penetration. The respondent anally penetrated I.A. on four occasions. He did not use a condom. I.A. described screaming from the pain on one occasion. I.A. indicated that throughout their relationship, the respondent showed him several videos of adult and child pornography. At one point, I.A. refused to continue any type of sexual intimacy with the respondent. I.A. later found out that the respondent was having sex with his younger step-sister, M.K., because I.A. was refusing to have sex with the respondent.
8A short while after he started sexually abusing I.A., the respondent also started sexually abusing I.A.’s step-sister M.K. This consisted of 20 to 30 incidents of vaginal penetration, again ejaculating each time. M.K. recalled the respondent using a condom only once. The respondent also requested that M.K. send intimate photographs of herself to him, which she did.
9After the children’s mother overheard an inappropriate conversation between the respondent and I.A. and M.K., they both confided in their mother that they were independently involved in a sexual relationship with the respondent. The mother then contacted the police. It was at this point that the respondent, through text message, instructed M.K. to lie to the police and state that they were not having sexual relations.
10The respondent pleaded guilty to two counts of sexual interference nearly four years after his arrest and nearly three years after a preliminary inquiry at which the two children testified.
11He received a conditional sentence of two years less a day, along with two years’ probation, and DNA, SOIRA and weapons prohibition orders.
12For the reasons that follow, the sentencing judge erred in the imposition of this sentence. As I will detail, the sentencing judge fell into error in three central though interrelated respects. First, he failed to give effect to the primary sentencing objectives of deterrence and denunciation in cases involving sexual offences against children. Second, he erred in finding a “significant causal connection” between the respondent’s mental illness and his criminal conduct, a finding based on a misapprehension of the evidence. Third, he elevated the consideration of collateral immigration consequences and the respondent’s rehabilitative prospects above the statutorily required primary sentencing objectives. After explaining these errors, I will consider the appropriate factors in order to fashion an appropriate sentence.
C. Analysis
(1) The sentencing judge erred in principle in failing to prioritize denunciation and deterrence
13The sentencing judge erred by failing to give primary consideration to the sentencing principles of denunciation and deterrence. This offended both s. 718.01 of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”) and R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424.
14Section 718.01 of the Code requires that courts give “primary consideration to the objectives of denunciation and deterrence” when imposing sentence for cases involving the abuse of a person under the age of 18 years. In Friesen, at para. 105, the Supreme Court held that “Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause”, given that “sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms.”
15The court emphasized in Friesen that the expression “primary consideration” in s. 718.01 prescribes a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(a) through (f) of the Code: at para. 102. At para. 104, the court went on:
Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority. However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality. [Emphasis added.]
16The sentencing judge erred by failing to adhere to this clear sentencing principle. The reasons for sentence reveal an erroneous reordering of sentencing principles in a way that clearly conflicts with s. 718.01 of the Code and the Supreme Court’s admonition that it does not fall to judges to reorder what Parliament has already ordered.
17Nothing in the trial judge’s reasons adverts, explicitly or implicitly, to the priority that Parliament has attached to denunciation and deterrence for sentencing the appellant. The reasons for sentence do not make any reference to denunciation or deterrence, except in the context of a quotation from the R. v. Fabbro, 2021 ONCA 494 decision. Yet the analysis in Fabbro, a case involving a firearms offences, is not relevant to this case in that it does not involve the statutory primacy of denunciation and deterrence in offences involving the sexual abuse of children.
18While trial judges are not required to recite well-known sentencing principles by rote in every case, the substance of the sentencing judge’s reasons here do not demonstrate any consideration of the need to denounce the sexual abuse of persons under 18 or to deter the offender and others from committing such offences, let alone the statutory and now common law primacy of that need.
19While the sentencing judge’s reasons correctly noted the impact of these crimes on the victims, and the fact that Friesen highlighted the need for higher sentences in cases of sexual assault of children, at no point do the reasons reflect an understanding of the primary statutory and common law sentencing principles to be engaged with when sentencing child predators: denunciation and deterrence.
20Instead, the reasons for sentence demonstrate a primary concern with the rehabilitation of the respondent, as well as an expressed concern over possible immigration consequences. For instance, in his concluding remarks, the trial judge noted that a psychiatrist report indicated that the respondent needed counselling for his schizoaffective disorder and that it would “be likely that he would not get the counselling treatment and medication he requires, and … his mental health would deteriorate”, meaning his “rehabilitation would be compromised.” Accordingly, the sentencing judge determined:
I am satisfied that the interest of society, in recognizing the harm done on [the respondent] and protecting the public are best served by a two-year conditional sentence that would incorporate regular mental health treatment, as recommended by Dr. Komer. If he fails to follow through with the conditional sentence terms and the terms of the order, he may be breached and put into custody. I am further satisfied on the information that I’ve received, that [the respondent] is likely to be deported if he receives a significant jail sentence. There is information in the file that the Canadian Boarder [sic] Services are aware of this case. I agree with [defence counsel] that a deportation to Africa of [the respondent] would be very dangerous for him, given his sexual orientation and his mental health and is not necessary for the protection of the Canadian public.
21The reasons make clear that the sentencing judge resolved the primary sentencing objective as the protection of the public by rehabilitation. While it was undoubtedly open to the sentencing judge to take the respondent’s mental health and the possibility of rehabilitation into account, it was not open to him to completely ignore the need for a sentence that gives effect to the objectives of denunciation and deterrence.
22Neither the sentencing judge’s reasons, nor the sentence ultimately imposed, gave effect to the sentencing objective of deterrence or of denunciation which are required to fulfill the “communicative and educative role of law”: Friesen, at para. 105. The conditional sentence imposed did not convey that “sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms”: Friesen, at para. 105, quoting from L’Heureux-Dubé J. in R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132.
(2) The sentencing judge misapprehended the evidence on the relationship between the respondent’s mental health and the offences
23The trial judge’s error in failing to prioritize denunciation and deterrence was compounded by his finding that there was a “significant causal connection” between the respondent’s mental illness and his criminal conduct. This finding was not supported by the evidentiary record before the court. Nor was there any evidentiary basis for the trial judge’s finding that the respondent’s treatment needs would not be met in prison. This misapprehension was a material error because the sentencing judge allowed this factor to overwhelm his consideration of denunciation and deterrence in favour of rehabilitation.
24The respondent was assessed by Dr. Komer, a forensic psychiatrist, and diagnosed with a schizoaffective disorder. The assessment was ordered at the request of the respondent’s trial counsel with the consent of the Crown. It was not an NCR assessment. Dr. Komer testified at the sentencing hearing and was the only defence witness called.
25Although the evidentiary record could support a finding that there is some relationship between the respondent’s mental illness and his criminal conduct, it does not go so far as to support the finding that the mental illness constituted “a significant causal connection.”
26Dr. Komer testified that he had found the respondent to have a schizoaffective disorder along with a history of a cannabis use disorder and an alcohol use disorder. He testified that the respondent’s schizoaffective disorder was “ongoing”. When the respondent’s trial counsel asked Dr. Komer whether he was able to form an opinion as to “the likelihood of [the respondent] being in a psychotic state, or in a disturbed emotional state, or psychiatric state while these offences were taking place”, the following exchange took place:
A. I think he was suffering from features of a mental disorder, in — in addition to the problems with alcohol and drug abuse.
Q. And just dealing with the — with the psychiatric disorder, would that have been a contributing, in your opinion, and you’ve spoken to him and assessed all of these reports. In your opinion would that have contributed to his decision making at that time, to participate in these acts?
A. Well, the, the alcohol and cannabis, I think are likely factors. I think at the time, he was going through issues, conflict with his family. He had been not living with his family, he was living with another family and was engaged in a sexual relationship with the father of the victims. And so, I think there was some conflicting situation going on with him and he had difficulty. He wasn’t attending school; he had dropped out of school. So, I think there were — there were certainly problems with his functioning and issues with conflict at the time.
Q. So, but just — and I’m not saying that — that all of these — these — these emotional and psychiatric issues caused him to do that entirely, but would they have contributed to that decision making?
A. Well, I think more indirectly contributed. Like, I — I — in my opinion, I don’t think that there’s a mental disorder that would say, like for someone’s criminal responsibility, I don’t think it affected his appreciation of the nature and quality or knowing wrongfulness. But I think that, you know, his illness was likely active at the time.
27Crown counsel picked this line of inquiry up in cross-examination:
Q. I just want to see if I’m understanding you correctly. In general, you’re saying he did suffer from — he did have some active things he was suffering from at the time of these offences, but you cannot say that they directly contributed to the offences before the court.
A. Correct.
28In re-examination, Dr. Komer again refused to go so far as to acknowledge that the the respondent’s mental health condition had “directly contributed” to the offences:
Q. Okay. But they — while they didn’t directly contribute, they may very well have factored into the conduct, is that fair?
A. It certainly may have. And as I said, I think the alcohol and cannabis use were — were certainly contributing factors and then, I think, just, you know, his desire at that time, he — he was having problems with relationships with his family. He wanted a relationship himself and then he’s — he’s having a relationship with the father. So, there are things going on his life that were problematic for him.
29The trial judge concluded:
I am satisfied that all of the evidence before me including Dr. Komer’s report, the presentence report and other evidence, that there is a significant causal connection between [the respondent’s] mental illness and the offences before the court. He was found fit to stand trial but needs future psychiatric care. [The respondent] appeared to be genuinely remorseful for his actions and noted earlier, Dr. Komer noted his offence behaviour occurred during a time when his psychiatric illness and substance abuse problems were active, and he was experiencing psychosocial stress and conflict in his conclusion. In my opinion, [the respondent’s] risk of recidivism in the foreseeable future is low, should he abide by the above recommendations and have the supportive social network. And to quote,1 “I’m further satisfied that if [the respondent], was sentenced to a period of time in a correction facility or penitentiary he would be — it would be unlikely that he — it would be likely that he would not get the counselling treatment and medication he requires, and the mental health — his mental health would deteriorate. And his rehabilitation would be compromised.”
30The sentencing judge’s conclusion that there was a “significant causal connection” between the respondent’s mental illness and his criminal conduct was not supported by Dr. Komer’s evidence, which was that the respondent’s alcohol and cannabis use were indirect contributing factors. There was also no evidence that “[i]mposing a custodial sentence was likely to have a serious negative effect on the appellant’s progress and would not serve the genuine societal interest”: Fabbro, at para. 27.
(3) The sentencing judge erred in his treatment of the immigration consequences of a custodial term
31In addition, the sentencing judge erred in his treatment of the collateral immigration consequences a custodial sentence would have on the respondent.
32The reasons for sentence indicate that the sentencing judge was concerned with crafting a sentence that would avoid potential collateral immigration consequences. He stated:
I am further satisfied on the information that I’ve received, that [the respondent] is likely to be deported if he receives a significant jail sentence … I agree with [the respondent’s counsel] that a deportation to Africa of [the respondent] would be very dangerous for him, given his sexual orientation and his mental health and is not necessary for the protection of the Canadian public.
33This too was in error. Disproportionate sentences cannot be imposed to avoid collateral immigration consequences which flow from other legislation: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 11-16; R. v. R.B., 2013 ONCA 36, 114 O.R. (3d) 465, at para. 24; R. v. R.L.S., 2020 ONCA 338, at paras. 10-11; R. v. G.F., 2022 ONCA 44, at para. 8. While these considerations may be taken into account, they cannot be applied in such a way as to result in the imposition of a sentence that is otherwise wholly inappropriate in the circumstances: Pham, at para. 15.
34The reasons for sentence indicate that the sentencing judge allowed his concerns about the potential immigration consequences and the respondent’s mental health diagnosis and treatment issues to displace or overwhelm the objectives of deterrence and denunciation. While there is no obligation on sentencing judges to recite well-established sentencing principles in every case simply to recite them, the substance of the sentencing judge’s reasons here reveal error in principle. The absence in the reasons of any explicit or implicit recognition of the primary principles and the emphasis on rehabilitation and possible immigration consequences demonstrate the erroneous approach taken. This approach not only led the sentencing judge into error, but led to a demonstrably unfit sentence.
35For those reasons, I would set aside the conditional sentence and move to resentence the respondent.
(4) A fit and proportionate sentence is seven years of incarceration less time served
36In this court, the Crown seeks a four-year sentence, in part because of the stage at which this matter is now being dealt with. Even so, the Crown acknowledges that this type of offending conduct would typically draw a much higher sentence. Although the trial Crown’s submissions fluctuated on this point, the sentencing judge understood the trial Crown to be asking for a custodial period of five to six years, as reflected in the reasons for sentence. The respondent maintains that a fit sentence is the one imposed: a two year less a day conditional sentence.
37The panel gave notice to the parties that if the appeal were to be granted, the four-year sentence suggested by the Crown on appeal may be considered too lenient. The parties were provided the opportunity to provide further written submissions, which were received shortly after.
38In our view, given the court’s holding in Friesen, and in light of the circumstances of this case, a four-year sentence is too lenient. In particular, Friesen at para. 114 says that mid-single digit penitentiary terms for sexual offences against children are “normal” and that upper-single digit and even double-digit sentences should not be “unusual or reserved for rare or exceptional circumstances.”
39Applying the correct sentencing principles in this case, having regard to the aggravating and mitigating factors engaged, and having regard to the stage at which we find ourselves now, a fit sentence today is one of seven years less time served.
(a) Aggravating Factors
40The aggravating factors in this case are horrific. The respondent stood in a position of trust relative to the children. He was invited to live in their home. All the while, he was having a sexual relationship with their father. This is far from a case in which there was a single occasion of sexual abuse against a single child.
41The respondent was entrusted by the parents with the children. He was entrusted to care for them, mentor and protect them. He was even their religious teacher. The victims were young and vulnerable. The respondent knew their ages. He groomed them as he repeatedly sexually abused them over several years. So effective was his grooming that M.K., the female child, thought that she was in a serious relationship with him and that they would be married one day. She was shocked when she realized that the respondent was also sexually abusing her step-brother.
42The harm to these two separate victims, and their families, was immeasurable. The victims spoke of how the respondent alienated them from their parents. I.A. was anally penetrated on several occasions and spoke of the physical pain he experienced. He described feeling like he had “lost a huge part of myself”. The respondent vaginally penetrated M.K. on 20 to 30 occasions. He ejaculated into both victims on multiple occasions. This led to M.K. having to take blood tests and be vaccinated for sexually transmitted diseases. During the course of the abuse, the respondent also used child and adult pornography to groom I.A. and solicited intimate images from M.K. Finally, the respondent tried to persuade M.K. to lie to the police and deny the sexual abuse.
(b) Mitigating Factors
43At the same time, I recognize that the respondent was a young man when the crimes occurred, commencing when he was 18 years of age but continuing for about four years. He was a first offender at the time of the offences and entered a guilty plea, although only after the victims had testified at a preliminary inquiry.
44As already discussed, the respondent struggles with mental health issues which were indirect contributing factors to the appellant’s criminal conduct. While the mental health issues may be taken into account, they cannot overwhelm the primary sentencing principles of deterrence and denunciation.
45The report also concluded that the respondent appears to be genuinely remorseful for his actions.
46While immigration consequences may be taken into account in fashioning a sentence, such consequences may not overwhelm the appropriate principles and drive the imposition of a sentence that is otherwise inappropriate. In this case, nothing less than a considerable period of imprisonment would be appropriate.
47In these circumstances, in light of the passage of time, and considering the trial Crown’s position at the sentencing hearing, I would impose a sentence of seven years less time served on the conditional sentence.
D. Disposition
48I would allow the sentence appeal, set aside the conditional sentence order and substitute a seven year term of imprisonment less the time served to date on a 1:1 basis. The probation order is also set aside. All other orders remain the same.
49The appellant shall surrender into custody before April 5, 2023, failing which a bench warrant will issue for his arrest.
Released: April 3, 2023 “J.M.F.”
“A. Harvison Young J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. L. Favreau J.A.”
