Court of Appeal for Ontario

Date: 2024-12-19 Docket: C70743

Judges: van Rensburg, George and Gomery JJ.A.

Parties

BETWEEN

His Majesty the King Respondent

and

T.J.W. Appellant

Counsel

T.J.W., acting in person Dan Stein, appearing as duty counsel Kevin Pitt, for the respondent Crown

Heard: December 5, 2024

On appeal from the conviction entered on January 5, 2022, and the sentence imposed on May 12, 2022, by Justice Russell M. Raikes of the Superior Court of Justice.

Reasons for Decision

[1] T.J.W. seeks to appeal his sentence on two counts of sexual interference. He received a sentence of five years on each count, to be served concurrently.

[2] The complainant is the appellant’s niece. The trial judge found that the appellant regularly touched her thighs, vagina, breasts, and buttocks for a sexual purpose when she was between 8 and 12 years old. Knowing the complainant was vulnerable because of a difficult home life, the appellant groomed her by singling her out for attention, talking to her about sex, and wearing only underwear or nothing at all when they were alone together at her grandmother’s residence. The appellant was 59 to 64 years old at the time. He was charged ten years after the offences took place.

[3] The appellant argues that the trial judge erred in two ways: first, by failing to identify the appellant’s age as a mitigating factor and, second, by giving insufficient weight to this and other mitigating factors.

[4] On the first ground, the appellant contends that the trial judge erred in principle by failing to consider how a penitentiary sentence would impact the appellant given that he was 76 years old at sentencing.

[5] We do not agree that the trial judge erred as suggested.

[6] The trial judge was aware of the appellant’s age. In describing the appellant’s circumstances, it was the very first fact he mentioned. In considering cases relied on by the Crown, the trial judge noted that R. v. N.F., 2016 ONSC 5607 involved a 74-year-old offender who received a three-year sentence for the sexual interference of his granddaughter. During sentencing submissions, in reaction to the Crown’s request for a 20-year prohibition order under s. 161 (a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46, the trial judge noted that “[The appellant] is 76 that would mean he’s 96 before, so it is for life for all intents and purposes.” He nonetheless granted a 20-year prohibition.

[7] The appellant relies on cases such as R. v. Premji, 2021 ONCA 721, R. v. Laforme, 2022 ONCA 395, and R. v. Kennedy, 2024 ONSC 1741. In each of these cases, the offender’s advanced age was explicitly identified as a mitigating factor in sentencing. We are not persuaded that the trial judge erred in failing to do likewise here. Defence counsel did not argue that the appellant’s age was necessarily a mitigating factor nor that he had health conditions that could not be treated in prison. Nor was this a case, like Kennedy, where the defence filed evidence about the potential impacts of a custodial sentence on the offender due to their age.

[8] Had defence counsel asked the trial judge to take judicial notice of data from Statistics Canada about average life expectancy, as suggested on the appeal, it would have revealed that, in 2022, the remaining average life expectancy for a 76-year-old Ontario man was 11.4 years. [2] Recognizing that this statistic is subject to adjustment for individuals in the penal system, we nonetheless cannot conclude that the sentence imposed “so greatly exceeds [the appellant’s] expected remaining lifespan that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value”: Premji, at para. 3, citing R. v. M (C.A.), [1996] 1 S.C.R. 500, at para. 74.

[9] Turning to the second ground, we do not agree that the trial judge failed to give appropriate weight to other mitigating factors.

[10] The trial judge recognized as mitigating factors the support of the appellant’s family, his history of caring for loved ones in their time of need, and his track record for giving back to his community. He acknowledged that the appellant’s overall history was difficult to reconcile with his conduct towards the complainant, but concluded that a conditional or intermittent custodial sentence, as proposed by the appellant, “would not … adequately recognize the profound harms his niece has suffered and will continue to suffer from his abuse.”

[11] We are satisfied that the trial judge gave due weight to all relevant factors in determining a fit sentence. He held, correctly, that the primary sentencing objectives in the case were denunciation and specific and general deterrence. He found the appellant’s moral blameworthiness to be “very high”, given that the appellant abused a vulnerable young girl’s trust and used her for his sexual gratification many times over a lengthy timeframe. As the appellant himself concedes, the five-year global sentence falls within an appropriate range based on sentencing principles in the Criminal Code and in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424.

[12] The appellant also filed a notice of appeal of his conviction but abandoned it at the appeal hearing. As a result, while we grant leave to appeal the sentence, we dismiss both the sentence appeal and the conviction appeal.

“K. van Rensburg J.A.”

“J. George J.A.”

“S. Gomery J.A.”

Footnotes

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Statistics Canada, “Table 13-10-0837-01 Life expectancy and other elements of the complete life table, single-year estimates, Canada, all provinces except Prince Edward Island” (last modified December 10, 2024), online: https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=1310083701&pickMembers%5B0%5D=1.6&pickMembers%5B1%5D=3.2&pickMembers%5B2%5D=4.8&cubeTimeFrame.startYear=2022&cubeTimeFrame.endYear=2022&referencePeriods=20220101%2C20220101.