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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 Information

Ontario Court of Justice

Date: November 15, 2013

Court File No.: Halton 11-3862

Between:

Her Majesty the Queen

— AND —

R.L.

Before: Justice L.M. Baldwin

Sentencing Submissions heard on: October 28, 2013 and November 14, 2013

Reasons for Sentence released on: November 15, 2013

Counsel:

• H. Apel — counsel for the Crown
• P. Stunt — counsel for the defendant R.L.

BALDWIN J.:

[1] Conviction and Trial History

[1] On August 22, 2013, I released written reasons for judgment finding R.L. guilty of three offences of sexual assault. These findings followed a trial which was heard on September 20, 2012, October 16, 2012, December 5, 2012 and April 30, 2013. The written reasons for the findings of guilt are to be considered as part of these reasons for sentence given today.

Circumstances of the Offences

[2] R.L. was found guilty of sexually assaulting his employee at the workplace on or about December 1st, 2011.

[3] The female employee was 29 years of age at the time. She has a learning disability and she had been placed with R.L. through the Supported Training and Rehabilitation in Diverse Environments Program (STRIDE) starting on November 15th, 2010. This program offers employment supports for individuals who are on Disability Benefits for mental health or learning disabilities. The victim's learning disability is speech and language based. She functions at the level of a 12 or 13 year old.

[4] The victim has trouble focusing on more than one thing at a time. She is easily distracted by noises. She gets over-wrought if she perceives a disturbance in her environment. She cries easily and suffers panic attacks. She is also claustrophobic.

[5] R.L. was 60 years of age at the time of the offences. He owned the business called "O[…]" located at K[…] Street in Oakville where the offences occurred.

[6] The victim's job at O[…] involved putting labels on products and assembling supplement kits. She did not answer the phone because it made her too nervous.

[7] The victim worked part-time on Tuesdays and Thursdays from 10:00 am until 4:00 pm. When she worked at the office, only R.L. would be present.

[8] The sexual assaults occurred during the same day. They included giving the victim a long hug when she walked into work; leaning over her and putting his right hand down her shirt touching her left breast on the nipple and rubbing for less than a minute and kissing her; later he kissed her again and put his other hand down her shirt and touched her right breast; later he undid her shirt, pulled down her other shirt and kissed her left breast.

[9] The victim made immediate disclosure of the incidents to friends and family. She did not return to work.

[10] R.L. tried to arrange to see her socially via a text message he sent to her the next day. The victim had never socialized with R.L. and she did not respond.

[11] In my written reasons for the findings of guilt, I found as a fact that R.L. lost control on the day in question and acted upon his stated "curiosity" to prey upon this vulnerable victim in the workplace.

Exhibits Filed on Sentence

[12] The following exhibits were filed:

• Exhibit #1 – 5 character reference letters
• Exhibit #2 – Pre-Sentence Report dated Oct. 22/13
• Exhibit #3 – Victim Impact Statement prepared by the victim's mother
• Exhibit #4 – Victim Impact Statement prepared by the victim
• Exhibit #5 – Electronic Supervision Program (ESP) Report

Circumstances of the Offender

PSR Information

[13] The offender, now 62 years of age, has no prior criminal record.

[14] He was born in Malaysia. He was educated in England and he has lived in Australia and Hong Kong for periods of time.

[15] He immigrated to Canada in 2000 to become a business man. He became a resident of Canada in 2010.

[16] The offender married in 1977 and divorced in 2006 after a period of separation. This union created three children with whom the offender has not maintained contact since 2005. This family remains in Australia.

[17] The offender has been in an intimate relationship with M.D. since 2003. She has two sons from a previous union who are unaware of these offences.

The offender reported that at the time of the offences, he and M.D. had begun to drift apart and their sexual relations became less frequent. Since the offence, their relationship has improved and she remains supportive of him.

[18] The offender told the author of the PSR that he thought the victim was consenting in this case. He approached her sexually because he was "curious". He did not comment on the impact of his actions on the victim, nor did he acknowledge his position of authority as her employer. The writer of the PSR is concerned about the lack of empathy displayed for the victim.

[19] The offender feels he is not a candidate for any counselling.

[20] Both the offender and M.D. believe the label of "sexual offender" and a custodial sentence would have a "dire" impact on R.L.'s business.

[21] The writer of the PSR recommends counselling in creating and maintaining acceptable boundaries and to appreciate the significance of power differentials between employer and employees.

Reference Letters Information

[22] The five reference letters are written by individuals who have known the offender through work, or as a neighbour or as a social friend. All letters are positive and describe him as respectful, organized, honest, helpful, understanding, caring, kind, prudent, conscientious, hardworking, genuine, and a person with integrity.

[23] It is clear that in other areas of his life, this offender has demonstrated good behaviour.

Impact on Victim

[24] The victim spoke about the effects of this breach of her trust. She is afraid of seeing the offender again. She has had a hard time trusting other people since the offence date. She has trouble going out and feels a loss of self-confidence. She has lost some of her friends. She had a hard time getting another job and worries that future bosses will abuse her.

[25] The victim's mother has written that the family has worked very hard since the victim was 18 months of age to support her learning disabilities. They all worked hard with community supports to encourage the victim to gain some independence in the community based on a faith that people she encountered would recognize her disability and not take advantage of her. The victim's family asks the Court to consider that this offender "coerced" the victim into trusting him for over a year before he abused her trust.

[26] I note that the one-year period to gain trust was, in fact, a grooming period in this particular case.

Position of the Parties on Sentence

Crown

[27] After reviewing all relevant aggravating and mitigating factors in their submission on sentence, the Crown submits that a sentence of jail between 6 to 9 months be imposed. The Crown submits that a conditional sentence in this matter would not address the general deterrents and denunciation principles required in this breach of trust offence.

[28] The Crown is requesting a 2 year probation order, with reporting, counselling and no contact conditions.

[29] The Crown is requesting a SOIRA order for 10 years; s.110 Weapons Prohibition for 10 years and a DNA sample.

Defence

[30] The defence submits that a conditional sentence with ESP monitoring would be a fit sentence in this matter.

[31] The defence submits that the sentence should be less than 6 months and referred the Court to the Immigration and Refugee Protection Act S.C. 2001, c. 2, section 36. Section 36 (formerly section 64) now reads:

36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than 6 months has been imposed.

[32] Defence counsel submits that a jail term greater than 6 months could result in this offender having difficulty remaining in Canada given his immigration status.

[33] The defence submits that the imposition of any sentence will seriously negatively impact the offender's business and his ability to travel in support of that business.

[34] The defence submits that the offences all took place on one day and can be characterized as isolated conduct. Further, the sexual assaults were on the low end of physical intrusiveness.

[35] The defence submits that the SOIRA Order should be less than for a 10-year period (note: no support was offered for this submission).

[36] The defence takes no issue with the proposed probation and the other ancillary orders requested by the Crown.

Cases Considered on Sentence

[37] In submissions, the Crown relied upon the sentencing decision in R. v. Perry, [2012] O.J. No. 5327. This was a sentencing decision of mine released November 9, 2012 concerning an assault and sexual assault by an employer on his employee.

[38] The Crown also relies upon the case law set out at paragraph 42 in those reasons for sentence:

[42] R. v. Perry Barnes (S.C.J.), Justice Bruce Durno, unreported summary conviction appeal decision, Justice Bruce Durno (S.C.J.) released November 8, 2010; R. v. Brent Budarick, 2009 OCA 858 (O.C.A.); R. v. R.A.R., 2000 SCC 8; R. v. Rae, unreported April 19, 2006, Justice F.L. Forsyth (O.C.J.); R. v. Rae, unreported summary conviction appeal decision released May 10, 2007, Justice O'Connor (S.C.J.); R. v. Thiara, [2004] O.J. No. 730 (S.C.J.); R. v. Boudreau, [1996] N.W.T. J. No. 107 (N.T.S.C.); R. v. Racco, unreported April 13, 2012, Justice R. Zisman (O.C.J.); R. v. O.Q., [1997] O.J. No. 5770 (O.C.J.).

[39] In submissions, the defence relies upon the case of R. v. Proulx, 2000 SCC 5 and R. v. W. (L.F.), 2000 SCC 6 in support of the submission for a conditional sentence in this matter.

[40] The defence relies upon the case of R. v. Pham, 2013 SCC 15 with respect to sentencing judges considering collateral immigration consequences as a factor on sentence.

Sentencing Decision

[41] The offender has committed a double breach of trust in this case.

[42] The first breach of trust was sexually assaulting an employee at the workplace.

Section 718.2(a)(iii) of the Criminal Code mandates that this is an aggravating factor on sentence:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

[43] The second breach of trust was sexually assaulting a person he knew had a learning disability which included difficulties with communicating. This is also a mandatory aggravating factor.

Section 718.2(a)(iii.1):

evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[44] As in the Perry decision, I rely upon the Supreme Court's decision in R. v. R.A.R., [2001] 1 SCR No. 163 and find that in the circumstances of this case, a conditional sentence would not address the objectives of denunciation and deterrence that are required.

[45] This offender has no insight into his offending behaviour. He has shown no empathy to the victim. He has not engaged in any rehabilitative programming to address future risk of like offending. Throughout the trial and during the PSR preparation he rationalizes that he behaved this way because of "curiosity" and maintains that he thought this victim was consenting. His refusal to characterize his offending behaviour as a sexual offence, or even as behaviour of any concern, makes the need for specific deterrents high in this case.

[46] Accordingly the sentence is one of 90 days jail concurrent on all three counts. I will permit the offender to serve this sentence intermittently if that request is made.

[47] Probation will be for 2 years with conditions as follows:

• Report as directed;
• Have no contact directly or indirectly with the victim or any member of her family;
• Not to be within 500 metres of her residence, place of employment, education, worship or any other place you know her to be;
• Attend and participate in all assessments, counselling and treatment as directed by your probation officer and sign consents so that can be monitored;
• Keep the peace and be of good behaviour.

Ancillary Orders

[48] SOIRA Order for 10 years; s. 110 Order for 10 Years; DNA sample ordered.

[49] The Victim Fine Surcharges will be $100.00 for each of the three counts. Time to pay will be granted if that request is made.

Released: November 15, 2013

Signed: "Justice L.M. Baldwin"