NOTICE

PURSUANT TO AN ORDER MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE, ANY INFORMATION THAT COULD IDENTIFY ANY VICTIM OR WITNESS UNDER THE AGE OF 18 SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY

Court Information

Date: February 27, 2017

Ontario Court of Justice Old City Hall - Toronto

Between: Her Majesty the Queen And: Lukshithan Krishnanada

Counsel:

• D. Moskovitz, for the Crown
• L. A. Thomas, for the Defendant

Heard: August 22, 2016 and January 30, 2017

Before: Melvyn Green, J.

Reasons for Sentence

A. PREFACE

[1] Lukshithan Krishnanada pled guilty to a single count of sexual interference on August 22, 2016. Sentencing was adjourned on several occasions. Finally, on January 30, 2017, I rendered oral reasons at the end of a lengthy hearing without leaving the bench. In the circumstances, I reserved the prerogative to rework my reasons into clearer and more linear prose than that likely exhibited in my oral judgement.

[2] Having since ordered and read a transcript of my oral reasons, I here exercise the indulgence I earlier granted myself. But for a final "Addendum", the following written reasons echo the findings and closely trace the organization, themes and language of those delivered orally on January 30th. They are also somewhat more coherent.

B. INTRODUCTION

[3] Lukshithan Krishnanada pled guilty to a single count of sexual interference – the offence of sexual touching of a person under 16 years of age, contrary to s. 151 of the Criminal Code. Krishnanada was a 30-year-old first offender at the time. The complainant was only 14. The single illicit act was one of sexual intercourse. It occurred almost two years ago.

[4] Where, as here, the Crown elects to proceed by way of summary conviction s. 151 prescribes a minimum sentence of 90 days imprisonment – which, followed by a substantial period of probation, is the disposition urged by the defence. The Crown position is that a custodial sentence of 18 months, followed by probation, is appropriate – reflecting a sentence close to the carceral maximum of two years afforded by the provision where, as here, the Crown proceeds summarily. In short, the gulf between the Crown and defence sentencing postures could hardly be much greater.

C. THE FACTS

[5] As set out in an Agreed Statement of Facts, on April 3, 2015 the offender Krishnanada and the complainant met by happenstance at the Eaton Centre in downtown Toronto. They exchanged coordinates. They later exchanged a number of text messages. The offender asked the complainant her age. She texted that she was 15. In fact, she was then only 14. The difference between 14 and 15 is of no legal consequence. Either way, consent affords no defence to a charge of sexual interference. However, and as Crown counsel rightly concedes, the offender's erroneous belief that the legal age of consent was 14, and that he made inquiries in this regard, is of some mitigative value. The equation of 14 with the age of consent was once the law of the land, but certainly not at the time of this offence. Nonetheless, if mistakenly, the offender sought to bring himself under the canopy of the law – a motivation that bears on his moral responsibility.

[6] The offender and complainant arranged to hook up the next day, back at the Eaton Centre. Before meeting, the complainant texted the offender and asked him to "bring a condom", which he did. They then went to the offender's house. The complainant wanted to drink, and they did. They also had sexual intercourse. The offender returned the complainant to the Eaton Centre. They parted on amicable terms. Later, the complainant told a member of her family who, in turn, contacted the police. The offender's arrest quickly followed.

[7] The complainant, by way of a detailed Victim Impact Statement, speaks of enduring traumatic effects flowing from the incident. She has taken counselling and her academic career has been affected. Her relationship with her parents has deteriorated to the degree that she has either voluntarily moved out of the family home or been directed to move out. She has, she further says, experienced suicidal conduct and psychiatric interventions. There is no independent or extraneous support for any of the assertions advanced in the Victim Impact Statement. Defence counsel did not expressly object to admission of the Impact Statement but asks that I assess its reliability and weight against the background of the Agreed Statement of Facts.

[8] I accept that the complainant's psychological well-being and academic progress have suffered, as has her sense of self-worth and trust in others. These more general consequences, effectively uncontested, are matters of grave concern. However, I am unable to assess the extent of these adversities or determine to what degree they are directly attributable to the 2015 incident. There are material facets of the Impact Statement that are plainly contrary to portions of the Agreed Statement of Facts. Crown counsel fairly advises that I am to rely on the Agreed Statement of Facts where such conflicts or inconsistencies exist and to gauge the value of the Impact Statement accordingly. In view of the patent discrepancies, and in the absence of any corroboration or supporting documentation, I have real concerns about the reliability of a number of the victim's more dramatic claims. More specifically, I do not accept those of multiple suicide attempts and hospitalizations or those asserting various psychiatric diagnoses. This, to be clear, is not a generic dismissal of such sequelae but a product of my assessment of the tenuous nature of the impact evidence in this particular case.

[9] A Pre-Sentence Report was prepared. It is very positive. The offender presents as a person of good character. Attestations by friends, family and co-workers support this evaluation. The offender has no prior or subsequent conflicts with the law. He has a job, a responsible position. Although employed for most of his adult life, he is for the first time earning a decent wage. He helps support his parents who are now well into their 70s. He had previously lived a fairly sheltered life, at home with his family until his late-20s. His new independence has facilitated his personal insight and maturity, as has the almost two years he has had to reflect on the crime that brings him before the court.

[10] The offender has been on strict bail for most of the 22 months between his arrest and sentencing. Over the first 15 months he was prohibited from possessing a cellphone or computer or participating in any social media but for employment-related purposes. These are severe restrictions of personal liberty and social mobility. But for the reprehensible occurrence in April of 2015, there is no suggestion of anything but socially normative behaviour on the part of the offender. Over the past 22 months he has limited his circle of friends, focused on his health (physical and mental) and refrained from any risk-taking conduct. He enjoys strong community support, as is clear from the letters filed from friends, family and colleagues.

[11] The circumstances of the offender's employment are such that he would lose his job if he missed any substantial period of work or, put in pragmatic terms, if he was sentenced to imprisonment for more than 90 days – the longest term that may be served by way of an intermittent disposition. The circumstances of his employment do not permit him to take a leave of absence. He would, upon his release from prison, be required to seek fresh employment, burdened by the record of this conviction.

[12] The offender acknowledges certain unresolved personal issues. In this regard, the information he exchanged with the author of the Pre-Sentence Report is unusually candid, allowing me to appreciate and accept his expressions of amenability to both counselling and community service. Counsel, as noted, agree that a period of probation should be attached to any sentence of whatever duration.

D. ANALYSIS

[13] Sentencing is an individualized process. It turns on the circumstances of the offender (here, a youthful first offender) and the offence (in this case, a single but very serious offence). No two cases are completely identical.

[14] Persons under 16 are almost inevitably vulnerable, particularly so when faced with adults significantly older than themselves. This was not a level playing field. The complainant may have presented as a willing participant, but she was not in a position to legally consent to the liberties taken by the offender. Further, the offence of sexual interference is particularly egregious where, as here, it consists of an act of sexual intercourse and not merely one of sexual touching, groping, fondling or other less invasive forms of sexual misconduct.

[15] The offender's plea of guilty is here of considerable mitigative value. It is undisputed that the victim (for unverbalized reasons about which I do not speculate) was in a fragile condition as this matter progressed towards a resolution that, from a very early stage, was intended to avoid a contested trial and any unnecessary exposure or testing of the complainant. The same sensitivity to the complainant's condition also helps explain why the Victim Impact Statement, or the victim herself, was not more aggressively challenged by the defence at the sentencing hearing. There were serious concerns about the complainant's capacity to testify at the trial or at a preliminary inquiry. The offender's plea demonstrates his acceptance of responsibility. Based on many supporting materials, it also reflects his genuine remorse for his criminal conduct. His plea further spared the victim having to testify and the related risk of any recurrence or exacerbation of the trauma she suffered. Not incidentally, it also sustained a prosecution that, absent the offender's plea, may well have been jeopardized.

[16] This is not a case of abuse or breach of either trust or authority. This is not a case alleging the use of force or coercion. Nor is this a case of exploitation in the way that word is ordinarily used in our law or in offence provisions in the Criminal Code.

[17] Given what I have learned of the offender, given the time that has elapsed since the index events, given his statements to this court and his several days of presentence custody, and given the sincere efforts he has made to redirect his conduct and his thinking, I am satisfied that there is minimal risk of recidivist conduct. Accordingly, specific deterrence is of reduced importance in the sentencing calculus. However, as in all cases of this genus, there is need to respect the principles of general deterrence and denunciation, factors of primary consideration when dealing with offences such as the one to which the offender has pled: Code, s. 718.01. This undoubtedly explains, at least in part, why Parliament incorporated a mandatory minimum sentence into s. 151. While paying heed to these primary sentencing objectives, I do not neglect the principles of rehabilitation (especially with, as here, a youthful first offender) and restraint. In the end, as in the beginning, every sentencing exercise is grounded in the "fundamental principle" of sentencing, that of proportionality, prescribed by s. 718.1 of the Code: a "sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender". A judge must remain mindful that he or she is sentencing the offender and not solely the offence. As Chief Justice Lamer said for the Supreme Court in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 83, "[p]roportionality requires that full consideration be given to both factors".

[18] In R. v M.B., [2013] O.J. No 3384, at para. 21, Strathy J.A., now-Chief Justice of the Court of Appeal, observed that, "[t]he case law indicates a broad range of sentences for this offence, largely because there are infinitely variable ways in which the offence can be committed and a wide range of offenders". Closely parallel language appears in many of the helpful precedents tendered by counsel.

[19] While I have considered all of these cases, I find the most immediately instructive that of R. v. R.(M.), [2009] ONCA 912, again a decision of the Court of Appeal. The offender in R.(M.) was found guilty of two counts of sexual interference after a trial in Superior Court. Unlike the case before me, the sexual touching did not involve vaginal penetration. Supplemented by counsel's industry in locating the facta filed by both parties on appeal, I understand that the sexual misbehavior did involve digital touching and fondling underneath a child's underpants and underneath her bathing suit on "multiple occasions" – two of which ultimately translated into the two convictions for sexual interference. Touching, even intimate digital touching, and even on multiple occasions, is obviously different, and facially less abhorrent, than vaginal intercourse. But the frequency of M.R.'s misconduct, the extremely young age of the victim (only six when the assaults commenced), the protraction of the sexual predations over the course of a year, the fact that the victim was compelled to testify at both a preliminary inquiry and at trial, and the trust elements of the relationship between the victim and offender suggest an equivalence of immorality between the case involving M.R and the one before me. That the sexual indiscretions in R.(M.) occurred on some occasions while the offender was babysitting the 6-year old victim – and thus constituted breaches of both trust and authority – only further exacerbates M.R's moral transgressions.

[20] The trial judge imposed concurrent sentence of 90 days on the offender M.R., followed by a period of three years' probation, again concurrent. The 90-day sentence was made intermittent. Cross-appeals were taken to the Court of Appeal. The offender's appeal from conviction was dismissed. The Crown's cross-appeal against the sentence was also dismissed. The Court of Appeal held that the sentence imposed at trial was within, if toward the low end of, the appropriate range. I find the case of R.(M.) instructive in fairly disposing of the matter before me.

[21] I bear in mind that a sentence of anything longer than 90 days effectively terminates the offender's job and at least suspends the progress he has made to reform his life and support his parents. In short, there are a number of potential extra-conviction penalties (ancillary or collateral consequences, as the Supreme Court describes them in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R 739) that factor into the crafting of an appropriate and proportionate sentence. There is no one perfect sentence. A somewhat lengthier period of incarceration would also reflect a fit disposition. I am nonetheless satisfied that the minimum sentence suffices to meet all the goals and principles of sentencing in this case, including – given a term of incarceration and an onerous and lengthy probation – those of general deterrence and denunciation.

[22] The offender has served two days of presentence custody which, applying R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, is the equivalent of three days. The offender is sentenced to a further 87 days in custody, to be served intermittently. He is required to serve his sentence every weekend from 7pm on Friday until 6:30 am on Monday until the correctional authorities determine that his custodial sentence is complete. The offender is to be on probation when not in custody until the termination of that custodial sentence, the terms of which are to keep the peace and be of good behaviour, to arrive punctually by 7pm on Fridays, and to arrive in a straight and sober condition. While on that probation, he is not to have any contact or communication with the complainant in this matter or any member of her family. Further, and with the sole exception of his immediate family or a sibling's family, he is not to have any contact by any means with any persons under the age of 18 and known to him to be under that age for any sexual or romantic purpose.

[23] The offender will be on probation for two years following completion of the 90-day intermittent sentence. He is to report to a probation office forthwith upon his release. He is to attend upon his probation officer as required following his initial visit. He is to complete 50 hours of community service at the direction of his probation officer over the course of the first nine months of his probation. He is to sign such releases as may be necessary to permit his probation officer to monitor his attendance and his completion of any community service program. He is to attend for such counselling as directed by his probation officer for matters related to appropriate and inappropriate sexual behavior and respect of sexual boundaries. Again, he is to sign such releases as may be necessary to permit his probation officer to monitor his attendance, progress and completion of any counselling programs to which he is directed. He is not to possess any weapons, as that term is defined by the Criminal Code. As with respect to the probation order that is in place pending completion of his intermittent sentence, the offender is to have no contact directly or indirectly with the complainant or any member of her family. He is also not to have any contact by any means whatsoever with any person he knows to be under 18 years of age, unless a member of his immediate family or a sibling's family.

[24] With regards to ancillary orders, and on consent, the offender is obliged to provide a sample of his bodily substance for the purposes of DNA analysis and archiving. Further, and again on consent, the offender is required to comply with the Sex Offender Information Registration Act (SOIRA) for a period of ten years. The effect of this order to compel the offender to register on a sex-offender registry and be subject to various reporting and monitoring requirements governed by that Act and the relevant provisions of s. 490.001, and following, of the Code. I was inclined to also make a s. 110 order prohibiting the offender from possessing any weapon or offensive device listed in that provision, but as no violence was used, threatened or attempted I do not believe I have the jurisdiction to make such order. In any event, a weapons prohibition forms part of the probation order.

[25] I have considered but decline to make a prohibition order under s. 161 of the Criminal Code. As said by the Supreme Court in R. v. K.R.J., 2016 SCC 31, [2016] S.C.J. No. 31, at para 48, such orders should only be imposed where "there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk". I am not satisfied that "an evidentiary basis" for such order exists in the instant case. In any event, any tangible concerns are, in my view, already addressed through the probation orders imposed on the offender. Combined with the duration of the intermittent sentence, he is required to comply with stringent terms and be subject to community supervision for the entirety of a sentence well in excess of two years. In my view, this provides an adequate measure of public security and protection, particularly as the offender has lived with strict conditions, and without breach, for almost two years while on judicial interim release.

E. CONCLUSION

[26] As set out in these reasons, the offender is sentenced to 87 days imprisonment, to be served on an intermittent basis. This sentence comprehends two days of pre-sentence custody calculated as three days so as to reflect an effective sentence of 90 days, the minimum custodial sentence authorized by s. 151. He is subject to a probation order while not in custody during the course of his carceral sentence and to a further two-year probation order that commences immediately upon completion of his intermittent sentence. He is also subject to several ancillary orders, including those related to the collection of DNA and compliance with SOIRA.

F. ADDENDUM

[27] The Court of Appeal released its Endorsement in the case of R. v. Al-Shimmary, 2017 ONCA 122, on February 13, 2017 – some two weeks after I delivered my oral reasons for sentence. The Court in Al-Shimmary reached a very different result than have I in the Krishnanada matter although, on its face, the two cases appear factually quite similar. To be clear, I would not amend the result in the matter before me even had I the jurisdiction to do so. My reasons, clearly obiter, rest on my comparative review of a more expanded record than that set out in the Court of Appeal's brief Endorsement.

[28] As succinctly put by the Court, Al-Shimmary, "then a 25-year old man, raped an 11-year old girl". Following his plea to, as here, one count of sexual interference, he was sentenced to 30 months (two and a half years) imprisonment. The Crown's appeal against that sentence was successful. The Court of Appeal increased the respondent Al-Shimmary's effective sentence to one of 4 years. As the Crown proceeded by indictment, the penalties imposed, at trial and on appeal, reflect a very different sentencing regime than that at my disposal: a maximum term of imprisonment of 14 years, rather than 2 years, and a minimum of one year rather than 90 days.

[29] On review of the factum filed by the appellant Crown in Al-Shimmary, it is apparent that a number of aggravating features distinguish the fact-pattern in that case from that presented in the one before me. First, the victim was only 11. The offender sought her out. There is no realistic suggestion of any mistake in law or room for a mistake of fact as to the victim's age. Most importantly, as reflected in the Court's Endorsement, is the nature of the sexual assault itself and its impact on the victim. Al-Shimmary physically overcame the victim's persistent efforts to resist him. He forcefully inserted his penis into her mouth and vagina. The act of sexual intercourse was unprotected. The offender struck the victim in her face to silence her when she cried out in pain. Further, there was unqualified evidence of the severe traumatic effects the offence had on the victim, including suicidal ideation, self-harm, hospitalizations on two occasions for weeks at a time, and the administration of various drugs to protect her from the risk of disease and pregnancy.

[30] Other than his plea of guilt, the Court of Appeal's Endorsement is conspicuously silent about any attributes, background or circumstances of the offender that may have been advanced in mitigation. Again, the factum filed by the Crown makes clear that there was very little to commend mitigation. Unlike Krishnanada, Al-Shimmary had a criminal record that included five prior convictions, a history of drug and alcohol abuse, a propensity for aggressive and violent behaviour, and forensically assessed concerns as to prospective dangerousness.

[31] The Al-Shimmary fact-pattern and offender-attributes are very different, and far more disturbing, than those presented by the case of Krishnanada, and the offender's degree of moral responsibility warrants far greater societal opprobrium than in the instant case. Said again, the constellation of sentencing-relevant circumstances and factors before the Court of Appeal in R. v. R.(M.) is far closer and salient to those bearing on the sentencing proceeding before me.

Released on: February 27, 2017

Justice Melvyn Green