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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2021 06 07 Toronto Region
Between: Her Majesty The Queen
— And — R.A.-M.
Before: Justice L. Feldman
Heard on: Nov. 26, 2020 Reasons for Judgment released on: June 7, 2021
Counsel: M. Mandel, S. Macdonald, for the Crown J. Giuliana, for the accused R.A.-M.
Introduction
1Following a summary conviction trial, I found R.A.-M. guilty of sexual interference and sexual assault of 15-year old J.A. The evidence indicated that on Sept. 2, 2018, J.A. spent the night with the defendant’s daughter, Jo., her friend, in her bedroom, as she had done numerous times before without incident. I found as a fact that R.A.-M. touched the complainant several times for a sexual purpose while Jo. slept beside her.
2More specifically, I found that despite the complainant resisting each time, the defendant was persistent in this behaviour. This included, running his hand up the complainant’s left thigh and touching her buttocks over her shorts; rubbing her back; putting his hand inside J.A.’s shorts up to her buttocks; placing his hand on her back and trying to reach into her shorts, but only getting inside the waistband; then laying down on the bed, putting his leg over her and attempting to put his hand down the front of her pants; and kissing her shoulder.
3Ms. Macdonald asks that I stay the sexual assault charge because of the principle in R. v. Kienapple, [1975] 1 S.C.R. 729. I do so. The Crown concedes that recent authority has determined that the mandatory minimum sentence for sexual interference, set out in Code s. 151, is of no force and effect. These authorities include: R. v. B.J.T., 2016 ONSC 6616, R. v. M.L., 2016 ONSC 7082, R. v. Sarmales, 2017 ONSC 1869, R. v. Ali, 2017 ONSC 4531, R. v. M., 2018 ONSC 746, R. v. Hussein, 2017 ONSC 4202.
Victim Impact
4J.A. did not provide a victim impact statement. However, her sister, K., described the impact on her family, the traumatic experience for J.A., the stress of many court dates and her own loss of work and salary as a result of the need to support her younger sister.
5As well, J.A.’s mother, D., spoke to the effect of the offence on her daughter’s mental state and the sense of violation and betrayal of trust she bears. She is proud of J.A. for reporting this unacceptable behaviour, in this way potentially helping other victims. It is to be hoped that the love and support of this close-knit family will make a difference for J.A. going forward.
R.A.-M.’s Personal Circumstances
6R.A.-M. is 39 and a permanent resident. He has no criminal antecedents. He has been on conditions of release since Sept. 2018. He lives in Scarborough in a rented flat with his wife and two children, ages 17 and 9. Prior to trial, he held two jobs as a cleaner that he lost because of these charges.
7R.A.-M. is the sole support of his family. He is now employed as a sanitation worker for Yessco where he works 7 days a week. Daniel Pereira, managing supervisor at Yessco wrote that R.A.-M. is a hard-working, exemplary and trusted employee. Edison Garcia is a custodian at the Toronto District School Board. He used to work with the defendant and wrote that he would not hesitate to hire him.
8I have reviewed a number of character references from the defendant’s extended family and friends. In essence, they detail a hard-working and otherwise responsible individual whose family is the centre of his life and to whom he is devoted. He has a close relationship with his wife. His children, nieces and nephews consider him generous and caring. John Hunter, Chair of the Toronto School Administrators’ Association, rents a house he owns to the defendant’s family and considers the defendant to be a person of integrity.
Positions of the Parties
9Ms. Macdonald, for the prosecution, submits that both the Criminal Code and the authorities are clear that denunciation and deterrence are the paramount sentencing principles where child sexual abuse is involved, as stated in R. v. Friesen, 2020 SCC 9 at para. 101; see also Criminal Code s. 718.01, the gravity of which generally attracts a custodial sentence. In this case, she points to a breach of trust in behaviour that demonstrated a high degree of moral blameworthiness (Friesen, at para. 88), aggravating factors, both of which tend to favour a lengthier sentence (Friesen, at para. 130).
10Ms. Macdonald suggests a sentence of 9 months, plus 18 months probation, the registering of the defendant’s name for 15 years under the Sex Offender Information Registry Act, that under Code s. 161.1(b) he is not to have employment or responsibility where he is in a position of trust or authority towards a person under 16 years of age, and that a sample of his DNA be taken.
11Mr. Giuliana, for the defendant, submits that a 90-day intermittent sentence, lengthy probation and the above ancillary orders would satisfy the appropriate sentencing principles and protect the public, while at the same time allowing R.A.-M., the sole support of his family, to continue his employment.
The Sentencing Principles
12Courts have evolved in their recognition of the gravity of sexual violation of children and the need for sentences to stigmatize these craven acts, in most cases separating offenders from the community. This was reflected early on in R. v. D.D., [2002] O.J. No. 1061 (Ont. C.A.), at paras. 34-35, where Moldaver J.A., as he then was, emphasized that the inevitable harm from the sexual abuse of children was intolerable and deserving of sanction, and that as a society we must in this way protect our children who are so vulnerable to such harm.
13In 2005, in a legislative response to public concern, Parliament imposed minimum sentences (s. 151 (a) indictable - 90 days; (b) summary - 14 days) for sexual interference of children, exposed to predatory acts and needing of protection, as a signal to trial courts to increase the sentences for these violations by giving emphasis to denunciation and deterrence and treating such conduct as an aggravating factor. This was done through the An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons), S.C. 2005, c. 32; see also Code ss. 718.01 and 718.2(a)(ii.1).
14Subsequent decisions reflect the increased seriousness with which courts view the abuse of children. Non-custodial terms were the exception, but for factors that mitigate an offender’s moral responsibility. See R. v. M.C., [2020] O.J. No. 3226, at para. 14.
15In R. v. Real, 2009 ONCA 912, the accused was convicted after an indictable trial of subjecting a 6-year old child, who lived next door, to four specific incidents of sexual interference over two years. This included touching the complainant’s vagina with his hand under her clothes, in addition to other incidents on numerous occasions specified in the charges.
16Although at the low end of the range, and prior to the imposition of elevated minimum sentences in 2012 (Safe Streets and Communities Act 2012, R.S.C. c-46, para. 11: by indictment – one year; by summary conviction – 90 days), the court did not consider a minimum 90-day intermittent sentence unfit on those facts. Post-Friesen, the aggravating factor of multiple occurrences may have attracted a greater sanction. These facts are referred to in R. v. D.T., 2011 ONCJ 106, at para. 33.
17In R. v. D.T., 2011 ONCJ 106, the 48-year old defendant was the 15-year old victim’s biological father. Thinking she was asleep, he touched and rubbed her breast and nipple under her shirt, then pulled back her pajama bottoms and underpants and rubbed and squeezed her bare buttock. He entered a guilty plea to one count of sexual interference.
18Brown J. viewed this serious breach of trust as an “opportunistic and relatively brief singular assault”. He weighed the aggravating and mitigating factors in sentencing the defendant to a minimum 14 days intermittent, a lenient sentence that in the following year might have been adjusted to more adequately reflect the shift in society’s attitude regarding sexual abuse of children, signalled in the increase in the minimum sentence on summary conviction to 90 days.
19In a summary conviction appeal in R. v. C.L., 2013 ONSC 277, at paras. 88-90, K. Campbell J., although not bound by the elevated minimum sentences in the Safe Streets and Communities Act, proclaimed after the original trial, was surely mindful of the legislative intent to shift the range of sentences significantly higher for s. 151 offences.
20In C.L., the violation of the 15-year old complainant by the 50-year old defendant was not a singular event, but rather involved 4 sexual offences committed in 2 separate incidents over a 2-month period. The initial acts included rubbing the victim’s thighs up to her ‘privates’, continuing to touch her legs and attempting to put his hands between her legs. On the second occasion, the defendant took the complainant to his basement, stroked her back, tried to touch her breasts and legs and attempted to kiss her. All contact was over her clothing.
21Justice Campbell felt this behaviour fell at the lower end of the appropriate range for these types of offences (supra, at para. 89). He was of the view that 90 days intermittent, effectively, the equivalent of the elevated minimum sentence, pending at the time of trial, would best reflect the objective gravity of this behaviour and give primacy to denunciation and deterrence, while at the same time assisting the defendant in his rehabilitation by permitting him to maintain his current employment and continue to support his family (supra, at paras. 86-87).
22In R. v. R.R.F., [2018] O.J. No. 6734 (Ont. C.J.), the defendant was the complainant’s boxing coach. He was 27, she was 14. Her parents permitted him to take her for training in Thailand. On the flight back, he had her put her head on a pillow across his lap. She fell asleep. He put his hand underneath her shorts and cupped her buttocks.
23In sentencing the defendant to 90 days intermittent, Kenkel J. noted the substantial legislative increase in the statutory minimum penalties for the sexual touching of children. He took account of the high degree of trust breached here where the accused chose to become involved with the victim and her family on a personal level, as well as the significant impact the offence had on her. But given the limited nature of the touching, he felt the lenient sentence imposed was proportionate to the gravity of the offence.
24More recently, in R. v. Friesen, 2020 SCC 9, the Supreme Court confirmed that contemporary sentences in cases involving sexual offences against children must reflect the ‘harm’ and the ‘wrongfulness’ of sexual violence to ensure that the sentence also reflects the ‘life-altering consequences’ that often flow from it (supra, at para. 74). The court accepted that offenders will usually have “some awareness of the profound physical, psychological and emotional harm that their actions may cause the child” (supra, at para. 88).
25The court’s assertion of these principles is in line with Parliament’s recognition of the profound harm sexual offences against children cause by legislating, as noted earlier, an increase in minimum sentences and by giving priority to denunciation and deterrence in sentencing (supra, at para. 95).
26The court provided specific guidance in the sentencing of child sexual offenders. First, sentences should increase from prior precedent, and sentencing ranges may be appropriate to achieve a proportionate disposition that balances both the gravity of the offence and the personal responsibility of the offender. Second, sexual offences against children should be punished more severely than adults. Third, sexual interference with a child is as serious as sexual assault of the child (supra, at paras. 75-76).
27However, the court noted that judges need retain the flexibility to do justice in individual cases and to “individualize” the sentence given aggravating and mitigating factors and application of the appropriate sentencing principles (supra, at para. 114).
28In R. v. Lazar, [2019] O.J. No. 1700 (Ont. C.J.), the defendant had been asked by the complainant, K.D.’s father years before to mentor his troubled son, a student at the public school where Lazar was vice-principal. He became a father figure to K.D. This included having K.D. sleep over and exchanging voluminous electronic messages of a personal nature.
29On one occasion, Lazar unbuttoned K.D.’s pants and rubbed his penis over his underwear. Given the long-term, close and dependent relationship, this egregious violation was a serious breach of trust that caused emotional fallout in the victim.
30Justice Latimer rightly described this especially intrusive act by a trusted mentor as abhorrent and condemnable, with potential to cause significant emotional and psychological harm to the victim. He sentenced the defendant to 10 months.
Conclusion
31In the case at bar, I view R.A.-M.’s acts, although persistent over a matter of some minutes, at the lower end of the spectrum of intrusiveness. It was a breach of his obligation to protect, not abuse, J.A. and requires sanction. I am mindful of the signal sent by the elevated, formerly mandatory, minimum sentences.
32The evidence would appear to indicate that the defendant is of otherwise good character, hard-working and reliable, a good father and husband, one who has the support of his family and friends. He has followed the terms of his bail for close to 3 years. His prospects for rehabilitation, although of secondary import, are positive and would be enhanced, in my view, were he able, as the sole support of his family, to maintain his employment.
33I am of the view that in all the circumstances a sentence in the intermittent range would satisfy the appropriate sentencing principles. R.A.-M. will be sentenced to the equivalent elevated minimum sentence of 90 days, to be served on weekends. He will be taken into custody and released later today to return to the assigned institution at 8 p.m. each Friday until 6 a.m. Monday. He will follow that schedule each Friday until the sentence is served.
34I would not give effect to Mr. Giuliana’s request that I reduce this sentence to accommodate pandemic concerns. The court’s experience is that the jails have limited the transmission of Covid-19 by responsible procedures. In addition, I have not been made aware that the defendant’s health is compromised by underlying medical issues. Importantly, where a lenient sentence is imposed, a further reduction because of collateral consequences would render the disposition disproportionate to the gravity of the offence and the responsibility of the offender. See R. v. Morgan, 2020 ONCA 279, at paras. 9-11.
35R.A.-M. will, as well, be placed on 2 years’ probation, the terms of which will be to keep the peace and be of good behaviour; report immediately and thereafter as required; have no contact directly or indirectly with J.A., or any member of her immediate family, nor be within 200 metres of any place he knows them to reside, work, go to school or otherwise be; take any counselling as may be directed by probation services; sign any releases that will permit his probation officer to monitor his compliance; and possess no weapons as defined by the Criminal Code.
36In addition, his name will be placed in the Sex Offender Information Registration Act (SOIRA) SC 2004 for 15 years. As well, under Code s. 161.1(b) he is not to hold any position where he is in a position of trust or authority towards a person under 16 years of age. Finally, he must provide a DNA sample to the appropriate authority.
Released: June 7, 2021 Signed: Justice L. Feldman