Notice Regarding Publication Ban

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 05 13 COURT FILE No.: Guelph 19/1796

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.H.

Before: Justice M.K. WENDL

Heard on: March 8, 10, 11, December 6, 2021 and April 29 2022 Reasons for Sentence released on: May 13, 2022

Counsel: M. Dolby, for the Provincial Crown D. Doney, for R.H.

Endorsement

WENDL J.:

[1] R.H. was found guilty after trial (R. v. R.H., 2022 ONCJ 64) of sexual interference. The charges of sexual assault and invitation to sexual touching were stayed pursuant to the Kienapple principle. I found that R.H. made the victim touch his penis over his clothes. The Crown is seeking a jail sentence of 2 years plus ancillary orders. The defence argues for a conditional sentence.

Background

[2] R.H. is 44 years old. He has no criminal record. The pre-sentence report indicates a generally positive upbringing. Currently, he is gainfully employed and supports his spouse both financially and physically. She has ongoing health concerns. R.H. indicates in the pre-sentence report that he struggles with mental health issues due to the charges before the Court.

[3] R.H. provided numerous support letters. Significantly, and somewhat surprisingly, given R.H.’s testimony at trial and his statement of innocence in the presentence report, all the letters indicate that he is remorseful for his actions. His aunt states that the day she was informed of the incident she saw a very remorseful person. Another long-term friend indicates that “he has shown severe remorse for what has happened, he has shown dedication for improvement, and he has shown trust that this would never be a circumstance that would happen again.” His uncle writes that “[R.H.] exhibited a serious lack of judgment and is filled with remorse. I truly believe he understands the seriousness of the situation and the life long consequences that follow.” His parents write “after learning about the transgression, [R] called us and expressed much remorse over the incident. We were extremely shocked as this was so much out of his character for the person we knew and raised. In the following weeks we saw an incredibly remorseful individual. The incident is something that will haunt him for the rest of his life.” The final letter is from a friend who indicates “while it is unfortunate, he made a bad decision that has led to this case. I am not surprised that [R.H.] has shown remorse and has accepted responsibility for those actions.”

[4] Given these letters and his protestations of innocence, the Court asked counsel for clarification. In response it was provided with a letter from R.H. himself. In that letter R.H., reversing himself from his testimony at trial, has fully accepted responsibility for his actions and acknowledged his guilt.

Victim Impact Statements

[5] Six victim impact statements were filed by M.C.’s family.

[6] The victim’s mother, C.B., writes how the offence left her with the feeling that she failed to protect her daughter. Both her and M.C. have developed separation anxiety. C.B. is constantly worrying when M.C. is not with her. C.B. details the emotional toll the offence has taken upon her and her daughter. Both suffer from nightmares and M.C. acts out in school. C.B. further writes that M.C. does not trust men and has begun wetting the bed. The offence has also affected C.B.’s ability to maintain employment. As she put it succinctly, “the cost of your actions has been all encompassing-mental, physical, emotional.”

[7] M.C.’s father describes how this event has shattered the trust in the family. He states: “you destroyed any semblance of the word FAMILY in my eyes. I can’t trust my mother who constantly defends your actions.” He also describes feelings of having failed his daughter. He states that because of this incident M.C. is withdrawn and she has difficulties regulating her emotions.

[8] M.C.’s grandmother details how M.C. is on medication and, instead of participating in after school activities like other kids, she has to attend counselling and doctor’s appointments. She further confirms that M.C. has not forgotten this incident.

[9] T.S., M.C.’s step grandfather, as in the other statements, highlights the toll the Court process took on the family, and he speaks to the impact this event has had on his wife, MC.’s maternal grandmother.

[10] J.B., her grandfather, also describes feeling that he failed to protect M.C. and as a result, J.B. is now taking medication. He also writes about the nightmares M.C. is having and her troubles at school. Just like the others, J.B. describes how this act has fundamentally affected every aspect of their family’s lives.

[11] Finally, V.C., the victim’s aunt, also details the significant impact the offence had on her and the family as a whole.

Law and Analysis

[12] The Supreme Court in Friesen clearly and unequivocally sent a message to trial and sentencing courts that sentences for sexual offences against children must increase:

we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. (at para. 5)

[13] The Court notes that the increase in the maximum sentences for these offences was a clear signal from Parliament that stiffer sentences are warranted. This position is also reflected in the fact the denunciation and deterrence are statutorily prioritized under section 718.01 for sexual offences against children. Ultimately, protection of children is one of the most fundamental values of Canadian society. (at para. 65)

[14] The court in Friesen delineated the approach to sentencing sexual offences against children. Sentencing courts should not only focus on the physical harm, but also on the psychological and emotional harm cause by these types of offences:

This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72, “may often be more pervasive and permanent in its effect than any physical harm” (p. 81). (at para. 56)

[15] Taking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can flow from sexual violence. These harms should be weighed in a manner that reflects Society’s deepening and evolving understanding of their severity. (at para. 74)

[16] In approaching sentencing, judges must consider the actual harm that the specific victim has experienced. Consequential harm is a key determinant of the gravity of the offence. The Supreme Court notes that direct evidence of actual harm is often available through victim impact statements, including those presented by parents and caregivers of the child and is usually the “best evidence” of the harm that the victim has suffered. (at para. 85)

[17] Courts must also consider the reasonably foreseeable potential harm that flows from the offence when determining the gravity of the offence, since in many cases it will be impossible to determine whether these forms of harm have occurred by the time of sentencing. The Supreme Court directs that even if an offender commits a crime that results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence. (at paras. 83-84)

[18] The Supreme Court notes some of the effects that sexual violence can have on children:

• interference with the healthy development of children
• damage relationships between family members
• further traumatize the victim by family members taking the side of the perpetrator and disbelieving the victim
• a loss of trust in the community generally and people specifically
• destroying parents’ and caregivers’ trust in friends, family, and social institutions, leaving them feeling powerless and guilty (at paras. 51-64)

[19] That being said, the fact that the victim is a child carries in and of itself a high degree of moral blameworthiness:

The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 153). As L’Heureux-Dubé J. recognized in R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, “As to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions” (para. 31, quoting R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115 (N.L.C.A.), at para. 117, per Cameron J.A. (“L.F.W. (C.A.)”)). Offenders recognize children’s particular vulnerability and intentionally exploit it to achieve their selfish desires (Woodward, at para. 72). We would emphasize that the moral blameworthiness of the offender increases when offenders intentionally target children who are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society. (at para. 90)

[20] While declining to impose a starting point for sexual offences against children (at para. 106), the Supreme Court did set out a series of factors to assist:

(a) likelihood to reoffend (b) abuse of a position of trust or authority (c) duration and frequency (d) age of the victim (e) degree of physical interference (f) victim participation

[21] In relation to the likelihood to re-offend, R.H. denied committing the offence at trial and stated his innocence in his pre-sentence report. However, on his sentencing date he accepted full responsibility for his behavior. In my view, despite his misleading of the court in his testimony, the acceptance of guilt, even at this belated point, demonstrates the first step towards insight into his behaviour and the impact it has had on others. It is also the first step towards closure for the family. This reveals some potential for rehabilitation. That being said, given the belated acceptance of responsibility, I have no evidence of any steps he has taken towards rehabilitation.

[22] R.H. was in a clear position of trust in relation to M.C. He was effectively her grandfather. This offence has impacted M.C.’s ability to trust. In fact, it has impacted the whole family’s ability to trust and caused strife between M.C.’s father and grandmother (R.H.’s wife). This militates in favour of a lengthier sentence. (at para. 130)

[23] With respect to duration and frequency, I can only conclude, given the evidentiary foundation of this case, that M.C.’s touching of R.H.’s penis occurred only once.

[24] M.C. was 4 years old at the time of the offence, which is significantly aggravating. As the Supreme Court stated:

The age of the victim is also a significant aggravating factor. The power imbalance between children and adults is even more pronounced for younger children, whose “dependency is usually total” and who are “often helpless without the protection and care of their parents” (R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 66). Their personality and ability to recover from harm is still developing (Renaud, at § 12.64; L. (J.-J.), at p. 250). Moreover, children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life.

[25] Regarding the degree of physical interference, the incident involved touching over the clothes. However, the nature of the physical interference is not determinative of the characterization of the offence:

Specifically, we would strongly caution courts against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation. There is no basis to assume, as some courts appear to have done, that sexual touching without penetration can be [translation] “relatively benign” (see R. v. Caron Barrette, 2018 QCCA 516, 46 C.R. (7th) 400, at paras. 93-94). Some decisions also appear to justify a lower sentence by labeling the conduct as merely sexual touching without any analysis of the harm to the victim (see Caron Barrette, at paras. 93-94; Hood, at para. 150; R. v. Iron, 2005 SKCA 84, 269 Sask.R. 51, at para. 12). Implicit in these decisions is the belief that conduct that is unfortunately referred to as “fondling” or [translation] “caressing” is inherently less harmful than other forms of sexual violence (see Hood, at para. 150; Caron Barrette, at para. 93). This is a myth that must be rejected (Benedet, at pp. 299 and 314; Wright, at p. 57). Simply stating that the offence involved sexual touching rather than penetration does not provide any meaningful insight into the harm that the child suffered from the sexual violence.

Third, we would emphasize that courts must recognize the wrongfulness of sexual violence even in cases where the degree of physical interference is less pronounced. Of course, increases in the degree of physical interference increase the wrongfulness of the sexual violence. However, sexual violence against children remains inherently wrongful regardless of the degree of physical interference. Specifically, courts must recognize the violence and exploitation in any physical interference of a sexual nature with a child, regardless of whether penetration was involved (see Wright, at p. 150). (at para. 144)

[26] In this case, while the assault did not involve penetration, the impact or the harm to M.C. has been significant. She has problems at school; she attends counselling instead of dance class; she has nightmares, separation anxiety from her mother, and trust issues. I must also consider the future potential harm to her. First, children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another. Second, children may be more prone to engage in sexual violence against children themselves when they reach adulthood. Third, children are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adult. (at para. 81)

[27] Finally, in my view, the sixth criteria, the victim participation does not apply to this case.

[28] Considering all the applicable criteria leads me to conclude that a lengthier sentence for R.H. is appropriate. He was in a position of trust. M.C. was 4 years old at the time. While the act itself was touching over the clothes, it is clear from the victim impact statements that this incident has had a profound impact or harm upon M.C. and her family.

[29] The mitigating factors are his supportive family, that he has been consistently employed, supports his spouse, has no criminal record and the belated acknowledgment of guilt. I note here that the acknowledgement of guilt is attenuated by his having misled the court at trial.

[30] Ultimately, I agree with the sentence requested by the Crown. The conditional sentence as requested by the defence is simply not acceptable. It has long been repeated by the Court of Appeal, even prior to Friesen, that a conditional sentence should rarely be imposed in cases involving sexual offences against children. (R v DR, [2003] OJ No 561 at para 8 (ONCA)). I would also note that 2 years was the sentence imposed by the Court of Appeal in J.T., 2021 ONCA 392, a case with similar factual circumstances. In J.T., the accused was convicted with having a 6- or 7-year-old girl, his son’s friend, touch his penis. He then invited her to perform fellatio at which point she pulled away and left the room. In J.T. the accused had no prior criminal record, he was a devoted father, and had the support of his family. I am of the view that the case at bar is slightly more aggravating given R.H.’s position in the family and the detrimental impact this offence has on the family relations as a whole.

[31] I impose a sentence of 2 years less a day, 3 years probation, a 161 order, DNA, SOIRA order and 110 order.

Released: May 13th, 2022 Signed: Justice M.K. Wendl