Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 07 04 COURT FILE No.: Region of Niagara: 998 20-S3428; 998 21-S0761

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

H. (P)

Before: Justice J. De Filippis

Heard on: April 11, 27 and June 9, 2022. Reasons for Sentence released on: July 4, 2022

Counsel: Mr. M. Sokolski, counsel for the Crown Ms. B. Sandulak, counsel for the accused

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 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.

Reasons for Sentence

De Filippis, J.:

[1] The defendant was charged with several offences involving the sexual abuse of two girls. The defendant was a friend of the parents of these children. He committed the offences while visiting at their home and cottage. One of the victims had previously reported the abuse to the police. That investigation was closed without charges being laid. Years after the last criminal act by the defendant, he sent an apologetic email to the parents of one of the victims disclosing that he had acted inappropriately toward their daughter. The police were called, and the previously closed investigation was also re-opened. The defendant confessed to these crimes and later pleaded guilty before me to two counts of sexual interference.

[2] The offence with respect to JM occurred between January 1, 2011 and December 31, 2016. The defendant visited her family home several times a year for a short period of time. On one such occasion, when JM was six or seven years old, the defendant invited her to sit on to his lap. He reached up JM’s skirt and rubbed her vaginal area, over top of her underwear. While doing this he would whisper and laugh, asking if she liked it. This lasted approximately a couple minutes and he stopped when someone entered the residence. This type of sexual interference occurred on other visits by the defendant until JM was eleven or twelve years old.

[3] The offence with respect to HW occurred between January 1, 2010 and December 31, 2010. During this time, the defendant visited her family at their cottage. She was six years old. The defendant invited HW to go up to the "bunkie" in a separate building. The defendant closed the door and blinds. He told HW not to say anything; he undressed himself and her. He laid the girl on the bed, moved her legs, and touched her vagina. After this, they got dressed. Similar acts of sexual interference happened on several other occasions at her family home.

[4] Among the comments made to me by JM are these:

….it’s like a bad dream but I never wake up from it and it repeats every day. I never seem to escape that dream, every time someone talks it’s like they’re talking through me, anytime someone looks at me it’s like they can’t see me but see what I’ve been through or have seen in my life. I never thought that a child could have their happiness taken away like that in such a fast period. I always look back and say “look how happy I was” but in reality I know that I felt gross with myself, I hated myself knowing that I let that happen and let myself be in that situation…I’m stuck in this big pit of quicksand of my past…. I’m trying so hard to bury this disgusting thought. I feel like I’m never going to be the same ever again, like I’m always going to feel like I have to be clean all the time having to take boiling showers to wipe away where you touched having to constantly remind myself that I’m not that person anymore….

[5] The mother of JM added the following:

….For years our daughter was mentally and emotionally struggling…. Talking about killing herself…. The hardest part was that she could not or would not tell us why she was afraid. She had a horrible secret that she was keeping inside. One that she felt ashamed of. One that made her feel like she was not human. A secret that made her feel like she was at fault and did not deserve to be here…..A home was not supposed to have danger brought into it. This made us question our abilities as parents. Did [she] blame us for her getting abused. Did she blame us for not protecting her? Is this the reason she felt she could not tell us this horrible truth? Was it our fault?....Today would have been my husband[’s] 53rd birthday. He is not here to see this. [He] passed away feeling as if he had not done his job as a father….Hopefully he is watching and is learning that we will heal from this. Starting today….Today the court will decide the fate of someone who chose to do harm to a child. We, as a family will decide that we will not be forever a victim of that person. [JM], myself and her siblings will decide to be better. To help each other through the tough, dark times. That’s what we can and will control.

[6] Among the comments made by HW are these:

….I didn’t have a childhood. No. You stole that from me…..The worst part is I didn’t even blame you. I blamed myself. I locked myself in the bathroom making myself bleed because I thought I deserved it.….I didn’t have a high school experience. I spent my high school days in psych wards, on suicide watch, on 1:1s with nurses who thought I was crazy because they couldn’t figure out what was wrong. I spent it on crying phone calls with my mom begging for her to come pick me up “I won’t do it again mom I promise. I don’t want to die mom I promise” The truth is I didn’t wanna die even though I tried multiple times to take my own life. I didn’t wanna die I just wanted the pain to stop, the pain you inflicted on me, the pain you didn’t even think twice about….I don’t know my younger self; you stole her from me and I don’t feel like I’m her anymore. I’m a shell of a person trapped in a nightmare; you stole my life from me..…Reliving what I went through at the time felt like the worst thing I could ever do. But it wasn’t, the worst thing I could do now is to sit back and not say anything at all.... So I'll make this clear: I'm not a toy. My mind and body are not your playground, and my life is not your game. Even if you don’t get the sentence I believe you deserve, at least I know I was present and was part of this process. Nothing will ever be enough to justify what you did.

[7] The defendant is 72 years old. He is a retired engineer who works part time for the Ontario Federation of Anglers and Hunters. He is in poor health, but the medical difficulties are not life-threatening. He does not have a prior criminal record.

[8] The cardinal principle of sentencing is proportionality. This means that the severity of a sentence will depend on the seriousness of the offence (and its consequences) as well as the moral blameworthiness of the offender; see R v Lacasse 2015 SCC 64. Personal circumstances are relevant in determining proportionality considering the seriousness of the offence, but they do not alter the seriousness of the offence: see R v Schofield [2019] B.C.J. No. 22 (BCCA).

[9] Since this offence involves the abuse of a person under the age of 18 years, I must give primary consideration to the objectives of denunciation and deterrence. In applying these principles, I am guided by the decision, of the Supreme Court of Canada, in R. v. Friesen, 2020 SCC 9.

[10] In Friesen, the Court provided comprehensive guidance to lower Courts with respect to sentencing in cases of sexual interference. These are the four messages that I take from Friesen: (1) Protecting children from wrongful exploitation and harm defines the legislative scheme of sexual offences against children; (2) Understanding this wrongfulness and harm is the critical duty of sentencing judges: (3) The performance of this duty means that those who commit this offence will usually go to jail; and (4) Exceptional circumstances, that justify a non-custodial sentence, are those that mitigate an offender’s moral responsibility, such as mental or cognitive disabilities.

[11] There is no controversy about the seriousness of these offences. The Crown and Defence also agree that the offender’s personal circumstances are mitigating; namely, his age, health issues, lack of a prior criminal record, and – especially – his disclosure of the crimes. Counsel jointly submit that incarceration is required, followed by a lengthy period of probation. Where the parties part company is whether the incarceration should be served in jail or in the community, by means of house arrest. The Crown argues that, in this case, proportionality means two years, less one day, in jail. Counsel adds that but for the fact that his self-reporting brings him to Court, a penitentiary sentence would be called for. Defence suggests that the maximum conditional sentence of house arrest is a measured response to the offence and offender. In this regard, Defence counsel stated that her client is “overwhelmed by guilt and wanted to come clean to shift the blame from the victims to himself”.

[12] If the defendant had not come forward to admit his misconduct, he would likely have never been charged. With his confession, his crimes have been brought to light and the reason for the victims’ suffering is exposed – there is a cause and a culprit, and they are not to blame. The defendant’s admission does not diminish the seriousness of the offences, but it is a unique circumstance. The issue to be decided is how this circumstance affects the sentence.

[13] Recently the Court of Appeal for Ontario said the following, in R. v. M.M., 2022 ONCA 441:

[15] The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. Page: 6 (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.

[16] Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.

[14] Notwithstanding the strong language in R v M.M., I thought there might be a compelling argument to justify a conditional sentence in this case; not merely because an elderly, first offender, with health issues, pleaded guilty – but because of the additional fact that the defendant’s disclosure makes him accountable and recognizes the victims. However, having received the victim impact statements, I conclude that a conditional sentence is not appropriate.

[15] The victims no longer suffer in silence and secrecy. This may allow them, and their families, to heal. For this, the defendant deserves credit. Nevertheless, the road to recovery will be long because the victims remain in pain. This was tearfully and forcefully conveyed to me by their statements. What they said underscores the message in Friesen; those who sexually interfere with children gratify themselves at the expense of the future of their victims and those around them. The sentence must reflect this wrong and this harm.

[16] Friesen is clear; jail for sexual offences against children is now the norm. In my view, the unique circumstance in this case does not displace jail; it is properly reflected in the length of custody. The defendant’s voluntary disclosure justifies a significantly lower sentence.

[17] The defendant will serve nine months in jail for sexually interfering with each victim. The sentences are to be served consecutively, for a total of 18 months. While in custody he is prohibited from communicating with the victims or their families. This will be followed by a three-year period of probation on terms that include reporting to a probation officer, residing where directed and a prohibition on communicating with the victims, or their immediate families, or being within 100 metres of any place he knows any of them to be at.

[18] The defendant will supply a sample of his DNA and be subject to the federal sex offender registry (SOIRA) for life. He is prohibited, pursuant to section 109 from possession weapons as defined therein.

[19] Finally, there will be an order under Section 161 of the Code. There is nothing before me to suggest that the offender is a risk to persons present in parks, retail stores, and other public places. However, given the facts of this case, I consider it appropriate to prohibit the offender, for a period of 10 years, from:

• Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
• Having any contact, with a person who is under the age of 16 years, while in his residence, or other private place, unless he is in the direct and immediate company of an adult over the age of 21.

[20] The defendant will pay a victim fine surcharge in the amount of $200.00 per count, or spend two days in jail consecutive in default, payable within six months.

Released: July 4, 2022 Signed: Justice J. De Filippis