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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2023 08 16 COURT FILE No.: Toronto 21-35003605

BETWEEN:

HIS MAJESTY THE KING

— AND —

D.W.

Before Justice Jennifer Strasberg

Heard on March 21, 2023 & May 11 & 12, 2023

Reasons for Judgment released on August 16, 2023

Counsel: E. Rokach............................................................................................. counsel for the Crown D. Reeve.................................................................................. counsel for the accused D.W.

Reasons for Sentence

STRASBERG J.:

Introduction

[1] On March 21, 2023, D.W. pled guilty to one count of sexual exploitation in relation to the complainant G.J. He appears before me today for sentencing.

[2] The parties are in agreement that the maximum jail sentence available at the time of the offence was 5 years.

[3] The Crown seeks a jail sentence of 4-5 years, a DNA order and a SOIRA order.

[4] The Defence says an appropriate jail sentence is one of 18 months to 2 years less a day. He submits that if I agree that this length of sentence is appropriate that I should consider a conditional sentence. He takes no issue with the DNA or SOIRA orders.

The Offence

[5] In 1985 when D.W. was 22-years old he began working at G.J.’s father’s company. He moved up quickly in the company and after the suicide of G.J.’s father in 1986, he took over the running of the business. Sometime shortly after the death of G.J.’s father D.W. began a relationship with G.J.’s mother, Ms. W, and they later married. At the time of the offence D.W. lived in the home with G.J., Ms. W and G.J.’s brother W.W.

[6] Between 1988-1990, when G.J. was 13-15 years old, D.W., who was 24–27 years old, would give her consensual massages. After some time, the massages turned sexual.

[7] D.W. would touch her breasts and genitals and they would kiss. This eventually advanced to the point where D.W. would digitally penetrate and perform oral sex on G.J.

[8] G.J. stated that once things became sexual, this sexual activity occurred on numerous occasions, sometimes two times a week and sometimes more often over the course of approximately two years.

[9] D.W. and the G.J. never engaged in intercourse.

[10] When asked to describe how she felt at the time these events occurred G.J. said that they would say that they loved each other and that she considered them to be in a relationship.

[11] D.W. eventually put a stop to all sexual activity between them.

Victim Input

[12] I was provided with two Victim Impact Statements. One from G.J. and one from her son B.J. They both read their statements in court. Both of their statements were compelling and heartbreaking.

[13] In her statement G.J. describes how the prolonged abuse by D.W. impacted all aspects of her entire teenage life and went on to describe the severe impact of that abuse in her day-to-day life over 33 years later.

Living in a home where you're being groomed, manipulated, and taken advantage of -- sexually abused is quite difficult to describe. It changes the way you perceive yourself and the way you feel about yourself. It changes the way you see people and the world. It permanently alters you. It destroys your dreams, your self-worth, emotional stability, and your psyche in a way that are impossible to accurately explain. It's life altering. That has been what I experienced and continue to.

[14] She describes herself as having been a shy, happy girl who loved her family. She enjoyed playing sports. During the years that she was being sexually abused by D.W. it became difficult for her to concentrate. Her grades suffered and she no longer participated in sports. Her home, which was her safe place, was no longer that place for her.

[15] She felt as if she was living in a secret place where she was very alone. She became distant from her friends. She writes, “I couldn't share the stories about my first kiss, my first orgasm or other ‘firsts’ – those were stolen from me, from an older man who was living in our family home, dating my mother, my abuser. … inside I felt tainted, full of shame, I felt gross and living a life that was a sickening secret.”

[16] She had her first thought of suicide during those years. She continuously worried about how her mother would be affected by the knowledge of the abuse. She wanted her mother to be happy. She worked hard to pretend that everything was normal. This was made even more difficult by the knowledge that her mother was happy living with her abuser. As a result, she kept this secret for years. Over time it became unbearable. After disclosing her abuse her mother chose to forgive D.W. and remain with him. This choice has been “painful, confusing, brutal and heartbreaking for her.” Her brother has also forgiven D.W. and has “abandoned” her. These are relationships that she believed were strong. Regarding this loss she says, “my loss has been great and my heart is shattered. This reality has furthermore been excruciating and extremely damaging to me. Their choices and actions have been re-traumatizing. I struggled to understand any of it and the heartache and torment is paralyzing.”

[17] Being sexually abused has affected all of her relationships, largely in part because she sees herself as a result of the abuse as “disgusting,” “gross,” “dirty,” “monstrous” and “damaged.” She feels like each day is a struggle to just exist.

[18] She has also been affected monetarily. Five years ago she chose to leave her family’s business because D.W.’s presence there made her uncomfortable and she was constantly being triggered with memories of the abuse.

[19] In closing she says:

sexual abuse of any kind is severely damaging. It forever changes the victim. It is life altering and affects body mind and spirit - it affects all of you. The devastating effects are immeasurable. Simply surviving day-to-day is painful and a struggle. The memories are forever lasting and haunting and trying to cope is a lifelong struggle. This has been my experience.

[20] B.J. has also been profoundly affected by the sexual abuse of his mother. He has been a witness to his mother’s immense grief. He has watched her struggle to hold basic healthy relationships. He writes, “I’ve watched her fail to live life.” He has seen her suffer and battle with feelings of worthlessness and depression.

[21] As a result of the offence and its affect on G.J. it has trickled down and affected for many years the relationship between G.J. and B.J. He suffered from depression and suicidal thoughts for over a decade as a result of what he went through as a young child and a teen. He writes, “the butterfly effect of your actions runs deeper than most can see or comprehend.”

The Offender

[22] D.W. is 60 years old. He has no criminal record. He has strong family support. He had a difficult childhood. His father was abusive, and he left home at 16. He has limited education and only attended high school to grade 9. He is hard working and has been successful in business. His counsel submits that he put an end to the abuse after two years and never resumed. He submits that this speaks to his character and his learning.

The PSR

[23] The PSR sets out D.W.’s background and shows him to be a hardworking, family-oriented person. He is counted on by his family and is known to be dependable. He had no major trauma from childhood and does not suffer from addiction or mental health issues. He had conflict with his father growing up. This caused issues for him at school, and he did not complete grade 9. He left home at 16 and worked at several jobs to support himself. At 22 he began to work for G.J.’s father.

[24] The PSR author writes, “ he explained that he takes full responsibility for his involvement in the current offence as he was the adult in the incident, and he should have known better. He wished the offence never occurred and he has been berating himself for his actions ever since.” While this is an acceptance of responsibility, it misses the mark. This was not a relationship. This was a gross abuse of power and trust. It fails to acknowledge the scheming and grooming of G.J. at a time that she was grieving and completely vulnerable. It fails to recognize that she was a child who was manipulated into thinking that this was a relationship of love.

[25] This aspect of sexual abuse was squarely dealt with by the SCC in R. v. Friesen, 2020 SCC 9. Given the comments in the PSR and in some of the letters filed by the family I think it is important to reiterate these comments here. In Friesen the court wrote:

[153] [I]n some cases, a victim’s participation is the result of a campaign of grooming by the offender or of a breach of an existing relationship of trust. In no case should the victim’s participation be considered a mitigating factor. Where a breach of trust or grooming led to the participation, that should properly be seen as an aggravating factor (R. v. M. (P.) (2002), 155 O.A.C. 242 (Ont. C.A.), at para. 19; R. v. F. (G.C.) (2004), 71 O.R. (3d) 771 (Ont. C.A.), at paras. 7 and 21; Woodward, at para. 43). Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality. As Feldman J.A. wrote in M. (P.), to exploit young teenagers during this period by leading them to believe that they are in a love relationship with an adult “reveals a level of amorality that is of great concern” (para. 19).

[154] Finally, a victim’s participation should never distract the court from the fact that adults always have a responsibility to refrain from engaging in sexual violence towards children. Adults, not children, are responsible for preventing sexual activity between children and adults (George, at para. 2; R. c. Audet, [1996] 2 S.C.R. 171 (S.C.C.), at para. 23). We would adopt the words of Fairburn J. (as she then was) in R. v. D. (J.), 2015 ONSC 5857 (Ont. S.C.J.):

Nor is it a mitigating factor that a child appears to acquiesce or even seek out the sexual attention of an adult. Where children appear to be seeking out such attention, it is often an outward manifestation of the child’s confusion arising from personal difficulties. It is the legal responsibility of adults who are faced with children who already exhibit signs of struggle, to protect them. Adults who see these situations as opportunities to satisfy their own sexual urges, are no better or worse than those who take steps to actively seek out their victims. [para. 25]

[26] The comments of the Ontario Court of Appeal in P.M. [1] are to the point;

19 This conduct is also frightening because as a 26-year-old man, the respondent induced a vulnerable child into an ongoing sexual relationship by leading her to believe that they were boyfriend and girlfriend. This is exploitation of the worst order. Young women entering their teenage years face a myriad of confusing feelings regarding their bodies, their emotions, and their sexuality. It is difficult enough to deal with these issues with a judgmental and often cruel peer group. To exploit a young teenager as this man did reveals a level of amorality that is of great concern. The fact that the conduct was consensual on the part of C., who believed she was in a love relationship with a boyfriend, is far from being a mitigating factor as suggested by the defence and instead is an aggravating factor as part of the gross breach of trust involved in this offence.

[27] D.W. did 12 sessions with a registered psychotherapist. The therapist told the PSR writer that “she respected the way he accepted responsibility for his involvement and wanting to consider his mistake.” [She] noted that “the environment at the time of the offence was stressful and traumatic for everyone, and [D.W.] took on a lot trying to make things better for the family.” This comment is uninformed. At the time of the offence things were stressful and traumatic for G.J. and her mother and brother. G.J.’s father had just committed suicide. This allowed D.W. to move in and begin a relationship with Ms. W and gain unrestricted access to her 13-year-old daughter whom he began to groom and then sexually assault. It was as a result of the stress and trauma and vulnerability that they were all experiencing that allowed him to do this. Regardless of anything else he did during that time, his abuse of G.J. certainly did not make “things better for the family.”

[28] I agree with the Crown’s comments that the statement from D.W. that “it just happened, and he cannot seem to figure out how he got into the situation in the first place,” is a gross minimization. I also find it to be disingenuous. D.W. is not being truly honest with himself. D.W. took full advantage of a grieving family for his own sexual gratification. This did not “just happen” hundreds of times over two years.

[29] The writer also makes the comment that D.W. “seemed to have spent his life trying to make amends to the victim for his actions.” W.W., G.J.’s brother, told the PSR writer about the kindness that has been shown to him over the years by D.W. He says that “while he does not condone or excuse [D.W.’s] action, [he] has tried to make amends.” He further comments “that he is hopeful that his sister and entire family can heal and recover from this incident.” Many of the letters of support express the same sentiment. While seeming to acknowledge the offence and the harm to G.J., they express a wish for G.J. to move on from this. When D.W. had an opportunity to address the court, he said, he has made several attempts to help her along and that “nothing he does is good enough.” All of these comments ignore the reality of the trauma caused by the offence. It is as if this family just expects G.J. to “get over it.” This position by G.J.’s family fails to understand the harm caused to G.J. and is a disservice to her. It is easy to say “move on” when you are not the victim of this type of prolonged sexual abuse.

Good Character

[30] The Defence provided several letters of character from D.W.’s family. These letters acknowledge that the authors are aware of his offence. They acknowledge the wrongfulness of his conduct. Notwithstanding, the letters describe a caring, hard-working individual who goes the extra mile for everyone. They describe his love of family. Many of the letters describe, with examples, his altruism and concern for others. It is clear from the letters that he has the support of his family, and they feel that he has done all he can do to make amends for what happened.

[31] While I agree that the reference letters do speak very positively to D.W.’s character, evidence of good character has low probative value in sentencing for sexual assault cases because previous good character is common in child sexual assault cases. [2]

[32] Sexual assaults on children are committed by people from all walks of life, out of the public eye, in secret. It is no surprise that often this is a shock to people who thought they knew the offender well. Evidence of good character supports rehabilitative sentencing objectives, and, in that way, it can be mitigating. [3] In this case I agree with counsel that it supports his prospects for rehabilitation. I also agree that his history of being forthcoming about the offence shows some insight and is mitigating. However, good character on its own is not mitigating when in secret the offender has committed a heinous crime.

Applicable Sentencing Principles

[33] It has been said many times before that sentencing is the most delicate and difficult task for a judge. [4] This case is a perfect example. Crafting a fit sentence is a highly individualized process that involves a variety of factors.

[34] Section 718.1 of the Criminal Code of Canada states that the fundamental principle of sentencing is proportionality. To be a fit sentence the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing must also consider the principle of parity. Section 718.2 (b) of the Criminal Code states that similar offenders who commit similar offences in similar circumstances should receive similar sentences.

[35] The statutory framework governing the sentencing of offences which involve the abuse of a child is expressed in ss. 718.01 and 718.2 of the Criminal Code:

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years; it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
- (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
- (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
- (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.

[36] Other aggravating and mitigating factors and the personal circumstances of an offender are considered as well. However"[w]here Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority." [5]

[37] In Friesen [6], the Court held that sentencing for sexual offences must reflect both the harm that sexual offences cause against children and the wrongfulness of sexual violence and reflect the life altering consequences that flow from the sexual violence. Imperative to arriving at a just sentence is a proper understanding of the gravity of these offences, the impact on children and their families, and the high degree of moral blameworthiness exhibited by the offenders:

To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important. [7]

[38] The Supreme Court found that the statutory sentencing principles reflect the fact that sexual offences against children cause profound harm to the victims and that, accordingly, sentences for such offences must increase "to match Parliament's view of their gravity." [8]

[39] The Supreme Court found that an upward departure from prior sentencing ranges in cases involving sexual offences against children was required by virtue of the fact that sexual violence against children invades a child's personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. Moreover, not only does sexual violence against children risk damaging their relationships with their families, but it also has "ripple effects" that can make the child's parents and family members secondary victims who also suffer profound harm as a result of the offence. [9] For these reasons, amongst others, sexual offences against children should generally be punished more severely than sexual offences against adults.

[40] Friesen sends a clear message that courts must impose sentences that are commensurate with the gravity of sexual offences against children. In particular, courts must recognize and give effect to the inherent wrongfulness of these offences; the potential harm to children that flows from these offences; and the actual harm that children suffer as a result. [10]

[41] Friesen also identified significant factors to be considered in determining a fit sentence for sexual offences against children. These include: the likelihood of reoffending; whether the offence involved the abuse of a position of trust, since any breach of trust is likely to increase the harm to the victim as well as inhibit the child from reporting sexual violence; and the duration and frequency of the sexual violence, since the long-term emotional and psychological harm to the victim can become more pronounced where the sexual violence is repeated. [11]

Analysis

[42] Since the time of the offence, the maximum sentence for sexual exploitation has increased from 5 years to 14. However, in accordance with s.11(i) of the Charter, D.W. faces the maximum sentence that the Code allowed for at the time of the offence. The Crown, as stated before, is seeking 4-5 years, while D.W. submits that 18 months to 2 years less a day is appropriate.

[43] In the recent case of R. v. Solomon, 2022 ONCA 706 [12], the Court of Appeal for Ontario cited Friesen with approval, in the course of concluding that the sentence imposed in that case – one of five years for sexual exploitation, sexual assault and threats for offences committed from 1996-2001 – was appropriate. In other words, the Court of Appeal for Ontario has approved of the Friesen principles being applied retroactively. [13]

[44] As such, the impact of the recognition of society’s better understanding of the gravity and harmfulness of sexual violence upon children does apply when assessing the principle of proportionality. [14]

[45] This is not a case where we need to anticipate the harm. The harm in this case has materialized and has been felt during G.J.’s lifetime up to now and will be felt during the life she will continue to live. She has experienced the very physical and psychological harm that Friesen speaks of. It is clear that G.J. was “robbed of her youth and innocence” by D.W. [15] and that her life has been altered in the most drastic way.

[46] There are many aggravating factors in this case in addition to the statutorily aggravating factor set out above.

D.W. worked for the family business. He began to groom and manipulate G.J. while she was dealing with the impact of her father’s suicide. He moved into her home due to his romantic relationship with her mother and in secret began to sexually abuse G.J.
He had unrestricted access to G.J. as a result of being in a relationship with her mother. He groomed her and made her think of the abuse as a romantic relationship. G.J. acknowledged that she would say she loved D.W. and that in her mind they were in a relationship. Rather than mitigating, this is highly aggravating. D.W. was in a position of trust and authority over G.J. He was not only running the family business, but he was her mother’s boyfriend, and he was living in her home as a de facto father figure. Ms. W, in the PSR states that D.W. “was selfless in helping her through the tragedy of her first husband’s suicide death, taking care of her and her children and running the family business.” This could not be further from the truth. This is an absurd cognitive distortion. D.W. selfishly moved into this grieving home and took full advantage of the situation. It is a gross minimization for him to say as he has that “he should have known better.” I can only imagine how painful it is for G.J. to hear that. D.W. was an adult. G.J. was a child. It is not a matter of knowing better. He knew better and he did what he did for his own sexual gratification. He was in a relationship with her mother. He made a choice to violate Ms. W’s daughter in her own home for over 2 years.
The fact that G.J. thought it was love and that they were in a relationship during that time certainly adds to the shame that G.J. feels. This is why she blames herself. She believes that she was in a relationship with him. She needs to understand that she was a child, that she was manipulated and that she is not to blame. It is D.W. and only D.W. that is responsible for his actions and the damage he has caused.
The offence happened repetitively, sometimes twice a week, sometimes more often over a period of two years.
The sexual abuse involved kissing, the touching of her breasts and genitals, digital penetration, and oral sex on G.J.
The damage to G.J. and B.J. is clear from their Victim Impact Statements. It has also had an impact on their relationship with each other.
The impact on the family has been great. This is now a divided family. G.J. and B.J. have suffered additional harm as a result of her disclosure. Her mother and brother, two people that she had strong relationships with, have sided with her abuser. In coming forward she has been re-victimized.
Because they both work in the family business and as a result of the trauma G.J. is no longer able to work there and has suffered monetarily.

[47] While the aggravating factors are significant, there are also many mitigating factors that I must consider:

D.W. was 24-27 at the time of the offence, he is now 60 years old;
D.W. entered a guilty plea. In this particular case this guilty plea is to be afforded considerable weight. Apart from saving valuable court resources, by pleading guilty, D.W. has avoided the need for G.J. to come to court to testify which is significant given the trauma she has experienced. I find this to be an act of genuine remorse on the part of D.W. and a true act of compassion on his part. It also provides G.J. with the certainty of the result;
D.W. has no criminal record;
His risk of reoffending, I accept is very low;
There has been no indication of troubling behaviour since the offence occurred 33 years ago;
He has lived an otherwise pro-social lifestyle;
He has strong family support that offers support for rehabilitation;
He had a somewhat turbulent childhood and left home on his own at 16. He has a limited education and has been able to achieve success in business.

[48] Both counsel provided various sentencing authorities to help support their positions. Many were distinguishable because while they involved some similar facts, they lacked others. In many the nature of the relationship and the breach of trust was different. In some the maximum sentence was higher at the time and this is a factor that is hard to reconcile given I am constrained by a maximum sentence of 5 years. In addition, some pre-date the decision in Friesen whose principles I am bound to apply. In a general sense they were instructive.

[49] I have considered the circumstances and principles discussed above including the objective gravity of the offences, and the sentencing precedents cited by the Crown and Defence, and in particular the recent guidance provided in Friesen.

[50] The moral responsibility of D.W. is high.

[51] I am mindful particularly that G.J. was a vulnerable young teen, that she suffered the abuse repeatedly over two years in the safety of her home, that D.W. was in a position of trust during an incredibly vulnerable time in G.J. and her family’s lives, and that this was done for his own sexual satisfaction, without considering the inevitable adverse impact upon her sexual integrity and well-being and the emotional and psychological harm suffered by her and her son — harm they are still suffering.

[52] I am mindful too that D.W. has no criminal record, that he has been gainfully employed, that he has not re-offended, that he has some insight and has otherwise led a productive life. I recognize his guilty plea as significant, because in doing so he has not caused further trauma and revictimization to G.J. and B.J.

[53] In considering all of this I am satisfied that, on the facts of this case, a penitentiary sentence is required to fulfill these objectives. This is a case that involved a wrongful interference with the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of G.J., a person who was a child at the time of the commission of the offences.

[54] An appropriate sentence in this case is one of three and a half years in jail.

[55] A conditional sentence as such is not an available sentence. Even, if I had found the appropriate sentence to be under two years this is not a case in which a conditional sentence would be appropriate. It would not be consistent with the fundamental purposes of sentencing in ss. 718 to 718.2.

Sentence

[56] The sentence will be one of three years and six months.

Ancillary Orders

[57] The Crown seeks a DNA order and a SOIRA order. D.W. does not object to these orders.

[58] Sexual exploitation is a primary designated offence. D.W. is ordered to provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.

[59] There will be a SOIRA order. As D.W. has been convicted of one "designated offence", I make an order requiring him to comply with the Sex Offender Information Registration Act for a period of 10 years.

Released: August 16, 2023 Signed: Justice J. Strasberg