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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 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.
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES — (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2024 04 22 Court File No.: Hamilton 21-9828
Between:
HIS MAJESTY THE KING
— AND —
S.C.
Before: Justice J.P.P. Fiorucci
Sentencing Submissions heard on: March 19, 2024 Reasons for Sentence released on: April 22, 2024
Counsel: Patrick Harris and Rose Branton................................................... counsel for the Crown Kaley Hepburn................................................................... counsel for the Defendant, S.C.
FIORUCCI J.:
Introduction
[1] After a trial, I found S.C. guilty of sexual assault and sexual interference. My reasons for judgment are at R. v. S.C., 2024 ONCJ 47; [2021] O.J. No. 391. S.C. committed the offences against his stepdaughter, M.C.. Sentencing submissions were made on March 19, 2024. These are my reasons for sentence.
Circumstances of the Offences
[2] M.C. testified at the trial that S.C. raised her since she was one year old and that she used to call him dad. S.C. agreed that M.C. came into his life in 2006, when she was almost two years old. S.C. adopted M.C. in 2009 or 2010.
[3] The sexual interference count (Count 1) relates to multiple incidents when S.C. took M.C. out in his car, purportedly to teach her how to drive. She was between 14 and 15 years old. On each of these occasions S.C. had M.C. sit on his lap and would have an erection. M.C. had conversations with S.C. about the erections. On one occasion, S.C. told M.C. that he had a medical condition that caused the erections. There was an instance where S.C. asked M.C. to wear a low-cut shirt which might help. I also found as a fact that M.C. told S.C. that she was uncomfortable with what occurred when they were out driving, meaning him having erections, which prompted S.C. to tell her that he could not help it and that he had masturbated before the driving so that it would not happen, but it still did.
[4] In addition to the driving incidents, on one occasion, while M.C. and S.C. were in the basement of the family home alone, S.C. massaged M.C.’s foot with his hand and then started massaging up her leg almost to her pelvic bone. The sexual assault count (Count 2) pertains to this incident.
Circumstances of the Offender
[5] The presentence report (PSR), which is Exhibit 1 on the sentencing hearing, contains details regarding S.C.’s background and personal circumstances. In addition, the Defence filed fourteen character letters, which were collectively made Exhibit 3.
[6] S.C. is 44 years old. He has no prior criminal record. S.C. advised the author of the PSR that the well-being of his family, including his 13-year-old son, is his priority. He described himself as a dedicated father, husband, son, and employee.
[7] S.C. always had a positive relationship with his parents, who were loving and nurturing. He was especially close to his father who suddenly passed away under tragic circumstances about three years ago. This had a deep impact upon S.C. and the family. Being an only child, it has also left S.C. to be the caretaker for his elderly mother who has physical limitations. He visits his mother regularly and assists her with various tasks including household chores. S.C.’s mother advised the author of the PSR that S.C. is family oriented and has a positive relationship with his wife and son.
[8] S.C.’s wife, N.C., is currently suffering from physical health issues which limit her ability to work and perform household tasks, making S.C. the primary financial provider for the family and the main contributor for household tasks. In addition to the sudden death of his father, the family also endured a traumatic event when N.C. lost a pregnancy and, as a result, almost lost her life.
[9] S.C. completed a college diploma and returned to college in his adult years to expand his qualifications. He has been employed full-time as an automotive technician for over twenty years, holding the title of Senior Automotive Technician at a local dealership. His employer confirms that he is a valuable team member who has consistently demonstrated honesty and integrity throughout his years of employment. S.C. maintains a strong passion for his line of work and that passion extends beyond his work hours when he does car repairs for friends and family. At work, S.C. has been reliable and hard-working and has mentored apprentices.
[10] S.C. has a vast support network, which includes his mother, wife, son, work colleagues and friends. The character letters filed collectively as Exhibit 3 demonstrate that S.C. is regarded by others as a dedicated family man of integrity who is trustworthy, hard-working, reliable, generous, intelligent, patient, and caring. S.C. is well-respected amongst his peers.
[11] S.C. advised the author of the PSR that he actively practices Catholicism and associates with prosocial friends. He rarely consumes alcohol and does not use drugs whatsoever. S.C. is amenable to participation in programming or treatment as recommended.
Impact on the Victim
[12] M.C. filed a victim impact statement, which was made Exhibit 2 on the sentencing hearing. M.C. read the victim impact statement at the sentencing hearing. In it, she detailed the profound emotional harm and impact resulting from S.C.’s abuse of her.
[13] M.C. described the initial abuse as extremely hurtful. She has endured devastating struggles since the abuse. M.C. viewed S.C.’s adoption of her as a great act of love and a promise to protect her. This was replaced by feelings of betrayal.
[14] M.C. explained how the abuse has affected her ability to form meaningful relationships with men and other people around her. It has shattered her trust of others, including close friends and family members.
[15] M.C.’s relationship with family members became strained when she reported the offences. In her victim impact statement, M.C. provided details of her fractured relationship with her mother and disconnection with her family. Ultimately, this resulted in her leaving the family home, including her younger brother, to live with other family members with whom she felt safe and loved. Being unable to see her brother for three years has been especially difficult for M.C.. She has undergone several years of therapy to deal with severe abandonment issues but still struggles with those feelings, wondering if she would still have her mother if she had not reported the abuse.
[16] M.C.’s mental and emotional trauma includes PTSD, anxiety, depression, panic attacks, and nightmares which affect her ability to function. M.C.’s depression devolved into suicidal thoughts and caused her to lose her last two credits in her last year of high school, which has delayed her educational and career goals.
[17] M.C. struggled for years with feelings of guilt and hopelessness, wondering if the abuse was somehow her fault and whether she could have done anything to prevent it. She went on to say:
Being a young girl trying to take responsibility for the actions of a grown man who was supposed to be a loving parent. It has taken me a very long time to realize that this was not my fault and even longer to accept that it is not my responsibility to carry the burden of someone else’s wrongdoing, especially as a young girl.
[18] M.C. described the lasting effects of S.C.’s crimes as follows:
The abuse left me with very deep emotional wounds that I am still working very hard to heal, but I know that even if I manage to do so the scars will still be there, and I will never truly be able to feel loved and safe without having doubts.
Positions of the Parties
[19] Crown counsel asks me to impose a global sentence of 2 years less a day jail concurrent on each count, followed by a 3-year probation order. The ancillary orders sought by the Crown include DNA, a s. 109 weapons prohibition order, a s. 161(1)(a)(b) and (c) order for 20 years, and a Sex Offender Information Registration Act (SOIRA) order for life.
[20] Defence counsel submits that a 12-month jail sentence to be served concurrently on each count followed by a 3-year probation order is appropriate and considers the personal circumstances of S.C. and the principles of restraint and rehabilitation. Defence counsel takes no issue with the DNA and s. 109 orders but submits that the s. 161 order should be for a period of 10 years and that an exception to permit S.C. to have contact and communication with his son should be included for s. 161(1)(c). Defence counsel says that the appropriate length of the SOIRA order is 20 years.
Legal Principles and Analysis
[21] In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada sent “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”: at para. 5. The Court in Friesen stated unequivocally that sentences for these crimes must increase:
Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large: at para. 5.
[22] The fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code, is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender. Friesen explains that courts must consider the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle: at para. 75. The wrongfulness and harmfulness impact both the gravity of the offence and the degree of responsibility of the offender: at para. 75.
[23] With respect to the gravity of sexual offences against children, courts must recognize and give effect to: (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences: at para. 76.
[24] Friesen recognizes the inherent wrongfulness of sexual abuse of children since “violence is always inherent in the act of applying force of a sexual nature to a child”: at para. 77. The Court stated that “any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury”: at para. 77. The power imbalance between children and adults makes it “inherently exploitative for an adult to apply physical force of a sexual nature to a child”: at para. 78.
[25] In R. v. T.J., 2021 ONCA 392, the Ontario Court of Appeal considered the guidance provided by Friesen. At paragraph 23 of T.J., the Court said this about harm caused to children with reference to specific paragraphs in Friesen:
The harm caused by sexual offences against children must be weighed “in a manner that reflects society’s deepening and evolving understanding of their severity”: at para. 74. This includes considering, in addition to actual harm that may have been experienced up to the time of sentencing, the reasonably foreseeable potential harm that may only materialize later in childhood or in adulthood. To do otherwise would falsely imply that children simply outgrow the effects of sexual offences against them: at paras. 84-86.
[26] At paragraph 24 of T.J., again with reference to Friesen, the Ontario Court of Appeal said:
These elements of wrongfulness and harm pertain as well to the offender’s degree of responsibility. Intentionally applying force of a sexual nature to a child is:
highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child.
The fact that the victim is a child increases the offender’s degree of responsibility...the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable [footnote omitted]: at paras. 88, 90.
[27] Parliament has enacted special provisions for sentencing offenders who abuse children. Section 718.01 of the Criminal Code instructs that 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.
[28] In T.J., at paragraphs 26 to 28, the Ontario Court of Appeal explained how judges are to interpret and apply the primacy Parliament gave to denunciation and deterrence in s. 718.01:
26 A sentence expresses denunciation by condemning "the offender for encroaching on our society's basic code of values"; it expresses deterrence by "discouraging the offender and others from engaging in criminal conduct". Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis, 2020 ONCA 551, at para. 55.
27 The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that "it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence". These other objectives may be given significant weight, but not priority or equivalency: Lis, at paras. 47-48, 53; Friesen, at paras. 101-4.
28 As the court in Friesen concluded, prioritizing the objectives of denunciation and deterrence "confirms the need for courts to impose more severe sanctions for sexual offences against children": at para. 101. That need is directly related to the form of sanction required, as separation from society reinforces and gives practical effect to denunciation and deterrence: at para. 103.
[29] Friesen provided guidance about the appropriate length of sentences for sexual offences involving children. The Court in Friesen did not set binding or inflexible quantitative guidelines, recognizing as Moldaver J.A. did in R. v. D.(D.), (2002), 58 O.R. (3d) 788, at paragraph 33, that “trial judges must retain the flexibility needed to do justice in individual cases”.
[30] However, Friesen sent a clear overall message. At paragraph 114, the Court stated:
That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim.
[31] Sections 718.2(a)(ii.1) and 718.2(a)(iii) list as aggravating circumstances the fact that an offender abused a person under the age of eighteen years and evidence that an offender abused a position of trust or authority in relation to the victim. At paragraph 129 of Friesen, the Supreme Court recognizes that “[a]n offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger” and that, “[t]he breach of the duty of protection and care thus enhances moral blameworthiness”. Exploitation of children’s particular vulnerability to trusted adults is especially morally blameworthy: para. 129.
[32] At paragraph 130 of Friesen, the Supreme Court highlights “the scale and gravity of sexual violence perpetrated within the family sphere” and notes that “some authors have criticized the tendency of courts to impose similar sentences on strangers and fathers for sexual offences against children, despite the fact that sexual assaults by fathers are more likely to occur on multiple occasions”.
[33] The Court provides the following guidance at para. 130:
We would thus emphasize that, all other things being equal, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child.
[34] The principle of restraint contained in ss. 718.2 (d) and (e) of the Criminal Code continues to be applicable in circumstances where the primary sentencing principles are denunciation and deterrence: R. v. Faroughi, 2024 ONCA 178, at para. 73, and R. v. A.B., 2023 ONCA 254, at para. 55. Similarly, in child sexual offences, “the sentencing judge retains discretion to consider factors mitigating moral culpability and to accord significant weight to other sentencing objectives, including rehabilitation”: R. v. C.B., 2024 ONCA 160, at para. 34; Friesen, at para. 104.
[35] However, Friesen instructs that s. 718.01 qualifies the Supreme Court’s “previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized”. At paragraph 104, the Court stated:
Where 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.
[36] S.C. was in a position of trust toward M.C.. He had been in her life since she was one year old and eventually adopted her. S.C. abused this position of trust to commit sexual offences against M.C. when she was 14 and 15 years old, breaching his duty to protect and care for her. The sexual abuse was perpetrated over a prolonged period. It involved multiple driving incidents where S.C. had M.C. sit on his lap while he had an erection. He exploited his stepdaughter’s desire to learn how to drive to repeatedly take her out alone, usually at night, for his own sexual gratification. It is further aggravating that he had sexualized conversations with his stepdaughter about the erections, including his claim that it was caused by a medical condition, a request that she wear a low-cut shirt, and stating that he had masturbated before the driving to try to avoid getting an erection. S.C.’s sexual abuse of M.C. included the incident in the family home during which he used his hand to touch her leg near her pelvic bone. S.C.’s conduct was highly morally blameworthy and involved multiple incidents of sexual touching.
[37] In addition to the recognition of the wrongfulness and harmfulness of child sexual abuse in Friesen, s. 718.2(a)(iii.1) lists as an aggravating circumstance the fact that the offence had a significant impact on the victim, considering their age and other personal circumstances. The profound effects of S.C.’s offences are powerfully set out in M.C.’s victim impact statement. M.C. has suffered actual harm including interference with her healthy development as a child, damaged relationships with her family members, loss of trust in others including close friends and family members, difficulty developing relationships with others, mental and emotional trauma, including suicidal thoughts, and detrimental effects on her schooling. M.C.’s victim impact statement also provides insight into the potential harm that flows from these offences. Despite her efforts to heal, she knows “the scars will still be there and [she] will never truly be able to feel loved and safe without having doubts”.
[38] S.C. has no prior criminal record. In addition to being a first offender, he has an extensive support network, including family, friends and co-workers which increases his prospects for rehabilitation. His steady and fulfilling employment, and his engagement with pro-social associates are also indicators of his positive rehabilitative potential. S.C. is amenable to counselling, which is an additional mitigating circumstance to be considered.
[39] A period of incarceration will have significant collateral consequences for S.C. and his family. While S.C. is incarcerated, he will be unable to provide assistance, financial and otherwise, to his mother and his wife, who both have health issues which limit their abilities to perform household tasks. The effect of S.C.’s incarceration on his relationship with his 13-year-old son is another significant collateral consequence of S.C.’s incarceration.
[40] I have considered the principles of restraint and rehabilitation, and the personal circumstances of S.C., including the collateral consequences of a jail sentence. I find that a jail sentence of 2 years less a day is necessary to reflect the normative character of S.C.’s sexual offences and the consequential harm to M.C.: Friesen, at para. 33. A sentence of this duration considers the mitigating circumstances and principles of restraint and rehabilitation but ensures that denunciation and deterrence are prioritized.
[41] S.C. is sentenced to serve a jail sentence of 2 years less a day in relation to each count. Having regard to the totality principle in s. 718.2 (c) of the Criminal Code, the sentences on Counts 1 and 2 will be served concurrently.
[42] The jail sentence will be followed by a period of probation of three years. In addition to the statutory conditions of probation, S.C. will have the following conditions of probation:
(1) Report in person or by telephone to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;
(2) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with M.C.;
(3) Do not be within 50 metres of any place you know M.C. to live, work, go to school, frequent, or any place you know M.C. to be, except for required court attendances;
(4) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including but not limited to sexual offending behaviour. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
[43] I have considered counsels’ submissions with respect to the s. 161 order. Defence counsel agreed that the order should be made for s. 161(1)(a)(b) and (c) and Crown counsel did not take issue with the exception to (c) proposed by Defence counsel. Having regard to the circumstances of the offences S.C. committed against M.C., over a prolonged period, but keeping in mind that these orders have a punitive effect, I find that the appropriate duration of the order is ten years. I order that S.C. is prohibited for a period of ten years from:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
(b) 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; and
(c) having any contact-including communicating by any means-with a person who is under the age of 16 years unless he does so under the supervision of N.C. for the purpose of contact or communication with his son, F.C..
[44] The Defence did not seek to establish under s. 490.012(3) that a SOIRA order should not be made. S.C. was convicted of two or more designated offences in connection with which a SOIRA order may be made. Although S.C. committed sexual offences against M.C. over a prolonged period, on the record before me, I am not satisfied under s. 490.013(3)(b) that S.C. presents an increased risk of reoffending by committing a crime of a sexual nature. Therefore, I decline to make the order for life. Pursuant to s. 490.013(2)(b), I make an order in Form 52 requiring S.C. to comply with the provisions of the SOIRA for 20 years.
[45] I order, pursuant to s. 109 of the Criminal Code, that S.C. is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, and any other firearm or any cross-bow, restricted weapon, ammunition and explosive substance for a period of 10 years after his release from imprisonment.
[46] Pursuant to s. 487.051 of the Criminal Code, I order S.C. to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.
[47] Finally, there will be an order pursuant to s. 743.21 of the Criminal Code prohibiting S.C. from communicating, directly or indirectly, with M.C. while he serves his sentence of incarceration.
Released: April 22, 2024 Signed: Justice J.P.P. Fiorucci