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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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
BETWEEN:
HIS MAJESTY THE KING
— AND —
B.B.
Before Justice Leonard Kim
Heard on September 11, 2024
Reasons for Sentence released orally on September 11, 2024
Written Reasons released September 12, 2024
Ms. Kaely Whillans Counsel for the Crown
Mr. Yonatan Eshetu Counsel for the Defendant
L. KIM J.: (Orally)
Overview
[[1]] After a 5-day trial that commenced in August of 2023 and concluded on February 16, 2024, on April 26, 2024, I released my written Reasons for Judgment and convicted B.B. of the offences of sexual assault contrary to section 271 of the Criminal Code and making sexually explicit material available to a child under the age of 16 for the purposes of facilitating the commission of an offence under s. 271, contrary to section 171.1(1)(b) of the Criminal Code.1
[[2]] The victim in this case, S.W., was 12 years old at the time of the allegations, 15 years old at trial commencement in August 2023 and is 16 years old today.
The Circumstances of the Offences
[[3]] In my Reasons, I found that on March 24, 2020, B.B. volunteered to babysit the victim and her younger brother, as well as watch horror movies with her, when it became apparent that her mother had made plans to travel out of town that evening and required a babysitter.
[[4]] The evidence at trial from the mother indicated that she had many personal struggles in her own life and that only a few months prior to the commission of these offences, Kina Gbezhgomi Child and Family Services, an Indigenous-based child protection service in Northern Ontario, had returned her children to her. One of those children is the victim in this case.
[[5]] Quite candidly, the mother admitted that she had serious financial struggles and was required to engaged in the illicit sale of drugs for basic survival and that this was the reason why she needed a babysitter on the night in question.
[[6]] B.B. and his girlfriend, C.E., were in positions of trust in relation to the 12-year-old female victim. She looked up to B.B. as an uncle, and to C.E. as a second mother.
[[7]] It was established at trial that the victim’s mother perceived B.B. as trustworthy in the week and a half after she was initially introduced to him by her trusted friend, C.E. The evidence is undisputed that the nature of the relationship with B.B. was one of a trusted family friend, who the victim, a child complainant, looked up to as an uncle. Because of this positive nature of the relationship, both the victim and her younger brother referred to B.B. as “Uncle B-----.” There was in fact a relationship of trust and authority that B.B. had over the victim and this is not disputed by B.B.
[[8]] It was proven at trial that after B.B. volunteered to take on the responsibility to babysit the victim and her younger brother and while he was home alone with them, the victim was under the understanding that she was going to watch a horror movie with him in the living room.
[[9]] When the victim was situated in the hallway in the residence, B.B. was in an adjacent bedroom. He called from a bedroom and said to her, “I heard you masturbate”. The child's response was age-appropriate, and she replied by telling B.B. that she was not “a good fisher” or she was not “good at fishing.” B.B. then repeated these words to her.
[[10]] She candidly told the court during the trial as she did not know or understand what the word “masturbate” meant and explained that she was confused when B.B. spoke to her about this.
[[11]] It was established at trial that B.B. called the child into the bedroom to sit down on the same bed where he was situated. He then touched the child’s elbow and proceeded to show her pornographic videos on his cell phone. These various videos included graphic video footage of adults engaged in explicit sexual activity.
[[12]] The child described to the Court that she fell into a state of shock and experienced the sensation of going blank and in her words, “zoned out”, as B.B. proceeded to play these various pornographic videos for her to watch.
[[13]] After these videos were played and while the child was in a state of shock, I found as a fact that B.B. then lifted up the child’s shirt and began to suck on her breasts while she was seated beside him on the bed.
[[14]] The child described in her evidence that she was frozen in a state of shock and could not move. She could not scream or yell for help. In her words, she just sat there hoping that this would come to an end.
[[15]] The showing of the pornography videos to the child was carried out by B.B. for the purposes of then sexually assaulting her. Indeed, moments after he put his cell phone away, that is exactly what he did. He lifted up her shirt, sucked on the child's breasts and then apologized to her. He attempted to justify this sexual assault by explaining to her that he himself was a victim of child sexual assault.
The Circumstances of the Offender
[[16]] B.B. is 57 years old and has a criminal record, but it is unrelated and there is no history of violence or sexual offending. He experienced a tumultuous upbringing due to his mother's struggle with an addiction to alcohol and poverty. He is a survivor of child sexual abuse himself and has struggled with an addiction to alcohol since the age of nine and drugs well into his adulthood. He has attempted treatment most significantly in 2008 in Huntsville. He is currently involved in a stable relationship with C.E., but his previous partner introduced him to cocaine, oxycontin, and fentanyl.
[[17]] An addiction to cocaine played a contributing part in the commission of these offences of a sexual nature involving a 12-year-old girl. Although there is no evidence to substantiate his claim, the Court accepts that he has managed to achieve sobriety as of October 2023. In addition to no longer using drugs, he only drinks occasionally but certainly not to excess. He has the support of family and has been gainfully employed as an ironworker for the past 30 years.
The Position of the Parties and consideration of Concurrent or Consecutive Sentences
[[18]] The Crown is seeking a penitentiary term of three and a half years and various ancillary orders. Ms. Whillans submits that the offence of sexual assault is worthy of the maximum penalty of two years less a day given that this matter proceeded by summary conviction.
[[19]] She is also asking that I impose a consecutive sentence of 18 months for the offence of making available sexually explicit material to the victim believed to be under the age of 16 years old for the purposes of facilitating the commission of a sexual assault.
[[20]] The Crown argues that the two offences should be sentenced consecutively in order to recognize Parliament's distinct legal interests for each of those sexual offences involving the victimization of a child.
[[21]] According to the Crown, a sentence of three and a half years on these facts in consideration of the aggravating and mitigating circumstances, would adequately address the need for denunciation and deterrence and would not offend the totality principle.
[[22]] In making this submission, Ms. Whillans relies heavily on the Supreme Court of Canada decision of R. v. Friesen, 2020 SCC 9, and that court’s admonishment of trial judges across Canada for inadequately imposing sentences of a sufficient length for child sexual abuse matters.
[[23]] On behalf of B.B., Mr. Eshetu submits that a fit sentence would be a total sentence of 12 months concurrent for both offences. On the issue of concurrent versus consecutive, he asks me to impose a concurrent sentence in light of the principles of restraint, totality, and the fact that both offences of a sexual nature on a child were committed during the same transaction.
[[24]] Having considered paragraph 94 in the Supreme Court of Canada decision of R. v. Bertrand Marchand,2 I am of the view that a fit sentence that proportionately addresses specific and general deterrence, rehabilitation, and the aggravating and mitigating circumstances of this case, requires me to impose a sentence that is consecutive for both offences.
[[25]] I have considered the distinct offences of sexual assault and making available sexually explicit material to the child under the age of 16 years old for the purposes or facilitating the commission of a sexual assault. Parliament has different objectives that are intended to effectively address the distinct essential elements of these separate offences when children are sexually abused. Indeed, on the facts of this case, I find that the offence of making available sexually explicit material to the child was a means applied by B.B. to normalize this type of adult sexual conduct to the child in preparation for the eventual sexual assault.
The Law
[[26]] The relevant sentencing principles in the Criminal Code are as follows:
“Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Objectives — offences against children
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.
Objectives — offence against vulnerable person
718.04 When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. 2019, c. 25, s. 292.1.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
a. evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
b. evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
i. evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
c. evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
i. evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;”
Friesen
[[27]] In Friesen,3 the Supreme Court of Canada made it clear that sentences involving the sexual abuse of children must be increased to more accurately reflect the degree of harm and exploitation of children. Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[[28]] In the words of the Supreme Court at para. 114:
“…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…”
[[29]] Friesen also reaffirms the requirement that judges must give primary consideration to the principles of deterrence and denunciation in cases such as this involving the sexual abuse of a child. Other principles of sentencing such rehabilitation and restraint shall not be given equal or more weight than the paramount principles of deterrence and denunciation.
[[30]] At the same time, I am not to ignore the principles of rehabilitation and restraint, as it relates to my obligations in determining an appropriate sentence for B.B. Most recently, the Ontario Court of Appeal in C.B.,4 in interpreting Friesen, reaffirmed that sentencing judges retain discretion to consider factors that may mitigate the moral culpability of the offender. Judges may accord significant weight to other sentencing principles, including rehabilitation in determining a fit sentence in accordance with the overall principle of proportionality. This instruction was also referenced in the Supreme Court decision of Bertrand Marchand.5
[[31]] Similarly, the Ontario Court of Appeal in M.V.,6 reminds us that the principle of restraint in section 718.2(d) and (e) continue to be relevant in cases of this nature.
[[32]] There are several factors to consider in determining a fit sentence involving child sexual offences as outlined by the Supreme Court in Friesen:7
a) The likelihood that the offender will reoffend;
b) The abuse of a position of trust or authority;
c) The duration and frequency of the sexual violence;
d) The age of the victim;
e) The degree of physical interference;
f) Participation by the victim.
[[33]] Friesen does indeed require sentences involving the victimization of children in sexual assault cases to increase considering the requirement to emphasize the principles of deterrence and denunciation.
[[34]] However, I also recognize that this increase in the quantum must be balanced with the principles of restraint, parity, and rehabilitation that must still be considered post-Friesen.
Aggravating Factors
[[35]] The aggravating factors are as follows:
B.B. was in a position of trust and authority over the 12-year-old victim. She along with her younger brother were vulnerable because they were left in the care of B.B. and had little control over this childcare arrangement. The children trusted B.B. to the point where they referred to him as “Uncle B-----.” The impact of this breach of trust is supported in her Victim Impact Statement in the record before me.
B.B. took advantage of a situation of vulnerability when the child's mother was in need of a babysitter with no alternative support. He utilized this opportunity to sexually assault the very child that he was trusted to supervise.
The showing of the pornography videos to the child was carried out by B.B. for the purposes of then sexually assaulting her. As indicated, B.B. showed the victim videos of graphic sexual activity on his phone. This caused her to freeze in a state of shock and she could not move, scream, or yell for help. In her words, she just sat there hoping that this would come to an end. This in fact facilitated B.B.’s ability to carry out the sexual assault upon the child immediately thereafter.
The extent of physical, emotional, and psychological harm upon the victim has been devastating as clearly articulated by S.W. in her Victim Impact Statement. Today, she struggles with trust issues with adults, described feeling dirty and excessively cleaned herself after the offences. She was also afraid at the time it happened to tell her mother and the ultimate disclosure of the offences strained this delicate relationship. The nature of the relationship with B.B. and the child must also be considered in light of the violation of the child’s sexual integrity. At the time of the offences, B.B. was a 54-year-old man whom she had met on one prior occasion and trusted as an uncle. He showed her graphic pornography and then lifted up her shirt and sucked on her breasts after asking her if she masturbated. Recognizing that the degree of physical interference is a factor, but not determinative in deciding a fit sentence, clearly, the gravity of this offence is high given the significant psychological harm upon the child which continues to manifest itself today.
Due to her young age and the fact that she was home alone with B.B. without any adult supervision, the victim was extremely vulnerable and had no ability to physically resist these attacks on her sexual integrity. This high level of vulnerability highlights the power imbalance that likely contributed to her victimization at the hands of B.B.. This adds to the gravity of the offences before me.
The commission of these offences, victimization, disclosure to police, involvement of child protection authorities yet again has all resulted in a family breakdown for the victim. These offences caused by B.B. sparked a chain of events that took place shortly after she was returned into her mother’s care by an Indigenous-based, child protection agency. This has caused further psychological and emotional trauma to the child victim as evidenced in her Victim Impact Statement and that of her father’s, A.W.
The victim was a 12-year-old Indigenous girl. This, along with the fact that she was under 18 years old, is an aggravating factor in light of her highly vulnerable circumstances that amplifies the impact of these offences on her. Particular attention must be given to the repeated, ongoing victimization of Indigenous woman and girls as a consequence of intergenerational trauma, colonialism, and history of cultural genocide imposed upon Indigenous people at the hands of the Canadian government.
Mitigating Factors
[[36]] The mitigating factors are as follows:
B.B. has a criminal record, however, he has no history of violence or sexual offending. As noted in the Pre-Sentence Report (“PSR”), his record is primarily related to driving related offences connected to his struggles with alcohol going back several years.
B.B. has struggled with addiction to substances since the tender age of nine. This addiction progressed to the point of hospitalization as an adult. Over the years, he has undertaken treatment. The consumption of cocaine and alcohol contributed to the commission of these offences. Although I accept the submission of Mr. Eshetu that B.B. has not used drugs since October 2023, and that he no longer drinks alcohol excessively, his journey to achieving sobriety continues today.
As noted in the PSR, B.B. himself suffered sexual abuse for many years at the hands of two adults in his life as a young boy. A Boy Scouts leader and hockey coach violated his sexual integrity repeatedly between the ages of 7 to 13. I can infer that this victimization and resulting trauma is directly linked to his struggles with alcohol and drugs throughout his life.
B.B. is highly employable. Despite his criminal record and struggles with substances, his employment prospects appear hopeful. He has a history of being employed as an iron worker for the past 30 years and his employment opportunities continue to this day.
He has a supportive family that consists of three children, seven grandchildren and an intimate partner, C.E. He has managed to work locally in a shift schedule with an employer to permit him to work alongside one of his sons.
His rehabilitative prospects appear to be cautiously optimistic. I say this because his ability to manage addictions to drugs and alcohol may be connected to some degree to his future risk of re-offending in a sexual way against children. While I accept he is sober today, I do not have any detailed evidence that speaks to his degree of insight into substance use and sexual offending.
Grooming
[[37]] There is no evidence of any grooming in this case. However, I note, that in accordance with the SCC’s decision in Bertrand-Marchand, the lack of any grooming is not a mitigating circumstance.
Disposition
[[38]] I remind myself that a sentence must be sufficient to denounce the wrongfulness of the conduct and the actual and potential harm that the offences give rise to.8 The Court remains hopeful that B.B. will seize this opportunity to address the underlying issues in his life that contributed to these offences. The Court also sincerely hopes that the child victim and her father and their entire family can heal and move forward despite the deeply traumatizing experience of what happened here.
[[39]] Having considered the totality of the evidence before me and the applicable legal principles, I am of the view that a fit sentence is a term of custody of 36 months less a day or 1094 days.
[[40]] I have considered the totality principle as I consider the appropriate sentence for each of these offences. I remind myself that a sentence must be sufficient to denounce the wrongfulness of the conduct and the actual and potential harm that the offences give rise to.9 This sentence would adequately address the Supreme Court’s instructions in Friesen, in consideration of the aggravating and mitigating circumstances of this case as well as the principles of totality and restraint.
[[41]] For the offence of sexual assault upon S.W. contrary to s. 271 of the Criminal Code, I am sentencing you to a custodial term of two years less a day.
[[42]] For the offence of making sexually explicit material available to a child under the age of 16 for the purposes of facilitating the commission of an offence under s. 271, contrary to section 171.1(1)(b)10 of the Criminal Code, I am sentencing you to 12 months consecutive.
Ancillary Orders
[[43]] While in custody, B.B. will also be prohibited from communicating directly or indirectly with the victim, her mother, father, or any other member of her family pursuant to section 743.21 of the Criminal Code.
[[44]] There will also be a weapons prohibition pursuant to section 109 of the Criminal Code for 10 years.
[[45]] I am also ordering that a sample of B.B.’s blood be taken for inclusion on the national DNA databank, pursuant to section 487.051(1) of the Criminal Code.
[[46]] There shall be an order pursuant to section 420.012 and .013 to comply with the SOIRA reporting requirements for a term of 10 years.
[[47]] Pursuant to s. 161(1)(a), (a.1), (b) and (c) of the Criminal Code, in addition to any term of imprisonment, for a period of 10 years, B.B. is prohibited 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 center, schoolground, playground or community center;
a.1) being within two kilometers of any dwelling-house where S.W. ordinarily resides;
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;
c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so in the immediate presence of an adult aged 20 years or older.
Released Orally: September 11, 2024
Written Reasons released September 12, 2024
Signed: Justice Leonard Kim
Footnotes
- My Reasons for Judgment are reported at R. v. B.B., 2024 ONCJ 210.
- R. v. Bertrand Marchand, 2023 SCC 26.
- R. v. Friesen, 2020 SCC 9.
- R. v. C.B., 2024 ONCA 160 at paras. 30, 34.
- R. v. Bertrand Marchand, 2023 SCC 26 at para. 28.
- R. v. M.V., 2023 ONCA 724 at para. 83.
- Friesen, at paras. 122 – 154.
- M.V. at para. 42.
- M.V. at para. 42.
- The Information on Count 3 pursuant to s. 171.1(1)(b) of the Criminal Code reflects the wording, “…under the age of 14.” However, the correct age in this subsection of the Criminal Code should read, “…under the age of 16.” Although in my oral reasons released on September 11, 2024, I referenced the age 14, I have made this correction in my written reasons for the sake of accuracy and consistency. Any error in this regard in my oral reasons is completely mine.
