CITATION: R. v. E.G., 2017 ONSC 1000

COURT FILE NO.: CR-15-70000440-0000

DATE: 20170223

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Alannah Grady, for the Crown

• and -

E.G.

Robert Richardson, for the Defence

Defendant

HEARD: January 23, 2017

Reasons for Sentence

Michael G. Quigley J.

Overview

1E.G. was charged with sexually assaulting C.G. The charges included one count of sexual touching of C.G. when she was a person under fourteen years of age (Code, s. 151) and three counts of sexual assault (Code, s. 271). The first three charges related to a time between 1998 and 2001 when C.G. was under fourteen years of age, and the last to an episode in September of 2013 when C.G. was twenty-five years of age. On December 21, 2016, I found E.G. guilty as charged of counts one, two and three relating to the period when C.G. was under fourteen years of age, but I acquitted him of count four. My reasons for judgment are reported at 2016 ONSC 8069.

2The issue on this sentencing hearing is what the fit sentence is for this forty-five-year-old offender for these serious sexual assaults in all the circumstances of the case.

Circumstances of the Offences

3The complainant, C.G., is now thirty years of age. She was born in St. Vincent in 1985. Her mother came to Canada when she was two years of age. C.G. followed her and also came to Canada when she was twelve years old in the summer of 1998. In addition to her mother, E.M., her Aunt R. and her Uncles S. and E.G. had also been in Canada since she was two years old. E.G. is her grandmother’s brother, but she referred to him as her “Uncle Steve”. She has known E.G. since she was a very young child.

4When she first came to Canada, C.G. lived with her mother and other family members in Toronto at her Aunt’s house. She lived there for two to three years and then, when she was in high school and about fourteen to fifteen years old, she and her mother moved to another location in Toronto.

5C.G. never lived with her “Uncle Steve”, E.G. During the period of these events, he was living in an apartment on P[…] Avenue close to Riverdale with a girlfriend and her son. C.G.’s aunt and her two sisters lived nearby, as well as her cousin, “V”. It was a five-minute walk from V’s residence to E.G.’s apartment on P[…] Avenue.

6The first interaction C.G. recalls with E.G. took place about three weeks after moving to Canada. She was twelve, three months before her thirteenth birthday. He came and picked her up and took her for a drive to a local park. They were sitting on the grass at the park when he gave her a big hug with his arms fully around her, and while he was doing so he slipped one of his hands down to her breast. She thought he hugged her tightly so that he could feel her breasts against his chest. Then he drove her back home. She did not tell anybody about what had happened. While that might have been a sexual assault, E.G. was not charged relative to that occurrence. Frankly, though she was certain he hugged her fiercely to feel her breasts against him, C.G. did not think at that time it was anything other than him being friendly towards her.

7The first charged sexual assault took place at E.G.’s apartment on P[…] Avenue not long after. She would have been twelve, close to her thirteenth birthday at the time. No one was home except E.G. and the girlfriend’s son. She remembered that E.G. sent the son to his room to play. E.G. was sitting next to C.G. on the couch. He began touching her legs and he started to stroke his hands up and down her thighs. She was clothed at the time. He told her to take her clothes off but she did not want to. He ignored her. She remembered telling him she would not take her clothes off, but then her clothes were off and she found herself down on her knees facing the couch and he was trying to force his penis into her vagina. She remembered telling him that it hurt. She remembered that she was embarrassed and uncomfortable about taking off her clothes, but that she did so because he told her to and he was her uncle. He was behind her as he put his penis into her vagina. She did not remember whether he used a condom or whether he ejaculated inside her. C.G. felt for the first time that she was in a “dark place.” She did not tell anyone because she was scared. She thought she had done something wrong. She felt lonely and was in that dark place “for a long time.” She said she felt like something had been taken from her.

8The second event took place about two months later, because she remembered it was starting to get cold. She and her cousin V were hanging out together on a weekend. E.G. called her to come and babysit his girlfriend’s son. She knew that he did not want her to come over to babysit and as she expected, when she arrived at his apartment, the girlfriend was not there, and neither was the son. E.G. led her into the son’s room where there was a bunk bed. He told her to take off her clothes. She took off her clothes because he asked her to. He told her to lie down on the bed and she did. She recalled she was embarrassed as she took her clothes off, because she remembers having told E.G. that she was having her period. He reassured her, however, that it would be okay. She lay down on the bed and he put his mouth on her vagina and began to perform oral sex on her. Then he had sexual intercourse with her. He opened her legs and forced his penis into her vagina. She remembers that she was lying on her back and that her legs were up off the bed. He was bent over her and they were face to face. She did not know how long the event lasted or if he used a condom. When he was finished with her, she put on her clothes and he took her back to V’s house right away. She did not tell anyone. She was afraid to tell anybody; her mother or anybody else. As she expressed it, she was scared that she would get “licked” because she had done something wrong. She was afraid that her mother would beat her. She distinctly recalled that she was twelve or thirteen years of age at the time and had not yet reached her fourteenth birthday.

9The third incident also took place at E.G.’s apartment on P[…] Avenue. She thought it was within a few months of the earlier events. The girlfriend was not at home. E.G. sent her son to his room, and then took C.G. to the bedroom that he shared with the girlfriend. She remembered a white mesh or netting over top of the bed. He had sex with her there in that room on his bed. She also distinctly remembered that as he finished, he squeezed the two cheeks of her face to force her mouth open and then spit into her mouth. She remembers spitting it out. Again, she did not tell anyone what had transpired.

10There were other subsequent incidents, one at her Aunt’s house when she still would have been under fourteen. She had been down in the basement living room watching TV, and E.G. was visiting. Others in the family were away from the house. E.G. came down to the basement, took her to the laundry room, forced her to bend over the freezer, removed her bottoms, and then he put his penis in her vagina as he stood behind her with her leaning on the freezer supported by her forearms. They heard noise of people returning and so he finished quickly and ejaculated on her lower back. She put her clothes on quickly and went back to the living room, as did he, as if nothing had happened.

11The last of their sexual interactions, on which I acquitted E.G., took place over ten years later in September 2013. It is important here that the events described above were what led C.G. to have a sexual relationship with E.G. that continued with regularity, even if intermittently, from her teens up until she was twenty-five years of age. That ongoing sexual relationship is admitted. It is not admitted whether or not it was consensual and those events do not form part of these charges or any other charges, but they are important since they were arguably just a continuance of the earlier assaults that led to C.G. having significant drug and alcohol issues and emotional damage caused by those early events, and then the continuance of that sexual relationship. I acquitted E.G. of that offence. Having regard to all the circumstances of it, and the ten-year sexual relationship that preceded it, I was not sure that it was non-consensual. I believed C.G.’s evidence, generally, but was uncertain. It was probably an assault as claimed, but the entirety of the circumstances left me unsure. This required that E.G. be acquitted of that charge. I had no similar uncertainty about any of the historical sexual assaults that occurred before C.G. was fouteen

Circumstances of the Offender

12As noted, E.G. is forty-five years of age. He was about twenty-seven when these offences occurred. He has three children, two of whom, aged six and four, reside with him and his present wife. His wife is standing by him and is supportive notwithstanding these offences, but she has also indicated that she will not return with him to St. Vincent when he is deported. They recently purchased a house, which will now have to be abandoned for lack of financial resources as he serves his sentence. E.G. has a father who still lives in St. Vincent, and to whom he has regularly sent money, as well as a brother. His mother died about five years ago.

13E.G. came to Canada in 1992 but he never became a citizen. He has been employed while he was resident here, building store fixtures. Immediately before the charges were laid, he was employed by ENF, a company involved in the preparation of displays of goods in store windows. Evidently he was a good and reliable employee. Defence counsel advises that family is important to E.G., but that he will lose that family and necessarily become estranged from his children as a consequence of me having convicted him of these offences. It is argued that that is also a factor that should cause me to reduce the length of sentence I impose upon him.

Impact on the Victim

14In her victim impact statement, C.G. speaks to the life-changing impact that the sexual abuse perpetrated against her by her “uncle” has had on her. It made her life very dark. While he is only being sentenced here for the three offences that occurred between 1998 in 2000, from her perspective, the abuse continued on for fourteen years from the age of twelve until she was twenty-six. These events had a terrible impact on her self-esteem, her ability to focus at school and her ability to work or hold down a job. She suffers from very low emotional well-being and poor memory. The impact of these offences means that she cannot permit even consensual sexual partners to touch her in certain ways. Her ability to enjoy sexual intimacy with men she cares about has been damaged, possibly permanently.

15In her introspection trying to understand why these things happened, C.G. believes the relationship with E.G. carried on because she needed the love of a “father” even though her own father was not a part of her life. She started using alcohol and drugs to cope with the abuse at about eighteen years of age. That usage has fallen off, but smoking marijuana still helps her to feel better. This incident has caused great difficulty to her relationship with her mother. She feels her mother could have done more to protect her, but as she describes it, no one was protecting her. She wants nothing further to do with E.G. or with his family. She wants to move on in her life and has recently started taking counselling to combat feelings of anxiety. Plainly these were life-altering impacts.

Positions of Crown and Defence

16The Crown takes the position in this case that a sentence of seven years in the penitentiary is required, having regard to the particular facts, the appropriate principles of sentencing that the Crown contends are engaged, and in consideration of aggravating factors that are claimed to be present. It is important to note that E.G. is also presently being held on an immigration hold that resulted after I convicted him of these offences. The result of that status is that he is not eligible for early release. Once he becomes entitled to statutory release after serving two thirds of the sentence I impose upon him, he will be deported back to St. Vincent. However, before the immigration authorities took him into custody in late 2016, the offender was not in custody, so since he served no time in pre-sentence custody, he is not entitled to any pre-sentence custody credit under the principles in R. v. Summers¹.

17In addition, by way of ancillary orders, the Crown seeks:

(i) A DNA order under section 487 of the Criminal Code (primary compulsory);

(ii) A lifetime firearms and weapons prohibition order under section 109 of the Code;

(iii) An order under section 161 of the Code for life prohibiting the offender from attending a public park, swimming area, daycare centre, school ground, playground, community centre or similar location were a child under the age of fourteen is present or can reasonably be expected to be present. It also seeks an order prohibiting the offender from being within 200m of any dwelling house where he knows the victim to live, work or is otherwise known to be located, and from seeking or continuing any employment, remunerative or otherwise, that involves being in a position of trust or authority towards a person under the age of fourteen years, and from having any contact or communication with any person under sixteen years of age unless under the supervision of a person over eighteen years of age who is aware of this order; and finally,

(iv) A lifetime sex offender registration order under s. 490.013 (2.1) of the SOIRA because he has been convicted of more than one designated offence as stipulated under paragraph 490.011(a)(ii) and (iii).

18Defence counsel contends the objectives of sentencing and the factors that must be taken into account can be met in this case by a sentence of two and a half to three years of imprisonment. He takes no objection to the ancillary orders sought, but would qualify two of them. Since there was no evidence of a weapon having been used in the sexual assaults, he contends a ten-year section 109 order is adequate. Further, he argues the section 161 orders are unnecessary on the basis that the offender has two young sons of his own and there was no evidence of abuse of them or other young persons and as such, that the requested order is excessive and unnecessary for the protection of the public.

19Defence counsel acknowledges that E.G. will promptly be deported after serving his sentence, and that it will be this sentence that will seal his fate on that issue, but he argues that in itself is an additional penalty that should weigh in the calculus to cause the sentence of imprisonment to be reduced.² Defence counsel also says that since E.G. is not eligible for early release, the requirement that he serve a full two-thirds of his sentence before being deported is a factor I should take into account as well relative to reduction of sentence.

Principles of Sentencing and Caselaw

20The sentencing principles from section 718 of the Code that are of overriding importance in sexual offences involving children in circumstances of trust like these, are denunciation and deterrence: denunciation of the offender for obtaining his own sexual gratification from a child who trusted him, and, except in the most extraordinary of circumstances, a term of incarceration, typically substantial, as specific deterrence to the offender and general deterrence to others who might emulate his conduct.

21The sentence must also be proportionate to the gravity of the offence³, determined by reference to the particular facts of the case. That must take account of the specific circumstances of the offence and the specific circumstances of the particular offender. As well, the governing principles require that a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances, even though recognizing that sentencing is an individualized process, which may necessarily result in sentences that differ from each other.

22The jurisprudence speaks clearly to the needs for deterrence and denunciation in a case like this one. It focuses on the obvious that sexual offences against minor children are repulsive and egregious. The fundamental breach of trust between a child and an adult that necessarily underlies all such offences requires a significant sentence.

23In R. v. D.D.⁴, an adult predator in a position of trust sexually abused young boys on a regular basis over a lengthy period of time. Moldaver J.A., now of the Supreme Court, discussed the plight of children and the principles of sentencing that must take precedence when adults exploit innocent young children.⁵ He listed the relevant considerations and principles, and then concluded at para. 45 that:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!

24R. v Woodward⁶, referring to D.D., emphasizes that the focus must be on the harm caused to the child by the offender’s conduct and the life-altering consequences that flow from it, as they have in this case, as evidenced by the victim impact statement read by C.G. and filed as an exhibit. The effects of a conviction on the offender and his prospects for rehabilitation also warrant consideration, but the need to denounce and deter and to separate sexual predators from society for society’s well-being and the well-being of our children necessarily take precedence. In that case, the Court of Appeal concluded that adult predators who sexually abuse young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant in that case for the sexual assault he committed on a twelve-year-old complainant was not excessive. While the Court of Appeal acknowledged that trial judges retain flexibility to fashion a fit and just sentence in a particular case, crimes like those committed by the appellant in that case will typically warrant mid to upper-level single-digit penitentiary sentences.

25The Court of Appeal again emphasized the point in R. v. D.M.⁷ In that case, a fifty-seven-year-old uncle repeatedly sexually abused a minor child for a prolonged period. Feldman J.A. observed that where an adult in a position of trust sexually abuses a child for a prolonged period, including penetration, the minimum sentence will be five or six years in the penitentiary.⁸

26A sentence of five years or more will be required where one or more of the following aggravating factors was present: (i) sexual intercourse, (ii) oral sex, (iii) incest, (iv) more than one victim, (v) grooming of the victim, (vi) other acts or threats of physical violence to obtain compliance and keep the abuse secret, or (vii) a previous criminal record for sexual abuse.⁹ In this case, regardless of whether the incident in the park is considered to constitute sexual grooming in advance of the first actual sexual assault charged, as contended by Crown counsel, the fact is there were three incidents of sexual intercourse and at least one incident of oral sex, so those factors on their own command the higher levels of sentence. Nevertheless, D.M. also recognizes that sentences of that duration will not always be called for. Even where one or more of the preceding aggravating factors was present, the court noted at para. 71 that sentences of less than five years have nonetheless either been imposed at an appellate level or upheld in particular cases.

27Crown counsel also referred to the decision in R. v. A.A.¹⁰, where this court imposed a sentence of five years and forty-five days where a stepfather sexually abused his stepdaughter between the ages of four and nine. There were five specific incidents and arguably similar aggravating factors.

28Defence counsel refers to two of my decisions in R. v. J.E.B.¹¹, and R. v. J.M.¹², and a number of other cases, R. v. D.R.¹³, R. v. Pham, above, R. v. F.F.¹⁴ and R. v. R.J.¹⁵, as supporting his position that the appropriate sentence in this case is two-and-a-half to three years of imprisonment. In my view, however, the circumstances in those cases are quite different from what is present here.

29In J.E.B., I sentenced the accused to serve a conditional sentence of eighteen months’ imprisonment for sexual abuse perpetrated against a young boy between the ages of four and eleven, but the critical fact in that case was that of the time of his sentencing, thirty years after the offences occurred, the offender was seventy-eight years of age and afflicted by numerous serious medical conditions. This was the principal factor that caused me to impose that exceptionally lenient sentence. In J.M., the offender was the uncle of the two victims, his nieces, and the abuse carried on over some years, and I sentenced him to three-and-a-half years of imprisonment. However, the offences were largely restricted to sexual touching and one instance of forcing one niece to masturbate him, and sexual touching with the second niece but always with clothes on. The other factor in that case which would otherwise have been a four-and-a-half-year sentence was a compassionate element since the offender had an autistic child by his current spouse and he appeared to be one of the only persons who could get through to and communicate with that child. That called for a lighter sentence than I would otherwise have imposed in the interests on not ruining yet another life.

30While I accept that a sentence of two years was imposed in Pham, the importance of that case is less the sentence than the fact, as noted above, that the immigration consequences that will follow the sentence must be taken into account. D.R. is a 2003 decision that precedes our Court of Appeal’s weighing in in D.D. on appropriate sentences for child sexual abuse in circumstances of trust. It involved a sentence that is outside of the range that is acceptable or fit after D.D. Finally, in F.F., a sentence of 12 months was imposed, but that was for minor sexual touching of two nieces and playing “games” with them. There was no intercourse as there was here.

Mitigating and Aggravating Factors

31In this case, there are statutory aggravating factors. It is aggravating that the victim was under eighteen years of age (s. 718.2(a)(2.1)), and even if he was not in the position of a parent towards C.G., E.G. was certainly a trusted family member and abused that position of trust (s. 718.2(a)(3)). Moreover, the destruction of C.G.’s self-esteem and the changed life she has led that flows out of these events as expressed in her victim impact statement is itself also statutorily aggravating (s. 7218.2(a)(3.1)).

32Other aggravating factors include the fact that the victim was at the youthful age of twelve when this abuse started to be perpetrated against her, that there was a thirteen-year differential in age between herself and E.G., that she was vulnerable having just moved to Canada from St. Vincent, and that the initial encounter at the park might, at least to some extent, be regarded as “grooming”, in the sense of the offender having tested the waters a little bit to see how she would react if he touched her in a sexual manner. The sexual acts themselves are highly aggravating, consisting of sexual intercourse and oral sex, on one occasion when the victim was on her period, the offender ejaculating on the victim’s lower back area on another occasion, and the disgusting and controlling exercise of dominance reflected in spitting in her mouth. His conduct was revulsive and predatory.

33It is also aggravating, even though it was not a basis of the charges here, that these initial actions are what led to the continuance of a sexual relationship with the victim for ten to twelve years. The Crown also mentioned E.G.’s one prior conviction for a sexual assault of a partner, but I accept the defence position that his record cannot be taken into account here because that offence post-dates these offences.

34There really are no mitigating factors here, perhaps other than that E.G. has been a good employee, and has seemingly been a good father to his own children if the support of his wife is any indication. But his employment prospects will not matter, because he will never be employed again in this country, other than while serving his sentence, because he will be deported as soon as he reaches his statutory release date.

Reasons

35Given the serious aggravating factors that are present here, both statutory and factual apart from the statutorily aggravating aspects, given the damage caused to C.G.’s life that plainly specifically arose with this man out of the predatory sexual relationship that he had with her, and that commenced with these offences for which he has been convicted, I fully accept Crown counsel’s position that an appropriate sentence in all of the circumstances of the case would otherwise be a sentence of seven years’ imprisonment.

36Nevertheless, given (i) that E.G. is not eligible for early release after completing one third of his sentence, and must instead continue to serve the full two-thirds of the sentence until he reaches his statutory release date, and (ii) that there is no question that E.G. will be deported from Canada as soon as he is he is finished serving his sentence, I am persuaded that a lesser sentence should be imposed. It should be imposed because of the principles of totality and proportionality, taking account of those factors. As such, I have determined that the fit sentence in all of the circumstances of this case is somewhat less than might otherwise be imposed.

37The ancillary orders will all issue, although I am persuaded, given that E.G. will be deported from Canada as soon as his sentence is completed, that there is effectively no need for a section 161 order for life, and that the weapons prohibition order under section 109 should be for ten years rather than life, given that there was no evidence of weapons or violence having been used in the circumstances of this case. This SOIRA order will issue for life, E.G. will provide a sample of his DNA, and an order will also go under section 743.21 that he is to have no contact with the complainant while he remains in custody. From her perspective, he would be wise to ensure that he has no contact with her for the rest of his life, but this Court can only make an order that applies during the period of time he is incarcerated

Final Decision

38E.G., please stand up. You will provide a sample of your DNA, you will be registered in the National Sex Offender Registry for life, you will refrain from owning any weapons for ten years, and you will have no contact whatsoever with this complainant at least while you are incarcerated, and preferably afterwards as well.

39These are disturbing offences that were predatory, opportunistic, demeaning of the value of another human being, a member of your own family, destructive of the innocence of childhood, and that carried on for your self-gratification long after the initial offences. They are offences that call out for a stark and strong statement of the community’s revulsion at your conduct. So for all of these reasons, for having committed three grievous sexual offences against this complainant, C.G.; two sexual assaults, and one invitation to sexual touching when she was under the age of fourteen years, I sentence you to serve six years in the penitentiary.

M.G. Quigley J.

Footnotes

1. 12013 ONCA 147, [2013] O.J. No. 1068; 2013 ONCA 147; 114 O.R. (3d) 641; 304, aff’d, 2014 SCC 26, [2014] S.C.J. No. 26.
2. 2See R. v. Pham, 2013 SCC 15, [2013] S.C.J. No. 100.
3. 3Code, s. 718.1.
4. 42002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), 163 C.C.C. (3d) 471.
5. 5Ibid., at paras. 34-38.
6. 62011 ONCA 610, [2011] O.J. No. 4216 (C.A.).
7. 72012 ONCA 520, [2012] O.J. No. 3616 (C.A.).
8. 8Ibid., at para. 44.
9. 9Ibid., at para. 68.
10. 10[2016] O.J. No. 3285 (S.C.J.).
11. 11[2014] O.J.No.1479 (S.C.J.).
12. 122016 ONSC 4837, [2016] O.J.No.4148 (S.C.J.).
13. 132003 CanLII 9127 (ON CA), [2003] O.J.No.561 (C.A.).
14. 14[2016] O.J.No.4490 (S.C.J.).
15. 15[2014] O.J.No.5980 (S.C.J.).