R. v. E.S., 2018 ONSC 4808

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. E.S., 2018 ONSC 4808

COURT FILE NO.: Crim J(P) 934/15

DATE: 2018 09 10

B E T W E E N:

HER MAJESTY THE QUEEN

Patrick Quilty, for the Crown Attorney

• and -

E.S.

Eugene Bhattacharya, for the Accused

REASONS FOR SENTENCE

TRIMBLE J.

THE JURY’S VERDICT:

1On November 20, 2017, a jury convicted E.S. of sexual assault of C.P. contrary to section 271 of the Criminal Code of Canada, sexually touching C.P., contrary section 151 of the Code, and invitation to C.P. to touch his body for a sexual purpose, contrary to section 152 of the Code.

2I have received thoughtful and thorough submissions from counsel and have heard from E.S[1]. C.P. declined to make a victim impact statement.

FACTS:

3By virtue of section 724(2)(a) of the Code I am required to accept as proved all facts, express or implied, that are essential to the jury’s verdict; in other words, to prove the essential element of each charge. I have done so. Conversely, I cannot accept as established any fact that is inconsistent with the jury’s verdict.

4In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 16 to 19, the Supreme Court of Canada said that when the factual implications of the jury’s verdict are ambiguous, the trial judge need not attempt to follow the logical process of the jury, but should come to his or her own determination of the relevant facts. Further, I may find any other fact relevant to sentencing that was disclosed by the evidence. If that fact relates to an aggravating factor on sentencing I must be satisfied that the fact is proved beyond a reasonable doubt. To rely on any other fact in sentencing, it must be proved on a balance of probabilities.

5At trial, the parties agreed that at all material times, C.P. was under the age of 14, and could not consent.

6In order to have found E.S. guilty of sexual assault under section 271 of the Code, the jury must have found that E.S. knowingly and intentionally touched C.P. in a sexual way.

7In order to convict E.S. of sexual interference or sexual touching under section 151 of the Code, the jury must have found that E.S. knowingly and intentionally touched C.P. for a sexual purpose.

8In order to convict E.S. of invitation to sexual touching under section 152 of the Code, with the jury must have found that Mr. E.S. invited C.P., intentionally, to touch his body for a sexual purpose.

9The following are the factual findings I have made which are of significance to sentencing, on the standards of proof as above:

1. E.S. was C.P.’s mother’s boyfriend.

2. E.S. and C.P. were close. He was like a father figure to her as her father was not present in her life much at that time.

3. E.S., as the superintendent of the apartment building in which he and the P.’s lived, was in a position of authority over C.P.

4. E.S. was a part of C.P.’s family. They took many meals together. E.S. participated in many of C.P.’s family outings together. Sometimes E.S. slept in C.P.’s mother’s bed. At other times, the whole family stayed in E.S.’s apartment. The apartments were in the same building of which E.S. was superintendent.

5. The events all occurred in the apartment building of which E.S. was the superintendent, and in which E.S. and C.P.’s mother (Ms. P.) had their family residences.

6. Two of the three events that C.P. testified to occurred in an out-of-the-way location in the storage area in the basement of the building off of the laundry room, out of sight of others, in an area where they would least likely be discovered. E.S., as the superintendent of the building, had knowledge of the building, knowledge of the most remote parts of the building, and access to this area.

7. The third event that C.P. testified to occurred in E.S.’s bed, when a frightened C.P. sought refuge with her sleeping mother, while she slept. As it happened, the family was spending the night in E.S.’s apartment, and C.P. snuggled with her mother while E.S. was on the other side of that bed.

8. The first incident occurred when C.P. was 8 ½ to 9 ½ years old. All other incidents happened within 6 to 7 months of the first.

9. With respect to the first incident, C.P. remembers walking down the stairs with E.S. although she does not remember why. They went into the storage area off of the laundry area. When they were just inside the doors and out of the view of anybody in the laundry area, E.S. asked C.P. to lie on the floor. She did as she was asked. As she lay on the floor, E.S. removed the bottom half of her clothing. He pulled his own pants to his ankles. He touched C.P.’s vagina, touched his penis on the outside of her vagina, put her hands on his penis and then inserted his penis into her vagina. She felt pain. When he was done, E.S. told her that everything was “okay” and that she should not tell anybody about what happened. She listened and obeyed. She said, “I was just a kid”. Afterwards, she put her bottom half back on and left, feeling scared.

10. The second incident happened in E.S.’s apartment. The P.’s were staying over at his apartment. Usually C.P. slept on the living room floor. She does not remember if she had a bad dream but remembers feeling frightened and wanted to crawl in bed with her mother. She did this, crawling in between her mother and E.S. As she lay there, she felt E.S. touch her vagina through her nightie and her underwear. E.S. turned around, placed his arm over her and touched her vagina over her clothing, again. He put her hand on his penis. Neither said anything. The touch was not very long. E.S. then rolled over and took his hand away.

11. The third incident happened in the storage room. C.P. doesn’t remember going there but remembers E.S. being with her. Her first memory is of him taking off his pants and his belt and setting them on the floor. She was lying in the same spot in the storage room floor as before. He leaned forward and helped her take off her bottom half. He penetrated her vaginally.

POSITION OF THE PARTIES:

The Crown

10The Crown submits that I should sentence E.S. to 10 years for the second count on the indictment - sexual touching - and stay the other charges on the principle set out in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

11The Crown also seeks the following ancillary orders:

1. Order of Prohibition for life under section 161(1)(a) of the Code prohibiting E.S. from being near a public park or swimming pool where persons under the age of 14 years are or can reasonably be expected to be present, or a daycare centre, school ground playground or community centre;

2. An Order of Prohibition for life under section 161(1)(b) preventing E.S. from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 14;

3. An Order for life under section 490.12 and 490.13(2)(b), that E.S. comply with the Sex Offender Information Registration Act;

4. A weapon possession prohibition for 10 years under what was then section 100, but is now section 109(1);

5. A DNA order under section 487.04 and 487.05 (1), and;

6. A non-communication order under section 743.12 for the duration of his incarceration with respect to communicating directly or indirectly with C.P.

12The Crown relies on the cases and documents contained in its brief marked as Exhibit 3 to the sentencing hearing.

E.S.

13E.S. is aware that the convictions he faces carry the likelihood of a lengthy penitentiary sentence. He submits, however, that his sentence should be that as recommended by the author of the joint Gladue/PSR Report; namely, two years less a day with the therapies and treatments specified.

14E.S. self identifies as partly aboriginal (through his mother). Therefore, he asks that I apply the Gladue principles to sentencing.

15E.S. relies on the cases contained in its brief marked as Exhibit 4 to the sentencing hearing.

16He takes no objection to the Crown’s requested ancillary orders and agrees with staying all convictions other than the conviction for sexual touching.

PRINCIPLES OF SENTENCING:

Generally:

17Section 718 of the Criminal Code states:

The fundamental purpose of sentencing is 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 …

18Section 718.1 says that sentences “... must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

19Section 718 of the Criminal Code also sets out a number of objectives that a sentencing judge must consider when sentencing, including denouncing the accused’s unlawful conduct, deterring the offender and other persons from committing offences, separating an offender from society (where necessary), rehabilitating the offender, making reparation for harm done to victims or to the community, and promoting a sense of responsibility in the offender acknowledging the harm done to the community.

In Cases of Sexual Abuse of Children:

20Sexual abuse of children is of the most serious or grave offences. It is even more serious or grave where the abuse is by an adult of a child, in which case it attracts a more severe sentence (see R. v. Trowbridge, [1991] O.J. No. 2800 (C.A.)). It is even more serious when that adult stands in a position of trust over the young person.

21Why is this?

22The case law and common sense tell us that sexual abuse is a crime in which the perpetrator inflicts physical violence and violation on the victim, but also dominates and degrades her. The physical harm is often minimal, but the emotional and psychological harm is devastating (see R. v. Johnson, [1998] O.J. No. 92; R. v. Myers, [2000] O.J. No. 1787 (S.C.)). The psychological ramifications are pernicious, devastating, and long lasting (see R. v. M.A., [1996] O.J. 2899). It robs the victim of her most intimate security - security of the person. The victim is often fearful, angry, hostile and distrustful ever after.

23The depth, breadth and pervasiveness of the impact of sexual abuse require that the Court give appropriate emphasis to the principles of denunciation, protection of society, and general and specific deterrence.

24In R. v. D. (D.) (2002), 2002 CanLII 44915 (ON CA), 58 OR (3d) 788; [2002] O.J. No. 1061, Moldaver, J.A. said that adult sexual predators who put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. Denunciation, general and specific deterrence, and the need to separate the offender from society, are paramount over other objectives of sentencing. The physical and more important, the psychological damage done to the victim of a major sexual abuse is well known. Chief among the psychological effects is that the victim has difficulty in forming loving, caring relationships with other adults, being ever fearful that his or her partner will use sexual acts to hurt and dominate the victim, rather than accept them as the expression of a partner's caring and affection. There is also the risk that the victim, in adulthood, will become a victimizer by treating children the way that the victim was treated.

25Moldaver J.A. expressed society's abhorrence of sexual offences when he said at paragraph 44:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

26Notwithstanding the gravity, depth and breadth of the effects of sexual offences against children, the wide range of sentence imposed for such offences reflects the wide array of circumstances in which the offence can be committed and the variety of offenders who may commit it. Every case is decided on the particular circumstances of the offender and the offence (see R. v. Katsnelson, 2010 ONSC 2246 (S.C.)).

ANALYTICAL FRAMEWORK:

27In R. v. John Doe, [2005] O.J. No. 3261 (S.C.J.), Hill J. said that the appropriate framework to determine a fit sentence is to answer those of the following questions appropriate to the case:

1. What judicially created sentencing tariff or guideline range governs the offender’s offence?

2. Within the correct starting range, what is the appropriate balance of common mitigating and aggravating factors?

3. Do any exceptional or extenuating mitigating factors apply in the accused’s circumstances?

4. If the appropriate range of sentence includes a reformatory range sentence, is a conditional sentence of imprisonment justified?

28I address each of these.

1. Sentencing Range:

29Based on all of the facts, I find that the appropriate sentence range is 6 to 12 years. Why do I say this?

30D.D. is instructive in that it sets the range in the mid to high single digit penitentiary sentence “…when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time…” When the abuse involves full intercourse, anal or vaginal, and is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion such as telling the child not to tell anyone, the range is in the upper single digit to low double digit penitentiary sentence.

31The range for sexual abuse cases has increased in recent years driven by an increased emphasis on the need to take sexual predators away from society for society’s well-being, and the need for protecting our children to take precedence (see: R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.) para. 75 & 76; and Varpio J.’s helpful review in R. v. C.G., 2018 ONSC 1151 (S.C.), para. 16 to 20).

32There are important factual differences between E.S.’s case and D.D., which distinguishes D.D. In D.D., the offender was a pedophile charged with and convicted of 11 sexual offences against boys of 5 to 8 years of age, over a period of 2 to 7 years. He is described as having “deviant sexual cravings”. The acts included acts of masturbation, oral sex, group sex, attempted anal intercourse with some, and successful anal intercourse with others. It is clear that his activity with his victims was far greater than the 11 counts of which he was convicted. He groomed his victims. To keep them compliant, he bought gifts, took them on adventures, allowed them to use his videos and provided alcohol and cigarettes. He also used violence to ensure his victims’ silence.

33E.S.’s abuse of C.P. is of a less frequent and intense nature than in D.D.

34In the chart of cases the Crown provided, the Crown listed cases involving parents or those loco parentis, who abused children over long periods of time. Where the abuse did not include successful intercourse, the range of sentence was 4 years. Where intercourse was a factor, the sentence was between 6 and 7 years.

2. What Are The Appropriate Mitigating And Aggravating Factors?

Aggravating Factors:

35I consider the following to be the relevant aggravating factors:

1. E.S. was C.P.’s mother’s boyfriend. Ms. P. often left her two children with E.S. He was a father figure to C.P.

2. He stood in a position of trust vis-a-vis C.P. His obligation was to make sure that C.P. was safe.

3. There were three sexual incidents of which he was convicted.

4. C.P. was between 8 ½ and 9 ½ when the abuse began, and occurred over 6 to 7 months thereafter.

5. All events were conducted in the apartment building in which the P.s had their family home, a place where C.P. ought to have been, and had the right to feel safe.

6. The two sexual assaults were conducted in an area off the laundry room where the events would not be visible to others. The other event occurred when C.P. climbed into bed between E.S. and Ms. P.

7. He used multiple forms of contact – he touched and groped her. He placed her hand on his penis. He attempted intercourse, and had intercourse with her.

8. He pressured C.P., following each of the events of sexual abuse, to keep the abuse a secret.

9. His acts, by their nature, were predatory. They were not mere crimes of opportunity.

10. At the time he abused C.P., he was on bail for similar offences with two other children.

36I wish to address this last aggravating factor – committing offences while on bail.

37At the time of E.S.’s interactions with C.P., he was on bail from the charges that he forced a then girlfriend’s son, aged between 8 and 10 years of age, to fondle him and perform oral sex on him, and that he fondled and had sexual intercourse with his next girlfriend’s daughter, who was between 8 and 16 years of age.

38His Recognizance of Bail in respect of those earlier charges contains the specific term that that E.S. was required to “keep the peace and be of good behaviour”.

39The parties agree that the offences against C.P. of which E.S. stands convicted in this court occurred, in whole or in part, during the time E.S. was on release from his charges stemming from the assaults of his previous two girlfriends’ children, but before a conviction was entered in respect of those charges.

40The fact that an accused commits any offence while he is on probation or on bail is an aggravating factor on the sentencing, even if the accused is not charged at the time of the subject offence, with an offence of a similar nature (see: R. v. Murray, 2007 ONCA 799, para. 6 where the offence on bail is the same as the offence for which the accused was on bail, and R. v. Marshall, 2015 ONCA 692, para. 50 where the offence on bail was dissimilar). Evidence of breach of a release condition is relevant to the accused’s conduct while on judicial interim release, and to the character of the offender insofar as it informs issues of remorse, risk, specific deterrence, and the fitness of various sentencing options (see: R. v. Fouquet, [2005] ABQB 673, para. 21 to 25 dealing with breach of a firearms prohibition while on parole, and R. v. McCauley, 2007 CanLII 13937 (ON SC), [2007] O.J. No. 1593 (S.C.), para. 17 to 24 dealing with breach of a drug prohibition while on bail).

41With respect to the charges that E.S. abused and assaulted his previous girlfriends’ children (after E.S. committed the abuse and assaults of which he stands convicted in this court) he was convicted by a jury of the earlier assaults and sentenced to 3½ years in the penitentiary on each charge, to run concurrently.

42After serving his sentence, E.S. received a pardon with respect to those convictions of the assaults on E.S.’s previous girlfriends’ children. Both parties agree, however, that under section 7.2 of the Criminal Records Act RSC 1985, c. C-47, E.S.’s conviction in this court mean that the pardon ceases to have any effect. Therefore, the parties agree that I may refer to the earlier convictions in these reasons.

43Of what use are the various aspects of the previous offences?

44I begin by noting that the requirement to “keep the peace and be of good behaviour” is not a standard condition of release. It was, however, specifically made part of E.S.’s Recognizances of Bail for the charges for each of the children he was alleged to have abused before he abused C.P.

45While I can use E.S.’s breach of bail condition as an aggravating factor on sentencing in these convictions, because he was convicted of the earlier charges only after C.P. was abused, I cannot use the convictions as prior convictions at the time of the events involving C.P. I have not considered E.S.’s 1997 conviction as a prior conviction in this matter.

46Since, at the time of the events giving rise to the charges before this court, there was no conviction for the charges arising from the earlier assaults, E.S. was a first offender at that time, and I have treated him as such.

47In any event, that an accused commits an indictable offence while he was on bail is an aggravating factor in itself, regardless of the term of release in E.S.’s earlier charges. However, given that the requirement to keep the peace and be of good behaviour was specifically added to his recognizance terms, it is a significantly aggravating factor. E.S. committed offences for which he is tried by this court while he was on bail for similar offences involving similarly aged children.

Mitigating Factors:

48I consider the following to be the relevant mitigating factors for E.S., most of which come from the Gladue/PSR:

1. He has been gainfully employed throughout most of his life, notwithstanding that he quit high school after grade 10 to find work. He has only experienced unemployment for one or two weeks at a time.

2. It was established at trial that he was his mother’s caregiver for much of her later life.

3. He has the support of his brother, sister and brother-in-law. He was estranged from his three now adult children. He is repairing that relationship with his son, and is beginning to do so with one of his daughters.

4. He is of Aboriginal descent, through his mother. She was a member of the Kiptu First Nation, part of the Mi’kmaq of Newfoundland. He is not recognized as a “status Indian” under the Indian Act. I will address this further under the heading “Gladue Report”. His father was a non-Aboriginal.

5. The combined Gladue/Pre-Sentence Report was relatively positive.

6. His father abandoned his mother and all three children when he was between 5 and 10 years old. Thereafter, E.S., his mother and siblings lived at various places in Newfoundland, in poverty.

7. E.S. is capable of being generous. For example, one of the men who sexually assaulted E.S. when E.S. was a child rendered himself brain damaged after unsuccessfully trying to shoot himself in the head. Since then, twice a year when E.S. returns to Newfoundland, he helps out his former abuser. He also collects toys for a children’s foundation in Toronto.

8. He was sexually abused as a child.

9. He suffers from depression and has been suicidal.

10. At the time of the offences for which he has been convicted by this court, he had a clean record, with the exception of a conviction in 1987 for possession of stolen property and assault. I give little importance to the 1987 conviction.

3. Exceptional or Extenuating Mitigating Factors – the Gladue Report

49In approaching the Gladue Report, I am guided on the proper use and application of Gladue Reports by R. v. F.H.L., 2018 ONCA 83.

50Beginning at para. 31, Epstein J.A., for the majority, says that when sentencing an aboriginal offender, courts must pay particular attention to the circumstances of aboriginal offenders in all cases, even those involving the gravest of offences: see also R. v. Van Every, 2016 ONCA 87, at para. 88; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 82; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 84-87; R. v. Jensen (2005), 2005 CanLII 7649 (ON CA), 74 O.R. (3d) 561 (C.A.), at para. 27; R. v. (N.) J., 2013 ONCA 251, at para. 51.

51When sentencing an aboriginal offender, the Court of Appeal directed trial courts to consider:

1. The unique systemic or background factors which may have played a part in bringing the aboriginal offender before the courts; and,

2. The sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection: see Gladue, at para. 66.

52When assessing the first of these questions the court should not require aboriginal offender to establish a causal connection between the systemic or background factors affecting aboriginal people and the crimes for which the individual has been convicted: see Ipeelee, at para. 82; R. v. Collins, 2011 ONCA 182, at paras. 32-33; R. v. Kreko, 2016 ONCA 367, at paras. 20-21. Such a requirement “displays an inadequate understanding of the devastating intergenerational effects of the collective experiences of Aboriginal peoples” and “imposes an evidentiary burden on offenders that was not intended by Gladue”: see Ipeelee, at para. 82.

53Beginning at para. 38, Epstein J.A. set out “the proper approach” for trial judges to follow:

38The law, reviewed above, is clear. In order to be relevant to sentencing, an offender’s Aboriginal background need not be causally connected to the offence(s) for which a sentence is being imposed. In what circumstances, then, will an offender’s Aboriginal background influence their ultimate sentence? The answer is “not so easily ascertained or articulated”: R. v. Whitehead, 2016 SKCA 165, 344 C.C.C. (3d) 1, at para. 60. Clearly, the mere assertion of one’s Aboriginal heritage is insufficient – s. 718.2(e) does not create a “race-based discount on sentencing”: Ipeelee, at para. 75. Although Aboriginal offenders are not required to “draw a straight line” between their Aboriginal roots and the offences for which they are being sentenced, more is required “than the bare assertion of an offender’s Aboriginal status”: R. v. Monckton, 2017 ONCA 450, 349 C.C.C. (3d) 90, at para. 115.

39It is also insufficient for an Aboriginal offender to point to the systemic and background factors affecting Aboriginal people in Canadian society. While courts are obliged to take judicial notice of those factors, they do not “necessarily justify a different sentence for Aboriginal offenders. Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel”: Ipeelee, at para. 60 (emphasis in original); R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, leave to appeal refused, [2017] S.C.C.A. No. 274, at para. 54.

40The correct approach may be articulated as follows. For an offender’s Aboriginal background to influence his or her ultimate sentence, the systemic and background factors affecting Aboriginal people in Canadian society must have impacted the offender’s life in a way that (1) bears on moral blameworthiness, or (2) indicates which types of sentencing objectives should be prioritized in the offender’s case. This approach finds support both in Ipeelee and decisions of this court.

41The Supreme Court made clear in Ipeelee, at para. 83, that systemic and background factors need to be “tied in some way to the particular offender and offence”. LeBel J. went on to note that “[u]nless the unique circumstances of the particular offender bear on his or her culpability for the offence or indicate which sentencing objectives can and should be actualized, they will not influence the ultimate sentence.” LeBel J. elaborated on the concept of “culpability” at para. 73, explaining that “systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness.”

42This court has followed LeBel J.’s guidance in multiple cases. In Kreko, Pardu J.A. explained at para. 23 that “the [systemic and background] factors must be tied to the particular offender and offence(s) in that they must bear on his or her culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing”. Watt J.A. reached a similar conclusion in Radcliffe, at para. 55: see also Monckton, at para. 116; R. v. Johnson, 2013 ONCA 177, 303 O.A.C. 111, at para. 64.

43From a sentencing judge’s perspective, adhering to this approach requires attention to two factors.

44First, a sentencing judge must take judicial notice of the systemic and background factors affecting Aboriginal peoples in Canadian society. These factors include “such matters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lower educational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of incarceration for Aboriginal peoples”: Ipeelee, at para. 60. This list is not exhaustive.

45Second, a sentencing judge must consider whether those systemic and background factors “bear on the [offender’s] culpability or indicate which types of sanctions may be appropriate in order to effectively achieve the objectives of sentencing”: Kreko, at para. 23. This inquiry, by necessity, requires the sentencing judge to consider whether those factors have impacted the offender’s own life experiences – in other words, whether the offender has “lift[ed] his life circumstances and Aboriginal status from the general to the specific”: Monckton, at para. 117; R. v. Bauer, 2013 ONCA 691, 119 O.R. (3d) 16, at para. 13. If systemic and background factors have impacted an Aboriginal offender’s own life experiences, the sentencing judge must then consider whether they “illuminate the offender’s level of moral blameworthiness” or disclose the sentencing objectives that should be prioritized: Radcliffe, at para. 53; Kreko, at para. 23. The Supreme Court provided the following comments about moral blameworthiness in Ipeelee, at para. 73:

Many Aboriginal offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. While this rarely — if ever — attains a level where one could properly say that their actions were not voluntary and therefore not deserving of criminal sanction, the reality is that their constrained circumstances may diminish their moral culpability”. Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The existence of such circumstances may also indicate that a sanction that takes account of the underlying causes of the criminal conduct may be more appropriate than one only aimed at punishment per se. [Underline Emphasis Added, Italic Emphasis in Original]

46Sentencing judges must therefore be attentive to whether the circumstances of Aboriginal offenders – viewed in the light of the systemic and background factors described above – “diminish their moral culpability”. In conducting this inquiry, however, courts must display sensitivity to the “devastating intergenerational effects of the collective experiences of Aboriginal peoples”, which are often difficult to quantify: Ipeelee, at para. 82. When inquiring into “moral blameworthiness”, courts must ensure they do not inadvertently reintroduce the same evidentiary difficulties that Ipeelee sought to remove: Kent Roach, “Blaming the Victim: Canadian Law, Causation and Residential Schools” (2014) 64 University of Toronto L.J. 566, at 588-593; Clayton Ruby, Gerald Chan, Nader R. Hasan, Annamaria Enenajor, Sentencing: Ninth Edition (Markham: LexisNexis Inc., 2017), at 712; R. v. Quinn, 2015 ABCA 250, 606 A.R. 233, at para. 49 (per Biebly J.A., dissenting). I find persuasive the following observation by the Saskatchewan Court of Appeal in Whitehead on the approach that sentencing judges should follow:

The link between systemic or background factors and moral culpability for an offence does not require a detailed chain of causative reasoning. Instead, the analysis is based on inferences drawn from the evidence based on the wisdom and experience of the sentencing judge … In applying this approach, sentencing courts must pay careful attention to the complex harms that colonisation and discrimination have inflicted on Aboriginal peoples.

47Systemic and background factors, however, do not operate as an excuse or justification for an offence: Ipeelee, at para. 83. They are only relevant to assessing the “degree of responsibility of the offender”, and to considering whether non-retributive sentencing objectives should be prioritized. Accordingly, Gladue and Ipeelee do not detract from the “fundamental principle” that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Ipeelee at para. 73. What Gladue and Ipeelee recognize is that evaluating the degree of responsibility of an Aboriginal offender requires a “different method of analysis”: Ipeelee, at para. 59. A different method of analysis does not necessarily mandate a different result: Kakekagamick, at para. 36. Crafting a just and appropriate sentence may, in some cases, require giving greater weight to sentencing objectives such as deterrence and denunciation: Gladue, at para. 78; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 44. As this court recognized in Kakekagamick, at para. 42:

To be clear, s. 718.2(e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence.

E.S.’s Gladue Report

54On November 28, 2017, I ordered a Gladue Report. Counsel agreed that the report should be a combined Gladue and Pre-sentence Report. The report was submitted on April 12, 2018 and was prepared by Aboriginal Legal Services of Toronto.

55The report provides a thorough review of a) the circumstances of indigenous people living in Newfoundland, b) the circumstances of indigenous people in Canada (including higher rates of alcoholism, drug abuse, depression, suicide, and sexual abuse), and c) E.S.’s own history.

56E.S.’s indigenous identity arises through his mother who was a member of the Kiptu First Nation, a part of the larger Mi’kmaq community in Newfoundland.

57Indigenous people in Newfoundland, for historical reasons, do not have the same recognition afforded to indigenous people in other provinces. For example, the Newfoundland Government pursued a policy of assimilation aimed at suppressing indigenous identity. They have no territory as to other indigenous people elsewhere in Canada.

58In the 1970s, the Newfoundland Government changed its policy. It began by recognizing a small group of indigenous people, the Mi’kmaq of Conne River, which were registered under the Indian Act. The remaining Mi’kmaq in the province were not eligible. They were considered non-status Indians.

59In 2008, the Federal Government and the Federation of Newfoundland Indians established a landless band which encompassed all Newfoundland Mi’kmaq individuals (except those of Conne River), called the Qalipu Mi’kmaq First Nation Band. It would be governed by the Indian Act, but would not exercise territorial jurisdiction. Eligibility was extended to people of “Indian” ancestry who were members of the Newfoundland Mi’kmaq community in 1949 and their descendants.

60The purpose of creating the Qalipu Band was to ensure funding for non-insured medical and dental benefits, postsecondary education, training, registration assistance, community economic development, and other community-based initiatives. These benefits do not depend on residence on a reserve.

61The Band received official status in September 2011. Because of changes in eligibility criteria, only 18,044 of the 144,000 applicants have been granted membership to the band.

62The Kiptu First Nation maintained a band membership list from 2004 to 2014. The report writer attempted to contact the Kiptu First Nation but was unsuccessful. The contacts listed on the website were out-of-date.

63The report writer also addressed the challenges that aboriginal individuals have in Canadian society.

64With respect to sexual abuse, she noted that one in six Canadian boys is a victim of sexual abuse. Boys who have been abused often harbour guilt for perhaps having experienced pleasure during their ordeal, or for receiving rewards for their participation or other gestures that might suggest they were willing participants.

65Literature indicates how destructive sexual abuse is in later life. It leads to anxiety, low self-esteem, guilt and shame, strong fear reactions, depression, post-traumatic stress disorder, withdrawal and isolation, personality disorders, emotional numbing, anger, and aggressiveness. Adult male survivors of childhood sexual abuse experience a greater degree of psychiatric problems than the general population including depression, anxiety, dissociation, suicidal ideation, and sleep disturbance. They are vulnerable to re-victimization, self-harming behaviour, increased risk of psychiatric hospitalization, eating disorders, addictions, increased risk of indiscriminate sexual behaviour, lower educational and employment attainment, difficulty functioning in the workplace, and an increased risk of becoming abusers themselves.

66The report writer notes that aboriginal people experience higher suicide rates in the Canadian population, perhaps 2 to 3 times higher than non-aboriginal rate. Suicide has been found to be responsible for approximately 1/6 to 1/4 of all deaths among aboriginal adults, and that rate is on the rise, particularly with respect to young aboriginal males. Suicide results from many personal historical and contextual factors including psychiatric disorders, previous suicidal ideation and attempts, exposure to suicides of family members or peers, low self-esteem, negative self-conception, alcohol and substance abuse, prenatal alcohol effects, for parenting, family disruption and child separation for one or both parents, childhood physical and sexual abuse, and social isolation.

67These factors do not explain why one individual may be affected by suicide while another is not. They also cannot account for the high prevalence of suicide among aboriginal people. Often, aboriginal suicide is affected greatly by specific cultural, historical, and political processes related to colonization and forced assimilation of aboriginal peoples. Loss of traditional land, subsistence activities, and control over living conditions as well as suppression of belief systems and spirituality, the weakening of social and political institutions, and racial discrimination arise from colonization of aboriginal peoples. This has produced cultural changes that have disrupted traditional roles, identities, and patterns of social interaction and support, all of which have been found to be significant causes in increasing rates of suicide among indigenous peoples worldwide.

68Community disruption and loss of culture are significant contributors to aboriginal suicide rates in Canada. The report writer refers to studies which indicate that youth suicide rates are much lower in those aboriginal communities that have multiple indicators of cultural continuity such as control over traditional territories, knowledge of language, self-governance, and promotion of traditional cultural practices.

69Significantly, aboriginals who are incarcerated are at a considerably higher risk for suicide.

70Suicide rates also have a connection to residential schools. The Gladue Report writer delves into the residential schools issue and its effects. There is no evidence that E.S. or any of his family members are residential school survivors, or that he has any connection to residential schools.

71The report writer also focuses on how adverse childhood experiences affect aboriginal people. These experiences influence many mental health problems including chronic depression, anxiety and substance abuse in adulthood.

72A child’s vulnerability is cumulative, increasing with the number of risk factors present and prolonged exposure to them. The risk factors for adverse childhood experiences are psychological abuse, physical abuse, sexual abuse, violence of the mother, living with substance abusers, and living with substance abusers, those were mentally ill or suicidal, or those who have been imprisoned.

Applying the Gladue Report and “The Proper Approach” To E.S.

73Asserting one’s aboriginal heritage is not enough, nor is stating the systemic and background factors affecting aboriginal people in Canada. Rather, the systemic and background factors provide context for understanding case specific information about the offender.

74E.S. asserted his aboriginal heritage. From the Gladue Report, however, is unclear how E.S.’s heritage and background had any effect on his being before the court on these charges or how they affected his moral culpability. Further, the Gladue Report does not provide assistance in respect of the sentence objectives and alternatives in this case.

75E.S. does not appear to have provided to the report writer any information that suggests that he maintained a connection to the Kiptu or Mi’kmaq community, or that he suffered any loss or effect because of his aboriginal heritage or loss of his aboriginal connection.

76Further, the report makes recommendations as to sentencing, but none are focussed or linked to issues that derive from E.S.’s aboriginal heritage, in whole or in part.

77As Epstein J. A., stated, a direct causal connection is not required between the offence and the offender’s background. I do not expect one in this case nor is E.S. expected to provide such a connection.

78Despite the parallels between E.S. and the aboriginal person described in the statistics and literature in the Gladue Report, E.S. does not demonstrate that the systemic and background factors affecting aboriginal people in Canada have influenced him in a way that bears on his moral blameworthiness or that informs the court on sentencing objectives or alternatives. The combined Pre-sentence/Gladue Report does not show that E.S.’s childhood difficulties were linked to systemic, background or intergenerational factors related to his aboriginal heritage.

79E.S.’s counsel conceded that the best that can be said is that “E.S. has a connection with aboriginal circumstances based on his birthright” but not “a cultural connection with a specific aboriginal nationality that will encompass E.S.…[and] bring him back into this cultural fold”. On the other hand, E.S.’s counsel points out that even with E.S.’s lack of cultural connection to his aboriginal heritage and cultural background, E.S.’s personal circumstances and experience parallel the experience of many aboriginal individuals reported in the Gladue Report.

80I agree. There are remarkable parallels between the aboriginal person described by the statistics and literature referred to in the Gladue Report, on one hand, and E.S., on the other. For example:

1. E.S. was abused, sexually, by family members as a child. The fact of the abuse was confirmed by his siblings.

2. Notwithstanding that E.S. reports a fairly happy childhood, his happy childhood ended when his father abandoned E.S.’s mother and the children in Newfoundland. They lived with E.S.’s maternal grandmother in poverty, until her death, when they returned to Ontario.

3. Both his parents abused alcohol, which may have contributed to the breakdown of the marriage.

4. He left school at age 16 to work. He did not complete high school.

5. E.S. reports that he suffers from chronic depression and suicidal ideation. He reports that he has made several suicide attempts. There were reports during this trial that E.S. attempted suicide. The medical substantiation for this, however, was not provided.

6. Further, E.S. has difficulty forming and maintaining relationships. He has had three failed relationships. He is estranged from most of his children.

7. Finally, E.S., like many abused children, has become an abuser himself.

81Here, like in F.H.L., at para. 49, “… there is no evidence that (1) such factors contributed to the appellant’s experiencing dislocation or an identity crisis coinciding with his involvement in the criminal justice system, or that (2) such factors otherwise impacted the appellant’s moral blameworthiness: see Bauer, at para. 14.”

4. If the Appropriate Range of Sentence Includes a Reformatory Range Sentence, is a Conditional Sentence of Imprisonment Justified?

82E.S. submits that I should sentence him within a reformatory range as recommended by the author of the Gladue report on page 19, where the report writer recommends that if a custodial sentence is imposed it should be for two years less a day, to be served at the Ontario Correctional Institute in Brampton where E.S. can access rehabilitative programming, and specialized and intensive treatment for sexual misconduct.

83Given the nature and severity of the offences of which the jury convicted E.S., that they were repeated and committed over a six or seven month period, and that at the time of the incidents of abuse which occurred in this matter he was on interim release for similar offences against similarly aged children, a reformatory sentence is not appropriate.

SENTENCE:

84The acts of which E.S. was convicted are of the most distressing kind of sexual abuse. I say this for the following reasons:

1. E.S. was C.P.’s mother’s boyfriend. He stood in a position of trust with respect to C.P. She considered him a father figure. She had the right to be safe in his care. He betrayed that trust.

2. E.S. forced C.P. into engaging in sexual acts and required her to keep the abuse a secret.

3. The two sexual assaults occurred in an out-of-the-way storage area which he controlled as building superintendent. The third abuse event took place in his bed, in which C.P.’s mother was sleeping with him, when a frightened C.P. sought refuge with her sleeping mother.

4. His abuse of C.P. was planned and premeditated.

5. His acts had a devastating impact on C.P. She has difficulty as a parent. She is insecure about her own children’s safety. She is afraid of some men.

85E.S.’s aboriginal heritage has a modest, although imprecise effect on his being before the court and his moral blameworthiness. However, such impact that it may have had, pales in comparison to the severity of the offences. As the unanimous Court of Appeal said at para. 51 in R. v. (N.) J., 2013 ONCA 251, “Finally and most significantly, this is simply one of those cases where the crimes were so heinous, and the aggravating factors were so compelling, that the appellant's Aboriginal status should not affect the length of the sentence imposed.”

86Based on the foregoing reasons, I find the fit, proper, proportional and appropriate sentence in this case to be as follows:

1. On the second count on the indictment, sexual touching, E.S. shall serve a term of 8 years, less 11 days for time served based on a credit of 1.5 days for each day served.

2. The first and third counts are stayed.

87In addition, I make the following ancillary orders under the Criminal Code of Canada:

1. Order of prohibition for life under section 161(1)(a), prohibiting E.S. from being near a public park or swimming pool where persons under the age of 14 years are or can reasonably be expected to be present, or a daycare centre, school ground playground or community centre, and under section 161(1)(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 14.

2. An order for life under section 490.12 and 490.13(2)(b) that E.S. comply with the Sex Offender Information Registration Act.

3. A weapon possession prohibition for 10 years under what was then section 100 but is now section 109(1).

4. A DNA order under section 487.04 and 487.05 (1), and

5. A non-communication order under section 743.21 that for the duration of his incarceration E.S. have no communication, directly or indirectly, with C.P.

88Finally, I direct that the Gladue Report (Exhibit 1 to the sentencing hearing) and Dr. Black’s July 18, 2018 letter be provided to Corrections Canada for review by a Classifications Officer, so that Corrections Canada is aware of E.S.’s specific health conditions and needs, and can provide the necessary health and mental health support, psychiatric assessments and rehabilitative programming specialized in intensive treatment for a sexual misconduct, sexually deviant behaviour, depression, and suicidal ideation.

Trimble J.

Footnotes

1. 1Mr. E.S. addressed the Court requesting leniency for two reasons: 1) he has stage 4 cirrhocis of the liver and kidney failure. I have not considered this as he produced no medical evidence to substantiate this, and 2) He also stated that his lawyer, notwithstanding that I pointed out to him that it was an error to not lead evidence in defence, failed to lead evidence which would have resulted in his acquittal. I made no such statements. I have not considered this submission. It is a ground for appeal, if successful.