R. v. K.S., 2018 ONSC 5678

Court File and Parties

OSHAWA COURT FILE NO.: CR-17-14419 DATE: 20180927 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – K.S. Defendant

Counsel: Mr. D. Slessor, for the Crown Ms. K. Fay, for the Defendant

HEARD: August 21, 2018

Reasons for Sentence

CHARNEY J.

Introduction

1On March 26, 2018 K.S. was found guilty of sexual assault, sexual interference, and invitation to sexual touching contrary to sections 271, 151 and 152 of the Criminal Code. My written reasons for judgment were released as R. v. K.S., 2018 ONSC 1988.

2The offences all related to a single incident that occurred some time between December 1, 2014 and January 31, 2015, when K.S. was 30 years old and the complainant was 14 years of age.

Facts

3In December 2014 the complainant was 14 years of age, in grade 9, in her first year of high school. The complainant and her mother frequently argued about the complainant’s friends and her curfew. Around the time of Christmas vacation in 2014, she and her mother got into another argument, and her mother sent the complainant by GO train from their home in Whitby to stay with her aunt in Hamilton for about a week during the Christmas break.

4The complainant did not know the aunt well (it was her mother’s cousin), and had only been to her house with her mother once before. The aunt also had a son named M., who was about 30 years old. M. lived in his own home. The complainant had never met M. before this visit, and met him only once when he dropped by the house at the beginning of her visit.

5At the end of the complainant’s stay with the aunt, the aunt took the complainant to M.’s house because M. had a friend, the accused, K.S., who was driving in the direction of Ajax and volunteered to drive the complainant home. The complainant had never met this friend before.

6On the drive back to Whitby the accused asked the complainant questions about why she was in a fight with her mother and why the complainant was mad that she had to go to her aunt’s house. The complainant liked talking to the accused and telling him about her fights with her mother. He was understanding and tried to give her support, and he told her she was a good child and that she was pretty. They did not talk about what grade she was in at school or how old she was.

7At one point the accused stopped the car at a McDonald’s to get them some food. When they got back into the car the complainant began listening to music on her iPhone (without her head-phones). They continued driving, and the accused took her left hand and held it on his pants over his penis for a couple of seconds. He did not say anything.

8She testified that she did not know what to do, so she just left it until he let go.

9The accused got off the 401 and pulled into a gas station. He asked her if she would like anything – any candy or a drink – because he was going to get himself a drink. She told him no, she was OK. The accused returned to the car with candy and a drink, and a small box which the complainant now knows was a box of condoms. She did not know that at the time.

10The accused did not return to the highway, but continued driving for a time, and then pulled into a parking lot of what appeared to be a place where they loaded trucks. It was dark and deserted. She did not ask why they had parked there. He parked the car and they ate some candy. He started to kiss the complainant, first on the neck and then on her mouth. She kissed him back. He asked her if she was “OK with it” and she answered “yes”. She testified: “I allowed him to kiss me”. She acknowledged that she felt comfortable with him and consented to the kissing.

11He reached over and put her seat back so that she was reclining. He undid his pants and pulled his pants down. He then pulled the complainant towards him and placed his hand on her head and guided it to his penis so she would perform oral sex on him. He was not rough. When he removed his hand she stopped performing oral sex right away and shook her head, although she did not say no. She did not say anything. There was no conversation.

12He then pulled her jeans down to her ankles and performed oral sex on her. The jeans were tight fitting and the complainant acknowledged that she had to lift her hips to enable the accused to pull down her jeans. He then put on a condom, got on top of her and had sexual intercourse with her. She did not say no or tell him to stop.

13After it was done the accused drove the complainant home. She put her headphones on for the rest of the drive and they did not really have any conversation. When they arrived at her house the accused asked the complainant not to tell her cousin, M., what had happened. He did not threaten her, he just asked, and the complainant agreed that she would not say anything.

14The complainant testified that the accused then put his phone number and the name “Michael” into her phone and told her to call him or text him if she needed anything. He hugged her and she went into the house.

15The complainant did not say anything about the incident for about a year, but her mother began to question her because her behaviour had changed. She eventually told her mother because her mother kept nagging her.

16The accused acknowledged that he did not give the complainant’s age much thought, and did not turn his mind to her exact age. He thought, however, that the complainant was about 18 years of age and in grade 12.

17Since the complainant was 14 years of age and K.S. is more than five years older, “it is not a defence that the complainant consented to the activity that forms the subject matter of the charge” (s. 150.1(1) and (2.1) of the Criminal Code). The only defence is “mistake of age”. Section 150.1(4) of the Code limits the availability of the mistake of age defence by requiring that “all reasonable steps” be taken to ascertain the complainant’s age.

18In my reasons for decision, at para. 55, I found that there was sufficient evidence to give an “air of reality” to the mistake of age defence, requiring the Crown to prove, beyond a reasonable doubt, either that K.S. did not honestly believe the complainant was at least 16 (the subjective element) or did not take “all reasonable steps” to ascertain the complainant’s age (the objective element).

19Based on the accused’s testimony, I concluded, at para. 58, that there was sufficient evidence to raise a reasonable doubt about the subjective element of the mistake of age defence. The accused did not know the complainant’s actual age, and I was left with a reasonable doubt that the accused did not honestly believe that the complainant was at least 16 years of age at the time the offence was alleged to have been committed.

20I concluded, however, at para. 75, that the Crown had proven beyond a reasonable doubt that the accused did not take “all reasonable steps to ascertain the age of the complainant”. The accused had met the complainant for the first time that same day, and the two had never really spoken to each other until the drive home. Their sexual encounter took place within a couple of hours of their drive from Hamilton to Ajax. Given his age and how little he knew about the complainant, a reasonable person would have inquired about her age or grade at school. The accused’s testimony was not sufficient to raise a reasonable doubt about the objective element of the s. 150.1(4) defence, and I therefore found that the Crown had proven beyond a reasonable doubt that the accused did not take all reasonable steps to ascertain the age of the complainant.

Kienapple Application

21The Kienapple principle bars multiple convictions for two or more offences arising out of the same criminal act or transaction in circumstances where the essential elements of the offences are meant to cover the same wrong. In the present case the three counts are all variations of sexual assault and arise out of the same transaction. The three counts contain substantially the same essential elements. Crown and defence agree that the Kienapple principle applies, and that the counts of sexual assault and invitation to sexual touching should be stayed, and a conviction entered on sexual interference pursuant to Kienapple.

22I agree that the law in Ontario favours the staying of the charge of sexual assault since sexual interference is sexual assault against a minor, and is therefore the more serious of the two offences: see R. v. R.D., 2017 ONSC 5258, at paras. 12 – 23; R. v. Hussein, 2017 ONSC 4202, at paras. 45 – 46; R. v. F.L., 2016 ONSC 1215 at paras. 21 – 25; and R. v. F.C., 2016 ONSC 6059 at para. 2.

23Accordingly, the counts of sexual assault and invitation to sexual touching are stayed pursuant to the rule in Kienapple, and a conviction will be entered in relation to the count of sexual interference.

Position of the Parties

24The Crown submits that a five year penitentiary term is the appropriate sentence for this case. He argues that the range of sentences for sexual interference has increased over the past several years, in recognition of s. 718.01 of the Criminal Code, which provides that when sentencing for an offence “that involved the abuse of a person under the age of 18 years,” the court must “give primary consideration to the objectives of denunciation and deterrence of such conduct.”

25The Crown relies on several cases to argue that the starting point for these cases is a five year penitentiary term. For example, in R. v. Woodward, 2011 ONCA 610 the Ontario Court of Appeal stated, at paras. 75 and 76:

Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single-digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.

In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

26Similarly, in R. v. Mullings, 2012 ONCA 911, the Court of Appeal stated, at para. 1:

A review of the recent jurisprudence of this court persuades us that at least the upper end of the range for this type of offence (a single act of sexual intercourse with a girl of 13 years of age by a person in a position of trust with devastating consequences) is more than 5 years.

27In R. v. D. (D.), 58 OR (3d) 788, the Ontario Court of Appeal held, at para. 44:

[A]s 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.

28See also the cases reviewed by Gilmore J. in R. v. P.C., 2016 ONSC 840, at paras. 36 – 44.

29Defence seeks a sentence of 12 months plus a period of probation. She argues that this case is closer to facts set out in cases such as Hussein and R. v. J.D., 2015 ONSC 5857. In each of these cases a sentence of 15 months imprisonment was imposed. I will review the facts of those cases below.

Facts Relating to the Offender

30K.S. testified at trial. He did not deny that the incident had occurred, but took the position that he believed that the complainant was “old enough” and in grade 12.

31His Pre-Sentence Report indicates that he was born in Trinidad and Tobago, and has lived in Canada since he was 11 years of age. He pursued post-secondary education in the field of social work, and obtained a college diploma in social work. He then attended university and obtained a Bachelor degree in social work and graduated with Honours. He completed this degree while working full time and attending a placement.

32He worked as a bank teller for 5 years, and then began to work for a home health care company caring for seniors. He was promoted to the position of Supervisor, responsible for monitoring the duties of personal support workers, as well as visiting private residences and retirement homes to ensure that proper care is available. By all accounts he is a hard working and dedicated employee. He has not had any difficulty maintaining employment, and has no criminal record.

33The Pre-Sentence Report states that K.S. accepts full responsibility for his conduct, and expresses remorse for his actions. He also appears to be cognizant with regard to the impact that his offence has had on the victim and her family, and on his own family.

34This offence appears to be an isolated and anomalous incident in K.S.’s life. There is no suggestion that K.S. ever tried to contact the complainant again after the offence.

35K.S. addressed the Court at the conclusion of the sentencing hearing. Consistent with the information provided by the Pre-Sentence Report, he stated that he accepted responsibility for his actions, and acknowledges that he should have taken more steps to ascertain the age of the complainant. He states that this incident was out of character for him. He has worked hard these past few years, returning to University and obtaining his degree while working full time, and he knows that he has put all this in jeopardy by his actions.

Victim Impact Statement

36No victim impact statement was filed in this case, although the victim was offered an opportunity to prepare one and declined.

Analysis

37Sexual interference carries with it a maximum sentence of ten years and a mandatory minimum sentence of one year, although the mandatory minimum has been declared unconstitutional in several Ontario cases (see Hussein, at paras. 24 – 29). For the reasons set out by Code J. in Hussein, at paras. 28 and 29, I will follow those decisions and proceed on the basis that the one-year mandatory minimum is of no force or effect.

38The invalidity of the one-year minimum means that a one-year sentence is not the standard or starting point for the least serious of offences. While this case is not the least serious of offences, defence counsel urges me to take this into account when determining a “fit and appropriate sentence”.

39In assessing the appropriate sentence for sexual interference or sexual assault of a minor, the courts have considered various aggravating factors, including:

(a) Frequency or persistence of sexual touching; (b) Nature of sexual touching and whether there was penetration or attempted penetration (vaginal, anal, oral); (c) Existence of a trust relationship and level of trust; (d) Incest; (e) Prior convictions for sexually related offence against a minor; (f) The age of the child; (g) Number of victims; (h) The use of corruptive means to groom or lure the child; (i) Planning; (j) Other acts of physical violence, threats of violence, extortion or bribes to force the assault or obtain silence; (k) The severity of consequences as revealed in the victim impact statement or other evidence.

40Several of these factors are mandated by s. 718.2(a) (ii.1), (iii), (iii.1) of the Criminal Code.

41In Woodward the Ontario Court of Appeal summarized the relevant sentencing considerations and principles at para. 72:

(1) Our children are our most valued and our most vulnerable assets. (2) We as a society owe it to our children to protect them from the harm caused by sexual predators. (3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. (4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. (5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood. (6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

42In R. v. Brar, 2016 ONCA 724, at para. 16, the Ontario Court of Appeal made the following statement with respect to the sentencing principles applicable to sexual crimes involving children:

It is well established that, in cases of sexual crimes involving children, the principles of denunciation, deterrence and public safety must take precedence over other recognized objectives of sentencing, including rehabilitation… The necessary primary focus on denunciation, deterrence and public safety in such cases does not, however, mean that those objectives trump all other sentencing concerns... (Citations omitted)

43The cases relied on by the Crown include several of the aggravating factors listed above. Most included multiple victims and/or very young children who the accused knew were under the age of fourteen. For example, Woodward (six-and-one-half years global sentence) involved a 12 year old child who the accused lured over the internet with promises to pay large sums of money. The accused knew the victim’s age, and gained her trust over a period of time. He engaged in sexual intercourse with her and had her perform oral sex on him.

44R. v. P.C. (five year sentence) involved a grandfather having sexual intercourse with his 10 year old granddaughter.

45Few of the facts are set out in Mullings (five year sentence), but the Court refers to sexual intercourse with a 13 year old girl “with devastating consequences”.

46In R. v. Al-Shimmary, 2017 ONCA 122 (four year sentence), the Court of Appeal listed a number of aggravating factors at para. 12:

a) The age of the victim [11] and the fact that the respondent sought her out; b) The planning evident on the date of the offence – arranging to meet the victim at the original park, leading her to a friend’s house nearby, and then isolating her further in a separate room; c) The fact that the respondent ignored and overcame the victim’s resistance; d) The fact that the respondent struck the victim to silence her when she cried out in pain from being penetrated; and e) The significant impact of the offence on the victim.

47In the present case only one of the aggravating factors is present: the sexual touching involved sexual intercourse and oral sex. This is not to diminish the significance of this aggravating factor, but the cases relied upon by the Crown include significantly more aggravating factors, including breaches of trust, incest, younger children, grooming or luring and significant impact on the victim. Moreover, all of those cases involved adults who knew the age of their victim, and often chose the victim for that very reason.

48I reject the Crown’s argument that K.S. was in a position of trust. While he was entrusted to drive the complainant home, they met for the first time immediately before the ride. There was no prior relationship of any kind before the ride home. K.S. was a virtual stranger to the complainant, a friend of her cousin’s whom she had also just met for the first time. There was no evidence that K.S. had planned this encounter. K.S. was asked to drive the complainant home in order to save the complainant’s aunt the trip from Hamilton to Ajax. Nor does their discussion in the car qualify as “grooming” as that term has been used in previous cases. “Grooming” is a pattern of behaviour “where the perpetrator attempts to prepare the child victim for increasingly more intrusive sexual abuse”: R. v. A. G., at para. 11.

49The lack of a victim impact statement is a neutral factor. There are, of course, well-recognized consequences to the sexual exploitation of children (see Woodward at para. 72 (5)). In the absence of specific evidence of the consequences in this case, however, I cannot consider such generalized consequences as an “aggravating factor”.

50There are several mitigating factors.

51K.S. has no criminal record. He has been compliant with his bail conditions. His Pre-Sentence Report is positive, and he is steadily employed and has worked hard to improve his education and employment prospects; prospects that will likely be lost as a result of this conviction. The offence in this case appears to be an isolated incident, and out of character for K.S. There was no ongoing conduct or any repetition of the offence or any attempt to communicate with the complainant (except when they had a chance meeting at the aunt’s birthday party a year later).

52K.S. has expressed remorse and accepts full responsibility for what he has done. While he did not plead guilty, he did not deny the essential facts of the case, and the conviction turned on the issue of whether he took reasonable steps to ascertain the complainant’s age. He now recognizes that he should have done more, and has indicated that he is motivated to seek counselling while on probation. He recognizes the adverse consequences that his conviction will inevitably have on his career. He appears to be an excellent candidate for rehabilitation, and he is not likely to reoffend, however long his custodial term may be. As such, my primary considerations with regard to the length of the custodial term are the objectives of denunciation and general deterrence of such conduct.

53While there were no other acts of physical violence or threats of violence, the absence of such violence is not a mitigating factor. In J.D., Fairburn J. (as she then was) stated at para. 25:

The fact that a victim does not express active or outward physical or verbal resistance to the sexual advances of an accused is not a mitigating factor.

54My review of the facts of the case and the individual circumstances of the accused supports the defence position that the matrix of facts in this case is closer to the cases relied upon by the defendant.

55In Hussein, the aggravating factors were that the offence involved sexual intercourse with a 13 year old girl, and the accused had been told that by the complainant’s mother that her daughter was 14 years old. The mitigating factors included that the offence related to a single incident and the accused is a first offender who had led an otherwise law-abiding pro-social life.

56Another mitigating factor considered by Code J. was that (at para. 33) “the accused’s fault is based on a lack of due diligence or a failure to take reasonable steps to ascertain [the complainant’s age]”. He stated:

These forms of objective or negligence-based fault are usually associated with regulatory or strict liability offences. In R. v. Hamilton and Mason (2004), 186 C.C.C. (3d) 129 at para. 91 (Ont. C.A.), Doherty J.A. explained the link between the fault element of a crime and the principle of “proportionality” in sentencing:

The “degree of responsibility of the offender” refers to the offender’s culpability as reflected in the essential substantive elements of the offence — especially the fault component — and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender’s personal responsibility for the crime.

57Whether fault based on lack of due diligence is fairly described as a mitigating factor, or knowledge of the victim’s age is more properly described as an aggravating factor, the sentence for someone whose fault is based on lack of due diligence should be less than that of a person who had actual knowledge of the age of the victim.

58Code J. concluded that a 15 month sentence followed by two years probation was appropriate in the circumstances of the Hussein case.

59In J.D. the age difference between the accused and the complainant was the same as in the present case. The aggravating factors were more numerous and more serious than the present case. These included at least two incidents of sexual intercourse, the victim was babysitting the accused’s three-year old son during the period of time he was having intercourse with her, he knew she was underage, the victim lived in a homeless shelter and was particularly vulnerable, and the victim considered the accused her friend. The mitigating circumstances included the accused’s lack of criminal record, his demonstrated remorse, his prospect for rehabilitation and his compliance with bail conditions. The sentence imposed was 15 months followed by 2 years of probation.

Conclusion

60Given the combination of aggravating and mitigating factors in this case, I conclude that a sentence of 15 months imprisonment is appropriate. This should be followed by two years probation, including a requirement that the accused engage in any counselling recommended by the probation officer and that he have no contact directly or indirectly with the complainant.

61The following ancillary orders sought by the Crown and agreed to by the defence are granted, as follows: a DNA Order pursuant to s. 487.051; a SOIRA Order for 20 years pursuant to s. 490.013(2)b; a s. 109 firearms prohibition Order for ten years; and an Order pursuant to s. 743.21 prohibiting communication with the complainant while the accused serves the custodial sentence.

62The Crown also sought a s. 161 Order that was opposed by the defence. Section 161 of the Code requires the Court to consider prohibiting the offender from attending various locations where persons under 16 can reasonably be expected to be present; obtaining or continuing employment that involves being in a position of trust or authority towards a person under 16; having any contact or communicating with persons under 16; or using the internet.

63In R. v. Schulz, 2018 ONCA 598, at paras. 40 – 50, the Ontario Court of Appeal reviewed the jurisprudence relating to s. 161 Orders. The Court stated, at para. 40:

The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender’s specific circumstances: K.R.J., at paras. 48 – 49.

64The Crown did not specify the precise nature of the s. 161 Order sought in this case. In my view, there is no basis in the record before me for a s. 161 Order. There is no evidence that K.S. poses a risk to children at large, and the s. 161 Order is not granted.