Her Majesty the Queen – and – J.S., 2019 ONSC 4096
COURT FILE NO.: CR-17-19541 DATE: 20190704 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Her Majesty the Queen – and – J.S.
Counsel: Sabrina Goldfarb, Counsel for the Crown Brett McGarry, for the Counsel for the Accused
HEARD: July 3, 2019 (at Ottawa)
RESTRICTION ON PUBLICATION By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the accused, J.S. and the complainants P.S. and C.C. may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION ON SENTENCING
PARFETT J.
[1] The Accused, J.S., pleaded guilty to one count of sexual touching contrary to s. 151 of the Criminal Code [1] in relation to his daughter and one count of sexual assault contrary to s. 271 of the Criminal Code in relation to a family friend. Both victims were children at the time the offences occurred.
Circumstances of the offences
[2] P.S. is the Accused’s biological daughter. The sexual assaults started when P.S. was 8 years old and ended when she was 12 years old. At the time these incidents occurred, J.S. and P.S.’s mother were divorced and P.S. was at J.S.’s home for access visits.
[3] P.S. would go to sleep in her bedroom and at some point, J.S. would come in and lie down beside her. He would put his hand down the victim’s pyjama pants and rub her vagina. P.S. tried to push J.S.’s hand away, but he would resist and would continue rubbing her vagina.
[4] On August 17, 2016, P.S. told her brother about the abuse. The information was then passed on to P.S.’s mother who called the police.
[5] After J.S. was charged with the offences in relation to P.S., another young woman came forward with allegations of sexual abuse.
[6] C.C.’s parents separated and she was having trouble coping with her new reality. She began spending a lot of time at the S. home where the accused lived with his sister and parents. C.C. spent so much time at the S. home that she was given her own room.
[7] J.S. began paying a lot of attention to C.C. C.C. was flattered by the attentions of an older male. She was 13 years old when J.S. began paying attention to her and 14 at the time of the incident.
[8] C.C. and the S. family went to a New Years’ Eve party held by a neighbour. C.C. consumed too much alcohol and was escorted home by J.S.’s father. She went to bed and while she was in and out of sleep, she heard someone else come into the home.
[9] She woke up to find herself in different position than she had been when she went to bed. Her pants and underwear had been removed and the accused was performing oral sex on her. Someone knocked on the bedroom door and the accused answered, stating something to the effect of “we’re just talking.” He left the room.
[10] C.C. did not tell anyone about this incident until she heard that J.S. had been arrested and was alleged to have sexually assaulted his daughter. She decided that she wanted to support P.S. and therefore contacted police.
Circumstances of the offender
[11] J.S. is 39 years of age. He served in the Canadian Armed Forces from 2006 to 2016 and received a medical discharge. He currently receives a pension from Veterans’ Affairs.
[12] J.S. has a history of mental health issues, including depression, anxiety, PTSD, ADHD and borderline personality disorder. He takes a number of medications to address his issues and also sees a psychologist on a regular basis.
[13] J.S. was released on bail and has been subject to strict bail conditions for the past 34 months.
[14] As noted earlier, at the time of the offences involving P.S., J.S. was divorced from his first wife with whom he had two children: P.S. and her brother.
[15] He was married a second time and has a son who is presently 6 years old. This marriage failed in the wake of the sexual assault allegations and he is once again divorced. He sees his son on a regular basis.
[16] After his plea of guilt was entered, the court issued an order for a s. 21 Mental Health Act [2] assessment. J.S. underwent comprehensive testing and the final conclusion of the psychiatrist was as follows:
[J.S.] has multiple sex offences involving minors and relatives. He knows sex with children is wrong, but seems to have incomplete understanding of the idea of consent and the [fact] that children cannot consent to sex. He denies current sex interest in kids. Phallometric testing indicated primary sexual interest in adult women in consenting scenarios. However, he also responded to pedophilic stimuli (both male and female). [3]
Victim Impact Statements
[17] Both victims and members of P.S.’s family filed Victim Impact Statements. These statements detail the impact that these events have had on members of the family.
[18] Of note is the fact that both victims have expressed guilt for the fact they came forward with these incidents. Although P.S. herself did not mention her guilt in her statement, both her mother and grandfather commented on this fact. Her mother noted, “She should not feel guilt. She should feel proud of herself because she had the strength to come forward…”. Her grandfather stated, “Logically [P.S.] knows that she is not responsible; however, she obviously feels conflicted about this.”
[19] C.C. also expressed guilt. She said, “I have to remind myself that this isn’t my fault, though I have so much regret for not speaking up sooner.”
[20] Both victims also commented on the impact that the abuse and the ensuing legal proceedings have had on their lives. P.S. noted, “It affects me [that I cannot] see my step-brother….it’s especially hard that I cannot see my dog because he was comforting to me and a big part of my life.” And, “It made a huge impact on my life and it was hard for me to trust people.”
[21] C.C. stated very eloquently, “One minute you are proud of yourself for being brave and sticking up for what’s right, feeling like you are a warrior. The next, you are in tears wondering why you waited so long to speak up and what would have happened if you said something sooner.” She added, “People like [the accused] make people like [P.S.] and I grow up too fast. We grow up with damaged souls, heavy shoulders and wrong thoughts of what an appropriate relationship should be with a friend, a father, a brother or a husband.”
[22] P.S. still loves her father and as seen above blames herself for the consequences of her decision to come forward. Her family was broken apart by the revelations and P.S. no longer has regular contact with her step-brother with whom she was close.
[23] In C.C.’s case, J.S. took advantage of a childhood crush and used it to his advantage to first groom and then sexually assault her.
[24] These consequences reflect the devastating impact that sexual abuse has on the children who suffer it.
Positions of Counsel
[25] Defence counsel submits that a sentence of 12 months jail in relation the offence against P.S. and 90 days jail, consecutive in relation to the offence involving C.C. is appropriate in the circumstances. While acknowledging that deterrence and denunciation are the primary sentencing principles to be applied in cases of sexual assault, Defence counsel noted that rehabilitation should also play a role. He suggested that the jail sentence should be followed by a period of probation of 3 years, which would permit the accused to both access sexual behaviour counselling in jail and continue that counselling after his release.
[26] On the other hand, Crown counsel proposed a period of seven years’ jail. Five and a half years in relation to the offence against P.S. and 1.5 years, consecutive in relation to the offence against C.C.
[27] Both counsel canvassed the relevant caselaw and the principles that relate specifically to the sexual abuse of children.
Principles of Sentencing
[28] The offences for which J.S. has been convicted are very serious offences.
[29] Section 718 of the Criminal Code sets out the governing principles of sentencing. That section 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:
(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.
[30] In a case involving child sexual abuse, the primary sentencing principles are denunciation and deterrence. Denunciation in the circumstances of this case reflects society’s view that sexual encounters between adults and children are fundamentally wrong. In R. v. L.F.W. [4], the Supreme Court of Canada noted specifically that the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust.
[31] There are two aspects to the principle of deterrence; they are general deterrence and specific deterrence. Specific deterrence relates to the offender himself and aims to deter that offender from re‑offending. General deterrence relates to the belief that an appropriate sentence will have the effect of deterring other members of the public from committing similar offences. In this case, general deterrence rather than specific deterrence is primarily applicable.
[32] There are a number of other sentencing principles set out in the Criminal Code that have a significant impact on this sentencing hearing. First, section 718.1 states:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[33] In addition, s. 718.2(d) points out that, “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.”
[34] Thirdly, s. 718.2(b) states that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” This section is a codification of the common law principle of parity.
[35] Finally, s. 718.2(a)(ii.1) states “evidence that the offender, in committing the offence, abused a person under the age of eighteen years” is a statutorily aggravating factor.
[36] As noted by the Crown in her submissions, sentences for sexual abuse of children have evolved over time as the courts and the public have become more aware of the serious impact this type of abuse has on children. [5] In the seminal case of R. v. D.D., the Court of Appeal stated:
Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, 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.
We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known. [6]
[37] I agree with Defence counsel that while denunciation and deterrence are the primary sentencing principles, they are not the only relevant sentencing principles. Rehabilitation is a factor for the court to consider. However, in the present case, although J.S. has been assessed as a low risk to reoffend, his statements to Dr. Federoff indicate a serious lack of insight into the seriousness of his actions and the risks that he presents to children. J.S. can seek treatment in jail or outside jail as he chooses, but in my view rehabilitation is not a significant factor in this sentencing.
Mitigating and Aggravating Factors
[38] In this case, there are a number of statutory aggravating factors. As noted earlier, section 718.2 of the Criminal Code provides that certain circumstances must be considered as aggravating factors. Those circumstances include “evidence that the offender, in committing the offence, abused a person under the age of eighteen years’ and ‘evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim”. Both those circumstances exist in this case.
[39] In addition, there are other aggravating factors:
- There are two victims;
- With respect to P.S. the offence occurred numerous times over the course of four years, essentially robbing P.S. of her childhood; and
- J.S. was in a position of trust in relation to his daughter and in my view, was also in a role akin to trust in relation to C.C. She was a family friend, but one who was living almost full-time in the S. family home, had her own room and was considered as a member of the family.
[40] To these specific factors, I would add the following. I agree with Crown counsel that sexually abusing a child in their own bedroom aggravates what is already an abuse of trust.
[41] Moreover, and with respect to C.C., sexually assaulting someone who is not capable of refusing consent due to the excessive consumption of alcohol is particularly nasty. I agree with the comments in R. v. Micula, “the offence was callous, frightening and hugely intrusive into the victim’s private sexual domain.” [7]
[42] There are mitigating factors and they are as follows:
- J.S. has no criminal record;
- He is at a low risk to reoffend; [8]
- He has mental health issues, for which he has sought treatment;
- He has pleaded guilty, thereby saving his daughter from having to testify and C.C. from having to testify in a trial setting; and
- He has also expressed genuine remorse and has provided a letter of apology to the victims and their families.
[43] Defence urges me to take into consideration as a mitigating factor, the time that J.S. has spent on strict bail conditions. He notes that while J.S. was not obliged to stay in his house all the time, he took his conditions very seriously and they have therefore had a significant impact on the quality of his life.
[44] It is accepted law that time spent on stringent bail conditions is a mitigating circumstance and will impact on the determination of an appropriate length of sentence. It does not serve – as pre-sentence custody does – to affect the duration of the sentence. [9] Instead, it is to be taken into consideration at the “front end” – the determination of a fit sentence. The degree to which bail conditions will impact on sentence, if they impact it at all, depends on the stringency of those conditions. House arrest, in particular, is the situation that is most likely to be considered a mitigating factor, but it is not the only bail condition that may be considered. However, for bail conditions to be considered as a mitigating factor they must result in a situation that has significant “custodial and penal attributes.” [10]
[45] In this case, I agree with Crown counsel that while J.S.’s bail conditions were strict, they were not onerous and J.S. could have enjoyed much more time away from the house had he chosen to make the necessary arrangements. Consequently, this factor will play only a minor role in the assessment of the appropriate sentence.
[46] One final issue raised by Defence Counsel was the application of s. 718.3(7) to the present case. The relevant portions of that section provide,
When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.
[47] Defence noted that this section did not come into force until 2015 and therefore cannot apply to the offence committed in relation to C.C. Furthermore, he indicated that in accordance with the Ontario Court of Appeal decision in R. v. S.C. [11], this section is subject to the totality principle and must be read in conjunction with s. 718.2 (c) which states that “where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh.”
[48] I agree with Defence counsel’s position with respect to the application of s. 718.3(7). However, in the circumstances of this case, a consecutive sentence would have been available in any case. Not only are there two victims, but the offences occurred at different times and in different circumstances.
Conclusion
[49] What must still be determined is the appropriate length of the custodial sentence. In my view, Crown counsel’s suggestion of seven years is too high. Equally, Defence counsel’s suggestion of 15 months jail is too low. In the particular circumstances of this case, taking into consideration all the various factors that have been discussed at length above, I find that a fit sentence is three a half years’ jail. That sentence is to be allocated as follows:
- In relation to count #2 – 2.5 years; and
- In relation to count #4 – 12 months, consecutive.
[50] All other counts on the indictment are to be withdrawn.
Ancillary orders
[51] There will also be the following ancillary orders:
- s. 109 weapons prohibition for 10 years;
- a DNA order;
- s. 161 order (clauses a, b & c) for 20 years. With respect to subsection c, the non-communication order is subject to the victim and her family filing a written, revocable consent to contact that is filed with the Sexual Assault and Child Abuse Unit of the Ottawa Police Service in advance of any contact. With respect to subsection a, there is an exception for J.S.’s son with the approval of K.S.;
- a s. 743.21 order in relation to both victims. With respect to P.S. and her immediate family, there may be an exception if a written, revocable consent to communication is filed with the Sexual Assault and Child Abuse Unit of the Ottawa Police Service in advance of any contact; and
- a S.O.I.R.A. order for life.
Madam Justice Julianne Parfett
Released: July 4, 2019