Court File and Parties

COURT FILE NO.: CR-19-40000271-0000 DATE: 20200311 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – C.J.

Counsel: B. Stagg, for the Crown H. Evans, for C.J.

Before: S.A.Q. Akhtar J.

Factual Background and Overview

Factual Introduction

[1] C.J. pleaded guilty to one count of sexual assault contrary to ss. 153 and 271 of the Criminal Code. He now stands to be sentenced.

[2] The victim is the 16-year-old daughter of C.J.’s common-law partner, Y.

[3] C.J. and Y. had been romantically involved in a nine-year relationship. They had three children and were raising two children from Y.’s prior marriage. The victim resided with C.J. and visited her biological father on weekends.

[4] On 9 November 2018, the victim went to her bedroom at approximately 11:30 p.m., falling asleep shortly afterwards. Sometime after midnight, C.J. entered the victim’s bedroom, lay down beside her and began to run his fingers over her vaginal area over the top of her underwear. He then lifted her underwear and digitally penetrated her and performed oral sex on her. C.J. also fondled the victim’s breasts and licked her nipples. Although awake, the victim pretended to be asleep during the entire assault.

[5] Later that morning, the victim texted the Kids Help Phone who passed on her information to the Children’s Aid Society. In addition, the victim disclosed the assault to her mother. When Y. confronted C.J., he admitted sexually assaulting the victim adding that he did not know “why I let this happen”.

[6] Shortly afterwards, the police were contacted, and C.J. was charged.

Positions of the Parties

[7] On sentencing, the Crown seeks a sentence of two years less one day with a period of probation of three years.

[8] The defence, on the other hand, submits that the appropriate sentence is six months’ custody along with a two year period of probation.

Legal Principles

Section 718 of the Criminal Code

[9] Section 718 of the Criminal Code provides statutory directions to be followed when an offender is sentenced for the commission of criminal acts. I recognise that sentencing is an individualised rather than a one size fits all process. Deterrence and denunciation must be balanced against the prospects of rehabilitation for C.J. Any sentence must be proportionate to the seriousness and gravity of the offence.

The Precedents

[10] The defence rely on a set of cases situated at the opposite end of the sentencing spectrum to those relied upon by the Crown.

[11] In R. v. G. (D.), 2011 ONCJ 116, the offender pleaded guilty to sexually assaulting his 17-year-old daughter by touching her breasts and digitally penetrating her vagina. The judge imposed a sentence of six months’ custody.

[12] In R. v. I, [1998] O.J. No. 5713 (C.J.), the offender was convicted of sexually assaulting his 16-year-old daughter by fondling and licking her breasts as well as rubbing her vagina. He was sentenced to five months’ imprisonment.

[13] In R. v. J.W., 2016 ONCJ 812, the offender received eight months after assaulting his step-daughter. The offender digitally penetrated the victim on three separate occasions, one of which was when she was in bed and going to sleep.

[14] Finally, in R. v. B., 2016 ONSC 3146, the offender was convicted for sexually assaulting two of his daughters by digitally penetrating one of the victims and rubbing the arms and thighs of the other whilst making sexual suggestions. He was sentenced to a total of three years’ imprisonment, two years for one victim with one year consecutive for the other.

[15] The Crown, on the other hand, relies upon cases that appear to suggest a range of 18 to 36 months for cases that involve a sleeping victim of sexual assault.

[16] In R. v. Smith, 2015 ONSC 4304, the offender was convicted of sexually assaulting a young woman who was asleep at his home. The Crown proceeded summarily and the sentencing judge imposed a conditional sentence of 16 months. On appeal, Campbell J. reversed the sentencing judge’s 16 month conditional sentence substituting a 9 month custodial sentence instead. Citing cases that suggested an 18-36 month range of sentence, Campbell J. made clear that he was imposing a “lenient” sentence and that a longer sentence would have been warranted at the time of sentencing. However, the length of time between appeal and sentence was a factor in Campbell J.’s conclusion.

[17] Other cases appear to follow the reasoning and range alluded to in Smith. For example, in R. v. H.H., 158 O.A.C. 272, the offender proceeded to ply an 18-year-old employee with alcohol, took her to his house and raped her after she passed out. The Court of Appeal set aside a conditional sentence replacing it with an 18-month custodial sentence. The court acknowledged that its decision took into account the fact that the offender had already served part of his custodial sentence.

[18] In R. v. J.R., 2008 ONCA 200, the court rejected conditional sentences where the offenders had intercourse with a female who had passed out in a bathroom after consuming alcohol. The court found that the maximum reformatory sentence was appropriate in the circumstances.

[19] In R. v. Colbourne, 2013 ONCA 308, the court rejected an appeal from a 14 month custodial sentence where the offender was found guilty of having intercourse with the victim after she had lost consciousness from excessive drinking. The court remarked, at para. 17, that “[i]f anything the sentence was at the low end of the range”.

[20] In R. v. Laz-Martinez, 2011 ONCJ 115, the offender pleaded guilty to non-consensual sexual intercourse with the victim after she had been drinking during a visit to a night club. After she passed out, the offender was discovered having sex with her by one of the victim’s friends. The sentencing judge imposed a two year sentence with three years’ probation.

[21] In R. v. Rand, 2012 ONCA 731, 307 O.A.C. 64, the court upheld a four year sentence for a similar case where an unconscious victim was raped in a bush after drinking at an open-air concert. Here, the offender had a criminal record for assault and domestic abuse. See also: R. v. Ouellette, 2014 ONSC 5387, where 30 months was imposed in a similar factual context.

[22] I agree with the Crown that a 6 month sentence would be too low in this case even though the offence stems from a single act. For example, in R. v. Hutchinson, [2006] O.J. No. 1790 (C.A.), the court held that a conviction for a single act of fellatio performed by an nine-year-old victim on the offender warranted a significant sentence. The court imposed a 15-month sentence in addition to the 7 month pre-sentence custody served.

Personal Circumstances

[23] C.J. was born in the Philippines and immigrated to Canada in 1989 at the age of five, with his mother and two brothers.

[24] He has been in a common-law relationship with the victim’s mother, Y., for ten years and they have three children aged 7, 4 and 2 together. As noted, Y. has two children from a prior marriage, the victim and a 12-year-old boy.

[25] C.J. graduated high school in 2002 and after attending Centennial College began an apprenticeship as a car mechanic before starting work in construction jobs. In 2005, he again switched careers working as a mortgage administrator and then later on becoming a caretaker for the Toronto District School Board. In 2018, after taking training, he began working for Kone Inc. as a licensed elevator mechanic.

[26] C.J. told the author of his pre-sentence report that he has had past issues with substance abuse and described himself as a functional alcoholic, attending counselling to seek help for his difficulties.

[27] The Crown did not file a Victim Impact Statement indicating that the victim, whilst provided with an opportunity, had not completed the form.

Aggravating and Mitigating Features

[28] There are several aggravating features in this case: the victim was of a relatively young age; the assault occurred in a situation where the complainant was extremely vulnerable and had every right to feel safe – in her bedroom whilst she was sleeping. However, by far and away the most serious aggravating factor is the breach of trust that occurred here: the victim was C.J.’s step-daughter and regarded him as her own father.

[29] In mitigation, I would note that C.J. has no criminal record and has maintained steady employment. His plea of guilty, whilst not at the earliest stage of proceedings, does demonstrate remorse. Significantly, C.J. chose to waive the preliminary inquiry at the Ontario Court of Justice and pleaded guilty before the trial date, thereby sparing the victim the obvious pain of having to testify against her step-father.

[30] I also note that the offence consisted of a single assault rather than any repeated acts by the offender.

[31] In these circumstances, I am of the view that a custodial sentence of 16 months is the appropriate sentence.

[32] I would also order a DNA sample be taken from C.J. pursuant to s. 487.04 of the Criminal Code, that he be subject to a SOIRA order for a period of 20 years, and that he be prohibited from carrying weapons as defined by the Criminal Code for a period of 10 years pursuant to s. 109 of the Code. I also impose a probation order for a period of 2 years with the conditions that, upon release, C.J. report directly to probation and as directed thereafter, and take any counselling that is directed by probation.

[33] There will also be an order prohibiting contact with the victim whilst C.J. is incarcerated pursuant to s. 743.21 of the Criminal Code.

S.A.Q. Akhtar J. Released: 11 March 2020

COURT FILE NO.: CR-19-40000271-0000 DATE: 20200311 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN – and – C.J. REASONS FOR JUDGMENT S.A.Q. Akhtar J.