Court File and Parties
Court File No.: CJ 10048 Date: 2022/01/06 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: G.S.
Counsel: J. Young, Counsel for the Crown A. Andreopoulos, Counsel for G.S.
Heard: December 17, 2021
Reasons for Sentence
GIBSON J.:
[1] G.S. was tried on an Indictment dated October 4, 2021, in respect of five alleged offences: Sexual Assault of D.A. contrary to s. 271 of the Criminal Code; Sexual Interference with D.A. contrary to s.151 of the Criminal Code; Sexual Exploitation of D.A. contrary to s.153(1)(a) of the Criminal Code; Sexual Assault of D.A. contrary to s. 271 of the Criminal Code; and Sexual Exploitation of D.A. contrary to s. 153(1)(a) of the Criminal Code. Three other counts were stayed by the Crown. He was tried by a Court composed of judge and jury.
[2] The offences were alleged to have occurred between 1998 and 2001, at a time when D.A. was between the ages of 13-16 years old. D.A. worked part-time at a bakery in Cambridge while she was an elementary school and high school student. G.S. was the son of the owner of the bakery and supervised D.A. for some of her work. His family were also family friends with the parents of D.A.
[3] G.S. was found guilty by the jury of these five offences on October 13, 2021.
[4] It is now my task to determine a fit and just sentence.
Circumstances of the Offences
[5] As provided at s.724(2) of the Criminal Code, where the court is composed of a judge and jury, the court shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty.
[6] In this case, the evidence disclosed that on two occasions, in Cambridge and in Toronto, G.S. had sexual intercourse with D.A. on the floor of the bakery van. On the third occasion, he had sexual intercourse with her in the bedroom of his parents’ house in Cambridge on the day of the wake held for his deceased father. All three of these occasions involved G.S. penetrating D.A.’s vagina with his penis. She testified that she did not want to have sexual intercourse with G.S., that she never initiated anything, and never wanted any of it. The first incident occurred when she was 13. The second when she was 15. The third when she was 16.
Evidence on Sentencing
[7] The evidence on sentencing included a Pre-Sentence Report, a Victim Impact Statement, and various letters of support for G.S. submitted by members of his family.
Pre-Sentence Report
[8] A Pre-Sentence Report was produced by a probation and parole officer Ms. Julie Birchall, and was admitted into evidence as an exhibit on sentencing. It details the family and employment history of Mr. G.S. G.S. is now 61 and married. He took over the management of the family bakery in Cambridge after the death of his father. He immigrated to Canada from Guyana when he was a child. He has a college diploma in Electronics. He does not have a criminal record. He sometimes experiences depression, is diabetic and has high blood pressure.
Victim Impact Statement
[9] In her Victim Impact Statement submitted to the Court, D.A. described the intense feelings of betrayal she experiences from what G.S. did to her, and her anger at his manipulation of a relationship of trust. She recounted the impact the offences have had on her education, her employment, her marriage, her children, her relationships, and her physical and mental health and well-being. She described experiencing flashbacks and feeling triggered by events, and the sense of debilitating trauma she still experiences.
Defence Sentencing Material
[10] The Defence submitted several letters from G.S.’s family members expressing their continued support for him.
Submission of the Crown
[11] The Crown submits that G.S. should be sentenced to imprisonment for 5.5 years, together with some ancillary orders. The Crown concedes that based on the dates of the offences and the provisions of the Criminal Code in force at that time, a conditional sentence is technically open to the Court to impose, but strongly submits that this would not be an appropriate sentencing disposition.
Submission of the Defence
[12] The Defence submits that an appropriate sentence for the Court to consider in this case would be a range from two years less a day (so as to leave open the possibility of a conditional sentence) to four years. It submits that a conditional sentence would be an available sentencing disposition in this case, and that G.S. is a suitable candidate for community supervision.
Sentencing Principles
[13] As recently succinctly summarized by Watt J. A. in R. v. Marshall, 2021 ONCA 28, in determining a fit sentence, the sentencing judge must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. As well, the sentencing judge must weigh the normative principles Parliament has enshrined in the Criminal Code; the sentencing objectives in s. 718, the fundamental principle of proportionality in s. 718.1, the aggravating and mitigating factors, as well as the principles of totality and restraint in s. 718.2: R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 17.
[14] Proportionality is a cardinal principle that governs the fitness of a sentence imposed on an offender. It requires that every sentence be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender who committed that offence: Criminal Code, s. 718.1.
[15] The severity of a sentence depends not only upon the seriousness of the consequences of a crime, but also on the moral blameworthiness of the offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility for that crime, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.
[16] Pursuant to s. 11(i) of the Canadian Charter of Rights and Freedoms, any person charged with an offence has the right if found guilty of the offence and if the punishment for the offence has been varied between the time of the commission of the offence and the time of sentencing, to the benefit of the lesser punishment. Accordingly, the determination of an appropriate sentence must have regard to the relevant maximum punishments prescribed in the Criminal Code at the time period of the offences, between 1998 and 2001, which for some of these offences are less than currently provided for in the Criminal Code. In terms of the objective gravity of the offences, at the relevant time the maximum punishment for the s.271 offence of Sexual Assault was 10 years, for the s. 151 offence of Sexual Interference was 10 years, and for the s.153(1)(a) offence of Sexual Exploitation was 5 years.
Caselaw
[17] The Crown referred me to the following cases (in addition to R. v. Friesen, which I shall consider in more detail below): R. v. M.(K.)., 2017 ONSC 2690; R. v. C.(C.), 2015 ONCA 59; R. v. Medeiros, 2014 ONCA 602; R. v. L.(J.), 2009 ONCA 602; R. v. D.M., 2019 ONSC 5407; R. v. C.(P.), 2016 ONSC 840; R. v. Al-Shimmary, 2017 ONCA 122; R. v. Sayed, 2012 ONSC 843; R. v. H.(J.J.), 2015 ONSC 6482; R. v. T.(E.), 2011 ONCA 86; R. v. Stuckless, [1998] O.J. No. 3177; R. v. Stuckless, 2019 ONCA 504; R. v. B.J.T., 2019 ONCA 694; R. v. B.(A.), 2015 ONCA 803; R. v. Woodward, 2011 ONCA 610; R. v. P.(F.), [2005] O.J. No. 2747; and R. v. D.(D.), O.J. No. 1061.
[18] The Defence drew my attention to the following cases: R. v. P. S., 2021 ONSC 5091; R. v. Fassassi, 2021 ONSC 3863; R. v. Friesen; and R. v. Blake, 2013 ONSC 6310.
[19] In addition, I have considered R. v. Burch, 2021 ONSC 484.
[20] For the reasons to be discussed below regarding R. v. Friesen, the precedential value of many of these older previous cases is now somewhat diminished. They are still relevant, but they are certainly not dispositive, given the sharp reboot in sentencing principles and practice in cases involving the sexual abuse of children mandated by Friesen. As affirmed in Friesen, the parity principle still applies. Parity is an expression of proportionality and gives meaning to proportionality in practice. But consideration of the precedential weight of these older cases must take place in light of this.
R. v. Friesen
[21] The most significant recent guidance when it comes to sentencing in cases involving sexual abuse of children is that provided in the recent judgment in R. v. Friesen, 2020 SCC 9, a unanimous judgment of the Supreme Court of Canada. Given its significance, I will consider the direction provided therein at some length, summarizing and paraphrasing the guidance provided by the Court.
[22] In Friesen, the Supreme Court of Canada started by reinforcing the principle that all sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. Parity is an expression of proportionality and gives meaning to proportionality in practice.
[23] In writing for the Court, Wagner CJC and Rowe J. stated at para. 5 of Friesen:
5 Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
[24] The Supreme Court of Canada declared that protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. At the sentencing stage, it insisted, in order to effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause and give effect to both in imposing a sentence. This will help bring sentencing law into line with society's contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.
[25] The Court further declared that Parliament's creation of the modern legislative scheme of sexual offences against children shifted the focus of the sexual offences scheme from sexual propriety to wrongful interference with sexual integrity. The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. Emphasis on these interests require courts to focus their attention on emotional and psychological harm, not simply physical harm. In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle, as these factors impact both the gravity of the offence and the degree of responsibility of the offender and understanding them is key to imposing a proportionate sentence.
[26] The Supreme Court directed that trial courts must impose sentences that commensurate with the gravity of sexual offences against children and that reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences. Sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.
[27] In Friesen, the Supreme Court declared that courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender's degree of responsibility. Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child, because it involves the wrongful exploitation of the child by the offender, and because children are so vulnerable. Courts must give proper weight in sentencing to the offender's underlying attitudes because they are highly relevant to assessing the offender's moral blameworthiness and to the sentencing objective of denunciation. The fact that the victim is a child increases the offender's degree of responsibility.
[28] The Supreme Court declared that Parliament has determined that sentences for sexual offences against children should increase to match its view of the gravity of such offences. It has increased maximum sentences for these offences and prioritized denunciation and deterrence in sentencing. Parliament's decision to repeatedly increase maximum sentences for sexual offences against children should be understood as shifting the distribution of proportionate sentences for these offences. To respect Parliament's decision, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children.
[29] The Supreme Court determined that a national starting point or sentencing range for sexual offences against children should not be created by the Court. It considered that the appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts. Nonetheless, to ensure that sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes, it determined that guidance on three specific points is required.
[30] First, upward departure from prior precedents and sentencing ranges should occur for sexual offences against children because Parliament increased the maximum sentences for these offences and because society's understanding of the gravity and harmfulness of these offences has deepened. Courts are justified in departing from dated precedents that do not reflect society's current awareness of the impact of sexual violence on children in imposing a fit sentence. There is concern about sentencing ranges based on precedents that appear to restrict sentencing judges' discretion by imposing caps on sentences that can only be exceeded in exceptional circumstances.
[31] Sexual offences against children can cover a wide variety of circumstances, the Supreme Court recognized, and it considers that appellate guidance should make clear that sentencing judges can respond to this reality by imposing sentences that reflect increases in the gravity of the offence and the degree of responsibility of the offender. Imposing proportionate sentences will frequently require substantial sentences. Parliament's statutory amendments have strengthened that message. Mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. A maximum sentence should be imposed whenever the circumstances warrant it.
[32] Second, sexual offences against children should generally be punished more severely than sexual offences against adults, as Parliament has determined by clear indication in the Criminal Code. Accordingly, the Supreme Court directed provincial appellate courts are to revise and rationalize sentencing ranges and starting points where they have treated sexual violence against children and sexual violence against adults similarly.
[33] Third, the Court declared, treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16 is an error of law. Parliament has established the same maximum sentences for both offences. The elements of the offences are also similar, and a conviction for sexual assault of a child and for sexual interference with a child can frequently be supported on the same factual foundation.
[34] In order to promote the uniform application of the law of sentencing, the Supreme Court provided the following non-exhaustive significant factors to determine a fit sentence for sexual offences against children must be considered. First, the higher the offender's risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm. Second, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender's degree of responsibility. Third, sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility. Fourth, the age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthiness of the offender is enhanced in such cases. Fifth, defining a sentencing range based on the specific type of sexual activity at issue poses several dangers. In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference is less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts. Sixth, a child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non-resistance should not be equated to "de facto consent"; a victim's participation should not distract the court from the harm that the victim suffers as a result of sexual violence; a breach of trust or grooming that led to the victim's participation is an aggravating factor; and, adults always have a responsibility to refrain from engaging in sexual violence towards children.
Assessment
[35] G.S. is a 61-year-old man who sexually abused a young employee of his family’s bakery when she was between 13-16 years old. He was 24 years older than her. In addition to being an employee, she and her parents were family friends. Two of the offences occurred in a work environment where she was subject to his direction and supervision.
[36] G.S. does not have a criminal record.
[37] G.S. does not accept responsibility for the offences, and has not expressed any remorse. This is not an aggravating factor, but rather the absence of a mitigating factor.
Aggravating Factors
[38] The aggravating factors present in this case include the following:
a. The direction of Parliament at s.718.2(a)(iii) of the Criminal Code that it shall be deemed to be an aggravating circumstance that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. In this case, G.S. was a workplace supervisor of D.A., and used that authority to further the commission of the offences;
b. The direction of Parliament at s.718.2(a)(ii.1) that, in committing the offence, the offender abused a person under the age of 18 years. In this case, D.A. was between the ages of 13-16 when the offences were committed;
c. The direction of Parliament at s.718.2(a)(iii.1) that the offence had a significant impact on the victim. This has been amply demonstrated in the Victim Impact Statement of D.A.; and,
d. That the sexual abuse occurred on three occasions, over a protracted period. It was not an impetuous, spontaneous one-off instance.
Mitigating Factors
[39] The mitigating factors present on the facts of this case are:
a. That G.S. has no criminal record and is a first-time offender before the Court.
[40] There was no pre-trial custody in this case, and there is no claim for Downes time in respect of restrictive bail conditions.
[41] There is insufficient evidence before me on sentencing to indicate that the conditions of depression, diabetes or high blood pressure reported by G.S. are so significant as to impact sentence or preclude his serving a custodial sentence.
[42] I have carefully considered all of the sentencing purposes and principles elaborated at ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. I have also considered the sentencing precedents in the caselaw jurisprudence submitted by the Crown and the Defence, and the relevant aggravating and mitigating factors in this case. I have of course given particular weight to the guidance recently provided by the Supreme Court of Canada in Friesen.
[43] On its facts, this case exemplifies several of the significant sentencing factors highlighted in Friesen:
An offender such as G.S. who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender's degree of responsibility;
Sexual violence against children that is committed on multiple occasions and for longer periods of time, as was the case here where the offences extended over a three-year period, should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility;
The age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthiness of the offender is enhanced in such cases. In this case, D.A. was between the ages of 13-16. While this is not at the lowest end of the age spectrum, she was a young teenager and was at a naïve and vulnerable age; and
A child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non-resistance should not be equated to "de facto consent"; a victim's participation should not distract the court from the harm that the victim suffers as a result of sexual violence; a breach of trust, as occurred in this instance, that led to the victim's participation is an aggravating factor; and, adults always have a responsibility to refrain from engaging in sexual violence towards children.
[44] In cases such as this, which involve the sexual abuse of a vulnerable young person by a person in authority, the dominant sentencing principles must be denunciation, as well as general and specific deterrence. This is reinforced by s.718.01 of the Criminal Code, which provides that where a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[45] I have also had regard to the issue of rehabilitation, as well as the sentencing principles of separation of offenders from society, where necessary, and the promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. But, as stated, considerations of denunciation and deterrence must predominate in this case.
[46] The moral responsibility of G.S. is high. He repeatedly sexually exploited a vulnerable young person in a workplace environment, for his own sexual satisfaction, heedless of the inevitable adverse impact upon her sexual integrity and well-being.
[47] Having regard to the facts in evidence in this case, the relevant aggravating and mitigating factors, the statutory provisions of the Criminal Code, including the objective gravity of the offences, and the sentencing precedents cited by the Crown and Defence, and in particular the recent guidance provided by the Supreme Court of Canada in Friesen, I am satisfied that, on the facts of this case, a significant penitentiary sentence is required to fulfill these objectives. This is a case that involved a wrongful interference with the personal autonomy, bodily integrity, sexual integrity, dignity and equality of D.A., a person who was a child at the time of the commission of the offences.
[48] This is manifestly not a case in which a conditional sentence would be appropriate. It would not be consistent with the fundamental purposes of sentencing in ss. 718 to 718.2.
Sentence
[49] On the first count of the Indictment, that of sexual assault contrary to s. 271 of the Criminal Code of Canada, G.S. is sentenced to imprisonment for 5.5 years (66 months).
[50] On the fifth count of the Indictment, that of sexual assault contrary to s.271 of the Criminal Code of Canada, G.S. is sentenced to imprisonment for a term of 5.5 years (66 months), to be served concurrently with the sentence on the first count.
[51] Consistent with the principle against multiple convictions for the same delict articulated in R. v. Kienapple, [1975] 1 S.C.R. 729, which applies when there is a factual and a legal nexus between the charges, the convictions in relation to counts 2, 3 and 7 will be conditionally stayed.
[52] As both offences are primary designated offences, pursuant to s. 487.051 of the Criminal Code, G.S. shall provide a sample of bodily substances for the purpose of forensic DNA analysis.
[53] There shall be a Sex Offender Information Registration Act Order pursuant to s. 490.012(1) of the Criminal Code. The duration of the order shall be for life (s.490.013(2.1)) because G.S. has been convicted of multiple designated offences pursuant to s. 490.011(a).
[54] There shall be an Order pursuant to s. 161(1)(a) of the Criminal Code prohibiting G.S. from attending a public park or swimming pool area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, for a period of life; pursuant to s. 161(1)(b) prohibiting G.S. from seeking, obtaining or continuing any employment, whether or not that employment is remunerated, or becoming a volunteer in any capacity that involves being in a position of trust or authority towards a person under the age of 16 years for a period of life; and pursuant to s. 161(1)(c) prohibiting G.S. from having any contact – including communicating electronically by any means – with a person who is under the age of 16 years, unless the person is a member of his family, for a period of life.
[55] During his incarceration, pursuant to s. 743.21, G.S. is to abstain from communicating, directly or indirectly, with D.A., J.A., or any member of their family.
[56] There shall be a s.109 weapons prohibition Order for 10 years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.
M. Gibson. J. Dated: January 6, 2022