Court File and Parties

COURT FILE NO.: CJ 9609 DATE: 2023/09/12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – G.B. Defendant

COUNSEL: Armin Sethi, Counsel for the Crown Rupinjit Singh Bal and Calvin Barry, Counsel for G.B.

HEARD: August 2, 2023

REASONS FOR SENTENCE

GIBSON J.:

Overview

[1] Following a trial by judge alone before me, G.B. has been found guilty of one count of Sexual Interference contrary to s.151 of the Criminal Code, and one count of Invitation to Sexual Touching contrary to s.152 of the Criminal Code.

[2] The factual background of the case is provided in my Reasons for Judgment in this matter, 2023 ONSC 424, and I will not repeat it in detail here. Briefly, G.B. has been found guilty of touching the vagina of his daughter H.B., and forcing her to touch his penis, on multiple occasions from when she was 7-8 years old, until she was 13 or 14. He would take her hand and place it on his penis. It was not over clothing, but rather touching skin. These incidents occurred in the family home in Kitchener. At the time of trial, H.B. is now 25 years old.

[3] It is now my task to determine a fair, fit and principled sentence.

Evidence on Sentencing

[4] The evidence on sentencing included a Pre-Sentence Report, and letters of support for G.B. submitted by two friends and his current partner, R.M. No Victim Impact Statement was submitted.

Pre-Sentence Report

[5] A Pre-Sentence Report was produced by a probation and parole officer, Robert Porter, and was admitted into evidence as an exhibit on sentencing. It details the family and employment history of G.B. G.B. is now 49, and currently in a relationship with R.M. since 2018. Since being charged with these offences, he has moved to live with his parents in Kelowna, B.C., and works full-time as a shipper/receiver. He has no criminal record.

Defence Sentencing Material

[6] The Defence submitted three letters from G.B.’s friends and current partner expressing their continued support for him.

Submission of the Crown

[7] The Crown submits that G.B. should be sentenced to imprisonment for 4 years, together with some ancillary orders. It submits that the Victim Fine Surcharge should be waived.

Submission of the Defence

[8] The Defence submits that an appropriate sentence for the Court to consider in this case would be one of 26 months which, after taking account of the 50 days pre-trial custody and some credit for Downes time (as G.B. had moved to B.C. pending the trial to live with his parents), would result in an effective remaining sentence to be served in a Provincial custodial facility rather than a Federal Penitentiary. It does not oppose the ancillary orders sought by the Crown, except for a s.161 order prohibiting G.B.’s attendance at a school or playground for 10 years.

[9] The Crown submits in reply that G.B.’s move to a different province was not mandated by his terms of release, and that minimal Downes credit should apply.

Sentencing Principles

[10] As 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.

[11] 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.

[12] 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.

Caselaw

[13] The Crown referred me to the following cases (in addition to R. v. Friesen, 2020 SCC 9, which I shall consider in more detail below): R. v. J.H., 2022 ONCJ 271 (in which the sentence was 4 years concurrent on each count; the mitigating factor of a guilty plea in J.H. is not present in the current case); R. v. G.R., 2020 ONSC 7411 (in which the sentence was 5.5 years); and R. v. T.J., 2021 ONCA 392 (in which the Court of Appeal found that the sentencing judge had erred in principle in imposing a sentence of 9 months, and substituted a sentence of 24 months). I have read and considered these cases, particularly the observations of the Court of Appeal at paras. 16-18 in T.J.

[14] The Defence drew my attention to the following cases: R. v. O’Neill, 2022 ONSC 5025; R. v. G.R., 2020 ONSC 7411 (same case as that provided by the Crown); and R. v. Riossi, 2023 ONSC 3812. I have also read and considered these cases.

R. v. Friesen

[15] The most significant recent guidance when it comes to sentencing in cases involving sexual abuse of children is that provided in the 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.

[16] 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.

[17] In writing for the Court, Wagner C.J.C. 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.

[18] 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.

[19] 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.

[20] The Supreme Court directed that trial courts must impose sentences 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.

[21] 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.

[22] 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.

[23] 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.

[24] 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.

[25] 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.

[26] 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.

[27] 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.

[28] 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 that 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

[29] I turn now to an assessment of the facts in this case in light of the guidance alluded to from the Supreme Court of Canada and the Court of Appeal, and with regard to parity with similar cases. G.B. is a 49-year-old man who repeatedly sexually abused his daughter in the family home when she was between 7 and 14 years old.

[30] G.B. does not have a criminal record.

[31] G.B. 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

[32] 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.B. was the father of H.B., and the offences occurred in the family home;

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, H.B. was between the ages of 7-14 when the offences were committed; and,

c. That the sexual abuse occurred repeatedly over a protracted period. It was not an impetuous, spontaneous one-off instance.

Mitigating Factors

[33] The mitigating factors present on the facts of this case are that G.B. has no criminal record and is a first-time offender before the Court.

Analysis

[34] 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 provided by the Supreme Court of Canada in Friesen.

[35] On its facts, this case exemplifies several of the significant sentencing factors highlighted in Friesen:

1. An offender such as G.B. 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;
2. 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 multi-year period of at least 5 years, should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility;
3. 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, H.B. was between the ages of 7-14; and
4. 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.

[36] 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.

[37] 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.

[38] The moral responsibility of G.B. is high. He repeatedly sexually exploited a vulnerable young person, his daughter, in the family home where she should be entitled to feel safe, for his own sexual satisfaction, heedless of the inevitable adverse impact upon her sexual integrity and well-being.

[39] 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 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 H.B., a person who was a child at the time of the commission of the offences.

[40] 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

[41] On the first count of the Indictment, that of Sexual Interference contrary to s. 151 of the Criminal Code of Canada, G.B. is sentenced to imprisonment for 4 years.

[42] On the second count of the Indictment, that of Invitation to Sexual Touching contrary to s.152 of the Criminal Code of Canada, G.B. is sentenced to imprisonment for a term of 4 years, to be served concurrently with the sentence on the first count.

[43] There shall be credit for 50 days of pre-trial custody, credited at a ratio of 1.5 to 1, for 75 days credit.

[44] On the facts of this case, there was nothing that mandated that G.B. move to another province, so a claim for Downes credit for restrictive conditions of release has not been substantiated.

[45] The credit of 75 days will be applied to the sentence of 4 years, for an effective remaining sentence of 45.5 months.

[46] As both offences are primary designated offences, pursuant to s. 487.051 of the Criminal Code, G.B. shall provide a sample of bodily substances for the purpose of forensic DNA analysis.

[47] 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 10 years.

[48] There shall be an Order pursuant to s. 161(1)(a) of the Criminal Code prohibiting G.B. 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 10 years; pursuant to s. 161(1)(b) prohibiting G.B. 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 10 years; and pursuant to s. 161(1)(c) prohibiting G.B. 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 10 years.

[49] During his incarceration, pursuant to s. 743.21, G.B. is to abstain from communicating, directly or indirectly, with his ex-wife K.L. H.B. has expressed a desire to potentially keep channels of communication open with her father. To this end, G.B. is to abstain from initiating any communication with H.B. H.B. may, if she so chooses, communicate with G.B. and, in that circumstance, he may respond to her. If H.B. indicates at any time that she does not wish to have further communication with him, then G.B. is to abstain from further communication with H.B.

[50] 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.

[51] The Victim Fine Surcharge will be waived, consistent with the submission of the Crown.

M. Gibson. J.

Dated: September 12, 2023 Released: September 12, 2023