Court File and Parties

COURT FILE NO.: CR-22-029 (Kingston) DATE: 20231006

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – R.W. Defendant

Counsel: Courtney Cottle, for the Crown Brian Callender, for the Defendant

HEARD: 5, 6, 7 and 8 June 2023, at Kingston

SENTENCING decision

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

MEW J. (ORALLY):

Sentencing Decision

Introduction

[1] R.W., on 15 June 2023 you were convicted of sexually assaulting D.N. and H.W., and of touching D.N. and H.W., both persons under the age of sixteen, with a part of your body.

[2] All of these offences occurred on 6 October 2018 when three young women, including the two victims, visited your house.

[3] The offences involving H.W., who is your niece, and who was fourteen years and ten months old at the time, occurred when you placed your hand down the front of her shirt, touching her left breast, and then tried to get your hand down the front of her shorts. When you were unable to do so, you picked her up in a bear hug and began trying to kiss her. You kissed her on her cheek and on her lips and on her neck. You then attempted to lay her down, only stopping when you were interrupted by someone else coming into the room.

[4] D.N. was a friend of H.W.’s. She had been at your house earlier in the day with H.W. She thought she had left something at your house and knocked on your door on her way home from H.W.’s house to her own home. You invited her in, subsequent to which you began to kiss her down the back of her neck and touch her backside. You then removed her pants and underwear, and penetrated her vaginally from behind with your penis. Your assault of her continued despite her repeatedly struggling to escape and asking you to stop.

Legal Framework and Sentencing Principles

[5] A person found guilty of sexual assault is liable to a term of imprisonment of not more than ten years. In addition, the law requires the imposition of a mandatory firearms/weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, a mandatory DNA order and, if requested by the Crown, a mandatory sex offender registration order. A conviction for sexual touching involving a person under the age of sixteen carries a maximum term of imprisonment of fourteen years, and a minimum term of imprisonment of one year.

[6] The Crown asks that you be sentenced to a term of imprisonment of five years and, in addition, that you be placed on the sex offenders’ register for life, that you receive a mandatory ten-year weapons prohibition order, a DNA order, and that orders are made under s. 743.21 of the Criminal Code, prohibiting you from communicating, while in custody, with your victims, as well as an order of prohibition under s. 161 of the Criminal Code.

[7] Your own lawyer submits that you should receive a sentence of between twelve and fifteen months’ imprisonment in relation to the offences against H.W., and two and a half to three years’ imprisonment for the offences against D.N. After taking into consideration the totality principle, it is submitted on your behalf that an appropriate sentence would be between three and four years’ imprisonment, plus, of course, the mandatory ancillary orders provided for under the Criminal Code and the Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA).

[26] The general principles of sentencing are set out in s. 718 of the Criminal Code. Judges passing sentence are required by law to impose just sanctions that have one or more of the following six objectives:

a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 acknowledgment of the harm done to victims or to the community.

[27] Sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence must also be similar to those imposed on similar offenders, for similar offences, committed in similar circumstances. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (this is often referred to as the totality principle). Offenders should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[28] Section 718.01 of the Criminal Code provides that when a court imposes a sentence for an offence involving the abuse of a person under the age of eighteen, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[29] Both counsel agree that the leading authority on the subject of sentencing for sexual offences against children is R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. In that case, the Supreme Court of Canada observed that 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” (at para. 51). This requires courts to focus their attention on emotional and psychological harm, not simply the physical harm caused by sexual violence. The Supreme Court continues, at para. 74:

It follows…that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence. Courts should also weigh these harms in a manner that reflects society’s deepening and evolving understanding of their severity [references omitted].

[30] The Supreme Court reminds sentencing judges that it is not sufficient to simply state that sexual offences against children are serious. Rather, courts are required to 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 (Friesen, para. 76).

[31] The Supreme Court in Friesen noted that as a result of an increase in the upper limit of sentences for sexual offences against children, an upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence. The court also stated that sexual offences against children should generally be punished more severely than sexual offences against adults; further, sexual interference with a child should not be treated as less serious than sexual assault of a child.

[32] In Friesen, a six year sentence imposed by the trial judge following the accused’s guilty plea to sexual interference with a young child and attempted extortion of the child’s mother was restored by the Supreme Court of Canada after it was reduced to four and a half years by the Manitoba Court of Appeal.

[33] Both counsel referred me to R. v. Poulsen, 2020 ONCJ 440, a decision of the Ontario Court of Justice which was released after Friesen and took into account the guidance provided by that case.

[34] In Poulsen, Libman J. noted that, as a result of the Friesen decision, mid-single digit penitentiary terms for sexual offences against children are to be the norm, and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional cases. Substantial sentences may also be imposed where there is only one instance of sexual violence and/or one victim.

[35] In Poulsen, a sentence of four and a half years was imposed following conviction on two counts of sexual assault and two counts of sexual interference (touching with hands and touching with penis) against a fourteen-year-old complainant. The accused was 36 years old. According to the sentencing judge, the accused committed multiple sexual acts that were highly invasive, such as digital touching, sexual intercourse and fellatio. The accused had given the victim powerful drugs prior to sexually assaulting her.

[36] In R. v. A.B., 2023 ONCA 254, a five year sentence was imposed for offences of sexual assault, sexual interference and invitation to sexual touching which had occurred while the victim was between the ages of ten and fifteen years.

Offender's Circumstances

[8] Before turning to the aggravating and mitigating factors in this case, I will briefly describe your own circumstances, and those of your victims.

[9] You are currently 49 years old. You have no children or other dependents.

[10] According to information contained in the pre-sentence report, at the time of the incidents you were recently separated from a long-term relationship. Since the offences, you have been in a relationship with [name redacted]. She describes your relationship with her as “good” and has continued to be supportive of you, notwithstanding your legal issues.

[11] Your younger brother, [name redacted], passed away approximately a year ago at the age of 47. You are presently living with your parents and have what is described as a positive relationship with them.

[12] After finishing high school, you went into the workforce. You are described by [name redacted] as “very easygoing”, a “helper”, and a “worker”.

[13] Most of your employment involved trucking. However, you have had difficulty obtaining employment in that field as a result of licence suspensions due to drink-driving offences. You have been supported by Ontario Works since 2008.

[14] A recurring theme in the comments made by your friends and family is that you are a drinker. While you deny any issues with alcohol, reporting that you will have a “few drinks”, your father reported to the probation officer who completed the pre-sentence report that you have previously had issues with alcohol consumption, although you currently drink about one-third of your previous consumption. It has been said that “bad things happen” when you have had the “wrong bottle”. Your friend [name redacted] said that while he does not consider you to be a “terrible drinker”, your drinking could be considered problematic for someone of your age.

Victims' Circumstances

[15] I next turn to the victims’ circumstances.

[16] H.W. did not provide a victim impact statement. It was reported to the court that she was “somewhat reluctant” to provide one. She is the adopted daughter of [name redacted] and [name redacted]. She has a biological sister, A.W, who was approximately twelve years old in October 2018, who is also a member of the W. household.

[17] D.N. is a close friend of H.W. and A.W. She described the W. family home as her “second home”. She provided a victim impact statement through her father. Your assault of her has been a life changing event. In her words:

This wasn’t just about what happened, this [sic] about everything that happens afterward. How will it be possible to have trust for those who claim to care for me? How will I be able to find trust in those who may claim to care about my children (when that time comes)?

Aggravating Factors

[18] There are a number of aggravating factors. The abuse of a person under the age of eighteen years is a statutory aggravating factor - Criminal Code, s. 718.2(a)(ii.1).

[19] The family relationship between you and H.W. implies at least some element of you being in a position of trust.

[20] Alcohol has clearly remained a feature throughout your adult life. You have past convictions for impaired driving (1993), driving with more than 80 milligrams of alcohol in your blood (1998), and a second conviction for impaired driving in 2018.

[21] The damage that you have inflicted on your victims, particularly D.N., is also an aggravating factor. As written in her victim impact statement:

I find it hard to understand that a few beers was all that was required…it was all that it took to lower his inhibitions enough to make it permissible [in his mind] to physically and emotionally violate a young girl.

[22] The degree of physical interference is a recognised aggravating factor. Sexual intercourse with a girl who had not yet reached her fourteenth birthday is a significantly aggravating factor.

Mitigating Factors

[23] There are some mitigating factors.

[24] You have no history of violence, let alone sexual violence. You are currently in a supportive relationship. [Name redacted] has stated that you have been around her nieces and nephews numerous times, without incident.

[25] As is your right, you maintain your innocence. Your position in that regard has no bearing on my sentencing decision. You have always maintained a co-operative and polite demeanour in your dealings with the police.

Analysis and Application of Principles

[37] Your assaults on H.W. and D.N. occurred on the same day, separated by just a few hours. I have no doubt that alcohol influenced your decision making that day. Not only does that offer no excuse for your behaviour, but your unhealthy relationship with alcohol over many years has got you into trouble on a number of occasions - albeit that your previous offences all relate to driving while impaired or with excess alcohol in your blood, rather than offences involving sexual violence.

[38] H.W. is your late brother’s daughter. She had every reason to believe that you were someone she could trust. Yet you abused that trust by sexually assaulting her. It was fortunate for both H. and you that you were interrupted before you had the chance to go further than you did.

[39] You have inflicted what may well be lifelong emotional damage on D.N. Her victim impact statement reveals her as an articulate, thoughtful young woman whose insight into what you did, and its impact, continues to evolve.

[40] Mindful of the guidance given by the cases I have referred to in this decision, as well as the other precedents submitted by counsel, there can be no doubt that a mid-single digit term of imprisonment is appropriate. Viewed separately, a term of imprisonment of fifteen months for the sexual assault and sexual touching of H.W., and a three and a half year term of imprisonment for the sexual touching and assault of D.N. would be warranted.

[41] Applying the totality principle, I have concluded that the appropriate overall sentence is one of four years’ imprisonment.

[42] Both counsel have requested that, for the avoidance of doubt, the consecutive sentences stated on the warrant of committal should add up to four years. I have therefore adjusted the terms applicable to sexual assault and sexual touching of D.N. to three years, and to the sexual assault and sexual touching of H.W. to one year.

Conclusion and Orders

[43] Because there were two victims, the Crown asks that you be placed on the sexual offenders register for life. Given the recent decision of the Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38, which declared a lifetime SOIRA order in similar circumstances to be unconstitutional, you be placed on the sexual offenders register for twenty years. There also will be a mandatory DNA order, a ten year weapons prohibition and a non-communication order pursuant to s. 743.21 of the Criminal Code.

[44] I have considered whether, in addition, I should make a prohibition order under s. 161 of the Criminal Code. I am not, however, persuaded that the circumstances of your offences, and, in particular, the prospects of you committing similar offences again in the future, warrant making such an order.

[45] Please stand up R.W.

[46] R.W., on the charge of sexual assault on D.N., and on the charge of touching D.N. for a sexual purpose, I sentence you to terms of imprisonment of three years (36 months) on each count. These sentences are to be served concurrently.

[47] On each of the charges of sexual assault of H.W., and touching H.W. for a sexual purpose, I sentence you to terms of imprisonment of one year (12 months), the sentences to be served concurrently.

[48] The concurrent terms of three years with respect to the charges involving D.N., and of one year with respect to the charges involving H.W., are to be served consecutively. The total sentence of imprisonment to be served by you for all of these offences will be four years.

[49] In addition, I make the following ancillary orders:

a. A mandatory DNA order pursuant to s. 487.051(1) of the Criminal Code, authorising the taking of a DNA sample from you; b. A mandatory weapons prohibition for ten years, pursuant to s. 109(1)(a) of the Criminal Code; c. An order that your name be added to the sex offender registry, and that you comply with the Sex Offender Information Registration Act for twenty years; and d. You will have no communication directly or indirectly with H.W., A.W., [name redacted], D.N., [name redacted] or [name redacted] during your period of custody, pursuant to s. 743.21 of the Criminal Code.

Mew J.

Handed down (orally): 6 October 2023

Note: These reasons have been edited to reflect submissions made by counsel at the conclusion of the oral handing down of these reasons concerning the application of the totality principle.