Court File and Parties

Court File No.: CR-22-112-00 Date: 2023 10 24 Ontario Superior Court of Justice

Between: His Majesty The King G. Gill, for the Crown

– and –

S.D.C. A. Sobcuff, for S.D.C.

Heard: September 19, 2023

Reasons for Sentencing

L. Shaw J.

Overview

[1] Following a four-day trial in April 2023, I found S.D.C. guilty of one count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”), and one count of touching the body of a person under the age of 16 years for a sexual purpose, contrary to s. 151 of the Code. Both charges relate to a single sexual assault that occurred on January 1, 2020. The victim was S., who is S.D.C.’s daughter. She was 7 years of age at the time of the sexual assault.

[2] The Crown and defence agree that the Kienapple principle applies and the conviction for sexual assault is stayed: R. v. Kienapple, [1975] 1 S.C.R. 729. S.D.C. will be sentenced on the sexual interference count.

[3] These reasons set out what I consider to be the appropriate and fit sentence that is proportionate to the offence and the offender. These reasons should be read in conjunction with my reasons for conviction: R. v. S.D.C., 2023 ONSC 3985.

Circumstances of the Offence

[4] On January 1, 2020, S.D.C. was spending parenting time with S. He had been separated from M., S.’s mother, for several years. S. lived with her mother and would spend time with her father. S.D.C. lived on his own in a basement apartment. The sexual assault occurred when S. was falling asleep beside S.D.C. in his bed.

[5] S. spent the day with S.D.C.; they went out bowling with S.D.C.’s girlfriend at the time, and her children. She was quite ill during the day and vomited several times. When she and S.D.C. returned home to his apartment, she went to sleep in S.D.C.’s bed, as was her practice when she stayed with her father. While she was falling asleep, S.D.C. came into the bed. S.’s back was to S.D.C. She then felt him pull her pyjamas down to her knees and she either told him not to pull her pyjamas down or asked him why he was pulling her pants down. She then felt S.D.C. place his penis on the top of her buttocks for 2 to 3 seconds and then between her legs. There was no penetration.

[6] S. spent the following day and night with S.D.C. before M. picked her up. There was no evidence of any type of grooming or threatening behaviour or any other acts of sexual assault. This was a one-time incident.

Position of the Parties

[7] The Crown seeks a sentence of two-and-half to three years. The Crown also seeks ancillary orders, most of which are not contested by S.D.C. This includes a DNA order pursuant to s. 487.051 of the Criminal Code, a s. 109 mandatory prohibition order for 20 years and for life, a Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) order for 20 years, and a noncommunication order with the minor victim and her mother pursuant to s. 743.21 of the Criminal Code. The defence does not agree with the Crown’s request for an order pursuant to s. 161(a), (b), and (c) for 10 years prohibiting S.D.C. from attending at certain locations where he may have contact with persons under the age of 16.

[8] The defence position is that a sentence of six months followed by probation for 18 months is a fit and appropriate sentence.

The Impact on the Victims

[9] Victim Impact Statements were filed with the court from both S. and her mother, M. In her statement, S. who is now 10 years of age, described feeling confused and weird as she did not know why her father did what he did. She remembers what occurred vividly and needs to distract herself so that she does not think about it. She does not trust her father but does not want him to be “miserable”. She also said she did not want her father to be able to do this to other children without getting help. S. has been in counselling.

[10] M. spoke about the profound impact on her and S.’s lives and the stress and anxiety she has experienced. She has been left with trust issues; it has affected her relationship with her current spouse. It affected her performance at work. She has also been in counselling.

[11] M. also described seeing S. struggle to make sense of her emotions and being overwhelmed with confusion. As a mother, she felt helpless watching her daughter struggle.

[12] S.’s statement reflects the conflict and confusion she has been left with by her father’s criminal conduct. The memories of the assault still haunt her and given her vivid recollection, it is reasonable to conclude that these memories are permanent, and the impact will be long-lasting. Her mother is also a victim who has not only struggled with her own emotions but also a feeling of helplessness watching her child suffer. As a parent, one of the hardest things is watching your child in pain.

Circumstances of the Offender

[13] Neither a PSR nor letters of support were filed.

[14] S.D.C. is 45 years of age. He has a positive history both for education and work. After completing high school, he attended college and graduated with a diploma in telecommunications in 2002. He then worked for various companies as an account manager, and in sales. His most recent employment in 2018 and 2019 was for landscaping companies. He has not worked since 2019. He was in receipt of the CERB benefit and then Ontario Works.

[15] He was in a common law relationship with M. between 2010 and 2013. S. was born in 2012. He owned a home at the time that he later sold.

[16] After he and M. separated, there was a period when he did not see S. He also experienced financial difficulties in 2015 and began to struggle with an addiction to alcohol. He did not consume alcohol when he had parenting time with S. He has been to A.A. to deal with his alcohol abuse but it is not clear to me when or if he still attends.

[17] S.D.C. has always been diligent in exercising his parenting time with S. He cares about S.’s health, education, and extra-curricular activities.

[18] S.D.C. has a criminal record for offences dating back to 2012. Some appear to be related to his alcohol abuse. There are no convictions for any sexual offences. His last convictions were in 2017 for mischief and fail to comply with a recognizance.

Principles of Sentencing

[19] The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Code.

[20] According to s. 718 of the Code, the fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

a) Denouncing unlawful conduct;

b) Deterring this offender and others from committing offences;

c) Imprisoning offenders where necessary to separate them from society;

d) Assisting in rehabilitating offenders and in appropriate circumstances encouraging their treatment;

e) Providing reparation for harm done to victims or the community; and

f) Promoting in offenders a sense of responsibility for and acknowledgement of the harm they have done to victims or to the community.

[21] Pursuant to s. 718.1 of the Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender. This promotes justice for victims and ensures public confidence in the justice system.

[22] Pursuant to s. 718.01 of the Code, the primary consideration on sentencing is the objective of denunciation and deterrence when the offence involves the abuse of a person under the age of eighteen.

[23] Section 718.2 of the Code sets out other sentencing principles. Those applicable to this case are as follows:

a) That a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or to the offender which includes evidence that in committing the offence, the offender abused a person under the age of 18 yeas of age.

b) That a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances;

c) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

d) All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[24] The object of denunciation is a sentence that communicates society’s condemnation of the offender’s conduct. When determining the fit and appropriate sentence in this case, the court must impose a sentence that denounces criminal conduct that targets minors.

[25] The objective of general deterrence is to impose a sanction that will discourage others from engaging in criminal conduct. This objective must also be considered when dealing with offences that involve minors.

[26] Restraint is also an important principle in sentencing; the least intrusive sentence that is appropriate and just should be imposed. That means that imprisonment is the sanction of last resort: R. v. Hamilton (2004), 72 O.R. (3d) 1 (C.A.).

[27] When dealing with sexual offences that involve a child, the Supreme Court of Canada has stated that a strong message must be sent that sexual offences against children are “violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities”: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 5. The Court also stated that sentences must reflect “the wrongfulness of sexual violence against children and the far-reaching harm it causes to children, families and society at large.” Sentencing courts must not only consider the actual harm sustained by the child, but also the potential harms that are yet to materialize but that are “reasonably foreseeable consequences of the offence and may in fact materialize later in childhood or in adulthood. To do otherwise would falsely imply that a child simply outgrows the harm of sexual violence”: see Friesen, at para. 84.

Aggravating and Mitigating Factors

[28] Section 718.2 (a) of the Code mandates a consideration of aggravating or mitigating circumstances related to the offence or the offender. As per s. 718.2 (a)(ii.1), it is an aggravating factor that the victim of the sexual interference was only seven years of age.

[29] While the elements of an offence cannot be aggravating, in my view, the time and location that the sexual interference occurred is an aggravating factor. S. was in a vulnerable state; she had been ill and was falling asleep in her father’s bed when he sexually assaulted her. A child ought to feel safe and secure when with her parent. She should not fear being taken advantage of by her father, someone who should be protecting her. I consider this to be an aggravating factor.

[30] In addition, S.D.C. was in a position of trust; this is an aggravating factor.

[31] S.D.C. chose not to address the court. His lack of an expression of remorse is not an aggravating factor.

[32] It is a mitigating factor that until 2020, S.D.C. had a strong education and work history. He was committed to spending parenting time with S. and was concerned with her heath and well-being.

[33] It is not a mitigating factor that there was no threatening or grooming behaviour, that the sexual assault itself was brief, and that there was only one occurrence.

Sentencing Case Law

Crown Cases

[34] Both the Crown and defence presented case law for me to consider when addressing the issue of parity. Unfortunately, the decisions relied on by the defence all pre-date Friesen and are therefore not that helpful. Friesen marked a turning-point in sentencing in sexual assault cases involving children and provided clear direction to this court to consider imposing more significant sentences. In addition, the focus must be on the harm caused by the sexual assault, and not by the specific nature of the act itself.

[35] In Friesen, the offender demanded that the mother of the victim bring her 4-year-old child into the bedroom to engage in sex acts. The Supreme Court upheld the sentence imposed by the trial judge for sexual interference of 6 years.

[36] At paras. 5 and 95 of Freisen, the Supreme Court of Canada found that sentences for sexual offences must increase as they are violent crimes that profoundly harm their victims, particularly when dealing with sexual offences against children. The Court gave clear direction to reject the belief that in the absence of physical violence, a victim cannot suffer serious injury. Children are uniquely vulnerable and as such, sexual abuse of a child is particularly blameworthy: Friesen at paras 89-90.

[37] The Crown relies on R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161. In that case, the court found the sentence imposed by the trial judge was demonstrably unfit. The offender was sentenced to nine months which the Court of Appeal overturned and imposed a sentence of 24 months for a single occurrence.

[38] In T.J., the first-time offender was convicted of several sexual offences involving a young child who was six or seven years of age. The sexual assault involved making the victim touch and rub his penis and he then asked her to put it in her mouth.

[39] The Court of Appeal, relying on Freisen, noted that substantial sentences can be imposed where there is a single instance of sexual violence and/or a single victim: para 39.

[40] The Crown relies on R. v. Cooper, 2019 ONCA 953 where the Court found that longer sentences are required to deter and denounce sexual predators and better protect children.

[41] In R. v. Green, 2022 ONSC 3786, Justice Gomery imposed a sentence of 18 months for sexual interference followed by three years of probation. The offender was a high school teacher who on one occasion grabbed the victim’s thigh, squeezed it, and then slid his hand higher on her leg while asking if she was looking for a boyfriend. On a second occasion, he touched her chest and moved his hand to her breast, over her clothes. Justice Gomery also found that the offender had been engaged in grooming behaviour prior to these assaults. He did not have a criminal record.

[42] In R. v. Roper, 2020 ONSC 7411, Justice Bloom imposed a sentence of 5.5 years following a conviction for one count of sexual assault and one of sexual interference. The victim was 9 years of age, and the offender was the partner of the victim’s mother. He was a father-figure to the victim. There were three separate instances where he sexually assaulted the victim. Once he touched her vagina with his fingers. The second time he touched her nipples. The third incident involved putting his penis on her vagina and touching her vagina with his finger.

[43] In my view, while we no longer only focus on the nature of the assault, in Roper, there were multiple events that involved more invasive acts, although I recognize that any kind of touching is a violation of a person’s bodily integrity.

[44] In R. v. T.A., 2022 ONCJ 528, the offender was 70 years of age and was convicted of sexual interference involving his granddaughter when she was 9 or 10 years of age. The offender had a prior record for sexual assault. He pled guilty to the charges.

[45] The acts included rubbing the victim’s thighs and vaginal area while she sat on her grandfather’s lap. He also moved her so that she rubbed against his penis. On another occasion, he took her to her bedroom and tried to coax her to touch his penis over the clothing. He also tried to coax her into his bed. On another occasion, he rubbed her shoulder and then moved his hand to her breasts and continued to rub. The last assault was when he rubbed her thigh over her clothes in a car.

[46] The offender was involved in treatment and was remorseful. He was sentenced to two years less a day and three years of probation.

Defence Cases

[47] The defence relies on R. v. M.L., 2016 ONSC 7082. In that case, the offender was found guilty of sexual assault and sexual interference. The victim was 15 years of age. The offender was 50 and knew the victim for her entire life. The victim spent overnights at the offender’s home. He stood in a position of trust towards her; he considered her to be like a daughter.

[48] One night, the offender began to massage the victim and they became topless while on his bed. The offender then touched and squeezed the victim’s breasts. This was the only incident of sexual touching.

[49] The offender was sentenced to six months.

[50] The defence relies on R. v. A.R., 2015 ONSC 5055. In that case, the offender was the 12-year-old victim’s stepfather. He touched the victim in her vaginal area while she slept. He threatened to kill the victim if she told anyone. His sentence of five months followed by probation for two years was upheld on appeal.

[51] In R. v. Chafe, 2017 ONCJ 946, the offender squeezed the victim’s breast and then her buttock while they were roughhousing. He was sentenced to 90 days to be served intermittently, followed by a three-year period of probation.

[52] The defence relies on R. v. T.M.B., 2013 ONSC 4019. The victim was 5 years of age. The offender was her grandfather. One evening while caring for her, they both removed their pyjamas and underwear and laid down on the floor. The offender then touched his penis on his granddaughter’s vagina for about two minutes. There was no penetration. At trial, he was sentenced to eight months. On appeal, for various reasons, the sentence was reduced to 90 days.

[53] In my view, had these cases been decided after Freisen, the sentences would likely have been more in line with the decisions relied on by the Crown.

[54] The focus is now directed to the wrongfulness and harmfulness of sexual offences against children. Rather than focusing on the nature of the act and describing it is “minor” or a “mere touching”, we now understand that such “minor” acts that involve something far less than penetration can have life-altering consequences.

[55] Friesen also found that upward departure from precedents may be required as we now better understand the gravity and harmfulness of sexual offences against children. The Court cautioned against relying on “dated” precedents that inadequately recognize this gravity: paras. 109-110.

Sentence

[56] At paras. 121-154 in Friesen, the Court reviewed several factors to consider when determining a fit sentence for sexual offences against children. These factors include likelihood to reoffend, abuse of a position of trust or authority, duration and frequency, age of the victim, degree of physical interference, and victim participation. I have considered each of these factors in determining what is a fit and appropriate sentence.

[57] In dealing with the degree of physical interference, the Court cautioned that sexual violence against children is inherently wrong, regardless of the degree of physical interference. There is violence and exploitation in any physical interference of a sexual nature, regardless of whether penetration was involved: para. 145. Furthermore, the Court rejected the myth that conduct that involves touching is inherently less harmful than other forms of sexual violence: para. 144.

[58] The focus is the harm to the child. The harm is not limited to physical harm but includes the psychological damages that are caused by the offence.

[59] I am also mindful of the comments made by A.C.J.O. Fairburn in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, at para. 74 as follows:

All sexual assaults are serious acts of violence. They reflect the wrongful exploitation of the victim whose personal autonomy, sexual integrity, and dignity is harmfully impacted while being treated as nothing more than an object. Whether intimate partners or strangers, victims of sexual violence suffer profound emotional and physical harm and their lives can be forever altered. So too can the lives of their loved ones.

[60] While the act involved in this matter involved a one-time touching, I am mindful of Friesen where the Court cautioned against downgrading the wrongfulness of the offence where the sexual violence does not involve penetration, fellatio, or cunnilingus, but rather touching or masturbation: para. 144.

[61] I recognize that a victim may suffer grave harm from even being touched. In this case, there is evidence that S. did suffer such harm. In my view, it is reasonably foreseeable that she will never forget this violation at the hands of her father, a person whose role it was to protect her, not harm her. She has needed counselling as she struggles with understanding why this happened to her.

[62] A conviction of sexual interference is a serious offence; it includes a finding that the offender knowingly engaged in sexual conduct with a child. The impact on the child can be profound and permanent. The evidence is that S. has suffered and continues to suffer such harm, as does her mother, M.

[63] This was a one-time event. In seeking a sentence of two-and-half to three years, the Crown acknowledges that this matter falls into the lower end of the spectrum of child sexual assault. In my view, the defence proposal of six months is not proportionate to the gravity of S.D.C.’s offence; he took advantage of his daughter when she was vulnerable. He violated her trust in him to protect her and keep her safe. His conduct was deliberate. For that, the principles of denunciation and deterrence take priority on sentencing.

[64] In determining what I consider to be the fit and appropriate sentence, I have considered the objectives of sentencing, the nature of the offence, the victim impact statements, S.D.s personal circumstances, the ranges of sentences from the cases I reviewed and the mitigating and aggravating factors. While S.D.C.is not a first-time offender, I do not consider his criminal record to be a significant factor in sentencing given the nature of his prior convictions.

[65] While deterrence and denunciation are the primary objectives, I must also consider S.D.C.’s rehabilitation and reintegration into the community. He requires a lengthy period of probation where appropriate counselling and treatment can be implemented.

[66] I therefore sentence S.D.C. to two years less a day of detention for the count of sexual interference. This period of detention shall be followed by three years probation.

[67] The terms of probation are as follows:

i) You are to report to a Probation Officer as directed;

ii) You shall keep the peace and be of good behaviour;

iii) Do not associate, contact, or hold communication directly or indirectly with the victim or any persons in her immediate family;

iv) Notify your probation officer in advance of any change of name or address or of any employment or occupation;

v) Attend and actively participate in all assessments, rehabilitative and/or counselling programs as recommended by your Probation Officer and complete them to the satisfaction of the Probation Officer for inappropriate sexual conduct and any other counselling deemed appropriate; and

vi) Sign any necessary releases to allow the Probation Officer to monitor progress and attendance within counselling.

[68] Should S. wish to initiate contact with S.D.C. while he is on probation, she can do so provided she gives written direction to the Probation Officer which direction can be revoked by S. at any time either orally or in writing

[69] With respect to the ancillary orders, the Crown has sought an order under s. 161. Such orders are discretionary. In R. v. Schulz, 2018 ONCA 598, the court noted at para. 40 that the function of s. 161 of the Code is to shield children from sexual violence. An order under this section constitutes punishment. The court noted that there must be an evidentiary basis upon which to conclude that the offender poses a risk to children: para. 41.

[70] Based on all the circumstances, I am not persuaded that such an order is necessary for 10 years but rather I impose a period of 5 years from the date of this order.

[71] The following ancillary orders will be included in the sentence:

i. An order authorizing the taking of a DNA sample pursuant to s. 487.05(1) (a) of the Criminal Code.

ii. A firearms prohibition order for 20 years pursuant to s. 109(2)(a) of the Code and pursuant to s. 109(2)(b) for life.

iii. An order prohibiting S.D.C. from communicating directly or indirectly with S. and M. while in custody pursuant to s. 743.21 of the Criminal Code.

iv. An order requiring S.D.C. to comply with the Sex Offender Information Registration Act for 20 years pursuant to s. 490.013(2.1) of the Code.

v. An order pursuant to s. 161 that S.D.C. not, for a period of five years from the date of this order:

(i) Be within two kilometers of any residence where S. ordinarily resides or contact her, or any member of her family, directly or indirectly, by any means;

(ii) Attend a public park or public swimming 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; or

(iii) Seek, obtain, or continue any employment, whether or not the employment is remunerated, or become or continue to be a volunteer, where the employment or volunteer activity would involve you being in a position of trust or authority towards persons 16 years of age.

[72] Count one is conditionally stayed on the final disposition of count two. The stay shall become permanent upon the dismissal of all appeals or the expiry of the appeal period in relation to that count.

Released: October 24, 2023 L. Shaw J.