Court File and Parties
Court File No.: CR-22-50000363-0000 Date: 2024-01-08 Ontario Superior Court of Justice
Between: His Majesty The King And: Irby Lemus, Defendant
Counsel: Alice Bradstreet, Bradley MacKay, for the Crown Sherif Foda, Rick Frank, for the Defendant
Heard: November 20, 2023
Justice: S. Nakatsuru
Endorsement
[1] At 14 years of age, A.M. became a mother to a baby girl. Mr. Irby Lemus, who was 25 years old at the time, is the father. A jury convicted Mr. Lemus of sexual interference and making and distributing child pornography. This is my decision on sentence.
[2] The Crown seeks an overall sentence of 12 to 15 years in jail. The defence first renews its application for a stay of proceedings. If not granted, the defence seeks a conditional sentence. [1]
[3] Before I get on to your sentencing, Mr. Lemus, I will briefly deal with your lawyer’s arguments about the stay of proceedings.
A. A Stay of Proceedings
[4] On August 25, 2023, Justice L. Nakonechny decided several pre-trial applications in this case. In her decision, she found a breach of s. 7 of the Canadian Charter of Rights and Freedoms because the assistant Crown Attorney in charge of the prosecution (not Ms. Bradstreet nor Mr. MacKay), failed to disclose material information in his possession before conducting a Crown bail review. Although she found a Charter violation, Nakonechny J. dismissed the defence application for a stay of proceedings. She left it open for the defence to seek a different s. 24(1) remedy from the trial judge.
[5] Mr. Foda argues that the remedy of a stay of proceedings should be considered afresh by me. He submits that a rebalancing of the various factors considered under the legal test R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-32 support a stay of proceedings being ordered given the prospective nature of the remedy and now that the trial on the merits has been completed.
[6] I do not agree. Justice Nakonechny decided a stay was not warranted. Disagreement with her decision is a matter for appeal. To conclude that Mr. Lemus is in a stronger position to argue for one now that he has been convicted, is illogical. The prospective interest underlying the remedy of a stay of proceedings based upon an abuse of process is a broader systemic one and not just specific to the defendant. On the facts of this case, the trial being over is irrelevant to the question of the appropriateness of a stay as a remedy.
[7] I will deal with other potential remedies later in my reasons.
B. The Fact Finding
[8] Returning to the sentencing, I must first find the facts. An important fact for this sentencing is the number of times and under what circumstances you engaged in sexual activities with A.M.
[9] Some facts are not really in dispute. In about February of 2015, A.M. was introduced to you by your previous girlfriend, A.W., who was a family friend of A.M. You and A.M. communicated for a couple of weeks before you met her for dinner at your home. Your two young children were present. After they went to bed, you and A.M. had sexual intercourse. Until May of that year, you and A.M. regularly had sex. On one occasion, you videotaped yourself having sex with her. You later sent those videos to her by email in July of 2015. These facts underly the convictions for making and distributing child pornography.
[10] Aside from a few trips out into the community, the two of you met at your place about three or four times a week, after she finished school. This continued until A.M. found out she was pregnant in May of 2015. After finding out the news, although A.M. wanted the relationship to continue, you ended it because you were upset that she wanted to keep the baby. It is clear from the messaging that by then, you knew that she was underage.
[11] However, there are other facts that the defence contests at the sentencing phase. Because the one count of sexual interference spans the whole period of time you knew A.M., it potentially covers a large number of incidents. The guilty verdict does not itself say which ones. Another important contested fact is whether the jury was satisfied beyond a reasonable doubt that you knew or were wilfully blind A.M. was underage before her pregnancy or whether you failed to take reasonable steps to determine her real age.
[12] The defence theory at trial was that during the pre-pregnancy sex acts, you had an honest but mistaken belief that A.M. was 18 years of age. Regarding the post-pregnancy sex acts, the defence was that they never happened at all.
[13] Save for the Cobourg beach incident, the defence continues to submit that the jury did not find the post-pregnancy sexual activity happened. A.M. testified that in the fall of 2015, contact with you started again. Sex started again. You would take her to a Walmart underground parking lot and have sex in the car, about once every two weeks. She was pregnant at the time. This continued until about Christmas. Her child was born in January of 2016. While you communicated with her regarding the welfare of your child, the sex stopped. This lasted until the summer of 2016, when A.M. testified that while at a beach in Cobourg, contrary to her wishes, you had sexual intercourse with her in the car while her child was present in a child seat.
[14] At sentencing, your lawyer argues that the jury only convicted you of the one incident of sexual interference at the Cobourg beach. This crime is conceded by the defence because of the messages in which you admitted that this was the last time you two had sex. However, Mr. Foda submits that because the jury acquitted you of two other incidents alleging you made and distributed child pornography, the jury must have had serious issues with A.M.’s credibility.
[15] The Crown submits that the jury found proven beyond a reasonable doubt all the incidents as testified to by A.M. The Crown submits that the evidence proves beyond a reasonable doubt that you knew A.M.’s true age from the start or alternatively, if you had an honest mistaken belief in her age, you did not take any, let alone all reasonable steps to find out her age before you had sex with her. It is on this basis the Crown argues that the sentencing should proceed.
[16] Given the jury verdict is ambiguous, it falls to me to make an independent determination of the relevant facts in relation to this count. R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96.
[17] For the following reasons, I independently find proven beyond a reasonable doubt that all the incidents happened, as testified to by A.M. In explaining why, I will not go over the evidence in detail. I will just go over the main points.
[18] I find that the jury acquittals do not cast any doubt on A.M.’s testimony about the other incidents of sexual interference. The acquittals on the discrete alleged incidents of livestreaming a sexual activity and uploading a photograph of A.M.’s buttocks on the internet are not intertwined with the facts underlying the convictions. While the jury may have had some issues regarding A.M.’s credibility about the incidents they found you not guilty of, this does not mean they had similar credibility concerns about her other allegations. A trier of fact can accept all, part, or none of a witness’s evidence. In addition, I note the strong arguments made by your lawyer to the jury that unlike the child pornography offences the jury convicted you of (where there was indisputable evidence that you created the videos since they were filed as exhibits), the Crown did not lead similar real or any forensic evidence that confirmed A.M.’s testimony on the acquitted child pornography offences.
[19] After hearing A.M.’s testimony and assessing it in the context of the whole of the evidence at trial, I believe her. There is no room for a middle ground where the total evidence, including your partly exculpatory statement to the police, leaves a reasonable doubt. R. v. W.(D.), [1991] 1 S.C.R. 742.
[20] Regarding that statement, I appreciate that you were under a stressful situation when you gave your statement to the police, but the statement does not raise a reasonable doubt. I do not accept your unsworn statements that you believed A.M. to be 18 years of age. These statements were untested by cross-examination. They had internal inconsistencies and were inconsistent with other evidence in the case, such as the messages between you and A.M. For example, you told the police you never touched A.M. again once you learned her age and yet you messaged her in April of 2019, and talked about how the last time you had sex was in Cobourg.
[21] I accept A.M.’s testimony about the various incidents and find the Crown has proven the various acts of sexual interference beyond a reasonable doubt. A.M. was candid. She withstood extensive cross-examination. Her testimony was plausible. Any deficiencies in her testimony did not affect the key parts of her allegations. The inconsistencies in her testimony were either about details that an honest witness may not remember or were explained by her. For example, the absence of some messages she was unable to retrieve and give to the police, is sufficiently explained by her.
[22] I find that A.M. told you her age right from the start, even before you first had sex with her. She testified she did. I accept that. Her explanation why she gave the statement to the police back in 2015 that she had told you she was 17 years old, makes sense to me. Her mother had gone to the police station after learning about the pregnancy. At the time, A.M. was still in love with you. She hoped the relationship would continue. She lied to the police to protect you. Assessed in this context, this prior inconsistent statement did not negatively affect her credibility.
[23] Your position to the jury that A.M. had a motive to fabricate the allegations because of the more recent custody dispute you had with A.M. about her child is unconvincing. This allegation of recent fabrication was successfully rebutted by A.M.’s message sent to A.W. on June 15, 2015, years before the custody dispute arose, where A.M. said amongst other things “I don’t know what shit he’s telling you but he knew how old I was from the start.”
[24] Moreover, while I find it likely that part of the reason why A.M. came forward and made her complaint to the police in the fall of 2020 was your deteriorating relationship surrounding your co-parenting, this does not diminish the truthfulness of A.M.’s allegations. There are many different reasons why sexual abuse survivors come forward when they do. It makes sense to me that A.M. came forward when she did, given her overall life situation and emotional state at the time. Simply put, she was ready to disclose then. Not before.
[25] Another argument made to the jury was that A.M. lied about her age to you so that she could escape her troubled home life. I do not find that convincing. It does not make sense for A.M. to do this as it would have proven very difficult for her to have maintained such a lie about her age since she still had to go to school and return to her home, even if she spent time with you. It makes more sense that she would be truthful about her age to you so that if you accepted her for who she really was, then she could develop a relationship with you that could in fact help her avoid her difficulties at home.
[26] The defence has no onus to prove a motive to lie. People lie for unknown motives or even for no reason at all. My reference to these potential motives of A.M. to lie is simply a response to submissions made by your lawyer to the jury.
[27] Your brother Carlos Lemus’s testimony about A.M.’s subjective appearance to him has little weight. His evidence also suffered in cross-examination. As well, I do not give the testimony of A.W. much weight. She demonstrated a bias, given you are the primary support and caregiver for her children. Moreover, her evidence did not go to significant issues of fact regarding the proof of the incidents.
[28] To go to the crux of the issue, it makes no sense to me that you would not have known A.M.’s age. It makes no sense that A.M. would not have told you the truth about it. This was not just a one-night stand you two had. Because of A.M.’s home situation, she quickly developed a close attachment to you. She had every reason to tell you the truth about her age as you appeared so interested in and supportive of her. A “relationship” of sorts grew between you two. In this context, A.M. went about her normal life as a 14-year-old child. Regardless of how challenging her home life was, she still lived with her mother. You knew that. Regardless of how mature she might have seemed at times, she went to school daily in grade nine. You must have known that as she stayed with you often. Regardless of how she might look older in some photos when she had make-up on, she still looks young; like a 14-year-old. There is no chance that you would not have known her extreme youthfulness. Thus, it is entirely plausible to me she would have told you her age from the start. Just as A.M. testified.
[29] Then there are the messages. At no point during the messaging is there a message that indicates you did not know her true age. Not even at the time you learned she was pregnant when she told you that she would wait for you until she was 16 years old. Nor at later times. When the messages are read collectively and in context, A.M.’s testimony about you knowing her true age is confirmed in my eyes. The messages read like you and A.M. shared this forbidden secret; that of a sexual relationship that was morally wrong and illegal. You never once complained in the messages about how you were innocently duped by A.M. into committing a serious criminal offence. You did not complain, because you knew her age. What you did complain of when this all blew up after she became pregnant, was that A.M. did not do that “one job” that she had. I infer that was to keep this illegal relationship hidden from others. That inference is irresistible.
[30] Your behaviour after the pregnancy also supports the fact you knew A.M.’s age. You continued seeing her. I would have thought that any person purportedly finding out something like this for the first time would have distanced themselves from that person, even if one shared a child with them. Yet, in the long run, you did not. This was because you were still interested in A.M. sexually. That is why you started communicating again with her in the way you did, knowing that she had such intense feelings for you, there was a good chance those feelings would still be there. This behaviour, including the Cobourg incident, is consistent with a man who knew from the start that the person he had been sleeping with was underage. I mention the Cobourg incident since even on Mr. Foda’s argument, the jury convicted you on this. Thus, he concedes the evidence established that you committed sexual interference with someone you clearly knew to be under 16 years of age. I totally ignore any propensity reasoning when I point all this out. What I am saying is the overall narrative as told by A.M. is plausible and consistent.
[31] In sum, these facts, proven beyond a reasonable doubt, will form the basis for the sentence.
C. The Sentence
[32] Your sentence must be a proportionate one. It considers the gravity of your offences and your degree of responsibility. I must balance aggravating and mitigating factors. The punishment must meet all the objectives of sentencing. The sentencing principles must be applied correctly. Though it must respect binding legal authorities and other similar cases, your sentence is unique to you and your crimes.
[33] All agree that deterrence and denunciation are the primary sentencing principles. Rehabilitation cannot be forgotten, but it takes a back seat to those principles.
[34] To begin, our highest court in the land has admonished that in the past, we have not taken crimes, especially sexual crimes, against children seriously enough. In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court said:
Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence […] In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy [citations omitted]. [5]
[35] With that in mind, I will refer to several aggravating factors that exist in this case.
[36] First, there is A.M.’s age. The first sexual act happened when she was 14. The last when she was 15. Recognizing full well how the younger the age of the victim, the more aggravating courts tend to treat the sexual abuse of children, the passage I just read shows how times have changed; not just because research reveals that the sexual abuse of older children has real and lasting harm as well, but also because societal attitudes about the gravity of such crimes have become more enlightened.
[37] Second, A.M. was vulnerable. She was vulnerable not only because of her age, but because of her home situation. You knew this. While I have not been given a lot of detail about it, I know she came from a limited socio-economic background. She was food insecure. Her mother did not give her enough attention.
[38] On the other hand, while the Crown argued you groomed A.M. and preyed upon her, I find it was not to such an extent or that linear. For example, while this is not mitigating, you were not searching the internet for a victim like we sometimes see in the courts. She was introduced to you by your ex-girlfriend. Only after a short period communicating online, you set up a dinner where sexual overtures were made. Make no mistake, the responsibility is always on the adult, and never the child. However, it goes too far to suggest you are like a serial sexual predator of adolescents. Indeed, the Crown does not argue that there is a likelihood that you will re-offend in the future.
[39] Third, the sexual abuse happened during an “intimate relationship”, Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(a)(ii) albeit an illegal one. As the Crown characterized it, and I agree, the relationship took on the overtones of a partner relationship, wrong though that was. A.M. helped care for your kids. She hung out with you at your home. At one point, clearly A.M. was looking for a long-term future with you. Also, you too had an emotional attachment to her. Again, incredibly wrong though that was. Thus, overall, it’s a fair call to say this is an aggravating factor. It was further made more serious by your efforts to make sure she kept this a secret.
[40] One argument that the Crown made is more problematic. This is not the classic breach of trust situation where a parent, an adult in the position of a parent, or an adult in a supervisory role over a child like a coach or teacher, sexually abuses a child in their care. Although you were much older than her, A.M. was not in your care. Her mother did not place her in your care. The relationship as I described above, was more of a “boyfriend/girlfriend” one. A.M. did not see you as a father figure type person in her life. [7] You did not treat her as if you had responsibility for her. Because she had to be, she was mature for her age and exercised a significant amount of independence. You were not in a position of trust over her. But I have no doubt that A.M. did emotionally trust you. At the time, she deeply cared about you. Moreover, there was a power imbalance given your age disparity and lived experiences. That is aggravating. But I conclude that this situation does not rise to the level of the type of breach of trust as found in the caselaw where it is treated as a very serious aggravating factor on sentence. R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at paras. 51-54; R. v. M.M., 2022 ONCA 441, at para. 7.
[41] Fourth, she became pregnant and had a child. This is a profound life-altering consequence for someone so young. It is one of the harms specifically identified in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 [9]. And it is one for which you have direct and full responsibility for. It is a serious aggravating factor.
[42] Fifth, the duration and nature of the sexual interference. It was not an isolated act. It was not a singular error in judgment. At first, your abuse of A.M. took place on a regular basis for a four-month period. It reoccurred shortly thereafter for a two-month period while she was pregnant. Then, there was one final incident following the birth of the child. With respect to the nature of the sexual interference, it involved penetrative vaginal intercourse numerous times. Furthermore, on the last occasion at the Cobourg beach, she said “no” to sex.
[43] Sixth, there is the impact on A.M. Her victim impact statement shows it has been grave.
[44] Allow me to say to you, A.M., I have listened very carefully when you read out your statement in court. You spoke clearly. Eloquently. Emotionally. Mr. Lemus’ crimes have had a deep impact on a young teenager who unexpectedly became a mom. Missing out on so many of the joys and life experiences had by your friends of a similar age. You suffered the unfortunate stigma of being pregnant so young. You suffered the verbal and emotional abuse from others. I wish we lived in a kinder and more understanding world. But we do not. The stereotypes and prejudices regarding teenage pregnancy remain. Your world changed because of Mr. Lemus’ crimes. You had to take on heavy burdens while so young.
[45] Clearly, you have suffered. And these impacts have been lasting. Including, most sadly, the conflicted feelings you have when you gaze upon your own daughter.
[46] Yet. You have shown an astonishing degree of courage and resilience. You have succeeded so far in life against the odds. You have become someone that your daughter is, and no doubt, will continue to be in the future, very proud of.
[47] Moving on, the child pornography. I will not treat this as an aggravating factor on the sexual interference count as I will sentence you separately for it. In other words, I will not double count this crime as an aggravating factor here.
[48] Then the mitigating factors.
[49] A significant mitigating factor is your lack of a criminal record. You are a first offender. While no longer young, I recognize that you committed this offence when you were in your mid-twenties.
[50] You have had a pro-social life. You have ADHD which impacted your schooling. Despite that challenge, you have been working since you were 16 years of age. You have a steady long-term job with a major transit organization. And you are essentially raising your two young sons on your own. I will say more about this later.
[51] Another mitigating factor is your family support. You take care of your mother who suffers from a disability. The character letters paint a different picture of you. This support increases the prospect of your rehabilitation.
[52] I will take into account your expression of remorse when you were given a chance to address me in court. However, it carries little weight. I do not doubt your sincerity. But an expression of remorse without accepting responsibility does not do much to mitigate your crimes.
[53] Returning to you being a father. From everything I know about the case and about you, you are a good father. A responsible one. One who cares for his children; including your daughter with A.M. You have essentially taken on the role of a single parent to your boys. In performing this role in life, you seem to be a very decent, dependable, and honourable man. It remains a mystery that someone like that in one part of their life could then go on and commit these crimes against a 14-year-old.
[54] Both the Crown and defence agree that a separation from your children is a collateral consequence that should be taken into consideration. R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 47; R. v. L.C., 2022 ONCA 863, 421 C.C.C. (3d) 227, at para. 24. They are eleven and nine years old. It will be hard on you and your boys. I agree it is an important factor. That said, I am limited in the effect I give this. Legally, this collateral consequence cannot make the final sentence disproportionate. Moreover, there are others who are around to step in: perhaps their mother in Montreal. I also have little doubt that your family will do what they can. Nonetheless, this collateral consequence highlights the need for restraint in sentencing you.
[55] These are the aggravating and mitigating factors that I must consider.
[56] Humans are complicated. And flawed. The flaw within you Mr. Lemus is one that I hope you have travelled some way in developing insight into and coming to terms with. Regardless, your degree of responsibility is significant. You knew her age and pursued A.M. Even after she became pregnant with your child, you continued with your pursuit.
[57] That said, I find that specific deterrence is not a great concern in your case. I very much doubt that you will be back before the court charged with a similar offence. Though I cannot be absolutely sure of it, there is little likelihood of you re-offending. There is every chance that rehabilitation will be successful.
[58] I have looked at the decisions made by other judges to guide me. It is a principle of sentencing law that your sentence should be similar to those imposed in other cases.
[59] In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, while recognizing that ultimately any sentence must be individually determined on their own facts, our highest court stated that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.
[60] I am compelled to reject the Crown’s ten-to-twelve-year sentence range for the sexual interference count. Ms. Bradstreet acknowledges that it is high. In my view, this sentence is too high. It is harsh and excessive and largely unsupported by the case law. [11] While R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 has begun to address the imbalance in the sentencing caselaw involving the sexual abuse of children, a sentence of the sort argued for by the Crown will swing the pendulum too far in the other direction. It is not fit on the facts of this case. And unnecessary to meet the goals of deterrence and denunciation. It would extinguish any hope of rehabilitation in Mr. Lemus.
[61] I will go over in more detail the case of R. v. Williams, 2020 BCCA 286, per Abrioux J.A. The case is interesting for two reasons. First, while two victims were involved, there are some similarities with your case, Mr. Lemus, given the nature of the acts and the fact that one of the victims became pregnant. Ms. Bradstreet had submitted that many of the defence cases could be distinguished on the basis that no pregnancy resulted. Second, this case is interesting as Mr. Williams’ first sentence appeal to the Court of Appeal for British Columbia was successful and he had his sentence reduced on appeal by one year. The Crown sought leave to appeal to the Supreme Court of Canada which sent the case back to the Court of Appeal for British Columbia to be assessed after the decision in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 was released. On the rehearing of the appeal, the Court of Appeal upheld the trial judge’s decision.
[62] The Court of Appeal for British Columbia upheld a six-and-a-half-year global sentence further reduced for pretrial custody for two counts of sexual interference against two complainants imposed by the trial judge after a guilty plea. The following are the facts of that case. Mr. Williams met both complainants through the app Whisper. The first complainant, M.B., told Mr. Williams she was 18. He later learned she was 14 but continued the sexual relationship anyway. Their relationship persisted for over a year. The two had sexual intercourse, which M.B. said was never forced. Mr. Williams viewed M.B. as his “slave” and demanded she be obedient. The two broke up after Mr. Williams demanded M.B. to become pregnant and she refused. The second complainant, N.D., told Mr. Williams she was 16 but revealed the next day she was 15. The two had sexual intercourse eight times over the course of five weeks. N.D. became pregnant against her wishes. Mr. Williams referred to N.D. as his “slave” and demanded her obedience. Mr. Williams asked N.D. to lie about her age to keep him out of jail. She didn’t. She reported the matter to the police. While Mr. Williams was released on conditions not to associate with minors, he continued to see M.B., the first complainant. N.D. ultimately gave birth and put the child up for adoption. Mr. Williams was a young first-time offender at the time of sentencing. His father died by suicide when he was only eight years old. His mother and stepfather were abusive to him. As a teenager, he was homeless. During that time, he was the victim of physical and sexual assaults. Mr. Williams was a millwork apprentice. He had a history of mental illness, including diagnoses of bipolar disorder, major depressive disorder, adjustment disorder, and borderline personality disorder. In custody, he had been assaulted and bullied. He had two institutional infractions for diverting medication and hiding contraband. He expressed regret for what he had done to the victims. He spoke to the court about this regret at his sentencing hearing.
[63] While Justice Abrioux accepted Mr. Williams’s submission that the sentencing judge erred in failing to consider his mental health and personal circumstances as mitigating factors, Justice Abrioux concluded that after the sentencing analysis done afresh to comply with the R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 framework, the custodial sentence imposed by the trial judge was fit. Considering the aggravating and mitigating circumstances, the global sentence fell within the comment made in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 that sentences for each victim (four years for one and three and a half years for the other, consecutive) reduced on the totality principle to six and a half years, fell into the low to mid-range sentences for such serious offences.
[64] Again, while I appreciate Mr. Williams pled guilty and had significant mental health issues, the sentence imposed in that case, even after considering his crimes involved two victims, did not reach the range suggested by the Crown. It remained in the mid-single digit range noted in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424.
[65] This is my conclusion. The offence is grave. Your degree of responsibility is significant. The sentence must focus on general deterrence and denunciation. I have listed the numerous aggravating factors. At the same time, there are mitigating ones. Mostly the fact you are a first offender, have excellent prospects of rehabilitation, and that your own nuclear family, your boys, will suffer considerably from your absence. Restraint must be exercised in these circumstances.
[66] Balancing all the relevant factors, without yet considering the Charter violation, I have determined that a mid-single digit penitentiary term of five years and six months is appropriate.
D. The Sentence Reduction
[67] A sentence reduction is the appropriate response for the s. 7 Charter breach found by Nakonechny J. Whether it be a remedy under s. 24(1) of the Charter or a mitigating factor that is relevant to the offender’s circumstances under the sentencing regime, R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 2-3, 47-49, 55, 63; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 53 the parties agree it should be done. What your lawyer and the Crown disagree about is the amount of the reduction. The Crown submits a modest reduction of a month. To the contrary, your lawyer submits the reduction must be measured in years.
[68] To assess the positions, I must look at the nature of the breach. Briefly stated, the assistant Crown Attorney involved in the prosecution of your case brought a bail review of your release conditions so that you could no longer have unsupervised access to your children. This was based upon a police occurrence report that your daughter had said when she was about two years old that you had touched her inappropriately during a parenting visit. By the time the bail review was heard, the assistant Crown Attorney knew that further police investigation including speaking with A.M. did not support this allegation. Despite having this knowledge, the assistant Crown Attorney did not disclose this information to the defence, did not disclose it to the Justice hearing the bail review, and proceeded to argue for the variation. He was unsuccessful despite not disclosing this new information.
[69] Certain important findings made by Nakonechny J. are relevant to my decision. First, the assistant Crown Attorney knew that the application based on a risk to your children was not supported by the new information. In other words, the failure to disclose was not a result of carelessness but was deliberate. Second, the failure to disclose was not only to the defence, but to the court. The assistant Crown Attorney misled the Justice hearing the bail review. Third, the omitted disclosure was on the pivotal issue of the bail review regarding whether the child’s utterance was true or not. Fourth, on the abuse of process application, in rejecting the Crown argument of “no harm, no foul” on the basis that the Crown bail review was ultimately dismissed, Nakonechny J. held that you could have suffered serious consequences to your relationship with your sons. Finally, she characterized the breach as “serious” but one stemming from “errors in judgment.” She found it did not affect your right to have a fair trial but it did violate your right to security of the person under s. 7 because the assistant Crown Attorney attempted to interfere with your parental rights. In other words, it was not just that the assistant Crown Attorney did not disclose something he should have, but it also could have had serious and tangible effects on your parental rights. She ultimately found that the high test for a stay of proceedings was not met but her decision did not preclude other remedies being granted by the trial judge.
[70] I find that the state misconduct is relevant to your personal circumstances. As the evidence shows, your connection to your sons is strong and you are their primary caregiver. A significant interference with your ability to parent them is a profound intrusion into your family life. That was what the state sought to do in launching the Crown bail review. While the Crown acknowledges the financial burden caused to you by having to defend against the bail review, I am certain it also must have caused you a great deal of anxiety and emotional turmoil. This violation has the necessary connection to your sentencing to make it a relevant consideration in determining the fit sentence. In the alternative, a sentence reduction is an appropriate Charter remedy.
[71] Nakonechny J. determined these to be “errors in judgment”. In other words, there were no findings of maliciousness or bad faith on the part of the assistant Crown Attorney. Nevertheless, it was serious. It was a failure of the fundamental ethical obligations of someone that the law has described to be a minister of justice: Boucher v. The Queen, [1955] S.C.R. 16. While an error in judgment, the motivation for failing to disclose could only have been a misguided tactical decision to increase the likelihood of success at the bail review. This is why Nakonechny J. held that the Crown should have reconsidered the necessity of the bail review given the new information. That is why she found the assistant Crown Attorney failed in his duty to the court, as well as to the defence.
[72] Sentencing has a significant communicative function. R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 49. A trivial reduction of a month from a significant penitentiary sentence would only communicate that the justice system treats such a failure by the Crown with indifference. I cannot be indifferent. The message that I must convey is that serious misconduct will be treated seriously.
[73] Mr. Foda also submits that the assistant Crown Attorney has not been held to account for his actions and this makes the state misconduct even more serious. R. v. Tran, 2010 ONCA 471, 103 O.R. (3d) 131, at paras. 100-102; R. v. Singh, 2013 ONCA 750, 118 O.R. (3d) 253, at paras. 45-46. Ms. Bradstreet orally submitted the assistant Crown Attorney is devastated, he has been spoken to by his seniors, and that a message has already been sent to the Ministry by Nakonechny J.’s decision. That no more is needed. Respectfully, based on these slim representations, I cannot say that the actions taken so far have been sufficient.
[74] On the other hand, the effect on the sentence should not be overstated. The sentence imposed must remain proportionate. It cannot wholly undermine the deterrence and denunciatory messages that this sentence must also convey to the community.
[75] While I have been provided some caselaw, not surprisingly there are few authorities that are on point. I will just observe though that other judges have given significant mitigating effect where significant state misconduct was found, sometimes measured by reductions in the range of years and not months. R. v. Acheampong, 2018 ONCJ 798; Auclair c. R., 2016 QCCA 1361; R. v. Capay, 2019 ONSC 535. See also R. v. Collins, 2023 ONSC 5768, at paras. 69-70, where a s. 8 violation and a s. 10(b) violation had some harmful impact or effect on the offender, Code J. found it had some mitigating effect in supporting the imposition of a conditional sentence.
[76] Exercising my discretion as judiciously as I can, the reduction or mitigating effect of this s. 7 violation should be 18 months. This reflects the seriousness of the breach and the potential effect such misconduct has on the administration of justice. It will convey a message the violation is taken seriously yet will not render the sentence disproportionate. The sentence will remain in the mid-single digit range. Thus, the sentence for the sexual interference is four years.
D. Consecutive Sentence for the Child Pornography Offences
[77] The cases involving child pornography charges that often come before the courts are ones where the offender has a collection of child pornography, often obtained through others or the internet, for their sexual gratification. Recently, Ontario’s Court of Appeal has said in light of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, sentences for such offences should go up. R. v. M.V., 2023 ONCA 724 [16] They also reviewed the various sentence ranges for such offences.
[78] There are aggravating features to the offences. Although done openly, it was nonetheless a gross invasion of A.M.’s privacy. That acknowledged, this case involves a somewhat unusual set of facts for making and distributing child pornography. [17] The making of it was not done to groom or encourage A.M. to have sexual relations with you. It was done on only one occasion. There is no evidence that you uploaded them to the internet or shared them in any way with anyone else. The only distribution of them is that you sent them to A.M. in July of 2015. There is no evidence as to whether those videos still exist elsewhere other than in A.M.’s possession. I cannot glean any motive for why you did that. There is insufficient evidence to infer that you were somehow trying to intimidate or pressure A.M. by that action as the Crown argued.
[79] Still, I am of the view that a period of incarceration is the right sentence. You knew she was much younger than 18 years of age, which is the minimum age for the creation and distribution of such sexual imagery. Here, too, deterrence and denunciation are primary sentencing principles.
[80] In assessing the fit sentence for these two child pornography offences, I also consider the totality principle since this sentence will be added to your sentence for sexual interference. It will be a consecutive sentence to the sexual interference. Criminal Code, R.S.C. 1985, c. C-46, s. 718.3(7)(a) [18]
[81] The sentence requested by the Crown of two to three years is excessive for an offence of this nature and for this offender. In my view, a sentence of six months for make and distribute child pornography, to be served concurrently to each other is the appropriate sentence.
[82] Therefore, the global sentence is four years and six months. [19]
D. Other Orders
[83] A DNA order will be made.
[84] The defence objects to the other orders asked for by the Crown.
[85] I find there should be a s. 109 order for a period of ten years. The defence did not make any submissions why it should not be imposed. On the other hand, the Crown request for a life-time prohibition is excessive on the facts of this case and for this offender.
[86] The Crown seeks a s. 743.21 order prohibiting contact with A.M. and their daughter. I find that this is too rigid. There must be some flexibility so that Mr. Lemus can pursue legal means to have contact with his daughter if it is determined that would be in her best interest. Moreover, it is not unforeseeable that A.M. might wish to pursue some legal avenues available to her. So, I order no contact directly or indirectly during the custodial period of the sentence except through counsel for the purpose of a legal proceeding or otherwise allowed for by a court order.
[87] The Crown seeks a s. 161 order for ten years. The defence objects. In my view, there is a nexus between the offences and a s. 161 order. The overarching purpose for such an order is to protect children from sexual violence. R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 45-47 [20] Given my findings, you pose a risk to children. The specific terms of the order will be designed to minimize that risk and yet they will also respond to your personal circumstances. The conditions must consider that you have two young sons. Moreover, your relationship with your daughter may change over such a lengthy period. Also, I believe that if you are accompanied by a family member in doing the activities contemplated in the prohibition, any risk will be minimized. Finally, a prohibition from using the internet is not sufficiently supported by evidence since your possession and distribution of the child pornography was limited in scope and a broad prohibition would have significant impact upon your life. The duration of the order for ten years is reasonable.
[88] Thus, you will be prohibited from: (a) attending 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 except when accompanied by one or more of your children or an adult family member; (b) being within two kilometres of any dwelling-house where A.M. ordinarily resides; (c) seeking, obtaining or continuing any employment or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and (d) having contact including communicating by any means with a person who is under the age of 16 years of age unless they are your children or done under the supervision of an adult family member.
[89] Finally, I will not yet impose a SOIRA Sex Offender Information Registration Act, S.C. 2004, c. 10 [21] order. The defence has filed a Notice of Constitutional Question regarding the constitutional validity of the new SOIRA provisions and to Christopher’s Law. It was agreed any constitutional challenge would be postponed until the sentence was imposed since depending on the sentence, the issue might be moot. Moreover, it was an open question whether I had any jurisdiction to entertain a constitutional challenge to a piece of provincial legislation that formed no part of my function as a sentencing judge. I can be spoken to about whether these challenges will be proceeding and if not, what SOIRA order should be made.
Justice S. Nakatsuru Released: January 8, 2024
Notes
[1] The conditional sentence is based upon a factual finding that only a single incident of sexual interference has been proven and after the Charter violation is accounted for.
[7] I recognize it is not necessary for the Crown to prove that A.M. herself viewed the relationship as one of trust. Other factors including the age differential between the young person and the accused, the evolution of their relationship, and the status of the accused in relation to the young person are relevant. That said I am not satisfied that an abuse of a position of trust has been proven beyond a reasonable doubt: R. v. R.S., 2023 ONCA 626, at para. 42.
[9] At para. 139. (Refers to R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424)
[11] Recent cases with more egregious facts have not reached the range asked for by the Crown. In R. v. Nahanee, 2022 SCC 37, 418 C.C.C. (3d) 417, repeated sexual assaults of 13- and 15-year-old nieces over years: eight years. In R. v. B.M., 2023 ONCA 224, sexual abuse for 43 months of two 12-year-old children of the man with whom the offender had a relationship with: seven years. R. v. W.V., 2023 ONCA 655 lengthy sexual abuse of a developmentally challenged woman with a mental age of seven or eight years old: six years. Other cases have given offenders in relatively similar circumstances sentences in the mid-single digit range. R. v. R.V., 2019 ONCA 834. Sentence: four years’ imprisonment for sexual interference; upheld on appeal. The appellant had intercourse with his 15-year-old cousin, who became pregnant as a result. The sentencing judge considered the fact the appellant was a youthful first offender, had a supportive family, and had a positive pre-sentence report, as well as that the offence had significant consequences for the complainant, including termination of the pregnancy and damaged relationships with her family. R. v. G.H., 2023 ONCA 89. Sentence: five years’ imprisonment for two counts of sexual assault; upheld on appeal. The complainant was the accused’s stepdaughter who was eight to 12 years old at the time of the offences. The first of the two charges involved the appellant inappropriately touching the complainant on the buttocks, and the other assault consisted of repeated, highly intrusive sexual abuse, including touching the complainant’s genitals and forced oral sex. The appellant had a prior, dated conviction for sexually assaulting a 16-year-old. R. v. Audet, 2020 ONSC 5039, per Smith J. Sentence: four years’ imprisonment for sexual interference. The complainant was a 15-year-old acquaintance. The assault involved forced kissing, digital penetration, and vaginal penetration with a condom. The accused had a challenging childhood, which included being the victim of physical and sexual assault, and he completed his education; however, he ignored the complainant’s resistance, had a lengthy criminal record that including a conviction for domestic assault, and lacked insight into his behaviour. R. v. Fassassi, 2021 ONSC 3863, per Monahan J. Sentence: seven years’ global for two counts of sexual interference against two complainants (four years and three years consecutively). The first count consisted of the accused repetitively assaulting his friend’s 15-year-old sister over the course of a month, including touching her breasts and vagina, forcing fellatio, and three incidents of vaginal penetration. The second count consisted of an assault on the first complainant’s 15-year-old friend on one occasion which involved touching her breasts and vagina and forcing fellatio. The accused had a dated, non-relevant criminal record and is the father to two children. R. v. G.S., 2022 ONSC 120, per Gibson J. Sentence: five and a half years’ global sentence for two counts of sexual assault (two sentences of equal length served concurrently). The accused forced vaginal intercourse with the complainant on three occasions, when she was 14, 15, and 16. The accused was 61 at the time of sentencing, had no criminal record, did not express remorse, and the offences had a significant impact on the complainant. R. v. Riossi, 2023 ONSC 3812, per Di Luca J. Sentence: four years’ global for sexual exploitation and sexual interference against two complainants (two years for each). The accused was a high-school teacher who engaged in sexual activities with two of her students, who were 15 and 16 years old at the time. These offences including sending them photographs of her in the nude, oral sex, and vaginal sex with one of the complainants. The accused had no criminal record, had many letters of support filed on her behalf, pled guilty, expressed remorse, and had strong rehabilitative prospects; however, the nature of the activity escalated and was extensive, and she was in a position of trust in relation to her students. R. v. L.S., 2023 ONSC 1281, per Conlan J. Sentence: two years and six months’ imprisonment for sexual interference. The accused forced vaginal intercourse on one occasion with the 15-year-old complainant, who was a stranger. The accused was a youthful black man with an intellectual disability, no criminal record, and was soon to be the father to a child with special needs.
[17] A somewhat similar case is R. v. M.M., 2022 ONCA 441, where the Court of Appeal for Ontario dealt with a case in which the offender in a breach of trust situation, texted back and forth sexual images with a foster-niece, starting when she was 12 for a period of three years, along with further evidence he was “grooming” her to have sex with him when she turned 16. On appeal, the Court found the conditional sentence unfit and would have imposed a 15-month sentence which they described at being the lower end of the range. This case can be distinguished on the basis of the breach of trust and the long period of time in which the child pornography was created and exchanged.
[19] Mr. Lemus has done three days of pretrial custody before he was released. He will be given a credit of five days for this. I have accounted for this in determining the overall sentences. In other words, it would have been four years six months plus five days before the pretrial credit was taken into account.