Court File and Parties
COURT FILE NO.: CR-21-00000865-00 DATE: 2024 08 20
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Julia Bellehumeur, for the Crown Crown
– and –
D.F. Matthew Eaton-Kent, for the Defendant Defendant
HEARD: April 2, 2024
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR SENTENCING
Tzimas RSJ.
INTRODUCTION
1On April 12, 2023, I found D.F. guilty of one count of sexual assault, one count of sexual interference, and a breach of his probation order of June 21, 2010, contrary to sections 271, 151 and 733.1(1) of the Criminal Code of Canada. My complete findings were outlined in my Reasons for Judgment in R. v. D.F., 2023 ONSC 2193. My references to my findings will be limited to those key findings that are relevant to set the context and to explain my reasons for D.F.’s sentencing.
2Sentencing submissions were originally scheduled for June 5, 2023 and a regular Pre-sentencing Report (PSR) was to be obtained. On June 5, the court had not yet received a PSR. A request was made for an enhanced PSR (Morris Report). The court was advised that it would take seven months to receive such a report. The parties reattended on November 14, 2023, for an update on the status of the enhanced PSR. At that point, the court learned that due to a significant backlog in the preparation of enhanced PSRs, such a report would be delayed for many months. The court therefore renewed its original request for a regular PSR, and scheduled the sentencing hearing for January 8, 2024. On that date, the court was advised by court administration that through inadvertent error, the request for the PSR had not been processed. Regrettably, that resulted in a further delay for sentencing submissions and an adjournment to April 2, 2024.
3The Crown requested a period of custody of 6 to 8 years, as well as the following Criminal Code ancillary orders: a Sex Offender Registration Act (SOIRA) for 20 years, per s.490.013(2)(b), a s.161 order, a DNA Order, and a s.109 weapons prohibition. In anticipation of the Defence’s intention to seek credit for pre-sentencing custody, the Crown opposed such credit. In reply, counsel agreed that D.F. could be given a Summers credit of 14 days and that Downes and Duncan credits could be treated as mitigating factors in the determination of a fit sentence.
4The Defence submitted that a just and fit sentence would be a custodial sentence in the range was 3 to 4 years. He argued that the Crown’s request of 6 to 8 years was too high and disproportionate to other similar cases. Furthermore, he relied on Downes, Duncan and Summers credits to reduce the term to the range he proposed. He invited the court to treat Downes and Duncan circumstances as mitigating and to recognize a Summers credit from November 2023, onwards, as well as 37 days of custody prior to November 19, 2023. He did not oppose the requested ancillary orders.
5For the reasons that follow, I have concluded that a just and fit sentence for D.F. is 5 years, 6 months and 5 days, net of a Summers credit of 55 days for the s. 151 charge. The s. 271 charge is stayed. D.F. is also sentenced to 30 days custody, concurrent for his probation breach.
6I also make the following ancillary orders pursuant to the applicable sections of the Criminal Code of Canada: a SOIRA order for a period of 20 years, a DNA order, and a s.109 weapons prohibition for a period of 10 years. In accordance with s. 161, D.F. shall not attend any playgrounds, community centers, or schoolgrounds where persons under the age of 16 years may be present, except in the presence of an adult. D.F. shall also not seek any employment or volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. The exception to this prohibition relates to interactions and any contact with his own daughter who is currently 15 years old. The said prohibition is for a period of 10 years. There shall also be a no-contact order with the complainant. This prohibition is for life.
7Finally, I recommend that D.F. be offered the benefit of the appropriate counselling to help him deal with his anger management, his relationship with women and his own childhood trauma.
FACTS OF THE OFFENCE
8D.F. is 40 years old. He was 36 years old when in the period between April 1 and June 30, 2020, he had sexual intercourse with the complainant, who was a troubled 14-year-old teenager.
9At the time, D.F. was a tenant in the basement apartment to the home where the complainant was living with her mother and two older brothers. As noted in my Reasons for Judgment at paragraph 10, it was generally agreed that D.F. and the complainant’s mother were in a tenant / landlord relationship. They would have friendly casual conversations when they ran into each other and on occasion they exchanged text messages. D.F. would come upstairs to the main residence to do his laundry and to drop off the rent. The complainant’s mother helped D.F. with the certification of his van. When D.F. was doing a barbeque, he would share it with the complainant and the complainant’s older brothers. The complainant’s mother invited D.F. to an adult-only party where the complainant did not attend.
10The following chronology of the parities’ interactions was as also not materially in dispute. Soon after D.F. moved into the basement apartment, the police came to D.F.’s apartment looking for a missing 14-year-old. Shortly after that encounter, the police located the complainant and escorted her back home. D.F. saw the police and the complainant at the main residence front door, as he was returning home. He did not interact with any of them. For the purposes of the sentencing, although D.F. gave various explanations on whether he actually saw the complainant with the police and whether he knew that the missing child was a 14 year-old girl, I found that those contradictory answers amounted to a deliberate attempt to distance himself from his knowledge of the complainant’s age; In my Reasons for Judgment, I concluded that D.F. knew that the complainant was 14 years old, almost the same age as one of his own children, but chose to ignore it.
11A few months into D.F.’s tenancy, the complainant was sitting on the porch nursing a bruised leg. When D.F. came by, he asked her what was wrong, and she asked him for a cigarette. When he questioned her about smoking at such a young age, the complainant told him that she was 17 years old. The complainant said they exchanged numbers because the complainant wanted to have a “smoking buddy”.
12D.F.’s interaction with the complainant became more frequent, starting with an incident that involved the complainant’s boyfriend, who ran into D.F.’s basement apartment to hide. D.F. became very agitated and angry over this occurrence. With the permission of the complainant’s mother, the complainant brought some weed to D.F. to apologize for the incident. That interaction between D.F. and the complainant precipitated frequent meetings for the purposes of smoking weed.
13The first sexual incident started with an invitation for a smoke. D.F. invited the complainant to his place to watch a movie. The complainant had already been drinking and felt “tipsy”. She could not recall if she continued to drink when she went downstairs, but she did recall that they smoked weed together. They started to watch a movie and that evolved into full sexual intercourse. The complainant thought that the activity was consensual; she said, “like the first time I was drunk I guess it was like I gave my consent with that because I don’t know what I was thinking but I was just hurt and shit”.
14The second sexual incident occurred a few days later. The complainant said that on this occasion she resisted D.F.’s advances. She described him as “dominating” and that she said “no” albeit in a “playful way”. She tried to get away from D.F., but he overpowered her and they had sexual intercourse.
15The complainant reported the incidents to the police on July 14, 2020, following an argument with D.F. about letting her into his apartment when her mother had locked her out.
16For the purposes of my sentencing analysis, I find it necessary to underscore D.F.’s admissions to knowing that the complainant was a child, who was troubled, who would not follow instructions, and who was missing when the police came looking for her at his place. At paragraph 125 of my Reasons for Judgment, I found that D.F. did not care that the complainant was a troubled youth. Rather, he sought to take advantage of her situation, thinking that he could get away with his actions. He devalued her and saw her as somebody with whom he could have sex, regardless of her age. As I discuss below, these findings are crucial to D.F.’s aggravating and mitigating analysis and serve to illustrate many of the concerns raised in R v. Friesen, 2020 SCC 9.
CIRCUMSTANCES OF THE OFFENDER
17The court received a PSR dated March 18, 2024. D.F. is 40 years old. Regrettably, he has an extensive criminal history with 15 prior dispositions, dating from April 19, 2002 until June 21, 2022, and relating primarily to robbery, domestic violence, assault, drug possession and possession of an unauthorized firearm, and failure to comply with recognizance conditions.
18In her overall assessment of D.F. and with reference to the past convictions, the probation officer noted that D.F. demonstrated an inability to comply with court orders and a tendency to minimize his role in the various past offences he committed. D.F. participated in a programme to address domestic partner abuse but was discharged for having a “poor attitude”. He completed it through another agency at a later time. Ministry records reported anger management to be an ongoing issue for D.F.
19D.F. was born in Brampton, Ontario. His mother immigrated from Jamaica and his father from Trinidad. D.F.’s parents separated when D.F. was young. He has four step-siblings who range in age from early 20s to late 40s. D.F. described his upbringing as supportive and without any violence or substance use. He has an 18-year-old son, with whom he has no contact and a 14-year-old daughter who resides in Alberta. He reported that he is currently single; he separated from his ex-wife approximately three years ago, following a 3-4 year marriage. His ex-wife reported that although the first six months of their marriage were good, D.F. presented with anger and aggression issues. He would become condescending and demeaning if he did not get what he wanted.
20D.F. completed Grade 10. He decided to drop out of school to “make money” both “legally and illegally”. Although he was not formally diagnosed with any disability, he attended special education classes for math. He expressed an interest to complete high school and pursue collegial studies.
21According to the PSR author, D.F. could not recall details concerning his past employment. In 2022, he reported tarping flatbed trucks, but he lost his job when he had GPS monitoring installed. Prior to that he worked for a glazing company. For most of his life he was a forklift driver and reported short-term period of employment.
22D.F. denied abusing alcohol and said he only drinks on occasion. He reported his involvement with illicit drugs but denied using them for himself. He said he smokes cannabis daily but has not attended any substance use counselling or detox centres. His ex-wife reported that D.F. used ecstasy (“Molly”) and cannabis and that his drug use made him more aggressive. In her view, D.F. should abstain from drug use. Generally speaking, D.F.’s ex-wife reported that on the one hand D.F. could be “sweet, kind and generous” and on the other a “nightmare and scary”. She recommended that D.F. attend individual counselling “to address his past traumas and help him recognize what he has done wrong, as he is unable to identify it”.
23The complainant’s mother confirmed that her daughter would not be giving a victim impact statement. In her view, her daughter had some degree of trauma that was caused by the offence. Although the complainant sought some counselling, she ultimately stopped attending it. The complainant’s mother said she did not consider D.F. a “bad guy” but viewed him as somebody “who is desperate for companionship”.
24The probation officer reported that D.F. accepted responsibility for his actions. However, in her overall assessment of D.F. she concluded that “the subject appears to lack insight on his offending behaviours and appears to have no empathy for the impact his actions may have on the victim. An area of concern seems to be around his relationship with women. He may require support and counselling around healthy relationships. Additionally, anger management appears to be an issue as this was mentioned in Ministry records and confirmed by the subject’s wife. She recommends that he attend individual counselling to deal with his past trauma”.
25In her recommendations, in addition to any other conditions the court might impose, the probation officer noted that D.F. i) should not be permitted to attend a public park or swimming area, schoolground, playground, or community centre where persons under the age of 16 years are present or can reasonably be expected to be present; ii) not be in the presence of any person under the age of 18 unless he is accompanied by an adult over the age of 21 and who is aware of D.F.’s criminal history; iii) not reside in any home that has children under the age of 18; iv) refrain from any communications whatsoever and by any means with the complainant and her family; and v) participate in all assessment, counselling or rehabilitative programs as may be directed by the probation officer and complete them to the satisfaction of the probation officer. Such counselling may deal with, but may not be limited to, inappropriate sexual behaviour, healthy relationships and boundaries, and trauma.
26In his submissions to the court, counsel for the Defendant advised the court that D.F. did not feel comfortable reporting to the probation officer that when he was eight years old, he was sexually abused by his cousin who was 13 or 14 years old. The abuse continued for a number of years. This has had a lasting impact on his life, it has been a source of both anger and shame and helps explain his criminal record. The experience also impacted his relationship with women and his perception of consent and sexuality.
27Although there was no evidence before the court on these facts, counsel had suggested that from an evidentiary perspective, there was not much of a difference between a probation officer reporting on one’s background and a lawyer, sharing his conversation with D.F. as an officer of the court. Insofar as D.F.’s anger and difficulties with women is concerned, counsel invited the court to take into account his ex-wife’s corroborative statement to the probation officer.
28As to the chronology related to this case, D.F. was arrested on the charges for which he was convicted on July 14, 2020. He was released on July 15, 2020, subject to conditions that he reside with a surety. Just over two years later, and while awaiting his trial, on August 13, 2022, D.F. was arrested and charged with sexual assault, criminal harassment and breach of release order in relation to his ex-wife, T.B.. Following 13 days in custody, he was released on strict house arrest conditions. He remained under those strict terms for 192 days.
29The trial for the charges before me was heard from November 28 to December 2, 2022. My decision was released on April 4, 2023. About a month prior to the release of my decision, on March 6, 2023, D.F. was arrested and held in custody for 23 days. This was because of a surety revocation. On March 29, 2023, D.F. secured a new surety, and he was released on house arrest and GPS monitoring. On November 19, 2023, he was arrested for one count of criminal harassment and one count of failing to comply with the release order. The charges were in relation to T.B..
30At no time following his conviction for the charges before me did the Crown bring a s.524 application to revoke D.F.’s bail conditions that were in effect as of March 29, 2023. Following his arrest on November 19, 2023, D.F. did not attempt to seek bail. His counsel explained that D.F. did not think he would be successful on such an application. D.F. has therefore been in custody on charges that are unrelated to his conviction since November 19, 2023.
POSITION OF THE PARTIES
31The Crown sought a custodial sentence of six to eight years, a s.161 DNA order, a s.109 weapons prohibition for five years, and a SOIRA for 20 years.
[32] Counsel identified the following aggravating factors: a. D.F. had sexual intercourse with a 14-year-old on two separate occasions. b. On the second occasion, when the complainant tried to get away, D.F. pulled her back, signifying some force. c. The complainant’s age was aggravating since as a fourteen-year-old, she was in her formative years, learning to make decisions about her body. D.F. interfered with the complainant’s ability to make such decisions. Relying on Friesen, counsel underscored the gravity of this particular aggravating factor. d. D.F. breached his probation order. e. D.F. has a lengthy criminal record with a wide range of convictions that include criminal harassment and domestic violence. f. D.F.’s difficulties in his relationships with women is highly aggravating as it is one of the threads to the sexual interference and sexual assault charges. g. D.F.’s repeated pattern of disregarding the law is highly aggravating. h. Although the relationship between D.F. and the complainant did not involve a trust relationship in the way that a parent, a step-parent, a teacher, or a tutor might be, it was also not a strict arms-length tenancy arrangement. D.F. would meet the complainant to smoke and through his conversations about her boyfriend, her age, the older kids with whom she hung out, and rebellious activities. This interaction was a form of grooming. D.F. worked on breaking down the barriers between him and the complainant so that eventually he could have sex with her, which he did. Especially considering the age difference between D.F. and the complainant and complainant’s troubled circumstances, D.F.’s interaction with her took on a trust-like, which D.F. then exploited. This behaviour should therefore be considered to be highly aggravating.
33On the mitigating factors, the Crown acknowledged D.F.’s acceptance of responsibility. However, counsel cautioned the court against placing too much weight on that as a mitigating factor because D.F. did not demonstrate any remorse or insight into the magnitude of his wrongful conduct. Counsel acknowledged that the absence of remorse could not amount to aggravating factor but effectively took issue with the degree to which D.F.’s expression of responsibility ought to be accepted as a mitigating factor.
34Counsel also disputed the degree to which the counselling that D.F. pursued and the certificate he produced in support of his sentencing submissions amounted to mitigation. Counsel argued that the counselling did not get to the root cause of the offences before the court. Nor did D.F. demonstrate any good behaviour to gain the benefit of such a mitigating factor. Counsel did not comment on the extent of any support from D.F.’s family or on the recommendations contained in the PSR.
35Counsel disputed the request for a Summers credit. She agreed that D.F. might be entitled to a credit of 14 days and that Downes and Duncan considerations could be treated as mitigating factors. However, after reviewing the reasons for which D.F. found himself in custody after November 19, 2023, counsel submitted that the time served since November 19, 2023 was not sufficiently connected to the charges and conviction before me to warrant any credit.
[36] In support of her submissions, counsel relied principally on Friesen. She also drew the court’s attention to the following cases:
- R. v. Barnett, 2017 ONCA 897 and R. v. Davis, 2020 ONCA 748: These cases were highlighted in relation to the treatment of D.F.’s pre-sentence detention, the existence of a link between that the offences at issue and his pre-sentence custody so as to justify a credit.
- R. v. M.M., 2022 ONCA 441: The complainant was 15 years of age, and the offender was 31. The existence of a trust relationship between the two individuals was a mixed question of fact and law. The imposition of a conditional sentence was an error of law. In accordance with Friesen, sentences for sexual offences against children must increase, without qualification. On the particular facts of the case, the offender had already served 12 months of his 15-month conditional sentence. The Court of Appeal for Ontario therefore concluded that it would not be in the interests of justice to substitute that sentence with a 15-month sentence of imprisonment.
- R. v. R.V., 2022 ONSC 2332: The complainant was 7 or 8 years old. She slept over at a friend’s place where the offender operated a landscaping and pool business. On three occasions, the offender woke her up during the night, brought her to the bathroom and sexually assaulted her. The offender had a significant but dated criminal record. The court received extensive evidence of the offender’s pedophiliac disorder. The psychiatrist who examined him concluded that the offender was at a relatively low risk of recidivism. His global intellectual functioning was in the extremely low range with his nonverbal reasoning skills being much better developed than his verbal reasoning abilities. In the circumstances of the case, there was an element of a breach of trust. The offender received a sentence of 8 years imprisonment in addition to corollary orders.
- R. v. Epp., 2021 ONSC 2901 and 2022 ONCA 613: The complainant was 16 years old. She attended the offender’s residence with her step-sister and her step-sister’s girlfriend and became grossly intoxicated and passed out on the couch. The offender had a criminal record. The trial judge sentenced the offender to seven years incarceration and made certain ancillary orders. The Court of Appeal for Ontario upheld the sentence.
- R. v. G.S., 2022 ONSC 120: The offences in this case were historical, said to have taken place between 1998 and 2001 when the complainant was between the ages of 13 and 16 years. The offender was tried on 5 charges. Three other counts were stayed. The complainant worked at a bakery. The offender, who was 24 years old, was the bakery owner’s son. He was tasked with the supervision of the complainant. He was found to have sexually assaulted the complainant on two separate occasions. The trial judge sentenced him to imprisonment of 5.5 years concurrently for two of the charges. The balance of the charges were conditionally stayed in accordance with Kienapple.
- R. v. G.R., 2020 ONSC 7411: The offender was found guilty of one count of sexual assault and one count of sexual interference. The complainant was 9 years old. The offender was 50 years old and was the complainant’s mother’s partner. The trial judge imposed a sentence of 5.5 years. He took into account the fact that the offender did not have a criminal record, that he was gainfully employed, and had reasonable prospects of rehabilitation.
- R. v. Audet, 2020 ONSC 5039: The offender was 26 years old. The complainant was 15 years old. He received a sentence of 48 months custody, less significant pre-sentencing custody on account of extended lockdowns at the Central East Correctional Centre.
37Defence counsel proposed a custodial term in the range of three to four years. Counsel argued that the Crown’s own cases did not support the range of six to eight years. He also disagreed with a number of the aggravating factors identified by the Crown. He argued that age, as an essential element of a s.151 offence, could not then be treated as an aggravating factor; the complainant’s age ought to be a neutral consideration because it is part of the offence.
38Apart from the issue of how to treat the fact of the complainant’s age, counsel noted that when looking at s.151 cases and sentencing, higher sentences were typically observed for younger victims. For victims in the 13-15 years of age, the sentencing range is in the three to five years. The six to eight year range was applied to younger victims.
39Counsel disagreed with the submission that there were any trust-like elements in the interaction between D.F. and the complainant; D.F. was merely a tenant. He was not tasked with caring for the complainant in any way and there was no trust relationship. He also challenged the idea of any long-term grooming underway by D.F. He said that D.F. did not engage in any long-time grooming, causing the complainant to believe that she was in love and consent to sexual relations because of the trust that developed. The complainant’s factual consent, at least for the first incident could only be treated as neutral. The complainant’s age would be aggravating if the factual matrix pointed to a grooming or predatory dynamic, something that in counsel’s view did not happen in this case.
40Turning to mitigating factors, counsel submitted that D.F.’s own background, especially in relation to his own situation as a young child, as disclosed to counsel only very recently was mitigating. Counsel explained that D.F. was reluctant to disclose his circumstances to a probation officer but urged this court to accept the reporting and pointed to T.B.’s input to the PSR as corroborative of D.F.’s difficulties with anger management and his relationship with women.
41Another mitigating factor was D.F.’s remorse. It was because of his remorse that he sought counselling. Counsel filed with the court a Certificate confirming the completion of 8 sessions of counselling. In light of such feelings, counsel suggested that D.F.’s situation was similar to the factual matrix in Audet.
42A third mitigating factor concerned his positive employment prospects.
43Counsel then asked the court to treat potential Downes and Duncan credits as mitigating factors, to reduce the sentence for D.F. by six to twelve months. For a Duncan credit, counsel recognized that there was no evidence before the court on the difficult circumstances at Maplehurst, especially in relation to COVID-19 lockdowns and the effects of staffing shortages but he suggested that these conditions were known and the court to take judicial notice to threat those conditions as a mitigating factor.
44On the issue of a Downes credit, counsel again clarified that he was not advancing a mathematical formula or analysis but wanted the court to take into account the stringent bail conditions that D.F. had to endure for an extended period of time. The restrictions imposed meant that D.F. had a hard time maintaining employment and a relationship with his ex-wife.
45Finally, counsel asked the court to consider applying a Summers credit on a 1.5 basis to the sentence given D.F.’s pre-sentencing custody since November 19, 2023. Counsel admitted that the incarceration related to charges that post-dated the charges before this court that had yet to be tried or resolved. He also agreed that the Crown did not bring an application to revoke D.F.’s bail post-conviction. However, counsel argued that on their own, the charges that post-dated D.F.’s conviction would not have resulted in incarceration; he would have obtained release conditions. But he did not proceed to seek out bail because he would have been weighed down by the conviction of April 2023. In that sense, the conviction from this case, meant that he would not have been released. For that reason it would be appropriate to obtain a credit at this point in time. Counsel added that if D.F. were to get the requested credits in the context of this sentencing, D.F. would not be claiming them again, were he to be convicted on the “new charges” and be sentenced.
[46] In support of his submissions, counsel sought to distinguish D.F’s facts from those in the cases raised by the Crown. He then asked the court to consider as reference points the following cases:
- R. v. Lemus, 2024 ONSC 46: The offender was 25 years old. He was found guilty of sexual interference and the making and distributing of child pornography. The complainant was 14 years old and had the offender’s baby. She and the offender engaged in sexual relations from February until May of 2015. On one occasion, the offender videotaped their sexual activities. The relationship stopped when the complainant discovered that she was pregnant. Although she wanted the relationship to continue, the offender ended it because he was upset over the pregnancy. The offender had several strong mitigating factors. The judge determined that an appropriate and fit sentence in the circumstances was a term of five years and six months. The sentence was then reduced by 18 months on account of a s.7 Charter breach.
- R. v. Riossi, 2023 ONSC 3812: The offender was a high school teacher who engaged in sexual activities with two of her students who were 15 and 16 years of age. The offences involved sending the students sexually explicit photographs between the offender and one of the complainants. The offender had no criminal record, had many letters of support, pled guilty, expressed remorse and had strong rehabilitative prospects. She received a global sentence of four years for sexual exploitation and sexual interference.
- R. v. J.R.G., 2020 ONSC 7074: The offender, who was 19 years old, pled guilty to sexual interference against the complainant, who was 14 years old. The court found the relationship between the two individuals to be trust-like. The judge found 46 months to be a fit and just sentence.
ANALYSIS
i. Governing Legal Principles
47Section 718 of the Criminal Code sets out the purpose and objectives of sentencing:
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following 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.
48In other words, the purposes of sentencing are to be accomplished through the imposition of a “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, the promotion of a sense of responsibility in offenders and the acknowledgment of the harm done to victims and the community.
ii. Sentencing post-Friesen
49Friesen is a significant case in the determination of a just and fit sentence for D.F. Although Friesen concerned an offender convicted of sexual interference and extortion, at para. 5 of the decision, the Court discussed how prevalent, serious and harmful sexual offences involving children are:
… we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
50The Court elaborated extensively on the far-reaching and profound harm that sexual offences have on children. At paragraph 56 the Court recalled the caution in R. v. McCraw, [1991] 3 S.C.R. 72, that sexual violence against children can cause serious emotional and psychological harm that “May often be more pervasive and permanent in its effect than any physical harm”. At paragraphs 57 and 58, the Court spoke of the “shame, embarrassment, unresolved anger, and a reduced ability to trust others” that children may suffer as a result of sexual violence.
51Relevant to D.F.’s background and reporting of his own abuse as an 8-year old is the Court’s recognition at para.64 that victims of sexual abuse might become abusers themselves:
In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood… Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community.
52At paragraph 110 of Friesen, the Court directed that:
Sentences should thus increase “as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims” (Scofield, at para. 62). Courts should accordingly be cautious about relying on precedents that may be “dated” and fail to reflect “society’s current awareness of the impact of sexual abuse on children”… Even more recent precedents may be treated with caution if they simply follow more date precedents that inadequately recognize the gravity of sexual violence against children… Court are justified in departing from precedents in imposing a fit sentence; such precedents should not be seen as imposing a cap on sentences.
53However, at para. 38, Friesen also recognized that:
Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case. Different methods may even be required to account properly for relevant systemic and background factors …. Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range.
54At paras. 121-154 of Friesen, the Court identified significant factors to determine a fit sentence, although it was clear that these factors were not meant to be an exhaustive checklist: a) likelihood to reoffend; b) abuse of a position of trust of authority; c) duration and frequency; d) age of the Victim; e) degree of physical interference; and f) victim participation.
55Of particular relevance to this case are paragraphs 125-130 that discuss the issue of trust, the existence of a trust relationship, emotional manipulation, and the possible role of grooming. In these paragraphs, the SCC talks about a “spectrum” of positions of trust. “An offender may simultaneously occupy multiple positions on the spectrum and a trust relationship can progress along the spectrum over time, Friesen at para. 125. “Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence.”, Friesen at para. 126. “Threats or emotional manipulation may have a greater inhibiting impact because the victim trusts the offender.”, Friesen at para.127. Ultimately, “an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child”, Friesen, at para. 130.
56In light of the extensive discussion in my Reasons for Judgment of the complainant’s age, her own evidence about possibly consenting to the first encounter, and her misrepresentation of her age, it is important to remember that a complainant’s participation is not a mitigating factor and is legally irrelevant at sentencing. Given the seriousness of the violation of a child’s sexual integrity, human dignity and privacy, it would be wrong for the court to be distracted even in situations of ostensible consent by the child complainant.
57Finally, in the context of this case, paragraph 153 of Friesen is especially apt: “Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality. As Feldman J.A. wrote in M.(P.), to exploit young teenagers during this period by leading them to believe that they are in a love relationship with an adult “reveals a level of amorality that is of great concern” (para.19).
iii. Proportionality in Sentencing
58Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility and moral blameworthiness of the offender: R. v. Proulx, 2000 SCC 5, at para. 83. The more serious the crime and its consequences, the greater the offender’s degree of responsibility, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64, at para. 12. Section 718.2 (a) directs that a sentence should be increased or reduced to account for the relevant aggravating and mitigation factors.
59In short, as the Ontario Court of Appeal recently stated in R. v. Morris, 2021 ONCA 680, at para. 58, “[t]he individualization of the sentencing process requires sentencing judges to prioritize and blend different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.” The imposition of a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 40. While there will rarely be only one possible fit sentence, s.718.1 of the Criminal Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, at para. 37; Friesen, at para. 30; R. v. Parranto, 2021 SCC 46, at para. 10.
60More recently, in R. v. T.K.N. 2023 ONCA 19, at para. 19, relying on para.114 in Friesen, the Ontario Court of Appeal recognized that mid-single penitentiary terms for sexual offences against children are normal and substantial sentences can be imposed. In paragraph 114 of Friesen, the Court actually went further and said that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.
61On parity and proportionality, in R v. A.J.K., 2022 ONCA 487, at paras. 80 and 81, the Court of Appeal noted:
[80] When imposing a sentence, the goal is always to impose a fair, fit, and principled sanction: Parranto, at para. 10. Proportionality is key to this determination, focussing as it does on the gravity of the offence and the degree of responsibility of the offender: Friesen, at para. 30; Parranto, at para. 10. Indeed, proportionality is described in the heading above s. 718.1 of the Criminal Code as being the “[f]undamental principle” of sentencing.
[81] The principle of parity is a tool that helps calibrate proportionate sentences because, at its core, parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way: Friesen, at para. 31; Parranto, at paras. 10-11. Therefore, parity exists as an expression of proportionality, providing the court with a means by which to fix proportionate sentences by reference to sentences that have been imposed in other cases: Friesen, at para. 33; Parranto, at para. 10.
62A helpful way of summing up the task at hand is captured by Durno J. in R. v. Singh, 2023 ONSC 4949, at paras. 47-48, where he explained that there is no mathematical formula to the determination of a just and appropriate sentence:
[47] […] Sentencing is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community: R v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 91.
[48] The fundamental and cardinal principle of sentencing is proportionality: s. 718.1 of the Criminal Code. The sentence must be severe enough to denounce the offence but must “not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence”: R. v. Nasogaluak, 2010 SCC 6, at para. 42. See also: Ipeelee, at para. 37 and R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 50.
iv. Downes, Duncan and Summers’ Credits
63Having heard the submissions on the various credits, it is essential that I review and apply the governing principles. The legal principals relating to Summers and Downes credits are usefully reviewed in R. v. Spies, 2024 ONSC 1074 at paras. 41-45. A Summers’ credit is discussed in R. v. Summers, 2014 SCC 26. When determining a just and fit sentence, judges may credit at most 1.5 days for every day served where circumstances warrant. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, see Summers, at para.70.
64The law regarding Downes credits was summarized in Court of Appeal in R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145 where the Court set out a number of principles to be considered when a Downes credit is sought, at paras. 107-108 including:
the focus of the Downes credit inquiry is to be based on how punitive the bail conditions were, not how necessary they were,
although it is not uncommon to speak of providing "credit" for stringent bail conditions, pre-trial bail is conceptually a mitigating factor in assessing a fit sentence, and,
the criteria to be considered in assessing the weight of the mitigation to be given therefore include the amount of time spent on bail conditions; the stringency of those conditions; their impact on the offender's liberty; and the ability of the offender to carry on normal relationships, employment and activity.
65At para. 114, the Court in Joseph stated: “The relevant inquiry is whether bail conditions were punitive enough to be akin to punishment, thereby warranting mitigation. Focus should therefore be on the effect of the conditions.” [Emphasis added].
66What is referred to as a “Duncan Credit” is based on R. v. Duncan, 2016 ONCA 754, which was overhauled in the decision from the Court of Appeal in R. v. Marshall, 2021 ONCA 344. In Marshall, Doherty J.A. pointed out, at para. 50, that the Summers credit “already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody” and that the purpose of the Duncan credit is to address “exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody,” [Emphasis added]. In that paragraph, Doherty J.A. noted that “[t]he very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a ‘Duncan’ credit”.
67However, contrary to the past practice on sentencing that had developed to this point with respect to the Duncan credit, Justice Doherty, at paras. 52-53, made it clear that a Duncan credit is not a deduction from an otherwise appropriate sentence. Rather, it is one of the factors to be taken into account when determining an appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors to at an appropriate sentence. As a mitigating factor, a Duncan credit cannot justify the imposition of a sentence which is inappropriate, having regard for all of the relevant mitigating and aggravating factors.
v. Application of the foregoing principles to D.F.’s circumstances.
[68] Having regard for the foregoing applicable principles, the nature of the offence, and circumstances of the offender, I find the following aggravating factors for D.F.: a. D.F. was 36 years old when he had sexual intercourse with a vulnerable 14-year-old teenager. He took advantage of her vulnerability. b. D.F. knew that the complainant was a troubled 14-year-old. He observed her difficulties with her boyfriend, with alcohol and with drugs. He spoke of these problems in disapproving ways, comparing the complainant to his own kids, who were well-behaved and did not act like the complainant. In cross-examination he said repeatedly that he did not care about the complainant’s situation. He just wanted to have sex with her, even if she was almost the same age as one his own children. D.F.’s blatant disregard for this troubled 14-year-old is highly aggravating. c. On the second sexual incident, the complainant tried to get away from D.F. but he pulled her back, signifying some force on the complainant. That behaviour was consistent with his disregard for the 14-year-old’s disposition. d. Separate and apart from D.F.’s attitude towards the complainant, the complainant’s circumstances as a troubled 14-year-old age is aggravating. D.F. interfered with the complainant’s formative years and her ability to make decisions about her body. In accordance with Friesen, at para. 153, the complainant’s circumstances make D.F.’s behaviour particularly aggravating. e. D.F. breached his probation order. His disregard for court orders is aggravating. f. D.F. is not a first-time offender. He has a lengthy criminal record with a wide range of convictions that include criminal harassment and domestic violence. Although the sexual convictions in this instance were the first on his record, his repeated pattern of disregarding the law is highly aggravating. To be clear, D.F’s current outstanding charges that were laid subsequent to this trial and the convictions play no part in this analysis because they have yet to be proven. g. D.F.’s difficulties in his relationships with women is aggravating in the context of the convictions in this case. h. Although I hesitate to describe the relationship between D.F. and the complaint as trust-like, or that D.F. engaged in grooming in the conventional sense of that term, he was also not an arms-length tenant minding his own business. There is no doubt that D.F. cultivated and promoted a friendly relationship with the complainant and her family. He worked on breaking down the barriers between him and the 14-year-old complainant by demonstrating concern for the complainant’s injured foot, questioning her about wanting to smoke a cigarette, and then becoming her smoking buddy. D.F. shared food with the family, and he interacted with the complainant and her brothers from time to time. Through his actions, D.F. encouraged the complainant and her mother to trust him. In a very short period of time, D.F. went from a casual conversation about the complainant’s foot when she was sitting on the porch, to inviting the complainant to watch a movie together while smoking, and then having sexual intercourse. D.F. took advantage of the friendly and neighbourly disposition by both the complainant and her mother.
[69] D.F. presents with some mitigating factors: a. Even though D.F. revealed his own personal circumstances very late in the day, as far as these court submissions are concerned, his late revelations to his counsel are consistent with and explain the reasons for D.F.’s behaviour, his anger management difficulties, and his difficulties with women. It offers some context for why his ex-wife would describe him as both “sweet, kind and generous” and on the other hand a “nightmare and scary”. In many respects, he presented in the same way to the complainant. I believed him when he said he took interest in the complainant’s injured foot and expressed concern that she would be smoking at 14. That, along with his interaction with the complainant’s brothers and the sharing of barbeque is consistent with the characterization “sweet, kind and generous”. But his sexual interactions with the complainant, especially in the second incident when the complainant tried to get away is consistent with the characterization of ‘nightmare and scary’. I have little difficulty admitting this information and taking into consideration as a significant mitigating factor for two reasons. First, I cannot ignore the court’s inability to receive a timely Morris Report and the decision to accept a PSR in lieu of something more substantial. I suspect that D.F. may have been more revealing about his past were a Morris Report to be prepared. I therefore accept his counsel’s submissions in lieu of a Morris Report and in addition to the PSR. More to the point, D.F.’s reported circumstances offer a significant mitigating factor in that they validate the concerns raised in Friesen about the effects of sexual abuse on a child. b. Separate and apart from D.F.’s personal traumatic circumstances, the inability to obtain an enhanced PSR (Morris Report) and delays with the delivery of the PSR are mitigating. D.F. should not have had to wait as long as he did for his sentencing hearing. c. I accept that D.F.’s extended bail conditions involving both house arrest and GPS monitoring for extended periods of time were very difficult on D.F. and impacted both his employment and his personal relationships. These circumstances qualify for a Downes mitigation as submitted by the Defence and as accepted by the Crown. d. D.F. spent a total of 37 days in custody at Maplehurst while he obtained or varied his bail conditions. At least in part, these detentions were related to the charges for which he was convicted in this case. He has also been at Maplehurst since November 19, 2023, on charges not related to the conviction before me. It is no secret that the conditions at Maplehurst are very difficult. Counsel did not produce for the court any specific records to be able to evaluate and consider any specific effects of lockdowns or other punitive circumstances with which D.F. was confronted. However, in accordance with the Defence’s submissions, I am prepared to treat the circumstances at Maplehurst in Duncan terms and treat them as a mitigating factor. e. I accept D.F.’s remorse as real. I also recognize his willingness to receive counselling for his difficulties, though he will have to be more forthcoming about his personal circumstances to ensure that he receives the appropriate supports. These two factors are mitigating. f. D.F. has demonstrated an ability to hold employment and he presented as somebody who would work hard. This is promising for his longer-term rehabilitation and is therefore a mitigating factor. g. D.F.’s PSR has a number of positive elements and hold some promise for rehabilitation.
A JUST AND FIT SENTENCE
[70] Against the foregoing findings, I turn to the determination of a just and fit sentence for D.F.. Having reviewed the applicable law in the preceding paragraphs at some length, for ease of reference, I highlight the essential guiding principles: i. Denunciation and deterrence are of primary importance in the termination of a just and fit sentence, leaving the court with few options other than imprisonment, Inksetter, at para. 17, John, at para. 41, and R. v. McCaw, 2023 ONCA 8, at para. 29; ii. The sexual abuse and exploitation of children causes profound, devastating, and life-altering harm to the victims, their families, and the community, Friesen, at para. 5. Mid-single penitentiary terms for sexual offences against children is normal, T.K.N., at para.19. iii. Sentences for sexual offences against children must increase, see Friesen at para. 110. Courts are justified in departing from precedents in imposing a fit sentence. Precedents should not be seen as imposing a cap on sentences. iv. Sentencing judges have considerable scope to apply the principles of sentencing in a manner that suits the features of a particular case, that responds to the particular combination of aggravating and mitigating factors, and that ultimately may lie far from any starting point or range, Friesen at para. 38. v. The enormity of the harms that a former child victim of sexual assault has suffered must be considered when that person is being sentenced for sexual offences against children, see R v. Jongsma, 2021 ONSC 796, at para. 69.
71D.F. exploited a troubled 14-year old. He admitted that he did not care about the complainant’s troubled circumstances. Denunciation and deterrence must be the primary consideration. I accept the Defence’s argument that age, in and of itself cannot be an aggravating factor because it is an element of the s.151 offence. However, I disagree with the suggestion that sexual interference on a younger child is more severe than it is on a teenager. That submission disregards the caution in Friesen about the effect that sexual interference has on a teenager’s developing body and her ability to make decisions about her body.
72That submission also minimizes the complainant’s troubled youth and specific vulnerabilities. It was especially troubling to hear D.F. describe the extent to which he did not care about the complainant’s situation, going as far as to contrast her difficulties with his own children, and then almost blaming the complainant for what D.F. did to her. D.F’s overall attitude towards the complainant was highly problematic and troublesome, making deterrence an especially important goal. It also demonstrated a complete disregard for the extensive harms of sexual violence on children’s and teenagers’ self-fulfilment and their autonomous development to adulthood. D.F. violated the complainant’s integrity and self-worth.
73At the same time, D.F.’s own troubled history must be taken into account. In his behaviour towards the complainant but also in the way he testified, D.F. exhibited many of the concerns and warnings raised in Friesen about the effects of childhood sexual exploitation, including unresolved anger, embarrassment, a lacking self-worth, and engaging in sexual violence against a teenager. Although the court did not have the benefit of any substantial evidence about D.F.’s own troubles as an 8-year-old, the overview provided by his counsel, combined with the observations reported by D.F.’s ex-wife, validated many of the concerns discussed in Friesen.
74I heard the Crown’s caution about the limited evidence before the court concerning D.F.’s traumatic background. The court might have had far better evidence had been able to receive an enhanced PSR (Morris Report) in a timely manner. The inability by the court system to deliver such a report ought not to be visited on D.F.
75Insofar as parity considerations are concerned, the cases produced by the Crown and Defence were marginally helpful. Most were distinguishable. The cases identified by the Defence involved first-time offenders and / or guilty pleas. The cases provided by the Crown, involve complainants who were sexually assault by individuals in classic trust relationships – a mother’s partner in G.R., and an employer’s son who was in a supervisory role in G.S. Or, they involved multiple incidents of sexual violence.
76The Defence suggested that Audet was closest to the facts of this case and that accordingly, the four-year sentence could be used as a precedent for this case. However, on a closer read of that case, there are distinguishing features, the most important one being that the case involved one spontaneous incident of sexual interference. It was not a situation where the offender gradually chipped away at barriers to ingratiate himself with the complainant.
77Against these considerations, absent D.F.’s mitigating circumstances, a sentence in the range of 7 to 8 years would have been appropriate. But having regard for D.F.’s mitigating factors, a fit and just sentence is 5 years and 8 months for the s.151 offence. The s.271 offence is stayed, pursuant to Kienapple principles, see R v. Kienapple, (1974), 15 C.C.C. (2d) 524, at p.540. D.F.’s behaviour resulted in two sexual assault incidents. He was found guilty of both those incidents. The Crown did not dispute the Defence’s request that the s.271 offence should be stayed.
78D.F. was also convicted of a breach of probation. A just and fit sentence for that is 30 days custody, concurrent with the sentence for the s.151 conviction.
79With these findings, I turn to the Defence’s request for a Summers credit. I accept that prior to D.F.’s conviction, he spent 37 days in custody, as he awaited the arrangement of bail conditions. For that I agree to credit D.F. at 1.5 for a total of 55 days, to be deducted from the 5 years and 8 months, reducing the term to 5 years, 6 months, and five days.
80I disagree with the further request that D.F. be credited for his pre-sentence custody since November 19, 2023. The Crown did not bring a s.524 application to revoke D.F.’s bail conditions following his conviction for the offences before me. He remained out on bail, even with certain charges that were laid between the conclusion of the trial and my decision, on March 6, 2023. It was not until November 19, 2023, when additional charges were laid for criminal harassment that D.F.’s bail was revoked. Although D.F.’s conviction on the offences related to this sentencing, would have impacted his ability to be released on bail, his incarceration has nothing to do with the offences for which he was convicted. I therefore decline to extend any credit for D.F.’s time in custody since November 19, 2023. Depending on what happens to the charges that are pending, he may be eligible for a future Summers credit.
ANCILLARY ORDERS
81Ancillary orders, as requested by the Crown and unopposed by the Defence are also to issue. Specifically, a SOIRA is to issue today and will continue in force for 20 years. A DNA order is also to issue. Finally, a weapons prohibition is issue for a period of 10 years. A s. 161 order is also to issue in accordance with the terms set out in paragraph 6 of this decision.
CONCLUSION
82In light of the foregoing considerations, net of the Summers credit, D.F. is sentenced to 5 years, 6 months and 5 days for the s. 151 offence and 30 days concurrent for his probation breach, in addition to the noted ancillary orders. The s. 271 offence is stayed. Finally, D.F. is to be assessed and supported with counselling designed to help him address his anger management, his difficulties with relationships, and his childhood trauma.
Tzimas RSJ.
Released: August 20, 2024
