COURT FILE NO.: CR 22-125 DATE: 2024/09/05

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – COREY FULFORD

COUNSEL: Meiszko Wlodarczyk, for the Crown Dan Baker, for the Offender

HEARD: February 13-14 and August 8, 2024

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, no information that could identify the person described in this judgment as the complainant may be published, broadcast, or transmitted in any manner. These reasons have been anonymized to permit their publication.

Ellies J.

REASONS FOR DECISION ON SENTENCE

OVERVIEW

[1] For reasons released on March 19, 2024, I found the offender, Cory Fulford, guilty of one count of sexually assaulting the victim, who was 10 years old at the time: R. v. Fulford, 2024 ONSC 1631.

[2] The offender is before me now for sentencing. The Crown and the defence agree that a term of imprisonment is required. The central issue is whether it can be served in the community or must be served in a custodial facility.

[3] To resolve that issue, I must consider the circumstances surrounding the offence; those of the offender and the victim; and the relevant principles of sentencing, especially that of proportionality.

THE OFFENCE

[4] The offence occurred in August 2016. The offender was approximately 22 years old at the time.

[5] The offender and the victim lived near one another. The offender was an acquaintance of the victim's father, with whom the victim and her sister lived on a week-about basis due to the separation of their parents.

[6] On the day of the offence, the offender and the victim spent some time together outdoors before going to the offender's bedroom to play a computer video game. The game involved the use of a steering wheel and pedals. The victim was too small to operate them all at the same time, and so she sat on the offender’s lap and operated the steering wheel, while he operated the pedals.

[7] While she was playing the game, the victim could feel that the offender had an erection. She left his lap and eventually made her way to the bed. Although she testified that the offender tried to kiss her several times and to put his hands down her pants while she was on the bed, I found, instead, that the offender kissed her once on the cheek after a failed attempt to kiss her on the mouth and that he then cuddled her from behind for about 15 minutes afterward, while he was still sexually aroused.

[8] On this basis, I found the offender guilty of sexual assault.

THE OFFENDER

[9] The offender is now 30 years old. He has no criminal record other than the one resulting from this offence. According to the police, he has had little involvement with them.

[10] The offender is developmentally delayed. According to the Pre-sentence Report (“PSR”), his challenges were apparent from the moment he was born, when he exhibited an abnormal AGPAR score. He failed to meet normal milestones as he aged and spoke his own language until he received speech therapy. He continues to function at a lower-than-chronological age. As I wrote in my reasons for conviction, his challenges were obvious to me at trial.

[11] The offender had a difficult childhood. According to Children's Aid Society (“CAS”) records reviewed by the author of the PSR, the offender's parents, especially his mother, were unable to nurture him and the CAS was involved throughout his childhood and into adulthood. He was placed into foster care and, according to the CAS records, bounced back and forth between his biological and foster parents when he was young.

[12] Although he grew up without a nurturing, stable family, the CAS records reveal that the offender was nonetheless an affectionate child, who would sit on the laps of his foster parents and exchange hugs and kisses with his care providers. This behaviour seems consistent with the facts as I found them at trial and the information provided by the victim to the author of the PSR that the offender would ask her for kisses when she was young.

[13] Because of his developmental difficulties, the offender receives financial assistance from the Ontario Disability Support Program and receives other government-funded support. Notwithstanding his developmental difficulties, he engages in various activities, including playing on a hockey team for people with disabilities, which he enjoys and would like to continue.

[14] Both during the preparation of the PSR and during the sentencing hearing, the offender expressed remorse at his actions, even though, as he put it, we disagree about what exactly they were.

[15] Finally, it is worth noting that the offender has been on bail under the supervision of the Elizabeth Fry Society since his arrest in June 2021, without incident.

THE POSITIONS OF THE PARTIES

[16] The Crown seeks a carceral sentence of 12 months, to be followed by a 24-month period of probation. It submits that the need for denunciation and deterrence of sexual offences against children and the moral blameworthiness of such offences requires that the offender be incarcerated, even in the circumstances of this case.

[17] The offender submits that a highly restrictive conditional sentence of three to six months is sufficient in the circumstances of this case to recognize the moral blameworthiness of the offender and to accomplish the goals of denunciation and deterrence, while at the same time respecting the fundamental principle of proportionality in sentencing.

THE RELEVANT LEGAL PRINCIPLES

[18] Before I address these submissions, I will briefly discuss the law of sentencing.

Fundamental Purpose of Sentencing

[19] The fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society: Criminal Code, R.S.C. 1985, c. C-46, (the "Code"), s. 718.1.

[20] Section 718 of the Code sets out a number of objectives to be achieved in fulfilling the fundamental purpose of sentencing. They include denunciation of the unlawful conduct and the harm caused by it, deterrence of the particular offender and others, and the rehabilitation of offenders.

[21] In the case of offences such as this one that involve the abuse of a child under the age of eighteen years, s. 718.01 of the Code requires the court to give primary consideration to the objectives of denunciation and deterrence of such conduct.

Fundamental Principle of Sentencing

[22] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Code, s. 718.1.

[23] In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court of Canada explained in detail the gravity of sexual offences committed against children. As the court explained, violence is always inherent in the act of applying force of a sexual nature to a child: Friesen, at para. 77, citing R. c. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 26. The wrongfulness of sexual violence against a child derives from the interference with the child's security of the person and the bodily integrity which “lies at the core of human dignity and autonomy”: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 28. As the court also explained in Friesen, the harmfulness can take many forms, including low self-esteem, inability to form emotional attachments, and self-destructive behaviour: Friesen, at para. 80, citing R. v. D. (D.) (2002), 58 O.R. (3d) 788 (Ont. C.A.), at para. 10.

[24] Offences of sexual violence against children involve a high degree of moral blameworthiness on the part of the offender because children are so vulnerable and because the offender is or ought to be aware that such action can profoundly harm the child: Friesen, at paras. 88 and 90. However, as I will explain shortly, the degree of moral blameworthiness inherent in child sexual abuse is not uniform.

Aggravating and Mitigating Factors

[25] Section 718.2 of the Code requires that a sentence be increased or reduced to account for any aggravating or mitigating circumstances relating to the offence or the offender. The section lists a number of circumstances that are presumptively aggravating. Two of those listed circumstances are relevant in this case: (1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, and (2) evidence that the offence had a significant impact on the victim, considering her age and other personal characteristics: Code, s. 718.2(a)(ii.1) and (iii.1).

[26] Section 718.2(a)(iii) also makes evidence that the offender abused a position of trust or authority an aggravating circumstance. However, the Crown does not contend that the offender in this case was in such a position: see R. v. Aird, 2013 ONCA 447, at para. 28. I agree with the position taken by the Crown in light of my finding at trial that the offender's relationship with the victim's family was not such as to allow me to accept his evidence about his intent in cuddling with the victim: Fulford, at paras. 63-64.

[27] Under the Code, the burden of proving the existence of an aggravating circumstance falls upon the Crown, who must prove the existence of such a circumstance beyond a reasonable doubt: Code, s. 724(3)(e).

[28] Before I get to the aggravating and mitigating circumstances of this case, I believe it would be appropriate to address one more area of the law, namely, the availability of conditional sentences for sexual offences committed against children.

Sentencing Ranges or Starting Points

[29] In Friesen, the Supreme Court held that while the appropriate length of sentences for sexual offences committed against children and the setting of sentencing ranges or starting points is a matter best left to provincial appellate courts, mid-single digit penitentiary terms for sexual offences are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances: Friesen, at paras. 106 and 114.

[30] Since the decision of the Ontario Court of Appeal in R. v. Basso, 2024 ONCA 168, conditional sentences have been available for sexual offences committed against children. Nonetheless, the Court of Appeal has stated on more than one occasion that such sentences will only rarely be appropriate, and only in exceptional circumstances: see R. v. M.M., 2022 ONCA 441, at para. 16; R. v. B.M., 2023 ONCA 224, at para. 2.

[31] The issue before me is whether such circumstances are present in this case. I believe they are.

THE PRINCIPLES APPLIED

[32] I will begin by examining the aggravating factors in this case and will then examine those that mitigate the sentence.

Aggravating Factors

[33] As I mentioned earlier, there are two aggravating factors present in this case that are mentioned in s. 718.2 of the Code.

[34] The first is the age of the victim at the time of the offence. She was only 10 years old. The offender was more than twice her chronological age.

[35] The second is the effect of the offence on the victim. In her Victim Impact Statement, which she struggled to read in court, the victim poignantly articulated the profound effect this offence has had on her. She has suffered much of the harm that the Supreme Court in Friesen recognized as possible in the case of sexual offences perpetrated against children.

[36] However, I do not accept that all of the mental health issues with which the victim struggles were caused by this assault, as she seems to suggest in the Victim Impact Statement. During her testimony on an application by the Crown to have her evidence given remotely (which was ultimately not granted), the victim outlined a constellation of mental health issues with which she has been struggling since childhood. Even if one were to accept her version of the events of August 2016, one in which the accused attempted unsuccessfully to put his hands down her pants, it would be hard to accept, without more evidence, that such an attempt caused such severe consequences.

[37] While it is not difficult to accept that, because of the effect of the violation of the security of their person and of their bodily integrity, victims of childhood sexual assault suffer far beyond the extent of the physical contact, the alleged effect of what happened to the victim at the hands of the offender in this case requires some additional evidence to understand.

[38] As I mentioned earlier, the Crown has the onus of proving the existence of aggravating circumstances. To the extent that the victim in this case asserts that all of her mental health issues are related to the assault, the Crown has failed to meet that onus.

Mitigating Factors

[39] There are a number of mitigating factors in this case, many of which I have also already mentioned.

[40] The offender is relatively young. He has no criminal record. He has little history with the police.

[41] He has been the subject of a bail order since his arrest on this offence in 2021 and there have been no issues surrounding his compliance with the terms of that order.

[42] The offender is remorseful of his conduct, even on his own version of events.

[43] In addition, the physical nature of the offence, as the court found it to have occurred, was at the lower end of the range of conduct contemplated by the charge.

[44] More importantly, the offender is developmentally delayed. While the chronological difference in the ages of the victim and the accused in this case was large, the difference in their cognitive age was much smaller.

[45] In these circumstances, I cannot accept that the moral blameworthiness of this offender is on the same level as that of the typical offender referred to in Friesen. As the Supreme Court in Friesen wrote, at para. 91:

These comments [about moral blameworthiness] should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle requires that the punishment imposed be “just and appropriate ..., and nothing more”. [Citations omitted.] First, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability (R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379 (B.C. C.A.), at para. 64; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269 (N.S. C.A.), at para. 180).

[46] These words are particularly germane to this case.

APPROPRIATE SENTENCE

[47] In my view, given the circumstances to which I have referred, this is one of those rare cases in which a conditional sentence is appropriate. This is a very different case than either M.M. or B.M., in which the Court of Appeal overturned conditional sentences.

[48] M.M. involved an accused, who was in a position of trust, who had groomed a young female into sending him pornographic photos and videos of herself and had arranged for her to have sex with him. There is no evidence in this case that the offender groomed the victim or even that he planned to be with her on the afternoon in question. In B.M., the accused engaged in repeated acts of anal and vaginal sex with two children of a friend of his over a period of 43 months, among other things. There is no comparison between B.M. and this case, for obvious reasons.

[49] It must not be forgotten that a conditional sentence still serves the sentencing goals of denunciation and deterrence, where it is appropriately restrictive: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. At the same time, a conditional sentence in this case will satisfy the fundamental principle of proportionality in a way that I do not believe a carceral sentence will do.

[50] In Proulx, the Supreme Court of Canada held that a judge may impose a longer conditional sentence than he might if he imposed a custodial sentence: Proulx, at para. 104. In this case, I believe that the purposes of denunciation and deterrence require that a conditional sentence be longer than the three-to-six months suggested by the defence.

[51] Instead, I conclude that a conditional sentence of 18 months, to be followed by a period of probation of 18 months, is a just and appropriate sentence, considering the circumstances of the offence, those of the offender, and the relevant principles of sentencing, especially that of proportionality.

[52] I will discuss the terms of that sentence with counsel shortly. They will include an exemption for the purpose of playing hockey with the team of which the offender is currently a member.

ANCILLARY ORDERS

[53] Because the conditional sentence is longer than 12 months, I believe that registration under the Sex Offender Information Registration Act is mandatory under s. 490.12 of the Code. However, even if it is not, I agree with both the Crown and the defence that the offender should be ordered to comply with that Act.

[54] I also agree that ancillary orders should be made under s. 109 of the Code, prohibiting the offender from possessing any firearm, ammunition, or other thing mentioned in that section for a period of 10 years, and that an order should be made under s. 161(1)(a), (b), and (c) of the Code, prohibiting the offender from attending certain places or having certain contact with persons under the age of 16 years, for a period of five years.

M.G. Ellies J.

Released: September 5, 2024