COURT FILE NO.: 17-SA5024B, 17-RA19514-B DATE: 2024/01/24
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – W.S.
Counsel: François Dulude for the Crown Celine Dostaler for W.S.
SENTENCING HEARING ON: December 5 and 17, 2023 and January 24, 2024
further to S. 486.4 OF THE CRIMINAL CODE, it is prohibited to publish or broadcast THE IDENTITY OF the COMPLAINANTS in this case OR ANY INFORMATION THAT COULD DISCLOSE THEIR IDENTITIES.
Reasons for Sentence
S. GOMERY J.
[1] On June 22, 2023, I found W.S. guilty of sexually assaulting two teenage girls contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The time has now come to sentence him.
Purposes and Principles of Sentencing
[2] As stated in s. 718 of the Criminal Code, the fundamental purpose of sentencing is “to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”. A just sanction serves various purposes. It publicly condemns criminal conduct and the harm it causes to victims and to the community. It prevents or discourages the offender from committing further crimes. This is known as specific deterrence. A sentence may also deter others from committing similar offences. This is known as general deterrence. A just sanction is also intended to foster the offender’s rehabilitation and promote a sense of responsibility for an offender and acknowledgement of the harm that they have done.
[3] Special rules apply when a child— that is, anyone under the age of 18 — is sexually assaulted. In such a case, the sentencing judge shall give primary consideration to the objectives of denunciation and deterrence (s. 718.01 of the Criminal Code).
[4] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 of the Criminal Code). A sentence should account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. Sexual abuse is more blameworthy where the victim is under the age of 18; where the offender is a family member or has abused a position of trust; and where the victim has been significantly impacted (s. 718.2 of the Criminal Code).
[5] In R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at paras. 5 and 95, the Supreme Court of Canada held that sanctions for sexual offences against minors must increase to recognize that these are inherently violent crimes that profoundly harm their victims. All forms of sexual abuse against children violate their bodily integrity, even if they suffer no obvious physical injury; Friesen, at paras. 75-76. Sentences for childhood sexual offences must recognize both the actual harm and the reasonably foreseeable potential harm that they cause. Childhood sexual abuse may make it difficult for a victim to form loving, caring relationships, put them at a higher risk of substance abuse, mental illness and mental health problems, and shatter their self-esteem: Friesen, at paras. 79-84, 147.
[6] Sexual abuse of children is particularly wrongful because children are uniquely vulnerable: Friesen, at paras. 89-90. An offender is or ought to be aware that their actions can profoundly harm a child. Courts should give proper weight in sentencing to the offender’s underlying attitudes, in particular their sexual objectification of their victims, because such attitudes are relevant to assessing the offender’s moral blameworthiness and the goal of denunciation: Friesen, at paras. 87-89.
[7] The Court in Friesen commented on significant factors used to determine a fit sentence for sexual offences against children. I have carefully considered these factors in making my decision.
The Nature of the Offences
[8] W.S. sexually assaulted two teenage girls. To protect their identities, I will refer to them and other young women involved in this case using pseudonyms.
[9] Growing up, “Sarah” was a good friend of W.S.’s youngest daughter “Anna” as well as some of W.S.’s nieces. Sarah described W.S. as “kinda like family”. She spent significant time at his farm, including overnight visits. On April 1st, 2015, when Sarah was fifteen years old, W.S. drove her home from the farm, as he often did. While they were in his truck together, he grabbed and squeezed Sarah’s breast, described her breasts in detailed and derogatory terms, and repeatedly pressed her to give him a blow job. The evidence included photos of W.S.’s hand on Sarah’s breast and voice recordings that Sarah made with her phone, all taken while W.S. was sexually assaulting her. On the recording, Sarah said “no” more than ten times. W.S. admitted at trial that the male voice on the recordings was his and that he had touched Sarah’s breasts, but attempted to justify his actions by saying he was drunk.
[10] “Colleen” is W.S.’s niece. He was effectively a second father to her, since her own father, W.S.’s brother, had financial and personal problems. W.S. sexually assaulted Colleen when she was 17 years old. While she was driving him home after a meal out, W.S. began rubbing the inside of Colleen’s leg between her knee and vaginal area. When she stopped to let him out at his farm, W.S. put his hand down her shirt, under her bra, and touched her breast.
[11] The evidence established that W.S. groomed Sarah and Colleen and took advantage of their youth, vulnerability, and dependence on him. They both described how W.S. frequently touched them inappropriately and made sexual innuendo or propositioned them when they were teenagers. I found them credible witnesses.
[12] Sarah testified that W.S. often made comments about her body and the body of “Saskia”, Colleen’s younger sister. He would give them alcohol to drink and touch Sarah’s leg when she sat beside him in his truck. Sarah had her phone ready to record W.S.’s words and actions on April 1st, 2015 because of things he had said and done on previous occasions. I accepted her testimony on this point because, on the recordings, W.S. admonished Sarah for being “shy” in showing him her breasts “that night” and made detailed comments about her body, which indicated that he had seen it before. All of this shows that W.S.’s sexual comments and actions towards Sarah were a pattern of behaviour as opposed to a one-time event. At trial, in addition to admitting that the voice heard on the April 1st, 2015 recording was his, W.S. admitted that he had unclasped Sarah’s bra on two separate occasions and sometimes put his hand on her knee when he drove. He denied he did any of this for a sexual purpose. His attempts to justify his conduct were not credible.
[13] Colleen likewise said that, when she and her sister rode with W.S. in his truck, he would put his hand on the knee of whichever of them was sitting in the middle seat. He often suggested that she and her sister should go on overnight trips with him, saying they would stay together in a hotel and get in a hot tub together. W.S. also insisted that Colleen accompany him on errands, phoned her frequently and sometimes just showed up at her home or workplace. Colleen was increasingly uncomfortable with W.S. but felt unable to refuse to speak to or spend time with him because he would complain to her father if she did. She also felt awkward saying no to W.S. because he had helped her family by buying clothes for her and her siblings, gave them all cellphones, and transferred the title of his eldest daughter’s old car to Colleen so she would have transportation.
Impact of the Abuse on the Complainants
[14] Sarah told Paul Brown, the parole officer who authored W.S’s pre-sentence report, that she has been diagnosed with Post Traumatic Stress Disorder, depression, and anxiety due to W.S.’s actions. In her victim impact statement, Sarah describes how W.S.’s actions and words destroyed her self-confidence and trust in other people. She writes that her history with W.S. makes it “very hard for me to believe that happiness and good people do exist” or that “people truly care about me, and do not just want me around for the use of my body”. She lives with regret, anger, and disbelief, and a constant fear that she will be sexually assaulted again.
[15] W.S.’s actions damaged Sarah’s relationship with her parents. Sarah’s mother feels guilty because she accepted W.S.’s assurance that he could be trusted with her daughter. Sarah’s relationship with her father deteriorated. W.S. encouraged her to view him as a father figure, then sexually assaulted her. In her words, W.S. “took away the relationship I had with my own father”.
[16] Sarah feels humiliated because W.S. has told people within the local community that she lied about the sexual assault. She hopes to leave the area where she has lived her whole life, and where her family lives, because of the sexual assaults and their aftermath. She has sought treatment but finds it “absolutely heartbreaking” that it is she who must move far away to start a new life.
[17] In her interview with Mr. Brown and in her victim impact statement, Colleen reported that she lives with crippling anxiety due to W.S.’s actions. In the short term, this affected her grades and class attendance at school. In the longer term, she has experienced physical symptoms such as vomiting, shaking, compulsive scratching, heart palpitations, insomnia, night terrors, and excessive sweating.
[18] Colleen was particularly vulnerable because of W.S.’s prominent role in the local community and the financial support he gave to her immediate family. In Colleen’s words: “There was no winning or no clear path due to the offender’s influence in the community, and no one would believe me anyway. …. [W.S.] had relationships with every single person in my immediate support system, which left me feeling helpless and vulnerable at a young age”.
[19] Talking to older men with similar features remains scary and difficult for Colleen. She has poor self-esteem. Like Sarah, she says that: “For the rest of my life, I will not be able to accept anything nice someone does for me is not riddled with other intentions”. Her anxiety about W.S.’s actions and this case have sometimes caused her to shut down emotionally. Her relationship with her current partner is strained because she has had no sexual desire since the sexual assault complaints became known.
[20] W.S.’s actions have had a devastating impact on Colleen’s family and community relationships. She has been estranged from her paternal aunts, uncles and cousins. Colleen says that she used to be close to these relatives but, since she reported her uncle’s sexual assault, “almost all these relationships have ceased to exist”. Her sister Saskia has also moved across the country to avoid being anywhere near W.S., limiting Colleen’s contact with her. Like Sarah, Colleen believes that W.S. has been spreading rumors about her since his arrest in 2016, affecting how members of the local community perceive her and limiting her job opportunities. She has moved out of province as a result.
[21] Finally, the sexual assault and its aftermath have caused Colleen to miss work and to incur costs for counseling and medical and dental treatments. Her move from Ontario was costly. She has had to take time off work to attend in court, and explaining her absences to employers and colleagues has been challenging and uncomfortable.
[22] The court also heard a victim impact statement from Anna, W.S. youngest daughter. She falls within the definition of a victim at s. 2 of the Criminal Code, as “a person who has suffered physical or emotional harm” as the result of an offence. Anna was the first person to file a police report with respect to W.S. She did so after seeing the photos and hearing the April 1st, 2015 recordings of her father sexually assaulting her friend. Although she was only 15, she left home and finished high school by doing online classes while also working to pay rent. Anna is estranged from her brother and sister, either because they believe W.S.’s denial of the offences or because they are embarrassed. She has also lost relationships within the local community because W.S. has consistently said that the charges against him are made up and that he did not sexually assault anyone. Because of this, Anna has moved away.
[23] Like Sarah and Colleen, Anna trusts very few people. She has many failed relationships as a result. Her self-confidence is extremely low. She fears she will never get it back.
[24] The evidence regarding W.S.’s history and current situation includes his testimony at trial, Mr. Brown’s observations in the pre-sentence report, a s. 21 psychiatric report and follow-up report, and reference letters filed by the defence.
[25] W.S. is now 58 years old. He is the second youngest of eight children. He had a largely positive upbringing free of any abuse, neglect, or exposure to substances. His parents are now deceased. According to W.S., he had no significant family conflicts as a child but currently has strained relationships with his surviving siblings.
[26] W.S. grew up on a farm and has always lived in the same rural community. He began taking on paid work as a teenager, skipping school to do so. By the time he was 16, he had earned enough money to buy some property and cattle. He left home and moved in with one of his older brothers when he was 17. After graduating from high school, he used his savings to buy his own farm, livestock and equipment.
[27] In his interview with Dr. Gojer, W.S. mentioned problems he had in elementary school because he stuttered and was socially awkward. He was placed in a special education program in grades 6 and 7. Despite this, W.S. described his grades in high school as average. He did not pursue post-secondary studies simply because he enjoyed working. He describes himself as a workaholic.
[28] As a young man, W.S. married and had four children. After the marriage broke down in 2003, he had primary care of three oldest, while Anna lived mostly with her mother. In 2022, one of W.S.’s sons died tragically in an ATV accident at the age of 21. W.S. discovered the accident scene. When he testified about this loss at trial, it was clear that it affected W.S. very deeply. He told Mr. Brown that he cries daily about his son’s death. W.S. said he has a good relationship with his oldest son and daughter but is estranged from Anna.
[29] W.S. has been in a common law relationship with D.T. for some years. She currently lives with him on his farm. They have a positive and supportive relationship. Sadly, D.T. is currently receiving chemotherapy for cancer. She told Mr. Brown that the offences for which W.S. has been convicted are completely out of character. She has never witnessed any inappropriate behaviour on his part.
[30] W.S. consumes one drink a day and occasionally will have more but denies that he has any alcohol or substance abuse issues. He has no criminal record. He told Dr. Gojer that he has no major medical conditions. He has never been diagnosed with any mental illness and had never met with a psychologist, psychiatrist or counsellor.
[31] In Dr. Gojer’s opinion, W.S. does not exhibit any cognitive or intellectual deficits or limitations. He did not appear anxious or depressed to Dr. Gojer.
[32] During sentencing submissions, W.S.’s lawyer advised the court that W.S. currently owns 122 acres of land on which he grows soybeans and corn and raises milk and beef cows. He rents at least 4000 more acres. He told Dr. Gojer that he has had setbacks and financial losses at various points but has generally prospered. The reference letters filed by the defence include letters by various personal and business acquaintances within the community. They express that W.S. is a good neighbour and an excellent farmer. All of them were written prior to the trial and W.S.’s conviction.
[33] Dr. Gojer interviewed three individuals who have known W.S. for years as well as W.S.’s ex-wife. The individuals again praised W.S. for his work ethic and willingness to help those in need. They each denied that W.S. has ever behaved inappropriately towards them or towards anyone else in their presence. W.S.’s ex-wife, by contrast, described him as hot-tempered, difficult, and emotionally abusive.
[34] In his interview with Mr. Brown, W.S. was focussed on how the criminal charges have affected his life and career. He told him that he has lost contracts and expressed the fear that he would have to sell his business assets, including his dairy cows and quota, if he is incarcerated. Despite his admission at trial that he sexually assaulted Sarah on April 1st, 2015, W.S. represented to Mr. Brown that he had merely made inappropriate sexual comments to her. He unequivocally denied that he sexually assaulted Colleen and suggested that she had concocted the story in order to avoid repaying money she owes him.
[35] W.S. made contradictory statements to Dr. Gojer about his actions towards Sarah on April 1st, 2015. He admitted at one point that he had touched Sarah’s breasts on one occasion, when he was driving her home, telling Dr. Gojer that he was drunk. He also repeatedly told Dr. Gojer that he had pleaded guilty to the sexual assault charge based on this incident, which is untrue. He later accused Sarah of making up the sexual assault story with the other complainants. Then, when Dr. Gojer asked him about the April 1st, 2015 photos and voice recordings, W.S. acknowledged he had touched her breast that night, but added that Sarah had called him “numerous times” afterwards to ask him for car rides. When asked by Dr. Gojer if he had ever unclipped Sarah’s bra, W.S. said that “it was never proven that it happened”. As noted earlier, W.S. admitted at trial to unclipping Sarah’s bra on two separate occasions. W.S. also represented to Dr. Gojer that “the judge ruled that he had touched the girls on the shoulder”. This is also inaccurate.
[36] In his interview with Dr. Gojer, W.S. again denied that he had ever touched Colleen’s breast or had any sexual contact with Colleen or his other niece. He told Dr. Gojer that “he was good to both girls”, buying them cars, clothes, and phones, but that they connived and made up charges against him. In his report, Dr. Gojer noted that W.S. made many contradictory statements about his two nieces.
[37] Under the title “Diagnostic Impressions”, Dr. Gojer wrote that W.S.’s presentation was one of “denial and minimization”. He thought it possible that W.S. was sexually attracted to pubescent females based on the convictions in this case. Subsequent phallometric testing did not confirm or refute this. In Dr. Gojer’s view, W.S. should not be in the presence of children unsupervised. He identified W.S. as a suitable candidate for group therapy at the Ottawa Hospital’s Sexual Behaviours Clinic, which W.S. said he was willing to attend.
[38] According to Mr. Brown, W.S. expressed no remorse for his actions and did not recognize the impact that his actions had on the victims or their families. Mr. Brown flagged W.S.’s lack of responsibility for his offending behaviour as a risk factor for reoffending. In his view, “any ongoing involvement in rehabilitative treatment would appear to be far less meaningful at this time”. Even though W.S. has no prior criminal record, he agreed that W.S. should not be permitted to have any unsupervised contact with underage females and should be prohibited from taking on a position of trust and authority in respect of any minor females.
[39] At the sentencing hearing, I asked W.S. if he had anything to add. He said that he was sorry that “this has happened, for the girls and everything they are going through”. I did not find this to be a sincere or meaningful expression of remorse.
[40] Based on the victim impact statements and on comments made to Mr. Brown and Dr. Gojer, W.S. denies that he bears any responsibility for the events that led to the criminal charges despite admissions to the contrary at trial. I accept the victims’ assertions that he has told family members, friends, and acquaintances that they concocted allegations because this is consistent with what he told Mr. Brown and Dr. Gojer. Based on the pre-sentence report and the psychiatric report, W.S. is actively misrepresenting the evidence and his own admissions at trial to avoid taking responsibility for what he has done.
The Appropriate Range of Sentences for These Offences
[41] Based on the parity principle set out in s. 718.2 of the Criminal Code, a sentence should be similar to sentences given to similar offenders for similar offences committed in similar circumstances. Since Friesen fundamentally altered the sentencing analysis in childhood sexual abuse cases, I have confined my review to post-Friesen cases with similarities to the case at bar.
[42] In R. v. J.C., [2021] O.J. No. 7396, an offender was convicted of three counts of sexual interference involving his 14-year-old niece. Over the course of a weekend, he slapped her buttocks, gave her a massage during which he unhooked her bra, and groped her breasts and vagina. He had been convicted of another sexual offence against another young female victim. He was sentenced to a total of 35 months in jail.
[43] In R. v. D.S., 2021 ONSC 3972, the offender was convicted of sexually assaulting his 13-year-old niece by touching her breasts and legs on multiple occasions. He had no criminal record but his victim testified that she had struggled with addiction as a result of the assaults. The sentencing judge rejected the defence’s proposal that he serve a conditional sentence and sentenced him to 15 months in custody.
[44] In R. v. K.R.S., 2021 ONSC 8018, the sentencing judge imposed a global custodial sentence of four years for many incidents of sexual abuse by a father of three daughters under the age of 16. The abuse included exposing himself to them, touching their breasts, buttocks and vagina, and digital penetration. The sexual abuse of the children continued over years and, in the words of the judge, it “became part of their childhood”. The children all exhibited ongoing symptoms of trauma.
[45] In R. v. G.R., 2020 ONSC 7411, aff’d 2022 ONCA 374, a 50-year-old first-time offender was sentenced to five and a half years in jail for sexual assault of his girlfriend’s nine-year-old daughter, based on three incidents during which he rubbed the victim’s vagina with his fingers and penis and manipulated her nipples.
[46] In R. v. R.N., 2022 ONCJ 145, a custodial sentence of two years less a day plus three years of probation was imposed on an offender who digitally penetrated and touched the breasts of his 13-year-old step-daughter on five occasions. He pleaded guilty. The offender’s intellectual delay and low risk to offend were additional mitigating factors.
[47] The same sentence was imposed in R. v. T.A., 2022 ONCJ 528 and R v. S.D.C., 2023 ONSC 6010. In T.A., the offender was convicted of sexually interfering with his prepubescent step-grand-daughter by rubbing her vagina and convincing her to rub and touch his penis. He had previously been convicted of sexual assault. Notwithstanding significant aggravating factors, the judge concluded that the sentence was appropriate given that the offender was remorseful and committed to obtaining treatment. In S.D.C., a father rubbed his penis against his seven-year-old daughter’s buttocks as she was falling asleep in bed. There was no evidence of grooming or any other incidents of sexual assault or touching.
[48] In R. v. Green, 2022 ONSC 3786, the offender, a schoolteacher, also had no prior criminal record. He was convicted of sexually assaulting a 14-year-old female student after squeezing her thigh and moving his hand towards her vagina on one occasion and touching her breast on another. Green was sentenced to eighteen months in jail and three years of probation. The same sentence was imposed in R. v B.R., 2023 ONSC 3380, on facts similar to those in Green but with some additional mitigating circumstances.
[49] The defence also relies on R. v. Claxton, 2020 ONSC 7368. In that case, the offender pled guilty to indecent assault of a young teenage boy some 40 years earlier. He was sentenced to nine months in custody followed by 12 months of probation. The offender had no other criminal record, was highly remorseful and at little risk to reoffend.
[50] Based on these cases, sentences for sexual offences against a child post-Friesen range from nine months to five and a half years. This wide range reflects the role of mitigating and aggravating factors and other relevant factors in each case. There are a few cases post-Friesen where an offender has been given a conditional sentence. I will review these cases shortly.
Aggravating Factors in This Case
[51] There are aspects of W.S.’s conduct that make him particularly morally culpable and that therefore constitute aggravating factors.
[52] First, he groomed Sarah and Colleen. W.S. sought opportunities for physical intimacy with the girls, touching their knee when they were sitting beside him in the truck and making sexually suggestive comments and propositions to them. W.S.’s conduct was calculated and intentional. This increases his moral blameworthiness.
[53] Second, W.S. exploited his position of trust as Colleen’s uncle and a father figure for Sarah. Colleen was financially and emotionally dependent on her uncle and was chastised by her father if she refused to spend time with W.S. According to Sarah, W.S. encouraged her to call him “Uncle Dadda”. His sexual assaults were a terrible betrayal.
[54] Both Sarah and Colleen were in vulnerable positions when W.S. assaulted them, not only because of the power dynamic but because of their ages and their stage of personal and physical development. In Friesen, at para. 136, the Supreme Court noted that, historically, disproportionately low sentences have been imposed in cases involving adolescent female victims, even though they are frequently the target of sexual abuse. W.S.’s sexual abuse violated his victims’ personal integrity and robbed them of bodily autonomy. It had serious and lasting impacts on their mental health, body image, sexuality, and ability to maintain positive relationships with men, especially those in positions of authority. It estranged them from their community and family members.
[55] I also find that W.S. has engaged in aggravating post-offence conduct. He has persisted in downplaying or denying the April 1st, 2015 sexual assault even though he admitted his actions and words at trial, and even though the recordings from the truck wholly corroborate Sarah’s allegations. Given W.S.’s prominent role within the local community and his reputation as a good and upstanding neighbour, his persistent misrepresentations about Sarah have had a significant ongoing and negative impact on her. He has exploited his good reputation at her expense.
[56] W.S.’s lack of remorse is not an aggravating factor. However, as has been recognized by the Court of Appeal in R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.), at para. 82; R. v. B.P. (2004), 190 O.A.C. 354 (C.A.), at para. 2; and R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, at para. 57, an offender’s lack of insight puts him at risk to reoffend. In his interviews with Mr. Brown and Dr. Gojer, W.S.’s focus was on how the criminal charges have affected him. He did not acknowledge the harm that he has caused to Sarah and Colleen. I agree with Mr. Brown that W.S.’s attitude limits the effectiveness of any counselling he may receive. This in turn decreases the likelihood of rehabilitation and increases the risk of reoffence.
Mitigating Factors in This Case
[57] W.S. was in his early fifties when he committed the offences and had no criminal record. He has not breached any of the conditions of his pre-sentence release. These are mitigating factors.
[58] W.S. is a hardworking and respected member of his community. In their letters of support and in interviews with Mr. Brown, his neighbours and acquaintances say that he is always ready to give them a hand. While this is a mitigating factor, I give the letters of support from W.S.’s friends and acquaintances limited weight because they were written before his criminal trial took place. This means that none of the authors of these letters knew about the evidence that led to the convictions or the convictions themselves.
[59] W.S. is an affectionate and supportive partner. He has also been a loving and attentive father to his eldest daughter. These positive interactions do little to mitigate his offences against Sarah and Colleen, however.
The Parties’ Submissions on Sentencing
[60] In the initial sentencing hearing on December 5, 2023, the Crown took the position that the sentencing range was two to three years, and proposed a custodial sentence of two years less a day followed by three years of probation. The Crown also sought ancillary orders, which the defence does not oppose. The defence said that fit range was 15 months to two years. It sought a sentence of 18 months, to be served in the community, followed by three years of probation.
[61] On December 17, 2023, the date originally set for sentencing, I advised counsel that, for reasons to be given at sentencing, I did not consider a conditional sentence to be appropriate and that neither of them had adequately addressed the appropriate range for a purely custodial sentence. At a further hearing on January 24, 2024, the Crown proposed a range of two to three years. He advised that he originally suggested two years less a day on the rationale that, if the Court thought that a sentence at the lower end of this range was fit, it would be preferable to impose a sentence that would allow me to impose a lengthy probationary period. Defence counsel maintained that a range of 18 months to two years less a day would be appropriate, if I concluded that a conditional sentence was not fit.
Why a Conditional Sentence Would Not be Just
[62] Defence counsel argued that a conditional sentence, to be served in the community, would be appropriate for two reasons. First, W.S. will lose his milk quota if he is sent to jail and may not be able to buy it back when he is released. W.S. in fact claims that he will have to sell his entire farming operation if he is incarcerated, because neither of his two oldest children will be able to manage it in his absence. In her letter, his eldest daughter agrees that neither she nor her brother are in a position to take over the farm operation and so W.S. would have to sell it.
[63] Second, W.S. drives his common law partner, D.T. to and from the local hospital so that she can attend chemotherapy for stage 3 cancer. In a letter to the court, she says that she does not know who will drive her to appointments if W.S. is jailed.
[64] Under s. 742.1 of the Criminal Code, a conditional sentence of imprisonment can only be imposed if the sentence is less than two years and, among other things, the Court is satisfied that the service of the sentence would not put anyone at risk and would be consistent with the fundamental purpose and principles of sentencing in s. 718.1 of the Criminal Code.
[65] While Friesen does not close the door to conditional sentences for the sexual abuse of a child, they are very rarely appropriate. As stated in R. v. M.M., 2022 ONCA 441 at para. 15:
The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.
[66] As mentioned earlier, a conditional sentence has been imposed for child sex abuse post-Friesen in a handful of cases:
- In R. v. P.S., 2021 ONSC 5091, an offender was found to have performed oral sex on a 13-year-old. This had happened 40 years earlier. At the time of sentencing, the offender was 70 years old. He was remorseful, at little risk to reoffend, and had medical issues that could not be treated adequately in prison. He was sentenced to a conditional sentence of two years and one year probation.
- In R. v. Gunaratnam, 2021 ONSC 8270, an offender was convicted of two counts of sexual touching and one count of sexual interference. His victims were two prepubescent girls, one of whom was his niece. At sentencing, the offender was 60 years old and remorseful. He had no criminal record. The Crown and the defence jointly proposed a conditional sentence of two years less a day, which the judge accepted.
- In R. v. T.M., 2022 O.J. No. 5938, a judge imposed a conditional sentence of 16 months where the victim’s stepfather sexually assaulted the victim by touching her on the breast while she was asleep. There were further mitigating factors: the offender pleaded guilty at an early stage, he was very remorseful, and the Crown and defence jointly recommended a conditional sentence.
- In R. v. S.E., 2023 ONSC 6259, an offender pleaded guilty to sexually touching a 14- to 16-year-old while in a position of trust. This had taken place about twenty years earlier and involved sexual intercourse. There were significant mitigating factors, however. The offender had himself been sexually abused as a child and had struggled with addiction and mental health issues, for which he had received treatment and counseling. The sentencing judge concluded that a conditional sentence could be crafted that would meet the goals of deterrence and denunciation.
[67] Two of these cases, Gunaratnam and T.M., involved joint recommendations for a conditional sentence. In P.S., the offender was elderly and had medical issues that could not be adequately treated in prison. In S.E., the offender had himself been sexually abused and was in treatment. In every single case, the offender was remorseful.
[68] These cases do not assist W.S., for two reasons.
[69] First, I have concluded that an appropriate sentence for W.S. is more than two years, given the gravity of his offences and his degree of responsibility. A conditional sentence is not available where a just sentence is two years or more. W.S. is not entitled to a shorter sentence because he would prefer to keep his milk quota and pass on his farm to his children. In R. v. Hall, 2023 ONSC 5291, at para. 64, Somji J. imposed a two year less a day custodial sentence in a child sex offence case, even though this sentence might result in the offender’s deportation after living in Canada for twenty years. Even serious collateral consequences of a jail term do not automatically justify a reduction of a fit sentence.
[70] In M.M., at para. 16, the Ontario Court of Appeal said that exceptional circumstances that might justify a conditional sentence could include “a medical hardship that could not adequately be addressed within the correctional facility”. This was one of the bases for a conditional sentence in P.S. The defence argues that a medical hardship would arise if W.S. is incarcerated, because he would no longer be available to support D.T. through her chemotherapy. This is not what the Court of Appeal had in mind, in my view. Inconvenience or distress to D.T. does not justify a departure from the standard sentencing guidelines in Friesen.
[71] Second, I find the conditions proposed by the defence would not serve the goals of sentencing in this case. W.S. would remain on his farm, free for the most part to continue working and living as he has for many years. This would do little to deter him from committing similar offences nor would it deter anyone else who learned of the outcome. In the circumstances of this case, a conditional sentence would not convey the message to W.S.’s victims, or to the community at large, that he committed serious offences, or that sexual assault of minors warrants serious sanction.
[72] For these reasons, a conditional sentence neither available nor appropriate in the circumstances of this case.
[73] The defence also suggested that W.S. should not be remanded into custody immediately, because he needs to make arrangements with respect to his farm. I reject this suggestion. W.S. has had plenty of time. This case took seven years to get to trial. Since the defence did not bring a s. 11(b) application, I infer that most of this delay was not Crown delay. Six more months have passed since W.S’s conviction, during which he should have been preparing for the strong likelihood of a custodial sentence. Beyond this, I do not think that an offender with substantial assets like W.S. should benefit from an accommodation not granted to offenders with lesser means.
What is an Appropriate Sentence?
[74] In Friesen, the Supreme Court declined to establish a fixed range of sentences for childhood sexual abuse, stating that trial judges must have the flexibility to tailor sentences to do justice in the individual circumstances of each case. It nonetheless stated, at para. 114, 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”.
[75] Post-Friesen cases that have attracted sentences of less than two years involved a single victim. This distinguishes them from this case.
[76] Some of the facts in J.C. mirror the circumstances here. Both cases involve sexual abuse of victims by an older relative or person in a paternal role. As noted by Masse J., sexual abuse by a close relative often causes especially profound and long-term emotional and psychological damage. In both J.C. and this case, the abuse caused the victims to suffer from crushing blows to their self-worth and their ability to maintain relationships. One distinguishing feature in J.C. is that the offender had a long criminal record. But there are aggravating factors in this case, including grooming and post-offence conduct, not present here.
[77] There are likewise similarities and differences between K.R.S. and this case. As here, K.R.S. involved multiple victims who were traumatized. The offences in K.R.S. were more blameworthy in that the offender was found to have sexually assaulted his children many times. On the other hand, K.R.S. pled guilty, sparing the victims from having to testify. This was a significant mitigating factor absent in this case.
[78] Having considered these cases, I find that the custodial sentence at the high end of the Crown’s proposed range is appropriate and just in this case. In some cases, judges have sentenced an offender two years less a day because it allowed the court to impose a lengthy probation period. In this case, however, I conclude that any sentence under two years would be clearly unfit, because W.S. sexually assaulted two victims rather than one; he was a close relative or acting in loco parentis; the assaults were preceded by sexualized behaviour and language that objectified and degraded the victims over months or years; and the assaults traumatized them and estranged them from their families and community. In my view, the case that this most closely resembles is J.C., where a 35-month sentence was imposed.
[79] Some measures to safeguard other potential victims can be imposed under s. 743.21(1) of the Criminal Code. The other ancillary orders requested by the Crown are also appropriate given the need to minimize the risk of any reoffence.
Disposition
[80] Please stand, Mr. S.
[81] You sexually assaulted two teenage girls in your care. You violated their bodies and dignity. You made them unable to trust other men. You estranged them from their families and their community. Your conduct was deliberate and intentional. You committed serious crimes that merit serious punishment.
[82] I am particularly troubled by your refusal to acknowledge what you did to Sarah. You have told family members and others in the local community that she and Colleen made up the sexual assault allegation against you. You know that you sexually assaulted Sarah on April 1st, 2015. You have seen the pictures and the voice recordings showing what happened in the truck that night. You seem to believe that you have no responsibility for your actions because you were drunk. You are responsible for what you did whether or not you were drunk. By continuing to deny that you sexually assaulted Sarah that night, you are inflicting ongoing harm to her, to Colleen, and to Anna. You have split apart your family. You portray yourself as someone who has always worked hard and is ready to give a hand to your neighbours. You need to work at fixing what you have done here. This starts with owning up to your conduct and getting some help.
[83] You spent three days in custody after your arrest, and so are entitled to five days of pre-sentence credit. Taking this into account, I sentence you to 35 months minus five days in custody. I strongly encourage you to seek treatment and counselling with respect to appropriate personal boundaries and sexual offences while you are in jail and after your release.
[84] You shall comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, pursuant to s. 490.012 of the Criminal Code for a period of twenty years from this order. You are required to provide a DNA sample further to s. 487.051(1) of the Criminal Code. Pursuant to s. 109 of the Criminal Code, you shall be prohibited from possessing any firearm or other weapon, ammunition or substance listed in s. 109(2)(a) for a period of ten years from the date that you are released from imprisonment, and you are prohibited from possessing any firearm or other weapon or ammunition or substance listed in s. 109(2)(b) for life.
[85] Pursuant to s. 743.21(1) of the Criminal Code, you shall not communicate, directly or indirectly, with Sarah, Colleen, Saskia, or Anna during the custodial period of your sentence. Pursuant to s. 161 of the Criminal Code, you shall not, for a period of ten years from the date of this order:
(i) be within two kilometres of any residence where Sarah, Colleen, Saskia, or Anna ordinarily resides, or contact them, directly or indirectly, by any means;
(ii) attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground, or community centre. W.S. may, however, attend such places for the purpose of collecting or dropping off his grandchildren, and remain at such places with his grandchildren if he is in the company of another adult who is aware of this sentencing decision; or
(iii) seek, obtain, or continue any employment, whether or not the employment is remunerated, or become or continue to be a volunteer, where the employment or volunteer activity would involve you being in a position of trust or authority towards persons under 16 years of age.
Sally Gomery J.
Released: January 24, 2024