WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

I.B.

Before: Justice Bloomenfeld

Heard on: November 14, 2012, December 17, 2012 and January 14, 2013

Oral Reasons for Sentence Delivered on: January 14, 2013

Written Reasons for Sentence Released: January 22, 2013

Counsel:

• B. Olesko, for the Crown
• S. Abraham, for the accused I.B.

BLOOMENFELD J.:

INTRODUCTION

[1] On January 14, 2013, I sentenced I.B. to 12 ½ months imprisonment followed by three years probation for one count of sexual interference and one count of breaching his recognizance.

[2] The sexual interference consisted of performing cunnilingus on the complainant, K.S., and having her masturbate him. K.S. was four years old at the time of the offence and Mr. I.B. was 42.

[3] After being charged with the sexual interference, Mr. I.B. was released on a recognizance with several conditions, including a prohibition against being in the presence of any person under the age of 16 unless accompanied by one of two specified adults. Nineteen days later, he breached that condition by trying to pick up another child from the same daycare attended by K.S.

[4] Mr. I.B.'s trial on all charges was set for November 23, 2012, but Mr. I.B. had the case brought forward and entered a guilty plea on November 14, 2012. Sentencing submissions were heard on December 17, 2012 and the matter was adjourned to January 14, 2013 for sentence. The Crown proceeded by summary conviction and sought a sentence of imprisonment of 13 to 14 months, (minus pre-sentence custody), plus three years probation. The defence submitted that the eight months already served in pre-sentence custody was sufficient and advocated for a suspended sentence with three years probation.

[5] In making my decision, I had the benefit of the submissions of counsel, a pre-sentence report, a victim impact statement completed by K.S. and her mother, a defence risk assessment report and jurisprudence submitted by both counsel delineating the applicable sentencing range and principles.

CIRCUMSTANCES OF THE OFFENCE

[6] The admitted facts lead inescapably to the conclusion that Mr. I.B. picked up K.S. from daycare, performed cunnilingus on her and had her masturbate him with her hand until he ejaculated.

[7] At the time of the offence, K.S.'s mother, C.B., had known Mr. I.B. for several years and considered him to be a good friend of the family. Their friendship was close and trusting enough that K.S.'s mother would occasionally ask him to bring K.S. home from daycare.

[8] On March 8, 2012, K.S. made a disclosure to her mother suggesting that Mr. I.B. had licked her vagina. The complainant's mother took K.S. to a doctor. Ultimately, the police and the Children's Aid Society were contacted. The police interviewed K.S. on March 30, 2012, with a Children's Aid Society representative present.

[9] In her taped police interview, K.S. stated that she had been on some stairs with I.B. and he took off her underwear and pants and licked her ponkie. K.S. indicated that her "ponkie" was her vagina and her mother confirmed that this was K.S.'s word for her private parts. K.S. also told the police that she squeezed Mr. I.B.'s "pookie" and some milk came out.

[10] The police seized and tested K.S.'s clothing and found semen on her right pants pocket and amylase on the crotch of her underwear. A DNA warrant was executed against Mr. I.B.. His DNA matched both the semen and the amylase.

[11] Mr. I.B. was arrested on March 30, 2012 and charged with the sexual offences against K.S. He was released on a recognizance on April 12, 2012, with conditions including a term forbidding him from being in the company of anybody under the age of 16 except in the presence of his surety or Sophia Charles. Mr. I.B. breached that term on May 1, 2012, when he went to the Children's Village Daycare and tried to pick up another child. Children's Village Daycare is K.S.'s daycare. Mr. I.B. explained that a friend had asked him to pick up the child as a favour and he was too embarrassed to explain that his bail condition prohibited him from helping out.

[12] Mr. I.B. was arrested for failing to comply with his recognizance on May 2, 2012. He has remained in custody ever since.

CIRCUMSTANCES OF THE OFFENDER

[13] Mr. I.B. has not had an easy life.

[14] He was born in St. Vincent and appears to have suffered from mental illness, including schizophrenia and depression, since childhood. He was repeatedly institutionalized and arrested by police, was chronically truant from school and ultimately dropped out completely after Grade 5. Mr. I.B.'s run-ins with the police in St. Vincent were occasionally violent. The risk assessment report suggested that he had been physically beaten by police and his past records indicated that he was shot during a police chase.

[15] Mr. I.B. is functionally illiterate and cannot read or write except for his own name. Although his illiteracy may stem from his lack of formal education, the risk assessment report indicates that his intellectual functioning is in the borderline retarded range. He worked at various jobs in St. Vincent but had difficulty remaining employed due to his mental illness.

[16] He moved to Toronto in 2006 to live with his sister, Theresa. Here, he has been diagnosed with schizophrenia and has been institutionalized more than once for mental health issues. Although Mr. I.B. has adamantly refused to take oral medication for his mental illness, he has attended regularly for injectable medication.

[17] As in St. Vincent, Mr. I.B.'s employability in Canada has been compromised by his mental illness and he has been unemployed for over four years. Prior to that he worked at several jobs in Toronto through a temporary employment agency. Mr. I.B.'s employment difficulties are exacerbated by the fact that he is in Canada on a Temporary Resident Visa which does not allow him to work. As a result, Mr. I.B. has been supported by his sister Theresa, with whom he lives. Other than Theresa, Mr. I.B. has no close friends. He depends on Theresa for shelter as well as financial, emotional and functional support. Theresa resides in the same building that houses K.S.'s daycare.

[18] I was advised by defence counsel that Mr. I.B. is subject to deportation, although no deportation order has been made against him and there are no current immigration holds on him. He came before this court as a first offender. Although he had previously been arrested and charged with minor offences in Canada, those charges were diverted.

[19] The extensive difficulties and challenges as well as the bleakness of Mr. I.B.'s history and future prospects are summarized in the pre-sentence report and the risk assessment report.

[20] The "summary and opinion" offered in the risk assessment report is as follows:

This man has no single diagnosis. He is likely at best in the borderline range of mental retardation. He further has significant substance abuse difficulties likely aggravating already poor impulse control. He also clearly has a diagnosis of paranoid schizophrenia.

Mr. I.B. is often preoccupied with auditory hallucinations, religious delusions and marred thought disorder. He is grossly dysfunctional in most spheres of life, is unemployable and socially inept, often in the extreme. His lack of insight and chronic non-compliance with treatment leave him severely impaired, with very poor prospects for stabilization.

[21] Mr. I.B.'s prognosis was described as "guarded at best" because:

He is clearly very symptomatic and will likely need lengthy inpatient treatment to achieve stability. He would be expected to do poorly in a jail setting where his paranoia is likely to be aggravated by the realities of such a setting. His history of occasional use of marijuana products could, of course, further aggravate his paranoia.

Whether he also has paraphilia is arguable although likely. If so, his treatment needs in this area would require assessment after his numerous other problems are dealt with.

Mr. I.B. clearly requires ongoing treatment with antipsychotic medication and perhaps with antiandrogens as well. Regrettably, his current lack of status in Canada seriously limits his treatment options. Returning him to his country of origin would likely leave him with little or no long term treatment and almost no hope for long term stabilization that has so far escaped him. Even now in the jail setting and with long acting injectable antipsychotic medication, he is still actively hallucinating.

[22] The authors of the risk assessment report characterized Mr. I.B.'s risk of recidivism as "substantial." They qualified that assessment, however, with the observation that the degree of risk stems from untreated or inadequately treated mental illness combined with significant mental retardation. No phallometric testing was done, in part due to time constraints but also because the results would be distorted by Mr. I.B.'s mental illness.

[23] The risk assessment report concluded with the grim expression of regret that "we are not suggestive of a very positive future for this fellow as his treatment needs are very extensive."

AGGRAVATING FACTORS

[24] The most prominent aggravating factors in this case derive from the circumstances of the offences. Mr. I.B. sexually abused an excruciatingly vulnerable victim. At only four years old, K.S. epitomized childish innocence, using the naïve euphemisms of "ponkie" and "pookie" to describe her own genitals and Mr. I.B.'s penis. She has now been forever robbed of that innocence. Worse, it was stolen by a man whom she expected would take care of her, a man in whom her mother had placed the most important trust that exists: the care of a child and that child's safe transport home.

[25] K.S.'s mother informed the author of the pre-sentence report that she had known Mr. I.B. for six years since he arrived in Canada, and that he was "like a brother to her." They had become so close that she "trusted him with the care of her daughter." She was plagued with guilt for the consequences of entrusting her daughter to Mr. I.B.'s care.

[26] The egregiousness of the offence was aptly captured by K.S.'s mother in the victim impact statement when she wrote:

"My family has been through a dramatic ordeal, one that has and leave its ugly scar on our lives forever. No one brings there child up in this world and expects that a creature would come and steal their innocence and compromise their future. When I made the decision to have Mr. I.B. take K. to and from the daycare and allowing him to my place I thought this was a safe choice as he was considered family. He betrayed my trust so deeply that I cannot trust another male around my daughter. I know this with every fibre in my body."

[27] The need for denunciation and deterrence was also articulated plainly and eloquently by K.S.'s mother at the conclusion of her victim impact statement, where she stated, "I hope justice is served so that this does not happen to anyone else." K.S. herself, with the understated candour of a five-year-old child, described her feelings about the offence in the victim impact statement as, "Sad. I.D. didn't say sorry. I.D. forgot to say sorry. I.D. is too bad to me. I.D is rude."

[28] The circumstances of the offence and K.S.'s and her mother's expression of its effect on their lives serve as a poignant illustration of the principles that the Ontario Court of Appeal established in R. v. D.D. to guide sentencing in this type of case. I do not rely on R. v. D.D. to define the sentencing range here, since the factual context in that case was more aggravated, involving more severe sexual transgressions against a number of victims on repeated occasions. Rather, R. v. D.D. generally articulates the reasons why denunciation, deterrence and the need to separate offenders from society must be paramount in sentencing adult sexual predators who exploit innocent children. Those reasons were reprised and summarized more recently by the Ontario Court of Appeal in R. v. Woodward as follows:

(1) Our children are our most valued and our most vulnerable assets;

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators;

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators;

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow;

(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood;

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[29] As acknowledged by Crown counsel, it is too early to know whether or how the abuse that K.S. suffered will manifest itself as she grows through childhood, adolescence and adulthood. It is the well-documented potential for grave and ongoing suffering and consequences that underlies the need identified by the Ontario Court of Appeal in R. v. D.D. and R. v. Woodward to definitively denounce and deter sexual offending against children.

[30] K.S. is already saddened by what happened. She has already described in her own words the hurt she felt that Mr. I.B. was bad to her and did not say sorry. Her future will also be irreversibly affected by what Mr. I.B. did. K.S.'s first sexual experience, the first sharing of her body and her first intimate, sexual contact with another person will never be one of her own choosing. Those precious milestones will always and only be represented by Mr. I.B.'s act of violation against her. K.S. will never have the chance to give her trust to anyone for the first time. Mr. I.B. took that from her. No matter what the future may hold for K.S., the theft of her innocence is irrevocable.

[31] The court of appeal in R. v. Woodward cited the following paragraph from R. v. D.D. as encapsulating the "fundamental message" for courts in sentencing adults who sexually prey on children:

"The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!"

[32] In this case, not only did Mr. I.B. trample K.S.'s trust and innocence, he also violated the public trust again by breaching one of the most important conditions of his recognizance when he was released after being charged with the sexual offences. Just 32 days after his initial arrest, Mr. I.B. was at the daycare in K.S.'s building picking up another child from school, despite being expressly forbidden to even be in the presence of any child under the age of 16 unless in the company of one of two specified adults.

[33] I appreciate that Mr. I.B. was accommodating a request from the child's parent and was too embarrassed to explain the limitations imposed by his bail. Embarrassment, however, does not excuse or ameliorate such a blatant violation of a term of release expressly crafted to protect other children from the risk of the harm suffered by K.S.

[34] In determining the impact of the aggravating circumstances of the offence on the quantum of sentence, I note that the offending conduct in this case does not fall at the most egregious end of the scale of sexual offending. There was only one occurrence and it did not involve any penetration or physical injury to K.S. Further, the fail to comply recognizance offence, while of grave concern given the particular bail condition that Mr. I.B. breached, did not in itself cause further harm to anyone or give rise to any other substantive offences.

[35] I also want to make it clear that I did not view the predicted substantial risk of recidivism as an aggravating factor. As established during the sentencing hearing, the risk assessment report lends insight into Mr. I.B.'s painful past, difficult life circumstances and rehabilitative challenges. It does not, however, add to or enhance the need for deterrence and denunciation created by the gravity of the offences themselves.

MITIGATING FACTORS

[36] The sentence calculation must also factor in a number of substantially mitigating factors including Mr. I.B.'s guilty plea, difficult life circumstances, mental illness, intellectual challenges and immigration status.

[37] The most significant of these factors, from my perspective, is Mr. I.B.'s guilty plea. In assessing the mitigative weight of the plea, I took into account the fact that it was not entered early in the process. The matter was brought forward so that Mr. I.B. could plead guilty, but not long before the trial was set to commence. K.S. and her family still had to undergo the strain of court preparation, the anticipation of a trial and the potential uncertainty of the outcome. Nevertheless, not only was the plea a concrete manifestation of Mr. I.B.'s remorse, but it rescued K.S. from the ordeal of having to testify and abbreviated the court proceedings so that she and her family could look towards closure and focus on the healing process.

[38] Crown counsel submitted that Mr. I.B.'s remorse and rehabilitative prospects were diluted by the lack of insight into the offence or its consequences demonstrated in the pre-sentence report and the risk assessment report. It is true that Mr. I.B. occasionally gave conflicting accounts of what happened and sometimes offered an exculpatory version of events. Ultimately, however, Mr. I.B. did admit, clearly and repeatedly, to having committed these offences. The apparent absence of insight or empathy cannot be evaluated separately from Mr. I.B.'s mental illness and intellectual deficits. Accordingly, I do not view Mr. I.B.'s failure to empathize or demonstrate insight as aggravating or detracting from the value of his remorse. If anything, it is neutral or serves as a further indicator of the sad reality of Mr. I.B.'s mental state and abilities.

[39] I also found Mr. I.B.'s array of mental health issues and intellectual challenges considerably mitigating. As suggested in the risk assessment report, Mr. I.B.'s experience of incarceration will probably exacerbate the suffering created by his mental illness. It is unlikely that imprisonment will assist in his rehabilitation or in stabilizing his mental state. That said, there is no plan or any articulated strategy for enhancing or improving the treatment for mental illness that Mr. I.B. has received to this point either in or out of custody.

[40] Defence counsel submitted that the likelihood that Mr. I.B. will be deported should also be treated as a mitigating factor. She advised the court that an immigration lawyer had provided an opinion that Mr. I.B. would be deported as soon as he was released. Defence counsel was unable to provide further details as to exactly why or on what basis Mr. I.B. would be deported or how a sentence of further incarceration would affect his hope of staying in Canada. Further, there is no deportation order currently in place and I was informed that there is no immigration hold in Mr. I.B.. Thus, while an accused's immigration status is a legitimate factor to be taken into account on sentencing, its impact in this particular case is only speculative. Even so, I have given some consideration to the potential for this conviction and sentence to deleteriously influence Mr. I.B.'s immigration prospects. The ameliorative impact of this factor on the final result is necessarily tempered by the speculative nature of the information provided.

RANGE OF SENTENCE

[41] Counsel submitted a number of authorities delineating a range of sentence from a conditional sentence to 17 months incarceration. While sentencing is always an individualized process and no case can be entirely prescriptive, the Ontario Court of Appeal upheld a 17-month sentence in roughly analogous circumstances in R. v. Manjra. Mr. Manjra was the seven-year-old complainant's neighbour. He was found, after a trial, to have licked the complainant's genitals on one occasion. In dismissing the sentence appeal, the court of appeal observed that the offender occupied a position of trust in relation to the complainant and that the upper reformatory term was within the appropriate range for this type of offence. There are some distinctions between R. v. Manjra and Mr. I.B.. Mr. Manjra was not entitled to the mitigating effect of a guilty plea or the other challenges faced by Mr. I.B. militating in favour of leniency. Further, the sentence in R. v. Manjra was imposed after a trial in which the complainant had to testify. On the other hand, the offending conduct was less egregious than in the instant case in which Mr. I.B. not only licked the complainant's genitals but also had her masturbate him. As well, unlike Mr. I.B., Mr. Manjra did not go on to breach his recognizance.

[42] Defence counsel conceded that, given the nature of the conduct, the jurisprudence supports a sentence that includes actual incarceration, but submitted that the appropriate range was six to eight months imprisonment, which Mr. I.B. had already served. At the time of sentencing, Mr. I.B. had been in custody for nine months.

APPLICABLE PRINCIPLES AND SENTENCE

[43] As agreed by both counsel, denunciation and deterrence must be the paramount sentencing principles in this case. Still, Mr. I.B.'s prospects for rehabilitation, while minimal and bleak, cannot be entirely discounted. It must also be remembered that the Crown proceeded summarily, so that the maximum period of imprisonment available is 18 months.

[44] Mr. I.B. is not the worst offender, nor is this the worst offence within the range of conduct for sexual interference. Similarly, the breach of recognizance, while egregious, does not fall at the most extreme end of criminal behaviour.

[45] Nevertheless, despite the mitigation to which Mr. I.B. is entitled based on his guilty plea, his mental health challenges and his uncertain immigration prospects, nine months imprisonment does not adequately reflect the gravity of the offences and would insufficiently address the crucial principles of deterrence and denunciation. In my view, the appropriate global sentence in this case is 12 ½ months imprisonment to be followed by three years probation.

[46] Accordingly, Mr. I.B. was sentenced to 11 1/2 months' imprisonment on the charge of sexual interference and one month imprisonment on the fail to comply recognizance charge to be served consecutively. Nine months was deducted from the custodial sentence to reflect the pre-sentence custody for a total remainder of three months imprisonment. The time in jail will be followed by three years probation to be served concurrently on both charges.

Released: January 22, 2013

Signed: Justice Bloomenfeld

Footnotes

[1] When Mr. I.B. was sentenced I advised him and counsel that I would also release written reasons. I indicated that the written version would contain some editorial revisions and would expand slightly on the reasons delivered orally in court but that the substance of the analysis would not be altered.

[2] Risk Assessment Report, dated November 30, 2012, prepared by Dr. Angus McDonald and Sheldon Melodick, p. 13

[3] Risk Assessment Report, supra, p. 14

[4] Risk Assessment Report, supra, p. 15

[5] Risk Assessment Report, supra, p. 15

[6] Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(a)(ii.1) states that "evidence that the offender, in committing the offence, abused a person under the age of eighteen years … shall be deemed to be … aggravating."

[7] Criminal Code, R.S.C. 1985, c. C-46, s. 718.2(a)(iii) states that "evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim … shall be deemed to be … aggravating."

[8] Pre-Sentence Report, December 13, 2012, p. 5

[9] ibid

[10] Victim Impact Statement, p. 1-2

[11] Victim Impact Statement, p. 2

[12] Victim Impact Statement, p. 1

[13] R. v. D.D., 163 C.C.C. (3d) 471 (Ont. C.A.)

[14] R. v. Woodward, 2011 ONCA 610, 276 C.C.C. (3d) 86, at para. 72

[15] Supra, at para. 73

[16] R. v. Hamilton, 72 O.R. (3d) 1 (C.A.) at paras. 156-158; R. v. J.H., [2012] O.J. No. 5803 at para. 34

[17] R. v. Mehanmal, [2012] O.J. No. 5164 (C.J.); R. v. Butt, [2012] O.J. No. 3553 (Sup.Ct.); R. v. Real, August 22, 2008, unreported, Ont. Sup. Ct; R. v. Manjra, 2009 ONCA 485; R. v. F.C., 2011 ONSC 7037.

[18] supra

[19] Criminal Code, R.S.C. 1985, c. C-46, s. 718, s. 718.01

[20] The conditions of probation were not contentious and were specified in the oral reasons for sentence. In addition, there was a DNA order, a s. 161 order for 10 years, a SOIRA order for 10 years and a 5-year s. 110 weapons prohibition.