Court File and Parties

Court File No.: Central East - Newmarket 13-03242 Date: 2014-10-31 Ontario Court of Justice

Between: Her Majesty the Queen — and — R.G.

Before: Justice P.N. Bourque

Counsel:

• M. Dionne, for the Crown
• D. Mideo, for the accused, R.G.

Heard: In Writing

Sentencing

Released on October 31, 2014

Overview

[1] I found the defendant guilty of sexual assault, sexual interference and invitation to sexual touching. In my decision, I accepted the evidence of the complainant and her description of how a relationship with the defendant began and continued through parts of 3 years when she was 11, and up and until she was 14.

[2] As her evidence is set out in my judgement of July 29, 2014, the complainant had a crush on the defendant which the defendant began to take advantage of, first by coming into her room and touching her on the back, then they would "fondle" and "kiss", and the relationship developing as "boyfriend, girlfriend". She specifically described an instance where she performed oral sex upon him and did so several times thereafter. They would also meet during the day and "cuddle and kiss" in secret. She describes one instance of sexual intercourse. The act of intercourse was corroborated by her friend L.B. as was many instances of cuddling and kissing. L.B. described the instances where the defendant would come up to the complainant and pushing himself against her and "touching her where he probably should not have". With regard to each individual occurrence, it was not explored in detail.

[3] It is implicit in my acceptance of her evidence and my judgment that there was mutual touching, and that these matters were part of a grooming process by the defendant and would have involved invitations to the complainant to touch him. Hence the finding of guilt on all three counts.

[4] The issue to be first decided is whether any of these charges should be conditionally stayed in accordance with the principle in R. v. Kienapple, [1974] 15 C.C.C. (2d) 524 and in section 12 of the Criminal Code.

[5] Both the crown and defence agree that the charge of sexual interference (touching by the defendant upon the complainant for a sexual purpose) should be conditionally stayed upon the Kienapple principle and upon the authority of R. v. R.B., 2013 ONCA 36.

[6] In R.B. the facts were set out briefly and were: "The sexual offences were found to have started in 1988 when the complainant was six years old and they continued until 1997 when she was almost 15. Throughout that time, the sexual contact progressed from sexual touching to intercourse". The court also commented that "[5]. . . She found that details. . . were understandably unclear and peripheral".

[7] In that regard, the findings of fact by the trial judge in R.B. have a certain similarity to the facts as I have found them in this case.

[8] This is important as in R.B., the court stayed the sexual interference count on the Kienapple principle, but did not stay the offence of invitation to sexual touching.

[9] In R. v. D.L., [2013] O.J. No. 2930, Guay J. of the Ontario Court in a thoughtful decision, entered a stay on the section 152 offence as well as the 151 offence because of the Kienapple principle.

[10] I feel that while I am attracted to the reasoning in Justice Guay's decision, I cannot see how I can make a decision contrary to the Court of Appeal's decision in R. v. R.B. While they did not give reasons, clearly the issue of Kienapple was before the court and therefore their decision was as a result of consideration of the matter.

[11] I therefore enter a conditional stay to count 2 (sexual interference under sec 151) and enter convictions to the offences of sexual assault (count 1) and invitation to sexual touching (count 3).

The Facts

[12] From 1991 through to 1993, the defendant, who was some 14 years older than the complainant (who was between 11 and 14 years old) entered into an intimate relationship with her. The complainant was a willing participant and the relationship included touching and fondling, several instances of oral sex and one instance of vaginal intercourse. The defendant had been, for part of the time, living in the same house (they were not related and the defendant was not in a position of authority) and for part of the time, they lived close by.

[13] The complainant testified, as did some four other crown witnesses, and the defendant testified. Despite the denials of the defendant, I found him guilty.

The Complainant

[14] The complainant is now 32 years old and is employed in a group home for deaf and blind people. In her testimony, she impressed me as a mature individual with no feelings of animus to the defendant, but only a concern that what happened to her does not happen to others. These comments were confirmed in the pre-sentence report and she declined to file a victim impact statement.

The Defendant

[15] The defendant lives in Georgina Township. He is now 46 years old. He has a criminal record consisting of two drinking and driving offences, one breach of probation, one fail to comply, and one conviction for sexual assault. I note however that the conviction for sexual assault pre-dates this conviction. However, this offence occurred before that offence, and thus this is a first offence for a sexual crime.

[16] Filed as Exhibit 1 in this matter is the transcript of the sentencing hearing in the Superior Court of Justice on June 17, 2010. What I believe I can take from that sentencing is the fact that the defendant pled not guilty for that offence and did not acknowledge any responsibility, which is the situation here.

The PSR

[17] He did not finish high school. He is single and without children. I note there are several points in the report that he denied certain events in his life (such as his father's alcoholism) and would minimize other negative aspects of his life. He certainly did not show any empathy for the victim and stated "she looked happy in court so is not upset by what happened". He appears to still have a good relationship with his sister who describes him as a "great guy". She describes him as not angry or violent.

[18] In the report, it contains a report of his compliance with his previous conditional sentence and 3 year term of probation for his sexual assault conviction. The probation officer reported: ". . . (the defendant) completed counselling although reluctantly. The report from counselling revealed that he was well-mannered, however had no issues to discuss and continued to deny all offences. As a result, the counselling was not having the desired impact and was discontinued".

[19] In my opinion, the failure of the defendant to actively participate in or complete counselling, which mirrors his present attitude of denial, does not bode well for his rehabilitation.

Pre-Trial Custody

[20] The defendant has been in custody on these charges three days following his arrest. The release was cancelled on January 30, 2014 (sec 524) and he has been in custody since that time. When he pled guilty, he was sentenced to the underlying charge of breach of recognizance and was credited with 60 days of pre-trial custody. Since that time, he has spent a further 8 months in custody up to October 31, 2014.

[21] The Crown alleges that as the defendant had his original release cancelled by a 524(8) Order, that means that I cannot consider enhanced credit. In R. v. Summers the Court of Appeal ruled that a court can consider enhanced credit of up to 1.5. It did not consider the effect of an order cancelling a previous release order under sec 524(4) and (8).

[22] In R. v. Safarzadeh-Markhali, The Ontario Court of Appeal considered the constitutional validity of sections 515(9.1) and 719(3.1) C.C. and found that they were unconstitutional. Those sections dealt with the elimination of consideration for a 1.5 to 1 credit where a Justice of the Peace, on denying bail and indicates on the record that it was because of a previous criminal record. I note that in Summers at the Supreme Court of Canada (as at the Ontario Court of Appeal), there was a lot of language indicating that the courts were concerned that a decision which affects a right to bail may be very different from the considerations of an appropriate sentence. I believe that the same could be said for the provisions of section 524(4) and (8). However, as the language of the section presently states, I am precluded from considering enhanced credit when the Justice of the Peace has made a ruling (even on consent) cancelling a previous order of release under section 524. The parties to this sentencing hearing did not present a constitutional challenge to section 524. Full argument on that issue was not made. In R. v. Safarzadeh-Markhali, the court specifically did not rule on this issue.

[23] I therefore, with great reluctance, feel that I am unable to consider giving enhanced credit to this defendant and I do not do so.

Remorse

[24] I cannot give the defendant credit for a guilty plea which is an accepted statement of remorse. The plea necessitated a trial and I take into account that the victim had to testify, although as I have noted, she did not appear to be traumatized by the proceedings and gave her evidence in a mature and straightforward manner. The pre-sentence report indicates that he still denies these offences (as he denied his previous convictions for sexual assault involving a young person). As a result, he has never had any significant counselling for sexual offences, nor any serious assessments.

Crown Position

[25] The Crown asks for a sentence of 6 years custody before deducting credit for pre-trial custody. The Crown further states that as a result of the sentencing Judgments in R. v. D.M. and R. v. Woodward, the appropriate range of sentence in these circumstances is between 5 and 7 years.

Defence Position

[26] The defence seeks a sentence before credit for pre-trial custody of 2 years less a day.

The Law

[27] Section 718 of the Criminal Code states:

718. The fundamental purpose of sentencing is 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;

(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 and to the community.

Section 718.01 states:

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Section 718.2 states:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

[28] The Ontario Court of Appeal has restated many times that denunciation and deterrence are the primary considerations. As stated in R. v. Bauer:

[17] Mid-to-upper single digit penitentiary sentences are appropriate where an adult in a position of trust sexually abuses a young child on a regular basis over a substantial period of time (R. v. D.D., (2002), 58 O.R. (3d) 788 (C.A.), at para. 44). This range may apply even to a single instance of sexual abuse (R. v. Woodward, 2011 ONCA 610, 284 O.A.C. 151 (C.A.)).

[19] It is of paramount importance that children be protected from seducers and predators through sentences that emphasize the principles of denunciation and deterrence.

[29] As stated in R. v. D.H.M., "There is no citizen more precious in our community than children. There is no citizen more entitled to the protection of the courts than children".

[30] In R. v. Woodward, the Ontario Court of Appeal in the imposition of the sentence in that case and in the many statements made by the Court did indeed raise the level of incarceration to be considered for sexual offences committed upon children. The previous statements in R. v. Jarvis were indeed overruled. In a previous ruling of mine in R. v. Basit, I believed that in some similar circumstances a range of 8 to 40 months was appropriate. I would have to revisit that range in light of Woodward. I note the recent decision of R. v. R.B. where in somewhat similar circumstances, the Court of Appeal agreed with a sentence of 5 years for continual sexual assaults upon the niece of the accused from when she was 6 to when she was 14 years of age.

[31] A child has been sexually assaulted over a significant period of time. The defendant has taken shameful advantage of a child's natural credulity and wish for affection. A sentence of imprisonment is dictated by the facts and the law.

Aggravating Factors

[32] I believe that the following are the aggravating factors:

(a) the defendant abused a young girl between the ages of 11 and 13;

(b) the defendant has engaged in some "grooming" behaviour by ingratiating himself into the victim's family;

(c) the defendant shows no remorse;

(d) there is no psychological report setting out the basis for the defendant's behaviours and certainly no prognosis and no scheduled course of treatment;

(e) the actions included one instance of sexual vaginal intercourse;

(f) the actions included instances of oral sex and touching;

(g) the present attitude of the defendant does not bode well for rehabilitation.

Mitigating Factors

[33] I believe that the following are the mitigating factors:

(a) the defendant did not threaten the victim;

(b) when the victim called an end to the activity the defendant did not persist;

(c) there is one victim not multiple victims;

(d) this is a first offence;

(e) he still has family support from a sister and his parents; and

(f) he has good prospects for employment.

Conclusion

[34] Taking all of these factors into account, I believe that the appropriate sentence for this defendant is a sentence of 5 years in a federal penitentiary for the offence of sexual assault, less the pre-trial custody of 8 months, for a total net sentence going forward of 4 years and 4 months. With regard to the invitation to sexual touching, he will be sentenced to 8 months imprisonment concurrent to the sentence for sexual assault.

[35] I also make the following ancillary orders:

1. The defendant will provide a sample of his DNA;

2. An order under section 161(a), (b), (c) and (d) for life;

3. An Order under the SOIRA provisions and reporting for life;

4. An Order under 743.21 prohibiting the defendant from contacting S.S. or L.B. or any members of their immediate families;

5. A section 109 Order (2)(a) for 10 years, and 109(2)(b) for life.

Signed: "Justice P.N. Bourque"

Released: October 31, 2014