Information and Parties

Information No.: 14-11308

Ontario Court of Justice

Her Majesty the Queen v. C. F.

Reasons for Sentence

Before the Honourable Justice M. Felix on March 10, 2016, at Oshawa, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 486.4 & 517(1) BY THE ORDER OF JUSTICE OF THE PEACE MCILWAIN, ONTARIO COURT OF JUSTICE DATED APRIL 4, 2014

Appearances

Ms. L. Turner – Counsel for the Crown

Ms. Fry – Counsel for C. F.

Judgment

Thursday, March 10, 2016

FELIX, J. (Orally):

Introduction

The defendant, Mr. C. F., was found guilty of both sexual assault and sexual interference after trial.

The conviction with respect to sexual assault is conditionally stayed: R. v. Kienapple, [1974] S.C.J. No 76. I will sentence him concerning the sexual interference offence.

Section 151 of the Criminal Code of Canada mandates a minimum sentence of 90 days of jail upon conviction where the Crown Attorney has proceeded by way of summary conviction. The defendant has brought an application pursuant to sections 7 and 12 of the Canadian Charter of Rights and Freedoms, asserting that the imposition of the mandatory minimum sentence of 90 days jail constitutes cruel and unusual punishment.

Positions of the Crown and Defence on Sentencing

The Crown Attorney seeks the imposition of the mandatory minimum sentence of 90 days jail.

The defendant seeks a "time-served" sentence, the impediment being the mandatory minimum sentence.

Charter Applications

Section 12 – Procedure

The applicant bears the onus to establish that the imposition of the mandatory minimum sentence would constitute "cruel and unusual punishment". The required analysis was summarized by the Supreme Court of Canada in R. v. Wiles, 2005 SCC 84, [2005] S.C.J. No. 53 at paragraph 5:

The court must first determine whether the treatment or punishment is grossly disproportionate for the individual offender having regard to all contextual factors. Relevant factors may include: the gravity of the offence, the personal characteristics of the offender, the particular circumstances of the case, the actual effect of the treatment or punishment on the individual, relevant penological goals and sentencing principles, the existence of valid alternatives to the treatment or punishment imposed, and a comparison of punishments imposed for other crimes in the same jurisdiction: see Morrisey. If the treatment or punishment is grossly disproportionate for the individual offender in light of all relevant contextual factors, the court proceeds to determine whether the infringement can be justified under s. 1 of the Charter. If it is not disproportionate for the individual offender, the court must still consider whether the treatment or punishment is disproportionate having regard to reasonable hypotheticals. In Goltz, it was made clear that reasonable hypotheticals cannot be "far-fetched or only marginally imaginable". They cannot be "remote or extreme examples". Rather they should consist of examples that "could commonly arise in day-to-day life".

[Citations omitted]

Further assistance may be gleaned from R. v. Nur 2015 SCC 15, [2015] S.C.J. No. 15 at paragraph 39.

This Court has set a high bar for what constitutes "cruel and unusual punishment" under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate that the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Smith, [1987] 1 S.C.R. 1045. Lamer J. (as he then was) explained, in Smith, at page 1073 that the test of gross disproportionality "is aimed at punishments that are more than merely excessive". He added, "we should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation". A prescribed sentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional.

The applicant must show that the sentence would be "so excessive as to outrage the standards of decency": R. v. Smith, [1987] S.C.J. No. 36 (S.C.C.) paras 52 – 54; R. v. Goltz, [1991] S.C.J. No. 90 (S.C.C.) paras 22 - 30. Further, the applicant must establish that the grossly disproportionate sentence would cause ordinary Canadians to view the punishment as "abhorrent or intolerable": R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39 (S.C.C.) para 26.

I must consider the legislative objects underlying Parliament's criminal law responsibilities: R. v. Latimer, 2001 SCC 1, [2001] S.C.J. 1 (S.C.C.). In Latimer at paragraph 77 the Supreme Court of Canada adopted the following passage from R. v. Guiller, [1985] O.J. No. 1717, a decision of the Ontario District Court.

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

I will begin with the analysis of the relevant contextual factors relevant to the particularized inquiry. Then I will address the issue of reasonable hypotheticals. Finally, I will address the disposition of the Charter application.

Section 12 of the Charter: Contextual Factors Relevant to the Particularized Inquiry

In determining whether the mandatory minimum sentence required is "grossly disproportionate" I will analyze the following relevant factors:

A. The penological goals and sentencing principles on which the sentence is fashioned;

B. The gravity of the offence;

C. The personal circumstances of the offender including the impact of the sentence;

D. The particular circumstances of the offence; and,

E. A comparison to punishments imposed for other similar offences.

I must consider all of the relevant factors, keeping in mind that no single factor is determinative: Morrisey, supra, paras 27-28.

A. Sentencing Principles and Penological Goals

Sentencing Principles

Parliament has enumerated several relevant principle of sentencing in part XXIII of the Criminal Code that I must incorporate when fashioning a proportionate sentence. Section 718 of the Criminal Code sets out the fundamental purpose of sentencing and relevant objectives. Sections 718.01 and 718.2 (a)(ii.1) require me to recognize that a child was abused and mandates primary consideration of the objectives of denunciation and deterrence.

The defendant is a young-adult, first-offender, and as such the sentence must be the minimum necessary to achieve the aims of sentence. While I recognize that he has rehabilitative potential, the principles of sentencing require that I assign priority to consideration of denunciation and deterrence.

Penological Goals

The applicant did not argue that the mandatory minimum sentence lacked a rational connection to the objective of protecting children from sexual abuse.

The applicant argued that the mandatory minimum sentence was inconsistent with valid penological goals.

The applicant argued that in this particular circumstance, the imposition of a mandatory minimum sentence would be grossly disproportionate.

I find that there is a rational connection between the mandatory minimum sentence and the objective of protecting children from sexual abuse. I am also satisfied that the imposition of a mandatory minimum sentence is consistent with valid penological goals. Over the last decade Parliament has sought to protect vulnerable children from sexual abuse by mandating escalating mandatory minimum sentences and requiring that courts focus on denunciation and deterrence. Prior to 2005 there was no mandatory minimum sentence for the offence of sexual interference. In 2005 Parliament amended section 151 (b) of the Criminal Code to provide for a mandatory minimum sentence of 14 days jail for the offence of sexual interference when prosecuted by way of summary conviction, and 45 days jail when prosecuted by indictment. In 2008 Parliament raised the age of victims protected by this section from 14 to 16 years of age. On August 9th, 2012, the mandatory minimum sentence was increased to 90 days for summary conviction sentences, and to one year when prosecuted by indictment. (I will note parenthetically that the Crown Attorney in submissions misspoke and submitted that the minimum was six months on a summary conviction matter.) I conclude that Parliament has responded to a societal view that sexual offences committed against vulnerable victims, such as children, deserve particular sanction. There is no question that deterring adults from engaging in child abuse, and denouncing those who commit such crimes, is a valid criminal law objective.

The Supreme Court of Canada, the Ontario Court of Appeal, and many other courts have acknowledged that child sexual abuse deserves denunciation because of the terrible and unknown long term consequences. Countless courts of law have concluded that denouncing child abuse, and protecting children are important criminal goals: See for example R v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.) at para 170-180; R v. L. (D.O.), [1993] 4 SCR 419 (S.C.C.); R v. Rafiq, [2015] ONCA 768; R. v. B. (A.) 2015 ONCA 803; R. v. Woodward, 2011 ONCA 610 (Ont. C.A.); R. v. D. (D.) (2002), 163 C.C.C. (3d) 471 (Ont. C.A.); R. v. Stuckless (1998), 127 C.C.C. (3d) 225 (Ont. C.A.).

I find further support for these findings in a case provided by the respondent on the application – R. v. Q.(E.M.), 2015 BCSC 201. In this recent decision the applicant challenged s. 151 (b) of the Criminal Code, which provides for a mandatory minimum sentence of one year where the Crown proceeds by indictment. While the case is not binding, it is persuasive because of the extensive analysis performed by Justice Pearlman. I agree with the finding that there is a rational connection between the mandatory minimum sentence and the objective of protecting children from sexual abuse: Q.(E.M.), paras 120 – 121. I agree with the finding that the mandatory minimum sentence is consistent with the required primacy of denunciation and deterrence and valid penological goals: Q.(E.M.), paras 112 – 125. I adopt the excellent analysis of this issue provided by Justice Pearlman.

The applicant did not provide any other authorities addressing a s. 12 Charter challenge to s. 151 of the Criminal Code. I observe that counsel have a duty to present relevant authorities whether those authorities support or detract from their position.

I have reviewed two cases where a s. 12 Charter challenge to the sentence mandated by s. 151 of the Criminal Code was dismissed. R. v. Craig, 2013 BCSC 2098 and R. v. Lonegren, 2009 BCSC 1678. I have also reviewed a case where s. 151 was challenged pursuant to s. 7 of the Charter, which is the applicant's other argument. And, yet s. 12 was not litigated, see R. v. TMB, [2013] O.J. No. 3413, (ONSC) a decision of Mr. Justice Code. I have not found a reported case supporting the argument advanced by the applicant.

This challenge to the mandatory minimum sentence is a different animal than other challenges to mandatory minimum sentences. In R. v. Nur, 2011 ONSC 4874, [2011] O.J. No. 3878, Mr. Justice Code cited hypothetical examples of how the mandatory minimum sentence concerning firearms could ensnare persons who are not the legitimate focus of the impugned legislation: See Nur, [2011] O.J. No. 3878 at para 96. The Ontario Court of Appeal and the Supreme Court of Canada discussed concerns around the broad scope of s. 95 of the Criminal Code and how it could capture, for example, licensed individuals who possessed a firearm outside of the terms of their licence by mistake: R. v. Nur, 2013 ONCA 677, paras 51 — 53, 90 – 92, 159 – 169; R. v. Nur 2015 SCC 15, [2015] S.C.J. No. 15 at paras 82 – 84.

In R. v. Vu, 2015 ONSC 5834, Mr. Justice Durno discussed the scope of drug production and drug trafficking charges in the context of a defendant with a production licence who exceeded the terms of his or her production licence by mistakenly growing a few extra plants: Vu, paras 228 - 241.

In my respectful view the scope of s. 151 (a) of the Criminal Code does not present comparable dangers. There is no innocent firearms licensee. There is no marijuana producer suffering because of poor math skills. As I will explain further during this judgment, the offender captured by s. 151(a) of the Criminal Code is an adult possessed of the specific intent to engage with a child in a sexual manner. In my respectful view Parliament's penological goal is focused, narrow, and specific to – address adults who possess this specific intent to abuse children.

B. Gravity of the Offence

In my judgment after trial I outlined the fact that the Crown Attorney pursued allegations made by two child complainants against the defendant. I found criminal liability with respect to a limited set of the allegations as they pertained to one complainant only.

The gravity of the offences is measured by reference to the essential elements of the offence that the Crown must prove to establish guilt: R. v. Nur, 2013 ONCA 677 at para 81.

There can be no argument that a defendant captured by s. 151 (a) of the Criminal Code has committed a serious offence and possesses a high degree of criminal blameworthiness. There are several reasons why this is so. First of all, s. 151 (a) requires proof beyond a reasonable doubt that an adult physically interacted with child accompanied by a specific intent for a sexual purpose: R. v. Bone, [1993], M.J. No. 222 (Man. C.A.). As such, any adult captured by this offence has willfully and knowingly engaged in sexual conduct, or touching with a child. Second, the sexual assault of a child is a crime that is abhorrent to our society and deserving of condemnation in clear terms: R. v. W.(L.F.), 2000 SCC 6 at para 31. Finally, it is clear that the sexual abuse of a child is an act of violence with significant physical and psychological impact: R. v. Stuckless (1998), 127 C.C.C. (3rd) 225 (Ont. C.A.) at paras 43 – 44. And, our Court of Appeal has specifically recognized the life-changing consequences of sexual offences against children: R. v. Woodward, 2011 ONCA 610 (Ont. C.A.) at para 76.

C. Personal Circumstances of the Defendant and the Impact of the Sentence

There are three main factors relevant to the circumstances of the defendant. His general character, pre-trial custody and judicial interim release, and mental health issues.

General Character

I have reviewed the pre-sentence report in this case and benefited from the submissions of counsel to the defendant. I am aware that the defendant has suffered some general deficits in his development and education. He has received limited familial support and was in CAS care for a number of years. He has achieved a grade 8 education and is struggling in that regard.

The gentleman before the court reports that he was sexually assaulted as a child. There is no evidence of any prior inappropriate sexual matters involving this gentleman. The PSR report documents certain information on this subject, but I find that it does not document any unlawful sexual behaviour.

The defendant has also indicated that he suffers from an increase in depression, anxiety, nightmares, and sleeplessness.

The defendant is described by those who know him best as shy, socially withdrawn and naïve.

Pre-trial Custody and Judicial Interim Release

The applicant submits that one concern is that the defendant was factually assaulted while in custody. I agree that there is some evidence that the defendant was assaulted while in pretrial detention. I have reviewed the records from the institution and seen the photographs of the injuries supportive of the fact that the applicant received physical injuries. There is no evidence of the circumstances leading up to the assault. No charges were laid by the police. The applicant speculates that the assault occurred because of the personal make-up of the defendant and the nature of the criminal charges he faced. I am satisfied that the applicant was in fact assaulted while in the institution.

Balanced against these serious concerns, I have also considered the fact that he has served pre-trial custody that I will credit to him, an intermittent sentence is available, and the defendant will earn remission while serving his sentence.

The defendant has served 31 days of pre-trial custody. I am prepared to accord him 1.5 days credit for this pre-trial custody. I will round it off to 47 days total pre-sentence custody. As such, if I sentenced him to the mandatory minimum sentence he would serve an additional 43 days in custody.

There is no principled reason to deny the defendant an intermittent sentence. True, there is little evidence of specific educational or employment opportunities, but I am entitled to optimistically assume that he will further his educational pursuits, or employment opportunities, given his youth.

The defendant will earn remission while serving his sentence. It's commonly understood that if he performs well while he's incarcerated he might serve as little as approximately two-thirds of the sentence imposed. Further, if I fashioned an intermittent sentence the defendant would receive full credit for entering the institution on a Friday at 6:00 p.m., which counts as one day, as well as being released on Sunday at 6:00 p.m., which counts as one day, when he has not been incarcerated for the full day. As such, if he was to serve the sentence in this manner, it's possible that his sentence would be comprised of approximately nine or ten weekends.

Mental Health Issues

The defendant reports mental health issues associated with depression and anxiety commencing at approximately age 17. There is little or no evidence of documented mental health issues pre-dating the police arrest of the defendant in this case. I have not received a formal diagnosis pre-dating the arrest in this case. I do not have evidence that the defendant was receiving treatment for a major mental illness until his involvement in the charges before this court.

I'm aware that the defendant attended the Salvation Army for ad hoc counselling sessions as a result of a referral from his school principle in 2008, because the defendant was being bullied at school. While the defendant has maintained contact with a particular individual associated with this program, this contact has been ad hoc and initiated by the defendant. As a result of this association there has been no formal mental health diagnosis or plan of treatment, presumably because there was no evidence of a major mental health disorder. The representative from the Salvation Army is supportive and filed a letter outlining some very positive qualities that he sees in the defendant.

During the police interview of the defendant it is clear that the defendant had an emotional response and was taken to the hospital. A review of Exhibit 2 on sentencing reveals that the medical doctor admitted the defendant to hospital pursuant to "Form 1" of the Ontario Mental Health Act. It is clear that the impact of the allegations upon the defendant was acute.

The defendant was incarcerated after conviction because of a surety revocation of bail. Records from the institution were filed as Exhibits 1 and 3 on sentencing. It is clear that during this time period the defendant was segregated from other prisoners which had a negative impact on his feelings of depression. This lead to the defendant being seen by a Psychiatrist and several nurses. He was formally diagnosed with clinical depression. He was prescribed medication as a result of this diagnosis. He has only recently received Ontario Works and as such can now afford to fill prescriptions. He reports that he is now taking his medication for depression and in fact the medication was shown to counsel on a previous court date.

With respect to the offending conduct before the court, there is no medical information. There is no rehabilitative plan addressing counselling or treatment for issues associated to the offence before the court. That being said, there is no evidence that the defendant has any particular propensity to commit such offences.

While I am sympathetic to the defendant's circumstances, I do not find his mental health circumstances to be so unique or so peculiar such that his incarceration would work a disproportionate impact.

D. Circumstances of the Offence

The complainant in this matter was visiting her best friend for a sleep over party. The defendant initiated contact with both children in the early hours of the morning when they were entitled to the security of sleep without such intervention. As described in my judgment at trial, the defendant engaged in sexualized touching with complainant A.B. wherein he mimicked sexual positions and cause her to touch his penis with her hand. Having disabused my mind of the conduct for which he is not guilty, the conduct is still serious and concerning.

Mitigating Factors

The gentleman before the court is a youthful adult offender with no prior record.

I have reviewed the terms of his judicial interim release and do not find the terms to be excessive or unusually stringent: R. v. Ijam, 2007 ONCA 597, [2007] O.J. No 3395 (Ont. C.A.); R. v. Downes, [2006] O.J. No 555 (Ont. C.A.).

Aggravating Factors

As outlined earlier in this judgment and in my reasons for convicting this gentleman, there are several relevant statutory considerations that capture the aggravating circumstances.

It is aggravating that this gentleman sought out the inappropriate contact with the complainant in the early hours of the morning when she was entitled to sleep undisturbed and unmolested by his unwanted conduct.

Other Factors Neither Aggravating nor Mitigating

The defendant was in a relationship with the older sister of one of the complainants. The mother of his girlfriend and one of the complainants welcomed him into their home. The applicant describes this, in his materials, as a surrogate family in the factum and I agree with this characterization having heard the evidence. While this is a serious and concerning, I cannot characterize this as a formal, or a legal breach of trust, although there is little doubt he violated their trust in him.

The defendant has demonstrated absolutely no insight into the circumstances of the offence and the impact on the complainant. He has expressed no remorse or empathy for the complainant. While this circumstance may not be viewed as an aggravating factor it "speaks against mitigation": R. v. M.(D.), 2012 ONCA 520 at para 18.

The defendant has demonstrated a capacity to realize the impact of the offence on his relationship with the older sister of one of the complainants. This relationship was clearly very important to him and he lost it as a result of these circumstances.

There is no evidence that drugs or alcohol played any role in the conduct of the defendant that night.

Finally, I must recognize that while the defendant actions were very serious, I must consider that his criminal acts did not involve other serious intrusive conduct such as digital penetration or sexual intercourse. I must also consider that I did not find that a weapon was utilized, nor did I find that any gratuitous excessive violence occurred. While counsel to the applicant cites some of these factors as mitigating, I am obliged to correctly characterize these factors as the absence of aggravating factors: R. v. Q.(W.), [2006] O.J. No. 2491 (Ont. C.A.) at para 18; R. v. Stuckless, [1998] O.J. No. 3177 (Ont. C.A.) at para 42.

E. Comparison to Other Sentences

I have reviewed the cases provided by the applicant and they are of little assistance. There is no discernable trend or applicable range of sentence in this area of law. Offenders receive varied dispositions because sentencing is a unique exercise driven by numerous factors including the circumstances of the particular offender, the circumstance of the offence, and the applicable sentencing principles.

The cases provided by the applicant do not demonstrate any particular sentencing range. For example in R. v. C.S.W. [1992] O.J. No 796 the defendant entered a guilty plea and demonstrated great remorse. In R. v. C.A. [1995] O.J. No 1459 the defendant had made significant efforts at counselling and treatment, and incarceration was not required to achieve specific or general deterrence. In R. v. Burke [1999] O.J. No 568 a three-month conditional sentence of jail was imposed, which is a jail sentence. In R. v. J.H. [2012] O.J. No 5803 that matter concerned an adult offender, there were collateral consequences, and reliance on genuine remorse. In the case of R. v. Mwamba 2006 ONCJ 374, [2006] O.J. No 4023 that also concerned an adult offender, with some mitigating factors. It's perhaps not surprising that the applicant could not establish a sentencing range. As I indicated, sentencing is driven by numerous factors. The goal of the exercise is to impose a proportionate sentence.

Many of the sentencing cases in the area involve a breach of trust, more intrusive acts, or multiple instances of abuse. Offenders in those situations receive significant jail sentences. These cases are not similar to the case before me. Given this reality, this particular contextual factor was of limited assistance in my evaluation of the s. 12 Charter argument.

Conclusion

Balancing all the relevant and applicable principles I have come to the conclusion that a sentence of between 60 and 90 days jail would be a proportionate sentence.

Absent the mandatory minimum sentence, I would frankly tend towards a more sympathetic view of the defendant as eloquently and passionately outlined by counsel to the defendant during submissions. Free from the restriction of the mandatory minimum sentence I would sentence him to the lower end of the range, 60 days.

As a result, I must conclude that the mandatory minimum sentence of 90 days is disproportionate. That the mandatory minimum sentence is disproportionate does not mean that it is "grossly disproportionate" and supportive of a s. 12 breach. A merely disproportionate sentence cannot support a s. 12 Charter finding of cruel and unusual punishment. A sentence 30 days in excess of the sentence I would impose, but for the mandatory minimum sentence, cannot be cruel and usual punishment. I will now turn to the applicability of reasonable hypotheticals.

Reasonable Hypothetical

Section 151 (a) of the Criminal Code addresses a broad cross-section of offending conduct ranging from touching to more intrusive violations of bodily integrity.

The applicant did not provide any alternative reasonable hypotheticals and properly submitted that the defendant's case met the criteria for the sort of hypothetical that should concern the court and attract s. 12 Charter scrutiny. I agree.

The defendant was a few weeks past his 18th birthday on the offence date. The actions he performed constituted touching over top of clothing and mimicking sexual activity as described in my judgment at trial. Having the complainant touch his penis is a factual element that takes this case away from perhaps the most sympathetic hypothetical. Further, the remorse associated with a guilty plea might have made the analysis more stark. But certainly this is the sort of offender and case that meets the criteria of a reasonable hypothetical, as submitted by the applicant.

The crux of the matter is that reasonably hypothetical adult offenders who commit sexual offences against children with specific intent contrary to s. 151 of the Criminal Code often receive some period of imprisonment as part of their sentence.

I agree with the Crown submission that if there is no s. 12 breach on the particularized inquiry, given the make-up of the defendant before the court, there should not be a hypothetical that grounds a breach. I have found that the mandatory minimum sentence is not grossly disproportionate in the particularized inquiry set out in this judgment. As such, given the characteristics of the particular defendant before the court, it is unlikely that any reasonable hypothetical offender could ground a s. 12 breach: See R. v. Q.(E.M.) para 169 – 171 for the sourcing of the Crown's submission in this regard.

The s. 12 application is dismissed.

Section 7

The applicant bears the onus with respect to the alleged breach of s. 7 of the Charter. The support for this position is found in paragraph 23 of the applicant's factum and a cited impact of a jail sentence on the defendant's mental health.

The applicant did not seriously press this argument during oral submissions. No authority or support for this argument was presented. I have reviewed the one authority that I found that addressed the argument. The applicant focused on the s. 12 argument.

Given my findings, the applicant has not met the onus with respect to the s. 7 complaint.

Disposition of the Charter Application

The applicant has not met the onus with respect to the asserted s. 12 and s. 7 Charter applications and consequently the application is dismissed.

Sentence

I sentence the defendant to the mandatory minimum sentence of 90 days minus credit for pre-trial custody, that I outlined in this judgment. I will now move to the particulars of the sentence and address ancillary orders.

MATTER CONCLUDED

[1] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, Part I