WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Date: 2016-08-30

Court File No.: Lindsay 15-0705

Between:

Her Majesty the Queen

— AND —

J.B.

Before: Justice S. W. Konyer

Heard on: March 3 and August 23, 2016

Reasons for Judgment released on: August 30, 2016

Counsel:

• Ms. S. Repka — counsel for the Crown
• Mr. K. Murray — counsel for the defendant J.B.

REASONS FOR JUDGMENT

KONYER J.:

[1] On March 3, 2016, J.B. entered a guilty plea to a charge of touching C.M. for a sexual purpose with his penis. The offence occurred sometime between July 1 and July 14, 2013, at which time J.B. was 30 and C.M. was 13 years old. The Crown has proceeded summarily on this matter, which means that there is a mandatory minimum sentence of 90 days jail, and a maximum available sentence of 18 months jail.

[2] J.B.'s sentencing was adjourned a number of times for a variety of reasons, including the preparation of a Pre-Sentence Report. While awaiting sentence, J.B. committed a further offence by uttering a threat to cause bodily harm to D.H., the ex-spouse of his current domestic partner on June 22, 2016. He has been in custody since that date. On August 23, 2016, he entered a guilty plea to this offence. He also entered a guilty plea to breaching a probation order in the spring of 2015 by failing to report to his probation officer.

[3] The Crown argues that a sentence of 12 months is proper for the offence of sexual touching, with a consecutive period of 15 days each for the breach of probation and uttering threats, for a global sentence of 13 months. The defence seeks a global sentence of 6 to 9 months. Both sides agree that whatever jail sentence I impose ought to be followed by probation with conditions designed to protect the victims and the community, in part by ensuring that J.B. participates in appropriate counselling. Both sides also agree that a number of ancillary orders should also be made. What is contested is the length of the jail sentence that J.B. ought to serve for the offence of sexual touching.

Sentencing Principles

[4] A fit sentence is one that is proportionate, that reflects the seriousness of the offence and the degree of responsibility of the offender. Although both punitive and rehabilitative sentencing goals apply to varying degrees in every case, in the case of an offence involving the abuse of child, I am required by s. 718.01 of the Criminal Code to "give primary consideration to the objectives of denunciation and deterrence of such conduct." In R. v. Woodward, 2011 ONCA 610, the Ontario Court of Appeal held that "when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence" [para 76]. It is therefore clear that in determining a fit sentence for J.B., rehabilitative goals are of lesser importance than the need to denounce his conduct.

Seriousness of the Offence

[5] This offence is serious. J.B. had dated the victim's mother, and he knew she was only 13 years old. He discovered the victim alone inside her apartment when he went there for unknown reasons in the early morning hours. She apparently had consumed some alcohol. He too was under the influence of either alcohol or drugs. The victim invited him inside the apartment, where they talked. According to the agreed upon facts, she kissed him, started undoing his pants and provided him with a condom. J.B. engaged in vaginal sexual intercourse with the victim, and then left the apartment. There were no other incidents of sexual touching.

Issue of Consent

[6] It has been argued that there was ostensible or de facto consent on the part of the 13 year old victim, and that this is a relevant consideration on sentencing. I cannot agree. A similar argument was rejected by a majority of the Alberta Court of Appeal in R. v. Hajar, 2016 ABCA 222, and I adopt their reasoning, set out at para. 94: "Parliament has made it a crime under s.151 of the Code for an adult to engage in sexual activity of any kind with a person under the age of 16. The crime is complete once the act has occurred, with or without the child's so called 'consent'…. [T]he absolute prohibition on sexual activity with a child in the protected category is found on the harm to both the child and society inherent in major sexual interference irrespective of a child's de facto consent. Treating de facto consent as if it makes the sexual activity less grave undermines the very protection Parliament sought to ensure for children under 16." In my view, the actions of the 13 year old victim in this case have no bearing on the determination of the proper length of sentence.

Victim Impact

[7] The victim has described the impact of this offence upon her in a Victim Impact Statement, which reads in its entirety as follows: "This offence has affected me emotionally because I no longer trust being around my parents' friends or my friends' parents. I no longer feel safe or comfortable around older men alone at all. I have anxiety issues when I am faced with being alone with older males. I live in the same town as my accused and since he was my mom's friend they know a lot of the same people. I am worried everyone is going to find out about this and they will say negative things about it. I do not wish to have any contact with the accused J.B.."

Offender's Personal Circumstances

[8] J.B.'s personal circumstances are troubling. He is now 32, and has previous convictions for domestic assault, break and enter, as well as multiple convictions for breaches of recognizance and probation orders, all of which occurred in 2014. He had no criminal record at the time he committed the sexual touching offence.

[9] J.B. has worked sporadically, has not completed his high school education, and appears to be dishonest and manipulative according to collateral reports. To his credit, he completed an anger management program as well as a self-management program while bound by his current probation orders. I also accept that he was gainfully employed prior to his most recent arrest for uttering threats. From his own statements to me in the course of the sentencing hearing, it is obvious that J.B. is intelligent and articulate.

[10] He has a long history of alcohol and substance abuse dating back to his early teenage years, and has until recently never made any meaningful effort to deal with his addictions. He was under the influence of intoxicants when he committed the offence of sexual touching. He maintains that this offence was out of character for him, and that his judgment was impaired by the use of drugs.

[11] As the author of the comprehensive Pre-Sentence Report notes at page 8, "[t]he offender turned to drugs and alcohol at a very young age to cope with the discomfort of life. The negative impacts this has resulted in [are] significant. It has affected education, family and personal relationships, employment, and has contributed to his involvement in the criminal justice system. It also appears to have impacted his emotional and mental health. Based upon his propensity to not tell the truth and deflect responsibility, it has also prevented him from learning how to live successfully in society. Until the offender becomes willing to participate in, and apply the tools acquired from long-term residential substance abuse treatment, and treatment for his depression, it is this writer's opinion that his risk of re-offending will remain high."

[12] Based on the information I have, including the circumstances of the sexual touching as well as the threats uttered while he was awaiting sentence, I am compelled to agree with the conclusion that J.B. presents a serious risk to the community unless he is willing to take meaningful steps to address his addictions. In order to manage this risk for the protection of society, J.B. will be placed on lengthy community supervision with conditions designed to address his addictions as a part of this sentence.

[13] It is obvious from the comments attributed to J.B. by the author of the Pre-Sentence Report that he does not see himself as an adult sexual predator. I have received a number of letters from family members and people who know J.B. in the community who describe him in glowing terms. While it is clear to me that these individuals are unaware of the full extent of J.B.'s addictions and criminal behaviour, I do accept that J.B. has positive attributes to his character. His prospects for rehabilitation may be positive if he is able to successfully battle his addictions.

Sentencing Decision

[14] Nevertheless, the primary focus of this sentence must be to denounce J.B.'s criminal conduct in using a vulnerable child for his own gratification, and on sending the message that this type of action will result in harsh punishment. Accordingly, I sentence J.B. to 12 months in jail on the count of sexual touching. He will be credited for pre-sentence custody since his arrest on June 22, a period of 70 days, at an enhanced rate of 1.5 days for each day served, or the equivalent of 105 days. This will be deducted from the sentence of 365 days, leaving 260 days to serve. I impose concurrent sentences of 30 days for the breach of probation and 30 days for uttering threats in order to respect the principle of totality.

Probation Conditions

[15] This will be followed by 3 years of probation on the following conditions:

• Keep the peace and be of good behaviour.

• Appear before the court when required to do so.

• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.

• Report in person to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

• Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request.

• Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.

• Do not associate or communicate, in any way, by any physical, electronic or other means, or be in the company of D.H., C.M., or any member of C.M.'s immediate family.

• Do not be within 200 metres of any place where you know any of the person(s) named above to live, work, go to school, frequent or any place you know the person(s) to be EXCEPT for required court attendances.

• Do not be in the company of or communicate directly or indirectly, by any physical, electronic or other means, with females under the age of 16 years, unless in the presence of another person(s) approved of in writing and in advance by the probation officer.

• Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).

• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for alcohol abuse, substance abuse, anger management and sexual offending. You are not to discontinue any such counselling or rehabilitative programs without the written permission of the probation officer.

Ancillary Orders

[16] I also make an order pursuant to section 743.21(1) prohibiting J.B. from communicating, directly or indirectly with C.M. or D.H. while serving the custodial portion of his sentence. I also grant the Crown's application for DNA orders on the s.151 and 264.1 offences. I further make an order pursuant to s.490.012 requiring J.B. to comply with the requirements of the Sex Offender Information Registration Act for a period of 10 years.

[17] I have considered the Crown's request for orders pursuant to sub-sections 161(a), (b) and (c). The sexual touching offence committed by J.B. appears to be one brought about by opportunity coupled with judgment that was impaired by the use of drugs and / or alcohol. I have included conditions in his lengthy probation order designed to protect the victim and her family, and to assist J.B. in addressing his underlying addiction, including a condition restricting his ability to be in the presence of females under the age of 16. In my view the preventative orders being sought are unnecessary in the particular circumstances of this case, and would be unduly restrictive of J.B.'s freedom and rehabilitative prospects.

[18] Although the Crown did not seek a weapons prohibition order against J.B., I am obliged under s.110 to consider whether such an order is desirable in the interests of the safety of any person. This would apply to the offence of uttering threats. Having considered the very legitimate fears expressed by D.H. in his Victim Impact Statement, it is my view that such an order is appropriate. Accordingly, I am prohibiting J.B. from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years.

[19] Finally, I am required to impose Victim Surcharges of $100 for each of these three offences. J.B. has 30 days to pay the surcharges.

Released: August 30, 2016

Signed: Justice S. W. Konyer