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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File No.: Central East - Newmarket 15-06868

Date: 2016-10-25

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

D.A.

Before: Justice P.N. Bourque

Reasons for Sentence

Released on October 25, 2016

Counsel:

R. Scott, for the Crown

F. Pizzimenti, for the defendant, D.A.

Decision

BOURQUE J.:

The Facts

[1] After a trial lasting some 6 days with further days for submissions and motions, I found the defendant guilty of the sexual assault and sexual interference upon the person of V.W. who was under the age of 14 years. The finding of guilt covered the period Sept 13, 2005 to June 30, 2006 although the facts disclosed that the abuse began in the fall of 2003. For the events from 2003 to Sept 12, 2005, the defendant was a young person under the Youth Criminal Justice Act. While he was initially charged as a youth, the youth charges have since been withdrawn.

[2] While I am therefore dealing with the defendant as a youthful first offender (as an adult) I believe I should consider it a factor that when these activities commenced he was a youth.

[3] The defendant and the complainant kissed briefly during a game of truth and dare. The defendant was 15 years old and the complainant was 10 years old. They then began to meet, first in his garage, and then in his basement, and for over 3 ½ years she would meet him at least once a week. Initial kissing and fondling escalated and by the end of 5 months they were engaging in vaginal intercourse and oral sex. She was not an unwilling participant but she was between 10 and 14 years old. They had over 100 meetings in that period of time. For the specific period of these charges, there were at least 25 sexual encounters. It ended when she simply stopped going over to his house to see him after the summer of 2006. He took advantage of her and took advantage of the fact that in both houses for significant periods of time, the parents did not engage in any meaningful supervision of their children, when they came home from school.

The Defendant

[4] The defendant, as disclosed in the many letters of support, has good prospects for the future. Almost to a person, the many supporters are dumfounded by this conviction. The defendant has expressed no remorse and continues to state his innocence. The Psychologists letter filed by the defence indicates that the defendant told the psychologist that the incident that he is being accused of "didn't happen". I cannot therefore give him any credit for any signs of remorse or contrition.

[5] The psychological report stresses that on the basis of their tests this defendant presents a low risk of future involvement.

The Complainant

[6] I heard the evidence from the complainant over several days. It is clear that she suffered greatly from this abuse. She had very troubled teen years. She became unruly and sought to harm herself. Her family has suffered, and continues to suffer, as a result. This is reflected in the trial evidence and in the Victim Impact statements filed by the complainant and her mother.

Positions of the Parties

[7] The Crown seeks imprisonment in a federal penitentiary for a period of 3 years.

[8] The defendant seeks imprisonment in a Provincial reformatory for a period of 5 to 8 months.

The Law

[9] Section 718 of the Criminal Code contains the following relevant provisions:

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; (and the harm done to victims or to the community that is caused by 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.

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.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

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,

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

[10] With regard to adult abusers of young children, the primary principles are clear. The Ontario Court of Appeal has restated many times that denunciation and deterrence are the primary considerations. As stated in R. v. Bauer:

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.)).

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

[11] 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".

[12] 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. In that case, I imposed a sentence of 23 months. 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.

[13] There are, however, significant aspects to this offender which would mitigate the harsh penalties set out above.

[14] I take into account, notwithstanding the objections of the Crown, that when this activity started that defendant was a young person (under the Young Offender Act) and thus by his age would have been entitled to a consideration of a diminished responsibility. While the law makes this crime an adult one, I do not think that upon the defendant's 18th birthday, there is some sort of realization of the enormity of his crime. He continued to act as he had acted previously, and sadly, probably continued with an adolescent view of the situation. In other words, he "became" an adult (in law) during the currency of this extended crime.

[15] The Crown had laid charges against the defendant as a young offender. The Police only later charged him as an adult. The Crown had a choice, to proceed on the youth charges, or the adult charges. The Crown could have conducted two separate trials and perhaps have run the risk of inconsistent verdicts. The Crown decided to proceed with the adult charges only. By doing so and exercising its sole discretion, it has chosen a route for which greater penalties can be imposed.

[16] Notwithstanding that, the trial commenced and I was informed that I could consider all of the evidence in the trial including the conduct before the defendant's 18th birthday.

[17] In that regard, I believe that I can consider cases where the courts have sentenced young offenders for sexual offenders and use them as some guidance in this matter. In R. v. Kennedy, in the situation of a gang rape of a 14-year-old girl, one of the defendants was a young offender and the other was an adult. The young offender received a sentence of one year in an open custody facility and the adult received a sentence of 2 years less a day in a provincial reformatory.

[18] In R. v. M.R., the Court of Appeal upheld a sentence of 300 days for a 16 year old young person who forced intercourse upon a 15 year old.

[19] In R. v. A.A., the Justice sentenced several young offenders in a gang rape situation to between 8, 12 and 14 months of open custody (one defendant received only probation taking into account his pre-trial custody).

[20] The defence cited to me several cases from the Ontario Court and the Superior Court and the court of Appeal. There was a variety of circumstances of the events and that of the defendant. Sentences ranged from suspended sentences to conditional sentences of imprisonment to months and years. There is no real consistent theme other than the fact that each case is very much dependent upon their own facts.

[21] 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. I must decide whether the defendant should be sent to a Federal penitentiary for the 3 years that the Crown seeks, or whether I should send him to a Provincial Reformatory for the period of between 5 to 8 months as suggested by the defence, or some other period of time.

[22] In our case I believe the following are the aggravating factors:

(a) The defendant abused a young girl who during the time of these adult offences was 13 and 14 years old. There is ample evidence of the terrible effects of this abuse upon the child (who is now a young woman) and her family;

(b) The defendant shows no remorse;

(c) The actions included many instances of sexual vaginal intercourse;

(d) The actions included instances of oral sex and touching;

[23] 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, and a youthful first offender, and there are good prospects for his future;

(e) He has strong and extended family support; and

(f) He is employed.

[24] I have rejected the defendant's application to stay the charges under the Charter but the non-actionable delay is such that I can take the delay into account in passing sentence.

Conclusion

[25] I have reviewed and considered the many cases cited to me by the Crown and defence. They show the great range of sentence for sexual offences against children and they also show the great variety of different fact situations. I agree that denunciation and deterrence are the primary considerations. I accept that the defendant probably poses a low risk to reoffend. However, I must take into account the severe consequences to the victim and her family and that lack of remorse. I am not sentencing the defendant as a young offender but as an adult. I believe that the fact that these matters began when he was 15 years old does allow me to consider this as some mitigation.

[26] Taking all of these factors into account, I believe that the appropriate sentence for this defendant is a total sentence of 2 years for the offence of sexual interference. (The offence of Sexual assault is stayed pursuant to the doctrine in R. v. Kienapple with the consent of Crown and defence). The defendant has one day of pre-trial custody. I deduct 2 days from the two years and thus the sentence is 2 years less two days custody in a provincial reformatory.

[27] There will also be a probation order in the following terms:

Probation: 24 months

Standard terms: Keep the peace and be of good behaviour

2. Reporting

• Report to probation immediately 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.

3. Residence

• Live at a place approved of by the probation officer and do not change without obtaining the consent of the probation officer

4. Non-contact communication

• Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with the complainant V.W. or any member of her immediate family;

• Do not be within 20 meters of any place where you know any of the persons named above to live, work, go to school, frequent or any place you know the persons to be except for required court appearances.

5. Weapons and permits

• Do not possess any weapon(s) as defined by the Criminal Code

6. Counselling and treatment

• 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;

• You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

• You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

7. Work and school

• Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer or supervisor;

• Attend school or an educational or training program approved of by your probation officer or supervisor and provide proof as required by your probation officer.

8. Non Association

• Not volunteer to work in the vicinity of children

[28] I also make the following ancillary orders:

(i) The defendant will provide a sample of his DNA;

(ii) An order under the SOIRA provisions and reporting for 20 years;

(iii) A section 109 order (2)(a) for 10 years.

Signed: "Justice P.N. Bourque"

Released: October 25, 2016