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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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: 2017-03-06

Court File No.: Halton 15-468

Between:

Her Majesty the Queen

— AND —

R.A.

Before: Justice D.A. Harris

Heard on: May 5, 2016 & March 1, 2017

Reasons for Sentence released on: March 16, 2017

Counsel:

• S. Jasper Kujavsky — counsel for the Crown
• Wendy Oughtred — duty counsel for the accused R.A.
• The accused R.A. — on his own behalf

HARRIS D.A. J.:

INTRODUCTION

[1] R.A. pled guilty to sexual interference and invitation to sexual touching, both with respect to T.M.

[2] Crown counsel had elected to proceed by indictment.

[3] Mr. R.A. is before me today to be sentenced.

[4] Crown counsel suggested that I should sentence him to a global sentence of imprisonment for three years.

[5] Duty counsel, speaking for Mr. R.A., suggested that I impose a global sentence of imprisonment for two years less one day, followed by probation.

[6] Both counsel agreed that I should make the following ancillary orders:

1. a DNA order;
2. a weapons prohibition order pursuant to s. 109 of the Criminal Code;
3. an order compelling Mr. R.A. to comply with the Sex Offender Information Registration Act for life;
4. an order pursuant to s. 161 of the Criminal Code, limiting Mr. R.A.'s access to children under the age of 16 years. Crown counsel asked that this be a lifetime order whereas counsel for Mr. R.A. suggested that it be for seven to ten years and also asked for certain exceptions.
5. an order pursuant to section 743.21 of the Criminal Code preventing Mr. R.A. from communicating with T.M. during the custodial period of his sentence.

[7] I find that a global sentence of imprisonment for three years is the appropriate sentence here.

[8] My reasons for this are set out under the following subject headings:

1. The fundamental purpose and principles of sentencing;
2. The offences;
3. The impact on the victim;
4. The background of Mr. R.A.; and
5. Analysis

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[9] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[10] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[1]

[11] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[2]

[12] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[3]

[13] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[4]

[14] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[5]

[15] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[16] Section 718.01 of the Criminal Code provides that 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.

[17] Section 718.2(a)(ii.1) provide that evidence that an offender, in committing an offence, abused a person under the age of 18 years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[18] Section 718.2(a)(iii) provide that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[19] The offences have had a significant impact on the victim, considering her age and other personal circumstances. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

[20] I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[21] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[22] This principle is of less importance however in cases like this where there is a mandatory minimum sentence of imprisonment.

[23] The Ontario Court of Appeal has provided considerable direction with respect to sentencing adults who have sexually abused young victims.

[24] In R. v. D.D.[6], the Ontario Court of Appeal "discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children".[7] The relevant considerations and principles are summarized below:

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.[8]

[25] The fundamental message that the Court of Appeal has sought to convey is that:

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![9]

[26] Except in unusual circumstances, a penitentiary sentence is called for in all cases of sexual abuse of children by someone who stands in loco parentis if the abuse involves sexual intercourse. The usual range of sentences for this type of offence is from three to five years. The length of sentence within the range of depends on a number of factors, including the age of the victim, the duration and frequency of the sexual assaults, the criminal record of the offender, the effects on the victim and the presence or absence of collateral violence or remorse.[10]

[27] When adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.[11]

[28] The Court of Appeal has also recognized that an accused "grooming" his victim is an aggravating factor in sentence.[12]

[29] Finally, the Court of Appeal has made it clear in R. v. Stuckless that the absence of overt force and the absence of penetration "does not automatically relegate the sexual abuse of children to the lower range of sexual offences".[13] Abella, J.A. went on to state:

There is no question that "additional force", collateral crimes and penetration are aggravating facts, but their absence does not transform them into mitigating circumstances nor neutralize the other aggravating factors found in this case, the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of the victims. These offences were individually and collectively unconscionable. Any characterization which purports to diminish their magnitude is unacceptable.[14]

[30] At the time that Mr. R.A. committed these offences, the maximum sentence for each was imprisonment for ten years where the Crown proceeded by indictment. The minimum sentence was imprisonment for one year.

[31] Crown counsel provided me with a casebook containing seven decisions.[15] I do not intend to summarize these cases. None of them are identical to the present case. Some (including the one case decided by me) are clearly distinguishable. What I did take from these cases is confirmation for my belief that a sentence of imprisonment for three years is well within the range of reasonable sentences.

[32] Before I can apply the above principles however I must examine the offences here, the impact that they had on the victims and the background of Mr. R.A.

THE OFFENCES

[33] Mr. R.A. was married to T.M.'s second cousin.

[34] In 2012, T.M. went to live with Mr. and Mrs. A.. T.M. was a troubled girl. Her mother had been using drugs while she was pregnant and had lost custody of T.M. to T.M.'s grandmother. Mr. and Mrs. A. invited her to live with them as she was having problems with her grandmother.

[35] She lived with them and their three children for a short time and then Mrs. A. asked T.M. to leave.

[36] Mr. R.A. and T.M. became friends and remained so after she moved out.

[37] He gave her cigarettes and alcohol.

[38] They "French kissed" on two occasions. He told her he loved her more than he should. He asked her to give him "head:" a number of times but she never did.

[39] Eventually, they progressed to unprotected sexual intercourse in his car on two occasions.

[40] These were prearranged meetings. They parked his car in a secluded area of a park and engaged in sexual intercourse. He withdrew before ejaculating. He told her that she was tight. He also told her that disclosure of what they were doing would mess up the family.

[41] They did much the same again two weeks later.

[42] T.M. was between 12 and 14 years of age when all of this happened.

IMPACT ON THE VICTIM

[43] T.M. declined to be interviewed for the Pre-sentence Report. Her Children's Aid Society (CAS) worker however described her as the perfect victim as she was emotionally unstable.

[44] She had been a ward of the CAS and reported the offences to staff members at the residence where she was staying.

[45] T.M.'s grandmother reports that T.M. has had a lot of personal, emotional and police-related issues. She attributes much of this to her being a victim of these offences. T.M. has been diagnosed with severe anxiety, bipolar disorder, and attention deficit hyperactivity disorder. She sees a psychologist on a regular basis and her grandmother is in the process of helping her find a psychiatrist.

[46] T.M. also declined to write a Victim Impact Statement. Her grandmother stepped in here too writing:

T feels guilty about all this. T told me that he was buying her alcohol and cigarettes. Then he took advantage of her. She didn't know what to do. This I found out from T long after the fact, after the investigation started. She started running away. She was drinking a lot. She was lying all the time. She prefers older men, which makes me crazy. T did have underlying mental health issues and I feel the incident with Mr. R.A. caused T to totally lose control and she couldn't handle her emotions. In and out of group homes, drinking, stealing, hard drugs. It has been a very hard struggle for the both of us these past few years. We continue today. T now has a psychiatrist and a psychologist and is trying to work thru this. She has started school again. She is doing grade 9 work and should be in grade 12. So things are starting to look up but T is way behind. This has greatly affected T's self-esteem and sense of self-worth. I feel if "he" had left her alone, she wouldn't have had the rollercoaster of emotions to deal with. Our lives might have been better.

[47] T.M. did write a poem as an addendum to the Victim Impact Statement. It reads as follows:

As if Sir Borden and William King can

remove the branding iron that's now

sizzling out the top of my scalp

I smell my hair burning

a faint reminder of nervous car rides

and shaky fingers unable to

press the nicotine between my teeth

with ease

he never left a mark

just sore thighs stumbling my way home

As if a new laptop or new clothes could just

erase what I've been trying to rip out of

my fucking skull

I already scrubbed my skin red

with blistering hot water

5 or 6 times after the fact

you kind of just learn to forget

so when Detective Hans asked me to start

from the beginning

I questioned if I was dreaming

but I remember the cold

and I said it was probably autumn

I think that's when the iron first made contact

with my insides

so I sniffed white stuff to cure my insides

and I think my insides are black and rotting

and smell like smoke

and I never understood why a woman would

falsely accuse a man of rape

til I learned I was getting money for sharing my story

no amount of plastic rectangles or

"I'm sorry this happened to you"s

can finish what I've been attempting for years

• All I wanted was a pack of smokes

BACKGROUND OF MR. R.A.

[48] I have been provided with a Pre-Sentence Report which provided me with the following information.

[49] Mr. R.A. is now 41 years old.

[50] He is the oldest of four children. He reports a great upbringing.

[51] He graduated from high school. He was never suspended. He was picked on because he was the shortest "kid" and his father was a police officer. It took him seven years to complete high school.

[52] He started drinking alcohol and using drugs while in high school. This became a problem and he attended A.A. in 2000 and again in 2007 when he began five years of sobriety. He has since returned to drinking and he drinks approximately 48 bottles of beer per week. He also smokes marihuana. He has not attended for any counselling with regard to his drinking or his drug use.

[53] He has had a number of jobs since leaving school. The most recent fulltime job was as a highway line painter. He was fired from this job in May 2016. He was also a part-time fire fighter for seven or eight years. He is currently picking up odd jobs here and there.

[54] He left his parents' home when he married at the age of 26. He dated his first wife for seven years. They were married for four years and had a daughter. She is now 12 years old but Mr. R.A. has not seen her for 10 years. He and his first wife divorced in 2006.

[55] Following their separation, Mr. R.A. returned home for about six months. He then met his current wife. They moved in together and then married in 2010. She had a daughter from a previous relationship. She is now 16. Mr. and Mrs. A. have had three children between them.

[56] Mr. R.A.' parents have indicated that they will help Mrs. A. and the children should Mr. R.A. go to jail.

[57] CAS has been involved with the family since these charges and have taken the position that Mr. R.A. is to have no unsupervised access to children under the age of 16, including his own children, unless he attends and completes a sexological risk assessment and a substance abuse assessment and shares the results of those assessments with CAS.

[58] Mr. R.A. has not had either assessment done and he has not been involved in any counselling. Financial difficulties have been cited as the reason for this.

ANALYSIS

[59] Everyone agrees that Mr. R.A. is going to jail. The question is for how long.

[60] Whatever sentence I impose, at least one side and maybe both will be disappointed.

[61] The victim and her family and friends may believe that the sentence is too lenient, while Mr. R.A. and his family and friends may think that the punishment goes too far.

[62] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. R.A. and yet, at the same time, one that is responsive to his unique circumstances.

[63] I must consider both the aggravating factors and the mitigating factors.

[64] The aggravating factors can be found in the offences themselves.

[65] Mr. R.A. sexually abused a girl who was barely a teenager.

[66] The abuse culminated in full sexual intercourse.

[67] Sexual intercourse occurred on two separate occasions.

[68] He did not use a condom. I note that he withdrew before ejaculating, but he still put T.M. at risk of either becoming pregnant or contracting a sexually transmitted disease.

[69] Counsel disagreed as to whether this was a breach of trust. I am satisfied that it was.

[70] In that regard, I note the reasoning of the Supreme Court of Canada in R. v. Audet. There, La Forest J. agreed with the comments of Blair J. in R. v. P.S. that:

"Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.[16]

[71] Justice La Forest then went on to say that:

It will be up to the trial judge to determine, on the basis of all the factual circumstances relevant to the characterization of the relationship between a young person and an accused, whether the accused was in a position of trust or authority towards the young person or whether the young person was in a relationship of dependency with the accused at the time of the alleged offence. One of the difficulties that will undoubtedly arise in some cases concerns the determination of the times when the "position" or "relationship" in question begins and ends. It would be inappropriate to try to set out an exhaustive list of the factors to be considered by the trier of fact. The age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person will of course be relevant in many cases.[17]

[72] In this case, Mr. R.A. was married to T.M.'s cousin. Mr. R.A. and his wife took T.M. into their home when she had nowhere else to go. That relationship was short-lived but it was enough to create an element of trust. It was how Mr. R.A. came to know T.M. and to know that she was a troubled young person. It also provided a basis for T.M. to see him as someone who was looking out for her.

[73] That is not to say that this case is anywhere near being as egregious a breach of trust as many other cases. Elements of a trust relationship are there however and to that degree this must be treated as an aggravating factor.

[74] I make the same observation with respect to the issue of grooming. This is far from being the most serious example of grooming but Mr. R.A. did groom T.M. He bought her alcohol and cigarettes. He told her he loved her more than he should. He progressed from kissing to "French kissing" to requests for oral sex and then to full sexual intercourse.

[75] So again, to the degree that grooming was present here, I am treating that as an aggravating factor.

[76] In a similar way, I also note that this not a case that falls into the category described in R. v. D.D., supra. Mr. R.A. is an adult offender who, in a position of trust, sexually abused one innocent young child rather than a number of children. The abuse cannot be said to have happened on a regular and persistent basis over substantial periods of time. Accordingly, the higher range of sentence set out by the Ontario Court of Appeal in R. v. D.D. is not applicable here.

[77] These three last statements all indicate that what Mr. R.A. did was not as bad as what others had done before him. These are not mitigating factors. I am simply noting the absence of more aggravating factors that would have otherwise justified, if not called for, a longer sentence.

[78] The final aggravating factor is that the impact on T.M. has been traumatic. It may be years before she gets over this, if she ever does.

[79] There are also a number of mitigating factors.

[80] Mr. R.A. pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for T.M. to testify. She was spared the ordeal of revisiting her victimization in a public courtroom.

[81] He had no prior criminal record.

[82] He has been bound by bail conditions since his release and has not offended further.

[83] Even, taking these mitigating factors into consideration, I find that a sentence of imprisonment for three years is necessary to denounce this behaviour and to deter any like-minded individuals from committing the same offences.

[84] With respect to section 161 of the Criminal Code, I am satisfied that an order incorporating paragraphs (a.1), (b) and (c) is appropriate.

[85] With respect to paragraph (a), I note that there is no evidence before me indicating that Mr. R.A. is prowling around parks or schools or community centres looking for young women to prey upon. Rather the evidence indicates that his offences here were ones of opportunity.

[86] With respect to paragraph (d), there is no evidence before me indicating that Mr. R.A. has used the Internet in an improper fashion.

[87] I am also mindful of recent comments by both the Supreme Court of Canada[18] and the Ontario Court of Appeal[19] about restrictions on Internet use in orders pursuant to section 161.

[88] In modern life, at least some form of access to the Internet is simply unavoidable for innocent purposes such as accessing services and finding directions. In many homes the telephone operates using the Internet, rather than traditional telephone wires.[20]

[89] Depriving an offender of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life.[21]

[90] Internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on.[22]

[91] Courts should avoid imposing orders that create overbroad or unreasonable restrictions on an individual's liberty.[23]

SENTENCE

[92] For the above reasons, I sentence Mr. R.A. to imprisonment for three years, to be served concurrently with respect to each offence.

[93] I also make the following ancillary orders.

[94] These are primary designated offences and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. R.A. of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[95] They are also designated offences pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.012 of the Criminal Code, that Mr. R.A. comply with the provisions of the Sex Offender Information Registration Act for life.

[96] I am satisfied that the following provisions of section 161 of the Criminal Code are applicable here and I am making an order pursuant to that section prohibiting Mr. R.A. for the next 20 years from:

(a.1) being within 20 metres of any of any place where he knows T.M. to live, work, go to school, frequent, or any place he knows her to be;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards female persons under the age of 16 years;

(c) having any contact - including communicating by any means - with a female person who is under the age of 16 years, other than his child, except in the presence of a responsible adult who is aware of his offending, or incidental contact in the course of his employment.

[97] I make an order pursuant to section 743.21 of the Criminal Code prohibiting any communication by him with T.M. during the custodial period of his sentence.

[98] Finally, pursuant to section 109 of the Criminal Code, for the next ten years Mr. R.A. is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[99] Mr. R.A. will have six months following his release to pay the victim fine surcharges.

Released: March 16, 2017

Signed: Justice D.A. Harris