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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File No.: 17-0710

Date: February 13, 2018

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

K.F.

Before: Justice Michael G. March

Sentencing Submissions heard on: January 23, 2018

Reasons for Sentence released on: February 13, 2018

Counsel:

Hali Adair — Counsel for the Crown

Adrian Cleaver — Counsel for the accused

Reasons for Sentence

March, M.G., J.:

Introduction

[1] On August 1, 2017, K.F. ("K.F.") entered a guilty plea to sexual touching contrary to s. 151(b) of the Criminal Code of Canada ("the Code"). The offence carries a mandatory minimum punishment of 90 days jail.

Personal Circumstances

[2] K.F. is a 57 year old, decorated, retired member of the Canadian Forces. He achieved the highest rank of Master Warrant Officer during his long and distinguished career. He served in the Netherlands, Cyprus, Kosova, Bosnia, Afghanistan and Syria. He was highly regarded by his fellow soldiers. He has no criminal record. He receives a military pension.

[3] His current wife and he have been together since 1995. They married in 2001. K.F.'s wife remains very supportive of him.

The Offence

[4] On March 17, 2017, K.F.'s step-granddaughter, V.S., did not attend school. She was 14 years of age at the time. It was a snow day. She went to K.F.'s residence. She was watching movies. He made soup for them both.

[5] V.S. had her head lying on K.F.'s lap while they were together on the couch. She covered herself with a blanket. K.F. put his hands underneath the blanket and was massaging her legs.

[6] He moved his hands upward. He touched her crotch area outside of her pants. V.S. fidgeted.

[7] K.F. went back to massaging her legs. In time, he moved his hand back to her waist area and either unbuttoned or unzipped her pants. He placed his finger inside V.S.'s vagina. He asked her if she had ever been licked there.

[8] V.S. got up and went to the bathroom. She asked for her mother and grandmother. K.F. shortly thereafter called his wife and told her what had occurred. He and his wife then attended the police station where he confessed to having abused his step-daughter.

Therapeutic Intervention

[9] K.F. self-referred to the Royal Ottawa Hospital following the incident seeking a sexual behaviours assessment. On December 27, 2017, a forensic psychiatrist, Dr. J. Paul Fedoroff, prepared a Sexual Behaviours Report on my Order under s. 21 of the Mental Health Act, R.S.O. 1990 c. M-7. K.F. continues to receive counselling for post-traumatic stress disorder and anxiety, which he started in April 2017.

Denunciation and Deterrence

[10] Section 718.01 of the Code provides:

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.

Statutory Aggravating Factor

[11] Section 718.2(a)(ii.1) further makes clear that an offence involving the abuse of a person under 18 years shall be deemed to be an aggravating circumstance. This is not surprising. The common law has long held that crimes perpetrated against children are extremely serious, and deserving of stern condemnation and rebuke.

Breach of Trust

[12] Although V.S. as a 14 year old was likely quite capable of caring for herself on the date of the offence, K.F. was still acting in a supervisory capacity over her. V.S.'s care was entrusted to him. He breached the trust bestowed upon him by her mother and grandmother. As V.S.'s step-grandfather, K.F. abused the role he was expected to fulfil. Instead of caring for V.S., he violated her. In such a situation, denunciation, general and specific deterrence and the need to separate offenders from society takes priority over other sentencing objectives.[^1] Incarceration is often the sole means by which to reflect society's abhorrence for such heinous conduct engaged in by the offender.

Range of Penalty

[13] The Crown argues that the appropriate range of sentence is 12 to 15 months jail to be followed by 2 years of probation. The Crown further seeks a DNA Order, a weapons prohibition under s. 109 of the Code for 10 years, a SOIRA[^2] Order for 20 years and a s.161 Order under the Code for 5 years.

[14] By contrast, the defence submits that a range of imprisonment from 3 to 6 months is appropriate. The sentence should also be comprised of a 2 to 3 year period of probation. The defence was silent on DNA or s.109 Orders, but does take issue with the imposition of a s. 161 Order.

The Crown's Authorities

[15] In R. v. Majura, 2009 ONCA 485, Feldman J.A. held for a unanimous three member panel of the Court of Appeal for Ontario that a 17 month sentence and 2 years' probation, as imposed by the trial judge, was appropriate where an offender pulled down the pants and underwear of a 7 year old neighbour and licked her "privates". The Court found that the trial judge was entitled to conclude a "low end" trust relationship existed.

[16] In R. v. Baura, 2014 ONCA 34, the Court of Appeal for Ontario considered a sentence of 10 months jail imposed by the trial judge. The offender kissed, pulled down the pants of and licked the penis of an eight year old boy. He also "humped" his victim.

[17] The Court of Appeal affirmed that a sexual assault on a young child in such circumstances should attract a medium to high range reformatory sentence, even for a first time offender.

[18] The 10 month jail sentence imposed by the trial judge was upheld.

The Defence Authorities

[19] In R. v. Waterman, 2016 ONSC 2931, O'Marra J., presiding over a summary conviction appeal, upheld a five month jail sentence imposed by the trial judge. The offender rubbed his hands on the crotch area of his 11 year old grandniece. He then digitally penetrated her. The interaction lasted 30 seconds approximately. On its facts, this case is closest to those I have before me.

[20] In R. v. C.B., 2016 ONSC 2192, Lemay J. was dealing with an offender who performed oral sex upon and digitally penetrated his 14 year old victim over the course of a few minutes. The offender was a half-uncle to the victim. There was a significant age difference between them.

[21] Even though C.B. was a first time offender, had worked to improve himself, and the incident itself was of a short duration initiated by the complainant, Lemay J. imposed a sentence of ten months jail.

[22] In R. v. A.W., 2011 ONCJ 147, Harris J. accepted a guilty plea involving a 29 year old uncle, who got into bed with his five year old niece, pulled down her pants and underwear, inserted his finger in her vagina and rubbed his stomach against her buttocks. His Honour held that the breach of trust was "egregious". He imposed a sentence of six months jail and three years' probation.

[23] Harris J. gave full credit for the guilty plea which spared the five year old from having to testify. No sexual behaviours assessment was available to assist the Court.

[24] Defence counsel also referred me to R. v. Krishnanada, 2017 ONCJ 81. Although the sentence of three months intermittent jail imposed upon a 30 year old offender for having sexual intercourse with a 14 year old girl is remarkable, the facts are far different from what I am dealing with. The victim in Mr. Krishnanada's case told him to bring a condom. There was no element of a breach of trust. It is of limited value in its application to this case.

Sexual Behaviour Findings

[25] K.F.'s conduct vis-à-vis his step-granddaughter was – not to understate it – reprehensible. What the Sexual Behaviours Report of Dr. Fedoroff uncovered is that:

a) K.F. is capable of demonstrating a sexual response to sexual scenarios involving female children;

b) K.F.'s phallometric testing resulted in a positive Opposite Sex Pedophile Index, but did not result in a positive Opposite Sex Pedophile Assault Index;

c) K.F.'s primary arousal is to adult women; and

d) actuarial risk assessment placed him in the "low" category with an approximate re-offence rate of 2.2% within five years.

[26] Dr. Fedoroff diagnosed K.F. with PTSD (by history), possible Attention Deficit Hyperactivity Disorder and Pedophilic Disorder (on the basis of phallometric testing, which K.F. did not dispute). With treatment, Dr. Fedoroff opined that K.F. will stay in the non-offender category.

Separation of the Offender from Society

[27] In deciding what is a fitting sentence for K.F. in the circumstances of the offence and the offender, I must give primary consideration to the principles of denunciation and deterrence. There can be no doubt that K.F. committed a disgusting and deplorable act. V.S. was only 14 years old. As a young teenager growing into womanhood, she should never have been subjected to such vile, depraved conduct at the hands of her step-grandfather. Fortunately, V.S.'s Victim Impact Statement indicates that she is "…doing very well". One can only hope that she is not affected to any great extent in future.

[28] I do not believe that K.F. requires further specific deterrence. His relatively early guilty plea is a clear indication of his genuine remorse. He was contrite almost instantaneously upon recognizing the wrongfulness of his behaviour toward V.S. He sought out immediate assistance for her. He essentially confessed his guilt at the earliest opportunity. For this, he deserves full credit.

[29] Even in the absence of the mandatory minimum period of incarceration which the commission of this offence obligates me to impose, I would have jailed K.F. and separated him from society in any event. Granted incarceration is the penal sanction of the last resort, but society knows few crimes more deserving of imprisonment than the abuse of a child. Everyone must know that vulnerable and defenseless children need the care and protection of adults. Those who contravene this very foundation of civilized society must be punished in a manner that reflects the gravity of the crime. Rarely will anything short of jail do, especially where the offender breaches a position of trust or authority.

[30] I must nevertheless balance society's abhorrence for K.F.'s conduct against what K.F. did to make amends, and indeed, to make public his crime. Who knows if V.S. would have told her mother or grandmother exactly what had occurred? K.F. took away any need for speculation on this point. He manned up at once. He pled guilty. He spared V.S. any embarrassment that surely would have arisen from any necessity on her part to come to court.

[31] Further, he sought out assistance for himself to deal with whatever perversion caused him to behave as he did. His prospects for abstaining from sexually offending in future appear quite good. For those efforts, he is to be commended.

[32] The Court of Appeal for Ontario dictates that in circumstances where a child is sexually abused by an adult in a 'low end' trust relationship, medium to high end reformatory sentences are appropriate. Some allowance will be made toward reduction of that range of sentence based on the personal circumstances of the offender and other mitigating factors.

[33] Taking into account K.F.'s age, his lack of criminal antecedents, his remorse, his near immediate acknowledgement of wrongdoing, his guilty plea, his efforts at seeking counselling and treatment and his prospects for avoiding further offending, I shall impose a sentence of seven months jail. To reduce the sentence any further would require me to ignore the direction of the Court of Appeal for Ontario.

Probation Conditions

[34] Thereafter, K.F. shall be subject to a period of probation for two years on the following conditions:

a) he shall keep the peace and be of good behaviour.

b) he shall not have any contact directly or indirectly with V.S. or B.N.;

c) he shall not attend within 100 metres of their persons, places of residence, places of schooling, places of employment, places of worship, nor any other place he knows them to frequent;

d) he shall not be alone with any female under the age of 16, unless that child is in the presence of his or her parent or guardian;

e) he shall participate in any assessment and counselling deemed advisable by his probation officer for the prevention of child sexual abuse; and

f) he shall report to his probation officer within 72 hours following his release from custody, and sign any releases necessary to allow his probation officer to verify his compliance with condition e) above.

DNA Order

[35] For having committed a primary designated offence, K.F. shall be obliged under s.487.051(1) of the Code to submit a sample of his DNA to the authorities forthwith.

Section 109 Order under the Code

[36] The Crown has sought a weapons prohibition under s. 109 of the Code. Upon review, I have concluded that s. 109 does not apply. K.F. entered a guilty plea to a summary conviction offence under s.151(b) of the Code. Although I do have jurisdiction to impose a weapons prohibition under s. 110 of the Code, I decline to do so. K.F. neither threatened nor used a weapon in the commission of the offence.

SOIRA

[37] I will require K.F. to be subject to a 10 year SOIRA Order under s. 490.013(2)(a) of the Code. I do not see that I have jurisdiction to impose it for any longer period.

Section 161 Order under the Code

[38] In light of the finding by Dr. Fedoroff that K.F.'s testing reveals a positive Opposite Sex Pedophile Index, there is an evidentiary basis for imposing a s.161 Order for Mr. K.F..[^3] It shall be for a period of five years on the following terms:

a) not to attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

b) not to seek, obtain or continue 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 persons under the age of 16 years; and

c) not to have any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.

Essentially, I am satisfied that a s.161 Order will serve to minimize the risk posed by K.F.'s sexual predilection.

Conclusion

[39] In spite of K.F.'s commendable efforts to address his criminality, I must jail him for seven months to properly address the purposes and principles of sentencing set out at sections 718 to 718.2 of the Code. The probation to follow should assist K.F. in rehabilitating himself. Additionally, his probation conditions aim to protect a most vulnerable sector of Canadian society – its children. The ancillary orders share the same purpose.

The Honourable Justice M.G. March

Footnotes

[^1]: See R. v. D.D., 2002 at paras 7 and 34-36, and R. v. R.N.S., 2000 SCC 7, 1 S.C.R. 149 at para 18.

[^2]: Sex Offender Information Registration Act, S.C. 2004, c. 10

[^3]: See R. v. K.R.J., 2016 SCC 31 at para. 48.