Court Information

Date: June 21, 2018

Information No.: 17-6194

Ontario Court of Justice

Her Majesty the Queen

v.

M.M.

Reasons for Sentence

PUBLICATION BAN ON IDENTIFICATION OF VICTIMS INDICATED HEREIN PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Appearances

L. Elliott – Counsel for the Crown

B. Ritter – Counsel for M.M.

Before the Honourable Justice S.N. Latimer

On June 21, 2018 at Kitchener, Ontario

Charges

Section 151 Criminal Code – Sexual Interference (x2)

Reasons for Sentence

LATIMER, J. (Prov.) Orally:

These are my Reasons for Sentence in the M.M. matter.

Introduction

On March 29th, 2018, M.M. pled guilty to two counts of sexual interference, one involving his 12-year-old daughter, the other her similarly aged friend. Given their ages, and the Section 486.4 Code ban previously made, I'll refer to the daughter as C.M. and the friend as M.C. The Crown has chosen to proceed on this matter by indictment and seeks a sentence of 3 to 3-1/2 years in the penitentiary. Mr. Ritter on behalf of the defendant, seeks a reformatory sentence of 15 months imprisonment with a recommendation that it be served at the Ontario Correctional Institute. Following the plea in this matter, the proceedings were adjourned for the purpose of compiling material and sentencing precedence in order to properly conduct this hearing which began on June 15th and completes today.

Facts

The entirety of the facts are contained in Exhibit 1, the Agreed Statement of Facts. What follows is a summary of that information. During the May 5th to 7th, 2017 weekend, Mr. M.'s wife and C.M.'s mother was away, leaving the defendant responsible for caring for their children, C.M. and two step-sisters. C.M.'s 12-year-old friend, M.C. was also sleeping over at the home.

On Saturday, the family had a family day that included swimming and a breakfast out. M.C. slept over again the next night. C.M. was not feeling well and laid down, leaving M.C. and the defendant sitting on the couch together, alone. M.C. noticed that Mr. M. was searching for "naked girls" on the internet on his phone. Such images were visible to her on the device.

Later, M.C. and C.M. were in the bedroom playing Uno. The defendant came in while his daughter, C.M., went to the bathroom. He stared at M.C. and then proceeded to grab her right hand and place it on his groin. She immediately pulled away and ran to the washroom. Later that evening, C.M. was in her father's bedroom as she was not feeling well. While in the same room, in the same bed, the defendant proceeded to lick his daughter's vagina for a lengthy period of time.

The next day, M.C. disclosed to C.M. that the defendant had tried to have her touch his penis. C.M. told M.C. that she'd been sexually abused by her father, "her whole life," and that she was afraid to tell anyone because he is her father. The next day, C.M. disclosed matters to her mother. She described, among other details, one occasion where her father had placed her hand on his penis. After she pulled her hand away, he said to her, "What? Are you afraid you're going to like it?"

A police investigation followed where Mr. M. was arrested and subsequently acknowledged the alleged sexual activity. Specifically, he acknowledges two prior incidents where he compelled C.M. to touch his penis with her hand, in the earlier noted act of cunnilingus. There are no precise dates for the prior conduct other than it occurred between 2013 and 2017. He also acknowledges his sexual conduct towards M.C. where he grabbed her hand and tried to have her touch his penis.

Offender Background

M.M. has no prior criminal record. He is 48 years old and married. His wife remains supportive of him despite this conduct, and I have been told by collateral sources that C.M. misses him and wishes to see him again soon. He is closely connected to his church and has sought out counselling through the church since his arrest on these charges. I have received and read letters from a number of individuals in Mr. M.'s life, including his Pastor. I am appreciative of these insights into his background. Mr. M.'s childhood and background are also documented in the Pre-Sentence Report which I have reviewed as part of this sentencing.

I accept that Mr. M.'s conduct post-arrest demonstrates that he is willing to receive and participate in sexual offender counselling. I additionally accept that the remorse I see in court is corroborated by his conduct in the community following his arrest.

Positions of the Parties

There is some distance between the recommended sentences in this matter. Mr. Ritter suggests a 15-month sentence, taking into consideration relevant sentencing authorities, the plea of guilt and the specific conduct against each victim.

Ms. Elliott recommends a penitentiary sentence in the range of 3 to 4 years, later amending her position to 3 to 3-1/2 years, or 36 to 42 months. With some pressing, Ms. Elliott acknowledged that there are no reported authorities with similar facts that support the upper-end of her sentencing range. The closest parallels, Hutchinson and Manjra from the Court of Appeal, both involve reformatory-length sentences imposed after trial. The Crown nonetheless submits that the broader framework principles and authorities in this area, like D.D. and Woodward, justify a penitentiary sentence of the length suggested. This submission is based in part on the fact that the present case involves two separate child victims.

Relevant Legal Principles

It goes without saying that the defendant has committed a terrible crime and a profound intrusion upon his daughter's emotional well-being and sexual integrity; a trust has been broken. The Criminal Code instructs me that C.M.'s age and the nature of the father-daughter relationship are facts that I must pay close attention to, during this sentencing and are properly considered to be aggravating factors, see Section 718.2(a) to (i) and (iii) of the Criminal Code. Additionally, I have no hesitation in concluding that Mr. M. owed a significant trust to M.C., his daughter's friend who was in his care during the weekend in which he assaulted her.

In clear and direct language, the Court of Appeal has made plain the appropriate analytical lens through which to view the criminal sexual abuse of a child. See R. v. D.D., [2002] O.J. 1061, 163 C.C.C. (3d) 471 at paragraphs 34 to 36. The Court stated:

"Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs, must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in Section 718(a), (b) and (c) of the Code, 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.

We as a society, owe it to our children to protect them from the harm caused by offenders like the Appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the Appellant and, as such, they make easy prey. People like the Appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

In this respect, while there may have been a time years ago, when offenders like the Appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long-since passed. Today, that excuse no longer holds sway. The horrible consequences of child sexual abuse are only too well known."

I note that D.D. factually contains acts of greater duration and severity than the present case. This is not meant to minimize Mr. M.'s conduct in any way. All sexual crimes against children are serious violations. In sentencing however, there is a need to distinguish between different offences and offenders, in order to craft an appropriate sentence in an individual case. On a continuum from least horrendous to most horrendous, my point is that the present facts are closer to the lower end of that continuum then the facts in D.D.

In R. v. A.G., [2004] 190 C.C.C. (3d) 508, Justice Marc Rosenberg writing for the Court of Appeal, expressed this view at paragraph 21 of the judgment:

"It is apparent that both Stuckless and D.D. involved qualitatively different types of conduct and a different type of offender than in this case. Without in any way minimizing the seriousness of the conduct involved in this case – and I will return to that below – the fact remains that the offences committed by the Appellant here involved one victim and, compared to Stuckless and D.D., were committed over a relatively short time. The trial judge was wrong to consider the range of, "mid-to-upper single digit penitentiary terms," was the starting point for sentencing in this case."

In my view, while the Court of Appeal's statements of principle are applicable in all child sexual abuse sentence hearings, the specific ranges discussed, while flexible, do not necessarily apply to all instances of child sexual abuse. Having said that, I am aware of what the Court said in R. v. Stuckless (1998), 127 C.C.C. (3d) 225 paragraph 42:

"The absence of penetration does not automatically relegate the sexual abuse of children to the lower range of sexual offences. There is no question that additional force, collateral crimes and penetration, are aggravating factors, but their absence does not thereby transform them into mitigating circumstances."

My task is to apply the appropriate sentencing principles to the particular facts at hand in order to achieve a sentence that proportionate to Mr. M.'s circumstances and the crimes he has committed. Part of that process involves considering sentences imposed in prior cases in similar circumstances.

Related Sentencing Jurisprudence and Analysis

It is to be determined on the present facts where Mr. M.'s sentence should fall. In aid of his submission that a 15-month reformatory level sentence addresses all the principles of sentencing, Mr. Ritter points to a number of authorities from this Province. In R. v. M.D. [2007] ONCA 690, the Court of Appeal upheld a 12-month sentence in a short endorsement. The panel noted at paragraph 4:

"That a breach of trust and sexual assault involving minor children will almost always result in a jail sentence."

I understand this sentence to be distinguishing jail from a conditional sentence, an option that is plainly inappropriate in the present case.

I note as well other Ontario decisions that, to varying degrees, assist Mr. Ritter's position. In R. v. A.C. [2012] ONCA 608, the Court of Appeal dismissed a Crown appeal from a conditional sentence of 2 years less a day, for facts that are not entirely dissimilar, although lacking the oral sex element, from the present facts. The Court dismissed the appeal finding no error in principle. In R. v. Cerda [2008] ONCA 438, the offender groomed two young boys for 1-1/2 years and engaged in fellatio with them. An effective 18-month jail sentence was imposed by the Court. Finally, in R. v. A.G. to which I earlier referred, the Court of Appeal imposed 2 years for an offender who historically abused his 12-year-old niece repeatedly, including fondling, attempted intercourse, and attempted fellatio.

Ms. Elliott for the Crown, in addition to relying on D.D.'s instructive language, provided other, what I will call framework appellate decisions, in R. v. Woodward 2011 ONCA 610, [2011] ONCA 610, 276 C.C.C. (3d) 86 and R. v. D.M. [2012] ONCA 894, 295 C.C.C (3d) 195. While the principles discussed in these cases are important and guide the sentencing, I note again that the facts are different than those before me, and both cases involve offenders who were found guilty after trial.

There are, however, three cases worthy of specific mention because of their factual similarity to the case at bar. In R. v. Manjra [2009] ONCA 485, an adult neighbour was found guilty of sexual interference after trial for a single act of licking a 7-year-old girl's vagina. Seventeen months jail was imposed by the trial judge and upheld on appeal. Mr. Manjra had no prior criminal record and the trial judge accepted he was in a limited form of trust relationship with the child victim.

In R. v. Hutchinson [2006] O.J. 1790, the Court of Appeal upheld the equivalent of a 22-month sentence after trial, for a single act of fellatio on a 9-year-old victim. While the Court's endorsement notes that the crime involved a breach of trust, it does not explain the specific nature of the offender-victim relationship.

Finally, in R. v. R.R. [2014] ONSC 5491, a 51-year-old offender was found guilty after trial of two incidents of cunnilingus and two acts of inappropriate touching that occurred over a 10-year period, beginning when the victim was 4 years old. He was in a position of trust towards her who knew him her entire life, and indeed, R.R. suspected that she may, in fact, be his biological daughter. Justice Dunnett of the Superior Court imposed a 3-year sentence in those circumstances.

I pay close attention to these three cases because they all involve oral sexual acts perpetrated on children by offenders with no prior record who stood in a position of trust. I am aware all three only involved one victim and that Manjra and Hutchinson contain a single act of misconduct. Each offender was also found guilty after trial. While the present facts differ in each of these respects, I do find these cases of assistance in determining an appropriate sentence for Mr. M.

As I hope is apparent, I have considered a significant number of authorities in aid of determining the appropriate sentence to impose in this particular case. This non-exhaustive list of cases, and the facts and statements contained therein, have assisted me in focusing on what I believe are the relevant facts and sentencing principles to identify and adhere to. In the present case, I believe the following factors are relevant to my determination. First, on the aggravating side of the ledger:

1 – C.M.'s abuse occurred three times over an approximate 4-year period.

2 – The C.M. conduct was a profound breach of trust and fidelity owed to a child by a parent. The M.C. conduct was a lessor, but still significant breach of trust as she was in his care during the weekend in question. I consider both breaches of trust to be significant aggravating factors.

3 – The sexual conduct admitted involves an act of fellatio or oral sex and three forcible attempts to have the two girls touch the offender's penis. It does not include intercourse or any overt acts of violence.

4 – To be clear, the crime of sexual assault is inherently a crime of violence in the insidious way in which it has the potential to cause significant emotional and psychological damage. It is a, "evil crime." See R. v. D.A.I. [2012] SCC 5 at paragraph 1.

5 – As the Court of Appeal and Parliament instruct, general deterrence and denunciation are the paramount sentencing principles that must be advanced by my sentence in this case. This is not to ignore Mr. M.'s rehabilitation which is also important, only to note that it achieves secondary prominence in the circumstances.

6 – Regarding mitigating features, I note an early guilty plea. This is a plea that is meaningful as C.M. and M.C. have not had to testify at either a preliminary inquiry or a trial. This is a distinguishing feature of this case from some of the authorities that I earlier referred to.

7 – I accept as well that Mr. M. is remorseful for what he has done and as I noted earlier, he's amenable and open to rehabilitative efforts.

Having considered the facts of this case in the context that I believe I'm required to apply in a sentencing involving the sexual abuse of children, I return to the Court of Appeal's instruction in Woodward, paragraph 76 with Justice Moldaver writing for the Court:

"I wish to emphasize 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 offenders conduct and the life-altering consequences that can and often do flow from it. While the effect 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 and society's well-being, and the well-being of our children, must take precedence."

M.M. sexually abused his daughter on three occasions while she was between the ages of 8 and 12. On one occasion while she had a 12-year-old friend sleeping over, he unsuccessfully attempted to have the friend touch him sexually, only later to perform cunnilingus on his own daughter while she was ill and lying down. While I have not received Victim Impact Statements in this case, I accept that these were significant violations that carry the risk of long-term harm to both young girls, particularly C.M. The Court of Appeal said in D.D.:

"The horrific consequences of child sexual abuse are only too well-known."

Taking into account the respective breaches of trust, the particular sexual violations that occurred and Mr. M.'s early guilty plea, in my view the appropriate sentence in isolation are as follows: For the sexual interference count against M.C., 6 months jail. For the count involving his daughter, C.M., 24 months jail.

This leaves the issue of the present relevance of the totality principle. I am assisted by the following comments made by the Court of Appeal in R. v. D.G.F. 2010 ONCA 27, [2010] 250 C.C.C. (3d) 291 at paragraph 27:

"Although the totality principle must always be considered when sentencing for multiple offences, the sentence imposed cannot thereby become inadequate to properly recognize the overall gravity of this conduct that victimizes children in the most horrendous way."

In my view, in totality, 27 months jail is a fit sentence in the circumstances. I appreciate this is a penitentiary sentence, however, in my view, it is required, notwithstanding Mr. M.'s plea of guilt, given the particularly egregious and brazen way in which he abused his daughter and her friend.

Disposition

To arrive at 27 months, I will apportion the sentence as follows: In the count involving C.M. 24 months jail. In the count involving M.C. 3 months jail consecutive. There is a S.O.I.R.A. order for life. There is a D.N.A. order. There will be a Section 109 order for 10 years and life, depending on the two specific categories – Mr. M., this is a weapons prohibition. I don't anticipate it to be any issue and you'll received this in writing. There's been a request - and Mr. Ritter, I'm happy to amend the following two – I know we had some discussions about this previously, there's been a request for an order under 743.21. I will make that order. There will be no contact of any sort with M.C. No contact with C.M. except while she is in the presence of another adult. Would that be sufficient? I don't want a blanket no contact, but I want to have some restriction. I'd say while she is in the presences in the event this is by telephone communication.

MR. RITTER: I would think that would work, sir, yes.

THE COURT: There will be an order under Section 161 for 10 years as follows:

Count A as is usual, Mr. M. is prohibited from attending 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, school ground, playground or community centre.

B - he's prohibited from seeking, obtaining or continuing any employment whether or not the employment is enumerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years.

C - and again, I would ask for assistance in this regard; having any contact including communication by any means with a person who is under the age of 16 years, unless in the presence of another adult. And that's where I've stopped, Mr. Ritter, but I'm open to hearing an amendment to that qualification on the prohibition; Ms. Elliott as well. I don't mean to leave you out of this discussion.

MR. RITTER: Certainly sir, the term is not present – in the presence of an adult it covers off most of my concerns with respect to that. I still have, you know, concerns when somebody, you know, in very innocuous non-dangerous circumstance, if I can use that phrase, sir, that he be talking to somebody in line at a supermarket or someone under the age of 16, working – I don't think that happens a lot, but it's not unheard of someone under the age of 16 would be working in a store for example, a fast-food place and he goes up and he's at the counter. I don't think that's necessarily something that needs to be caught or prohibited in these circumstances. So I guess what the term was – not to be in those places unless it's – I don't know if the phrase is incidental contact, we sometimes use that in bail if that would work here, sir, save and except incidents where contact or contact when another adult is present.

MS. ELLIOTT: Your Honour, I seriously doubt that anyone that I know in the Crown's office would prosecute someone under 161 for an incidental contact in a line-up, that circumstance that Mr. Ritter suggests to be problematic to the order. I'm seeking the order go as Your Honour has suggested. Those are my submissions, Your Honour.

THE COURT: I think it's reasonable for Mr. Ritter on Mr. M.'s behalf to be concerned. I also think it – I have faith in the police and the prosecution service to not prosecute matters that are at the periphery or beyond of what Section 161 says. I note as well that the language is, "contact including communication by any means," which seems on its face to exclude association which seems to be the principle concern. What I'm going to do in the circumstances is, C, Madam Clerk will read, "Having any contact including directly communicating by any means with a person who is under the age of 16 years, unless in the presence of another adult." There is a $400 Victim Fine Surcharge I'm obligated by law to impose. I believe I have the jurisdiction to consider an application to extend the time to pay commensurate with Mr. M.'s circumstances, given what is of course, a significant sentence I've imposed.

MR. RITTER: Perhaps three years, sir.

THE COURT: Three years to pay. Is there any further from the other side?

MS. ELLIOTT: No, thank you, Your Honour other than to ask that the remaining counts if they haven't already been noted as withdrawn, please.

THE COURT: So ordered.

MR. RITTER: I think it's probably unnecessary, sir, but if the Warrant of Committal could be endorsed that he be – recommended that he be referred to any treatment programs in the Federal penitentiary. I suspect they would do that in any event, sir, but in all the circumstances, the sooner you get in there, obviously the sooner he'll be in a position to be considered for early parole.

THE COURT: Thank you, sir. Do we not have an officer?

CLERK OF THE COURT: We don't.

THE COURT: Could you call somebody?

CLERK OF THE COURT: I most definitely can.

MR. RITTER: I'm sorry, sir. I just thought of one further potential variance I may seek with respect to the 161. It's specifically with respect to the complainant in this matter, if there could be an exception or accept in accordance with a family court order or – I don't know if it would be sufficient to say except in accordance with the approval of Family and Children's Services or a family court order. I would suggest if Family and Children's Service are satisfied that there be contact on whatever terms they dictate, that that would be enough without potentially the family court order.

THE COURT: Ms. Elliott, any comment?

MS. ELLIOTT: Is it the suggestion that that be a blanket contact without the requirement and presence of another adult, because I would be opposed to that.

THE COURT: I think it is.

MS. ELLIOTT: I would be opposed to that.

MR. RITTER: My request is only with respect to the 161 – I shouldn't say only with respect to 161. I'm not making that same request with respect to 743 order.

THE COURT: I'm going to make that exception, Mr. Ritter. I'm just thinking in my head how to frame it. Madam Clerk, can we go back to the 161 just for a moment? Okay, Sub C – having any contact including directly 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 – no – does so under the supervision of another adult or except for contact with a family member under 16 years of age with the express approval of – is it Family and Children's Services – is that the....

MR. RITTER: I believe – yes, sir.

THE COURT: Madam Clerk, my scribble is probably illegible, so I can read it aloud again if you want or....

MS. ELLIOTT: Your Honour, I'd ask that it would be written approval so that there's documentation to support that.

THE COURT: I said, "express," but written may be clearer.

MS. ELLIOTT: Thank you.

THE COURT: That's the sentence.

CLERK OF THE COURT: Or except for.....

THE COURT: Contact with a family member under the age of 16 years with written approval....

CLERK OF THE COURT: Written approval....

THE COURT: ...of Family and Child Services.

CLERK OF THE COURT: Thank you.

THE COURT: I'm returning the Exhibits to the court as well as the material filed. I thank the parties for their assistance on this difficult matter.

Mr. M., good luck, sir.

MS. ELLIOTT: Thank you, Your Honour.

Released: June 21, 2018

S.N. Latimer, J. (Prov.)