Ontario Court of Justice

Date: 2018-12-13

Court File No.: Newmarket 17-09605

Between:

Her Majesty the Queen

— AND —

RRF

Sentencing

Submissions: October 31, December 13, 2018

Delivered: December 13, 2018

Ms. Phyllis Castiglione ............................ counsel for the Crown

Ms. Megan Andrews ............................ counsel for the defendant

KENKEL J.:

Introduction

[1] RRF was a Muay Thai boxing coach. On a flight back from training in Thailand he suggested that his 14 year old student put her head on a pillow across his lap. He put his arm around her and a blanket over her. She fell asleep. She awoke suddenly when RRF put his hand underneath her shorts and cupped her buttocks. She moved to show she was awake and got up and walked to the washroom. RRF was convicted at trial of Sexual Assault s.271 and Sexual Interference s.151. The defence challenged the constitutionality of the mandatory minimum sentences in sections 271(b) and 151(b).

[2] The defence submitted initially that a 60 day conditional sentence would be appropriate. This sentence is not available where a minimum sentence applies – s.742.1(b). The Crown submitted that the constitutional issue does not arise as the appropriate sentence is in the range of 9 ­­-12 months.

The s.271(b) Minimum Sentence

[3] It is not necessary to consider the Charter challenge to the s.271(b) minimum sentence as both parties agree that the Sexual Assault count should be stayed pursuant to the rule in R v Kienapple, [1974] SCJ No 76.

The s.151(b) Minimum Sentence

[4] At least two trial courts have found the s.151(b) minimum to be unconstitutional – R v Drumonde 2018 ONCJ 336, R v JG 2017 ONCJ 881. The section 151(a) minimum has been declared of no force and effect in this province – R v ML 2016 ONSC 7082. In this case it is not necessary to review the constitutionality of the s.151(b) minimum as a fit sentence does not fall below the 90 day custodial term required by that section.

Aggravating Factors

[5] There are several aggravating factors:

• The accused was in a position of trust towards the victim.
• The accused failed to observe appropriate coach/athlete boundaries on several occasions leading up to the sexual act. He cultivated a personal relationship with his student.
• The significant impact of the offence on the victim and her family.

[6] With respect to the s.151 offence, the general age of the victim as being under 16 is captured in the offence so isn't an independent aggravating feature under s.718.2(ii.1). However, the specific age of the victim – 14 in this case – is still relevant and courts have found it to be an aggravating feature where the child was younger than 15.

Mitigating Factors

[7] RRF has no criminal record and has generally led a pro-social life to this point. His references state that he has been a person of good character. There are several further mitigating factors:

• He completed high school and a one year college certificate. He did well in school and there were no behavioural issues.
• He has had a steady record of employment.
• He does not have any issues with alcohol or drug abuse.
• He continues to have the support of his mother and his friends.
• He served one day in pre-trial custody credited as two days per R v Summers 2014 SCC 26.
• He has abided by the conditions of his release for over a year.

Range of Sentence

[8] The range of sentence for sexual interference involving touching was recently reviewed by Justice Linhares de Sousa in R v ML 2016 ONSC 7082 at paras 63-78. Her Honour found that where the Crown proceeds by indictment, sentences for sexual interference involving touching range generally between 6 months and 15 months incarceration. Eleven of the thirteen cases reviewed involved more serious sexual acts and many had aggravating features not present here such as younger victims (as young as 6 and 7), repeated acts, a criminal record, and prior related offences. In ML the accused had no record, a good employment history and the continued support of his family. He touched the bare breasts of his daughter's half-sister which was a breach of trust. The court imposed a 9 month custodial sentence.

[9] Her Honour also reviewed cases that resulted in sentences below the general range. In R v CF 2016 ONCJ 302 the summary mandatory minimum sentence of 90 days was imposed for sexual touching involving two victims. A 90 day sentence was also imposed in R v SA 2016 ONSC 5355 for, "a fleeting touch over clothes and not an intimate body part" but with accompanying conversation about having sex. A prior incident involving vaginal touching was not relied upon for sentence. Two incidents of touching over clothing with kissing led to a 90 day sentence in R v CL 2013 ONSC 277. A sentence of 8 months at trial was reduced on appeal to 90 days for direct penis/vaginal contact with 5 year old – R v TMB 2013 ONSC 4019.

[10] Other cases for similar or more serious acts than in this case with further aggravating features have resulted in sentences in the 90 day range – R v Barnes 2013 ONCJ 748, R v Macedo 2012 ONSC 2595. As the Crown pointed out, those cases and TMB predate the amendment to the statutory minimums.

[11] The defence cites a number of cases including R v DT 2011 ONCJ 106 which represents the lower end of sentence prior to the amendments to the Criminal Code. In that case the 15 year old victim's biological father rubbed her breast under clothing. He then reached under her pajamas and rubbed and squeezed her buttock. The court found the acts to be, "an extreme breach of trust" (DT at para 27), but imposed the statutory minimum sentence applicable at the time – 14 days.

[12] A year after the DT case Parliament substantially increased the statutory minimum penalties for sexual interference from 45 days on indictment and 14 days on summary conviction to one year and 90 days respectively – Safe Streets and Communities Act SC 2012 c.1. Whether or not the present s.151(b) minimum sentence ultimately survives constitutional scrutiny, in my view it's relevant to sentence that Parliament has signalled to the courts through that increase and various amendments to the sentencing provisions that sentences for sexual offences against children to date have not been adequate. I agree with Justice Linhares de Sousa that sentences for the sexual touching of children have otherwise generally been increasing as society becomes more aware of the significant impact of such abuse – R v ML at para 61.

[13] There are cases involving sexual contact at the mid to lower end of the scale which have resulted in the range of sentence submitted by the Crown, but those cases typically have included more serious conduct and aggravating features. In R v Langevin 2016 ONCA 412, repeated kissing and hugging of an 11 year old by a 40 year old man resulted in a 12 month sentence after trial. In R v RP [2006] OJ No 4250, the Court of Appeal reduced a sentence to 12 months for vaginal fondling on two occasions. A recent case where the Crown proceeded summarily found a 90 day sentence insufficient for repeated acts of sexual touching in the genital area – R v RW 2018 ONCJ 602, but at paragraph 35 Justice Rahman observed that the 90 day minimum is not restricted to offenders who plead guilty or otherwise represent the "best offender". Repeated acts of kissing a 10 year old by a violin teacher resulted in a 90 day sentence, but the significant factor that reduced the term despite those aggravating features was the fact that the offender was 85 years old – R v LW 2018 ONCJ 399.

[14] As Justice Rahman mentioned in RW, comparing cases over time to identify a range of sentence for s.151 offences is difficult given the changing statutory landscape. In An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons) SC 2005 c.32 Parliament introduced minimum sentences for s.151 offences (45 days where the Crown proceeded by indictment, 14 days where the Crown proceeded summarily). In 2012 the Safe Streets Act significantly increased the statutory minimums, confirming a general upward trend in these sentences. I agree with the conclusion in ML that although the maximum sentence is 14 years where the Crown proceeds by indictment, most sentences for sexual touching involving first offenders generally range between 6 and 15 months. For cases of lesser gravity where the Crown elects to proceed by way of summary conviction, some sentences may approach the upper reformatory range towards the 2 year less 1 day limit, but lower sentences are typical and a sentence of 90 days can be appropriate in particular cases even after trial.

Analysis

[15] RRF was days short of his 27th birthday at the time of the offence. His position as coach of the 14 year old victim involved a high degree of trust. That trust was magnified where the accused chose to become involved with the victim and her family on a personal level. It's essential to the development of young persons in sport that they have the guidance of committed adults who support their efforts. Parents and the community place a high degree of trust in coaches who have access to children on that basis. A breach of that trust not only has a devastating impact on the victim and her family, but also undermines the sport as a whole and creates fear and distrust within the community.

[16] The sentence in this case must take into consideration the significant impact the offence had on the victim, having regard to her age and particular vulnerable circumstances, including the victim's health and financial situation (s.718.2(a)(iii.1)). The shy girl that followed her brother into this sport and then flourished at a competitive level has now withdrawn completely. As her mother described she is no longer the outgoing, happy girl she was before the offence. She has needed medication and extensive private counselling and still struggles socially and at school. The impact on the family has been very hard, both emotionally and financially.

[17] Despite the limited nature of the touching, the impact on the victim in this case is not unusual. Several of the cases cited by both counsel with similar facts have mentioned comparable trauma from personality changes to depression to suicidal thoughts flowing from the impact of sexual touching on a young person. Sexual interference may have limited physical impact, but it destroys the trust the young person has in all adults. To realize at too young an age that the attention or interest shown by an adult was motivated even in part by a sexual interest completely undermines the victim's feelings of confidence and self-worth. It's the growing understanding and recognition of the impact of this offence on children that has led to increasing sentences for this offence over time – R v ML at para 61.

[18] The Crown submits that the accused engaged in "grooming" behaviour that led to the opportunity to commit the offence. The defence submits that the accused's act was random, an isolated lapse in judgement. The evidence at trial falls closer to the Crown's submission. RRF established a personal relationship with the victim and her family outside his coaching role. He took opportunities to be alone with the victim including watching a movie with her in her home and taking her to another gym where nobody else was present. At the other gym he gave her a massage which the evidence showed was only done in that sport prior to competition. On the Thailand trip he was seen sharing food with the complainant in an intimate manner. While the evidence does not go so far as to show the accused was acting throughout towards a plan for sexual activity with the complainant, it's plain that he ignored the limits of his coaching role. He established a close relationship with the complainant and her family. When the complainant was vulnerable he chose to take advantage of her while she slept. That's why the impact of the offence on the complainant was so serious despite the limited nature and brief duration of the actual touching.

[19] The short 60 day conditional sentence initially proposed by the defence is not proportionate to the gravity of the offence nor does it meet any of the principles of sentence set out in sections 718 to 718.2 of the Criminal Code. In this case even a longer conditional sentence with restrictive terms would be inadequate to denounce the conduct, promote a sense of responsibility in this offender, acknowledge the harm done to the victim and generally deter others in a similar position of trust.

[20] Section 718.01 of the Criminal Code provides that in cases involving abuse of children, denunciation and deterrence are the primary considerations on sentence. Courts have very few options other than imprisonment to achieve the objectives of denunciation and deterrence in this context – R v Inksetter 2018 ONCA 474 at para 17. Our Court of Appeal has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where the sexual violation is of a vulnerable victim by a person in a position of trust – R v DR, [2003] OJ No 561 (CA) at para 8. I find a custodial sentence is necessary in this case.

[21] The fact that RRF shows no remorse is not an aggravating factor but does distinguish this case from others where that mitigating factor was present. The fact that he is a person of otherwise good character unfortunately does not distinguish him from the majority of the persons described in the cases submitted by both parties. In cases involving sexual offences against children it's often the accused's prior good character that allows him to be in a position of trust to commit the offence.

[22] Even where denunciation and deterrence are the central focus, a sentence must still provide for the rehabilitation of the offender s.718(d). The sentence must be proportionate to the offence and the circumstances of the offender.

[23] Considering the breach of trust and the impact on the victim I find that a custodial jail sentence is required. Given the nature of the contact and the personal circumstances of the offender I find that a jail sentence of 90 days in addition to the pre-trial custody followed by a lengthy probation and restrictive ancillary orders would together be a fit sentence.

Sentence

[24] The Sexual Assault count is stayed.

[25] On the remaining s.151 count RRF will be sentenced to 90 days imprisonment to be served intermittently.

[26] A period of probation for two years will follow. In addition to the statutory conditions the following terms will apply:

• Report to probation within 5 days of release and thereafter as required.
• Reside at an address approved of by probation.
• Notify your probation officer in advance of any change of name or address or employment status.
• Have no contact directly or indirectly with the victim or any member of her immediate family.
• Not to attend within 100m of any known place of residence, employment or education of the victim.
• Take counselling with respect to sexual offences against children including Sex Offender Relapse Prevention or as directed by your probation officer.
• Sign any releases necessary to permit the probation officer to monitor your attendance and completion of counselling.
• You shall not seek, obtain or continue any employment, volunteer position or coaching position that involves being in a position of trust or authority towards a person under the age of 16 years.
• You're not to have any contact – including communication by any means – with a person who is under the age of 16 years except in the immediate presence of another person 21 years of age or older.
• Not possess any firearm or any weapon as defined by the Criminal Code.

[27] Sexual Interference is a designated offence under s.490.11(a). Section 490.012(1) requires that an order be made requiring RRF comply with the provisions of the Sex Offender Information Registration Act (SOIRA) SC 2004 c.10. The Crown proceeded summarily in this case so the term of the SOIRA order is 10 years – s.490.013(2)(a).

[28] Sexual Interference is a primary compulsory designated offence under s.487.04 of the Criminal Code. While in custody RRF will provide a sample of his DNA for registration on the national databank.

[29] The Crown has requested an order under s.161 of the Criminal Code for 10 years. Sexual Interference s.151 is a designated offence under s.161(1.1)(a). It is mandatory that a court consider making such an order, but the order is discretionary. Considering the circumstances of the offence including the events that led to the offence, and the offender's circumstances including the time spent on release without incident since, I find it necessary in the public interest to impose a 5 year s.161 order. RRF is prohibited from:

• Being within 1000 metres of any dwelling house where the victim ordinarily resides.
• Seeking, obtaining or continuing any employment, volunteer position or coaching position, whether or not that position is remunerated, or becoming a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.

[30] Where the Crown proceeds summarily a s.110 order is discretionary. The Crown requests that order should be made. RRF has been subject to a recognizance which included a no weapons/firearm term for over a year without incident. I've included a similar term in his probation. I don't find a further 110 order is required.

[31] There will be a victim fine surcharge as provided by statute and RRF will have 9 months to pay that amount.

Delivered: December 13, 2018

Justice Joseph F. Kenkel