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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. K.J., 2019 ONCJ 178

DATE: 2019 04 01

COURT FILE No.: Niagara Region 998 17 S2838

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.(K.)

Before Justice J. De Filippis

Heard on March 5, 2019

Reasons for Sentence released on April 1, 2019

Mr. H. Limheng.................................................................................... counsel for the Crown

Mr. M. Evans ................................................................................. counsel for the Defendant

De Filippis, J.:

[1] The defendant was found guilty of incest and sexual assault involving his half-sister. In my reasons for convicting the defendant, I explained why I accepted the victim’s evidence, referenced below.[^1]

[2] At the time of the events in question, the defendant was 30 years old and the victim was 18 years of age. They have a common father and different mothers. The victim grew up with her mother and extended family in northern Ontario. They met two or three years earlier when she decided to visit her “father’s side of the family” in Niagara Region. The victim and defendant quickly formed a strong bond and they decided to rent an apartment together.

[3] The victim testified that in the beginning, her relationship with the defendant was good but that “it changed when we became intimate with each other”. This sexual relationship began before they moved to the apartment together and continued afterward. She added that “things escalated and we were fighting all the time – I didn’t see [the defendant] as my brother but as my partner”. She also noted that that their status as half-siblings was known to all their friends but the sexual relationship was “really weird” and remained a secret between them. This went on for several months.

[4] On July 30, 2017, the victim came home around midnight. The parties were then not on speaking terms. In the early hours of the morning, she was sexually assaulted from behind by the defendant. She said that she “froze” and was “super-confused” and that “then he ejaculated”. She explained that:

As I was waking up, I came into consciousness and realized I wasn’t alone in my bed and [the defendant] had no pants on and he was groping me and having intercourse with me…I can’t 100% recall every single detail that morning, I just know he was having sex with me…I was on my side and he was pretty much spooning me as he was having intercourse.

[5] The defendant is charged with sexual assault on a particular date. The victim has disclosed, and I have accepted, that they had an incestuous relationship in the preceding months. That this was consensual as between the parties does not matter because the law prohibits such relationships. In any event, I have found that on the day in question she did not consent and he forced himself upon her.

[6] The victim provided a brief written statement about the impact of this crime upon her. She advises that she is constantly anxious, has frequent nightmares, and struggles with depression. I also have the benefit of a presentence report. The defendant does not have a prior criminal record. He describes a difficult childhood, having witnessed violence between his parents and was in foster care for a time. He has been diagnosed with ADHD and a learning disability. He left school in grade 10 and has had sporadic employment throughout his life. The defendant disclosed that he has been sexually active since the age of 14 and has had 30 partners in his lifetime. He denied ever having a romantic relationship with the present victim and does not admit responsibility for the offences.

[7] The Defence also filed letters from two family members and one friend of the defendant. They describe a man who is kind and generous. His uncle also reports that the defendant is distraught over this matter, that he cries when talking about it, and that “he wants therapy for what he keeps saying is his stupid mistake”. Having regard to the defendant’s comments in the presentence report, it is not clear to me why at this means – unless, through his uncle, he does accept blame for the offences.

[8] The Crown argues that the range of sentence in cases such as this is three to five years in custody. In submitting that I should impose three years, the Crown acknowledges the defendant has had a challenging childhood and has no prior criminal record. Counsel notes, however, that he has shown no remorse for serious offences that caused significant harm to the victim. The Defence submits that the Crown range of sentence is incorrect insofar as it is based on a breach of trust. Counsel suggests the range of sentence is one to three years and urges me to consider the bottom of that range.

[9] The ages of the parties, and the gap between them, are aggravating factors. However, I agree that this does not amount to a breach of trust. Apart from this point, the parties have properly identified the aggravating and mitigating factors and I have taken these into account.

[10] Section 718 of the Criminal Code provides that:

The fundamental purpose of sentencing is to protect society and 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 or to the community.

[11] R v L.(C.O.) [2010] O.J. No. 2820 is a decision with several similarities to the present matter. In that case, the 25 year old defendant was found guilty of incest and sexual assault with respect to his 16 year old half-sister. The victim awoke from sleep, on the first night the parties had met, to find the defendant sexually assaulting her from behind. She suffered psychological trauma and the defendant continued to deny responsibility. This defendant, unlike the present one, had numerous prior convictions, including several for assault. Justice Code imposed a sentence of two years less one day, after taking into account the equivalent of 18 months of presentence custody; that is, an effective sentence of 3.5 years.

[12] R v Dorah [2011] O.J. No. 4912 concerns a 26 year old defendant who sexually assaulted his 17 year old girlfriend. He was found guilty after trial. This was his first offence. Justice MacDonnell imposed a sentence of two years less one day.

[13] The judges in the preceding cases carefully reviewed the applicable principles. I need not repeat their analysis here. It will suffice to note that I am guided by their decisions.

[14] The offences of incest and sexual assault are sufficiently different such that it is not appropriate to stay one of them in accordance with R v Kienapple 1974 CanLII 14 (SCC), [1975] 1 SCR 729. However, it is proper to impose concurrent sentences. The most important considerations in this case are denunciation and general deterrence. Given the defendant’s personal circumstances, this must be balanced with the opportunity for rehabilitation.

[15] I conclude that a fit sentence is one of two years less one day in jail. Upon release from custody, the defendant will be on probation for one year on terms to include reporting as required to a probation officer, taking counselling as directed, and not to have any contact with the victim.

[16] The defendant will also be subject to the following ancillary orders: DNA, SOIRA, and s. 109.

Released: April 1, 2019

Signed: Justice J. De Filippis

[^1]: R v K.J. [2018] O.J. No. 6713