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:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Section 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: April 9, 2019

Court File No.: Newmarket 17 06116

Between:

Her Majesty the Queen

— and —

P.C.

Before: Justice David S. Rose

Heard on: March 20, 2019

Reasons for Sentence released on: April 9, 2019

Counsel

I. Denisov — counsel for the Crown

S. O'Connell & J. Donich — counsel for the accused P.C.

Decision

Rose J.:

Convictions

[1] On January 18, 2019 I convicted P.C. of charges 2, 4, 6, and 8 on the Information, namely:

• (ii) Sexual Assault under s. 271 on 29 July 2017;
• (iv) Sexual Assault under s. 271 on 29 July 2017;
• (vi) Being a person in authority or trust toward the complainant, sexual touching a young person under s. 153(1.1) on 29 July 2017;
• (viii) Being a person in authority toward the complainant, sexual touching a young person under s. 153(1.1) on 29 July 2017.

[2] The convictions were registered after a trial lasting several days. The complainant on all charges was C.R., the niece of P.C.'s wife. This case proceeded as a summary conviction matter. These are my reasons for sentence.

Facts

[3] C.R. was 16 years old in July 2017 and was close with her cousin S, who is P.C.'s step daughter. That closeness led C.R. to arrive at P.C.'s house in late July 2017 for a stay-over visit. At the time P.C. lived in the house with his wife, C.R.'s aunt, their biological daughter I, and his step children X and E, who were his wife's biological children from a previous relationship.

[4] On July 29 there was a backyard barbeque put on by P.C. and his wife. Their family, plus C.R. and two of P.C.'s adult friends were there. At one point he retired to the basement with his friends, C.R. and his step daughter S. There is a punching bag in the basement, and everyone was taking turns having a go at it. Everyone was drinking to various degrees. There is also a small bedroom in the basement with a mattress on the floor. At one point C.R. went there to lie down because she was disoriented and dizzy from the drink. P.C. then went in, kneeled down and brushed his hands against her vagina over her shorts. That was the delict in Counts ii) and vi) above.

[5] Later in the evening, after P.C.'s guests had gone home and his wife had finished cleaning up from the barbeque he sat down in the living room. It was dark, and no one else was in the room. At that point Ms. C.R. entered the living room, and approached him. He pulled her on to his lap, grabbed her upper arm and put his fingers into her crotch, penetrating her vagina. That was the delict in Counts iv) and viii). C.R. then returned to her bedroom upstairs to try and wake her cousin S. She called the police. P.C. was arrested later in the evening by the police. Forensic DNA identified Ms. C.R.'s DNA on P.C.'s hands.

[6] I found that P.C. was in a position of trust to C.R. Any purported consent by her to the sexual touching was not operative in law.

Sentencing Evidence

[7] The Pre-Sentence Report (PSR) has a statement from the victim's mother who said that both she and her daughter intended to file Victim Input Statements. I take from that the victim and her mother are quite aware of the Victim Input Statement process, but in submissions Ms. Denisov advised me that no Victim Input Statements would be filed. The PSR has comments from the victim's mother which disparage P.C. and make recommendations as to sentence. Neither of those comments are helpful and both will be disregarded. This is not the first time that I have heard such comments from the family of victims. Now is another opportunity to remind Probation Officers and Victim Witness Assistance personnel that comments from Victims which disparage or dehumanize the offender and make recommendations for severe sentences grounded in vengeance have no place in the process. How the offence has affected the victim is of real assistance to the Court, and should be the focus of victim input.

[8] P.C. is 40 years old. The PSR shows him to have immigrated here from Brazil, and now a permanent resident. He is a first-time offender. P.C. is a carpenter by trade, operating his own company. He makes a good living. He works hard and provides for his family. As the Pre-sentence report said, he "…continued to minimize and deny his behaviour in the offences and blamed the victim for his predicament". The PSR suggested that the offending behaviour was opportunistic. I agree. There is no remorse and no acceptance of responsibility.

P.C. Absconds

[9] When the case appeared before me for sentencing on March 20, 2019 P.C. failed to appear. His Counsel were candid with the Court that they had no explanation for his absence. I issued a Bench Warrant for his arrest. The Crown then moved to continue through sentencing submissions on the basis that the offender has absconded.

[10] Section 475 of the Criminal Code permits the Court to continue a trial where the accused, or in this case the offender, has absconded. In order to resort to s. 475 the Court must be satisfied that the accused voluntarily absented himself for the purpose of impeding or frustrating the trial or its consequences, see R. v. Garofoli (1988), 27 O.A.C. 1 (C.A.), rev'd on other grounds [1988] 2 S.C.R. 1421, see also R. v. Taylor 2010 BCCA 58.

[11] The Crown called Det. Parker to give evidence at the s. 475 hearing. He said that he interviewed P.C.'s wife Ms. M, and found out that P.C. had been in regular contact with her until March 10. At that point she completed divorce proceedings. From then until March the 17th they text messaged and spoke on the phone. On March 16, a few days before the sentencing hearing, she tried to speak to P.C. on the phone and there was no answer. On Sunday the 17th she learned from him from the text messaging service WhatsApp that he had "gone home" meaning Brazil. He later said that he had no intention of coming back to Canada. Ms. M said he had emptied money from his bank account and his loan account, giving him about $30,000 in cash. When she learned of this she came to court and had herself removed as the Surety on P.C.'s bail.

[12] Based on this evidence and P.C.'s failure to appear I found that he had absconded. Sentencing proceeded in his absence. Mr. O'Connell and Mr. Donich advised that they had been retained to represent P.C. at sentencing, and were prepared to complete that in accordance with their retainer. I am grateful for their assistance in the circumstances.

Sentencing Positions

[13] The Crown asks for a global sentence of 18 months in jail, comprised of 18 months for the digital penetration and 6 months for the touching over the clothes to be served concurrently. The Crown argues that the PSR shows P.C. to have no remorse or acceptance of responsibility. The Crown argues that the principal concern in sentencing P.C. is denunciation and much less rehabilitation.

[14] Defendant asks for a global sentence of 8 months. The defence argues that the case has had a serious and adverse affect on him. He has lost his marriage and he is exposed to adverse immigration consequences flowing from the conviction.

The Kienapple Issue

[15] The Defence Argues that Counts ii) and iv) should be stayed under the principles enunciated in R. v. Kienapple, [1975] 1 S.C.R. 729. They argue that the sexual assault convictions (ie counts ii) and iv) are so factually and legally connected to the Sexual Exploitation convictions (ie counts vi) and viii) that the Sexual Assault charges should be stayed. In written submissions the Crown agreed with the Defence on this point.

[16] Factually I have found that P.C. touched C.R. while she was lying down in the downstairs bedroom. That touching happened over her clothes while he was in a position of trust to her. That resulted in convictions for Counts ii) and vi). I also found that when he was on the couch upstairs later that evening he reached under her clothes and digitally penetrated her vagina. That resulted in convictions for Counts iv) and viii). There were therefore two separate incidents each of which lead to convictions under ss 271 and 153(1.1) of the Code.

[17] Notably, the convictions under s. 271 do not carry a mandatory minimum penalty because C.R. was not under the age of 16 at the time. She was 16. Because P.C. was in a position of trust to C.R. there is no defence of consent. The convictions on counts ii) and iv) therefore do not carry mandatory minimum penalties, and the maximum penalty is 18 months jail. The convictions under s. 153(1.1) do on the other hand. The penalty for summary conviction proceedings under s. 153(1.1) is no less than 90 days in jail and no more than 2 years less a day. Parliament has therefore deemed convictions under s. 153(1.1) to carry heavier penalties than convictions under s. 271 in this circumstance. S. 153(1.1) is therefore the more serious offence, even if it penalizes the same delict.

[18] The elements of the offence of sexual exploitation are substantially the same or alternative to the elements of sexual assault. In this case the touching under s. 153(1.1) is really a particularization of the sexual assault under s. 271, see R. v. Prince, [1986] 2 S.C.R. 480; R. v. M. (S.J.) 2009 ONCA 244. They are both the same wrong committed in a different way, see R. v. Mazaros 2013 ONCA 682. I agree with Justice Ray who, in R. v. AC 2015 ONSC 4472, found that when convictions for sexual assault and sexual exploitation are entered for the same event a conditional stay should be entered for the sexual assault count. Counts ii) and iv) are therefore stayed.

Sentencing Range

[19] The decided cases demonstrate a wide range of sentences. As the Court of Appeal put it in R. v. M.B. 2013 ONCA 493, there is "a broad range of sentences for this offence, largely because there are infinitely variable ways in which an offence can be committed and a wide range of offenders" (M.B. at par. 21). Some of the variables which stand out are the age of the victim, the degree of remorse, the level of violence and violation of the victim. The prospect of rehabilitation and circumstances of the offender also weigh in, although to a lesser extent. The range of sentences shown in the sentences presented to me in the authorities range from 90 days in jail up to 27 months. See for eg: 90 days [R. v. Timan (unreported October 25, 2016 decision of M. McLeod J. of the Ontario Court of Justice)]; 9 months jail [R. v. M.B. (supra)]; 10 months jail R. v. B.C. 2016 ONSC 2192; 12 months jail R. v. Hart 2019 ONCJ 30; 14 months jail R. v. C.(C.) 2015 ONSC 5425; 17 months jail R. v. M.(G.) 2016 ONSC 5151; 18 months jail R. v. W.M. 2018 ONSC 5990; 27 months R. v. Hernandez-Perdomo 2018 ONSC 2591.

[20] Statutorily there are aggravating factors which must be recognized. S. 718.01 of the Code requires objectives of denunciation and deterrence to be given primary consideration when the victim is under the age of 18.

[21] Having considered the defence submissions I find that the immigration consequences from this case are moot. P.C. chose to flee Canada to escape his sentence. Having absconded he has abandoned any of mitigating effect of the immigration consequences on his sentence. Put bluntly, P.C. doesn't want to be in Canada if that means submitting to justice.

Appropriate Sentence

[22] The first touching was less invasive. It was a brief and over the clothes. The sentence for Count vi) will be 4 months in jail.

[23] Count viii) involved digital penetration of C.R.'s vagina. It was more invasive and as such should attract a longer jail term. P.C. will serve 10 months in custody for that charge to be served concurrently to Count vi). His combined, total sentence will therefore be 10 months.

Ancillary Orders

[24] The following ancillary Orders are now made:

(i) Section 110 Weapons Prohibition for 10 years;

(ii) Section 487.051 DNA primary designated on both counts;

(iii) SOIRA s. 490.013(2.1) for life;

(iv) When P.C. is released from custody he will be placed on probation for 3 years with terms that he:

• report within 3 days of his release from custody and thereafter as required;
• take counselling as directed by the Probation Officer and sign any necessary release of information forms as may be needed to ensure entry, attendance and completion of the counselling;
• not be in the company of any person under the age of 16 except when in the presence of your own child I M. C. or a child for which he has lawful custody;
• no contact directly or indirectly with C.R.;
• not to be within 500 meters you know C.R. to be, live, work go to school or frequent;
• not seek or continue any employment paid or not if in a position of trust to person under the age of 18;
• not to be in possession of any weapons as defined by the Criminal Code.

(v) He is not to have contact with C.R. while in custody under s. 743.21.

[25] I am grateful for the assistance of counsel.

Released: April 9, 2019

Signed: Justice Rose