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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Court Information
Ontario Court of Justice
Date: 2019-01-16
Court File No.: Kingston 17-5733A
Between:
Her Majesty the Queen
— AND —
Adam Hart
Before: Justice Kimberly E.M. Moore
Heard on: December 21, 2018
Reasons for Judgment released on: January 16, 2019
Counsel:
- G. Laarhuis — counsel for the Crown
- M. Mandelcorn — counsel for the defendant Adam Hart
MOORE J.:
Introduction
[1] Mr. Hart is before me for sentencing on one count of sexual assault, for two acts of fondling or masturbation committed against a client in the group home where he was working.
[2] I found Mr. Hart guilty after trial of both sexual assault and sexual exploitation of a person with a disability. The crown asked that I stay the count of sexual exploitation in accordance with R. v. Kienapple, [1975] 1 S.C.R. 729.
[3] Mr. Mandelcorn has filed an application on Mr. Hart's behalf, asking that I find that section 271 of the Criminal Code is unconstitutional, as it pertains to the mandatory minimum sentence.
FACTS
[4] In July 2017 Mr. Hart was employed as a community support worker with O[...]. C.C. was a client of O[...], and she had her grandson, L.C., stay from time to time at a respite home called W[...] House. This respite care started in 2016 and went on for about a year. July 2017 was the first time that L.C. stayed at W[...] House for an extended period of time. That was also the last time that C.C. ever utilized their services.
[5] L.C. has what is known as severe global developmental delays, ADHD, and Klinefelter Syndrome. L.C. receives testosterone shots monthly to ensure that his body develops as it should. L.C.'s level of understanding is not high, and although he is 15 years of age he communicates at the level of a five or six-year-old.
[6] On July 18, 2017 Mr. Hart and another employee of O[...] took several boys swimming at Artillery Park. While in the shower after they were done swimming, Mr. Hart put soap on L.C.'s penis and moved his hand up and down on L.C.'s penis.
[7] Later that same day, after supper and while the boys were getting ready for bed, Mr. Hart had L.C. leave the washroom and go into L.C.'s bedroom. Mr. Hart then masturbated L.C. briefly and also advised L.C. that he, or someone else, was going to cut off L.C.'s penis.
[8] L.C. disclosed this to his family, and it was clear that L.C. did not understand the sexual implications of Mr. Hart's actions, and was in fact distraught only about the possibility of having his penis cut off.
ISSUES
[9] The issues before me are as follows:
i. What is the appropriate range of sentence for Mr. Hart's offences?
ii. Is the mandatory minimum sentence set out in section 271 of the Criminal Code unconstitutional?
POSITIONS OF THE PARTIES
[10] The positions of Mr. Hart and the Crown were clearly articulated by Mr. Mandelcorn and Mr. Laarhuis. Both counsel agree that I have the jurisdiction to hear the constitutional issue, and apply it in the case at bar. I may not, however, if satisfied that section 271 of the Criminal Code is unconstitutional, make any order that such section is of no force or effect (R. v. Lloyd, 2016 SCC 13, [2016] S.C.J. No. 13).
[11] Both counsel provided me with caselaw as it pertains to sentences imposed where the facts are comparable to the case before me. Although some of these cases involved offenders who were in a position of trust or authority, none pertained to community or personal support workers, who offended during the course of their employment. I will address these cases, and others, when I determine the appropriate range of sentence in this case.
Defence
[12] On behalf of Mr. Hart I am asked to find that the mandatory minimum sentence of six months for sexual assault, is unconstitutional. I am asked to find that it is unconstitutional not only as it applies to a reasonable hypothetical offender, but also as it applies to Mr. Hart.
[13] Mr. Mandelcorn acknowledges that denunciation and deterrence are to be considered, and that sometimes jail is required to adequately protect society. However, I am asked to find that a jail sentence is not required to achieve these goals in the case before me. Mr. Mandelcorn carefully outlined the mitigating factors as they pertain to his client.
[14] Mr. Mandelcorn agrees that the appropriate way to approach the matter before me is to first determine the appropriate sentence, or range of sentence, in this matter. If the appropriate range of sentence includes a non-custodial sentence, or if the upper end of the range of sentence is that of 90 days (which would permit offenders to receive an intermittent sentence), then I am asked to find that the mandatory minimum sentence of 6 months results in a grossly disproportionate sentence for Mr. Hart. This submission is based on the unique factors of Mr. Hart's life and background, and most specifically his medical issues.
[15] While Mr. Mandelcorn had proposed a conditional sentence in his factum, he acknowledged at the sentencing hearing that such a sentence is not available, as it is expressly prohibited in section 742.1 of the Criminal Code.
[16] Mr. Mandelcorn submits that an appropriate sentence for Mr. Hart is that of a suspended sentence. If it was determined that incarceration is required, then I am asked to consider an intermittent sentence to permit Mr. Hart to address his medical and health concerns during the week.
[17] I am asked to find that sentencing Mr. Hart to a period of 6 months custody would result in cruel and unusual punishment, and as a result this offends section 12 of the Charter of Rights and Freedoms (hereinafter "Charter"). Even if I was not to find that such a sentence is grossly disproportionate for Mr. Hart, I am asked to find that in the situation of a hypothetical offender, such a sentence would be grossly disproportionate. Mr. Mandelcorn acknowledged very clearly that in considering a reasonable hypothetical, one cannot consider the most sympathetic offender, but rather there must be a realistic connection to the offence before the court. Mr. Mandelcorn submitted the reasonable hypothetical offender is one who:
- Has serious health issues
- Has no criminal record
- Was a victim of sexual abuse as a child
- Committed offences that are on the lower end of the spectrum and did not involve grooming or threats of violence if the victim disclosed.
[18] I note, that there is no inclusion in this consideration of a reasonable hypothetical offender, of the offender being in a position of trust or authority.
Crown
[19] On behalf of the crown, Mr. Laarhuis submitted that the appropriate range of sentence for the matter before me is that of 10-18 months. Mr. Laarhuis submits that it would be appropriate to sentence Mr. Hart to the lower end of that range.
[20] Given the range proposed by the crown, I am asked to find that there is no need to determine the issue of constitutional validity, as it is moot in this case.
[21] Even if I was to consider the constitutional validity of the mandatory minimum sentence in section 271, I am asked by the crown to note that the test is not simply whether the sentence is disproportionate, but rather whether the sentence is grossly disproportionate, and thus results in the sentence being cruel and unusual punishment.
[22] Mr. Laarhuis reviewed the mitigating and aggravating factors in this case, and reminded me that a number of the aggravating factors are statutorily aggravating. I am asked by Mr. Laarhuis to find that the issues pertaining to Mr. Hart's victimization as a child do not diminish from Mr. Hart's moral culpability. I am further asked to find that Mr. Hart's health issues may mean that it will be more challenging to serve a 10-18 month custodial sentence, but that his health issues do not result in such a sentence being grossly disproportionate. Nor would such a sentence shock the community in these circumstances.
EVIDENCE ON SENTENCING
[23] A pre-sentence report was prepared in this matter. It was filed as an exhibit. A Victim Impact Statement was prepared by C.C. and also filed. Mr. Hart testified at the sentencing hearing. I will briefly summarize these documents and the viva voce evidence.
Pre-Sentence Report
[24] Mr. Hart identified many collaterals to the probation officer preparing the pre-sentence report. Some of those collaterals declined to participate in an interview. Some could not be reached as the contact information was incorrect or the numbers were no longer in service. However, those collaterals that could be reached described Mr. Hart as caring and conscientious. Some expressed disbelief about the charges as they believed that the accused was only doing his job. It is always difficult to assess such comments when I do not know what information they had about the evidence and my findings. Further, Mr. Hart was not convicted of a sexual touching that took place in the context of his work, such as when bathing or cleaning a client. The touchings of L.C. were acts of gratuitous sexual touching. Further, Mr. Hart denied any touching of L.C.'s genitals and Mr. Mandelcorn was clear at the outset that this was not a case of L.C. being confused about the nature of the touching.
[25] Mr. Hart is single, never married, and has no children. He is not currently in a relationship, and advised that a past relationship was very unhealthy. Mr. Hart has never used non-medically prescribed drugs and does not have any issues with alcohol. No mental health issues were identified.
[26] In regards to the offences, the probation officer wrote the following:
The subject immediately told this writer that he was wrongfully accused for what he did and blamed the Court because they found him guilty, not the other way around. He denies any involvement and stated that he was only doing the duty of his job. He told this writer that he does not like children in that way. The subject also minimizes the impact it has had on the victim and his family.
[27] The pre-sentence report does not specify what Mr. Hart said that would demonstrate how he minimizes the impact on L.C. and his family.
Evidence of Adam Hart
[28] Mr. Hart testified at the sentencing hearing to explain or expand upon some of the contents of the pre-sentence report. I learned that Mr. Hart had his first open-heart surgery on the day he was born. He had another surgery when he was a toddler and yet another when he was 12 years old. When he was in his early 30's his cardiologist determined that he had a leaking valve, and needs a valve replacement. His cardiologist is waiting as long as safe before doing this surgery as a pig valve will only last for about 15 years.
[29] Mr. Hart continues to see his cardiologist every 3 months, and takes medication every morning and evening. Mr. Hart advised that stress can increase heart palpitations, and advised that he has been under significant stress since these charges were laid.
[30] Mr. Hart also has herniated discs in his lower back. For the last 4-5 months he has been getting treatment for these on a bi-weekly basis. He receives needles in his spine every two weeks. He has considered surgery but there are significant risk factors involved. He requires a certain type of mattress to avoid significant harm to his back.
[31] Mr. Hart agreed with Mr. Laarhuis that his job as community support worker required him to do physical activity with the clients. He disagreed however that his heart-problems and back problems did not interfere with his work, and said that sometime he had to be shadowed at work. He also agreed that he has been on his heart medications for 7-8 months and that he and his doctor are satisfied with the current regime.
[32] Mr. Hart also suffers from sleep apnea and uses a CPAP machine to sleep.
[33] Mr. Hart also shared with us that he had been a victim of sexual abuse when he was a child. Between the ages of 6 and 12 his mother sexually abused him and was also physically and emotionally abusive. When Mr. Hart was 17 he disclosed this and the matter was investigated. The matter proceeded to preliminary hearing and then a trial. His mother was acquitted of the charges. Mr. Hart did not speak to his mother again after the trial. She died in a motor vehicle accident when he was 25.
[34] Mr. Hart is not currently employed, and is supporting himself on RRSP's. He hopes to secure employment once the court process is complete, and recognizes that he will need to be retrained as returning to his previous employment is not an option. He does not wish to access Ontario Works or the Ontario Support and Disability Program as he prefers to do something more fulfilling with his time.
[35] Mr. Hart chose not to address the Court at the conclusion of submissions, as is his right pursuant to section 726 of the Criminal Code of Canada.
Victim Impact Statement of C.C.
[36] The Victim Impact Statement in this matter is not lengthy, but it is most certainly clear as to the impact Mr. Hart's actions had on L.C. and his family. This impact continues to exist to this date.
[37] This Victim Impact Statement prepared by C.C., L.C.'s grandmother and guardian, states as follows:
L.C., the victim, does still not fully understand what happened to him and the most traumatic part of this incident was the testifying. He had nightmares for approximately a week after and increased behavioural issues.
The impact it has had on the rest of the family, I, C.C., his grandmother and guardian, S.C., his grandfather and guardian and his brother and sister D.C. and M.C. was much worse.
Both S.C. and I have severe changes in sleeping patterns due to bad dreams in which the children are being hurt and we can't get to them to help them to the point of being afraid to go to sleep. We finally fall asleep due to sheer exhaustion but then wake up a couple of hours later in a panic. On a good night we might get 4 hours, if we are lucky, which also has hindered our daily functioning ability.
Our feelings rotate from guilt of not being able to protect L.C., to anger then helplessness. We have experienced extreme anxiety/panic attacks, lack of concentration, lost faith in our decision-making abilities, severe headaches and depression. We have alienated ourselves from family, friends and each other. We try to pretend that everything is okay where the children are concerned and go about our daily chores and normal activities but regardless of this I am sure they can feel the tension within the household.
S.C. has missed a lot of work time over the last year and was on stress leave from July 11 to August 14 because of his blood pressure being dangerously high due to the above mentioned facts and is now on medication.
We have tried to continue on with our normal family celebrations that we use to enjoy and now we just want them to be over. Everything has become a chore and is exhausting when you are trying to pretend that everything is ok but all you really want to do is scream. You don't want to do anything or see anybody so you do what you have to and forget the rest.
Because all of the children having special needs we are involved with a lot of different organizations and we have lost trust in them. We have become overprotective of the children and panic if they are out of our sight for any longer than five minutes. This has resulted in L.C. having increased behavioural issues, D.C. becoming extremely withdrawn and M.C. has had panic attacks and digestive issues.
S.C. and I have both had appointments with Dr. S. H., our family physician due to our issues and according to him because we have not turned to drugs, alcohol or had suicidal thoughts we are both doing as well as can be expected but suggested that it might be helpful to seek psychological help. S.C. has a minimal health plan therefore we have had to go it on our own because of the cost.
I also mentioned the children's issues and asked if I should be setting up an appointment with him and he feels that we are doing the best that we can do and once things are over everything will return to normal.
Our family has lost over a year of life because of this incident. We have not lived we have just merely existed. It is going to take a long time for this family to mend, to trust and to begin to live again.
PRINCIPLES OF SENTENCING
[38] The purpose, principles and objectives of sentencing are set out in Part XXIII of the Criminal Code. I will address a number of these at this time.
General Principles
[39] Section 718 of the Criminal Code is the starting point for all sentencing matters. This section states as follows:
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.
[40] As L.C. was a child at the time of the offence, section 718.01 of the Code sets out a further objective, stating that, "[w]hen 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."
[41] Mr. Hart has lost his employment as a result of his conviction. He will be placed on a SOIRA order for 10 years. He has no criminal record. While he has no insight into his offending, I am aware that he continues to maintain his innocence. While it is hoped that the experience of the trial is such that Mr. Hart will be specifically deterred in the future, it is more difficult to assess prospects of rehabilitation in the absence of remorse.
[42] Many academics, lawyers and judges have commented on the true impact of general deterrence in sentencing. In cases where there is little to suggest that the decision of the court will be learned by those not present in court, it is somewhat difficult to determine whether much weight should be placed on general deterrence. In the case before me I am aware that Mr. Hart's colleagues and employers are aware of the charges and conviction, and aware that there will be a sentence imposed. As such, in a case such as this one, I have faith that those persons who also hold a position of trust towards vulnerable adults and children, and who may be considering committing such an offence, will be aware of the consequences of same if they make that decision.
Statutory Objectives and Principles
[44] Other relevant sentencing principles that are applicable to the case before me, given the nature of the sexual offence committed, are set out in sections 718.2(a)(ii.1), (iii) and (iii.1) of the Code, which state as follows:
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
[45] L.C. was 15 years of age at the time of the offences. Given L.C.'s intellectual disability, L.C. functions as a 5 or 6 year old child would.
[46] Mr. Hart was employed with O[...] as a community support worker. As such, he was a paid employee, entrusted with caring for vulnerable adults and children.
[47] C.C. provided a victim impact statement. It is very clear that the impact on L.C. and his family is significant. I will address this further when I discuss the aggravating factors in this case.
[48] Further sentencing principles that I must consider in this matter include those of proportionality, parity and restraint.
Proportionality
[49] The principle of proportionality is set out in section 718.1 of the Code, wherein Courts are reminded that, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
[50] The Supreme Court of Canada addressed the issue of proportionality, which is defined in the Criminal Code as the fundamental principle of sentencing, in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. No. 13, at paragraph 37:
The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 533:
It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.
[51] The principle of proportionality reminds Courts that they have an obligation to assess not only the offence, but also the specific offender being sentenced. Sentencing is neither scientific nor formulaic. It requires a careful balancing of factors.
[52] In the case before me, I must balance the facts of the case with the information known about Mr. Hart. It is acknowledged by all that the offences are very serious, and they are a significant breach of trust, but that on the spectrum of criminal offending, Mr. Hart's actions fall closer to the lower end of the spectrum. Mr. Hart has suffered significant health issues throughout his life pertaining to his heart, and continues to deal with these issues at this time. He has also been receiving injections as treatment for a herniated disc over the last 4-5 months. Mr. Hart was also a victim of sexual assault, committed upon him by his mother when he was between the ages of 6 and 12. His mother was acquitted after trial.
Parity
[53] Section 718.2 (b) of the Criminal Code states that "a sentence should be similar to sentences imposed for similar offenders for similar offences committed in similar circumstances."
[54] In R. v. Macri, [2012] S.J. No. 386 (Prov. Court), the Court stated, at paragraph 40, that, "[t]he principle of parity is embodied in section 718.2 (b) of the Criminal Code. It dictates that an offender's sentence should be similar to sentences imposed on similar offenders, for similar offences, committed in similar circumstances. Parity, however, does not mean uniformity. The proportionality principle, and the individual nature of sentencing means that disparity can exist where circumstances warrant. Such disparities, however, should not be egregious, or unjustified."
[55] In sentencing Mr. Hart, I will need to address the issues of sentencing a person who was in a position of trust and authority such as Mr. Hart was, for the two acts of fondling. I must also consider the presence and absence of aggravating factors.
Restraint
[56] In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, the Court stated as follows at paragraph 17:
Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances", while s. 718.2(e) provides that [page80] "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercised in sentencing offenders to prison…
[57] Even where there is a mandatory minimum sentence, the principle of restraint still applies. In R. v. Shariff, [2015] O.J. No. 5376 (C.A.) the Court held, at paragraph 10:
The trial judge noted that the appellant was a relatively youthful first time offender. The trial judge also found the appellant had good prospects for rehabilitation. Indeed, in his reasons, he described those prospects as "excellent". The case law from this court from R. v. Priest (1996), 30 O.R. (3d) 538 forward emphasizes the need for restraint when sentencing a young first offender with good prospects for rehabilitation. The appellant faced a minimum 5 year sentence for the offence of discharging a firearm at an unknown person with intent to endanger life. In the specific circumstances of this case, it is our view that it was an error in principle for the trial judge to have gone beyond that mandatory minimum. Accordingly, we will reduce the sentence by an additional 1 year.
[58] Mr. Hart is not a young offender – he is 39 years of age. He is, however a first offender. I will consider this, and the need for restraint, as I asses the facts of this case.
MITIGATING FACTORS
[59] Mr. Hart has no criminal record, and has maintained a pro-social life until these offences were committed.
[60] He has complied with his release conditions and cooperated fully with the author of the pre-sentence report.
[61] Mr. Hart completed his education, and received his diploma as a personal support worker. He was offered employment with O[...] before that education was even completed. He was employed with O[...] for twelve years prior to committing these offences.
[62] Mr. Hart has a support network which includes family and friends. As indicated previously, a number of his supports expressed disbelief to the probation officer about the charges. The only input in the pre-sentence report that was somewhat troubling to me was the input of Mr. Hart's father, Roger Hart. His comments, which include accusations of responsibility against the victim and his family, as well as calling the court system "bullshit" cannot, and will not, be held against Mr. Hart. Mr. Hart is not responsible for the comments or beliefs of his father. However, when assessing the nature of support that Mr. Hart will have in the future, I have no expectation that Mr. Hart's father will assist with rehabilitation. I have often said that when one's support network is able to balance accountability for one's actions with the love and support that is needed, this bodes well for rehabilitation.
AGGRAVATING FACTORS
[63] Mr. Mandelcorn asks that I find that Mr. Hart's actions reflect a momentary lapse in judgement. I disagree. If the only incident before me was the touching that took place in the shower, I may be able to make such a finding. However, that he committed a further fondling of L.C. later that same evening would not permit me to make the finding I am asked to. Mr. Hart's decision to sexually assault L.C. again that evening is far more consistent with him having been emboldened due to getting away with his actions the first time, and thus taking advantage of a further opportunity hours later. While this is not a case of grooming, or conduct over a long-period of time, I do not find that it was a momentary lapse in judgment. I find it aggravating that he committed a second sexual offence on the same day, and further find that the second incident had a more significant impact upon L.C.
[64] Mr. Hart's actions represent a significant breach of trust. He was a long-time employee at O[...]. His position as a community support worker was such that he was entrusted by people to care for their vulnerable loved ones.
[65] The Victim Impact Statement clearly speaks for itself in this matter. There is a significant impact on L.C. and his family. As a result of Mr. Hart's actions, C.C. can no longer trust anyone to care for L.C.. As such, this family can no longer access the respite that they need so as to enable them to better care for L.C. and his siblings. It is fortunate that L.C. does not truly understand, due to his disability, what happened to him when Mr. Hart sexually assaulted him. However, it is still clear that the process of going through court has had an impact upon him.
OTHER FACTORS
[66] I also considered the following factors, which are neither aggravating nor mitigating. The presence of these factors would have resulted in my considering these to be aggravating. The absence of these does not however mitigate any sentence that would otherwise be appropriate:
i. There was no physical violence used by Mr. Hart against L.C.
ii. Mr. Hart did not threaten L.C.
iii. Mr. Hart did not engage in grooming with L.C.
[67] I will now address a number of other factors, specifically the following:
i. Lack of remorse or insight
ii. Mr. Hart's health issues
iii. Mr. Hart's victimization as a child.
[68] It is clear from the pre-sentence report that Mr. Hart has no insight into his offending, or into the impact of his actions on L.C.'s family. I do not find that Mr. Hart's lack of remorse, or his lack of insight, are aggravating factors, and it would be inappropriate to increase the sentence due to this factor. However, I do find that this is a relevant consideration as I determine the ability to rehabilitate Mr. Hart, and specifically deter him from reoffending in the future.
[69] This principle was enunciated in R. v. Shah, 2017 ONCA 872, [2017] O.J. No. 6141 (C.A.), at paragraph 8:
8 Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, [1999] O.J. No. 251 (C.A.), at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83; R. v. J.F., 2011 ONCA 220, 105 O.R. (3d) 161; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed, and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82; R. v. B.P. (2004), 190 O.A.C. 354 (C.A.), at para. 2.
[70] Mr. Hart testified as to his life-long challenges with his heart issues. He had a number of surgeries as a child, between infancy and the age of 12. He also faces other medical challenges including herniated discs in his back and sleep apnea. He received regular medical care for these issues.
[71] There will be cases where an accused's physical or mental health concerns are such that they reduce the offender's moral culpability, or are otherwise a mitigating factor on sentence. In R. v. Adamo, [2013] M.J. No. 302 (Man. Q.B.) this was a significant consideration by the Court, which ultimately found the offender's moral culpability to be reduced due to his mental health challenges.
[72] In that case a search warrant was executed at Mr. Adamo's home. Firearms and ammunition were located in his shed. The issue before the Court on sentencing was whether section 95 was unconstitutional. I note, of interest, that this issue, of course, was addressed a number of years later, in R. v. Nur, 2015 SCC 15, [2015] S.C.J. No. 15. The Court in R. v. Adamo, found that section 95 was unconstitutional and declined to impose the 5-year minimum sentence. The Court sentenced the offender to 6 months in custody. In addressing the issue of the offender's health, the Court stated as follows at paragraphs 38-42:
38 However, as the Crown points out, if an offender's actions are unconnected to their mental illness, the result is usually quite different. In R. v. Peterkin, [2003] O.J. No. 4403 (QL) (Ont. S.C.J.), the offender, subsequent to committing a robbery with an imitation firearm, suffered a serious brain injury. He had to re-learn many basic skills and suffered fragile health. Durno J. found there was no basis to reduce the sentence on account of Mr. Peterkin's special needs, or to conclude they were less likely to be met while in prison than in the community. He observed that correctional authorities are obliged under the Corrections and Conditional Release Act to provide essential healthcare.
39 In R. v. Shahnawaz (2000), 149 C.C.C. (3d) 97, the majority of the Ontario Court of Appeal refused to take into account psychiatric evidence that the offender was suffering from post-traumatic stress disorder because of the lack of connection between his mental health and his offending behaviour. It concluded that his health needs while in custody, for the most part, were the responsibility of corrections authorities. A similar view was also expressed in R. v. Wust (1998), 125 C.C.C. (3d) 43 (B.C.C.A.) (rev'd on other grounds 2000 SCC 18, [2000] 1 S.C.R. 455).
40 Here, Mr. Adamo's deficits and impairments resulting from the brain injury, combined with a psychosis secondary to the injury, left him in a highly vulnerable state. Certainly, the deficits and impairments are permanent and immutable. Dr. Waldman was uncertain of how long Mr. Adamo had been suffering from the psychosis. However, both his comments to police and his behaviour while in pre-trial custody in the Winnipeg Remand Centre, described later herein, suggest he was suffering from the psychosis at those times.
41 It is difficult to understand from Mr. Adamo himself exactly what led to him having the gun. On this, Dr. Waldman says in his September 2011 report (p. 7):
(1) ... based on my assessment, that Mr. Adamo lacks judgment as a result of his significant cognitive impairment, that he has very poor impulse control, and his paranoia, along with those difficulties, puts him at risk for either engaging in the behaviour that he did (i.e., writing lists of people that he believes pose a risk to him, and keeping a gun and bulletproof vest for protection) or making a poor decision to hold the items identified for somebody else, whom he will not identify, which he continues to maintain as the events leading up to his charges in our assessment.
42 Overall, the evidence satisfies me that Mr. Adamo's mental illness and disability were directly connected to his committing these offences.
[73] Thus, the significance in that case was that the offender's health issues were directly related to his offending.
[74] Other courts have also addressed how courts should consider the health challenges of an offender on sentencing.
58 The ill health of an offender is a factor worthy of some consideration in sentencing: R. v. Kluke, 2008 ONCA 181, at paras. 3-4; R. v. Eshaque, [2002] O.J. No. 511 (C.A.) (QL), at para. 1; R. v. Bansch, [1997] O.J. No. 1691 (C.A.) (QL), at para. 3; R. v. Scobie, [1997] O.J. No. 2286 (C.A.) (QL), at para. 13; R. v. L.J.S., [1997] O.J. No. 2286 (C.A.) (QL), at paras. 10, 13; R. v. Aitkens, [1993] O.J. No. 3995 (C.A.) (QL), at para. 1; R. v. Lysack, (1988) 26 O.A.C. 338 (C.A.), at pp. 339-340; W.(S.), at para. 8; Gianfelice, at pp. 243-4; Anderson, at para. 3; R.(A.), at p. 191; R. v. Dinn (1993), 104 Nfld. & P.E.I.R. 263 (Nfld. C.A.), at p. 267. Whether leniency on account of precarious physical health is warranted becomes very much a case-specific inquiry. Mr. M.E., at age 68 years, suffers from various physical ailments.
59 However, the Federal correctional authorities "are obliged under the Corrections and Conditional Release Act to provide inmates with essential health care": R. v. Aquino, [2002] O.J. No. 3631 (C.A.) (QL), at para. 2. While the increased hardship of suffering significant health problems is a factor to be considered in sentencing, it does not amount to an exceptional circumstance in the absence of evidence that the health concerns cannot be addressed in the correctional environment: R. v. Drabinsky and Gottlieb (2011), 2011 ONCA 582, 274 C.C.C. (3d) 289 (Ont. C.A.), at paras. 169-170 (appl'n for leave to appeal filed by Drabinsky, [2011] S.C.C.A. No. 491); R. v. R.J., 2009 ONCA 138, at para. 16; R. v. Weig, 2009 ONCA 861, at para. 5; R. v. J.G.R., 2009 ONCA 116, at paras. 14, 16; Duncan, at para. 4; R. v. Taipow, [2005] O.J. No. 4643 (C.A.) (QL), at paras. 4, 7-8; R. v. MacDonald, [2001] O.J. No. 4926 (C.A.) (QL), at para. 1.
[76] In R. v. R.W., [2018] O.J. No. 4610 (O.C.J.), the Court relied upon R. v. M.E., supra, and held, at paragraph 10, that, "the ill health of an offender is a factor that a sentencing court may consider, but whether it results in leniency will depend on the circumstances of a particular case. Health concerns do not amount to an exceptional circumstance in the absence of evidence that those health concerns cannot be addressed in a correctional environment."
[77] I am satisfied that Mr. Hart suffers from significant health issues. I am also satisfied that he requires regular medical attention to address these issues. I do not find that these health issues mitigate Mr. Hart's actions, and the offences committed. Nor do I find that his health issues reduce his moral culpability. The Ministry of Community, Safety and Correctional Services has the responsibility to adequately address Mr. Hart's health issues while he is in custody.
[78] I also learned that Mr. Hart was a victim of child sexual abuse, at the hands of his mother. In R. v. Young, [2013] M.J. No. 64 (C.A.), the Court addressed an appeal by the offender who had plead guilty to sexual assaulting boys over a 3-year period. The offender was a Scout leader and the victims were Scouts. The trial judge had been advised that the offender had been abused by his own Scout leader when he was a child. The Court stated the following at paragraph 18:
18 The accused also asserts that the judge failed to appropriately factor in mitigating circumstances. Again we disagree. The judge accepted that the accused's offending behaviour is rooted in his own victimization. He noted the accused's lack of prior criminal record and his "unequivocal remorse," his fragile mental state as evidenced by his two suicide attempts, his efforts to seek treatment in jail and his cooperation with Dr. Ellerby. He stated that, in many respects, the accused was a "tragic figure." However, the judge found that the accused's background did not reduce his moral culpability for the offences that he committed over an extensive period of time and with premeditation. Deference is owed to this finding. The accused's tragic background was a factor that the judge properly considered. We see no reversible error with respect to the weight that he gave to this factor.
[79] I find that I must consider that Mr. Hart was a victim of child sexual abuse, and that this may have played a role in his offending. However, as he has no insight into the offence he committed against L.C. it is difficult to assess the extent of the impact of his own victimization on the choices he made on July 18, 2017.
RELEVANT LEGISLATIVE PROVISIONS
[80] Section 271 of the Code states as follows:
Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
[81] The Crown proceeded summarily in this matter. Thus, the maximum sentence is that of two years less a day, and the minimum sentence to be imposed is that of six months.
[82] Section 1 of the Charter sets out that, "[t]he Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
[83] Section 12 of the Charter states that, "[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment."
MANDATORY MINIMUM SENTENCES
[84] The majority of Supreme Court of Canada cases dealing with challenges to mandatory minimum sentence as it pertains to section 12 of the Charter, are Controlled Drugs and Substances Act or firearms offences. The frameworks for such analyses under section 12 of the Charter were set out in R. v. Smith, [1987] S.C.J. No.36; R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39; R. v. Nur, 2015 SCC 15, [2015] S.C.J. No. 15; and R. v. Lloyd, 2016 SCC 13, [2016] S.C.J. No. 13.
[85] In 2017 the Ontario Court of Appeal heard the matter of R. v. Morrison, 2017 ONCA 582, [2017] O.J. No. 3600 (C.A.). The Court in that matter held that the mandatory minimum sentence in section 172.1 of the Criminal Code was unconstitutional. Leave to appeal to the Supreme Court of Canada was granted, [2017] S.C.C.A. No. 290, and the appeal was heard on May 24, 2018, with judgment reserved. In R. v. Morrison, supra, the Court of Appeal held as follows at paragraph 134, "I conclude that Canadians would find it abhorrent and intolerable to their sense of decency that offenders whose blameworthiness comes close to negligence or whose comparative blameworthiness is similarly less serious would be sentenced to a minimum of one year in jail."
[86] In that case the trial judge had found that a 4-month sentence would be appropriate if not for the mandatory minimum sentence. As such, he found that the mandatory minimum sentence was unconstitutional. In the end, the trial judge imposed a 75-day sentence, to be served intermittently, and to be followed by probation.
[87] Despite upholding the trial judge's finding in R. v. Morrison, supra, the Court also reiterated the test to be applied, stating as follows at paragraph 116:
116 The test for whether punishment is cruel and unusual under s. 12 asks whether it is grossly disproportionate to what would be appropriate punishment. This is a "high bar"; the punishment must be "more than merely excessive": Lloyd, at para. 24. See also R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072. Punishment is cruel and unusual if it is "so excessive as to outrage standards of decency," such that Canadians would find it "abhorrent or intolerable": R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.
[88] This same principle is enunciated in R. v. Morrisey, supra, at paragraph 26:
26 Section 12 of the Charter provides a broad protection to Canadians against punishment which is so excessive as to outrage our society's sense of decency: Smith, supra, at p. 1072; Goltz, supra, at p. 499; R. v. Luxton, [1990] 2 S.C.R. 711, at p. 724. The court's inquiry is focussed not only on the purpose of the punishment, but also on its effect on the individual offender. Where a punishment is merely disproportionate, no remedy can be found under s. 12. Rather, the court must be satisfied that the punishment imposed is grossly disproportionate for the offender, such that Canadians would find the punishment abhorrent or intolerable. As I said in Goltz, at p. 501, "the test is not one which is quick to invalidate sentences crafted by legislators."
[89] The Ontario Court of Appeal in R. v. Morrison, supra, carefully summarized and articulated the manner in which the Court is to approach applications such as the one before me, stating as follows at paragraph 117:
117 The Supreme Court has developed an analytical framework for assessing the constitutionality of mandatory minimum sentences under s. 12 in R v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130; and R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773. Lloyd addressed a one-year minimum sentence under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA"). I extract the following principles from that decision:
• A sentence will infringe s. 12 if it is "grossly disproportionate" to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender.
• A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court or if the law's reasonably foreseeable applications will impose grossly disproportionate sentences on others.
• First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code.
• Second, the court must determine whether, in view of the fit and proportionate sentence, the mandatory minimum sentence is grossly disproportionate to the offence and its circumstances. If so, the provision violates s. 12.
• The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.
[90] The Ontario Court of Appeal made it clear that the starting point for any analysis is ascertaining the appropriate range of sentence. Numerous Courts have held that not only is the starting point that of considering the appropriate range of sentence, but also, if the range of sentence includes the mandatory minimum sentence, or is not significantly at odds with it, then the trial judge ought not consider the issue of whether the impugned section is unconstitutional.
[91] In R. v. Lloyd, supra, at paragraph 18, the Court stated as follows:
18 To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as a condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-making process.
[92] Lower Courts have relied upon this passage in R. v. Lloyd, supra, in declining to address the constitutionality of impugned legislation where the trial judge determines that the appropriate range of sentence includes, or exceeds the mandatory minimum sentence.
[93] In R. v. A.R., [2018] O.J. No. 4679 (O.C.J.), the Court stated as follows at paragraph 25,
25 In conclusion, moving to the second step from Nur, a six-month sentence is not disproportionate -- grossly or otherwise -- in A.R.'s circumstances. Given my jurisdiction as a provincial court judge, I decline to consider the constitutionality of the provision in other hypothetical circumstances: Lloyd, at para. 18. I do not propose to formally suggest any sort of range for the creation of written child pornography. Each case gets determined on its own facts. I am satisfied, however, that the bottom of the range begins somewhere close to the six month statutory minimum. In the present case, given the limited duration of the conduct, the inclusion of his stepdaughters' photographs, A.R.'s status as a first offender, and the other mitigating features present, I am imposing a sentence of seven months jail, which I consider near or at the bottom of the present range for this form of conduct.
I agree with the Crown submission that if there is no s. 12 breach on the particularized inquiry, given the make-up of the defendant before the court, there should not be a hypothetical that grounds a breach. I have found that the mandatory minimum sentence is not grossly disproportionate in the particularized inquiry set out in this judgment. As such, given the characteristics of the particular defendant before the court, it is unlikely that any reasonable hypothetical offender could ground a s. 12 breach: See R. v. Q.(E.M.) para 169 - 171 for the sourcing of the Crown's submission in this regard.
[95] The Court imposed the mandatory minimum sentence, less the pre-sentence custody that had been served.
[96] Felix, J. dealt with this issue again in R. v. Despot, [2018] O.J. No. 4265 (O.C.J.). The offender plead guilty to possession of child pornography. The mandatory minimum sentence was that of one year. The Court held as follows, at paragraph 83, "[i]n this case I have determined that a fit and proportionate sentence is 17 months jail. While I have jurisdiction to consider the constitutionality of the minimum mandatory sentence in this case, I respectfully decline. I do not have jurisdiction to declare the section of no force and effect. The proportionate sentence in this case exceeds the mandatory minimum sentence. As such, the analysis of the Constitutional issue would have no impact on the sentence in this case."
[97] The Superior Court of Justice addressed this issue in R. v. D.L., [2018] O.J. No. 3220. The Court found the offender guilty of sexual assault and sexual interference upon a child who was the equivalent of a niece. The mandatory minimum sentence for the offence of sexual interference was that of 45 days. The Court held that an appropriate sentence for D.L. was that of 6 months. The Court stated as follows, at paragraph 26, as it pertains to the constitutional challenge, "[h]owever, before I analyze and rule on any of these legal arguments I will first determine the appropriate sentence. If I determine the offender is to be sentenced to a period in jail of greater than 45 days, these legal arguments are moot."
SENTENCING FOR SEXUAL ASSAULT
[98] Sentencing for sexual offences committed against children has evolved over the past two decades. There are numerous mandatory minimum sentences applicable for sexual offences committed against children. Despite these mandatory minimum sentence, the principles enunciated in the Criminal Code are still applicable, and any sentence imposed must be proportionate to the gravity of the offence and the circumstances of the offender.
[99] In R. v. D.D., [2002] O.J. No. 1061 (C.A.), the Court assessed the appropriate range of sentence for horrific sexual offences committed against four young children over a period of 2-7 years. The sexual abuse was extensive and included anal intercourse.
[100] I refer to this case not to endorse any sort of sentence, as the case is simply too incompatible with the facts before me. Rather, I refer to this case for the principles that are to be considered and applied in sentencing offenders who commit sexual offences against children.
[101] Moldaver, J.A. (as he then was) stated the following at paragraphs 35-37:
35 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.
36 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 horrific consequences of child sexual abuse are only too well known.
37 Two such consequences were identified by the Alberta Court of Appeal almost ten years ago. In R. v. S.(W.B.) and R. v. P.(M.) (1992), 73 C.C.C. (3d) 530 at 535, the court, composed of Major J.A. (as he then was) and McDonald and Quigley JJ. made the following observations:
When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious psychological harm to the victim.
When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent.
One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.
Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child - that is, he or she may abuse a child sexually. There is no empirical way of proving that a particular child victim, when he or she becomes an adult, will do to some child what has been done to him or her. We do know that sentencing judges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both) who had stood in a parental relationship to him or her when he or she was a child.
[102] Given the information that has been presented to me about Mr. Hart's previous victimization, this passage is extremely relevant.
[103] In R. v. Woodward (2011), 2011 ONCA 610, 107 O.R. (3d) 81 (C.A.), the Court stated as follows at paragraph 76:
76 In so concluding, 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 offender's conduct and the life-altering consequences that can and often do flow from it. While the effects 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 for society's well-being and the well-being of our children must take precedence.
[104] The harm caused to L.C. and his family is well known in this case.
[105] Counsel provided a number of cases, which I will briefly review.
Defence Caselaw
[106] R. v. A.A., [2014] O.J. No. 1006 (S.C.J.). The 24-year-old offender sexually assaulted his girlfriend's 21-year old sister by rubbing her back when he believed she was sleeping, and then touching her vagina over her underwear. Immediately after a judicial pre-trial the offender plead guilty. The matter was adjourned and the offender engaged in treatment for a period of two months. There was some impact on the victim. The offender had no record. The trial judge imposed a suspended sentence.
[107] On the appeal, Hill, J. stated as follows, at paragraph 51:
Without diminishing the gravity of the abuse-of-trust character of the Respondent's offence, many of the aggravating features of sexual crimes associated with strong jurisprudential expressions of condemnation, and in turn severe sentences, are absent here including direct touching of the skin, penetrative conduct, grooming or other corruptive actions, a very young victim, predatory behaviour against multiple victims, and offending beyond a single instance of assaultive behaviour.
[108] In the case before me there is direct touching of the skin, and the victim was a child akin to that of a 5-6 year old.
[109] Hill, J. admitted fresh evidence which strongly demonstrated significant mitigating factors, including the support of the victim for a non-custodial sentence. Of interest in this matter is that the trial judge declined to impose a conditional sentence, as it was found not to be available. The victim was 16 years of age. Thus, a conditional sentence was, in fact, available. Hill, J. stated the following at paragraphs 62-63:
62 I have no doubt that the sentencing court, but for the legal error of eliminating a conditional sentence as an available sentencing option, would have imposed such a disposition. In all of the circumstances of this case, that would have been within the range of a fit sentence as a disposition proportionate to the seriousness of the offence while messaging the necessary measure of general deterrence and denunciation. A suspended sentence was not, but unfortunately was seen as the only non-custodial option available to the court.
63 At this point in time, nearly a year after the sentencing, the interests of justice militate against the imposition of imprisonment or incarceration. The significant conditions of the probation order have been served. Discharge of these obligations has continued the Respondent's rehabilitative path. The Respondent, stigmatized as a sexual offender, is employed, supporting a family, and forgiven by the victim and her family. Society would gain little from disruptive intervention at this point in time. (emphasis added)
[110] Thus, a suspended sentence was not seen as an appropriate sentence in this case, but the appellate Court declined to interfere with the sentence for the factors indicated.
[111] R. v. B.B. (unreported: November 2, 2016; O.C.J.). The offender was the karate instructor for the 8-year-old victim. The offender was 25 years old, and had Asperger's syndrome, which placed him on the autism spectrum. The offender kissed the victim on one occasion and had briefly inserted his finger in the victim's anus on another occasion. The defence called numerous medical and other expert witnesses on sentencing. The Court held the mandatory minimum sentence to be unconstitutional, finding that it would damage the offender irretrievably if he was incarcerated.
[112] R. v. M.H., [2015] O.J. No. 5529 (O.C.J.). The Crown and defence advanced a joint position for a conditional discharge, with probation for 3 years, for the offender who plead guilty to a sexual assault upon his niece. There is no indication of the age of the victim, but given that there is no discussion of mandatory minimum sentences, I must presume that the victim was 16 years of age or older. The facts of this case are that while giving the victim a consensual foot massage, the offender then reached over and touched her breast, and slid his hand down her chest and stomach. The victim left the room. The next day the offender came into the room where the victim was sleeping and kissed her on the lips. She was pretending to be asleep. Later that day the offender approached her and apologized for his inappropriate actions.
Crown Caselaw
[113] R. v. Manjra, 2009 ONCA 485, [2009] O.J. No. 2484 (C.A.). The offender sexually assaulted a 7-year old child who lived next door. He pulled down her pants and underwear and while on his knees, he "licked her privates." The complainant then pulled up her pants, told the appellant her mother was calling her, and went home. The offender had no record and was sentenced to a period of 17 months in custody.
[114] R. v. K.F., [2018] O.J. No. 1521 (O.C.J.). The offender plead guilty to sexually assaulting his 14-year-old step-granddaughter. He placed his hands under a blanket and massaged her legs. He ultimately moved closer to her vagina, and placed his finger inside of her vagina, and also asked her if she had ever been licked there. The victim left the room. The offender plead guilty, had no record and made an almost immediate acknowledgement of wrongdoing. He also completed counselling in advance of sentencing. He was sentenced to 7 months in custody, followed by probation for two years.
[115] R. v. W.M., [2018] O.J. No. 2254 (S.C.J.). The offender (a close friend of the 12-year-old victim's mother) and the victim were wrestling. The offender held down the victim and masturbated him until the victim ejaculated. The offender did not have a criminal record and he had supports in the community. There was significant impact on the victim and his family. The Court held that the accused was in a position of trust. The sentence imposed was that of 18 months custody followed by 3 years' probation.
[116] R. v. Barua, 2014 ONCA 34, [2014] O.J. No. 248 (C.A.). The offender was convicted after a jury trial of sexual assault and sexual interference. The trial judge stayed the sexual assault charge and imposed a 10-month sentence on the sexual interference charge. The offender's wife was the babysitter for the 10-year old male victim. The offender pulled down the victim's pants, kissed him, touched and licked his penis, and "humped" him. The offender had no record. The Court imposed a sentence of 10-months.
[117] R. v. D.L., [2018] O.J. No. 3220 (S.C.J.). The six-year old victim was akin to a niece to the offender. The facts are set out in paragraphs 7-9 as follows:
7 No other adults were in the home. The offender was in a position of trust.
8 The offender came into the office, sat down and put the victim on his lap. He undid her belt and slipped his hand down her underpants and started stroking her vagina. There was no digital penetration.
9 After some minutes had passed, the victim, feeling uncomfortable, told the offender she had to go to the bathroom. She remained in the bathroom for as long as she thought she could but ultimately she returned to the office. She was again required to sit on the offender's lap and he again put his hands down her underwear and fondled her (without any digital penetration).
[118] The Court acknowledged that there may be immigration issues for the offender, and sentenced him to six months less a day, followed by two years' probation.
Other Caselaw
[119] There are countless cases wherein the parent, step-parent, teacher etc. commit offences against children, and clearly are in positions of trust or authority. It was important that I try to ascertain if there was any caselaw wherein the offender was a personal support worker or a community support worker, or where the offender held a similar position.
[120] The only decision I was able to access wherein the offender was a personal support worker was that of R. v. Ngoddy, [2016] O.J. No. 1726 (O.C.J.). In that case the trial judge sentenced Mr. Ngoddy, who was a worker at a group home, to 13 months in custody and 3 years' probation, for sexually assaulting a 28-year old woman who suffers from autism and numerous other developmental disabilities. The offence took place on one occasion. The facts found were that Mr. Ngoddy kissed her breasts, touched her vagina and touched his penis to her body. He had no criminal record and was 54 years old. The offence had a significant impact on the victim.
[121] Counsel for Mr. Ngoddy sought a conditional sentence (which was available as the victim was not a child, and thus there was no mandatory minimum sentence). The Court ultimately determined that a conditional sentence would not reflect the gravity of the offence.
[122] It is important to note that in R. v. Ngoddy, supra, the accused appealed his conviction and the appeal was allowed. The Superior Court of Justice granted the appeal, which was based on the admission of hearsay evidence, and took the unusual step of ordering an acquittal, rather than sending the matter back for a new trial - [2016] O.J. No. 6993. This finding was upheld at the Court of Appeal - [2017] O.J. No. and the Supreme Court of Canada dismissed leave to appeal - [2017] S.C.C.A. No. 265. The issue of sentence was never raised before any of the reviewing courts. As such, I recognize that significant weight cannot be placed on the trial judge's findings on sentence. However, the decision of R. v. Ngoddy, supra, did refer to a number of other cases, which were helpful to me in assessing parity for similar offenders to Mr. Hart. I will review four of these cases at this time.
[123] In R. v. West, [2007] A.J. No. 192 (C.A.), the appeal court overturned the 18-month conditional sentence that had been imposed by the trial judge, and imposed a 12-month jail sentence, with credit on a 1-to1 basis for the time already served on the conditional sentence. The offender was a male nurse who had entered a plea of guilty to a sexual assault committed against an adult patient. The facts were outlined at paragraphs 3 and 4 as follows:
The victim of the assault arrived at the Cardston hospital at 3:00 a.m. complaining of a sore throat. In the examination room, after administering pain relief, the respondent, the sole nurse on duty at the hospital, fondled the victim's breast, and placed her hand on his penis and ejaculated. The victim said the medication made her light-headed and sleepy but she was still aware and alert.
When the victim told the respondent she knew what he did, he denied it, then later asked her not to say anything, offering to give her, in return, the bottle of whiskey which was a part of her belongings when she checked into the hospital. Later that morning, he admitted what he did and was remorseful.
[124] At paragraph 13, the Alberta Court of Appeal held as follows, "[w]ith respect, the sentencing judge erred in this case. The conditional sentence does not serve to adequately condemn the conduct and to deter those in a position of trust relative to vulnerable and essentially defenceless victims. While emphasizing the consequences of the conviction for the respondent, the judgment is deficient in its analysis of his moral blameworthiness. Finally, the judgment is outside the range of sentences given in comparable cases."
[125] In R. v. Alasti, [2011] B.C.J. No. 1177 (B.C. S.C.) the appellant was an unlicensed massage therapist. He sexually assaulted one client at a spa, touching the outside of her vagina while she was having a massage, and then digitally penetrating her vagina and causing pain and bleeding. This sexual assault had a significant impact on the victim. Three months later the appellant was working at a medical clinic and he touched that victim's breasts and nipples underneath her gown.
[126] The offender had no criminal record, a university education and the support of persons in his community. The Court found that the trial judge had made some errors in the application of sentencing principles, but upheld the sentence of 18 months (12 months for the first offence and six months consecutive for the second offence). The appellate Court reviewed the trial judge's decision to not impose a conditional sentence, and stated as follows at paragraph 45, "[i]n my view, the sentencing judge did not err in her appreciation of, or application of, the proper legal principles when she concluded that a conditional sentence was not appropriate in this case, particularly given the fact that the offences involved serious abuse of trust in which a custodial sentence was necessary to denounce this sort of conduct and provide deterrence."
[127] In R. v. Ashley-Pryce, [2004] B.C.J. No. 2097 (C.A.) the appellant plead guilty to sexual assault of a person with a disability. The facts were set out as follows at paragraphs 2-3:
The incident occurred at a Nanaimo seniors' home where he was employed. Essentially he went into the room of an elderly woman who suffers from Alzheimer's to take her a tray of food. Evidently, he had been feeling sexually aroused that day and after sitting the woman up in her bed, pulled down his under-shorts and began masturbating, while at the same time holding her hand. He heard a noise, likely the person who happened to open the door and ultimately reported the incident, and so Mr. Ashley-Pryce went into the bathroom to finish masturbating. He then cleaned himself off and continued on with his duties.
Later he was arrested, and told police the victim's hand had reached up and touched his penis without her intending to do so, since she was basically non compos mentis. According to the pre-sentence report, he was "unable to offer any insight into why he chose to masturbate ... beside the bed of the victim or why he chose to hold the victim's hand while doing so."
[128] The trial judge imposed a sentence of 18 months in custody and declined to impose a conditional sentence. The appellate court upheld the trial judge's rejection of a conditional sentence, even though the appellate court may have imposed a different sentence. The Court emphasized the issue of general deterrence, stating as follows, at paragraph 10:
Indeed, Ms. De Witt-Van Oosten notes the comment in Poulx concerning the particular effectiveness of deterrence in the particular community of which the person being sentenced may be a part. In this case, that is the community of caregivers, persons who are usually law-abiding and who are entrusted with the care of vulnerable persons. Obviously, the breach of trust committed by Mr. Ashley-Pryce engages the principle of deterrence and denunciation and the sentence he receives is likely to be noted by that community to a greater extent than many sentences are noted by the general public. Society must be able to trust that such persons will not commit serious breaches of this kind.
[129] In R. v. Aguas, 2015 ONSC 5732, [2015] O.J. No. 4739 (S.C.J.), Campbell, J. sentenced an offender, a nurse, for the offences of sexual assault and voyeurism, pertaining to two different women. The findings pertaining to the sexual assault were that that the victim had been thrown from a moving vehicle by her boyfriend and attended the hospital for treatment. The offender was the triage nurse and he had the victim remove her clothing and took photographs of her on his own personal phone, with a focus on her breast, genital and anal region. He then commented to her on her looks, and further he made contact with her after the incident. He also told her not to talk to anyone. She went to the police. During a search of the offender's phone the police also located photographs that the offender had taken of the bare breast of a sleeping woman who was in the hospital following a suicide attempt.
[130] The offender was 48 years of age, and a first offender. He was found guilty after trial. The Court imposed a sentence of fourteen months, less pre-sentence custody, to be followed by probation. During submissions counsel advised that a conditional sentence was not legally available. Campbell, J. noted in his reasons that a conditional sentence was in fact statutorily available, but stated at paragraph 51 that he was "not satisfied that even a punitive and restrictive conditional sentence (even one longer than that sought by the parties), would proportionally reflect the gravity of the offences, and provide the necessary elements of denunciation and deterrence in all of the circumstances."
[131] I am also guided by the decision of Code, J. in R. v. Hussein, 2017 ONSC 4202, [2017] O.J. No. 3567 (S.C.J.), wherein the Court held as follows at paragraph 35,
35 The appropriate range of sentence in cases involving external sexual touching of children were reviewed extensively by Linhares de Sousa J. in R. v. M.L., supra and I will not repeat her summaries of these cases. In the most mitigated cases, sentences of 90 days imprisonment were imposed. In the more aggravated cases, especially those involving breaches of trust and some repetition, sentences between six months and fifteen months were imposed. To similar effect, see: R. v. Toten (1993), 83 C.C.C. (3d) 5 at pp. 11-12 and 49-50 (Ont. C.A.); R. v. Levert (2001), 159 C.C.C. (3d) 71 (Ont. C.A.); R. v. R.W.D. (2005), 198 C.C.C. (3d) 541 (Ont. C.A.); R. v. L.J.D., [2008] O.J. No. 993 (S.C.J.). The case at bar, of course, involved some external sexual touching but it also involved a single act of intercourse. In cases involving acts of oral sex with children, somewhat longer sentences of 17 months or 18 months have been imposed, as these assaults are more invasive. In R. v. Cerda, 2008 ONCA 438, the Court held that 18 months was the appropriate sentence where the accused groomed two boys age 10 and 12 over a period of one to one and a half years and engaged in fellatio with them. In R. v. Manjra, 2009 ONCA 485, the Court held that 17 months was "within the range for this offence, even for a first offender," where the accused committed an act of cunnilingus with a 7 year old girl. He was at "the low-end of a trust relationship" with the victim who was the child of a neighbour.
[132] I have carefully considered these cases. When I consider the facts of the offence, Mr. Hart's personal circumstances, sentenced imposed in other cases, and the mitigating and aggravating factors, I find that the appropriate range of sentence for the offence before me is that of 9-15 months.
[133] Given my finding on the applicable range, I decline to address the issue of whether the mandatory minimum sentence in section 271 is constitutional. That application is dismissed.
SENTENCE
[134] Mr. Hart please stand.
[135] But for the medical issues that you will be dealing with while in custody, I would impose a sentence of 10-12 months. Given your medical circumstances, I sentence you to a period of custody of 9 months.
[136] This will be followed by a period of probation for three years with the following conditions:
- KPGB
- Report to a probation officer within two days of your release and thereafter as required
- Reside at a residence approved of by the probation office, and not change that address unless approved of in advance by the probation officer
- No contact or communication directly or indirectly with L.C., C.C., or any member of their family, and stay 100 metres away from them, as well as their place of residence, employment or schooling
- Attend for any assessment, treatment and counselling as recommended by the probation officer, and complete this this to their satisfaction, not discontinue this without their consent, and sign any releases required
- Not be employed in any position which requires you to be responsible for the care of vulnerable adults or children
[137] I make an order for you to provide a sample of your DNA, pursuant to s. 487.051 of the Criminal Code.
[138] Pursuant to s. 110 of the Criminal Code, I am prohibiting you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, for a period of 5 years.
[139] Pursuant to s. 743.21 of the Criminal Code, I am prohibiting you from having any contact or communication, directly or indirectly, with L.C., C.C. or any member of their family, while serving your custodial sentence.
[140] There will be an order of prohibition pursuant to s. 161 (b) of the Code for a period of ten years.
[141] You will be noted as a person convicted of a SOIRA-designated offence pursuant to s. 490.012 of the Code, for a period of 10 years.
Released: January 16, 2019
Signed: Justice Kimberly E.M. Moore