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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 complainant of the right to make an application for the order; and

(b) on application made by the complainant, 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: November 29, 2019

Court File No.: Hamilton Information No. 17-12076

Between:

Her Majesty the Queen

— and —

P.M.

Before: Justice J.P.P. Fiorucci

Sentencing Submissions Heard on: August 22, September 17, and November 29, 2019

Reasons for Sentence Released on: November 29, 2019

Counsel:

• N. Flynn, counsel for the Crown
• P. Craniotis, counsel for the offender P.M.

FIORUCCI J.:

INTRODUCTION

[1] In August of 2016, T.D. started working at the movie theatre where P.M. worked. P.M. was 28 years old at the time. T.D. was 15 years old. T.D. turned 16 years old on October 20, 2016.

[2] P.M. and T.D. developed a relationship which became sexual. The relationship ended in September of 2017. At that time, Ms. D. broke up with Mr. M. and made it clear that she wanted no further contact with him. However, Mr. M. continued to contact Ms. D. by calling and messaging her. He used different social media accounts because she had blocked him on social media. He also called Ms. D. from different phone numbers.

[3] Due to the persistent unwanted contact from Mr. M., Ms. D. provided a statement to police in October of 2017. The police warned Mr. M. that any further contact could result in criminal consequences. Notwithstanding this warning from police, Mr. M. again contacted Ms. D. on November 18 and into the early morning hours of November 19, 2017. Ms. D. again provided a statement to the police regarding this unwanted contact.

[4] In the course of the police investigation regarding the continued unwanted contact, the police learned that the sexual relationship between Mr. M. and Ms. D. had started when Ms. D. was 15 years old. The sexual contact between Mr. M. and Ms. D. started in September of 2016. The sexual encounters that occurred before Ms. D.'s 16th birthday included multiple incidents of Ms. D. performing oral sex on Mr. M., and multiple failed attempts at vaginal intercourse due to pain Ms. D. experienced. These incidents involved full penetration of Ms. D.'s vagina but no orgasm. Ms. D. could not provide lawful consent to the sexual acts which occurred before her 16th birthday.

[5] Ultimately, the investigation led to the police charging Mr. M. with Criminal Harassment, Sexual Interference and Invitation to Sexual Touching. Mr. M. entered not guilty pleas to all three charges before me. For reasons which are reported at R. v. P.M., 2019 ONCJ 343, I found Mr. M. guilty of these three charges. The Crown was of the view that convictions should be entered on both the Sexual Interference and Invitation to Sexual Touching charges. The Defence submitted that a conviction should be entered for Sexual Interference only, based on the application of the Kienapple principle.

[6] I agreed that the application of Kienapple should result in a conditional stay of the Invitation to Sexual Touching charge. In this case, the sexual abuse perpetrated by Mr. M. on Ms. D. all flows from the same delict, matter, or cause. As in R. v. L.(F.), 2016 ONSC 1215, at para. 20, "[t]he assaults all followed the same pattern, and all involved elements of the offences of" Invitation to Sexual Touching and Sexual Interference. The R. v. L.F. case also provides support for the finding that the Invitation to Sexual Touching conviction is the one that should be stayed. Although the sentences available for both offences are the same, in my view, the conviction for Sexual Interference "is a more precise and complete explanation of the crime that was committed in this case": R. v. L. (F.), at para. 23. The key element in this case is that a sexual assault was committed against a victim who was under the age of sixteen years.

[7] The following are my reasons for sentence with respect to the convictions for Sexual Interference and Criminal Harassment.

POSITION OF THE PARTIES

[8] Counsel for Mr. M. asks that I impose a one-year conditional sentence of imprisonment followed by a three year probation order, and the usual ancillary orders that accompany convictions for these offences. The Crown proceeded by summary conviction on the Sexual Interference charge. I invited submissions from both counsel on the issue of whether a conditional sentence of imprisonment could be lawfully imposed if I were to deem it an appropriate sentence to impose in this case. Specifically, I invited counsel to make submissions on the preconditions in section 742.1 (b) and (c) of the Criminal Code.

[9] With respect to section 742.1 (b), both counsel agree that the mandatory minimum sentence in section 151 (b) of the Criminal Code, which relates to the summary offence of Sexual Interference, has been struck down by Schreck J. in R. v. Drumonde, 2019 ONSC 1005; See also R. v. B.J.T., 2019 ONCA 694, at para. 78. Since the offence is no longer punishable by a mandatory minimum sentence, section 742.1 (b) is not a bar to imposing a conditional sentence of imprisonment.

[10] For a conditional sentence of imprisonment to be a legal sentence, section 742.1 (c) requires that the offence not be "an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life". The maximum term of imprisonment for Sexual Interference, where the Crown proceeds by indictment is 14 years. I asked counsel to make submissions on whether the wording of this subsection prohibits the imposition of a conditional sentence of imprisonment simply because the offence is one for which the maximum term of imprisonment is 14 years when prosecuted by indictment, or whether the subsection only acts as a bar to a conditional sentence where the Crown in fact proceeds by indictment.

[11] Counsel were unable to provide authorities that directly addressed the issue of the applicability of section 742.1(c) where the Crown elects to proceed by summary conviction on a Sexual Interference charge. However, Defence counsel did provide authorities where courts imposed conditional sentences of imprisonment for summary offences, where those offences had maximum sentences of 14 years had the Crown proceeded by indictment: R. v. Sawh, 2016 ONSC 7797; R. v. Pye, 2019 YKTC 21; and R. v. King, 2019 ONCJ 366.

[12] For purposes of this sentencing, I am prepared to proceed on the basis that section 742.1 (c) does not create a bar to the imposition of a conditional sentence of imprisonment because the Crown proceeded by summary conviction on the Sexual Interference charge. However, it is not necessary that I make a determination on the issue because I have concluded that a conditional sentence of imprisonment is not an appropriate disposition in this case.

[13] The Crown position on sentencing is a global sentence of 18 months jail, comprised of 15 months jail on the Sexual Interference and 3 months jail consecutive on the Criminal Harassment. The Crown also seeks the maximum term of three years probation, and ancillary orders which accompany these offences.

LEGAL PRINCIPLES

[14] I have reviewed and considered the numerous authorities provided by counsel for the Crown and the Defence, the sentencing submissions, the materials filed and the statement of Mr. M. at the conclusion of the sentencing hearing.

[15] For a sentencing Judge, there is no mathematical equation into which data is inputted to compute the appropriate sentence. As one Justice rightly observed, sentencing is "an enterprise of the heart and mind, not the impersonal product of a computer".[1] However, I must be guided by the sentencing principles enunciated in the Criminal Code, and the appellate authorities which have interpreted those statutory principles in relation to the offences of Sexual Interference and Criminal Harassment. Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offences committed, and the degree of responsibility of the person who committed them: section 718.1 of the Criminal Code.

[16] Very recently, in R. v. E.C., 2019 ONCA 688, the Ontario Court of Appeal reiterated the principles that must guide a sentencing judge in cases involving Sexual Interference. In R. v. E.C., the offender was almost 22 years old. He was convicted of Sexual Interference of a 15 year-old after a trial by jury. The offender was sentenced on the basis of "the least culpable version of events that was consistent with the jury verdict": R. v. E.C., at para. 4. This version was that the offender believed that the complainant was over 16 years, but did not take reasonable steps to confirm her age, and that they had engaged in a single incident of de facto consensual intercourse.

[17] In E.C., the Ontario Court of Appeal stated:

The offence of sexual interference can be committed in any number of ways, and with varying levels of moral turpitude. The broad range of available sentences is rooted in the "infinitely variable ways in which the offence can be committed": R. v. M.B., 2013 ONCA 493, at para. 21. Within the wide range of available sentences, the court must impose an appropriate sentence - one that is proportionate to the gravity of the offence and the degree of responsibility of the offender, and, respecting the principle of parity, is proportionate to sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.[2]

[18] A sentence for Sexual Interference must adequately reflect the objectives of deterrence and denunciation, which are key when sentencing for offences of this kind.[3] The Court of Appeal in E.C. made it clear that de facto consent of an underage complainant is not a defence, and cannot be a mitigating factor in a case of sexual interference.[4] Furthermore, the parties on the appeal agreed, and the Court found "that the trial judge had erred in treating as a mitigating factor the fact that the complainant was three months short of her 16th birthday" when she was assaulted by the offender.[5]

[19] The Court of Appeal in E.C. went on to state:

Nor does the parties' relative proximity in age detract from the complainant's vulnerability, or from the respondent's blameworthiness in taking advantage of that vulnerability. While a greater discrepancy in age can be an aggravating factor, the opposite is not true. It is not a mitigating factor that the respondent was only six years and two months older than the complainant. The gravamen of the offence of sexual interference was described by Feldman J.A. in R. v. A.B., 2015 ONCA 803, 333 C.C.C. (3d) 382, at para. 45, as follows:

[T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance. See also R. v. J.D., 2015 ONSC 5857, at paras. 22-24.

[20] Evidence that an offender, in committing the offence, abused a person under the age of eighteen years is a statutorily aggravating factor.[6]

[21] The Ontario Court of Appeal decision of [R. v. D.D.][7] is often cited in cases involving the sexual abuse of children. The words of Moldaver J.A. highlight the importance of denunciation and deterrence when dealing with those who sexually assault children:

Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price![8]

[22] Moldaver J.A. recognized, however, that sentencing ranges are not meant to be fixed and inflexible:

On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.[9]

[23] In R. v. Bates, [2000] O.J. No. 2558, the Ontario Court of Appeal held that the principles of specific and general deterrence must be overriding considerations in the determination of a fit sentence for criminal harassment in the context of offenders who cannot accept the break up of a romantic relationship.

CIRCUMSTANCES OF THE OFFENDER

[24] I have reviewed and considered the Pre-sentence Report, the Brief of Character Reference Letters, and other character letters and employment letters filed on behalf of Mr. M.

[25] Mr. M. is 31 years old. He was 28 years old when he committed these offences. Mr. M. resides with his parents and brothers. He has lived in Hamilton his entire life. Mr. M. is part of a close family; a family that has supported him throughout this case and will continue to support him.

[26] Mr. M. attended Mohawk College in Hamilton at various times commencing in 2008. In college, he studied general sciences, pre-health, pre-business, and courses relating to pharmacy technician. He also studied massage therapy for two and a half years. He could not graduate from this program due to multiple surgeries he had for his medical condition of osteochondroma.

[27] Mr. M. has been steadily employed throughout his adult life. He currently works as a CNC machine operator at O. I. Limited. He is a full-time, permanent employee at O.I., and has been since May of 2018.

AGGRAVATING AND MITIGATING FACTORS

[28] I find the following to be aggravating factors in P.M.'s case:

(1) Mr. M. abused a person under the age of eighteen years, which is a statutorily aggravating factor listed in section 718.2 (ii.1) of the Criminal Code;

(2) As detailed in my reasons for judgment on the trial, the offences involved multiple incidents of oral sex, attempted vaginal penetration, and vaginal penetration before T.D.'s 16th birthday. These sexual acts are at the more serious end of the spectrum of violation of sexual integrity. Mr. M. was aware that Ms. D. was 15 years old when he started his sexual relationship with her. I made a finding that the circumstances surrounding the persistent attempts to contact Ms. D., after she had made it clear that she wanted no further contact, amounted to obsessive and controlling behaviour in the context of a domestic relationship;

(3) The offences have had a significant impact on the victim, T.D. The Victim Impact Statement filed as an exhibit, and read in court by Ms. D., details the profound psychological harm and impact these offences have had on her;

(4) The Crown submits that an aggravating factor is that Mr. M. abused a position of authority over Ms. D., since he was a supervisor at the movie theatre. I find that this aggravating factor has not been proven beyond a reasonable doubt. In her testimony at trial, Ms. D. herself conceded that Mr. M.'s position as a supervisor did not give him any authority over when she had to work, or when she could not work. I have, however, considered the discrepancy in age between Mr. M. and Ms. D., and the circumstances of how their relationship started and progressed, including communications Mr. M. had with Ms. D. regarding her age and virginity when she was 15 years old.

[29] The following are mitigating factors in P.M.'s case:

(1) Mr. M. has no criminal record;

(2) Mr. M. has the support of his community and family, as evidenced by the numerous character reference letters filed on his behalf. This factor bodes well for Mr. M.'s prospects of rehabilitation;

(3) Mr. M. is of prior good character. The character letters are too voluminous to refer to in these reasons. However, the overarching theme in these letters is that Mr. M. is a good person, who is well-respected by his family, and many friends, including members of his church community;

(4) Mr. M. is gainfully employed and assists with financially supporting his parents. This too tends to confirm his positive prospects for rehabilitation;

(5) Although Mr. M. entered a not guilty plea to the charge of Criminal Harassment, he did express remorse through the Pre-Sentence Report, and in court, at the conclusion of the sentencing hearing, for the pain he caused Ms. D. and her family as a result of the continued unwanted contact which resulted in his conviction for Criminal Harassment;

(6) Mr. M. has a serious medical condition, osteochondroma, which has required multiple surgeries. The details of the effects of this medical condition on Mr. M. are set out in some of the materials filed on his behalf. Mr. M.'s medical condition will render imprisonment a more severe penalty for him than for a person who does not suffer from the same condition.

THE SENTENCE

[30] Taking into account the aggravating and mitigating circumstances, I find that a global sentence of 12 months jail is the appropriate sentence in this case. Mr. M. is sentenced to 10 months jail in relation to the Sexual Interference and 2 months jail consecutive for the Criminal Harassment. The jail sentence will be followed by a 3 year probation order, with conditions including the following:

(1) Keep the peace and be of good behaviour.

(2) Appear before the Court when required to do so by the Court.

(3) Notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change in employment or occupation.

(4) Report in person to a probation officer within 2 working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

(5) Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.

(6) Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with: T.D. or members of her immediate family. You are not to be within 25 metres of the person of T.D.

(7) Do not be within 100 metres of any place where you know T.D. or members of her immediate family to live, work, go to school, frequent or any place you know the persons to be EXCEPT for required court attendances.

(8) Do not possess any weapons as defined by the Criminal Code.

(9) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer.

(10) You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

(11) You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

[31] I also make the following ancillary Orders.

[32] Pursuant to Section 743.21(1), while Mr. M. is serving the custodial period of his sentence, he is prohibited from communicating, directly or indirectly, with T.D., or any member of her immediate family.

[33] Pursuant to Section 109(3) of the Criminal Code, Mr. M. is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for life.

[34] Sexual Interference is a primary compulsory designated offence for the purpose of forensic DNA analysis. Accordingly, in relation to the Sexual Interference conviction, I order that Mr. M. provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act. I also make a DNA order in relation to the secondary designated offence of Criminal Harassment. It is in the best interests of the administration of justice to do so given the nature of the offence and the circumstances surrounding its commission. The privacy or security interest of Mr. M. does not outweigh this interest to the administration of justice of having his DNA provided and stored in the databank.

[35] Pursuant to Section 161 Criminal Code, I order that Mr. M., will be subject to the following Order for 10 years:

(1) Pursuant to Section 161(1)(a.1), he is not to be within 100 metres of any dwelling house where Ms. D. ordinarily resides;

(2) Pursuant to Section 161(1)(b), he is not to seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(3) Pursuant to Section 161(1)(c), he is not to have contact- including communication by any means-with a person who is under the age of 16 years, unless he is in the direct company of a person who is 18 years or older.

[36] Pursuant to Sections 490.011(1) (a) and 490.013(2) of the Criminal Code, I make an Order in Form 52 of the Criminal Code requiring Mr. M. to comply with the Sex Offender Information Registration Act. This Order applies for 10 years.

Released: November 29, 2019

Signed: Justice J.P.P. Fiorucci

Footnotes

[1] R. v. Holmgren, [1995] O.J. No. 286 (Ont. Gen. Div.), Clarke J., at para. 56.

[2] R. v. E.C., 2019 ONCA 688, at para. 11.

[3] R. v. E.C., supra, at para. 12.

[4] R. v. E.C., supra, at para. 13.

[5] R. v. E.C., supra, at para. 9.

[6] Section 718.2 (a)(ii.1) of the Criminal Code.

[7], [2002] O.J. No. 1061 (Ont. C.A.).

[8] R. v. D.D., supra, at para. 45.

[9] R. v. D.D., supra, at para. 33.