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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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 sub-paragraph (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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. E.H., 2019 ONCJ 987

DATE: 2019 02 14

COURT FILE No.: Brampton 012117

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

E.H.

Before Justice P.T. O’Marra

Heard on December 11, 2018

Reasons for Judgment on Sentence released on February 14, 2019

Ryan Morrow....................................................................................... counsel for the Crown

Owen Goddard..................................................................... counsel for the defendant E.H.

P.T. O’Marra J.:

Introduction:

[1] Following a trial, I found E.H. guilty of sexually assaulting and sexually exploiting his girlfriend’s daughters, W.M. (1) and V.M over a three (3) year period ending in 2004. At the Crown’s request, I conditionally stayed count #1 (sexual assault on W.M.) and count #4 (sexual interference on V.M.). He appears before me today for sentencing.

The Facts:

[2] The facts that gave rise to the convictions are as follows. E.H. and the complainants’ mother were involved in an intimate relationship. Although E.H. had his own residence, he often stayed overnight at his girlfriend’s home. While W.M. (1) was asleep or about to fall asleep, on four (4) occasions, E.H. entered W.M. (1)’s bedroom that was located on the top floor of the back-split townhouse. He removed her pajama bottoms. E.H. touched W.M.(1)’s vagina both over and under her clothing, and sometimes her bum. At the time of the assaults, W.M.(1) was approximately six (6) to eight (8) years old.

[3] V.M. was W.M.(1)’s older half-sister. When V.M. was approximately thirteen (13) to fifteen (15) years old, she was sexually assaulted by E.H. while she slept in her basement bedroom. E.H. routinely entered V.M.’s bedroom, laid beside her, caressed her hair and fondled her breasts over and under her clothing. He would eventually rub his erect penis up and down her back and simulated sexual intercourse. E.H. always wore underwear and a white t-shirt.

[4] Both girls never called out nor told their mother about the sexual assaults. They were confused about what had happened. Several years later in 2010 while W.M.(1) was at high school and was struggling with her grades, an argument erupted between herself and her mother. During the course of the argument, W.M.(1) Facebook messaged V.M. while she was at university and disclosed that E.H. had touched her inappropriately. In turn, V.M. disclosed that the same thing had happened to her. Eventually, on that day their mother found out that both daughters had been sexually assaulted by E.H. Their mother immediately contacted the police. Both daughters provided statements and subsequently E.H. was charged.

The Position of the Parties:

[5] It is the Crown’s position that the appropriate sentence in all of the circumstances is a period of three (3) years’ incarceration. The Crown vigorously opposes the Defence’s request for a conditional sentence as the appropriate sentence in this case. The Crown seeks the following ancillary orders: An order pursuant to section 161 (absent any internet terms) of the Code, a DNA order, a life time order pursuant to the Sexual Offenders Information Registration Act, a mandatory weapons prohibition order for life pursuant to section 110 of the Code.

[6] The Defence argues that the sentence of two years less one day concurrent on both offences which was imposed at the original hearing was fit. Moreover, the Defence submits that since a conditional sentence is legally available, the sentence should be served in the community pursuant to section 742 of the Code. Having regard to E.H.’s background, the Defence argues that a conditional sentence is warranted in these circumstances. The Defence concedes that the imposition of a conditional sentence is exceedingly rare in these types of offences. (See: R. v. G.C.F. 2004 4771 (ON CA), [2004] 188 C.C.C. (3d) 68 (Ont. C.A.) The Defence does not oppose most of the ancillary orders, however, opposes the section 161 order on the grounds that facts do not support such an order. As well, E.H. has remained on his best behaviour for fifteen (15) years. Counsel also points out that a section 161 order was not imposed as part of the original sentence.

The Impact on the Complainants:

[7] In 2013, after the original trial both complainants completed victim impact statements that were filed again and marked as exhibits in the present sentencing hearing. V.M. stated that before she disclosed what had happened, she lived in a constant state of fear of the repercussions if she ever told anyone. She is emotionally crippled and unable to form any relationships with other men. She is afraid to engage in any physical contact with a man as it reminds her of what occurred to her as a little girl. She is traumatised by the fact that the same thing had happened to her younger sister. Because V.M. did not speak up about the attacks, she feels exceedingly guilty and responsible for her little sister being assaulted. She breaks down and cries often over for “being too scared to {have} come forward”. V.M suffers from depression and is prescribed anti-depressants and tranquilizers. She cannot sleep very well and often after closing her eyes she experiences flashbacks of “him on top” and her “wanting it to stop”. She pictures E.H. moving on to her sister’s room. V.M. found seeing E.H. in court, when she testified, particularly difficult and upsetting. She wanted to explode. She never wants to see him again. V.M. stated that her “childhood innocence was stolen…and that is something she [I] would never get back”. Finally, V.M. stated that at times she has felt worthless and wanted to die. She concluded her victim impact statement with the following sentence: “I would not wish that pain and anguish on my worst enemy”.

[8] W.M.(1) stated the sexual assaults has had a devastating emotional impact. She cannot trust men and nor allow herself to get close to a man. She often has flashbacks which makes her upset and sick to her stomach. W.M. (1) stated that she lacks confidence and feels worthless at times.

The Circumstances of the Offender:

[9] The details of E.H.’s background are set out in pre-sentence report dated October 25, 2013. He is 46 years old. He was born in Iraq. He came to Canada in 1998. He returned to Iraq in 2007 where he met his wife. They were married shortly afterwards, and he sponsored his wife to Canada. They have two children that are eight (8) and six (6) years old.

[10] While in living in Iraq, E.H. obtained a degree in physical education. When he arrived in Canada, he took ESL courses. In 2003, he started taking accounting and business administration courses at Sheridan College. While going to school he started a part time job working at a convenience store. From 2002 until 2015, he worked at the following companies: BOC Gases, Celestica International Inc., KSGE System Group, Tech Data Canada, and CIO Travel APM. Since 2016, E.H. has been employed with Accenture as a project control services team leader.

[11] Letters were provided on behalf of E.H., his wife, W.E., his oldest brother, R.I. and his marriage and family therapist, P.W. His wife described E.H. as an “amazing father”. He is a hard worker and often works after dinner and on weekends. He prays with his children before they go to bed. Naturally, she is very concerned about the family’s financial situation if her husband is sentenced to custody. His brother confirmed that as Christian Assyrians originating from Northern Iraq, his family faced persecution from the Kurds. In Iraq, E.H. was a very active member of the Assyrian Student and Youth Union. During a protest, E.H. witnessed his friend shot and killed by Kurdish authorities. Afterwards, E.H. recognized that he could not co-exist safely and peacefully with the Kurdish majority. As a result, E.H. fled to Canada in 1998 leaving his entire family behind. He has returned to Iraq on three (3) occasions. P.W. confirmed that since December 13, 2016, E.H. has attended 34 couples sessions for the purpose of focusing on improving his marital relationship.

The Principles of the Sentencing:

[12] Section 718 of the Criminal Code defines the principles and purpose of sentencing 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.

[13] Section 718.01 requires the court to give primary consideration to deterrence and denunciation in imposing this sentence because the complainants were under eighteen (18) years of age. Although the section was not proclaimed at the time E.H. committed these offences, it was a codification of well-recognized principle in our jurisprudence at the time and is applicable in this case.

[14] Also, section 718.1 sets out and recognizes the fundamental principle of proportionality in sentencing. Any sentence must be in keeping with the gravity of the offence and the degree of the offender’s responsibility.

[15] Section 718.2 states that 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.

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Aggravating and Mitigating Factors:

[16] I now turn to the aggravating and mitigating factors in this case. The following are aggravating features to this case:

1. E.H. was trusted and acted as a father figure while in the relationship with the complainants’ mother. His violation of that trust is particularly aggravating.

2. The complainants were very young and vulnerable at the time of the offences. These offences have had a profound effect on their lives. The complainants’ innocence was stolen. The family has not healed and continues to suffer.

3. The assaults occurred on multiple occasions over a three (3) year period. It was conservatively estimated that E.H. sexually assaulted V.M. approximately 100 times. Her breasts were fondled by E.H. He simulated sexual intercourse on her bum and lower back. V.M. was sexually assaulted on four (4) discreet occasions. Her vagina and bum were touched. The assaults occurred in their homes and in their beds, where they felt safe.

[17] I have also considered the following mitigating factors:

1. E.H. has no criminal record.

2. The pre-sentence report is fairly positive.

3. E.H. is a self-made man. Since coming to Canada from Iraq, he has gone to school and has been steadily employed. He is hardworking, dependable and financially responsible for his family.

4. He enjoys the support of his family. He is an excellent father.

5. He has been on interim release since his arrest in 2010 without any incident.

Jurisprudence and Analysis:

[18] I have benefited from submissions of both counsel, including many cases that have been provided. I do not propose to set out each case that was provided but will restrict myself to several leading authorities in arriving at a just sentence.

[19] In R. v. D.(D.), 2002 44915 (ON CA), 2002 58 O.R. (3d) 788, the Ontario Court of Appeal signalled a change in judicial views on the appropriate range of sentencing offenders, who were in a position of trust and who sexually abused innocent young children on a regular and persistent basis over lengthy periods of time. The Court stated at para 44 that, in such cases, the offender should expect a mid to upper single digit penitentiary sentence term.

[20] In R. v. Woodward, 2011 ONCA 610, at pars. 72 the Court summarized the principles and objects of sentencing, that take precedence when “adult predators choose to exploit innocent young children”, found at paras 34-38 of D.(D.) and stated,

Our children are our most valued and our most vulnerable assets. (2) We as a society owe it to our children to protect them from the harm caused by sexual predators. [page103] (3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. (4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. (5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood. (6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[21] At para. 73 in Woodward, Moldaver J.A. reiterated the core concerns identified by the Court in D.(D.) as set out in para. 45 of D.(D.) where the court stated,

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. 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!

[22] The Crown has provided several breach of trust sexual assault cases that attracted penitentiary sentences which involved digital penetration, vaginal intercourse, the use of a vibrator, cunnilingus, forced fellatio, masturbation, grooming that had occurred over substantial periods of time. (See: R. v. B.R. 2018 ONSC 586 (3 years); R. v. D.D., 2016 ONSC 7483 (4 years); R. v. D.M., 2012 ONCA 894 (4 years); R v. G.W., 2017 ONSC 3149 (5 years). The case of R. v. K.M., 2017 ONSC 4769 is factually closest to the case here. The offender fondled his two daughters over a lengthy period of time. He had mitigating factors similar to E.H., such as a lack of a criminal record and positive work history. However, the significant aggravating factors that were applied included the gravity of the sexual offences and the degree of responsibility of the offender; that he breached his parental position of trust and abused his own children in their own home. The assaults caused “serious, long term emotional and psychological trauma to the complainants”. The offender was sentenced to 3 years in the penitentiary. Unlike here, the offender was a parent and did plead guilty.

[23] The defence on the other hand, has suggested a sentence in the upper reformatory sentence range is appropriate and that E.H. should serve the sentence in the community.

Is a Conditional Sentence Available?

[24] By virtue of the timing of these offences, E.H. is eligible for a conditional sentence.

[25] Pursuant to section 742.1 of the Criminal Code, there are five prerequisites for the imposition of a conditional sentence:

(a) The offender must be convicted of an offence that is not specifically excluded (e.g. sexual assault, when prosecuted by indictment).

(b) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment.

(c) The court must impose a sentence of imprisonment that is less than two years.

(d) The safety of the community would not be endangered by the offender serving the sentence in the community.

(e) The conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[26] In this case, the offences are not punishable by a minimum term of imprisonment. I find that there is nothing to suggest that E.H. would not obey the terms of such an order. E.H. was neither violent or nor aggressive towards the complainants in a physical sense. He did not threaten either complainant if they said anything. He has faced these allegations for eight (8) years. During that period of time, he has been subject to judicial interim release with minimal conditions. There have been no breach allegations. There is nothing to suggest that the safety of the public would be compromised if a conditional sentence was imposed.

[27] This case, of course, was a re-trial in which the original trial judge after registering convictions for the same offences, imposed a sentence of two years less one day incarceration. The defence argues that, given that the findings of fact were virtually the same after both trials, the original sentence was fit. I agree. It is a well-established principle that after a re-trial, the sentencing judge should not consider the sentence de novo but must take into account the fitness of the original sentence. Otherwise, an accused might have a legitimate concern that if the conviction was appealed, the accused could be punished more harshly. The failure to consider the fitness of the original sentence is an error in principle. (See: R. v. Precup, [2016] O.J. No. 4687 (Ont. C.A.) and R. v. B. (L.) (1997), 1997 3187 (ON CA), 35 O.R. (3d) 35 (Ont. C.A.)) There were no additional facts that emerged at this trial and beyond a change in employment, E.H.’s circumstances seem to be virtually unchanged. Therefore, I give great deference to the original sentence that was imposed, and I find that neither a penitentiary term nor a probationary sentence is appropriate in these circumstances.

[28] The remaining issue in this case is whether the application of a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[29] Denunciation and deterrence can be reflected through a conditional sentence, even in the most serious offences. (See: R. v. Kutsukake, 2006 32593 (ON CA), [2006] O.J. No. 3771 (Ont. C.A.))

[30] The Supreme Court of Canada in R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6 made it clear at para. 107 that “a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences. There is also the possibility of deterrence through the use of community service orders, including those in which the offender may be obliged to speak to members of the community about the evils of the particular criminal conduct in which he or she engaged, assuming the offender were amenable to such a condition. Nevertheless, there may be circumstances in which the need for deterrence will warrant incarceration. This will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed”. At para. 102 the Court recognized that incarceration will usually provide more denunciation than the imposition of a conditional sentence is generally a more lenient sentence, but with sufficiently onerous conditions a conditional sentence can provide a significant amount of deterrence. In R. v. Wells, [2000] S.C.R. No. 11 an aboriginal offender attended a house party and raped the victim as she slept and was unconscious in her own bed. Although there were no gratuitous signs of violence, the paramount consideration was deterrence and denunciation. There was a favorable PSR and the trial judge imposed a conditional sentence as he was “obliged” to take into consideration the fact that the offender was aboriginal. Mr. Justice Iacobucci said at para. 35,

Therefore, depending on the severity of the conditions imposed, a conditional sentence may be reasonable in circumstances where deterrence and denunciation are paramount considerations. Ultimately, however, the determination of the availability of a conditional sentence depends upon the sentencing judge's assessment of the specific circumstances of the case, including a consideration of the aggravating factors, the nature of the offence, the community context, and the availability of conditions which have the capacity to properly reflect society's condemnation.

[31] The defence has provided a number of authorities that support a conditional sentence involving sexual assaults on children. These cases point to unique or exceptional circumstances that justified a conditional sentence. For example, a conditional sentence was imposed in the case of R. v. T.W., [2005] O.J. No. 781 after the offender plead guilty to touching his stepdaughter for a sexual purpose over a three (3) year period. Justice De Filippis found the fact that the offender was sexually abused as a teenager by his uncle an unusual circumstance. The abuse involved mutual masturbation. A psychiatrist was of the view that as a result of his own sexual abuse, the offender had sexual needs that caused him to act out. Furthermore, the doctor found that he had a good chance of mastering his problem. Another factor that is not present here, is that the complainant strongly supported the offender. She did not fear the offender and had forgiven him.

[32] In R. v. S.W.M. [2010] B.C.J. No. 286, a British Columbia Court of Appeal decision, the offender plead guilty to two counts of sexual interference. The Crown and the Defence presented a joint submission of imprisonment of two years less one day and three years probation. The trial judge was not entirely satisfied with the joint recommendation and departed from the joint submission by imposing an additional financial penalty of $50,000 on the less serious count. A distinguishing feature in S.W.M., supra. was that the facts were more serious than the case at bar. However, the issue for the court was to determine whether imposing a large fine in addition to the conditional sentence was fit in the circumstances. The offender was to receive a large pension bonus while he served his conditional sentence and the trial judge attached some weight to that in settling the amount of the fine. The court of appeal felt that it was excessive and reduced the fine to $5000 on the less serious count.

[33] The R. v. Crotty (J.G.), 2004 NLSCTD 69 decision is also distinguishable on its facts. The offender plead guilty to sexual assault and sexual interference. The offender induced a newspaper boy to eventually sleep on his couch. On two occasions the victim woke up to the naked offender attempting to hump him from behind while he slept with his jeans on. There were also several occasions when the offender fondled the victims’ buttocks outside of his jeans. The second victim was the offender’s cousin. While at the victim’s house, the offender rubbed his penis up and down the victim’s back as they slept in the same bed. A nine (9) month conditional sentence was imposed. The victims were fully clothed. The offender used inducements. The offender had attempted suicide.

[34] In R. v. H. (B.D.), [2003] M.J. No. 39 the Manitoba Court of Appeal allowed the appeal of a sentence of two days less a day incarceration to be served conditionally and lengthened the period of probation on the basis that the trial judge overlooked the absence of any prior record and the offender’s post-offence conduct. The offender was a teacher and hockey coach that lived in a small town. He had sexually touched the 14-year-old victim over a two year period. Another fact that was overlooked was that he had lost his job and was expected to find employment in his town. That being the case, the objectives of denunciation and deterrence had been addressed. The decision can be distinguished by the fact that there was only one victim and the court did not amplify the facts.

[35] The case of R. v. D.C.C., [2001] B.C.J. No. 1012 from the Provincial Court involved twelve (12) incidents of the offender touching his granddaughter when she was aged seven (7) and eight (8). After a guilty plea, the offender was sentenced to a one (1) year conditional sentence. This case involved a 62-year-old man with a grade 8 education. He also had significant health problems. After his arrest, the offender was suicidal but had taken medical and psychiatric counselling to address his depression and guilt.

[36] The law is clear that a conditional sentence is available in only rare and exceptional cases when an offender has abused a position of trust and has sexually assaulted children. I find that there is nothing unique in the circumstances of this case that would justify the imposition of a conditional sentence. Furthermore, a conditional sentence would not adequately address the sentencing principles of denunciation and deterrence. The principles and core concerns identified in D. (D.), supra. and in Woodward, supra. apply in this case, in which a person in a position of trust preyed upon children and thereby robbed them of their innocence and tore apart a family.

Sentence:

[37] I recognized that E.H. is a ‘self-made’ man with no criminal record and appears to have led a pro-social life by maintaining gainful employment with a reputation of being a church going and good family man. Unfortunately, often those who commit egregious and self-satisfying sexual acts upon children as E.H. did in private, present publicly as honourable and trustworthy individuals. What was particularly alarming is that E.H. betrayed the trust of the complainants and their mother in a place where they should have felt the safest, their home. There is an absolute need to denounce and deter this abhorrent behaviour and conduct.

[38] E.H. sexually assaulted two children over a three (3) year period. In considering the mitigating and aggravating factors and the fitness of the previous disposition, the overall sentence in these circumstances of two years less one day incarceration concurrent on both counts would be appropriate and within the range.

[39] As for the ancillary orders, E.H. is ordered to provide a sample of his DNA pursuant to section 487.051 of the Code, and he is to register under the Sexual Offender Information Registration Act, pursuant to section 490.012 of the Code for life. Pursuant to section 743.21 of the Code, E.H. shall not communicate directly or indirectly with the complainants, V.M., W.M. (1) and their mother, W.M. while serving his custodial sentence.

[40] Finally, I decline to impose an order under section 161 of the Code so not to inhibit his relationship with his children. There was no allegation that E.H. preyed upon children in any public place. Moreover, the order was not imposed after the original trial.

Released: February 14, 2019

Signed: Justice P.T. O’Marra