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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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: 2020-01-08
Court File No.: Toronto Region – Metro North - 18−45000924
Between:
Her Majesty the Queen
— and —
Samuel Lim
Before: Justice John McInnes
Heard on: June 26, 2019
Reasons for Sentence released on: January 8, 2020
Counsel:
- Brianne Bovell, counsel for the Crown
- Gerald Chan & Stephen Aylward, counsel for the defendant Samuel Lim
Reasons for Sentence
McINNES J.:
[1] Introduction
On June 26, 2019, Samuel Lim pled guilty to one Count of Sexual Interference contrary to s. 151(b) of the Criminal Code. Mr. Lim acknowledged he engaged in sexual touching with the complainant S.C., including a brief act of fellatio, when he was 20 and S.C. was 14. On October 2, 2019, I sentenced Mr. Lim to a six-month conditional sentence followed by a term of probation. Oral reasons for sentence were given at that time with fuller written reasons to follow. These are those reasons.
1. The Offence
[2] The facts of the offence are set out in the following Agreed Statement of Facts ["ASF"] which was also acknowledged as accurate by Mr. Lim as part of his guilty plea:
Between 2015 and 2017, Samuel Lim (DOB […], 1997) and S.C. (DOB […], 2003) met at the […] Church located at […] in North York.
In the summer of 2017, Mr. Lim was working as an instructor/counsellor at a day camp at the Church. S.C. attended the camp, and also had volunteer responsibilities. Mr. Lim and Ms. S.C. became friends at this time.
When Mr. Lim and S.C. became friends, Mr. Lim had just broken up with his girlfriend, A. A. was 20, and friends with S.C.
When camp finished at the end of summer 2017, Mr. Lim initiated an on-line relationship with S.C. and they began exchanging messages over Facebook Messenger and voice calling over Skype.
Between September 2017 and January 2018, Mr. Lim and S.C. exchanged messages over Facebook Messenger that were sexual in nature. During that time, Mr. Lim asked S.C. for nude photos, and she did the same. This led to a mutual exchange of images of both of them using Snapchat. Mr. Lim also sent S.C. a video of his penis.
Sometime between September 1, 2017 and October 31, 2017, Mr. Lim and S.C. were at the Church. Both attended the baptismal area of the Church and sat down in the chairs located in that space. They had a brief conversation and then Mr. Lim briefly touched one of S.C.'s breasts over her clothing. An unknown person entered the room, which caused them both to get up and leave.
Sometime between October 1, 2017 and October 31, 2017, at approximately 12:00 pm, Mr. Lim and Ms. S.C. were at the Church. Both attended the Youth Room in the Church and sat down on a sofa located in that space. Mr. Lim briefly touched S.C.'s breasts and buttocks under her shirt and pants, and briefly touched her vagina over her pants — she told him that he could not touch her inside because she was on her period. Mr. Lim then asked S.C. to perform fellatio on him. He pulled down his pants and gently put his hand on the back of S.C.'s head, motioning her towards his penis. She felt pressured because she did not know what to do: she told police that this was her first time being intimate with a male. S.C. performed fellatio on Mr. Lim. After several seconds, Mr. Lim pulled up his pants and left the room. He did not ejaculate.
2. Circumstances of the Offender
[3] Mr. Lim was born and raised in Toronto. He recently turned 22 years old, and was 20 at the time he committed the offence. He has no criminal record or prior involvement with the criminal justice system.
[4] Mr. Lim lives in Toronto with his mother, Elaine Cheng. His parents separated when he was five years old. He was raised by his mother, Ms Cheng, who was, and is, employed as an early childhood educator. After his parents separated, Mr. Lim had only limited contact with his father who died in May, 2018. By their mutual account, Mr. Lim has had a generally positive and supportive relationship with his mother, albeit one that has been fraught at times and was strained to some degree after he was charged. Ms Cheng was present in court to support her son throughout these proceedings.
[5] Mr. Lim is single. He has had one long-term romantic relationship with a young woman of approximately the same age named "A.". This relationship lasted about two years on an on-and-off basis and ended with finality in the summer of 2017. This was an emotionally difficult experience for Mr. Lim. It was around that time that he befriended S.C. whom he had met through A.
[6] After graduating high school, Mr. Lim entered an undergraduate program in computer science at York University. After completing three years in that program Mr. Lim's interest shifted to actuarial science. Starting in the Fall of 2018, he began taking courses relevant to pursuing that field of study and he officially transferred into the actuarial sciences program in early 2019. He has now entered a new year of that program and is enthusiastically pursuing it through his courses and extracurricular involvement. He was recently made the Director of Marketing of the Actuarial Student Association, a student club that represents actuarial science students at York University. He has joined study groups at university, and it appears he is now motivated and diligent in pursuing his ambition to become an actuary.
[7] By all accounts, Mr. Lim is a kind, considerate, and compassionate young man. Rev. P.W. of the […] Church, has known Mr. Lim since 2012 through his involvement with the Church. Rev. P.W. writes that "[i]n view of Samuel's community involvement at […] Church and my interaction through the years, his present sexual offence is totally out of character for him". Similarly, a friend of Mr. Lim's from York University, Hunain Khalid, writes that he was "shocked" to learn of the charges in light of his impression of Mr. Lim's character. The defence filed other letters to much the same effect.
[8] After he was charged, Mr. Lim retained Social Worker Stephanie Swayne to conduct an assessment for court purposes and, in addition, for regular counselling sessions. From August 24, 2018, to February 19, 2019, he met with her on a weekly or biweekly basis. Mr. Lim has successfully completed this treatment and is no longer seeing Ms. Swayne regularly as she does not see a clinical need for regular visits.
[9] Mr. Lim's family and friends report the experience of being charged with the offence before the court had a profound impact on him and that he has changed for the better in response both to being charged and to the counselling he has undergone with Ms Swayne. Rev. P.W., for example, reports that in his recent personal interaction with Mr. Lim he has "been impressed by his communication and thinking. He comes across as more confident and mature than before. He is a motivated, dedicated, and hardworking young man who wants to do well at school."
[10] In her assessment report, Ms Swayne indicates that at the time Mr. Lim became involved with S.C. and committed the offence before the court, he was in emotional turmoil due to his break-up with A., socially isolated, in regular conflict with his mother and struggling at school in a program that did not interest him. Mr. Lim acknowledged to Ms Swayne that he felt some discomfort about the sexual dimension of his relationship with S.C. and that he failed to set appropriate boundaries with her. According to Ms Swayne, Mr. Lim "realized at the time that his behaviour was inappropriate, but he was not aware of the harm that he was potentially causing to the victim or the legal consequences that he could be facing."
[11] In counselling Mr. Lim, Ms Swayne focussed on the harm his behaviour caused, the actions he took or failed to take, the surrounding context, and the dimensions of healthy relationships more generally. In her report, Ms Swayne expressed the following opinion:
Mr. Lim's behaviour occurred in a context in which he failed to set appropriate boundaries or appreciate the potential consequences of his actions for himself or the victim, but he did not set out to intentionally cause any harm to the victim, nor was his behaviour a result of a deviant sexual interest in minors or non-consenting sexual activity.
[12] The defence also tendered a formal psychiatric risk assessment prepared by Forensic Psychiatrist Dr. Jonathan Rootenberg. Dr. Rootenberg found Mr. Lim to be genuinely remorseful and felt he had gained insight into the ramifications of his behavior. He also noted Mr. Lim has led an otherwise pro-social life and that Mr. Lim's current involvement with the legal system has been a sobering and frightening experience for him.
[13] Dr. Rootenberg found no evidence of any underlying mental health disorder or paraphilia, including pedophilia. He opined that there is a very low risk that Mr. Lim will reoffend violently and/or sexually, which conclusion he based on his clinical impression, the results of psychological testing and actuarial and structured professional judgment risk assessment inventories.
[14] I accept Dr. Rootenberg's conclusion and, indeed, I find it unsurprising in light of the other information about Mr. Lim that is before me. I also note that it comports with Ms Swayne's observation that Mr. Lim had led a "pro-social lifestyle" without "any indicators of deviant sexual interest…substance or mental health problems". She also noted that Mr. Lim's "supportive mother…and pro-social peer relationships, are all protective-risk-mitigating factors."
[15] At the conclusion of the sentencing hearing last June, I asked Mr. Lim if he wished to say anything before I sentenced him. I did not intend to sentence him that day, but I did wish to take whatever he might wish to say into account in determining the sentence. Mr. Lim chose to express his remorse for committing the offence in a brief address to me which I found compelling and authentic.
3. The Impact of the Offence on the Victim
[16] S.C. provided a victim impact statement. This is a summary of its content:
When S.C.'s mother became aware of the offence, she became more strict and did not allow S.C. to go out with her friends. This left S.C. feeling jealous of her siblings because they get to go out and I do not, because nothing happened to them". S.C. feels sad and overwhelmed and trapped at home;
As a consequence of the offence, it became hard for S.C. to think about dating or relationships; although S.C. has been dating someone recently, she finds she is not even able to hold hands with him;
The offence negatively affected S.C.'s friendships within her community and church;
As a result of the offence, S.C. lost her relationship with A. who had been a "really, really good friend" of hers; and,
Especially in the first few months after the offence, S.C. felt afraid to go to public, did not want to go to school just wanted to stay home. S.C. has tried not to think about it but finds it hard not to.
4. Positions of the Parties
[17] On behalf of the Crown, Ms. Bovell submits the and based on the range of sentence in broadly similar cases, she submits a 90-day intermittent jail sentence fully takes into account the mitigating factors and is at the same time the lowest sentence capable of addressing the primary sentencing objectives of denunciation and general deterrence.
[18] On behalf of the defendant, Mr. Chan submits that in the unique circumstances of this case a sentence of imprisonment is not required to vindicate the sentencing objectives of denunciation and general deterrence and that, moreover, I should grant Mr. Lim a conditional discharge and place him on probation. A discharge would be in Mr. Lim's best interest as he has demonstrated the ability to "learn and reform" through counselling, is clearly not in need of specific deterrence and a "criminal conviction would undermine his rehabilitative efforts by imperilling his ability to pursue his chosen profession as an actuary". A conditional discharge would not be contrary to the public interest, Mr. Chan submits, because in light of the mitigating factors, the objectives of denunciation and deterrence can be adequately addressed without entering a conviction.
5. Analysis
[19] Section 718 of the Criminal Code declares that the fundamental purpose of sentencing "is to contribute... to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more…objectives…", including denunciation, general and specific deterrence, rehabilitation and the promotion of a sense of responsibility in the offender.
[20] Section 718.1 requires me to fashion a sentence that is "proportionate to the gravity of the offence and the degree of responsibility of the offender". The principle of proportionality requires me to examine the circumstances of both the offender and the offence so that the "punishment fits the crime", i.e. the sentence properly reflects the seriousness of the offence, the degree of culpability of Mr. Lim in committing it and the harm that resulted.
[21] The related "parity" principle mentioned in s. 718.2(b) requires me to impose a sentence that is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[22] Section 718.2 also provides that the sentence I impose should be "increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender".
[23] I will begin with the mitigating factors.
[24] A very significant mitigating factor in this case is that by pleading guilty Mr. Lim has demonstrated his remorse for committing the offence. The steps Mr. Lim took after he was charged, most importantly entering into and completing counselling with Ms Swayne, his statement at the conclusion of the sentencing hearing and the various other ways in which Mr. Lim has demonstrated he has taken the charge seriously are all additional evidence of remorse.
[25] It is evident to me that Mr. Lim is genuinely remorseful about his actions. While his conduct constituted a serious offence, I believe Mr. Lim is a good person who made a very serious mistake. He has learned from that mistake and will likely continue to learn from it as he matures.
[26] A second significant mitigating factor in this case is the fact that Mr. Lim is a youthful first offender. His young age reduces "the degree of responsibility of the offender" referred to in s. 718.1 inasmuch as youthful offenders are less mature than older offenders. This is especially so in the case of a youthful first offender like Mr. Lim.
[27] At the original sentencing hearing, Mr. Chan submitted that Mr. Lim's age mitigates in a second and distinct way. Mr. Lim could have advanced a consent defence had he been "less than five years older" than S.C.: Criminal Code, s. 150.1(2.1). He is, however, five years, 10 months and 17 days older than S.C., and thus he could not rely on consent. Mr. Chan argued the gap in age between Mr. Lim and S.C. fell only ten and a half months outside the statutory "close-in-age" defence reduced the gravity of the offence and, as such, should be treated as a mitigating factor.
[28] I need not address that submission in detail because, as Mr. Chan candidly acknowledged in supplementary materials filed after the original sentencing hearing, the Court of Appeal for Ontario subsequently decided in R v E.C., 2019 ONCA 688 that it is not open to sentencing judges to treat relative proximity to the bright line as a mitigating factor [see E.C., para. 14].
[29] Before turning to the aggravating factors, I wish to address the question of de facto consent which, as I will explain, I find to be a neutral factor in this case, i.e. neither mitigating nor aggravating. In E.C., supra, the Court of Appeal for Ontario held that "[d]e facto consent of an underage complainant is not a defence and cannot be a mitigating factor in a case of sexual interference": E.C., para 13; see also, R v Hajar, 2016 ABCA 222, para. 1; R v Scofield, 2019 BCCA 3, paras. 8 and 38.
[30] On the other hand, the absence of de facto consent would certainly constitute an aggravating factor in most if not all cases in which that factor was present. In the present case, the ASF is not explicit about whether S.C. subjectively perceived herself to be consenting to the various instances of sexual activity. However, in my view when it is read holistically, the ASF supports a positive finding that S.C. gave her de facto consent to all of the sexual touching with the notable exception of the act of fellatio. With respect to that act, the ASF as I read it is ambiguous and incapable of supporting a positive finding either way as to whether S.C. gave her de facto consent to that particular sexual act, especially in light of the Crown's obligation to prove disputed aggravating facts beyond a reasonable doubt: Criminal Code, s. 724(3)(e); R v Gardiner, [1982] 2 SCR 368; R v Pearson, [1992] 3 S.C.R. 665.
[31] Since the law precludes treatment of de facto consent as a mitigating factor and the record does not support a positive finding of the absence of de facto consent in relation to the act of fellatio, it follows the presence or absence of de facto consent is simply a neutral factor in this case.
[32] The aggravating factors are for the most part bound up with the nature of the offence itself – the vulnerability of S.C. due to her age, the inherent power imbalance that undermines consent and the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance.
[33] In putting the matter this way, I do not mean to suggest that these are not very significant factors. As Ms Bovell correctly submits, the sentencing objectives of denunciation and deterrence are the primary objectives, and this is precisely because of these harms which inhere in the offence itself.
[34] Many of the aggravating factors seen in other cases are absent in this case. For example, in R v E.C., supra, there were clear indicia of exploitation above and beyond the age difference including, for example the fact that the accused in that case applied the young person with alcohol leading to her severe intoxication at the time of the offences. In this case, the harm and attendant moral blameworthiness almost exclusively subsist in the fact that Mr. Lim was an adult and S.C. was a child and capable of consenting in law.
[35] The Crown submits it is an aggravating factor that Mr. Lim, as an instructor at the church camp, abused a position of trust: Criminal Code, s. 718.2(1)(iii). Ms Bovell submits that "an instructor at a camp occupies a position of authority relative to camp attendees. This instructor-attendee relationship was the origin of Mr. Lim's and [S.C.'s] connection. As the adult in the environment and an instructor at the church camp, Mr. Lim had the responsibility of ensuring that his actions did not cross a line from friendship to sexual".
[36] In my view, the record simply does not support the conclusion that an instructor-attendee relationship was "the origin of Mr. Lim's and S.C.'s connection". The ASF indicated he was an instructor/counsellor and S.C. was an attendee who "also had volunteer responsibilities". The ASF is silent on the question of whether Mr. Lim served as an instructor or counsellor specifically in relation to S.C. Moreover, there was other information put before me (which was not contested by the Crown) indicating Mr. Lim met S.C. through A., who had been friends with S.C. The Crown has not established that Mr. Lim abused a position of trust or authority, certainly not to the requisite standard of proof beyond a reasonable doubt. Mr. Lim's responsibility to ensure the relationship did not become sexual flowed from the fact that he was the adult, not from the fact that he was an instructor at the camp.
[37] In the final analysis, I am obliged to fashion a sentence that achieves the sentencing objectives of general deterrence and denunciation without losing sight of Mr. Lim's and society's interest in his rehabilitation.
[38] Turning to the question of whether a conditional discharge is appropriate in this case, I note at the outset that many of the relevant criteria would favour granting a discharge. In my view, it would be in Mr. Lim's interest to receive a discharge, and, in certain respects, it would not be contrary to the public interest to grant him one. However, before I venture further on this point, it makes sense to first address the Crown's submission nothing short of a sentence of imprisonment can adequately vindicate the primary sentencing objectives of denunciation and deterrence. If the Crown is right about that then, perforce, I cannot grant a discharge.
[39] Turning next to the question of whether a sentence of imprisonment is required in this case, the starting point is to acknowledge the importance of the principle of restraint as it is expressed in s. 718.2(d), i.e. that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances".
[40] The principle of restraint assumes heightened prominence in the case of youthful first offenders. Prior to the imposition of a term of imprisonment, all other alternatives must be considered. Therefore if a less restrictive sanction is appropriate, it must be imposed. If two sentences are fit, the sentencing judge must impose the least onerous one: R v Hamilton (2004), 186 CCC (3d) 129, [2004] OJ No. 325 (CA), para. 96.
[41] As I have already mentioned, I believe Mr. Lim is a good person whose conduct since his arrest on these matters, his guilty plea, his active participation in counselling and evident insight all militate in favour of a lower sentence, or indeed, even a discharge.
[42] However, determining a fit sentence requires consideration of factors beyond Mr. Lim's personal moral blameworthiness, including the need to denounce the conduct of adults, even young adults, who engage in sexual activity with children outside the prescribed close in age exception, and to deter other persons from committing such offences.
[43] In this regard, I am mindful of that a sentence can only denounce conduct and deter others to the extent that it punitive. By definition, a deterrent sentence is more severe even than the offender might otherwise deserve, as the Supreme Court has explained:
General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.
R v BWP, [2006] SCR 941, paras 2-5.
[44] I agree with the Crown's submission regarding the applicable range of sentences available in this case. More specifically, in my view the 90 day intermittent sentence sought by the Crown falls well within and is perhaps even indeed a low at the lower end of the range, even taking into account the fact that this was a summary conviction proceeding as well as the various mitigating factors I have already referred to.
[45] Despite the very strong influence of the countervailing considerations I have mentioned, I have concluded that nothing short of a sentence of imprisonment is capable of adequately addressing the primary sentencing objectives in this case.
[46] Of course, even if a sentence of imprisonment is required to adequately vindicate the primary sentencing objectives of denunciation and general deterrence, I must be mindful that "a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence": R v Priest, [1996] OJ 3369 (CA), p. 545 (emphasis added). The vitality of this principle was recently re-affirmed in R v Barclay, 2018 ONCA 114, para. 50.
[47] I have considered all of the sentencing decisions provided to me by counsel do not propose to examine them in exhaustive detail. As is usually the case with ranges, there are various points of agreement and disagreement as between those cases on the facts of the present case. What emerges from a collective reading of the authorities is that offences of this nature generally require a sentence of imprisonment even when, as is the case here, the offender has positive antecedents, is remorseful, etc.
[48] To be sure, it is possible to imagine circumstances in which a disposition other than a sentence of imprisonment would be appropriate. It is sometimes said that the maximum available sentence for a particular offence is reserved for the "worst case and worst offender", although these terms are not intended to be taken literally. It seems to me that for offences like the one Mr. Lim had plead guilty to, a somewhat analogous principle applies, i.e. that sentences that do not involve a deprivation of liberty are only appropriate when both the circumstances of the offender and the offence itself as committed in the particular case militate in that direction.
[49] What we have in this case might loosely be described as "the best offender but not the best offence", the latter in the sense of being at the lowest end of the range in relation to moral blameworthiness. Consider, for example, the case of a an emotionally, socially and intellectually immature 22-year-old female offender who had been convinced by an emotionally, socially and intellectually precocious male just short of his 16th birthday to have ostensibly consensual intercourse; suppose the boy was at all times the initiator of the sexual contact, did not report the offence and did not at any time before, during or after regard himself as a victim in relation to the sexual activity. In such a case, something less than a sentence of imprisonment might well adequately address the objectives of denunciation and deterrence. I hasten to add that this hypothetical is meant as an illustration. There may be other possible situations in which a noncustodial disposition would adequately achieve the sentencing objectives of denunciation and deterrence.
[50] This hypothetical example is also intended as a foil that illustrates how Mr. Lim's moral blameworthiness in committing the offence is, while lower than in many cases, nevertheless not at the bottom. Mr. Lim was aware of the age gap and that the relationship was inappropriate. He had the cognitive and emotional capacity to recognize that what he was doing was wrong. Here, there was an element of exploitation albeit one that largely inherent in the age gap itself. As mentioned, Mr. Lim told his counsellor that he was aware that the relationship was inappropriate although that he was unaware it was illegal.
[51] I pause to note that I fully accept Mr. Lim's assertion that he did not appreciate that what he was doing constituted a crime but he had a duty to know the bounds of the law and ought to have educated himself on that point given his awareness that there was something inappropriate about the relationship on account of the age disparity. I should add that I applaud Mr. Lim for his candid admission that he was aware that what he was doing was, at least at some level, wrong.
[52] Recently in E.C., the Court of Appeal for Ontario allowed a crown appeal against the sentence of 6 months imprisonment and substituted a sentence of 18 months imprisonment. In that case the offender who was almost 22 years old "had believed the 15 year old complainant was over 16 but did not take reasonable steps to confirm her age, and that they had engaged in a single incident of de facto consensual intercourse in the "fuck hut"…and was sentenced based on this version of the evidence."
[53] After rejecting arguments from the defence on appeal that the close in age to the close in age exception as well as a de facto consent constituted mitigating factors, as I have already mentioned above, the Court of Appeal concluded that the six-month sentence imposed at trial was unfit. that in all the circumstances of this case, the respondent ought to have received a substantial reformatory sentence. Taking into consideration the various aggravating and mitigating circumstances that were present here, a sentence of 18 months' imprisonment was warranted.
[54] To be sure, in many respects the facts of E.C. are significantly worse than the facts in this case: the sentence in that case was imposed after a trial, the offender seemed to lack insight, he supplied the complainant in that case with alcohol and she became intoxicated at the time of the offence, the sexual activity included unprotected vaginal intercourse, the Crown proceeded by indictment in that case, etc.
[55] Nevertheless, in my view the range set by E.C. in the context of previous sexual interference cases of this general nature mandates at least some sentence of imprisonment in this case albeit not one nearly as lengthy as that the Court of Appeal found was fit in that case.
[56] Having concluded a sentence of imprisonment is required, I turn now to the question of whether such sentence can be served in the community through imposition of a conditional sentence order as opposed to being served in an actual custodial setting.
[57] Pursuant to s. 742.1 of the Criminal Code, a conditional sentence is available in this case if I am satisfied the appropriate sentence is less than two years, that such a sentence would not endanger the safety of the community and that it would otherwise be consistent with principles of sentence set out in s. 718 to s. 718.2 of the Criminal Code.
[58] The Crown has sought a sentence of less than two years. There is no suggestion Mr. Lim poses a risk to the community if given a conditional sentence; the contrary is true in fact, the community would be best served by having Mr. Lim as one of its active members. The real issue is whether a conditional sentence would adequately address the sentencing objectives of deterrence and denunciation.
[59] Before turning to that issue, however, I will now pause to address the impact of potential collateral consequences of conviction. A relevant consideration in arriving at the appropriate sentence in this case, although it is neither strictly speaking a mitigating or an aggravating factor, is the potential collateral consequences of a conviction, i.e. the potential negative impact of a conviction on Mr. Lim's future ability to gain licensure as an actuary: see, R v Pham 2013 SCC 15, [2013] 1 SCR 739, paras. 11 to 21; R v Folino, 2005 OJ No. 4737, para. 29; R v TPM 1977 OJ No 1023, paras 6-7.
[60] The "Disclosure of a Criminal Conviction Review and Assessment Procedures" of the Canadian Institute of Actuaries ["CIA"] was included in the sentencing materials filed by the defence. According to that policy, a CIA committee reviews the disclosure and makes a determination of "whether the criminal conviction puts the character of the individual in question, possibly tainting his or her ability to perform professional services, based on the criminal conviction assessment criteria in the Policy on Disclosure of Criminal Convictions". The determination is to be made in accordance with enumerated assessment criteria included in the policy. These include:
(i) whether the criminal conviction relates to the practice of the actuarial profession;
(ii) if not, whether the offence "puts the character of the member in question, tainting his or her ability to provide professional services" and/or whether it "is likely to undermine (perhaps irreparably) the trust of the public"; and,
(iii) whether it would "be unfair to prevent individual from earning a living and his or her chosen profession, given the nature of the offence that was committed", which criterion invites consideration of "proportionality" and "what fate does the member deserve based on the offence".
[61] It is impossible for me to identify any particular likelihood that the CIA would bar Mr. Lim from entry into the profession on account of a conviction in this matter. At first blush, it seems unlikely to me that any reasonable CIA committee properly applying the above criteria could conclude it was appropriate to bar Mr. Lim from that profession based solely on his conviction in this matter. I do, however, accept that despite my impression, there is some potential for the conviction I have entered in this case to preclude Mr. Lim from pursuing this career.
[62] I have considered this potential consequence as one factor in assessing whether it was appropriate to grant a conditional discharge, a disposition that by definition would have meant Mr. Lim could answer "no" to the question of whether he had any criminal convictions to disclose.
[63] As I make clear above, I concluded a sentence of imprisonment albeit one served in the community, is required in this case to adequately address the primary sentencing objectives. The potential for collateral consequences was one factor I considered in determining whether a sentence of imprisonment was necessary, albeit one that I placed comparatively little weight on. Having concluded a sentence of imprisonment was required, it was not open to me at law to impose a sentence that did not entail a criminal conviction. As I explained earlier, in some circumstances, and this is one, the law requires me to give primacy to the objective of deterring others from committing similar offences. In such cases, "the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity": R v BWP, [2006] SCR 941, para 5 [emphasis added].
[64] As a general proposition, sentencing courts grant discharges when a discharge is a legally available sentence and when in the court's view the offender is a person of good character despite the offence and as such should not be saddled with the future implications of a criminal conviction. Had the latter consideration been the only legally relevant consideration in this case, I would have granted Mr. Lim a conditional discharge without hesitation.
[65] When the time comes, the relevant committee of the CIA will apply the criteria and make the determination; it is not for me to tell that committee how to carry out its responsibilities or what decision it should make. That said, to the extent it may be useful to that committee to know the views of the judge who sentenced Mr. Lim, I offer the following observations. First, it is my view that while the offence was serious, Mr. Lim is nevertheless a person of good character who, as a very young man, made a serious mistake but went on to fully accept responsibility, evince significant remorse and, perhaps most importantly, to learn and mature from the experience of being held to account by the criminal process. Both the experts who assessed him and myself regard the risk he will reoffend to be very low.
6. Conclusion
[66] In my view, taking into account all of the mitigating factors I have mentioned as well as a significant albeit only a potential collateral consequence for Mr. Lim, the sentencing objectives of denunciation and deterrence can be achieved without imposing a sentence of actual incarceration. A conditional sentence strikes the right balance between the various considerations that pull so hard in each direction.
[67] As mentioned, when a conditional sentence is imposed it is normally of a greater length in a sentence of actual jail would be in the circumstances. The Crown's proposed sentence of 90 days intermittent is within the range and I have used it as a starting point in assessing the appropriate length of a conditional sentence. I conclude the appropriate sentence is a six-month conditional sentence which will include an initial 3 month period of virtual house arrest, followed by a term of probation.
[68] The transcript of the sentencing hearing including the discussions between myself and counsel regarding the terms and conditions of the sentencing and ancillary orders fully explicate their details and my reasons for imposing or declining to impose particular terms.
[69] Before leaving off, I wish to express my appreciation to both counsel for their highly professional and able presentations, both written and oral.
Released: January 8, 2020
Signed: Justice John McInnes