Non-Publication and Non-Broadcast Order Notice

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2020-07-28

Court File No.: Region of Niagara: 998 S19 1440

Between:

Her Majesty the Queen

— and —

C. (M)

Before: Justice J. De Filippis

Heard on: January 7, February 28, March 17, June 18, 2020

Reasons for Judgment released on: July 28, 2020

Counsel:

• Mr. T. Morris — counsel for the Crown
• Mr. D. Protomanni — counsel for the accused

Reasons for Judgment

De Filippis, J.:

The Guilty Plea

[1] The defendant pleaded guilty to sexual interference.[1]

Background Facts

[2] At the time of these events the defendant was 66 years old and the victim was 8 years old. He is a retired plumber and lives with his wife. The victim resides with her parents. The defendant and his wife have known the victim since she was an infant and were close to her parents. The defendant and his wife were like grandparents to the child.

[3] On the day in question, the victim was having a sleepover at the defendant's home. At about 8 pm, his wife went to bed and he watched television with the child. While doing so, he put his hand down her underwear and placed his finger on her vagina. When the victim said "stop", he removed his hand and told her not to tell anyone or else he would not be able to see her again.

[4] The victim told her mother and the latter confronted the defendant by telephone. He explained that she must have had a bad dream. The police were called and the defendant was arrested six days later. After being cautioned and provided with his right to counsel, the defendant said he did not wish to say anything. He changed his mind and said, "let's do it, to hell with counsel". The defendant confessed and said, he is "not a monster…this was "a one-time thing…I have shattered this little girl…I touched her, there was no penetration"

Victim Impact and Harm

[5] In addition to these facts, I have the benefit of other information. The parents of the victim read statements to the court that describe the harm caused by the defendant to the victim and to them. They spoke clearly and tearfully. Among other things, I know that the victim feels "weird" and guilty. She fears the defendant and white trucks (his vehicle) and needs counselling. The parents expressed their great sense of betrayal at what a formerly trusted friend did to their child.

Defendant's Background

[6] From my review of a presentence report, I also know that until this crime was committed, the defendant led a good and productive life. Unable to have children of their own, he and his wife adopted a son at the age of four. However, they had to give up that child at the age of 12 because of his mental health issues and propensity for violence.

[7] The defendant's wife suffers from several illnesses, including Multiple Sclerosis and Obstructive Pulmonary Disease. I understand the victim's parents dispute the severity of these illnesses. On the other hand, the defendant told me that on one occasion his wife would have died if he had not been on hand to take her to a hospital. Without a proper hearing, I cannot reconcile these apparently inconsistent reports. However, it is obvious that the defendant plays an important role in caring for his wife.

[8] The defendant told the author of the presentence report that he cannot explain why he acted so inappropriately and added that he is devastated that he acted this way towards a person he cared for. The defendant's wife expressed shock and said "it's not like him". She confirmed that he "cries about it". She remains supportive of her husband.

[9] In a statement to the court, the defendant tearfully apologized to the victim, her parents, and to his wife for what he had done. He said that he was less concerned about his fate [in possibly going to jail] than that of his wife, because of her medical issues.

Sentencing Submissions

[10] The Crown suggests that an appropriate sentence is a period of custody in the range of 6-9 months. The Defence does not quarrel with this, but submits that the incarceration should be served in the community, by way of house arrest (i.e. a conditional sentence order). In the alternative, the Defence seeks an intermittent jail sentence to be served on weekends, so that the defendant can continue to care for his wife. I note that the alternative argument was advanced before the emergency measures taken by authorities in response to the current pandemic. I understand that, as part of that response, correctional facilities will not accept prisoners serving intermittent sentences, because of the need to minimize people coming and going to and from the jail. As such, if I acceded to this argument, it would be a meaningless sentence.

Conditional Sentence Analysis

[11] Section 742.1 of the Criminal Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

[12] Parliament directed that this offence carries a minimum mandatory sentence of 90 days in jail. That provision has been ruled unconstitutional by the Courts. Accordingly, the defendant is eligible for a conditional sentence if he meets the other criteria. In my opinion, he does not meet the fourth criterion.

Sentencing Principles: R. v. Friesen

[13] Since this offence involves the abuse of a person under the age of 18 years, I must give primary consideration to the objectives of denunciation and deterrence. This is especially so, because the defendant committed the offence while in a position of trust; see sections 718.01 and 718.2. In applying these principles, I am guided by the recent decision, by the Supreme Court of Canada, in R. v. Friesen, 2020 SCC 9.

[14] In Friesen, the Court provided comprehensive guidance to lower Courts by restating and reformulating certain governing principles in cases of sexual interference. These are the four messages that I take from Friesen: (1) Protecting children from wrongful exploitation and harm defines the legislative scheme of sexual offences against children; (2) Understanding this wrongfulness and harm is the critical duty of sentencing judges; (3) The performance of this duty means that those who commit this offence will usually go to jail; and (4) Exceptional circumstances, that justify a non-custodial sentence, are those that mitigate an offender's moral responsibility, such as mental or cognitive disabilities.

Mitigating Factors

[15] I acknowledge that the defendant's confession and guilty plea represent substantial and genuine remorse. His statement to the court was sincere. He does not have a criminal record. Moreover, I recognize that given his age, the defendant is at greater risk if he contracts COVID 19 while incarcerated and, in any event, his sentence will be harder to endure because of his concern about this potential risk. I also accept that a jail sentence will create difficulties for his wife. These personal circumstances of the defendant are considered separately from, and do not lessen, the seriousness of the offence. Personal circumstances are relevant in determining proportionality in light of the seriousness of the offence: R. v. Schofield, [2019] B.C.J. No. 22 (BCCA).

[16] The defendant's moral culpability is high; he abused a young girl and violated the trust she and her parents placed in him. The parents understandably feel guilty about their faith in the defendant. However, they could not have known what would happen and are not at fault. In my opinion, the defendant's personal circumstances do not justify a non-custodial sentence. However, these circumstances are important and serve to mitigate the length of custody to be imposed.

Sentence

[17] The defendant is sentenced to three months in jail. On his release from jail, he will be subject to a probation order for two years on these terms: He must report to a probation officer within two days, and thereafter, as required. He must take counselling as directed. He cannot communicate, directly or indirectly, by any means, with the victim or members of her immediate family. He is prohibited from being within 100 metres of any place he knows the victim or members of her immediate family to reside, go to school, work or worship.

Ancillary Orders

[18] I also impose the following ancillary orders: The defendant will supply a sample of his DNA and register with the federal sex offender registry (SOIRA) for 10 years. He is prohibited, pursuant to section 109 from possession weapons as defined therein.

[19] The Crown seeks an order under subsections 161(a), (a.1) and (c). There is nothing before me to suggest that the defendant is a risk to persons present in parks, retail stores, and other public places. As such, I would narrow the condition in paragraph (a) and (c). However, I consider it appropriate to add the prohibition set out in paragraph (b). Accordingly, the defendant is prohibited, for a period of 10 years, from:

(a) Attending at a public swimming area or community centre where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground.

(a.1) being within 100 metres of any place he knows the victim of the present offence, or any member of her immediate family, to reside, go to school, work, or worship at.

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact with a person who is under the age of 16 years, while in his residence, or other private place, unless he is in the immediate company of his wife.

Victim Fine Surcharge

[20] The defendant will pay a victim fine surcharge in the amount of $100.00, within 6 months.

Released: July 28, 2020

Signed: Justice J. De Filippis

Footnote

[1] The defendant was to have been sentenced by another judge on January 7, 2020. When he did not arrive at court, the guilty plea was re-entered before me on the consent of that judge and counsel. Sentencing in this matter was adjourned twice (March 17 and June 18) because of COVID 19.