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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2020-08-04

Court File No.: Region of Niagara 19 S2753

Between:

Her Majesty the Queen

— AND —

Francisco Colocho-Romero

Before: Justice J. De Filippis

Heard on: February 18 & July 22, 2020

Reasons for Judgment released on: August 4, 2020

Counsel:

• Mr. T. Morris — counsel for the Crown
• Mr. S. Buchanan — for the defendant

Reasons for Judgment

De Filippis, J.:

Guilty Plea and Assessment

[1] On February 18, 2020, the defendant pleaded guilty to sexual interference committed eight months earlier. Before pleading guilty, following a judicial pretrial held by me, he consented to an order that he be assessed under section 21 of the Mental Health Act. This was undertaken on an outpatient basis at St. Joseph's Health Care in Hamilton.

[2] It is not controversial that the defendant should be subject to supervision and provided with counselling services. The parties also agree to the ancillary orders set out below. In this regard, I will explain why I have modified the terms of the s. 161 order. The point of dispute is whether the defendant should be sent to jail or serve a period of house arrest, pursuant to a conditional sentence order. The Crown suggests a prison term in the range of six to nine months. The Defence submits that a 12-month conditional sentence order should be imposed. These reasons explain why I agree with the Defence.

Facts of the Offence

[3] The facts of the offence are simple: On the day in question, the defendant, then 25 years old, went outside his home and approached a nine-year-old girl. She lived nearby but was a stranger to him. He showed her a photograph of a dog and said it had escaped. He then put his hand up her dress and touched her vagina. Within seconds, he ran back to his home. The young girl reported the matter to her mother and after police investigated, the defendant was arrested.

Victim Impact

[4] I received victim impact statements from the young girl and her mother. The former told me that the offence has "changed family relationships". She feels uncomfortable with a male teacher and "miss[ed] a lot of school". She added that she feels "uncomfortable about myself, I don't like anyone even my mom to see me change my clothes". The young girl asked me to keep the defendant away from her. The young girl's mother confirmed these changes in her daughter. Indeed, she stated that "My daughter was a carefree child….. All that changed on June 4, 2019" [the date of the offence] and that she has not hugged her grandfather since the offence. She added that she feels guilty because she worked late on the day in question and the victim was unable to reach her immediately after the incident. She should not feel guilty. The defendant is to blame, not her.

Presentence Report

[5] I also have the benefit of a presentence report. It provides these details: The defendant was raised by financially challenged but good parents. The latter noticed behavioural changes in their son in his teens. The defendant began to withdraw from school, his grades plummeted, and he isolated himself. He also began using alcohol and drugs. By the time this offence occurred, he was abusing alcohol on a daily basis. His employment and education are described as "mediocre" and his "female pursuits" were unsuccessful. Frustration and low self-esteem led to poor coping choices; along with substance abuse, he regularly viewed pornography. The defendant told the author of the presentence report that he does not have a sexual interest in young girls, but admitted he holds sexual gratification in high regard, is impulsive, and has had thoughts that alarm him. He added that he knows he needs help and, since this charge was laid, has actively participated in programs offered by the Canadian Mental Health Association.

Mental Health Assessment

[6] As already noted, the defendant consented to a court ordered assessment, pursuant to section 21 of the Mental Health Act. The resulting comprehensive report is most helpful. Simply put, it is the opinion of Doctors Alanna Courtright and Gary Chaimowitz (both psychiatrists), that the defendant's unresolved mental health issues mean he is at a "moderately high" risk of sexual recidivism.

[7] The defendant told the psychiatrists the following: In the months leading up to the event he was becoming increasingly sexually frustrated by the lack of an intimate relationship. On the day in question he consumed a large can of beer and a cannabis edible and was "under the influence". He decided to confront his anxiety about meeting a woman by setting out to have a casual conversation with a woman in his neighborhood. He said he "threw age out the window" and approached the victim in this case. The defendant described his action as impulsive, but this is undermined by his later admission that he fabricated a story about his lost dog and showed a picture of a dog to the victim. The defendant does not have a dog. He also admitted being aroused by touching her. He disclosed that he soon felt distressed and realized his actions were wrong.

[8] After conducting several tests, the psychiatrists offer the following diagnoses: The defendant suffers from Persistent Depressive Disorder, a chronic, low grade, illness that impairs personal, social, educational or vocational functioning. He is also afflicted by Anxiety Disorder, characterized by pronounced fear of social situations in which he may be judged by others. The third diagnosis is Alcohol Use Disorder. This lessens inhibitions. In the absence of self-reporting or laboratory data, the doctors could not diagnose Paraphilic Disorder, Borderline Personality Disorder, and Pedophilic Disorder. It is noted that although the defendant denied being sexually attracted to children, he admits being attracted to teenage girls.

[9] The assessment presents the defendant as an individual plagued by feelings of inadequacy, insecurity, and anger. He lacks the social skills to form meaningful adult relationships and has experienced serious problems with alcohol and cannabis consumption. It is obvious that the defendant requires further assessment, counselling and treatment. Indeed, the defendant has been apprehended under the Mental Health Act in the past for suicidal ideas. It is also clear that until his mental health issues are resolved, he must not consume alcohol or cannabis.

[10] The authors of the assessment noted that the defendant declined to participate in phallometric testing. The defendant addressed this in his statement to the court at the conclusion of submissions. He told me that the doctors had suggested he might have pedophiliac tendencies. The defendant explained that he does not agree and was disturbed by having to take phallometric testing. He understands he will be ordered to take counselling and said he will agree to such testing as part of any future assessments. The defendant also emotionally expressed remorse for what he had done. I accept the sincerity of his apology and his willingness to submit to phallometric testing.

Sentencing Principles

[11] This matter differs from many sexual interference cases in that the accused is not a family member or other person in a position of trust – a most aggravating factor. Nevertheless, 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: See section 718.01 of the Criminal Code. In applying these principles, I am guided by the recent decision, by the Supreme Court of Canada, in R. v. Friesen, 2020 SCC 9.

[12] 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.

Conditional Sentence Criteria

[13] 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.

[14] 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 meets these criteria. I rarely impose conditional sentence orders without the electronic supervision program (ESP). This program means a person sentenced to house arrest cannot cheat. In my opinion, this enhances public confidence in this sentencing option. The defendant has been approved for ESP.

Mitigating Factors

[15] The defendant does not have a prior criminal record. He spent 30 days in jail before being released on bail with relatively strict terms. I also consider that he pleaded guilty and consented to an assessment under the Mental Health Act. These facts mitigate the penalty. What is particularly important to my decision are the mental health issues. This offence is the result of unresolved sexual dissatisfaction and poor problem solving. Appropriate counselling, assessment, and treatment is necessary to manage the risk of further misconduct.

Sentencing Decision

[16] Having regard to this offence and offender, I am of the view that a conditional sentence order is fit and proper. House arrest is not jail, but, even with the exceptions I will describe, it is a significant restriction on liberty. In this unusual case, it can serve to deter and denounce. Moreover, along with the probation to follow and the ancillary orders, it meets the primary purpose of all sentencing; namely, protection of the public.

Conditional Sentence Order Terms

[17] I note the defendant has served the equivalent of 45 days in custody. He will serve a conditional sentence for a period of 12 months, in accordance with the electronic supervision program and subject to these terms:

1. Report to a supervisor of conditional sentence orders within two days, and thereafter, as required;

2. Attend and actively participate in all assessments, counselling, and rehabilitative programs as directed by the supervisor, including psychiatric/psychological and substance abuse;

3. Continue participation in services offered by the Canadian Mental Health Association unless permission is granted by the supervisor to leave;

4. Agree to the release of any medical or other information necessary to monitor compliance with this order;

5. Not to communicate, directly or indirectly, by any means with the victim in this case, or her mother, or be within 100 metres of any place the defendant knows them to live, work, go to school, or worship [their names will appear in the order];

6. Not to be in the company of any person under the age of 16 years of age, except for blood relatives, unless accompanied by an adult approved of, in advance, by the supervisor;

7. Not to purchase or consume alcohol, cannabis, or illicit drugs;

8. For the first eight months he will be confined to his home at all times, except as follows:

   i. Medical emergencies;

   ii. To go directly, to and from, and be at, religious observance, employment, and education;

   iii. To go directly, to and from, and be at, medical, dental, or legal appointments, and at assessment, counselling, or rehabilitative programs;

   iv. For personal shopping for a four-hour period per week, provided he is in the immediate company of one of his parents;

   v. Except for medical emergencies, he must provide the dates and times for the forgoing exceptions to the supervisor, in advance of such activities;

   vi. For any other purpose that may be approved of by the supervisor;

   vii. Carry his conditional sentence order on his person whenever he is outside the home;

9. For the final four months the defendant is subject to a 10 pm to 6 am curfew, except for medical emergencies, employment or while in the immediate company of one of his parents.

Probation Order

[18] At the expiry of the conditional sentence order, the defendant will report immediately to a probation officer (often the same person as the supervisor). He will be on probation for three years on the terms set out in clauses 2 to 7 in the preceding paragraph.

Ancillary Orders

[19] I also impose the following ancillary orders: The defendant will register with the federal sex offender registry (SOIRA) for 10 years and supply a sample of his DNA. This means the police will know his most recent address at all times and he will be readily identified if he leaves his DNA at any crime scene. He is prohibited, pursuant to section 109 of the Criminal Code from possession weapons as defined therein.

Section 161 Order

[20] The Crown seeks an order under subsections 161 (a) (a.1) and (c) of the Criminal Code. I would narrow the conditions in paragraphs (a) and (c) to protect the public without being unduly restrictive. Also, the length of the order means I should account for the possibility the defendant will have children of his own one day. Moreover, I consider it appropriate to add the prohibition set out in paragraph (b).

[21] 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, unless, at all times, he is in the immediate company of one of his parents, his spouse, or his own child;

(a.1) being within 100 metres, of any place he knows the victim of the present offence, or her mother, to live, work, go to school, or worship [their names will appear in the order];

(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 unless, at all times, he is in the immediate company of one of his parents, or his spouse;

(c) having any contact, with a person who is under the age of 16 years, while in his residence, or other private place, unless, at all times, he is in the immediate company of his one of his parents or his spouse;

Victim Fine Surcharge

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

Implementation and Supervision

[23] My reasons and the section 21 Mental Health Act Assessment are to be provided to supervisor and probation officer. I direct them, in particular, to the recommendations in the Assessment, including encouraging the defendant to undergo phallometric testing. The supervisor and probation officer are authorized to provide copies of the Assessment to anyone providing the assessment, counselling and rehabilitative programs directed pursuant to the conditional sentence and probation orders I have imposed.

Released: August 4, 2020

Signed: Justice J. De Filippis