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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2020-11-03

Court File No.: Niagara Region 998 18 F2581

Between:

Her Majesty the Queen

— and —

J.E.

Before: Justice J. De Filippis

Heard on: July 26 & September 22, 2020

Reasons for Judgment released on: November 3, 2020

Counsel:

• Mr. H. Limheng — counsel for the Crown
• Mr. M. Evans — counsel for the defendant

Judgment

De Filippis J.:

THE OFFENCE

[1] The defendant is married to, and separated, from M.L. Her sister is the victim in this matter. She was 17 years old at the time of the offence. These are the facts:

In early May 2018, the defendant and victim returned to his residence after going for a boat ride. On the way back, the defendant bought her a coffee. The victim consumed it and fell asleep at the residence. She awoke around 1 am laying on her back with the defendant crouching over her and doing up his pants. She has no knowledge of what happened and called her mother.

Later that month, the defendant and victim went out for a coffee. She later became tired and became aware of the defendant fidgeting with her clothing.

On May 30, the victim went to the defendant's home for a birthday party for the defendant's son (i.e. her nephew). She had a coffee and felt tired. She became aware of the defendant lifting her dress and "grinding on her" [over her clothing]. About 30 minutes later, while the victim sat on the couch, the defendant put a pillow on her lap and lay his head on it. The victim felt his hand on her thigh and told him she was leaving. He replied that he "wasn't trying to creep her out". On a subsequent date, the defendant sent the victim a text message reporting that, "I only went to your thigh and I won't do it again". He also said that the coffee – "was supposed to be for me and I gave you the wrong one, sorry". He later explained he had put muscle relaxant in the wrong coffee.

[2] The defendant was originally charged with sexual assault and administering noxious substance. He pleaded guilty to the former and denies the mens rea for the other charge. The Crown did not pursue that count.

[3] At the time of the offence, the defendant was 29 years old. He is now 31 years old. He does not have a criminal record.

PSYCHOLOGICAL AND PRESENTENCE REPORTS

[4] I have a report from Dr. Margaret Jordan dated August 2, 2018 (prepared soon after the defendant's arrest in this matter). According to the psychologist, the defendant has a history of "developmental delay and behaviour regulation issues". He also has Klinefelter Syndrome (an extra X chromosome). His intellectual and adaptive functioning are both "extremely low" – his scores place him within the first one percentile for Canadian adults. Dr. Jordan opines that the defendant meets the criteria for a Developmental Disability within the meaning of the Ontario Disabilities Program.

[5] The defendant's mother told the author of the presentence report that her son "knows right from wrong but has difficulty thinking things through or long term in order to recognize possible consequences of his actions". In addition to Klinefelter Syndrome, the defendant has Hypospadias. Together, these conditions cause genital deformity, low testosterone levels and low sperm counts. He also suffers from Oppositional Defiant Disorder. He has struggled intellectually, emotionally, and physically. He underwent many surgeries prior to the age of nine. The defendant has had a variety of jobs. His mother noted that he did not finish high school and was often verbally bullied and physically abused by his peers. She added that he has no friends and is often taken advantage of by others. She fears he will not survive jail.

[6] The victim told the author of the presentence report that she and the defendant were close. At the time of this offence she dropped out of school and later struggled with anxiety. She has since returned to her studies, is on medication, and takes counselling. She has asked me to prohibit the defendant from having any contact with her.

SUBMISSIONS

[7] The Crown submits that six months in custody is warranted, followed by probation. The Crown seeks four ancillary orders; DNA, SOIRA, 109, and 161. Counsel anchors his submission on the recent Supreme Court of Canada decision in R. v. Friesen, 2020 SCC 9. The Crown concedes that the defendant "functions at a different level" and that jail will be hard on him but argues these personal circumstances "do not take the case out of jail".

[8] The Defence points to the defendant's diminished moral culpability and strong support of his mother in advocating for a conditional sentence order in the range of 12 to 15 months. Counsel argues that, given the defendant's intellectual limitations and physical challenges, jail will be especially hard for him to endure. The Defence does not dispute the need for probation or the ancillary orders.

CONCLUSIONS

[9] Since this offence involves the abuse of a person under the age of 18 years, the Crown is correct to tell me I must give primary consideration to the objectives of denunciation and deterrence: See section 718.01 of the Criminal Code and Friesen.

[10] In Friesen, the Supreme Court of Canada 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 that decision: (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. With respect to the latter, the Court stated (at paragraph 91),

…..The proportionality principle requires that the punishment imposed be 'just and appropriate'. . . .First, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender's conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability

[11] I do not have a formal victim impact statement. However, I know that the victim feels betrayed and suffered emotional harm. It appears she is improving. Of course, this can take much time for sexual assault victims. I take this into account. However, there are other considerations. As noted in Friesen, there is a wide spectrum of misconduct in such cases. More importantly, is the fact that the defendant is a first offender with cognitive deficits that substantially diminish his moral blameworthiness. This is described in the psychological and presentence reports and summarized above.

[12] Section 742.1 of the 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.

[13] The present offence does not carry a minimum mandatory sentence. As such, the defendant is eligible for a conditional sentence if he meets the other criteria. In my opinion, he does so. 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. In this regard, I should note that 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.

[14] The defendant 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;

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

4. Not to communicate, directly or indirectly, by any means with the victim or be within 100 metres of any place the defendant knows her to live, work, go to school, or worship;

5. For the first eight months he will always be confined to his home, 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;

   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.

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

[15] 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 two years on the terms set out in clauses 2 to 4 in the preceding paragraph.

[16] I also impose the following ancillary orders: The defendant will register with the federal sex offender registry (SOIRA) for 20 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 Code from possession of weapons as defined therein.

[17] As requested by the Crown, the defendant is subject to an order under subsection 161(b) of the Code for a period of five years. I also consider it prudent to add subsection (a.1). Accordingly, the defendant is prohibited from:

(a.1) being within 100 metres of any place he knows the victim of the present offence to live, work, go to school, 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 unless, at all times, he is in the immediate company of one of his parents, or his spouse.

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

[19] My reasons and the psychological report to be provided to the supervisor and probation officer. These officers are authorized to provide these documents to anyone providing counselling to the defendant, as directed by me.

Released: November 3, 2020

Signed: Justice J. De Filippis