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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Ontario Court of Justice

Date: November 20, 2020

Court File No.: Halton 18-6908

Between:

Her Majesty the Queen

— and —

Subin George-Oomen

Before: Justice D.A. Harris

Heard on: October 16, 2020

Reasons for Sentence released on: November 20, 2020

Counsel:

• Annie Simitsis, counsel for the Crown
• Jordan Gold, counsel for the accused Subin George-Oomen

Reasons for Sentence

D.A. Harris J.:

Introduction

[1] Following trial, I found Mr. George-Oomen guilty of sexual assault.

[2] Crown counsel had elected to proceed summarily.

[3] Mr. George-Oomen is before me today to be sentenced.

[4] Crown counsel suggested that I should impose a sentence of imprisonment for nine months, followed by probation for two years.

[5] She also asked for the following ancillary orders:

1. a DNA order;
2. an order compelling Mr. George-Oomen to comply with the Sex Offender Information Registration Act for 10 years;
3. a weapons prohibition; and
4. an order pursuant to section 743.21 of the Criminal Code.

[6] Counsel for Mr. George-Oomen suggested that I impose a conditional discharge with probation containing strict conditions including house arrest. If I do this, a SOIRA order is not permitted. He agreed with the DNA order and the weapons prohibition.

[7] I find that the appropriate sentence is imprisonment for four months followed by probation for three years.

[8] My reasons for this are set out under the following headings:

1. The law regarding conditional discharges,
2. The law regarding conditional sentences of imprisonment,
3. The fundamental purpose and principles of sentencing,
4. The facts underlying the offence,
5. The background of Mr. George-Oomen,
6. Potential Immigration Consequences, and
7. Analysis.

Conditional Discharge

[9] Section 730(1) of the Criminal Code provides that:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[10] There is no minimum sentence here. The offence is not punishable by imprisonment for 14 years or life. So, I can grant Mr. George-Oomen a conditional discharge if I consider it to be in his best interests and not contrary to the public interest.

[11] In Regina v. Sanchez-Pino, the Ontario Court of Appeal stated that:

16 …In my view, the primary purpose of Parliament in enacting that section was to provide that an individual, although found guilty of what may loosely be described as a "less serious" offence, would not have a conviction recorded against him in all cases. In other words, he would not "have a criminal record" as a result of the occurrence.

17 The trial Judge in this case was right in saying that the guide-lines are meagre. The section does not apply to corporations, nor to offences for which a minimum sentence is prescribed, nor to offences punishable, in the very proceedings, by imprisonment for 14 years or for life or by death. The granting of some form of discharge must be "in the best interests of the accused". I take this to mean that deterrence of the offender himself is not a relevant consideration, in the circumstances, except to the extent required by conditions in a probation order. Nor is his rehabilitation through correctional or treatment centres, except to the same extent. Normally he will be a person of good character, or at least of such character that the entry of a conviction against him may have significant repercussions. It must not be "contrary to the public interest" to grant some form of discharge. One element thereby brought in will be the necessity or otherwise of a sentence which will be a deterrent to others who may be minded to commit a like offence -- a standard part of the criteria for sentencing.

18 Obviously the section is not confined to "simple cases of possession of marijuana". It is not confined to any class of offences except to the extent I have noted. On the other hand, it is only common sense that the more serious the offence, the less likely it will appear that an absolute discharge, or even a conditional one, is "not contrary to public interest". In some cases, the trivial nature of the offence will be an important consideration; in others, unusual circumstances peculiar to the offender in question may lead to an order that would not be made in the case of another offender.

[12] In R. v. Fallofield, the British Columbia Court of Appeal made a number of observations regarding the discharge provisions, including the following:

1. Discharges are not limited to technical or trivial violations;
2. Generally, the requirement that a discharge would be in the best interest of the accused would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significant adverse repercussions; and
3. While the public interest in the deterrence of others must be given due weight, it does not preclude the judicious use of the discharge provisions.

[13] In R. v. Meneses, the Ontario Court of Appeal took into account:

1. that the appellant was a widow with children;
2. that she has had a good standing in the community;
3. that she has no criminal record;
4. that her misconduct was an isolated one and out of keeping with her past good character; and
5. that a conviction might have a detrimental effect on her ability to obtain gainful employment in the profession of dentistry of which she already has some expertise.

[14] It was in the public interest for this woman to be given every opportunity to become a useful person in the community and earn a livelihood for herself and her family.

[15] Further:

The argument that a conviction and fine against this accused must stand to effect a more apparent deterrent to others must give way when other considerations are more paramount, and when the broad view of the public interest is considered. In our opinion, the knowledge of speedy apprehension, arrest and trial should be an effective deterrent to persons such as the accused who may be tempted to commit such an offence. A conviction and a fine would not be a deterrent to a professional shoplifter, but, of course, such a person would not receive either an absolute or conditional discharge.

[16] Finally:

It is always to be borne in mind that a person who is granted a conditional discharge does not go scot-free after committing the offence. In this case the accused is subject to the terms of the probation order, and in the event that the terms of the probation order are met, she will have earned her discharge.

[17] In R. v. Carson, the Ontario Court of Appeal stated that:

The sentencing judge rejected certain of the Crown's submissions concerning sentence on the basis that they would have an unnecessarily harsh impact on the appellant's prospects to continue his employment as a police officer. This is a legitimate factor, among others, to be taken into account at a sentence hearing. Neither the appellant's personal interest nor the societal interest would be served by the imposition of a sentence, not otherwise warranted, that would preclude the appellant's continued employment as a police officer.

[18] There are of course limits on how far this may be taken. In R. v. Swierszcz, the Ontario Court of Appeal stated that "The fact that a person may suffer professional consequences cannot justify the imposition of a sentence that is outside of the appropriate range". The Court of Appeal allowed the Crown appeal since a conditional discharge was far outside of the range appropriate for the kind of criminal conduct in that case.

[19] Appeal courts have taken the same approach to collateral consequences related to immigration. A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. However, the risk of deportation cannot justify a sentence which is inconsistent with the fundamental purpose and the principles of sentencing identified in the Criminal Code. The sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Act.

[20] I also note the following comments by Justice Hill of the Ontario Superior Court of Justice in two summary conviction appeals:

1. Discharges are not restricted to trivial matters;
2. Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction;
3. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration;
4. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge.

[21] Counsel for Mr. George-Oomen provided me with two cases of sexual assault in which conditional discharges were granted.

[22] R. v. Berseth was a summary conviction appeal in which Justice Durno repeated Justice Hill's comments found in paragraph 20 above. Beyond that, I found this case to be more of a judicial deference decision. Justice Durno certainly did not give a ringing endorsement to the conditional discharge.

[23] R. v. ZD was an appeal from a youth court decision.

[24] The Supreme Court of Canada has made it clear that the Youth Criminal Justice Act created a totally different sentencing regime for youths.

[25] The YCJA itself clearly states that the provisions of the Criminal Code on sentencing adults, save certain listed exceptions, do not apply to youth sentencing.

[26] Most notably the sentencing principles of deterrence and denunciation found in section 718(1)(a) of the Criminal Code were not applicable under the YCJA prior to 2012. Furthermore, the YCJA places mandatory restrictions on the use of custodial sentences. As a result, parity of youth sentences with adult ones is of less, if any significance.

Conditional Sentence of Imprisonment

[27] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[28] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[29] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[30] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of less than two years;
4. the safety of the community must not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence must be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[31] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[32] In Mr. George-Oomen's case, the first four prerequisite criteria have been satisfied.

[33] His offence was not excluded pursuant to section 742.1 when the Crown proceeded summarily.

[34] Nor is it punishable by a minimum term of imprisonment.

[35] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for much less than two years.

[36] Finally, I find that Mr. George-Oomen serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He had no prior criminal record. He has not been in any further trouble since being charged. His offence was committed under circumstances that are unlikely to occur ever again. I am satisfied that there is no danger that he would return to crime following the imposition of a conditional sentence.

[37] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[38] I must also consider the fundamental purpose and principles of sentencing in order to determine whether a conditional discharge would be appropriate in the particular circumstances of this case.

Fundamental Purpose and Principles of Sentencing

[39] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[40] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[41] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[42] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.

[43] He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[44] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[45] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[46] Section 718.2(a)(iii) of the Criminal Code provides that, evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[47] Section 718.2(a)(iii.1) provides that, it is an aggravating circumstance if the offence had a significant impact on the victim, considering his age and other personal circumstances, including his health and financial situation.

[48] Section 718.2(d) provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[49] Section 718.2(e) provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[50] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[51] In R. v. Priest, supra the Ontario Court of Appeal made it clear that much of this is simply a codification of the existing law, especially with respect to youthful first offenders. That case also made it clear however that this principle is of much less importance in cases involving very serious offences and offences involving violence. The case before me is certainly one of those cases.

[52] Less than two weeks ago, the Ontario Court of Appeal stated the following in R. v. Disher:

The principle of restraint, as reflected in ss. 718.2(d) and (e) of the Criminal Code, directs that a first period of incarceration imposed on a young first offender should be as short as possible, while giving adequate weight to the principles of general deterrence and denunciation: R. v. Rocchetta, 2016 ONCA 577, [2016] O.J. No. 3871, at para. 35. As s. 718.2(e) specifically directs, while the restraint principle should be considered for all offenders, particular attention should be given to the circumstances of Aboriginal offenders, a class of offenders to which Ms. Weaver belongs. Sentencing judges are to give effect to the principles in s. 718.2(e) even where the offence is serious and the sentence involves imprisonment: R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452, at para. 36.

[53] The Supreme Court of Canada noted in Gladue v. The Queen, supra that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community.

[54] The maximum sentence for sexual assault is imprisonment for 18 months when the Crown proceeds summarily.

[55] In R. v. Friesen, the Supreme Court of Canada provided a detailed analysis of the sentencing principles to be applied in cases where an adult has sexually abused a child. Some of these comments are applicable here.

[56] For example, at paragraph 89 the Court wrote:

All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender -- the offender is treating the victim as an object and disregarding the victim's human dignity.

[57] The Court goes on to temper this, stating:

These comments should not be taken as a direction to disregard relevant factors that may reduce the offender's moral culpability. The proportionality principle requires that the punishment imposed be just and appropriate, and nothing more.

[58] Sexual assault is a broadly-defined offence that embraces a wide spectrum of conduct. The offender's conduct will be less morally blameworthy in some cases than in others. Further, the personal circumstances of offenders can have a mitigating effect.

[59] The Court stressed how Parliament has emphasized certain principles of sentencing. For example, Parliament has identified the abuse of a position of trust or authority as an aggravating factor.

[60] Finally, the Court goes on "to offer some comments on significant factors to determine a fit sentence for sexual offences against children."

[61] These comments are neither a checklist nor an exhaustive set of factors, but they are instructive, often in cases where an adult has sexually assaulted another adult. I will be making further reference to these factors later in the Analysis section of these Reasons.

[62] Crown counsel provided me twelve cases where jail terms were imposed, ranging in length from six months to 14 months.

[63] Counsel for Mr. George-Oomen provided me with four cases where conditional sentences were imposed, ranging in length from 30 days to 23 months. He also included one case that was in the Crown's case book. In R. v. Zolman, Pringle J. imposed a sentence of imprisonment for 6 months.

[64] None of these cases is on all fours with the case before me. They are however instructive as to the principles to be applied and the range of sentences that I might consider.

[65] I must also take into account the effect that Covid 19 is having on our community at large and in the corrections system in particular.

[66] For the reasons expressed by Justice Pomerance of the Superior Court of Justice in R. v. Hearns, I too:

…take judicial notice of the fact that: we are experiencing a worldwide pandemic; that control of the pandemic requires that individuals practice social distancing; that social distancing is very difficult to maintain in custodial settings; that inmates are consequently at a greater risk of infection; and that the risk of COVID-19 in prison settings translates into an increased risk for the community at large.

[67] I also adopt the following comments made by her in that decision:

Impact of the Pandemic on Sentencing Principles

15 How does all of this impact the fitness of sentence? Clearly, the pandemic does not do away with the well-established statutory and common law principles. However, the pandemic may impact on the application of those principles. It may soften the requirement of parity with precedent. The current circumstances are without precedent. Until recently, courts were not concerned with the potential spread of a deadly pathogen in custodial institutions.

16 COVID-19 also affects our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. Proportionality dictates that the sentence should be no more than is necessary to reflect the gravity of the crime and the moral blameworthiness of the offender. Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of a sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

17 Consideration of these circumstances might justify a departure from the usual range of sentence, such as that contemplated in R. v. Lacasse, 2015 SCC 64, para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. [Emphasis added.]

18 The "specific circumstances of each case" would, in today's environment, include the ramifications of the current health crisis.

[68] I also accept the comments made by Justice D.E. Harris of the Superior Court of Justice in R. v. Vigon-Campuzano:

52 Lastly, the original sentencing recommendations of counsel were made before the blight of the global COVID pandemic. The fact is, there is now extra hardship in serving a jail sentence both physically and psychologically. This reality, at the outset of what may well be the "second wave," must be taken into account. That is only logical. After all, if additional hardship is properly used in determining pre-trial custody credit under R. v. Duncan 2016 ONCA 754, it must also be factored into the crafting of a prospective sentence. Hardship over and above the general burden of serving a jail sentence has always been a proper consideration: see R. v. Kandhai, 2020 ONSC 1611 at para. 7; R. v. Hearns, 2020 ONSC 2365 at paras. 20, 23-24. It will be apparent, therefore, that I disagree with the Crown's position that COVID is irrelevant.

53 I believe a proportionate sentence can be formulated responding to both the gravity of the offences and the moral responsibility of Mr. Vigon-Campuzano while exercising some restraint in the use of incarceration as a sentencing tool.

[69] Before applying these principles, I must take into account the facts underlying the offence and the background of Mr. George-Oomen.

The Offence

[70] The facts of this case are set out in much greater detail in my earlier Reasons for Judgment. The following is a shorter summary of what happened.

[71] Mr. George-Oomen was employed as a therapy assistant at St. Elizabeth Healthcare. He had been employed elsewhere as a therapy assistant prior to that.

[72] A therapy assistant performs tasks delegated to him by a physiotherapist.

[73] The physiotherapist prepares a care plan and determines what exercises should be performed by a client. The therapy assistant supervises the client performing those exercises. He is there to ensure that the client understands and is able to properly perform the exercises. The therapy assistant does not assess, examine or otherwise touch clients in private areas.

[74] Mr. George-Oomen completed a five-year physiotherapy program at a university in India. He was qualified to be a physiotherapist in that country. He is not qualified to be a physiotherapist in Ontario. He tried to qualify here but failed.

[75] RF was a man in his mid-eighties who was referred to St. Elizabeth Healthcare in May 2018 for physiotherapy for strengthening and for prevention of degradation of movement. A physiotherapist prepared a care plan for him.

[76] Mr. George-Oomen was assigned to work with RF. He was to observe RF performing the exercises that had been prescribed by the physiotherapist, and where necessary, he was to assist RF in performing those exercises.

[77] He first saw RF on May 11, 2018. This first physiotherapy session was uneventful. At its conclusion, they scheduled the next session. Mr. George-Oomen returned on the following Thursday. This session was not uneventful.

[78] At some point RF indicated that he hurt, and he pointed towards his groin area. Mr. George-Oomen asked RF if RF wanted Mr. George-Oomen to look at it. RF pulled down his pants and Mr. George-Oomen took hold of RF's penis. He asked RF if he got erections. RF objected and Mr. George-Oomen let go and there was no further contact. This all occurred within a few seconds.

[79] I was satisfied that Mr. George-Oomen intentionally applied force directly to RF. He touched RF's penis.

[80] Furthermore, he did so without the consent of RF. RF consented to Mr. George-Oomen looking at his penis. He did not consent to any touching.

[81] When Mr. George-Oomen touched RF's exposed penis, he asked RF if he got erections. There was no medical purpose for this. Accordingly, these were circumstances of a sexual nature. Further, RF made it clear that his sexual integrity had been violated.

Impact on the Victim

[82] RF did not provide a Victim Impact Statement. He stated that he just wants to move on.

[83] He made it clear in his evidence before me that he was not interested in pursuing the charge against Mr. George-Oomen. His last words to me as he left the stand were to the effect of "Be kind to him."

Background of Mr. George-Oomen

[84] I was provided with a Pre-sentence Report, four reference letters and a counselling letter. From these I have learned the following.

[85] Mr. George-Oomen is now 41 years old.

[86] He was born in India and is the youngest in a sib line of three. He is the only one out of his family who resides in Canada; parents and brother reside in India, while his sister lives in Dubai. None of his immediate family are aware of his legal dilemma, although he is not in proximity to his family. He communicates with them on a consistent basis.

[87] His childhood was "all good". His family was reputable in their community and his necessities were always met in abundance.

[88] Both of his parents were gainfully employed however, his mother left the workforce when she had children.

[89] Mr. George-Oomen was raised in a strict religious home. Religion continues to play a major role in his life. He and his family attend church on a weekly basis.

[90] He immigrated to Canada in 2011 by way of sponsorship through his wife. Currently, he holds the status of Permanent Resident.

[91] He has been married for approximately 10 years. He and his wife have one daughter, who is six years old. No child protection agency is involved due to the offence. His wife states that it has not affected their marital relationship, as she believes in his innocence.

[92] Mr. George-Oomen completed a five-year physiotherapy program at a university in India. He was qualified to be a physiotherapist there and was practicing as such. Upon immigrating to Canada, he had to complete a physiotherapy competency examination; but he failed to obtain a passing mark.

[93] Currently, he is employed as a "helper" with a local construction/renovation company. He has been employed with this company for almost two years.

[94] Prior to his current employment, he worked as a physiotherapist assistant for four years. The current offence occurred during this time.

[95] He has never used illicit drugs. He consumes alcohol as a "social drinker".

[96] His references include his wife, his brother-in-law, a friend and the Pastor of his church. They all describe him in positive terms. Their responses range from being surprised to hear that Mr. George-Oomen had been charged to not believing the accusations at all.

[97] He attended for counselling sessions on five occasions (February 25 and 27, and March 4, 11 and 13). "Session content included legislation against inappropriate touching, the importance of boundaries and education needed to move forward."

[98] He is agreeable to further counselling, "as he believes he can always improve on himself and that speaking with someone in general, will help alleviate any issues he may face".

[99] He had no prior criminal record.

Potential Immigration Consequences

[100] As stated earlier, Mr. George-Oomen is a permanent resident of Canada.

[101] If I grant him a conditional discharge, this case will have no impact on his status in Canada.

[102] If I enter a conviction, he will be inadmissible on grounds of serious criminality.

[103] An officer who is of the opinion that a permanent resident who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

[104] If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing.

[105] The Immigration Division, at the conclusion of an admissibility hearing, may make a removal order against a permanent resident, if it is satisfied that the permanent resident is inadmissible.

[106] No appeal may be made to the Immigration Appeal Division by a permanent resident if he was sentenced to a term of imprisonment of at least six months.

[107] In summary then, Mr. George-Oomen might be deported if I enter a conviction. He will not be able to appeal the deportation if I sentence him to imprisonment for six months or more.

Analysis

[108] Doherty J.A. aptly described my task here when he began the judgment in R. v. Hamilton, supra by stating:

The imposition of a fit sentence can be as difficult a task as any faced by a trial judge.

[109] Sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

[110] The primary objectives in sentencing Mr. George-Oomen, a first offender, are individual deterrence and rehabilitation, but general deterrence and denunciation are clearly important principles of sentence given the seriousness of the offence.

[111] I must craft a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of Mr. George-Oomen and yet, at the same time, one that is responsive to his unique circumstances.

[112] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

[113] The aggravating factors can be found in the facts of the offence itself. In assessing these, I have noted the list of factors proposed in R. v. Friesen, supra, including the following:

1. Likelihood to reoffend
2. Abuse of a position of trust or authority
3. Duration and frequency
4. Age of the victim
5. Degree of physical interference

[114] With regard to his likelihood to reoffend, I have mixed feelings about Mr. George-Oomen.

[115] I question his insight into the seriousness of what he has done.

[116] He was a trained professional who should have been aware of what he should or should not do with clients.

[117] Moreover, he had been expressly cautioned about these very things shortly before he went ahead and did them.

[118] Notwithstanding, he did do these things.

[119] Then he testified in court and tried to justify what he had done as being alright.

[120] He has not told family members in India about his situation.

[121] The people who are closest to him do not believe that he did anything wrong. Clearly, he is not telling them otherwise.

[122] He attended for five counselling sessions but they all occurred between the day that I found Mr. George-Oomen guilty (January 17) and the day that he was originally scheduled to appear before me for sentence (March 16).

[123] I stated in my Reasons for Judgment that I did not know what motivated him to do what he did here. I still do not know this. All I was told by the counsellor was that "Session content included legislation against inappropriate touching, the importance of boundaries and education needed to move forward." This leaves me not knowing whether Mr. George-Oomen has addressed the necessary issues.

[124] I do know that he will be unlikely to be in a position to do this again if I enter a conviction. On the other hand, I am not confident of that being the case if I grant him a discharge. I will not have the jurisdiction to make an order under the Sex Offender Information Registration Act if I grant him a discharge. In addition, the discharge will not remain on his record for nearly as long as a conviction will.

[125] That leaves me with concerns that Mr. George-Oomen might be able to return to work in the same field someday without having necessarily addressed the issues that led him to commit this offence.

[126] With respect to an abuse of trust being a factor, I note the comments at paragraph 125 in R. v. Friesen, supra:

We also wish to offer some comments on the factor of the abuse of a position of trust (Criminal Code, s. 718.2(a)(iii)). Trust relationships arise in varied circumstances and should not all be treated alike (see R. v. Aird, 2013 ONCA 447, 307 O.A.C. 183, at para. 27). Instead, it makes sense to refer to a "spectrum" of positions of trust.

[127] Mr. George-Oomen was only able to enter RF's home and to be able to touch RF in any manner because he occupied a position of trust.

[128] I do note however that there were definite limits on how far RF trusted him. He certainly did not trust him to the extent that he would consent to Mr. George-Oomen touching his penis.

[129] With respect to duration and frequency, the sexual assault here occurred once and lasted for only a few seconds.

[130] With respect to the degree of physical interference, I note the comments at paragraph 138 in R. v. Friesen, supra:

We acknowledge that the degree of physical interference is a recognized aggravating factor. This factor reflects the degree of violation of the victim's bodily integrity. It also reflects the sexual nature of the touching and its violation of the victim's sexual integrity.

[131] As I stated in my Reasons for Judgment, Mr. George-Oomen touched RF's exposed sexual organ, his penis. There is likely no part of a man's body that is more central to his sexual integrity.

[132] He asked RF if he got erections. Absent some medical purpose, this was a highly personal question to ask a man. It is also a question of a sexual nature. It too could impact a man's sexual integrity.

[133] Further, RF made it clear that his sexual integrity had been violated. He was clearly upset by what had happened.

[134] With respect to the age of the victim, RF was in his mid-eighties. People his age have been found to be a vulnerable segment of the population.

[135] Having said that, I note that RF was rather feisty for his age (or any other age) and was much more capable of standing up for himself than the victims in the two "elder abuse" cases provided to me by Crown counsel.

[136] I have also considered the mitigating factors in this case.

[137] Mr. George-Oomen has no prior criminal record. He has never been sentenced in any way before this, let alone imprisoned.

[138] He was a person of good character.

[139] These facts are tempered however by the fact that he would not otherwise have been in a position to commit his offence.

[140] He is a hard-working person who is attempting to care for his family.

[141] After considering all of the above, I am satisfied that the appropriate sentence is imprisonment for four months followed by probation for three years.

[142] With respect to the request for a conditional discharge, the primary argument by counsel was that a discharge would allow Mr. George-Oomen to remain in Canada and increase his chances of finding some alternative employment.

[143] I do not know for certain whether Mr. George-Oomen will be deported if I enter a conviction.

[144] I am satisfied however that, even assuming that he will be deported, a conditional discharge would be contrary to the public interest in this case.

[145] I am also satisfied that a conditional sentence of imprisonment would not be consistent with the fundamental purpose and principles of sentencing.

[146] The appropriate sentence is imprisonment for four months followed by probation for three years.

Sentence

[147] For the above reasons, I sentence Mr. George-Oomen to imprisonment for four months. That will be followed by probation for three years.

[148] The terms of the probation will require that Mr. George-Oomen:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report to a probation officer within two working days of his release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with RF;

7. not be within 20 metres of any place where he knows him to live, work, go to school, frequent, or any place he knows him to be;

8. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including a sexual offender relapse prevention program or any other program recommended by his probation officer;

9. make reasonable efforts to seek and maintain suitable work;

10. not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority with respect to providing physical therapy to others unless he has notified his employer, in writing and in advance, of his criminal record.

[149] I also make the following ancillary orders.

1. This is a primary designated offence and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. George-Oomen of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

2. It is also a designated offence pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.012 of the Criminal Code, that Mr. George-Oomen comply with the provisions of the Sex Offender Information Registration Act for 10 years.

3. Pursuant to section 110 of the Criminal Code, for the next five years Mr. George-Oomen is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

4. Finally, I make an order pursuant to section 743.21 of the Criminal Code prohibiting any contact or communication by him with RF during the custodial portion of his sentence.

Released: November 20, 2020

Signed: Justice D.A. Harris