WARNING

The Court hearing this matter directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

ONTARIO COURT OF JUSTICE

CITATION: R. v. J.L., 2021 ONCJ 297

DATE: April 30, 2021

Information No.: 3912-998-17-A211

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

J.L.

Before Justice Diane M. Lahaie

Heard on March 26, 2021

Reasons released on April 30, 2021

Ms. A. Kapend.................................................................................... Counsel for the Crown

Ms. Neha Chugh............................................................................. Counsel for the accused

LAHAIE, J.:

[1] J.L. was convicted after trial of the offences of sexual assault and sexual interference. The Crown elected to proceed summarily. The charge of sexual assault will be marked judicially stayed given the Kienapple principle, at the request of both the Crown and the Defence.

[2] I will not review the circumstances of the sexual offences committed by J.L. in detail as they are set out in my Reasons for Judgement rendered on December 16, 2020. Essentially, while his 14-year-old cousin was sleeping in his bed, J.L. digitally penetrated her for a sexual purpose on two separate occasions. On the first occasion, the victim turned over to dislodge the accused’s hand while she pretended to remain asleep. On the second occasion, she awoke to a painful sensation and lay there for a time, suffering both physically and emotionally. The victim was vulnerable given her age, her relationship to the accused and the fact that she was sleeping.

The circumstances of the offender

[3] The offender is now 22 years old. He was 19 years old at the time of commission of these offences. J.L. does not have any prior criminal history.

[4] I have the benefit of a comprehensive presentence report, which sets out important details regarding J.L.’s personal history, his education and employment, his character, behaviour and attitude.

[5] J.L. has a younger brother with developmental challenges and several half siblings. His father struggled with substance abuse and overdosed when J.L. was an infant, which resulted in the involvement of child welfare services. The offender currently resides with his half-brother in Rockland. He has no children. He enjoys a positive relationship with several family members, including his parents.

[6] The offender had difficulties in school. He was diagnosed with ADHD and had anger issues. He completed his elementary school education in an alternative program for troubled youth. J.L. felt that he was bullied in school for having learning disabilities and due to preconceived notions regarding his family name. He graduated from high school and planned to complete a culinary program in college. He did not pursue this objective as he was charged with these offences. He hopes to complete a trades program. The offender has been working with Mr. Menard, the Court Liaison Worker at the Canadian Mental Health Association since 2019. Mr. Menard also met with the offender in a different capacity when J.L. was a child.

[7] J.L. has had consistent employment, working in the fields of retail, food services and labour. He is currently employed with his cousin’s masonry company for which he works full time. J.L.’s cousin confirmed that the offender is his most punctual employee and that there are no issues with his work, adding that the offender is a good asset to the team.

[8] J.L. does not have any problems related to alcohol or substance abuse.

[9] He was described as cooperative and forthcoming when he spoke to the author of the PSR. J.L. meets with a therapist in Alexandria every second week in addition to his weekly meetings with Mr. Menard. He also continues to meet with Dr. Fedoroff, who testified at his trial. J.L. stopped taking his medication for ADHD, anxiety and depression, preferring to deal with these issues through physical activity and on his own. J.L. is described as generally quiet and shy. He does not have any hobbies. The offender reports that he spends time with friends and family, cleans or plays games when he is not working.

Positions of Crown and Defence

[10] The Crown submits the appropriate range of sentence in this case is a period of incarceration of 12 to 15 months, followed by 2 years’ probation.

[11] The Defence advances two possible sentences, either 90 days imprisonment to be served intermittently or a conditional jail sentence of two years followed by 2 years’ probation.

[12] The parties are in agreement on the issue of the ancillary orders.

[13] Before I turn to the mitigating and aggravating features in this case, I note that the offender was convicted after trial. While this is not an aggravating factor, it does not entitle J.L. to the mitigation afforded to those who plead guilty, thereby accepting responsibility for their actions and saving the victim from having to testify, relive the events and have their evidence challenged. That being said, J.L. attempted to plead guilty on the first day of trial. He expressed that he felt shame for what happened but that he was sleeping when these events transpired. As a result, his plea was struck, and he had a trial. This Court rejected J.L.’s evidence that he was asleep when he digitally penetrated the victim on two occasions. I was ultimately convinced to the requisite standard of proof that the offender intentionally committed these offences, that he was awake and that these crimes were opportunistic in nature.

Mitigating and Aggravating Factors:

[14] There are a number of mitigating and aggravating factors in this case, which include the following:

Mitigating factors

1- J.L. comes before the Court without any prior criminal record. He is a youthful first- time offender.

2- The offender expressed a degree of remorse on the first day of trial. He felt deep shame for “what happened” to his cousin. He continues to feel a certain level of remorse, despite maintaining that he does not recall these “unintentional acts”, as described.

3- He has the support of his parents and several members of his family.

4- The offender is gainfully employed on a full-time basis, working for his cousin’s masonry company. He is a contributing member of society.

5- J.L. is addressing his mental health challenges and is currently taking important steps towards his own rehabilitation.

6- The offender was on release for a very long time, without incident.

Aggravating factors

1-There were two instances of sexual touching in this case. The offender likely felt that he got away with the first incident and that his cousin slept through it. When he committed the sexual offence a second time, the act itself caused the complainant pain. She was 14 years old and so shocked by what was happening to her at the hands of her cousin, with whom she had enjoyed a close relationship, that she laid there for some time upset, hurt and just enduring it in the hopes that it would stop.

2- This was intrusive sexual contact, that is, digital penetration, committed while the victim was initially asleep on both occasions.

3- Pursuant to section 718.01, it is statutorily aggravating that the victim was under the age of 18 years.

4- The offences amounted to an opportunistic breach of trust. J.L. was the victim’s older cousin who was, in the words of the victim, “kind of like a big brother” to her. In committing these offences, J.L. abused a member of his family.

5- As stated, the victim was asleep when she was assaulted on both occasions. She was a very young woman sleeping away from home at a relative’s residence in her older cousin’s bed. She was entitled to feel safe. In all the circumstances, she was a vulnerable victim.

6- The impact of this abuse on the victim has been profound. These offences impacted the victim’s sexual integrity. She attended the hospital after the final incident and described her physical pain during the trial. The victim writes that the offender took her confidence, self-esteem and ability to trust others. She was unable to focus at school. She feels that the offender took her youth. The victim lost interest in all things. She was unable to sleep. She now needs medication and feels that she needs to lock the door to her room in order to fall asleep. She attempted suicide on more than one occasion. She feels unsafe in public. Family members took sides and she felt humiliated. She speaks of being disowned by some members of the family. K.B.F. feels like the offender put her in “a black hole of rage and confusion”. The victim included a drawing in her victim impact statement depicting a young girl with her head down, her face blurred by shadows or darkness as she sits on a swing or in a tube, held by hands that may be bleeding. She does not speak of whether she has had the benefit of therapy or counselling. The long-term impact of these offences on the victim is not currently ascertainable. However, she will live with the knowledge that she was sexually violated by her cousin for the rest of her life.

Principles and Conclusions

[15] I have reviewed the exhibits filed in these proceedings as well as the sentencing submissions of both the Crown and the Defence. I have also reviewed the cases provided to the court and referenced by counsel in submissions. While no two cases are ever exactly the same, an appropriate range of sentences usually emerges from a review of the caselaw. The most significant case filed at this sentencing hearing is the recent decision of the Supreme Court of Canada in R. v. Friesen, [2020] SCC 9 which I will review in part below.

[16] I am guided by the principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

[17] Section 718 provides:

718. The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[18] Section 718.1 provides that a sentence must reflect the gravity of these offences as well as the degree of responsibility of the offender.

[19] Section 718.01 directs that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. That being said, J.L. is a youthful first-time offender. Consequently, rehabilitation is also an important principle to be considered. Further, as our Court of Appeal pointed out in R. v. Priest, 1996 1381 (ON CA), 30 O.R. (3d) 538 at paragraph 23 “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”.

[20] In the present case, I also find that the sentence of this Court must promote a sense of responsibility in the offender and an acknowledgement of the harm done to the victim and to the community.

[21] I have directed my mind to the principle of parity. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[22] While I have read each of the cases filed by counsel, I am of the view that Friesen sets out all of the relevant considerations. While the Supreme Court in Friesen referred to other cases of import, for example, R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (Ont. C.A.), a case which sets out principles which have and continue to guide us, the Supreme Court sought in Friesen to bring all of the relevant principles together while bringing “sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children...” (paragraph 50).

[23] When I examine the circumstances of this case, those of the offender, the aggravating and mitigating factors and the principles of sentence, it is difficult to reconcile the parties’ positions on sentence with the strong message provided by the Supreme Court of Canada in Friesen, supra. I will review some of the guiding principles laid out by the Supreme Court, but I must also be mindful of the Crown’s election in this case. The Crown elected to proceed summarily here. The Court is therefore restricted by a maximum sentence which falls far short of what the Supreme Court viewed as appropriate in such cases.

[24] In Friesen, the Court explicitly denounced sexual violence against children, calling for Courts to take note of the legislative changes to the sentencing provisions for crimes of this nature, writing “… we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large” (see paragraph 5).

[25] The Court notes that sexual violence against children is wrongful “because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity” (see paragraph 51). In my view, this is very much present in the case before me. The words of the Court in portions of paragraphs 60 and 61 of Friesen¸ supra, are also relevant and worth repeating here:

[60] Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by a breach of a trust relationship (R. v. D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para.41). If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim (see “The ‘Statutory Rape’ Myth”, at p. 292).

[61] The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities (C.-A. Bauman, “The Sentencing of Sexual Offences against Children” 1998), 17 C.R. (5^th) 352, at p. 355. This loss of trust is compounded when members of the community take the side of the offender or humiliate and ostracize the child (R. v. Rayo, 2018 QCCA 824, at para. 87; R. v. T.(K.), 2008 ONCA 91, 89 O.R. (3d) 99, at paras. 12 and 42). …

[26] The Court further stated, at paragraph 76:

Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.

[27] The Supreme Court of Canada in Friesen went on to review the legislative amendments which significantly increased the maximum sentences which can be imposed for crimes of this nature, noting that “[s]entencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences”.

[28] The Court pointed out that all other things being equal, an offender who abuses a position of trust, such as a family member, should receive a lengthier sentence than an offender who is a stranger to the child.

[29] In Friesen, the Supreme Court removed or reduced the importance attached to the specific actions and levels of intrusion of the sexual acts, which were once guiding or paramount. For example, the Court noted that the existence of penetration or other sexual acts is not intrinsically significant, and courts should not, therefore, create differing ranges based on the occurrence or non-occurrence of penetration. In addition, the Supreme Court emphasized that courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim, noting that there is no hierarchy of physical harm.

[30] In Friesen, the Court stipulated that mid-single digit penitentiary terms for sexual offences against children are normal, and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. Again, the Court in this case is mindful that the Crown elected to proceed summarily.

[31] Defence counsel argues that, although Friesen speaks to the need to focus on denunciation and deterrence, the court should focus on the circumstances of this case and follow the reasoning of Justice Poland in R. v. Morgan, [2021] O.J. No. 837. The facts in the Morgan case are easily distinguishable given that Morgan did not involve a child victim, nor was the victim a family member. Mr. Morgan was 19 years old and his victim was 18 years old. They had both attended a party where they consumed excessive amounts of alcohol. Mr. Morgan helped the victim home and had sexual intercourse with her after asking her if she wanted to have sex. In that case, the Court found that Mr. Morgan should be sentenced on the basis of the presence of a mens rea based on recklessness that flowed from his seeking and obtaining consent to sexual interactions from a conscious victim who was incapable of giving consent. The Court imposed a conditional jail sentence noting that this was somewhat unusual. The Court emphasized the distinction between a conditional sentence and a probation order, reviewing how a conditional sentence can have a “denunciatory impact” if the conditions are restrictive and punitive. The Court also reviewed the impact of the pandemic on sentencing offenders to actual custody.

[32] Defence counsel also filed the case of R. v. B.J.T., (2019), ONCA 694. This case involved a father who was asked by his daughter to shave her pubic hair on two separate occasions. On the second occasion, when the offender’s daughter was 15 years of age, the offender also inserted his finger in the victim’s vagina and commented on the size of her clitoris. In that case, the Ontario Court of Appeal did not interfere with a 9-month custodial sentence imposed by the trial judge.

[33] R. v. K.K., (2020) ONSC 7198 involved offences of sexual touching by the victim’s friend’s grandfather. The victim was between the ages of 10 and 12 years when the offences occurred. The offender was 45 years older that the victim. He was 60 years of age at the time of sentencing and did not have a criminal record. The Court reviewed all of the relevant sentencing principles and spoke of the impact of the global pandemic on sentencing offenders to actual custody. Justice De Sa of the Superior Court of Justice was the judge of first instance. He sentenced the offender to a conditional jail sentence of 2 years less one day, followed by probation. With respect, I find that this sentence fails to adequately address the relevant sentencing principles and clear message of the Supreme Court in Friesen.

[34] In R. v. J.G., (2017) ONCJ 881, Justice Thomas of the Ontario Court of Justice suspended the passing of sentence and placed the offender on probation for the offences of sexual interference, invitation to sexual touching and sexual assault. In that case, the offender and the victim were involved in a romantic relationship. The offender was 19 years old and the victim was 5 years and 35 days his junior. They attended the same high school. The decision involved a constitutional challenge to the mandatory minimum sentence in existence at the relevant time. This case is also easily distinguishable on its facts. There was no familial relationship between the offender and the victim, and the victim was not sleeping. There was intercourse in the case of J.G. This decision also predates the Supreme Court’s decision in Friesen.

[35] In the present case, I do not find that the sentence should be reduced given the COVID-19 pandemic. While the risk of infection is higher in institutional settings, there is no evidence before me which causes me to depart from the appropriate sentence to be imposed in this case.

[36] I find that it would be inconsistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the [Criminal ]Code to allow the offender to serve his sentence in the community.

[37] In applying the governing sentencing principles and objectives and taking into consideration the relevant aggravating and mitigating factors, I find that the least restrictive sentence that can be imposed in this case is a custodial sentence of 15 months followed by 2 years’ probation.

[38] The offender shall be registered under the Sex Offender Information Registration Act, for life pursuant to section 490.013(2.1).

[39] The offender shall provide a DNA sample.

[40] Pursuant to s. 743.21, the offender is prohibited from communicating with the victim during the custodial period of the sentence.

[41] The offender will be subject to a s. 161 Order for 10 years prohibiting the offender from:

(a) Attending a public park or public swimming area 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 or community centre;

(a.1) being within 250 meters of the victim’s school, residence, employment or any place she is known to be;

(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 a position of trust or authority towards persons under the age of 16 years; and

(c) Having any contact, including communicating by any means, with a person who is under the age of 16 years, unless the offender does so under the direct supervision of the person’s parent or guardian.

[42] The offender shall be subject to a s. 110 weapons prohibition for a period of 5 years.

[43] The victim fine surcharge is waived.

Released: April 30, 2021

The Honourable Madam Justice Diane M. Lahaie