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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Neville, 2021 ONCJ 594

DATE: 2021·11·19

COURT FILE No.: Lindsay 20-0598

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRIAN NEVILLE

Before Justice S. W. Konyer

Heard on June 1, 2 and 9, July 12 and October 12, 2021

Reasons for Judgment released on November 19, 2021

Ms. R. Griffin .......................................................................................... counsel for the Crown

Mr. D. Hodson ........................................................... counsel for the defendant Brian Neville

KONYER J.:

[1] On July 12, 2021 I found Brian Neville guilty of sexually assaulting V.H. and touching her for a sexual purpose, contrary to sections 271 and 151 of the Criminal Code, respectively. The conviction for sexual assault was conditionally stayed in accordance with the rule precluding multiple convictions. What follows are my reasons for sentence on the sexual interference offence.

[2] The Crown proceeded summarily, and is seeking the maximum sentence of two years less a day imprisonment with an order pursuant to s.743.21 of the Criminal Code prohibiting Mr. Neville from communicating with V.H. while serving his sentence. The Crown is also seeking two years probation with conditions including counseling for sexual offending, plus a DNA order, a weapons prohibition order, a SOIRA order, and orders pursuant to paragraphs 161(1)(a), (a.1), (b) and (c) of the Criminal Code. The defence seeks a sentence of 12 to 15 months jail. The defence argues that a probationary term for sexual offending counseling would be ineffectual given Mr. Neville’s denial that he touched V.H. for a sexual purpose, but does not otherwise contest the ancillary orders sought by the Crown.

[3] In addition to the evidence heard at trial, I have been provided with a Pre-Sentence Report (PSR) for Mr. Neville, as well as a Victim Impact Statement (VIS) prepared by V.H.’s father on the sentencing hearing.

[4] The sentence I impose must be proportionate to the seriousness of the offence and to Mr. Neville’s degree of responsibility: s.718.1. It also needs to serve several purposes, including denouncing Mr. Neville’s conduct, deterring him and others, separating him from society if necessary, assisting his rehabilitation, providing reparations for the harm he caused, and promoting a sense of responsibility in Mr. Neville: s.718. Since the victim in this case was a child, I must give primary consideration to the objectives of denunciation and deterrence: s.718.01. An abuse of a position of trust is an aggravating factor, as is evidence of harm to the victim: s.718.2. Since Mr. Neville has a negligible and unrelated prior record and has never served a jail sentence previously, I must also give effect to the principle of restraint and impose the shortest sentence of imprisonment that is reasonably capable of achieving the sentencing objectives I have set out above.

[5] I will begin with a consideration of the seriousness of this offence. Sexual offences against children are always incredibly serious due to the harm inflicted on victims, which is often profound and life-altering. These offences also cause harm to the families and loved ones of the victim, and to the community as a whole. Child victims of sexual violence are always traumatized by the experience and can suffer a number of consequences, including but not limited to an inability to trust or form emotional attachments with others, anxiety, post-traumatic stress and other mental health issues. Victims often turn to substance abuse as a coping mechanism for the trauma, and experience shows that they are more likely to be vulnerable to future victimization. It is not a stretch to say that child sexual abuse ruins lives.

[6] As the Supreme Court of Canada held in R. v. Friesen, “sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. […] Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.”[^1]

[7] In this case, V.H. was 5 years old when the offence occurred in 2020. She had no recollection of the events when she testified at trial in 2021. Her evidence was preserved on a video-recorded statement given to the police on June 7, 2020, within days of the events she described at the time. It is readily apparent from the recording that V.H. was uncomfortable discussing these events. She presently enjoys the support of family and victim services, and hopefully she will receive appropriate counseling going forward in order to deal with the trauma of this event. It is clear from the VIS provided by her father that he feels understandable anger towards Mr. Neville and concern for his daughter’s future.

[8] It is an aggravating factor in this case that V.H. was a child of such tender years at the time Mr. Neville touched her for a sexual purpose.[^2] The touching was invasive, involving oral and digital touching of her genital areas, which began while she was sleeping. I also agree with the Crown that Mr. Neville was in a position of trust towards V.H. at the time. On the evidence, he had babysat V.H. on a number of previous occasions and was known to her and her family. She liked and trusted him as a result of this relationship. Trust relationships exist on a spectrum. Any breach of trust is likely to increase the harm to the victim, thus increasing the seriousness of the offence.[^3] The question is the degree of the trust relationship. Although Mr. Neville did not exploit a classic parent or caregiver relationship, he nevertheless did exploit the fact that he was known and trusted by V.H. in order to commit this offence. I find his breach of trust to be a factor which significantly increases the seriousness of this offence.

[9] The breach of trust is also a factor which increases Mr. Neville’s level of responsibility. As the Supreme Court said in Friesen, “the abuse of a position of trust also exploits children’s particular vulnerability to trusted adults, which is especially morally blameworthy.”[^4] Similarly, the very young age of this victim also increases Mr. Neville’s level of responsibility, for it involved the exploitation of her vulnerability flowing from her age. I turn now to a consideration of Mr. Neville’s level of responsibility.

[10] Mr. Neville is 35 years of age. He has one prior, unrelated conviction for theft in 2006 for which he received a suspended sentence. He completed the terms of that sentence, including 100 hours of community service. He is considered to be suitable for further community supervision.

[11] He is the product of an unstable home environment in his early years. His parents separated when he was 5 or 6, and he lived with his mother until the age of 8, experiencing instability and frequent moving. He was placed in his father’s care at the age of 8, and his mother died shortly thereafter. His father was steadily employed and provided a stable home environment from that point forward, free from abuse, trauma or exposure to violence or substance abuse. Mr. Neville himself has never suffered from any addiction.

[12] He has a grade 12 education and a limited work history. He is presently supported by the Ontario Disability Support Program due to cognitive deficits. He has been diagnosed with Attention Deficit Hyperactivity Disorder, attachment disorder, conduct disorder and Borderline Intellectual Impairment. A neuropsychological assessment completed in 2007 detailed cognitive deficits that “have resulted in ‘academic, occupational, legal, and daily living difficulties’ where he is likely to continue to struggle with decision-making and impulse control”[^5]

[13] Despite his cognitive limitations, Mr. Neville is a mature adult who appreciates the wrongfulness of child sexual abuse. Although he maintains his innocence, he clearly expressed in his trial evidence, in statements attributed to him by the author of the PSR, and in statements he made to me at his sentencing hearing an understanding that the sexual touching of a 5 year old child is both wrong and harmful. Having said this, it is also the case that his personal circumstances help to explain his poor decision-making and impulse control on the single instance of sexual touching before me. While his cognitive limitations do not excuse his conduct in any way, these features of his personality do, in my view, tend to reduce his level of moral blameworthiness for the commission of this offence. Nevertheless, in all of the circumstances, particularly given the very young age of this victim and the existence of a trust relationship, I find that Mr. Neville still bears a high degree of responsibility for his actions.

[14] Mr. Neville committed an extremely serious offence against a vulnerable victim, one which has already caused harm to the victim, her family and the community, and one which carries the potential to have life-altering consequences. He bears a high degree of moral responsibility for this offence. I must give primary considerations to the principles of denunciation and deterrence in this case. Although Mr. Neville is a suitable candidate for community supervision and has rehabilitative potential, his rehabilitation is a secondary consideration. I must give primary consideration to the need to denounce his serious unlawful conduct and to send the appropriate deterrent messages to Mr. Neville and others. The pressing need to send strong messages of denunciation and deterrence for all cases of child sexual abuse means that lengthy sentences of imprisonment should be the norm.

[15] In determining the length of the jail sentence I am guided by the message that was sent by the Supreme Court of Canada in Friesen, supra, that sentences for this type of offence must increase in order to properly reflect the seriousness of sexual violence against children. I agree with the Crown that neither the offence nor the offender must be the worst imaginable for the maximum sentence of two years less a day to apply, if that is what is required for the sentence to be proportionate to the seriousness of the offence and the offender’s degree of responsibility. In Friesen, supra, the Supreme Court said that single digit penitentiary terms should be normal for sexual offences against children, even in cases involving a single victim and a single incident of abuse.

[16] The recent decision of the Ontario Court of Appeal in R. v. T.J., [2021] O.J. No. 3128 is also instructive. In that case, the Crown appealed a sentence of 9 months imprisonment that had been imposed on a first-time offender with rehabilitative potential for a single incident of sexual touching. The Court of Appeal applied the principles set out in Friesen, found that the trial judge erred by overemphasizing the personal circumstances of the offender, and found that sentence to be inadequate. The 9 month sentence imposed by the trial judge was not long enough to be proportionate to the seriousness of the offence and the offender’s degree of moral blameworthiness. In that case the Crown had proceeded by indictment, and the Court of Appeal substituted a sentence of two years.

[17] In Mr. Neville’s case, this is a first sentence of imprisonment. The term of imprisonment should be no longer than what is required to meet the principle of proportionality. The primary sentencing objectives are denunciation and deterrence. Even taking into account Mr. Neville’s somewhat reduced level of moral responsibility owing to his cognitive limitations, I am unable to conclude that anything less than a sentence of two years less a day would be fit.

[18] The sentence therefore is two years less a day imprisonment. I recommend that Mr. Neville serve the sentence at the Ontario Correctional Institute where he can receive offence-specific treatment. While he is serving the sentence, he is prohibited from contacting or communicating with V.H. or any member of her immediate family, pursuant to s.743.21 of the Criminal Code.

[19] Following the period of imprisonment, I place Mr. Neville on probation for a period of two years. I do not agree with defence counsel that it is pointless to require Mr. Neville to submit to counseling for sexual offending because he continues to maintain his innocence. Protection of the public through preventative measures is an important sentencing objective and takes precedence over Mr. Neville’s personal preference at this stage. The conditions of the probation order are:

• Keep the peace and be of good behaviour.

• Appear before the court when required.

• Notify the court or the probation officer in advance of any change in name, address, occupation or employment.

• Report in person to a probation officer within 7 days of your release from custody and after that at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision.

• Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request.

• Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.

• Do not contact or communicate in any way, directly or indirectly, by any physical, electronic or other means with V.H. or any member of her immediate family.

• Do not be within 200m of any place you know any of the persons named above to live, work, go to school, frequent, or any place you know them to be, except for required court attendances.

• Attend and actively participate in all assessment, counseling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer, including but not limited to sexual offending.

[20] The Crown’s application for a DNA order is granted. Pursuant to section 490.012 of the Criminal Code, I order that Mr. Neville comply with the requirements of the Sex Offender Information Registration Act for a period of 10 years. Pursuant to section 110 of the Criminal Code, I prohibit Mr. Neville from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years.

[21] I also make the following orders pursuant to paragraphs 161(1)(a), (a.1), (b) and (c) of the Criminal Code. Each is for a period of 20 years following the expiry of the term of imprisonment. Mr. Neville is prohibited from:

• 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, schoolground, playground or community centre.

• Being within 200 metres of any place where V.H. ordinarily resides, goes to school or is known to be.

• 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.

• Having any contact – including communication by any means – with a person who is under the age of 16 years, except for members of his family when under the direct supervision of the person’s parent or guardian.

[22] The victim surcharge of $100 applies. Mr. Neville has 2 years to pay.

Released: November 19, 2021

Signed: “Justice S. W. Konyer”

[^1]: R. v. Friesen, 2020 SCC 9, 2019 S.C.J. No. 100, at para. 5.

[^2]: Friesen, supra, at para. 134

[^3]: Friesen, supra, at paras. 125-6

[^4]: Friesen, supra, at para. 129

[^5]: Sentence Exhibit 2, Pre-Sentence Report at p. 5