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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Ontario Court of Justice
Date: March 19, 2022 Court File No.: BRAMPTON 3111 998 20 5356
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
R.N.
Before: Justice K.L. McLeod
Heard on: November 8, 2021, January 24, 2022 Sentence imposed: March 18, 2022 Reasons for Judgment released on: March 19, 2022
Counsel: Ms. J. Bellehumeur............................................................................ counsel for the Crown Mr. H. Gill......................................................................... counsel for the accused Mr. R. N.
K.L. McLeod J.:
Introduction
[1] Mr. R.N. has pleaded guilty to one count of Sexual Interference. The Victim is his then 13-year-old step granddaughter, A.B. He admitted that between the December 2019, and 4th March 2020, he was living with his partner of 19 years, with her daughter P.F., and P.F.’s partner and 4 children, one of whom was A.B.
[2] Mr. R.N. lived in the basement and A.B. would go and visit him there. He admitted that on 5 occasions he asked her if he could touch her. He would then touch her on her breasts and digitally penetrate her.
Positions of the Crown and Defence
[3] For this offence the Crown seeks the following:
(a) a sentence of 4 years in the penitentiary; (b) a SOIRA order for 20 years; (c) a Section 161 order sub-paragraphs a-c for 10 years; and (d) a Section 109 order for 10 years.
[4] Mr. Gill for the defence seeks a reformatory sentence of 2 years less a day plus probation for 2-3 years. The ancillary orders are not contested.
Victim Impact Statement
[5] I will turn first to the Victim Impact Statement; the effect on A.B. has been profound:
- She is uncomfortable and scared around what she calls “persons of authority”.
- She is afraid of being taken advantage of.
- She feels her childhood has been taken, she knows, at a too early age, that the world is a bad place.
- She blames herself, which she knows is not being fair to herself: she is a child.
- She is not able to focus at school because of her emotional state.
- She finds the need to be compliant with the will of others in her life because that is what she was told to do.
- Her social life, school life, and self confidence has been affected and her sense of security has disappeared.
[6] In one devastating paragraph, A.B. summarized how Mr. R.N.'s abuse of her has single-handedly affected every part of her life and of her sense of self. This young lady has mustered an extraordinary articulation of what she feels and I am hopeful that over time she will look back at this statement and feel proud of what she has conveyed. It is a very profound statement and I thank her.
Circumstances of the Offender
[7] I will now turn to Mr. R.N.'s background. I have benefitted from details of his background from a report prepared by Dr. Julian Gojer, a well-known Forensic Psychiatrist. Also contained in the report are the complete IQ test results performed by Dr. Kalia, Doctor of Psychology. A composite measure of all of the test results points to Mr. R.N. falling in the 4th percentile - a full scale intelligence quotient of 74. This is in the borderline range. Dr. Gojer concludes that Mr. R.N. suffers from Intellectual Delay.
[8] However, despite the nature of the offending which is pedophilic, Dr. Gojer does not diagnose Mr. R.N. as suffering from a Pedophilic Nature, nor any other mental disorder, psychopathy or personality disorder. Because of the limited nature of the offending, and Mr. R.N.'s remorse, acceptance of responsibility, and eagerness to participate in counselling, Dr. Gojer considers his prognosis “as been (sic) good to not reoffend".
[9] Mr. R.N. is 57 years old. He has a dated single entry criminal record which is totally irrelevant. He grew up in Toronto; his father is still alive as are 4 of his 5 siblings. His mother died in 1989; his father resides in Lindsay and Mr. R.N. has not seen him since 2018. He has worked consistently and was last employed at a recycling plant.
[10] Mr. R.N. has had only one lengthy intimate relationship; with A.B’s grandmother which finished when he was charged with these offences.
[11] He does not drink but smokes marihuana on a regular basis.
[12] His remorse was obvious to Dr. Gojer: he cried several times during his interview but was unable to explain his offending actions other than expressing it was not right and that he was sexually attracted to A.B. at the time.
[13] Upon his arrest Mr. R.N. admitted his wrongdoing to the police. He told Dr. Gojer he wanted “to confess” what he had done and wanted help to understand why he did what he did.
[14] Mr. R.N. has been living in shelters since his arrest due to the demise of his relationship. While counsel referred to him having lost his 19-year relationship, I would state he did not lose his relationship; rather, he forfeited his relationship due to his actions.
[15] I will now turn to the principles of sentencing both generally and specifically with respect to abuse on children.
Principles of Sentencing
[16] The fundamental principle of sentencing is found in Section 718.1 of the Criminal Code. It states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[17] There are other principles of sentencing found in Section 718.2 which mandate an increase or decrease in the sentence to account for specific aggravating and mitigating factors. Those factors that are relevant in this case are:
- evidence that the offence had a significant impact on the victim, including their age and of their personal circumstances, including health and financial situation; and
- that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances (known as parity of sentence).
[18] The objectives of sentencing are found in Section 718. Those that are particularly applicable in this case are:
- denunciation of the unlawful conduct and the harm done to the victims or to the community that is caused by the unlawful conduct; and
- to deter the offender and other persons from committing offences and the promotion of a sense of responsibility in offenders and an acknowledgement of harm done to victims or to the community.
[19] With respect to sexual offences the primary objectives of sentencing are denunciation and deterrence, both specific and general. While other objectives such as rehabilitation do play a role, it is a secondary role.
[20] Most recently all nine members of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, spoke with one voice on the area of child sexual abuse and sent an unequivocal message: that sexual offenders where their victims are children are to be dealt with more severely than in cases of sexual abuse where an adult is the victim. The offender’s degree of responsibility is higher when it is an offence committed against a child. At paragraph 78 the Court stated:
It is inherently exploitative for an adult to apply physical force of a sexual nature to a child (R. v. George, 2017 SCC 38, at para. 26). This exploitation is rooted in the power imbalance between children and adults, the potential harm that sexual interference by adults poses to children, and the wrongfulness of treating children not as persons with equal dignity but instead as sexual objects to be used by adults.
[21] The Court specifically stated at para. 114 of its decision:
The message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and doubt digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.
[22] The Court asked courts to give effect to the inherent wrongfulness of the offences and the potential and actual harm to children. That is to be established through a series of factors.
The Likelihood of Reoffence
[23] The evidence from Dr. Gojer is definitive: that Mr. R.N. is considered a low risk to reoffend. The Crown argues that that opinion is based only on an IQ test but not extensive testing: phallometric testing was not performed. Obviously this is an invasive, and very expensive method of testing, often avoided by defendants. In the era of the Pandemic, I appreciate that access can be limited to this form of testing.
[24] However, Mr. R.N. is not a multiple offender, and given the multiple demonstrations of his remorse, including when first confronted by the authorities by making a full statement, I see nothing that would lead me to conclude that Dr. Gojer is wrong in his risk assessment.
The Extent of the Breach of Trust
[25] This is at the top end of the scale. Mr. R.N. abused both the trust of his partner, i.e., the child's grandmother, the child’s mother and obviously his de facto granddaughter.
The Duration and Frequency of the Assaults
[26] One episode of abuse is too much, and this is 5 episodes. No doubt he inflicted great harm over a 3-month period.
The Age of the Victim
[27] A.B. was 13 years old: a young girl no doubt in the midst of her body changing in many ways.
The Extent of the Interference
[28] There was digital penetration and the touching of breasts. He touched the most intimate parts of her body.
[29] This may be at the lower end on a spectrum of abhorrence, that of child abuse: this does not mean, however, that the less intrusive the interference, the more likely the child will not endure psychological damage.
[30] I will turn now to the submissions of counsel. Crown counsel has pointed to the following aggravating factors:
- the age of the victim;
- the power dynamic between a grandfather and a grandchild;
- the site of the assaults was in the child's home a place she is meant to feel safe;
- the enormous breach of trust; and
- the affect on A.B.
[31] Mr. Gill concedes all of the aggravating factors but submits that the following factors distinguish Mr. R.N. from others:
- he made a full confession;
- he has always indicated a readiness to plead guilty;
- he is remorseful: (1) as demonstrated through the forensic report and (2) his admission that he wants to take responsibility and wanted to confess for his wrongdoing.
- the child was a teenager as opposed to a very young child.
- the encounters were brief.
- the degree of physical interference was at the lower end of the scale; there was no invitation to touch his penis; and
- this was not a grooming scenario where each individual act was a progression of invasiveness on the one before; rather it was the same act each and every time.
Case Law
[32] Both Crown and Defence have provided a number of cases which they submit assists both of their positions as to the sentencing range. I will turn first to the Crown’s cases:
R. v. N.F., [2016] O.J. No. 4706
[33] The Defendant was found guilty after trial of 5 offences relating to his granddaughter when she was 7 or 8 and 14. He had her remove her clothes and sit on him with an exposed penis. He fondled her breasts and her vagina when she was 14 and was discovered by her father. He received a sentence of 3 years with the court finding he had no insight into his crimes and, therefore, the prospects of rehabilitation were not even factored into a consideration of the appropriate sentence.
[34] Again a post-trial sentencing decision of a man who was on parole for manslaughter who digitally penetrated his niece and touched her buttocks while intoxicated. He received a sentence of 2.5 years imprisonment.
R. v. P.C., [2016] O.J. No. 1545
[35] Again a sentencing after trial. The offender, was the grandfather of the 10-year-old victim who was at his trailer. She awoke naked on his couch and then was taken to his bedroom where her grandfather tried to penetrate her vagina with his penis. She felt some pain. His defence was that he mistook the child for his girlfriend and was completely unrepentant. He received a sentence of 5 years.
R. v. R.S., 2018 ONSC 1328, R. v. Medeiros, 2014 ONCA 602, R. v. G.B., 2012 ONSC 6572
[36] In all of these cases the offenders received penitentiary sentences in the 4-5 year range for breach of trust for sexual abuse. All of them had full trials and tested, as was their right, the evidence.
[37] Mr. Gill referred me to 26 cases ranging from the well-known case of R. v. Stuckless, 2019 ONCA 504, to cases of sexual assault of adults which really do not apply as precedents in the case at bar. More recent decisions post-Friesen from Ontario include cases that range from a conditional sentence to years in jail. Of particular significance are three cases:
R. v. Gunaratnam, 2021 ONSC 8270
[38] The defendant was 60 at the time of sentencing. He was found guilty after trial of having sexually assaulted his niece when she was between the ages of 7 to 12 or 13 years old. This occurred in the 1980s and early 1990’s. The assaults were fondling of breasts, twisting of nipples, petting of the vagina and digital penetration.
[39] After trial both Crown and Defence submitted that a sentence of two years less a day to be served in the community was appropriate. Prior to acceding to that joint submission, Justice Schreck stated this (at paragraph 32):
As I read Friesen and the cases that have applied it, the length of sentence being proposed, two years less a day, is within the range of appropriate sentences in this case.
[40] The cases to which Justice Schreck referred led him to opine the following (at paragraph 30)
That said, a survey of more recent cases (R. v. T.J., 2021 ONCA 392, R. c. F.J., 2021 ONCA 268; R. v. R.L.S., 2020 ONCA 338, R. v. Lloyd, [2021] O.J. No. 5163 (C.J.); R. v. Pye, 2021 ONCJ 517; R. v. D.B., [2021] O.J. No. 4381 (C.J.); R. v. D.S., 2021 ONSC 3972; R. v. J.L., 2021 ONCJ 297; R. v. D.J.S., [2021] O.J. No. 3994 (C.J.); R. v. P.H., [2020] O.J. No. 5450 (S.C.J.)) involving conduct that is comparable to what Mr. Gunaratnam did in this case suggests that an upper reformatory sentence may be appropriate
[41] One of the cases listed in the above-mentioned survey to which I wish to refer specifically is R. v. R.L.S., 2020 ONCA 338 in which the defendant was appealing a 9-month sentence for counselling his daughter when she was between the ages of 4 and 6 to touch him for a sexual purpose and for touching her for a sexual purpose. He had her watch pornography with him that depicted daughters performing sexual acts on their fathers. He had her touch his erect penis, he sat her on his lap with his clothes off and penis exposed and would sit with her and play an internet game depicting genitals. He was sexually abused himself as a teenager and tried to take his own life after being charged.
[42] The basis of the appeal was the immigration consequences that followed a 9-month sentence; that is, deportation to the US.
[43] The Court of Appeal stated (at paragraph 12):
Here the sentence of imprisonment is not demonstrably unfit. …There is nothing which displaces the deference owed to the decision of the sentencing judge.
[44] In R. v. T.J., 2021 ONCA 392 there was a Crown appeal of a 9-month sentence after a trial. The trial judge found that on one occasion when the child victim – aged between 6 and 7 years old – and her brother were having a sleepover with T.J.’s sons, the defendant directed the victim to the bathroom. He took her hand and placed it and rubbed it on his penis which became aroused. He said, “this is how you do it”. It went on for a few minutes and the defendant then instructed her to place his penis into her mouth. She left the room.
[45] The Court of Appeal found the sentence demonstrably unfit due to errors flowing directly from a lack of adherence to the guidance provided in Friesen; namely: the wrongfulness of the defendant’s actions and the potential and actual harm to the child.
[46] The appellate justices, at paragraph 33, said:
Where the overall focus of a sentencing decision is on the personal circumstances of the offender and the need for restraint, so as to underestimate the gravity of the offences and their harm, the sentencing decision is not consonant with Friesen's message.
[47] The Court of Appeal was clear: the trial judge was entitled to give "significant weight" to the sentencing principles those circumstances engage, but he was not entitled to give them priority or equal weight to denunciation and deterrence.
[48] The Court increased the sentence to 2 years but declined to commit the offender back to jail.
[49] From these cases it appears that a two-year sentence can give effect to the dominant sentencing principles post-Friesen.
[50] I will now turn to the to the mitigating and aggravating factors.
Mitigating Factors
[51] Mr. R.N. is a first offender who is a middle-aged man.
[52] He has pleaded guilty and, at the outset of being charged, admitted his wrongdoing.
[53] He has cooperated with a forensic assessment which assists me in concluding the evidence reveals a low risk to reoffend.
[54] He is entering custody as the Pandemic is still ever present in our lives; even more so in congregate living facilities such as a jail.
[55] Counsel argues that his client's fear of jail is heightened due to his choice of being unvaccinated. I indicated during submissions that given that vaccines are readily available, effective and in the public interest, I could not give effect to recognizing that "fear" as a mitigating circumstance.
[56] While I understand the submission made by Mr. Gill with respect to what aggravating features were not present in this case as referred to above, that fact is far from mitigating; rather it represents a sad statement of the prevalence of these type of offences and the range of activities that offenders have been found to have committed offences on children in and had any of those other aggravating factors been present; the range of sentence would have been increased.
Aggravating Factors
[57] The depth of the breach of trust is at the highest end.
[58] The locus of the offence: in a place where she has to continue to live in which she is meant to be allowed to thrive.
[59] On 5 separate occasions over a 3-month period the child had to endure this touching.
[60] The effect on the victim as described by her victim impact statement which will be long term.
[61] Before approaching the final balancing that I must undertake, I would wish to refer to one final issue: that of the collateral consequences of imposing a jail sentence in the first half of 2022. While I am obligated to take judicial notice of and consider the impact of serving a sentence during the Pandemic; see R. v. Morgan, 2020 ONCA 279, such a consideration cannot serve to reduce the sentence to one that is disproportionate to the gravity of the offence.
[62] The requirements of deterrence and denunciation must be prioritized; the principle of proportionality of a sentence imposed for child abuse must mandate a finding of extreme moral blameworthiness especially given the extent of the breach of trust and a finding of great harm to the young victim.
[63] However, I am also aware of the principles of restraint in imposing a period of incarceration. I am persuaded, having reviewed all of the cases, particularly those judgments post-Friesen, that a guilty plea to these types of offences is sadly rare: trials mandate often young children or young adults having to relive and describe what occurred in a public forum. The criminal justice system has always recognized a guilty plea as a significant indicator of remorse. Imprisonment of less than 2 years has been imposed and found appropriate post-Friesen for trial matters where findings of guilt have been imposed.
Conclusion
[64] I have therefore concluded that a two year less one day sentence should be imposed taking into account all of the aggravating and mitigating factors. This sentence allows Mr. R.N. to be considered for admission to the Ontario Correctional Institute for rehabilitative programmes to assist in this specific type of offending. It also permits me to impose a period of supervision on Mr. R.N. when he is released into the community which would allow for further therapeutic programmes to be provided to him which would assist him in not only coming to terms with the nature of his wrongdoing but ensure the safety of the public.
[65] It also allows me to impose restraints on him having any contact with the victim or her family so as to give her some comfort that he is not a presence to any degree in their life.
[66] There will be a 3-year period of probation which will include the statutory terms of reporting, residing at an address approved of by his probation officer and keeping the peace but also the following:
a) He shall take such counselling for sexual offending of a minor as recommended by his probation officer and provide proof of attendance. He should also attend any other counselling as recommended by his probation officer. b) He will have no contact with the victim or any member of her family during the period of probation nor attend any place he knows them to be. There will be one exception: He will be permitted to have contact only with his former partner Terri Fawcett (as I understand she has been trying to contact Mr. R.N.) but only with her written revocable consent.
[67] This is a primary designated offence, thus there will be an order under Section 487.051.
[68] There will be an order under Section 109 - a weapons prohibition for 10 years.
[69] There will be an order under the Section 490.012 of the Criminal Code requiring Mr. R.N., within 15 days of his release from custody, to report to the designated address on the form he will be provided with under the Sexual Offender Information Registration Act and so report on an annual basis for 20 years.
[70] Finally, in accordance with Section 161 of the Criminal Code, Mr. R.N. will be prohibited from attending daycare centres, schoolgrounds, playgrounds, except in the company of anyone over the age of 21 years who is aware of this order. I have considered whether to include community centres but given Mr. R.N.'s age and the fact that he is at this point living in the shelter system, I am aware the community centres provide many activities for persons of his age; house libraries, voting booths and physical exercise facilities for seniors. No such prohibition will be ordered.
[71] He is prohibited from attending 500 metres of any place he knows the victim to live or be.
[72] He is prohibited from seeking, obtaining or continuing any employment whether or not the employment is renumerated 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.
[73] Mr. R.N. is prohibited from having any meaningful (i.e.) not incidental contact or communication with anybody under the age of 16 unless he is in the company of a person over the age of 21 who is aware of this order.
[74] This order will be in effect for 10 years.
[75] Given Mr. R.N. is stepping into custody; the Victim Fine Surcharge will be waived.
Released: March 19, 2022 Signed: Justice K. L. McLeod
