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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2022 04 21 Court File No.: Region of Niagara: 998 W21 4757 & 58

Between:

HER MAJESTY THE QUEEN

— AND —

S. (T)

Before: Justice J. De Filippis

Heard on: January 31 and April 13, 2022. Reasons for Sentence released on: April 21, 2022

Counsel: Mr. M. Sokolski, counsel for the Crown Mr. V.J. Singh, counsel for the accused

Reasons for Sentence

De Filippis, J.:

[1] The defendant pleaded guilty to two counts of sexual interference. At the time of these offences, he was 21 years old. The victims are his half-sisters. All lived with their mother. The father of the victims is separated from their mother.

[2] On April 19, 2021, the offender took N.L., his five-year-old sibling, upstairs in the family home to play “hide and seek” while their mother prepared dinner. After entering the bathroom, the offender suggested they play “close your eyes and open your mouth”. The child did so, and he inserted his penis in her mouth. Her father eventually learned what had happened and took his daughter to the police. This report occurred after the molestation of the other sibling.

[3] Between May 1 and July 5, 2021, the offender watched pornography with 10-year-old, E.L. While doing so, he asked if he could rub her vagina. She refused. Over time the offender discussed the “pros and cons” of his proposal; he said it would make them feel better, but he could go to jail. Eventually, E.L. allowed the offender to fondle her breasts and vagina. On one occasion, the offender penetrated her vagina with his finger. Afterward, E.L. told her older sister about these events and the latter called the police.

[4] The offender is now 22 years old and has a grade eight education. He was previously found guilty of possession of a weapon and failure to comply with a court order. He was placed on probation for these offences.

[5] The Gladue Report I ordered was not prepared for the date set aside for sentence submissions. It was then expressly waived by the offender. However, I have the benefit of a fulsome Presentence Report; the offender has had a life that Crown and Defence describe as "tragic".

[6] The offender was raised in various homes, all marked by severe substance abuse and persistent violence. At the age of three he was apprehended by child welfare authorities because he had been badly beaten by a person living at his mother’s home. Soon after, until the age of 12, he lived with his father. This was not an improvement. His father physically abused him and would lock him in his room for extended periods of time. His father’s girlfriend sexually molested the offender. What followed, for the offender, is a pattern I have seen all too often in cases of childhood trauma – a descent into alcoholism and drug addiction. Indeed, the offender was under the influence of both when he committed the offences in question. The Presentence Report discloses that the offender has a high sex drive and is promiscuous. He is an avid consumer of online pornography and attracted to sexual taboos, such as incest.

[7] I received statements from the girls who were molested as well as their mother. N.L. (now six years old) and E.L. (now eleven years old) both told me they are sad, confused, and frightened. N.L. also asked me to ensure the offender never leaves prison. I mention this to highlight her anxiety. The mother of the girls told me she is depressed and in therapy. She no longer trusts others around her children.

[8] The offender has been in custody since his arrest. Certificates filed by Defence counsel show that he has used this time to better himself, including, the successful completion of programs dealing with anger management, self-awareness, and financial literacy. At the conclusion of sentencing submissions, the offender told me he was sorry for what he had done and that his arrest “has brought me back from the brink of disaster”. He added that “I want help”.

[9] Since this offence involves the abuse of a person under the age of 18 years, I must give primary consideration to the objectives of denunciation and deterrence. This is especially so, because the defendant committed the offence while in a position of trust; see sections 718.01 and 718.2 of the Criminal Code. In applying these principles, I am guided by the decision, of the Supreme Court of Canada, in R. v. Friesen, 2020 SCC 9.

[10] In Friesen, the Court provided comprehensive guidance to lower Courts by restating and reformulating certain governing principles in cases of sexual interference. These are the four messages that I take from Friesen: (1) Protecting children from wrongful exploitation and harm defines the legislative scheme of sexual offences against children; (2) Understanding this wrongfulness and harm is the critical duty of sentencing judges: (3) The performance of this duty means that those who commit this offence will usually go to jail; and (4) Exceptional circumstances, that justify a non-custodial sentence, are those that mitigate an offender’s moral responsibility, such as mental or cognitive disabilities.

[11] Friesen adopted the comments in R v Woodward 2011 ONCA 610 at para 76

... when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

[12] In R v Poulsen 2020 ONCJ 440, the 36-year-old offender touched the 14-year-old victim with his hands and penis. They knew each other from sharing drugs together and were doing so on the day of the offences. He also photographed her while he had his penis in her mouth. In sentencing the offender to four and one-half years in jail for sexual assault and sexual interference, my colleague said the following:

Parliament’s attitude towards sexual offences involving children could not be clearer. While the purpose of sentencing and its objectives are broadly set out under s.718, there are at present three categories of victims where it stated that primary consideration should be given to the objectives of denunciation and deterrence. One of these is where the offence involves the abuse of a person under the age of 18-years: s.718.01 – para 58.

The Supreme Court of Canada’s blunt message in Friesen that sentences for such offences must increase therefore informs these Reasons for Sentence. As the Court put it, mid-single digit penitentiary terms for sexual offences against children are to be the norm and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. Substantial sentences may also be imposed where there is only a single instance of sexual violence and/or a single victim – para 63.

[13] The Crown submits that an appropriate sentence is one of four years in the penitentiary; three years for the offence against N.L. and one year consecutive with respect to E.L. In taking this position, the Crown notes that the offences were deliberate and continuous, committed by a person in a position of trust, with significant harm to the victims.

[14] Defence counsel points out that the offender is a young man who has not been in jail before. At 115 pounds, he has had to be careful not to come into conflict with other inmates while in presentence custody. Counsel submits that the offender is the product of his childhood and asks that I temper the otherwise reasonable position taken by the Crown and combine it with an extended period of probation. This longer period of supervision, it is hoped, will assist the offender in overcoming his many challenges.

[15] I acknowledge that the offender’s guilty plea represents remorse. Moreover, avoiding a trial means the young girls did not have to testify. I also note that there is no independent evidence of the crimes, apart from the reports by the victims. As such, given the requirement that the Crown prove its case beyond a reasonable doubt, the guilty plea is especially mitigating.

[16] The offender abused two siblings and violated the trust placed in him as an older brother. The harm he caused is significant. There can be no doubt that the offender’s extraordinarily difficult background informs his crimes. These personal circumstances are considered separately from, and do not lessen, the seriousness of the offences. Personal circumstances are relevant in determining proportionality in light of the seriousness of the offence: R v Schofield [2019] B.C.J. No. 22 (BCCA).

[17] As of the date of these reasons, the offender has been in custody for 151 days. Considering the absence of remission, this is effectively a pretrial custody period of 226 days or seven and one-half months. In my opinion, having regard to the applicable legal principles, including the aggravating and mitigating factors, a just and fit sentence is an additional two years in the penitentiary; that is, a total sentence of 31.5 months. The presentence custody will be allocated to the offence involving E.L. and the additional two years is for the offence involving N.L. The imposition of no more than an additional two years allows me to impose the maximum allowable period of three years’ probation, thereby providing supervision of the offender for the next five years. I do so not to promote rehabilitation over deterrence and denunciation – that would be contrary to Friesen – but because it is an effective means of protecting other children.

[18] The terms of probation require the offender to keep the peace and be of good behaviour, report to a probation officer, reside where directed and take counselling as directed. In addition, the offender must not communicate, directly or indirectly, by any means, with the victims or be within 100 metres of any place he knows them to reside, go to school, work or worship. The non-contact order and boundary restrictions are subject to any Family Court Order issued after the date of these reasons.

[19] I also impose the following ancillary orders: The defendant will supply a sample of his DNA and register with the federal sex offender registry (SOIRA) for life. He is prohibited, pursuant to section 109 from possession weapons as defined therein.

[20] Finally, there will be an order under Section 161 of the Code. There is nothing before me to suggest that the offender is a risk to persons present in parks, retail stores, and other public places. However, given the facts of this case and his stated interest in sexual taboos, such as incest, I consider it appropriate to prohibit the offender, for a period of 10 years, from:

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, with a person who is under the age of 16 years, including children of his own, while in his residence, or other private place, unless he is under the supervision of an adult over the age of 21. The prohibition with respect to his own children is subject to any contact authorized by a child welfare agency, including an indigenous organization that supports parents and families, and any Order by the Family Court or other Court of competent jurisdiction.

[21] The defendant will pay a victim fine surcharge in the amount of $200.00 per count, or spend two days in jail consecutive in default, payable within three years.

Released: April 21, 2022 Signed: Justice J. De Filippis