Non-Publication and Non-Broadcast Order Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 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.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2023 10 19 COURT FILE No.: Toronto 4810 998 18 35001976-99

BETWEEN:

HIS MAJESTY THE KING

— AND —

J.B.P.

Before Justice R. Wright Heard on October 4 and 19, 2023 Reasons for Sentence released on October 19, 2023

Counsel: P. Rutherford....................................................................................... counsel for the Crown A. Sobcuff............................................................................. counsel for the accused J.B.P.

WRIGHT J.:

Introduction

[1] On December 28, 2022, following a trial, I found J.B.P guilty of four counts of sexual assault, four counts of sexual interference, and four counts of invitation to sexual touching in relation to five sexual acts that occurred on four different dates when the victim, R.R., was between four and six years old. R.R. was the younger brother of J.B.P.’s girlfriend at the time. J.B.P. was in his early 20s. He was sometimes left alone with or in supervision of R.R. when other adults were not available. He testified that his relationship to R.R. was like a father-figure or a god parent.

[2] The assaults involved showing pornography to the young victim and forced masturbation and oral sex to the point of ejaculating in the young victim’s mouth.

[3] After hearing submissions from counsel, I conditionally stayed the four counts of sexual assault as duplicative of the offences of sexual interference pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. The counts of invitation to sexual touching contain an additional element and are not duplicative. As such, I am sentencing J.B.P. in relation to eight counts that relate to four different dates.

[4] The Crown seeks a global jail sentence of eight years jail, a DNA order and a SOIRA order.

[5] The defence submits that the appropriate jail sentence is two-years-less-a-day jail, to be served conditionally in the community (a conditional sentence was available at the time these offences were committed).

The Offences

[6] In 2001 and 2002, R.R. was between the ages of four and six. J.B.P. was in his early 20s and was dating R.R.’s older sister. I found that J.B.P. was an occasional part of the routine of care for R.R., assisting in watching him after school or taking him to school.

[7] I found J.B.P. guilty in relation to five separate events of sexual abuse that occurred on four separate occasions:

(1) At R.R.’s aunt's apartment where he and his family were living when he was four years old. This assault took place in the living room in the afternoon when R.R. was left under J.B.P.’s supervision because R.R.’s sister had to go to work. R.R. was playing video games in his uncle’s bedroom when J.B.P. called him into the living room. J.B.P. flipped through the television channels until an explicit movie was on the screen. J.B.P. took out his penis and brought R.R.’s head to his genitals, told him to open his mouth, and had him perform oral sex to ejaculation;

(2) At his family residence when he was five years old. This assault took place in the living room under the computer table. J.B.P. had met him after school and walked him home. R.R. and J.B.P. were alone in the house. J.B.P. called R.R. over to the computer and showed him pornography. J.B.P. grabbed R.R.’s hand and made a masturbating motion and placed R.R.’s hand on his penis. He told R.R. to come closer and guided his head and had him perform oral sex to ejaculation;

(3) At J.B.P.'s residence, in both the living room and J.B.P.’s bedroom, when R.R. was five years old. R.R. had gone to J.B.P’s apartment for a sleepover. No one else was home. J.B.P. put pornography on the television and took out his penis and began masturbating. He told R.R. to come closer and put R.R.’s hand on his penis and motioned for him to masturbate him. He then put R.R.’s head to his genitals and had him perform oral sex to ejaculation. R.R. then went to sleep in J.B.P.’s bed. J.B.P. got into the bed with him, masturbated, again had R.R. masturbate him, and then guided R.R.’s head to have him perform oral sex to ejaculation again; and,

(4) At J.B.P’s residence, in the living room, when R.R. was between four and six years old. J.B.P. put on pornography on the television, opened his pants and guided R.R.'s hand to his penis and used it to masturbate. He then guided R.R.'s head to his penis and had him perform oral sex to ejaculation.

Victim Input

[8] R.R. is now 27-years old. I was provided with one Victim Impact Statement from him, which was read into the record by the Crown.

[9] He has had suicidal thoughts. He blamed himself for the abuse. He felt that the world did not need him or care if he existed. He stated “I feel broken about it. I don't feel the same, it is like I am damaged or defective.”

[10] In his statement R.R. describes how the abuse by J.B.P. has made him unable to trust men, including those his sisters have relationships with. He expresses the shame he felt, and the additional shame from keeping the abuse secret for such a long time. He expresses how he felt he wouldn’t be believed. He still feels he has to keep the abuse secret from men in his family because he doesn’t know if they would believe him.

[11] It is clear that this abuse has deeply impacted R.R.’s life and his feelings of self-worth.

The Offender

[12] J.B.P. is 44 years old. He has a dated criminal record, from 2004, for an offence of robbery. That offence post-dates the conduct for which I am sentencing him, and I have not considered it as an aggravating feature on sentence.

[13] J.B.P. is an alcoholic. There is no suggestion that alcohol was a factor in his offending behaviour; I refer to this fact because J.B.P. is suffering from liver cirrhosis and liver cancer that is presently not capable of being treated. J.B.P. is not a candidate for a liver transplant because of his ongoing use of alcohol. The expert opinion evidence is that his life expectancy is approximately 16 months up to less-than-two-years, and may be much shorter.

[14] J.B.P.’s liver cirrhosis has progressed significantly since the trial. He has been treated by Dr. Morven Cunningham at the Toronto General Hospital Liver Clinic since 2022. He is currently being referred to palliative care. His current symptoms are of impaired liver function, some of which are hard to control. He is experiencing fluid overload in the legs and lower body, with an increased risk of infection. He is also experiencing encephalopathy (which can present as confusion, memory loss, or even blindness in serious cases).

[15] J.B.P.’s liver cirrhosis is being managed with medication, a low sodium diet, and regular appointments with his specialist to monitor liver and kidney function and the symptoms of encephalopathy. He takes six medications, some of which are twice per day, and which require adjustment if they are causing impact on other organs. He sees his specialist monthly for monitoring. He has been hospitalized once due to his cirrhosis while under Dr. Cunningham’s care and may need to be further hospitalized if symptoms of encephalopathy worsen.

[16] J.B.P. was diagnosed with liver cancer in April of 2023. His cancer cannot be treated due to the decompensation of his liver function. In the event that his liver function improves, treatment of the cancer may become an option. As such, his cancer is being monitored with scans every six weeks. It is anticipated that the cancer will eventually progress beyond treatability. When that occurs, these scans will be discontinued.

[17] J.B.P. also has large abdominal hernia, which cannot be treated surgically due to his liver decompensation. This hernia impairs his physical movement.

[18] Six letters of support were filed on J.B.P.’s behalf from family and friends. These letters set out the role J.B.P. plays in his family circle. These letters acknowledge that the authors are aware of his offence. Notwithstanding, the letters ask for a merciful sentence given J.B.P.’s health. It is clear from the letters that he has the support of his family circle.

[19] While I agree that the reference letters do speak very positively to J.B.P.’s character, evidence of good character has lower probative value in sentencing for sexual assault cases because previous good character is common in child sexual assault cases: R. v. Misay, 2021 ABQB 485, at paras. 126-131. Sexual assaults on children are committed by people out of the public eye, in secret. It is no surprise that this is often a shock to people who thought they knew the offender well. Evidence of good character supports rehabilitative sentencing objectives, and, in that way, it can be mitigating.

Applicable Sentencing Principles

[20] It has been said many times before that sentencing is the most delicate and difficult task for a judge: R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089. This case is an example. I am mindful that any sentence of imprisonment that is not served in the community realistically means that J.B.P.’s life may end while he is serving his sentence in a custodial facility.

[21] Section 718.1 of the Criminal Code of Canada (“Code”) states that the fundamental principle of sentencing is proportionality. To be a fit sentence the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing must also consider the principle of parity. Section 718.2 (b) of the Code states that similar offenders who commit similar offences in similar circumstances should receive similar sentences.

[22] Ss. 718.01 and 718.2 of the Code set out a number of other considerations:

718.01 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.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[23] Other aggravating and mitigating factors and the offender’s personal circumstances must be considered, but "[w]here Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority”: R. v. Friesen, 2020 SCC 9, [2019] S.C.J. 100 at para. 104.

[24] In Friesen, the Court held that sentencing for sexual offences must reflect both the harm that sexual offences cause against children and the life-altering consequences that flow from the sexual violence. Imperative to arriving at a just sentence is a proper understanding of the gravity of these offences (at para. 50):

To effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important.

[25] Friesen sent a clear message that sexual offences against children cause profound harm to the victims and that, accordingly, sentences for such offences must increase to match Parliament’s view of their gravity. The Supreme Court emphasized that sexual offences against children are inherently wrong and always put children at risk of serious harm. Substantial sentences are required, and it is not open to sentencing judges to elevate other sentencing objectives to an equal or higher priority than those of denunciation and deterrence: Friesen, at paras. 101, 104, 116, 145, 151.

[26] Friesen also identified significant factors to be considered in determining a fit sentence for sexual offences against children (at para. 131). These include: the likelihood of reoffending; whether the offence involved the abuse of a position of trust, since any breach of trust is likely to increase the harm to the victim as well as inhibit the child from reporting sexual violence; and the duration and frequency of the sexual violence, since the long-term emotional and psychological harm to the victim can become more pronounced where the sexual violence is repeated.

[27] In R. v. Solomon, 2022 ONCA 706, the Court cited Friesen with approval, tacitly accepting that the principles from Friesen apply to historical offences in the course of concluding that the sentence imposed in that case (five years jail for sexual exploitation, sexual assault and threats committed from 1996-2001) was appropriate.

[28] The totality principle must take into account J.B.P.’s health circumstances and life expectancy. I am mindful of the direction of appellate courts that the sentence I impose should not crush all hope. I am also mindful that if incarcerated, J.B.P. will have access to s. 121 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which can be used to expedite parole if terminal illness or serious mental or physical health damage will result from continued confinement.

[29] Finally, as to a Conditional Sentence Order (“CSO”), a CSO is available if there is no minimum punishment prescribed, the offence does not fall into limited specific offences (which, these offences do not), I impose a sentence of less than two years, and it would not endanger the safety of the community and is consistent with sentencing principles/purposes (Code ss. 718- 718.2). At the time of these offences, there was no minimum punishment prescribed.

Analysis

[30] There are a number of aggravating features in this case:

(1) The very young age of R.R. at the time of the offences: he was between the ages of four and six;

(2) J.B.P. was in a position of trust to R.R., being involved in his plan of after-school care: R.R.’s family trusted J.B.P. to supervise R.R., not to sexually abuse him;

(3) Repetition: the four different dates of sexual abuse occurred over a period of more than a year; and

(4) The psychological trauma to R.R.

[31] While the aggravating factors are significant, there are also many mitigating factors that I must consider:

(1) J.B.P. was a young man in his early 20s at the time of the offences;

(2) At the time of the offences, he had no criminal record;

(3) His risk of reoffending is very low given his health and prognosis;

(4) He has strong family support and rehabilitative potential.

[32] Both counsel provided various sentencing authorities to help support their positions. I appreciate that a sentence of less than two years has been imposed on similar offenders in similar circumstances (R. v. Thompson, 2012 ONCJ 399; R. v. D.J.M., 2012 ONCJ 632; R. v. J.E.B., 2014 ONSC 1921; R. v. S.W. [1998] O.J. No. 2867; R. v. A.G.W., [2000] O.J. No 398.), but all of the authority relied on by the defence for that length of sentence pre-dates Friesen. I have not been directed to any authority that post-dates Friesen in which a sentence of less than two years was imposed for the forced application of oral sex with a victim between the ages of four and six. The cases relied on by the Crown for a sentence of eight years are similarly somewhat unhelpful: many of them involved more significant abuse, or a more significant breach of trust than here.

[33] In my view, a substantial penitentiary sentence is required given the presence of a number of significant aggravating factors. These include the fact that J.B.P. sexually assaulted R.R. multiple times over a period of more than a year; the sexual assaults were invasive, involving forced oral sex and ejaculating in R.R.’s mouth; R.R.’s very young age at the time of offending; and, the abuse of a position of trust.

[34] An appropriate total sentence in this case is one of four years. This takes into account the significant aggravating features I have outlined related to the offences, and the mitigating features related to J.B.P.

[35] With respect to J.B.P.’s health issues and prognosis: I am sympathetic to the issues he is facing. I appreciate that custody will be more difficult for him. My assessment that a penitentiary sentence of four years is necessary has taken his health and medical needs into account. There is no evidence that his condition cannot be managed within the institution.

[36] I have seriously considered the defence submission that his health condition and prognosis amount to an exceptional circumstance that should bring the sentence under two years, allowing it to be served conditionally in the community. Even accepting that specific deterrence may not be a factor for J.B.P., this is the kind of case where the applicable sentencing principles demand a significant penitentiary term regardless of his health. I have accounted for his health and prognosis in my application of the totality principle, and have considered the Supreme Court of Canada's comments in R. v. M. (C.A.), 1996 SCC 230, at para. 74, with respect to the possibility that the sentence could “surpass any reasonable estimation of the offender's remaining natural life span.” It is indeed possible that, subject to any decisions with respect to applications for early parole, the sentence to be imposed will exceed J.B.P.’s prognosis. But to impose a sentence that removes that possibility would reduce it to one which is manifestly unfit in the circumstances.

[37] As I am of the view that a four-year sentence is required, a CSO is not an available sentence.

Sentence

[38] The total sentence will be one of four years in jail. To properly reflect the principle of totality, in accordance with R. v. Ahmed, 2017 ONCA 76 and R. v. Jewell (1995), 100 C.C.C. (3d) 270 (Ont. C.A.), the sentence will be recorded as:

(1) Counts 8 and 9 (which I found involved multiple incidents of sexual abuse on the same sleep-over date) the sentence is two-years jail;

(2) Counts 2 and 3, the sentence is one-year jail, consecutive;

(3) Counts 5 and 6, the sentence is six-months jail, consecutive;

(4) Counts 11 and 12, the sentence is six-months jail, consecutive.

Ancillary Orders

[39] The Crown seeks two ancillary orders.

[40] Sexual interference and invitation to sexual touching are primary designated offences for the purposes of the DNA provisions. J.B.P. is ordered to provide such samples of his bodily substances as are reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act in relation to these charges.

[41] As J.B.P. has been convicted of a “designated offence”, I make an order pursuant to s 490.12(1) requiring J.B.P. to comply with the Sex Offender Information Registration Act for a period of 20 years, as the Crown proceeded by Indictment and given the maximum penalties applicable for these offences at the time they were committed.

Released: October 19, 2023 Signed: Justice R. Wright