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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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: 2024 04 22 COURT FILE No.: Toronto 20-35002351
BETWEEN:
HIS MAJESTY THE KING
— AND —
P.R.
Before: Justice R. Wright Heard on: March 5, 2024 Reasons for Sentence released on: April 22, 2024
Counsel: M. Petrie, counsel for the Crown V. Tutunjian, counsel for the accused P.R.
WRIGHT J.:
[1] On November 15, 2023, following a trial, I found P.R. guilty of eight counts: three counts of sexual assault, three counts of sexual interference and two counts of invitation to sexual touching. One count of sexual interference was stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.
[2] I am sentencing P.R. in relation to seven counts that relate to three different victims. The victims of these assaults were his daughter and two nieces, who were between the ages of five and 16 when the assaults occurred. While there were eight specific counts, I found that P.R. had assaulted two of the victims many more times. The assaults involved kissing, licking, the touching of the young victims’ chests and vaginas, and, for two of the victims, invitations to have them stroke or suck his penis.
[3] The Crown seeks a global sentence of 12.5 years jail, a DNA order, a 161 order, a 109 Order and a SOIRA order for life.
[4] The Defence submits that the appropriate jail sentence is two-years-less-a-day, to be served conditionally in the community for six of the counts (a Conditional Sentence Order “CSO” was available when these offences were committed). On the seventh count, for which a CSO is not available due to the mandatory minimum sentence, the defence seeks the minimum sentence of one-year jail. In the event I was not persuaded a CSO was appropriate, the Defence submitted a global sentence of six years would be appropriate.
The Offences
[5] P.R. is the father of M.P. and the uncle by marriage of N.R. and M.V.
[6] When M.P. was between the ages of five and eight, her father would take her to nap with him. He kissed her chest and put his tongue in her mouth. He inserted his fingers in her vagina and told her it was normal, and that he was not hurting her. On one occasion he showed her his penis and had her stroke it. He told her not to tell her mother about these incidents. When her father would take her to dance classes, he would make her lift her shirt and show him her chest and would force her to kiss him. He would not take her to her classes until she complied.
[7] These assaults occurred regularly until M.P.’s cousin N.R. made a complaint to a teacher (M.P. was in grade two or three at the time). The assaults then stopped for a number of years. However, after M.P. entered grade seven, P.R. began coming to her room. He would look under her shirt while she was in bed pretending to be asleep. He would also squeeze and touch her chest while restraining her during arguments. These assaults tapered off as she got older and more able to prevent her father from physically touching her (she believed the last incident had occurred in 2015 or 2016).
[8] N.R. is P.R.’s niece by marriage. When P.R. and his family first came to Canada they spent much time with N.R.’s family, even living with them for a time. When N.R. was between the ages of seven and 10 she would sometimes sleep over at her cousin’s residence, in a bunk bed with M.P. P.R. would then come into the room and lift her shirt and touch and rub her chest. At family parties in the same residence, P.R. would take her into the principal bedroom where he would touch her chest and vagina and lick around her body. He told her not to tell anyone about these incidents. On one of the occasions he tried to force N.R.’s head toward his penis. She resisted.
[9] These assaults went on for more than two years. When N.R. was in grade five, she approached her teacher and told her something was happening. She was taken to the principal’s office and a complaint was made. She communicated that her uncle had been touching her in odd ways. While child services investigated, no charges were laid, and it seemed that most of the family chose not to believe that anything had happened.
[10] M.V. is also P.R.’s niece by marriage. In summer 2014 the families shared a cottage property in Muskoka for a vacation. While M.V. was sleeping, P.R., who had been sleeping on the floor beside her, touched her chest. When M.V. turned away from him, he pulled her back, shifted her over and touched her chest again. P.R. then put his fingers in her vagina. He did not say anything while this was happening. M.V. kept her eyes closed and pretended to be asleep. Also present in the room at that time, were M.V.’s cousins and P.R.’s wife.
Victim Input
[11] Each of the three victims provided a Victim Impact Statement. Unsurprisingly, the abuse at the hands of their father or uncle has scarred each of them.
[12] M.P.’s abuse from her father has impacted every aspect of her life. She does not believe she will ever heal from the trauma. She is plagued by insecurity, in part because of the concerns that she would not be believed and the knowledge that her father still claims she and her cousins are lying about the assaults as revenge for him having an affair. She has difficulty being physically intimate in her relationship, and difficulty discussing physical intimacy with her partner. She has trouble trusting men and feels that many men are predators. When she was younger and still living with her father, she lived in fear that he would come into her room in the night. This fear continues to plague her, but now her worry is that he is outside of her house, driving around her neighborhood. She fears he would attack her if he saw her in public.
[13] N.R. will carry the emotional damage of the abuse for the rest of her life. Thinking about it gives her flashbacks and puts her into a depressive state; even completing the VIS was re-traumatizing for her. She expressed that her trauma at being assaulted by her uncle was magnified by the disbelief she received when she first attempted to report the abuse in grade school. She was silenced by what happened. Her childhood was stolen. She was isolated and her relationship with her entire family was forever changed.
[14] M.V. has been shaped by her trauma; she is studying to become a social worker because of it. She also suffers flashbacks to her trauma. She wants to work with women who experience abuse and are silenced, but that goal is a constant reminder of the abuse she suffered. The abuse impacted her schooling. It impacted her sleep. When she did sleep, she would wake thinking someone was in the room with her or suffer nightmares. She did not feel safe with her family or in her home. She suffered from thoughts of suicide and dropped out of school for a time. She has difficulty trusting men other than her father and brother. She has difficulty with physical intimacy and suffers from anxiety.
The Offender
[15] I had the benefit of a Pre-Sentence Report (“PSR”). The PSR outlines P.R.’s position that the charges against him are false, made on behalf of his wife and children to get revenge on him for carrying on an affair. P.R. made no expressions of remorse to the report writer.
[16] P.R. is 52-years old. He has no prior criminal record or involvement with the criminal justice system. He was born in Sri Lanka. He had a mostly positive family life, except his father used excessive physical discipline. He completed grade 10 but reported not being a good or interested student. He began working, but his life was impacted by the civil war in Sri Lanka, which caused significant trauma to him, including seeing a neighbour executed. He met his wife in Sri Lanka, and they immigrated to Canada to escape the war. They have been separated since 2020. He has three children with his wife, including his only daughter M.P.
[17] The PSR details P.R.’s strong pro-social employment history, including running his own renovation business for many years. It also details his involvement in the community, volunteering with his temple, and contains the support of a number of his friends. Those supporters acknowledge that they are aware of his charges, but do not believe him to be guilty, believing instead that he is the victim of a revenge scheme.
[18] While I agree that the PSR contains positive reports of P.R.’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. But evidence of good character supports rehabilitative sentencing objectives, and, in that way, it can be mitigating.
[19] P.R. also has several health issues, including chronic shoulder pain from a car accident. He has suffered pain in his back, neck, and shoulder since 2000. He has a disc injury and herniation. He also has a lesion in his shoulder and suffered further injury to it when he fell from a ladder. He has been attending physiotherapy twice a month, and reports the pain is unbearable without treatment. He also suffers from seasonal asthma.
Applicable Sentencing Principles
[20] 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.
[21] 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:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(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
shall be deemed to be aggravating circumstances.
[22] 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 at para. 104.
[23] In Friesen, the Court held that sentencing for sexual offences involving children must reflect both the harm that sexual offences cause children and the life-altering consequences that flow from this sexual violence. Imperative to arriving at a just sentence is a proper understanding of the gravity of these offences:
[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.
[24] 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.
[25] 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.
[26] The Court in Friesen also strongly cautioned trial courts against focusing too much on the type of physical sexual activity involved in an offence. Rather, the focus must be on the harm caused to the child by the offender’s conduct (at para. 143). The Court elaborated:
[144] Specifically, we would strongly caution courts against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation. There is no basis to assume, as some courts appear to have done, that sexual touching without penetration can be [translation] “relatively benign” (see R. v. Caron Barrette, 2018 QCCA 516, 46 C.R. (7th) 400, at paras. 93-94). Some decisions also appear to justify a lower sentence by labeling the conduct as merely sexual touching without any analysis of the harm to the victim (see Caron Barrette, at paras. 93-94; Hood, at para. 150; R. v. Iron, 2005 SKCA 84, 269 Sask.R. 51, at para. 12). Implicit in these decisions is the belief that conduct that is unfortunately referred to as “fondling” or [translation] “caressing” is inherently less harmful than other forms of sexual violence (see Hood, at para. 150; Caron Barrette, at para. 93). This is a myth that must be rejected (Benedet, at pp. 299 and 314; Wright, at p. 57). Simply stating that the offence involved sexual touching rather than penetration does not provide any meaningful insight into the harm that the child suffered from the sexual violence.
[145] Third, we would emphasize that courts must recognize the wrongfulness of sexual violence even in cases where the degree of physical interference is less pronounced. Of course, increases in the degree of physical interference increase the wrongfulness of the sexual violence. However, sexual violence against children remains inherently wrongful regardless of the degree of physical interference. Specifically, courts must recognize the violence and exploitation in any physical interference of a sexual nature with a child, regardless of whether penetration was involved (see Wright, at p. 150).
[146] Fourth, it is an error to understand the degree of physical interference factor in terms of a type of hierarchy of physical acts. The type of physical act can be a relevant factor to determine the degree of physical interference. However, courts have at times spoken of the degree of physical interference as a type of ladder of physical acts with touching and masturbation at the least wrongful end of the scale, fellatio and cunnilingus in the mid-range, and penile penetration at the most wrongful end of the scale (see R. v. R.W.V., 2012 BCCA 290, 323 B.C.A.C. 285, at paras. 19 and 33). This is an error — there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference. As the Ontario Court of Appeal recognized in Stuckless (2019), physical acts such as digital penetration and fellatio can be just as serious a violation of the victim’s bodily integrity as penile penetration (paras. 68-69 and 124-25). Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration.
[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 P.R.’s health circumstances and rehabilitative potential. I am mindful of the direction of appellate courts that the sentence I impose should not inhibit rehabilitation. I am also mindful of the principle of restraint, in particular given P.R.’s lack of any prior criminal record. 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.
[29] Finally, as to a CSO, it 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).
Analysis
[30] There are a number of aggravating features in this case:
(1) Relationship: it is statutorily aggravating that P.R. abused his daughter and his nieces;
(2) Ages: it is statutorily aggravating that the victims were all under the age of 18. The very young ages of M.P. and N.R. when the sexual abuse started is further aggravating;
(3) Trust: P.R. was in a position of trust for all three victims; a guardian over them who used his role to sexually abuse them;
(4) Repetition and duration: for M.P. and N.R. the sexual abuse occurred frequently over years of their lives. M.P. suffered sexual abuse for six years of her life; N.R., for two years;
(5) Vulnerability: he took advantage of the victims in their own beds, while they were or appeared to be sleeping. These are places where the victims deserved safety; P.R. used their vulnerability to sexually abuse them; and
(6) Impact: The significant psychological trauma to the victims is aggravating.
[31] There are also several mitigating factors:
(1) P.R. has no criminal record or prior involvement with the justice system;
(2) P.R. has a lengthy pro-social history of employment and volunteering; and
(3) He has strong support from his friends and rehabilitative potential, although his rehabilitative potential is somewhat tempered by his lack of acknowledgement of his offending.
[32] Both counsel provided sentencing authorities to help support their positions. The Crown relies on:
(1) R. v. J.W., 2022 ONSC 6491: in that case there were two complainants ages 11 to 16, and the accused was in a position of trust. The accused penetrated them with his penis and there was ongoing abuse. The sentence was 10 years;
(2) R. v. V.B., 2022 ONSC 3085: in that case the offender was remorseful, having entered a guilty plea. He was the uncle of the victim who was between the ages of 10 and 12. The offender digitally penetrated and touched her more than 20 times over two years; there were also charges of voyeurism and child pornography. Mitigating factors included letters of good character, the offender was caring for elderly parents, had seen a therapist, lost his job and suffered social impact due to his restrictive bail conditions. The sentence was nine and a half years;
(3) R. v. J.F., 2021 ONSC 7613: in that case there was a single victim, aged 11-15. Sexual abuse started while the victim was pretending to sleep, went on for four years and included intercourse. The sentence was nine years;
(4) R. v. G.D., 2023 ONSC 829: in that case the victim was aged nine to 17. The offender was her uncle. There were acts of grooming. The victim had been ostracized by her own family. The sentence was 8 years; and
(5) R. v. A.S., 2023 ONSC 983: in that case the offender was a family friend, but the victim referred to him as her uncle. The offending included the touching of her breasts and vagina between the ages of six and 12. The sentence was seven years.
[33] The Defence provided several authorities, but most of them were decided before Friesen or relate to historical offending conduct when the maximum punishments were lower:
(1) R. v. F.C., 2016 ONSC 5538: after trial, the accused was found guilty of three sexual offences against his young great-granddaughter. He was 82 and his great granddaughter was four-years old. The offending included vaginal touching. The sentence was nine-months imprisonment and three-years probation;
(2) R. v. L.F.W., 2000 SCC 6: the offences were committed between 1967 and 1973. The victim was between six and 12-years old; the accused was 22 to 28. They were cousins. There were 10 to 12 incidents of forced masturbation and fellatio. The sentence was a 21-month CSO;
(3) R. v. Arbuthnot: the 72-year old offender was found guilty following a jury trial of one count of gross indecency and one count of sexual interference. He had mental and physical health issues. The offending was touching the penises of two victims under the age of 18. The sentence was an 18-month CSO;
(4) R. v. P.S., 2021 ONSC 5091: the offender was convicted of sexual exploitation that had occurred in 1988 (when the maximum term of imprisonment was five years). The victim was over 14 (the age of consent at the time) but was in a relationship of dependency to the offender. The offending was three to four incidents of oral sex. The sentence was two-years less a day CSO; and
(5) R. v. Wismayer, [1997] O.J. No. 1380 (C.A.): the 20/21-year old offender touched the vagina of the eight to nine-year old victim numerous times. She was a foster child being cared for in his parents’ home. The offender suffered significant mental health issues. The sentence was varied on appeal to 12-months CSO.
[34] I appreciate that a CSO of less than two years has been imposed on some offenders but am mindful of the guidance of the Court of Appeal, cited at para. 72 of P.S., from R. v. F. (G.C.) (2004), 188 C.C.C. (3d) 68 (Ont. C.A.) that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, especially where the sexual violation was of a vulnerable complainant by a person in a position of trust.
[35] P.R. abused his position of trust in relation to each of his three victims. They were all children. His daughter and niece N.R. were only five and seven years old when the abuse started, and, for each of them, it went on for years. Digital penetration and the type of sexual touching P.R. engaged in results in the same or similar level of degradation, humiliation and defiling of a victim’s sexual integrity as a forced penile penetration. He took advantage of the vulnerability of these young children. The effect of P.R.’s abuse on his three victims was significant and will stay with them for the rest of their lives.
[36] In my view, a substantial penitentiary sentence is required given the significant aggravating features I have outlined. An appropriate total sentence in this case is one of 10-years incarceration. This takes into account the mitigating features I have outlined, without which I would have imposed the sentence sought by the Crown.
[37] As I am of the view that a significant penitentiary sentence is required, a CSO is not an available sentence.
Sentence
[38] The total sentence will be one of 10-years 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 1 – 3 (sexual assault, sexual interference and invitation to sexual touching on M.P.), the sentence is 5-years jail concurrent on the three counts;
(2) Counts 4 – 6 (sexual assault, sexual interference and invitation to sexual touching on N.R.), the sentence is 4-years jail concurrent on the three counts, but consecutive to counts 1 – 3;
(3) Count 8 (sexual interference on M.V.), the sentence is 1-year jail consecutive.
Ancillary Orders
[39] The Crown seeks ancillary orders which were not opposed.
[40] There will be an order pursuant to Code s. 743.21 prohibiting communication with M.P., N.R., and M.V. while P.R. is in custody.
[41] Pursuant to Code s. 109, P.R. is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years after his release from custody.
[42] DNA: Sexual assault, sexual interference and invitation to sexual touching are primary designated offences for the purposes of the DNA provisions. P.R. 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.
[43] Pursuant to Code s. 161, P.R. is prohibited for a period of 20 years from his release from custody of:
A) attending any 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,
B) being within 200 metres of any dwelling-house where M.P., N.R., or M.V. ordinarily resides,
C) 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; and
D) having any contact — including communicating by any means — with a person who is under the age of 16 years.
[44] As P.R. has been convicted of more than one “designated offence”, I make an order pursuant to s 490.012 requiring P.R. to comply with the Sex Offender Information Registration Act for life.
Released: April 22, 2024 Signed: Justice Robert Wright
