COURT FILE NO.: CRIMJ(P) 962/11
DATE: 20121130
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
M. Ward, for the Crown
Crown
- and -
M.A.J.
B. Pearson, for the Accused
Accused
SENTENCING HEARING HEARD: September 24, 2012
JUDGMENT ON SENTENCE
PUBLICATION BAN PURSUANT
TO s.486.4 OF THE CRIMINAL CODE
Daley J.
Overview
Trial Verdict
[1] The accused, M.A.J., was found guilty by a jury on February 22, 2012 on one count of sexual assault under s. 271(1)(a) and one count of sexual interference under s. 151(a) of the Criminal Code (the "Code").
[2] M.A.J. was found not guilty of three other charges, namely sexual touching under s. 153(1)(a), choking under s. 246(a), and uttering a threat to cause death under s. 264.1(1)(a) of the Code.
[3] The offences in the Indictment that M.A.J. was convicted of read as follows:
M.A.J. stands charged:
- That he, over a 5 year period last, past and ending on or about the 29th day of June, 1996 at the City of Mississauga in the Central West Region, unlawfully did commit a sexual assault on L.D., contrary to section 271 (1)(a) of the Criminal Code of Canada;
M.A.J. further stands charged:
- That he, over a 4 year period last, past and ending on or about the 28th day of June, 1995 at the City of Mississauga in the Central West Region, unlawfully did for sexual purpose touch L.D., a person under the age of 14 years directly with a part of his body, to wit: his penis, contrary to section 151(a) of the Criminal Code of Canada.
Facts
[4] By way of background, the victim, L.D., was 30 years old at the time of the trial. M.A.J. is her stepfather's half- brother. He was 44 years old at the time of the trial.
[5] L.D. testified that starting when she was approximately 11 years of age, M.A.J. engaged in sexual contact with her which continued until she was approximately 13 years of age. L.D. resided with her mother and stepfather during this period. The sexual contact included numerous incidents of sexual intercourse.
[6] L.D. disclosed this sexual conduct to her parents in 2010.
[7] At trial L.D. testified that she had sexual contact with M.A.J. on approximately 50 separate occasions at the offender's home, and that these incidents involved entirely unprotected sexual intercourse.
[8] L.D. became pregnant when she was 12 or 13 years of age and had an abortion. Unknown to her parents, M.A.J. assisted L.D. in arranging for the abortion, and he attended the abortion clinic with her to see through the procedure.
[9] The central issue for the jury on this trial was whether M.A.J. ever had sexual contact with L.D. M.A.J. denied having any sexual contact whatsoever with the victim and opposed all of the charges in the Indictment. The jury found that he had.
Positions of the Crown and Defence
[10] Both counsel for the Crown and M.A.J. agreed that the conviction on the charge of sexual assault under s. 271(1)(a) should be conditionally stayed on the basis of the Kienapple principle. That is so ordered.
The Crown
[11] Counsel for the Crown seeks a sentence in the following terms:
(1) 8 to 10 years incarceration;
(2) DNA order under s. 487.051 of the Code;
(3) Sexual Offender Information and Registration Order under ss. 490.012 and 490.013 of the Code;
(4) a weapons prohibition order under s. 109(2)(a) and (b) of terms of 10 years and life respectively;
(5) an order prohibiting the offender from attending near public places and facilities where persons under 16 years of age may be present in accordance with s. 161 of the Code; and
(6) an order prohibiting the offender from communicating with the victim during the custodial sentence in accordance with s. 743.21 of the Code.
The Defence
[12] It was submitted on behalf of M.A.J. that a conditional sentence of less than two years was appropriate in the circumstances. M.A.J. does not oppose the imposition of the ancillary terms requested by the Crown, other than the prohibition order under s. 161 of the Code.
Determining a Fit Sentence
Findings of facts essential to the jury verdict
[13] In considering the fit and appropriate sentence to be imposed, the court is bound to accept as proven, expressly and impliedly, all facts essential to the jury's verdict, pursuant to s.724(2)(a) of the Code.
[14] Given the guilty verdicts rendered, I conclude that the jury found as a fact that the essential elements of the sexual assault and sexual interference offences were established beyond a reasonable doubt.
Additional findings of fact
[15] Where the factual implications of the jury's verdict are ambiguous, the court on sentencing must come to its own independent determination of relevant facts, consistent with the jury’s verdict: see R. v. Rancaoli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at paras. 59-60; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 18; R. v. Gauthier (1996), 108 C.C.C. (3d) 231 (B.C.C.A.), at paras. 20-25, 39, 49.
[16] Further, s. 724(2)(b) of the Code dictates that the court may find other relevant facts to have been proven by the evidence where the party seeking to rely upon such facts proves them beyond a reasonable doubt: see Ferguson, at para. 18.
[17] When making findings of fact that may constitute aggravating factors on sentencing, where the offender has led evidence, the principles set out in R. v. W.(D.), [1991] 1 S.C.R., at p. 757-8 apply.
[18] It is submitted on behalf of the Crown that there are several aggravating factors associated with the offender's conduct that must be considered in setting the appropriate sentence.
[19] While some of the aggravating factors, such as the victim's age, are included in the jury's factual determinations underlying the findings of guilt, additional findings of fact are required in order to consider the other alleged aggravating factors asserted on behalf of the Crown.
[20] It was submitted on behalf of the Crown that the following aggravating factors are present and have been proven beyond a reasonable doubt:
(1) the offender engaged in several acts of vaginal intercourse with the victim, without a condom, along with other sex acts;
(2) the offender used violence, extortion and intimidation;
(3) the offender sexually groomed the victim;
(4) the offender was in loco parentis to the victim and committed a breach of trust; and
(5) the victim became pregnant as a result of sexual contact with the offender and he facilitated her undergoing an abortion, without her parents' knowledge when she was approximately 13 years of age.
[21] In considering these alleged aggravating factors the evidence must be examined.
The Victim’s evidence
[22] L.D. testified that she and her two younger brothers began going to M.A.J.’s girlfriend’s home where he lived, when she was approximately nine years of age. He would babysit them once or twice a month on weekends at his girlfriend's home.
[23] The victim stated that approximately one week prior to her eleventh birthday, M.A.J. took her and her brothers to a nearby park. At that time, he indicated to her his feelings for her.
[24] The following week, M.A.J. babysat L.D. and her brothers at his girlfriend’s residence. L.D. recalled that she was not feeling well that day, so she decided to lie down on a couch. She recalled M.A.J. lying down behind her and engaging in vaginal intercourse with her. M.A.J. and the children were alone in the house at this time.
[25] L.D. testified that she was nauseous and dazed during this first sexual contact with M.A.J. She did not tell her parents about the incident. She explained that at the time she was not sure what happened.
[26] The following day M.A.J. came to L.D.’s home, picked up her and her brothers, and took them to his home to babysit them. L.D. testified that after M.A.J. placed her brothers in front of a television with video games, he asked her to go to an upstairs bedroom. She testified that she proceeded to the bedroom with M.A.J., at which time he indicated he would like to do what he had done the day prior. She testified that she did not wish to do this and wanted to leave.
[27] At this time, M.A.J. closed and locked the door to the bedroom, pinned her down on the bed, and removed her clothes. The victim hit and kicked M.A.J. After removing her clothes he engaged in vaginal intercourse without a condom. L.D. testified that she screamed and resisted.
[28] In addition to these first two occasions, L.D. stated that there were "a lot of times" over a period of about four years where she had sexual intercourse with M.A.J. The majority of the time they had sexual contact, this occurred at M.A.J.’s house while he was babysitting her and her brothers.
[29] She was unable to state the number of times that this occurred. Although L.D. estimated that the offender had sexual intercourse with her over approximately 50 weekends at his girlfriend’s home while babysitting her.
[30] L.D. testified that on the third, fourth and fifth occasions where the offender had sexual intercourse with her, she continued to resist him. She testified that each time M.A.J. put his hand over her mouth, and that each time she was left with bruises.
[31] L.D. testified that at approximately the one-year mark from when M.A.J. commenced sexual contact with her, she went through a transition where she believed it was pointless to resist him. She did not care what happened to her anymore. M.A.J. attempted to teach and make her participate in different sexual acts and positions, and also as well made her watch pornographic movies.
[32] After she gave up on resisting M.A.J.’s sexual advances, L.D. no longer made any noise or screamed when M.A.J. engaged in sexual intercourse with her. She testified that she felt like she "wasn't really there."
[33] L.D. further testified that M.A.J. told her that he had made a videotape of them engaging in sexual intercourse, and that he would use the videotape to demonstrate that she was a willing participant. L.D. stated that she was not aware at the time that the video was being recorded. He showed it to her on a video camera. Upon learning of the video, she felt humiliated and angry.
[34] At the request of her mother, L.D. made an appointment with her family doctor. However, she did not disclose her sexual contact withM.A.J.at that time.
[35] As she and her mother were not getting along, L.D. moved in with her biological father on a temporary basis but thereafter returned to living with her mother and stepfather. M.A.J. continued to have sexual intercourse with her at her parents' home. She testified that during this time she was no longer resisting M.A.J. because he threatened that she would never see her family again.
[36] Around the time L.D. turned 13, she became pregnant. L.D. testified that M.A.J. suggested to her that she get a pregnancy test kit. This test confirmed her pregnancy. She testified that M.A.J. asked her if she wanted to keep the baby, and he indicated that he would take care of L.D. and the child.
[37] She advised him that she did not wish to keep the baby. He made arrangements for her to have an abortion at a clinic in Toronto. Upon attending at the abortion clinic, M.A.J. advised the clinic staff that he was her uncle, and that her parents did not know about the pregnancy. L.D. acknowledged that she denied that M.A.J. was the father when interviewed by the abortion clinic staff.
[38] L.D. further testified that while M.A.J. was sexually involved with her, she did not tell anyone out of guilt and concern that she would be put in a foster home.
[39] In 2010, she disclosed the history of sexual contact with M.A.J. to her boyfriend's sister, to her uncle, and eventually to her father. She provided a police statement in February 2010.
[40] L.D. testified that her recollection of the details of the events improved over time. She agreed that her testimony at the preliminary inquiry was different in some respects from her evidence at trial.
[41] L.D. also she testified she had sexual intercourse with M.A.J. in his girlfriend's bedroom. However, she indicated in her police statement that nothing had occurred in that bedroom. She attributed this to remembering after making the police statement that she had sex in M.A.J.’s girlfriend's bedroom. However, her evidence was ultimately that she did not have sexual contact with M.A.J. in the room he shared with his girlfriend.
[42] L.D. also agreed that she did not mention M.A.J. to her family physician at any time. L.D. also conceded that she was unsure whether she had sexual contact with M.A.J. in her own bedroom, contrary to her testimony at the preliminary hearing.
[43] Further, she agreed that she had denied any sexual contact with M.A.J. to her parents, his girlfriend, and personnel at the abortion clinic, and that she never mentioned any such contact to her family doctor.
Independent witness evidence
[44] L.D.’s former boyfriend testified that when he and she were between 15 and 16 years of age, she told him that she had been sexually involved with M.A.J. He urged her to tell her parents; however, she was conflicted about what to do.
[45] M.A.J.’s girlfriend testified that L.D. and her brothers were at her home with M.A.J. on multiple occasions. Occasionally they would also stay overnight. Most often the children were at their home alone with M.A.J. She further testified that she recalled one of the tenants, who also occupied her house expressing a concern that the offender and the victim were too close.
The offender’s evidence
[46] M.A.J. denied having any sexual contact whatsoever with L.D.
[47] M.A.J. testified that he began residing with his girlfriend in her home in 1989. He continued to reside in her home until approximately 2000. He acknowledged that during the period 1992 through 1994 L.D. and her brothers would come to his home.
[48] M.A.J. further acknowledged that L.D. and her brothers came to his home when they were approximately 5, 6 and 11 years of age. He denied that he was babysitting them at any time, and testified that they were simply "hanging out" with him.
[49] M.A.J. acknowledged in cross-examination that there were occasions when he was alone in a bedroom in his girlfriend’s home with the victim.
[50] He testified that after picking L.D. up at school one day, at her request, she inquired of him as to how she would know when she is pregnant. M.A.J. suggested to her that she purchase a pregnancy test kit to confirm whether she was pregnant. She did, and it did.
[51] He testified that L.D. had told him that the unborn child’s father was "C" and that he had overheard her speaking to him by telephone.
[52] M.A.J. acknowledged arranging for the victim to have an abortion and taking L.D. to the abortion clinic in April 1995. His rationale for keeping the abortion a secret from L.D.’s parents was to avoid betraying the trust L.D. had shown him. He also admitted that he kept the papers from the abortion clinic but did not know where they were at the time of the trial.
[53] M.A.J. denied having any personal or private conversations with L.D. other than on two occasions: the first when she was involved in conflict with her mother; the second was when she questioned him about the pregnancy.
[54] L.D. testified that as her mother suspected that she may have been involved sexually when she was 12 or 13 years old, based on something her brother had to hold her regarding M.A.J., her mother no longer wanted her going to M.A.J.'s home.
[55] It was also around this time that her mother had taken her to the family doctor over her concerns that she was sexually active.
[56] L.D. further testified that following the doctor visit, as requested by her mother, she was sent to stay with her biological father for one to two weeks and during the time of her stay with him M.A.J.'s girlfriend visited her there.
[57] As to L.D.’s move to stay with her biological father, M.A.J. testified that he had suggested that she move there as a result of his concerns over her conflict with her mother. He also testified that while she was staying at her biological father's home she telephoned him and stated that her mother had mentioned concerns about alleged sexual contact between them.
[58] M.A.J. further testified that he went to L.D.'s biological father's home during this time as he had concerns over her safety as he understood that she had been in a physical fight with her mother.
[59] He further testified that he drove to her biological father's home, while she was residing there, with his girlfriend and on arriving at the home, he got into the trunk of the vehicle as he wished to avoid the situation escalating as he was aware that there had been allegations of sexual contact between them.
Analysis
[60] The presumption of innocence, while having been displaced by the jury's findings of guilt in respect of counts 1 in 2 in the Indictment, still requires proof of the aggravating factors as to sentence asserted by the Crown beyond a reasonable doubt.
[61] As outlined above, in determining whether the Crown has established the aggravating factors put forward beyond a reasonable doubt, it is necessary to assess the credibility of the victim and of the offender. That assessment does not simply involve a determination of whether the trier of fact should believe the evidence put forward by the offender or the Crown. The evidence must be examined within the context of the principles established in W. (D.).
[62] Further, contradictory versions of events as offered by the victim and the offender do not call for the trier fact to decide which version is true, but rather the W.(D.) criteria are to be considered.
[63] Where an adult testifies as to events that occurred when she was a child, credibility should be assessed in accordance with the criteria applicable to her as an adult witness, bearing in mind that inconsistencies, particularly as to peripheral matters, should be considered in the context of the age of the witness at the time of the relevant events to which she is testifying: see R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.
[64] L.D.’s evidence was given in a relatively calm and straightforward manner, and was not overstated. She readily acknowledged minor inconsistencies in her evidence when they were identified. However, credibility alone is not enough, especially where the accused is facing charges based on allegations of historical physical and sexual abuse: see R. v. H.P.S., 2012 ONCA 117, 280 C.C.C. (3d) 500, at paras. 34-35.
[65] In such cases, particular caution and scrutiny are called for in approaching the reliability of evidence. Memories can become increasingly frail over time. Evidence can disappear or become contaminated. Life experiences can colour and distort memories: see H.P.S., at para. 38.
[66] In this case, there were no significant internal discrepancies or contradictions that cast doubt on L.D.’s trustworthiness as a witness or raised serious reliability issues. Her characterization of the nature of her relationship with M.A.J. and her version of events was also supported by the evidence of independent witnesses.
[67] On the other hand, the overall credibility of M.A.J. and the reliability of his evidence was lacking in significant respects.
[68] Although he acknowledged having been in the company of the L.D. and her brothers on several occasions over a period of a few years, he attempted in his evidence to distance himself from any responsibility for the children. He specifically denied that he was a babysitter for the victim and testified that he was simply "hanging out" with them.
[69] This characterization by M.A.J. of his relationship with L.D. is not in any way supported by the evidence. The offender was in his twenties at the time of the offences. L.D. was approximately eleven, and her brothers were five or six years old when they first began regular contact with M.A.J.
[70] L.D.’s father testified that while he and his wife were working shifts the children would be left in the care of M.A.J., to babysit, on the weekends.
[71] As such, I find as a fact that M.A.J. was at all material times acting as a babysitter for L.D. and her brothers. He was in loco parentis and in a position of trust, particularly with respect to L.D.
[72] M.A.J.’s claim about being distant from and not involved with L.D. is contradicted in other significant respects. First, his own evidence was that after learning L.D. was possibly pregnant, he suggested that she purchase a pregnancy test kit; when she tested positive, he surreptitiously arranged and facilitated her having an abortion at only 13 years old. He was the one that L.D. contacted and confided in about the possible pregnancy. M.A.J. recognized that L.D. trusted him with this very personal and possibly life-changing information, and he did not want her to feel betrayed or that she could not trust him going forward.
[73] M.A.J. denied close contact with L.D. and yet unknown to her parents he facilitated her attendance for the abortion, conduct which is entirely inconsistent with his evidence that he was not close with her and that he just "hung out" with her.
[74] The reason offered by M.A.J. for his attendance at L.D.'s biological father's home and hiding in the trunk of the vehicle does not ring true. There was no rational explanation for him to attend there and to try to see L.D. as there was no evidence that she was in danger or at risk at that time. His explanation for the clandestine visit in an effort to see L.D. is wholly inconsistent with his evidence that he did not have a close and intimate relationship with her.
[75] In my view, M.A.J.’s evidence was focused on distancing himself from any significant and inappropriate connection with her, which, based on all the evidence, was inconsistent with the reality of his relationship with L.D.
[76] In considering the whole of the evidence, I do not believe M.A.J.’s evidence concerning his true relationship and contact with L.D. His evidence does not leave me with a reasonable doubt about his guilt, as determined by the jury at trial. Therefore, I am bound to accept their findings of guilt.
[77] The credibility and reliability of L.D.'s evidence has been considered and I have recognized the frailties of her evidence regarding events from the distant past as well as the minor inconsistencies in her evidence, particularly as to place and time.
[78] Further, I have considered the whole of the evidentiary record and absent any evidence that could form the basis for a reasonable doubt, I am left with no reasonable doubt as to certain aggravating factors as to sentence: H.P.S. at paras. 30-46.
[79] First, M.A.J. engaged in vaginal sexual intercourse with the victim on more than one occasion and that he did so over a period of approximately two years.
[80] Although the jury's guilty verdicts for the counts of sexual assault and sexual interference do not themselves disclose a finding of multiple occurrences, this was the victim's evidence and the theory of the Crown's case throughout.
[81] Notwithstanding that the victim was unable to state with any degree of accuracy the number of occurrences of sexual intercourse, I am satisfied beyond a reasonable doubt that the offender engaged in sexual intercourse with the victim on more than one occasion.
[82] Second, the evidence established that the offender was in a position of trust with the victim throughout the time in question. His sexual contact with the victim constitutes most egregious breaches of that trust.
[83] Although the offender's involvement in secretly arranging for the abortion involves a further breach of trust, since the Crown has not proven that the pregnancy arose through L.D.’s contact with him, this breach cannot be given any weight as an aggravating factor.
[84] Third, although the jury acquitted the offender in respect of counts four and five, alleging choking and threatening, I am satisfied beyond a reasonable doubt that the sexual contact by M.A.J. with L.D. was inherently violent.
[85] Fourth, I am also satisfied beyond a reasonable doubt that the offender engaged in a pattern of intimidation by secretly videotaping the victim, and in using grooming techniques on a vulnerable child to involve her in sexual activities.
Sentencing Principles and Considerations
[86] Section 718 of the Code sets out the fundamental purposes and objectives of sentencing. The objectives include denunciation, general and specific deterrence, rehabilitation and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community.
[87] Section 718.2(a)(ii.1) of the Code requires that in imposing a sentence, evidence that the offender in committing the offence abused a person under the age of 18 years is deemed to be an aggravating circumstance.
[88] The Ontario Court of Appeal has also confirmed that in cases involving the sentencing of offenders convicted of sexual offences against young persons, absent exceptional circumstances, the objectives of denunciation, deterrence and need to separate the offenders from society must take precedence: see R. v. D.(D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 34; R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721, at para. 38.
[89] In setting an appropriate sentence in D. (D.), Moldaver J.A., as he then was, noted for the Court of Appeal at para. 34:
The overall message however is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price.
[90] The principles and considerations from D.(D.) have recently been restated and summarized by the Court of Appeal in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81. At para. 72:
(1) Our children are our most valued and our most vulnerable assets;
(2) We as a society owe it to our children to protect them from the harm caused by sexual predators;
(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and make easy prey for such predators;
(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow;
(5) Three such consequences are now well recognized:
(I) children often suffer immediate physical and psychological harm;
(II) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult;
(III) and the children who have been sexually abused are prone to become abusers themselves when they reach adulthood; and
(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
Circumstances of the Offender
[91] M.A.J. is 45 years of age and married with a child. In 2005, he was convicted of criminal harassment and sentenced to a one-year conditional sentence, followed by three years of probation. This offence was committed following the events giving rise to the present convictions. As such, I have concluded that M.A.J. must be considered as a first-time offender.
[92] M.A.J. met his wife approximately five years ago. She has moved from Poland to Canada. He sponsored her arrival and stay in Canada. He is the sole provider for his wife and child.
[93] Based on the information in the Pre-sentence Report, his wife's permission to remain in Canada with their child may be terminated by the Canadian Government as a result of his conviction and the sentence to follow.
[94] M.A.J. is a trained and licensed electrician. He has worked in this field since approximately 1987. It appears from the Pre-sentence Report that he has been steadily employed and successful in his trade.
[95] According to the Pre-sentence Report, M.A.J. continues to maintain that he is innocent of the charges in the Indictment.
[96] A number of his friends were interviewed by the author of the Pre-sentence Report. They described him as reliable and dependable. The author of the Report also described the offender as polite and well mannered throughout the interviews conducted with him.
[97] Several character reference letters were also submitted into evidence at M.A.J.’s sentencing hearing. Most of these letters were from persons who know the offender in a professional capacity as an electrician: they generally speak to his attributes as being a responsible and reliable person.
[98] He has complied with all of his bail terms since his arrest in March 2010.
Impact on the Victim
[99] It is well-established that there are often significant long-term effects from sexual abuse, and this must be recognized on sentencing: see e.g. D.(D.), at para. 24; Woodward, at para. 72.
[100] L.D. filed a Victim Impact Statement, wherein, she indicated that she felt as if her childhood was stolen from her, and that the actions of the offender had impacted her greatly over the last 20 years. Her dignity and sexual integrity had been violated.
[101] She described how it affected her relationship with her friends and family. She has suffered from depression to the point where she contemplated taking her life following the abortion. She continues to suffer emotionally from the trauma of the sexual abuse.
Mitigating and Aggravating Factors
Mitigating or neutral factors
[102] As explained earlier, M.A.J.’s post-dated conviction for criminal harassment makes him a first-time offender.
[103] He has held steady employment as an electrician for more than two decades. He has the support of his family and community, as well as friends and professional acquaintances.
[104] However, given the nature of the offences, M.A.J.’s otherwise exemplary personal history represents a very small consideration in determining a fit and proper sentence.
[105] As was acknowledged by counsel for the Crown, the offender’s lack of remorse is a neutral factor given his position that he is innocent and that L.D. fabricated the allegations against him.
Aggravating factors
[106] There are several aggravating factors.
[107] At the time the offences occurred, the victim was between 11 and 13 years of age. M.A.J. was considered her uncle. He was in his twenties at the time of the offences while caring for L.D. as a babysitter.
[108] M.A.J. engaged in several acts of sexual intercourse with her over approximately two years while he was in loco parentis. He patently violated his position of trust with the young victim. He knew, or ought to have known, that L.D.’s conflict at home with her mother made her particularly vulnerable to a person in M.A.J.’s position.
[109] Although the jury acquitted M.A.J. on the offences in counts four and five, which involved alleged violence, the guilty verdicts for sexual assault and sexual interference involve violence by their nature. When committed against children, the violence is both physically and profoundly psychological. It is coercive, exploitative, and represents the use of compulsion against someone who is defenceless: R. v. Stuckless (1999), 1998 7143 (ON CA), 41 O.R. (3d) 103, at para. 44.
[110] The fact that there was unprotected sexual intercourse that M.A.J. forced upon L.D. also constitutes an aggravating factor on sentence. There was a heightened risk of exposure to pregnancy and disease.
[111] M.A.J. also engaged in a pattern of grooming, which was demonstrated by his behaviour in acting as if the victim was his girlfriend on occasion.
[112] With respect to the victim's pregnancy and the abortion that followed, for the reasons given the offender's conduct in arranging for the abortion does not weigh as an aggravating factor.
[113] When taken together these aggravating factors are significant in the overall determination of a fit and proper sentence.
Decision – The Sentence
[114] Given the extremely serious nature of the offence of sexual interference with a child, I have concluded that this is not a proper case for a conditional sentence. The circumstances of this case call for a significant period of incarceration.
[115] In setting a proper and fit sentence, in addition to the considerations and principles discussed above, it is also important to examine decisions of the court involving similar offenders and victims: see s. 718.2(b) of the Code.
[116] A number of noteworthy appellate decisions have considered the appropriate sentence to be imposed in cases involving the sexual abuse of young children: see e.g. R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721; R. v. P.M., 2012 ONCA 162, 282 C.C.C. (3d) 450, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 242; Woodward; D.(D.); R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163; and R. v. B. (J.), [1990] O.J. No. 36 (C.A.).
[117] I recognize, however, that subject to some specific statutory rules, the determination of a fit sentence is unique to each case and the set of facts and evidence presented: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43.
[118] In D.M., Feldman J.A., writing for the court, provided a detailed discussion of the jurisprudence with respect to sentencing in cases such as this. The court also confirmed that its decision in D.(D.) represented the establishment of a new range of sentences for cases involving sexual abuse of young victims.
[119] In D.(D.), Moldaver J.A. stated for the court that:
… as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single-digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single-digit to low double-digit penitentiary terms will generally be appropriate. (emphasis added)
[120] While the decision in D.(D.) set specific ranges for categories of cases, the court also affirmed at para. 33 that the ranges of sentence are only guidelines and they leave trial judges with the flexibility "to do justice in individual cases."
[121] In contrasting the court's earlier decision in B.(J.), where counsel had agreed that the usual range of sentence for this type of offence was three to five years, with the sentence range later set in D.(D.), Feldman J.A. explained at para. 33:
To summarize, in B. (J.) this Court acknowledged a range based on case law of three to five years for sexual intercourse by an adult in loco parentis to a child. However, the court also made clear that sentences well beyond that range would also be appropriate if the circumstances were more egregious, including in B. (J.) itself, where a sentence of eight years was upheld.
[122] Additionally, Feldman J.A. noted that as Woodward confirmed, the instruction in D.(D.) as to the applicable sentence ranges also applied in circumstances where there was only one victim and one incident with no additional violence: see D.M., at paras. 37-38; Woodward, at para. 39.
[123] At para. 43 Feldman J.A. also referred to the court's decision in P.M., where Rosenberg J.A. (MacPherson J.A. concurring) recognized at para. 46:
...the court signalled in D.(D.) that the sexual abuse of a child will attract lengthy penitentiary sentences. In my view, where a father has committed repeated acts of incest with his daughter over many months ... it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years.
[124] Finally, in her concluding remarks about the appropriate range of sentence, Feldman J.A. commented at para. 44:
To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.
[125] As a result, having regard to the jury's finding of guilt and the findings of fact I have made regarding aggravating circumstances, while also considering victim impact and the circumstances of the offender, I conclude that the fit and proper sentence for M.A.J. on the count of sexual interference is six years’ incarceration. As noted, the conviction of sexual assault in Count 1 shall be conditionally stayed.
[126] As to the prohibition order sought pursuant to s. 161 of the Code, I have concluded that this is not a proper or necessary order in the circumstances. Such an order represents a considerable interference with personal liberty, and it would be most difficult for any person to completely avoid places accessible to the public for recreational use like public parks or community centers.
[127] In conclusion, M.A.J. is sentenced as follows:
(1) for the offence in Count 2 of the Indictment under s. 151(a) of the Code, the offender is sentenced to six years in jail;
(2) the conviction with respect to Count 1 for the offence of sexual assault under s. 271(1)(a) of the Code is conditionally stayed;
(3) the offender shall provide a DNA sample in accordance with s. 487.051(1) of the Code;
(4) the offender shall be registered under the Sex Offender Information Registration Act pursuant to s. 490.012 of the Code for a term of 20 years;
(5) the offender shall be subject to a weapons prohibition order under s. 109(2)(a) and (b) for terms of 10 years and life respectively; and
(6) the offender is prohibited from communicating with the victim during the custodial period of the sentence, in accordance with s. 743.21 of the Code.
Daley J.
Released: November 30, 2012
COURT FILE NO.: CRIMJ(P) 962/11
DATE: 20121130
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Crown
- and –
M.A.J.
Accused
JUDGMENT ON SENTENCE
PUBLICATION BAN PURSUANT TO s.486.4 OF THE CRIMINAL CODE
Daley J.
Released: November 30, 2012