ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20120223
DOCKET: 10-30000859-0000

BETWEEN:

HER MAJESTY THE QUEEN – and – A.S. Defendant

Brian Moreira, for the Crown
Uma Kancharla, for the Defendant

HEARD: February 2, 2012

L. A. Pattillo J. - Orally

Introduction

[ 1 ] On December 5, 2011, following a four and a half day trial without a jury, I convicted A.S. on two counts of sexual assault, one between March 1 and June 16, 2010 and the other on or about June 16, 2010; two counts of sexual interference, again one between March 1 and June 16, 2010 and the other on or about June 16, 2010; and one count of sexual exploitation between March 1 and June 16, 2010. I found Mr. S. not guilty of one count of assault and one count of unlawful confinement.

[ 2 ] At the outset of the sentence submissions, counsel for Mr. S. submitted that the facts underlying the convictions for sexual assault, sexual interference and sexual exploitation for the period between March 1 and June 16, 2010 are the same. Similarly, the facts relating to the convictions for sexual assault and sexual interference on or about June 16, 2010 are the same. As a result, the accused submits that both charges of sexual assault and the charge of sexual exploitation should be stayed in accordance with the rule against multiple convictions in Kienapple v. The Queen, 1974 SCC 14, [1975] 1 S.C.R. 729 (S.C.C.).

[ 3 ] In R. v. S.J.M., 2009 ONCA 244, the Court of Appeal entered a conditional stay in respect of a charge of sexual assault where, based on the same facts, the appellant was also convicted of sexual interference. The court noted at para. 8 and 9 of the reasons that the elements of sexual interference are substantially the same or alternative to the elements of sexual assault. The same in my view can be said of the elements of sexual exploitation and sexual assault.

[ 4 ] Accordingly, because the facts underlying the convictions for sexual interference, sexual exploitation and sexual assault for the period between March 1 and June 16, 2010 are the same, there will be a conditional stay entered with respect to the convictions for sexual assault and sexual exploitation on or about March 1 to June 16, 2010.

[ 5 ] Similarly, because the facts underlying the convictions for sexual interference and sexual assault on or about June 16, 2010 are the same, there will be a further conditional stay entered in respect of the conviction for sexual assault on or about June 16, 2010.

[ 6 ] What remains therefore is to sentence Mr. S. on the two charges of sexual interference.

Summary of the Facts Relating to the Convictions

[ 7 ] The facts relating to the convictions were covered by me at length in my reasons for decision on December 5, 2011. Briefly, they are as follows:

[ 8 ] Mr. S. was born in Afghanistan and came to Canada in 1998 or 1999. In late 2007 or early 2008 he met H.R. who was also born in Afghanistan. Ms. R. is a single mother, who at the times of the offences lived with her three children, Y., age 11, K. or M. as she is called, age nine and A., age 6 in a townhouse in Scarborough. As they both spoke Farsi, they struck up a conversation.

[ 9 ] Within a few weeks of their first meeting, Mr. S. contacted Ms. R. and began assisting her by taking her and the children on errands in his car. He took them to buy groceries, to doctor appointments and on trips to Macdonalds. Mr. S. got along well with the children. They respected him and called him Jabba or uncle. He began to frequent the R. home. He also had a dog which he brought to the house with him. He bought candy and toys for the children.

[ 10 ] At some point towards the end of 2008 or early 2009, Mr. S. began staying overnight at the R. house. It started one night when Mr. S. said that he’d had too much to drink and couldn’t drive his car home. He slept on the couch in the living room. Thereafter, the frequency of his overnight visits began to increase. By 2010, he was staying over every week, sometimes for a number of days in a row.

[ 11 ] The house the R. lived in had three bedrooms upstairs. Ms. R. slept in one with A.. Y. and M. each had their own rooms. Ms. R.’s understanding was that when Mr. S. stayed over for the night, he slept on the couch in the living room. She said that one time in 2010 she woke up in the morning and saw Mr. S. in Y.’s room in the bed. She spoke to him about it and he complained that the couch made a noise and the living room floor was too hard.

[ 12 ] Sometime around mid March, 2010, and unbeknownst to Ms. R., Mr. S. began to sleep in M.’s room in her bed with her. She slept against the wall and he slept beside her. Althought M.’s evidence was at times inconsistent and her sense of time and duration was not always accurate, I found her evidence to be very credible overall. While there were parts of her evidence I did not accept, I accepted that Mr. S. rubbed her breasts and told her that it would make them grow bigger. I accepted that at times he took her pyjama bottoms and underwear off while she was sleeping. A few times he rubbed his penis on her bum but he never penetrated her. I also accepted her evidence that at times his penis felt wet like he had rubbed water on it and that sometimes his side of the bed was wet and her clothes were wet too and he would give her tissue to clean up. He told her not to tell her mom but he never threatened her. She never said anything to her mom or anyone else.

[ 13 ] Sometime around 4 or 5 am on June 16, 2010, Ms. R. woke up and went to the washroom. When she came out of the washroom, she heard M. crying. The door to her room was closed. She opened it. In the light from the bathroom, she saw Mr. S. on the bed on top of her daughter naked, with his boxer shorts at his knees. M. was on her stomach with no pants on. Mr. S.’s penis was on top of M.’s hips and his hands were holding her shoulders. He was moving as if he was having sex. She turned on the light in the room. She saw what she described as water coming from his penis. She screamed at him and he got off. She told him to get out of her house. He said he’d done nothing wrong and why was she upset? She again told him to leave and he took his dog and left. She called the police shortly thereafter.

[ 14 ] M. was taken to the Hospital for Sick Children at 8 am on June 16, 2010, where she was examined. No injuries were noted.

The Victims

[ 15 ] Mr. S.’s actions have had a significant impact on M., her mother and the family generally. Victim impact statements were filed at the sentencing on behalf of both M. and her mother. M. says she has trouble falling asleep at night and has bad dreams. She is scared to sleep in her bed and sleeps on the floor. She doesn’t eat well and is afraid to go outside. She does not trust her friends or other people.

[ 16 ] M.’s mother confirms much of what M. says. She describes M. as having been a friendly child who is now alone and by herself. She says M. has become more introverted and is still afraid. She doesn’t eat or sleep well anymore and does not study like she did before the events.

[ 17 ] Ms. R. feels badly for her daughter and what has happened to her. She has suffered from stress and depression as a result of the incident. Medication has not helped her and she has been sent to a psychologist by her doctor. She is a single mother and is shouldering the issues on her own with no help. She feels that people do not want to associate with her or her family as a result of what Mr. S. did. She also blames her financial troubles on what he did and that she was forced to move her family in an emergency to a different and more expensive home and neighbourhood.

Mr. S.

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L. A. Pattillo

Released: February 23, 2012