SUPERIOR COURT OF JUSTICE

Court File Number 8948/11

HER MAJESTY THE QUEEN

• v -

M.K.

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE C. GILMORE

ON APRIL 22, 2014 at OSHAWA, ONTARIO

THE INFORMATION CONTAINED HEREIN
IS PROHIBITED FROM PUBLICATION

APPEARANCES:

A. Barkin Counsel for the Crown

Y. Rahamim Counsel for the accused

R E A S O N S F O R S E N T E N C E

APRIL 22, 2014

GILMORE, J (Orally):

Overview

M.K. was found guilty after trial on Counts 4, 5 and 6 on the indictment, being one count of sexual assault, one count of sexual touching and one count of invitation to sexual touching with respect to the victim in this matter, Ms. S.. Mr. M.K. was found not guilty on Counts 1, 2 and 3 on the indictment. Sentencing submissions on this matter were heard on April 1st, 2014, and these are my reasons on sentence.

The Facts and Circumstances of the Offence

Mr. M.K. and Ms. S. are stepsiblings. In 1992, Ms. S.'s mother, D.G., and Mr. M.K.'s father purchased a home in Picton, in Prince Edward County. When Ms. S. and her family moved to Picton she was aged nine or ten. Mr. M.K. was approximately 21 years old at the time. They resided in the Picton home with Ms. D.G., Mr. M.K.'s father and the child of Ms. D.G. and Mr. M.K.'s father, A., who was born in […] 1989.

The relationship between D.G. and Mr. M.K.'s father ended in 1995, but Mr. M.K., A. and Ms. S. continued to reside in the home until it sold in 1997. Ms. S.'s evidence regarding the assaults was that there was a hot tub installed in the Picton residence. She and Mr. M.K. would often go into the hot tub, and while there he would touch Ms. S.'s vagina and she would touch his penis. Sometimes Mr. M.K. would lie on the underwater steps of the hot tub and she would position herself over top of him and rub her stomach and vagina on his penis. Sometimes she would push aside his bathing suit to touch his penis, and other times she touched it over the top of his bathing suit. Mr. M.K. also touched her vagina, but over the top of her bathing suit. Only once could Ms. S. recall that Mr. M.K. pushed aside her bathing suit and touched her vagina directly, but on the outside.

Ms. S. was ashamed about the fact that she often initiated these incidents. She did not understand at the time that there was anything wrong with what they were doing because it was like a game, and she thought everyone did it. Looking back, however, she told the court that she felt dirty and ashamed about initiating this sexual contact with Mr. M.K.. Ms. S. recalled that the touching between her and Mr. M.K. happened many times, but she could not give an exact number. She did remember that it stopped when she was about 12 and in Grade 6. Further, Ms. S. cannot recall when the touching started after they moved to Picton, only that it happened many, many times. So many times that each incident had become jumbled into one memory. While she was unable to say exactly how many times these incidents occurred, her evidence was that it was more than ten or twenty times, and at one point she agreed that an estimate of a hundred times was reasonable.

Ms. S. described the frequency of the touching as sporadic, sometimes it did not happen at all for weeks, and at other times it occurred several times in one week. It was generally agreed by Crown and defence that the touching occurred over a period of one to one and a half years, and that Ms. S. was more certain about when the touching stopped than when it began. The evidence did not reveal that there was any violence or threats of violence involved in the touching, nor did the touching escalate beyond what was described.

The Circumstances of the Offender

Mr. M.K. is currently aged 42. He was born in Calgary and raised by his father. He has never known his mother. His childhood was very unsettled, involving a lot of moving about in Canada and overseas, as his father was often evading the law. Mr. M.K. is not married and has no dependents. He has three half-siblings. Mr. M.K. finished high school and has one year of college, as well as a graphics design course from D[…] College.

As was revealed from the evidence, Mr. M.K. went into the family furniture business with his stepmother at the time, D.G.. In 2003, he started his own business, namely, R[…], which produces customized woodworking for pubs, churches and private clients. Mr. M.K. continues to be self-employed and able to support himself. He has no criminal record.

The Impact on the Victim

Ms. S. filed a victim statement dated December 9th, 2013. Ms. S. explained that the offences have impacted and changed her life in a negative way. This includes difficulty trusting others, and a tendency to isolate herself from friends and family. She feels guilty and ashamed, which has caused her low self-esteem and poor body image. She experiences nightmares and flashbacks when confronted with any reminders of the offences. Ms. S. receives treatment from a range of doctors, including psychiatrists and crisis counsellors, and requires a regimen of medications in order to function on a daily basis. She expressed that she felt betrayed and that she had lost the chance at a normal childhood. She does not wish to have any contact with Mr. M.K. in future.

The Position of Crown and Defence on Sentence

The Crown takes the position that given the difference in age between Mr. M.K. and Ms. S. at the relevant times, the fact that the offences were repeated over a period of time and that they happened regularly, and given the effect on the victim as per her victim impact statement, a significant penitentiary sentence of at least three years is in order.

The Crown relies on Section 718.2(3) of the Criminal Code. Mr. M.K. was trusted to supervise Ms. S. and abused his position of trust as both the oldest child in the household, and his position as the stepbrother of Ms. S.. The Crown also adverted to Section 718.2(3.1) of the Code with respect to the effect on Ms. S. being an aggravating factor. Denunciation and deterrence are the most important factors to be considered in this case and should be reflected by a penitentiary sentence in the three year range.

The defence seeks a sentence in the range of ten to eighteen months. While the defence concedes that denunciation and general deterrence are paramount in this case and that the victim has experienced problems as a result of the offences, the court must also consider the effects that the sentence will have on Mr. M.K. as a first offender and the message it sends by isolating him, as well as the effect on his life and business.

Defence counsel reminds the court that Mr. M.K. has no criminal record and has had a consistent employment history and the support of friends and family. There is no evidence of any alcohol or drug abuse or violence in his life. Mr. M.K. has been on a medium type restrictive bail for two and a half years and has abided by all the terms without incident. There is no doubt that he will comply with probation, if ordered.

Mitigating and Aggravating Factors

With respect to mitigating factors I find they are as follows:

(a) The offender has no criminal record;

(b) He has complied with all terms of his bail
without incident;

(c) He has a consistent employment history and,
from the information provided, appears to be a contributing member of society;

(d) He has support from friends and family in the community. He filed five letters of support, which generally describe him as a loyal, selfless, helpful, caring and hardworking individual; and

(e) There is no evidence that Mr. M.K. suffers from any alcohol or drug addictions, nor did alcohol or drugs play any part in the offences.

With respect to aggravating factors they may be listed as follows:

(a) This was a serious breach of trust by Mr. M.K. with respect to his stepsister and with respect to the trust placed in him by the adult members of the household;

(b) Ms. S. was between the ages of 9 and 10 and
approximately 12 when these offences occurred;

(c) The offences took place over a period
of between one to one and a half years;

(d) The sexual abuse was perpetrated in the family living room;

(e) It was clear that Ms. S. viewed the sexual touching as a game, and Mr. M.K. did not dissuade her from this impression, to the point where Ms. S. initiated the sexual contact at times. Ms. S. now feels a great deal of shame about this;

(f) The acts were intended for Mr. M.K.'s sexual
gratification; and

(g) The abuse has caused devastating emotional and
psychological harm to Ms. S..

It is important to review the Court of Appeal's view with respect to child victims of sexual offences. These principles come from R v. Woodward, 2011 ONCA 610, and are as follows:

“(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 they 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 children who have
been sexually abused are prone to become abusers
themselves when they reach adulthood.

(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 other recognized objectives of sentencing.”

Principles of Sentencing

Section 718 of the Criminal Code codifies the common law principles of sentencing, which may be listed as the denunciation of unlawful conduct, general and specific deterrence, the separation of the offender from society, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility and acknowledgement of the harm done.

That section of the Code requires that this court increase or decrease a sentence to account for aggravating and mitigating circumstances. Aggravating factors which this court must consider on sentencing include that an offender abused a position of trust or authority in relation to the victim. Further, the sentence must be similar to those imposed on similar offenders in similar circumstances, and that an offender not be deprived of liberty if less restrictive sanctions may be appropriate.

The Case Law

Crown and defence filed a number of cases to support their respective positions. The Crown relied on R v. W.W.M., 2006 3262 (ON CA), [2006] O.J. No. 440 (O.C.A.).

W.W.M. was almost sixteen years old when he began to have sexual intercourse with his nine year old half-sister. The abuse continued for two years. He also abused another half-sister when he was 16 or 17 and she was 8. The abuse continued for 4 years, but was not reported until some 30 years after it had ended. The offender had no prior criminal record and was a member of the Barrie Police force for over 20 years. He appealed his conviction of four years imprisonment and the appeal was dismissed. In dismissing the appeal the court relied on R v. Spence (1992), 1992 ABCA 352, 78 C.C.C. (3d) 451, in which the court held that the "lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation". The Crown submits that the lengthy period of time between when the conduct ceased and the present day should not affect this court's consideration when imposing an appropriate sentence.

With respect to the range of sentence, the Crown relies on R v. G.A.G., [2006] O.J. No. 67 (O.C.A.). The appellant appealed his convictions for sexual assault and sexual touching against his son and nephew, and the sentence of five and a half years imprisonment. The assaults against the appellant's son took place over many years and progressed from fondling to mutual masturbation and fellatio. The assault against the nephew consisted of a single incident of touching his leg over a sheet and pyjamas. The sentence with respect to the appellant's son of four and a half years was upheld, but the appeal with respect to the additional sentence of one year consecutive, with respect to the nephew, was allowed and a sentence of four months substituted. The Crown relies on this case for the sentencing importance of an abuse of trust and the serious impact on the victim. While the Crown concedes that the sexual acts in this case are more serious than the ones in the case at bar, the Crown relies on it for the proposition that a penitentiary sentence in required.

The Crown also relies on R v. Stuckless, [1988] O.J. No. 3177 (O.C.A.). This was a case in which the offender exploited numerous boys over a period of 20 years. The exploitation involved fondling, fellatio and masturbation. The trial judge imposed a term of imprisonment of two years less a day, which was successfully appealed and substituted with a sentence of five years. The court commented on the fact that while there were no beatings or weapons used by the offender in this case, that was because his strategy involved an exploitation of trust and not the use of overt force. In addition, the court commented that "the absence of penetration does not automatically relegate sexual abuse of children to the lower range of sexual offences", and while there is no question that additional force and penetration are aggravating factors, their absence does not transform them into mitigating circumstances or neutralize other aggravating factors in the case. The Crown recognizes that the sexual acts and sentence are far more serious than in the case at bar, but relies on the court's comments with respect to the abuse of trust even where there is no overt violence or threats.

The defence relies on R v. R.K., [2007] O.J. No. 4380 (O.C.A.). R.K. was sentenced to eighteen months. At the time of the incidents the complainant was in Grades 5 and 6 and between 11 and 13 and was a close friend of R.K.'s daughter. A total of at least 30 assaults occurred, each lasting between 30 and 60 seconds, where R.K. would put his hand under the complainant's shirt and touch her breast, and also attempted to put his hand in her underwear. During those episodes he would pull down his pants and expose his erect penis. On occasion, he would rub it until he ejaculated.

In R v. Sabbe, [2011] O.J. No. 2655 (O.S.C.J) Crown and defence made a joint submission seeking a conditional sentence and two years probation. The accused performed oral sex on his adopted daughter, had her masturbate him and rubbed his penis between her legs while she was between the ages of seven and twelve. The conduct occurred over a period of five years and there was a threat to the victim. The accused was a first time offender and pleaded guilty. The court did not accept the joint submission and sentenced the accused to twelve months imprisonment and three years probation. While the court held that the guilty plea was mitigating, it was made late and did not warrant a non-custodial sentence.

In addition, the defence relies on R v. Raymond, [2011] B.C.J. No. 279 (B.C. Prov. Ct). The defence concedes that this case is not binding as it emanates from the B.C. Provincial Court, but it is noted that the accused in that case, on a guilty plea, received a six month sentence. This case involved sexual assaults on a stepdaughter over the period of a year in which there was rubbing of genitals, touching and the accused placing his penis on the complainant's lips while she was sleeping. There was no penetration, but the victim was eight years of age and it was an obvious breach of trust.

The Appropriate Sentence

In this case the impugned conduct involved mutual touching and rubbing, mostly outside of Ms. S. and Mr. M.K.'s bathing suits, but on occasion direct touching or rubbing. The conduct occurred throughout the period of one to one and a half years in the hot tub, which was located in the living room of the family home. Mr. M.K. was the stepbrother of Ms. S. and was in a position of authority. There was a significant age difference between the parties and, as a result, trust was placed in Mr. M.K. to supervise Ms. S. when other adults in the home were not immediately available. Mr. M.K.'s approach was to treat this as a game and thus encourage Ms. S. to think that the conduct was acceptable, which resulted in her initiating it on occasion. Once Ms. S. recognized the conduct was not appropriate it resulted in extreme feelings of guilt, shame and regret.

Although the sexual acts did not become more aggressive or invasive nor did they involve threats, the important factor here is that they were repeated throughout the year to year and a half, perhaps as Ms. S. told the court, as many as a hundred times.

There can be no doubt that the consequences of this offence have resulted in devastation to the victim with respect to her self-esteem, her interaction with others and the requirement that she receive therapeutic treatment from professionals as well as medication.

While Mr. M.K. has not shown any remorse in this case, I view that as neither an aggravating nor a mitigating factor. He has maintained his innocence throughout, which is his right. The mitigating factors, however, cannot be ignored. The fact that Mr. M.K. has no record and has been a contributing member of society must be taken into account. This is reflected in his unblemished record while on a medium restrictive bail.

The accepted and eloquent summary in Woodward with respect to the effects of this type of offence on victims applies in this case without a doubt. However, there are some other considerations in this case that would take it out of consideration for the higher end of the sentencing range. First, there was no sexual penetration. As well, there is no evidence that there were collateral threats or any attempts to touch any other part of Ms. S.'s body. While one could never say that the actions of Mr. M.K. are excusable, they are, when considering a range of sentence, such that they should be considered to be in the lower end of the sentencing range with respect to the nature and type of act of abuse perpetrated on the victim. Given the mitigating factors in this case, I do not agree with the Crown that a three year penitentiary sentence is appropriate. However, I disagree with the defence that a sentence of 10 to 18 months is appropriate. Given the paramount considerations of denunciation and deterrence and the necessity of isolating Mr. M.K. from society, and in consideration of the specific direction in the Criminal Code of the aggravating effect of a breach of trust in such circumstances, I find that a concurrent sentence of two years less a day is appropriate. Given that there is no reason to suspect Mr. M.K. would not abide by any conditions imposed on him upon his release, I further sentence him to two years of probation following the completion of his sentence. He is also to receive credit for three days of pre-trial custody.

Ancillary Orders

Mr. M.K., I order you to comply with the Sex Offender Information Registry Act for 20 years.

I further order you provide such samples of your bodily substances that are reasonably required for the purpose of forensic DNA analysis for the DNA databank.

Under Section 161(a) and (b) of the Criminal Code, I prohibit you from attending the places and acting in the capacity specified for 20 years, except in the company of an adult.

Under Section 109 of the Criminal Code, a mandatory weapons prohibition shall issue for ten years.

And finally pursuant to Section 743.21 of the Criminal Code, you are prohibited from communicating directly or indirectly with Ms. S. during the custodial period of your sentence.

In terms of probation and what should be included in that, I presume there is to be a non-contact.

MS. BARKIN: Yes please. I would ask for a non-contact order with Ms. S.. No contact or communication directly or indirectly.

THE COURT: Yes.

MS. BARKIN: As well as not to attend within 500 metres of her residence, place of employment or place of education.

THE COURT: Known residence of.

MS. BARKIN: That’s fine.

THE COURT: Because I think there hasn’t been any contact. MS. BARKIN: No.

THE COURT: At least that was – I think was the evidence that came out at trial so.

MS. BARKIN: No, I agree. I would also ask and I assume that this will hopefully get dealt with in the custodial facility as well, but I would ask that there be order that he attend for any assessment treatment or counselling as directed by probation for sexual behaviour, as well as any other issues that he may have. And to sign releases in favour of the probation officer.

THE COURT: I’m relying on you Madam Registrar to note all of these conditions. Thank you.

MS. BARKIN: And I’d also ask for – there’s a Section 161, but I would ask that there be a conditional probation that he not be permitted to be alone with children under the age of, I’m going to suggest 18, to keep it clear as part of probation. And not to work, enumerated or otherwise. In other words no volunteer work, as well, with young persons under the age of 18. And weapons as defined by the Criminal Code. Those are the conditions.

THE COURT: Well he’s - we've already got 109 which would be in place throughout his probation, right.

MS. BARKIN: It is and it doesn't include knives. It doesn’t include certain items.

THE COURT: Oh, okay.

MS. BARKIN: So that’s why, as defined by the Criminal Code does.

THE COURT: All right.

MS. BARKIN: So it is a little different. It includes firearms certainly.

THE COURT: All right.

MS. BARKIN: And other restricted type weapons that are specifically noted in the Code or in the Firearms Act Regulations.

THE COURT: Mr. Rahimim.

MR. RAHIMIM: The only – excuse me, Your Honour. The only condition that I take issue with, and perhaps we can refine it, is what Ms. Barkin said about not being permitted to be alone with children under the age of 18 and not to work or volunteer with them.

THE COURT: Right.

MR. RAHIMIM: If we can refine it to make it more appropriate to the circumstances of this case, I would suggest a condition that says not to be alone with children under the age 14 and not to be in their presence unless in the company of an adult to make it confirm a little bit more with Section 161.

THE COURT: Ms. Barkin, that seems more appropriate given the facts of this case.

MS. BARKIN: Most of what I see is 16 or 18, and given that she was likely 12 or so, Ms. S.. Sometimes age is difficult to judge and one of the things that a Crown has to prove in, for example, a sexual exploitation case is that there's knowledge of age. In my respectful submission, if Your Honour feels that 18 is too high, at least 16, in my respectful submission, is appropriate and makes sense in this case.

THE COURT: Well I think given the facts in this case and the fact that this particular victim was very clear about when the offences ended. She was clear it was age 12, I think 14 is more appropriate in terms of aligning with the facts of this particular case. What does the section say?

MS. BARKIN: It says 16 in Section 161. That’s usually what it – I haven't ever seen 14, but I'm certainly in Your Honour’s hand.

THE COURT: But this is a term of – this is a different term, right?

MS. BARKIN: It’s a different term.

THE COURT: 161 relates to places, right?

MS. BARKIN: It’s a term of probation. It’s a term of probation. She said she was 12, possibly 13, as I recall.

THE COURT: I don’t recall that. I thought she was very clear it was 12.

MS. BARKIN: Maybe that was at another proceeding. It’s possible. It might’ve been at the preliminary. I might be thinking of evidence at a different time Your Honour. I would respectfully submit that the usual term is 16. Sometimes out of an abundance of cautions judges will make it 18 because it includes all minors, but certainly, in my respectful submission, at least 16 would be appropriate.

THE COURT: Okay, I'll let you respond to that Mr. Rahimim. Anything further?

MR. RAHIMIM: Let's just – I’ll join her at 16. I don’t think it makes a difference Your Honour. This happened 25 years ago and there’s no evidence or proof or anything before you that there’s been any issue with any minor since then so.

THE COURT: True.

MR. RAHIMIM: I mean really the condition is probably moot, so let’s, let's do 16 and we’ll move on.

THE COURT: Fine, and it's just for the two years of probation in any event.

MR. RAHIMIM: Yes, Your Honour.

THE COURT: So – yes, so Madam Registrar 16 for that part of the, the probation terms. Are there - do counsel have any other submissions on the ancillary orders?

MR. RAHIMIM: No, Your Honour.

THE COURT: All right. Anything further Ms. Barkin?

MS. BARKIN: No, thank you.

...court deals with other related matters

R E C E S S

U P O N R E S U M I N G

THE COURT: I understand that we will need to stay one of the charges.

MS. BARKIN: I think so Your Honour and I should’ve remembered that before because I – in my view, the Kienapple would apply.

THE COURT: Right.

MS. BARKIN: And therefore I could make the argument otherwise, given the number of incidents, but the way that the indictment is, is formulated it’s a range of dates and the range is the same. And I’m not asking otherwise. So I’m going to be suggesting that the sexual assault be stayed and that the sexual interference and sexual – invitation to sexual touching remain on – remain as convictions.

THE COURT: And I realized after that I had not mentioned in my reasons and should have, and I’m sure that you understood that I meant that the sentence was a concurrent one.

MS. BARKIN: I understood that.

THE COURT: That was the intention.

MS. BARKIN: But we should’ve yes.

THE COURT: Yes, and I’m going to put that in the – in my endorsement on the back of the indictment. So....

MS. BARKIN: There – sorry Your Honour. There was another thing as well.

THE COURT: Yes.

MS. BARKIN: Just looking at the probation order.

THE COURT: Yes.

MS. BARKIN: I didn’t see – first of all, I neglected to ask for report as required.

THE COURT: Yes.

MS. BARKIN: Which is necessary for probation to monitor.

THE COURT: Right.

MS. BARKIN: And the second thing is I didn’t see the sign all releases. Maybe it’s – maybe it hasn’t been put in yet, but that needs to be.

COURT CLERK: It will be an additional term.

MS. BARKIN: Additional term. I just want to make sure that probation can monitor. So sign all releases to allow probation to monitor your attendance and participation is the way it’s sometimes worded.

THE COURT: Right.

MS. BARKIN: And I thank Your Honour for coming back in. I’m sorry about the....

THE COURT: No, no I – it needed to be fixed and I did also want to say that, that the sentence was meant to be concurrent as well. Yes, counsel.

MR. RAHIMIM: That’s all fine.

THE COURT: Thank you.

MS. BARKIN: Thank you.

THE COURT: So Madam Registrar, are you going to prepare a brief endorsement on the back of the indictment which reflect the stayed count.

COURT CLERK: Yes.

THE COURT: The sentence, and for oral reasons given.

COURT CLERK: Yes.

THE COURT: All right. You can bring up to me as well.

COURT CLERK: Absolutely.

THE COURT: Anything further counsel? No.

MR. RAHIMIM: No, Your Honour.

THE COURT: All right thank you.

MS. BARKIN: Nothing.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5 (2)

I, Denise Kemp, certify that this document is a true and accurate transcript of the recording R v M.K. in the Superior Court of Justice held at 150 Bond Street East, Oshawa, Ontario taken from Recording No. 2812-203-20140422-0906-10-GILMORC, which has been certified in Form 1.

May 22, 2014

(Date) (Signature of authorized person(s))

Denise Kemp

Certified Court Reporter

THIS IS NOT AN ORIGINAL UNLESS SIGNED IN BLUE INK

This certification does not apply to the Reasons for Sentence
which was judicially edited