ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-SA5081
DATE: 2014/06/20

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Y.C.B.

Accused

Suzanne Schriek, for the Crown

Russell Silverstein, Shannon O’Connor, for the Accused

HEARD: January 27, 28, 29, 30, 31, February 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 and 18, 2014

DECISION ON SENTENCING

LALONDE J. (orally)

[1] Y.C.B. (Mr. C.) was found guilty of six counts of sexual assault, contrary to section 271, subsection 1 of the Criminal Code and six counts of touching a person under the age of 16 years for a sexual purpose, contrary to section 151 of the Criminal Code.

[2] At the request of the prosecution and with the agreement of defence counsel, conditional stays will be entered in relation to the six counts of sexual assault and convictions will be entered on the six counts of touching for a sexual purpose.

[3] Counts 5 and 6 of the indictment for sexual assault concern the same child, A.T and counts 7 and 8 of the indictment for touching a child under 16 years for a sexual purpose also concern A.T. The sentence for count 8 will be made concurrent to the sentence for count 7.

SUMMARY OF THE FACTS

[4] I will not repeat the facts relied upon to convict Mr. C. as they are recited elaborately in my Reasons for Judgment released following 16 days of trial, on March 21, 2014. Suffice it to say that the sexual offences relate to five grade 3 young girls, all former students at schools where Mr. C. worked as an occasional teacher between December 2010 and November 2011.

[5] The case against Mr. C. started when a member of the Ottawa Police Services received a call informing her that A.P. had been improperly touched by Mr. C., her teacher. Following interviews on January 21, 2011, with A.P., H.T. and others, the police closed their file as the charges were deemed unfounded.

[6] However, on November 17, 2011, the police received a further complaint against Mr. C., who was then working as an occasional teacher at another school. The complaint was that Mr. C. had inappropriately touched the private parts of a female student in class.

[7] The inappropriate touching occurred in different ways such as when a female student sat on his knees in class or during science balancing experiments in front of the class while Mr. C. held a female student while slipping his hand inside the student’s pants and touching her bum. On another occasion a student complained that Mr. C. had slipped his hand down her pants while he lay behind her on the floor of the classroom during a school lockdown exercise.

PERSONAL BACKGROUND

[8] Fifty-three year old Mr. C. was born and raised in Morocco, sixth of nine children born from his parents’ union. He is of the Muslim faith and has strong religious beliefs. He remained in Morocco until 1991 when his parents and one of his siblings decided to relocate to Canada.

[9] In 1993, Mr. C. met his wife and married her. The couple have three children aged 16, 14 and 5. Mr. C. told Probation and Parole Officer Melanie Latour, who prepared the Pre-Sentence Report dated May 6, 2014, that he separated from his wife in 2012 due to personal differences and due to the offences before the court. He does not see his children because the Children’s Aid Society is involved. Because Mr. C. did not contact the social worker in charge of his family’s file, his visits to the children were revoked.

EDUCATION

[10] Mr. C. did two years of schooling at a Moroccan architecture institute where he received a diploma. This was followed by a one-year attendance at a university in Morocco. Then he worked as a teacher in grade school for five years. Since coming to Canada he has been employed as a teacher. In Ottawa he attended at the Ottawa University for a teaching certificate. He taught French as a second language at two different colleges in Ottawa for the past 16 years. He then branched off to do supply teaching at French elementary and secondary schools as he hoped to eventually obtain a permanent contract, something he had not achieved at La Cité Collégiale.

VICTIM IMPACT STATEMENTS

[11] The statements are taken from Ms. Latour’s Pre-Sentence Report.

[12] The Report reads:

This writer first spoke with Mrs. K.P., who is the mother of one of the victims. She confirmed that her daughter was one of the subject’s students in an elementary school and was in the third grade when the offence occurred. Mrs. P. advised that her daughter is reluctant to discuss the events that occurred as they make her “angry”. She added that, now and again, her daughter gets flash backs of the incidents and becomes upset. Although Mrs. P. took her daughter to see the family doctor who deemed her to be mentally and physically well after having gone through a devastating ordeal, she fears that her daughter may have difficulty engaging in intimate relationships when she is older.

Furthermore, Mrs. P. indicated that she removed her daughter from the school where the offence occurred and enrolled her into another school. She stated that her daughter is doing well in this new school, however fears that the offence has had a negative impact on her socialization with others. She indicated that her daughter does not engage with classmates outside of school like she did prior to the offence. She also reported to be worried about her daughter’s ability to from proper ties with peers and ability to regain a sense of trust in others.

When discussing how she felt about the situation, Mrs. P. reported that she continues to feel angry. In her opinion, she feels that a school should be a safe place for children and that due to this offence her daughter is no longer able to feel a sense of comfort within a school setting, especially with supply teachers. Mrs. P. also worries that there may have been other victims and hopes the Justice System will hold the subject accountable for his actions, as she feels that has taken her daughter’s innocence away.

[13] In addition, Ms. Latour also spoke with J.T., another victim’s mother. The Report reads:

She confirmed that her daughter was also in the subject’s grade three classroom. Mrs. T. advised that although she has not noticed any significant change in her daughter’s behaviour since the offence occurred she is aware that her daughter now feels badly about herself as well as embarrassed. Mrs. T. reported that it was extremely difficult for her daughter to testify in Court but that she was impressed at how well she handled herself. Mrs. T. went on to indicate that even though there did not appear to be a need for counselling in her daughter’s case she has noticed that her daughter is experiencing a heightened sense of awareness of herself and those around her.

Mrs. T. also indicated that as a parent, this offence has “shaken” her trust in teachers and supply teachers. She indicated that this incident frightened her as she expected her children to be safe when on school grounds; especially in the presence of teachers and now has anxiety about this. Mrs. T. indicated that she and her husband are now very cautious and feel badly as they were unable to protect their daughter throughout this ordeal.

[14] Lastly, Ms. Latour spoke with D. and S. T., parents of another victim. The Report reads:

When meeting with them, Mr. and Mrs. T. were visibly upset about discussing the effects this offence has had on their daughter. In order to protect her integrity they provided this writer with a vague description of the negative impacts of this offence. It was evident that this process was very difficult for both Mr. and Mrs. T.

Mr. and Mrs. T. confirmed that their daughter was a grade three student in the subject’s classroom. They advised that they were made aware (after the fact) that the subject had been investigated for similar charges in another school prior to being their daughter’s supply teacher and expressed that they were extremely upset this occurred. Mr. and Mrs. T. indicated that their daughter was frightened, confused, sad and extremely upset to have been the victim of this offence. Sadly they reported that their daughter’s behaviour has been different ever since and are distraught about the negative impact this has had on her. Since the offence, Mr. and Mrs. T. noticed that their daughter is now introverted, appears to have shut down emotionally and refuses to discuss the offence. Going through the Court process was a traumatic experience for her, however Mr. and Mrs. T. indicated that she expressed herself well and was cooperative with the investigation.

[15] The Report goes on:

Although Mr. and Mrs. T.’s daughter did not seek counselling, they have been in contact with the Witness Support Program and have indicated that they have been very pleased with the worker’s involvement with this case. Of concern for Mr. and Mrs. T. was the lack of support they received from the school board at the time of the incident. Their daughter now has no interest to speaking with a counsellor, which is of concern to them as they feel this support should have been offered in a timely manner to be beneficial.

When discussing how they felt about the offence, Mr. and Mrs. T. were visibly upset. They indicated that they are most upset about the breach of trust as the subject was an authority figure for their child. They have indicated that they fear about how this will affect their daughter in the future and have expressed great concerns that the subject may reoffend.

[16] The Crown has filed victim impact statements that were read in court from A.P., K.P. (A.’s mother), H.T., H.T.2 (read by her mother J.T.) and D.T. I am not referring to the statement of G.H. as she was not a complainant but a witness at trial. Both her statement and that of her mother L.H. do not meet the statutory definition as to what statements the court should receive at a sentencing hearing.

THE LAW

[17] As stated at para. 14 of Madam Justice Fuerst’s decision in R. v. Murchison, 2013 ONSC 1943:

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It sets out various aggravating factors. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[18] The mitigating factors include:

• These are first offences for Mr. C. and he has no criminal record.

• Mr. C. has always been employed.

• Mr. C. has contributed greatly to his community as it appears by the letters filed on his behalf and found in Exhibit 3.

• The loss of employment and status resulting from the conviction and also the economic loss suffered by Mr. C.

[19] The aggravating factors are:

• Five different complainants, six separate offences under section 151 of the Criminal Code.

• A pattern of behaviour exhibited in class at the Sawmill Creek School.

• A form of grooming of his students, namely, telling the children what he plans to do to gauge their reaction, giving the children candy, the occasions used to touch the girls i.e., science projects, school lockdown exercise.

• The abuse of his authority as a teacher.

• The court found that the offender preyed upon young students for his perverted gratification. There was some form of grooming involved as I reviewed earlier.

• There has been a serious psychological damage made to the young students.

[20] I am not using, as an aggravating factor, Mr. C.’s refusal, on religious grounds, to undergo a phallometric test. This refusal goes against him in any event as it could have “cleared the air” so to speak about Mr. C.’s pedophilic tendencies.

THE POSITION OF THE DEFENCE

[21] The position of the defence is that a global sentence of between six to eight months should be imposed.

[22] The defence points out that the level of seriousness places Mr. C.’s case at the low end of the range because of the minimal intrusiveness of the assaults, the duration, the nature of the complaints, the lack of violence and the lack of threats.

[23] Based on the numerous character reference letters filed as Exhibit 3, it is clear that Mr. C. has contributed extensively to the Islamic Community in the east end of Ottawa. I have read the letters of Raeda Abdullah, Abderrahim Chbihi, Ingénieur, Nezha Zizi, Cultural Interpreter, M.I. a friend, his sister, N.C.B., his brother, K.B., A.L., a friend, M.B., (Imam for the Islamic Society of Cumberland), Tayyab Muhammad, an Engineer and friend and from S.E.B. All letters refer to Mr. C.’s generosity in establishing a new International Language School (Arabic) to give Saturday lessons to students of various ages and grades. Other persons who wrote reference letters refer to Mr. C.’s generosity in helping them get established here when they emigrated.

[24] I am urged to look at the negative impact the convictions have brought upon Mr. C. He will never teach young children again, his marriage is in tatters and his good reputation ruined. The extensive media coverage has brought humiliation and embarrassment upon him and his family.

[25] In this case, Mr. C. has not admitted his guilt. That is not to be considered an aggravating factor. It is settled law that Mr. C. can continue to maintain his innocence after conviction.

[26] Defence counsel reviewed the following cases:

• R. v. C.J.P., (2004) 2004 16092 (ON CA), 185 O.A.C. 255 (Ont. C.A.) where a sentence of 18 months was handed down for behaviour worse than we find in our case.

• R. v. G.L. (2003), 2003 57437 (ON CA), 175 C.C.C. (3d) 564 (Ont. C.A.) where an offender received a 10-month sentence for kissing, touching the breasts and inserting his finger in the complainant’s (his sister-in-law) vagina when she was 13-years-old and he was 30-years-old.

• R. v. F.C., 2011 ONSC 7037. Trotter J. gave 15 months’ imprisonment and 24-months’ probation to an offender for a first offence. He had touched his girlfriend’s eight-year-old daughter five times in two weeks.

• R. v. E.R.F., [2009] O.J. No. 994 (Ont. S.C.). Stinson J. sentenced the offender for eight months and one year probation. The offender had fondled the 11-year-old’s breasts and had touched her genitals.

THE CROWN’S POSITION

[27] The Crown submits that a period of incarceration is required in this case. There should be a reformatory range of two years less a day.

[28] The Crown points out that the aggravating factors warrant jail time. The Crown argues that the principles of general deterrence and denunciation apply here. As for the principle of rehabilitation it is difficult to assess its impact because of Mr. C.’s lack of remorse. No steps have been taken by Mr. C. to address his problem.

[29] Crown counsel argues that although Mr. C.’s denial of the charges is not an aggravating factor, it otherwise could have been a significant mitigating factor.

[30] On Mr. C.’s refusal to take a phallometric test, Crown counsel cites R. v. Hart, 2002 BCSC 1505, where Parrett J. at para. 58(3) of the decision said:

58 The aggravating factors in the present case include -

3. By failing or refusing to co-operate with the psychological assessment the court is left with a very incomplete picture of the accused's psychological makeup. I am well aware that he has the right to maintain both his innocence and his right to silence. The court, however, is entitled to draw the logical inference that a person who would commit these offences is a danger to the community and, in particular, the youngest and most vulnerable members of that community.

[31] In R. v. Zola, (2006), 70 W.C.B. (2d) 547 (Ont. S.C.), W. B. Trafford J. did not use the offender’s lack of cooperation with the doctor’s psychological assessment in the context of a dangerous offender case.

[32] Dr. Brad Booth, a forensic psychiatrist at the Royal Ottawa Mental Health Centre made an assessment of Y.C.B. At p. 11 of his report, he states:

Pedophilia is the sexual arousal to prepubescent children. Mr. C.-B.’s offences involve fondling on four separate occasions of four different 8 year old girls, all of whom would presumably be prepubescent. However, he denies these offences and vehemently denies any sexual arousal to children. Unfortunately, he would not participate in phallometric testing that could have clarified this diagnosis. However, given the recurrent nature of the offences, it is likely that he has arousal and sexual interest in this age group, particularly as there were recurrent incidents over separate occasions.

A specifier of “nonexclusive type” is given. This means that Mr. C.-B. is not exclusively aroused by children, but can also be aroused by adult consenting scenarios. This is supported by the fact that he has children.

I would note that there are other psychological factors that can be at play when individuals offend against children. As such, some individuals will offend against children despite not having a specific arousal to them. As. Mr. C.-B. denies the offences and denies any significant dysfunction around the time of the offences, I am unable to hypothesize any other reason for acting in the manner that he did. This diagnosis may change if other information becomes available.

[33] On the objective of this sentencing, Crown counsel cited para. 34 of the R. v. D.D., (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), where the court states:

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. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, 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.

[34] Recently, the Court of Appeal for Ontario repeated this approach in R. v. Woodward, 2011 ONCA 610, where M. J. Moldaver J.A. stated at para. 72:

72 The case of D.D., it will be recalled, involved an adult predator in a position of trust who sexually abused a number of young boys on a regular basis over a lengthy period of time. The court in that case considered the appropriate range of sentences for offenders who engage in such conduct. In doing so, the court discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children. The relevant considerations and principles from D.D. at paras. 34-38, are summarized below:

(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 the other recognized objectives of sentencing.

[35] On the length of sentence, Crown counsel cited C. Hill J’s decision in R. v. Macedo, 2012 ONSC 2595. At that time in 2012, Parliament had made a 45-day minimum sentence for a section 151 offence law. A teacher had kissed the 16-year-old complainant’s cheek and hugged her. The sentence was 90 days imprisonment with probation for two years.

[36] In the case of R. v. Bedard, [2006] O.J. No. 5886, J.S. Poupore J. gave the offender a sentence of imprisonment for 90 days. This school teacher had on three to five occasions placed his hand on the upper thigh of his student for a sexual purpose. This teacher had no prior criminal record and was also guilty of non-intrusive conduct.

Analysis

[37] As Crown counsel pointed out, at the end of July 2012 Parliament amended the legislation involving section 151, touching a person under the age of 18 years for a sexual purpose, by imposing not a 45-day minimum sentence, but a minimum sentence of one year. This speaks volumes concerning the purpose of sentencing in a case such as ours. It calls for general and specific deterrence as the primary aim of sentencing for this type of crime.

[38] I find that Y.C.B. is a hard-headed man who listens to nobody. I point to the following to prove my point:

• Detective Marelic decided to let him go after interviewing him and advising him to change his methods following two complaints about his conduct with A.P. and H.T. at the Odyssée school. What happens after that break is that within one year, further complaints about his behaviour with young female students are made and received by police from Sawmill Creek school, a different school. The parents and students from the Odyssée and Sawmill Creek schools do not know each other.

• The court ordered a psychological assessment. Y.C.B. does not cooperate and skews the psychiatrist’s assessment. He loses a chance to enhance his reputation by showing that he is not the type to get sexually excited by physical contact with young girls. As the doctor pointed out in his report, many Muslims undergo the court ordered test and they are religious Muslims.

• Both the psychiatric report and the pre-sentence report underline that although the convictions for these crimes did not help his marriage, his marriage was in trouble before these convictions. His daughter is estranged from him because of his exaggerated religious fervour. History has shown Mr. C. that a believer who believes too strongly, no matter what the religion, is a cruel person.

[39] You have suffered a lot due to these convictions. However, you brought this on yourself and it is time to look at your own conduct—your failure to heed advice and stay out of trouble. You are not the only one who suffers:

• A.P. changed schools because of you, and her mother, K.P., filed a letter stating she lost $2000 in wages because she attended interviews and court appearances to support a very young daughter;

• H.T. stated that you made her feel like a nobody when you persistently called her mother to cover your actions; she stated that she had to rebuild her reputation;

• H.T.2 was deeply affected; her mother came to read her statement at this sentencing hearing;

• I have already reviewed the statements of other complainants’ and their parents incorporated in the pre-sentence report.

[40] I wish to make it clear that lack of remorse cannot be treated as an aggravating factor. The offender is entitled to exercise his Charter rights and make a full answer and defence and proclaim his innocence.

[41] I accept the fact that Y.C.B. will not work as a teacher anymore and that he has been embarrassed in the community in which he lives by these convictions.

[42] I have read the ten letters written to defence counsel and to the court. They include letters from close family, people he helped when they arrived in Canada from Morocco, and people he helped by initiating Saturday classes for students wishing to learn the Arabic language. I note that these good citizens comment that the convicted felon before this court is not the man they know.

[43] The character evidence I received from family and friends is tempered by the fact that several authors of those letters did not appreciate the evidence offered by the complainants concerning the events before this court.

[44] Because this offender is such an exemplary citizen, it makes his inappropriate behaviour more unfortunate. He has paid a great penalty for his perverted conduct such as his loss of reputation, estrangement from his family and financial loss due to his inability to teach.

[45] As the case law recited underlines, rehabilitation is not the important factor here. I believe, as did the psychiatrist who filed a report to the court, that there is a low risk that Y.C.B. will repeat his crimes. He seemed to have been goaded in his inappropriate behaviour in his role as a teacher. He was in a position of trust. His students looked to him for guidance and direction and he failed them. It is not, and I repeat, a question of students misinterpreting his behaviour. He was forewarned not to seat female students on his lap, but yet, he did it anyway. He acted deliberately in a calculating manner to commit these offences. That is what I analyzed in my 64-page judgment.

Mr. C., please stand up. Do you have anything to say before I pass sentence?

[46] I sentence you to 12.5 months of imprisonment, followed by two years of probation. While the total sentence for these offences would be 12.5 months, taking into consideration the totality principle espoused in s. 718.2(c), the global sentence should be reduced to one year.

[47] The breakdown is as follows:

• On count No. 1, sexual assault on H.T.2, this count is conditionally stayed;

• On count No. 2, touching the body of H.T.2 for a sexual purpose, I sentence you to 2.5 months imprisonment;

• On count No. 3, sexual assault on C.D., this count is conditionally stayed;

• On count No. 4, touching the body of C.D. for a sexual purpose, contrary to s. 151, I sentence you to 2.5 months imprisonment;

• On count No. 5, committing a sexual assault on A.T., this count is conditionally stayed;

• On count No. 6, committing a second sexual assault on A.T., this count is conditionally stayed;

• On count No. 7, touching the body of A.T. for a sexual purpose contrary to s. 151, I sentence you to 2.5 months of imprisonment;

• On count No. 8, a second charge of touching the body of A.T., contrary to s. 151, I sentence you to 2.5 months imprisonment to be served concurrently with the sentence imposed for count No. 7.

• On count No. 9, committing a sexual assault on the person of H.T., this count is conditionally stayed;

• On count No. 10, touching the body of H.T. for a sexual purpose, contrary to s. 151, I sentence you to 2.5 months imprisonment;

• On count No. 11, sexual assault on the person of A.P., this count is conditionally stayed;

• On count No. 12, touching the body of A.P. for a sexual purpose, contrary to s. 151, I sentence you to 2.5 months imprisonment.

[48] As stated earlier, as a global sentence, the sentence of 12.5 months is reduced to 12 months.

[49] Where the defendant has been convicted of sexual assault and sexual touching of a person under the age of 16 years, and the factual nexus and legal nexus are established, one of the convictions should be stayed: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. There is nexus both factual and legal in this case and the Crown has elected to stay the sexual assault counts and proceed with the touching for a sexual purpose, s. 151, counts.

[50] The following are the ancillary orders:

• Pursuant to s. 161(1) of the Criminal Code, an order of prohibition shall issue prohibiting you for a period of 5 years from:

a. Attending a public park or public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;

b. 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 14 years unless an adult is also present;

c. Using a computer system within the meaning of sub-section 342.1(2) for the purpose of communicating with a person under the age of 14 years. By way of exception to the prohibition under s. 161(1)(a) you will be permitted to attend at a public park for purposes of attending at an Adult Soccer League, provided you are in the direct presence of someone over the age of 21 years.

• Pursuant to s. 490.013(2)(b) of the Criminal Code, you shall comply with the Sex Offender Information Registration Act for a period of 20 years.

• Pursuant to s. 110 of the Criminal Code, you are prohibited from possessing any of the weapons described in that section for a period of 10 years.

• Pursuant to s. 487.051 of the Criminal Code, you shall provide a DNA sample for purposes of forensic analysis.

• Following your release from custody, you shall serve a term of probation for two years, during which time you shall:

a. Keep the peace and be of good behaviour;

b. Appear before the court when required to do so;

c. Notify the court or your probation officer in advance of any change of name or address or of any change of employment or occupation;

d. Report to a probation officer within 2 working days after your release from custody and thereafter when required by the probation officer;

e. You are not to communicate directly or indirectly with the victims of these offences or their parents;

f. Contact your probation officer immediately upon your release from custody.

Lalonde J.

Given Orally: June 20, 2014