ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-SA5100

DATE: 2014/09/23

PUBLICATION BAN IN EFFECT UNDER S. 486.4

BETWEEN:

HER MAJESTY THE QUEEN

– and –

C. K-D.

Accused

Marie Dufort, for the Crown

Jason Gilbert, for the Accused

HEARD: September 4, 2014

REASONS FOR JUDGMENT RE SENTENCE

Aitken J.

Offences

[1] On March 25, 2014, a jury found C. K-D. guilty of two offences: sexual assault and sexual interference, both in regard to A. Y., who at the time was 12 years of age. For the purpose of sentencing, pursuant to the principles in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, I stayed the conviction on the count of sexual assault. I will now proceed to sentence Mr. K-D. only on the count of sexual interference.

Context

[2] The context in which the offence of sexual interference occurred was the following. At the beginning of July, A.’s mother drove her from Buffalo to Hamilton so that she could spend the summer with her father, pursuant to the access schedule in place for A. On the weekend of July 3-5, 2009, A.’s father, his fiancé C. Y., her eight-year old son J., and A. drove to Ottawa for the celebration of the marriage of A.’s father and C. Y. The group stayed in a hotel on Friday and Saturday nights. On Sunday, prior to returning to Hamilton, the group went to the home of S., C.Y.’s sister. Mr. Y., C.Y., S., and her daughter, went to a Sunday afternoon church service, leaving A. and J. at S.’s home. C. K-D., who was 21 at the time, was also in the home. A. had met Mr. K-D. on a number of occasions between 2004 and 2007 when S. and her children lived in Hamilton, and A. had been visiting Mr. Y. for access visits. On occasion, Mr. Y. had asked S. to babysit A. during some of those visits.

Circumstances of the Offence

[3] When the individuals left for church, Mr. K-D.’s sister told A. that she could watch television in her bedroom, because the television on the ground floor was not working. When A. was sitting on the bed watching television, Mr. K-D. came into the room and started talking to her. Then he sat on the bed next to her. Then he pinned A. by the shoulders and started, in A.’s words, going down her. He pulled down A.’s Capri shorts and underpants and kissed her vagina. He then kissed her lips and breasts, after pulling up her T-shirt and bra. Mr. K-D. then went to the bathroom, at which time A. got her clothes back on properly. A short while later, Mr. K-D. returned to the bedroom and again started kissing A. She said that she was tired and needed to sleep, and Mr. K-D. left, telling A. not to tell anyone what had happened.

Positions of the Crown and Defence

[4] Sexual interference carries a maximum sentence of 10 years and, at the time when this offence was committed, carried a minimum sentence of 45 days.

[5] The Crown argues that the appropriate range for Mr. K-D.’s sentence is a period of incarceration of 9-12 months, followed by two years’ probation.

[6] Defence counsel argues that the appropriate range of sentence is 60 to 90 days of incarceration, followed by probation of 18 to 24 months.

Mr. K-D.’s Circumstances

[7] Mr. K-D. is 26 years of age. He immigrated to Montreal from the Congo as a refugee with his mother and his sister when he was seven years of age, fleeing a country marred by violence. When he was nine years of age, Mr. K-D. and his sister were sent to Belgium by his mother so that they could live with his maternal uncles. His mother remained in Montreal. Approximately six years later, Mr. K-D. and his sister were reunited with their mother in Montreal. The family then moved to Hamilton, Ontario, where they lived in a government-run housing project. In 2008, the family relocated to Ottawa, initially living in shelters until they obtained their own accommodation. Mr. K-D.’s mother obtained employment in December 2008 as a personal support worker, and she went on to obtain a diploma in social work from a local community college. Unfortunately, due to health issues, Mr. K-D.’s mother had to cease employment a year ago. Mr. K-D. has a close relationship with his mother and sister. During his youth, he had minimal contact with his biological father, and did not have other significant father figures in his life. He advised that he had never been subjected to any abuse growing up. According to his mother, Mr. K-D. did not exhibit disciplinary problems as a child. He was social, had a lot of friends, and was faithful in the family context. That being said, Mr. K-D. did have some verbal altercations at school which resulted in detentions, and he was suspended on one occasion for one week after having broken into the school on the weekend to get his basketball jersey.

[8] Mr. K-D. had two significant relationships to date: one which lasted for about a year when he was 17, and one which lasted from about 2011 to 2013. He has never been in a common-law relationship, he has never married, and he has no children.

[9] Mr. K-D. graduated from a French high school in Hamilton in 2007. He attended one semester of a Business Administration program at Cité Collégiale, starting in January 2008, but it did not go well and he stopped. He returned to the program in 2009, but again stopped before completion due to lack of motivation. In 2012, he did one semester in a Communications program at St. Paul’s University, but could not afford it, so quit.

[10] Mr. K-D.’s employment record has been spotty at best. He has worked as a cleaner, a security guard, a bouncer, a farm labourer, at a warehouse, and at a call centre. More recently, he was employed at a recycling plant through a temporary employment agency, but the employer chose not to keep him on for more permanent employment. Mr. K-D.’s longest period of employment appears to be from 2011 to 2013, when he was a bouncer in Gatineau in the evenings and worked at a furniture store during the day. In June 2013, Mr. K-D. became emotional during a disagreement with his supervisor at the furniture store. He grabbed the person’s fan from his desk and threw it to the floor, and he damaged a ramp. Mr. K-D. was enrolled in a Court Diversion Program in regard to this incident, but did not meet on-going requirements. Mr. K-D. has no regular source of income at the present time, though recently he was offered employment as a stocker at a retail store.

[11] Mr. K-D. consumes alcohol and marijuana on a social basis and on special events, which he estimates as being every couple of months. There is no evidence that he has any drug or alcohol abuse issues.

[12] Mr. K-D. was convicted in March 2010 of attempting to pass a forged cheque and failure to attend court. He received a suspended sentence and twelve months’ probation. His reporting while on probation was spotty. As part of the Court Diversion Program which Mr. K-D. entered as a result of the incident at the furniture store, in January 2014, he completed two sessions regarding anger management and impulse control at the John Howard Society. In July 2014, Mr. K-D. was discharged from the Court Diversion Program due to his failure to meet other requirements. I was advised at the sentencing hearing that the mischief charge regarding the event at the furniture store remains outstanding.

Report of Dr. Brad Booth

[13] Dr. Brad Booth, a forensic psychiatrist at the Royal Ottawa Mental Health Centre completed a court-ordered sexual behaviours assessment in June 2014.

[14] Dr. Booth noted that, from Mr. K-D.’s educational and employment history, and from his scores on relevant testing, it would appear that Mr. K-D. has had difficulties with impulsivity and a short attention span, which would be consistent with a diagnosis of ADHD. Dr. Booth also noted from the information that he received from Mr. K-D. that Mr. K-D.’s symptoms could be explained – at least in part – through sleep apnea. Dr. Booth recommended that Mr. K-D. be assessed by his family physician at the earliest opportunity for sleep apnea, and treated if appropriate. If he continued to have symptoms of impulsivity and short attention span, Dr. Booth recommended that Mr. K-D. be treated for adult ADHD.

[15] After administering a full range of tests to Mr. K-D., Dr. Booth concluded that, although Mr. K-D. was aroused by exposure to A., and she was prepubescent at the time, the phallometric testing did not suggest preferential pedophilic arousal, and it does not appear that the primary motivation for Mr. K-D.’s behaviour was a specific arousal to children. This is generally thought to be a better prognosis than those significantly or exclusively aroused to children.

[16] In regard to risk of reoffending, Dr. Booth concluded that, using the Static-99R actuarial tools available for assessments, Mr. K-D. was in the low to moderate risk category, with a recidivism rate of 5% within 5 years – a rate about equal to the average offender. If the Static-2002R test is used, again Mr. K-D. was in the low to moderate risk category, with a recidivism rate of 2.8% in 5 years which is approximately equal to the average sexual offender in the population. Dr. Booth concluded that, based on both these actuarial evaluations and on his clinical assessment, Mr. K-D. is at a low risk of recidivism.

[17] Dr. Booth was of the opinion that Mr. K-D. might benefit from a referral to the Royal Ottawa Mental Health Centre’s Sexual Behaviours Outpatient Clinic for treatment; however, he noted that Mr. K-D. would not be accepted into this program if he did not have any insight into his behaviour and did not want treatment. If Mr. K-D. is incarcerated, Dr. Booth recommended sex offender treatment within the federal or provincial system, though both he, and the author of the pre-sentence report, advised that Mr. K-D. would not be considered a candidate for the St. Lawrence Valley Correctional and Treatment Centre program for sexual offenders due to his low risk of reoffending.

Objectives of Sentencing

[18] The key objectives that guide my sentencing of Mr. K-D. are: (1) denunciation of sexual crimes against children, which can have such a devastating impact on victims, and (2) general deterrence, to reinforce not only to Mr. K-D., but to others as well, the importance of protecting children and not exploiting them sexually. When Mr. K-D. committed the offence of sexual interference against A., he was relatively young, had never previously committed an offence of this nature, and likely suffered from poor impulse control likely due to ADHD. In my view, these factors also bring into play the objective of rehabilitation.

Aggravating and Mitigating Factors

[19] The chief aggravating factors in this case are the following:

• A. was only 12 when the offence occurred. Pursuant to s. 718.2(a)(ii.1) of the Criminal Code, R.S.C. 1985, c. C-46, this is an aggravating factor for the purpose of sentencing, though it must be remembered that A.’s age has already been taken into account to a certain degree in the definition of the offence of sexual interference, and in the existence of a minimum sentence that must be imposed in regard to this offence.

• Mr. K-D. took advantage of his age (21) and his physical size (six foot six and sturdy) to overwhelm 12-year old A. and convey the message to her that she did not have any ability to thwart his sexual aggression toward her. I am satisfied beyond a reasonable doubt that, although A. was tall for her age, her appearance and comportment was that of a child, and Mr. K-D. recognized her as being vulnerable and unable to defend herself. I have no doubt that it was terrifying for A., at her young age, to be sexually interfered with by a giant of a man, when she had no ability whatsoever to protect herself, and there was no one there to help her.

• Although there was some evidence that Mr. K-D. had been left in charge of the children who stayed in the home and did not go to church with A.’s father, his new wife, and Mr. K-D.’s mother, I am not satisfied beyond a reasonable doubt that Mr. K-D. was in a position of trust or authority in relation to A. Therefore, s. 718.2(a)(iii) of the Code does not come into play. It is true that he was an adult and, based on the evidence at trial, the only adult in the house at that time. It is also true that it was his house, and not A.’s house – which may imply that he had a certain level of authority over her as a guest in his house. Nevertheless, considering the significance of this aggravating factor, were it to be found to exist, and the modest evidence in its regard, I am not persuaded beyond a reasonable doubt that it comes into play.

• Mr. K-D. has a criminal record, albeit one involving minor offences unrelated in nature to the offence before me.

• Mr. K-D. told A. not to tell anyone what had happened. This added to the emotional turmoil experienced by A. as a result of the sexual interference.

• Under s. 718(a)(iii.1) of the Code, this offence had a significant impact on A. As she stated in her victim impact statement, it played a pivotal role in her no longer having contact with her father – the person who left A. alone in the home with Mr. K-D. and who may not have appreciated just how difficult it was for A. thereafter to trust that she would not be placed in such circumstances again in the future were she to visit her father in Hamilton. A. described how, following the offence, she is always worried about where she is and what is going to happen to her. The only place she feels truly safe is at home. Following the offence, A.’s grades at school dropped, because she was having trouble focusing. Thankfully, they have rebounded along with her emotional framework, and she is getting on with her life.

[20] The mitigating factors are the following:

• There was only one incident of short duration. This is not a case of grooming over time or a series of events.

• Although any sexual offence is inherently violent, there was no additional violence associated with the offence of sexual interference.

• This offence happened in July 2009. It is now September 2014 – more than five years later. There is no suggestion that Mr. K-D. has been involved in any other activities of this nature since 2009. Although there is an outstanding charge relating to mischief, it has no relationship to this offence, aside possibly from the issue of impulsivity and lack of control.

• Mr. K-D. likely suffers from ADHD which makes it difficult for him to control his anger and his impulses. I note that, during the first seven years of his life, Mr. K-D. lived in a war-torn country, where fear and turmoil were his family’s companions. His early life was not stable. He was removed at a very young age from whatever guiding influence his father could offer, and then between the ages of 7 and 13, he was removed from his mother’s guiding influence. These early turbulent years may have reduced Mr. K-D.’s ability to control his impulses.

• K-D. continues to live with his mother, and he has her support as well as the support of his sister.

[21] Mr. K-D. cannot rely on remorse as a mitigating factor because he has denied that the offence occurred, assumes no responsibility for it, and has not shown any remorse. That, of course, is his right, and he shall not be punished for exercising it.

Disposition

[22] Mr. K-D., please stand up. Taking all of these factors into account, I sentence you to six months incarceration. I consider this an adequate period of time to express the court’s denunciation of this type of offence and to send a message to others who may consider taking sexual advantage of vulnerable children that their behaviour will be punished. I recommend that, during your period of incarceration, you receive programming geared to sexual offenders and programming for anger management and impulse control. Your period of incarceration will be followed by a period of probation of two years. The following conditions shall apply to that period of probation:

• Keep the peace and be of good behaviour.

• Appear before the Court when required to do so by the court.

• Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

• Report to a probation officer within two working days after your release from prison and thereafter when required to do so by the probation officer and in the manner directed by the probation officer.

• Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer.

• Abstain from the consumption of drugs except in accordance with a medical prescription.

• Abstain from owning, possessing, or carrying a weapon.

• Attend for assessment, counselling, and/or treatment as recommended by your probation officer, including, but not limited to, programs relating to anger management and impulse control, and programs specifically for sexual offenders. In this regard, I recommend that you seek treatment with Dr. Brad Booth at the Royal Ottawa Mental Health Centre.

• Sign any necessary releases to enable your probation officer to receive any assessment reports and to follow the progress you are making in any counselling or treatment program.

• You shall be prohibited from having any contact – direct or indirect – with A. Y. and any member of her family, aside from D.Y. and his wife, C.Y. You shall be prohibited from being within 500 metres of the residence of A. Y., or any educational institution she attends or any place where she is employed.

[23] Mr. K-D., under s. 161 of the Code, for a period of five years, you shall be prohibited from attending a public park or public swimming area, a daycare centre, a school ground, a playground or a community centre where persons under the age of 16 years are present or can reasonably be expected to be present; you shall be prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and you shall be prohibited from having any contact – including communicating by any means – with a person who is under the age of 16 years, unless you do so under the supervision of a person whom the court considers appropriate. In this regard, I consider appropriate persons to supervise you as being your mother, your sister, your employer, and anyone else your probation officer accepts as being appropriate. As a matter of clarification, these provisions shall be in effect during your period of probation and thereafter for the remainder of the five-year period. They are subject to variation upon application to the court.

[24] Mr. K-D., under s. 487.051 of the Code, you will be required to provide a DNA sample.

[25] You will also be required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for a period of 20 years under s. 490.012(1) of the Code.

[26] Finally, you are subject to a weapons prohibition order under s. 109(2) of the Code. Under s. 109(2)(a), that prohibition order shall be in place for 10 years. Under s. 109(2)(b) of the Code, the prohibition shall be in place for life.