ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7469/14
DATE: 20150810

BETWEEN:

HER MAJESTY THE QUEEN

– and –

E.N.

K. Pritchard, for the Crown

K. Walker, for the Accused

HEARD: July 3, 2015

PUBLICATION RESTRICTION NOTICE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA. THIS JUDGMENT COMPLIES WITH THIS RESTRICTION SO THAT IT CAN BE PUBLISHED.

REASONS FOR SENTENCE

A. D. kurkE j.

[1] On May 1, 2015, I found E.N. guilty of all Counts on a five-Count indictment: Sexual Assault (Count 1), Sexual Interference (Count 2), Invitation to Sexual Touching (Count 3), Making Sexually Explicit Material Available to a Person Under the Age of 16 (Count 4), and Exposing Genitals to Person Under the age of 16 (Count 5) [2015 ONSC 2853]. A Pre-Sentence Report was ordered, with a Gladue component, for the return date of July 3, 2015. On that date, a sentencing hearing was held, and Count 1 was stayed pursuant to the principle in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. I reserved judgment, given the disparate sentences proposed, so that I could consider the circumstances of the case, the materials that were filed, sentencing submissions by counsel, and E.N.’s statement to the Court.

[2] The following are my reasons for sentence.

Facts

[3] The facts of the case may be summarized as follows. J.S. is E.N.’s step-granddaughter, being the daughter of his third wife’s daughter H.R. Between the Fall of 2012 and September 2013, E.N.’s wife N.N. babysat J.S. at H.R.’s request, so that H.R. could be free to attend school. J.S. called E.N. “grandpa”, among other names, and viewed him as a member of her family.

[4] By January 2013, E.N. began to sexually abuse J.S. when she was being babysat by N.N. This continued until September 2013. Typically, E.N. would call J.S. into his bedroom, while N.N. was engaged elsewhere in the two-bedroom apartment in which E.N. and N.N. resided. E.N. had J.S. sit on his lap as he sat at his desk, on which he kept his laptop. E.N. would show 10-11 year-old J.S. pornographic pictures and videos from files on his laptop and the internet, while he described for the young girl what was going on on the screen in explicit terms. E.N. offered these descriptions intent on encouraging J.S.’s continued cooperation with his offending conduct.

[5] E.N. progressed from there to fondling J.S.’s chest and vaginal area over her clothes, and under, on numerous occasions, all still in the context of the pornographic display on the laptop, and his running commentary. I have found that, when E.N. touched J.S.’s vaginal area, and went beneath her outer clothing, he did not go beneath her underwear. On one occasion, E.N. invited J.S. to play with his penis, but J.S. did not. E.N. repeatedly exposed his penis to J.S. down his shorts, while she was sitting on his lap, intending thereby, I found, to extend forward his invitation for her to touch it.

Criminal Record

[6] E.N. has a significant prior criminal record for sexual offences, which was first put into evidence at the sentencing hearing, through the Pre-sentence Report:

Date Charges Sentence

1974 07 31 Indecent Exposure $75
1975 07 31 Obscene Tel. Call $50
1978 04 24 Indecent Act 30 days intermittent & 3 yrs. Probation
1981 12 22 Indecent Ass. Female (x2) 3 mths. consec. on each charge
Indecent Ass. Female 1 month consec.
Gross Indecency (x2) 7 mths. on each, consec. and consec.
Gross Indecency (x2) 1 mth. on each, consec. and consec.
1987 05 12 Sexual Assault 1 year & probation 36 months
Sexual Assault 1 year less a day consec. & prob. 36 mths
1995 04 26 Sexual Interference 90 days & s. 161 Order 10 years
1996 03 18 Sexual Interference 15 mths. (55 days PTC) & Prob. 3 yrs.
2009 03 11 Indecent Act (x2) Susp. Sent. & Probation 3 years
S. 110 Order 10 years on each
S. 161 Order 3 years

[7] E.N.’s 2009 convictions, I am told, relate to conduct that preceded his 1996 sentence. The Crown takes no issue with this assertion.

Pre-Sentence Report

[8] The Pre-Sentence Report provides additional information concerning E.N.:

[9] E.N. asserted that his father L.N., a missionary for the Pentecostal Church, sexually and physically assaulted him as a child, a fact denied by L.N. E.N. states that L.N. had forced him to touch L.N.’s penis. According to E.N., he was also sexually assaulted by a friend of his father when E.N. was 12, and by a homosexual when he worked for a circus at age 13 or 14.

[10] E.N. married in 1973. This marriage ended in divorce after E.N. was convicted of abuse of his daughters from the union. His second marriage produced a son, before that marriage ended in 1995 when his second wife found out about the charges involving E.N.’s daughters.

[11] E.N. met N.N. in 1997, to whom he was married in 2002/2003. E.N. and N.N. have been together since then and are very close. E.N.’s resort to pornography is said to have been a source of chagrin to N.N., who, indeed, so testified on the trial of this matter. N.N. is said to be very dependent on E.N. for her medical needs, but has been making a “contingency plan” in case E.N. is incarcerated.

[12] E.N. is estranged from his now adult daughters. He has the support of two siblings, and communicates regularly with his son. He reconciled his relationship with his father some twenty years ago, and is now close to him.

[13] E.N. discovered that his maternal ancestors were “born aboriginal” centuries back, and self identifies as Metis. He expressed little interest in aboriginal traditions and culture, but enjoys walks in the bush, gathering herbal remedies, and he submits paintings to an aboriginal museum in southern Ontario. He was not raised with any aboriginal leanings, and is not interested in pursuing aboriginal culture, as he feels that it conflicts with his Christian religious values.

[14] E.N. receives from ODSP a pension of $1966 monthly, on which he and N.N. get by.

[15] E.N.’s work history was regularly impeded by alcohol abuse and incarceration. Indeed, he correlates the two things. E.N. claims not to have consumed alcohol since his arrest and release on the current charges.

[16] E.N. left school in grade 11 to join the army. In 1983, now out of the army, he completed his grade 12. E.N. has certificates in welding and industrial maintenance mechanics, is certified as a graduate technician, and he received a diploma as a construction engineering technician. E.N. worked at various jobs between 1988 and 2001, when he started receiving ODSP benefits after an ankle injury.

[17] In 2004, E.N. obtained a Certificate of Ordination, and was recorded as a licensed and ordained Christian Minister and Counsellor through Servants of Christ Fellowship.

[18] E.N. has attended Sex and Love Addicts Anonymous in southern Ontario. He admits to weekly pornographic viewing on computer since 1999, although current bail terms have successfully curbed this enthusiasm by prohibiting him from possessing a computer.

[19] Concerning his criminal record, E.N. acknowledges molesting his daughters, young nieces and adult women, but explained to the author of the PSR that “he never forced himself upon his victims.” Rather, “if they were interested, he didn’t have the fortitude to stop the events.”

[20] E.N. disputes a 1981 finding by the Clarke Institute (now CAMH) that he experiences heteropedophilia with a predeliction for children. The same Institute found him hebopedophilic upon his attendance there following his 1996 convictions, and offered a diagnosis of “heterosexual pedophilia non-exclusive type and not limited to incest”. Counselling was recommended.

[21] E.N. was noted to have a poor and destructive attitude at the Ontario Correctional Institute, where he served a sentence between 1981 and 1983 for sex offences. He was noted to be anti-institution, anti-staff, and to have anger-aggression problems and difficulty relating to women in authority. Records indicate that E.N. indicated that he did not wish to go back to OCI in 1987. E.N. attributes his difficulties at OCI to conflict with a female staff member.

[22] E.N. claims that counselling in 1995 with a Registered Nurse allowed him to achieve “true empathy for his victims and appreciate the harm he perpetrated.” This nurse focused on E.N.’s own sexual victimization. E.N. asserts that he “has never sexually victimized anyone since”. Probation records do not indicate that E.N. fully completed therapies to which he was assigned, though he did attend.

[23] Not surprisingly, Probation records note that E.N. had a problem with alcohol, and “that he tended to downplay his offences”.

[24] E.N. expressed no remorse for the current offences, as he maintains his innocence. E.N. and N.N. claim that H.R.’s “personal and historical vendetta” against E.N. is the root of the current charges.

[25] E.N. is prepared to abstain from alcohol if ordered by the Court to do so. E.N. denies that he would benefit from counselling for sexual offending.

E.N.’s current health issues

[26] Malcolm McCormick, RN, provided a letter indicating E.N.’s medical issues as of May 2015. E.N. uses a cane, a wheelchair, grab bars, and a quad walker as assistive devices. He has been diagnosed with:

a. Osteoarthritis (both hips) - 2013
b. Angina / arrhythmia – 2000
c. Bursitis of the right shoulder – 2000
d. Ankle pain (pronation) – 1983
e. Chronic lower back pain – 1989
f. High Cholesterol – 2000
g. HTN – 2000
h. Deviated septum – 1970
i. Sleep apnea (CPAP) – 2007
j. Depression
k. Hearing loss in his left ear – 1972

Victim Impact

[27] J.S has filed a Victim Impact Statement, dated April 7, 2015. She remembers first coming to Sault Ste. Marie, and how she enjoyed getting to know N.N. and E.N. Because of what E.N. did to her, J.S. was keeping a lot of hurt, fear, and anger inside herself. Her behavior changed. She was unable to get work done or concentrate at school. She began swearing, fighting, and threatening others at school. She is now being treated to help her control her fear, worry and anger.

[28] She feels that she and her mother are alone. They have lost N.N., given that she supports E.N. J.S. has difficulty making friends, and is afraid to be far from her mother. She says, “I feel like, because of [E.N.], I lost everything, including myself.” She is not sure what will make her feel safe again.

Letters of support for E.N.

[29] L.N., E.N.’s 85-year-old father, wrote a letter in support of his son. He has various health issues, and in May 2015 was about to be tested for Alzheimers. He has difficulty with daily tasks of living. He needs E.N.’s help to pack up his belongings to move into a nursing home.

[30] Rui Oliveira, pastor at the Cornerstone Seventh-Day Adventist Church, wrote a letter describing how he helped E.N. and N.N. in a smoking cessation program. He notes in E.N. and N.N. a genuine spiritual interest.

N.N.’s health issues

[31] Dr. Douglas Bignell wrote a letter concerning N.N. He notes that she has significant impairment of her liver function, requiring support at home, which E.N. is currently providing.

[32] Malcolm McCormick, RN, provided a letter indicating N.N.’s medical issues as of May 2015. N.N. has been on permanent disability since 2003. She has been diagnosed with:

a. Osteoarthritis (right hip) - 2000
b. Right arm congenital defect (poor arm strength)
c. Bone spurs in the neck – 2003
d. Severe muscle cramping – 2009
e. Reactive depression – 2014
f. Left kidney mass NYD – 2015
g. Chronic Hepatitis C Stage 4 cirrhosis

The law

[33] The relevant provisions of the Criminal Code are as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,…

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention in the circumstances of aboriginal offenders.

[34] The Ontario Court of Appeal has concisely set out primary factors to consider in sentencing when the charges involve sexual abuse of children by someone in a position of trust. In R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), at paras. 34-35, Moldaver J.A. put the factors this way, in the course of explaining the terrible long-term consequences of such abuse on child victims of sexual crimes:

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.

35 We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[35] Justice Moldaver also summarized his view of sentencing ranges as follows, at paragraph 44:

To summarize, I am of the view 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.

[36] The harm that can be expected to victims of long-term sexual abuse includes immediate physical and psychological harm, possible inability as adults to form loving, caring relationships with other adults, and the potential that the victims too will become abusers as adults: R. v. Woodward 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), at paras. 72-73.

[37] The Court of Appeal has taken care to clarify that the factors and sentencing range proposed in D.D. do not apply only to situations involving multiple victims. Abuse of a single victim does not merit a deduction from the appropriate range: R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 (C.A.); R. v. D.B., [2013] O.J. No. 5163 (C.A.), at para. 17.

Positions of defence and Crown

[38] Counsel for E.N. proposes a sentence in the upper reformatory range, to be followed by probation.

[39] In the defence submission, such a sentence is appropriate given the following factors, which can at best be termed the absence of aggravating factors or circumstances that call for lenience:

a. E.N.’s age and ill-health;
b. That E.N. suffered sexual abuse himself as a child;
c. N.N.’s ill-health, and her reliance on E.N.;
d. L.N’s need for his son E.N.’s assistance as a result of his own age and declining health;
e. The fact that there was no penetration of J.S. during the incidents: “this did not progress further than fondling”;
f. The defence view that E.N. was not in a position of trust or authority with respect to J.S.;
g. There is a gap in E.N.’s record since 1996, other than the 2009 convictions that relate to offences that pre-dated 1996. In fact, this appears to demonstrate that E.N. is capable of self-control over an extended period of time, and therefore rehabilitation, which must be taken into account on this sentence.

[40] The Crown submits that in all of the circumstances of the case, the principles in D.D. require a sentence between 8 and 10 years jail.

[41] The Crown points out that E.N. has had the benefit of probation and counselling for rehabilitative purposes in the past, but continues to commit sexual offences against children, when the opportunity arises.

[42] In the Crown’s submission, E.N. was in a position of trust; J.S. called him grandpa, and thought of him as a member of her family. The defence argued otherwise, pointing out that E.N. never desired contact with J.S., or a relationship with J.S., but bowed to H.R.’s persistence.

Analysis

[43] Concerning the issue of whether E.N. was in a position of trust vis-à-vis J.S., I agree with the Crown. E.N. was the spouse of J.S.’s babysitter, and thereby had ready access to J.S. While E.N. may initially have expressed reservations about any kind of relationship with J.S. in the absence of H.R., his testimony described regular interactions with her even apart from the commission of the offences at issue. E.N. ate with J.S., he played games with her, and she apparently sat on E.N.’s lap in the presence of N.N. She considered this man her “grandpa”, and loved him as a member of her family. And unfortunately, N.N. came to trust E.N. to be alone with J.S. while N.N. was babysitting J.S, even while the rules of the house were supposed to keep E.N. and J.S. apart. E.N. was clearly in a position of trust.

[44] Other aggravating circumstances include:

a. An extensive record of sex-related offences. As discussed above however, this must not be overstated, as it appears that there is a gap of some 17 years between E.N.’s last non-historical conviction for any offence and the current offences.

b. Some of the victims of earlier offences include young daughters and young nieces. Whether E.N. accepts the Clarke’s 1981 diagnosis or not, his history proves a pattern of victimization of female children within his family circle;

c. E.N. does not take genuine responsibility for his prior offences. Although he claims to have learned empathy for his victims, he truly fails to understand what he has done. In his words: “he never forced himself upon his victims” and “if they were interested, he didn’t have the fortitude to stop the events.” In other words, his victims were to blame for the conduct that resulted in E.N.’s convictions;

d. E.N. fondled J.S.’s chest and vaginal area numerous times, invited her to touch his penis, and exposed his penis to her repeatedly in order to encourage her to touch it. These are horrific intrusions on the bodily and psychological integrity of this young victim, and cannot be categorized as minor assaults;

e. E.N. described the pornography that he was showing J.S., in order to encourage her further participation;

f. E.N.’s abuse was only halted by J.S.’s disclosure to her mother. Once again, E.N. appears not to have had the fortitude to stop the events;

g. J.S. was very vulnerable, given her age, her difficulties adjusting to a new school and living situation. She found herself friendless and alone;

h. E.N. preyed upon this vulnerability to use J.S. as a means of achieving sexual pleasure regardless of the consequences to his victim;

i. The effects on J.S. have been severe, in terms of emotional and psychological trauma. In her words: “I feel like, because of [E.N.], I lost everything, including myself.”

[45] I note here that E.N. has expressed no remorse for the current offences. Rather, J.S. has had to testify twice, and to hear it suggested to her that she is not believable. Of course, it is not surprising that E.N. maintains his innocence, given his stated intention to appeal his convictions. E.N.’s failure to express remorse must not be viewed as an aggravating factor, for E.N. is entitled to maintain his innocence. While true remorse can mitigate, the lack of remorse after trial is a neutral factor on sentence, and I do not take it into account: R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178 (C.A.), at 22-25 (QL).

[46] E.N. self-identifies as Metis, but expresses little interest in that heritage, which he finds conflicts with his personally-held beliefs. He denies having suffered any systemic racism. While it was imperative for the Court to be made aware of E.N.’s aboriginal background, E.N. simply does not appear to have suffered any social or economic deprivation as a result of that background that might diminish his responsibility for his conduct towards J.S. and justify a sentence below the usual range: R. v. D.B., [2013] O.J. No. 5163 (C.A.), at paras. 13-15.

[47] Concerning E.N.’s health difficulties, no evidence has been presented that E.N.’s health issues cannot be satisfactorily accommodated in the penitentiary setting. Indeed, even the defence position would have E.N. sentenced to custody, but in a reformatory. In the absence of some indication other than the accused’s belief that his health issues cannot be properly handled in the penitentiary, no reduction from what would be an appropriate sentence is warranted: R. v. H.S., 2014 ONCA 323, [2014] O.J. No. 1974 (C.A.), at paras. 37-38.

[48] Concerning N.N.’s and L.N.’s reliance on E.N. for assistance given their personal situation or health needs, some account must be taken. Nevertheless, in the circumstances of E.N., the force of those factors is attenuated by the very strong need in these circumstances for a denunciatory and deterrent message to be sent out.

[49] Were it not for the gap in E.N.’s criminal record, his own history of abuse as a child, and his wife and father’s health issues, the Crown’s position on sentence would be appropriate. However, these factors cannot be disregarded in the balance.

[50] In somewhat similar circumstances, a 75-year-old offender with significant health issues but no criminal record was sentenced to five years incarceration for such abuse: R. v. G.B., [2012] O.J. No. 5459 (Sup. Ct.).

[51] E.N. has a significant, though dated criminal history. These current offences show that E.N. can control his urges, but that those urges have not significantly dissipated, even after nearly two decades have passed since his last offences. He remains a danger to the public, though capable of deterrence.

Sentence

[52] In all the circumstances of this case, I sentence you, E.N., to 6 years incarceration. The message must be sent to you and others who prey upon our children that the Courts will impose severe sanctions upon predators of our young, and separate them from the rest of society.

On Count 2, the sentence will be six years jail.

On Count 3, the sentence will be six years jail, concurrent.

On Count 4, the sentence will be 2 years jail, concurrent.

On Count 5, the sentence will be 2 years jail, concurrent.

[53] There will be an order pursuant to s. 743.21, prohibiting E.N. from contacting J.S. or H.R. while he is serving his sentence of imprisonment.

[54] Counsel are agreed that DNA should be ordered for the purposes of the national DNA databank. All of the offences on the Indictment are primary designated offences under s. 487.04, and s. 487.051(1) makes sampling for the purposes of forensic DNA analysis mandatory on each of Counts 2, 3, 4, and 5.

[55] Counsel are also agreed that there should be a s. 161 order. E.N., while he consents to an order for life on the first three sub-headings of s. 161(1)(a), (b), and (c), requests that the Court not impose a prohibition on his use of the internet or other digital network (s. 161(1)(d)), or that such an order be subject to conditions imposed by the Court which would allow him access for appropriate purposes under appropriate guidance.

[56] Given the circumstances of these offences and this offender, I find that I cannot devise exceptions to a prohibition that will ensure the protection of the public. It would be outwardly attractive to permit E.N. internet access only under the direct supervision of N.N., who, after all, deplores E.N.’s use of pornography. But this cannot happen; I have found that N.N.’s devotion to her husband is unquestioning and overly trusting. She cannot be counted on to supervise E.N. adequately or consistently, and the potential risks to other children are too great.

[57] On Counts 2, 3, 4, and 5, a prohibition shall be imposed under s. 161(1)(a)(b)(c) and (d) without exceptions, for life.

[58] There shall be a prohibition from possessing any item set out in s. 109(1), pursuant to s. 109(1)(a) on Count 2 for life, given E.N.’s prior 10-year Order in 2009.

[59] On each Count, pursuant to s. 490.012(1), there will be an order that E.N. comply with the Sex Offender Information Registration Act. As E.N. has been convicted of four offences that are mentioned in s. 490.012(1)(a), that order shall be for life, pursuant to s. 490.013(2.1).

August 10, 2015 ______________________________

A.D. Kurke J.