ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11153

DATE: 2015/10/23

B E T W E E N:

HER MAJESTY THE QUEEN

J. Swart, for the Crown

• and -

C. C.

L. Afolabi, for the offender

HEARD: June 19, 2015

REASONS FOR SENTENCE

LEACH J. (ORALLY)

Introduction

[1] On April 7, 2015, following a four day trial by jury, C.C. was found guilty of having committed the following offences:

i. sexual interference, contrary to s.151 of the Criminal Code of Canada, (“the Code”); and

ii. sexual assault, contrary to s.271 of the Code.

[2] In relation to each offence, the victim was G.B.D., (“G.”), a young girl who was seven years old at the time of trial, and 3-5 years old when the relevant criminal conduct took place.

[3] Following delivery of the jury’s verdict and the aforesaid findings of guilt, further submissions were received regarding application of the principles set forth in R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. On consent of the parties, a formal conviction was entered in relation to Count 1 of the indictment, (dealing with sexual interference), while a conditional stay was imposed in relation to Count 2 of the indictment, (dealing with sexual assault).

[4] After directing the preparation of a pre-sentence report, pursuant to s.721 of the Code, the matter then initially was adjourned to Assignment Court on April 14, 2015, at which time it was adjourned to a sentencing hearing before me on June 19, 2015.

[5] On that date, (by which time I had been supplied with the aforesaid pre-sentence report), I received counsel submissions, and a written victim impact statement prepared by A.B., the maternal grandmother of the young victim. (That statement was read out by Crown counsel.)

[6] Pursuant to s.726 of the Code, Mr C. was asked if he wanted to make any direct comments to me prior to the imposition of sentence, and I then heard from him as well.

[7] The matter then was adjourned to today for the imposition of sentence, and delivery of my associated reasons.

[8] It was agreed and confirmed that Mr C. has spent no time in pre-sentence custody.

Circumstances of the offence

[9] I begin with consideration of the circumstances of the offence in respect of which Mr C. has been convicted. In that regard:

• G.’s birth parents are separated and, from a very young age, she has lived primarily at the home of her maternal grandmother, Ms B., along with Ms B.’s husband and a number of maternal uncles. However, G. also pays regular visits to the home of her mother and her mother’s partner, (who live across the street), and the home of a maternal great-grandmother, who also lives nearby.

• Until the events giving rise to this proceeding, G. also used to visit and stay overnight at the apartment residence of her paternal grandmother L., and her husband, Mr C.. G. generally enjoyed such visits, during which she would watch television and engage in various forms of interaction and play with her paternal grandmother and Mr C..

• However, during the course of one and perhaps two such visits by G. to that apartment, her paternal grandmother left for what inherently seems to have been a relatively short time, (i.e., to head downstairs to fold laundry and/or make a trip to a nearby grocery store), leaving G. temporarily alone in the apartment with Mr C.. G. was watching television and/or playing with Mr C. when he then engaged in inappropriate touching of G. for a sexual purpose. In particular, while Mr C. remained clothed, G.’s clothes and underwear were pulled down to her ankles. Without saying anything, Mr C. then touched G.’s vaginal area, moving his fingers and/or “the big part of his hand” in some manner, without effecting any form of penetration. The touching had stopped by the time G.’s paternal grandmother returned to the apartment.

[10] Those initial comments and findings, regarding the circumstances of the offence, nevertheless need to be refined and supplemented in at least two important respects, which I raised with counsel during the course of sentencing submissions.

[11] The first relates to confirmation of the number of occasions on which such conduct occurred, and the second relates to the date or dates on which such conduct occurred.

[12] Both considerations relate to the circumstances of the offence, and both are relevant to sentencing. In that regard:

i. As reflected in the various sentencing precedents to which I have been referred, there is an inherent correlation between the number of occasions on which sexual interference occurs and the gravity of the offence, making the number of incidents of misconduct an aggravating factor when it comes to determination of an appropriate sentence.

ii. The precise date or dates of the misconduct by Mr C. has relevance owing to Parliament’s amendment of s.151(a) of the Code, effective August 9, 2012, increasing the mandatory minimum punishment for sexual interference from incarceration for 45 days to imprisonment for a term of one year. The timing of that amendment accordingly falls within the offence date range specified in the count of indictment in respect of which Mr C. has been convicted. In particular, Mr C. has been charged and convicted of having committed sexual interference between January 7, 2010, and March 15, 2013, reflecting the reality that his abuse of G. must have occurred during G.’s visits to the apartment of her paternal grandmother and Mr C. over that specified period, but also the reality that G. herself lacked awareness of specific dates during that period, owing to her very young age at the time.

[13] In my charge to the jury, approved in advance by counsel, (reflecting their submissions, including the position of Crown counsel echoed in her closing address), the jury was expressly told that, although they had heard testimony alleging that there were two incidents of inappropriate touching of G. by Mr C., the Crown was not seeking more than one conviction in relation to the offence of sexual interference, and that a finding of guilt could be made in that regard if the jury was satisfied that the essential elements of the offence had been established beyond a reasonable doubt in relation to at least one of the two alleged incidents.

[14] The jury also was told that proof of the time at which an alleged sexual interference occurred was relevant to an essential element of the crime, to be proved beyond a reasonable doubt, only in the sense of establishing that the complainant and victim was under the age of sixteen years at the time of the relevant misconduct, (which G. obviously was, as she was still only 7 at the time of trial).

[15] In the result, the jury’s verdict of guilt expressly or implicitly establishes a number of facts relevant to sentencing, while leaving a number of remaining uncertainties in relation to other facts relevant to sentencing. In particular:

• The jury must have accepted that the Crown had proven, beyond a reasonable doubt, at least one incident of sexual interference by Mr C., as alleged by G.. On the other hand, whether the jury found one or two such incidents had been proven beyond a reasonable doubt is not express or implicit in the jury’s verdict.

• Similarly, the jury must have accepted that the Crown had proven, beyond a reasonable doubt, that one or both incidents of alleged sexual interference committed by Mr C. took place within the time period specified in the indictment. However, the jury’s verdict does not expressly or implicitly indicate whether the jury found or even directed its mind to whether one or both of the alleged incidents of sexual interference occurred before or after August 9, 2012; i.e., the date when s.151(a) of the Code was amended so as to increase the mandatory minimum punishment for the offence specified by Parliament.

[16] When I raised these concerns with counsel during the course of sentencing submissions, both seemed content that I approach such issues on the basis that any doubts in that regard should be resolved in favour of Mr C., for the purposes of sentencing.

[17] In other words, both seemed content for me to approach the questioning of sentencing on the basis:

• that Mr C. had been convicted of sexual interference involving only one incident (rather than two separate incidents) of inappropriate touching; and

• that the one incident of sexual interference should be regarded as having taken place within the specified date range but before the date on which Parliament increased the mandatory minimum sentence for sexual interference.

[18] That approach was felt to be justified by a common understanding, (which I was inclined to share at the time), that an offender necessarily was to be given the benefit of the doubt in relation to such uncertainties, as a matter of principle, and that such an approach included adoption of the view of the evidence most favorable to the accused.

[19] On further reflection and examination, however, I find that such an approach runs counter to the settled law in this area.

[20] In that regard, I begin by noting the provisions of s.724 of the Code, which govern the approach to be taken by a sentencing judge when it comes to the making of factual determinations upon which a sentence is based, and read in part as follows:

724. (1) In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentence proceedings and any facts agreed on by the prosecutor and the offender.

(2) Where the court is composed of a judge and jury, the court:

(a) shall accept as proven all facts, express and implied, that are essential to the jury’s verdict of guilt; and

(b) may find any other relevant fact that was disclosed by the evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.

(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,

(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;

(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;

(c) either party may cross-examine any witness called by the other party;

(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence.

(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.

[21] These provisions have been the subject of repeated judicial consideration, establishing and emphasizing a number of relevant principles governing their interpretation and application. Those principles include the following:

• In determining a fit sentence on conviction after a jury trial, where the basis of a jury’s verdict is unclear, a trial judge is obliged, (albeit in a manner consistent with the jury’s verdict), to reach his or her own conclusions as to disputed facts surrounding the offence