ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14/105
DATE: 2015 09 22
BETWEEN:
HER MAJESTY THE QUEEN
S. Doyle, for the Crown
- and -
J.D.
C. Tarach, for J.D.
HEARD: 2015 09 15
REASONS FOR SENTENCE
FAIRBURN J
Introduction
[1] After the Crown closed its case in a jury trial, J.D. pled guilty to sexual interference with a 15-year-old girl who he had sexual intercourse with on at least two occasions. The matter was put over for sentencing.
Facts
[2] The victim, M.B., turned 15 years old on […], 2012. She celebrated her fifteenth birthday on the day she moved into a homeless shelter with her father. M.B. was living with her father at that time because of difficulties she was experiencing in her relationship with her mother.
[3] Her father had suffered a serious brain injury. He was in the hospital for a few months. When he checked out of the hospital, he discovered that the residence where he had been living prior to his hospitalization was no longer available. As such, he checked into the Peel Family Centre in Mississauga.
[4] M.B. and her father lived together at the shelter between […] and September 1, 2012. While at the shelter, they met the accused. He was residing at the shelter with his then 3-year-old son. M.B. and her father came to know the accused. The victim babysat his young son on a few occasions.
[5] She testified that she and J.D. developed a “friendship”. She testified that during the time she lived at the shelter, she and J.D. had sexual intercourse on two to five occasions. In an Agreed Statement of Facts filed at trial, it is acknowledged that sexual intercourse between the accused and M.B. took place on “at least” two occasions. The intercourse took place at the shelter.
[6] J.D. was 31 years old at the time of the offence. This means that the accused was 16 years older than the victim at the time he was having sexual intercourse with her.
Victim Impact
[7] M.B. did not provide a victim impact statement. I am satisfied that she was offered the opportunity to do so and declined.
[8] In the Pre-Sentence Report there is reference to comments from M.B.’s mother. The Crown says that I may take these comments into account when considering the impact that the offence has had on M.B. The defence encourages me to have regard to the mother’s comments.
[9] M.B’s mother told the probation officer that she does not believe that her daughter was “negatively affected by the offence for which the subject stands before the Court”. The author of the report adds the caveat: “however, it should be noted the victim appears to be unable to comprehend that her age made it impossible for her to consent to the sexual activity in which she engaged with the subject”.
[10] The mother seems to acknowledge that the victim’s life went “off the rails”, but blames this more on alcohol and drugs than her “experience” with J.D. According to her mother, M.B. was involved with alcohol and drugs prior to being victimized by J.D. According to the mother, M.B. has received some family counselling to address her various issues, including her victimization. The mother informed the probation officer that her daughter is now involved in a healthy relationship.
The Offender
[11] J.D. is currently 34 years of age. He has no criminal record. He has a grade 11 education. His mother died when he was around 10 years of age. He reports having had an abusive and heavy drinking father. J.D. has difficult relationships with peers and his full siblings. He reports having a somewhat close relationship with a younger half-sister.
[12] The accused has two children, six and eight years of age. It is his younger son that he was living with at the shelter when the offence occurred. He does not live with either of his children today. While somewhat at odds with the information provided to the probation officer for purposes of the presentence report, J.D. reports that he has contact with both of his children who are now living in the surrounding area. The Crown does not dispute this fact and I accept it to be so.
[13] J.D. has struggled with various mental health issues throughout his life. He appears to suffer from both depression and anxiety. He says that he has made two prior attempts to kill himself. He is on the Ontario Disability Support Program because of his mental health challenges.
[14] He has been involved in illicit drug use in the past. He has used marijuana since he was fifteen years of age. He has also used cocaine in the past. His most intense period of cocaine use was when he was 23 years old. As he matured, he used less cocaine and all use stopped when he was 27 years old. He resumed use of cocaine about three years ago. As a result, he checked himself into an out-patient program. While he self-medicates with marijuana several times a week, he has not used cocaine since his out-patient treatment.
[15] I was informed during sentencing submissions that the accused is receiving counseling through the Inner City Health Team. He attends every other week. I accept this to be the case.
[16] Although it could be better, the accused has some insight into his actions. To the probation officer he “tried to justify his actions indicating he assumed because the victim was dressed maturely, drinking and smoking cigarettes that she was of legal age”. He did, however, recognize, in hindsight, that he should have ensured she was of the “age of consent”. To the court, he apologized for his conduct. He expressed remorse about his conduct and said that he wants to continue with counseling to receive help and get his life back on track.
[17] The officer in charge of the investigation described J.D. as being “cooperative, non-combative and polite during the investigative process”. The Crown described the pre-sentence report as generally positive and I agree.
Positions of the Parties
[18] On behalf of the Crown, Mr. Doyle submits that a fit sentence is one of 18 months incarceration, to be followed by two years of probation on various conditions. He stresses the importance of denunciation and general deterrence as the primary sentencing objectives in the context of this offence. Mr. Doyle also seeks various ancillary orders.
[19] On behalf of J.D., Mr. Tarach seeks a 90-day intermittent sentence. Acknowledging that this may not be realistic in the circumstances, he asks the court to impose a sentence in the range of 6 to 9 months. Mr. Tarach stresses that this is an unusual case. He says the accused was not in a position of authority and did not groom the victim. There were no threats or inducements. Without “downplaying her vulnerability”, it is said that the victim was a willing participant in the sexual acts and that this should go some distance toward a diminishment of sentence.
Mandatory Minimum Sentence
[20] When sexual interference under s. 151 of the Criminal Code is proceeded with by indictment, the mandatory minimum sentence of imprisonment is currently one year in custody. The previous mandatory minimum sentence for this offence was 45 days in custody. The 45-day mandatory minimum sentence was proclaimed in force on May 1, 2008, when the Tackling Violent Crime Act, S.C. 2008, c.6 came into force. On August 9, 2012, through proclamation of the Safe Streets and Communities Act, S.C. 2012, c.1, Parliament amended the provision to reflect the one-year mandatory minimum sentence in circumstances where the Crown proceeds by indictment.
[21] During cross-examination, M.B. was questioned about when the sexual intercourse occurred. She said that it was some time between […] and September 1, 2012. She went on: “I cannot give you an exact date or date or time that it happened.” Given that the mandatory minimum sentence increased from 45 days to 1 year on August 9, 2012, and bearing in mind that M.B. is uncertain as to whether the sexual contact occurred before or after that date, the 45 day minimum is applicable. J.D. must be granted the benefit of any ambiguity as to the date upon which the intercourse occurred. The Crown agrees.
Sentencing Principles
[22] The crime of sexual interference is a serious one. It seeks to protect children from adult predators who prey on their youth and vulnerability. Except for some narrowly circumscribed and statutorily defined circumstances, through an expression of Parliamentary will, society has recognized that children are incapable of consenting to sexual relations. The public policy rationale behind prohibiting sexual contact with children is that they do not simply require, but deserve our protection. Young teenagers are no exception to the rule.
[23] When under the age of 16 years, children are in their formative stages and incapable of making decisions that touch on their sexual autonomy and integrity. Children are Canada’s most valuable resource. They are to be treasured, protected, and nurtured. Only in this way can we raise healthy youth who become healthy adults. Children deserve nothing less. Society deserves nothing less.
[24] Sexually interfering with them at the formative and vulnerable stages of their lives is antithetical to these important objectives. As Moldaver J.A., as he then was, put it in R. v. D.D. (2002), 2002 44915 (ON CA), 157 O.A.C. 323, at para. 35: “Our children are at once our most valued and our most vulnerable assets.” The law is designed to protect them from activity that can have lasting, lifelong adverse implications.
[25] The fact that a victim does not express active or outward physical or verbal resistance to the sexual advances of an accused is not a mitigating factor. Nor is it a mitigating factor that a child appears to acquiesce or even seek out the sexual attention of an adult. Where children appear to be seeking out such attention, it is often an outward manifestation of the child’s confusion arising from personal difficulties. It is the legal responsibility of adults who are faced with children who already exhibit signs of struggle, to protect them. Adults who see these situations as opportunities to satisfy their own sexual urges, are no better or worse than those who take steps to actively seek out their victims.
[26] There are numerous principles of sentencing involved in this case. They include denunciation, rehabilitation, deterrence, separation from society and promoting a sense of responsibility in the offender and acknowledgement of the harm done to the victim and community. While all of these principles are operative here, the primary sentencing principles that apply in this context are denunciation and deterrence. While these principles are well emphasized in the jurisprudence, they also find statutory expression within s. 718.01 of the Criminal Code.
[27] There is a broad range of sentence available for the type of conduct engaged in by J.D. A few cases are of particular note. In R. v. M.B., 2013 ONCA 493, the accused was convicted of sexual exploitation following a guilty plea. The victim was 16 years of age at the time of the offence and the accused was her manager. He had sexual intercourse with her. He received a 9 month sentence followed by 2 years probation. He submitted to the Court of Appeal that he should have received a 90 day intermittent sentence. Like J.D., this man was a first offender. The complainant had a number of difficult personal challenges. While he led fresh evidence on appeal, addressing his personal, work and family circumstances, the Court of Appeal upheld the sentence. Justice Strathy, as he then was, emphasized the vulnerability of young people. He commented on the “broad range of sentences” for this type of conduct, a range that is rooted in the “infinitely variable ways in which the offence can be committed”.
[28] In R. v. D.E., 2010 ONSC 7063, the victim was the young cousin of the accused. After a trial, he was found guilty of sexual exploitation and sentenced to 12 months imprisonment. The offence involved numerous incidents of sexual intercourse. The accused stood in a position of trust.
[29] In R. v. J.B., 2013 ONSC 6310, the accused was convicted of sexual interference. He had sexual intercourse with a person under the age of 16 years who was a friend of the family. The intercourse took place on four occasions. He was sentenced to two and a half years in custody. He was a first offender. In Charteris, [2010] O.J. No. 4861 (Sup. Ct.), the accused was a young man who had anal sex with a 13 year old foster child resident in the home where he lived with his parents. He received a sentence of 18 months incarceration with 2 years of probation.
[30] There is, indeed, a wide range of sentence in this area of the law. Much turns on the individual circumstances of the case and the offender.
Aggravating and Mitigating Factors
[31] Aggravating factors in this case include the following:
(i) The victim was babysitting the accused’s three-year-old son during the period of time he was having intercourse with her.
(ii) The sexual contact involved full intercourse and occurred on at least two occasions.
(iii) The victim was living in a homeless shelter, in less than ideal circumstances, with her father at the time of the sexual contact. She did not have the security of a home and was made more vulnerable by her living arrangements.
(iv) The victim considered the accused her friend. She needed a friend, not a predator.
[32] The mitigating factors include the following:
(i) J.D. has no criminal record.
(ii) He has demonstrated remorse through his guilty plea and apology to the court. I note, though, that it is far from an early guilty plea. Indeed, it is about as late a guilty plea as imaginable. The plea came so late that it did not preclude the victim from having to testify at both the preliminary inquiry and trial. While a plea will always act as a mitigating factor, bearing in mind its timing, the effect of the plea is muted in this case.
(iii) J.D. is motivated to receive counseling and improve his life. Bearing in mind his guilty plea and apology, I find that he is a candidate for rehabilitation and has potential to improve. He is currently involved in counseling and is taking an on-line computer course, learning a new skill. This all bodes well for his rehabilitation.
(iv) J.D. has suffered from mental illness his entire adult life.
(v) He is a father who has contact with and loves his children.
(vi) He has been on judicial interim release since the offence was reported to the police in 2012 and it has been without incident.
Conclusion
[33] In all of the circumstances, having regard to the aggravating and mitigating factors in this case, I find that a fit sentence is one of 15 months incarceration, followed by 2 years of probation. I order that the custodial authorities provide whatever counseling is available in the circumstances.
[34] The probation order shall include the mandatory terms in s. 732.1(2) of the Criminal Code, as well as the following additional conditions:
(i) Report to the probation officer within 2 working days of release from custody and then as directed by probation services.
(ii) Remain within the jurisdiction of court unless written permission to go outside of the jurisdiction is obtained by probation services or the court.
(iii) Do not communicate, directly or indirectly, with M.B.
(iv) Not to be in the company of a child under the age of 16 years, except his own children, unless in the company of another adult.
(v) Take such counseling, therapy and treatment as recommended by probation services and provide proof of compliance if required.
[35] In addition, J.D. is subject to the following orders:
(i) An order for the taking of DNA samples pursuant to s. 487.051 of the Criminal Code.
(ii) An order requiring J.D. to comply with the Sex Offender Information Registration Act for a 20 year period pursuant to ss. 490.012(1) and 490.013(2)(b) of the Criminal Code.
(iii) A weapons prohibition order under s. 109 of the Criminal Code for 10 years.
FAIRBURN J
Released: September 22, 2015
COURT FILE NO.: 14/105
DATE: 2015 09 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
J.D.
REASONS FOR SENTENCE
FAIRBURN J
Released: September 22, 2015