CITATION: R. v. J.H., 2015 ONSC 6482

COURT FILE NO.: 12-SA5106

DATE: 2015/10/28

PUBLICATION BAN IN EFFECT UNDER S. 486.4

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.J.H.

Accused

Mike Boyce, for the Crown

David Hughes, for the Accused

HEARD: October 13, 2015

REASONS FOR JUDGMENT RE SENTENCING

Aitken J.

Offences

[1] On June 25, 2015, I found J.H. guilty of 15 offences against his cousin, J.N.: five counts of sexual assault under s. 271(1) of the Criminal Code, R.S.C. 1985, c. C-46, five counts of sexual interference under s. 151 of the Code, and five counts of invitation to sexual touching under s. 152 of the Code. The circumstances of the offences and the context in which they occurred were set out in detail in my written reasons released on that date, and I will not repeat them now.

Kienapple Principle[^1]

[2] The Kienapple principle precludes multiple convictions for two offences arising out of the same transaction in circumstances where the essential elements of the offences are meant to cover the same wrong. The sexual assault and sexual interference charges arise from the same facts, namely, J.H. touching J.N. in circumstances of a sexual nature or for a sexual purpose. There is the additional requirement for the offence of sexual interference that the victim be under the age of 16 years. J.H. cannot be punished for both of these offences arising from the same transaction as, to do so, would amount to punishing him twice for the same wrong. The five convictions for sexual assault shall be conditionally stayed and sentencing shall proceed on the five counts of sexual interference.

[3] The offence of invitation to sexual touching focuses on the accused inviting or encouraging the victim to do something for a sexual purpose; it does not focus on the accused touching the victim in circumstances of a sexual nature or for a sexual purpose. Therefore, the essential elements of the invitation to sexual touching differ from those of sexual assault or sexual interference. That being said, in regard to counts 3, 9, 12, and 15, the invitation or encouragement for J.N. to touch J.H. for a sexual purpose occurred in the context of J.H. touching J.N. for a sexual purpose. The sexual interactions were a cohesive whole, with the invitation to sexual touching being embedded within those interactions. Additional punishment is not justified for counts 3, 9, 12, and 15. Those counts are therefore conditionally stayed.

[4] There is a difference with the invitation to sexual touching conviction in regard to count 6. After J.H. had performed oral sex on J.N. in S.W.’s bedroom, J.H. took his penis out of his jeans and asked J.N. if she would like to perform oral sex on him. She declined. This involved a separate step in the sexual activities that had come before and, although the activities occurred over a short period of time and flowed together, J.H.’s production of his penis and his invitation to J.N. to perform oral sex on him, took the sexual activity to another level or another stage. He was asking J.N. to do something that she had never done before, something that she did not feel comfortable doing. He was initiating her into new territory. In my view, additional punishment in regard to this count, in addition to the count of sexual interference relating to the sexual interactions in S.W.’s bedroom, is justified.

[5] In summary, J.H. will be sentenced in regard to counts 2, 5, 6, 8, 11 and 14. The balance of the convictions will be conditionally stayed.

Positions of the Crown and Defence

[6] As of August 9, 2012, the offences of sexual interference and invitation to sexual touching carried mandatory minimum sentences of one year imprisonment.

[7] Crown counsel seeks a global sentence of four years.

[8] Defence counsel argues for a global sentence of two years less a day plus probation.

[9] A conditional sentence is unavailable in this case in that the index offences all come with a mandatory minimum period of incarceration.

J.H.’s Circumstances

[10] J.H. is single, 38 years old, and unemployed, despite being a talented artist, musician, and computer expert. J.H. struggled at school due to both behavioural and academic issues, but managed to complete grade 11 through working in a co-op program. He attended Algonquin College to study graphic design, and was recognized there as an excellent artist, but he left after one semester to follow his dream of having his own business. At the age of 19, he started his own advertising, graphic design and video/audio production company. From 1996 to 2012, J.H. operated his business, first on his own, and then in partnership with S.W. who, by 2007 had become his girlfriend. After these charges were laid, J.H. transferred his interest in the partnership to S.W., while continuing in an advisory and supportive role in regard to the technical aspects of the business.

[11] J.H. did not have the easiest of childhoods, being the son of an alcoholic and abusive father and a neglectful and non-protective mother. When he was three years of age, he went into care until his mother, C.G., left his father and established a separate residence. J.H. then lived with his mother, younger brother, and younger half-sister, C.H., until adulthood. J.H. is not close to his mother, and was not close to his mother’s common law spouse who shared the home when J.H. was between the ages of 8 and 18. J.H. and his brother fought incessantly, and his brother went on to a life of crime. J.H. has remained close with his sister, and several of his nieces and nephews. He has lived with her since these charges were laid. He has never married and has no children.

[12] S.W., C.G., and C.H. all described J.H. as being intelligent, caring, and generous. C.H. was particularly complimentary of the attention and support J.H. bestowed on his nieces and nephews.

[13] J.H. has expressed no remorse in regard to anything that occurred between himself and J.N., and he is supported in this position by his family. As expressed by the probation officer who prepared the Pre-Sentence Report:

The subject did not appear to express any sentiments of remorse and minimized his responsibility overall by accusing the victim and her immediate family of lying about the offences before the Court. He denied any awareness of wrongdoing and only commented on his own pain and suffering as a result of his arrest. He did not appear to recognize the negative impacts of his actions regarding the victim or her family, whatsoever.

[14] I hasten to add that it is J.H.’s right to maintain his innocence throughout these proceedings. However, the absence of remorse means that he cannot rely on remorse as a mitigating factor on sentencing. As well, the absence of remorse and assumption of responsibility speaks to the potential risk J.H. may present to other teenagers if in the community. Finally, if J.H. does not recognize the seriousness or the moral culpability of what I found he did, then he is unlikely to benefit from counselling aimed at sexual offenders.

[15] J.H. has no criminal record and no outstanding charges against him.

Report of Dr. Jonathan Gray

[16] Dr. Jonathan Gray, a forensic psychiatrist at the Royal Ottawa Mental Health Centre completed a court-ordered sexual behaviours assessment in September 2015. That assessment consisted of four lines of investigation: an in-person psychiatric interview, a battery of biochemical laboratory tests, a series of self-reported psychological questionnaires, and phallometric testing.

Psychiatric interview

[17] J.H. did not report to Dr. Gray any symptoms, behaviour, or episodes suggestive of any form of mental illness. The sexual history he reported to Dr. Gray was unremarkable. J.H. denied being attracted to pubescent or prepubescent males or females, and Dr. Gray saw no evidence suggesting that J.H. is a pedophile.

Biochemical laboratory tests

[18] J.H.’s hormonal tests were within the range of normal for his sex and age.

Self-reported psychological questionnaires

[19] On the sexual functioning inventory scale, J.H.’s profile was relatively normal, with the only very low score suggesting he displayed symptoms of anxiety, which could impair sexual functioning.

[20] J.H.’s scores in regard to propensity towards physical aggression, verbal aggression, anger, and hostility were low. He scored within normal ranges in regard to impulsivity.

[21] There was no indication on the questionnaires that J.H. struggled with alcohol or drug dependency, and he reported no difficulties in this regard.

[22] There was no evidence that J.H. had cognitive distortions regarding children and sexuality.

[23] J.H. scores on the deception scale were average, suggesting he was not trying to portray himself in an overly positive light and is well-aware of his character deficiencies.

Phallometric testing

[24] Dr. Gray reported that, overall, J.H. was a “low responder” on the phallometric testing, meaning that he did not demonstrate significant arousal to enough stimuli to discern a sexual preference. In Dr. Gray’s view, it is highly unlikely that J.H. is sexually attracted to pre-pubescent children.

Risk Assessment

[25] J.H. received a score of 1 on the STATIC-2002-R, a well-recognized actuarial risk assessment instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders. With a score of “1”, J.H. is in the lowest of five ascending risk categories, with 84.8 to 95.4 percent of Canadian sexual offenders being at a higher risk of reoffence. This was based on the assumption that J.H. will be under 40 years of age when released from incarceration. If J.H. remains incarcerated past the age of 40, his score would be “0”, and he would pose an even lower risk. These risk categories were calculated without reference to the evidence of H.W. regarding J.H.’s sexual conduct with her when she was between 12 and 14 years of age.

[26] Dr. Gray summarized his risk assessment of J.H. as follows:

[J.H.’s] overall risk of sexual or violent re-offence is low. Despite that, he has more than once continued an inappropriate romantic relationship with an underaged female while in a position of trust and authority over them. He appears wilfully blind to the effects of his actions and the influence he may have over them as an older male in a position of trust and authority. Although he expressed regret over his actions with respect to his partner’s daughter in 2002, he engaged in very similar behaviour with his first cousin with respect to the index offences. By his own description, his motivation appeared similar for his conduct towards both [H.W.] and [J.N.]. He appeared to be flattered by the attention he would get from these younger females, and convinced himself that he was assisting them with their problems while at the same time engaging them in sexually inappropriate activities.

In order to prevent another reoccurrence of the same sort of events in the future, it would be very important as a term of probation that [J.H.] not be permitted any unsupervised contact with underaged females. He should especially be prohibited from taking on a position of trust and authority of underaged females. While under community supervision, a supervising officer should take careful note of his relationsihps and whether he is beginning to establish emotional ties with the children of his future romantic partners or other associates.

Victim Impact Statements

[27] In her victim impact statement, J.N. described how she had never had a boyfriend before, how she had fallen in love with J.H., how he had promised to take her pain away, but how he had added greatly to the pain and sadness in her life. She feels betrayed, and she wonders how she will ever trust a man in the future. She believed J.H. when he said that they had a special bond and that he loved her, but now she knows that he was just manipulating her to get what he wanted. He did not care about her or the impact this actions would have on her life and the life of her family. That family is now divided, with the N.s supporting J.N. and with the G.s supporting J.H.

[28] As a result of J.H.’s behaviour and the ensuing family division and court case, J.N.’s mental health has deteriorated. Her thoughts of suicide and episodes of self-harming behaviour have increased. She is depressed. She has trouble sleeping. She has flashbacks. She started smoking to reduce her stress. She got in with the wrong crowd and ended up dropping out of school. Her educational goals have been altered. Her friendships have suffered. She has felt increasingly isolated. J.N. has had to take medication for her depression, and she has had repeated trips to and stays at C.H.E.O. Despite medical intervention and hours of counselling, her emotional health remains fragile.

[29] As L.N. expressed in her victim impact statement, the past three years have been sheer hell for the N. family. In addition to coping with J.H.’s betrayal of their trust and friendship, L.N., R.N., and their sons have lived in constant fear that J.N. will commit suicide if left alone. The family has had to pull together to provide a safety net for J.N. – an exhausting exercise for her parents, and a frightening environment for her siblings. L.N. has had to take J.N. to countless appointments with medical professionals and teachers. L.N. has not been able to work in the family business as she had done previously, and this has had significant financial ramifications for the family. During the course of this trial, lives have been put on hold due to the family’s preoccupation with what has happened.

[30] Despite the emotional trauma experienced by J.N. and her parents, I would like to observe that they have shown resilience and courage throughout this trial process, and clearly have the support of close family members in doing so. Members of the family have been in court during every day of the trial, and this must give J.N. and her parents added strength. J.N. herself has endured days and days of cross-examination during the preliminary hearing and at trial – and she survived that and had her voice heard. She had the courage and determination to read her victim impact statement in court, despite the pain it caused her to do so. I am very hopeful that she will get through this ordeal and move forward to happier times.

Objectives of Sentencing

[31] The key objectives that guide my sentencing of J.H. are: (1) denunciation of sexual crimes against children, which can have such a devastating impact on victims; (2) denunciation of the significant breach of trust by a person in a position of trust or authority which, again, can have such a detrimental psychological impact on the child; and (3) general deterrence to reinforce not only to J.H., but to others as well, the importance of protecting children and not exploiting them sexually.

Legal Principles

[32] Recently, in R. v. D. 2015 ONSC 3394, at paras. 22-29, I summarized the legal principles guiding the courts in the sentencing of adults who sexually abuse children, and I will repeat those general principles here.

[33] In R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), Moldaver J.A. (as he then was), after reviewing the dire consequences that can flow from the sexual abuse of a child, went on to summarize the range of sentences that can be expected when children are sexually abused. He stated, at para. 44:

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. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[34] In R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, Moldaver J.A., again writing for the court, reiterated, at para. 72, how children are our most valued and our most vulnerable assets and how we, as a society, owe it to them to protect them from the harm caused by sexual predators. For that reason, when sentencing adult sexual predators who have exploited innocent children, “the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it” (para. 76). This is why the objectives of denunciation, deterrence, and the need to separate sexual predators from society take precedence over the effects of a conviction on the offender and the offender’s prospects for rehabilitation, important as those considerations are (para. 76).

[35] In R. v. D.M., 2012 ONCA 520, Feldman J.A., writing for the court, reiterated the principles set out in D.D. and Woodward, and concluded that, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.

[36] In R. v. D.M., 2012 ONCA 894, 295 C.C.C. (3d) 159 [D.M.2], D.M. was found guilty after trial of sexually molesting his step-daughter repeatedly over an eight-year period when she was between 11 and 20 years old. The acts of molestation consisted of sexual touching and digital penetration, but not intercourse. Although D.M. acknowledged his acts of wrong-doing to his step-daughter and to the Children’s Aid Society, at trial, he only acknowledged culpability in regard to a few isolated acts of sexual touching. The trial judge sentenced D.M. to five years imprisonment. The Court of Appeal reduced the sentence to four years. Laskin J.A. observed that, in cases where the Ontario Court of Appeal had either upheld or imposed penitentiary sentences of five years or more, one or more of the following aggravating circumstances were present:

• Sexual intercourse (vaginal or anal)

• Oral sex

• Incest

• More than one victim

• Grooming of the victim

• Other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret

• A previous criminal record for sexual abuse.

[37] In D.M. 2, none of these aggravating factors was present. Despite that, the Court of Appeal found that the frequency and duration of the abuse, the fact that it continued even after D.M. acknowledged his wrong-doing and had apologized for it, and the absence of mitigation through real remorse and a guilty plea, meant that a four-year sentence was justified.

[38] In R. v. B.(R.), 2013 ONCA 36, an uncle was convicted of historical offences of sexual assault, sexual interference, sexual exploitation, and invitation to sexual touching in regard to the sexual abuse of his niece when she was between the ages of six and fourteen. The sexual contact had progressed from sexual touching to sexual intercourse. At the Court of Appeal, the conviction for sexual interference was conditionally stayed, and the Court upheld sentences of five years for sexual assault, four years for sexual exploitation, and one year for invitation to sexual touching, all to be served concurrently.

Analysis

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

• J.N. was 15 when the offences occurred. Under s. 718.2(a)(ii.1)[^2] of the Code, this is an aggravating factor. J.H. was 35 at the time of the offence. That is a very significant age difference. J.H. was well beyond the age where he might be able to claim that the foolishness or naiveté of youth played a role.

• J.H. was in a position of trust and authority in regard to J.N. S.W., with the consent of L.N., J.N.’s mother, had asked J.H. to take an interest in J.N. because she was going through tough adolescent times. Although J.H. and J.N. were technically cousins, their 20-year age difference meant that J.H. was more like an uncle than a cousin to J.N. and, ostensibly, he assumed the role of an uncle entrusted with fostering the welfare of a troubled niece. When L.N. let J.N. and her brothers spend time with J.H., it was on the understanding that he was the adult in charge of J.N. and her brothers. J.H. abused his position of trust and authority in regard to J.N. Under s. 718.2(a)(iii)[^3] of the Code, this is an aggravating factor.

• In the summer and early fall of 2012, J.N. was particularly vulnerable. She was depressed and engaging in self-harming activities. She was feeling alienated from her parents. Her grandfather, with whom she was close, had died. She had been struggling in school, both academically and socially. J.H. was aware of J.N.’s vulnerability; in fact, he had been tasked with letting her open up to him. He was supposed to provide understanding and support. Instead, he increased J.N.’s problems many-fold and further endangered her already fragile mental health.

• J.N. trusted J.H. with her innermost thoughts and emotions. She opened up to him and shared her vulnerabilities. In fact, it was precisely after she had told him about her suicidal thoughts and unhappiness that some of the sexual offences occurred. This has fuelled her profound sense of betrayal.

• J.H. misled J.N. into believing that the two of them were in a romantic, boyfriend/girlfriend relationship – something that was special, and that would carry on into the future. He encouraged her to believe this through his countless communications with her during July, August, and early September, 2012, in the form of text messages, cellular calls, and other forms of electronic communications. It was only because J.H. encouraged J.N. to have this distorted belief in the nature of their relationship that she agreed to engage in sexual activities with him.

• J.H. continued his highly inappropriate behaviour toward J.N. even after repeated warnings from others. In July, S.W. warned J.H. twice about cuddling with J.N. on the couch and on the floor in S.W.’s basement. She made J.H. tell L.N. about these episodes. It was clear to J.H. that both S.W. and L.N. considered the physical closeness between J.N. and J.H. inappropriate. Subsequently, after L.N. had found J.H. and J.N. alone in a darkened basement, L.N. told J.H. that he had to notify herself or her husband if he was planning on coming to their home. Again, it was clear to J.H. that L.N. had not approved of him being alone in the dark with J.N. On one occasion, S.W. observed that J.N. had sent J.H. an email saying that she loved him, and S.W. warned J.H. that this was inappropriate. J.H. brushed off this warning, like the rest. On the Labour Day weekend, both S.W. and L.N. independently confronted J.H. about the romantic and sexualized text messages that he and J.N. had been exchanging. Although J.H. acknowledged that he had become emotionally involved with J.N., and this had been wrong, he did not discontinue his interactions with J.N. In fact, on the first day of school, he arranged to meet J.N. and, together, they plotted as to how they would continue their relationship despite J.H. being told by S.W. and L.N. not to have any further contact with J.N.

• What happened was not an isolated incident.

• J.H. told J.N. to delete the text messages between them so that no one else would find them. It is clear that J.H. knew that what he was doing with J.N. was wrong. He counselled J.N. not to confide in other adults about what was going on between the two of them.

• J.H. knew very well that being romantically or sexually involved with a young teenager was not appropriate. He acknowledged having kissed H.W. when she was 12 or 13 years of age. When S.W. found out about what had happened, she had kicked J.H. out of her home, and their romantic relationship had been suspended. J.H. was not naïve or lacking in an understanding that what he was doing with J.N. was wrong. Despite this knowledge, he continued along the path of a sexual relationship with J.N.

• Although s. 718(a)(iii.1) of the Code was not in effect when these offences were committed, it has always been recognized that the impact an offence has on its victim, and on the family of the victim, is one factor that can be considered on sentencing. In the case of sexual offences against children, this is a very important factor.[^4] The victim impact statements, which I have reviewed, are painful descriptions of the devastating ramifications of J.H.’s conduct.

[40] Certain other aggravating factors are absent:

• There were not multiple victims.

• There was no vaginal or anal intercourse.

• Although all sexual offences inherently embody violence, there was not the level of physical aggressivity in this case that is often present in sexual assault cases.

• The incidents occurred over a period of weeks, not months or years. This is not a case where the abuse occurred repeatedly over a lengthy period of time, thus destroying most of a person’s childhood.

• There is scant evidence to suggest that J.H. poses an on-going threat as a sexual predator.

[41] The mitigating factors are the following:

• J.H. has no criminal record.

• He has been a contributing member of society throughout most of his adult life.

• J.H. has the support of his family, though this is a very minor mitigating factor. J.H.’s family has vilified the victim and has blamed her for J.H.’s current predicament. This attitude is unlikely to be helpful to J.H.’s rehabilitation as a law-abiding citizen.

• The offences happened approximately three years ago, and J.H. has been living in the community since then with no suggestion that he has breached any of the terms of his interim release.

• Dr. Gray’s assessment, based on the four types of investigations conducted in the context of the Sexual Behaviours Assessment, is that J.H. poses a low risk of reoffending.

[42] J.H. cannot rely on the presence of remorse or insight and assumption of responsibility as a mitigating factor because he has not shown any.

Disposition

[43] J.H., please stand up. Taking all of these factors into account, I am sentencing you to a global sentence of three and a half years in penitentiary. This can be broken down to three and a half years for counts 5, 11, and 14; two years for counts 6 and 8; and one year for count 2, all to be served concurrently.

[44] J.H., under s. 487.051 of the Code, you will be required to provide a DNA sample.

[45] You will also be required to comply with SOIRA for 20 years under s. 490.012(1) and s. 490.013(2.1) of the Code.

[46] During the period of your sentence, you shall be prohibited from communicating, directly or indirectly, with J.N. or any members of her immediate family, including her parents and siblings, under s. 743.21(1) of the Code.

[47] Under s. 161(1)(b) of the Code, 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. This prohibition shall be in effect for 20 years from the date of your release from incarceration.

[48] Finally, you will be subject to a weapons prohibition order under s. 109(1)(a) and s. 109(2)(a) and (b) of the Code for a period of 10 years.

Aitken J.

Released: October 28, 2015

[^1]: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, and R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480. [^2]: As it was worded when the offences occurred. [^3]: As it was worded when the offences occurred. [^4]: See R. v. Woodward, supra.