ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-10000517-0000

DATE: 20151217

B E T W E E N:

HER MAJESTY THE QUEEN

Rita Maxwell for the Crown

– and –

J.N.

Louis Strezos and Melissa Austen for Mr. J.N.

HEARD: November 27, 2015.

REASONS FOR SENTENCE

CORRICK J.

Introduction

[1] Following a trial before me, I found Mr. J.N. guilty of two counts of sexual assault, two counts of sexual interference, invitation to sexual touching and exposure for a sexual purpose. The details of the offences are set out in my Reasons for Judgment that I delivered on September 18, 2015.

Circumstances of the Offences

[2] Briefly, the facts giving rise to Mr. J.N.’s convictions are as follows. He was the G. family’s hairdresser. He provided his services to the family in their home. On a number of occasions, he cut M.G.’s hair. I found that between December 26, 2012 and August 5, 2013, Mr. J.N. hugged and kissed M. and touched his buttocks. I further found that on October 21, 2013, Mr. J.N. touched M.’s buttocks, placed M.’s hands over his clothed penis, exposed his penis twice, and attempted to have M. touch it.

Legal Parameters

[3] The offences of sexual interference, invitation to sexual touching and sexual assault are punishable on indictment by a minimum of one year and a minimum of ten years in prison. Exposure for a sexual purpose is punishable on indictment by a minimum of 90 days and a maximum of two years in prison.

Positions of the Parties

[4] Ms. Maxwell, on behalf of the Crown, seeks a prison term in the range of 15 to 18 months followed by a term of probation for two to three years. She argued that the imposition of the minimum term of imprisonment of 12 months would not adequately address the principles of sentencing that are of paramount importance in this case.

[5] Ms. Maxwell also seeks the following ancillary orders:

1. a DNA order;

2. an order that Mr. J.N. comply with the Sex Offender Information Registration Act;

3. a weapons prohibition order; and

4. an order, pursuant to s. 161, prohibiting Mr. J.N. from, (a) attending certain public places where it is reasonable to expect a person under the age of 16 to be, (b) being employed or being a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16, (c) having any contact with a person under the age of 16, and (d) being within two kilometres of M.G.’s residence.

[6] Mr. Strezos, on behalf of Mr. J.N., submits that a prison term of 12 months is adequate to address the principles of sentencing. He does not contest the imposition of the DNA, SOIRA and weapons prohibition orders, but submits that the orders pursuant to s. 161, other than the prohibition to stay away from M.’s residence, are unnecessary.

Circumstances of the Offender

[7] Mr. J.N. is 47 years old. He was born in El Salvador, the youngest of seven children raised by a single mother. He grew up in difficult circumstances as civil war broke out in El Salvador when he was 10 years old, and he was routinely exposed to violence in the streets. He escaped El Salvador when he was 17, travelling alone through Guatemala and Mexico to California. He came to Canada as a refugee when he was 21 years old, and became a Canadian citizen five years later.

[8] He has been in a stable relationship with his current partner for the past four years. In August 2015, they moved to Windsor where Mr. J.N.’s partner’s family resides.

[9] Mr. J.N. completed high school in El Salvador. In 1991, he completed a hair dressing program, and has been employed in that industry since. He is currently employed in Windsor, but returns to Toronto bi-weekly to service loyal clients.

[10] Mr. J.N. has no criminal record. A pre-sentence report prepared about him indicates that he does not suffer from a mental illness or abuse drugs or alcohol.

[11] Mr. Strezos filed seven character letters written on behalf of Mr. J.N. It is clear from these letters and from the pre-sentence report that Mr. J.N. has the support of his family, friends, and members of the larger community. Many of the authors of the letters continue to trust Mr. J.N. with their children. Mr. J.N. has a reputation for being a gentle, caring and honest person in the community.

[12] It appears from these letters that the commission of these offences is out of character for Mr. J.N.

Principles of Sentencing

[13] Sentencing is a difficult task for a trial judge in a case such as this, which involves an offender with no criminal record who has committed offences against a young person. In determining a fit sentence, I am guided by the sentencing principles set out in the Criminal Code.

[14] The fundamental purpose of sentencing, as set out in s. 718 of the Criminal Code, is to “contribute, along with crime prevention measures, to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that have one of six objectives. The objectives include denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community, and promoting a sense of responsibility in the offender and acknowledgement of the harm done to victims and the community.

[15] Any sentence I impose must be proportionate to the gravity of the offence and the responsibility of the offender: s. 718.1 of the Criminal Code.

[16] Keeping in mind the purposes of sentencing, I am also required by s. 718.2 to bear the following principles in mind when imposing sentence:

▪ the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

▪ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

▪ offenders should not be deprived of liberty if less restrictive sanctions are appropriate; and

▪ all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

Analysis

Similar Cases

[17] I am required to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. In that regard, I have reviewed the decisions to which Mr. Strezos and Ms. Maxwell have referred me in support of their positions.

[18] A review of the cases demonstrates that sentencing is not an exact science. It is instead a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case.

[19] It is clear from my review of the cases that the range of sentence for sexual offences committed against children is broad. The jurisprudence does, however, establish certain principles to be considered in determining the appropriate sentence in a case such as this. The Ontario Court of Appeal has made it clear that the principles of denunciation, deterrence, both specific and general, and the need to separate offenders from society must take precedence over other sentencing objectives in cases involving sexual offences committed against children.[^1] The paramountcy of the sentencing objectives of denunciation and deterrence in cases involving the abuse of children under the age of 18 years is now codified in s. 718.01 of the Criminal Code.

[20] Counsel agreed that Mr. J.N.’s conduct does not fall at the high end of seriousness on the spectrum of conduct for sexual offences committed against children. Courts have upheld sentences at the low end of the range for more serious conduct.

[21] The Court of Appeal in R. v. M.K.[^2] accepted the sentencing judge’s description of the sexual acts in that case as being at the lower end of the sentencing range. In that case, the complainant’s stepbrother touched the 11-year-old complainant’s vagina many times over a period of 18 months, once directly, but usually over her clothing. In addition, the complainant rubbed her vagina on the accused’s penis, and touched his penis both directly and over his clothing.

[22] In R. v. F.C.,[^3] the partner of the complainant’s mother touched the eight-year-old complainant’s vagina five times in two weeks. In upholding the trial judge’s sentence, Justice Trotter noted that that the trial judge accepted that the accused’s conduct was at the lower end of the spectrum of conduct caught by the sexual interference provisions of the Criminal Code.

Aggravating and Mitigating Factors

[23] As I have already indicated, s. 718.2 of the Criminal Code mandates a consideration of any relevant mitigating or aggravating circumstances related to the offence or the offender. I turn to those now. There are a number of mitigating circumstances in this case:

1. Mr. J.N. is a 47-year-old first offender.

2. He has been in a stable domestic relationship for the past four years, and has the support of his family and friends.

3. He has been steadily employed and a contributing member of the community since arriving in Canada in 1987.

4. The character letters submitted on his behalf demonstrate that he is well regarded in the community, and is seen as an honest, kind, thoughtful and hardworking person. Many of the authors of the letter continue to trust Mr. J.N. with their children notwithstanding their knowledge of these convictions.

5. The nature of the offences committed by Mr. J.N. fall at the low end of the spectrum of seriousness for these types of offences.

[24] There are also aggravating factors. Section 718.2(a)(ii.1) requires the court to consider M.’s age at the time of the offences as an aggravating factor. M. was 11 years old at the time. Although no Victim Impact Statement has been filed, it makes sense that these offences would have had some negative impact on M., given his young age and how frightened he was at the time. He testified that after he ran upstairs and told his mother what had happened, he started to have weird thoughts that Mr. J.N. might come upstairs and kill him. He was obviously traumatized at the time.

[25] I am unable to accept Ms. Maxwell’s submission that the extent of harm to M. was almost incalculable without any evidence. Ms. Maxwell relied on Justice Ratushny’s finding in R. v. Vincent.[^4] However, that finding was particular to the victim’s circumstances in that case, which were much different than M.’s circumstances.

[26] This was not an isolated incident, but rather a series of incidents that escalated in seriousness over the course of five or six visits. This, too, is an aggravating feature of the circumstances of the case.

[27] Ms. Maxwell submitted that the relationship between M. and Mr. J.N. had the hallmarks of trust, which the Criminal Code recognizes as an aggravating factor in s. 718.2(a)(iii). She submitted that Mr. J.N. was in a position of trust because he was welcomed into the G. home and given access to M. because Mr. and Mrs. G. trusted him.

[28] Whether Mr. N-Z abused a position of trust in relation to M. is a question of fact that must be determined having regard to the circumstances of the relationship between them. Relevant factors to consider when determining the existence of a position of trust include, “the age difference between the accused and the young person, the evolution of their relationship, and above all the status of the accused in relation to the young person.”[^5] The position of trust issue cannot be assessed simply from the perspective of M.’s parents, although this is a relevant and important factor to take into account.[^6]

[29] In my view, Mr. J.N. was not in a position of trust in relation to M. He had no special status vis-à-vis M., like that of a teacher, babysitter, or adult family member. M.’s parents had not delegated any particular responsibility for M. to Mr. J.N., other than to cut his hair. Mr. J.N. was M.’s mother’s hair stylist, who periodically cut M.’s hair.

Determination of a Fit Sentence

[30] The effect of the mandatory minimum sentences enacted in 2012 for sexual assault, sexual interference and invitation to sexual touching on the appropriate sentence in this case was the subject of argument before me. Madam Justice Arbour, writing in dissent in R. v. Morrissey,[^7] stated that mandatory minimum sentences act as an inflationary floor on the sentencing range, setting a new minimum punishment applicable to the “best offender.” Ms. Maxwell argued that Mr. J.N. is not the “best offender” because he committed more than a single assault, he did not terminate the assaults on his own volition, and he did not plead guilty. The court, therefore, ought to impose something more than the minimum sentence on Mr. J.N.

[31] I do not agree with that submission. Justice Arbour was considering minimum sentences in the context of a constitutional challenge. Her comments about the inflationary floor were made when she was noting that even the “best offender” must receive the minimum sentence. She did not define “best offender” nor did she say that only “best offenders” are entitled to receive the minimum sentence. Within the same paragraph, Justice Arbour made two things clear. First, mandatory minimum sentences must be read consistently with the principles of sentencing set out in the Criminal Code. Second, the principle of proportionality and the requirement that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances were not repudiated by the enactment of mandatory minimum sentences.

[32] In all of the circumstances of this case, including Mr. J.N.’s lack of a criminal record and excellent prospects for rehabilitation, M.’s age and the impact of the offences on him, I have concluded that a sentence of 12 months imprisonment to be followed by a period of probation for two years concurrent on each charge adequately addresses the principles of deterrence and denunciation in this case.

[33] The terms of probation are as follows :

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so;

3. 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;

4. refrain from any direct or indirect contact or communication with M., S. and R.G. and A.K.G.; and

5. attend any assessment, counselling or rehabilitative programs as directed by your probation officer, and sign any releases necessary to allow your probation officer to monitor your compliance with this condition.

[34] I understand from counsel that my language in paragraph 69 of my Reasons for Judgment was not clear about whether the same acts formed the basis of the convictions on counts #3 and 4. To be clear, I found that the same acts committed by Mr. J.N. between December 26, 2012 and August 5, 2013 formed the basis of the convictions on counts #3 and 4.

[35] Further to that clarification, the findings of guilt on counts #3 and 8 are conditionally stayed pursuant to the rule against multiple convictions set out in R. v. Kienapple.[^8]

Ancillary Orders

[36] In addition, the following mandatory orders will be made:

1. an order under s. 487.051 permitting the taking of bodily samples from Mr. J.N. as may be reasonably required for the purposes of a forensic DNA analysis;

2. under s. 109 of the Criminal Code Mr. N-Z is prohibited from possessing any firearm, ammunition, explosive substance or other item enumerated in the section for a period of 10 years; and

3. under s. 490.012 of the Criminal Code Mr. N-Z is required to comply, as soon as it is possible to do so, with the Sex Offender Information Registration Act for a period of 20 years.

[37] In contrast to the above orders, the relief requested by Crown counsel pursuant to s.161 is discretionary, rather than mandatory.

[38] In the circumstances of this case, I think it appropriate to make an order pursuant to s.161(1)(a.1) prohibiting Mr. J.N. from being within two kilometres of any dwelling house where M.G. ordinarily resides. It is also appropriate to make an order pursuant to s. 161(1)(b) prohibiting Mr. J.N. from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, 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. Both of these orders will be for a period of ten years.

[39] I am not persuaded that additional prohibitions pursuant to s.161(1)(a) and s.161(1)(c) of the Criminal Code are necessary or appropriate in the circumstances. There is nothing in the circumstances of the underlying offences to suggest that Mr. J.N. poses a danger to children in public places. There is also nothing in the circumstances to suggest that children are at risk of being contacted by Mr. J.N. An order made pursuant to s. 161(1)(c) prohibiting Mr. J.N. from any contact with a person under the age of 16 years may interfere with his employment in the hair salon and impede his rehabilitative efforts. In the exercise of my discretion, I decline to make those orders.

Conclusion

[40] In addition to the ancillary orders I have already outlined, Mr. J.N. is sentenced to 12 months imprisonment, concurrent on all counts, followed by two years probation. The findings of guilt on counts #3 and 4 are conditionally stayed.

Corrick J.

Released: December 17, 2015

[^1]: R. v. D. (D.) (2002), 2002 44915 (ON CA), 157 O.A.C. 323; R. v. Woodward, 2011 ONCA 610.

[^2]: 2015 ONCA 563

[^3]: 2011 ONSC 7037

[^4]: 2014 ONSC 1968

[^5]: R. v. Audet, [1996] 2 S.C.R. 171 at para. 38, 1996 198 (SCC)

[^6]: R. v. L. (D.B.) (1995), 1995 2632 (ON CA), 101 C.C.C. (3d) 406 (Ont. C.A.)

[^7]: 2000 SCC 39, [2000] 2 S.C.R. 90 at para. 75

[^8]: (1975), 1974 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.)