ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. F.L., 2016 ONSC 1215
COURT FILE NO.: CRIM J(P) 670/14
DATE: 2016 02 18
BETWEEN:
Her Majesty the Queen
E. Beaton, for the Crown
- and -
F.L.
A. Diniz, for the Offender
Offender
HEARD: January 4, 2016
REASONS FOR JUDGMENT
LeMay J.
[1] After a five day non-jury trial, F.L. was found guilty of sexual assault, sexual interference and invitation to sexual touching. On sentencing, the Crown seeks a sentence in the range of 7 to 9 years. The Crown also seeks a DNA Order, a SOIRA Order for life and a section 161 Order. The Defence argues that a sentence in the range of 3 to 4 years is appropriate.
[2] The arguments of counsel also raised two issues relating to the principles in Kienapple v. R (1974 14 (SCC), [1975] 1 S.C.R. 729). First, Crown Counsel argues that I should stay only the sexual assault charge, and should enter a conviction on both the sexual interference and invitation to sexual touching charges. The defence opposes this argument, and says that I should only enter a conviction on one charge, but that the conviction should be entered on the sexual assault charge only. I will address both issues in the course of these reasons.
Facts
[3] F.L. was in a common law relationship with and/or married to the victim’s mother from 1997 to 2005. He was the victim’s stepfather, and lived in the same house with her when she was between the ages of 2 and 10. Once he moved to his own apartment, the victim continued to visit him on a regular basis. The victim, who had very limited contact with her biological father, treated F.L. as her father and they had a very close relationship.
[4] F.L. started to sexually abuse the victim when she was five or six years old. The abuse involved having the victim touch F.L.’s penis and perform oral sex on him until he ejaculated. This happened on a regular basis, sometimes two or three times a week. Once the victim was older and F.L. was living in his own apartment, the assaults would take place on most of the occasions when the victim visited F.L. Once F.L. was living in his own apartment, there were at least two occasions in which he had anal sex with the victim, again until he ejaculated.
[5] These assaults would generally start with either a sign, where F.L. would put his fingers in the palm of the victim’s hand or if they were alone, they would discuss what would happen. As I have indicated, the assaults would end with the offender ejaculating.
[6] These assaults continued until sometime in 2010, the year when the offender turned fourteen (14).
The Offender
[7] F.L. was born in Brazil, where his parents were farmers. His father was an alcoholic who was sometimes verbally abusive. F.L. would be spanked as a child, but did not disclose any other history of abuse or neglect. He had 11 siblings, most of whom he is not in contact with. He still has some contact with his mother, with whom he has a good relationship.
[8] He worked on his parents’ farm starting when he was about seven (7) years old, and worked there while he was completing his schooling.
[9] F.L. has been married three times. The first marriage took place when he was 23, and was for the purposes of permitting him to immigrate to Canada. This marriage ended after a year.
[10] F.L.’s second marriage was to the victim’s mother, A.C. F.L. and A.C. entered into a common law relationship sometime in August of 1997. They lived in A.C.’s house with the three children that A.C. had from a previous marriage, including the victim. In April of 1999, A.C. gave birth to a daughter, who is also F.L’s daughter.
[11] The relationship between A.C. and F.L. ended on November 1st, 2005, and F.L. went to live in his own apartment. He met his third wife, who lived in Brazil, over the internet in 2008. She emigrated to Canada, and arrived on June 30th, 2010. They were married on July 16th, 2010 and have one son, who is currently four years old.
[12] F.L works in construction, and it is clear from the numerous letters of reference that were filed on his behalf, that his work is well respected and that the people he has contact with view him as a good employee and a good father to his son.
The Victim
[13] No victim impact statement was filed in this case. However, the victim, S.C., testified at trial as did her mother, A.C. From that testimony, some facts emerge that are relevant on sentencing.
[14] First, there was a close relationship between the victim and F.L. S.C. thought of F.L. as her father, and he treated her as his daughter.
[15] Second, the assaults had a significant effect on S.C. It is clear from the evidence that the assaults played at least some role in her attempted suicide at the end of 2010.
The Kienapple Issues
[16] As I noted at the outset, there are issues about which charge or charges a conviction should be entered on, and which charge or charges should be stayed. I will deal with each of those issues in turn.
a) Should More than One Conviction Be Entered?
[17] The Crown argues that convictions should be entered on both the sexual interference and the invitation to sexual touching charges. In the Crown’s view, these charges are sufficiently different that they do not attract the application of the principle in Kienapple, supra. I disagree.
[18] My analysis starts with Kienapple itself, where Laskin J. (as he then was) stated:
I cannot view s. 11 as modifying the scope of res judicata, let alone the scope of the plea of autrefois as defined in ss. 535 to 537 of the Criminal Code. The relevant inquiry so far as res judicata is concerned is whether the same cause or matter (rather than the same offence) is comprehended by two or more offences. Moreover, it cannot be the case that if an accused is tried on several counts charging different offences, he is liable to be convicted and sentenced on each count, and yet if he was tried and convicted on one only he would be entitled to set up the defence of res judicata as a defence to other charges arising out of the same cause or matter.
[19] It is important to remember that the same “delict, matter or cause” is broader than the same offence. This is explained in R. v. Prince (1986 40 (SCC), [1986] 2 S.C.R. 480) where Dickson C.J.C. stated (at paragraphs 14 and 15):
What was new in Kineapple relative to Quon (though not to Siggins) was the abandoning of an attempt to give effect to a rule against multiple convictions by “reading down” a Criminal Code provision. What was also new was an express recognition that the test for the application of the rule had to be framed not in terms of whether the offences charged were the “same offences” (or “included offences”), but in terms of whether the same “cause”, “matter” or “delict” was the foundation for both charges.
This second change acknowledges that “offence” is a term of art and any given offence cannot be “the same as” or “included in” any other offence unless there is a precise correspondence in the definition of the offences. In the words of Lord Devlin, “legal characteristics are precise things and are either the same or not”: Connelly v. D.P.P., [1964] A.C. 1254 (H.L.) See also Klink, supra, at p. 285. In short, I believe it was the acknowledgment of the independent legal identity of different offences which led the majority in Kienapple to its careful choice of the words, “cause”, “matter”, or “delict” in lieu of “offence”.
[20] In the case before me, I am of the view that the sexual abuse perpetrated by F.L. on S.C. all flows from the same delict, matter or cause. The assaults all followed the same pattern, and all involved elements of the offences of invitation to sexual touching, sexual interference and sexual assault. Two of the three charges should therefore be stayed. The question is which two?
b) Should the Conviction Be for Sexual Assault?
[21] The offender argues that a conviction should only be entered for sexual assault, and that the sexual interference and invitation to sexual touching charges should be stayed. The Crown argues that, if a conviction is only going to be entered on one charge, it should be the sexual interference charge. I agree with the Crown.
[22] The offender argues that the sexual assault charge is the most serious of the charges. I do not agree for two reasons. First, given the age of the Complainant and the fact that the Crown has proceeded by way of indictment, the sentences for both offences are the same. Second, one of the required elements of the sexual interference charge is that the victim must have been under the age of fourteen at the time that the assaults took place. This is not an element of the offence of sexual assault.
[23] This brings me to why a conviction for sexual interference is more appropriate in this case. In my view, the sexual interference charge is a more precise and complete explanation of the crime that was committed in this case. It includes a recognition that the crime was committed against a victim who was a child. This is, in my view, a key element of this case.
[24] Counsel for the offender pointed to the decision in R. v. J.J.B. (2013 ONCA 268) as a case where the charges of sexual interference were stayed and a conviction was entered for sexual assault (see paragraph 115). In that case, however, both the offender and the Crown agreed on which charges should be stayed, and the Court did not have to consider the arguments I have reviewed in this case.
[25] Accordingly, a conviction will be entered on the sexual interference charge, and the other two charges will be stayed.
Mitigating Factors
[26] The mitigating factors in this case are:
a) F.L. is a mature first-time offender.
b) F.L. is a productive member of the community, and has a family.
Aggravating Factors
[27] The aggravating factors in this case are:
a) The fact that F.L was in a position of trust with the victim, as her stepfather, and the fact that he abused that position of trust. This is a very significant aggravating factor. Indeed, it is one of the statutory aggravating factors under section 718.2 of the Criminal Code.
b) The age of the victim, who was 5 or 6 when F.L. started to assault her. This is also a very significant aggravating factor as this is a very young age. Indeed, it is also one of the statutory aggravating factors under section 718.2 of the Criminal Code.
c) The length of time that the assaults took place, over a period of approximately nine (9) years
d) The offender had anal sex with the victim on at least two occasions.
e) The impact of the offences on the victim.
Purposes and Principles of Sentencing
[28] Given the facts of this case, there are some additional statutory principles of sentencing that apply. These are set out in section 718 and 718.01 of the Criminal Code. Section 718.01 is particularly important in this case. It states:
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. 2005, c. 32, s. 24.
[29] There are principles in the case-law that also apply. The leading case in Ontario on sentencing principles in this type of case is R. v. D.D. ((2002) 2002 44915 (ON CA), 58 O.R. (3d) 788). After a detailed review of the law, Moldaver J.A. (as he then was) stated (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 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. (See, for example, R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R v. W. (L.K.) (1999), 1999 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)
[30] In the case before me, the offences seem to fit almost at the edge between the type of offences that attract mid to upper single digit sentences, and those that attract upper single to lower double digit sentence ranges. There was no overt additional or gratuitous violence beyond the sexual assault in this case. However, there was the sexual abuse of a young child on a regular and persistent basis over a substantial period of time that included at least two instances of full anal intercourse. It was a horrible breach of trust.
[31] In addition to this case, the Crown directs me to two other decisions that support its position on sentencing. First, in R. v. C.K. (2015 ONCA 747), C.K. was convicted of sexually abusing his grandsons over a period of approximately ten years, beginning when the younger one was about five years old. The sexual abuse included fondling, masturbation, oral sex and anal sex. The Court of Appeal upheld a sentence of ten years as being within the range of sentences identified by the Court of Appeal for these type of offences.
[32] Second, in R. v. J.N. (2013 ONCA 251), JN was convicted of sexually abusing his stepdaughter from the time that she was six or seven until she was fourteen years old. The abuse occurred three to four times a week and included touching and digital penetration of the victim’s vagina. The Court of Appeal upheld a sentence of seven years as clearly being within the range of appropriate sentences for this type of cases.
[33] Both of these cases, and the decision in DD, supra, support the Crown’s position on sentencing in this case. However, defence counsel has provided me with other decisions that he argues support a significantly lower sentence in this case. I now turn to those decisions.
[34] The first of these decisions is R v. R.N.S. (2000 SCC 7, [2000] 1 S.C.R. 149). In that case, the offender was convicted of sexual assault and invitation to sexual touching with his step-granddaughter. The assaults took place over a four year period, although there was no clear indication of how often the assaults took place. The assaults involved touching only, and did not involve any vaginal or anal penetration. A sentence of nine months incarceration was imposed by the trial judge, and ultimately upheld by the Supreme Court of Canada. The Supreme Court referred to the sentence as “lenient”, although they upheld it.
[35] This decision is distinguishable from the case that I am faced with on a number of grounds, including the nature of the offence, the frequency of it and the length of time that the assaults went on for. In the case at bar, I am dealing with a much worse offence on all of those elements. It is also worth remembering that the Supreme Court referred to the nine month sentence as “lenient”. I do not view a sentence of this length as being anywhere close to a fit and proper sentence in this case.
[36] The second decision that the defence relied upon was R. v. Sabbe (2011 ONSC 3627). In that decision, the accused pled guilty to charges of sexual assault. A joint sentencing submission was presented with a recommendation for a non-custodial sentence, or in the alternative an intermittent sentence. R.S.J. Pierce (as she then was) rejected these submissions and imposed a sentence of twelve months. Sabbe was, as described in the joint submissions, a unique case. Part of what made it unique was that the accused had been intoxicated when he committed the offences, and had no memory of committing them. He also pled guilty before a trial. The facts are completely different from the case before me. This decision does not assist me.
[37] The third case on sentencing that the defence referred me to was R v. W.(L.) (2013 ONSC 7715). In that case, the offender was found guilty after a jury trial of a number of sexual offences involving his step-children. The conduct involved a few incidents of oral sex and a few incidents of sexual touching. A global sentence on the sexual conduct issues of 48 months (or four years) was imposed by Conlan J. Again, R. v. W.(L.) is distinguishable from this case because of the significant differences between the gravity and the length of the assaults. Four years is not a fit and proper sentence in the case before me.
[38] The other two cases that the defence relied upon, R. v. F.(B.) ([2013] O.J. No. 2580) and R. v. McDonnell (1997 389 (SCC), [1997] 1 S.C.R. 948) can also be distinguished on similar grounds to the ones I have set out above. These cases do not support the defence’s position on sentencing in this case.
The Sentence Imposed
[39] The offender is convicted of a very serious crime. He has abused the trust of a young girl who treated him as her father, and has repeatedly sexually assaulted her over a period of almost a decade. These assaults have included oral as well as anal sex. Based on these facts, and my analysis of the case law, a sentence at the upper end of the range proposed by the Crown is appropriate.
[40] Based on the foregoing, I sentence the offender to a period of incarceration of eight (8) years. In addition, I am making the following Orders:
a) A DNA Order under section 487.015 of the Criminal Code.
b) A Sex Offender Information Registration Act Order under section 490.012 of the Criminal Code. Under section 490.013(2), this order ends twenty (20) years after it is made.
c) A firearms prohibition Order under section 109(2)(a) of the Criminal Code for a period of ten (10) years.
d) A firearms prohibition Order under section 109(2)(b) of the Criminal Code for life.
e) A non-communication Order under section 743.21 of the Criminal Code.
f) The victim fine surcharge is waived.
LeMay J.
Released: February 18, 2016
CITATION: R. v. F.L., 2016 ONSC 1215
COURT FILE NO.: CRIM J(P) 670/14
DATE: 2016 02 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
F.L.
Offender
REASONS FOR JUDGMENT
LeMay J.
Released: February 18, 2016