COURT FILE NO.: 1773/14 DATE: 20160704

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – M.G.

Nicole Stoner, for the Crown David Stoesser, for M.G.

HEARD: December 7, 8, 9, 10, 2015 and Jan 6, 2016

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO ORDER MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

RAIKES, J.

Conviction

[1] M.G. was convicted of invitation to sexual touching of a person under the age of 16 years contrary to section 152 of the Criminal Code.

[2] The minor was his then two year old daughter, L.G..

[3] The offence took place in his bed in an apartment he was sharing with the mother of his daughter, after the mother left for work one morning.

[4] M.G. was masturbating while his daughter was in bed beside him.

[5] The sexual touching involved his daughter placing her mouth on his erect penis briefly.

[6] There was no violence involved, nor did his daughter sustain any physical injury.

Background of M.G.

[7] M.G. is now 28 years old. He was 22 years old at the date of the offence in August 2011.

[8] M.G. has a high school education. He enrolled in the Early Childhood Education programme at L[…] College but did not complete his first year of the programme.

[9] He has held a number of short-term jobs. The PSR indicates that he has lost some of those jobs through “self-sabotage”, i.e. not being able to accept and follow direction without conflict.

[10] At the date of sentencing submissions, M.G. provided evidence of imminent future full-time employment which I assume he has since taken up.

[11] M.G. is single and resides in Sarnia, Ontario.

[12] He was raised by his mother, W.G., who was a single mother. He had little contact or involvement with his father after his parents separated when he was 5 years old until after he reached adulthood.

[13] He was diagnosed with learning disabilities and Attention Deficit Hyperactive Disorder as a child.

[14] According to the PSR, M.G. is known to family to have a temper but not one which involves any violence.

[15] He is by all accounts emotionally immature.

[16] M.G. does consume alcohol and marijuana for recreational purposes and as a form of self-medication.

[17] He first sought psychiatric assistance as an adult in June 2012. He was hospitalized for problems with controlling his temper and some depressive symptoms arising from his dysfunctional relationship with his then girlfriend’s parents. He was diagnosed with an “adjustment disorder with depressed mood and possibly some personality traits that are maladaptive”.

[18] He went for psychiatric consultation approximately a month after being charged in this matter. He was prescribed medication – an anti-depressant – which he unilaterally decided to discontinue. He was diagnosed by the psychiatrist as having a depressive disorder and ADHD combined type. Therapy with medication as a supplement was recommended but rejected. He last saw his psychiatrist in October 2014, although he missed a number of appointments before then.

[19] M.G. has the support of his family.

[20] He was released on bail for the charges before me. He adhered to those terms.

[21] He cooperated in the preparation of the PSR but had difficulty meeting his obligations. That delayed completion of the PSR.

[22] The PSR recommends a period of probation as part of any sentence which is imposed. The terms recommended are found at pages 10-11 of the Report which is Exhibit 2 on sentencing. {They are:

1. Report in person to a probation officer.
2. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with G.D. or L.G., except pursuant to a Family Court order made after this date or for the purpose of conducting or defending Family Court proceedings.
3. Do not be in the company of or communicate, directly or indirectly, by any physical, electronic or other means, with children under the age of 14 years, unless in the presence of another person who is aware of this condition, and except for required court attendances.
4. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for: i.) sex offender relapse prevention ii.) anger management iii.) psychiatric or psychological issues iv.) personal and/or relationship counselling or other issues as directed by the probation officer.
5. Sign any releases of information forms as will enable his probation officer to monitor his attendance and completion of any assessments, counselling or rehabilitative programs as directed.
6. Inform the probation officer of involvement in any new relationship with a partner who has children, or any access to children.
7. Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer.
8. Attend school or an educational or training program approved of by the probation officer and provide proof as required by the probation officer.}

Defence Position

[23] The defence seeks:

1. An intermittent sentence having regard to the 45 day mandatory minimum required by the Code at the time this offence was committed;
2. Probation consistent with that recommended by the PSR save for the 3d recommended item dealing with communication with children under age 14 years which he contends is over-broad;
3. I should not impose a s. 161 order.

Crown Position

[24] The Crown seeks a custodial sentence of 18-24 months and a probation order to follow for a period of 18 months. In addition, the Crown seeks:

1. A SOIRA order pursuant to section 490.012 of the Code as s. 152 is a designated offence as defined in s. 490.011(1)(a). This order is mandatory for 20 years when the Crown proceeds by indictment;
2. A DNA order pursuant to s. 487.051(1) which is again mandatory for a s. 152 offence. S. 152 is a “primary designated offence”;
3. An Order pursuant to s. 743.21 of the Code prohibiting M.G. from communicating, directly or indirectly, with L.G., G.D. or M.D. during the custodial period of the sentence;
4. An Order pursuant to s. 161 of the Code, for a period of 20 years, prohibiting M.G. from: i.) seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years; ii.) using the Internet, or other digital network, or any computer system within the meaning of s. 342.1(2), for the purpose of communicating with a person under the age of 16 years.

VIS

[25] A Victim Impact Statement has been provided by L.G.’s biological mother, G.D.. G.D. briefly describes the impacts that the defendant’s conduct has had on her and her fears for the potential impacts on L.G..

Relevant Sentencing Provisions:

[26] The fundamental principle of sentencing is set out at section 718.1 of the Criminal Code. It states:

“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[27] Section 718.2 further provides that a court imposing sentence must take into consideration, inter alia, the following additional principles:

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[28] The purpose of sentencing is set out at section 718 of the Criminal Code. It states:

“The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.”

Mitigating Factors

[29] The following mitigating factors are present:

1. M.G.’ age at the time of the offence – he was only 22.
2. The absence of a prior criminal record.
3. He is now employed.
4. He has learning disabilities.

Aggravating Factors

[30] The following aggravating factors are present:

1. The age of the victim who was only 2 years old at the time of the offence.
2. The vulnerability of the victim who was an infant.
3. The abuse or betrayal of trust by M.G.. The victim was his daughter and he was her caregiver. [With respect to the age of the victim and abuse of trust, I note that both are mandated by s. 718.2 of the Code as aggravating factors to be considered on sentence.]
4. Following his initial disclosure to G.D., he sought to minimize what he had done.
5. After G.D. revealed what he had told her in the mediation in-take process, M.G. was aggressive, threatening and evasive.

Analysis

[31] The principles of denunciation and deterrence are the primary objectives engaged by the conviction in these circumstances.

[32] There is a special bond between parent and child. At its core, it is one of absolute trust and dependency. M.G. violated that trust. He knew better – how could he not. At age two, L.G. was entirely dependent on M.G., her father, when in his care. She was an innocent – a child. She was completely vulnerable.

[33] I am satisfied on the evidence that M.G. acted purely from self-interest with no regard for L.G.’s best interests. He used his daughter for his own sexual gratification. It is hard to imagine a more despicable form of betrayal by a parent.

[34] In his Facebook communications with L.G.’s mother after he had disclosed what he did, he made light of what had happened. He suggested that his actions were motivated by a father/daughter sexual fantasy. He also implicitly suggested that it was because G.D. was “not there” for him, i.e. not sexually available. This is consistent with a pattern I have observed in M.G.; one of not taking responsibility for his actions – it is someone else’s fault: G.D.’s parents or G.D. for example.

[35] M.G. conduct was repugnant. It was a gross betrayal of the trust L.G. had in him. It was a betrayal of G.D.’s trust that she could leave L.G. safely in his care.

[36] It is indeed fortunate that the incident was very brief and that L.G. has no apparent memory of what happened. The act in question reveals at best a moment of extremely poor judgment; however, his subsequent conduct seeking to minimize and deflect what had happened, to place the blame elsewhere, to threaten G.D. with vile and inappropriate allegations of sexual misconduct with a family member compounds the profound lack of judgment evident in the act with L.G..

[37] I am mindful that this accused has no prior criminal record, is relatively young, has employment and ties to the community. However, I cannot accept Defence counsel’s submission with respect to a proper disposition of sentence in this case. The gravity of the offence requires a longer period of incarceration in these circumstances.

[38] M.G., I sentence you to 22 months incarceration and 12 months of probation.

The terms of probation will be:

1. Report in person to a probation officer.
2. Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with G.D. or L.G., except pursuant to a Family Court order made after this date or for the purpose of conducting or defending Family Court proceedings.
3. Do not be in the company of or communicate, directly or indirectly, by any physical, electronic or other means, with children under the age of 14 years, unless in the presence of another person who is aware of this condition, and except for required court attendances.
4. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for: i.) sex offender relapse prevention ii.) anger management iii.) psychiatric or psychological issues iv.) personal and/or relationship counselling or other issues as directed by the probation officer.
5. Sign any releases of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
6. Inform the probation officer of involvement in any new relationship with a partner who has children, or any access to children.
7. Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer.
8. Attend school or an educational or training program approved of by the probation officer and provide proof as required by the probation officer.

[39] In addition, I order:

1. A SOIRA order for a period of 20 years pursuant to s. 490.012 of the Criminal Code.
2. A DNA order pursuant to s. 487.051(1) of the Criminal Code – primary.
3. An order pursuant to s. 743.21 of the Criminal Code prohibiting M.G. from communicating, directly or indirectly, with L.G., G.D. or M.D. during the custodial period of your sentence.
4. An order pursuant to s. 161 of the Criminal Code for a period of 10 years prohibiting M.G. from: i.) seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and, ii.) using the Internet, or other digital network, or any computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years except for communicating with L.G. if permitted by Family Court order to do so.

[40] The Victim Impact Surcharge is $200.00 to be paid within 12 months.

__”Original signed by Justice R. Raikes” The Honourable Mr. Justice R. Raikes

Released: July 4, 2016