Court File and Parties

COURT FILE NO.: CR-15-0013-00 DATE: 2016, October 7

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – I.P.W.

Counsel: L. Ross, for the CROWN W. Watson, Counsel for the ACCUSED

HEARD:

Reasons on Sentence

TAUSENDFREUND, J

[1] On April 27, 2016 I found I.P.W. guilty on 2 counts, both involving the complainant A.H. One count addressed touching A.H., a person under the age of 16 years with his hand for a sexual purpose contrary to s. 151 CCC. The second count was sexual assault contrary to s. 271 CCC. Both counts set out a 4 year time period between 2010 and 2014. A.H. then ranged between 10 to 14 years of age.

[2] I.P.W. was the stepfather to A.H. He at all times stood in a position of trust and authority to her.

[3] The facts on which my findings of guilt rest, briefly stated, are these:

a) One incident of touching A.H. when she was 10 years of age. These two were watching TV. A.H. sat partially on his lap. She was not feeling well. He rubbed her stomach and then moved his hand inside her pants to her crotch area where he momentarily touched her vagina without penetration. A.H. immediately got up and left. b) Wrestling was an accepted family activity. During a wrestling encounter with A.H. he might momentarily touch her breasts or vaginal area on top of her clothes. This happened more than 50 times. c) He would periodically hug A.H. This would on occasion include touching her chest and/or her vaginal area both over and under her clothing. d) Occasionally, when these two found themselves together in the drive-thru lane at Tim Hortons, he would reach across and touch her on top of her clothes between her legs and crotch area. e) One incident had him wearing only boxer shorts when he climbed on top of the bed where A.H. was resting. He grabbed her legs and wrapped them around him followed by a humping motion.

[4] I.P.W. is now 38 years of age. He has lived in a common-law relationship with A.H.’s mother for 15 years. These two have 2 children of that union. He has a dated and unrelated criminal record of three convictions. He is a valued employee of some years in a local business. He has the support of his common-law spouse and his extended family.

[5] To assist with the sentencing process, Dr. Anthony Eccles, a registered psychologist prepared a report following his interview and an examination of I.P.W. Excerpts of his report now follow:

• He and A.H.’s mother have remained together in the face of his charges. He feels that their relationship is not in jeopardy as she believes him to be innocent of any wrongdoing.
• He suggested that A.H. concocted the allegations so that she could move out of the family home.
• He acknowledged that there was some accidental contact with A.H. in 2010 while he was sleeping and had his arm around her. His hand brushed her but he denied doing so knowingly or that he ever did anything toward her with a sexual intent.
• His mother expressed a strong belief in her son’s innocence; she feels that he is the victim of a scheming teenager intent of being able to leave the home.
• A.H.’s mother had only positive things to say about her partner. She stated that he has been consistently kind and helpful to her throughout the 15 years they have been together. She believes her daughter’s allegations to be untrue. In her view, her daughter’s allegations were likely promoted by her desire to leave the home to obtain more freedom.

[6] Based on the tests he conducted, Dr. Eccles is of the opinion that I.P.W. represents a low risk to reoffend sexually.

[7] A.H. submitted a “victim impact statement” which I reviewed. She now lives with her biological father and his family. She states that her family and friends have taken sides with respect to these charges. She feels that her relationship with her mother has been destroyed.

[8] The Crown seeks a sentence in the range of 1 to 4 years. I have reviewed the cases which the Crown has submitted in support of its position on sentence. These are: R. v. D.M., 2012 ONCA 894, R. v. JH., 2015 ONSC 6482, R. v. J.L., 2009 ONCA 788, R. v. D.(D.) and R. v. Woodward, 2011 O.J. 4126. In my view, all of these cases to a varying degree are based on facts which are more serious and more egregious than those before me.

[9] The defence urges that I should consider the range of 8 to 12 months.

[10] Both counts on which I.P.W. was found guilty are based on the same set of facts. On the basis of the Kienapple principle, count 1 will be stayed. I will register a conviction on count 2. On this count I.P.W. will be sentenced to 18 months in custody.

[11] In addition, I will make a number of ancillary orders the particulars of which I will deliver orally.

Tausendfreund, J Released: October 7, 2016