Court File and Parties
COURT FILE NO.: 13-443 DATE: 20161026
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN - and - F.C.
Counsel: Debra Moskovitz, for the Crown Lydia Riva, for the accused
HEARD: August 16, 2016
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Reasons for Sentence
A. Introduction
[1] At the conclusion of his trial, the accused was found guilty of committing three sexual offences against his young great-granddaughter. More particularly, the accused was found guilty of committing the offences of: (1) sexual assault; (2) sexual touching of a person under 14 years of age; and (3) invitation to sexual touching in relation to a person under 14 years of age – contrary to ss. 271, 151 and 152 of the Criminal Code, R.S.C. 1985, chap. C-46, respectively. See R. v. F.C., 2015 ONSC 6429, [2015] O.J. No. 5384. These offences were committed in Toronto in mid-May of 2012, when the accused was 82 years of age, and his great-granddaughter, MM, was but four years of age. The accused now appears for sentencing.
[2] The parties agree that the rule against multiple convictions requires that the finding of guilt for the offence of sexual assault be conditionally stayed, but that convictions should be entered with respect to the two remaining offences. I agree. Given the applicable mandatory minimum sentences for the sexual interference and invitation to sexual touching offences, and in light of the same maximum sentence for all three offences, it is the finding of guilt for the sexual assault offence that must be conditionally stayed. See R. v. Kienapple, [1975] 1 S.C.R. 729; R. v. Loyer and Blouin, [1978] 2 S.C.R. 631; R. v. M.(S.J.), 2009 ONCA 244, 247 O.A.C. 178, at paras. 8-10; R. v. F.(C.G.), 2003 NSCA 136, 219 N.S.R. (2d) 277, at paras. 38-39; R. v. A.(K.R.) (1997), 100 B.C.A.C. 241, [1997] B.C.J. No. 2702, at paras. 3-4.
[3] The parties advance divergent positions as to the sentence that should be imposed. They agree that, according to the applicable provisions of ss. 151(a) and 152(a) of the Criminal Code, as those provisions stood at the time of the offences, the accused is liable, since the Crown elected to proceed by indictment, to a mandatory minimum punishment of imprisonment for a term of 45 days and to a maximum potential punishment of ten years imprisonment.
[4] The accused challenges the constitutional validity of this mandatory minimum punishment, arguing that it is in violation of s. 12 of the Canadian Charter of Rights and Freedoms, and is not saved as a “reasonable limit” upon the right to be free from “cruel and unusual punishment” within the meaning of s. 1 of the Charter. Defence counsel argues that, once the mandatory minimum punishment is declared unconstitutional, the accused should be given a conditional sentence in the upper reformatory range (i.e. 18 months to two years less a day). Alternatively, defence counsel argues that the imposition of the mandatory minimum term of imprisonment would, in the unique circumstances of this case, amount to a violation of the accused’s rights under s. 7 of the Charter, given the advanced age of the accused and his fragile health. Accordingly, under s. 24(1) of the Charter, the accused should be entitled to the sentence variation remedy of a conditional sentence, overriding the mandatory minimum sentence in this particular case.
[5] The Crown, on the other hand, argues that the mandatory minimum sentence legislation is constitutionally valid, but need not be considered as the accused ought to be sentenced to a much greater period of actual imprisonment, namely, a sentence in the upper reformatory range suggested by defence counsel. Further, the Crown argues that the imposition of such a reformatory term of actual imprisonment in this case would not violate s. 7 of the Charter, or render the accused eligible for a conditional sentence.
[6] In short, the parties agree that the appropriate range of sentence for these offences is in the upper reformatory range – but the defence seeks the imposition of a conditional sentence for reasons based upon the Charter of Rights (despite the mandatory minimum sentence), and the Crown seeks a sentence of an upper reformatory term of actual imprisonment.
[7] For the reasons that follow, the accused is sentenced to a nine month term of actual reformatory imprisonment. In my view, this sentence adequately reflects the gravity of the sexual offences committed by the accused, and appropriately denounces and deters the commission of such offences. A longer reformatory term of imprisonment is neither necessary nor appropriate in the circumstances. At the same time, this sentence appropriately takes into account the reality that the accused is an elderly man, with no previous criminal record, and with a number of serious ongoing health problems. As the evidence tendered on the sentencing hearing revealed, the Ontario correctional authorities are well-equipped to assess, monitor and provide the accused with all of his ongoing health care needs. But, there is no gainsaying the fact that serving this sentence will be harder for the now 87 year old accused than it might be for younger offenders without such serious health problems.
[8] Given this disposition, there is no practical need to consider the constitutional validity of the mandatory minimum punishment of 45 days imprisonment. As the sentence that must be imposed upon the accused is significantly greater than the mandatory minimum punishment, there remains but a moot and academic interest in the constitutional validity of this mandatory minimum sentence, which need not be considered and finally determined. See R. v. Lloyd, 2016 SCC 13, 334 C.C.C. (3d) 20, at para. 4, 11, 17-18. Significantly in this regard, in advancing her constitutional attack, and contending that the 45 day mandatory minimum term of imprisonment was “grossly disproportionate” to these sexual offences, defence counsel did not advance or rely upon any “reasonable hypotheticals,” but rather relied only upon the individual circumstances of the present case. Further, and equally importantly, there is no significant lingering public interest in the constitutional validity of these provisions of the Criminal Code, as they have been subsequently amended and the mandatory minimum sentences increased by Parliament. I note in passing, however, that the jurisprudence to date has uniformly upheld the constitutional validity of the former Criminal Code legislation creating the mandatory minimum of 45 days imprisonment. See R. v. Lonegren, 2010 BCSC 960, 260 C.C.C. (3d) 367, at paras. 24-25; R. v. Craig, 2013 BCSC 2098, [2013] B.C.J. No. 2518, at paras. 16-18. See also R. v. E.M.Q., 2015 BCSC 201, [2015] B.C.J. No. 229, at paras. 3-4; R. v. C.F., 2016 ONCJ 302, [2016] O.J. No. 2752, at paras. 18-25, 28, 58-66; R. v. S.A., 2016 ONSC 5355, [2016] O.J. No. 4790, at paras. 68-75.
[9] Further, I am not satisfied that the imposition of a nine month reformatory term of imprisonment would breach the accused’s rights under s. 7 of the Charter. According to the evidence tendered on the sentencing hearing, the significant health concerns of the elderly accused can be safely and appropriately managed by the Ontario correctional authorities during the course of his custodial sentence. Accordingly, there is no need to consider or adopt any potential remedial sentencing option.
[10] Finally, I would not have imposed a conditional sentence upon the accused – even a significantly longer conditional sentence – even if such an option was legally available. Such a sentence would simply not, in my view, provide the necessary measure of denunciation and deterrence in the circumstances of this case, where the accused committed serious sexual offences against his young, great-granddaughter, while she was in his care and while he occupied a position of trust and authority.
B. The Facts of the Offences
[11] The general nature of these sexual offences was outlined in statements by the young complainant to her mother. As MM told her mother on the evening of May 15, 2012, she played a “secret game” with the accused in which he played with her vagina, and in which she hunted for his “eggs” or testicles. Further, as MM subsequently indicated (and demonstrated) to her mother on June 5, 2012, she had laid down on her back, with her legs up in a “birthing” position, and the accused put his “pee pee,” or penis, inside her vagina.
[12] When confronted by the complainant’s mother with the allegation that he had been sexually abusing the complainant, the accused did not deny the allegation, but essentially confirmed his sexual touching of the complainant. In the face of this accusation, the accused appeared to be ashamed and kept repeating that he was “so embarrassed,” and explained that he was “not getting hard” on his wife anymore, and suggested that MM “won’t remember.”
[13] These offences took place while the accused and his wife were caring for their great-granddaughter during the day time, while her parents were at work.
[14] These were serious offences. The elderly accused sexually touched his young great-granddaughter’s vagina with his hand and his penis, and invited her to touch his testicles. The accused engaged in this sexual misconduct notwithstanding his close family relationship with the complainant and her mother, and in flagrant breach of his position of trust and authority as her great-grandfather and daycare provider. The offences had serious consequences. Based upon the victim impact evidence provided by the complainant’s mother, their family has been “torn apart” by the commission of these offences. Some family relationships have been forever destroyed. Further, the young complainant remains very quiet and extremely shy, apparently being very anxious interacting with adults. Indeed, she may suffer from selective mutism. The complainant’s mother still suffers from guilt and fear as a result of these events.
[15] These kinds of sexual offences require sentences that reflect the sheer gravity of the crime and the moral blameworthiness of the offender, and which provide an adequate measure of denunciation and general deterrence. As s. 718.01 of the Criminal Code provides, when a court imposes a sentence for an offence that involves the “abuse” of a person under the age of 18 years, the court “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” Other potential offenders must understand that the sexual abuse of children will invariably be met with denunciatory sentences involving significant terms of imprisonment.
C. The Personal Circumstances of the Accused
[16] The accused was born on […], 1929, 87 years ago today. He was 82 years old at the time of the offences. He has been married to his wife for well over 60 years. They had four children. The accused has no prior criminal record.
[17] The accused was born in the Philippines and lived there most of his life. His large family was farmers who grew corn and rice. They were very poor, but the accused was healthy and had an uneventful childhood, with no behavioural problems.
[18] The accused has a grade 10 education. He dropped out of school when his family could no longer afford to send him to school. He worked most of his adult life on the family farm. However, he also worked as a general labourer in the construction industry over a period of three years. After his sporadic construction work, the accused obtained a job as a security guard, where he worked for the same company for 16 years before retiring at the age of 60 years.
[19] The accused and his wife came to Canada in late 1995, after their home burned to the ground in a fire. They thought it would be a good opportunity to move to Canada at the invitation of his son. In Canada, the accused remained retired, still collecting his pension from the Philippines. His son also provides the accused with funds to supplement his retirement income.
[20] The accused and his wife lived, for the most part, in Scarborough, and periodically took care of children (including their own great-grandchildren), sometimes being paid for their daycare services. They babysat their great-granddaughter MM, the complainant, during the day for close to four years.
[21] According to the psychiatric report filed on the sentencing hearing, the accused is a simple man of average intelligence with no mental health issues, and no substance abuse problems. However, the accused currently has a number of ongoing physical health issues. These issues are addressed in both the psychiatric report, and in the letter from his family physician, which was also filed on the sentencing hearing. The accused has suffered from high blood pressure or hypertension for over a decade, periodically experiences chest pain or angina on exertion, and takes medication to control this condition. Unfortunately, the accused has a “history of poor compliance with medications.” The accused also has some hearing problems. He also suffers from osteoarthritis in his knees and ankles, and has some resulting mobility problems.
[22] As the psychiatric report noted, the accused’s “frail physical condition” will make it “difficult for him when incarcerated.” Moreover, his family physician has expressed the opinion that the accused has “significant coronary artery disease” based upon his advanced age, long history of poorly controlled hypertension, “elevated lipid levels” and “history of impaired fasting glucose.” His family physician has also expressed the opinion that the accused is “not fit to be confined in jail” as a result of his advanced age and “precarious health condition.”
[23] The personal circumstances of the accused must factor significantly in the sentence to be imposed in this case. Notwithstanding the gravity of his sex crimes against his young great-granddaughter, his productive and nearly crime-free life, very advanced years and his serious ongoing health problems must weigh heavily in the determination of the appropriate sentence. While the upper reformatory custodial disposition sought by the Crown might well be appropriate for other sex offenders committing similar offences, the compelling personal circumstances of the accused require a significant reduction in the custodial sentence that might otherwise have been appropriate. In my view, a sentence of nine months imprisonment gives fair and appropriate consideration to all of those unique personal circumstances, including all of his ongoing health concerns.
[24] While the accused’s family physician expressed the personal view that the accused was “not fit to be confined in jail,” the evidence adduced at the sentencing hearing in this matter does not support this conclusion. Rather, the evidence supports the conclusion that the medical issues of the elderly accused can be safely accommodated in a number of Ontario correctional facilities. More particularly, the testimony of Mr. Brad Tamcsu, the Deputy Superintendent of Administration at the Toronto South Detention Centre, established that the accused will be well cared-for, medically speaking, if sentenced to any reformatory term of imprisonment. While the elderly accused certainly suffers from a number of serious ongoing health problems, the testimony of Mr. Tamcsu established that, if imprisoned, there will be a variety of nurses, doctors and other health care professionals who will be responsible for all of the accused’s unique health care needs, and who will be well-equipped to meet those needs in a timely way. For example, in his testimony Mr. Tamcsu described the facilities and services available at the “medical housing unit” at the Toronto South Detention Centre, and it was apparent that, if the accused was placed in this unit to serve his sentence, all of his health problems would be fully and adequately addressed. The Toronto South Detention Centre is not, however, the only correctional institution capable of appropriately addressing the health concerns raised by the elderly accused. There are a number of custodial facilities across the province which are similarly equipped to appropriately address the accused’s health concerns and his general geriatric issues.
[25] Given the evidence of Mr. Tamcsu, which I accept, the imposition of a nine month reformatory term of imprisonment does not violate any aspect of the accused’s constitutional rights protected by s. 7 of the Charter. This term of imprisonment will not impact upon his right to life or upon the security of his person. While it will certainly impact upon his right to liberty, it will do so in accordance with the principles of fundamental justice. Accordingly, the accused is simply not entitled, on the facts of this case, to any potential remedial sentencing option (assuming that such a remedy was legally available).
D. The Governing Sentencing Principles
[26] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute 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: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.
[27] As I have already indicated, pursuant to s. 718.01 of the Code, when a court imposes a sentence for an offence that involved the abuse of a person under 18 years of age, it “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”
[28] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[29] Section 718.2 of the Code requires a sentencing court to also consider a number of other principles: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) 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.
[30] According to s. 718.2(a)(ii.1) of the Code, evidence that the offender, in committing the offence, “abused” a person under 18 years of age, is statutorily deemed to be an “aggravating circumstance” of the offence.
E. The Custodial Sentence Imposed
[31] As I have indicated, in all of the circumstances of this case, in my view the accused should be given a reformatory sentence of nine months imprisonment. This sentence is proportionate to the gravity of the sexual offences committed by the accused, the degree of his responsibility for those offences, and their impact on the victim. Further, this sentence appropriately denounces the commission of sexual offences against children and effectively deters others from the commission of such offences. At the same time, this sentence also recognizes that the elderly accused is a first offender with no prior criminal record, and with significant ongoing health issues which will make his time in custody more difficult. This sentence also fairly and appropriately balances the aggravating and the mitigating circumstances present in this case. See R. v. S.(R.N.), 2000 SCC 7, [2000] 1 S.C.R. 149, at paras. 2-4, 9, 18-20.
[32] Given the mandatory minimum sentence applicable in this case, which has not been found unconstitutional, the accused is not legally eligible for a conditional sentence. In any event, however, even if such a sentencing disposition was a legally available sentencing option in this case, I would not have imposed such a sentence. In the circumstances of this case, I am simply not satisfied that a conditional sentence, served in the community, would be “be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2” of the Criminal Code.
[33] As Lamer C.J.C. noted in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 22, a conditional sentence is “a punitive sanction capable of achieving the objectives of denunciation and deterrence.” However, in this case, I am not satisfied that even a punitive and restrictive conditional sentence (even one as long as that suggested by defence counsel), would proportionally reflect the gravity of the sexual offences by the accused, and provide the necessary elements of denunciation and deterrence in all of the circumstances. As the court observed in Proulx, at para. 114, where the sentencing principles of “denunciation and deterrence are particularly pressing, such as cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction,” and this may be so “notwithstanding the fact that restorative goals might be achieved by a conditional sentence.” See R. v. R.A.R., 2000 SCC 8, [2000] 1 S.C.R. 163, at paras. 2, 24-33. Accordingly, I would decline to impose a conditional sentence of imprisonment in the present case in any event. See R. v. D.R. (2003), 169 O.A.C. 55, [2003] O.J. No. 561, at para. 8.
F. The Terms of the Probation Order
[34] In my view, as the parties have both suggested, the accused should be bound by the conditions of a probation order upon his release from custody. Accordingly, upon his release from this term of imprisonment, the accused will serve a three-year term of probation. This probation order will include the statutory terms outlined in s. 732.1(2) of the Criminal Code, together with the following additional terms: (1) the accused shall report to a probation officer within two working days of his release from custody, and thereafter as directed by the probation officer; and (2) the accused shall refrain from any contact or communication, direct or indirect, with the complainant, MM, her parents, and her brother, and shall not be within 500 meters of the complainant, her home, or her school.
G. Ancillary Sentencing Orders
[35] In addition, in my view the following ancillary sentencing orders are appropriate in the circumstances of this case.
[36] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The sexual offences committed by the accused are “primary designated offences” as defined in s. 487.04(a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.
[37] Second, pursuant to the combination of ss. 490.012(1) and 490.013(2.1) of the Criminal Code, I make an order in Form 52, requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life.
[38] Third, pursuant to s. 161(1) and (2) of the Criminal Code, I make an order prohibiting the accused, for the rest of his life, from: (a) attending any public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; and (b) 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.
[39] Fourth, pursuant to ss. 109(1)(a) and 109(2) of the Criminal Code, there shall be an order prohibiting the accused from the possession of any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years after the accused is released from the period of imprisonment imposed today; and from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. While the offences committed by the accused clearly did not involve the use of any firearm or other weapon, the sexual offences committed against the complainant inherently involved a sufficient act of “violence” by the accused to trigger the obligation to impose this mandatory order. See R. v. Savard (1979), 55 C.C.C. (2d) 286, 11 C.R. (3d) 309 (Que.C.A.); R. v. Broome (1981), 63 C.C.C. (2d) 426, 24 C.R. (3d) 254 (Ont.C.A.); R. v. Currie, [1997] 2 S.C.R. 260, 115 C.C.C. (3d) 205, at paras. 22-23; R. v. Killam (1999), 29 C.R. (5th) 147, [1999] O.J. No. 4289, at paras. 1, 17-18; R. v. Bossé, 2005 NBCA 72, 288 N.B.R. (2d) 82, at paras. 7-16; R. v Aguas, 2015 ONSC 5732, [2015] O.J. No. 4739, at para. 56.
[40] Fifth, I order that the accused pay a victim surcharge in the amount of $100 pursuant to s. 737(2)(b)(ii) of the Criminal Code. This was the amount of the surcharge at the time the accused committed these offences.
H. Conclusion
[41] In the result, with respect to counts four and five of the indictment, the accused is sentenced to concurrent reformatory terms of imprisonment of nine months duration for each offence. This custodial sentence will be followed by a three year term of probation on the terms that have been prescribed. The accused shall also abide by all of the ancillary sentencing orders that have also been made as part of the sentencing process. The finding of guilt with respect to the sexual assault offence in count three of the indictment is conditionally stayed.
Kenneth L. Campbell J.
DATE: October 26, 2016
