CITATION: R. v. O.B., 2016 ONSC 6861

COURT FILE NO: CR-16-30000395-0000

DATE: 20161103

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Joshua Levy for the Crown

• and -

O.B.

Bella Petrouchinova for O.B.

HEARD: October 14, 2016

REASONS FOR SENTENCE

CORRICK J.

[1] On June 28, 2016, a jury found O.B. guilty of one count of sexual assault, and two counts of sexual exploitation. He appears before me today for sentencing.

The Application of the Kienapple Principle

[2] Ms. Petrouchinova, on behalf of O.B., submits that convictions on all three counts cannot stand in light of the principle against multiple convictions enunciated in R. v. Kienapple.[1] The facts underlying the sexual exploitation offences in counts 1 and 3 are subsumed in the sexual assault offence in count 2, Ms. Petrouchinova argues. She submits that a conviction ought to be entered on the sexual assault charge and conditional stays entered on the two sexual exploitation counts.

[3] O.B. was found guilty of the following offences:

Count 1. O.B. stands charged that he, sometime between and including the 1st day of June in the year 2008 and the 6th day of January in the year 2010, in the City of Toronto, in the Toronto Region, being in a position of trust or authority towards D.D., a young person, did for a sexual purpose, touch directly the body of D.D., a young person, with a part of his body, to wit: his hands, contrary to s. 153(1)(a) of the Criminal Code.

Count 2. O.B. stands charged that he, sometime between and including the 1st day of June in the year 2008 and the 20th day of January in the year 2014, in the City of Toronto, in the Toronto Region, did commit a sexual assault on D.D., contrary to s. 271 of the Criminal Code.

Count 3. O.B. stands charged that he, sometime on or about the month of June in the year 2008, in the City of Toronto, in the Toronto Region, being in a position of trust or authority towards D.D., a young person, did for a sexual purpose, invite D.D., a young person, to touch directly with a part of her body the body of O.B., contrary to s. 153(1)(b) of the Criminal Code.

[4] Mr. Levy, on behalf of the Crown, concedes that O.B.’s touching of Ms. D. between June 1, 2008 and January 6, 2010 forms the entire basis of the offence in count 1, and forms part of the basis of the sexual assault offence in count 2. To alleviate this problem, Mr. Levy suggests that the court amend the time frame in count 2 to read “between and including the 7th day of January in the year 2010 and the 20th day of January in the year 2014.” This would cover O.B.’s conduct that occurred after Ms. D.’s 18th birthday.

[5] Mr. Levy submits that count 3 is a separate delict and convictions on that count and the sexual assault count would not violate the rule against multiple convictions.

[6] The rule in Kienapple prevents an accused person from being convicted of multiple offences arising from a single criminal transaction where the elements of the offences are substantially the same. The scope of the rule was clarified by the Supreme Court of Canada in R. v. Prince.[2] It applies only where there is both a factual and legal nexus between the offences. The factual nexus is satisfied if the same act of the accused person forms the basis of each of the offences. The legal nexus is satisfied “if there is no additional or distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.”[3]

[7] The focus of the offence of sexual exploitation in s. 153 of the Criminal Code is the offender’s abuse of a position of trust or authority for a sexual purpose. To obtain a conviction under s. 153, the Crown must prove that the offender was in a position of trust or authority towards the complainant. This is not an essential element of the offence of sexual assault. It is an additional element that goes to guilt on the sexual exploitation offences, and distinguishes sexual exploitation from sexual assault. Thus, the rule in Kienapple does not prevent convictions from being entered on all three counts, and an amendment to count 2 is unnecessary.

The Circumstances of the Offences

[8] The complainant in all three offences is O.B.’s step-daughter, D.D. Ms. D. lived with O.B., her mother, and two sisters in a small apartment. She described O.B. as a very good stepfather, although he was overly protective and slightly controlling. She was required to call him when she reached school, at lunch, and when she was on her way home. If she did not, he would call or text her to inquire about her whereabouts.

[9] On March 3, 2008, her parents discovered that she had been seeing a boy at school. This upset her parents, particularly O.B., because she was not allowed to date. O.B. went to her school to speak to the vice-principal about it, and began checking her cellphone and computer to see if she was hiding anything. Ms. D. became isolated from her friends. She had no social life outside of her classes at school.

[10] O.B. began touching Ms. D. sexually in June 2008, when she was 16 years old. O.B. would approach Ms. D. while she was lying on a mattress in the living room or in her bedroom and massage her back, breasts and buttocks, both over and under her clothing. He also kissed her back. On one occasion, O.B.’s hand accidentally brushed against her vagina. While he was touching her, O.B. told her that he was doing these things to release her hormones. He also told her that she was very clean and that she would make a good wife.

[11] When Ms. D. was 18 years old and in first year university, O.B. showed her pornography on the television. She had not had any sexual education in high school, and O.B. told her that he was teaching her about a woman’s erogenous zones. While watching the pornography, O.B. approached Ms. D. from behind, put his hands up her shirt, and groped her bare breasts. He also did that on a number of occasions when she was standing at the sink washing the dishes.

[12] Ms. D. was unable to say how many times O.B. touched her. The incidents always followed the same pattern and had blurred together in her mind to the extent that she thought of them as one continuing event. They continued on a regular basis until December 2013.

[13] Once, during the first or second assault on Ms. D., O.B. put his penis in Ms. D.’s hand. She was lying on the mattress in the living room. He asked her if she wanted to look at it, and asked her what it felt like. These facts form the basis of count 3.

[14] The last incident occurred in December 2013 when O.B. came into Ms. D.’s bedroom while she was sleeping after having written an exam at university. He pushed up her shirt, massaged and kissed her back, pulled down her pants, and massaged her bum.

[15] After that incident, Ms. D. summonsed her courage and told O.B. not to touch her whenever he approached her. In January 2014, Ms. D. disclosed the assaults to her friend at school, and reported them to the police. She has not lived with her family since January 31, 2014.

Circumstances of the Offender

[16] O.B. is 48 years old. He came to Canada from Kenya in 1987, after losing his family. He met his wife, the mother of Ms. D., at [place of employment], where they were both employed. Together they have two daughters, who were born in 1996 and in 2005.

[17] O.B. had been a valued employee for [place of employment] for fifteen years between 1989 and 2004. He lost that employment when the company downsized. His wife testified at the trial that O.B. has held a number of jobs since that time, mostly part-time positions. He is currently employed as a part-time sales associate in a retail clothing store. He has worked there since November 2015.

[18] Prior to his arrest in February 2014, O.B. was the primary caregiver of his children. His wife was working full-time and he was not. Letters from his wife and two daughters, filed as exhibits, speak of him preparing their meals, grocery shopping, and taking and picking the children up at school. Ms. Petrouchinova indicated that O.B. has no other family in Canada, and that his entire life has revolved around his family. For the past 33 months O.B. has been living with his surety, away from his family, and has been prohibited from communicating with his two daughters by the terms of his judicial interim release order. The toll that has taken on him, his wife and two daughters, both emotional and financial, is set out in detail in the letters from his wife and daughters, and from O.B.

[19] O.B. has no criminal record.

Positions of the Parties

[20] Mr. Levy, on behalf of the Crown, seeks a penitentiary sentence of three years, an order pursuant to s. 743.21 of the Criminal Code prohibiting O.B. from communicating with Ms. D. while he is in prison, and an order pursuant to s. 490.012 requiring O.B. to comply with the Sex Offender Information Registration Act for life.

[21] Ms. Petrouchinova, on behalf of O.B., submits that a custodial sentence of six months is the appropriate disposition.

The Impact on the Complainant

[22] Ms. D. read her victim impact statement to the court. It has also been filed as an exhibit. She indicated that O.B.’s assaults have caused her to suffer from post-traumatic stress disorder, mental and emotional exhaustion, anxiety attacks, bouts of depression, insomnia, academic failures, issues with trust, and broken family relationships. Ms. D. told me that O.B. destroyed every aspect of her life.

[23] She continues to be unable to trust older men and develop relationships. Testifying at O.B.’s trial required her to relive the trauma, which caused her to disengage from her daily activities, negatively affecting her education, social life and outlook.

Legal Parameters

[24] At the time of the commission of these offences, sexual exploitation was punishable by a maximum of ten years in prison and a minimum of 45 days in prison. Sexual assault was punishable by a maximum ten years in prison.

The Principles of Sentencing

[25] 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 serious offences against a young person. In determining the appropriate sentence for O.B., I am bound to consider the sentencing principles set out in the Criminal Code.

[26] 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 the following six objectives:

1. denouncing unlawful conduct;

2. deterring the offender and others from committing crimes;

3. separating offenders from society where necessary;

4. assisting in the rehabilitation of the offender;

5. providing reparations for harm done to the victim or to the community and promoting a sense of responsibility in the offender; and

6. acknowledgement of the harm done to victims and the community.

[27] 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.

[28] Keeping in mind the purposes of sentencing, I am also required by s. 718.2 to consider the following principles when imposing a sentence in this case:

▪ 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.

[29] Section 718.01 requires the court to give primary consideration to deterrence and denunciation in imposing this sentence because Ms. D. was under the age of 18.

[30] The significant impact these offences have had on Ms. D. is deemed to be an aggravating circumstance by section 718.2(a) of the Criminal Code.

Aggravating and Mitigating Circumstances

[31] I turn now to the aggravating and mitigating factors of this case. The following are the aggravating features of this case.

1. Ms. D. viewed O.B. as a father figure. He was the only father she had known since she was two or three years of age. He was her mother’s husband, and she and her sisters lived with him and their mother as a family. I recognize that being in a position of trust and authority is an essential element of the offence of sexual exploitation, and is thus not in and of itself an aggravating circumstance. However, positions of trust and authority fall on a spectrum, ranging from camp counsellors to babysitters to teachers to parents and parental figures. O.B.’s violation of his position as Ms. D.’s father falls at the most serious end of the spectrum, and is, to that extent, an aggravating circumstance.

2. Ms. D. was young and vulnerable and had relatively little life experience at the time of these offences. O.B. exploited this and attempted to cloak his criminal behaviour in the guise of parental guidance telling her that he was educating her about sex and that he was releasing her hormones.

3. As the victim impact statement vividly illustrates, these offences have had a profound and enduring impact on Ms. D.’s life.

4. This was not an isolated incident. O.B. assaulted Ms. D. on multiple occasions over a period of more than five years.

[32] I have also considered the following mitigating factors:

1. O.B. has no criminal record.

2. O.B. is a man who works hard to support his family. Although he has had difficulty securing permanent full-time employment, he had been a valued employee for the same company for 15 years before losing that position as a result of corporate downsizing.

3. He has the support of his wife and his two daughters, aged 10 and 20, who report that he is a good father and very important in their lives.

4. He has been on judicial interim release for nearly three years without incident. He has been prohibited from communicating with his two daughters throughout this time. These are two daughters for whom he was the primary caregiver prior to his arrest.

Sentences Imposed in Other Cases

[33] I am also required to consider sentences imposed on similar offenders for similar offences committed in similar circumstances. I turn to that now.

[34] Mr. Levy relies on a number of cases that he submits set out the overarching principles that ought to guide my determination of a fit sentence. He relies on the comments of Justice Moldaver in R. v. D.D.,[4] making it clear that adults who sexually abuse children must pay a heavy price and that sentencing judges must emphasize denunciation, deterrence and the separation of offenders from society over other sentencing objectives.

[35] He also relies on two decisions in which the accused was sentenced to penitentiary terms; in one case four years and in the second, three years.[5] The courts in both of these cases repeated that denunciation and deterrence are the primary objectives to be given consideration when fashioning a sentence for sexual offences committed against children.

[36] Ms. Petrouchinova referred me to a number of decisions in which a conditional sentence or a reformatory sentence was imposed on the offender. She submits that the facts of this case are most similar to those in the case of R. v. D.A.D.,[6] in which the offender was sentenced to a conditional sentence of two years less one day. D.A.D. was found guilty of sexual assault and invitation to sexual touching. He had measured his daughter’s breasts, waist and hips, conducted an examination of her breasts, and touched her with a vibrator. He was a 54-year-old first offender. Results of a sexual behaviour assessment showed that he was a very low risk to reoffend. At the time the offences were committed, no minimum punishment was prescribed for invitation to sexual touching and the maximum punishment was five years. Sexual assault was punishable by a maximum of ten years.

[37] It is noteworthy that at the time O.B. committed these offences, the maximum punishment for sexual exploitation was ten years, and the minimum was 45 days in prison. Today, the same offence is punishable by a minimum of one year in prison and a maximum of 14 years in prison; an indication of the increased seriousness with which this offence is viewed by Parliament and society at large.

[38] The Ontario Court of Appeal upheld a conditional sentence of two years less a day for a mature first offender who had committed a sexual assault on his teenaged sister-in-law, 11 years earlier in R. v. A.C.[7] Over a period of several months, the accused had touched the complainant under her shirt, attempted to kiss her, lay on top of her, and placed his penis near her vagina.

[39] In R. v. D.D.,[8] the accused was sentenced to nine months in prison for one count of sexual interference. Over a period of five months, D.D. touched the genitals of his spouse’s 13-year-old son on four occasions. The offender was 46 years old with a dated criminal record. He had been the victim of sexual abuse by his father and three neighbourhood boys, had serious learning difficulties, had been teased for his homosexuality, had been assaulted by his former wife, and had serious medical problems.

[40] Justice Mulligan sentenced a 56-year-old first offender to 16 months in prison for sexual exploitation in R. v. J.M.[9] The accused had unprotected sexual intercourse with his spouse’s niece 30 times over a two-year period, starting when she was 15 years of age. Results of a sexual behaviour assessment showed that he was a very low risk to reoffend.

[41] I have reviewed the decisions to which Mr. Levy and Ms. Petrouchinova have referred me in support of their positions. Although they assist me in determining the governing principles that must guide my decision, a careful review of them 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.

Determination of the Fit Sentence

[42] Deterrence and denunciation must be at the forefront when determining the appropriate sentence for O.B. The violation of a child’s sexual integrity by a parent is repugnant to society. However, deterrence and denunciation are not the sole objectives. Rehabilitation cannot be overlooked.

[43] I am also mindful that while O.B. is not youthful, he is a first offender. Pursuant to R. v. Downes,[10] I have also considered that he has been isolated from his children for the past 33 months as a condition of his judicial interim release.

[44] O.B.’s violation of Ms. D.’s sexual integrity has had a severe impact on Ms. D. In my view, six months in prison is inadequate to achieve the objectives of denunciation and deterrence in that case. On the other hand, three years in prison does not adequately account for the mitigating circumstances in this case.

[45] After considering all of the circumstances of this case and the relevant sentencing principles, I conclude that a fit total sentence on all counts is two years less one day in prison to be followed by a one-year period of probation.

[46] The conditions of the 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 your probation officer in advance of any change of name or address;

4. promptly notify your probation officer of any change in employment;

5. report to a probation officer within five working days of your release from prison and thereafter as directed; and

6. have no contact or communication, either directly or indirectly, with D.D.

Ancillary Orders

[47] In addition, there will be the following ancillary orders:

1. a DNA order pursuant to s. 487.051of the Criminal Code authorizing the taking of a DNA sample;

2. a weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code for 20 years;

3. an order that O.B. comply with the Sex Offender Information Registration Act for 20 years; and

4. an order prohibiting O.B. from communicating, directly or indirectly, with Ms. D. while he is serving his sentence.

Corrick J.

Released: November 3, 2016

CITATION: R. v. O.B., 2016 ONSC 6861

COURT FILE NO: CR-16-30000395-0000

DATE: 20161103

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

O.B.

REASONS FOR SENTENCE

Corrick J.

Released: November 3, 2016

[1] 1974 14 (SCC), [1975] 1 S.C.R. 729

[2] 1986 40 (SCC), [1986] 2 S.C.R. 480

[3] Supra at para. 32

[4] (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 at para. 34 (Ont. C.A.)

[5] R. v. L.V. 2016 SKCA 74; R. v. N.F. 2016 ONSC 5607

[6] 2015 ONSC 4204

[7] 2012 ONCA 608

[8] 2015 ONSC 400

[9] 2013 83803 (SCJ)

[10] (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (Ont. C.A.)