Court File and Parties

COURT FILE NO.: CR-13-19 DATE: March 23, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Peter Barnes for Her Majesty the Queen

- and -

J.M. Michael A. Johnston, for the Accused Accused

SENTENCING SUBMISSIONS HEARD: February 2 and March 15, 2017

Reasons for Sentence

James, J.

Introduction

[1] This is a sentencing hearing for J.M. who was found guilty on 2 counts of sexual assault following his trial by judge and jury.

[2] This sentencing hearing follows the second trial of the charges against Mr. J.M.. The first trial ended in a mistrial because the jury could not reach a unanimous verdict.

[3] The victims in this case, T.L. and B.R., were children when they were assaulted and teenagers at the time of trial. As a matter of convenience, I will sometimes refer to them by their first names only.

Circumstances of the Offender

[4] J.M. is 33 years old. He is currently single but previously had two long-term relationships and has a daughter from each relationship. His daughters are ages 6 and 3.

[5] Mr. J.M. was raised in a relatively stable family environment. He has two older sisters but they have not stayed in contact in recent years. He left home at about age 17. He did not complete grade 11. He says he does not abuse alcohol or drugs. He does not have a significant criminal record.

[6] Mr. J.M. lived in Alberta for several years and has worked at a variety of jobs. He is not formally qualified for any particular trade. He has been incarcerated since he was arrested in Alberta after failing to appear for his trial in Pembroke in May 2015.

[7] Mr. J.M. was related by marriage to one of the complainants, T.L.. Mr. J.M.’s father was the partner of T.L.’s mother, S.L., and they had a child together.

[8] There was another connection between Mr. J.M. and T.L.. T.L.’s uncle, R.M., lived with Mr. J.M.’s sister. This familial connection meant that there were many opportunities for Mr. J.M. to spend time with T.L. at family gatherings.

[9] Mr. J.M. is about sixteen years older than T.L.. They met when he was about 23 or 24. At the time Mr. J.M. was in a long term relationship and had an infant daughter. T.L. would have been 7 or 8 years old.

Circumstances of the Offences

[10] T.L. testified that the first assault occurred when she was about 9 years old. It involved inappropriate touching by Mr. J.M.. T.L. and her family were staying overnight at the home of R.M.. Mr. J.M. was living with his partner in R.M.’s home at the time.

[11] She testified that she was about 11 years old when the second assault occurred. This incident involved sexual intercourse in a bathroom at night when the families were staying together for the weekend. This was followed by numerous other serious sexual assaults, usually during family get-togethers.

[12] T.L. was infatuated with Mr. J.M.. She said she thought she loved him. She sought his attention. He made comments about her body as it matured. She was generally compliant with his sexual demands. She estimated that over the next few years there were about 80 separate instances of sexual abuse including oral sex and vaginal and anal intercourse. For at least some of this period of time she was still in elementary school.

[13] The other victim, B.R., testified that she was also sexually assaulted by Mr. J.M. but only on one occasion. She said it occurred when she was sleeping over at T.L.’s house and Mr. J.M. and his partner were staying there as well. Both girls described a bizarre situation that involved Mr. J.M. sitting between them on a sofa in the basement while he put his hands down their pants and groped them simultaneously. The incident went on long enough that the girls exchanged text messages about what was going on.

[14] This was followed by a continuation of the sexual abuse later that same night in T.L.’s bedroom.

[15] B.R. and T.L. gave different accounts of what transpired in the bedroom when they were interviewed by the police. T.L. said that Mr. J.M. continued to abuse B.R. while both girls were lying on T.L.’s bed. B.R. did not admit to the police or at the preliminary hearing that Mr. J.M. had assaulted her, including performing oral sex, in T.L.’s bedroom.

[16] During the course of the first trial, B.R. disclosed for the first time that she had been assaulted in the bedroom as well as the basement.

[17] During the second trial B.R. reiterated that she had been assaulted a second time in T.L.’s bedroom.

[18] The charges against Mr. J.M. consisted of one count of sexual assault for each victim. In relation to B.R., it could be said that there were two incidents on the night in question. The first one took place in the basement; the second one took place later in the bedroom upstairs. Either incident could support a finding of guilt. Defense counsel argued that the late disclosure of the bedroom incident and the possibility of collusion should lead to the conclusion that the episode in the bedroom was not proved beyond a reasonable doubt.

[19] Jurors are not required to provide reasons for their decision nor do they give any indication of what allegations they accepted as true. The jurors in this case could have accepted only some of B.R.’s testimony while rejecting her last minute revelations and still conclude that she had been sexually assaulted in the basement.

[20] Similar considerations apply to T.L.. The question arises: Did the jury accept all the allegations that she testified to, or only some, perhaps just one, any of which possibilities could result in a finding of guilt? Section 724 of the Criminal Code of Canada provides some guidance on how to deal with this situation. Section 724(2) provides in part that where the court is composed of a judge and jury, the court shall accept as proven all facts express or implied, that are essential to the jury’s verdict of guilty and may find any other relevant fact that was disclosed by the evidence at the trial to be proven.

[21] It is open to me as the trial judge to consider what allegations ought to be accepted as true for sentencing purposes. Where an allegation tends to suggest that an offender ought to be dealt with more severely, I must be satisfied that the allegation was proven beyond a reasonable doubt. Usually the presence or absence of reasonable doubt is determined following a consideration of all the evidence but for sentencing purposes, if a particular piece of evidence constitutes an aggravating factor, I must be satisfied that the aggravating factor was proven beyond a reasonable doubt.

[22] Dealing firstly with the testimony of B.R., there is an important question respecting her late-breaking allegations of renewed sexual abuse in the bedroom after the incident in the basement. On two occasions she denied that it had occurred and only acknowledged it for the first time just before she testified.

[23] Having considered this evidence and the circumstances surrounding its disclosure, I am satisfied beyond a reasonable doubt that the bedroom incident, the more egregious of the two sets of allegations, actually occurred. In coming to this conclusion I have considered the following factors:

a. During her police interview, T.L. said that B.R. had been assaulted in her bedroom and this was before B.R. gave her statement. This disclosure indicates to me that B.R.’s evidence respecting what occurred in the bedroom was not necessarily a recent fabrication. This view is reinforced by the fact that the girls did not remain friendly following the incident and both said they were not in communication prior to the police interviews; b. B.R. was cross-examined in detail about the fact that she disclosed the bedroom allegations just before she testified and while T.L. was still giving her evidence. Her answers did not seem evasive, defensive or argumentative. She remained calm but resolute. It did not seem to me that she was prone to exaggeration. She said that she was too embarrassed to disclose to the police and at the preliminary hearing that Mr. J.M. touched her breasts and performed oral sex on her. She said she now wanted to tell the whole truth; c. She was 13 years old when she was interviewed by the police and had just turned 15 at the time of the preliminary hearing. At the time of trial she was almost 19 years old. We know from experience that the timing and manner of disclosure by children of intimate and embarrassing details does not follow any particular pattern. Also, as children grow into adulthood, their understanding and view of the world becomes more mature. They acquire insights not found in children. In short, I believe her.

[24] As for T.L., I am satisfied beyond a reasonable doubt that her evidence was substantially true. She was consistent. She answered questions patiently and did not seem evasive. She remained resolute when challenged that her cousin had a different recollection of what T.L. had told her. It seemed to me that at least initially, T.L. did not want to disclose what had gone on between her and Mr. J.M.. She said she was very conflicted when interviewed by the police. Her answers sounded authentic. I accept her evidence.

Legal Parameters

[25] At the time of these offences the Criminal Code provided that the maximum penalty for sexual assault was imprisonment for 10 years. There was no specified minimum penalty.

Position of the Crown

[26] Crown counsel says that assuming I accept the evidence of the complainants as substantially correct, an appropriate penalty would be 7 to 9 years imprisonment together with various ancillary orders to protect the public.

Position of the Defence

[27] Defence counsel says that it is open to me to find that an appropriate penalty should be based only on those essential facts that would be necessary to support findings of guilt. Sexual assault involves intentional touching in circumstances of a sexual nature. The question of consent does not arise because of the young age of the complainants. Sexual assault can cover a wide range of situations. If I was prepared to reject substantial portions of the complainants’ testimony and to find Mr. J.M.’s conduct at the low end of the range, defence counsel submits a period of imprisonment of 24 months would be appropriate.

[28] If I was to accept most or all the complainants’ allegations, defence counsel submits that a sentence of approximately 5 years would be appropriate.

[29] As I have indicated, it is my view that Mr. J.M. should be sentenced on the basis that most, if not all, the allegations that have been made against him by both complainants are true.

Case Law

[30] Crown counsel places considerable reliance in support of his position on a decision of the Ontario Court of Appeal in R. v. D.D.. There the Court of Appeal was asked to consider the appropriateness of the 9 year sentence that was imposed by the trial judge. The case involved the abuse of four young boys over a period of about 7 years during which time the offender persistently engaged in all manner of sexual activity. He occupied a position of trust in relation to the victims. He was 34 years old at the time of sentencing. The 9 year sentence was upheld.

[31] In the case of R. v. D.M., 2012 ONCA 520, another decision of our Court of Appeal, the Crown appealed a 3 year sentence where the 15 year old victim was abused by her uncle over a 3 year period. The abuse escalated to sexual intercourse several times each week. The Court of Appeal held that where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence ought to be 5 or 6 years’ imprisonment. On the particular facts in D.M., the Court concluded that a 7 year sentence was appropriate.

[32] Defence counsel referred me to other cases which present a different view of what constitutes an appropriate sentence.

[33] In R. v. D.E., 2010 ONSC 6200, Justice Casey Hill of this Court considered the case of a 14 year old victim who was abused by her 38 year old married cousin over a period of several weeks that involved unprotected sex. The offender was convicted of sexual exploitation. The Court was satisfied that the offender was genuinely remorseful. Crown counsel sought a sentence of 24 months. Defence counsel requested 6 months imprisonment. Justice Hill imposed a sentence of 12 months.

[34] In R. v. Slater, 2014 ONSC 4017, Justice Parfett of this Court considered the case of an offender who was convicted of indecent assault, gross indecency and one count of buggery arising from events that had taken place decades ago in two different timeframes.

[35] The first set of incidents took place around 1970 and the second set of incidents took place in the early 1980s. The offender was a retired school teacher and 74 years old at the time of sentencing. The case involved abuse of male students who were in grade 7 at the time. The offender had otherwise led an exemplary life with extensive community service. He had several medical conditions. The historical nature of the crimes was an important factor in leading Justice Parfett to conclude that imprisonment for 3 years was appropriate.

Aggravating and Mitigating Factors

[36] Aggravating factors involve considerations that tend to increase what appropriate sentence should be. There are several aggravating factors present in this case which I would identify as follows:

a) Mr. J.M. occupied a position of trust in relation to his much younger step sister, T.L.. She was about 9 at the time of the first incident and between the ages of 11 to 13 when the most egregious abuse occurred. Mr. J.M. was 16 years her senior. While they never lived together in a family unit, there was ongoing familial contact. T.L.’s family often spent weekends at her uncle’s home where Mr. J.M. resided with his partner. There was evidence that T.L. admired Mr. J.M. and was flattered by his attention. She said that he provided her with advice and counsel on matters of interest to pre-teenage girls. b) He provided her with alcohol and marijuana. Grooming activities can take many forms but a common characteristic is that they contribute to a lessening of inhibitions and involve a process of conditioning the victim to be more accepting of abuse; c) The young age of the victims is an important aggravating factor; d) Another consideration, at least in relation to T.L., is the lengthy period of time over which the abuse occurred. I accept T.L.’s evidence that there were many instances of abuse over a period of years. This is not a case of an isolated or short term situation. e) The nature of the sexual assaults suffered by T.L. were highly invasive and at the most serious end of the spectrum of improper behavior and culpability. f) Finally, I think it is important to consider the effects of the abuse on each of the victims. In her victim impact statement B.R. reported a loss of confidence following the abuse and she was angry at herself for letting Mr. J.M.’s actions affect her so much. She now has trust issues and fears being taken advantage of. She has panic attacks when in a crowd. She was unable to continue in school and now studies by correspondence. She said she developed bad habits in an effort to forget what happened to her. g) As for T.L., her victim impact statement lists the numerous difficulties she has experienced as a teenager. It would not be fair to assume that Mr. J.M. is responsible all the negative consequences she described, but it is clear that in her mind the abuse she suffered is a significant factor. At 16 she dropped out of school for a year and a half. She was hospitalized four times due to suicide attempts, depression and PTSD. She consumed a bottle of sleeping pills the week before the preliminary hearing. She said that she has been telling the story of what happened to her since she was 13 years old and got the feeling that people thought she was making up allegations and being untruthful. Going to court brings back bad feelings. She regrets the loss of her friendship with B.R. for several years. She said she feels that Mr. J.M. robbed her of a normal and happy childhood. h) T.L.’s mother, S.L., referred to the numerous instances of self-harm she observed in her daughter, including cutting herself and overdosing on drugs.

[37] As for mitigating circumstances, that is, considerations which tend to lessen what an appropriate sentence should be, I would identify the following factors:

a) Mr. J.M.’s abuse was not accompanied by violence or overt threats of violence; b) He does not have a serious criminal record; c) He does not have a history of anti-social behavior; d) He has pursued employment whenever it was available; and e) His conviction for these offences will complicate many aspects of his life when he is released from prison, not the least of which will be any attempt to establish a relationship with his daughters.

Principles of Sentencing

[38] The determination of an appropriate sentence requires an assessment of various, sometimes competing, principles.

[39] Defence counsel emphasized what he referred to as the principle of restraint. I take this to include the provisions of subsection (e) of section 718.2 where the Criminal Code provides that imprisonment should be the penal sanction of last resort and that an offender should not be imprisoned longer than is necessary to achieve compliance with the applicable principles.

[40] Defence counsel correctly commented that Mr. J.M. is a relatively young man and much of his life is still ahead of him. While I have taken into account the principle of rehabilitation, and I accept that there is some hope for Mr. J.M. to take a different path when he is released, I have concerns in this regard. He has expressed no remorse; he has expressed no insight into his actions. He has not demonstrated a track record for seeking help and has not pursued any measures towards rehabilitation.

[41] Defence counsel also referred to the principle of parity, which I take to include the consideration that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. In particular, I have considered the sentencing dispositions set out in the cases that Mr. Johnston referred me to.

[42] I agree with these submissions but they subject to the overarching consideration that for this type of crime, where children are sexually abused, especially by a person in a position of trust or authority, as is the case in relation to T.L. because Mr. J.M. was essentially an older member of her extended family, the primary sentencing principles must be to denounce the heinous nature of the crime and to deter both the offender and others from engaging in similar activity in the future.

[43] In my view, Justice Michael Moldaver, now a justice of the Supreme Court of Canada, summarized the law in this area very succinctly when he said in the D.D. case:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear -- prey upon innocent children and you will pay a heavy price! (para. 45)

[44] I am guided by the established cases to the conclusion that as a general rule when adult offenders, in a position of trust, sexually abuse children on a regular basis over a substantial period of time, they can expect to receive mid to upper single digit penitentiary terms.

[45] Before passing sentence I would like to address the issue of Mr. J.M.’s credit for pretrial custody. For the purpose of calculating his pretrial credit, the lawyers agree that as of March 15, 2017, Mr. J.M. had been incarcerated for 225 days. Actually it was longer than that but a portion of his pretrial custody was taken up by his plea of guilty to another charge. He has served an additional 8 days since March 15 for a total of 233 days. This translates into a credit of 349.5 rounded to 350 days at the rate of 1.5 to 1.

[46] Mr. J.M., will you please stand up. On count 2, the charge of sexual assault against T.L., I sentence you to a period of imprisonment of 5 years and 6 months. On count 1, the charge of sexual assault against B.R., I sentence you to a period of imprisonment of 15 months concurrent to the sentence on Count 2.

[47] Since your sentence takes effect as of today, and bearing in mind that you have already served a considerable period of time in jail pending the completion of your case, this sentence is equivalent to a global sentence of 6 years and 5.5 months before your credit for pretrial custody is considered.

Ancillary Orders

[48] There will be several ancillary orders as well:

i. A DNA order: sexual assaults are primary designated offences pursuant to s. 487.04 of the Criminal Code. ii. A SOIRA order for a period of 20 years pursuant to s. 490.013(2)(b) of the Criminal Code. iii. A mandatory firearms prohibition order pursuant to s. 109 of the Criminal Code for 10 years following the serving of the custodial sentence. iv. An order prohibiting the offender from contacting B.R., T.L., C.M. and S.L. during the offender’s period of incarceration pursuant to s. 743.21(1) of the Criminal Code. v. Since the complainants were under 16 years of age at the time of the offences, there will be an order pursuant to s. 161(a), (b), and (c). The will include a prohibition on under subsection (a.1) respecting B.R. and T.L. for both their residence and place of employment. With respect to subsection (d), you are prohibited from using the internet or any digital network for the purpose of contacting or communicating with B.R. and T.L.. This order shall be in effect for a period of 7 years following your release from custody. vi. There will be an order waiving the victim fine surcharge with respect to each charge for which the offender was convicted because these offences were committed before the payment of the surcharge became mandatory.

Mr. Justice Martin James

DATE RELEASED: March 23, 2017