COURT FILE NO.: CR-16-40000537-0000 DATE: 20170706
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – SHARIFF OMARI HUSSEIN
Counsel: G. Gaganiaras, counsel for the Crown T. Rodocker, counsel for the Accused
Heard: June 29, 2017
M.A. Code J.
REASONS FOR SENTENCE
A. OVERVIEW
1The accused Shariff Hussein (hereinafter, Hussein) was tried, judge alone, on an Indictment alleging sexual assault, sexual interference, and invitation to sexual touching. At the end of a short trial I found him guilty on all three counts. My written Reasons for Judgment were released on April 26, 2017. See: R. v. Hussein, 2017 ONSC 2584.
2The three offences carry the same maximum sentence of ten years imprisonment and the same mandatory minimum sentence of one year imprisonment, given that the Crown proceeded by indictment and the complainant in this case, one N.M., was 13 years old at the time of the offence. These mandatory minimum sentences came into effect in August 2012. The present offences all relate to a single incident involving both sexual touching and sexual intercourse. It took place on November 2, 2014. Accordingly, the offences post-date the relatively new mandatory minimum sentences.
3I heard sentencing submissions on June 29, 2017 and reserved judgment. There are three main issues to address: first, the constitutionality of the one year mandatory minimum sentences; second, the fit and proportionate sentence in this case; and third, the application of the Kienapple rule against multiple convictions.
B. FACTS RELATING TO THE OFFENCE
4The facts relating to the three offences are set out in my written Reasons for Judgment, cited above. I will not repeat them in the same detail. In addition, any aggravating and mitigating facts relating to the offence, which were not addressed in my Reasons for finding Hussein guilty, need to be addressed now at the time of sentencing. The standard of proof relating to these additional facts is set out in s. 724(1) and (3)(d) and (e) of the Criminal Code; that is, aggravating facts must be proved beyond reasonable doubt and mitigating facts must be proved on a balance of probabilities. See: R. v. Gardiner, [1982] 2 SCR 368; R. v. Ferguson, 2008 SCC 6, at para. 18; R. v. Smickle, 2013 ONCA 678, at paras. 17-25.
5In brief summary, the evidence at trial was that N.M. and the accused Hussein became involved in some kind of boyfriend-girlfriend relationship in the fall of 2014. N.M. was 13 years old at the time and Hussein was 27. They gave somewhat different descriptions of the relationship that developed between them. N.M. had just started high school in September 2014. Hussein worked nights as a floor cleaner in grocery stores. N.M. described meeting Hussein in a subway station and then in a shopping mall after school on two separate days in September 2014. They talked, became friendly, and exchanged their cell phone numbers. This led to phone conversations and to a lunch and movie date at Yorkdale Mall on a Saturday in late September 2014. Hussein’s account of their early meetings was that they first met, talked, and exchanged phone numbers at a shopping mall. She then called him on three occasions and came over to visit with him. Two of these occasions were at Hussein’s friend’s house. The two newly acquainted parties spent a considerable amount of time alone in a room and had what Hussein described as a “sexual conversation.” On the third occasion she came over to his apartment and, once again, they spent two or three hours alone. Neither the Crown nor the defence asked Hussein what he and N.M. did when they were alone for a few hours on these three occasions.
6Both N.M. and Hussein deny each other’s versions of these early events. There were a number of difficulties with their credibility and it is unnecessary to resolve the dispute between them about their early meetings in September 2014. It is common ground that they had a friendly relationship, that they phoned or texted each other frequently, and that there was some sexual content to these phone contacts. It is also common ground that they met three or four times. Finally, there is no allegation of any criminal conduct during these early meetings.
7The critical development in the chronology occurred in October 2014 when N.M.’s mother, D.L., discovered certain text messages on her daughter’s phone. They were with a male who Ms. D.L. did not know, they were sexual in nature, and they were not “age appropriate.” Ms. D.L. was upset and spoke to her daughter about the matter. Ms. D.L. then phoned the male person associated with the text messages and told him that the messages were “inappropriate” and that her daughter was 14 years old. Although N.M. was, in fact, 13 years old at the time, she was about to turn 14 in December 2014 and her mother likely said that she was 14. The person Ms. D.L. spoke to simply replied, “Sorry ma’am,” a number of times during their telephone conversation.
8I was satisfied on all the evidence that Hussein was the person who was texting with N.M. and who Ms. D.L. spoke to in October 2014. I found as a fact that Hussein had now been told N.M.’s age by her mother. Hussein denied receiving this phone call from Ms. D.L.. I completely rejected his evidence on this point for a number of reasons.
9The final factual development in the case occurred two or three weeks after the phone call, on November 2, 2014. All of the witnesses agreed that N.M. was home on this Sunday afternoon, babysitting her three year old brother while her mother was at work. N.M. and Hussein contacted each other by telephone and he came over to her apartment. There is some disagreement between N.M. and Hussein as to the exact circumstances that led to this final meeting. Once again, it is not necessary to resolve these minor factual disputes. Both N.M. and Hussein agree that she wanted to see him and she thought that she had a few hours before her mother would return home from work. It is also agreed that Hussein communicated that he wanted to have sex with N.M., that he brought a large bottle of beer with him, and that they went into N.M.’s bedroom and closed the door, leaving N.M.’s little brother watching television in the living room.
10N.M.’s account of the events in the bedroom was that they were kissing and hugging on the bed. Hussein took off his pants and told N.M. to stroke his penis, which she did. She took off her underpants and he touched her vagina. He put a condom on, lay on top of her, and started “humping” her. She was unsure whether he inserted his finger or his penis in her vagina as it was dark in the room, her eyes were closed, and she had “never done it before … it hurt a lot because it was my first time.” Hussein agreed in his testimony that they had sexual intercourse.
11The events in the bedroom ended when D.L. came home early, saw her son alone in the living room watching television, and saw her daughter’s closed bedroom door. Ms. D.L. knocked on the bedroom door and spoke to N.M. Ms. D.L. thought that something was wrong and she looked into the room. She saw Hussein hiding in a closet and trying to put on his pants. She also saw an empty alcohol bottle and an open condom package. She confronted Hussein, asking, “What are you doing here?” and “Do you know how old my daughter is?” Hussein replied, “She told me she is 18.” He became upset and angry with N.M. and was yelling at her. Ms. D.L. testified that Hussein yelled at N.M., “You told me you were 18.” N.M. just stood there and did not respond to this accusation. Ms. D.L. thought that Hussein looked like he was 20 or 21 and she asked him if he was the man who she had spoken to on the telephone. He replied that he was. Ms. D.L. then called the police. Hussein ran away.
12Hussein testified that he told N.M. that he was 27 and she told him that she was 18. N.M. denied this account. She insisted that she told Hussein she was 13 and he told her he was 19. Ms. D.L. testified that N.M. told her that Hussein was 16. Ms. D.L. thought that Hussein told her that he was 18 but she was unsure on the point.
13It was unnecessary at trial to resolve the issue concerning exactly what N.M. and Hussein told each other about their respective ages. I was satisfied that Ms. D.L. told Hussein, in the October 2014 phone call, that N.M. was only 14 and that Hussein then failed to take reasonable steps to ascertain her true age. Ms. D.L. was an entirely credible witness, whereas N.M. and Hussein were both witnesses with various credibility issues.
14For purposes of sentencing, I am satisfied on a balance of probabilities that N.M. told Hussein at some point that she was 18. Ms. D.L.’ account of Hussein’s relatively spontaneous statement to this effect, close to or at the time of the res gestae, combined with N.M.’s silence when faced with this accusation, all tends to corroborate Hussein’s evidence as to what N.M. told him.
15Of course, the fact that N.M. told him that she was 18 does not and did not provide Hussein with a defence. There was a failure of due diligence on his part, to take the word of N.M. that she was 18, when she did not look or act like she was 18 and when her very credible mother had forcefully and explicitly told Hussein that her daughter was 14 and that his sexual text messages were “inappropriate.” As stated in my Reasons for Judgment (at para. 62):
For all the above reasons, Hussein’s account is neither accepted nor does it raise a reasonable doubt. It may well be that N.M. told him that she was 18 at some point. Ms. D.L.’ evidence is helpful to Hussein, in this regard, and there are certain difficulties with N.M.’s credibility on some points, as noted above. However, I am satisfied that Ms. D.L. firmly and forcefully told Hussein in the prior phone call that N.M. was only 14. Furthermore, N.M.’s face and her manner of expression in the police video statement are consistent with a 13 or 14 year old girl. In my view, the evidence establishes that N.M. was a young unsophisticated girl who wanted a boyfriend and that Hussein was much older than her. He knew that she lived with her parents and he must have known that she was in school. She did not look, act or speak like she was 18 and he must have been suspicious as to whether she was telling him the truth about her age. In all these circumstances, any reasonable person would have made careful inquiries about her age after receiving Ms. D.L.’ warning in the prior phone call. I do not understand the defence to suggest that Hussein made any reasonable inquiries as to N.M.’s age, after the phone call from Ms. D.L..
C. FACTS RELATING TO THE OFFENDER
16Hussein testified at trial. He is now 29 years old and he is a Canadian citizen. He was born in Ghana and came to Canada with his father, mother and two brothers in September 2004, when he was 17. He enrolled in high school but did not finish grade 11 because he had to return to Ghana almost immediately, in 2005, due to the death of his grandfather. He remained in Ghana for four years, settling a family dispute relating to his grandfather’s property.
17Hussein returned to Canada in 2009, when he would have been 21 or 22. He completed an upgrading course and received credit for Ontario grade 12 equivalency. He attended Centennial College and took a food service worker program, in 2011 and 2012, but did not finish the program. He worked at various factory jobs through employment agencies, and as a cook and server at a retirement home, between 2010 and 2015. Most recently, he has worked as a floor cleaner at nights. He presently works in this capacity for Maple Leaf Foods.
18Hussein lived at home in Mississauga with his mother, father and three siblings until the family sold their house. Hussein had moved out and was sharing an apartment in Toronto with a friend at the time of the present offences. Hussein’s father died recently and his mother returned to Ghana with his younger sister. Hussein described the family as close, loving, strict, and traditional. His two brothers have remained in Toronto.
19Hussein advised the author of the Pre-Sentence Report that he has had about five steady sexual relationships with adult female partners. He has no criminal record other than a subsequent conviction for breach of recognizance in November 2015.
20Hussein also advised the author of the Pre-Sentence Report that he denies responsibility for the present offences. He blames N.M. for “forcing” him to have sex with her and for telling him that she was older. He alleges that N.M. “had a history of sleeping with other men.” He believes that some sort of “evil force” was at work, that he was not close to God at the time of the present offences, and that this explains why “evil” was able to get close to him and to unnaturally involve him in the criminal justice system.
D. THE POSITIONS OF THE PARTIES
21The Crown submits that two to three years is the appropriate range of sentence in this case. Ms. Gaganiaris conceded, when pressed, that the three year cases she relied on were more serious cases and that the present case could be situated at the two year end of her proposed range. She took this position, regardless of the constitutionality of the one year mandatory minimum sentences that were legislated in 2012 in relation to these offences.
22The defence submits that the one year mandatory minimum sentences are of no force and effect as they have been struck down by judges of this Court. Mr. Rodocker submits that seven months to ten months is the appropriate range of sentence, followed by a period of probation with counseling in order to address some of Hussein’s “odd” and “backward” views.
23The Crown also seeks five separate ancillary orders, most of which are not opposed by the defence.
E. ANALYSIS
(i) The constitutionality of the one year mandatory minimum sentences
24As noted at the beginning of these Reasons, the three offences at issue in this case all carry one year mandatory minimum sentences. Sexual assault, sexual interference, and invitation to sexual touching were all amended in 2012 to provide for a one year minimum sentence when the Crown proceeds by indictment and when the complainant is under age 16. The previous mandatory minimum for sexual interference and invitation to sexual touching was 45 days, when proceeding by indictment. There was no mandatory minimum for sexual assault prior to 2012. See: sections 271, 151, and 152 of the Criminal Code.
25Three judges of this Court have struck down these mandatory minimum sentences on the basis that they violate s. 12 of the Charter of Rights and Freedoms. Section 12 prohibits “cruel and unusual treatment or punishment.” In the first case, R. v. B.J.T., 2016 ONSC 6616, Desotti J. convicted the accused of sexual assault and sexual interference in relation to two separate incidents involving his daughter. When she was age 13, and again at age 15, the accused shaved his daughter’s pubic hair, at her request. He was described as “a simple man of limited intellectual abilities.” Desotti J. held that the one year mandatory minimum sentence was “grossly disproportionate” in the circumstances of the first incident and that he would have imposed a suspended sentence. He struck down the mandatory minimum and sentenced the accused to nine months imprisonment in relation to the second of the two incidents, by which time the accused’s wife had intervened and had told him that his conduct was inappropriate.
26The second case, R. v. M.L., 2016 ONSC 7082, was decided about one month later. Linhares de Sousa J. tried the accused with a jury. He was found guilty of sexual assault and sexual interference in relation to an incident that involved touching and squeezing of the 15 year old complainant’s bare breasts. The accused was in a position of trust towards the complainant, as she was related to his family and she would sleep over at his house and go on holidays with the family. Nothing improper had ever happened, aside from the one incident. During that one incident, the accused stopped touching the complainant’s breasts when she told him to stop, and the misconduct was never repeated. The accused was a 59 year old first offender. Linhares de Sousa J. held that the one year mandatory minimum was “grossly disproportionate,” in reasonable hypothetical cases derived from reported sentencing decisions where 60 to 90 days had been imposed. She struck down the mandatory minimum and imposed a sentence of nine months on the accused.
27The third case, R. v. Sarmales, 2017 ONSC 1869, was heard this year. Smith J. ruled that defence counsel did not have to re-argue the constitutional issue and that the case would proceed to sentence for the offence of sexual interference, contrary to s. 151 of the Criminal Code, as if there were no mandatory minimum. He reasoned as follows (at paras. 12, 15-16, and 20):
I agree with the Crown’s enunciation of the principles of stare decisis, namely that a judge is not bound by a decision of another judge of the same court on the same issue. A decision by a judge of a court of concurrent jurisdiction is of persuasive value only. However, the need for judicial restraint is further heightened where a court of concurrent jurisdiction has declared legislation struck as per s. 52 of the Constitution Act. Justice Strathy endorsed this view in R. v. Scarlett, 2013 ONSC 562 and at para. 43 summarized an applicable test from Re Hansard Spruce Mills Ltd., [1954] 4 DLR 590 (BCSC) as follows:
[a] judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.
The issue to be determined is whether the constitutionality of the minimum sentence provision under s. 151 of the Criminal Code is still “in question” after a Superior Court judge has declared the mandatory minimum sentence under this section of the Criminal Code to be unconstitutional and of no force and effect.
The Crown is bound by a declaration made by a Superior Court judge, with inherent jurisdiction, that a section of the Criminal Code is unconstitutional, is of no force and effect, and is effectively removed from the statute books, where notice of a constitutional question was properly served on the Attorney Generals of Canada and of Ontario. This includes de Sousa J.’s declaration that the minimum sentencing provision of s. 151 of the Criminal Code is effectively struck from the statute books and is of no force and effect.
I agree with the submission by the defence that, once a declaration is made by a judge with inherent jurisdiction, that the law contravenes the Constitution, the offending section ceases to exist and is of no force and effect. This ruling is binding on the Crown and can only be altered on appeal. As a result, there is no constitutional issue that remains “in question” once such a declaration has been made under s. 52(1) of the Constitution Act by a judge with inherent jurisdiction.
28In my view, principles of comity between judges of cognate jurisdiction are to the effect that decisions by a judge of this Court should generally be followed by other judges of this Court. The longstanding law in Ontario on this point was summarized by Strathy J., as he then was, in R. v. Scarlett, 2013 ONSC 562, [2013] O.J. No. 644 at para. 43 (S.C.J.). The decision in Scarlett was released at a time when the three year mandatory minimum sentence in s. 95 of the Criminal Code had been struck down by Molloy J. in the Smickle case. In the subsequent s. 95 of the Criminal Code case of Scarlett, Strathy J. had to decide whether to follow Molloy J.’s earlier decision in Smickle. He stated the following:
The decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them: see Re Hansard Spruce Mills Ltd., [1954] 4 DLR 590 (BCSC); R. v. Northern Electric Co. Ltd., [1955] OR 431 (HC), at para. 31. Reasons to depart from a decision, referred to in Hansard Spruce Mills, include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or a relevant statute; or (c) that the decision was otherwise made without full consideration. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong. I am not satisfied that the decision in Smickle is plainly wrong.
29I agree with the above decisions of my three colleagues in B.J.T., M.L., and Sarmales and, in any event, they should be followed for the reasons set out in Scarlett. Accordingly, the sentencing in this case will proceed on the basis that the one year mandatory minimums are of no force or effect. I should add that the Crown has appealed the decisions in B.J.T. and M.L. but the appeals have not yet been listed.
(ii) A fit and proportionate sentence in this case
30The principles of sentencing are set out in sections 718, 718.1, and 718.2 of the Criminal Code and I am bound by those principles. The fundamental principle of sentencing, as set out in s. 718.1 of the Criminal Code, is that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Of particular importance in this case is s. 718.01 of the Criminal Code which provides that when sentencing for an offence “that involved the abuse of a person under the age of 18 years,” the court must “give primary consideration to the objectives of denunciation and deterrence of such conduct.”
31In my view, the two main aggravating circumstances in this case are the following:
- first, the offence involved full sexual intercourse with a 13 year old girl, at a point in her development when she was immature and vulnerable. It was not a case of brief external touching, such as R. v. M.L., supra and some of the cases relied on therein by Linhares de Sousa J., where lesser impacts from less invasive assaults could be anticipated;
- second, the offence was committed after the accused had been forcefully warned by N.M.’s mother, that her daughter was 14 and that their sexual communications were “inappropriate.” In other words, the offence involved some persistence in the face of a clear and authoritative warning.
32Two further circumstances should be noted. First, the accused did not plead guilty and he continues to insist that he is innocent and that N.M. is to blame. This is obviously not an aggravating circumstance but it distinguishes the case from other more mitigated cases where remorse, and a full appreciation of and insight into the offence, are present. Second, and conversely, there was no breach of trust in this case and there is no evidence concerning the impact of the offence on N.M. She and her mother did not wish to speak to the author of the Pre-Sentence Report and they did not provide a Victim Impact Statement. They want to “put this situation behind them and move on with their lives.” These factors are obviously not mitigating but they distinguish the case from other more aggravated cases where there has been a breach of trust and/or there is evidence of significant adverse impact to the victim.
33In my view, the three main mitigating circumstances in this case are the following:
first, the offences all relate to a single incident that occurred during a short time period on one day. There was no ongoing course of conduct or any repetition of the offence;
second, the accused’s fault is based on a lack of due diligence or a failure to take reasonable steps to ascertain N.M.’s age. These forms of objective or negligence-based fault are usually associated with regulatory or strict liability offences. In R. v. Hamilton and Mason, at para. 91, Doherty J.A. explained the link between the fault element of a crime and the principle of “proportionality” in sentencing:
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence — especially the fault component — and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.
third, the accused is a first offender who has led an otherwise law-abiding and pro-social life. He has always worked and he appears to enjoy the support of his family, although it is unclear how much has been disclosed to his family about the present offences.
34It can be seen that the aggravating and mitigating circumstances in this case are relatively evenly balanced. It is neither the worst nor the best case of its kind.
35The appropriate range of sentence in cases involving external sexual touching of children were reviewed extensively by Linhares de Sousa J. in R. v. M.L., supra, and I will not repeat her summaries of these cases. In the most mitigated cases, sentences of 90 days imprisonment were imposed. In the more aggravated cases, especially those involving breaches of trust and some repetition, sentences between six months and fifteen months were imposed. To similar effect, see: R. v. Toten; R. v. Levert; R. v. R.W.D.; R. v. D. (L.J.). The case at bar, of course, involved some external sexual touching but it also involved a single act of intercourse. In cases involving acts of oral sex with children, somewhat longer sentences of 17 months or 18 months have been imposed, as these assaults are more invasive. In R. v. Cerda, 2008 ONCA 438, the Court held that 18 months was the appropriate sentence where the accused groomed two boys age 10 and 12 over a period of one to one and a half years and engaged in fellatio with them. In R. v. Manjra, 2009 ONCA 485, the Court held that 17 months was “within the range for this offence, even for a first offender,” where the accused committed an act of cunnilingus with a 7 year old girl. He was at “the low-end of a trust relationship” with the victim who was the child of a neighbour.
36None of the above authorities capture an important aspect of the case at bar, namely, the fact that the accused and the complainant saw themselves as being in some kind of a relationship. N.M. regarded Hussein as her “boyfriend” and he regarded her as a sexual partner, albeit one who he had no reasonable basis to believe was capable of consenting. The two most useful cases I could find in relation to this issue are R. v. P.M. and R. v. C.B., 2016 ONSC 2192.
37The facts of P.M. were that the accused was a family friend who would babysit the complainant, beginning at a time when she was 11 years old and he was 26. The sexual assaults began with kissing, fondling, and rubbing in the early years. When the complainant was 13, and the accused would have been 28, he began to have sexual intercourse with her, which continued until she was 16. The complainant believed that she was “in a love relationship with a boyfriend” and the accused “made her feel that he was her boyfriend.” The accused was in a position of trust throughout the relationship. He pleaded guilty when charges were laid many years later. He was now 44 years old, he had a family of his own, he had no criminal record, and he was employed.
38It can be seen that P.M. was a far more serious case than the case at bar, mainly because it involved a significant breach of trust and ongoing repeated offences over a five year period. In addition, there was evidence that the offences resulted in a significant adverse impact to the victim. However, the fact of a boyfriend-girlfriend relationship, the role of consent, and the age differential between the parties when intercourse took place, all bear a strong resemblance to the case at bar. The trial judge had imposed a conditional sentence. The Court of Appeal allowed a Crown appeal and imposed a jail sentence of two years less a day. Feldman J.A. (Moldaver and MacPherson JJA. concurring) reasoned as follows (at paras. 19 and 27):
This conduct is also frightening because as a 26 year-old man, the respondent induced a vulnerable child into an ongoing sexual relationship by leading her to believe that they were boyfriend and girlfriend. This is exploitation of the worst order. Young women entering their teenage years face a myriad of confusing feelings regarding their bodies, their emotions, and their sexuality. It is difficult enough to deal with these issues with a judgmental and often cruel peer group. To exploit a young teenager as this man did reveals a level of amorality that is of great concern. The fact that the conduct was consensual on the part of C, who believed she was in a love relationship with a boyfriend, is far from being a mitigating factor as suggested by the defence and instead is an aggravating factor as part of the gross breach of trust involved in this offence.
The trial judge emphasized several mitigating factors in arriving at the sentence, including the guilty plea, the appellant’s stable work and family circumstances, and his clean prior record. These factors are of course important and relevant and justify a reduction in the length of sentence that might otherwise be imposed. In my view, these factors serve to reduce the sentence from a penitentiary term to a period of two years less a day.
39The second case, C.B., was decided four years after P.M. The facts of C.B. were that the 14 year old victim was living with the accused at the relevant time. He was her half uncle and he was 33 years old at the time. On one occasion, she spoke to him from her bedroom, stating that “she was feeling horny.” He responded by suggesting that she masturbate. She then suggested that he “should help her.” At this point, he digitally penetrated her and engaged in an act of cunnilingus. When she asked him to stop, he immediately desisted. There was no repetition. The accused was a 39 year old first offender who went to trial. He had lost his job and was trying to upgrade his education.
40LeMay J. of this Court held that the breach of trust in C.B., as well as the significant age differential between the parties, were aggravating factors. On the other hand, the case involved “only one incident of a very short duration.” LeMay J. imposed a sentence of ten months, reasoning as follows (at paras. 27, 31, and 35):
The case before me is distinguishable from P.M. While the offender in this case had a close relationship with the victim, he did not have an ongoing sexual relationship with the victim, and the one assault that took place in this case did not result from any inducement by the offender that he and the victim were in a boyfriend/girlfriend relationship. I note that P.M. plead guilty, but even with the mitigating factors in P.M.’s case, the offence that P.M. committed is still more serious than the one in this case, and should have attracted a significantly higher sentence.
The defence spent some time advancing, at least indirectly, the argument that the victim’s consent was potentially a mitigating factor. It is clearly not appropriate to view the consent of an underage victim as a mitigating factor.
Ultimately, when the cases are reviewed, it is clear that the ones advanced by the Crown all involve more serious offences than the case I have to consider. It is also clear that, in this case, there is no basis for a sentence at the statutory minimum either [which was 45 days at the time]. This was an offence in which there was both digital penetration and oral sex, which raises the level of seriousness. In addition, while the facts are not as serious as some other cases and there was only one incident, this incident had negative consequences for the victim.
41As noted previously, P.M. was a more serious case than the case at bar. Conversely, C.B. was a somewhat less serious case as there was no intercourse and no “inducement” concerning a “boyfriend-girlfriend relationship,” both of which are features of the present case. On the other hand, there was a breach of trust in C.B. and there was a greater age differential than in the present case.
42In conclusion, I situate the case at bar somewhere between P.M. and C.B., in terms of its mix of aggravating and mitigating circumstances, and would impose a sentence of 15 months imprisonment. There should also be a two year period of probation, as Mr. Rodocker submitted, including a requirement that the accused engage in any counseling recommended by the probation officer and that he have no contact with the complainant.
43The five ancillary orders sought by the Crown and agreed to by the defence are granted, as follows: a DNA Order pursuant to s. 487.051 of the Criminal Code; a s. 161(a.1) Order prohibiting contact with the complainant; a SOIRA Order for 20 years pursuant to s. 490.013(2)b of the Criminal Code; a s. 109 firearms prohibition Order for ten years; and an Order pursuant to s. 743.21 of the Criminal Code prohibiting communication with the complainant while the accused serves the custodial sentence.
44The Crown also submitted, somewhat faintly, that there should be Orders made pursuant to s. 161(a) and (b) of the Criminal Code, prohibiting attendance at public parks or swimming pools where persons under 16 are present and prohibiting employment or volunteer work involving persons under 16. In my view, there is no basis in the record before me for these two requested Orders and they are not granted.
(iii) The Kienapple issue
45The accused was found guilty of the three offences charged: sexual assault; invitation to sexual touching; and sexual interference. The Crown and the defence agree that these three offences engage the rule against multiple convictions. They also agree that the first two of the above findings of guilt should be stayed and that a conviction should be entered in relation to the sexual interference offence. The Crown submits that sexual interference, contrary to s. 151 of the Criminal Code, best captures the nature of the delict in this case. See: R. v. Kienapple, [1975] 1 SCR 729; R. v. Prince, [1986] 1 SCR 810.
46I did not hear any adversarial argument on the issue of whether sexual assault or sexual interference is the more serious of the two offences, or which offence best captures the nature of the delict, given the agreement between the parties set out above. In light of that absence of argument, and given that my colleague LeMay J. has decided this issue in a well-reasoned judgment, R. v. F.L., 2015 ONSC 1215, at paras. 21-25, I defer to and adopt his Reasons as follows:
The offender argues that a conviction should only be entered for sexual assault, and that the sexual interference and invitation to sexual touching charges should be stayed. The Crown argues that, if a conviction is only going to be entered on one charge, it should be the sexual interference charge. I agree with the Crown.
The offender argues that the sexual assault charge is the most serious of the charges. I do not agree for two reasons. First, given the age of the complainant and the fact that the Crown has proceeded by way of indictment, the sentences for both offences are the same. Second, one of the required elements of the sexual interference charge is that the victim must have been under the age of fourteen at the time that the assaults took place. This is not an element of the offence of sexual assault.
This brings me to why a conviction for sexual interference is more appropriate in this case. In my view, the sexual interference charge is a more precise and complete explanation of the crime that was committed in this case. It includes a recognition that the crime was committed against a victim who was a child. This is, in my view, a key element of this case.
F. CONCLUSION
47In the result, the accused Hussein is sentenced to 15 months imprisonment, to be followed by two years probation on the statutory terms and on the additional terms stated above. The sentence is to be applied to a conviction entered on the count of sexual interference. The other two findings of guilt are stayed pursuant to the rule in Kienapple. The five ancillary Orders agreed to by the parties and set out above, are all granted.
48I would like to thank both counsel for their helpful submissions and for the effective and efficient way in which they conducted this trial.
M.A. Code J.
Released: July 6, 2017
