CITATION: R v. M.S. 2017 ONSC 4807

COURT FILE NO.: CRIMJ(P)1726

DATE: 2017 08 11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

K. Watson, Crown Counsel

• and -

M.S.

S. Malik, Counsel for the Accused

HEARD: March 21, 22, 23, 24, 28, May 8, July 31, 2017

REASONS FOR SENTENCE

TRIMBLE, j.

1On May 8, 2017, I found Mr. M.S. guilty on one count of sexual assault against SLF under. s. 271 of the Criminal Code and one count of sexual touching of SLF under s. 151. At the time of the events, SLF was under 16 years of age. I acquitted Mr. M.S. of one count of invitation to sexual touching under s. 152 of the Criminal Code.

2I have heard SLF’s Victim Impact Statement. Through counsel, I heard from Mr. M.S., who thanked me for my conduct of this trial. I am ready to pass sentence.

FACTS:

3I provided detailed reasons released on May 8 and partially read into the record. For sentencing purposes I do not repeat all of my findings. The following of my factual findings are of significance to sentencing:

(1) Mr. M.S. was SLF’s step-father.

(2) SLF was under 16 years of age at the time of the assaults.

(3) The assaults all occurred in the family residence.

(4) The sexual touching occurred when other family members were out of the house.

(5) The sexual assault took place on the bed when SLF and her baby brother were asleep in front of the television.

POSITION OF THE PARTIES:

1. The Crown

4The Crown submits that I should sentence Mr. M.S. to 5 years, either on the totality principle, or for four years on the sexual assault and 1 year on the sexual touching, with the sentences to run consecutively

5In addition, the Crown seeks an order that Mr. M.S. be declared a sex offender for 20 years and be registered under SOIRA, a DNA order, and a s. 109 order prohibiting him from possessing weapons for 10 years. These are all mandatory. The Crown seeks an order under s. 161(1) (a.1) that Mr. M.S. be prohibited from being with 500 meters of SLF’s home or anywhere where she might be. The Defence does not contest this.

6In addition, the Crown seeks an order under s. 161(1) (a and b) prohibiting Mr. M.S. from being in any public place, or taking any job (paid or volunteer) where people under 16 are likely to be. The Crown says that the fact of Mr. M.S.’ conviction is sufficient grounds to impose the ban under s. 161(1)(a and b).

7The Crown relies on the following cases:

(1) R. v. D. (D.) (2002), 2002 CanLII 44915 (ON CA), 58 OR (3d) 788; 163 CCC (3d) 471; [2002] OJ No 1061 (QL);

(2) R. v. D.M., 2012 ONCA 520, 111 OR (3d) 721; 288 CCC (3d) 564; [2012] OJ No 3616 (QL);

(3) R. v. R.J., 2010 CanLII 88908 (ON SC), [2010] O.J. No. 5980;

(4) R. v. J.W.(B.), 2012 ONSC 306, [2012] O.N. No. 1196 (S.C.J.);

(5) R. v. E.G., 2017 ONSC 1000.

2. The Accused

8Mr. M.S. concedes that, given the convictions, a penitentiary sentence is required. He submits that he should be sentenced to 2 to 3 years.

9Mr. M.S. relies on the following cases:

(1) R. v. R.R., [2014] OJ. No. 4498 (S.C.J.)

(2) R. v. A.H., 2013 ONSC 6846 (S.C.J.).

PRINCIPLES OF SENTENCING:

1. Generally:

10Section 718 of the Criminal Code states:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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 …

11Section 718.1 says that sentences “... must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

12Section 718 of the Criminal Code also sets out a number of objectives that a sentencing judge must consider when sentencing, including denouncing accused’s unlawful conduct, deterring the offender and other persons from committing offences, separating an offender from society (where necessary), rehabilitating the offender, making reparation for harm done to victims or to the community, and promoting a sense of responsibility in the offender acknowledging the harm done to the community

13Sexual assault is of the most serious or grave offences. It is even more serious or grave where the assault is by an adult of a child, in which case it attracts a more severe sentence (see R. v. Trowbridge, [1991] O.J. NO. 2800 (C.A.).

14Why is this? The case law and common sense tell us that sexual assault is a crime in which the perpetrator inflicts physical violence and violation on the victim, but also dominates and degrades her. The physical harm is often minimal; but the emotional and psychological, devastating (see R. v. Johnson, [1998] O.J. No. 92; R. v. Myers, [2000] O.J. No. 1787 (S.C.), and the psychological ramifications, pernicious, devastating, and long lasting (see R. v. M.A., [1996] O.J. 2899). It robs the victim of her most intimate security - security of the person. The victim is often fearful, angry, hostile and distrustful ever after.

15The depth, breadth and pervasiveness of the impact of sexual assault require that the Court give appropriate emphasis to the principles of denunciation, protection of society, and general and specific deterrence (see R. v. Smith, [2001] O.J. No. 4512 (S.C.).

16In D.D., supra, Moldaver, J.A. said clearly (albeit in reference to a pedophile) that adult sexual predators who put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. Denunciation, general and specific deterrence, and the need to separate the offender from society, are paramount over other objectives of sentencing. The physical and more important, the psychological damage done to the victim of a major sexual assault is well known. Chief among the psychological effects is that the victim has difficulty in forming loving, caring relationships with other adults, being ever fearful that his or her partner will use sexual acts to hurt and dominate the victim, rather than accept them as the expression of a partner`s caring and affection. There is also the risk that the victim, in adulthood, will become a victimizer by treating children the way that the victim was treated.

17Moldaver, J.A. expressed society`s abhorrence of sexual offences when he said at paragraph 44:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

18Notwithstanding the gravity, depth and breadth of the effects of sexual assault, the wide range of sentence imposed for sexual assault reflects the wide array of circumstances in which the offence can be committed and the variety of offenders who may commit it. Every case is decided on the particular circumstances of the offender and the offence (see R. v. Katsnelson, 2010 ONSC 2246 (S.C.).

ANALYTICAL FRAMEWORK:

19In R. v. John Doe, [2005] O.J. No. 3261 (S.C.J.), Hill, J. said that the appropriate framework to determine a fit sentence is to answer those of the following questions appropriate to the case:

a) What judicially created sentencing tariff or guideline range governs the offender’s offence?

b) Within the correct starting range, what is the appropriate balance of common mitigating and aggravating factors?

c) Do any exceptional or extenuating mitigating factors apply in the accused’s circumstances?

d) If the appropriate range of sentence includes a reformatory range sentence, is a conditional sentence of imprisonment justified?

20I address the first three of these. The fourth is not relevant to this case.

a. Sentencing Range:

21Based on all of the facts, I find that the appropriate sentence range is 3 to 8 years. Why do I say this?

22D.D. is instructive in that it sets the rage in the mind to high single digit penitentiary sentence “…when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time…”

23D.D. sets the high end on the range. There are important factual differences between Mr. M.S.’ case and D.D., which distinguish it. In D.D., the offender was a pedophile charged with and convicted of 11 sexual offences against boys of 5 to 8 years of age, over a period of 2 to 7 years. He is described as having “deviant sexual cravings”. The acts included acts of masturbation, oral sex, group sex, attempted anal intercourse with some, and successful anal intercourse with others. It is clear that his activity with his victims was far greater than the 11 counts of which he was convicted. He groomed his victims. Too keep them compliant, he bought gifts took them on adventures, allowed them to use his videos and provided alcohol and cigarettes. He also used violence to ensure his victims’ silence.

24R. v. R.R. and R. v. H., with sentences of 3 years, and 2 ½ years, respectively, set the low end of the range. Those cases too can be distinguished in that they did not involve intercourse.

b. What Are The Appropriate Mitigating And Aggravating Factors, And What Is The Acceptable Range For Sentence?

Aggravating Factors:

25I consider the following to be the relevant aggravating factors:

(1) Mr. M.S. was SLF’s step-father. While their relationship does not appear to have been close, and was fractious at times, Mr. M.S. was in a position of trust with respect to SLF;

(2) There were two sexual incidents of which he was convicted;

(3) He committed those incidents while he was the parent in charge, with an obligation to make sure that SLF was safe;

(4) SLF was, at all times, under 16 years of age;

(5) All assaults were conducted in the family home, a place where SLF ought to have been, and had the right to feel safe;

(6) He used multiple forms of contact – touching, groping, digital penetration, and vaginal intercourse;

(7) He asked SLF, following the sexual assault, to not tell anyone;

(8) His acts, by their nature, were predatory;

(9) He showed no remorse.

Mitigating Factors:

26I consider the following to be the relevant mitigating factors

(1) The accused has no criminal record. This is his first offence;

(2) He has been gainfully employed throughout his life;

(3) He is engaged to be married and has the full support of his fiancée;

(4) He has support of his family. He sees his one teen-aged son (whose mother is SLF’s mother), daily, and his other children (all adults) as frequently as he can.

(5) This teenaged son provided a moving letter on Mr. M.S.’ behalf.

(6) Mr. M.S. has been faithful in his financial obligations to his teen-aged son;

(7) The letters filed indicate that he is active in his church, is reliable and helpful. He has the support of that community;

(8) The Pre-Sentence Report was relatively positive;

(9) His crimes were crimes of opportunity. There was no evidence of premeditation or grooming.

c. Are there Any Exceptional or Extenuating Mitigating Factors that take the Appropriate Sentence Out of the Acceptable Range?

27Mr. M.S.’ submissions included a letter from Mr. M.S.’ teenaged son, asking me not to send Mr. M.S.’ to prison because of the effect that a prison sentence will have on the young Mr. M.S.. The same argument was made, although not forcefully, in submissions.

28It is true that an accused’s children are affected if the accused is incarcerated. If Mr. M.S. is incarcerated, his children will be deprived of his income, love, attention, and guidance for the duration of the incarceration. Those interests, however, cannot predominate in sentencing. They must be weighed against the accused’s culpability and responsibility in the offences of which they are convicted, and the effect of those offences on others. As Doherty, J.A. stated in R. v. Spencer, 2004 CanLII 5550 (ON CA), [2004] O.J. No. 3262 (C.A.),

46It is a grim reality that the young children of parents who choose to commit serious crimes necessitating imprisonment suffer for the crimes committed by their parents. It is an equally grim reality that the children of parents who choose to bring cocaine into Canada are not the only children who are the casualties of that criminal conduct. Children, both through their use of cocaine and through the use of cocaine by their parents, are heavily represented among the victims of the cocaine importer's crime. Any concern about the best interests of children must have regard to all children affected by this criminal conduct.

47The fact that Ms. Spencer has three children and plays a very positive and essential role in their lives cannot diminish the seriousness of her crime or detract from the need to impose a sentence that adequately denounces her conduct and hopefully deters others from committing the same crime. Nor does it reduce her personal culpability. It must, however, be acknowledged that in the long-term, the safety and security of the community is best served by preserving the family unit to the furthest extent possible. In my view, in these circumstances, those concerns demonstrate the wisdom of the restraint principle in determining the length of a prison term and the need to tailor that term to preserve the family as much as possible. Unfortunately, given the gravity of the crime committed by Ms. Spencer, the needs of her children cannot justify a sentence below the accepted range, much less a conditional sentence.

29While Spencer arises from a drug prosecution, the same sentiments apply here.

SENTENCE:

30Based on these reasons, I find the fit, proper, proportional and appropriate sentence to be as follows, on each count.

(1) 4 years for sexual assault;

(2) 6 months for sexual touching.

31The sentences are to run concurrently.

32I assume counsel can agree to the amount of pre-sentence custody and credit.

S. 161 ORDER

33A sentencing court has a discretion to impose a protective order pursuant to s.161 of the Criminal Code. The Crown wishes me to impose an order under ss. 161(1)(a, a.1 and b) for 20 years. These sections read:

When an offender is convicted, or discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

a) attending a 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;

a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;

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;…

34Courts are often asked to impose a s.161 order where sexual crimes against children have been committed.

35In a recent case involving possession simpliciter of child pornography, in which the sentencing judge imposed a s.161 order prohibiting the offender from attendance at various places and activities which involve children under age 16 and from using a computer to communicate with persons under 16, the offender challenged imposition of the order on appeal.

36The appeal did not succeed: R. v. Miller, 2017 NLCA 22. The court stated:

8The fundamental purpose of a section 161 prohibition order is to protect children from sexual violence (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906 at paras. 44-46). It is also a form of punishment that is part of the arsenal of sanctions which can be imposed on offenders upon certain convictions (paragraphs 50 and 57). Possession of child pornography is one of the offences in respect of which a conviction can result in the imposition of a section 161 order. The section requires a sentencing judge to consider making such an order, but he or she is not required to impose one.

9In K.R.J. the Supreme Court was considering whether the retrospective operation of sections 161(c) and (d) was constitutional. Section 161(c) prohibits unsupervised contact with a person under 16 years of age and section 161(d) prohibits use of the internet per conditions set by a court. In confirming the protective purpose of section 161 orders, the Court ruled that such orders can only be imposed when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize that risk (paragraph 48).

19As noted above, the imposition of a section 161 order is a discretionary decision. A judge’s discretion, of course, must be exercised judicially (R. v. Bussey, 2014 NLCA 18 at para. 12), which in this case would require the judge to have a proper basis for imposing the order. If a sentencing judge errs in a manner which impacts the imposition or the terms of the order, this Court could intervene (R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 44).

21All things considered, the direction from the Supreme Court in K.R.J. and its direction respecting harms occasioned by the possession of child pornography in Sharpe, and the reasoning in A.(R.K.), lead me to conclude that the facts and circumstances of a particular offence and/or an offender can satisfy a judge that the offender poses a risk of danger to children so as to justify the imposition of a section 161 order.

31The sheer number of images in this case, their violent content, the tender ages of the children depicted, and the fact that Mr. Miller viewed and deleted this material over a period of time show that he poses a risk to children by having exposed himself to the material described herein or by the possibility of reoffending, thereby harming children in the ways that Chief Justice McLachlin recognized in Sharpe. In particular, the images could distort or could have distorted Mr. Miller’s cognition about the appropriateness of adults engaged in sexual activity with children and his persistent viewing of the material could fuel fantasies that would incite him to engage in harmful activity or act on fantasies. These are accepted risks of the possession of child pornography (Sharpe at paragraphs 88 and 89). As well, it goes without saying that possession of child pornography “clearly and uncontradictedly” poses a risk of harm to children by its use to groom children for the sex trades and actually harms the children used and abused in the material (Sharpe at paragraph 91).

33Mr. Miller did not have a criminal record. While that fact is in itself helpful to him, it is not determinative of no or low risk of future harm. Moreover, it is qualified by the fact that his offence cannot be fairly characterized as a one-time act of curiosity; viewing, downloading and then viewing new material took place over a known period of several months. He was convicted only once, but he had been committing the offence over a period of time.

34To be clear, this decision is not to be taken to mean that Mr. Miller is likely to reoffend and thereby harm children or that he is likely to otherwise harm children. The decision means that the facts and circumstances of this case show that he poses a risk of future harm to children, so as to justify imposition of a section 161 order, which is directed to minimizing such risk.

37The Crown bears the onus of satisfying me that it is reasonable and necessary to grant a s. 161(1)(a.1) order. The Crown must do so by evidence. Other than the fact that Mr. M.S.’ convictions are for sexual offences against a minor, there is no evidence presented that suggests that there is any risk in contact with Mr. M.S. to anyone other than SLF. The Defence takes no issue with the prohibition of contact between Mr. M.S. and SLF. There is no evidence or hint in the evidence that Mr. M.S. is a pedophile, consumed pornography, conducted himself inappropriately with other minors, or trolled for victims at places where minors would be other than to drop his son off at school and pick him up. Absent any evidence of risk to people other than SLF, I cannot make the s. 161(1)(a or b) order. I make the requested orders under s. 161(1)(a.1), only.

OTHER ORDERS

38The Crown requests a section 109(1)(a) order for 10 years, a DNA order, and that Mr. M.S. comply with the Sex Offender Information Registration Act, for a period of 20 years, pursuant to Code s. 490.012 and 490.013(2)(b). These orders shall issue.

Trimble J.

Released: August 11, 2017

CITATION: R v. M.S. 2017 ONSC 4807

COURT FILE NO.: CRIMJ(P)1726

DATE: 2017 08 11

ONTARIO

SUPERIOR COURT OF JUSTICE