CITATION: R. v. R.D., 2017 ONSC 6064
COURT FILE NO.: CR-15-7436
DATE: 2017-10-25
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.D.
Defendant
Counsel:
Lucas O’Neill, Counsel for the Crown
Corbin Cawkell, Counsel for the Defendant
HEARD: July 21, 2017
REASONS FOR SENTENCE
PUBLICATION RESTRICTION NOTICE
Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This Judgment complies with this restriction so that it can be published.
CHARNEY J.:
Facts
[1] On April 28, 2017 the respondent was found guilty of the offences of sexual assault, sexual interference and invitation to sexual touching. For reasons released on September 14, 2017, the counts of sexual assault and invitation to sexual touching are stayed pursuant to the rule in Kienapple, and a conviction was entered in relation to the count of sexual interference.
[2] The offences all relate to a single incident that occurred in 2002 or 2003. As the reasons for conviction (R. v. R.D., 2017 ONSC 1856) fully set out the facts relating to these offences, only a summary reference to the facts is necessary.
[3] The accused was supervising his son’s birthday party at the indoor pool in his home. He was the only adult in the pool area. The complainant, who was 8 or 9 at the time, was a guest at the pool party, but did not go into the pool. The accused directed the complainant to remove his bathing suit and take a shower by the change room. After a few seconds the accused followed the boy into the shower and proceeded to wash his body and hair and stood behind him. The accused began touching the complainant’s penis and then took the complainant’s right hand and moved the boy’s hand up and down the accused’s penis. The accused then made a moaning sound and motioned as if he had ejaculated before leaving the complainant in the shower. The complainant reported the offence in 2015.
Position of the Crown and Defence
[4] The Crown takes the position that R.D. should be sentenced to a prison term of 3 to 4 years before credit for pre-sentence custody.
[5] The Crown takes the position that there are no mitigating factors, but that there are several aggravating factors. The first is that the accused is not a first time offender. He was convicted in 1989 of sexual exploitation and making obscene material in relation to a 12 year-old boy, for which he was sentenced to 75 days intermittent for sexual exploitation and 45 days concurrent for making obscene material. In addition, the accused was in a position of trust when this offence was committed. He was responsible for supervising the children at his son’s pool party, and took advantage of that position of trust to sexually assault the complainant. The Crown acknowledges that this falls at the lower end of the spectrum of trust – below that of a teacher or camp counsellor who may have an ongoing relationship with the child – but the accused was still in a position of trust as the only adult supervising his son’s pool party.
[6] The defence takes the position that the accused should be sentenced to time served.
[7] The Crown has calculated pre-trial custody as 539 days (573 days less time served in relation to a subsequent breach of SOIRA), for a total of 808 days (2 years and 78 days) credit on the basis of 1.5:1 per R. v. Summers, 2014 SCC 26.
[8] The defence argues that an additional 3 months should be added to that time to take into account lock-downs during pre-sentence custody. If accepted this would total 2 years 5 months credit for pre-trial custody.
[9] Defence argues that the accused presents less of a risk now than he did at the time the offence was committed. He is now 58 years of age, and he is no longer in a position of trust since he has not lived with his family since 2006, when he was charged and convicted of making and possessing child pornography. This makes it less likely that the accused will have the opportunity to commit sexual assaults against children in the future. Indeed, while the accused has been convicted of possession of child pornography twice since this offence was committed (once in 2006 and once in 2012) he has not been charged with sexual assault or sexual interference since the offence before the court, which took place in 2002 or 2003.
[10] With regard to the issue of credit for pre-trial custody, the accused has provided a diary, which was filed on consent, indicating that he was subject to 94 days of lockdown (full or half day) prior to September 11, 2017, of which there were 22 days of lock down with 3 to a cell.
[11] On September 12, 2017 the accused was sentenced to a custodial term of 12 months by the Ontario Court of Justice for failing to comply with a condition of his recognizance and for breach of probation. Since that date he has been in custody, but not pre-trial detention. The accused has provided a new diary indicating that he has had a further 20 days of lockdown since September 11, 2017. Defence argues that I should consider these lockdown days as well because the lockdown applies only to remand inmates.
[12] Several cases have recently discussed whether long periods of lockdown or other "particularly harsh" treatment should result in enhanced credit (beyond 1.5:1) given to the accused for pre-trial custody. See: R. v. DeSousa, 2016 ONSC 5493 at paras. 51 – 69 and R. v Passera, 2017 ONSC 2799 at paras. 120-133.
[13] In Passera Woollcombe J. observes (at para. 121) that,
The phrase “lock-down” must be used with some care. “Lock-down” can mean different things in different situations. In this case, Ms. Passera uses it to refer to any period of time in which she was confined to her cell when the rules of the unit suggested that she should have been permitted out of her cell. This is a very different use of the term than in some of the other cases in which credit for lock-down has been considered.
[14] The cases do not provide a formula for giving credit for lockdowns. It appears that credit is determined on a rough basis by taking into account the totality of the circumstances, including the nature and duration of the lockdown and the harshness of the conditions. Accordingly I have taken these conditions into account to increase the pre-trial credit to 2 years and 4 months (28 months).
Analysis
[15] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: s. 718 of the Criminal Code. The following objectives must be considered in forming a just sanction:
(a) To denounce unlawful conduct; (b) To deter the offender and other persons from committing offences; (c) To separate offenders from society where necessary; (d) To assist in rehabilitating offenders; (e) To provide reparations for harm done to victims or to the community; and (f) To promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[16] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code.
[17] A sentence must also take into account any aggravating or mitigating circumstances relating to the offence or the offender, as well as the sentences imposed on similar offenders for similar offences committed in similar circumstances: ss. 718.2(a) and (b) of the Code.
[18] The objectives of deterrence, denunciation and public safety are generally the most important objectives of sentencing when dealing with the sexual abuse of children: R. v. D.D. (2002), 2002 CanLII 44915 (ON CA); R. v. Brar, 2016 ONCA 724 at para. 16.
[19] I have also considered the Victim Impact Statements filed by the complainant and the complainant’s mother. The complainant has described the emotional challenges that he attributes to the incident. He states that the accused has taken away his peace of mind and shattered his spirit at a young age. Both the complainant and his mother have described the impact that the incident had on the complainant’s ability to trust and develop relationships. While defence counsel questions whether these impacts are actually attributable to the assault, these impacts are consistent with the “well-recognized” consequences of the sexual exploitation of children identified by the Ontario Court of Appeal in R. v. Woodward, 2011 ONCA 610, at para. 72.
[20] In addition I have reviewed a letter from the accused’s probation officer dated November 23, 2016. This letter indicates that the accused was unemployed, which the accused attributes to his bail and probation conditions that prohibit him from using a computer because he was convicted of making and possessing child pornography in 2006, and possession of child pornography in 2012. According to this report the accused would not consider any jobs that did not require the use of computers because he thought such jobs were beneath him.
[21] In assessing the appropriate sentence for sexual interference or sexual assault of a minor, the courts have considered various aggravating factors, including:
(a) Frequency or persistence of sexual touching; (b) Nature of sexual touching and whether there was penetration or attempted penetration (vaginal, anal, oral); (c) Existence of a trust relationship and level of trust; (d) Prior convictions for sexually related offence against a minor; (e) The age of the child; (f) Number of victims; (g) The use of corruptive means to groom the child; (h) The use of physical violence, threats of violence, extortion or bribes to force the assault or obtain silence.
[22] In Woodward the Ontario Court of Appeal summarized the relevant sentencing considerations and principles at para. 72:
(1) Our children are our most valued and our most vulnerable assets. (2) We as a society owe it to our children to protect them from the harm caused by sexual predators. (3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. (4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. (5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood. (6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
[23] In R. v. D. (D.), supra, the Ontario Court of Appeal held, at para. 44:
[A]s 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.
[24] The cases relied on by the Crown include aggravating factors not present in this case. In those cases there were multiple incidents rather than a single impulsive act, or multiple victims, and penetration. Accordingly, a sentence of 3 to 4 years would not be appropriate in this case.
[25] In the present case there was a single incident that involved both the sexual touching of the complainant and forcing the complainant to touch the accused. The touching was significant, although there was no penetration. It was not accompanied by violence or threats of violence or extortion or bribes. The accused was in a position of trust or authority, but at the lower end of the spectrum. The complainant was very young and vulnerable, which is a serious aggravating factor, and this offence had a serious and prolonged psychological impact on him. The accused had a criminal record for sexual offences against a minor when this offence was committed.
[26] While only some of the aggravating factors apply, there are no real mitigating factors in this case. On the other hand, while the accused’s prospects for rehabilitation seem slight, I do accept the defence position that given the change in his family situation since 2006, the accused is unlikely to have the opportunity to commit sexual assaults against children in the future.
[27] My review of the cases with similar factors suggests that in the absence of a prior criminal record for sexual offences the penalty for similar offences in similar circumstances would be a double-digit reformatory sentence. In this case the absence of any significant mitigating factors combined with the prior criminal record attracts a higher sentence in the 2 to 2.5 years range.
Conclusion
[28] Will the accused please stand.
[29] You have been convicted of sexual interference. Having considered all of the above factors and the case law cited by counsel, I sentence you to 28 months in prison. Given the credit for pre-trial custody the actual sentence will be time served plus one day.
Probation
[30] Since the actual term of imprisonment imposed at the time of sentencing after taking into account time spent in pre-sentence custody does not exceed two years, the Court may also impose a term of probation pursuant to s. 731(1)(b) of the Criminal Code (see R. v. Mathieu, 2008 SCC 21 at paras. 11, 18, 19 and 22). I have taken the availability of a probation order into account in deciding the appropriate length of the remaining prison sentence (Mathieu at para. 22).
[31] I further sentence the accused to a period of probation of two years with the following conditions:
i) That the accused agrees to keep the peace and be of good behavior; ii) That the accused report to a probation officer within 2 working days of completion of custody and thereafter as required; iii) That the accused take such counselling as recommended by his probation officer; and iv) That the accused will have no contact directly or indirectly with the victim or the victim’s family. v) You shall not possess or use any computer or any other device that accesses the internet, except as may be required for purposes of your work and only then when your Probation Officer is satisfied that there are sufficient filters and screens built in and you have filed consent to your Probation Officer or anyone assisting your Probation Officer to investigate any device you intend to use.
Ancillary Orders
[32] The ancillary orders are as follows:
i) That accused must comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life pursuant to s. 490.012 and s. 490.013(4) of the Criminal Code; ii) That the appropriate authority be authorized to take a DNA sample from the accused pursuant to s. 487.051 of the Criminal Code; iii) The accused is prohibited from having any contact with young children for life pursuant to s. 161(1) (a) to (d) of the Criminal Code, including 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, and from having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the accused does so under the supervision of a person whom the court considers appropriate or except for incidental contact in public places when other persons are present. This ancillary order also prohibits the accused from using the internet or other digital network except as may be required for purposes of employment with the filters and screens previously approved by his probation officer.
Justice R.E. Charney
Released: October 25, 2017
CITATION: R. v. R.D., 2017 ONSC 6064
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R.D.
Defendant
REASONS FOR SENTENCE
Justice R.E. Charney
Released: October 25, 2017