Introduction and Overview

[1] C.H. was charged with a number of historical sexual assault and sexual interference-related charges against one complainant, T.M., including allegations of two incidents of anal intercourse, as well as one simple assault arising from allegedly excessive disciplinary treatment of T.M. The offences occurred when T.M. was between five and seven years of age. C.H. lived at that time with E.P., T.M.’s mother.

[2] The jury convicted C.H. of one count of sexual interference, one count of sexual touching, and one count of simple assault. Importantly here, the jury acquitted the accused of the two sexual assault charges that allegedly involved anal intercourse.

[3] The issue on this sentencing hearing is what the fit sentence is for this fifty-eight-year-old first-time offender for these serious sexual assaults in all the circumstances of the case.

Circumstances of the Offences

[4] These offences took place about thirty years ago when T.M. was between five and seven years of age. At that time, C.H. was living in the same apartment that T.M. lived in with his mother, E.P., where his Aunt, L.D., also lived for a period of about a year with her son. C.H. was in a relationship with E.P. The conduct in respect of which the jury found the accused guilty consisted of regular occurrences where the accused would be locked in the bathroom with T.M., allegedly to have a bath, but that the accused would use those occasions to cause the complainant to sexually gratify him by requiring the complainant to masturbate him while they were in the bathtub. While the accused does not admit to this conduct, he does acknowledge having taught the complainant how to masturbate in the presence of pornographic publications, which he kept located inside the apartment for his own use.

[5] The simple assault offence is related to excessive force used by the accused to discipline T.M. The evidence at trial showed that he would be whipped with a leather belt by C.H., that being punished in this way resulted in him having bruises and welts on his body and buttocks, and based on the evidence of his aunt, that on one occasion C.H. slammed the back of T.M.’s head into the mirror of the bathroom medicine cabinet.

[6] T.M. claimed that the offences took place over a period of about two years and at trial testified that there were over two hundred occurrences. However, in his initial statement to the police, T.M. indicated that there had been only twenty occurrences. As for the timeframe of the offences, I accept that the most likely duration of the offences was over a period of about a year, or at least eight months based on the evidence of E.P. and T.M.’s aunt, L.D.

[7] The offences finally came to an end when T.M. disclosed what was going on to one of his schoolmates. That school friend told one of the teachers who immediately went to the principal, and that disclosure then resulted in the Children’s Aid Society removing T.M. from the home of his mother E.P. and taking him into care. Thereafter, while he visited his mother from time to time, he lived the rest of his youth and adolescence in group homes and foster homes, to which T.M. attributes getting a wrong start in his direction in life, which ultimately resulted in him pursuing a life of criminal behavior, principally as a drug dealer.

Circumstances of the Offender

[8] C.H. is fifty-eight years old. He was born and raised in Toronto. He is the second youngest of seven children in a family that he described as closely knit. His parents remained married until his father passed away and he grew up with loving support of his siblings; support that continues to this day. One brother died of a heroin overdose. His family is aware that he has been charged in these matters. His siblings remain supportive of him despite the jury’s findings of guilt against him on three out of the five charges.

[9] C.H. denies being the victim of emotional sexual or physical abuse within his home outside of being picked on by bullies in his neighborhood as he was growing up. He has been involved in both long and short-term romantic relationships. He identifies himself as a heterosexual male who is attracted to adult partners. He was married in his early twenties and he and his ex-wife had a daughter who is now thirty-six years old. He has not spoken to the daughter since being charged in these matters and she will evidently no longer return his calls. It would appear that the relationship with E.P., the mother of T.M., took place after that initial marriage broke up. That relationship came to an end after a duration of about a year, when T.M. was removed from his mother’s home and E.P. told C.H. to leave her residence, after learning of T.M.’s allegations against him. More recently, he has been involved in a relationship of eight years’ duration but it came to an end when he was charged with the offences in this case.

[10] C.H. completed grade 9 high school education. He worked throughout his life mostly in labour type jobs. He had significant difficulties learning at school, and is illiterate by his own admission. He learned to cope and hide his inability to read or write from childhood into adulthood. He is the only one of his siblings who has literacy issues. He was injured in an automobile accident when he was young, injuring his head, which caused him some difficulty with short-term memory and which had a negative impact on his ability to learn and pay attention in school. It appears to have also affected his employment history. Over the years, he worked in a number of positions in construction including plumbing, welding, electrical work and as a general labourer, and has worked in a factory operating press machinery. While he got along well with co-workers, he was fired from jobs for poor attendance and performance during a period when he was struggling with addiction issues. He does not presently work, but is supported by the Ontario Disability Support Program due to his health issues. These include significant arthritis that will require joint replacements, diabetes, acid reflux, high blood pressure and cholesterol levels. He has been receiving ODSP payments for nearly ten years.

[11] C.H. denies any involvement in these offences, insisting that they did not occur. He maintains his innocence and indicated that he intends to appeal the decision of the jury. He accepts no responsibility for the matter, apart from having disciplined T.M. He has no criminal record. The officer in charge in this case expressed concerns about community safety based upon her view that his behavior was manipulative and predatory, perpetrated against a young and vulnerable victim who was severely impacted by those occurrences. It was suggested at the sentencing hearing that perhaps a risk assessment should be prepared, but in light of his age, and the fact that C.H. is now significantly disabled with his arthritis, and that there is no evidence whatsoever of any other offences or similar conduct having taken place over the past twenty years, it was agreed that we would proceed on the sentencing hearing without delaying it in order to obtain such an assessment on the basis that collateral factors would suggest that the risk of reoffending is low.

Victim Impact Statements

[12] T.M. prepared and submitted a victim impact statement. He indicated that his life has been affected by these offences in many ways. Principally, it led him down a path to a life of crime in his view, since growing up in group homes and foster care was not a positive experience. He did not have positive role models around him during that journey, a change in his life direction that he directly attributes to being removed from his mother’s home following the initial discovery of these allegations.

[13] T.M. claims that these offences caused significant problems within his family which continue to exist and cause him to be extremely homophobic to the people who have been around him during his life. He is a heterosexual male, but knowing that these offences were perpetrated against him has caused him deep disturbance and unimaginable emotional turbulence within. He found it exceptionally difficult to have to disclose these occurrences in front of a jury as he had only disclosed these events to one other person previously in his life and he claims that his own family members do not know all of the facts.

[14] The trauma caused by these events has required psychological treatment and he has been diagnosed with complex post-traumatic stress disorder. He is receiving treatment while he is presently incarcerated and psychological treatment will resume when he is released in June 2017. T.M. worries about how he will come up with the money that will be needed to pay for a psychologist to continue to provide him with the psychological therapy that he will require after he is released from custody.

Positions of the Parties

[15] The Crown takes the position in this case that a sentence of three-and-a-half to four and-a-half years in the penitentiary is required, having regard to the particular facts, the appropriate principles of sentencing that the Crown contends are engaged, and in consideration of aggravating factors that are claimed to be present.

[16] In addition, by way of ancillary orders, the Crown also seeks:

(i) A DNA order under section 487 of the Criminal Code (primary compulsory);

(ii) A ten-year firearms and weapons prohibition order under section 109 of Code;

(iii) An order under section 161 of the Code for life prohibiting the offender from attending a public park, swimming area, daycare centre, school ground, playground, community centre or similar location were a child under the age of fourteen is present or can reasonably be expected to be present. It also seeks an order prohibiting the offender from being within 200m of any dwelling house where he knows the victim to live, work or is otherwise known to be located, and from seeking or continuing any employment, remunerative or otherwise, that involves being in a position of trust or authority towards a person under the age of fourteen years, and from having any contact or communication with any person under sixteen years of age unless under the supervision of a person over eighteen years of age who is aware of this order;

(iv) A lifetime sex offender registration order under SOIRA s. 490.013 (2.1) because he has been convicted of more than one designated offence as designated by paragraph 490.011(a)(ii) and (iii); and finally,

(v) A non-communication order during the custodial period of any sentence that may be imposed relative to T.M. under section 743.21 (1).

[17] Defence counsel contends the objectives of sentencing and the factors that must be taken into account can be met in this case by a sentence of two years less a day, to be served conditionally in the community, together with a term of probation thereafter. He disagrees with the claimed appropriate range of sentence put forward by the Crown, and contends that an upper level reformatory sentence is adequate in the particular circumstances of this case and acceptable to meet the principles and the requirements of sentencing. That lesser sentence is called for based on his distinguishing of the cases referred to by the Crown.

[18] As for the ancillary orders, defence counsel accepts most of the ancillary orders requested by the Crown, but contends that a ten-year order under section 161 of the Code is adequate in the circumstances of this case, and that the low likelihood of recidivism on the part of this offender does not require a lifetime prohibition.

Principles of Sentencing

[19] The sentencing principles from section 718 of the Code that are of overriding importance in sexual offences involving children in circumstances of trust are denunciation and deterrence: denunciation of the offender for obtaining his own sexual gratification from a child who trusted him, and, except in the most extraordinary of circumstances, a term of incarceration, typically substantial, as specific deterrence to the offender and general deterrence to others who might emulate his conduct.

[20] The jurisprudence speaks clearly to those needs and is well-known. It focuses on the obvious fact that sexual offences perpetrated against minor children are particularly egregious and require a significant sentence having regard to the fundamental breach of trust between a child and an adult that must necessarily underlie all such offences.

[21] In R. v Woodward[^1], referring to the seminal decision in R. v. D.D., below, Justice Feldman emphasized that the focus here must be on the harm caused to the child by the offender’s conduct and the life-altering consequences that flow from it, as they have in this case, as evidenced by the victim impact statement filed as an exhibit on this sentencing hearing. The effects of a conviction on the offender and his prospects for rehabilitation also warrant consideration, as they always must, but the need to denounce and deter and to separate sexual predators from society for society's well-being and the well-being of our children necessarily takes precedence.

[22] In R. v. D.D.[^2], an adult predator in a position of trust sexually abused young boys on a regular basis over a lengthy period of time. The Court of Appeal considered the appropriate range of sentence in that case for offenders who engage in such conduct. Moldaver J.A., now of the Supreme Court, discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adults exploit innocent young children.[^3] He listed the relevant considerations and principles, and then concluded at para. 45 that:

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!

[23] Consequently, Feldman J.A. emphasized in Woodward that adult predators who sexually abuse young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant in that case for the sexual assault he committed on a twelve-year-old complainant was not excessive. While the Court of Appeal acknowledged that trial judges retain flexibility to fashion a fit and just sentence in a particular case, crimes like those committed by the appellant in that case will typically warrant mid to upper-level single-digit penitentiary sentences.

[24] The Court of Appeal again emphasized the point in R. v. D.M.[^4], where a fifty-seven-year-old uncle repeatedly sexually abused a minor child for a prolonged period. At para. 44, while acknowledging that sentencing is always an individualized process of decision-making, Feldman J.A. observed that where an adult in a position of trust sexually abuses and assaults a child for a prolonged period, including penetration, the minimum sentence will be five or six years in the penitentiary.

[25] At paragraph 68, the court observed that in cases where sentences of five years or more were imposed, one or more of the following aggravating factors was present: (i) sexual intercourse, (ii) oral sex, (iii) incest, (iv) more than one victim, (v) grooming of the victim, (vi) other acts or threats of physical violence to obtain compliance and keep the abuse secret, or (vii) a previous criminal record for sexual abuse. In this case, there was argued to be some sexual grooming present, and there was some other physical violence that was suggested by Crown counsel to have been related to the offender’s persistent use of the complainant for his own sexual gratification. However, importantly, no sexual intercourse occurred; a factor that on its own commands the higher levels of sentence.

[26] However, the decision in D.M. also recognizes that sentences of that duration will not always be called for. Even where one or more of the preceding aggravating factors was present, the court noted at para. 71 that sentences of less than five years have nonetheless either been imposed at an appellate level or upheld in particular cases.

[27] Moreover, while such offences are not generally suitable to be punished by a conditional sentence, defence counsel does advance a number of trial and appellate decisions where conditional sentences were imposed or upheld in what are said to be similar circumstances, involving only one victim, and with no intercourse having occurred: see R. v. A.C.[^5], R. v. R.L.[^6], R. v. D.P.C.[^7], R. v. Debidin[^8], R. v. Furia[^9], and R. v. D. (D.A.).[^10]

Analysis

[28] In this case, the sexual conduct of C.H. against T.M. involved multiple repeat occurrences of forced masturbation for the sexual gratification of the offender who was able to cause the victim, T.M., to perform as he wished owing to his position of authority and trust within the residence where these offences occurred.

[29] Here, there are both aggravating and mitigating circumstances. The aggravating factors including the statutorily deemed aggravating factors under s. 718.2 (a) of the Code include the following:

(i) The disparity in age between the victim, a five to seven-year-old child, and the offender, who was an adult;

(ii) The accused’s position of trust and authority within E.P.’s residence and his sometime role as a parental authority figure and disciplinarian;

(iii) The significant impact of these offences on the victim, T.M. as evidenced by his victim impact statement;

(iv) The length of time over which the offences occurred is aggravating. The evidence of T.M.’s aunt, L.D., and her time of residence at the apartment with her son would establish a timeframe of one year. The complainant’s mother, E.P., also had factual reasons for being sure that C.H. did not live with her for more than about eight months. I accept that the duration was likely about one year;

(v) The number of occurrences is aggravating. I accept that the number of occurrences was less than the number claimed by T.M. In his initial police statement, T.M. told the police the occurrences were about twenty in number, once or twice a week, but in his evidence at trial, he testified that there had been at least two hundred occurrences. The offender must be given the benefit of these factual uncertainties, so I conclude that there were at least twenty occurrences over a period of one year. This nevertheless remains aggravating;

(vi) The sexual conduct was purposeful and for C.H.’s own sexual gratification. The victim T.M. lost the balance of a normal childhood when he was removed from the residence and put in group homes and foster homes. This had a lasting destructive effect on him; and

(vi) It is aggravating that the sexual conduct occurred in T.M.’s home, his residence, where he ought to have been safe and it is also aggravating that he was told by C.H. that he could not tell anyone of what was occurring between them.

It is also of note that there were other possible aggravating factors that are absent:

(i) There was only one victim;

(ii) There was no anal intercourse or oral sex;

(iii) There was no violence associated with the sexual conduct, and it has not been proven to the criminal standard that the simple assault is intrinsically related to the sexual conduct;

(iv) While the defendant admitted to having taught T.M. how to masturbate and to obtain stimulation from viewing pornographic magazines that C.H. kept in the house, it has not been proven to the criminal standard that such conduct amounts to grooming by C.H of T.M. to become his sexual servant; and

(v) There is no evidence here, aside from the facts of the current offences, to suggest that C.H. poses an ongoing threat as a sexual predator, and indeed, the fact that he has no criminal record and that he has not been apprehended or charged with any similar offences over the past [twenty] years seems to prove exactly the contrary.

[30] There are also several specific mitigating factors present here:

(i) C.H. has no prior criminal record;

(ii) C.H. had strong and continuous employment history until his physical afflictions required him to retire from the workforce and claim ODSP;

(iii) C.H. has significant physical and medical challenges at fifty-eight years of age and has been receiving ODSP payments for over ten years; and

(iv) C.H. enjoys solid and sustaining support from his family, and particularly his brothers and sisters who will provide guidance and support to him when he completes serving his sentence.

[31] C.H. insists he is innocent of these crimes and accordingly does not take responsibility for the conduct for which the jury convicted him, nor does he express remorse. This is not surprising given that he is insistent that he is innocent. While the presence of remorse and acceptance of responsibility may be mitigating, the absence of those factors in circumstances like these is not aggravating.

[32] As noted, Crown counsel seeks a sentence of three-and-a-half to four-and-a-half years. However, in my view, defence counsel was somewhat successful in distinguishing many of the decisions relied upon by the Crown on the basis of an absence of intercourse, only one victim, and an absence of weapons or physical aggression associated with the sexual conduct. Be that as it may, it is equally true that the cases advanced by defence counsel are themselves distinguishable.

[33] Those cases did not entail the number of incidents that were present in this case over a period of at least one year, and as Clarke J. of the Ontario Court observes in R. v. D.R. at para. 23(5.), the absence of penetration is not a mitigating factor and does not automatically relegate the sexual abuse of children to the lower end of the scale.

[34] These are offences that occurred numerous times, perpetrated by a person who was in a position of trust. They are not offences like in R. v. A.C. where the sexual assaults consisted only of (i) touching the complainant under her shirt, (ii) attempting to kiss her, (iii) lying on top of her, and (iv) placing his penis near her vagina with the trial judge not being satisfied to the criminal standard that there had been penetration.

[35] Neither is it a case like R. v. D. (D.A.), even though that was also a breach of trust case since the accused was the victim’s father. In that case, Aitken J. concluded a conditional sentence was appropriate, but the facts in that case had none of the egregious elements in this case, and specifically, even though the complainant sometimes saw her father masturbating and there was other disturbing voyeuristic conduct, she acknowledged that he never asked her to either touch his penis or to watch him masturbate. Here it is exactly the opposite. Here the accused ejaculated frequently as a direct result of him requiring T.M. to touch his penis and masturbate him on at least twenty occasions.

[36] The range of sentences, when all of these decisions are taken into consideration, certainly once again shows the obvious fact that sentencing is always an individualized process and that there is no one-size-fits-all sentence for sexual offences. It shows that the presence or absence of particular aggravating or mitigating factors relating to the offence and to the offender can cause a wide range of possible sentences.

[37] In my view, the range of sentence sought by the Crown is somewhat excessive in all of the circumstances. I consider the more appropriate range to be between two and three years. For example, one decision that provides guidance in the present circumstances is the decision of Dunnet J. of this court in R. v. R.R.

[38] In R. v. R.R.[^11], there were materially fewer occurrences than were present here, but as in this case, there was inappropriate sexual touching, but also oral sex, which was not present here. Like here, the offender was in a position of trust. Although the victim did not know at the time that he was married to her mother, she had known him all her life. He was a close family friend and appeared regularly at their home. The incidents happened inside the home where R.R. took advantage of situations when they were alone and the victim would have had legitimate expectations that nothing would happen to her, just as T.M. should properly have had that expectation relative to C.H., living in their family home. In R.R., however, the abuse continued over a period of ten years, a period that is ten times longer than the period of the offences in this case.

[39] In that case, Justice Dunnet imposed a global sentence of three years’ imprisonment having regard to the fact that the offences involved a breach of trust, and that they began when the victim was a very young child and continued over a long period of years and had significant impact on the victim, just as these offences have had significant emotional impact on T.M. So while there are similarities present there, in my view the difference in the duration of the offending conduct necessarily requires a shorter term of incarceration.

[40] In this case, notwithstanding the very thorough and detailed efforts of defence counsel, I am not persuaded or satisfied that the principles of sentencing relevant on a case like this can be met by the imposition of a reformatory sentence or a conditional sentence. Certainly there are some occasional circumstances where a conditional sentence will be warranted, but the appellate jurisprudence makes it plain, in my view, that in circumstances where there were multiple offences committed against a victim from a position of trust, even if no violence or aggressive behavior is present, the principles of denunciation and deterrence necessarily require the imposition of a penitentiary sentence. The question is of what duration.

[41] I have concluded on a standalone basis that between two and two-and-a-half years would be an appropriate sentence for the sexual conduct perpetrated against T.M. The presence of the aggravating factors previously noted would call for a sentence at the upper-end of that range.

[42] However, I am persuaded that even if his future employment prospects are not great given his physical condition, the single opportunistic nature of these offences, the evidently blameless life lived by C.H. since these offences were committed, the seemingly low risk of reoffending, and in particular his age and poor health, presents a suitable case for a sentence of a somewhat lesser duration to be imposed.

Conclusion

[43] C.H., will you please stand up.

[44] These were serious acts committed by you against a young and trusting member of your girlfriend’s family. She had trustingly invited you into her home. Your conduct has created lasting emotional damage to the victim. It is despicable conduct that requires the imposition of a penitentiary sentence to convey fully our society’s disapproval and repugnance at your conduct. These are cases where denunciation and deterrence must be paramount. These offences cause enormous harm to their victims and their families, as the victim impact statement in this case suggests is the result here.

[45] C.H., having regard to all these factors, but also taking account of your age, seemingly low risk of reoffending, and in particular your poor health, I sentence you to serve two years in the penitentiary for these offences. I also believe that your medical concerns will likely be better attended to in the federal prison system than in a reformatory in this province, and so that causes me as well to sentence you to two years, rather than two years less a day. I consider this to be the least sentence I could possibly impose upon you having regard to the aggravating factors that are present. The ancillary orders will all go, although I am persuaded that the order under s. 161 need only be for ten years given the evidence of low risk of recidivism.

Michael G. Quigley, J.

Released: January 9, 2017

CITATION: R. v. C.H., 2017 ONSC 71

COURT FILE NO.: CR-16-70000580-0000

DATE: 20170109

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

C.H.

Defendant

REASONS FOR SeNTENCE

Michael G. Quigley, J.

Released: January 9, 2017

[^1]: 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.). [^2]: 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), 163 C.C.C. (3d) 471. [^3]: Ibid., at paras. 34-38. [^4]: 2012 ONCA 520, [2012] O.J. No. 3616 (C.A.). [^5]: 2012 ONCA 608. [^6]: 2007 ONCA 347. [^7]: [2005] O.J. No. 5654 (C.A.). [^8]: 2008 ONCA 868, [2008] O.J. No. 5219 (C.A.). [^9]: 2010 ONCJ 394. [^10]: [2015] O.J. No. 3346 (S.C.J.). [^11]: 2014 ONSC 5491

R. v. C.H., 2017 ONSC 71

Case Summary

Introduction and Overview

Circumstances of the Offences

Circumstances of the Offender

Victim Impact Statements

Positions of the Parties

Principles of Sentencing

Analysis

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 7

Legislation 1