Her Majesty the Queen v. I.H., 2018 ONSC 2481

W A R N I N G

This court directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), ( 2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 1 53.1, 155, 1 59, 160, 162, 163.1, 170, 171, 172, 17 2.1, 1 73, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4,1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151(seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988: or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (I) (a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under sect ion 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1) (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT FILE NO.: CR-16-10000477 DATE: 20180514

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

I.H.

Jennifer Stanton for the Crown

Juan Lopez for the Defendant

HEARD: March 26, 2018

ORDER FOR PUBLICATION BAN PURSUANT TO s. 486.4 ON THE IDENTITY OF THE COMPLAINANTS

REASONS FOR SENTENCE

HIMEL J.

1I.H. was charged with four counts of sexual assault contrary to s. 271 of the Criminal Code and four counts of sexual interference contrary to s. 151 of the Code. I.H. elected to be tried by a judge without a jury. At the outset of the trial, I made an order for a ban concerning the publication of the identity of the four complainants pursuant to s. 486.4 of the Code. I also made an order for the provision of a support person for a witness who is under the age of 18 years pursuant to s. 486.1 of the Code and an order to permit her to testify by closed circuit television under s. 486.2 of the Code. These applications were not opposed by the defence. Crown counsel made an application under s. 715.1 of the Code to admit the videotaped statement given by the complainant when she was under the age of 18 and which the complainant adopted as part of her evidence. The defence did not oppose this application.

2Following a trial, I found I.H. guilty of all charges. I ordered a pre-sentence report which has now been received and marked as an exhibit at the sentencing hearing. Crown counsel filed Victim Impact Statements. Some of the victims read theirs aloud in court. Counsel have made their submissions on sentence. The following are my reasons for sentence.

FACTUAL BACKGROUND:

3This case concerned allegations of sexual assault involving two generations of women when they were children. The first generation are I.H.’s nieces: J.O.F., T.F., and J.E.F. I.H.’s wife and J.O.F., T.F. and J.E.F.’s mother are twin sisters. Their families were very close and their children grew up together, often sleeping over at each other’s homes. The second generation is I.H.’s step-granddaughter: L.A. L.A.’s father is I.H.’s step-son.

4When they first moved to Canada from Mexico, the family lived in an apartment in the Regent Park area. In 2002, they purchased and moved to the house where they still reside. I.H.’s main trade was carpentry. He worked in construction full time until 2008 when he retired. After 2008, he worked more sporadically. When he worked, he would be up by 5:00 a.m. and would leave the house at approximately 6:00 a.m. I.H.’s wife often worked two jobs, cleaning hotels and office buildings.

5L.A.is the older of two children and is now 17 years old. She was born in 2000. She has known I.H. her entire life as he is her step-grandfather. On June 2, 2015, L.A. gave police a videotaped statement in which she explained that her parents had separated when she was eight years old. She and her sister would visit with their father at his parent’s home every other weekend. During the summer of 2012, when she was 11 years old, L.A. and her sister visited their grandparents for a more extended period of time. Sometimes, her grandmother and father would be at work and I.H. would be alone with the girls. One day, she was waiting for her father and grandmother to get home from work when I.H. put his hand on her lower back and kissed her back as she was walking upstairs from the living room. She continued going upstairs and went into a room where her sister was and locked the door behind her. L.A. never told anyone about this incident.

6The next time something happened was later in the summer of 2012. L.A.’s sister was in the basement playing video games and L.A. was in the living room lying on the couch and watching television. Her father and grandmother were at work. I.H. came into the living room, bent down over her and asked to kiss her. Before she answered, he held her face, put his hand on her shoulder and kissed her. His hand was moving lower on her body on top of her clothes from her breast towards her pubic bone. L.A. got up, left the room and went to where her sister was in the basement. She did not tell her sister what had happened.

7On another occasion, I.H. touched her lower back as he passed by her in the kitchen. When L.A. was in Grade 7, she was at her grandmother’s house and she was leaning over the rail of the staircase from upstairs talking to her grandmother. I.H. put his hand on her lower back, touched her hips and leaned down towards her face to kiss her. She walked away and went downstairs. I.H. would use opportunities when he had to walk behind L.A. to touch her hips and her arms when no one was looking.

8The last incident took place in April 2015 when L.A. was 14 years old and she was in Grade 9. She was visiting her grandparents when I.H. came into the room where she and her sister stayed to give her some money. When she took it, he grabbed her face, said she was beautiful, and kissed her with his mouth open on her mouth while putting his hands on her shoulders. She left the room and walked downstairs. Her sister was in the basement playing video games at the time.

9L.A. disclosed these incidents to police on June 2, 2015, when she was 14 years old. As a result of these incidents, she became depressed, could not focus and had difficulty in school. She was sent to the guidance office as her teacher noticed that she was cutting herself. The school contacted her parents. L.A. said that when she was 12 years old, she became scared and started to cut her arm, her wrist, her stomach and her thighs. While she had told friends about the incidents involving I.H., she never told her parents until the school intervened.

10As a result of the information given to police, police contacted J.E.F. and J.O.F by telephone. The police asked J.E.F. to have their sister, T.F., contact them also. Someone from the Canadian Hearing Society called back and the police arranged to have a sign language interpreter available for an interview with T.F., who is deaf.

11J.E.F. is now 30 years old and was born in 1987. She explained that her aunt (I.H.’s wife) was like a second mother to her, and she was very close to her cousins. They had many family get-togethers, including sleep-overs. When she was five or six years old, J.E.F. went over to her aunt’s house and was standing in front of her cousin’s room when I.H. picked her up and hugged her so tight that she felt his penis as he lowered her to the floor. The next incident occurred when J.E.F. was approximately eight years old. She was visiting along with family at her grandmother’s residence. She was sitting on the couch in the living room watching television when I.H. approached her, sat on the left arm of the couch beside her and put his hand down her pants and underwear touching and penetrating her vagina with his fingers. The others were either in her grandmother’s room, the washroom or the kitchen, and I.H. did this very quietly while he pretended to be watching television with her. She never told anyone about this.

12J.E.F. would sometimes sleep at her aunt and I.H.’s house, often on a cot in her cousin’s bedroom. On a number of occasions between the years 1995 and 2000, she was awakened by I.H. leaning over the bed and touching her vagina and breasts over her clothing. I.H. kept some clothing and belongings in that bedroom and would come into the bedroom early in the morning while everyone was asleep. J.E.F. tried to push him away when he touched her but then she would think “he is o.k. This is how he cares about me.” She said she did not know at the time that it was wrong.

13On another occasion, when J.E.F. was seven years old, the family was going somewhere in I.H.’s car. J.E.F. was told to get into the seat next to him. Before anyone else got into the car, he touched her in the vaginal area over her clothes. When someone came into the car, he stopped.

14J.E.F. witnessed an incident when she was between the ages of five and eight. She saw her sister T.F. come out of the washroom. I.H. was waiting outside the washroom and stood in front of T.F. J.E.F. said she saw I.H. touch T.F.’s breasts and T.F. was trying to move away from him. No one else was around. Again, J.E.F. did not tell anyone about this.

15T.F. is the sister of J.E.F. and J.O.F. As she is deaf, she communicates through American Sign Language. T.F. reported to police in 2000 that she was sexually assaulted by I.H. sometime between the dates of October 15, 1996 and October 14, 2000, when she was 12 to 14 years of age. She is now 33 years old and was born in 1984. In a statement given to police on June 30, 2015, she said that I.H. made her uncomfortable beginning when she was five years old by picking her up and touching her legs inappropriately. Sometimes, she would sleep over at her aunt and uncle’s house and she would stay in her cousin’s bedroom. She said that when she was alone, her uncle I.H. would find her and touch her. She said she would try to avoid him as she was uncomfortable. He would do this from time to time from the age of eight or nine until she was thirteen years old. She described occasions when I.H. came into the room early in the morning at approximately 6:00 a.m. He would kneel beside the bed and kiss her on the lips before he went to work. She remembers that she was starting to develop breasts and he would fondle her breasts on top of and under her clothing. She would close her eyes and pretend she was asleep. This happened approximately six times in her cousin’s bedroom.

16On another occasion, T.F. was leaving the upstairs washroom at I.H.’s house. I.H. stood outside the washroom and when she came out, he touched her on the breast over her clothing. She was not aware at the time that J.E.F. was on the stairs and that she saw the incident. On a further occasion, during a visit to I.H.’s house when she was 12 or 13 years old, T.F. was in her aunt and uncle’s bedroom standing in front of a large mirror fixing her hair. She saw I.H. approach from behind, close the door and sit on his bed. He had his zipper open on his pants. She wanted to leave the room, but he went over to her, took her by the shoulders, kissed her on the mouth and put his tongue into her mouth. He also put his hand down the front of her top and fondled her breasts. She left the room and did not tell anyone at the time.

17When T.F. was 15 or 16 years old, she was becoming rebellious at school and as a result of these behavioural problems, the school inquired as to what was going on. She reported these incidents to a school counsellor who contacted police. T.F. gave a videotaped statement to police with the assistance of an American Sign Language interpreter. However, she heard nothing further and no charges were laid at that time. Apparently I.H. was interviewed and warned, but was not charged because the officer in charge believed there was insufficient evidence to support a conviction. In 2015, when L.A. made a complaint to police, they interviewed T.F. again and she gave a further videotaped statement outlining these incidents.

18The fourth complainant was J.O.F., who is also a niece of I.H. She was born in 1983 and is now 34 years old. She moved to Canada with her parents from Mexico when she was three or four years old. Her aunt and I.H. moved shortly after. When she was five years old, her uncle came to the house, picked her up and “touched my butt” with his hands around her waist. This made her feel uncomfortable.

19Her next memories were about sleepovers at her aunt and uncle’s residence. When she slept over at her aunt and uncle’s apartment, she stayed in her cousin’s bedroom. I.H. kept possessions in a dresser and in the closet in the cousin’s room. When J.O.F. was eight or nine years old, she was awakened by I.H. who came into the room in the middle of the night and touched her vagina and breasts over her clothing. She said she would squeeze her legs together or sleep on her stomach to prevent him from touching her. This kind of touching happened on approximately six occasions. The touching in the cousin’s room stopped when J.O.F. was ten or eleven years old.

20On several occasions, I.H. sought J.O.F. out and kissed her on the mouth, cheek and neck. She would try to move her face away, but he was able to kiss her. It happened in her cousin’s room when he grabbed her face and kissed her on the lips. It also happened in the kitchen when he cornered her and kissed her when someone left the room. J.O.F. tried not to be alone with I.H. in a room and as she got older, she made a point not to associate with him. She did not come forward with these allegations until I.H. was arrested on the charges relating to L.A. She said she had been scared and was worried that it was her fault. She felt ashamed and wanted to forget the incidents.

21On the basis of this evidence, I was satisfied beyond a reasonable doubt that the Crown had proven the essential elements of the offences with respect to each of the complainants and found I.H. guilty of four counts of sexual assault and four counts of sexual interference. Crown counsel asked, and I ordered that, in accordance with R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, convictions be registered for the offences of sexual interference and that a stay be imposed for the sexual assault convictions.

EVIDENCE AT THE SENTENCING HEARING:

22The Crown filed Victim Impact Statements and the victims read their statements to the court or had Crown counsel read the statements for them. The statements filed are all extremely articulate and persuasive. They demonstrate the long-standing and significant impact caused by the sexual abuse by I.H.

23The pre-sentence report outlines the background of I.H. and contains input from his wife, his daughter and the officer in charge of the case. Counsel for I.H. clarified an incident described in the report where the officer in charge said that I.H. approached one of the victims during the trial when she was going into the washroom and that his conduct was considered by the probation officer to demonstrate a lack of concern and empathy for others. Counsel has clarified that it was an accidental meeting while they were walking in the same area. Crown counsel agreed that the paragraph in the report referencing those actions should not be considered by the court. Subject to those remarks, the report was entered as an exhibit. I have detailed the information from the probation officer in the review of I.H.’s circumstances below.

POSITIONS OF THE PARTIES:

Position of the Crown

24Crown counsel takes the position that an appropriate sentence is one of six to eight years in addition to the two days of pre-sentence custody and ancillary orders. These include an order for a DNA sample to be taken pursuant to s. 487.04, an order under the Sex Offender Information Registration Act, S.C. 2004, c. 10 (SOIRA) for life and an order under s. 161 of the Code prohibiting I.H. from attending pools, parks and playgrounds (sections (a) through (c)).

25She submits that the primary principles applicable in sentencing for cases of this kind are deterrence and denunciation. She points to the applicable statutory provisions:

(1) s. 718.01 which provides that offences against children call for denunciation and deterrence as primary considerations in sentencing;

(2) s. 718.2(a)(ii.i) which requires the court to consider whether the offender abused child victims who were under the age of 18 years at the time of the offences;

(3) s. 718.2(a)(iii) which provides that it is an aggravating feature where the offender was in a position of trust; and

(4) s.718.2(a)(iii.1) which requires the court to look at the impact of the offence upon the victim in imposing sentence.

26In the case at bar, she says the aggravating features are that there were four children abused over many years when they were approximately nine to fourteen years of age. In the case of J.E.F., it began when she was five. There is moral blameworthiness because of I.H.’s position in the family as an uncle and step-grandfather and because he abused children when they were in the sanctity of the home, in circumstances where they were most vulnerable and unable to remove themselves from the assaults. The impact has been significant and continues well after the offences. In fact, the impact is multi-generational and it is I.H.’s conduct which has had the effect of destroying a family.

27Ms. Stanton recognizes the mitigating factors that I.H. is 70 years old and has no criminal record. She argues that he cannot rely on what he told the probation officer about health issues to avoid significant incarceration as he has not provided any evidence of the effect of imprisonment on his health.

28Ms. Stanton cited a number of appellate decisions in support of her position on the length of imprisonment warranted in a case like this one. In particular, she relied on R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (Ont. C.A.), a seminal case where the Court of Appeal for Ontario wrote that sentences will be significant, in the range of mid to upper single digit penitentiary terms for adult offenders who prey upon innocent children to satisfy their deviant sexual cravings. In that case, the court upheld the trial judge’s sentence of eight years and one month on each count concurrent for 11 sex-related offences involving four young boys. The sexual acts involved repeated acts of anal intercourse and attempted anal intercourse, masturbation, group sex, oral sex as well as the use of other physical violence, threats of physical violence and extortion.

29The Crown also relies upon R. v. E.T., 2011 ONCA 86, where the Court of Appeal upheld a sentence of three years where the appellant was convicted of sexual assault, gross indecency and sexual exploitation of a young girl who was the child of his spouse’s cousin. The acts began with kissing at age 8 and progressed over the years to sexual touching and oral sex at age 17 and 18. The trial judge rejected a conditional sentence and referenced the case law as setting a lower range for this type of sexual offence against a child by an adult in a position of trust where there was no penetration as a minimum of three years.

30In R. v. F.P. (2005), 2005 23218 (ON CA), 198 C.C.C. (3d) 289 (Ont. C.A.), the Court of Appeal varied the sentence of the trial judge and imposed a sentence of six and a half years in addition to pre-sentence custody where the appellant, who was in a position of trust, sexually abused two young complainants over an extended period of time by touching, committing acts of masturbation and oral sex and combined the sexual abuse with threats. The court commented on the lack of remorse of the appellant.

31In R. v. I.F., 2011 ONCA 203, the Court of Appeal allowed a Crown appeal of sentence where the respondent was convicted of sexually abusing his three step-granddaughters over an eight-year period while they were under his care on certain weekends. The abuse became progressively more intrusive and included touching and fondling of breast and vaginal areas, performing oral sex on one victim, having two victims watch pornographic movies or look at magazines while he masturbated and having one of the victims masturbate him. The court held that a sentence of eight months consecutive on each count for a total sentence of two years’ imprisonment and three years’ probation was manifestly unfit and imposed a global sentence of four years’ imprisonment. The respondent had entered a plea of guilty early on and had shown remorse.

32In the recent decision of R. v. J.H., 2018 ONCA 245, the Court of Appeal upheld a global sentence of six years where there was regular and persistent sexual abuse by a person in a position of trust of young children over a substantial period of time. The appellant’s sexual acts involved fondling and touching the breasts and vaginas of his four biological daughters, masturbating and in the case of one daughter, putting his fingers in his daughter’s vagina and touching her vagina with his penis. This most recent pronouncement from the Court of Appeal reiterated the principles in R. v. D.D.

33Ms. Stanton also provided the court with some decisions from the Superior Court of Justice. In R. v. R.S., 2018 ONSC 1328, Boswell J. sentenced the offender to five years for three counts of historical sexual assault. The victims are now in their forties. The offender was a helper in a group home for troubled children. The court found that he had fondled the genitals of one victim while putting him into bed and had touched the victim’s penis and began to masturbate him on another occasion. The offender rubbed the genitals of a second victim on multiple occasions. He rubbed the genitals of a third victim and, on one occasion, performed fellatio on him. The offender was 55 years old and had no prior criminal record. In the decision, Boswell J. referred to the case of R. v. D.(D.) and emphasized the harm caused to children by adult sexual predators. He rejected the defence position that the principles in D.(D.) might not be applicable to historical sexual assaults that occurred well before the release of the case.

34In R. v. S.S., 2017 ONSC 354, André J. sentenced an offender found guilty of sexual interference and invitation to sexual touching to five years’ imprisonment. The offender was a member of a church community and the victim was the pastor’s daughter who babysat the offender’s two children. The sexual assaults occurred over a period of eight years when she was between the ages of eight and sixteen and involved touching over her clothes, touching under her clothes, digitally penetrating her, attempting to anally penetrate her, licking her vagina, inviting her to touch his penis and placing her hand on his penis. He maintained her silence by threatening to disclose a video which he said showed her stealing money from a cashbox in his house.

35In R. v. Hall, 2011 ONSC 61, the court sentenced the offender to a six-year sentence where the four complainants had been between the ages of nine and fourteen and the conduct involved pushing his penis into the boys, stroking and, in one case, oral sex.

36Finally, in R. v. Mossing, 2010 BCPC 105, Skilnick Prov. Ct. J. imposed a global sentence of seven years for an accused who pleaded guilty to 11 sexual offences involving eight victims between the ages of six and sixteen, for whom the accused was in a position of trust. The sexual assaults occurred over a significant period time and involved touching the genital areas of the victims and rubbing the victim’s penis.

37Crown counsel argues that if there is penetration, a higher sentence is attracted. Here, I.H. digitally penetrated J.E.F. with his finger. Crown counsel asks that the court consider that as a seriously aggravating factor.

Position of the Defence

38Counsel for the defence argues that an appropriate sentence in this case is one of two and a half to three years in the penitentiary. He notes that these events have been tragic for the entire family. He also acknowledges the sentencing direction of the courts that a penitentiary term is appropriate for these offences. Mr. Lopez points out that there is a prohibition against a conditional sentence and that Parliament has imposed a mandatory minimum sentence for the offence of sexual interference. However, decisions of the Ontario Superior Court of Justice have struck down the constitutional validity of the mandatory minimum sentence in R. v. B.J.T., 2016 ONSC 6616; R. v. M.L., 2016 ONSC 7082 and R. v. Sarmales, 2017 ONSC 1869. In R. v. Hussein, 2017 ONSC 4202, Code J. agreed with those decisions and followed them in the case before him. Mr. Lopez acknowledged, however, that the sentence he was seeking is above the mandatory minimum.

39Defence counsel notes the aggravating factors that I.H. was an uncle or grandfather to the complainants and that the offences occurred while they were sleeping and in his home. Further, I.H. has not shown remorse and the complainants have had to testify twice. However, Mr. Lopez points to the mitigating factors that I.H. is 70 years old with no record and has health issues including arthritis, tendonitis and poor eyesight. Mr. Lopez says that I.H. was released on a surety bail for the last three years. The conditions were not restrictive, although he has chosen to stay in his house a great deal to avoid any issues. Mr. Lopez is not seeking credit for the time on bail as I.H. was not restricted by the court from leaving the house or working.

40Mr. Lopez argues that the cases relied upon by the Crown may be distinguished from the case at bar. In R. v. D.D., there was intercourse, physical violence and aggressive behavior. None of those circumstances were present here. In R. v. Medeiros, 2014 ONCA 602, the Court of Appeal upheld a sentence of five years but acknowledged that it was open to the sentencing judge to impose a lower sentence even where there was “grooming conduct” by supplying the victim with drugs and alcohol and exploiting her vulnerable state.

41Defence counsel points out that the cases of I.F, J.H., Hall, R.S., SS. and Mossing, in which sentences of two to seven years were imposed, all involved oral sex, penetration or masturbation - more serious sexual acts than those in the case at bar.

42In summary, counsel argues that the circumstances of the case at bar bring it within the low end of the range as they may be distinguished from those cases relied upon by the Crown.

43Mr. Lopez cites the decision of R. v. R.P., 2013 ONCA 53, where the Court of Appeal for Ontario dismissed an appeal from conviction and a sentence of five years’ imprisonment where the accused, after the first day of trial, did not contest the charges and was found guilty of 19 counts of sexual offences. The sexual acts were against four relatives, spanned nearly two decades and ended more than 15 years prior to trial. The sentence was comprised of sentences of 15 months for the offences against each complainant to be served consecutively. On appeal, counsel argued that the trial judge gave insufficient weight to the appellant’s age and compromised health. The Court of Appeal upheld the sentence.

44Counsel refers to R. v. E.T., where the Court of Appeal upheld a sentence of three years for sexual assault, gross indecency and sexual exploitation of a young girl who was the child of the accused’s spouse’s cousin. The acts began with kissing at age eight and progressed over the years to sexual touching and oral sex when the victim was 17 and 18 years old. The appellant was 68 at the time of sentence and had no criminal record and strong community ties.

45In R. v. E.Y., [2003] O.J. No. 3027 (C.A.), the appellant appealed his conviction and 18-month sentence for sexually abusing his step-daughter. The court dismissed the appeal and upheld the sentence of 18 months.

46In R. v. R.C., 2015 ONCA 313, the Court of Appeal dismissed the appeal of concurrent sentences of 12 months’ imprisonment imposed following convictions for sexual assault, sexual interference and sexual exploitation. The offences took place over a seven-year period commencing when the complainant was four or five years old and involved fondling, digital penetration and oral sex. The appellant was in his mid-sixties at the time of the offences and over 80 years old and in poor health at the time of sentence. The court wrote, at para. 6, “The quantum of sentence imposed in this case, which replicated that sought by the trial Crown, sits well below the range of sentence regularly endorsed by this court in cases of prolonged sexual abuse by a person in a position of trust, like this appellant.”

47In R. v. Alfred (1998), 1998 5634 (ON CA), 122 C.C.C. (3d) 213 (Ont. C.A.), the Court of Appeal allowed an appeal from a conditional sentence of two years less one day for indecent assaults, and nine months’ jail for sexual assaults by a physician on patients who were under the age of 16 years. The sentence was varied to a conditional sentence of 16 months for the indecent assaults consecutive to the nine-month prison term imposed for the sexual assaults. The court noted that there were a number of important mitigating factors in the case, but recognized the harm caused to victims and the seriousness of the offences.

48In R. v. G.L. (2003), 2003 57437 (ON CA), 175 C.C.C. (3d) 564 (Ont. C.A.), the Court of Appeal upheld the sentence imposed on the appellant, who was convicted of sexual touching and sexual assault on his 13-year-old sister-in-law. The incidents, which occurred over an 18-month period, included kissing, touching her breasts and vagina and inserting his finger into her vagina. He was 30 years old at the relevant time. The trial judge imposed a ten-month sentence of imprisonment where the Crown sought a sentence of nine to twelve months’ imprisonment. In dismissing the appeal, the Court of Appeal held that the appellant was in a position of trust, the complainant was exceptionally vulnerable and the offences were not isolated incidents, but rather occurred over a lengthy period of time.

49In R. v. F.F., 2016 ONSC 5366, O’Marra J. sentenced a 55-year-old married man with strong family support to 12 months’ imprisonment for sexual assault of two nieces when they were between 11 and 13 years of age. The assaults involved sexual touching of the victims’ breasts and playing “games” in which the victims would touch and rub the man’s body. He received a sentence of six months for each offence to be served consecutively.

50In R. v. O.B., 2016 ONSC 6861, Corrick J. sentenced the 48-year-old offender to two years less one day’s imprisonment and one year’s probation for convictions of sexual assault and sexual exploitation. The incidents occurred over a period of time on a step-daughter when she was 16 years old. The sexual acts involved touching under and over clothing and putting his penis in her hand.

51In R. v. Chen, 2017 BCCA 426, the Crown appealed a conditional sentence of 21 months for one count of sexual assault, two counts of sexual touching and one count of sexual exploitation in relation to offences against four complainants, and a consecutive sentence of 75 days’ imprisonment for a subsequent assault on a fifth victim. The respondent was a piano teacher and the complainants were his students. He touched their breasts over their clothes and with two students, under their clothes. He also kissed two of the students. He was 69 years old and suffered from major depression. The court upheld the sentence and held that while the sentence was at the low end, it was proportionate having regard to the gravity of the offence and the moral blameworthiness of the offender.

52I.H. also refers to R. v. R.R., 2014 ONSC 5491, where Dunnet J. imposed a sentence of three years’ imprisonment where the offender engaged in oral sex with the four-year-old victim, placed a vibrator between her vagina and touched her breasts when she was 14 years old. The victim was the daughter of the accused’s former wife.

53Finally, in R. v. A.H., 2013 ONSC 6846, Wilson J. imposed a sentence of two and one half years where there were three victims and the assaults involved touching, licking her ear, groping, kissing and holding the victim’s breasts and buttocks.

54Counsel for I.H. does not oppose any of the ancillary orders sought by the Crown.

ANALYSIS AND THE LAW:

55Section 151(a) of the Code provides for a minimum sentence of imprisonment of one year and a maximum sentence of 14 years for the offence of sexual interference. However, cases in the Ontario Superior Court outlined above have struck down the constitutionality of the mandatory minimum sentence for this offence. Nonetheless, the jurisprudence demonstrates that sentences often exceed one year.

56In addition to the applicable general sentencing principles, the relevant cases consider the circumstances of the offences, the circumstances of the offender, the positions of the parties, the impact on the complainant or complainants, and aggravating or mitigating factors which would increase or reduce the sentence.

57In the leading decision of R. v. D.D., Moldaver J.A. (as he then was) writing for the Court of Appeal for Ontario wrote, at para. 44, 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.” In that case, the court upheld the global sentence of nine years and one month for the offender, a pedophile who was convicted of 11 sexual offences including attempted and completed anal intercourse against boys aged five to eight years old over periods of time ranging from two to seven years. Although the underlying facts demonstrate more significant acts of abuse than those found in the case at bar, the comments of the court are still relevant.

58Further, in R. v. Woodward, 2011 ONCA 610, Moldaver J.A. reiterated the relevant considerations and principles from D.D., at para. 72, as follows:

(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 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.

59He continued, at para. 73, that these concerns are the basis for the fundamental message that D.D. sought to convey. Moldaver J.A. quoted para. 45 of D.D. as follows:

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!

60Woodward involved a conviction for luring a child under the age of 14 for the purpose of facilitating the offence of sexual interference and an appeal from a global sentence of six and one half years’ imprisonment, which was dismissed. The circumstances in Woodward are therefore quite different from the case at bar. However, the principles of sentencing applied in that case are still pertinent. In fact, Moldaver J.A. provided sentencing judges with direction when he wrote at, para. 76:

In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.

61In R. v. A.H., Wilson J. applied the rationale in R. v. D.D. and wrote that the appropriate range of sentence is three to four years’ imprisonment where there is “prolonged sexual abuse of children involving a breach of trust by a family member, but not involving full sexual intercourse or collateral threats of violence”: para. 39. She also said, at para. 31, “The Court of Appeal has ‘repeatedly emphasized that family members who perpetrate intrusive acts of sexual abuse against children to whom they stand in a position of trust should receive penitentiary terms beyond the minimum’: R. v. W.C.C., [2009] O.J. No. 4705 (Ont. S.C.J.), at para. 28.” She went on to cite the case of R. v. G.C.F. (2004), 2004 4771 (ON CA), 71 O.R. (3d) 771 (Ont. C.A.), at para. 14, where the Court of Appeal stated, “cases that involve multiple sexual activity over an extended period of time and escalating in obtrusiveness generally warrant a severe sentence.”

62In R. v. C.B., 2008 ONCA 486, the Court of Appeal upheld a sentence of three years’ imprisonment where the accused repeatedly sexually assaulted his niece between the ages of 12 and 16 years. In R. v. E.T., the Court of Appeal upheld a sentence of three years’ imprisonment for an accused who sexually assaulted the child of his spouse’s cousin.

63R. v. A.H. is analogous to the present case in that the 70-year-old offender was found guilty of sexual interference against his two youngest granddaughters, and of sexual assault against the eldest. When they disclosed the abuse, the complainants were 13, 16, and 20 years old, respectively. The court found no collusion in their testimony. Wilson J. imposed a 2.5-year sentence of imprisonment, below the three to four year range due to the following mitigating factors: his age and health issues, the fact that he was socially isolated and his wife’s affidavit evidence that she was dependent on him. Aggravating factors included that he had not taken responsibility for his actions nor did he have any insight into the effects they had on the complainants, that the incidents were affected by his use of alcohol, that the abuse constituted a gross breach of trust and that the proceedings had a severe negative impact on the family, as emphasized by the victim impact statements.

64The offences in R. v. A.H. also parallel the abuse of trust perpetrated against the complainants in the case at bar, which included numerous acts of abuse over a lengthy period of two to three years. The acts of abuse included kissing on the mouths and touching of the complainants’ buttocks, breasts and genitals. Some incidents took place while the girls slept. The accused in A.H. grinded his groin against two of the complainants and forced one of them to touch the same area above his clothing. Finally, the court found that the accused digitally penetrated the middle granddaughter on one occasion, and referred to this as the most significant instance of abuse. Similarly, in the case of I.H., there was one instance of digital penetration.

65In R. v. R.L., 2015 ONCJ 319, the accused was found guilty of four counts of sexual assault and four counts of sexual interference. He was sentenced on each count to four years’ imprisonment for sexual assault and six months for sexual touching with the sentences to be served concurrently and ancillary orders. The assaults included multiple instances of sexual touching, kissing and sucking on her breasts, placing his tongue on her vagina, and digital penetration against four nieces over a period of three to four years, when they were under the age of 13. They were between 18 to 21 years old at the time of sentencing. Mitigating factors included that the offender was 64 years old, had no criminal record, and satisfied bail conditions for three years without incident. Aggravating factors included that the offences occurred over a lengthy period of time in the context of a breach of trust against defenceless children, that the victims were profoundly affected by the abuse and that the charges led to a split in the family.

66In R. v. M.S., 2017 ONSC 4807, the accused was found guilty of one count of sexual assault and one count of sexual interference against his step-daughter, who was under the age of 16. The accused was sentenced to four years’ imprisonment for sexual assault and six months for sexual touching, the sentences to run concurrently. The sexual assaults involved vaginal intercourse in addition to groping, kissing and digital penetration. The offences occurred in the family home, while the complainant slept next to her baby brother. Mitigating factors included that the accused had no prior criminal record, had support from his fiancée and teenage son, and had a generally positive pre-sentence report. Aggravating factors included the extent of the abuse, the age of the complainant, the fact that the accused breached his position of trust, and his lack of remorse.

67In R. v. Dawson, 2016 ONCA 880, the accused was found guilty by a jury of two counts of sexual assault and two counts of sexual interference against two five-year-old girls whom he babysat. After the trial judge stayed the convictions for sexual assault by applying the rule against multiple convictions in R. v. Kienapple, he imposed a sentence of two years’ imprisonment for each count to run consecutively for a global sentence of four years. The Court of Appeal upheld the sentence.

68Defence counsel in R. v. Dawson argued that the sentence should be lower considering the mitigating factors that the appellant was 51 years old, had no prior criminal record and that the abuse of trust was at a lower level due to the accused being a neighbour and not a family member. Defence counsel argued that the abuse was at the lower end of the spectrum identified in R. v. D.D. because it did not involve penetration or threats of violence. The court rejected these arguments, and found no error on the part of the trial judge, who had considered all the circumstances and “did not consider these offences to be at the lowest end of the spectrum given the age of the victims, the limited position of trust of the appellant, and the nature of the sexual acts”: para. 38.

69In R. v. R.R., referenced above, the accused was found guilty by a jury of three counts of sexual assault and three counts of sexual interference (two of which were stayed as a result of Kienapple). Dunnet J. imposed a global sentence of three years, consisting of three-year sentences for each count of sexual assault and a six-month sentence for the remaining count of sexual interference to be served concurrently. The offences involved two instances of inappropriate touching of the complainant’s chest and vagina, and two instances of oral sex on the complainant. This began when the complainant was four or five years old and repeated every few years until she was 12 or 13. As a result of the abuse, she became depressed and suicidal and cut herself. She later reported the assaults to her mother at the age of 18, by which point the accused and her mother had married.

70Mitigating factors in R. v. R.R. included that the accused had no prior criminal record, a good work history, and support from his family and church community, and that he adhered to restrictive bail conditions, which were lessened after seven months. Aggravating factors included his breach of trust as a close family friend, the location of the abuse being inside the complainant’s home, the decade-long period of abuse beginning at a very young age, and that the incidents only stopped when he heard someone else approaching the room where the abuse was taking place.

71In her analysis, Dunnet J. also relied on the principle from R. v. D.D. that in these types of cases, the need for denunciation and deterrence is high. The defence argued that a reformatory sentence would satisfy these principles, considering that the offences were brief crimes of opportunity that occurred years apart, and had stopped four years before the complainant first disclosed the incidents to her mother. Dunnet J. rejected that submission and relied on the reasons for sentence by Sachs J. in R. v. B.F., [2013] O.J. No. 2580 (S.C.), at para. 26:

Given all of the circumstances, I find that the appropriate global sentence to impose on B.F. is four years. This sentence is a significant penitentiary sentence for a first offender with a good background. It recognizes that with crimes of this nature offenders are often of good backgrounds and that the focus has to be on the harm caused to the victim and on the need to denounce and deter the conduct in question.

72The sentence in R. v. B.F. was imposed where there were seven counts of inappropriate sexual touching against the complainant, who was under the age of 14. The sexual acts included oral sex, but not intercourse or threats of physical violence.

73In R. v. C.H., 2017 ONSC 71, the accused was convicted by a jury of one count of sexual interference, one count of sexual touching, and one count of simple assault (and acquitted of two counts of sexual assault), all against a child aged five to seven years. The accused was sentenced to two years’ imprisonment in the penitentiary. The historical offences took place 30 years before trial, at which time the accused was in a relationship with the victim’s mother, and they shared an apartment together with the victim’s aunt.

74The accused in R. v. C.H. had no prior criminal record and at the time of sentencing was 58 years old and in poor health. Quigley J. distinguished the circumstances from Dunnet J.’s reasoning in R. v. R.R. by emphasizing the different lengths of time over which the abuse occurred (about one year compared to ten years) and the nature of the abuse (sexual touching versus sexual touching and oral sex). After considering the mitigating factors, being “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,” Quigley J. held that a sentence below three years was appropriate.

DECISION:

75Before turning to the specific circumstances of this case, I outline certain general sentencing principles. The fundamental purpose of sentencing is set out in s. 718 of the Code. It is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. These objectives are:

• denouncing unlawful conduct,

• deterring the offender and other persons from committing offences,

• separating offenders from society where necessary,

• assisting in rehabilitation of offenders,

• providing reparation for harm done to victims or to the community,

• promoting a sense of responsibility in offenders and

• acknowledging the harm done to victims and the community.

76A sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. When imposing a sentence, I am to take into account certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders.

77The jurisprudence from our courts is clear that the sexual violation of a vulnerable young victim by a person in a position of trust calls for a severe sentence, particularly where there were multiple acts over an extended period of time with escalating intrusiveness: R. v. D.D. As I have indicated, a proper sentence must take into account both the circumstances of the offence and the offender. In the case of I.H., I consider the following circumstances to be relevant:

1. I.H. is 70 years of age. He was born in 1947 in San Ramon, El Salvador. His parents are deceased and he has sisters who live in El Salvador. He has lost contact with his brother. I.H. lived common law with his first partner and they have three children. He moved to Mexico in 1981 due to the war in El Salvador and his relationship with his common law partner ended. He maintained contact with his children and sent for his son, who came to live with him.

2. He began to live common law with his current wife, M.A., in 1982 after she moved from El Salvador to Mexico as well. M.A. had a son who was 16 months old. I.H. and M.A. had two children: a daughter who was born in 1983, and a son born in 1990. I.H. and M.A. have lived common law for 34 years and married in 2012.

3. After living in Mexico for nine years, he immigrated to Canada in 1989 with his wife and children including his step-son and his son from his first relationship. I.H. is a Canadian citizen.

4. I.H. attended school until Grade 7. When he was 16, he was recruited to go into the army for 14 months. When he left the army, he trained to become a baker and worked in a bakery for five years. After this, he worked in construction. When he arrived in Canada, he went to school for six months to learn English. He worked for 14 years for a bridge construction company until he retired four years ago. He supports himself through his pension. His wife continues to work.

5. I.H. has no criminal record.

6. I.H. lives with his wife and daughter in Toronto.

7. I.H. told the probation officer that he suffers from arthritis, tendonitis and poor eyesight. There is no additional evidence presented on these conditions and no basis to believe that he would be any less at risk in the community as opposed to within a custodial institution: see R. v. LaForme, 2014 ONCA 367, at para. 12; see also R. v. J.G.R., 2009 ONCA 116; R. v. R.L., 2013 ONCA 504, at para. 39.

8. I.H. told the probation officer that he stopped drinking in 2002 as he would forget where he was and how to get home. He was abusive to his wife when he was intoxicated. His children confirmed that his drinking was problematic. His family gave him an ultimatum to stop and he did.

9. The probation officer described I.H. as cooperative and forthcoming with some information. However, certain information he did not disclose concerning marital affairs including with his wife’s twin. He maintains his innocence with respect to the offences before the court and seemed to justify his conduct because of cultural differences.

10. The probation officer interviewed I.H.’s step-son, who is the father of L.A., and he described I.H. as “extremely abusive” towards his mother all his life. He was also very promiscuous and had come on to his step-son’s own wife when they lived with his parents. He described I.H. as “controlling” and “despotic”. He also described the impact of the charges on the family as he no longer has contact with his mother and siblings. He said that his daughter is attending counselling and is terrified of seeing I.H.

11. The probation officer interviewed L.A.’s mother and she described the changes in her daughter when she started cutting herself, the counselling she required and how she was set back by seeing I.H. in court. She said her daughter suffers from social anxiety and isolates herself from others.

12. The probation officer also interviewed M.A., the wife of I.H. She said that in the past, they would fight and he was abusive when he drank, but that since he stopped drinking, he is “a different person”. She is prepared to continue to be in the marriage with him.

13. The probation officer outlined that I.H.’s lack of remorse, his continued denial and his limited English language skills pose a barrier in accessing counselling.

14. If community supervision is ordered, she recommended conditions that he not communicate with the victims and that he attend for counselling.

78With respect to the circumstances of the offences, I.H. was convicted of sexual assaults upon his nieces and his step-granddaughter over a lengthy period of time, particularly when they were between the ages of nine and thirteen. The assaults involved fondling and touching over and under the clothing, kissing and in one case, digital penetration.

79In order to denounce such conduct and to deter others as well as the accused specifically, the courts have repeatedly imposed significant sentences for such offences. The Court of Appeal for Ontario has made it clear that a substantial sentence of incarceration is warranted where a family member abuses a position of trust by committing sexual offences against children over a lengthy period of time and in escalating severity. Cases that have imposed a lesser sentence have identified mitigating factors not present here. Conversely, cases that impose a significant sentence of incarceration have generally involved aggravating factors that include intrusive sexual assaults that took place over a lengthy period of time.

80The offence of sexual interference covers a wide range of circumstances. Jurisprudence on sentencing for these offences may involve different types of sexual assault behaviour, over different periods of time and against victims in a variety of relationships relative to the accused.

81In the case at bar, I.H. is a 70-year-old offender found guilty at trial of four counts of sexual interference. The sexual acts were perpetrated over several years approximately two decades ago against his three nieces, and between June 2012 and April 2015, against one of his step-granddaughters. The common acts perpetrated against the victims included kissing, touching their chests and genitals, and pressing himself against their bodies. Some of these incidents occurred while the children were asleep or in their beds. There was one occasion of digital penetration against one of the nieces. I.H. committed these offences while in a position of trust as an uncle and step-grandfather. In addition, his niece, T.F., has been deaf since birth, putting her in a position of acute vulnerability. The offences against the nieces took place primarily while they were between the ages of nine and thirteen and, in one case, began when one of the nieces was five or six years old.

82T.F. first made a complainant to police in 2000, but at the time the police decided that they did not have enough evidence to lay charges. In 2015, when L.A. made a complaint to police that she had been sexually assaulted, the other complainants came forward. As a result of the abuse, L.A. became depressed, misbehaved at school and engaged in self-harm. All the victims described long-term effects from the assaults.

83I.H. has no prior criminal record, is married and has retired from his work in the construction industry. As a result of his actions, his family is broken. While he has certain health issues, as outlined above, there is no evidence that these health problems cannot be addressed in jail. Further, while he stopped drinking in 2002, the incidents involving his step-granddaughter occurred in 2012. Certainly, alcohol cannot be blamed for inappropriate and illegal acts.

84In my view, the appropriate sentence in this case is between two and three years’ imprisonment. Appellate case law suggests this is appropriate for cases of prolonged sexual abuse by a family member escalating in severity over a lengthy period of time, but falling short of full intercourse or threats of violence. Mitigating factors that courts have applied in similar cases to impose a lesser sentence are not necessarily present here. As the Court of Appeal has said, even if an offender has health issues, where there is no basis to believe that he would be any less at risk in the community as opposed to within a custodial institution, those health concerns mentioned will not result in a lesser sentence.

85I have considered the appropriate range of sentence and that, generally, a significant penitentiary sentence is imposed for the offence of sexual assault on a young child where the offender is in a position of trust. I also consider that I.H. was detained overnight on two occasions upon his arrest and is credited with two days. I further consider that when he was released, the terms were not restrictive. He was not permitted to leave the province, but other than that, his liberty was not affected. I am advised by his counsel that he remained in his home a great deal, but that was his choice and not anything that was imposed by the court. I am mindful of the principles which emerge from the jurisprudence that stringent bail conditions may be considered as a mitigating factor on sentence. However, that does not apply where the conditions were not restrictive in any way.

86Considering all the circumstances of the offence and of the offender and in light of the relevant jurisprudence, I am of the view that an appropriate sentence in this case is a sentence of two years and six months. I have considered that he was a middle-aged man at the time of the commission of the offences, he has no criminal record and he worked hard for many years to support his family. He is now 70 years old and retired. He has never acknowledged that he has a problem or shown remorse and has not attended any counselling or sought professional assistance to address any type of problem of sexual deviancy. I am extremely mindful of the impact of these offences on the victims. I am of the view that a significant period of imprisonment and ancillary orders would meet the fundamental purpose and principles of sentencing. As Moldaver J. has said, in cases of this kind, the sentencing principles of deterrence, denunciation and the need to separate such offenders from society must take precedence.

87Therefore, I.H. will be sentenced to a period of two years and six months’ imprisonment for each of the offences of sexual interference. Each of these sentences shall be served concurrently. He shall be credited with two days in pre-sentence custody on a 1:1.5 basis, which is three days.

88In addition to this sentence of incarceration, I impose the following ancillary orders. There will be an order requiring I.H. to submit a bodily sample for the purpose of DNA analysis. There will be an order under SOIRA for life. There will be an order for life made pursuant to s. 161 of the Code prohibiting I.H. from (a) attending any 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, schoolground, playground or community centre; and (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.

Himel J.