COURT FILE NO.: 16/575
DATE: 2018/05/24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.D.T.
Defendant
Elizabeth Wilson, for the Crown
Gordon D. Cudmore, for the Defendant
HEARD: May 22, 2018
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published. This printed version of the decision has been reviewed and redacted in order to comply with this restriction.
JUSTICE I.F. LEACH (ORALLY)
Introduction and circumstances of offence
[1] Before me for sentencing, in relation to a conviction for committing sexual interference, contrary to section 151 of the Criminal Code of Canada, (“the Code”), is R.D.T...
[2] The circumstances leading to that conviction were described in considerable detail in two earlier decisions rendered in relation to this matter:
i. my decision concerning the voluntariness of certain statements made by Mr T. during the course of a police interview, since reported as R. v. R.D.T., [2017] O.J. No. 3417 (S.C.J.); and
ii. my subsequent trial decision, since reported as R. v. R.D.T., [2018] O.J. No. 766 (S.C.J.), finding Mr T. guilty of sexual interference.
[3] I accordingly do not intend to reiterate all of those circumstances in detail again now. For present purposes, (and at times using first names simply to avoid possible confusion stemming from those involved having common surnames), I think it sufficient to note at the outset that the underlying circumstances include the following matters and findings:
• R.D.T., (“R.”), was born in August of 1992. His biological father is C.T., (“C.”).
• The primary victim of R.’s sexual interference, J.A., (“J.”), was born in September of 2000, to her biological parents B.B. and N.A. (Like C.T. and N.A., Mr B. and his current partner have attended these proceedings.) R. therefore was approximately 8 years older than J.
• In or around 2008 or 2009, (when R. was approximately 16 or 17, and J. was approximately 8 or 9), R.’s biological father, (C.T. or “C.”), and J.’s biological mother, (N.A. or “N.”), entered into a relationship. Shortly after the relationship began, J. and her mother N. came to live in the same residence occupied by R. and his father C.
• In August of 2010, the blended family was expanded when the union of C. and N. led to the birth of another child: V.T. (or “V.”). All five members of the blended family continued to live in the same residence until R. left the family home at the age of 18 or 19 to thereafter maintain a separate residence. He nevertheless continued to return to the family home for visits, including weekly dinners.
• During 2015, R. made repeated efforts to touch J. for a sexual purpose. On at least one occasion, shortly before June of 2015, (when R. was 22 and J. just 14), he succeeded. In particular, during one of his weekly visits to the family home, R. made his way upstairs to J.’s bedroom, and closed the door. Despite J.’s verbal and physical efforts to resist, (which included pleas for R. to stop what he was doing), R. held J. against her will, put his hand down his pants to rub her vagina, and directly touched and felt her breasts under her shirt.
• The incident clearly had a traumatic and significant impact on J., who became very troubled and focused on what had happened to her. She struggled to cope with her feelings through the making of subsequent entries in her diaries, (including indications that R. was persisting in his efforts to touch her sexually and that she was desperate for it to stop), and by making confidential disclosures, (in October and early November of 2015), to two of her closest friends.
• On November 12, 2015, J. was found unresponsive in her bedroom of the family residence, following apparent efforts to hang herself. She died from her self-inflicted injuries the next day.
• In the course of a related investigation into J.’s death, police came to learn of J.’s diary entries, and the confidential disclosures made to her friends, describing and referring to R.’s acts of sexual interference.
• During a subsequent police interview on December 9, 2015, R. made voluntary statements confirming, inter alia, that on at least one occasion, he had put his hand down J.’s pants to touch and rub her vagina, and that he had felt her breasts under her shirt.
[4] Following delivery of my aforesaid trial decision on February 12, 2018, which resulted in R.’s conviction, I directed preparation of a pre-sentence report pursuant to s.721 of the Code, and the matter was adjourned to May 7, 2018, (the first day of this trial sittings), for the scheduling of sentencing submissions.
[5] Those sentencing submissions proceeded before me two days ago, on May 22, 2018, at which time I received counsel submissions, as well as victim impact statements prepared by C. and N.. (Although both were in attendance, both felt unable to read their statements aloud personally, and their victim impact statements accordingly were read out by Crown counsel.)
[6] Pursuant to s.726 of the Code, R. was asked if he wanted to make any direct comments to me prior to the imposition of sentence. However, he declined the opportunity.
[7] The matter then was adjourned to today for the imposition of sentence, and delivery of my associated reasons.
[8] With those introductory comments about the circumstances of the underlying offence in mind, I now return to my current task of determining the appropriate sentence R. should receive in relation to his offence and conviction, in respect of which he has not yet spent any time in custody.
Circumstances of the offender
[9] The personal circumstances of R.T. were outlined in the presentence report I have mentioned, the victim impact statements I received, and the submissions of counsel.
[10] I have reviewed and considered all of that information, but note that R.’s personal circumstances include the following:
• He was born and raised here in [name of community]. In particular, as noted above, he was born in August of 1992, making him 22 at the time of the offensive conduct that brings him before me now, and 25 at the time of sentencing.
• His biological parents separated shortly after he was born, and he thereafter remained with his biological father, (C.), having little further contact with his biological mother. (Later attempts to establish some kind of relationship with his biological mother were unsuccessful, and R. informed the author of the presentence report that he has little respect for the woman who, in his view, “didn’t want” him.)
• R. also now has disparaging comments about his biological father C. and his step-mother N.. For example, R. indicated to the author of the presentence report that C. struggled with alcoholism, was emotionally and verbally abusive, and grew to have a “toxic” relationship with his son, failing to provide R. with stability or support. R. similarly claimed to have had a “rocky” relationship with N. from the outset.
• However, R.’s current negative views about C. and N. seem distinctly at odds with other information before me, which in turn causes me to question the extent to which the view R. expressed to the author of the presentence report may not be an accurate reflection of the past, so much as a rationalization of what is now clearly a severe and likely permanent estrangement between R., C. and N. in the wake of the revelations leading to this proceeding. In that regard:
o R. himself acknowledged to the author of the presentence report that C. went through an intense legal “battle” to retain custody of his son, and that the two thereafter enjoyed a “really close” relationship as R. was growing up.
o In his victim impact statement, C. emphasized how he had raised and protected R., even as a single parent.
o C.’s provision of a generally stable and supportive environment is consistent with R.’s own indications that, while R. was still an infant, C. entered into a 15-year relationship with another woman who provided R. with an acknowledged “mother figure”.
o Similarly, as emphasized in the victim impact statements of C. and N., both went to significant lengths, when they began their life together and thereafter, to accept each other’s children as their own, and provide the children–including R. - with unconditional love and support in a unified family home. In time, they helped R. find employment and save money, rewarded the completion of his high school studies by purchasing him a vehicle, and supported a move into his own separate residence, while welcoming him back into the family home on a regular basis for dinners and further support.
o Although R.’s comments to the author of the presentence report now question the extent of the support and love he received from his father and step-mother, and the quality of the relationship he previously may have enjoyed with them, I think R.’s reactions in the immediate wake of his arrest in relation to this matter speaks more accurately to the truth of the accounts provided by C. and N. in that regard. His immediate vocal and emotional reaction at the time was focused in very large measure on repeatedly wanting to speak to C. and N., and his concern for what they might think of him because of what he admittedly had done to J..
• The suggestion that R. had an unusually challenging upbringing also seems belied by the reality that, until the age of 19, R. seems to have experienced no significant challenges or problematic behaviour. For example:
o Despite being formally diagnosed with ADHD and an Oppositional Defiance Disorder at the age of 13, his conditions apparently have remained largely if not entirely under control, initially through the use of prescription medication and subsequently through occasional use of marihuana and other coping mechanisms he developed to deal with feelings of anger or hostility when told what to do by others.
o Apart from the aforesaid use of marihuana to assist with his diagnosed challenges, he apparently has never experienced any problems with alcohol, or used any more serious narcotics.
o He completed his high school studies without ever being suspended or expelled, (although he struggled with truancy for a time), and still has an interest in upgrading his education.
o He apparently has had no difficulty finding continued employment, (e.g., in the customer service industry and as a labourer), and generally is good at living within self-imposed budgets.
o Up until the age of 19 or 20, he also apparently had no involvement with the criminal justice system.
• In my view, all of this is consistent with someone who generally has had the benefit of a generally stable, loving and supportive environment in his youth.
• R.’s life nevertheless took a dark turn in March of 2012 when, at the age of 19, R. was convicted of a sexual offence. The victim was another adolescent girl and relative of R.; i.e., his biological sister, (i.e., another child of C.T.) Although the relevant biological sister was 15 at the time of R.’s offence, the resulting conviction was for sexual assault rather than sexual interference. In the result, R. was sentenced to a custodial sentence of 90 days, (to be served intermittently), followed by two years of probation – the terms of which apparently included sex specific counselling, which R. completed, (although Crown counsel quite accurately notes and emphasizes there is absolutely no information before me to indicate what that counselling may have entailed, and what R. may have learned). At the time of sentencing for his earlier sexual offence, R. also was subjected to a discretionary weapons prohibition pursuant to section 110 of the Code.
• When R. was convicted of sexually assaulting his own adolescent biological sister, C. and N. understandably found the development surprising and “upsetting beyond words”. They struggled to understand and make sense of R.’s conduct, through the assistance of family and friends. For obvious reasons, they also were very concerned, having regard to the nature of the offence, about the possible implications of R.’s further interactions with their daughters J. and V.. They were also disturbed by how little effect going to jail seemed to have on R., who spoke of the experience as if it were a form of week-end holiday outings, and who repeatedly declined to seek further counselling despite their numerous requests in that regard. However, R. also gave C. and N. assurances that he was firmly intent on protecting his sisters and being a good and protective “big brother” to them as he remained part of the family. In the result, C. and N. resolved to trust in R., whom they regarded as “their one and only son”. They loved him. They wanted to believe, and did believe, that he was “a good kid who got himself into trouble and needed his family to support him”.
• Having taken what they considered to be appropriate precautions, C. and N. therefore continued to provide R. with love and support, and continued to welcome him regularly into their home, where he was allowed to remain a part of J.’s life. The reward for their love, trust and support was R.’s deliberate sexual abuse of J., with its devastating consequences.
• In the wake of those events, there has been, and almost certainly will be, (having regard to the indications in the victim impact statements), no further contact between R., his father C., his step-mother N., and numerous other extended relations. In other words, R.’s actions effectively have put an end to the love and support he otherwise would have received from his family.
• Again, following his arrest in relation to this matter, R. has spent no time in presentence custody.
• He remains single, and has no dependents.
• As he has for the past five years, R. currently shares a residence with an older woman named Ms M., who requires a degree of assistance owing to physical health issues. R. assists Ms M. with various tasks such as carrying, and pays her rent on a regular basis. In exchange, he receives accommodation and cooking. Ms M. views R. as an honest, trustworthy and resilient person, who is remarkably helpful to her. She feels she would be “lost without him”.
• R. also continues to be employed on a full time basis, working for a local window and door company, and earning an hourly wage. He spends his spare time at home, “watching television, playing guitar, reading comics and hanging with friends”. While he has a number of associates, he himself feels that he has only one close friend.
[11] Consistent with his plea of “not guilty”, R. continued to maintain his innocence during discussions with the author of the pre-sentence report.
[12] He did not and does not accept responsibility for the conduct underlying his conviction, and has expressed no remorse in that regard.
[13] He similarly continues to take no responsibility for his earlier conviction, stemming from his sexual assault on his biological sister.
[14] As emphasized by the author of the pre-sentence report, Mr T. accordingly presents as having no insight into his offending behaviour, which may place him at a greater risk in the community. He nevertheless did indicate his willingness to attend and complete sex specific counselling.
Position of the Crown
[15] The Crown submits that, having regard to all the circumstances, an appropriate sentence for Mr T.’s sexual interference conviction would be a custodial sentence of two years less a day followed by a three year period of probation, subject to terms and conditions including:
• a requirement that Mr T. engage in sex-offence-specific counselling;
• a requirement that Mr T. refrain from any direct or indirect contact or communication, in the absence of prior written and revocable consent), with C.T., N.J.A.-T., V.T., B.B. or B.L.; and
• a prohibition, in terms similar to those contemplated by s.161(1)(c) of the Code, prohibiting Mr T. from having any direct contact or communication by any means with a person under the age of 16 years, unless he does so under the supervision of an adult considered appropriate by his probation officer.
[16] Crown counsel also sought ancillary orders that would include the following:
• pursuant to s.743.21 of the Code, a discretionary order prohibiting Mr T. from communicating directly or indirectly, without prior written and revocable permission, with C.T., N.J.A.-T., V.T., B.B. and B.L.;
• pursuant to s.109(1)(a) of the Code, a mandatory weapons prohibition order, (which the Crown says should be for a period of twenty years);
• pursuant to subsection (a)(i.1) of the “primary designated offence” definition in s.487.04 of the Code, and s. 487.051(1) of the Code, a mandatory order compelling Mr T. to provide the number of samples of bodily substances reasonably required for forensic DNA analysis;
• pursuant to ss.490.11(1)(a)(ii), 490.012(1) and 490.013(2.1), a mandatory order in Form 52 requiring Mr T. to comply with the Sexual Offender Information Registration Act (or “SOIRA”) for life; and
• pursuant to ss.161 (1)(b) and (c), and s.161(1.1), a discretionary order that would place restrictions, for 20 years, on the ability of Mr T. to seek or engage in employment likely to bring him into contact with children, and the ability of Mr T. to have any direct contact or communication by any means with those under the age of 16 without a court approved supervisor.
Position of the defence
[17] Defence counsel took no issue with the ancillary orders sought by the Crown, or the period of probation and associated terms suggested by Crown counsel.
[18] Instead, defence counsel focused on duration of the custodial sentence Mr T. should receive, and submitted that, having regard to all the circumstances, incarceration for a period of 16 months would be appropriate.
Sentencing objectives – Legislative directions and general principles
[19] As emphasized by s.718 of the Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society, by imposing just sanctions that have one or more of the following objectives:
a. denunciation of unlawful conduct;
b. deterring the offender and others from committing offences;
c. separation of offenders from society, where necessary;
d. assisting in the rehabilitation of offenders;
e. providing reparations for any harm done to victims or the community; and
f. promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and the community by their conduct.
[20] Pursuant to s.718.1 of the Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.
[21] Pursuant s.718.2 of the Code, I note that, amongst other considerations, the court is obliged to take into account that:
• a sentence should be reduced or increased to account for any mitigating or aggravating circumstances relating to the offence or the offender, (including evidence that the offence had a significant impact on the victim, considering his or her age and other personal circumstances, including his or her health and financial situation);
• a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
• all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
[22] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at a just sentence for Mr T., in relation to the conviction now before me.
[23] However, the legislation provides further guidance as to how these general sentencing objectives should be applied in dealing with offences of this particular nature. In particular:
• section 718.01 of the Code provides that, “When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence”; and
• subsections 718.2(a)(ii.1) and 718.2(a)(iii) of the Code provide that, when an offender abuses a person under the age of 18 years, or abuses a position of trust or authority in relation to the victim while committing an offence, these are deemed to be aggravating circumstances.
[24] Not surprisingly, our courts therefore have imposed significant penal sanctions in cases involving the sexual abuse of children, especially if the offender is in a position of authority or commits a breach of trust.
[25] These sentences reflect a recognition that such abuse frequently results in serious emotional trauma and psychological harm to the victim, the effects of which may survive far longer than physical trauma, and may even be permanent. See R. v. P. (M.) (1992), 1992 CanLII 2761 (AB CA), 73 C.C.C. (3d) 530 (Alta.C.A.), at p.535.
[26] The seriousness with which the crime of sexual interference is regarded by our society is reflected in the severity of potential punishment, (a maximum of fourteen years), provided by the Code.
[27] It is also reflected in the Code’s provisions requiring a mandatory minimum term of imprisonment for one year for the crime of sexual interference.
[28] In that regard, I nevertheless am mindful of numerous authorities which have emphasized, (albeit in other contexts), that an applicable mandatory minimum sentence must not be considered the “norm”, thereby effectively converting the sentencing “floor” into something resembling a “ceiling” as well. See, for example: R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paragraph 75; and R. v. K.G., 2012 ONSC 3523, [2012] O.J. No. 2785 (S.C.J.), at paragraph 36.
[29] Bearing in mind the general sentencing objectives and guidelines outlined above, I turn next to a consideration of possible aggravating and mitigating factors.
Aggravating factors
[30] Mr T.’s assertion of innocence certainly is not an aggravating circumstance, although it may undermine a basis for inferring that he has insight into his behavior, and the absence of such insight may be relevant to the need for specific deterrence and/or Mr T.’s prospects for rehabilitation. See R. v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434 (C.A.), at paragraph 57.
[31] In that regard, I think it very noteworthy and troubling that, as confirmed by the presentence report, Mr T. presents as having no insight into his offending behaviour, in relation to his earlier sexual assault on his 15-year-old biological sister, or his sexual interference with his 15-year-old adoptive sister three years later.
[32] Clearly, Mr T. is being sentenced now only in relation to the latter.
[33] However, it seems equally clear that he learned little or nothing from whatever earlier counselling he may have completed; that the sentence for his earlier offence provided little or no deterrent to his deliberate commission of a similar offence against a similar female relative of similar age; and that Mr T. still has no insight, years after each offence, as to why his behaviour on both occasions was so very wrong and disturbing.
[34] In my view, such considerations underscore the need for heightened specific deterrence and the need for mandated counselling in this case, without which the prospects for Mr T.’s rehabilitation seem very much in doubt. I think such doubts are compounded by the reality that Mr T. now has been cut off completely from the extensive and strong network of familial support he previously enjoyed; support which often plays a critical role in successful rehabilitation.
[35] Although Mr T.’s assertion of innocence is not an aggravating circumstance, this case does present a number of aggravating considerations, which in my view include the following:
• First, in committing the offence, Mr T. abused a person under the age of eighteen years, and as noted above, this is deemed to be an aggravating factor pursuant to s.718.2(a)(ii.1) of the Code.
• Second, as already noted, despite his relative youth Mr T. is not a first time offender. To the contrary, he not only has a criminal record, but a prior conviction for a very similar offence committed in very similar circumstances; i.e., sexual abuse of a 15-year-old relative.
• Third, while Mr T. may not have held a position of trust comparable to that of a parent, guardian or other caregiver with control over J., so as to engage the deeming provisions of s.718.2 (a)(iii) of the Code, I think it relevant and an aggravating consideration that, in committing his offence, Mr T. abused his status as a trusted member of the family to gain access to J. and sexually abuse her in the sanctity of her own home and bedroom. The place where she should have been entitled to feel the greatest sense of security was instead transformed into the scene of her sexual violation, a constant reminder of what had happened to her there, and eventually the place where she decided to end her life.
• Fourth, there is the very serious matter of the consequences inflicted on J. and others by Mr T.’s sexual misconduct. In that regard:
o Pursuant to s.718.2(a)(iii.1) of the Code, (and as mentioned above), a sentencing judge must take into consideration whether the offence has had a significant impact on a victim, having regard to his or her age and other personal circumstances, including the victim’s health and financial situation.
o In this case, the impact of Mr T.’s offence has been devastating and irreparable.
o In relation to J. herself, her mother N. fully believes that R.s offence broke J.’s “heart and soul”, “destroyed her life”, and finally “drove her over the edge” to suicide. In that regard, the complexities of suicide obviously cannot be overstated, and one can never be certain of the precise combination of factors that led someone to take his or her own life. In this case, however, there are strong and unmistakeable indications that Mr T.’s sexual violation of J. played a dominant role in her tragic decision. Her diary entries make clear the personal torment, caused by Mr T.’s sexual misconduct, and his repeated efforts to make it happen again. In her diary entries and revelations to her close friends, she confirmed her feelings that Mr T.’s conduct was “gross”, and made her feel “depressed” and “sick to her stomach”. Like many victims of such abuse, J. unjustly feared that she somehow would get in trouble if the abuse ever came to light, and was desperate for the abuse and threats of further abuse to somehow come to an end. Such thoughts clearly weighed more and more on her mind in late October and early November of 2015, shortly before her death, as she felt compelled to speak to her closest friends in confidence about what Mr T. had done to her. Just three days before her death, she expressly identified her step-brother holding her against her will and sexually touching her as one of the confidential things about her that was in the forefront of her mind. Having regard to all the circumstances, in my view, there really is no doubt that R.’s sexual violation of J. played a very real and direct role in her tragic death.
o That irrevocable loss is horrible in itself, but J. clearly was not the only victim of R.’s misconduct. In that regard:
▪ In their victim impact statements, C. and N. convey, as best they can despite their obvious grief and struggle to put their feelings adequately into words, profound feelings of heartbreak, betrayal and despondency.
▪ C. has been transformed from an outgoing and gregarious person into someone now isolated, introverted and permanently saddened. As he put it, while the loss of one child is soul crushing, the loss of one because of the other is beyond his ability to put into words. The pain in his heart never wanes. It aches continuously, and “every day is a bad day”. He is wracked with guilt for bringing R. into J.’s life, and for believing and trusting in R. after his earlier sexual offence. C. struggles to understand how R. could betray his family’s trust in such a profound and deliberately selfish way, and apparently feel no remorse for his admitted actions. C. has endured the additional pain of watching his wife N. struggle with her own feelings of despair and wanting to die, in turn requiring C. to stay with her in an effort to prevent further tragedy. C. himself feels easily overwhelmed and “emotionally stunned” every single day, and his physical and mental health has suffered dramatically. His conditions include chronic depression and anxiety, which he has attempted to address through physicians, medications and psychiatric care. However, he frequently has been unable to work.
▪ For N., all of this has been a “nightmare” that has affected her “beyond words”, and “more than [her] heart can handle”. The loss of her beautiful daughter was compounded by stunned bewilderment that R. could betray and abuse his family’s love and support in such a terrible way. Unable to cope with a “whirl wind of pain”, and overwhelming feelings of guilt that her life choices and efforts to do “the right thing” in trusting and supporting R. led to such a tragic outcome, N. admittedly lost the will to live for a long time. Although she now feels inclined to “fight to stay alive”, she struggles each day to get out of bed and cope with severe anxiety, depression and post-traumatic stress disorder, all of which has driven her into early menopause.
▪ In addition to their devastating emotional loss, C., N. and V. also have suffered financially, and through additional dislocation. In that regard, they have struggled not only with the consequences of C. and N. being unable to work as they did before, but also with the debt resulting from J.’s unexpected funeral. They also effectively were obliged to sell their family home, (without benefiting from their substantial renovation efforts), because they no longer could endure the nightmares caused by memories of what had happened there. V., in turn, was obliged to change schools.
▪ Sadly and not surprisingly, however, these tragic events also have had a significant impact beyond J.’s immediate family. As C. emphasized in his victim impact statement, grandparents and cousins also have been devastated and forever changed by R.’s actions and betrayal of the extended family’s trust and love. B.B. and his current partner no doubt feel similar pain as a result of J.’s death. Of course, I also was presented with the video-recorded statements of at least two of J.’s closest friends, who no doubt represent only a small fraction of those who grieve her loss.
Mitigating factors
[36] As for mitigating considerations, in my view there are not many. In that regard:
• There obviously is no guilty plea for which I can give Mr T. any credit.
• Nor, as I have mentioned, have there been any other indications that Mr T. accepts responsibility or feels remorse for his actions.
• Although Mr T. advised the author of the presentence report that he was willing to engage in counselling, to date Mr T. also apparently has taken no voluntary steps whatsoever towards his rehabilitation.
• For the reasons outlined above, I am not persuaded that Mr T. experienced any serious challenges in his upbringing deserving of significant mitigation consideration.
[37] At most, I think the possible mitigation considerations here are limited to the following:
• First, he is still relatively youthful.
• Second, apart from his two criminal convictions, (which are significant), Mr T. generally has demonstrated the capacity to lead a pro-social life, in terms of completing his education, remaining gainfully employed, and providing assistance to Ms M., (although his reasons for the latter are not limited to pure altruism). With appropriate and sustained counselling, focused in particular on his sex-specific problems, Mr T. hopefully can be rehabilitated.
• Third, while Mr T. now has a limited support network, (about which few details were provided), he does have the support of Ms M... Moreover, she now feels dependent on him for continued assistance.
Further analysis
[38] With the above in mind, I now turn to determination and imposition of an appropriate sentence for the offence now before the court.
[39] In that regard, in addition to the matters outlined above, I also have considered the limited authority provided to me by counsel, bearing in mind the sentencing objective, noted above, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[40] The reality, of course, is that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
[41] In this particular case, I was referred to only one first instance decision of the Superior Court of Justice, upheld by our Court of Appeal.
[42] In particular, Crown counsel referred me to R. v. Ogbamichael, [2014] O.J. No. 1356 (S.C.J.), affirmed [2016] O.J. No. 356 (C.A.). In that case, the 47-year-old offender was convicted, after trial, of sexual assault and breach of probation. While riding on the subway, he had seated himself next to a young woman who had fallen asleep, and began rubbing her leg and crotch area while attempting to get his hand inside her pants. The incident came to an end when the victim woke up, stood up and got off the subway with lasting feelings of disgust and shame at being groped and objectified. The offender suffered from a professionally diagnosed condition of “toucherism”; a paraphilia in respect of which he had received psychiatric treatment. He had six prior convictions for similar offences involving unwanted sexual touching, as well as five related convictions for breaching court orders. He had immigrating to Canada from war-ravaged Eritrea in 1990, obtained post-secondary education, and was described as intelligent and pleasant despite his condition. While expressing a willingness to submit to further treatment for his disorder, he expressed no real remorse for his actions or concern for his latest victim. In the result, the court imposed, in addition to ancillary orders, a sentence of 18 months imprisonment for the sexual assault conviction, and a consecutive sentence of 12 months for the offender’s breach of probation, to be followed by 3 years of probation. In doing so, the sentencing judge acknowledged that the 18 month custodial sentence imposed in relation to the relevant sexual assault was significant, for sexual touching at the lower end of the scale, in terms of invasiveness, and a significant increase from the previous custodial sentences imposed on the offender. However, the court emphasized the need for denunciation and deterrence, (accepted as the paramount considerations), and noted that more lenient dispositions had failed to deter the offender. That approach and sentence were upheld by our Court of Appeal.
[43] While there are points of similarity between that case and the one before me, (e.g. insofar as the offence in question involved one confirmed instance of sexual touching of a young female by an offender who had a prior history of similar misconduct, and who required more specific deterrence), there also are obvious distinctions which might suggest, by way of comparison, imposition of a more serious or lenient sentence in the case before me.
[44] For example, in many respects the case before me arguably warrants a more severe sentence than that received by Mr Ogbamichael, insofar as:
• the victim in the case before me was not a “young woman” but a 15-year-old girl;
• the sexual touching in this case occurred in the supposed sanctity of the victim’s own home and bedroom, as opposed to a public place where the victim could easily escape and seek assistance;
• the touching in this case was far more invasive, in that the offender succeeded in reaching inside the victim’s pants to touch and rub her vagina directly, and feel under her shirt to touch the victim’s breasts directly;
• the offender in this case was not a fleeting stranger unlikely to be encountered again, but a trusted member of the family who continued to confront the victim with further efforts to engage in similar misconduct; and
• the impact on the victim in this case extended far beyond feelings of disgust and shame to suicide.
[45] On the other hand, the case before me arguably warrants a less serious sentence than Mr Ogbamichael in certain respects, insofar as the offender before me is more youthful, and has a criminal record and history of prior similar misconduct that is much less extensive.
[46] Again, Crown counsel provided me with just one precedent to consider.
[47] I received no authority from defence counsel.
[48] In the limited time available to me to conduct my own research, I was unable to locate a precedent of any substantial similarity to the case at hand – which may reflect a similar inability on the part of counsel to do that either.
Assessment
[49] In the result, I am guided primarily by the general principles outlined above, in determining a fit and appropriate sentence for Mr T.. In that regard, and without reiterating in detail the considerations outlined above:
• While not ignoring other sentencing principles, (including possible rehabilitation of Mr T.), denunciation and deterrence are the paramount considerations here.
• In that regard, I think serious denunciation of Mr T.’s conduct is appropriate, having regard not only to the blatant, deliberate and selfish violations of familial decency and trust I have identified, and the obvious devastating and tragic consequences of his conduct.
• That he committed a very similar offence in similar circumstances just three years earlier, apparently was undeterred by his previous intermittent sentence and mandated counselling, and still demonstrates absolutely no apparent insight into the wrongfulness of his admitted sexual misconduct, also make it clear that significantly elevated specific deterrence is required.
• Furthermore, I think separation of Mr T. from society, and placing him in an environment likely to encourage a more directed focus on availing himself of available counselling and treatment programs, (especially if he is incarcerated and permitted to serve his sentence at the Ontario Correctional Institute in Brampton), is likely to be more conducive, at this point, to prompting meaningful steps on a path towards rehabilitation.
• As noted above, the aggravating considerations here are significant, while the mitigating considerations are modest.
• On the whole, I am inclined to temper the sentence sought by the Crown only because of Mr T.’s relative youth, and the fact that, despite its utterly devastating consequences, Mr T.’s successful sexual touching of J. was confirmed to have occurred only on one occasion, (despite further attempts), and stopped short of penetration or more invasive activity.
[50] Having regard to all the circumstances, I find that the appropriate custodial sentence for Mr T. should be 22 months, to be followed by three years of probation on the terms and conditions I will indicate during formal imposition of sentence.
Ancillary orders
[51] As for the various further orders requested by the Crown:
• In my view, a discretionary order pursuant to s.743.21 of the Code, to prevent Mr T. from contacting or communicating with the five identified individuals, during the course of his custodial sentence, is entirely appropriate. The individuals in question have been put through enough, without having to face the prospect of hearing from Mr T. while he is serving his sentence.
• A mandatory weapons prohibition order is required pursuant to s.109 (1)(a) of the Code, and I agree with the Crown’s request, (not opposed by the defence), that the prohibition should be for twenty years.
• The DNA sample order requested by the Crown also was not opposed by the defence, but I independently think it is required and appropriate. Sexual interference is expressly included within the s.487.04 Code definition of “primary designated offence”, which in turn means that a DNA sample order in Form 5.03 is mandated in any event pursuant to s.487.051(1) of the Code.
• An order in Form 52 requiring Mr T. to comply with the Sex Offender Information Registration Act (or “SOIRA”) for life is similarly not only appropriate but also mandatory. In particular, s.490.11 (1)(a)(ii) of the Code expressly includes sexual interference within the definition of “designated offence”, for the purposes of s.490.012(1), and pursuant to s.490.013(2.1) of the Code, the mandatory period of compliance with the SOIRA is for life, given that Mr T. now has been convicted of more than one offence identified by s.490.011(1)(a) of the Code.
• The relief requested by Crown counsel pursuant to s.161 is discretionary, rather than mandatory. In particular, while s.161 (1.1) expressly includes sexual interference within the list of offences engaging the jurisdiction provided by s.161 (1), the provisions of that subsection indicate that the court “shall consider making and may make” such prohibition orders, “subject to the conditions or exemptions that the court directs”. [Emphasis added.] In the circumstances of this case:
o I think it appropriate to make an order pursuant to s.161 (1)(b), prohibiting Mr T., for a period of 20 years, from being employed, either for pay or on a volunteer basis, that would involve his being in a position of trust or authority towards persons under the age of 16 years. While Mr T. apparently has not sought or engaged in such employment in the past, in my view he now has forfeited the right to do so by demonstrating that he simply cannot be trusted around adolescents. Since he has been willing to engage in such misconduct with his own biological and adopted sisters, there is little reason to believe that he would exercise restraint in relation to other young persons to whom he is unrelated.
o For similar reasons, I think it appropriate to make an order pursuant to s.161 (1)(c) of the Code, prohibiting Mr T., for a period of 20 years, from having any direct contact or communication by any means with a person who is under the age of 16 years, unless he does so under the supervision of an adult who is the parent or guardian of that person under the age of 16 years.
• Finally, there will be an ancillary order requiring Mr T. to pay the mandatory victim surcharge of $200, required by s.737 of the Code, for his single conviction resulting from prosecution by way of indictment. Mr T. will have 60 days to pay that surcharge; i.e., the maximum time for payment I currently may order, notwithstanding Mr T.’s incarceration.
Formal imposition of sentence
[52] Stand up please Mr T..
[53] For the reasons I have outlined, I am sentencing you to a period of incarceration for 22 months.
[54] While my recommendation as to where you serve that sentence is not binding, I would urge that serious consideration be given to having you serve all or part of that sentence at the Ontario Correctional Institute in Brampton, where you might be able to obtain counselling and treatment focused, among other things, on the sex-specific issues underlying your conviction.
[55] Your time in custody shall be followed by three years of probation, which shall be governed by terms and conditions that will include the following:
• To keep the peace and be of good behavior;
• To appear before the court when required to do so by the court;
• To notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;
• To report to a probation officer within two working days of your release from custody, and thereafter, when required by the probation officer and in the manner directed by the probation officer;
• To remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
• To refrain from any direct or indirect contact, communication or association with C.T., N.J.A.-T., V.T., B.B. and B.L., or anyone else identified in writing by your probation officer, without the prior written and revocable consent of such individuals, and similarly refrain from knowingly coming within 200 meters of any known place of residence, education or employment of any of those individuals;
• To refrain from any direct contact or communication by any means whatsoever with a person who is under the age of 16 years, unless you do so under the supervision of a person who is that other person’s parent or legal guardian, or a person approved in writing by your probation officer; and
• To attend for any assessment, and actively participate in any and all programs of rehabilitation or counselling recommended and directed by your probation officer, which may include, but which shall not be limited to, sex offender counselling.
[56] There will, as well, be further ancillary sentencing orders whereby:
• pursuant to s.743.21 of the Code, you shall be prohibited from contacting, directly or indirectly during the custodial period of your sentence, without their prior written and revocable consent, C.T., N.J.A.-T., V.T., B.B. and/or B.L.;
• pursuant to s.109(a) of the Code, you will be subject to a weapons prohibition order for a period of twenty years;
• pursuant to ss.487.04 and 487.051(1) of the Code, you will provide the number of samples of bodily substances that is reasonably required for forensic DNA analysis;
• pursuant to ss.490.11(1)(a)(ii), 490.012(1) and 490.013(2.1) of the Code, you will comply with the Sex Offender Information Registration Act for life;
• pursuant to s.161(1)(b) of the Code, you will be subject to an order prohibiting you, for a period of 20 years, from 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;
• pursuant to s.161(1)(c) of the Code, you will be subject to an order prohibiting you, for a period of 20 years, from having any direct contact, including communication by any means, with a person who is under the age of 16 years, unless you do so under the supervision of a parent or legal guardian of that person under the age of 16 years; and
• pursuant to s.737 of the Code, you will be required to pay, within sixty days, a victim surcharge of $200.00.
[57] Mr T., you have done an abhorrent thing in betraying and abusing the trust of your family, and in particular, the trust, security and personal integrity of someone who was entitled to look to you for the support and protection expected of a brother.
[58] For your own selfish sexual gratification, you have destroyed lives, and forever thrown away all the family trust and support that was lovingly given to you.
[59] As I sit here, I have no sense that you truly appreciate any of that, but you will have time to dwell on such matters in the months ahead.
[60] As your father said, you clearly need help. I hope you realize that, and take the steps needed to make sure nothing like this ever happens again.
[61] For now, please be seated while I endorse the indictment and the warrant of committal accordingly.
”Justice I.F. Leach”
Justice I.F. Leach
Released: May 24, 2018
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R.D.T.
REASONS FOR JUDGMENT
Justice I.F. Leach
Released: May 24, 2018