Court File and Parties

COURT FILE NO.: 18/82017

DATE: 2018-05-25

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen

AND: J.A.A.

BEFORE: Mr Justice Ramsay

COUNSEL: G. Romano for the Crown; Shawn Swarts for the offender

HEARD: May 25, 2018

Endorsement

[1] The offender appears for sentence on a charge of sexual interference with a young person contrary to s.151 of the Criminal Code. The offence occurred before the most recent provision of the Code came into force. As a result, the maximum sentence is 10 years and the minimum sentence is 9 months.

[2] After a short trial without a jury I found that the offender had digitally penetrated the young cousin of his girlfriend while out four-wheeling. On the way home in the car he fondled her breasts. This must have been a terrifying experience for a girl of about 12, as she was, especially considering that she had no means of escape.

[3] The offender is in his mid-30s. His criminal record consists of a conviction for driving with excessive blood alcohol in 2012 and a simple assault on a 14-year-old girl in 2017, for which he is on probation. He is a millwright and lives with his wife and three children. He was released on a promise to appear and remained at liberty until I convicted him, at which point he was remanded in custody.

[4] The victim impact has been severe. The victim has lost contact with most of the family, who stick up for the offender. She says that her aunts’ behaviour disgusts her. It disgusts me, too. There is little I can say to the victim but to continue on the path she has taken. She has separated herself from toxic influences and gone on with her life her own way. In other words, she has chosen a healthy path. Ultimately, she will be the one who ends up with the good life.

[5] I have been presented with a joint submission. In the circumstances it is not binding on me, but I see no reason not to accept it. Left to my own devices no doubt I would have given a sentence that is close to it. I do not imagine that the difference would have been of enough significance to justify disregarding the joint submission of two experienced counsel with opposite interests.

[6] I mention in passing that I have been referred to the decision of Linhares de Sousa J. in M.L., 2016 ONSC 7082. That case was decided under the current legislation, which provides a minimum sentence of imprisonment of one year. My colleague found the minimum sentence to infringe the right to be free from cruel and unusual punishment guaranteed by s.12 of the Charter of Rights. I disagree with this decision. If the minimum penalty applied here I would have had to decide whether to follow it for the sake of judicial comity. I do not need to decide. I say only that I cannot imagine a sexual interference with a young person in which a sentence of one year in prison is grossly disproportionate, including the case that was before my colleague and the case that is before me. The so-called less serious offences cause considerable and lasting harm to the victims.

[7] I accept the joint submission and sentence the offender to nine months imprisonment less credit for presentence custody at 1.5:1, plus ancillary orders as agreed by counsel.

J.A. Ramsay J.

Date: 2018-05-25