Court File and Parties

Barrie Court File No.: CR-17-038 Date: 2018-10-10 Ontario Superior Court of Justice

Her Majesty the Queen – and – W.M. Defendant

Counsel: J. Dafoe, for the Crown K. Schofield, for the Defendant

Heard: June 15 and September 20, 2018

Publication Restriction Notice

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This Judgment complies with this restriction so that it can be published.

Reasons for Sentence

DE SA J.:

Background

[1] The accused has been convicted of sexual interference. W.M. forcibly masturbated J.D. who was 12 years old at the time. W.M. was a close friend of J.D.’s mother, (hereinafter “J.A.”), from work. On the evening of November 13, 2015 as W.M. was watching J.D., they began play fighting. During the course of their play fighting, W.M. held J.D. down and masturbated him. A more detailed recitation of the facts is included in my decision at R. v. W.M., 2018 ONSC 2120.

[2] The Crown seeks a sentence of 2 years jail. The Crown points out that the offender was in a position of trust when he perpetrated the assault. J.D. was young, innocent and vulnerable, and the abuse has had a profound impact on J.D.’s life. The Crown emphasizes the serious impact the assault has had on J.D. in seeking a sentence of 2 years.

[3] The victim impact statements of both J.D. and his mother, J.A. were filed on the sentencing hearing. J.D. in his statement explains his feelings of depression and hopelessness following the assault. Following the assault, J.D. has felt trapped in his body and in his head. He can’t relate to people in the same way. He feels continuously angry. He has come to hate his life.

[4] J.A., in her victim impact statement, also explains how J.D. has changed. He is angry and has had suicidal thoughts. He has lost his innocence. He is not the person he used to be. The incident also changed her relationship with her son. The trust is gone. She always feels guilt for what happened to J.D.

[5] The defence suggests that J.D.’s change may be simply attributable to adolescence rather than the offence. I disagree. The assault has clearly had a profound impact both on J.D. and his family.

[6] The defence takes the position that a sentence of 9-12 months is appropriate in the circumstances. The defence argues that there is no penetration, and no violence. The offender has supports in the community. Moreover, the offender has no criminal record. According to the defence, the serious consequences which flow from a sexual assault of this nature on a child are built into the range of 9-12 months maintained by the courts. There is no basis to increase the sentence on the basis of the impact on J.D.

[7] The defence also points out that I should consider the time the accused has spent on stringent bail as a substantial mitigating factor on sentence. He has been on house arrest with some minor exceptions since the date of the charges in 2015. The defence asks that W.M. receive 9 months credit for his time spent on a stringent bail. W.M. was forced to be with his surety (his mother) except with a note. W.M. testified that the time on bail was difficult.

[8] The defence submits that having regard to the time on stringent bail, W.M. should receive a sentence of 90 days and the sentence should be served intermittently so W.M. can continue helping his parents at home.

Mandatory Minimum

[9] An indictable conviction for sexual interference carries with it a mandatory minimum sentence of 1 year. W.M. has challenged the constitutionality of the statutory minimum relying on other decisions of this Court which have found the minimum unconstitutional. R. v. B.J.T., 2016 ONSC 6616; R. v. M.L., 2016 ONSC 7082; R. v. Sarmales, 2017 ONSC 1869; R. v. Ali, 2017 ONSC 4531; R. v. M., 2018 ONSC 746; R. v. Hussein, 2017 ONSC 4202.

[10] In R. v. Scarlett, 2013 ONSC 562, Strathy J., as he then was, expressed the view that “decisions of judges of coordinate jurisdiction, while not absolutely binding, should be followed in the absence of cogent reasons to depart from them … [which reasons] include (a) that the validity of the judgment has been affected by subsequent decisions; (b) that the judge overlooked some binding case law or relevant statute; or (c) that the decision was otherwise made without full consideration.

[11] In other words, such judgments should be followed unless the subsequent judge is satisfied that it was “plainly wrong” (R. v. Scarlett, supra, at paras. 43–44, 2013 ONSC 562, 105 W.C.B. (2d) 493).

[12] While the Crown continues to maintain the constitutionality of the mandatory minimum, the Crown accepts these prior rulings will properly shape my assessment on the issue. Given the declarations of invalidity made by other courts of coordinate jurisdiction, the Crown acknowledges that I am not bound to apply the minimum. Regardless, the Crown takes the position that I need not consider the issue as a sentence below 1 year would hardly be appropriate on the facts of this case.

[13] While I accept that I am not bound by the minimum because of the prior declarations of invalidity, I recognize Parliament has made a clear expression of its views on the appropriate minimum for offences of this sort. That view is entitled to deference: R v. Latimer, [2001] 1 SCR 3, 2001 SCC 1. Accordingly, while not bound by the minimum, I will consider Parliament’s expression of the appropriate minimum sentence in assessing the proper range in this case.

Relevant Principles

[14] Pursuant to s. 718 of the Criminal 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: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.

[15] The accused is a first offender. He is 48 years old. He has been on bail since 2015 without any major incident. The letters received from his family, and his “son” demonstrate the offender is capable of doing good things and being a contributing member to society. Clearly, W.M. has demonstrated he has reasonable prospects for rehabilitation.

[16] Letters from his mother and father suggest they need his help and incarceration will make their lives more difficult. While I am sympathetic to their plight, I cannot allow their hardship to unduly influence my decision. Family members of an offender routinely suffer hardship as a consequence of the offender’s incarceration. In my view, to give these consequences undue weight in the assessment would undermine the primary objectives of sentencing.

[17] The nature of the abuse here (forced masturbation) is very serious. It is extremely invasive. J.D. was held down by force and masturbated by the accused to the point of ejaculation. Moreover, W.M. perpetrated the assault while in a position of trust.

[18] The specific assault has had a lasting impact on J.D. I disagree with the defence that the consequences on the victim are already accounted for in the range. In my view, the specific consequences on the victim must be taken into account in determining an appropriate sentence.

[19] As the Supreme Court of Canada explained in R. v. Lacasse, 2015 SCC 64, at para. 57, “sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives.” Ranges should not function as straitjackets on a trial judge’s discretion, but rather as “historical portraits” for the use of sentencing judges, who must still exercise their discretion in each case.

[20] Both the Crown and defence have produced cases dealing with assaults not dissimilar in nature to the offence before the Court. In my view, the range for offences of this nature in the jurisprudence is hardly consistent. I agree with the defence that many offenders committing offences of a similar nature have received sentences anywhere from 9-12 months. However, the appellate jurisprudence clearly recognizes the need to emphasize deterrence and denunciation when dealing with these types of offences: R. v. Woodward, 2011 ONCA 610. In my view, a sentence of 9-12 months for an offence of the nature is not sufficient to reflect the gravity of the offence.

[21] As the courts have explained, absent exceptional circumstances, in the case of adult predators, the objectives of denunciation and general and specific deterrence must take precedence over the other recognized objectives of sentencing.

[22] In R. v. D. (D.), Moldaver J.A. (as he then was) explained at paras. 34 and 35:

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, 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.

We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[23] I must also take into account the time that the accused spent on bail. While I recognize that the accused has been on bail since the date of the offences, in my view, the exceptions have provided a substantial amount of latitude for the offender. The “house arrest” provided for an exception for employment, an exception for being out with the surety, and an exception for being out with a note for a specific purpose. While the time on bail is worthy of some consideration, it does not warrant the 9 months sought by W.M.

[24] Having regard to the nature of the offence, and the circumstances of the offender, and considering the need for deterrence when dealing with offences of this sort, I will sentence the accused to 18 months in custody. In sentencing the accused to 18 months in custody, I have taken into account the time the offender has spent on stringent bail. I have also considered all of the factors above, including the fact that the accused has no criminal record and his rehabilitative prospects. If it were not for the time on stringent bail, I would have sentenced the accused to 2 years in custody.

[25] I will also impose a period of probation of 3 years in addition to the other ancillary orders outlined below.

Disposition

[26] The offender is sentenced as follows:

[27] For the conviction on count two of the indictment, the offence of sexual interference contrary to s. 151 of the Code, W.M. is sentenced to 18 months in custody, plus 3 years of probation on terms including to keep the peace and be of good behaviour, to reside where approved by his probation officer and to notify his probation officer in advance of any change of address and change of employment, not to be in contact with any person under the age of 16 except while in the presence of a person approved of by his probation officer, not to be in contact with the victim (J.D.) or his mother (J.A.) and not to be within 100 metres of their residence, expected place of work, or school, and to attend and actively participate in all assessment, and counselling programs as directed by the probation officer.

[28] The conviction at count one of the indictment, under s. 271 of the Code, is conditionally stayed.

[29] The offender shall provide a DNA sample.

[30] The offender shall be registered under the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 15 years.

[31] The offender is prohibited from communicating with the victim during the custodial period of sentence. Section 743.21

[32] The offender shall also be subject to a weapons prohibition (s. 109) for a period of 10 years.

[33] The offender will be subject to a s. 161 Order for 10 years restricting the offender from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can be reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;

(a.1) being within two kilometres of J.D.’s school, residence, employment or any place he is known to be;

(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 a position of trust or authority towards persons under the age of 16 years;

(c) having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the direct supervision of the person’s parent or guardian.

Justice C.F. de Sa Released: October 10, 2018