COURT FILE No.: CR 16-0983

DATE: 2018/01/31

BY ORDER OF THIS COURT MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE NO INFORMATION THAT COULD IDENTIFY THE VICTIM OR A WITNESS MAY BE PUBLISHED IN ANY DOCUMENT OR BROADCAST OR TRANSMITTED IN ANY WAY

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen

AND

M.

BEFORE: Mr. Justice Pierre E. Roger

COUNSEL: P. Bowles, Counsel for the Crown

C. Rogers, Counsel for the Accused

REASONS FOR SENTENCE

ROGER, P.E., J.

1These reasons do not identify the victim or any of the witnesses and may be published.

2On September 22, 2017, the accused was found guilty of counts one and two on the indictment, being that:

(1) The accused, Mr. M, between the 20^th^ day of December and the 24^th^ day of December 2015, did commit a sexual assault on P, contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46, (the “Code”); and

(2) Mr. M, between the 20^th^ day and the 24^th^ day of December 2015, did for a sexual purpose touch P, a person under the age of 16, directly with a part of his body, his finger, contrary to s. 151 of the Code.

Factual Background

3The facts and my findings are described in a decision entitled R. v. M., 2017 ONSC 5537.

4Briefly, the offender is 51 years of age and the victim is a teenager who was 15 at the time of the offence. The offender briefly dated the victim’s mother and had a good relationship with the victim.

5I found that during the evening of December 19, 2015, the offender touched the victim’s breast and later touched her vagina. The victim testified and I accepted that while she and the offender were hugging before dinner, the offender put his hand under her shirt and moved it up to quickly touch her breast, under her bra. The victim also testified and I accepted that after dinner, while the family was all seated on a sofa watching a movie, the offender slowly moved his left hand down her left side, under her clothing, in between her legs, and rubbed her vagina, without penetrating. The victim explained that she felt that all of the moving his hand slowly and then touching her vagina seemed to her to have lasted about 30 minutes but indicated that she was not paying close attention to the time. I found that while the entire episode may have seemed to her like a long time, it was most likely much less.

Position of the Crown and of the Defence

6The Crown seeks the following sentence:

− 18-24 months of incarceration plus two years of probation (it is agreed that the period of pretrial custody is five days for a corresponding credit of eight days);

− an order pursuant to s. 743.21 of the Code prohibiting contact while in custody with the complainant or any member of her immediate family;

− an order pursuant to s. 161 of the Code prohibiting the accused from attending any public park or public swimming pool where persons under the age of 16 are present or can reasonably be expected to be present, or daycare centre, school ground, playground or community centre; being within 2 km., or any other distance specified in the order, of any dwelling house where the victim ordinarily resides or of any other place specified in the order; seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; 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 supervision of a person whom the court considers appropriate; or using the internet or other digital network, unless the offender does so in accordance with conditions set by the court (i.e. using computer system for the purpose of communicating with a person under the age of 16) for a period of ten years;

− a S.O.I.R.A. order for life under section 490.013(2.1) of the Code;

− a DNA order; and

− a weapons prohibition pursuant to s. 109(1)(a) of the Code for a period of ten years.

7The Crown argues the general principles of sentencing and specifically reminds us that under s. 718.01 of the Code, the primary consideration in sentencing for offences against children is denunciation and deterrence.

8The Crown also opposes any conviction being conditionally stayed on the basis of the Kienapple principle (R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524). The Crown states that the Court found the accused guilty of one count of sexual assault and one count of sexual interference for two separate incidents and therefore argues that the Kienapple principle is not applicable. However, in the event that this Court disagrees, the Crown agrees that the less serious count and the one that would then be stayed is the sexual assault count under s. 271 of the Code. The Crown also did not dispute that the indictment, as drafted by the Crown, does not support their position on this point.

9Finally, on the topic of earlier decisions of this Court declaring the mandatory minimum punishment of imprisonment of one year at s. 151 of the Code of no force or effect, the Crown argues that any such minimum sentence, even if struck, does not prohibit a more significant sentence and argues that this is an appropriate case for the sentence that it seeks, relying on a number of decisions cited in their written sentencing submissions.

10The position of the defence is that the Kienapple principle is applicable, as otherwise there would be multiple convictions for the same events. The defence relies upon the decision in R. v. Hussein, 2017 ONSC 4202, 141 W.C.B. (2d) 231, and seeks a conditional stay of the sexual assault charge (count one under s. 271 of the Code). The defence also relies upon the decision in Hussein to argue that the minimum sentence provided at s. 151 of the Code has been struck and that these earlier findings are binding on the Crown. Finally, the defence suggests that the appropriate range is between six months and 15 months, and that the appropriate sentence is nine months of incarceration (it relies upon the decision of this Court in R. v. M.L., 2016 ONSC 7082, 367 C.R.R. (2d) 268, which provides an excellent summary of sentencing in relatively similar cases). Finally, the defence also sought a mistrial.

Sentencing Principles

11Section 718 of the Code sets out the fundamental purpose and objectives of sentencing. The objectives include denunciation, general and specific deterrence, separation of the offender from society where necessary, rehabilitation and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community.

12Section 718.01 of the Code recognizes that a court shall give primary consideration to the objectives of denunciation and deterrence in sentencing for offences that involve abuse against children. Similarly, courts have repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexual offenders bearing in mind the principles of denunciation and deterrence. Indeed, any sexual abuse of children must be taken extremely seriously and courts have often noted that these events may leave affected children with emotional and psychological scars.

13As indicated in Stuckless, sexual abuse is an act of violence that can have a crippling effect (see R. v. Stuckless, 1998 CanLII 7143 (ON CA), 41 O.R. (3d) 103, 111 O.A.C. 357 (Ont. C.A.)).

14Moreover, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 of the Code).

15A sentence may be increased or reduced to account for any relevant aggravating or mitigating circumstances. In that regard, s. 718.2(a)(ii.1) of the Code provides that in imposing a sentence, evidence that the offender, in committing the offence, abused a person under the age of 18 years is an aggravating circumstance to be considered. Similarly, s. 718.2(a)(iii) of the Code describes as an aggravating circumstance evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

Circumstances of the Offender

16As indicated above, the offender is 51 years of age. He is separated but has strong ties with his mother, two children, and grandchildren, all of whom have a positive influence on him. The offender enjoys fishing, working out and taking walks, as well as spending time with his children and grandchildren.

17The pre-sentence report makes no recommendation regarding any risk of future sexual offences. It indicates that the offender has a good relationship with his mother and his two brothers. Also, he has an excellent relationship with his daughter, who testified at this trial. I was impressed with his daughter during the trial as she took extraordinary measures to attempt to steer her father away from his drug addiction. In the pre-sentence report, his daughter advises that she moved in with the offender shortly after completing her ninth grade and that she continues to share a positive rapport with him. She has four children and indicates that she has no concern letting her father care for them. This was quite obvious from her testimony at trial. The offender also has an adult son with whom he now appears to have a good relationship and who works for him on occasion.

18The offender admits to a history of substance abuse, which has been difficult on his life and previous relationships. The offender was involved for about one year with the mother of the victim and is currently single.

19The pre-sentence report indicates a relatively stable work history as a mason for the past 30 years, working for different companies. The offender now has his own masonry company, which he started in January 2017. He apparently employs seven workers, two of whom are part-time, and he reports no financial issues. During the sentencing hearing, he filed a letter and contract from an employer and testified briefly in support of his future work prospects.

20He reported no issues with alcohol; however, he painted a different picture for drug use. He started using drugs as a teenager (including cocaine). He continued regularly using cocaine and was selling drugs at one time, which led to his 1989 conviction. At trial, the offender described himself as an addict, with periods of sobriety and drug use. He is described similarly in the pre-sentence report in which he indicates that he has been abstaining for at least 18 months, which he repeated during the sentencing hearing. The offender realizes the impact of his drug use. He also recognizes that his daughter and family are a good influence. I note that it is obvious from their attendance during court proceedings that he has the support of his mother, daughter and son.

21The offender has a few issues with high blood pressure, cholesterol and acid reflux. He potentially has some issues with depression and anxiety.

22On the advice of his lawyer, the offender did not discuss the details of the offences during the preparation of the pre-sentence report. Similarly, during his remarks to the Court, the offender did not mention these events but expressed regrets for putting his family through this.

23In the pre-sentence report, both the offender’s mother and his daughter describe him as a good person, always ready to help others. His mother adds that she can always depend on him. With respect to the offences, his mother adds that she was in shock when she heard the nature of the offences and that it was out of character for her son.

24His criminal record indicates the following convictions: 1989 for assault and possession of narcotic for the purpose of trafficking, 1990 for false pretenses, 1992 for assault, 2003 for spousal assault, and 2009 for robbery and disguise with intent to commit an offence. He has no conviction for sex-related offences and there is gap in time since his last conviction.

Impact on the Victim

25The victim and her family did not file a victim impact statement.

26The victim was contacted during the preparation of the pre-sentence report and confirmed that this was an isolated event. She also indicated that the offender has been compliant with the non-association conditions. She explained that since the conviction, she feels safer, more at peace and believes she can now move on. She added that she was provided counselling and support from the Victim and Witness Assistance Program and that her parents are hoping she will continue to attend counselling. She had no comments to offer with respect to sentencing and added that the impact on her life is, for the most part, the trust issues she now has to cope with.

Aggravating Factors

27The offender is not a first-time offender; he has a number of offences for crimes of violence. However, he has no prior criminal antecedent for sexual crimes.

28At the time, the victim was vulnerable and a child (a 15-year-old teenager). Moreover, the offender was dating the victim’s mother, frequently staying overnight, had a good relationship with the victim and her younger sister, and obviously abused a position of trust or authority in relation to the victim.

Mitigating or Neutral Factors

29The offender has relatively stable employment and appears to be a contributing member of society. He is separated, but he appears to have a stable family life, with a close relationship with his mother, daughter, and son. He is particularly close to his daughter and she is no doubt a positive influence on her father. The offender also enjoys a good relationship with his grandchildren (his daughter has four children).

30Although the offender has a criminal record, he has no prior conviction for sex-related offences, no prior offences relating to children, and there is a time gap since his last conviction in 2009.

31The offender admits to a long history of struggles with drug abuse. He has made efforts to overcome his substance abuse issues and in 2009, attended a residential treatment program. He was nonetheless abusing drugs at the time of this event but he realizes the impact of his drug abuse on different spheres of his life and states that he has been abstaining for at least the last 18 months. His daughter is a positive influence in this regard.

Analysis

32Dealing firstly with the applicability of the Kienapple principle, I find that it is applicable.

33Although the two incidents were separated by about half an hour to one hour, they occurred during the same evening and are part of the same event or transaction. This is apparent from the indictment, which charges one count of sexual assault and one count of sexual interference. As a result, the offender was found guilty under count one for touching the victim’s breast and vagina, and he was found guilty on count two for the same event of touching the victim’s breast and vagina. Not applying the Kienapple principle would result in multiple convictions for the same events. As indicated in Kienapple:

“If there is a verdict of guilty on the first count and the same or substantially the same elements make up the offence charged in a second count, the situation invites application of a rule against multiple convictions”. See also R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, 54 C.R. (3d) 97.

34The Kienapple principle applies where there is a relationship of sufficient proximity between (1) the facts and (2) the offences that form the basis of two or more charges.

35First, the existence of a factual nexus must be established, having regard to the remoteness or proximity of the events, the intervening events, and whether the offender’s actions were related to each other by a common objective. Second, there must be a sufficient connection between the elements of the offences. The Kienapple principle will bar multiple convictions if there is no additional and distinguishing element that goes to guilt contained in the second or lesser offence.

36The Crown submits that the Kienapple principle does not apply to this case. At p. 11 of its sentencing submissions, the Crown states:

[T]he Court clearly found the accused guilty of one count of sexual assault and one count of sexual interference for two separate incidents (touching of the victim’s breast and digital penetration of victim’s vagina) on the same date. Since there were two separate incidences the Kienapple principle in my respectful submission does not apply.

37I disagree: the Kienapple principle applies to this case. The touching of the victim’s breasts and the touching of her vagina (the victim stated there was no digital penetration) were part of the same “transaction” at the residence, separated by 30 minutes to one hour but linked by a common objective.

38Moreover, the application of the Kienapple principle to convictions of sexual interference and sexual assault is well established (see e.g. R. v. M.(S.J.), 2009 ONCA 244 at paras. 8-9, 247 O.A.C. 178).

39If the Kienapple principle applies, the lesser offence is conditionally stayed. Courts have found sexual assault to be less serious than sexual interference (R. v. R.D., 2017 ONSC 5258 at paras. 12-37, 141 W.C.B. (2d) 445).

40In R. v. L.(F.), LeMay J. explained why sexual assault is considered less serious than sexual interference (2015 ONSC 1215 at paras. 22-23, 127 W.C.B. (2d) 709):

First, given the age of the Complainant and the fact that the Crown has proceeded by way of indictment, the sentences for both offences are the same. Second, one of the required elements of the sexual interference charge is that the victim must have been under the age of fourteen [now 16] at the time that the assaults took place. This is not an element of the offence of sexual assault.

This brings me to why a conviction for sexual interference is more appropriate in this case. In my view, the sexual interference charge is a more precise and complete explanation of the crime that was committed in this case. It includes a recognition that the crime was committed against a victim who was a child. This is, in my view, a key element of this case.

41Here, it is not disputed that if the Kienapple principle applies, the less serious offence is that of sexual assault. Accordingly, a conviction should be entered only for sexual interference.

42Next, I must deal with the mandatory minimum. Section 151 of the Code provides for a mandatory minimum punishment of imprisonment for a term of one year. For reasons that follow, I have decided that the declaration of Justice M. Linhares de Sousa in R. v. M.L. that this mandatory minimum is of no force or effect is binding upon the Crown. In 2017, Justice Robert Smith was also asked to consider the constitutionality of this mandatory minimum and he held that Justice Linhares de Sousa’s ruling was binding upon the Crown (R. v. Sarmales, 2017 ONSC 1869, 139 W.C.B. (2d) 164). Justice Sheard did the same in R. v. Ali, a July 2017 unpublished decision.

43The Court in R. v. Hussein also concluded at para. 28 that the “principles of comity between judges of cognate jurisdiction are to the effect that decisions by a judge of this Court should generally be followed by other judges of this Court”.

44In Scarlett, the Court 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. These circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong” (R. v. Scarlett, 2013 ONSC 562, at paras. 43–44, 105 W.C.B. (2d) 493).

45Here, the Crown has not argued that the decision of Linhares de Sousa J. was plainly wrong. Moreover, I do not conclude that the decision of Linhares de Sousa J. was plainly wrong. Indeed, the three circumstances identified in Scarlett do not apply to the decision of Linhares de Sousa J.: (a) the validity of her judgment has not been affected by subsequent decisions; (b) she did not overlook some binding case law or relevant statute; and (c) her decision was not otherwise made without full consideration.

46Having found the above, I agree with the reasoning of Justice Robert Smith in Sarmales, at paras. 20 and 21 that, once a declaration has been made by a judge that the law contravenes the Constitution, the contravening section ceases to exist and therefore “there is no constitutional issue that remains ‘in question’”. To conclude otherwise would create the potential for inconsistent findings on the same law and “lead to the potential of a multiplicity of legal proceedings arguing the same issue before different judges, which would not make efficient use of our judicial resources and would incur unnecessary legal costs.”

47For the foregoing reasons, I conclude that for the purpose of sentencing, the Court must apply sentencing principles and cases for count two in the absence of a mandatory minimum.

48During the sentencing hearing, the defence asked, for the first time, for the remedy of a mistrial for how a Crown objection during the defendant’s cross-examination of the victim was dealt with by this Court. Here, there is no danger of a miscarriage of justice considering that the defendant may, if he wishes, appeal the decision of this Court raising this as a ground of appeal.

49A conviction of sexual interference is a serious matter. It possesses a high degree of blameworthiness, and necessarily includes the finding that the offender is wilfully and knowingly engaged in sexual conduct or touching with a child. In the circumstances of this case, a sentence involving a period of incarceration is inevitable.

50I have reviewed the cases submitted by the Crown in support of its position on sentence and find that most involve more serious circumstances. Some are comparable with sentences ranging from 12 to 15 months (with the mandatory minimum then in place). Similarly, the facts in R. v. Hussein, where 15 months of imprisonment was imposed, are more serious, involving intercourse.

51A comparable decision is that of R. v. M.L., where a sentence of nine months of incarceration was imposed. Another comparable decision is the unreported decision of Justice Sheard in R. v. Ali, delivered orally on September 11, 2017. In that case, the accused was found guilty of having slipped his hand inside the clothing of the victim to touch her vagina. In that case, the offender was sentenced to nine months in jail plus 18 months of probation.

52R. v. M.L. provides a useful overview of various comparable cases. I agree with the conclusion reached in that decision (see para. 80), that the range of sentencing in this case is roughly between six and 15 months of incarceration. Considering the aggravating and mitigating factors outlined above, the impact on the victim, and taking account of the primary sentencing principle of general deterrence and denunciation, together with the circumstances of the offender and the nature of the sexual interference, I conclude that the circumstances of this case are at the lower end of the spectrum.

53In considering the above, I have come to the conclusion that a proper sentence for the offender is a period of incarceration of nine months plus a period of probation of 18 months.

54The ancillary orders sought by the Crown are to issue with two exceptions. Firstly, the Crown agrees that if the Kienapple principle applies, resulting in a conviction under count two, the S.O.I.R.A. order would be for a period of 20 years. Secondly, I do not agree that in the circumstances of this case orders are required under s. 161 of the Code.

55The prohibition orders provided at s. 161 must be considered but are not mandatory. Under s. 161(1), where an offender is convicted of an offence referred to in s. 161(1.1) in respect of a person who is under the age of 16 years, the court shall consider and may make a prohibition order, subject to the conditions or exemptions that the court directs. Sexual interference is referred to in s. 161(1.1)(a).

56According to the Supreme Court of Canada in R. v. J.(K.R.), a prohibition order “can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk” (2016 SCC 31 at para. 48, [2016] 1 S.C.R. 906). Moreover, the content of a prohibition order must respond to an offender’s specific circumstances and the court may direct “conditions or exemptions” to tailor the order to address the nature and degree of risk posed by the offender (Ibid at para. 47).

57Here, the prohibition order sought by the Crown is overly broad and, aside from the fact of this conviction, there is no evidence to conclude that the offender poses a risk to children at large. The facts of this conviction, although serious, are in the words of the victim an isolated incident. This incident arose from circumstances that are particular to this case, and not easily replicated. This is not a case involving evidence of grooming or of predatory behaviour by the offender. The offender has to date respected all conditions and the victim confirmed that he has been compliant with non-association conditions. The offender has convinced me that he understands that he is not to have any contact with the victim and after the period of probation I am convinced that such an order is not required. Similarly, considering particularly the evidence of the offender’s daughter given at trial, I am convinced that a prohibition order is not required at large after the period of probation considering what I find to be the very low risk to children generally posed by the offender (because of the specific circumstances of this case).

Conclusion

58In conclusion, the offender is sentenced as follows:

(1) The conviction at count one of the indictment, under s. 271 of the Code, is conditionally stayed.

(2) For the conviction at count two on the indictment, the offence of sexual interference under s. 151 of the Code, the offender is sentenced to nine months in jail less a credit for pre-trial custody of eight days, plus 18 months of probation on terms including to keep the peace and be of good behaviour, to appear before the court when required, 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 in the presence of his daughter, mother, or other person approved by his probation officer, not to be in contact with the victim, her sister, and her mother 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, counselling or rehab programs as directed by the probation officer, particularly for drug abuse and sexual behaviours, which are strongly recommended.

(3) The offender shall provide a DNA sample.

(4) The offender shall be registered under the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.

(5) The offender is prohibited from communicating with the victim during the custodial period of sentence.

(6) The offender shall also be subject to a weapons prohibition for a period of ten years.

59This sentence was read on January 26, 2018, with these written reasons to follow.