COURT FILE NO.: 17-0511
DATE: 2019 02 06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
– and –
K.J.
Accused
Ms. J. Forward for the Crown
Mr. J. Fera for the accused
HEARD: January 31, 2019
Mossip j.
reasons for sentence
Overview
[1] J.C. lived in a trailer park with her mother, K.T., in 2016. K.J. lived in the trailer beside J.C. He lived with his now wife, C.J., and her 2 sons.
[2] J.C. alleged that K.J. sexually assaulted her between September 15 and September 20, 2016. J.C. told one of the staff who worked with her what K.J. did. The conduct was then reported to the O.P.P. in the nearby detachment. J.C. gave a videotaped statement to Detective Sgt Jordan Yantzi on September 21, 2016, describing the sexual misconduct of K.J.
[3] K.J. elected trial by jury. He was found guilty of the single count of sexual assault.
[4] It now falls to me to determine a fit and just sentence for the conviction of sexual assault by K.J. on J.C.
Sentencing Hearing
[5] A Gardiner hearing was held to determine certain facts prior to arriving at an appropriate sentence.
[6] At the hearing, the following materials were filed:
Pre-Sentence Report (“PSR.”), completed January 25, 2019;
Victim Impact Statements (“VIS)”:
a. J.C.’s video statement;
b. K.T. (Mother);
c. N.C. (Father);
d. D. O-C (Community Living Centre staff);
Character letters on behalf of K.J.;
Defence Casebook; and
Crown Casebook.
[7] Ms. D. O-C read her VIS in court. K.T. testified and was cross-examined on the issue of whether K.J. was in a position of trust with regard to J.C. The videotape of J.C.’s VIS was played in court.
[8] Counsel made submissions on the findings I must make prior to sentencing, which are:
(1) Is D. O-C a “victim” within the meaning of the legislation such that her VIS can be considered by me?
(2) Was K.J. in a position of trust with regard to J.C. such that this fact would be an aggravating factor on this sentencing?
(3) What is the sexual misconduct for which I am sentencing K.J.?
(4) Does the evidence disclose a history of abuse that I may consider in this sentencing decision, not as an aggravating factor, but as some relevant evidence to show the character of K.J. as it relates to the principles of sentencing? (See: R. v. B.M. 2008 ONCA 645, [2008] O.J. No. 3653 (Ont. C.A.))
The Facts
(a) Circumstances of the offence
[9] There are disputed facts as to what was the sexual misconduct that I am sentencing on and whether the evidence discloses a history of abuse.
[10] Section 724 of the Criminal Code sets out the statutory framework a Judge must follow in deciding the facts for the purposes of sentencing. In particular s. 724(2) and (3) of the Code direct the sentencing Judges as follows:
(2) Where the court is composed of a judge and jury, the court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
Disputed facts
(3) Where there is a dispute with respect to any fact that is relevant to the determination of a sentence,
(a) the court shall request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial;
(b) the party wishing to rely on a relevant fact, including a fact contained in a presentence report, has the burden of proving it;
(c) either party may cross-examine any witness called by the other party;
(d) subject to paragraph (e), the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining the sentence; and
(e) the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact or any previous conviction by the offender.
[11] The Crown relies on the testimony of J.C. at the trial and on her videotaped statement and asks me to find:
(1) There were 2 incidents of sexual misconduct, one on Tuesday, and one on the Thursday before she gave her videotaped statement. These incidents are alleged to have occurred within the time frame set out in the indictment.
(2) There was a history of sexual misconduct outside of the time frame in the indictment.
[12] Defence counsel submits that there is no reliable evidence upon which I could make either of the above findings. The only reliable evidence the jury must have relied on, to find K.J. guilty, was with respect to the Tuesday before J.C. went to the O.P.P. detachment.
[13] As the Code and the jurisprudence sets out, I am to make my own independent determination of the relevant facts prior to deciding the appropriate sentencing. I should also only find the facts necessary to permit the proper sentence to be imposed.
[14] J.C. was 34 years old in 2016. An expert testified at the trial and gave his opinion that, depending on the task, J.C. functioned at the level of a 5 to 9 year old.
[15] I have reviewed the evidence at the trial and the videotaped statement of J.C. I have considered the very compelling evidence of the witnesses who knew J.C. very well. Those witnesses described a dramatic change in J.C.’s demeanor and behaviour after the Tuesday when she says K.J. sexually assaulted her.
[16] I have further considered the understandable confusion, detail and lack of explicit memory of events evident in J.C.’s testimony, other than the details of the misconduct on the Tuesday, which J.C. reported to her worker. I have considered the difficulties that J.C., because of her disability, had in relaying the details, of what she said happened to her. I have also reminded myself that such difficulties cannot weaken the burden of proof on the Crown to prove the allegations beyond a reasonable doubt.
[17] I suspect other misconduct occurred. That is not sufficient. Based on the compelling evidence of 3rd parties as to the change in J.C.’s demeanor after Tuesday, and assessing the reliability of J.C.’s testimony, I am not satisfied beyond a reasonable doubt that sexual misconduct occurred on the Thursday prior to J.C. attending the O.P.P. detachment. I am also not satisfied, for the same reasons, that there was a history of abuse that I should take into consideration at this sentencing hearing. I cannot sentence K.J. on suspicion of other misconduct.
[18] K.J. will be sentenced on the sexual misconduct by him which occurred on the Tuesday prior to J.C. giving her statement to the O.P.P. The details of that misconduct are as follows:
• K.J. attended at J.C.’s trailer. She was playing a video game in the spare room.
• K.J. pulled her by the arm and put her on the bed.
• K.J. put his penis between her legs and was “thumping” her.
• It was on the bottom part of her body, both in her vagina area and her “butt” area.
• K.J. “thumped” her and then ejaculated on her stomach which he cleaned off with a Kleenex.
• He touched her breasts.
• He inserted his finger in her vagina.
(b) Circumstances of the Offender
[19] K.J. is 57 years old. He lives with his current wife, C.J. and her 2 sons.
[20] K.J. has a criminal record which is set out in “Schedule A” to this decision. Of particular relevance are 3 prior convictions for sexual assault and a conviction for sexual interference all of which occurred in 1992 and 1995.
[21] A PSR was completed dated January 25, 2019. The probation officer spoke to numerous people before completing his report.
[22] The report sets out a personal history of K.J.’s childhood that was relatively uneventful. K.J.’s father and younger brother died in 1998 and 2008 respectively. K.J. maintains a relationship with his mother and his remaining siblings.
[23] The PSR goes through K.J.’s earlier marriages, and the children he had. K.J. has a total of 7 biological children. In 2015, his 21 year old daughter committed suicide. He has some relationship with his eldest son, and by computer with his 2 youngest sons. He has been a significant father figure in a positive way with his current wife’s 2 sons who are 14 and 16.
[24] K.J. has a grade 8 education. He left school at the end of grade 8 to work. He was a full-time labourer from age 14 to 29.
[25] K.J. was involved in a motor vehicle accident in the 1980’s that crushed his left foot. He has struggled to maintain full-time employment since that time. K.J. suffers from other significant health issues. The last time he was employed was in 2012 or 2013. The last 3 years he has been supported by Ontario Disability Support Program.
[26] K.J. acknowledged that he has struggled on and off with alcohol his whole life. Between 1987 and 1992 he was convicted on 3 separate occasions for driving offences involving alcohol. Alcohol has continued to be a problem in K.J.’s life to the present, though his wife, C.J., maintains he currently has his alcohol consumption under control.
[27] The probation officer reviewed the character reference letters which were also provided to the Court. They describe a man who among other traits is “kind and always willing to help other people.”
[28] K.J. maintains his innocence as he is of course entitled to do. Following his previous convictions for sexual assault, he was required to attend for sexual offending counselling. However, K.J. did not pursue specific sexual offence counselling.
[29] The probation officer noted that K.J. conducted himself in an appropriate manner and was co-operative with the officer in providing information to her. K.J. appears to have complied with prior community supervision orders, except for the sexual offence counselling as set out above.
(c) Victim Impact Statements
[30] The purposes of a VIS is well established and is set out in the Victims’ Bill of Rights, 1995, as well as in the jurisprudence under s. 722 of the Code. They are described as two-fold:
Provide information to the Judge about the impact of the crime for the Judge’s consideration in accordance with the principles of sentencing and;
Provide the victim an opportunity for meaningful participation.
[31] The VIS must contain permissible information and be used for its intended purpose.
[32] For the purpose of providing a VIS, a “victim” is defined in s. 2 of the Code as follows:
Victim means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.
[33] Ms. D. O-C applied through the Crown to file a Victim Impact Statement both with regard to the impact on her of the crime K.J. is convicted of, and also the impact of the crime on J.C. Defence counsel takes issue with the former evidence, not the latter.
[34] The word “victim” is defined in s. 2 of the Code. There has been debate in the jurisprudence as to who, under the current definition, qualifies as “a victim,” and is entitled to file a VIS with the Court.
[35] In the decision of R. v. D. 2000 CanLII 22831 (ON SC), [2000] O.J. No. 4850, Stong J held that the new s. 722(4)(a) changed the old definition of victim from “the person” to whom harm was done or who suffered loss to “a person.” This is the same language in s. 2 of the Code, “a person.” I agree with his interpretation of “victim” as set out in paragraph 16 of R. v. D:
The definition of victim in section 722(4)(a) includes both direct victims and victims directly affected, therefore, the application to introduce into evidence the victim impact statement of D.H. will be allowed.
[36] There was extensive evidence at the trial, given by Ms. D. O-C, as to her relationship with J.C. She was the direct support professional employed by Community Living Guelph Wellington who worked with J.C. Ms. D. O-C worked with J.C. on a daily basis. She was the one to whom J.C. first disclosed the sexual misconduct. She contacted the O.P.P. She was J.C’s support person during the Preliminary Inquiry. I am satisfied that given the evidence as to the unique relationship of this case worker and J.C., she is a “victim” of the crime and may file the VIS with the comments as to the impact of the crime on her included.
[37] I have ignored any comments in her statement, as well as in others, that speak about the character of K.J. I also note that I have made this decision about D. O-C being a “victim” considering that there was only one victim, other than a parent, who wanted to file a statement.
[38] The VIS’s are heart-wrenching as to the impact of this crime on J.C., and on those persons close to her who also filed statements. It is particularly difficult to read how the life of J.C., already full of challenges, has so dramatically, and likely irreversibly, been changed by the sexual assault.
[39] Since the sexual assault, J.C. is more anxious and afraid. She cannot be left alone. She is afraid of the dark. She is less outgoing, sociable, and happy. The day program that she attended 5 days a week prior to the sexual assault, she now attends one day a week with lots of encouragement. This day program was a source of joy, stimulation, and learning for J.C. She has lost much of that, solely as a result of K.J.’s conduct. She has regressed in her learning that she previously excelled in.
[40] J.C., in her videotaped statement, expressed as best she could the harm done to her because of the sexual assault. No sentence I impose can give her back the quality of life she had before the assault. No sentence can take away the pain and loss she expressed in her statement.
[41] The other VIS’s demonstrate how loved and cherished J.C. was and is. They show clearly the collateral damage caused to persons who love and care for a victim of sexual abuse. J.C. is fortunate to have such loving people in her life. They are fortunate to have J.C. in theirs.
[42] I will consider the VIS’s, not for any aggravating purposes in this sentencing decision, but for the legislated purposes set out above.
Legal Parameters
[43] The sentence for sexual assault, when the charge proceeds by way of indictment, is a maximum term of not more than 10 years. If the complainant is under 16, the term is for not more than 14 years. The minimum sentence is a term of one year.
[44] Defence counsel conceded that on the facts in this case, a penitentiary sentence was mandated.
Principles of Sentencing
[45] The purposes and principles of sentencing are set out in s. 718, 718.1 and 718.2 of the Criminal Code, R.S.C. 1985, c. C-46. I will not repeat all of those provisions here, but highlight the particular sections that are applicable.
[46] The fundamental purpose of sentencing is set out in s. 718 of the Code. Imposition of sanctions should have one or more of the objectives set out in s. 718(a) to (f).
[47] Defence counsel concedes that given J.C.’s age equivalency of 5 to 9 years old, that the law and jurisprudence mandate a sentence similar to those cases involving sexual assaults on children. Disabled adults and children are vulnerable persons in our society entitled to vigilant protection. Section 718.01 sets out that when a Court imposes a sentence for an offence that involves the abuse of a person under the age of 18, the Court shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[48] Section 718.2 also sets out certain sentencing principles. Specifically, s. 718.2(a)(ii.1) sets out that it is an aggravating circumstance that the offender in committing the offence abused a person under the age of 18.
[49] Further, s. 718.2(a)(iii.1) sets out that it is an aggravating circumstance that the offender had a significant impact on the victim considering their age and other personal circumstances, including their health and financial situation.
[50] The Court must impose a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[51] Lastly, the Code provides that the sentence I impose should be similar to offences imposed on similar offenders for similar offences committed in similar circumstances.
Positions of the Crown and Defence
Crown
[52] The Crown enumerated what she described as the serious aggravating factors in this case. She submitted that based on all of those factors, the circumstances of K.J. and the impact of the crime on J.C., an appropriate sentence is one of 8 years. The Crown seeks various ancillary orders which are not contested by the defence.
[53] The aggravating factors set out by the Crown are:
(1) K.J.’s prior convictions for sexual misconduct.
(2) Violence against J.C. (pulling by the arm), outside of the offence itself.
(3) Although K.J. was not in a statutorily defined breach of trust relationship with J.C., there were “trust-like” features to the facts in this case. K.J. was a trusted neighbour who both J.C. and her mother relied on for help and support. K.J. assisted with the care of J.C. He was considered a very close friend. He betrayed the trust of J.C. and K.T. in the most egregious manner.
(4) J.C. suffers from a disability, and like a child, is vulnerable and deserving of society’s most careful protection. J.C. has the capacity of a 5 to 9 year old.
(5) The impact on J.C. of this sexual assault is seriously aggravating. J.C. is now sad, anxious and cries almost daily. She is afraid of K.J. and that she might see him. She is panicky and does not go to her day program as she did previously. Her life has been overall negatively affected to the extreme.
[54] The Crown was unable to list any mitigating factors. The lack of remorse is not an aggravating factor, but it provides no mitigation. It also demonstrates a lower prospect for rehabilitation.
Defence
[55] Defence counsel submits on behalf of K.J. that the appropriate range of a sentence is one of 3 to 5 years.
[56] Defence counsel stressed the significant gap between K.J.’s last sexual misconduct conviction and this offence. He also asked that I consider the short sentence that was imposed in the previous offences, which he submitted suggests that the conduct forming the basis of those crimes was not as egregious as in some cases.
[57] Defence counsel filed letters of good character on behalf of K.J. Defence counsel stressed the positive relationship K.J. is presently in with C.J., and the support he gives her and her 2 sons.
Case Law
[58] As set out above, defence counsel agreed that the principles and range of sentences in those cases dealing with sexual assault of children is applicable in this case, given the intellectual disability of J.C.
[59] I found the cases referred to helpful in confirming the basic sentencing principles I must apply in a case such as the one before me. Certainly they assist with guiding me to a sentence that falls within an acceptable range for a term of imprisonment.
[60] The jurisprudence, with regard to sexual assault against minor children, is well reported both at the trial and appellate level. The Ontario Court of Appeal decisions of R. v. D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (Ont. C.A.) and R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (Ont. C.A.) set out the ranges for sentences in such cases and the reasons why.
[61] I will quote a few paragraphs from each of the cases to bring home the basis for the sentence that I impose. In R. v. D.D. at paras 34, 35, 36 and 45, Moldaver, J.A. for the Court wrote:
[34] 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.
[35] 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.
[36] In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.
[45] The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear -- prey upon innocent children and you will pay a heavy price!
[62] In R. v. Woodward, the Court of Appeal brought home the impact of sexual abuse on children. At paras 75 and 76 of Woodward, Moldaver, J.A. wrote:
[75] Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in [page104] the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single-digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.
[76] In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.
[63] The Crown filed a decision, namely, R. v. C.C. [2013] O.J. No. 379. This decision of Spies J involved a severely developmentally delayed complainant, S.A., who was sexually assaulted by the neighbour and friend of S.A. and the family.
[64] Spies J went through the facts and sentences in several other sexual assault cases involving developmentally delayed complainants. These cases confirm that a trial Judge is on firm ground in relying on the jurisprudence and Code provisions related to children in crafting a fit sentence when the complainant is developmentally delayed.
[65] The cases are less helpful in determining the sentence to be imposed. As Spies J wrote in para 40:
[40] As counsel submitted, in reviewing the cases they have relied upon, it is impossible to say with any clarity what the range of sentence is in the case of a single act of sexual intercourse, without any use of force, S.A.’s severe developmental disability and the trust aspects of the relationship between her and Mr. C. In any event, even if I were to conclude that there was a “usual range” of sentence suggested by the Court of Appeal for this type of case, that would not be meant to be fixed and inflexible.
[66] If I consider the sentence in R. v. C.C. which was 3 years, I cannot reconcile it with other sentences in this area.
[67] As a contrast, is R. V. Nana-Effah [2009] O.J. No. 2900, which was after D.D., but before Woodward. There, Ray J imposed a sentence of 8 years.
[68] I recognize there were significant differences in the facts of the two cases, which of course determines the trial Judge’s ultimate sentence. In Nana-Effah, there were several occasions of sexual assault, whereas in C.C., there was one. Nana-Effah had a criminal record, though not for sexual assault. C.C. had no record. Both accused were convicted after a trial. Both complainants had disabilities. The complainant in C.C. became pregnant and had to have an abortion.
[69] I am unable to reconcile this large discrepancy between these two well-written and well-reasoned decisions.
[70] I also reviewed the 3 cases provided by defence counsel.
[71] The decision of R. v. L.K., 2015 ONSC 288, involved an accused convicted of 8 sexual offences involving 3 complainants. The accused was the tutor of the complaints who ranged in ages of 6 to 9 years old when the offences occurred. The sexual assaults occurred on multiple occasions.
[72] In that case, Thorburn J found that based on the totality principle, a global sentence of 7 years should be imposed.
[73] The defence also filed R. v. P.M., 2012 ONCA 162. This case involved more serious aggravating facts in that a father plead guilty to sexual assault of his daughter on several occasions. The accused videotaped his assaults and kept those images on his computer along with other child pornography images.
[74] There were mitigating factors in that case, such as that the accused had no criminal record and that the accused suffered from PTSD following his military time in Bosnia and Afghanistan. There was a plea of guilt, sincere expressions of remorse, a diagnosed mental illness, and a commitment to be involved in counselling.
[75] The Court of Appeal found that the 5 year sentence for the sexual assault conviction was “a lenient one, and at the bottom end of the range.” The accused was also sentenced to one year for the child pornography. The majority found this sentence was also low and “inadequate” if standing alone. The majority upheld the sentence primarily after analysis of the cases dealing with the standard of appellate review, and whether in this case there was a basis for appellate intervention. The majority held there was not. Epstein, J.A. wrote a strong dissent and would have imposed a global sentence of 9 years.
[76] In the final decision filed by defence, R. v. R.W.N. 2004 CanLII 19785 (ON CA), the Ontario Court of Appeal reduced an 8 year sentence for sexual assault to one of 5 years. The Court relied on a 1990 decision R. v. B(J), 1990 36 O.A.C. 307, to hold that the trial Judge in R. v. R.W.N. was outside of the 3 to 5 year “usual range” and reduced the sentence accordingly. Given the subsequent appellate decisions since R. v. R.W.N., this decision is not binding on me to hold that I am restricted to a 3 to 5 year range for a sentence based on the circumstances of my case.
[77] Two other issues need to be addressed in this sentencing decision.
[78] In R. v. B.M., [2008] O.J. No. 3653, 2008 ONCA 645, the Court of Appeal considered a Crown sentence appeal based on alleged errors in law in how the trial Judge arrived at his sentence.
[79] At paras 6 and 7, the Court wrote:
[6] While there was no evidence of gratuitous violence in the circumstances giving rise to the conviction, in R v. Stuckless this Court made it clear that an offender should not be treated more leniently simply because he refrained from the use of additional physical violence in a sexual assault.
[7] To treat the absence of gratuitous violence as a mitigating factor, as the trial judge did in this case, constitutes an error in principle. [Citations removed]
[80] The absence of gratuitous violence can never be a mitigating factor in sentencing.
[81] As to whether “prior good character” can be a mitigating factor, this decision as have many others, soundly rejects that principle. In commenting on the character letters filed on behalf of an accused found guilty of sexual assault, the Court wrote at the end of para 11:
[11] …The background and character of the offender may be considered, for example, in order to assess the need for individual deterrence, rehabilitation, or the protection of the public. Such information is essential for crafting a sentence suitable for a particular offender.
[82] It is an error in principle to use an accused’s “prior good character” as a mitigating factor, as the trial Judge did in that case.
[83] Lastly, in trying to reconcile the varying sentences imposed by different Courts depending on, for example, whether there was vaginal or anal penetration, or oral sex, or other kinds of sexual assault, it does not factor into my ultimate sentence that K.J. may not have fully penetrated J.C. vaginally or orally, based on her testimony.
Mitigating Factors
[84] I agree with the Crown that there are few, if any, mitigating factors.
[85] K.J. was co-operative with the probation officer. He appears to have tried to deal with his alcohol abuse issues.
[86] K.J.’s lack of remorse, and his plea of not guilty, are not aggravating factors. However, neither are these circumstances available to act in mitigation of sentence. They are some evidence as to the role rehabilitation should play in crafting an appropriate sentence. In this case, both by the provisions of the Code, and on the evidence, rehabilitation played little role in determining the sentence in this matter.
Aggravating Factors
[87] I agree with the Crown’s summary of the aggravating factors in this case, namely:
• K.J. has a criminal record for sexual misconduct. I acknowledge the record is somewhat dated, but that fact works both ways. K.J. has committed sexual offences over a long period of time. I decline to try to assess the misconduct in the prior sexual assault convictions based on a sentence that was given 20 years ago. A lot has changed in sentencing sexual offenders involving children since that time.
• J.C. is disabled and like a child, is a vulnerable victim.
• K.J. was in a trust-like relationship as a neighbour who helped J.C. and her mother. He was their good friend. K.J. exploited and breached that trust.
• There was some violence outside of the offence itself which involved the pulling of J.C. onto the bed by her arm, which caused bruising.
• The impact on this victim is uniquely aggravating because of her disability and the dramatic change in every aspect of the quality of her life that the sexual assault has caused.
Principles of Sentencing Applied
[88] The most significant sentencing principles with respect to the sexual misconduct in the circumstances of this care are deterrence, specific and general, and denunciation. These principles are of primary importance and require a substantial sentence in this case.
[89] J.C. is a vulnerable victim, like a child. She was entitled to protection from society and to society’s condemnation when she was not protected.
[90] The sentence to be imposed must be sufficiently severe to deter others from using the vulnerable in our society for their own gratification. It also must be sufficiently severe to deter K.J. himself in the future.
[91] The Crown conceded, and I agree, that K.J. does not fit within the statutorily aggravating definition of being in a position of trust to J.C. However, there is no doubt that J.C. and her mother, K.T., trusted K.J. and relied on him. He was their very close friend. K.J. exploited that friendship and trust. He betrayed the trust J.C. had in him.
[92] I must also consider the overwhelming negative impact on this unique complainant. A vulnerable person who already faced challenges had her world shattered. The evidence is extensive that she has been unalterably damaged by the sexual assault.
[93] In considering all of the circumstances of this case, the aggravating and mitigating factors and the guidance of other Court decisions, I find that an appropriate sentence is one of 6 years.
Ancillary Orders
[94] The Crown seeks certain ancillary orders. The defence does not contest these orders and they will be set out in my Final Decision.
Pre-Trial Custody/Strict Bail Conditions
[95] There was no evidence, nor submissions by defence, that K.J. should receive any credit for pre-trial custody, or any reduction in sentence as a result of overly stringent bail conditions.
Final Decision
[96] K.J. is sentenced as follows:
Sexual Assault: 6 years;
A DNA order to issue;
A SOIRA order for life;
A s. 734.21 order while K.J. is in custody with respect to no contact with J.C. and
A s. 109 weapons prohibition for life.
Justice N. Mossip
Released: February 6, 2019
COURT FILE NO.: 17-0511
DATE: 2019 02 06
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
K.J.
reasons for sentence
Justice N. Mossip
Released: February 6, 2019