COURT FILE NO. 14724/18

DATE: 20191015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

C.G.

Thomas Hewitt, for the Crown

Robert Greenway, for the defence

Heard: June 21, 2019

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, any information that could identify the victim, or a witness, shall not be published in any document, or broadcast or transmitted in any way.

Bale J.:

Overview

[1] The offender was found guilty of four Criminal Code offences: sexual assault, s. 271; sexual interference, s. 151; invitation to sexual touching, s. 152; and breach of recognizance, s. 145(3). At the request of Crown counsel, the conviction for sexual assault has been conditionally stayed. These are my reasons for sentence on the remaining three convictions.

[2] The sexual offences took place between July 1, 2014, and February 28, 2017 when the victim was between 11 and 14 years old.

[3] The offender and the victim were members of what was an uncommonly close extended family. The victim’s mother and the offender’s wife, V, are first cousins. The offender and V have three children: two daughters and a son. Their eldest daughter, K, and the victim were best friends. The offences took place during sleep-overs, involving the victim and K, at the offender’s home.

Background facts

[4] The sexual touching took place during sleep-overs at K’s home. The victim was not certain when it began, but believed it to be the summer between grades 6 and 7, which would have been the summer of 2015.

[5] During some of the sleep-overs, the offender entered the bedroom, and after checking to make sure K was asleep, would grab the victim’s breasts, and put his hand down her pants, both underneath her pyjamas. He would also make her touch his penis, at times, to the point of orgasm. The touching took place ten or fifteen times, over a three-year period.

[6] The victim was not certain when the last incident of sexual touching had taken place. She believed it to be early in her grade 8 year, which would have been the fall of 2017, and she would have been 14 years old.

[7] The recognizance that was breached was in effect between June 23, 2016, and November 16, 2017. It required the offender to remain away from persons under the age of 16 years.

Victim impact

[8] The impact of these offences, on the victim and her family, is tragic.

[9] Victim impact statements were provided by the victim, her parents, her brother, and two grandparents.

[10] In her statement, the victim spoke of her loss of K’s friendship. She described “K” as “like a sister” and “the world’s best friend”. She recounted that the two families never went anywhere, or did anything, without the other, and that V was an amazing aunt who was like a second mother to her. The reasons why she did not report the sexual touching sooner included the fact that she did not want to destroy those family relationships, and her fear that if she was not believed, she would be disowned.

[11] The victim continues to have flashbacks, and to have difficulty sleeping. She suffers from PTSD, depression and anxiety, for which she has been prescribed medication. Her school grades have suffered. When in public, she fears that if she were to run into the offender, she would have a mental breakdown in front of her friends. At times she has wondered whether it might be best if she were to end her life. She misses her cousin and best friend, and her aunt so much that “it hurts”, and she is angry that she is, in effect, being punished, for what the offender did.

[12] In her statement, the victim’s mother confirms the effects of the sexual abuse on her daughter. She says that the daughter who was once happy, outgoing and joyful now appears to be hurt, angry, fearful and lost. She lives with guilt for having trusted the offender, and not noticing any signs of what was going on. She feels that her relationship with the victim is strained, and worries that she is being blamed for not better protecting her daughter. Her personal health has also suffered, and she spoke of the loss to herself of the close extended family, and the plans that she and her husband formerly had to spend their retirement years with V and the offender. Her relationship with her husband has been strained.

[13] In his statement, the victim’s father confirms the effects of the sexual abuse on his daughter. He suffers from stress, anxiety and high blood pressure. Although he believed his daughter to be safe at the offender’s home, he feels angry that as a father, he was unable to protect her. He feels sorrow for both his children and the offender’s children, having lost each other, and for his wife having lost her best friend and cousin. He concluded by saying that what the offender did had “destroyed both our family, and his own.”

[14] Victim impact statements were provided by two of the victim’s grandmothers. Both have suffered personally, and both are heart-broken, as result of the effect of these offences on the victim and her family.

[15] The victim’s brother has not been told the substance of the offences. In his statement, he says that he is not sure why the two families are no longer together, and has only been told that the offender had done something bad. He wishes that his mother and sister could stop crying, and that the two families could be together again.

Circumstances of the offender

[16] The offender is 40 years old, and is married with three children, ages 15, 12 and 8.

[17] He has a grade 12 education, following which he studied accounting at Durham College but did not complete the course. He has been steadily employed by Loblaws for 20 years, and currently works in shipping and receiving.

Positions of counsel

[18] Crown counsel submits that the appropriate sentence in this case is three to four years’ imprisonment. In support of his position, he relies upon R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), and R. v. Stuckless, 2019 ONCA 504, as well as ss. 718.01 and 718.2 of the Criminal Code.

[19] Defence counsel submits that the appropriate sentence is 24 to 30 months’ imprisonment. In support of his position, he relies upon R. v. D.M., [2001] O.J. No. 149 (S.C.J.), R. v. E.Y., [2002] O.J. No. 673 (O.C.J.), R. v. G.S.L., 2002 CarswellOnt 5191 (S.C.J.), aff’d 2003 57437 (ON CA), [2003] O.J. No. 1719 (C.A.), and R. v. O.B., 2016 ONSC 6861.

Aggravating and mitigating factors

Aggravating factors

[20] Pursuant to s. 718.2 of the Criminal Code, the following are considered to be aggravating factors:

• that the offender, in committing the offence, abused a person under the age of eighteen years;

• that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and

• that the offence had a significant impact on the victim, considering her age and other personal circumstances.

[21] As will be clear from the facts summarized above, including the victim impact statements, all of those aggravating factors are front and centre in this case.

Mitigating factors

[22] The offender does not have a criminal record. He has been gainfully employed for more than 20 years, and has complied with the terms of his bail since the date of his arrest.

[23] Defence counsel filed 16 letters of reference from friends, neighbours and family. All are highly supportive, and extoll his virtues as a family man and friend. While many of them would appear to be inconsistent with the court’s finding of guilt, I accept them as evidence of who the offender is, apart from the serious offences of which he has been convicted.

Discussion

[24] As this case involves the abuse of a person under the age of eighteen years, section 718.01 of the Criminal Code requires that I give primary consideration to the objectives of denunciation and deterrence of such conduct.

[25] In D.D., cited by Crown counsel, Moldaver J.A. said the following, at paras. 34-35:

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.

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.

These principles were re-emphasized in Stuckless.

[26] While submitting that the principles in D.D. and Stuckless should govern the court, Crown counsel acknowledges that the facts in those cases were of a whole other magnitude of depravity, as compared with the facts of the present case.

[27] In the cases cited by defence counsel, the sentences ranged from 10 months in custody and 36 months’ probation, to 30 months in custody. However, with the exception of O.B., those cases either pre-dated D.D. or did not refer to it, and defence counsel acknowledges that the sentences in those cases would be higher, if the offenders were sentenced in accordance with current sentencing principles. In O.B. (November 2016), the sentence was 24 months’ imprisonment and 12 months’ probation; however, the facts and circumstances in that case were less egregious that the facts and circumstances in the present case.

Disposition

[28] Based upon the facts of this case, including the aggravating and mitigating factors, the authorities cited by counsel, and the purposes and principles of sentencing, I have concluded that a penitentiary term of 34 months will be a fit sentence for this offender for these offences. On account of this sentence, he is entitled to a credit of five days for pre-sentence custody.

Mr. Graham-Tate:

[29] You will be imprisoned for a term of thirty-four-months, less 5 days, in a federal penitentiary, as follows:

Count 2: 34 months, less 5 days

Count 3: 34 months, less 5 days, concurrent to Count 2

Count 4: 6 months, less 5 days, concurrent to Count 2

[30] In addition, you will comply with the following ancillary orders:

• an order prohibiting you from communicating directly, or indirectly, with the victim during the custodial period of your sentence;

• a firearms prohibition order, for 10 years, pursuant to s. 109 of the Criminal Code;

• an order that you comply with the Sex Offender Information Registration Act for life; and

• an order authorizing the taking of a DNA sample, and an order that you report and submit to the taking of the sample.

[31] And finally, you will be prohibited, for a period of 15 years,

• from attending a public park or public swimming area where persons under the age of 16 years are present, or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, unless in the company of Virginia Graham-Tate, or another person approved by the court;

• from being within two kilometres of any dwelling-house where the victim ordinarily resides;

• 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; and

• from having any contact – including communicating by any means – with a person who is under the age of 16 years, other than your children, unless under the supervision of Virginia Graham-Tate.

“Bale J.”

October 15, 2019

COURT FILE NO. 14/724/18

DATE: 20191015

ONTARIO

SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

– and –

C.G.

REASONS FOR SENTENCE

Bale J.

October 15, 2019