COURT FILE NO.: CR-18-50000399-0000

DATE: 20191205

SUPERIOR COURT OF JUSTICE

ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.P.

Accused

Michael Townsend / Tom Mack, for the Crown

Amanda Ross, for the Accused

HEARD: November 1, 2019

B.A. Allen J.

REASONS FOR JUDGMENT ON SENTENCE

PRELIMINARY CONSIDERATIONS

The Offence for Sentencing

[1] JP was convicted in a jury trial on one count of sexual interference and one count of sexual assault which occurred over the period from May 1, 2011 to April 16, 2017. The allegation before the court at trial was that JP on hundreds of occasions committed such acts as touching various areas of NP’s body and full intercourse.

[2] There is no specificity in the indictment as to the accused’s conduct that relates to each count. So there was some uncertainty as to the basis of the jury's verdict. In a previous proceeding I conducted a hearing into findings of fact for sentencing. I accepted the defence's position that there is a basis in the evidence to find that one instance of JP touching NP's buttocks was proven beyond a reasonable doubt: [R. v. Peralta. 2019 ONSC 6298 (Ont. S.C.J.)]. The evidence related to the more serious allegations suffered from credibility and reliability problems and as such I found those allegations were not proven beyond a reasonable doubt.

[3] On consent the parties seek to apply the Kienapple principle to stay the sexual assault charge: [R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729]. Sentencing will therefore apply to one count of sexual interference.

[4] The Crown seeks a 90-day intermittent custodial sentence with 3-years' probation, a DNA order, a SOIRA order for 20 years and a no-contact order. The defence primarily seeks a conditional discharge with a 3-year probationary period and alternatively, a conditional sentence with 3-years' probation and in the further alternative a suspended sentence with a 3-year probationary period.

Eligibility for a Conditional Discharge

[5] As of July16, 2015 conditional discharges were no longer available on findings of guilt for sexual offences: [Tougher Penalties for Child Predators Act (Bill C-26)]. There is a question whether JP is eligible for such a sentence.

[6] Under s. 730(1) of the Criminal Code, instead of convicting the accused, a sentencing judge may direct the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2) of the Criminal Code, where the accused pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for 14 years or for life.

[7] NP's evidence is that JP only touched her buttocks at the Richview apartment where the family lived from 2014. JP did not reside at the Richview apartment after he was arrested in 2017. Up to July 16, 2015, the maximum punishment under an indictment was 10 years' imprisonment. As noted, after that date the maximum sentence was 14 years' imprisonment. This means that if the buttocks touching occurred before July 16, 2015 JP would be eligible for a conditional discharge.

[8] A factual determination must therefore be made whether the buttocks touching incident occurred at a time when the maximum punishment for sexual interference was10 years.

[9] It is the defence that seeks the benefit of this lenient disposition. It seems to me therefore that it is the defence's obligation to prove JP's eligibility. There is an approximate 3-year range of time within which the offence could have been committed. There is an approximate 1-year period, between May 2014 and July 16, 2015, within which the offence would have had to occur for JP to be eligible for a conditional discharge.

[10] NP was not specific as to whether the offence occurred in the early months at Richview and thus within the eligibility period, or in the latter months after July 16, 2015 up until JP moved out in April 2017. No questions were asked of NP during examination in-chief nor on cross-examination on the issue of when, while living at Richview, JP touched her buttocks. There is an absence of evidence in this area. In the circumstances, I find I lack a firm enough evidentiary basis to find, or infer, that the offence occurred within the eligibility period.

[11] For those reasons, I conclude that JP is not eligible to be considered for a conditional discharge.

PRINCIPLES ON SENTENCING

Basic Objectives of Sentencing

[12] Section 718 of the Criminal Code sets down the principles to govern determinations on sentencing: to denounce unlawful conduct; to deter the offender and other potential future offenders from committing offences; and to separate offenders from society.

[13] Proportionality is also a guiding principle for sentencing. A sentence must be proportionate to the gravity of the offence, determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: [Criminal Code , s. 718.1 and R. v. Hamilton (2004), 1986 C.C.C. (3d) 129 (Ont. C.A.)].

[14] Parity, another governing principle, requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. c. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163 (S.C.C.)].

[15] The totality principle requires the judge sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.

Statutory Aggravating Factors

[16] Section 718.2 of the Criminal Code provides for a sentence to be increased or reduced in consideration of any relevant aggravating or mitigating circumstances related to the offence or the offender. This provision contains a non-exhaustive list of examples of aggravating and mitigating factors to consider. Two of the enumerated aggravating factors are relevant to the facts of this case: (a) s.718.2(a)(ii.1) - evidence that the offender, in committing the offence, abused a person under the age of 18 years; and (b) s. 718.2(a)(iii) - evidence that the offender, in committing the offence, abused a position of trust or authority.

[17] A victim's age is a factor to consider under s. 718.2(a)(ii.1) and the disparity between the ages of the victim and the offending adult is a relevant consideration. JP was 25 years older than NP when he committed the offence. From 2014 to 2017 the period when the offence was committed, JP was ages 34 to 37 and NP was ages 11 to 14 years. The young age of the victim is also a recognized aggravating factor: [R. v. M. (D.) 2014 ONSC 3773 (Ont. S.C.J.)].

[18] Courts have commonly held that a position of trust or authority involves a person in the victim's life who plays a role of trust such as parents, step-parents, other adult relatives, teachers, sports coaches, pastors, someone who stands in loco parentis, etc. JP clearly occupied a position of trust in relation to NP as her step-father.

Offences against Children

[19] Pursuant to section 718.01 of the Criminal Code, offences against children under age 18 years are governed principally by the objectives of denunciation and deterrence. An Ontario Court of Appeal case involving a sentence for an offender convicted of sexual assault of children stresses the operative principles of denunciation and deterrence and the need to separate offenders from society: [R. v. D.D. (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.)].

[20] As noted above, s. 718.1 of the Criminal Code provides a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. R. v. Woodward held that the more violent and sexually intrusive forms of sexual abuse of children should attract penitentiary sentences from upper single digits to lower double digits: [R. v. Woodward, 2011 ONCA 610, at para. 75, (Ont. C.A.)]. The principles apply to multiple incidents as well as singular incidents of sexual abuse: [R. v. Woodward, at para. 37]. The offence before the court involved one non-violent incident of JP touching his step-daughter's buttocks.

[21] Above I found that JP is not eligible for a conditional discharge. Even were I to have found him eligible, I would not in the circumstances, find such a sentence to be in accord with the principles of denunciation, deterrence and proportionality, considerations necessary for the court to arrive at a fit sentence for a sexual offence against a child by a person in a position of trust. A period of incarceration is required.

[22] A suspended sentence delays the passing of the sentence. Suspended sentences are appropriate where imprisonment is not necessary to accomplish the objectives of denunciation and deterrence. Suspended sentences are imposed together with probationary terms that facilitate the offender's rehabilitation and protect the public. A suspended sentence is unlikely to be appropriate for serious offences such as sexual abuse of a child by a person in a trust position.

[23] Similarly, with a conditional sentence, in view of the seriousness with which courts regard sexual improprieties against young children by persons in trust positions, even involving a singular incident, I find a sentence of incarceration is required. I find a conditional sentence to be inconsistent with the principles of denunciation and deterrence.

[24] As the Ontario Court of Appeal observed, the sentencing objectives of denunciation and deterrence require a sentence of incarceration in most cases and it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving a sexual offence against a child: [R. v. Rafiq, 2015 ONCA 768, at para. 27, (ON CA); R. v. Folino, 2005 40543, at para. 25, (ON CA)]. I do not find the case at-hand to be one of those rare cases.

[25] Of course, the more repetitive, violent and invasive the sexual abuse is the more stringent a custodial sentence should be.

VICTIM IMPACT

[26] While not required to, NP was entitled to submit a victim impact statement. She did not choose to do so.

CONCLUSION ON MITIGATING AND AGGRAVATING FACTORS

Mitigating Factors

• JP does not have a criminal record.

• He has worked in construction steadily over the several years since he immigrated to Canada.

• He is the sole source of financial support for his wife and four young children.

• He has had to live apart from his family for over 2½ years since his arrest while financially supporting his family and undertaking the added expense of supporting himself at the home of his surety.

• He was an integral part of sharing with his wife the household and child care tasks with four young children.

• He has close connections and support from family, friends and community members as reflected in the support letters submitted.

• He undertakes to attend any counselling services and community service required of him.

Aggravating Factors

• JP is NP's step-father and was in a position of trust in relation to NP and violated that trust in committing the offence.

• NP was under age 18 years.

• He is 23 years older than NP and as such should have been a guiding element in her life.

[27] JP did not plead guilty and accept responsibility for his conduct. While this is not to be regarded as an aggravating factor since offenders are entitled to maintain their innocence, JP will not be given the benefit of mitigation that an acceptance of responsibility would have afforded him.

CASE AUTHORITIES

[28] There is a wide range of sentences imposed for the offence of sexual interference. There are an infinite number of possible fact scenarios involving sexual abuse of young children that can be captured by this offence. Each case must be decided on its own fact situation, taking into account the particularities of the offence and the offender and the surrounding circumstances. The cases cited below involve incidents of sexual interference. Although different factually from the case at-hand, all impose prison sentences of varying lengths to reflect the dominant principles of denunciation and deterrence and also order periods of probation in keeping with the objective of rehabilitation.

[29] R. v. B.J.T., 2019 ONCA 694 (Ont. C.A.): offender, father of the complainant, ages 13 and 15 years at the time, convicted on 2 counts of sexual interference and 2 counts of sexual assault; applying the Kienapple principle, the offender sentenced only on sexual interference offences; on first incident, complainant asked her father to shave her pubic hair and he agreed and he shaved her; on second incident, daughter asked father to shave her pubic hair again; the father complied and in doing so inserted his finger into her vagina to remove pubic hair; he made a comment on the size of her clitoris; for first incident, sentencing judge imposed suspended sentence and a period of probation; for second incident, 9 months' prison sentence imposed; appellate court overturned conviction for first incident on the basis it was not proven to be committed for sexual purpose; appellate court upheld 9-month prison sentence and probation for the second incident; lifted the stay for sexual assault and imposed a one-day concurrent sentence for sexual assault.

[30] R. v. Manjra, 2009 ONCA 485 (Ont. C.A.): complainant, a 7-year old girl, visited the house next door where the offender lived; when she was alone with offender he pulled down her pants and underwear and while on his knees, he "licked her privates"; offender sentenced to 17 months in custody followed by 24 months of probation.

[31] R. v. Real, 2009 ONCA 912 (Ont. C.A.): offender pleaded guilty to two counts of sexual interference on a 6-7-year-old girl who lived in the house next to the respondent; appellate court upheld a 90-day intermittent sentence.

[32] R. v. R.P. [2006] O.J. No. 4250 (Ont. C.A.): offender, no criminal record, briefly fondled the victim’s vagina on two occasions; the trial judge sentenced the appellant to 17 months: On appeal the sentence was reduced to 12 months. The appellant had no criminal record.

[33] R v. H.L., 2018 ONSC 1026 (Ont. S.C.J.): offender, age 21, charged with sexual assault and sexual interference; had fellatio and sexual intercourse in a hotel room with the 14-year-old complainant who had developmental disability and operated mentally on the level of a 5-year old-child; sexual assault stayed by Kienapple; sentence 15 months' imprisonment for sexual interference with time served and two years' probation.

[34] R. v. S.A., 2016 ONSC 5355 (Ont. S.C.J.): aboriginal offender, in a position of trust with a 14-year-old girl was convicted of sexual interference; trial judge found the offender committed "a fleeting touch over clothes and not an intimate body part"; but found offender's words to the victim about pornography and about being a good sex teacher raised the otherwise minor contact to one of for a sexual purpose; sentence 90 days' imprisonment to be served intermittently and two years' probation.

[35] R. v. M.L., 2016 ONSC 7082 (Ont. S.C.J.): offender, 59-year-old first offender, found guilty of sexual assault and sexual interference in relation to an incident that involved touching and squeezing of the 15-year-old complainant’s bare breasts; offender in a position of trust as complainant was related to offender's family; sentenced to 9 months' imprisonment.

[36] R. v. C.L., 2013 ONSC 277, [2013] O.J. No. 114 (Ont. S.C.J.): offender, 50-year old man; neighbour of complainant, a 15-year-old high school student; offender committed 2 incidents of sexual interference, the first where he touched the complainant's thigh and tried to put his hand between her legs and the second incident the offender tried to touch her breasts and kiss her; sentenced to 90 days' imprisonment to be served intermittently and 2 years' probation.

[37] R. v. Krishnanada, 2017 ONCJ 81, [2017] O.J. No. 953 (Ont. C.J.): offender, a 30-year-old male offender with no criminal record, pleaded guilty to sexual interference involving 1 act of sexual intercourse with a 14-year-old young person; a 90-day intermittent prison sentence imposed and 2 years' probation; offender would have lost his job with any sentence over 90 days intermittent.

CREDIT ON SENTENCE

Pre-Trial Time Served

[38] Under s. 719(3) and 719(3.1) of the Criminal Code, a court may take into account, when considering sentence, any time the accused spent in custody as a result of the offence. The maximum that can be credited is 1.5 days for each day spent in custody: [R. v. Summers, 2014 SCC 26, 2014 CSC 26, 2014 CarswellOnt 4479 (S.C.C.)].

[39] JP served 2 days in pre-trial custody and I find him to be entitled to 3½ days’ credit which I round off to 4 days.

Bail Conditions

[40] The court may also consider, up to the date of sentencing, the bail conditions of the offender. House arrest of 24 hours a day, 7 days a week is the most restrictive form of bail. But other forms of bail can be considered for credit. A curfew condition may also be considered. Restrictive bail conditions are recognized for credit because of their punitive aspect. It is the accused's burden to establish entitlement to credit. It is discretionary in the sentencing judge to determine the amount of credit, if any, that should be allowed: [R. v. Downes, 2006 3957 (ON CA)].

[41] JP was arrested on April 18, 2017 and released on April 20, 2017 to reside with his brother, who is his surety and his brother's family. He was on house arrest from April 18, 2017 to January 17, 2018, about 9 months. Although the evidence was not before me, I think this was not likely a 24/7 arrangement. JP had substantial financial obligations so I assume there was an exception to supervision by his surety to allow him to be at work and to travel to and from work.

[42] On January 17, 2018, bail was varied to a curfew. It is not clear whether the curfew has continued in place to the present.

[43] JP has been required to live away from his wife and four children while on bail. It happens that his youngest child was born after he was arrested. He was not permitted by the terms of bail to be with his children unless in the direct company of his wife and his surety.

[44] In August 2019, bail was again varied to allow JP to visit the family home after NP had moved out. JP was therefore excluded from the family home for over 2 years. While being required to live apart from his family was understandably very challenging for JP and his wife and children, that condition was necessary in the circumstances for the protection of the family because, at the time, JP faced allegations of multiple incidents of sexual abuse against 1 of the children residing in the home.

[45] I take note that throughout bail JP was fully compliant with the conditions.

[46] Defence counsel did not propose an amount of credit for his bail conditions likely owing to the defence's primary position seeking a conditional discharge. The Crown made no submissions in this area.

[47] However, I find JP is entitled to some credit for the circumstances of his bail. I allow 45 days' credit.

CONCLUSION

[48] I considered the sentences given in the case authorities together with the particular circumstances of JP and the nature of the offence. I conclude a custodial sentence of 60 days to be served intermittently with two years' probation is a fit sentence.

[49] While the sexual interference amounted to a singular, non-violent incident that was not overly invasive or intrusive of NP's body, it was still an offence aggravated by the fact that he was a person in a position of trust who committed a sexual act against a young vulnerable step-daughter. The sentence imposed must reflect that reality.

[50] A period in custody, though it need not be on the extreme end of the range, is required to satisfy the objectives of denunciation and deterrence. I find the cases where 90-day intermittent sentences were imposed involved circumstances with either more than one incident, and/or were more invasive and/or had more sexually charged contexts.

[51] The two-year probation period will satisfy the objective of rehabilitation. In the context of the alternative proposals for a conditional discharge or a conditional sentence, JP undertook he would participate in any counselling that might be recommended by his probation officer. I will include such a term as a requirement of his probation.

[52] The sentence takes into account the mitigating factors addressed above. JP is a family man who has a loving and close relationship with his wife and children. I accept the views of the persons who wrote support letters saying that JP is a hardworking, community-minded man who is much loved by friends and family. He is, and has continuously been, the sole means of financial support for himself, his wife and four children, as well as for NP before she moved from the family home a few months ago. The sentence will allow JP to maintain his construction job and be present to provide the necessary parental, spousal and financial support for the family.

[53] I therefore allow JP 4 days' credit for pre-trial custody and 45 days' credit for bail conditions. JP will therefore serve an11-day intermittent custodial sentence.

[54] The probation order includes the general terms as set out under s. 732.1(2) of the Criminal Code.

[55] Sexual interference is a primary designated offence and as such I impose a mandatory DNA order. I also make a SOIRA order for 20 years. I see no need to impose a s. 109 weapons prohibition. I also impose a no-contact order prohibiting JP from being in direct or indirect contact with NP or within 200 metres of where NP resides, works, volunteers or attends school or church.

SENTENCE

[56] I will now deliver sentence. JP will you please stand?

[57] You are sentenced to a 60-day intermittent custodial sentence. You will receive 4 days' credit for pre-trial time served in custody. You will receive 45 days’ credit for the bail conditions.

[58] You will therefore serve an11-day intermittent custodial sentence on weekends until the completion of the sentence.

[59] You will serve a 2-year probationary period on the following terms. You shall:

(a) keep the peace and be of good behaviour;

(b) appear before the court when required to do so by the court; and

(c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;

(d) attend and complete any counselling programs recommended by your probation officer and provide proof of completion of such program.

[60] I impose the following additional orders:

(a) a mandatory DNA order requiring you to provide DNA from a deposit of bodily substance for samples to be submitted to the national database;

(b) A SOIRA order for 20 years requiring you to register under the Sex Offender Information Registration Act;

(c) a no-contact order prohibiting you from any form of contact with NP, directly or indirectly, and prohibiting you from attending within 200 metres of any place where NP resides, is employed, volunteers, attends church or attends school.

B.A. Allen J.

Released: December 5, 2019

COURT FILE NO.: CR-18-50000399-0000

DATE: 20191205

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

J.P.

Accused

REASONS FOR JUDGMENT ON SENTENCE

B.A. Allen J.

Released: December 5, 2019