COURT FILE NO.: CR-18-0014 DATE: 2020-08-05 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Tiffany Boisvert, for the Crown
- and -
A.K. Neil J. McCartney, for the Accused Accused
HEARD: Sentencing Submissions heard on February 10, 2020 at Thunder Bay, Ontario Madam Justice B. R. Warkentin, R.S.J.
Reasons on Sentence
[1] On September 5, 2019 the offender, A.K. was convicted of one count of touching for a sexual purpose someone under age 16 contrary to s. 151 of the Criminal Code, and one count of sexual assault contrary to s. 271 of the Criminal Code.
[2] The complainant, A.A., was seven years old in October 2008 when the offences are alleged to have started. There is a publication ban with respect to the identity of the complainant that remains in force. This ban is extended to the family members.
Summary of the Offences
[3] The offender is the great uncle of A.A., however he and his wife were more like parents to A.A.’s mother. From the time she was an infant, A.A. spent a significant amount of time in the home of the accused, including overnight visits.
[4] At trial A.A. described 5 incidents of sexual assault/sexual interference that occurred when she was between the ages of 7 and 13 years of age. She also testified that there had been other incidents of sexual assault but that she could not recall specific details of those other incidents.
[5] I found that the 5 incidents described by A.A. supported the charges of sexual assault and sexual interference; counts one and three on the indictment. The offences included both vaginal penetration by the accused with his penis, the first occasion occurring when A.A. was seven years old and one incident of oral penetration when the accused put his penis in A.A.’s mouth. A.A. described being pinned down by the accused during the assaults and the pain and fear that she endured.
[6] These incidents and the evidence in the trial are more fully described in my Reasons for Judgment dated September 5, 2019 and marked as Exhibit A on the judgment.
Victim Impact Statements
[7] During sentencing submissions, I received victim impact statements from A.A., her mother M. W., her step-mother, J.A. and her grandfather, G.A.
[8] The victim impact statements described the effect of the sexual assaults on A.A. and how her life has been affected. A.A. described how her life has been irrevocably altered, that she lives with anxiety and fears being alone. She described her lack of trust and fear of strangers, particularly men.
[9] The members of A.A.’s family who also provided victim impact statements described their sorrow for not recognizing the signs that there was something wrong; the impact the sexual assaults have had on their ability to trust and the loss of relationships. In addition, they described their own anxiety and psychological trauma of having a child and grandchild who has been sexually abused.
[10] The victim impact statements demonstrate the significant impact of the sexual assaults on A.A. on her and on those close to her.
[11] The purpose of victim impact statements is to provide information to the judge about the impact of the crime for the judge’s consideration in accordance with the principles of sentencing and to provide the victim with an opportunity for meaningful participation (s. 722 of the Criminal Code).
[12] I have ignored those portions of the victim impact statements where there were suggestions about the accused’s character and what they would like to see happen to the accused.
[13] I have considered the victim impact statements for the purpose set out in the Code and not for any aggravating purposes in determining the sentence that I will impose.
Pre-Sentence Report
[14] After his conviction, the offender participated in a Pre-Sentence Report. That report described the offender as a 67 year-old, first time offender. He continues to maintain his innocence.
[15] The offender was employed for more that 28 years as an electrician, and suffers from multiple sclerosis, that is stable. He has been married to his second wife for 36 years. They have no children.
[16] The writer of the pre-sentence report also spoke with a number of family members and friends of the offender. He continues to have a good relationship with his ex-wife and her family. All those interviewed by the writer of the report described the offender in positive terms, as a loving husband, uncle and good friend.
[17] It was the opinion of the writer of the pre-sentence report that the offender would benefit from treatment for sexual offenders whether during incarceration or in the community.
[18] The defence included 14 letters in support of A.K. These letters also described the offender in positive terms.
Mitigating and Aggravating Factors
[19] To assist a trial judge in arriving at a “just and appropriate punishment,” Parliament enacted s. 718.2 of the Criminal Code which sets out a number of aggravating or mitigating factors that a judge may consider to increase or decrease a sentence.
Aggravating Factors
[20] There are a number of aggravating factors present in this case: a) The offender was in a position of authority and trust over A.A. He was an elder family member and at times A.A.’s care-giver. He is almost 49 years older than A.A. b) A.A. was very young, only 7, when the first sexual assault occurred, and the assaults continued until she was 13; almost six years. c) The sexual assaults included penile penetration of a child’s vagina. d) There was some use of force during the assaults that included pinning A.A. down, and penetrating A.A.’s mouth with the accused’s penis causing her to choke.
Mitigating Factors
[21] The most significant mitigating factor is that A.K. has no prior criminal record. In addition, he is in a long term, stable relationship with his wife and has strong family and community support.
General Principles of Sentencing
[22] The offences for which A.K. are convicted are serious. Sexual assault and sexual interference of a young child are extremely grave.
[23] Section 718 of the Criminal Code, R.S.C. 1985, c. C-46, sets out a list of principles and objectives that applies when a Court must determine a fair and just sentence. The principles in that section require that unlawful conduct should be denounced while at the same time deterring the offender and others from committing similar crimes.
[24] That section states that any sentence must reflect one or more of the following objectives:
- To denounce unlawful conduct;
- To deter the offender and other persons from committing crimes;
- To separate offenders from society where necessary;
- To assist in rehabilitating offenders;
- To provide reparations for harm done to victims or to the community; and
- To promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
[25] The principle of denunciation is an expression of society’s attitude towards the offence committed. It focuses on the aspect of conduct, not on the personal characteristics of the offender. In R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81, Justice Lamer of the Supreme Court of Canada wrote that, “In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law.”
[26] The principle of deterrence is set out in section 718 (b) of the Criminal Code. Deterrence seeks to provide a threat or example to the offender (specific deterrence), or to others (general deterrence), in order to discourage crime by making it clear that criminal behaviour of this nature will result in the imposition of severe punishment.
[27] It is the task of the sentencing judge to assign the relative weight to the particular aspects of the case before the Court so that the sentence is shaped in a way that is specific to the offender while following a uniform approach.
Offences against Children
[28] There are specific provisions in the Criminal Code that deal with the sentencing of offenders who sexually abuse children. Under s. 718.01, offences against children who are under the age of 18 years are governed primarily by the objectives of denunciation and deterrence, particularly the need to separate the offender from society.
[29] In the case of R. v D(D) (2002), Moldaver J.A., provided direction to judges when sentencing offenders found guilty of child sexual assault:
…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. [R.v. D.D. (2002), 2002)]
[30] More recently in the case of R. v Woodward, 107 O.R. (3d) 81, 2011 ONCA 610, Moldaver J.A. commented on the impact of sexual abuse on children at paragraphs 75 and 76:
[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.
Analysis
[31] Crown counsel is seeking a term of nine years’ incarceration in a penitentiary.
[32] Counsel for A.K. is seeking a five-year sentence and referenced the Ontario Court of Appeal case of R. v. W.Y., [2015] O.J. No. 5230 (ONCA).
[33] I note that the facts in W.Y. are distinguishable to the facts in this case. In W.Y. the offender was the biological father of the victim; however, he was unknown to her until a few months prior to the offences occurred; whereas in this case, A.K. was a grandfather figure to A.A., who was present during her birth and was a significant part of her life. In W.Y., the victim was 14 years of age whereas the assaults against A.A. began when she was only 7 years of age. Finally, in W.Y. the offender pled guilty, expressed remorse and a desire for treatment. While not an aggravating factor, a guilty plea is a mitigating factor that is not present in this case.
[34] The Court of Appeal in W.Y. upheld the 5-year sentence but noted that it was at “the bottom end of the range” (at para. 14).
[35] The fact that this is the first conviction against A.K. is not a sufficient mitigating factor for me to depart from the direction of higher courts that offences of this nature require sentences in the mid to upper-level single digits. The fact that A.K. has provided many letters that attest to his good character, cannot be considered as a mitigating factor for sexual offences against children.
[36] Having considered all of the submissions of counsel, their respective positions on sentence and the case law to which I have been referred, I am of the view that a sentence of eight years is the appropriate sentence for this offence. After deducting five months of enhanced credit for pre-trial custody, the sentence imposed on A.K. is seven years and seven months.
Other Orders
[37] A.K. is sentenced to life-time weapons prohibition for restricted and prohibited weapons pursuant to s. 109 (1)(a) of the Criminal Code and an order prohibiting all other weapons for a period of 10 years pursuant to section 109(2)(a) of the Criminal Code.
[38] The Court orders the taking from A.K., for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1) of the Criminal Code.
[39] In accordance with section 760 of the Criminal Code, any observations of the Court with respect to the reasons for the findings, be forwarded to the Correctional Service of Canada as soon as practicable.
[40] This Court orders that A.K. be registered on the National Sex Offender Registry for a period of 20 years pursuant to s. 490.013 of the Criminal Code.
[41] After receiving submissions from the defence and the Crown, this Court orders that pursuant to s. 161 of the Criminal Code, for his lifetime, A.K. shall: a) Not have contact with A.A.; b) Not to be within one kilometer of anywhere he knows A.A. to live, work, go to school, or be; c) Not to have anyone under the age of 16 years on A.K.’s property; d) Be prohibited 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 authority towards persons under the age of 16 years; e) Not to be in a public park or community centre except in the direct company of at least one other adult without a criminal record, who is aware of A.K.’s criminal record; f) Not to have contact with anyone under age 16 except in the direct company of at least one other adult without a criminal record, who is aware of A.K.’s criminal record.
[42] In making these orders, I have considered the fact that A.K. is an active member of a church community. To impose the orders sought by the Crown without the exceptions as set out in paragraphs 41 (e) and (f) would be to deprive A.K. of his community and church support, something I find would be unduly harsh.
[43] Notwithstanding the comments referenced by the Crown from the letters produced in support of A.K., there is nothing to suggest that these individuals would deliberately violate a court order.
[44] I also accept that a conviction for both sexual interference and sexual assault are with respect to the same offences. Based upon the submissions from the Crown and defence during sentencing submissions regarding these convictions I accept that the sexual assault conviction under s. 271 shall be stayed pursuant to the Kienapple principle. (R. v. Kienapple (1974), [1975] 1 S.C.R. 729).
Madam Justice B. R. Warkentin, R.S.J. Released: August 5, 2020