ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ (P) 1447/19
DATE: 2020 12 02
B E T W E E N:
Her Majesty the Queen
Carla Agatiello, for the Crown
- and -
Glenton Roper
Michael Owoh, for the Accused
HEARD: October 2, 2020
REASONS FOR SENTENCE
Bloom, J.
I. OVERVIEW AND APPLICATION OF RULE AGAINST MULTIPLE CONVICTIONS
[1] I am imposing sentence today after finding the accused guilty of one count of sexual assault and one count of sexual interference on July 20, 2020.
[2] The Crown submits that the rule against multiple convictions should be applied to the finding of guilt for sexual interference; the Defense takes no issue with that position.
[3] Accordingly, I apply that rule and stay the count of sexual interference conditionally; the stay is conditional on the final disposition of the sexual assault charge, and becomes a permanent stay upon the dismissal of all appeals or the expiry of the appeal period in relation to the sexual assault charge.
II. FACTS
A. CIRCUMSTANCES OF THE OFFENCE
[4] The victim was born on December 5, 2008.
[5] The accused was the partner of the victim’s mother. The accused, the victim’s mother, the victim, and her younger sister and brother (who were children of her mother and the accused) lived in an apartment in Brampton.
[6] In my reasons for judgment of July 20, 2020 I found that there were three incidents of inappropriate touching by the accused of the victim. They took place when the victim was 9 years old and in the apartment in which she was living.
[7] In one incident the victim had been in the lap of the accused while they were playing. He used his leg to open her legs until it hurt her; he took his hands and went past her underpants and to her vagina; his fingers rubbed her vagina. He was laughing and would sometimes stick out his penis.
[8] In a second incident they had been playing and he went on to the floor trying to hold her. He manipulated her nipples and put his lip on her ear.
[9] The third incident took place in the kitchen of the apartment. The accused went through her shorts and underwear and touched her vaginal area with his finger. He rubbed his penis against her. He put the back of her vagina on his penis. His penis was in and out of his pants.
B. CIRCUMSTANCES OF THE OFFENDER
[10] The accused is 50 years old. He was born in Jamaica and immigrated to Canada in 2008; he is a permanent resident.
[11] The accused has no criminal record. He has had and maintains a good relationship with his family; he had to enter the workforce early for financial reasons.
[12] He is gainfully employed as an autobody repair technicien.
[13] He maintains his innocence and did so in his statement under s. 726 of the Criminal Code.
[14] He has three children, ages 5 to 19; the victim’s mother is the mother of the two youngest children, who reside with her.
C. IMPACT OF THE OFFENSE ON THE VICTIM AND HER FAMILY
[15] According to the Victim Impact Statement of the mother of the victim, the victim is withdrawn; clings to her mother because she is afraid of people; has no sense of self-worth; and and is sometimes suicidal. Her mother also stated that she cannot show the victim affection, because that act reminds the victim of the improper acts of the accused.
[16] The mother also described the impact of the offense on herself. She is afraid to enter a new romantic relationship, because she does not trust anyone; and for the same reason is afraid to leave her children with anyone. She also blames herself for the abuse of her daughter by the accused.
III. LEGAL PARAMETERS
[17] The relevant penalty provision of the Criminal Code is s. 271(a) :
Sexual assault
271 Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year;
IV. POSITIONS OF CROWN AND DEFENSE
[18] The Crown submits that a term of incarceration of 6 and one half to seven years is warranted along with the following ancillary orders: an order for 20 years under s. 490.013(2) of the Criminal Code; a primary DNA order for a primary designated offense under s. 487.051 of the Criminal Code; a weapons prohibition for 10 years under s. 109 (2) of the Criminal Code; an order under s. 161(1)(a.1) of the Criminal Code regarding the victim’s residence, and, if I think fit, an order under s. 161(1)(a); and an order under s. 743.21 of the Criminal Code in relation to the victim and her mother.
[19] The Defense submits that a sentence of incarceration of two years less a day is appropriate, and, alternatively, a sentence of 30 to 36 months of incarceration would be fit. Additionally, the Defense urges that any ancillary order I make respect the ability of the accused to have a relationship with his two children with the victim’s mother; and that I not make any discretionary ancillary order against the accused; except that an order under s. 161(1) (a.1) prohibiting the accused’s presence within 2 kilometres of the victim’s residence would be appropriate.
V. PRINCIPLES OF SENTENCING
[20] Both the Crown and Defense submit that the governing principles for sentencing in this matter are set out in the decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9. I intend now to review those principles.
A. PROPORTIONALITY
[21] At paragraphs 30, 75, and 76 the Court addresses the principle of proportionality. The Court stated that this principle, which mandates that a sentence must be proportionate to the gravity of the offense and the degree of responsibility of the offender, must in the context of sexual offenses against children take into account the inherent wrongfulness of these offenses as well as the actual and potential harm to the child victims.
B. THE PROTECTION OF CHILDREN
[22] At paragraphs 42, 51, 56, 60, 61, 63, 80, and 81 the Court held that the overarching purpose of the provisions of the Criminal Code setting out sexual offenses against children was the protection of children; that the protection of children included their personal autonomy, bodily and sexual integrity, dignity, and equality; and that they must be protected from emotional and psychological harm, as well as physical harm.
C. DENUNCIATION AND DETERRENCE
[23] At paragraphs 100 and 101 the Court stated that Parliament has prioritized denunciation and deterrence in the sentencing of sexual offenses against children.
D. THE ROLE OF PROVINCIAL APPELLATE COURTS
[24] At paragraphs 106, 109, and 114 the Court observed that, while sentencing ranges are to be left to provincial appellate courts to establish, mid-single digit penitentiary terms for sexual offenses against children are normal, and upper-single digit terms are not to reserved for exceptional circumstances.
E. POSITION OF TRUST OF OFFENDER
[25] At paragraphs 126 and 129 the Court noted that the presence of a breach of trust by the offender, such as when he or she is a caregiver, aggravates the offense, since it increases the harm to the victim and the degree of responsibility of the offender.
F. FREQUENCY OF THE ACTS OF SEXUAL ABUSE
[26] At paragraphs 131 and 133 the Court stated that the frequency of the acts of sexual abuse increases the harm to the victim and reflects a heightened moral blameworthiness of the offender, thus aggravating the seriousness of the offender’s conduct.
G. AGE OF THE VICTIM
[27] At paragraphs 134 and 135 the Court noted that younger children have increased vulnerability; and that sexual abuse of such victims carries with it an increase risk of harm to them, and an increased gravity of the offenses and moral blameworthiness of the offender.
VI. AGGRAVATING AND MITIGATING FACTORS
[28] The age of the victim, the presence of multiple incidents, the accused’s role (however limited) as a caregiver, and the emotional harm to the victim and her mother as reflected in the victim impact statement, are all aggravating factors in the case at bar.
[29] Mitigating factors include the fact that the accused has no criminal record and is gainfully employed.
[30] I am cognizant also of the consequences of the covid-19 pandemic on prisoners and of the loss by the accused of his right to appeal a deportation order if he is sentenced to a penitentiary term. In my view, these are collateral consequences of sentencing and must not reduce the sentence imposed, so that it becomes disproportionate to the gravity of the offense and the responsibility of the accused. Moreover, I note that the accused has alleged no special personal vulnerability to covid-19.
[31] I note also that the Parole Board can address the effect of the pandemic on the accused.
VII. SENTENCE IMPOSED INCLUDING ANCILLARY ORDERS
[32] I have considered the circumstances and principles discussed above. I am mindful particularly of the age of the victim, the fact that she suffered several incidents of abuse, the fact that the offender breached the trust of being her caregiver in her own home, and the emotional and psychological harm suffered by the victim and her mother—harm they are still suffering.
[33] I am mindful too that the offender has no criminal record; that he has been gainfully employed; and that he is young enough to have realistic prospects of rehabilitation and of leading a productive life.
[34] I, therefore, convict the accused and impose on the accused a term of 5 and one half years of incarceration in the penitentiary.
[35] In addition, I make a number of ancillary orders which I will now describe.
[36] I make an order under s. 490.012(1) and s. 490.013(2) of the Criminal Code for 20 years; and an order under s. 487.051(1) of the Criminal Code.
[37] I make an order under s. 109(2) of the Criminal Code for ten years.
[38] I further make an order under s. 161(1) (a.1) of the Criminal Code regarding the presence of the accused within 2 kilometres of the dwelling-house where the victim ordinarily resides.
[39] I make an order under s. 743.21(1) of the Criminal Code as to communication between the accused on the one hand and the victim or her mother on the other; I do so without abridging any parenting rights that the accused may otherwise have or acquire under a court order in relation to his two children with the victim’s mother.
[40] Finally, the Crown has not asked for the imposition of a victim fine surcharge; and, consequently, I decline to make that order.
Bloom, J.
Released: December 2, 2020
COURT FILE NO.: CRIMJ (P) 1447/19
DATE: 2020 12 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Glenton Roper
REASONS FOR JUDGMENT
Bloom, J.
Released: December 2, 2020