COURT FILE NO.: CR-19-00000005

DATE: 20201215

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.F.

Defendant

Kerry Watson, for the Crown

Céline Dostaler, for the Defendant

HEARD at Napanee: 29 October 2020

THE PUBLICATION, BROADCAST OR TRANSMISSION OF ANY INFORMATION THAT COULD IDENTIFY THE COMPLAINANTS OR A WITNESS IN THIS PROCEEDING IS RESTRICTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

MEW J.

sentencing decision

1R.F., at the conclusion of a four day trial in front of me, you were found guilty of the sexual assault of Z.S. and of touching Z.S, a person under the age of fourteen, for a sexual purpose, directly with your penis. You were acquitted on two other charges, one of sexual assault, and another of touching for a sexual purpose.

2In accordance with the principles set out in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, the charge of sexual assault is stayed. This sentencing decision is based only on the touching for a sexual purpose charge.

Circumstances of the Offence

Circumstances of the Offence

3The incident took place when Z.S was between the ages of seven and nine. She is now seventeen. So likely between 2010 and 2012.

4The venue was a couch in the television room at the Ss’ family home in Napanee. During that period, the other occupants of the house were Z.S.’s parents and her two older sisters.

5Z.S. is your niece. Her mother, C.S., is your half sister.

6You had been sitting beside Z.S. on the couch when you pushed her onto her back and moved both your clothing and Z.S.’s so that you could penetrate her vagina with your penis. You proceeded to have intercourse with her. She described the experience as traumatic and extremely painful. After you had finished and left, Z.S. was distraught. She remembers seeing blood on her underwear. She felt pain on the inside for days after the incident.

7For a number of years, Z.S. did not tell anyone what had happened. She eventually disclosed what had happened to her mother in 2018.

Circumstances of the Defendant

Circumstances of the Defendant

8You are now 31 years old. You are married to J.S. with whom you have been in a relationship for over nine years, and living with for over four years.

9You have a criminal record. In 2008, you were convicted on two charges of failing to comply with a recognizance. You were sentenced to one day on each charge concurrently, in addition to eight days of presentence custody. In 2009, you were convicted of failing to comply with a recognizance, theft under $5,000, sexual interference, invitation to sexual touching and sexual assault. On the sexual interference charge, you were sentenced to one day in addition to 123 days of presentence custody and were placed on probation for eighteen months. Your name was placed on the sexual offender register. The offences involved a twelve-year-old girl, under the guise of dating her, when you were nineteen years old.

10You have been employed for most of your life and, most recently, have been working full-time as a carpenter and part-time as a chef at a restaurant. You have plans to pursue a carpentry course and apprenticeship.

11While in the past you were reliant on drugs, you are no longer a habitual user of alcohol or marijuana.

12You have described yourself as feeling “betrayed” by members of your family and by the criminal justice system. You maintain your innocence on the charges that you have been convicted of. You have struggled with both anxiety and depression, but have not received professional support for mental health issues.

13You have the support of family members, including your mother, D.F., and your wife, both of whom attended court during your trial and both of whom provided written character references for you at your sentencing hearing. J.S. describes you as a “supportive, loving and caring partner” throughout your relationship with each other. You moved to Ottawa when she found work there. She credits you with having been forthcoming and honest with her about your past, even though it was difficult and risky for you to do so, particularly at the outset of your relationship with her.

14Your mother credits your good work ethic and your kindness. She recognises the positive role that your wife has played in your life and describes herself as “proud” of the man that you have become.

Impact on the Victim

Impact on the Victim

15Your sentencing hearing was conducted over Zoom and Z.S., in particular, felt uncomfortable speaking to the court through that medium. C.S., however, did provide a victim impact statement. And Z.S., of course, testified at trial, during which she provided some description of how she felt about what had happened.

16C.S. started her victim impact statement by saying that she found it hard to put into words how the offence committed against Z.S. had affected her and her family. She described Z.S. as having bad days related to negative memories, seeing her struggle with the memories and how what has happened affects her self-worth and her will to live.

17In my reasons for judgment at trial, I said, at para. 12:

[Z.S.] says that she did not tell anyone about this incident. She felt that she had brought this upon herself, that she did it to herself. She knew that if she told her parents, it would ruin the family. In the weeks and months following the incident, she felt numb. [Z.S.] described feeling like her body was not her own. She says that she did things with and to people that she regrets doing and it made her feel worse. On at least one occasion, she attempted suicide. While she did see a therapist, she did not disclose what had happened to her because of the possible consequences for her family.

18Z.S.’s disclosure of what had happened occurred at a time when Z.S. had, according to her mother, been “struggling for a while”. Her mother said that she knew that there was something going on with Z.S. but could not figure out what it was.

Legal Parameters

19Section 151 of the Criminal Code provides:

Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years…

Position of the Parties

Position of the Parties

20The Crown seeks a term of imprisonment of six years.

21In addition, the Crown seeks an order pursuant to s. 490.012 of the Criminal Code requiring you to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for life as well as an order of prohibition pursuant to s. 161 of the Criminal Code for a period of fifteen years.

22The Crown emphasises the statutory requirement that in offences involving the abuse of children, primary consideration shall be given to the sentencing objectives of denunciation and deterrence: Criminal Code, s. 718.01. In doing so, the Crown submits that the Court needs to properly understand and focus on the profound emotional and psychological harm caused to the child victims of adult sexual offenders and the life altering consequences that flow from such conduct.

23The Crown cautions reliance on more dated authorities which are said to fail to reflect society’s current awareness of the impact of sexual abuse on children. It is argued that the gravity of offences against children and the degree of responsibility of offenders like you require “a mid-single-digit penitentiary term”.

24What is said to elevate your case beyond a sentence of five years is the extent of emotional and psychological harm that has been caused, the fact that the offence took place within the sanctity of the victim’s family home and your criminal record which includes having previously been convicted of sexually assaulting a minor.

25Furthermore, the charge for which you are being sentenced is said to have involved sexual acts on a minor in the context of a breach of trust situation. It occurred after you had already experienced custody for sexually assaulting another minor and following treatment and counselling as a result. The offence involved penetration. The age gap between you and Z.S. was significant: she was between seven and nine years old, whereas you were already an adult. These are, the Crown submits, all aggravating factors.

26On your behalf, Ms. Dostaler submits that the appropriate sentence should be at the lower end of a range of between two and a half years and four and a half years’ imprisonment.

27Ms. Dostaler, quite correctly, reminds the court that the fact that you have maintained your innocence is not an aggravating factor nor, she submits, does it in any way reflect a minimisation by you of the seriousness of the offence, contrary to what the presentence report suggested.

28Furthermore, while you have a prior conviction for a sexual offence, on that occasion you pleaded guilty.

29Your employment history, your family support and the belief, expressed by your wife, that you have learned from your experiences and that your prior incarceration has given you a renewed appreciation for life, are all submitted as further mitigating factors.

30While acknowledging that the circumstances involve a breach of trust, the defence argues that they are nowhere near the more typical type of breach of trust involving a close family member. You would only see C.S. and Z.S. once in a while – at most, once a month.

Sentencing Principles

Sentencing Principles

31The purposes and principles of sentencing are set out in s. 718 of the Criminal Code. The objectives include denouncing unlawful conduct and harm done to victims, deterring offenders and other persons from committing offences, separating offenders from society where necessary, rehabilitating offenders, providing reparation for harm done to victims and promoting a sense of responsibility in offenders.

32As referenced in the submissions of the Crown, I am required to pay particular attention to the provisions of section 718.01, which directs me to give primary consideration to the objectives of denunciation and deterrence when imposing a sentence for the abuse of a person under the age of eighteen years.

33Another guiding principle of sentencing, as set out in s. 718.1, is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

34Other sentencing principles are set out in s. 718.2 which provides, among other things, that sentences be increased or reduced to account for any relevant aggravating or mitigating factors relating to the offence or the offender. That provision also provides for parity of sentencing in cases involving similar offenders for similar offences committed in similar circumstances and emphasises the importance of not depriving an offender of liberty where less restrictive measures would be appropriate.

35The recent decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 is the leading case on sentencing considerations for cases involving sexual offences against children. The Supreme Court stated that upward departure from prior precedents and sentencing ranges should occur for sexual offences against children because Parliament has increased the maximum sentences for these offences and because society’s understanding of the gravity and harmfulness of these offences has deepened.

36In R. v. Audet, 2020 ONSC 5039, at para. 34, Clyde Smith J. noted that the Supreme Court in Canada had suggested that a mid to upper single digit sentence is appropriate, even for a first offender convicted of a single incident of non-consensual sexual intercourse with a child, adding:

In my view, the words “mid-single digits” mean just that, the midpoint between one and nine, being five years.

Application of the Sentencing Principles

Application of the Sentencing Principles

37I start by considering the aggravating and mitigating factors in this case.

38In my view, the aggravating factors include:

1. The age of the victim, who was between seven to nine years old at the time;

2. The familial relationship between you and the victim, implying a relationship of trust albeit not what might be described as a “traditional” relationship of trust;

3. Intercourse was involved;

4. Your previous conviction for a sexual offence;

5. The fact that this incident occurred in the sanctity of the victim’s family home;

6. The extent of the emotional and psychological harm caused by your actions.

39Mitigating factors include:

1. Your comparatively young age at the time that the offence was committed;

2. The absence of any criminal convictions or involvement since the events giving rise to the current charges, in other words, during the last eight to ten years;

3. Your good employment record and work ethic;

4. The support of your mother and your wife.

40I want to make it clear that the fact that you have not admitted your guilt or expressed remorse towards the victim are not aggravating factors. Rather, they represent an absence of what would be additional mitigating factors.

41A nine-year-old child is almost totally dependant on her parents and on other adults. Your victim was, accordingly, extremely vulnerable.

42Furthermore, it is no longer necessary in every case to adduce medical evidence or witness accounts of the serious emotional and physical harm that can result from sexual offences involving children. In Friesen, at para. 79, the Supreme Court stated:

… courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm. The likelihood that these forms of potential harm will materialize of course varies depending on the circumstances of each case. However, the potential that these forms of harm will materialize is always present whenever there is physical interference of a sexual nature with a child and can be present even in sexual offences against children that do not require or involve physical interference.

43The Supreme Court went on to provide more specific recognition of the effects of sexual violence against children, stating, at para. 81:

Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim’s adult years. First, children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult as a result of the sexual violence. Second, children may be more prone to engage in sexual violence against children themselves when they reach adulthood (Woodward, at para. 72; D. (D.), at paras. 37-38). Third, children are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults. [references omitted]

44Some of those observations reflect Z.S.’s experience. There was a suicide attempt. She became withdrawn. She did not want to make disclosure because of the impact that she knew it would have on her family, which is, of course, your family as well. As already referenced, she described feeling like her body was not her own. And, without giving particulars, said that she did things with, and to people, that she now regrets doing and that it made her feel worse. Even when she saw a therapist, she felt unable to disclose what had happened to her because of the consequences for her family. All of this placed a tremendous burden on Z.S. No doubt this was reflected in the bad days related to negative memories and the affect on Z.S.’s self-worth, that C.S. has referred to in her victim impact statement.

45I would add that the power imbalance between children and adults is more pronounced the younger the child. Moreover, children who are victimised at a younger age will have to endure the consequential harm of sexual violence for a longer period of time than people victimised later in life: Friesen, at para. 134.

46As for the existence of a trust relationship, courts have recognised that such a relationship can exist outside of what might be termed “a traditional position of trust”. In R. v. M(K) 2017 ONSC 2690, a trust relationship was found to exist between the thirteen-year-old victim and a 45-year-old accused who was living with the complainant’s family. While not standing in a position of a father figure, he was providing some help to the complainant’s family and would, on occasion, assist on taking the children to school.

47You were Z.S.’s uncle. You were not an infrequent visitor to the [Family’s] house. Certainly, the spectrum of relationship of trust is relevant to determining the degree of harm. In Friesen, the Supreme Court held, at para. 126, that a child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender. As I noted at paragraph 7 of my decision, Z.S.’s parents “had no reason not to leave [Z.S.] and the defendant alone together”.

48Furthermore, as occurred in this case, the Supreme Court observed, at para. 127 of Friesen, that the presence of a trust relationship may inhibit children from reporting sexual violence. Although there is no evidence that Z.S. was threatened or that there was emotional manipulation in this case, she was keenly aware of the impact that disclosure would have on the family. The schism that has occurred in your family since that disclosure underscores how valid Z.S.’s concern was.

49The bottom line, as the Supreme Court states at para. 130 of Friesen is that:

… all other things being equal, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child.

50The defence referred me to the case of R. v. R.D., 2020 ONCA 23. In that case, the accused had been convicted of sexual interference, sexual assault and uttering threats to cause bodily harm to his younger sister. It was alleged that, over a period of eight years, the defendant had forced the complainant to perform oral sex and digitally penetrated her, eventually having intercourse with her, and threatening to hurt her if she told anyone. The abuse was said to have begun when the victim was nine years old and the defendant eighteen years old. The incidents occurred over the course of eight years.

51The defendant in that case was sentenced to three years in prison (thirty months for sexual interference; thirty months concurrent for sexual assault; and six months consecutive for uttering threats). Ms. Dostaler argues that on their face, the incidents giving rise to the charges against R.D. were far more serious than those we are dealing with today. However, the Court of Appeal declined to interfere with the sentence imposed by the trial judge, noting that the defendant had an intellectual disability and that, despite the accused and the victim being siblings, in the particular circumstances of the case, there was no caregiving or trust relationship. The trial judge in the R.D. case (reasons for sentence reported at 2017 ONSC 6375) noted that when the offences first occurred, the accused had been a young adult and that being the older brother presented him with the ongoing opportunity to commit the offences. However, the trial judge held that on the particular facts, he did not agree that this amounted to being in a position of trust or authority. He also noted that most of the precedents referred to by the Crown, who, as in the present case, requested the imposition of a six year term of imprisonment, involved long term sexual abuse by an offender who was in a “classic” position of trust (i.e.: father, step father). Significantly, having regard to what happened in this case, the trial judge in R.D. added that several of those earlier cases also involved sexual intercourse, which was not been proven in R.D.

52It would also appear from a review of the sentencing decision in R.D. that the accused had significant personal challenges. There was evidence that he was intellectually impaired and suffered from depression. One report said that his medical and psychiatric conditions would be significantly exacerbated by the stress of incarceration. Another report, from a psychiatrist, noted the presence of what he described as chronic disabling mental health issues: generalised anxiety disorder, major depressive disorder without psychotic features, panic disorder with agoraphobia, developmental intellectual disabilities (i.e.: learning, reading, writing disabilities). The accused was on multiple psychotropic medications and dealing with their side effects.

53While I would accept that, like the defendant in R.D., you were not in a “classic” position of trust, the familial relationship between you and your victim nevertheless facilitated the commission of the offence. It also had a significant impact on Z.S.’s non-disclosure of what had occurred for many years because, even at her young age, she understood the terrible impact that it would have on her family. Furthermore, unlike in R.D., you have a previous conviction for a sexual offence, and the offence you are now being sentenced for involved sexual intercourse.

54I would acknowledge that the family support that you have from your mother and your wife, as well as the apparent lack of any offending during the eight to ten years that have elapsed since the subject offence, do bode well for your prospects of rehabilitation and refraining from offending again in the future.

55Nevertheless, the circumstances of this case warrant a longer period of incarceration than that imposed in either R. v. Audet or R.D.

56Accordingly, given the facts and circumstances of this case, and the current state of the caselaw, and having particular regard to the guidance provided by the Supreme Court of Canada in the Friesen case, a sentence of five years is a fit and appropriate one. Anything less than that would fail to recognise the seriousness of the offence and the degree of harm that has been done by you to Z.S. A lesser sentence would also fail to give proper effect to the denunciation of the offence that has been committed.

57Mr. R.F., please stand. I am sentencing you to a term of imprisonment of five years.

58So far as an order of prohibition under s. 161 of the Criminal Code is concerned, while I will make an order under subparagraph (a.1) prohibiting you from being within two kilometres of any dwelling house where Z.S. or any member of her immediate family (her parents or siblings) reside, her place of education, place of employment, or any place where they are known to be, for a period of fifteen years, I decline to make any other order under s. 161.

59There will, however, be a lifetime SOIRA order, and an order under s. 743.21 of the Criminal Code, prohibiting direct or indirect contact with Z.S., [other names redacted] during the custodial period of your sentence.

60I also make the following further ancillary orders:

1. A ten year firearms prohibition pursuant to s. 109 of the Criminal Code; and

2. A DNA sample will be taken pursuant to s. 487.051 of the Criminal Code.

Graeme Mew J.

Handed down: 15 December 2020 (orally)