DECISION ON SENTENCING

COURT FILE NO.: CR-1056/19

DATE: 2021-04-08

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Griffin

BEFORE: The Honourable Madam Justice Patricia C. Hennessy

COUNSEL: J. Mongeau, for the Crown

M. Venturi, for the Accused

HEARD: March 31, 2021

Publication Ban Removed

[1] The complainant requested that the publication ban be lifted. I spoke directly to the complainant on the record and explained that the purpose of the ban was to protect and respect her privacy and dignity. I suggested that she consider the future consequences of lifting the ban. The complainant explained her motivation for lifting the publication ban and was resolute in her wish to lift it. I am satisfied that Ms. Armstrong has considered the matter and understands the consequences of lifting the publication ban. On her request, I order the removal of the publication ban made pursuant to s.486.4 of the Criminal Code. Ms. Deanna Armstrong will now be referred to by her name.

Comments in the Pre-Sentence Report

[2] The author of the pre-sentence report repeated certain points made by the investigating officer in his occurrence report. I agree with defence counsel that only those facts found at trial could be and would be considered on sentencing. Similarly, where the author of the report came to certain conclusions about the circumstances of the offence that were not findings at trial, these conclusions will not form part of my considerations on sentencing.

Counts for the Purpose of Sentencing

[3] I found Mr. Griffin guilty of sexual assault contrary to s. 271 of the Criminal Code and of sexual exploitation contrary to s. 153(1)(a) of the Criminal Code. I also found him guilty of uttering a threat contrary to s. 264.1(1)(a) of the Criminal Code. In this case, both the sexual assault and the sexual exploitation are based on the same facts and stem from the same incident. There is a legal nexus between these offences: R. v. Kineapple (1974), 1974 14 (SCC), [1975] 1 S.C.R. 729 (S.C.C.). Between the two, the sexual assault is considered the less serious offence. Therefore, on request of the Crown, the charge of sexual assault will be stayed. I will proceed with sentencing on the basis of the convictions on sexual exploitation and threat.

Submissions on Conviction of Sexual Exploitation

[4] The Crown asked the court to sentence Mr. Griffin to a period of seven years in the penitentiary on the conviction of sexual exploitation.

[5] The defence urged the court to consider a sentence in the range of 42-48 months on this conviction.

Sentence

[6] For the reasons which follow, I now sentence Mr. Griffin to a period of six years in the penitentiary for the sexual exploitation and one year concurrent on the threat. Certain terms and ancillary orders will also be made at the end of those reasons.

Reasons

[7] Mr. Griffin was convicted of sexual exploitation of Deanna Armstrong, who was 16 years old at the time of the offence. The sexual incident between them also included a threat of harm if Ms. Armstrong disclosed the sexual activity. Mr. Griffin was 34 years old at the time. The facts are well set out in the decision on the conviction which was delivered orally in court on December 11, 2020.

Facts

[8] For the purposes of sentencing, the following facts as found are relevant:

a. Mr. Griffin had been the intimate partner of Ms. Armstrong’s mother and lived with the family during the time Ms. Armstrong was 10-14 years old. He was the father of her younger brother who was very special to her. Ms. Armstrong considered Mr. Griffin as a person of trust and authority and regarded him as a father figure.

b. For some time prior to the offence, Ms. Armstrong was living primarily on the street, deeply emmeshed in street and drug culture. In the few months prior to the offence, Ms. Armstrong reached out to Mr. Griffin. They communicated via text messages and phone calls during this time.

c. After Mr. Griffin re-connected with Ms. Armstrong, he offered to help her navigate away from some of her problems and her lifestyle.

d. During this period, while Mr. Griffin was advising and supporting Ms. Armstrong, he invited her to his family cottage situated on an Island in Georgian Bay for a few days of respite away from her problems. On the first night at the cottage, Mr. Griffin had unprotected sex with Ms. Armstrong after a night of consuming cocaine.

e. The Island was only accessible by boat. Even had Ms. Armstrong managed to get from the Island to the marina on the mainland, neither she nor Mr. Griffin had a vehicle or a ride back to the city until three days after the assault.

f. At the time of the offence, Mr. Griffin was on probation following a conviction of assault on Ms. Armstrong’s mother.

Mr. Griffin’s Circumstances

[9] Mr. Griffin is a certified boiler maker who has been employed in that trade for a number of years. He often works away from home for extended periods. He grew up in a stable home without violence or addictions. He does not report a history of any mental health or addiction issues.

[10] Mr. Griffin has been in a protracted dispute with his former partner, Ms. Armstrong’s mother, over the care and responsibility for their now seven-year-old son. The CAS has been involved for a number of years. At the time of the incident, the son spent time with both parents. The son is now under Guardianship of Mr. Griffin’s mother. Mr. Griffin has also been residing with his mother (when he is not away for work) since these charges were laid.

[11] Mr. Griffin is an involved father and enjoys the support of friends and his family. In 2017, after a few years of no contact, Mr. Griffin re-connected with Ms. Armstrong and provided her with advice and encouragement when she was in desperate times.

[12] Mr. Griffin has been on bail for three years, during which time, he was permitted to work away from home.

Aggravating Factors

[13] There are several aggravating factors to consider for the purpose of determining a fit and appropriate sentence. They include the following:

a. The extreme vulnerability of Ms. Armstrong at the time of the offence, due to her intense drug use, described as speed binges, her homelessness, her youth, and the absence of any stable adult in her life. In addition, shortly before the incident Ms. Armstrong had a dangerous encounter with men related to the drug trade and she believed she was still at high risk of further violence.

b. The abuse of trust. At the time of the offence, Mr. Griffin was fully aware of the chaos of Ms. Armstrong’s life. She had clearly pleaded her need for help, security, and advice. She was without any resources or support. She was not in school; she had no income and she had severe addiction issues. She trusted that Mr. Griffin had her best interests at heart when he offered to help her by giving her advice and a few days to get away from the chaos of her life in safety and security. At the time of the offence, Ms. Armstrong should likely have been in the care of a state institution. The court does not know the circumstances of why she was not.

c. The isolation of the island. Ms. Armstrong could not leave the island on her own. She was dependent upon Mr. Griffin to bring her by boat to the mainland. Getting to the mainland, however, was only half of the way home. Ms. Armstrong also had to be certain that once she arrived at the Marina, that there would be some vehicle and/or person to get her home or to get her to safety. She communicated with a number of people via her cell phone while she was at the cottage, in attempts to arrange a ride home.

d. Threat. During the sex act, Mr. Griffin threatened Ms. Armstrong that if she told anyone about what happened at the cottage that she would be in danger. Ms. Armstrong believed these threats to be real.

e. Mr. Griffin did not wear a condom during sex with Ms. Armstrong.

f. Mr. Griffin had a criminal record and was on probation on the usual terms following a conviction of violence on Ms. Armstrong’s mother.

The Decision in R. v. Friesen

[14] In the recent decision of R. v. Friesen, 2020 SCC 9 [Friesen], the Supreme Court of Canada expressed that sentences in cases such as this one must reflect the contemporary understanding of sexual offences against children and young persons. First, there is a general community view that sexual offences against children are inherently morally reprehensible. Second, the court must take into consideration the profound harm that these offenses cause to the personal autonomy, bodily integrity, sexual integrity, and dignity of the victims. When considering the harm to the victim the court must focus on the actual harm and the future potential harm. As the court said at para. 114, “…mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.”

[15] Ms. Armstrong was a 16-year-old “street-kid”, living on the extreme margins of society, desperately seeking a way out of her problems from a trustworthy adult whom she regarded as a father figure. These are the precise circumstances which call for the stricter penalties outlined in Friesen in order to meet the goals of denunciation and deterrence. As the court said at para. 129:

“The abuse of a position of trust also exploits children’s particular vulnerability to trusted adults, which is especially morally blameworthy.”

[16] The court concluded that offenders who abuse positions of trust should receive lengthier sentences than offenders who are strangers to the child.

Assessment of the Positions of the Crown and Defence

[17] Before considering the cases submitted by counsel, I note two features of the case before me, that have not yet been discussed. There were no allegations or findings of additional violence, although I underscore the fact that this is not a mitigating factor, it is simply the absence of a further aggravating factor.

[18] I further note that there was no plea or expression of remorse. This is simply the absence of a mitigating factor. It is not an aggravating factor.

A. The Defence Position on Sentencing

[19] In support of their proposed sentence range of 42-48 months in custody, the defence relied on the following cases: R. v. D.C., 2021 ONSC 475 [D.C.], R. v. SADF, 2021 MBCA 22 [SADF], R. v. Okemaysim, 2021 SKCA 33 [Okemaysim], R. v. JRG, 2020 ONSC 7074 [JRG], R. v. Audet, 2020 ONSC 5039 [Audet], R. v. B.D., 2017 ONSC 5526 [B.D.] and R. v. DiMichele, 2020 ONCA 48 [DiMichele].

[20] Those cases which do not involve a breach of trust are not helpful precedents. The breach of trust in this case is a significant aggravating feature.

[21] In SADF, the Manitoba Court of Appeal determined the appropriate sentencing range for sexual assault against the accused’s daughter and step-daughter, ages six and eight, was four years for each. The accused pled guilty. In this case, there was some adjustment to account for the totality principle given there were two separate incidents and two victims. Ultimately, the Court of Appeal considered the totality principle and sentenced the accused to six years: SADF, at para. 53.

[22] In JRG, after a guilty plea, the Ontario Superior Court of Justice sentenced the offender, who was 19 years old at the time of the sexual assault on a 14-year-old, to 46 months.

[23] In B.D., after a guilty plea, which pre -dated Friesen, the offender was convicted of sexual assault on his 14-year-old daughter who became pregnant and bore his child. He was sentenced to 42 months.

[24] In these three cases, the plea was a mitigating factor. Further, in each of these cases, the offenders had serious negative personal circumstances and difficult backgrounds, which were also taken into account for the determination of sentencing. The absence of a plea and Mr. Griffin’s positive background distinguish his circumstances from the decisions noted above.

[25] In DiMichele, the Ontario Court of Appeal sentenced the offender to 40 months incarceration where the victim was 15 years old and there was a relationship of trust between the offender and the victim. The court found that the trust relationship was at the low end of the scale. The court noted that the offender took advantage of a situation when the victim was impaired.

[26] The defence also submitted that any penitentiary sentence will have an enormous impact on Mr. Griffin as he has not had any custodial sentence, other than a short conditional sentence in the past.

B. The Crown Position on Sentencing

[27] The Crown relied on the following cases in support of their submission that the circumstances of this offence and this offender call of a seven year sentence: R. v. Friesen, 2020 SCC 9 [Friesen], R. v. R, 2020 ONSC 7411, R. v. E.S., 2018 ONSC 4808 [E.S.], R. v. Al-Shimmary, 2017 ONCA 122 [Al-Shimmary].

[28] R. v. R. is the most recent case relied upon by the Crown. In that case, Bloom J. of the Ontario Court of Justice sentenced the offender to 5.5 years for sexual offences against his partner’s nine-year-old daughter.

[29] In E.S., Trimble J. of the Ontario Superior Court of Justice sentenced the offender to eight years for three incidents of sexual offences against the eight and nine-year-old daughters of his girlfriend.

[30] In Al-Shimmary, the Ontario Court of Appeal reviewed the 30-month sentence of the offender for sexual offences against an 11-year-old girl. The offender was 25 years old at the time. On appeal, the court sentenced the offender to four years, indicating that it would have gone higher had the Crown not limited its request to four years: Al-Shimmary, at para. 13.

[31] The cases submitted by the defence have significant distinguishable features from the facts before the court in this case. The courts in B.D., SADF and JGR imposed sentences that are at the lower end of the mid-single digit range called for in Friesen. Those sentencing decisions were based in part on significant mitigating factors that are absent here.

[32] On the other hand, courts in this province have imposed or noted that they would impose higher sentences than the range suggested by defense counsel in cases involving sexual offences against children by offenders in a position of trust where the mitigating factors of a plea and serious negative personal background are absent.

[33] The cases submitted by the Crown share more similar features to the facts before me than the cases submitted by the defence.

Conclusion

[34] At her darkest time, Ms. Armstrong turned to Mr. Griffin who was well known to her from his time within her family unit. She accepted his offer of a peaceful few days at the cottage, with complete trust. She had been to this Island when Mr. Griffin was part of her family.

[35] By virtue of her age, Ms. Armstrong was considered a “young person” for the purposes of sexual exploitation under s. 153 of the Criminal Code.

[36] Ms. Armstrong was at that most vulnerable stage, a young teenage girl. She was vulnerable to exploitation by Mr. Griffin by virtue of her youth, size, addiction, poverty and isolation. Mr. Griffin used his position of trust or authority to exploit her for a sexual purpose.

[37] She was powerless in the circumstances in which she found herself.

[38] To arrive at a just and fit sentence, I consider the specific facts of this case. The sexual assault occurred in a single incident. It included full and unprotected sexual intercourse. The goal of sentencing in sexual exploitation cases is denunciation and deterrence. That can be best achieved with a sentence of significant penitentiary time.

[39] Ms. Armstrong filed a victim impact statement. She is in a very poor state. She is 20 years old. She has not completed high school. She is neither employed nor in school. She describes serious emotional concerns. Ms. Armstrong included in her impact statement a poem she wrote, an excerpt of which I include with her consent:

“You can tell at the time he wasn’t thinking, did he have sober thoughts while he was never blinking?

I wanted to see my little brother not the coke bling, he wanted a future for us to be the same thing.

Like does his brain not get a ring?

Got me high and kept me up for days waiting for me to get dazed. ‘I’ve known you since a kid.’ Something you must have did….

Is planned ‘she’ll love me when I’m not her mommy’s man.’

I can tell you that this is a sick plan…..

I guess for turning on my mama’s back trying to see my baby brother is why I’m getting all the bother.

I really don’t find it fair, that once my mind is finally there, you gotta go and do a big scare.

The man’s negative vibes now forever have to lie in my soul and let it turn cold.

My love will probably never unfold, cuz since a kid love is the lie always been told.”

[40] It has now been four years since the event. Ms. Armstrong recognizes that the consequences of this exploitation will endure for some time.

[41] Given the strong language of the Supreme Court of Canada in Friesen, directing sentencing courts to adjust their lens to focus on the significant harm caused by and the moral blameworthiness of the offenders in cases of sexual offences against young persons, I am of the view that a sentence of six years is the fit and appropriate sentence.

COVID Issues

[42] I have been advised that a notice of appeal has been filed and I have been asked to schedule this sentencing decision to permit the necessary filing to occur to minimize any custodial time pending appeal. Mr. Griffin is not presently in custody. It is impossible to predict the state of the pandemic at any time in the future that Mr. Griffin might enter into custody. For this reason, I have not taken into account any submissions on this issue.

Terms and Ancillary Orders

[43] There will be an order under s. 743.21 prohibiting communication with Ms. Armstrong while Mr. Griffin is in custody.

[44] There will also be the following orders:

a. s. 487.04 collection of DNA;

b. s. 109 10-year weapons ban;

c. SOIRA 20 years; and

d. Christopher’s Law Registration, for life.

The Honourable Madam Justice Patricia C. Hennessy

Date: April 8, 2021