COURT FILE NO.: 1990/18
DATE: 20210609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
William James Epp
Defendant
David Rows, for the Crown
Ken Golish, for the Defendant
HEARD: November 10, 12, 13, 2020, January 11, March 17, 2021
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4(1) of the Criminal Code,
information that may identify the person described in this judgment as the
complainant may not be published, broadcasted or transmitted in any manner.
This judgment complies with this restriction so that it can be published.
desotti, j.
A. The Facts
[1] On March 17^th^, I heard submissions on sentencing after determining the guilt of the accused on January 11^th^, 2021. The matter was put over to April 23^rd^., 2021 at 2:00 PM for a determination of the sentence.
[2] The one count of sexual assault I found occurred as a result of a sexual assault on a 16 year old (M. T.) who attended his residence with her step-sister and her step-sister’s girlfriend and became grossly intoxicated and passed out on his couch just prior to the sexual assault.
[3] The following were findings of fact that affirmed the sexual assault:
The complainant was quite drunk and was either passed out on the accused’s couch or was at the least sleeping off the effects of her intoxication;
On two occasions previously, the accused had poked her breast and grabbed her breast;
M. T. indicated that the accused had invited her back to his residence to share in the second bottle of wine;
S. observed the hand of the accused close to the complainant and heard what she thought was a waist band snapping;
E. saw the complainant, M. T. lying on the couch naked from her waist down and as well observed the accused naked sitting at the end of the couch;
The complainant’s pants were on backwards when she returned home, and her panties were inside out and not on properly;
The complainant, M. T. experienced excruciating pain in her vagina when she tripped on the stairs at the Epp residence and as well when she tripped on the stairs at her residence. The complainant was also screaming out in pain at her residence such that her stepsister’s girlfriend called for an ambulance;
Spermatozoa were found in swabs taken from the complainant’s vagina and rectum. The DNA analysis revealed that the accused, William Epp and one other individual could not be excluded from these samples and that the likelihood of these samples originating from two other individuals matching these profiles was 110 and 120 trillion;
Although there were spermatozoa found in the vagina cavity it was insufficient for analysis.
B. The Criminal Record
[4] The accused has a criminal record as follows:
1983-10-04
Powassan ONT
Mischief Endangering Life
Sec 387(2) CC
15 Mos. Probation
1985-01-08
Powassan ONT
Mischief Sec 388(1) CC
Susp Sent & Probation 10 Mos.
1988-06-07
Powassan ONT
(1) Assault CBH
Sec 245.1(1)(b) CC
(2) Assault Sec 245 CC
(OPP Powassan 091 87)
(102) 90 days intermittently on each chg conc
1991-05-02
Parry Sound ONT
(1) Aggravated Sexual Assault
Sec 273(1) CC
(2) Disguise with Intent
Sec 351(2) CC
(Powassan OPP 074-89)
(1) 6 yrs & Prohibited from poss of firearms, ammunition or explosive substance for 5 yrs
(2) 1 yr conc
1995-05-08
Statutory Release
2005-07-18
Driving With Mor than 80 mgs of Alcohol in blood
Sec 253(b)
(Perth County OPP 141-05)
$700 & Proh Dri 1 Year
[5] Obviously, the most serious offence is the aggravated sexual assault for which the accused received a sentence of 6 years in the penitentiary.
[6] The Crown asserts that the penalty for this sexual assault should thus start at this penitentiary level and is seeking a penalty of 8 years, with the range as submitted by the Crown to be 8 to 10 years.
[7] Counsel for the accused submits that either 2 years less a day plus 3 years’ probation would more appropriately reflect the principles of denunciation and deterrence.
C. The Impact on the Victim
[8] The victim has undergone severe emotional and psychological trauma since this sexual assault. Nevertheless, I have attempted to avoid putting any matters of concern that could be attributed to other circumstances unrelated to the sexual assault in the complainant’s life. The victim impact statement is most telling with respect to this trauma (see SS 02). Without referring to all of the concerns as reflected in this statement, I would note the following:
A) Because the complainant’s stepmother believed she was lying, her relationship deteriorated such that she was booted from her home (I note that the fact that she was drinking alcohol while underage may also have been a factor);
B) The complainant thus had a difficult time in seeing her siblings and wasn’t allowed initially to attend holidays with her family;
C) Her four year relationship with her boyfriend ended;
D) The complainant had severe trust issues around men;
E) She had a difficult time in hugging her father and was experiencing migraine headaches and had problems eating;
F) She became sleep deprived and had terrible nightmares;
G) Her grades in school slipped from A’s and B’s to C’s;
H) She graduated because of school difficulties not with her class in 2019 but with a different class in 2020;
I) She had to get a job at 17 to support herself and struggled with finances and moved to different residences because of her displacement;
J) She began taking therapy through the CAS;
K) She lost her job in Petrolia and had to survive through the use of the food bank;
L) She attempted suicide on one occasion;
M) The numerous court appearances and testifying caused her trauma as did the preparation of the victim impact statement;
N) She indicated that she experienced years of loathing, low self-esteem and eventually was diagnosed with Dissociative Identity Disorder;
O) The complainant was hospitalized for 3 weeks and prescribed a new medication for severe anxiety and depression.
D. Legal Principles
[9] Importantly, the decision of the Supreme Court of Canada in R. v. Friesen encapsulates the principles that should be considered when dealing with a conviction of sexual assault. I confirm, as submitted to me by Crown counsel, that the definition of child as indicated in footnote #47 is a person under 18 years. The age of a child under 18 years of age is also referenced in s. 718.01.
[10] The fact that this is a one count indictment and the sexual assault incident occurred only on one occasion does not negate the seriousness of this sexual assault on this child. As the decision in Friesen points out, the failure to identify with exactness the nature of the sexual assault, which makes it impossible to determine if intercourse took place, is less significant than the finding that a sexual assault took place.
[11] The fact that the sexual assault was occasioned on a 16 year old child makes prior precedents less relevant as the Criminal Code has been changed to increase penalties for sexual assaults on children.
[12] Furthermore, s. 718.01 has been enacted that states:
When a court imposes a sentence for an offence that involved the abuse of children under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence.
[13] The following factors should also be considered as found in a summary at the bottom of page 5 of the judgment in Friesen:
The higher the offender’s risk to reoffend the more the court need to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm.
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.
Sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender’s increased degree of responsibility.
The age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthiness of the offender is enhanced in such case.
Defining a sentence range based on the specific type of sexual activity at issue poses several dangers. In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is a correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of the sexual violence in cases where the degree of physical interference is less pronounced; and understanding the degree of physical interference factor in terms of a hierarchy of physical acts.
A child’s participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child’s non-resistance should not be equated to “de facto consent”; a victim’s participation should not distract the court from the harm that the victim suffers as a result of sexual violence; a breach of trust or grooming that led to the victim’s participation is an aggravating factor; and adults always have a responsibility to refrain from engaging in sexual violence to children.
[14] Predictably, much of the discussion in Friesen is reflected in the present circumstances of the victim/complainant before me. The complainant through her victim impact statement indicated that she experienced emotion concerns and difficulties and as well psychological trauma as a result of this sexual assault.
[15] In Friesen, at paragraph 57 the court stated that the likely result of the sexual assault would be “shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that people could and would abuse her”.
[16] At paragraph 59, much of what is stated there was the experience of the victim, M. T. “Even when the parent or caregiver is not the perpetrator, the sexual violence can still tear apart families or render them dysfunctional … For instance, siblings and parents can reject victims of sexual violence because they blame them for their own victimization. Victims may also lose trust in the ability of the family member to protect them and may withdraw from their family”.
[17] At paragraph 80 Justice Wagner and Justice Howe in reference to R. v. D. (D.) indicate and recognize certain forms of harm that manifest themselves as a result of a child who has been sexually assaulted as follows:
…Guilty feelings and shame, a lack of trust particularly with significant others, low self-esteem, an inability to concentrate in school and a sudden drop in school performance; an extraordinary fear of males, running away from home; sleep disturbances nightmares …
[18] The fact that Parliament has increased maximum sentences for sexual assault on children reflect society’s changed views on these offences.
[19] In R. v. Woodward, a 2011 decision of the Court of Appeal of Ontario, with the decision of the court delivered by Justice Moldaver now of the Supreme Court of Canada, also made it clear that a one instance sexual assault on a child, as was the case in Woodward, still warranted a 6 and ½ year global sentence.
[20] Clearly, as stated in Friesen and as stated in R. v. D. S. at paragraph 40, sentences with respect to sexual assaults against children “must increase”. The accused in that case was sentenced to 9 years’ incarceration.
[21] Importantly, in reviewing the aggravating and mitigation factors in D. S. at paragraphs 81 and 82, they noted the following:
[81] In my view the aggravating factors in this case are:
i. The position of trust held by the accused by virtue of his relationship with the complainant, and the abuse of trust;
ii. The complainant was then 14 years of age and in a vulnerable position trying to fall asleep;
iii. The sexual intercourse was brutally violent and unprotected;
iv. The sexual abuse occurred in the house of her mother and her brothers while they were sleeping nearby;
v. The violent nature of the sexual contact caused physical injuries to the genitals and anus of the complainant;
vi. The death threats made against the family of the complainant afterwards;
vii. The offence had a significant impact on the physical and psychological health of the complainant and her loss of family ties will have an ongoing long-term impact on her life; and
viii. The criminal record of the accused.
[82] The mitigating factors in this case are the accused’s:
i. Ongoing support offered to the accused by his mother and other family members that will assist in his rehabilitation; and
ii. Lower level of moral blameworthiness arising from his unstable upbringing and other Gladue considerations.
[22] In this case, in addition to already serving a penitentiary term of 6 years for aggravated sexual assault, the accused does have a record for assault. While the accused is entitled to present a defence, clearly the complainant and other witnesses had to testify at this trial where frankly the only issue was how was the complainant sexually assaulted?
[23] I have reviewed the cases presented by counsel for the accused and do not find them helpful. The factual underpinnings are not in accord with the facts before me in this case.
[24] As was case in D. S., the following are aggravating factors:
The accused has already served a penitentiary term of 6 years for aggravated sexual assault;
The victim was 16 years of age and the accused was an adult born Nov. 12^th^, 1964 (56 years old);
The victim sustained some injury to her vagina and was sent to the hospital in an ambulance;
The complainant/victim experienced subsequent psychological trauma, emotional distress and real ongoing difficulties that require counselling and these stresses and anxieties are still being experienced by the victim;
The accused has not expressed any remorse;
There are concerns reflected in the pre-sentence report with respect to ongoing problems with this accused and his conduct with other adult females.
[25] Frankly, there is very little that one can say with respect to mitigating factors. The fact that the accused does have some support from his former partner is of some benefit, but this former partner had no idea what criminal troubles were before the accused.
[26] In the result, I am satisfied that a significant penitentiary term is warranted. The accused is thus sentenced to 7 years incarceration. In light of the pre-sentence report, I do not recommend any counselling but if consented to I would strongly recommend a psychological assessment as this is the second serious sexual assault occasioned by this accused.
[27] The following are the ancillary orders:
Since this is a primary designated offence, a DNA data bank sample is ordered;
Pursuant to s. 109 of the Criminal Code there is a lifetime ban on the possession of firearms and ammunition;
The accused pursuant to s. 490.013(2.1) shall be placed on the Sexual Offence Register for life;
Pursuant to s. 743.21, while the accused is in custody, there shall not be any direct or any indirect communication with the complainant, M. T.
The Honourable Mr. Justice John A. Desotti
Released: June 9, 2021
COURT FILE NO.: 1990/18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
William James Epp
REASONS FOR JUDGMENT
Desotti, J.
SCJ
Released: June 9, 2021