ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-10000444

DATE: 20210602

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LATIFOU FASSASSI

Emma Evans, for the Crown

Joanne Griffiths, for Latifou Fassassi

HEARD: April 8, 2021

Reasons for SENTENCE

P.J. Monahan J.

I. Overview

[1] On December 17, 2020, after a trial in which I sat without a jury, I found Latifou Fassassi guilty of two counts of sexual assault, contrary to s. 271 of the Criminal Code, and two counts of sexual interference (touching the body of a person under the age of 16 years for a sexual purpose), contrary to s. 151 of the Criminal Code. The offences were committed during the summer of 2018 in separate incidents involving two victims who were 15 years old at the time (the “Victims” and, respectively, “Victim One” and “Victim Two”).

[2] The Crown is agreed that the convictions for sexual assault should be stayed in accordance with the principle in Kienapple. Accordingly, Mr. Fassassi is before the court today for sentencing only on the two counts of sexual interference.

Circumstances of the Offenses

a. Victim One

[3] In the spring and summer of 2018, Victim One, who was 15 years old and just finishing grade 9, was living with her mother. However, after school finished in June that year, she moved in with her older sister KB for about a month.

[4] KB was then living in a one-bedroom apartment in downtown Toronto. Various other friends of KB’s, including Mr. Fassassi, would frequently sleep over at her apartment that summer. KB would sleep in her bedroom, while others staying over for the night, including Victim One and Mr. Fassassi, would sleep in the living room.

[5] One night shortly after Victim One began staying at KB’s apartment, she was awakened by someone touching her breasts under her shirt and bra. She opened her eyes and saw that it was Mr. Fassassi. He told her to be quiet so as not to wake the others who were asleep in the living room. In addition to touching her breasts, Mr. Fassassi reached inside Victim One’s pants and touched her vagina.

[6] Following this initial assault, on virtually every night Victim One spent at KB’s apartment over the next month Mr. Fassassi would wake her up and sexually assault her. He would frequently force her to perform fellatio on him, usually ejaculating onto a blue blanket that he would later take with him to his workplace to clean. He forced her to have sexual intercourse on three separate occasions, twice on the living room couch and once in the bathroom. Victim One described the manner in which the various sexual assaults occurred in some detail.

[7] Victim One explained that she never told anyone what was happening because she was afraid of Mr. Fassassi; she had seen him hit her sister KB in the face on one occasion. Mr. Fassassi also threatened to report Victim One to her mother because she was using her brother’s cell phone against her mother’s wishes. One night, when Victim One was refusing to have sex with Mr. Fassassi, he woke KB up and complained that Victim One was “giving him attitude”.

[8] Victim One returned to her mother’s home sometime in July 2018. Thereafter, she refused to sleep over at her sister’s while Mr. Fassassi was staying there. The last time she saw Mr. Fassassi was during the Labour Day weekend when she visited KB’s apartment during the day. Mr. Fassassi slapped her buttocks and asked her to stay overnight, but she refused.

b. Victim Two

[9] In August 2018, Victim Two, a longtime friend of Victim One who lived outside of the Greater Toronto Area, came to visit Victim One for a few weeks. Victim Two was 15 years old and had just completed Grade 10 at her local high school.

[10] While in Toronto that August, Victim Two primarily stayed at Victim One’s house with Victim One’s mother. However, during the last week of her visit in late August, Victim Two decided to spend a couple of nights at the apartment of KB. Mr. Fassassi was still staying at KB’s at that time, although Victim One refused to sleep over at KB’s and remained at her mother’s house.

[11] On the first night Victim Two stayed at KB’s, nothing unusual happened. However, on the second night, after she fell asleep on a sofa in the living room, Victim Two was awakened by someone touching her breasts under her shirt and bra. She opened her eyes and saw that it was Mr. Fassassi. He told her that he was sorry for waking her up like that.

[12] Victim Two got up from the sofa, walked out onto the apartment balcony, and sat down on a chair, looking at her phone. Mr. Fassassi followed her onto the balcony and asked her if she was tired. She said she was. Mr. Fassassi brought her back inside and told her to lay down on the sofa. He took off her glasses and put her phone down.

[13] Mr. Fassassi then had a conversation with someone on his cell phone for a few minutes. KB was asleep in her bedroom with two younger children who were sleeping over that night and her bedroom door was closed.

[14] After Mr. Fassassi finished this telephone call, he came over to the couch where Victim Two was lying and resumed touching her breasts. He also began touching her pants in the area of her vagina. After a few moments, he told her to reach inside her pants and touch herself. She was scared and complied. When she removed her hand, he put his hand in her pants and began touching her vagina. He then took his penis out of his pants and forced her to perform fellatio. Eventually he ejaculated in her mouth.

[15] A few moments later, KB came out of her bedroom with the two young children who were spending the night. Mr. Fassassi quickly stood up and went out onto the balcony. KB and the two children went out onto the balcony with him. Victim Two said she felt violated but she stayed on the couch and attempted to go back to sleep. After a few moments, Mr. Fassassi came back in, grabbed one of her breasts, and said see you tomorrow. He then left the apartment.

[16] The Victims separately reported the sexual assaults to their respective mothers in late September 2018. Each was taken by her mother to the police to provide a videotaped statement describing what had occurred. In early October 2018, Mr. Fassassi turned himself in to police and was charged.

Circumstances of Mr. Fassassi

[17] A presentence report (PSR) was prepared in respect of Mr. Fassassi which provides information regarding his background and circumstances.

[18] Mr. Fassassi is 35 years old. He was born in the Republic of Benin and, for the first 18 years of his life, he and his older sister were raised there by his grandmother. Mr. Fassassi reports that he and his sister were raised in an environment free from abuse and neglect and he was provided with the necessities of life. Following completion of high school in Benin, he was sponsored by his father and immigrated to Canada, becoming a permanent resident on September 29, 2004.

[19] Following his arrival in Canada, he was enrolled in ESL classes. He also completed a trades training program at an adult school operated by the Toronto District School Board, from which he graduated in 2007. Since that time, Mr. Fassassi has regularly been employed, mainly as a general labourer. He has also worked as a cook, as a manager at a nightclub, and as a maintenance worker at a storage company. Most recently, he has been employed as a cleaner, earning approximately $1800 per month. (Mr. Fassassi has been on bail since shortly after being charged with these offenses in October 2018.)

[20] While in Canada, he has fathered two children with a former partner, TS. The two children, who are currently 10 and five years old, reside with TS. He has regular scheduled parenting time with the children and pays monthly child support to TS.

[21] Mr. Fassassi reported that he has no issues with alcohol. He also denies ever having had any issues with illicit narcotics.

[22] Mr. Fassassi has a limited, dated and unrelated criminal record, consisting of 2008 and 2010 convictions for failure to comply with the terms of a recognizance.

[23] The PSR indicates that Mr. Fassassi has continued to maintain his innocence in relation to the offenses before the court. The author of the PSR does not express any opinion with respect to Mr. Fassassi’s rehabilitative potential or his likelihood of reoffending.

Victim Impact Statements

[24] Both of the Victims provided Victim Impact Statements (VIS) outlining the harm they had suffered as a result of these offenses. The VIS were filed as exhibits and read into the record by the Crown.

[25] Victim One indicates that following the offenses, she was unable to continue living at home because of her anger and upset and had to go into care with the Children’s Aid Society. Since then, she has resided in a number of group homes and reports that, due to the anger she has because of what happened to her, she has broken down every home she has lived in. She has also isolated herself and does not talk to many friends anymore because she does not easily trust anyone.

[26] Victim One stopped attending school because was constantly thinking about what happened to her and could not focus on her school work. She has been constantly sad and angry and has had to engage numerous mental health supports. She has also been hospitalized due to self-harm. She worries that Mr. Fassassi will find her and hurt her. She also fears that he might hurt her siblings and her mother.

[27] Victim One’s mother, HB, also provided a VIS. HB states that since the offences, Victim One has lost all control over her emotions. Victim One could no longer remain at home as she felt haunted there by thoughts of Mr. Fassassi. HB reports that Victim One has not stabilized since the abuse took place and that she cannot get through the day without having a breakdown. Victim One has constant nightmares and will call her mother in the middle of the night upset. HB’s relationship with her daughter has been ruined and Victim One also has had a hard time keeping friends. HB reports that Victim One has engaged in self-harm and has threatened to overdose on pills. HB remains extremely concerned over Victim One’s mental health and whether she can recover from this abuse.

[28] HB further indicates that she is concerned for her own safety as well as that of her children. HB is worried about encountering Mr. Fassassi on the street and the possibility that he might physically harm her. She also worries about the fact that Mr. Fassassi’s children attend the same school as her youngest child, and he might show up there unexpectedly.

[29] In her VIS, Victim Two indicates that following the abuse, she could barely continue in school. She had trouble waking up in the morning and got into fights at school which resulted in her being suspended for 20 days. Although she graduated from high school, she has not worked since then, as she has no motivation to do anything with her life. Victim Two is also fearful of Mr. Fassassi finding her.

[30] Victim Two does not like talking to anyone new, especially adult men, and does not like being touched. Victim Two does not talk to her mother as much as she used to, has trouble expressing her feelings, and is also worried about her mother’s safety.

[31] Victim Two’s mother, CB, states that after suffering this abuse, her daughter could not sleep and was having nightmares. She closed herself off, stayed in the house and did not have much contact with friends. Her daughter also got into trouble at school and was suspended.

[32] CB says that following the offence she feels she has lost her relationship with her daughter. Victim Two was unable to talk to her mother about what had happened to her because of the upcoming court case. Victim Two also began cutting herself and engaging in substance abuse to numb the pain. She was depressed and would not come out of her room. She also would not let people touch her or hug her, especially men.

Victim Impact Statements

[33] All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[^1] A proportionate or just sentence must have one or more of the following objectives:

i. to denounce unlawful conduct and the harm done to victims or the community that is caused by unlawful conduct;

ii. to deter the offender and others from committing offences;

iii. to separate offenders from society, where necessary;

iv. to assist in the rehabilitation of offenders;

v. to provide reparations for harm done to victims or the community; and

vi. to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.[^2]

[34] While all of these objectives are relevant in any sentencing decision, where a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 years (which includes the offence of sexual interference), Parliament has mandated that courts should give primary consideration to the objectives of denunciation and deterrence of such conduct.[^3] Parliament has also directed that where a court sentences an accused at the same time for sexual offence committed against more than one child, the sentences shall be served consecutively.[^4]

[35] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. The aggravating circumstances identified in s. 718.2 include evidence that the offender, in committing the offence, abused a person under the age of 18 years; evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[36] In imposing a sentence, the court shall also take into consideration the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences, committed in similar circumstances (the “parity principle”); the principle that, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (the “totality principle”); and the principle that courts should exercise restraint in imposing imprisonment (the “restraint principle”).

[37] In its recent decision in Friesen, the Supreme Court of Canada undertook a comprehensive reassessment of the sentencing principles applicable to sexual offences against children. In the Court’s view, this reassessment was necessary in order to bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children.

[38] The legislative scheme of sexual offences against children in the Criminal Code is intended to protect the personal autonomy, bodily integrity, sexual integrity, dignity and equality of children. In this context, the proper application of the proportionality principle requires courts to focus their attention on the inherent wrongfulness of the sexual violation of children, as well as the actual and potential harm to children that inevitably results. It is inherently exploitative for an adult to apply physical force of a sexual nature to a child since it involves treating children not as persons with equal dignity but, instead, as sexual objects to be used by adults. The resulting harm can be so profound that children are not only robbed of their youth and innocence but also haunted by the abuse as adults.

[39] In Friesen, the Court placed particular emphasis on the fact that Parliament has in recent years repeatedly increased sentences for sexual offences against children. Based on this legislative guidance, as well as the need to condemn the inherent wrongfulness of the conduct and its impact on child victims, upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence. Moreover, sexual offenses against children should generally be punished more severely than sexual offences against adults. Accordingly, mid-single digit penitentiary terms for sexual offences against children are normal, and upper-single-digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

[40] In Friesen, the Court directed sentencing judges to consider the actual and potential harm that a specific victim has experienced as a key determinant of the gravity of the offence. The Court also highlighted certain aggravating factors that are of particular significance, including an offender’s likelihood to reoffend, the abuse of a position of trust or authority, the duration and frequency of sexual violence, the age of the victim and the degree of physical interference.

Positions of the Parties

[41] The Crown seeks a global sentence of seven years, four years for the sexual interference of Victim One and three years for the sexual interference of Victim Two, along with various ancillary orders. Amongst the aggravating factors identified by the Crown are the fact that there were two separate victims; there were multiple acts of abuse committed against Victim One over an extended period of time; Mr. Fassassi abused a position of trust or authority in relation to Victim One; there was a serious violation of the bodily integrity of both Victims; and both Victims have suffered significant and ongoing harm from the abuse. The Crown acknowledges that there are certain mitigating factors in this case, including Mr. Fassassi’s dated and limited criminal record, the absence of any information on his risk to reoffend, and the fact that he appears to have support in the community amongst family and friends.

[42] Counsel for Mr. Fassassi seeks a global sentence of five years, and does not take issue with the ancillary orders sought by the Crown. Although not allocating the sentence amongst the two offenses, counsel agrees that the sentence for the offence in relation to Victim One should be longer. Counsel for Mr. Fassassi argues that the PSR is generally positive and shows that Mr. Fassassi is hard-working, cares about his family and children, and wants to support them. In counsel’s view, there is no indication that Mr. Fassassi is likely to reoffend and argues that these offenses seem to be out of character. On this basis, a global sentence of five years would address the principles of denunciation and deterrence while also giving effect to considerations of totality, restraint and proportionality.

Analysis: Aggravating and Mitigating Circumstances

[43] There are a number of significant aggravating circumstances present in this case.

[44] By far the most important is the fact that there are two separate victims. The significance of this circumstance is underscored by the fact that Parliament has specifically mandated that where an accused is being sentenced at the same time for sexual offenses against more than one child, the sentences for each offence shall be served consecutively. Where there are two child victims, as in this case, the gravity and inherent wrongfulness of the crimes is increased and the harm is multiplied, thus justifying and indeed requiring a lengthier sentence.

[45] There are a number of particular aggravating circumstances in relation to the abuse of Victim One. Mr. Fassassi repeatedly assaulted Victim One over a period of approximately one month. These offenses took place in her sister’s apartment, often while she was sleeping, a place and time where she ought to have felt safe. The offenses involved both fellatio and sexual intercourse, major violations of Victim One’s bodily integrity. Mr. Fassassi also abused a position of trust or authority over Victim One, since he was an adult residing in the apartment who attempted to invoke authority over her and threatened her with consequences if she did not comply with his demands.

[46] Although the abuse of Victim Two took place on one occasion only, it too occurred while Victim Two was sleeping in a friend’s apartment. It also involved a major violation of Victim Two’s bodily integrity in the form of fellatio.

[47] The VIS filed with the court are stark testament to the severe harm that both Victims have suffered as a result of these assaults. Their relationships with family and friends have been severely impacted. They both have nightmares and experience trouble sleeping. Both have also engaged in self-harm. They have continued to be so preoccupied with what happened to them that they have been unable to move on with their lives.

[48] There are certain mitigating circumstances that must also be taken into account.

[49] In particular, Mr. Fassassi has a dated and limited criminal record that does not involve sexual offences. He appears to have been regularly employed over the past decade. He has support from family and friends and has maintained his relationship with his two young children. There is no indication from the PSR that he is likely to reoffend. He has no mental health issues and there is no indication from the PSR that he has any current difficulties with alcohol or illicit drugs.

[50] I note that although Mr. Fassassi did not plead guilty and has not expressed remorse for these offenses, these are not aggravating considerations and merely reflect the absence of mitigating circumstances.

Fit Sentence in this Case

[51] Both Crown and defence counsel have filed a number of sentencing cases decided post-Friesen in which the court imposed a sentence in the range of 5 to 7 years for sexual offenses involving a single child. This reflects the Supreme Court’s guidance in Friesen that mid-single digit penitentiary terms for sexual offences against children are to be considered as normal.

[52] On this basis, apart from considerations of totality, a sentence of five years or more for each count of sexual interference could well be seen to be proportionate to the gravity of the offences and the impact on the victims. Since the sentences must be served consecutively, this would have resulted in a total penitentiary term of 10 years or more.

[53] The Crown takes the position that a double-digit penitentiary term would be unduly harsh in Mr. Fassassi’s case, particularly given the lack of a related criminal record. Taking into account the principle of totality, the Crown proposes a global sentence of seven years.

[54] In light of the aggravating circumstances in this case, particularly the fact that there were two separate victims, a global sentence in the upper-single-digit range could well have been regarded as proportionate. Even taking into account the principle of totality, a sentence of seven years would appear to be the absolute minimum required.

[55] Nevertheless, although a higher sentence could well be justified, I am prepared to accept the Crown’s proposal for a seven-year global sentence. I would allocate the sentence in the manner proposed by the Crown, namely, four years for the sexual interference count involving Victim One and three years for the sexual interference count involving Victim Two.

[56] I also grant the ancillary orders sought by the Crown.

Credit for Presentence Custody

[57] Mr. Fassassi was in custody for a total of seven days following his arrest. The parties agree that he should be given the normal Summers credit on a 1.5 to 1 basis, resulting in a total credit of 11 days.

VIII. Disposition

[58] Mr. Fassassi’s sentence shall be entered as follows:

a. Count 1 (sexual assault of Victim One), Criminal Code s. 271: stayed on the basis of Kienapple

b. Count 2 (sexual interference with Victim One), Criminal Code s. 151: four years

c. Count 4 (sexual assault of Victim Two) Criminal Code s. 271; stayed on the basis of Kienapple

d. Count 5 (sexual interference with Victim Two) Criminal Code s. 151: three years, to be served consecutively to the sentence for count 2.

[59] I also note that the original indictment included a Count 3, but that was withdrawn by the Crown at trial on the basis that it was duplicative of Count 1.

[60] Mr. Fassassi’s credit of 11 days shall be applied to the sentence for Count 2, with the result that he has three years and 354 days remaining on that sentence. Upon the completion of the sentence for Count 2, he shall commence serving his three-year sentence on Count 4.

[61] The result is that he has six years and 354 days remaining to be served on his global sentence.

[62] I also issue the following ancillary orders in relation to Mr. Fassassi:

a. an order for the taking of a bodily substance for the purpose of forensic DNA analysis, in accordance with s. 487.051 (1);

b. an order that he comply with the Sex Offender Information Registration Act for life, in accordance with s. 490.012 (1) and s. 490.013 (2.1);

c. a weapons prohibition for 10 years, pursuant to s. 109;

d. an order that he not communicate with either of the victims while he is in custody, pursuant to s. 743.21;

e. an order that he not be within two kilometres of any place where either of the victims ordinarily reside, for a period of 10 years following his release from custody, pursuant to s. 161 (1) (a.1); and

f. an order that he not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years, for a period of 10 years following his release from custody, pursuant to s. 161 (1) (b).

P. J. Monahan J.

Released: June 2, 2021

COURT FILE NO.: CR-19-10000444

DATE: 20210602

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

LATIFOU FASSASSI

REASONS FOR SENTENCE

P.J. Monahan J.

Released: June 2, 2021

[^1]: Criminal Code, s. 718.1. See also R. v. Friesen, 2020 SCC 9 ("Friesen") at para 30.

[^2]: Criminal Code, s. 718.

[^3]: Criminal Code, s. 718.01

[^4]: Criminal Code, s. 718.3 (7) (b).