Her Majesty the Queen v. Andrew Burch, 2021 ONSC 484

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 48/19

DATE: 2021-01-20

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANDREW BURCH

V. Reid, for the Crown

J. Donich and S. O’Connell, for Andrew Burch

HEARD: January 6th and November 30th, 2020

REASONS FOR SENTENCE

GIBSON J.:

1Andrew William Burch (“Burch”) was charged on an Indictment dated April 26, 2019, with four offences: 1. Sexual Assault on N.O. contrary to s. 271 of the Criminal Code; 2. between January 1, 2014 and December 10, 2017, in the Town of Oakville, touching for a sexual purpose N.O., a person under the age of sixteen years, with a part of his body, to wit: his fingers, penis and mouth, contrary to s.151 of the Criminal Code; 3. invitation to sexual touching of N.O., contrary to s.152(a) of the Criminal Code; and, 4. between January 1, 2014, and December 10, 2017, in the Town of Oakville, making available sexually explicit material to N.O., a person under the age of sixteen years, for the purpose of facilitating an offence under s.151 or s.152 or s.271 with respect to N.O., contrary to s. 171.1(1)(b) of the Criminal Code.

2On January 6, 2020, Mr. Burch entered a plea of guilty to the second and fourth counts on the indictment and, after a plea inquiry pursuant to s. 606 of the Criminal Code, his guilty plea on these two counts was accepted by the Court. Evidence as to sentence was then heard, including a Gardiner hearing. After a delay occasioned by the COVID-19 pandemic, submissions as to sentence were heard on November 30, 2020.

3It is now my task to determine a fit and just sentence.

Evidence on Sentencing

4The evidence on sentencing included an Agreed Statement of Facts, which is as follows:

Introduction to the Parties

The complainant, N.O., was born September 22nd, 2004. V.E. and Andrew Burch were involved in a relationship since October of 2010. V.E. is the complainant’s biological mother. E.E. is the complainant’s biological grandmother. Mr. Burch began residing with the complainant and her mother about three months after they began dating. In June 2011, Mr. Burch and V.E. purchased a condominium at 1300 Marbrough Court Unit #507 in the town of Oakville. Mr. Burch, V.E., and the complainant moved into that address. For a time, an adult tenant P.D. also lived at that address.

The Complainant’s Age and Corresponding Grade

The complainant’s grade 1, 5, 6, 7, and 8th year and her corresponding age are set out in the chart below. Age six, birthday September 22nd, 2010, grade 1, school year September 2010 to June 2011. Age 10 birthday September 22nd, 2014, grade 5, school year September 2014 to June 2015. Age 11, September 22nd, 2015 would have been her birthday, grade 6, school year was September 2015 to June 2016. Age 12, her birthday was September 22nd, 2016, grade – her grade was 7 and the school year would’ve have been September 2016 to June 2017. Her age 13, her birthday was September 22nd, 2017, her grade was 8, and the school year was September 2017 to June 2018.

Disclosure and Investigation

December 10th, 2017, the complainant disclosed to E.E. that she had been sexually abused by Mr. Burch. E.E. told V.E. that the complainant said she was being sexually abused by Mr. Burch. V.E. confronted Andrew Burch with the allegations. He admitted to having sexual contact with the complainant.

On Monday December 18th, 2017, Halton Regional Police and Halton C.A.S. conducted a joint investigation. The complainant provided a video-recorded statement.

Overview of the Sexual Acts

The sexual abuse began in the summer of 2015, her grade 5 year when she was 10 years old. The sexual abuse ended in August or September of 2017 when she was 12 or 13 years old. Sexual activity between Mr. Burch and the complainant occurred at least a few times per year. Throughout what was happening, the two came to several mutual agreements to stop the sexual activity. However, the activity resumed.

The sexual activity often involved Mr. Burch rubbing the complainant’s vaginal area with his fingers and inserting his fingers into the complainant’s vagina. Other sexual acts Mr. Burch engaged the complainant in include on two of the occasions the complainant fellated Mr. Burch. On three of the occasions, Mr. Burch fellated the complainant. On one or two occasions, the complainant masturbated Mr. Burch. On one of the occasions, Mr. Burch used the complainant’s mother’s vibrator on the complainant.

Mr. Burch never inserted his penis into the complainant’s vagina. Most incidents occurred in rooms at the family home with the doors to the room partially open. Each of the sexual interactions were initiated by Mr. Burch. On most occasions, the complainant did not physically resist in any way. On occasion, she would hold her clothing to resist, but the accused would overcome that by removing her clothing.

On one other occasion he told her a story where a victim was sexually abused and the abuser was taken away and the family never saw the abuser again. The complainant was motivated to stay silent out of fear of an escalation in violence, although no extraneous physical violence had ever actually been occasioned to her, to protect her mother from what the complainant viewed would be the devastating loss of the stable domestic relationship.

Throughout what was happening, Mr. Burch and the complainant came to several mutual agreements to stop the sexual activity. However, the sexual activity was reinitiated by Mr. Burch.

Specific Incidents of Sexual Activity

Episode 1: Kiss on mouth. In the spring or summer of 2015, Mr. Burch kissed the complainant on the mouth.

Episode 2: Sexual touching in parents’ bedroom. The next incident occurred in the summer before the start of the complainant’s grade 6 school year. While the complainant and Mr. Burch were in her parents’ bedroom, Mr. Burch undressed her and began touching her vaginal area with his hands after he undressed her including digitally penetrating her vagina. The bedroom door was partially opened. The episode ended when the complainant excused herself to go to the bathroom.

Episode 3: Massage. Following a soccer game during grade 7 while the complainant was 12 years old, the complainant asked her mother for a massage. Mr. Burch volunteered to provide the massage after her mother requested him to do so. The complainant and Mr. Burch went to the complainant’s room where Mr. Burch took off the complainant’s shirt and bra. Mr. Burch massaged of the complainant’s shoulders, lower back, legs, and feet, and then began rubbing her genital region. The entire massage lasted about 15 minutes. Mr. Burch told the complainant she could not tell her mother as, if she did, he would be in trouble, that he would not be able to see the complainant again.

Episode 4: The parking area of the Marbrough Drive condo. In the summer of 2016, Mr. Burch and the complainant attended in a drive-in movie together. After the movie, Mr. Burch parked his car in a secluded area of the condo’s parking garage. Here the two went to the backseat of the vehicle where Mr. Burch touched the complainant’s genitals with his mouth and fingers including digital penetration of her vagina and his performing oral sex on her after he removed portions of her clothing.

Episode 5: Living room downstairs. At some point during the complainant’s grade 6 year, Mr. Burch invited the complainant to the downstairs living room. On the television, there was adult pornography. The complainant saw a naked male and female and that they performed sexual acts. Mr. Burch undressed the complainant and digitally penetrated her. At some point, the complainant excused herself, dressed and left.

Episode 6: Camping trip to Mr. Burch’s father’s property. Mr. Burch took the complainant on a two-day camping trip to his father’s rural property in Flamborough on Concession 10. Mr. Burch and the complainant stayed up late. The night ended with Mr. Burch touching the complainant sexually including his digitally penetrating her vagina and him performing oral sex on her.

Episode 7: Camping trip to Burlington. A second camping trip occurred when Mr. Burch and the complainant joined Mr. Burch’s sister’s camping at Kelso, Ontario. Mr. Burch’s sister was joined by her husband. After a campfire, Mr. Burch and the complainant went to their tent where sexual touching of her vagina occurred including digital penetration of her vagina and his performing oral sex on her.

Episode 8: Family vacation in the Dominican Republic. In April 2016, the family travelled to Punta Cana for a resort vacation. Mr. Burch digitally penetrated the complainant’s vagina while her mother was in the hotel shower. The complainant was in grade 6 at the time, 11 years old.

Arrest

On December 18th, 2017, Mr. Burch was arrested.

These are the facts that are agreed to for the purpose of this hearing.

5In addition to the eight instances specified in the Agreed Statement of Facts, the Crown also alleged further aggravating facts, which were contested by the Defence. These were the assertions that Andrew Burch said to N.O. that it was completely natural for stepdaughters to be attracted to their stepfathers; and that he used his penis to anally penetrate N.O. on two occasions. While he acknowledged that he had digitally penetrated her anus, Mr. Burch insisted that he had not anally penetrated her with his penis.

6These were the subject of a Gardiner hearing in which the complainant N.O. and the offender Andrew Burch gave evidence.

7N.O. gave evidence that Andrew Burch penetrated her anus with his penis on two occasions. One time it was light out, and the other dark. He used Vaseline as a lubricant. The second time went faster. He used two fingers first, then inserted his penis. The duration was five to ten minutes. It was painful. He narrated what he was doing while he did it. She could feel the difference between his fingers and penis.

8Andrew Burch gave evidence denying that he had inserted his penis in N.O.’s anus. He acknowledged that he had inserted his fingers. On the first occasion, just one finger. On the second occasion, two fingers. He said that he did not remember narrating the act. He said that her face was down in the pillow, and he did not remember her face turned to the side. He said that he masturbated with his left hand, and had fingers of his right hand in her anus. He said that the lubricant was used for masturbation purposes. He also denied telling her that it was natural for a stepdaughter to be attracted to her stepfather.

9Where following a plea of guilty there is conflicting evidence with respect to factors going to the gravity of the offence, the onus is on the Crown to prove the aggravating facts beyond a reasonable doubt: R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368. This has been statutorily codified in s. 724(3)(a)-(e) of the Criminal Code: the court must be satisfied on a balance of probabilities of the existence of the disputed fact before relying on it in determining sentence, except that the prosecutor must establish, by proof beyond a reasonable doubt, the existence of any aggravating fact.

10If the facts that the Crown wishes to rely on as aggravating are disputed, the issue should be resolved by ordinary principles governing criminal law proceedings: R. v. LeBreton, 2018 NBCA 27 at para. 33.

11Given this, both the Crown and Defence submitted, and I accept, that the assessment of the evidence, including the credibility of the differing accounts offered in their evidence on the Gardiner hearing by the complainant N.O. and the offender Andrew Burch, should proceed, with necessary adaptations, on the basis of the analytical process set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. That is, in the context of a sentencing hearing, if I believe the evidence of the accused, then the aggravating factor is not proven beyond a reasonable doubt; even if I do not believe the testimony of the accused but am left in a reasonable doubt by it, then the aggravating factor is not proven beyond a reasonable doubt; and, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt of the existence of the disputed aggravating factor.

12The test in W.(D.) applies in cases where the accused gives evidence. However, the principles of W.(D.) will also apply in any case where a crucial issue turns on credibility: R. v. F.E.E., 2011 ONCA 783, per Watt J.A. at para. 104. The W.(D.) test applies not only to an accused's testimony, but also to other exculpatory evidence that emerges during a trial that relates to a vital issue: R. v. B.D., 2011 ONCA 51, per Blair J.A. at paras. 113-114, and R. v. Cyr, 2012 ONCA 919, per Watt J.A. at para. 50.

13The Crown submitted that N.O.’s evidence was credible and reliable. She was forthright in providing her evidence, and able to articulate recollections. The Crown submitted that Andrew Burch’s evidence was not credible, and that he tried to tailor his evidence on cross-examination.

14The Defence submitted that it was not challenging the credibility of N.O., but did challenge the reliability of some of her statements. It submitted that N.O. never said that she saw both of Andrew Burch’s hands down on the bed, which would have been necessary for him to anally penetrate her.

15I do not believe the evidence of Andrew Burch on this hearing, and I am not left in reasonable doubt by it. My observation of his demeanour and evasive answers to questions on cross-examination leads me to this conclusion. But more importantly, what he said makes little sense. His evidence was internally inconsistent, and not consistent with external evidence that I do accept. The Defence submission that both of Mr. Burch’s hands would have had to be on the bed for him to anally penetrate her does not accord with the evidence. His evidence was that he masturbated with one hand while digitally penetrating her. It is equally plausible that he was masturbating with one hand while penetrating her anus with his penis.

16I do not find the evidence of the offender to be credible in this regard.

17Applying W.(D.), I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt of the existence of the relevant aggravating factor.

18I find the evidence of the complainant N.O. to be credible and reliable, and I accept her account of what happened. She testified in a very forthright manner about an event which must have been excruciatingly difficult for her. She plausibly testified that she was able to distinguish the difference in feel between Andrew Burch’s fingers and penis inserted into her anus. She indicated that he narrated the events as he was performing these sex acts on her.

19I make the following findings of fact. In addition to the instances specified in the Agreed Statement of Facts, Andrew Burch told N.O. on two occasions that “it was completely natural for a stepdaughter to be attracted to her stepfather”, and that on two occasions he penetrated her anus with his penis. This caused pain to N.O.

Pre-Sentence Report

20A Pre-Sentence Report was produced by a probation and parole officer Mr. John Whyte dated February 14, 2020, and was admitted into evidence as an exhibit. It details the family and employment history of Mr. Burch.

Victim Impact Statements

21In her Victim Impact Statement submitted to the Court, N.O. described the intense feelings of betrayal she experiences from what Mr. Burch did to her, and her anger at his manipulation of a relationship of trust. She recounted her continuing difficulties with eating disorders, nightmares, and difficulty sleeping. She still feels shame, regret and weakness arising from his actions, and a sense of alienation from her mother. She still fears for her safety, especially at night, and requires a white sound machine to cover up the ambient noise to allow her to sleep.

22In her Victim Impact Statement, N.O.’s mother described the experience as a parent’s worst nightmare come to life, an experience which has changed their lives forever. She recounts the struggles her daughter has gone through, and her own sense of failure to protect her daughter.

Defence Sentencing Material

23The Defence submitted several medical documents in mitigation, together with a number of support letters. These included: a counselling update from Dr. Monik Kalia, a clinical and forensic psychologist summarizing the seven individual counselling sessions he had with Andrew Burch between August 5, 2020 and September 23, 2020; a letter from Jennifer Hilditch, a registered psychotherapist; and a summary of a psychiatric assessment of Mr. Burch conducted by Dr. Gary Chaimowitz, a psychiatrist who is head of forensic services at St. Joseph’s Healthcare Hamilton, dated November 23, 2020.

24Dr. Chaimowitz assessed that, notwithstanding the single victim, some of Mr. Burch’s characterological deficits and inadequacies leave him vulnerable to future distortions in relationships. However, he assessed that Mr. Burch’s risk of offending in the future is low from an actual perspective, and the probability of his being able to not engage in similar abuse is good. He opined that the risk of reoffence, especially with ongoing treatment, is low.

25Also submitted were letters of support submitted by family members Brittany Burch, Jessica Burch, William John Burch, Karen Burch, Tiffany John and Katherine Dow, family friends Christine Smith and Heather Langdon, and employer Jason Ryan.

Submission of the Crown

26The Crown submits that Mr. Burch should be sentenced to imprisonment for 8 years, together with some ancillary orders.

Submission of the Defence

27The Defence submits that an appropriate sentence in this case would be 3-4 years.

Sentencing principles

28As recently succinctly summarized by Watt J. A. in R. v. Marshall, 2021 ONCA 28, in determining a fit sentence, the sentencing judge must consider a complexity of factors including the nature of the offence and the personal characteristics of the offender. As well, the sentencing judge must weigh the normative principles Parliament has enshrined in the Criminal Code; the sentencing objectives in s. 718, the fundamental principle of proportionality in s. 718.1, the aggravating and mitigating factors, as well as the principles of totality and restraint in s. 718.2: R. v. M. (L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 17.

29Proportionality is a cardinal principle that governs the fitness of a sentence imposed on an offender. It requires that every sentence be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender who committed that offence: Criminal Code, s. 718.1.

30The severity of a sentence depends not only upon the seriousness of the consequences of a crime, but also on the moral blameworthiness of the offender. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility for that crime, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.

31In terms of their objective gravity, the s.151 offence of Sexual Interference has a maximum penalty of 14 years, and a minimum punishment of imprisonment for a term of one year. The s. 171.1(1)(b) offence of Making Sexually Explicit Material available to a child has a maximum penalty of 14 years, and a minimum punishment of imprisonment for a term of six months.

Caselaw

32The Crown referred me to the following cases (in addition to R. v. Friesen, which I shall consider in more detail below): R. v. D.D., (2002) 2002 44915 (ON CA), 58 O.R.(3d) 788 (Ont. C.A.); R. v. D.M. (2012) 2012 ONCA 520, 111 O.R. (3d) 721 (Ont.C.A.); R. v. Stuckless, 2019 ONCA 504; R. v. F.P.,[2005] O.J. No. 2747 (C.A.); R. v. G.M., 2014 ONCA 602; R. v. Pindus, 2018 ONCA 55; R. v. B.F.,[2013] O.J. No. 2580 (S.C.J.); and R. v. D.W., 2017 ONSC 255.

33The Defence drew my attention to the following cases: R. v. D.(D.); R. v. D.M.; R. v. Stuckless; R. v. Priest (1996), 1996 1381 (Ont.C.A.); R. v. Borde (2003), 2003 4187 (Ont. C.A.); R. v. Branco, 2019 ONSC 3591; R. v. A.G., 2004 36065 (Ont. C.A.); R. v. Bauer, 2013 ONCA 691; R. v. W.C.C., [2009] O.J. No. 4705 (S.C.J.); R. v. S.H., 2011 ONCA 215; R. v. D.(B.), 2008 ONCJ 21; R. v. R.B., 2013 ONCA 36; R. v. R.G., 2010 ONSC 4082, R. v. D.M., 2012 ONCA 520; and R. v. B.(J.), (1990), 36 O.A.C. 307 (Ont.C.A.).

34For the reasons to be discussed below regarding R. v. Friesen, the precedential value of many of these previous cases is now somewhat diminished. They are still relevant, but they are certainly not dispositive, given the sharp reboot in sentencing principles and practice in cases involving the sexual abuse of children mandated by Friesen. As affirmed in Friesen, the parity principle still applies. Parity is an expression of proportionality and gives meaning to proportionality in practice. But consideration of the precedential weight of these older cases must take place in light of this.

R. v. Friesen

35The most significant recent guidance when it comes to sentencing in cases involving sexual abuse of children is that provided in the recent judgment of R. v. Friesen, 2020 SCC 9, a unanimous judgment of the Supreme Court of Canada. Given its significance, I will consider the direction provided therein at some length, summarizing and paraphrasing the guidance provided by the Court.

36In Friesen, the Supreme Court of Canada started by reinforcing the principle that 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. Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. Parity is an expression of proportionality and gives meaning to proportionality in practice.

37In writing for the Court, Wagner CJC and Rowe J. stated at para. 5 of Friesen:

5 Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

38The Supreme Court of Canada declared that protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. At the sentencing stage, it insisted, in order to effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause and give effect to both in imposing a sentence. This will help bring sentencing law into line with society's contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.

39The Court further declared that Parliament's creation of the modern legislative scheme of sexual offences against children shifted the focus of the sexual offences scheme from sexual propriety to wrongful interference with sexual integrity. The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. Emphasis on these interests require courts to focus their attention on emotional and psychological harm, not simply physical harm. In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle, as these factors impact both the gravity of the offence and the degree of responsibility of the offender and understanding them is key to imposing a proportionate sentence.

40The Supreme Court directed that trial courts must impose sentences that are commensurate with the gravity of sexual offences against children and that reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences. Sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.

41In Friesen, the Supreme Court declared that courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender's degree of responsibility. Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child, because it involves the wrongful exploitation of the child by the offender, and because children are so vulnerable. Courts must give proper weight in sentencing to the offender's underlying attitudes because they are highly relevant to assessing the offender's moral blameworthiness and to the sentencing objective of denunciation. The fact that the victim is a child increases the offender's degree of responsibility.

42The Supreme Court declared that Parliament has determined that sentences for sexual offences against children should increase to match its view of the gravity of such offences. It has increased maximum sentences for these offences and prioritized denunciation and deterrence in sentencing. Parliament's decision to repeatedly increase maximum sentences for sexual offences against children should be understood as shifting the distribution of proportionate sentences for these offences. To respect Parliament's decision, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. Parliament's decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children

43The Supreme Court determined that a national starting point or sentencing range for sexual offences against children should not be created by the Court. It considered that the appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts. Nonetheless, to ensure that sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes, it determined that guidance on three specific points is required.

44First, upward departure from prior precedents and sentencing ranges should occur for sexual offences against children because Parliament increased the maximum sentences for these offences and because society's understanding of the gravity and harmfulness of these offences has deepened. Courts are justified in departing from dated precedents that do not reflect society's current awareness of the impact of sexual violence on children in imposing a fit sentence. There is concern about sentencing ranges based on precedents that appear to restrict sentencing judges' discretion by imposing caps on sentences that can only be exceeded in exceptional circumstances.

45Sexual offences against children can cover a wide variety of circumstances, the Supreme Court recognized, and it considers that appellate guidance should make clear that sentencing judges can respond to this reality by imposing sentences that reflect increases in the gravity of the offence and the degree of responsibility of the offender. Imposing proportionate sentences will frequently require substantial sentences. Parliament's statutory amendments have strengthened that message. 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. A maximum sentence should be imposed whenever the circumstances warrant it.

46Second, sexual offences against children should generally be punished more severely than sexual offences against adults, as Parliament has determined by clear indication in the Criminal Code. Accordingly, the Supreme Court directed provincial appellate courts are to revise and rationalize sentencing ranges and starting points where they have treated sexual violence against children and sexual violence against adults similarly.

47Third, the Court declared, treating the offence of sexual interference with a child as less serious than that of sexual assault of a person under the age of 16 is an error of law. Parliament has established the same maximum sentences for both offences. The elements of the offences are also similar, and a conviction for sexual assault of a child and for sexual interference with a child can frequently be supported on the same factual foundation.

48In order to promote the uniform application of the law of sentencing, the Supreme Court provided the following non-exhaustive significant factors to determine a fit sentence for sexual offences against children must be considered. First, the higher the offender's risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm. Second, 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. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender's degree of responsibility. Third, 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. Fourth, 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 cases. Fifth, defining a sentencing 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 correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of 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 type of hierarchy of physical acts. Sixth, 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 towards children.

Assessment

49Andrew Burch is a 36-year-old man who sexually abused his partner’s daughter beginning when she was 10 years old. He was 21 years older than her. This continued for 2-3 years. He was her stepfather. Several of the offences occurred in the family home. In addition to the eight instances of sexual contact specified in the agreed statement of a facts, I have found that he also engaged in two instances of anal penetration of the young victim with his penis. He groomed her for sexual activity by watching pornographic videos with her, and by telling her that it was natural for a stepdaughter to be attracted to her stepfather.

50Mr. Burch does not have a criminal record.

51He was previously employed as an industrial door technician. He was unemployed at the time of the offences.

52He has expressed remorse and has sought counselling.

Aggravating Factors

53The aggravating factors present in this case include the following:

a. The direction of Parliament at s.718.2 (a)(iii) of the Criminal Code that it shall be deemed to be an aggravating circumstance that the offender, in committing the offence, abused a position of trust or authority in relation to the victim. In this case, Andrew Burch was the stepfather of N.O., and used that authority to further the commission of the offences. He knew that he was standing in loco parentis to N.O., a vulnerable and impressionable young person between the ages of 10-13;

b. The direction of Parliament at s.718.2(a)(ii) that the offender, in committing the offence, abused a member of the offender’s family. N.O. was the stepdaughter of Andrew Burch throughout this period;

c. The direction of Parliament at s.718.2(a)(ii.1) that, in committing the offence, the offender abused a person under the age of 18 years. In this case, N.O was between the ages of 10-13 when the offences were committed;

d. The direction of Parliament at s.718.2(a)(iii.1) that the offence had a significant impact on the victim. This has been amply demonstrated in the Victim Impact Statements of N.O. and her mother;

e. That the sexual abuse occurred on numerous occasions, over a protracted period. It was not an impetuous, spontaneous one-off instance; and,

f. Andrew Burch groomed the young victim for sexual abuse by showing her pornographic material, and by telling her that it was natural for a stepdaughter to be attracted to her stepfather.

Mitigating Factors

54The mitigating factors present on the facts of this case are:

a. First and foremost, the guilty plea, which must be taken as an acknowledgement of responsibility, together with some expression of remorse by Andrew Burch. However, credit for this should be qualified to some extent by recognition that Mr. Burch denied two more aggravating factors, which still obliged the young complainant to testify;

b. That Mr. Burch has begun some counselling with Dr. Malik Kalia and Jennifer Hilditch to seek some insight into why he committed these offences;

c. That Mr. Burch has no criminal record and is a first offender before the Court; and,

d. The assessment of Dr. Chaimowitz that he is likely at a low risk to reoffend.

55I have carefully considered all of the sentencing purposes and principles elaborated at ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. I have also considered the sentencing precedents in the caselaw jurisprudence submitted by the Crown and the Defence, and the relevant aggravating and mitigating factors in this case. I have of course given particular weight to the guidance recently provided by the Supreme Court of Canada in Friesen.

56On its facts, this case exemplifies several of the significant sentencing factors highlighted in Friesen:

1. an offender such as Mr. Burch 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. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender's degree of responsibility.

2. sexual violence against children that is committed on multiple occasions and for longer periods of time, as was the case here where the offences extended over a three-year period, should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility.

3. 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 cases. In this case, N.O. was between the ages of 10-13. While this is not at the lowest end of the age spectrum, she was not yet a teenager and was a naïve and vulnerable age;

4. defining a sentencing 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 correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of 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 type of hierarchy of physical acts. As directed by the Supreme Court of Canada in Friesen, a sentencing court should not consider that there is a hierarchy of physical acts. It would be an error to assume that there is a correlation between the type of physical act and the harm to the child. I have found that Andrew Burch penetrated the anus of the victim N.O. twice with his penis. This was an egregious act. But, in light of the guidance provided in Friesen, its significance, or absence, in weighing sentence is less than it might previously have been. Less turns on this specific finding of fact than it might formerly have. The offender has admitted digitally penetrating N.O.’s anus and vagina on multiple occasions. The significant violation of her bodily and sexual integrity inherent in what Andrew Burch did is heinous regardless of whether he also penetrated her anally with his penis, or not. The point is, there is ample and significant evidence of the harmful impact on N.O. irrespective of the particular physical mechanism of the sexual abuse that occasioned the injury.

5. 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, as occurred in this instance, that led to the victim's participation is an aggravating factor; and, adults always have a responsibility to refrain from engaging in sexual violence towards children. Mr. Burch’s insistence that he sought N.O.’s assistance to stop, is passing the buck. Andrew Burch was the adult. He was responsible.

57In cases such as this, which involve the sexual abuse of a vulnerable young person by a person in authority, the dominant sentencing principles must be denunciation, as well as general and specific deterrence. This is reinforced by s.718.01 of the Criminal Code, which provides that where a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

58I have also had regard to the issue of rehabilitation, as well as the sentencing principles of separation of offenders from society, where necessary, and the promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. Andrew Burch’s efforts thus far at engaging counselling are to be commended and encouraged. The assessment that he is at a low risk to reoffend is significant. But, as stated, considerations of denunciation and deterrence must predominate in this case.

59The moral responsibility of Andrew Burch is high. In addition to the criteria discussed in Friesen that I have reviewed, it is patent that Andrew Burch knew, or ought to have known, of the risk for long-term harm to N.O. He had lived in a home where his mother had been sexually abused by his grandfather.

60Having regard to the facts in evidence in this case, the relevant aggravating and mitigating factors, the statutory provisions of the Criminal Code, including the objective gravity of the offences, and the sentencing precedents cited by the Crown and Defence, and in particular the recent guidance provided by the Supreme Court of Canada in Friesen, I am satisfied that, on the facts of this case, a significant penitentiary sentence is required to fulfil these objectives. This is a case that involved a wrongful interference with the personal autonomy, bodily integrity, sexual integrity, dignity and equality of a child, N.O.

Sentence

61On the second count of the Indictment, that of sexual interference contrary to s. 151 of the Criminal Code of Canada, Andrew Burch is sentenced to imprisonment for six (6) years.

62On the fourth count of the Indictment, that of making sexually explicit material available to a child for the purpose of facilitating the commission of an offence under s.151 or s.152 or s.271, contrary to s.171.1(1)(b) of the Criminal Code of Canada, Andrew Burch is sentenced to imprisonment for a term of three (3) years, to be served concurrently with the sentence on the second count.

63As both offences are primary designated offences, pursuant to s. 487.051 of the Criminal Code, Andrew Burch shall provide a sample of bodily substances for the purpose of forensic DNA analysis.

64There shall be a Sex Offender Information Registration Act Order pursuant to s. 490.012(1) of the Criminal Code. The duration of the order shall be for life (s.490.013(2.1)) because Andrew Burch has been convicted of multiple designated offences pursuant to s. 490.011(a).

65There shall be an order pursuant to s. 161(1)(a) of the Criminal Code prohibiting Andrew Burch from attending a public park or swimming pool area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre, for a period of life; pursuant to s. 161(1)(b) prohibiting Mr. Burch from seeking, obtaining or continuing any employment, whether or not that employment is remunerated, or becoming a volunteer in any capacity that involves being in a position of trust or authority towards a person under the age of 16 years for a period of life; and pursuant to s. 161(1)(c) prohibiting Mr. Burch from having any contact – including communicating electronically by any means – with a person who is under the age of 16 years, unless the person is a member of his family, for a period of life.

66During his incarceration Andrew Burch is to abstain from communicating, directly or indirectly, with N.O., V.E., E.E., or any member of their family.

67There shall be a s.109 weapons prohibition order for 10 years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.

M. Gibson. J.