Court File and Parties
COURT FILE NO.: 8085/19, 8039/19 DATE: 2021-12-14
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
David Kirk, Counsel for the Crown
- and -
K.R.S.
C. Bruce Willson, Counsel for the Accused
Accused
HEARD: November 26, 2021
REASONS FOR SENTENCE
GAREAU J.
[1]
Introduction and Background
The offender is being sentenced on two indictments. In file number 8085/19, the accused was convicted on counts 2 and 3 of the indictment pertaining to the complainant, M.A. Count 2 is a charge under section 151 of the Criminal Code of Canada, the complainant being under the age of 16. Count 3 is a charge under section 152 of the Criminal Code of Canada. There was a stay granted on count 1 (section 272 of the Criminal Code) in accordance with the Kienapple principle. The offender was convicted of counts 2 and 3 after a trial was held. The court released Reasons for Judgment on April 16, 2021. With respect to the findings of fact made by the court, at paragraph 36 of the reasons the court makes the following comments,
I am satisfied beyond any reasonable doubt the complainant’s version of events did occur, namely, that the accused touched the breasts of M.A. over her clothing, that the accused laid on tope of M.A. and grinded his penis into her vaginal area, while they both were clothed, and that the accused guided the hand of M.A. to his penis thereby having her touch his penis with her hand. I find as a fact that this occurred. I am certain of these occurring beyond a reasonable doubt.
2With respect to file 8039/19, on July 13, 2021, the offender entered pleas of guilty to counts 2, 5 and 6 of the indictment dated July 29, 2019. Count 2 reads as follows,
K.R.S. stands further charged that he on or between the 1st day of January 2007 and the 24th day of November 2017, at the City of Sault Ste. Marie in the said Region, did for a sexual purpose touch E.A., a person under the age of sixteen with an object, to wit: his hand, contrary to section 151 of the Criminal Code of Canada.
3Count 5 reads as follows,
K.R.S. stands further charged that he on or between the 1st day of January 2008 and the 29th day of July 2015, at the city of Sault Ste. Marie in the said Region, did for a sexual purpose touch D.A., a person under the age of sixteen, contrary to section 151 of the Criminal Code of Canada.
4Count 6 reads as follows,
K.R.S. stands further charged that he on or between the 30th day of July 2015 and the 24th day of November 2017, at the City of Sault Ste. Marie in the said Region, being a person of trust or authority towards D.A., a young person, did for a sexual purpose touch D.A., contrary to section 153(1)(a) of the Criminal Code of Canada.
5The facts to support counts 2, 5 and 6 as acknowledged by the offender can best be described as bizarre. With respect to E.A., the offender would slap her butt, grab her breasts and would measure her breasts, hips and legs. On two occasions the offender exposed his penis to E.A. The offender also would instruct E.A. on how to shave her legs and vaginal area. With respect to D.A., the offender would touch, grab and fondler her breasts, also taught her how to shave her legs and vaginal area, and he touched the vagina of D.A. with his finger on one occasion, digitally penetrated D.A.
[6]
Sentencing Positions
With respect to the sentence to be imposed on the offender, the defence acknowledges that a period of incarceration is appropriate and suggested a global sentence of 3 years imprisonment. The Crown is asking that a 4-year global custodial sentence be imposed. Counsel are not far off in their respective positions.
[7]
Sentencing Principles
In determining what is a fit and just sentence the court is guided by section 718 of the Criminal Code of Canada which sets out a list of principles and objectives that the court must consider when determining the appropriate sentence to be imposed by K.R.S. Section 718 reads as follows,
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community
8As indicated by section 718.01 of the Criminal Code when the offence involves the abuse of a person under the age of 18 years, denunciation and deterrence are the primary sentencing objectives.
9The fundamental duty of the court is to impose a sentence that is just and fit for the offender and for the offence. As this court has observed on numerous occasions, the sentencing of an offender is not a science but rather an art. By its very nature it is an individualized process to find the appropriate sentence for the offence to reflect the moral culpability of the offender.
10Given the fact the offences involved the abuse of children by a person who is in a position of trust, the jurisprudence is clear that a custodial sentence must be imposed by this court. The essential question is the length of that custodial sentence.
[11]
Circumstances of the Offender
The offender is 46 years of age. He has an unrelated criminal record for impaired driving and assault for which he received a monetary penalty on the impaired driving and a suspended sentence with probation on the assault. The offender has not previously been sentenced to a term of imprisonment. A pre-sentence report was prepared and entered as Exhibit S-1. This report reveals that the offender had a tragic childhood in which he spent most of his time in the care of the child welfare authorities and raised in the foster care setting.
[12]
Impact on the Victims
The jurisprudence involving crimes of sexual abuse against young people has evolved to recognize that the emotional harm is long-lasting; often for a lifetime and more often far longer than any physical pain that they endured. This was evident from the victim impact statements prepared by M.A. and E.A., filed as Exhibit S-1with portions read into the record by those complainants. M.A. states that,
I am unable to make friends. I have dropped out of school. I have poor social skills. I am unable to work because my PTSD is so bad. I fear older men. My daily lifestyle is poor due to low self-esteem and ability to find any motivation. I feel hopeless about my life and future.
13E.A. indicated in her victim impact statement that she has difficulty trusting others or forming healthy attachment with men. She has trouble with intimacy. She experiences flashbacks and memories of the incidents “which constantly interferes with my daily life”. E.A. indicated that “when I think about my childhood, I become emotionally devastated that the offender took away my innocence and robbed me of my childhood”. E.A. suffers emotional pain and feels that her youth was taken from her.
14The difficulties that E.A. is experiencing is confirmed by the report dated March 22, 2021, prepared by Dr. Ulzen who is a child and adolescent psychiatrist. In his report, Dr. Ulzen indicates that E.A. has been engaged in psychotherapy and has struggled with “significant substance abuse”. Dr. Ulzen states in his report,
On examination, she presents as a well engaged adolescent female who provided a history without equivocation. She relates symptoms such as flashbacks and memories that are triggered by being in the neighbourhood where the abuse occurred or from seeing trucks that look like their abusers or men in hoodies similar to what he used to wear.
Dr. Ulzen describes E.A. as someone with “depression and hopelessness: and has prescribed Prozac for her.
[15]
Jurisprudence
Courts have long recognized the value and vulnerability of children and the need to protect children against sexual predators. Courts have also recognized the consequences that children face when they have been sexually abused. As indicated by Moldaver, J.A. in R. v. D.(D.) (2002), 58 O.R.,
Children often suffer immediate physical and psychological harm; children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
16Recently in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, the Supreme Court of Canada provided guidance with respect to sexual crimes against children and the sentencing principles relating to these crimes. As the court noted in paragraph 51,
Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity.
As noted by the court, children have the right to develop to adulthood free from sexual interference and exploitation by adults. As noted in paragraph 56, the Supreme Court of Canada recognized that “sexual violence against children can cause serious emotional and psychological harm, that, as this court held in R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, “may often be more pervasive and permanent in its effect than any physical harm”.
17In Friesen, the court went on to say, with respect to sentences to be imposed for sexual offences against children,
It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the “life-altering consequences” that can and often do flow from sexual violence.
18In R. v. T.J., 2021 ONCA 392, the Ontario Court of Appeal applied the sentencing principles set out in Friesen. At paragraph 17, Zarnett, J.A., indicated that,
In Friesen, the Supreme Court of Canada sent 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. [Emphasis added.] at para. 5.
19The Court of Appeal further noted in R. v. T.J. at paragraph 30,
While noting that judges must retain the flexibility to do justice in individual cases, Friesen conveyed an overall message that:
Mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should neither be unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim... at para. 114.
[20]
Aggravating and Mitigating Factors
In the case of the offender at the bar, there are significant aggravating factors. He was a parent to the children he abused. He was in a position of trust or authority and the offender abused his position of power over the children and he took advantage of their vulnerability, particularly in the case of M.A. who he supplied alcohol to. In the case of E.A. and D.A., the occurrences of abuse occurred over a significant period of time – it became part of their childhood. All the victims of the offender were young in age and within the household there was undoubtedly a power imbalance between the offender and the children who were in his care and whom he took advantage of. The offender’s actions resulted in the physical interference of his victims, particularly M.A. who he laid on the bed and grinded his penis against, and D.A. who he digitally penetrated. In assessing the facts of this case and the vulnerability of his victims and the offender’s abuse of his position of trust, there is a high degree of culpability and moral blameworthiness attributed to him.
21These aggravating factors are to be balanced against mitigating factors. The offender’s plea of guilty to the counts involving E.A. and D.A. is a mitigating factor of some significance. This is especially so in offences involving sexual abuse of victims when they were young who are saved the additional trauma of having to testify and publicly relive the horror of what they experienced. The plea of guilty is also indicative of the offender’s acceptance and acknowledgment of his actions and his remorse for those actions. The pre-sentence report also recognizes the offender’s unfortunate and tragic background, his troubled childhood and his less than ideal past. I have not lost sight of these factors in assessing the overall penalty to be imposed on the offender.
[22]
Sentencing Analysis and Disposition
In balancing the aggravating and mitigating factors, taking into account the sentencing principles of section 718 and particularly section 718.01 of the Criminal Code of Canada, the guidance provided in the jurisprudence and, in particular, as set out in by the Supreme Court of Canada in R. v. Friesen and being mindful that deterrence and denunciation are the primary consideration for the court in offences which abuse children, I am of the view that the global sentence suggested by the Crown of 4 years imprisonment is a fit sentence that meets the ends of justice.
23Accordingly, the offender is sentenced to a global sentence of 4 years imprisonment on counts 2 and 3 in file number 8085/19 and counts 2, 5 and 6 in file number 8039/19. For the sake of clarity, the sentence is broken down on the counts as follows:
File 8085/19
Count 2 – 2 years imprisonment
Count 3 – 1 year imprisonment concurrent
File 8039/19
Count 2 – 1 year imprisonment consecutive
Count 5 – 1 year imprisonment consecutive
Count 6 – 1 year imprisonment concurrent
[24]
Ancillary Orders
There are mandatory ancillary orders that must be imposed by the court as follows:
(a) DNA order;
(b) SOIRA order for life;
(c) Weapons prohibition for 20 years, pursuant to section 109 of the Criminal Code of Canada
25The Crown has requested a prohibition order under section 161 of the Criminal Code of Canada to take effect upon the offender’s release from custody. The victims M.A. and E.A. expressed fear of the offender in their victim impact statements (Exhibit S-1). Given the nature of the offences, the age of the victims and this fear expressed, a prohibition order is appropriate. There will be an order:
(a) Prohibiting the offender from attending a public park or public swimming 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;
(b) Prohibiting the offender from being within two kilometres of any dwelling house where the victims identified in this order ordinarily reside.
The prohibition order will be for 10 years in duration.
Gareau J.
Released: December 14, 2021
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
K.R.S.
REASONS FOR SENTENCE
Gareau J.
Released: December 14, 2021