ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-50000425-0000

DATE: 20211215

BETWEEN:

HER MAJESTY THE QUEEN

– and –

VINCEY GUNARATNAM

S. Malik, for the Crown

J. Donich, for Mr. Gunaratnam

HEARD: November 18, 2021

REASONS FOR SENTENCE[1]

SCHRECK J.:

[1] Nelson Mandela once said, “We owe our children – the most vulnerable citizens in any society – a life free from violence and fear.”[2] Mr. Gunaratnam deprived two children who trusted him of such a life by sexually abusing them. His actions have had longstanding and devastating effects on them children well into their adulthoods. This court must now determine what sentence is appropriate for crimes of this nature.

[2] Following a judge alone trial, Mr. Gunaratnam was convicted of two counts of touching his niece for a sexual purpose in the late 1980s and early 1990s, when she was between seven and 12 or 13 years old.[3] After his conviction, Mr. Gunaratnam pleaded guilty to a charge of sexual interference in British Columbia in relation to a family friend, an offence he committed in 2006 or 2007, when she was 13 years old.[4]

[3] Mr. Gunaratnam is now 60 years old and has no prior criminal record. While he denied guilt in relation to his niece during his trial, he now admits his crimes and claims to be remorseful for them.

[4] Counsel for the Crown and the defence are jointly submitting that the appropriate sentence in this case is a conditional sentence of two years less a day followed by probation for three years. A joint submission must always be given serious consideration. However, the court is not obliged to accept it. Ultimately, it is the court’s responsibility to determine what sentence is proportionate to the gravity of the offences and the moral culpability of the offender. The following reasons address this issue.

I. FACTS

A. The Offences

(i) The Toronto Charges

(a) The First Incident

[5] Terese Vijayakumar was born in 1983.[5] When she was young, she and her family lived in a townhouse in Etobicoke. Ms. Vijayakumar’s parents would often allow relatives who had recently immigrated to Canada to stay with them until they became settled. Among those relatives were Mr. Gunaratnam, who had recently immigrated from Sri Lanka, and his wife, who was Ms. Vijayakumar’s maternal aunt.

[6] One night when Ms. Vijayakumar was about seven years old, she was sleeping in her parents’ bedroom when Mr. Gunaratnam entered the room and approached her. He put his hand into her underwear and touched her vagina. He also rubbed her chest and twisted her nipples. Ms. Vijayakumar recalled him making a panting noise while he touched her. She also recalled him smelling of alcohol.

(b) The Second Incident

[7] After Mr. Gunaratnam moved out of Ms. Vijayakumar’s home, he and his wife moved to a condominium unit nearby. By then, they had children of their own. Ms. Vijayakumar would sometimes visit Mr. Gunaratnam’s family at the condominium. While there, she would sometimes fall asleep in Mr. Gunaratnam’s bedroom.

[8] One night at some point in the early 1990s, Ms. Vijayakumar was sleeping in Mr. Gunaratnam’s bedroom next to his daughter, who was several years younger than her. Mr. Gunaratnam entered the room and sat on the bed next to her. He put his hands on her leg and then stated to rub her vaginal area, at first over and then under her underwear. He also put his finger inside her vagina and touched her chest.

(c) Other Incidents

[9] Ms. Vijayakumar also testified about two other incidents of sexual touching that occurred in the 1990s, one in North Dakota while she was on a road trip with Mr. Gunaratnam’s family and one in an apartment in Vancouver where Mr. Gunaratnam was living at the time. While evidence of these incidents was admitted at trial as similar fact evidence, Mr. Gunaratnam was not charged in relation to them. While I accept that these incidents occurred, I have not considered them in determining the appropriate sentence.

(d) Disclosure of the Offences

[10] Ms. Vijayakumar did not disclose any of the incidents for several years. She told her mother about them at some point and told her husband after she was married in 2010 and eventually told the rest of her family. In 2018, she reported her allegations to the police and Mr. Gunaratnam was charged. Following a trial in this court, he was found guilty on June 23, 2021.

(ii) The British Columbia Charges

[11] Ms. Sivakumaran was born in 1993. Her family and Mr. Gunaratnam’s family became close friends after Mr. Gunaratnam moved to Vancouver. Ms. Sivakumaran grew up knowing Mr. Gunaratnam as “Vincey Uncle.”

[12] One night in 2006 or 2007 when Ms. Sivakumaran was 13 years old, Mr. Gunaratnam visited her home and he and her father spent the evening consuming alcohol. At one point in the evening, in response to a comment by Ms. Sivakumaran’s mother about her weight, Mr. Gunaratnam said, “Don’t say that, she is beautiful” and started to rub her back, which Ms. Sivakumaran found to be “weird.”

[13] Later that night, Ms. Sivakumaran was watching television by herself when Mr. Gunaratnam entered the room and lay down next to her. He put his hand down her shirt and began to massage her breasts and squeeze and twist her nipples. He then put his hand down her pants, touched her vaginal area and rubbed her labia before moving his hands back to her breasts. Mr. Gunaratnam made moaning sounds as he did this, and Ms. Sivakumaran could smell alcohol on him. She was initially frozen in shock, but when Mr. Gunaratnam stopped touching her, she ran out of the room.

[14] Other than her sister and a close friend, Ms. Sivakumaran did not tell anyone about what Mr. Gunaratnam had done for several years. She told her father in 2017 and eventually made a report to the police in 2018, which resulted in Mr. Gunaratnam being charged. He pleaded guilty on November 18, 2021.

(iii) Victim Impact

[15] Both victims prepared a victim impact statement (“VIS”) which they read at the sentencing hearing. The psychological scars Mr. Gunaratnam inflicted on these women when they were children are deep and continue to be painful. Ms. Vijayakumar described the effects of Mr. Gunaratnam’s actions in the following terms:

The sadness and the grief that I feel when I think about these incidences are beyond simple words on a piece of paper. I am asked to express how these incidences have affected me over the years- and it seems almost impossible to explain over text. Not only do I think about how awful and heinous the abuse was, but I also find myself wondering what life would have been like had these things never happened to me. Do you know what that’s like? Thinking about something, constantly and not being able to get it out of your mind- and then trying to erase them from your memory by thinking about a fictitious life that could’ve been-had these disgusting things never happened to me?

I don’t know a life without pain! I was seven years old when these vulgar acts happened. My earliest memories as a child are unspeakable, awful and traumatic. The worst part about the trauma is the constant conversations that I have with myself of: What would life have been like for me if these things never happened?

[16] Ms. Sivakumaran described her experience in this way:

These last four years have been so unbearable for me, there have been many days that I would think about the easiest way to kill myself because it was easier than reliving this over and over. …. For a long time, I couldn’t look in the mirror without hating myself and body and without thinking of the way you violated me.

What you have given me is years of trauma and a wound that will never fully recover. Because of you I constantly fear my safety and cannot fully trust most people around me. Because of you I fear having children because of pedophiles and abusers like you harming them. You have destroyed my trustful and wholesome nature.

B. The Offender

(i) History and Personal Circumstances

[17] A presentence report (“PSR”) was prepared for the sentencing hearing on the Toronto charges. It states that Mr. Gunaratnam is 60 years old and was born and grew up in Sri Lanka. He lived for a time in Norway and the United Kingdom, where he married his wife in 1986. The couple moved to Canada in 1988 and lived in Toronto and then Vancouver. They have three grown children, all of whom are successful professionals in their chosen fields and who continue to be supportive of Mr. Gunaratnam

[18] Mr. Gunaratnam has a long and consistent employment history in a variety of fields, including owning a gas station for 23 years.

[19] According to the PSR, Mr. Gunaratnam is in good health, although he was diagnosed with anxiety and depression after being charged, for which he was prescribed medication.

(ii) Remorse

[20] When interviewed by the author of the PSR, Mr. Gunaratnam denied that he was guilty of the offences. He also denied ever having any issue with alcohol consumption.

[21] After the PSR was prepared, Mr. Gunaratnam appeared to have a change of heart and wrote a letter to the author of the PSR in which he seems to have accepted that he committed the offences while under the influence of alcohol. He stated that he initially believed that Ms. Vijayakumar’s allegations were “motivated by revenge” because of some acrimony between her family and his. However, when Ms. Sivakumaran made her allegations, she had no motive to falsely accuse him. Mr. Gunaratnam stated that because of this and because of her description of his alcohol consumption, he “came to the conclusion that the B.C. allegations were true.” This conclusion led him to think further about Ms. Vijayakumar’s allegations and he “realized that is not just revenge” and that he “may have made errors in the Toronto case as well.” He expressed an apology to both victims in the letter and when he addressed the court during his sentencing hearing.

II. ANALYSIS

A. General Principles

[22] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As recently observed by the Supreme Court of Canada, “[t]he goal in every case is a fair, fit and principled sanction”: R. v. Parranto, 2021 SCC 46, at para. 10. While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30; Parranto, at para. 10.

[23] The application of those general principles to sentencing in cases involving sexual offences against children was recently discussed by the Supreme Court of Canada in Friesen. With respect to the gravity of such offences, the Court stated (at paras. 75-76):

… [C]ourts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Accurately understanding both factors is key to imposing a proportionate sentence (R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 43-44). The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of “ensur[ing] that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused” (Nasogaluak, [2010 SCC 6, [2010] 1 S.C.R. 206] at para. 42).

Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), [1996 230 (SCC), [1996] 1 S.C.R. 500] at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. 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. We emphasize that 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.

[24] With respect to the degree of responsibility of the offender, the Court in Friesen stated (at paras. 87-88):

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. They must not discount offenders’ degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children (Benedet, [“Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences” (2019), 44 Queen’s L.J. 284] at pp. 310 and 314).

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. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to (Arcand, [2010 ABCA 363, Alta L.R. (5th) 199] at para. 58; see also M.(C.A.), at para. 80; Morrisey, at para. 48). For sexual offences against children, we agree with Iacobucci J. that, save for possibly certain rare cases, offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child (Scalera, [2000 SCC 24, [2000] 1 S.C.R. 551] at paras. 120 and 123-24).

B. The Gravity of the Offences

[25] As required by Friesen, I must recognize the inherent wrongfulness of offences of the type committed by Mr. Gunaratnam It was described in that case in the following terms (at para. 78):

It is inherently exploitative for an adult to apply physical force of a sexual nature to a child (George, [2017 SCC 38, [2017] 1 S.C.R. 1021] at para. 26). This exploitation is rooted in the power imbalance between children and adults, the potential harm that sexual interference by adults poses to children, and the wrongfulness of treating children not as persons with equal dignity but instead as sexual objects to be used by adults.

As sexual objects to be used is how Mr. Gunaratnam treated the victims in this case.

[26] Many of the types of potential harm described in Friesen were realized in this case. The victims were “robbed of their youth and innocence” (para. 80). Their relationships with their families and their communities suffered. They both describe having body image issues and feelings of anxiety and depression. The harm caused to them was severe and long-lasting, persisted into their adulthood, and continues to exist to this day.

C. Mr. Gunaratnam’s Moral Blameworthiness

[27] As noted earlier, the moral blameworthiness in cases of this nature is high. Not only did Mr. Gunaratnam choose to exploit vulnerable children for his own sexual gratification, he did so by abusing the trust inherent in the relationship he had with the victims, as an uncle in the case of Ms. Vijayakumar and as a close family friend in the case of Ms. Sivakumaran In both cases, he was able to be alone with the victims because the relationship he had with their families was such that they and their parents trusted him.

[28] While Mr. Gunaratnam now accepts that he committed the offences, he has downplayed his own culpability by suggesting that he committed them while under the influence of alcohol. Indeed, he seems to suggest that he was so inebriated that he does not recall committing the offences. I accept that Mr. Gunaratnam was likely under the influence of the alcohol when he committed the offences. Both victims describe smelling alcohol on him. But I do not accept that he did not know what he was doing, or that he had since forgotten what he did. His moral blameworthiness is high.

D. The Appropriateness of a Conditional Sentence

(i) Relevant Authorities

[29] Counsel have provided me with several cases where conditional sentences were imposed for offences that are somewhat similar to the offences in this case, including R. v. C.J.C., [1991] O.J. No. 2097 (C.J.); R. v. B.R., [1996] O.J. No. 1703 (C.J.); R. v. P.H.H., [1997] O.J. No. 4234 (C.J.); R. v. G.(A.) (1998), 1998 7189 (ON CA), 130 C.C.C. (3d) 30 (Ont. C.A.), at paras. 56-60; R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132; R. v. F.G.F., 2002 ABQB 680; R. v. Thompson, 2010 ONCJ 399. Most of these cases are from 20 years ago or more, and all predate Friesen. As a result, they are of limited applicability as Friesen clearly signals that going forward, courts must give more weight to the harmfulness inherent in the sexual exploitation of children and the high level of moral culpability of those who engage in such conduct: Friesen, at para. 114.

[30] That said, a survey of more recent cases involving conduct that is comparable to what Mr. Gunaratnam did in this case suggests that an upper reformatory sentence may be appropriate: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161; R. c. F.J., 2021 ONCA 268; R. v. R.L.S., 2020 ONCA 338; R. v. Lloyd, [2021] O.J. No. 5163 (C.J.); R. v. Pye, 2021 ONCJ 517; R. v. D.B., [2021] O.J. No. 4381 (C.J.); R. v. D.S., 2021 ONSC 3972; R. v. J.L., 2021 ONCJ 297; R. v. D.J.S., [2021] O.J. No. 3994 (C.J.); R. v. P.H., [2020] O.J. No. 5450 (S.C.J.).

[31] I am aware of only two post-Friesen cases where conditional sentences were imposed for sexual exploitation convictions: R. v. P.S., 2021 ONSC 5091 and R. v. K.K., 2020 ONSC 7198. In both cases, concerns about the offender’s health if incarcerated appear to have played a central role in the decision to impose a conditional sentence: P.S., at para. 81; K.K., at para. 31. No such concerns exist in this case.

(ii) The Prerequisites for a Conditional Sentence

[32] As I read Friesen and the cases that have applied it, the length of sentence being proposed, two years less a day, is within the range of appropriate sentences in this case. The more difficult question is whether it is appropriate for Mr. Gunaratnam to be permitted to serve his sentence in the community.

[33] Section 742.1(a) of the Criminal Code sets out two prerequisites for such a sentence. The first is that service of the sentence must not endanger the safety of the community. I am satisfied that it would not in this case. The offences took place long ago and there is no suggestion of any further criminal conduct since then. Mr. Gunaratnam has been on bail since 2018 and as far as I am aware has abided by his bail conditions.

[34] The second prerequisite in s. 742.1(a) is that a conditional sentence must be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.” In light of the dicta in Friesen, I have serious reservations in this regard. Ordinarily, I would not hesitate in rejecting a conditional sentence in the circumstances of this case. The only reason I am considering it is because there has been a joint submission. Whether that fact justifies what I would otherwise view as an overly lenient sentence is the issue to which I now turn.

(iii) Joint Submissions

[35] As was explained by Moldaver J. in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 32, joint submissions as to sentence should only be rejected if the proposed sentence would “bring the administration of justice into disrepute or is otherwise contrary to the public interest.” He elaborated on this in the following terms (at para. 34):

… [A] joint submission should not be rejected lightly …. Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold - and for good reason, as I shall explain.

[36] In most cases, a joint submission is part of a resolution agreement that includes a guilty plea. While there is conflicting authority on whether the Anthony-Cook test applies to joint submissions following a trial, most courts that have considered the issue have concluded that it does: R. v. Baptiste, 2021 QCCA 1064, at paras. 67-74; R. v. Obodzinski, 2021 QCCA 1395, at para. 46 R. v. Stewart, 2017 ONSC 4843, at para. 72; R. v. Spence, 2017 ONSC 4749, at para. 52; Cf. R. v. Nelson, 2017 BCSC 1050, at para. 19, aff’d 2018 BCCA 161; R. v. Sauverwald, 2019 ABQB 482, 1 Alta. L.R. (7th) 13, at paras. 123-124.

[37] In this case, while there was no guilty plea to the Toronto charges, there was to the British Columbia charges. In her VIS, Ms. Sivakumaran described the emotional toll of not only the offence, but of the criminal process which has been ongoing for four years. Mr. Gunaratnam’s guilty plea put that ordeal to an end for her. As observed in Anthony-Cook, at para. 39, “[w]hen an accused pleads guilty in exchange for a joint submission on sentence, victims … are spared the ‘the emotional cost of a trial’ (R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 111.”

[38] Would the joint submission in this case lead a reasonable and informed person to believe that the “the proper functioning of the justice system has broken down”? Having considered the matter carefully, I have concluded that it would not. While a conditional sentence for offences of this type will usually be inappropriate, the public interest is served by the resolution of the British Columbia charges. I am therefore prepared to accede to the joint submission in this case.

III. DISPOSITION

[39] For the foregoing reasons, on each count of both indictments, Mr. Gunaratnam is sentenced to a term of imprisonment of two years less one day, to be served concurrently in the community pursuant to a Conditional Sentence Order (“CSO”) on the following terms in addition to the statutory terms:

• for the first 12 months of the sentence, to remain within 100 metres of his residence subject to the following exceptions:

o While travelling to or from or while at his place of employment, an educational facility in which he is enrolled, a place of worship, or a pre-arranged appointment with a physician, dentist or other health professional;

o for a period of four hours each week at a time to be determined to attend to the necessities of life;

o for medical emergencies involving himself or members of his immediate family; or

o with the written permission of his Supervisor;

• For the remaining 12 months less one day of the sentence, to obey a curfew between 11:00 p.m. and 6:00 a.m., subject to the same exceptions;

• reside at an address approved of by his Supervisor;

• not have any contact, directly or indirectly, with Ms. Vijayakumar, Ms. Sivakumaran, or members of their immediate families and not to be within 500 metres of any place he knows any of them to reside, work, attend school or otherwise be;

• not to possess any weapons as defined by the Criminal Code;

• to undergo such assessment or counselling as directed by his Supervisor and to sign any consents or releases necessary to ensure compliance with this condition;

• not to be alone with any person under the age of 16 years unless in the presence of another adult;

• to perform 50 hours of community service before the expiry of the CSO.

[40] At the expiry of the CSO, Mr. Gunaratnam will be placed on probation for a period of three years on the same terms and conditions as the CSO with the exception of the house arrest and curfew conditions.

[41] In accordance with s. 487.051(2) of the Criminal Code, Mr. Gunaratnam is ordered to provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the national databank.

[42] As required by ss. 490.012(1) and 490.013(2.1) of the Criminal Code, Mr. Gunaratnam is ordered to comply with the Sex Offender Information Registration Act (“SOIRA”) for life.

[43] Pursuant to ss. 109(1) and (2)(a), Mr. Gunaratnam is prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years.[6]

Justice P.A. Schreck

Released: December 15, 2021.

COURT FILE NO.: CR-19-50000425-0000

DATE: 20211215

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

VINCEY GUNARATNAM

REASONS FOR SENTENCE

P.A. Schreck J.

Released: December 15, 2021

[1] An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] N. Mandela, “Forward” in E.G. Krug et al., eds., World Report on Violence and Health (Geneva: World Health Organization, 2002), at p. ix.

[3] Mr. Gunaratnam was also found guilty of two counts of sexual assault which were stayed pursuant to the rule against multiple convictions.

[4] Mr. Gunaratnam pleaded guilty to that offence in this court pursuant to s. 479 of the Criminal Code with the consent of the Attorney General for British Columbia.

[5] Both victims advised the court that they wished to be identified and did not wish there to be an order pursuant to s. 486.4 of the Criminal Code banning publication of any information that could identify them.

[6] Counsel sought a discretionary firearms prohibition order pursuant to s. 110 of the Criminal Code. In my view, the offence of sexual interference is an offence “in the commission of which violence against a person was used,” thus making the order mandatory pursuant to s. 109(1)(a): R. v. White, 2020 ONCA 207, at paras. 22-25; R. v. K.M., 2017 ONSC 4769, at para. 39; R. v. Bird, 2015 SKCA 134, 467 Sask. R. 277, at para. 92. Also, at the time of the first incident involving Ms. Vijayakumar, she and Mr. Gunaratnam resided together, thus engaging s. 109(1)(a.1)(iii).