Court File and Parties

COURT FILE NO.: CR-20-50000315-00000 DATE: 20220218

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – R.A.

Counsel: Stuart Rothman and Anjali Rajan, for the Crown Ian McGuaig, for R.A.

HEARD: January 21, 2022

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

R.F. GOLDSTEIN J.

1. Overview

[1] On October 22, 2021 I convicted R.A. of two counts of sexual interference contrary to s. 151(a) of the Criminal Code. The victim was his stepdaughter, C.A. He now comes before the Court for sentencing.

2. The Facts

a. Circumstances of the offence

[2] The full details of the offence are found in my reasons for judgment: R. v. R.A., 2021 ONSC 7044.

[3] In October and November 2018 C.A. was 11 years old. R.A. was married to C.A.’s mother. They all lived in an apartment with C.A.’s grandfather. R.A. and C.A. were alone in the house on a Sunday morning. C.A.’s mother had gone to work. R.A. testified that he was going to tutor C.A. in math. C.A. testified that they were watching a movie or television in the bedroom that R.A. shared with C.A.’s mother. R.A. started hugging and kissing C.A., using his tongue. He kissed her on the lips and put his hands down her pyjama shorts. He touched her vagina on the “inside”. C.A. testified that it went on for ten seconds, until she went to her room, claiming she had homework. She then immediately texted her mother about the incident.

[4] C.A. testified that she was trying to be nice to R.A. so he wouldn’t do anything – she testified that he had earlier kissed her twice on the lips. The kissing incidents had happened when C.A. was alone in a car with R.A. – once at a grocery store, and once at a pet store.

b. Circumstances of the offender

[5] R.A. is 41 years old. He immigrated to Canada along with C.A. and C.A.’s mother in April 2017. He married C.A.’s mother in 2016 in Chile. His mother resides in Chile, as does his father and step-siblings. He maintains good communications with his mother and step-siblings. R.A. graduated from a college construction program in Chile and worked there in the construction field. He is currently self-employed and has operated a small construction business while he has been in this country. He has no criminal record and no history of contact with law enforcement. He does not appear to have an alcohol or drug problem.

[6] While R.A. was on bail he was not permitted to live with C.A., but he maintained his relationship with C.A.’s mother. In fact, after the incident but prior to trial they had a child together. R.A. and C.A.’s mother have since separated, but R.A. provides financial support to C.A. and her mother as well as his own new child. He continues to be involved in his child’s life, although he is obviously not involved with C.A.

[7] Probation and Parole Services prepared a pre-sentence report. R.A. continued to vehemently deny that he committed these offences. The probation officer offered the opinion that it was concerning that despite the finding of guilt R.A. maintained his innocence. Mr. McCuaig objected to that portion of the otherwise positive pre-sentence report. I agree with Mr. McGuaig. It is unrealistic to expect that an offender will turn 180 degrees and admit guilt to a probation officer after denying it to a judge. I take nothing from the fact that R.A. continues to deny culpability. I also do not take the probation officer’s opinion on this point into account.

c. Impact on the victim

[8] C.A. and C.A.’s mother did not provide victim impact statements to the court. C.A. is, or at least was, a troubled young person. The sexual touching came to the attention of the authorities when C.A.’s teacher saw cuts on her arm. C.A. explained to the teacher that she cut herself because she had been bullied at school. C.A. also told the teacher that her stepfather had touched her. It is difficult to make a finding of fact about the impact of the sexual abuse in this case. Did C.A. cut herself because she was already a troubled child? Did the sexual abuse contribute to that? I simply don’t have enough evidence to say. Instead, I must infer the harm to C.A. and her family relationships: R. v. Friesen, 2020 SCC 9. I excerpt key passages at paras. 57-58:

A number of this Court's decisions provide insight into these forms of harm. In R. v. L. (D.O.), [1993] 4 S.C.R. 419, L'Heureux-Dubé J. emphasized the emotional trauma that the nine-year old complainant experienced from sexual violence (pp. 439-42). Similarly, in McDonnell, McLachlin J. (as she then was) stressed the emotional harm of "the violation of the child victim's integrity and sense of self-worth and control over her body" that the child victim experienced as a result of being sexually assaulted while sleeping (para. 111). The likely result of the sexual assault would be "shame, embarrassment, unresolved anger, a reduced ability to trust others and fear that ... people could and would abuse her and her body" (para. 113).

These forms of harm are particularly pronounced for children. Sexual violence can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity (Sharpe, at paras. 158, 184-85 and 188, per L'Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at s. 12.64). For this reason, even a single instance of sexual violence can "permanently alter the course of a child's life"…

[9] In any event, as the Court in Friesen recognized at para. 83, it is often impossible to determine the impact on a child victim:

In many cases, it will be impossible to determine whether these forms of harm have occurred at the time of sentencing. If the victim is an adult at the time of sentencing, the court may be able to conclude that these forms of potential long-term harm have materialized into actual harm. However, as Moldaver J.A. (as he then was) recognized in D. (D.), if the victim remains a child at the time of sentencing, "[t]ime alone will tell" whether that child will experience particular forms of harm as an adult (para. 38). It may also be impossible to determine the nature and extent of the harm that the victim will experience during childhood, since particular forms of harm may materialize following the date of sentencing.

[10] At p. 60-61 of Friesen the Supreme Court discussed the harm to family and social relationships:

Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship (R. v. D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para. 41). If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim…

The ripple effects can cause children to experience damage to their other social relationships. Children may lose trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school, or participate in school activities… This loss of trust is compounded when members of the community take the side of the offender or humiliate and ostracize the child…

[11] I infer that the impact on C.A. has been significant. In terms of the impact on the community, Friesen also address that concern at para. 63:

The ripple effects of sexual violence against children can make the child's parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents and caregivers' trust in friends, family, and social institutions and leave them feeling powerless and guilty.

3. Legal Parameters

[12] The maximum penalty for sexual interference contrary to s. 151(a) of the Criminal Code is 14 years imprisonment. The Ontario Court of Appeal has struck down the mandatory minimum of 12 months imprisonment in R. v. B.J.T., 2019 ONCA 694. The Ontario Court of Appeal has also struck down the prohibition on conditional sentences for offences where the maximum penalty is 14 years: R. v. Sharma, 2020 ONCA 478. Thus, a conditional sentence is available: Criminal Code, s. 742.1(b).

4. Positions of the Crown and Defence

[13] The Crown’s position is that I should sentence R.A. to two years in the penitentiary followed by three years of probation, as well as the mandatory ancillary orders. Mr. McCuaig’s position is that I should sentence R.A. to a conditional sentence to be served in the community.

5. Case Law

[14] The leading case in this area is obviously Friesen. In that case, the offender met the mother of the victim online. Friesen and the mother had a consensual sexual encounter. The mother, at Friesen’s request, then facilitated a sexual encounter with the mother’s four-year old daughter. The mother had a friend who had been baby-sitting and was sleeping over. The child’s screams woke her up, and she took the child out of the room. Friesen then threatened the mother that unless she brought the child back he would tell the friend about the sexual abuse.

[15] The Supreme Court used Friesen as an opportunity to take a fresh look at sentencing in cases of child sexual abuse. The Court emphasised sending a message about sexual offences against children at para. 5:

… 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.

[16] The court discussed, in detail, the harm generated by sexual offences against children. The Court noted that sexual violence has a disproportionate impact on girls and young women – sexual violence is highly gendered. The Court also noted that sexual offences against children disproportionately impact many groups that are already vulnerable, such as Indigenous people.

[17] The Friesen court further noted that Parliament has repeatedly increased sentences for sexual offences against children. This is in keeping with the increased understanding of the harm to children, the gravity of sexual offences against children, and the degree of responsibility of offenders who commit sexual crimes against children. As a result, the Court stated at para. 100 of Friesen that courts should generally impose higher sentences than those that were imposed when the maximum penalties were lower. Moreover, courts should treat sexual offences against children more seriously than sexual offences against adults, particularly where the offender is in a position of trust. The Court sent a clear message at para. 114 that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.”

[18] Both the Crown and the defence provided pre- and post- Friesen cases, although, as my colleague Christie J. commented in R. v. P.S., 2021 ONSC 4023, “it is important to keep in mind that older cases may be of less value to this sentencing court given more recent guidance from the Court of Appeal and Supreme Court of Canada.”

[19] In R. v. Shilling, 2021 ONCA 916 the Court of Appeal applied Friesen. The offender committed two serious acts of sexual interference when the victim was a child between 11 and 14 years old. He had a prior conviction for sexual assault. Relying on Friesen, the Court of Appeal upheld a sentence of 4 ½ years.

[20] In R. v. J.(T.), 2021 ONCA 392, 156 O.R. (3d) 161 the victim was 6 or 7 years old. She was at the house of her brother’s friend for a sleepover. In the middle of the night the offender took the victim into the bathroom and had her masturbate him. He also asked her to fellate him. The trial judge sentenced the offender to nine months and two years probation. The trial judge noted that there were many mitigating factors, including the lack of a record, being a supportive spouse and parent, and having many pro-social antecedents. The Court of Appeal found that the sentence was manifestly unfit. After reviewing the sentencing principles as well as Friesen Zarnett J.A. stated at para. 32 that the reasons failed to:

… give the inherent wrongfulness of the conduct, its highly morally blameworthy nature, and the extent of harm caused to C.M., the centrality that Friesen demands in sentencing. Nor do the reasons give paramountcy to the principles of denunciation and deterrence.

[21] Zarnett J.A. went on to find that the trial judge had given too much weight to the circumstances of the adult offender and simply failed to give paramountcy to the principles of denunciation and deterrence. He would have sentenced the offender to two years.

[22] R. v. C.B., 2021 ONSC 187: the offender was convicted of multiple sexual offences against his biological daughter when she was between 13 and 16 years old. The sexual activity included touching and oral sex. Woodley J. sentenced the offender to five years.

[23] Mr. McCuaig, for Mr. Alvarez, submitted cases where the courts have imposed conditional sentences for sexual offences against children.

[24] In P.S., previously referred to, the offender committed 3 or 4 acts of fellatio on a 16-year old boy living with him in 1988. He was found guilty after a trial. At the time, the offence had a maximum penalty of 5 years. At the time of sentencing, P.S. was 71 years old, suffered from Parkinson’s disease, and had lived a remarkably pro-social life. P.S. had testified that he did not realize what he was doing was wrong at the time but was very remorseful as he came to understand the harm to the victim. Christie J., in a very detailed and thoughtful judgment, found that a conditional sentence was available. She also found that P.S.’s serious medical conditions could not be addressed in a custodial setting. She sentenced P.S. to two years less a day to be served in the community.

[25] In my respectful view, P.S. is distinguishable from this case. I would characterize it as a case of exceptional circumstances. Christie J. thoroughly analysed the sentencing principles set out in Friesen and decided that a penitentiary sentence was not required in the circumstances of the particular case. R.A. is clearly in a different position from P.S., without the same medical issues and without the mitigating factor of remorse.

[26] Mr. McCuaig also relied on R. v. R.S., 2021 ONSC 2263, another very detailed and thoughtful judgment. R.S. and the victim met at work and became friends. After an evening out both became somewhat drunk. At the victim’s apartment R.S. violently assaulted the victim, choking her and digitally penetrating her. A jury convicted R.S. of sexual assault and choking. After a constitutional challenge Nakatsuru J. found that a conditional sentence was available. R.S. was an indigenous person. A Gladue report was prepared. R.S. had suffered from many of the tragic circumstances that all too often plague Indigenous Canadians. His parents suffered at the hands of alcoholic parents and they, too, had alcohol problems. Tragically, his mother disappeared and her remains have never been found. His father appears to have taken his own life. R.S. was taken into foster care. He eventually managed to find steady employment but suffered from alcohol dependency. Nakatsuru J. ultimately applied the Gladue principles and determined that in the circumstances of the case that a penitentiary sentence was not required. He sentenced R.S. to an intermittent 90-day sentence on the choking charge, and a conditional sentence of two years less a day on the sexual assault charge.

[27] Respectfully, I find that R.S. is also distinguishable from this case. The most obvious distinguishing features are that the victim was not a child and the offender was indigenous.

[28] In R. v. K.K., 2020 ONSC 7198, the offender was the 60-year old grandfather of the victim’s friend. The offender groped the victim’s breasts several times when she was between 10 and 12 years of age. The offender also forced the victim to touch his penis on one occasion. De Sa J. found that a conditional sentence would not violate the principles of denunciation and deterrence set out in Friesen. He found many mitigating factors. De Sa J. was particularly influenced by the fact that K.K. was in poor health, and the danger posed by Covid-19 in a congregant setting militated against imprisonment.

[29] Again, and with great respect, I also find that K.K. is also distinguishable from this case, given the health and age status of the offender. As well, the offender was in a much lesser position of trust than R.A. was in relation to C.A.

6. Mitigating and Aggravating Factors

[30] There are several important mitigating factors in this case. R.A. has led an entirely pro-social life. He operates his own construction business. He supports his children. He has been a productive member of the community. He has been on bail without breaching it in any way.

[31] There are, of course aggravating factors as well. The most important aggravating feature of the offence is that R.A. was in a position of trust with C.A. He was her stepfather. She called him “Dad”, and he considered her like the daughter he never had. She was only 11 years old at the time. This was a gross violation of that trust. The other aggravating factor is that this was sexual contact that happened more than once. Admittedly the two kissing incidents are less serious than the incident of sexual touching, but it is still aggravating. I accept C.A.’s evidence that the sexual touching involved digital penetration, and I find that is aggravating – recognizing, as the Supreme Court in Friesen stated, that even non-penetrative sexual abuse can be highly traumatizing.

7. Ancillary Orders

[32] There will be a mandatory DNA order, as well as a weapons prohibition under s. 109 of the Criminal Code. Pursuant to s. 490.013(2.1) of the Criminal Code R.A. will be placed on the sex offender registry for life.

8. Sentence Imposed

[33] As my colleague Nakatsuru J. commented in R.S., sentencing is the most difficult part of the criminal process. It is particularly challenging when the crime involves an offender of previous good character who has committed a sexual offence against a child with whom he was in a close position of trust. On the one hand, R.A. has spent his life as a normal, hardworking, law abiding person. The people who know him are convinced he is not guilty. And yet this crime involves a sexual offence against a child. As a person in a position of trust towards that child, he was bound to protect and nurture her, not abuse her.

[34] Is a conditional sentence appropriate? The most salient statutory provision is s. 742.1(a) of the Criminal Code:

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community… if:

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2…

[35] The purposes and principles of sentencing are well known and set out in s. 718 of the Criminal Code. I need not repeat them. Of particular note, however, is that the court must give primacy to the denunciation and deterrence of the abuse of children: Criminal Code s. 718.01.

[36] R.A. is undoubtedly a good candidate for a conditional sentence in the sense that he has led a pro-social life and will likely comply with any order a court might impose. I also think it is likely that serving his sentence in the community would not endanger the safety of the community. That said, Friesen is clear: exemplary sentences are necessary to denounce and punish sexual crimes against children. In my view, a non-custodial sentence would insufficiently denounce a significant breach of trust involving digital penetration of an 11-year old girl. I find that a conditional sentence would not be appropriate in this case.

[37] How should I consider the collateral consequences of the sentence? It is an important collateral consequence that a penitentiary sentence may well result in R.A.’s deportation: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. A permanent resident becomes criminally inadmissible to Canada where he or she is found guilty of an offence punishable by ten years or more or is imprisoned for more than six months: Immigration and Refugee Protection Act, s. 36(1)(a). Pursuant to s. 64(1) of the Immigration and Refugee Protection Act a permanent resident may not appeal a removal order to the Immigration Appeal Division where he or she has been imprisoned for six months or more. As Mr. McCuaig concedes, a sentence of six months would not be fit. A conditional sentence may not result in a removal order.

[38] R.A. has expressed the fear, through Mr. McCuaig, that he does not know what will become of his financial support for his daughter and his former spouse if he goes into custody. This is an entirely understandable fear. Regrettably, however, there is nothing exceptional about it. This can be said of many, if not most offenders where that offender is in a significant position of trust towards the victim. It is one of the many tragic consequences of this most deplorable of crimes.

[39] Although I must take into account the collateral consequences of this sentence, the sentence must still be proportionate to the gravity of the offence and the degree of responsibility of the offender. I recognize that tragic consequences may well flow if I impose a penitentiary sentence, but I simply do not think that anything less would be fit. As the Supreme Court of Canada has emphasized and I keep repeating, the normal sentence for child sexual offences involves mid-single digit penitentiary sentences. While I recognize that there are cases where exceptional circumstances have resulted in a conditional sentence, even after Friesen, there are no exceptional circumstances here. The fact that an offender may be deported is not, in my respectful view, an exceptional circumstance. Neither is the fact that an offender has been previously of good character. Many offenders are both subject to deportation and of previous good character.

DISPOSITION

[40] R.A. is sentenced to 6 months on count 1, which is the count dealing with the kissing incidents. He is sentenced to two years in the penitentiary on count 2, that sentence to be served concurrent to count 1. He will be subject to the following ancillary orders:

• A mandatory DNA order;
• A weapons prohibition under s. 109 of the Criminal Code for 10 years;
• R.A. will not be within two kilometers of any dwelling-house where he knows C.A. resides without the prior written consent of C.A. for ten years. This condition will take effect upon the expiry of R.A.’s probation order.
• R.A. will not seek, obtain, or continue in any employment that involves being in a position of trust or authority towards a person under 16 years of age for ten years, pursuant to s. 161(b) of the Criminal Code;
• R.A. will be on the sex offender registry for life pursuant to s. 490.013(2.1) of the Criminal Code;
• R.A. will have no contact with C.A. s. 743.21 of the Criminal Code except where approved by his parole officer while he is on parole;
• R.A. will be put on probation for three years. He is to report to a probation officer within 2 days of release from custody and thereafter as required. He is to take such counselling as the probation officer may direct and will sign any releases required for the probation officer to monitor his progress. He will have no contact, directly or indirectly, with C.A. except with the prior approval of his probation officer.

[41] R.A. will surrender himself at the Toronto South Detention Centre, no later than 6 pm today, February 18, 2022.

Released: February 18, 2022