COURT FILE NO.: CR-18-007-00 DATE: 2022-02-25

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen J.A. McGill for the Crown

- and -

C.B. F. Thatcher for the Accused Accused

HEARD: February 15, 2022 by ZOOM, at Thunder Bay, Ontario Mr. Justice F. Bruce Fitzpatrick

WARNING

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons On Sentence

[1] In January 2021, C.B. was convicted of six separate charges, involving three independent incidents of sexual assault and inappropriate sexual touching of a minor person M.F. His trial occurred in February 2020. COVID-19 and a number of other circumstances delayed the hearing of final submissions, the delivery of the reasons for decision and then the sentencing submissions to February 15, 2022.

[2] The offences committed by C.B. occurred in January and February 2017. Counsel agree that convictions for offences of this type by an adult on a person under the age of 16 call for a penitentiary sentence. C.B. has been in custody since October 21, 2021. Counsel agree that a credit of one to 1.5 days credit should be given to C.B. for time he has spent incarcerated as the result of his failing to attend the first scheduled date for sentencing submissions in late September 2021. The parties agree a global sentence should be imposed. The parties disagree as to the length of the sentence. The Crown argues for a sentence of six years. C.B. argues for a sentence in the range of four to five years.

[3] The Crown asked for a number of ancillary orders. The Crown requested C.B. forthwith provide a DNA sample, that he be required comply with the Sex Offender Information Registration Act for life, that he be prohibited from possessing weapons for ten years pursuant to section 109 of the Criminal Code and that he be prohibited from attending public parks or swimming areas where persons under the age of 16 years are present or could be reasonable expected to be present pursuant to section 161(1)(a) of the Code. The defence agreed all ancillary orders were appropriate except for the order under section 161. I indicated on the record during the sentencing submissions that I agreed with the defence position regarding section 161. There was no evidentiary basis for making such an order in this matter. Otherwise I will be making the other ancillary orders that will be imposed at the end of these reasons.

[4] In January 2021, I also convicted C.B. of a breach of probation condition that was connected to the other findings. This was in respect of Count 9 on the indictment. Counsel did not specifically address the sentence for this offence during their submissions before me. I impose a one-day sentence for this offence concurrent to the other sentences I am going to impose in respect of the other convictions. No credit for time served is granted to C.B. in respect of this breach of probation charge only.

The Facts

[5] The facts leading to the conviction of C.B. were particularly outlined in my reasons for decision (R. v. C.B., 2021 ONSC 713). C.B. and M.F. were known to each other. In January 2017, C.B. was 21 years old and M.F. was 13. Both people had birthdays in February. M.F. was a vulnerable person. C.B. took advantage of that vulnerability to have intercourse with M.F. on three different occasions in three different places. One of the assaults was witnessed by a third party. C.B. testified at trial. He characterized his actions as trying to protect a vulnerable young person who had no reliable shelter in the depths of a typical Northwestern Ontario winter. I found otherwise. I found his actions were those of an irresponsible unempathetic predator who actively did not want any responsible adult to know what he was doing with an underaged girl.

Personal Circumstances of C.B.

[6] A presentence report was prepared for the Court. It was completed in April 2021. It outlines C.B.’s background.

[7] C.B. turned 27 two days before these sentencing submissions were made. He was in foster care from the time he was three until he was six. His elementary school years were uneventful. He became involved with substance abuse about the time he entered high school. He left school after completing Grade 10. Drugs and alcohol have had a negative impact on C.B.’s personal development since he reached adolescence. He minimizes this problem according the author of the presentence report. However, the author also reports C.B. did complete a program of eight substance abuse counselling session while on probation as an adult.

[8] C.B. is single. He has not worked since 2020. Prior to that. he worked as a labourer in the service and construction industries.

[9] On a more positive note, C.B. has assumed a significant caregiver role to his autistic sister. Family members report these obligations have held C.B. back from pursuing his own economic and social development. C.B. is committed to supporting his sister and correspondingly providing respite to his mother.

C.B. continued to maintain his innocence during his interactions with the officer preparing the presentence report. At the sentencing hearing, C.B. expressed regret for not having other adults intervene to assist M.F. at the times I have found he was committing acts of sexual assault and sexual interference. I did not take C.B.’s statements at the sentencing hearing as indicating he was expressly remorseful for the sexual acts for which he was convicted. He was sorry for thinking like a child and “hanging out with a child”. This remorse was not in respect of the offences for which he has been convicted.

Impact on the Victims and/or the Community

[10] M.F. did not give a victim impact statement filed in this matter. She testified at trial. I found that she was traumatized by the events that led to C.B. being convicted. This impact was ongoing as she testified three years after the events at issue. Sexual assault is a very serious offence. Sexual assault of a minor by an adult is abhorrent. Sexual assault in a circumstance where the adult has engaged in grooming conduct and where there is an express recognition of personal vulnerability is particularly shocking. I take it as a notorious fact that offences of such nature are demeaning, degrading, hurtful, traumatic and have short-term and long-term impacts for the victim. These types of offences also have a significant community impact. Children are society’s most prized assets. They are the future. Adults have a collective responsibility to act like adults when confronted with children in distress. Publication bans of necessity keep these matters from the media for the most part. Nevertheless, I am of the view the community at large would be shocked and sickened to be confronted by the circumstances of this matter.

Legal Parameters on Sentence

[11] The charges for which C.B. has been convicted under both sections 271 and 151 of the Code carry identical maximum and minimum sentences as the complainant was under the age of the 16. C.B. is liable to be imprisoned up to a maximum of not more than 14 years and to a minimum term of one year.

Position of the Crown

[12] The Crown seeks a penitentiary sentence of six years.

[13] The Crown relies on the recent decision of the Supreme Court of Canada in R v. Friesen, 2020 SCC 9. The Supreme Court stressed that sentencing involving sexual victimization of children should be reexamined. Sentencing judges have a duty to impose sentences that truly reflect the profound wrongfulness of this form of criminality. The Crown stressed the aspects of vulnerability of M.F., the trauma she has endured, the grooming and secretive behaviour undertaken by C.B. to avoid discovery of what he was doing with M.F. as justifying a mid-range sentence relative to the statutory maximum of 14 years. The Crown also relied on a decision in this court of R. v. B.S., [2014] O.J. No. 6130 and R v. Grimes, [2014] O.J. No. 5562 a decision of the Ontario Court of Justice. The sentence in R v. B.S. was for eight years in a circumstance where an adult male had sexual intercourse with a minor “hundreds of times” and the maximum penalty for sexual interference at the time was ten years. R v. Grimes involved a sentence of four years and four months where a 46-year-old offender had a sexually intimate relationship with a minor over a three-year period.

Position of the Defence

[14] Counsel for C.B. concedes the gravity of the offences for which C.B. has been convicted. Counsel submits C.B. had a difficult childhood. His life has been plagued by drug and alcohol abuse. C.B. relies on a recent unreported decision of the Ontario Court in the Northwest Region, R v. Moonias (September 4, 2019 Cleghorn J.). In that matter, an Indigenous adult offender who had sexually interfered with two minors contrary to section 151 was sentenced to a five year term after pleading guilty to the offences at issue. Counsel argues C.B. is not “the worst of the worst” as far as offenders go and this militates in favour of a sentence in the range of four to five years. The defence also referred to R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 which involved a six and half year global sentence, where the sexual assault and sexual interference components attracted respectively five and four-year concurrent sentences.

Mitigating and Aggravating Factors

[15] Section 718.2 of the Criminal Code requires the sentencing judge to increase or decrease the sentence imposed according to any aggravating or mitigating factors in this case. In my view C.B.’s expression of remorse is not a mitigating factor. He was sorry he did not call the police instead of continuing to be with M.F. This was not an expression of regret for the sexual acts for which he has been convicted. C.B. is and was entitled to maintain his innocence. He did so at trial. He did so with the presentence report writer. I took his statements of remorse to be consistent with a position that he regrets having continued to be in the presence of M.F. in the middle of the night in the common room of an apartment building where he did not live, overnight in the washroom of a public library that was closed to the public, and in a bedroom of his mother’s house where M.F was told she was not welcome.

[16] I agree with the submission of the Crown that the grooming behaviour exhibited by C.B. in this matter is an aggravating factor. C.B. had created a clear relationship of trust with M.F. The birthday presents given to him by her in February 2017 were utter and overt signs that something very wrong was going on. It is shocking, first, that M.F. was able to obtain a 26-ounce bottle of vodka at age 13, and second, that C.B. just took it as a gift with no response. Despite the fact that there was no victim impact statement, I simply cannot dismiss the possibility that M.F. was and is greatly impacted by what C.B. did to her on the three occasions where I have found he committed acts of sexual assault and sexual interference.

Principles of Sentencing

[17] In this case, I am mindful of the sentencing principles contained in ss. 718 of the Criminal Code of Canada.

[18] Section 718 provides:

718.The fundamental purpose of sentencing is 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; (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 and to the community.

[19] Section 718.1 provides that it is a fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[20] Section 718.2 requires the Court to impose a sentence that is similar to sentences imposed on other similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the cumulative effect must not be unduly long.

Reasons for Sentence

[21] I am persuaded that the sentence proposed by the Crown represents the most just, fit and appropriate sentence for C.B. In my view the Crown has taken a generous approach. A sentencing position in a range of eight to ten years would not have been out of the question given all the circumstances of this case. I appreciate C.B. was a relatively youthful offender at the time of the offences. He made some very bad choices. He acted with intent in taking M.F. to the places he took her to have sex with her. As this will be the first penitentiary sentence for him, it is incumbent on the court to exercise restraint and impose the least onerous sentence balancing the gravity of the offence with C.B. circumstances.

[22] At paragraph 5 of R. v. Freisen, the SCC said

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.

[23] The defence notes that the decision in R. v. Friesen was released in April of 2020. The offences at issue took place in 2017. The defence argues that C.B. should have the benefit of the sentencing regime in place at that time. I note the facts in Friesen involved a one-occasion sexual interference by an adult male on a 4 year-old child with the complicity of the child’s mother. Abhorrent, yet not the fact pattern in this case. However, the Friesen offence occurred in 2016. It is very hard to ignore the strong message sent by the Supreme Court in Friesen.

[24] In my view C.B. actively and in a calculating way, exploited M.F.’s vulnerabilities concerning her own relationships and the difficulties she was having with her father. How he tried to hide from other adults during the course of his actions strikes me as particularly offensive. She was abusing alcohol and marijuana as well. C.B. did nothing about this. C.B., at 21, had intercourse with a 13 year-old on three separate and distinct occasions. In these matters there is sometimes an attempt to put the actions on a kind of spectrum. Sexual interference can occasion actual violence, personal injury, and physical force used in aid of allowing the sexual act. This kind of behaviour did not occur here. However, the grooming aspect of C.B.’s behaviour in my view is a kind of calculated, external and deliberate force that has the same result as physical means to overcome a victim. This is why I say the Crown’s submission as to sentence is manifestly just and apt.

[25] Defence counsel has made thoughtful and responsible submissions in this matter. I appreciated the comment that sentencing is more of an art than science. Counsel has acknowledged a penitentiary sentence is appropriate. There is no question about that in my mind. However, four or five years is not fit or just given what happened here.

[26] C.B.’s acts against a child requires a significant degree of denunciation in the form of a lengthy penitentiary sentence.

[27] I am directed by the Criminal Code to also respect a principle of proportionality in sentencing. Like offences attract like sentences. It is a cornerstone of our justice system and our democracy which strives to create similar conditions for all citizens regardless of their personal circumstances. The sentences in the authorities cited by the Crown reflect my appreciation of society’s concern that violence of any kind against children is a matter that should never be taken lightly. The events at issue here were in the nature of the most serious type of breach of the social contract. This society does not condone adults having sex with children. Period. C.B.’s acts require a serious response in the form of a significant period of incarceration.

[28] In my view a just, fit and appropriate global sentence in all the circumstances is six years less time served of as agreed by the parties. The parties agree time served is 191 days (October 21, 2021 to February 25, 2022 127 days X 1.5 = 190.5). It is of a length that I believe demonstrates an appropriate degree of denunciation. I do see it as of an appropriate length such that C.B. can avail himself of treatment for his drug problem and his issues related to sexual predation.

[29] The defence argued that based on the principles of Kienapple v. The Queen, [1975] 1 S.C.R. 729, C.B.’s actions on each of the three separate occasions for which he was convicted substantially related to the same event or circumstance. The Crown argued that the acts of sexual assault and sexual interference were each of an independent quality such that the Kienapple principle did not apply. I am persuaded by the defence argument in respect of the application to the Kienapple principle in this matter. C.B. was convicted of offences under section 151 and 271 for three independent situations. The defence submits the section 271 charges should be conditionally stayed and sentence imposed only in respect of the section 151 convictions. I agree.

[30] In my reasons for decision, I identified the three separate occasions of sexual assault and sexual interference as the Apartment Incident (Count 1 and 4), the Library Incident (Count 2 and 5) and the Home Incident (Count 3 and 6). I will use those identifiers to now sentence C.B. I intend to stay the s. 271 convictions and impose sentence on the s. 151 convictions. Accordingly, I hereby sentence C.B. as follows:

1. Count 1 (the Apartment Incident) for sexual assault contrary to section 271 of the Code the charge is conditionally stayed;
2. On Count 4 (the Apartment Incident) for sexual interference with a person under the age of 16 years contrary to section 151(a) of the Code C.B. is sentenced to a period of incarceration of six years less time served to the date of release of these reasons in the amount of 191 days (October 21, 2021 to February 25, 2022; 127 days X 1.5 = 190.5);
3. On Count 2 (the Library Incident) for sexual assault contrary to section 271 of the Code the charge is conditionally stayed;
4. On Count 5 (the Library Incident) for sexual interference with a person under the age of 16 years contrary to section 151(a) of the Code C.B. is sentenced to a period of incarceration of six years less time served to the date of release of these reasons of 191 days. This sentence will run concurrent to the sentence imposed on Count 4, for the Apartment Incident;
5. On Count 3 (the Home Incident) for sexual assault contrary to section 271 of the Code the charge is conditionally stayed;
6. On Count 6 (the Home Incident) for sexual interference with a person under the age of 16 years contrary to section 151(a) of the Code C.B. is sentenced to a period of incarceration of six years less time served to the date of release of these reasons of 191 days. This sentence will run concurrent to the sentence imposed on Count 4 for the Apartment Incident;
7. C.B. shall forthwith provide a sample of his DNA pursuant to s. 487 of the Code;
8. C.B. shall comply with the registration requirements of the Sex Offender Information Registration Act pursuant to s. 490.012 and the relevant subsections for life;
9. C.B. shall be prohibited from owing or possessing any weapon as set out in section 109 of the Code for a period of ten years;
10. On Count 9 for breach of probation order C.B. is sentenced to one day incarceration concurrent to the sentence imposed for the Apartment Incident;
11. A victim impact surcharge is waived.

[31] I am releasing these reasons for sentence to the parties and Court Services directly. I direct that Court Services prepare the necessary paperwork so that C.B. can begin as soon as possible to be transferred from the provincial system where he is presently incarcerated to a federal institution where he can begin to serve his sentence. C.B. and M.F. will be provided a copy of these reasons by counsel. In this matter, there have been a number of attendances since February 2020 that have been lost because of miscommunication or other technical problems related to the pandemic. I seek to conclude this matter in an efficient manner and to avoid the occasion for any further unnecessary delay.

“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

Released: February 25, 2022