R. v. M.S., 2022 ONSC 2279

R. v. M.S., 2022 ONSC 2279

CITATION: R. v. M.S., 2022 ONSC 2279

COURT FILE NO.: CR-19-30000194-0000

DATE: 20220412

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.S.

K. Pitt, for the Crown

S. Sutharsan, for M.S.

HEARD: March 31, 2022

REASONS FOR SENTENCE¹

SCHRECK J.:

1M.S. sexually abused three young girls in their early teens, the daughters of family friends who were temporarily living with him. The abuse included intercourse, attempted intercourse, touching of their breasts and forcing them to touch his penis. He made threats to each to ensure their silence.

2The abuse came to light in 2017 when one of the victims, S.S., reported it to the staff of a group home where she was living. The other two victims, T.C. and T.S., who are sisters and S.S.’s cousins, were interviewed in the course of the investigation and M.S. was charged with several counts of sexual assault and sexual interference in relation to all three. Following a judge-alone trial, he was found guilty on all counts.

3M.S. is 50 years old. He is a refugee from Sri Lanka with a consistent employment history and, apart from a dated conviction for a minor fraud, has no prior criminal record.

4The Crown submits that M.S. should receive a sentence at the higher end of a nine-to-13 -year range. Counsel for M.S. submits that a sentence of five to seven years is appropriate.

5For the reasons that follow, M.S. is sentenced to imprisonment for a total of eight years.

I. FACTS

A. The Offences

(i) S.S.

6M.S. was a close friend of S.S.’s family and she referred to him as her uncle. When S.S. was 12 or 13 years old, she, her parents and her younger brothers spent the summer living at a house M.S. rented together with his wife, Y.L. Her cousins, the other two victims, sometimes stayed there as well.

7S.S. testified that the first instance of improper touching occurred at a water park when she was 13 years old. She and her cousin were playfully trying to pull M.S. into the water when he touched her several times on the top of her chest and her “butt.” There were similar incidents on other occasions, but S.S. was unclear as to when or how many times they occurred.

8A few days after the incident in the water park, M.S., S.S. and several other people were watching a movie on television. Eventually, everyone except M.S. and S.S. went to bed, leaving them alone together. M.S. began to rub S.S.’s shoulder. She told him to stop, left the room, and went to sleep on a bed in the hallway. Later, she woke up to find M.S. sitting on the bed and touching her legs. She tried to get up to leave but he prevented her from doing so. He told her not to scream or else he would hurt her cousins. He began to undress her and attempted unsuccessfully to penetrate her vagina with his penis. At that point, someone upstairs opened a door and M.S. got up from the bed. S.S. used the opportunity to run into the bathroom and lock the door.

9A few days later, S.S. was alone in a bedroom and M.S. entered. She asked him what he was doing during the previous incident and he replied that he would show her. She told him that she would not let him, but relented when he threatened to hurt her parents. M.S. removed S.S.’s underwear, pushed her onto the ground, and penetrated her vagina with his penis, causing her pain. S.S. was unable to recall how long his penis was in her vagina, but felt him leave when someone opened a door elsewhere in the house. M.S. put his shorts back on and told S.S. to act as if nothing happened. S.S. later had a shower and noticed that she was bleeding.

10Initially, S.S. did not tell anyone about what happened. She eventually told M.S.’s wife, who told her that M.S. must have mistakenly believed S.S. to be his wife.

(ii) T.C.

11T.C. and her family lived with M.S’s family at a house he rented after moving from the house where the incidents involving S.S. had taken place. T.C. was uncertain about her age at the time, but it was somewhere between 12 and 14.

12While living at M.S.’s home, T.C. slept in a bed with M.S. and his wife. Sometimes, her sister, T.K., slept there as well but at other times she slept on a couch in another part of the house. A few days after moving in, T.C. was sleeping in the bed when M.S. reached under her bra and touched her breasts. He tried to remove her bra but was unable to do so. T.C. tried to move away from M.S. He stopped touching her when the alarm clock went off. After this, T.C. told M.S.’s wife that she did not want to sleep in the middle of the bed, but did not say why. When M.S. found out, he became angry and told T.C. that she had to sleep in the middle of the bed.

13The following night, M.S. tried to put his hand down T.C.’s pants. He took her hand and put it on his penis to try to “jerk off.” She pretended to be asleep and turned around. M.S. pulled her pants down and tried to put his penis into her vagina. His penis penetrated the surface of her vagina but did not go in any further. T.C. pushed M.S. off and told him to stop, but he persisted. She got up, went to the bathroom, and then returned to the bed. At this point, M.S. and T.C. were lying with their backs together. Eventually, M.S. got up and went to the bathroom. T.C. believed that he had ejaculated because it “smelled weird.”

14T.C. described another incident during which M.S. grabbed her hand and rubbed it up and down on his penis. On at least one other occasion, he touched her breasts under her clothing.

15According to T.C., M.S. threatened to hurt her if she told anyone about what happened. She and her sister eventually told M.S.’s wife. She told them not to tell anyone and that she would “deal with it.” However, M.S.’s conduct continued after that, at least with respect to T.C.

(iii) T.K.

16T.C.’s sister, T.K., testified about incidents that occurred at the same house. She believes that these took place when she was 15 years old, but was unsure.

17One night when she was sleeping in the same bed at M.S., T.K. felt him remove her pants. He put his penis between her “butt cheeks” and moved it up and down. T.K. did not say anything to him. M.S. then got up and went to the washroom, after which he returned to the bed and he and T.K. fell asleep.

18The following night, M.S. put his hands under T.K.’s clothing and squeezed both of her breasts.

19The Indictment charges that the offences involving T.C. and T.K. took place between June 1, 2015 and December 31, 2016. While I am satisfied that the offences took place within this time frame, I unable to make specific findings as to when they took place.

(iv) Victim Impact

20S.S. provided a victim impact statement in the form of a poem. It poignantly describes the harm that resulted from M.S.’s conduct. In it, S.S. describes having scars that cannot be erased and being plagued by self-doubt and guilt. She speaks of consuming drugs and engaging in self-harm. She describes herself as being “broken to the core.”

21T.C. and T.K. declined to provide victim impact statements.

B. The Offender

22M.S. is 50 years old. He was born and grew up in Sri Lanka and had a happy childhood until he was 18 years old, when his father was killed by a stray shell during the civil war ongoing in Sri Lanka at the time.

23When M.S. was 30 years old, he left Sri Lanka and came to Canada as a refugee, joining his two sisters and his mother, who had arrived here earlier. He met the woman who was to become his wife in 2003 and they married in 2007. They lived apart for the first several years of their marriage because of his wife’s immigration issues, but he was able to sponsor her to immigrate to Canada in 2013. M.S. has lived apart from his wife since he was charged with these offences in 2017. They do not have any children.

24M.S. has a limited education, having left school in Grade 7 to work on his family’s farm. He has a consistent employment history doing largely unskilled work since arriving in Canada, sometimes working at more than one job at a time. His most recent job, as a cleaner at a motel, ended in 2021 when he contracted COVID-19. Since then, M.S. has been living on a government COVID-19 financial relief program. Letters from a number of employers were made exhibits at the sentencing hearing and all of them describe M.S. as a hardworking and reliable employee.

25M.S. also volunteers at a Hindu Temple assisting senior citizens.

26Apart from a conviction for fraud under $5000 in 2010 for which he received a suspended sentence, M.S. has no criminal record.

II. ANALYSIS

A. Overview of Sentencing Principles

27Section 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 the Ontario Court of Appeal recently stated in R. v. Morris, 2021 ONCA 680, at para. 58, “[t]he individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.” 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; R. v. Parranto, 2021 SCC 46, at para. 10.

28The 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 para. 76):

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 CanLII 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.

29With respect to the degree of responsibility of the offender, the Court in Friesen stated (at para. 88):

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).

B. The Gravity of the Offences

30As required by Friesen, I recognize the inherent wrongfulness of offences of the type committed by M.S. 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 M.S. treated the victims in this case.

31Many of the types of potential harm described in Friesen were realized in this case. The poem prepared by S.S. makes it clear that she was “robbed of [her] youth and innocence” (para. 80). The effects of the offences on her are significant and persistent. While T.C. and T.S. declined to provide victim impact statements, I have no doubt that they too suffered significant harm as a result of M.S.’s conduct.

C. The Blameworthiness of the Offender

32As noted earlier, the moral blameworthiness in cases of this nature is high. Not only did M.S. 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 a trusted friend of the family. He ensured their silence by threatening to harm them or those they loved, which must have left them feeling isolated and hopeless.

33M.S. continues to deny his guilt and has taken no responsibility for the offences. He of course has a right to maintain his innocence and to have his convictions reviewed by an appellate court. The fact that he does so is in no way an aggravating factor. However, this means that the high degree of moral blameworthiness has not been mitigated by any demonstration of remorse.

D. Aggravating and Mitigating Factors

34The fact that the offences involved the abuse of a position of trust is significantly aggravating, as is the fact that these were not isolated incidents but, rather, part of an ongoing pattern of conduct. It is also an aggravating factor that there were multiple victims.

35The fact that threats were made to ensure the victims’ compliance is also an aggravating factor.

36Although M.S. is not a first offender, his only prior conviction is for a dated, unrelated and relatively minor offence.

37M.S. has a consistent employment history, which is a mitigating factor.

38I note as well that M.S.’s ability to speak English seems to be very limited. This will undoubtedly make his time in custody more difficult, which is a factor that should be considered: R. v. A.P., 2021 ONSC 6647, at paras. 55, 57.

E. The Appropriate Range

39The Crown submits that the applicable sentencing range in this case is imprisonment for a total of nine to 13 years and submits that M.S. should receive a sentence at the higher end of that range. Crown counsel submits that five to seven years is appropriate for the count involving S.S., four to six years consecutive is appropriate for the counts involving T.C., and three to four years concurrent is appropriate for the counts involving T.K. Counsel for M.S. submits that five to seven years is appropriate.

40In Friesen, at para. 114, the Court stated:

It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D.(D.) [infra], “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D.(D.), at paras. 34 and 45). That message is 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. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward [2011 ONCA 610, 107 O.R. (3d) 81], and L.M. [2008 SCC 31, [2008] 2 S.C.R. 163].

41In R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), Moldaver J.A. (as he then was) said the following about the appropriate range (at para. 32):

Cases like the present one however, which involve repeated acts of anal intercourse and attempted anal intercourse, as well as the use of other physical violence, threats of physical violence and extortion, are in a different category. Such cases, in my view, call for a higher range of penalty because of the enhanced gravity and seriousness of the crimes and the greater degree of moral culpability attributable to the offender. As a general rule, I believe that upper single digit to low double digit penitentiary terms are called for in these circumstances. Thus, the global sentence of nine years selected by the trial judge in this case was, in my view, within the appropriate range.

D.(D.) was cited with approval in Friesen, although with the caution that the decision predated the 2015 amendments to the Criminal Code raising the maximum penalty for sexual interference: Friesen, at para. 113.² D.(D.) continues to be followed in Ontario: R. v. R.H., 2021 ONCA 236, at para. 7; R. v. Bernardon, 2021 ONCJ 438; R. v. Rayat, 2020 ONSC 6246, at para. 9; R. v. Audet, 2020 ONSC 5039, at para. 30.

F. Should the Sentences be Consecutive or Concurrent?

42S.S., T.C. and T.K. are separate victims who each suffered individual harm as a result of M.S.’s actions. While there was some temporal overlap between the offences involving T.C. and T.K., the offences against S.S. occurred earlier and in a different house. These factors weigh in favour of there being consecutive sentences. However, it is clear that if the “upper single digit” range outlined in Friesen and D.(D.) is imposed in relation to each complainant and made consecutive, the overall sentence would be over 20 years and clearly inconsistent with the principle of totality, which recognizes that “a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender”: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 18.

43There are different ways to give effect to the principle of totality: Friesen, at para. 157. In Ontario, courts often follow the process outlined in R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.), at pp. 14-15, and recently affirmed in R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314, at paras. 37-38, which is to first identify the gravamen of the conduct giving rise to all of the offences, determine the appropriate sentence to reflect the gravamen of the overall conduct, and then determine the sentence for each offence, including whether they are consecutive or concurrent. This was the approach taken by Roberts J. in circumstances similar to the case at bar in A.P., at para. 58:

I impose a sentence of 9 years in relation to each count of sexual assault but make the sentences concurrent. Friesen directs that consecutive sentences are the default unless the offences “are so closely linked to each other as to constitute a single criminal adventure” in which case concurrent sentences may be imposed (para 155). I appreciate that the sexual abuse here involved two autonomous individuals, harming both in unique ways, with differences flowing from their different ages at the time of the abuse, the different abuse inflicted, and their different personalities and life experiences. However, the sexual abuse occurred in the same circumstances, at the same place, at similar times, and on occasion R. and S.(1) were together during the abuse. In addition, were I to impose consecutive sentences, I would have to artificially lower both sentences to reflect the principle of totality and ensure that the global sentence was no more than the 9 years I have determined to be fit in all the circumstances: R. v. Ahmed, 2017 ONCA 76; R. v. R.B., 2014 ONCA 840; Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont.C.A.).

Based on this approach, I intend to make the sentences imposed with respect to each victim concurrent to ensure that the principle of totality is applied.³

G. The Appropriate Sentences

(i) The Count Involving S.S.

44While the offences against S.S. did not involve a single isolated incident, unlike in D.(D.), they were not committed “on a regular and persistent basis over substantial periods of time.” However, the offences did have some of the characteristics mentioned in D.(D.), namely, “full intercourse” and “threats of physical violence.” Furthermore, as noted, the fact that there are multiple victims is a significant aggravating factor. Based on this, I conclude that an “upper single digit” penitentiary sentence is appropriate. Accordingly, on Count 2, M.S. is sentenced to imprisonment for a period of eight years. I recognize that this is more than the seven years sought by the Crown. However, the Crown’s position was based on its overall position that the sentences be consecutive. In the result, while the sentence in relation to S.S. is higher than that sought by the Crown, the overall sentence is lower.

(ii) The Counts Involving T.C.

45The offences against T.C. did not involve “full intercourse”. However, there is little else distinguishing these offences from those committed in relation to S.S. There was attempted intercourse and threats were made to ensure the victim’s silence. As a result, on each of Counts 5, 8 and 11, M.S. is sentenced to imprisonment for seven years.

(iii) The Count Involving T.K.

46The incidents involving T.K. did not involve attempted or actual intercourse, although they were nonetheless degrading and invasive. On Count 14, M.S. is sentenced to imprisonment for five years.

III. DISPOSITION

A. Sentences

47For the foregoing reasons, M.S. is sentenced to terms of imprisonment for the following periods:

Count 2: 8 years

Count 5: 7 years

Count 8: 7 years

Count 11: 7 years

Count 14: 5 years.

All sentences are to be served concurrently.

B. Rule Against Multiple Convictions

48Counts 1, 4, 7, 10, 13 and 15 are conditionally stayed pursuant to the rule against multiple convictions.⁴

C. Ancillary Orders

49Pursuant to ss. 109(1) and (2) of the Criminal Code, M.S. is prohibited from possessing:

(a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years after his release from imprisonment; and

(b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

50Pursuant to s. 161(1) of the Criminal Code, there will be an order prohibiting M.S. from doing the following:

(a) 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) being within 200 metres of any dwelling house where S.S., T.C. or T.K. are known to reside;

(c) being in the presence of any person under the age of 16 years unless in the company of an adult other than his wife, Y.L.

Pursuant to s. 161(2), the prohibition begins on the date on which M.S. is released from imprisonment for the offences, including release on parole, mandatory supervision or statutory release, and thereafter for a period of 10 years.

51In accordance with s. 487.051(2) of the Criminal Code, M.S. is ordered to provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the national databank.

52As required by ss. 490.012(1) and 490.013(2.1) of the Criminal Code, M.S. is ordered to comply with the Sex Offender Information Registration Act (“SOIRA”) for life.

53Pursuant to s. 743.21(1) of the Criminal Code, M.S. is prohibited from communicating, directly or indirectly, with S.S., T.C. or T.K. during the custodial portion of his sentence.

Footnotes

1. 1An 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. 2The Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, which came into force on June 18, 2015, raised the maximum penalty for sexual interference from 10 years to 14 years. The sexual interference charge respecting S.S. (Count 2) predates the amendment. The sexual interference charges respecting T.C. and T.S. (Counts 5, 6, 11 and 14) in the Indictment relate to the period between June 1, 2015 and December 31, 2016. As noted earlier, I made no findings as to when the offences took place and am therefore unable to conclude that they took place after the amendment.
3. 3Section 718.3(7) of the Criminal Code, which requires that sentences imposed for sexual offences against different children be consecutive, came into force on June 18, 2015 as part of the Tougher Penalties for Child Predators Act. As noted earlier, the time frame in the indictment for the offences involving S.S. predates this amendment while the time frame for the offences involving T.C. and T.K, straddles the amendment. In any event, s. 718.3(7) is subject to the totality principle and its application would not have resulted in a longer overall sentence: R. v. C.(S.), 2019 ONCA 199, 145 O.R. (3d) 711, at paras. 11-21.
4. 4Counts 3, 6, 9 and 12 were withdrawn by the Crown during the trial.