Court File and Parties

COURT FILE NO.: CR-18-1631 DATE: April 7, 2022

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Caitlin Downing, Counsel for the Crown

- and -

R. V. Offender Marni Munsterman, Counsel for the Offender

HEARD: January 26, 2022, and written submissions

Publication Restriction Notice

By Court Order made under s. 486.4 of the Criminal Code, no information that might identify the person described in this judgment as the complainant shall be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Reasons for Sentence

JAMES, J.

Preliminary Matter

[1] When court was convened for R. V.’s sentencing, I was advised by defence counsel that R. V. was not present although Ms. Munsterman was in contact with him recently. He was present by video link on January 26, 2022 when this date was set. She advised that there was thirdhand information that R. V. may have committed suicide although has not been confirmed. The police had been notified and advised through defence counsel that he had not used his bank card or cell phone recently. He moved out of his last known address in January.

[2] Crown counsel requested that he be sentenced in abstentia, noting that it was possible that he had simply failed to appear because he knew that he was facing a lengthy prison sentence. Defence counsel proposed that the sentencing be adjourned for a reasonable period of time to ascertain whether new information would come to light.

[3] The evidence at trial included information that he had previously breached his probation by moving to Alberta without informing his probation officer and that he has a previous conviction for escape lawful custody.

[4] While it would certainly be a tragedy if R. V. has died, there is a reasonable possibility that he has absconded. In the circumstances, I have exercised my discretion to proceed with the sentencing pursuant to section 475 of the Criminal Code.

Overview

[5] On June 22, 2021, R. V. was found guilty of one count of sexual interference. A finding of guilty on one count of sexual assault was stayed.

[6] A presentence report was ordered which has now been received. Also, R.V. underwent an assessment at the Royal Ottawa Hospital, which was conducted by Dr. Brad Booth, a forensic psychiatrist.

[7] Counsel prepared written submissions regarding an appropriate sentence and the matter was adjourned to today for disposition.

[8] The victim in this is a female child about 7 or 8 years old. She was friends with a similarly aged girl who was part of R.V.’s extended family. They would sometimes sleep over in a makeshift living unit from where R. V. operated his landscaping and pool business. It was basically a garage with a couple of sofas in one corner with a TV. There was no kitchen. A small two piece bathroom was down a hall. There was a separate shower facility. The victim testified on about three occasions while sleeping over, R. V. woke her during the night, took her to the small bathroom and pulled down her pyjama bottoms. He bent her over away from him and inserted or attempted to insert his penis in her vagina. She recalls experiencing pain and on at least one occasion, some bleeding.

[9] The victim did not disclose the abuse until interviewed by the police years later when the police were investigating allegations made by another girl.

Circumstances of the Offender

[10] R. V. has a significant but dated criminal record and in particular a conviction from the 1980s for sexual assault in relation to his niece who was about 17 at the time.

[11] He has worked as a farm labourer and landscaper for most of his adult life. In or about 2008, he moved to Alberta following a situation where he defrauded customers and was ordered to pay a substantial amount as restitution. According to the pre-sentence report, a large portion of the restitution order is still outstanding.

Legal Parameters

[12] At the present time a conviction for sexual interference involves a 1 year minimum sentence and a maximum sentence of 14 years’ imprisonment. The indictment alleges offences between the years 2005 and 2011. In my decision finding R. V. guilty, I found that the victim was about 8 years old. This would place the offences in or about 2008. The 2006 version of Martin’s Criminal Code states that the maximum penalty for sexual interference is 10 years’ imprisonment if the prosecution proceeds by way of indictment with no minimum sentence. The 2009 version of Martin’s Criminal Code states that the maximum penalty is 10 years’ imprisonment and the minimum penalty is 45 days. R. V. is entitled to the benefit of the penalty provisions that were in effect at the time the offences were committed.

Crown Position

[13] The position of Crown counsel is that a custodial sentence of 12 years would be appropriate in this case.

[14] The Crown points to aggravating facts such as the breach of a trust relationship, there were multiple incidents with penetration, his criminal record and the effects of the crime on the victim.

[15] Crown counsel also submits that the landmark decision of the Supreme Court of Canada in the Friesen case reported at 2020 SCC 9 sets a new starting point in the sentencing of offenders who commit sexual offences against children.

Defence Position

[16] The position of the defence is that a sentence of 4 to 6 years would be appropriate. R. V. has health problems that could be exacerbated by a lengthy prison term. He has worked for most of his adult life. His criminal record is dated. He had a mild intellectual disability together with episodes of anxiety and depression. He grew up with an abusive father and lost his mother in a tragic accident.

Case Law

[17] I will now refer to a few of the numerous cases that counsel have referred to in support of their respective positions. A word of caution first. No two cases are exactly the same. Sentencing someone for the crime or crimes they have committed is a highly individualized exercise. The sentences imposed by judges in other cases can provide useful comparisons but ultimately, my task is to sentence this offender for this specific crime. Each case turns on its own particular circumstances.

[18] The leading case from the Crown’s perspective is, as I just mentioned, the Friesen case in 2020. In that case the offender sexually interfered with the 4 year old daughter of a woman he had met on an internet dating site.

[19] The facts surrounding the sexual interference were egregious. The offender was 29 years old. Like many sexual offenders, he did not have a criminal record.

[20] He entered a plea of guilty to the charge. He was sentenced to 6 years imprisonment. The Court of Appeal said that the sentencing judge had mistakenly presumed the existence of a trust relationship after having found that there was none and reduced the sentence to 4 and a half years. On further appeal, the Supreme Court of Canada restored the original 6 year sentence.

[21] The Supreme Court of Canada provided guidance to judges regarding the sexual abuse of children by making the following comments:

a. At the sentencing stage, in order to effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause and give effect to both in imposing a sentence;

b. The prime interests that the legislative scheme of sexual offences against children protect are the protection of personal autonomy, bodily integrity, sexual integrity, dignity and the equality of children. Emphasis on these interests require courts to focus their attention on emotional and psychological harm, not simply physical harm;

c. The fact that the victim is a child increases the offender’s degree of responsibility;

d. Mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. Sexual offences against children should generally be punished more severely than sexual offences against adults;

e. An offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child; and,

f. Sexual violence against children committed on multiple occasions should attract significantly higher sentences.

[22] The Supreme Court of Canada concluded that the 6 year sentence imposed in the Friesen case was not demonstrably unfit. Far from being excessive, the court said that the sentence was at the lenient end of the spectrum of fit sentences.

[23] In the case of R. v. G.R. [2020] O.J. No. 5263 the 50 year old offender was the partner of the victim’s mother. There were three incidents of inappropriate touching of the 9 year old victim. In one incident he rubbed her vagina with his hand. In the second incident he manipulated her nipples and put his lip on her ear. In the third incident he touched her vagina with his finger and rubbed his penis against her. His penis was in and out of his pants. He had no criminal record. He had three children of his own and was gainfully employed at an autobody shop. The sentencing judge made extensive references to the Friesen decision, noted that the offender was in a caregiver role and sentenced the offender to 5 and half years in prison.

[24] In R. v. J.L. [2020] O.J. No. 4501 (OCJ) the 61 year old offender had sexual intercourse with his daughter and touched her on multiple occasions over the course of several years. She became pregnant at the age of 14. Testing established that the offender was the father. He pleaded guilty but later tried unsuccessfully to resile from his plea. A sexual behaviours assessment indicated that the offender may have had some intellectual difficulties. He was sentenced to 9 years imprisonment.

[25] In R. v. A.B., 2021 ONSC 484 the 36 year old offender pled guilty to sexual interference and making sexually explicit material available in relation to the 13 year old daughter of his girlfriend. The sexual activity included oral sex and masturbation. He was sentenced to 6 years for the sexual assault and three years’ concurrent for making sexually explicit material available.

[26] Defence counsel distinguishes several of the cases relied on by Crown counsel by pointing out that the relationship between the offender and the victim was much closer than in this case. For example, some of the cases involved a parent, stepfather, godfather or foster parent which were aggravating factors not present here.

[27] Defence counsel referred to R v. D.M. 2012 ONCA 520 where there was prolonged sexual abuse that included penetration and the offender had a criminal record. There were over 100 acts of intercourse over a three year period. The Court of Appeal imposed a sentence of 7 years.

[28] In R. v. C.F. 2020 ONSC 5975, the offender was the stepfather of the victim. The abuse consisted of mutual acts of fellatio from when the victim was 4 or 5 years old until she between 9 and 12. The offender was bi-polar, on long term disability from his employment and had attempted suicide on eight occasions. The sentence was 5 years.

[29] In R. v. Sheppard, 2021 ABQB 705 a 58 year old offender was found guilty by a jury of sexual interference, invitation to sexual touching and sexual assault against a boy in Grade 7 at the all-male boarding school where the offender worked as a teacher. He did not have a criminal record. The victim was bullied by other students and the offender took on a parental role and was supportive. The sexual activity included about 10 incidents of touching the victim’s penis, mutual masturbation and oral sex. The offender was sentenced to 6 years for sexual interference with similar sentences for the other offences to run concurrently. Although the offences were historical, having taken place in the early 1990s, the sentencing judge said that while the penalty provisions of the Criminal Code that were in effect at the time of the offence could not be exceeded, it was appropriate to impose a sentence that was consistent with the understanding of sexual offending as it exists at the time of sentencing (see paras. 60 to 63).

The Presentence Report

[30] A presentence report was prepared by a probation officer with the Ministry of the Solicitor General. The report indicated that R. V. suffered as a child as a result of an abusive alcoholic father. He did not do well in school and eventually stopped going to school completely. He denied undergoing a sexual behaviours assessment in the 1980s as a result of the sexual assault of his niece.

[31] In discussing the offence before the court, R. V. denied that he had done anything wrong. He said the events described by the victim didn’t happen. He claimed that his ex-wife, whose daughter was friends with the victim, coerced the victim into instigating the investigation.

[32] The writer noted that R. V. left Ontario during his last period of supervision and a warrant was issued for his arrest in early 2009. The warrant remained outstanding until he was arrested for the offences now before the court. R. V. simply stated that he relocated to start over and did not admit to moving without notifying probation services while under supervision.

The Sexual Behaviours Assessment under the Mental Health Act

[33] By order dated June 22, 2021 arrangements were made for R. V. to be examined at the Royal Ottawa Hospital by Dr. Brad Booth, a psychiatrist with the Integrated Forensics Program, for the purpose of preparing a report for use as part of the sentencing process. The assessment consisted of a three hour clinical interview, completion of standardized questionnaires and a neuropsychological evaluation by a psychologist.

[34] The report indicates that R. V. had eight siblings, two of whom died in infancy. He reported that three of his sisters have intellectual disabilities. In Grade 8, he was identified as having learning difficulties. His attendance at school was poor because his father sometimes kept him home to do chores. He is functionally illiterate but has sufficient math skills to handle the financial aspects of his landscaping business.

[35] R. V. married his first wife at age 20 in Nova Scotia. They had three children who live outside of Ontario, but he has occasional contact with them.

[36] At age 30 he had a two year common law relationship.

[37] At age 34 he began a 4 year common law relationship that resulted in two children, J.Y. and J.R. R. V. was their primary parent after separation. He maintains a close relationship with J.R. but not with J.Y.

[38] His early employment experience was as a farm hand but later he became a landscaper. He operated his own landscaping business for several years. Currently he operates street sweeping machinery and does snow plowing, six days a week. He describes himself as a workaholic.

[39] His health situation began to deteriorate about six years ago. He reported having three heart attacks in recent years that did not require hospitalization. He also had a clot in his right leg and an artery repair.

[40] The results of his responses to the questionnaires indicated that he is susceptible to experiencing episodes of severe depression and suffers from moderate anxiety. He has what Dr. Booth referred to as “significant unconscious psychological difficulty being able to be aware of flaws. He also had a significant tendency to minimize traits that might be considered undesirable.”

[41] In 1995 R. V. underwent a Sexual Behaviours Assessment with Dr. Bourget when he was 36 years old following a report by his ex-wife that he had sexually abused their daughter. Dr. Bouget gave an opinion that R. V. did not suffer from a major psychiatric illness or show any evidence of sexual interest in children.

[42] Dr. Booth indicated that R. V. was also assessed by Dr. Bradford in April, 1985 at age 27 while awaiting sentencing for a sexual assault on his niece. Diagnoses at that time included alcohol abuse in remission and a developmental reading disorder. R. V. said the sexual activity was consensual.

[43] Dr. Booth’s conclusions included a diagnosis of likely pedophilic disorder, aroused primarily to girls and that R. V.’s global intellectual functioning was presently in the extremely low range with his nonverbal reasoning skills being much better developed than his verbal reasoning abilities. He also noted R. V.’s susceptibility to severe depression and anxiety.

[44] As for the risk assessment portion of the examination, Dr. Booth’s opinion was that on the whole, R. V. was at a relatively low risk of recidivating with his sexual offending. In his conclusion, Dr. Booth offered this comment:

R. V. poses a low risk of future offending. While I understand the court has many considerations before it in its ultimate opinions, from a psychiatric perspective, I do not see the need for an internet ban… Similarly, a “parks and playground” prohibition may not be required.”

Mitigating and Aggravating Circumstances

[45] A mitigating circumstance is one which tends to reduce an otherwise appropriate sentence. I would identify the following mitigating circumstances:

a. R. V. has a strong work history of gainful employment;

b. He has good support from his daughter J.R. and her husband;

c. He has a heart condition, suffers from anxiety and depression and a lifelong learning disorder;

d. He is at a low risk of re-offending;

e. He has been on bail for a lengthy period of time while awaiting trial without any incidents;

f. While he has a criminal record, it is dated; and

g. He had a challenging childhood that included an abusive, alcoholic father.

[46] An aggravating factor is one which tends to increase an otherwise appropriate sentence. I would identify the following aggravating factors:

a. The victim was a vulnerable young child;

b. There were repeated incidents of abuse, including penetration. Each incident of sexual violence traumatizes the victim anew and increases the likelihood that the risks of long-term harm will materialize;

c. R. V. has a significant although dated criminal record that includes armed robbery in 1982, followed by escape lawful custody, a conviction for sexual assault on a 17 year old and two counts of fraud over $5000 in 2008 where, as noted in the presentence report, he left Ontario while on probation without informing his probation officer; and

d. There is an element of breach of trust in the circumstances of this case. The victim was an 8 year old in R. V.’s care when the abuse occurred. As noted in the Friesen case, trust relationships can arise in a variety of circumstances and should not all be treated alike. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence. The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility. A position of trust implies a duty to protect and care for the child that is not owed by a stranger. The breach of the duty of protection and care enhances moral blameworthiness.

Impact on Victim

[47] The victim in this case prepared a victim impact statement. At the time of trial, she was working as a school custodian and taking courses at Algonquin College. She said her participation at R. V.’s trial was stressful, and she had to take time off from work and school due to anxiety and depression.

[48] She also experienced a panic attack that was related to the trial.

[49] She fell behind in her schoolwork.

[50] She suffered financially.

[51] She said she vacillates between having no appetite and binge eating.

[52] It is difficult to discern whether the victim has suffered long-lasting trauma from her experiences. In this regard, I note the commentary from Friesen that sexual violence against children inherently has the potential to cause several recognized forms of harm. The likelihood that these forms of potential harm will materialize varies depending on the circumstances of each case. In this case the victim was 21 years old at the time of trial. The Friesen case makes the point that long-term harm may only emerge in adulthood. Victims may have difficulty forming loving and caring relationships. They may suffer from a variety of emotional and psychological consequences. Because it is impossible to determine at the time of sentencing whether these harms will manifest later in life, courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence (see paras. 79, 84).

Principles of Sentencing

[53] In fashioning an appropriate sentence for R. V., I have considered the purpose and principles of sentencing set out in section 718 of the Criminal Code. They include the following:

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 the rehabilitation of 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 acknowledgement of the harm done to victims and to the community.

[54] The sentence imposed should be proportionate to the gravity of the offence and the degree of responsibility of the offender. In the case of offences against children, the fact that they are so vulnerable increases the offender’s degree of responsibility.

[55] In addition, the sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. This principle is qualified, however, by the recognition that sentencing decisions that predate Friesen may be out of step with the latest guidance from Parliament and the Supreme Court of Canada.

[56] Where incarceration is required, the length of imprisonment must be as short as possible and tailored to the individual circumstances of the offender (see R. v. Batisse, 2009 ONCA 114, 2009, 93 O.R. (3d) 643, (C.A.)).

[57] Section 718.01 specifically directs that when a court imposes a sentence for an offence that involves the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. This means that effect of the sentence on the offender, while warranting consideration, cannot take precedence.

[58] Deterrence has two aspects. Specific deterrence and general deterrence. Even if R. V. is at a low risk to re-offend, there must be a clear message that anyone who sexually abuses children, especially while in a position of trust, will face serious consequences and likely a significant period of incarceration.

Disposition

[59] In all the circumstances, I find that a fit and appropriate sentence is 8 years imprisonment.

[60] In addition, the following corollary orders shall issue:

a. A weapons prohibition under s. 109 of the Criminal Code for 10 years;

b. A requirement to provide a DNA sample;

c. Registration under the Sex Offender Information Registration Act for life;

d. An order pursuant to s. 743.21 not to contact the victim during the custodial period; and

e. A prohibition order under s. 161 (b) as it was in effect in 2008.

Justice Martin James

DATE RELEASED: April 14, 2022