Court File and Parties

Court File No.: CR-19-300000340-0000 Date: 2022-04-01 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – H.W.

Counsel: K. Pitt, for the Crown J. Fennel, for H.W.

Heard: February 3, 2022

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainant or witness may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Reasons for Sentence

R. MAXWELL J.

[1] H.W. was found guilty by a jury of three counts of sexual assault contrary to s. 271 of the Criminal Code, and three counts of sexual interference, contrary to s. 151 of the Criminal Code, in relation to offences against the daughters of his common law partner. He appeared before me for a sentencing hearing on February 3, 2022. These are my reasons for judgment on sentence.

Factual Findings Based on the Evidence at Trial

[2] At the trial, the Crown called evidence from the two complainants, A.M. and S.M. Their evidence was not complex and each described specific incidents of sexual assault at the hands of H.W. Section 724(3) of the Criminal Code provides that, where the accused is tried by a court composed of a judge and jury, the court may accept as proved, any information disclosed at the trial or at the sentencing proceedings and shall accept, as proven, all facts express or implied that are essential to the jury’s verdict of guilt.

[3] The parties agree that the trial record and their submissions are sufficient for me to use as the factual basis for sentencing H.W.

[4] Based on the evidence at trial, I accept the following as the relevant facts for determining the appropriate sentence in this case.

[5] The offences took place in the early 2000s when A.M. and S.M.’s mother L.D. lived at an address on Burrows Hall with H.W. The first incident occurred when A.M. and S.M. visited the Burrows Hall address for the first time. I accept A.M.’s evidence that, while she, several of her siblings, and H.W. watched a movie in the basement, she started to fall asleep on top of a large pair of speakers in the basement. As she dozed on and off, she felt H.W.’s hand go through her pant leg, travel up inside the leg of her pants under her undergarment, and up to her vaginal area. She wriggled and squirmed and he stopped. She then fell asleep again but awoke later, now alone in the basement, to find H.W. on top of her with his pants down and his penis exposed. I accept her evidence that there was skin to skin contact between her vagina and H.W.’s penis. H.W. apologized after A.M. squirmed, pulled up his pants, and left the room.

[6] The second incident involving A.M. occurred the next night. She was asleep on a loveseat in the living room while her mother slept on another couch in the living room. I accept her evidence that when H.W. entered the room, he came over to where she was laying, sat down in front of her on the floor, and put his hands in her pajama pants, going in from the top of her pants to touch her vagina. Her mother was asleep on the couch during the incident. A.M. clenched her body and tightened her legs to get H.W. to stop.

[7] The third incident involved S.M. and also occurred on a visit to Burrows Hall. S.M. had burned her wrist or hand while doing her hair and developed a boil. While she was visiting Burrows Hall, H.W. told her he could burst the boil for her. I accept S.M.’s evidence that while the family watched a movie, H.W. told her to come to the basement. She entered his bedroom in the basement. H.W. closed the bedroom door, sat S.M. down on the bed, and tilted her downward to try to get her to lay down. He then tried to pull up her shirt, but she held it down. He tried to pull down her pants, but she kept her hand on her pants to prevent him from pulling them down. She began to cry, H.W. told her not to cry, and left the room.

[8] Later that evening, S.M. was sleeping on a bed in the basement when she awoke to a feeling of a “warm pressure” on her vagina. She found H.W. kneeling in front of her, with his legs on the ground and his head in her vaginal area. Her shorts were still on. She turned over so that her body was turned away from H.W. and noticed that her sister A.M. was asleep next to her on the same bed. H.W. did not say or do anything further once S.M. turned over.

[9] H.W. did not testify at the trial. The defence called L.D. who testified that she did not believe the allegations because she did not see any signs that something had happened to her daughters. I accept that, to the extent that L.D. was called as a defence witness in order to undermine the reliability and/or credibility of A.M. or S.M., that the jury was nevertheless satisfied that A.M. and S.M.’s evidence was credible and reliable and established the offences beyond a reasonable doubt.

[10] I would note that A.M. and S.M.’s half-sister J.D., while not a named complainant on the Indictment, was permitted to testify at the trial as to similar incidents of sexual abuse involving H.W. The Crown has not asked that this evidence be considered as an aggravating feature on sentencing and, as such, it will not factor in my assessment of what the appropriate sentence should be in this case.

Positions of the Parties

[11] On behalf of the Crown, Mr. Pitt seeks a sentence of 4-5 years in custody. He also seeks an order that H.W. register with the Sex Offender Registry for life, a s. 109 weapons prohibition for a period of 10 years, a DNA order as these are primary designated offences, and a s. 743.21 order for no contact or communication with A.M., S.M., and J.D.

[12] On behalf of H.W., Mr. Fennel seeks a sentence of 3 years in custody. He is not opposed to the DNA order, the s. 743.2 non-communication order, or the SOIRA order. He submits that the weapons prohibition is not warranted.

Victim Input

[13] A.M. provided a victim impact statement in which she expressed that the sexual violations which occurred left her with “a lifetime scar”. She continues to experience trauma from the incidents in her childhood. She has difficulty trusting men, eventually resulting in a breakdown in her relationship with her long-time domestic partner. She describes herself as overprotective and unable to leave her own child alone with anyone. She also expressed that her experiences as a child have impacted her relationship with her mother who did not believe her when she told her about the abuse.

[14] S.M. did not provide a victim impact statement.

Circumstances of the Offender

[15] In preparing for the sentencing hearing, Mr. Fennel requested and obtained an enhanced pre-sentence report. The report was authored by Michelle Williams of the Sentencing and Parole Project, a non-profit organization that prepares enhanced pre-sentence reports for Black offenders “marginalized by poverty and racial inequality”: EPSR, pg. 1. I am grateful to the author for her comprehensive and balanced reporting on H.W.’s background, life circumstances, and experiences with various institutions, including child welfare agencies, educational facilities, and the criminal justice system.

[16] I agree with Ms. Williams’ characterization of H.W.’s background as “complex”. H.W. is currently 48 years old. He was born in Jamaica and raised by his maternal grandparents and extended family until the age of 10. His mother left him with family when he was an infant to pursue economic opportunities in Canada. H.W. has never met his father. He has an older sister who migrated to Canada with him when he was 10 years old and she was a year or two older.

[17] As the report explains, the migration of people of African descent from the Caribbean to North America, in Jamaican culture, is seen as an indicator of a parent’s love for a child by seeking better opportunities for the family. However, the experience of separation also runs the risk of the child who is left behind feeling emotional deficits, making the eventual reunification more challenging. H.W. described meeting his mother in Canada as a “nightmare” because they did not know each other. He had verbal and physical altercations with his mother and, by the age of 14, H.W. became involved in the Children’s Aid Society. H.W. reported that he currently has no relationship with his mother.

[18] H.W.’s experiences in the child welfare system were highly traumatic in that H.W. became the victim of sexual assault at the hands of a caregiver within a foster home. He was repeatedly sexually assaulted over numerous times by this caregiver in circumstances of extreme vulnerability, including when he was ill. This individual was tried and convicted of multiple counts of sexual assault on four complainants, including H.W., in 2002.

[19] H.W. never received therapeutic support to address the trauma of the sexual abuse. According to the report, H.W. declined a compensatory award he was entitled to as the result of a larger lawsuit against the Children’s Aid Society, as he tried to forget the trauma.

[20] In terms of his educational background, H.W. came to Canada with a very minimal or no ability to read. His early educational years in Canada were marred with other students taunting him about his intelligence and calling him racial slurs. He reported that he was called a racial slur by a principal. He responded with physical force and was suspended.

[21] By the time H.W. was in grade 9 or 10, his academic competencies were at a grade 5 level. The author of the report cited a comment from the school he which he attended at that time, which noted that H.W.’s “deficiencies were so many that it is not possible to provide an outline of all the work he must cover.”

[22] Perhaps owing to his history, H.W. reported having a very limited social network and keeps to himself. He does have the support of his sister and at least one of his children, with whom he keeps a close relationship. He is otherwise estranged from all of his other children. He is self-employed in various capacities.

[23] To summarize the well-composed report, H.W. was not protected by the system as a child, he did not experience the anticipated opportunities which were meant to come from his mother’s migration to Canada, and he experienced racism and a lack of attention to his educational needs. He experienced and has lived with these traumas, and the trauma of being a victim of sexual assault as a child himself, for which he has never accepted or received support or assistance.

Principles of Sentencing

[24] I begin with the most fundamental principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Criminal Code.

[25] The overriding purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society”. Section 718.1 provides that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence I impose must reflect the circumstances of the offence and the attributes of the individual responsible for the crime.

[26] Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating factors related to the offence or the offender.

[27] Sentencing ranges and a review of similar cases are useful in ensuring that the parity principle is met and that similar penalties are imposed for similar offences of a similar nature involving similar offenders. Sentencing ranges are, however, only guidelines. The sentencing of an individual is, necessarily, an individualized process, as the Supreme Court reiterated in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[28] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[29] Currently, both s. 151 sexual interference and s. 271 sexual assault carry maximum punishments of 14 years, in cases where the victim is less than 16 years of age.

[30] At the time of the offences, the applicable maximum sentence for sexual assault was 10 years imprisonment and there was no minimum punishment. Sexual interference also had a 10-year maximum sentence.

[31] With that said, when it comes to offences of sexual violence against children, deterrence and denunciation are the primary objectives of sentencing. Parliament has clearly expressed, through s. 718.01 of the Criminal Code and its increase in maximum sentences for these offences its decision to prioritize denunciation and deterrence for offences of this nature. As held by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, contemporary understanding of sexual violence against children and the harmful impact it has on not only the lives of those children as they grow into adulthood, but on future generations, has led to recognition of key principles related to sentencing of offender for sexual violence against children, including:

(1) that a decision by Parliament to increase maximum sentences for certain offences show that Parliament “wanted such offences to be punished more harshly” and that these offences should be treated more gravely than they have been in the past: Friesen, at para. 97 and 99, citing Lacasse, at para. 7); (2) that to respect Parliament’s decision to increase maximum sentences, court should generally impose higher sentences than those imposed in cases which preceded the increases in maximum penalties: Friesen, at para. 100; (3) that Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for the court to impose more severe sanctions for sexual offences against children: Friesen, at paras. 101-105.

[32] As such, while the court in Friesen declined to set a national starting point or sentencing range for crimes of sexual violence against children, it emphasized that, in light of our contemporary understanding of the wrongfulness and harmfulness of sexual violence against children and the high degree of moral responsibility of the offender, sentences must have, as a priority, the principles of denunciation and deterrence and courts should take care not to rely on older precedents which may reflect a “dated” view of sexual exploitation of children by adults: Friesen, at paras. 105 and 110.

[33] In Woodward 2011 ONCA 610, [2011], OJ No. 4216, the Court of Appeal summarized the key principles driving the primacy of deterrence, denunciation and separation as principles of sentencing for offences involving the sexual abuse of children:

(1) Our children are our most valued and our most vulnerable assets. (2) We as a society owe it to our children to protect them from the harm caused by sexual predators. (3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. (4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. (5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood. (6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[34] Therefore, denunciation and deterrence are the primary factors on sentence in this case. Rehabilitation and restraint are always factors for consideration. Rehabilitation is a secondary consideration, given the offender committed these offences in the past. Totality and restraint are also applicable considerations.

Aggravating and Mitigating Factors

[35] Turning to the aggravating factors in this case, the victims in this case were both under the age of 16, an aggravating factor under s. 718.2 of the Criminal Code. They were young, between the ages of 10 and 13 years.

[36] Second, H.W. was the domestic partner of the victims’ mother, abused his position of trust, an aggravating feature under s. 718.2. While the relationship between the victims and H.W. was not a close one and neither characterized him as a stepfather, in my view, the circumstances are such that H.W. exploited the opportunity of having the victims in the home he shared with their mother and the familial relationship he shared with them, as an extension of his relationship with their mother. Most of the offences took place while the victims were sleeping. The victims were entitled to feel safe in the home of their mother. That this was intra-familial abuse is a recognized aggravating feature in common law: R. v. D.M. 2012 ONCA 894, [2012] OJ No.6059, at para. 68.

[37] Third, the offences involved multiple victims. Both A.M. and S.M. experienced sexual violence at the hands of H.W. at a young age.

[38] Fourth, although this is not a situation which can be characterized as preying on the victims for an extended period of time with incidents occurring persistently, this is also not a circumstance of one isolated incident. There were multiple incidents in this case.

[39] Fifth, I accept that the offences had a devastating impact on the victims, considering their respective ages and circumstances, as was detailed in their evidence and in the victim impact statement of A.M.: see s. 718.19(iii.1). In particular, A.M. described in her evidence and in her victim impact statement, her experiences which are consistent with the recognized consequences of this type of abuse, as I have previously detailed from the case of Woodward, at para. 72.

[40] I accept that both A.M. and S.M.’s relationship with their mother was also significantly impacted by the abuse. As they detailed in their evidence, the fact that their mother did not believe them and stayed with H.W. further traumatized them and reinforced the feelings of mistrust and vulnerability created by the abuse itself. A.M. detailed in her victim impact statement her difficulty in maintaining intimate partnerships. There is no question that the impact of this abuse on both complainants is long-lasting.

[41] Finally, H.W. has a criminal record, which includes convictions for offences of violence as well as drug offences. His record extends from 1992 to 2011 and there are no offences of sexual violence. There is also a substantial gap in his record with no convictions since 2011.

[42] Turning to mitigation, while not a true mitigating factor, H.W.’s background, and in particular, his experience as a victim of sexual abuse as a child, is a factor I must consider in assessing the appropriate sentence in this case. The crimes which were committed against H.W. as a child undoubtedly had a devastating effect on his life as well. As the report details, he suffered through years of abuse in circumstances where he was vulnerable and in need of protection. These crimes occurred against of backdrop of H.W. experiencing displacement from his mother and other family members, struggles with literacy and an inability to thrive in school, experiencing anti-black racism as a child coming to Canada, and lacking in social support to assist him with any of it. It is both tragic and concerning that H.W. never received counselling for the trauma he experienced. It is tragic because he continues to suffer the ill effects of the harms done to him. It is concerning because it suggests that these issues will continue to present risks that H.W. will re-offend. As the court noted in Woodward, children who are the victims of sexual abuse are more prone to commit sexual offences in adulthood.

[43] To H.W.’s credit, and as noted earlier, there is a gap in his criminal record and he has not had any difficulty with the law since 2011.

[44] It is also relevant, while again not a mitigating factor, but a factor which impacts the overall appropriate sentence, that H.W. has been on bail for the past 3 ½ years without incident. While Mr. Fennel acknowledges that the terms of the bail were not overly restrictive, I accept his submission that H.W.’s performance while on bail is a factor I can consider in applying the relevant principles of denunciation and deterrence, and in considering the risk that he will re-offend.

[45] Finally, while most appropriately characterized as a collateral consequence rather than a mitigating factor, I accept that the current unprecedented circumstance of the pandemic is a relevant consideration on sentence. Since the outbreak of the COVID-19 pandemic, a number of courts have addressed how the extraordinary circumstances created by the pandemic should impact on sentencing an accused.

[46] The Court of Appeal for Ontario has given guidance that the effect of the pandemic should be treated as a collateral consequence on sentencing.

[47] In R. v. Suter, 2018 SCC 34, Justice Moldaver stated, at para. 47, that “collateral consequences” include, “any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for the offence, that impacts the offender.”

[48] Applying the principles set out in Suter, the Court of Appeal for Ontario in R. v. Morgan, 2020 ONCA 279 held that the impact of COVID-19 on sentencing can be viewed as a collateral consequence, for sentencing purposes. The court cited Justice Moldaver in Suter, where he stated, at para. 48:

The question is not whether collateral consequences diminish the offender’s moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances.

[49] The punitive aspect of sentences being served in current conditions is greater because of the greater impact on individuals who are not able to practice social distancing, or are limited in their ability to do so, because of the jail environment, causing greater psychological strain, and potentially greater risks of infection. The pandemic has also resulted in more restrictive conditions at the jails with frequent lockdowns and quarantining necessary to maintain public health, but which, nevertheless, make the time being served more difficult.

[50] The court in Morgan went on to reiterate the now well-settled principle that collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.

Sentencing Caselaw and Range of Sentences

[51] As the court noted in Friesen, citing the decisions from the Court of Appeal for Ontario in D.D, (2002), 58 O.R. (3d) 788, Woodward, and S.J., 2018 ONCA 675, 142 O.R. (3d) 81, and its decisions in M. (C.A.), [1996] 1 S.C.R. 500 and L.M., 2019 ONCA 945, 59 C.R. (7th) 410, “imposing proportionate sentences that respond to the gravity of the sexual offences against children and the degree of responsibility of the offender will frequently require substantial sentences”: para. 114. The court went on to comment, 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 cases. The court continued, stating that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as was the case in Woodward and L.M.

[52] The court also set out a list of factors relevant to determining a fit sentence for offenders who commit sexual offences against children which includes (1) the likelihood to reoffend, (2) whether the offender has abused a position of trust or authority; (3) the duration and frequency of the abusive behaviour; (4) the age of the victims; (5) the victim’s participation, and (6) degree of physical interference.

[53] On the latter point of the degree of physical interference, the court held, at paras. 139-140, that courts must avoid basing a sentence on the specific type of sexual activity in issue. Referencing the Court of Appeal for Ontario’s decision in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, the court stated, at para. 143, “the [decision] provides an example of judicial recognition that harm to the victim is not dependant on the type of physical activity involved.” The court went on to strongly caution, at para. 144, that the wrongfulness of the offending conduct or the harm to the victim should not be downgraded where the sexual violence does not involve penetration or other more invasive acts and instead, involves touching or masturbation. The court stated, at para. 144:

There is no basis to assume, as some courts appear to have done, that sexual touching without penetration can be ‘relatively benign’. Some decisions also appear to justify a lower sentence by labeling the conduct as merely sexual touching without any analysis of the harm to the victim. Implicit in these decisions is the belief that conduct that is unfortunately referred to as ‘fondling’ or ‘caressing’ is inherently less harmful than other forms of sexual violence. This is a myth that must be rejected. Simply stating that the offence involved sexual touching rather than penetration does not provide any meaningful insight into the harm that the child suffered from the sexual violence.

[54] While the type of physical act committed can be a relevant factor to determine the degree of physical interference, the court in Friesen held that it is an error to create a hierarchy of physical interference and emphasized that sexual violence against children remains inherently wrongful regardless of the degree of physical interference: Friesen, at paras. 145-146.

[55] Mr. Pitt directed me to several cases, but relies primarily on the case of R. v. G. (R.), 2020 ONSC 7411 for its factual similarities with this case. The case involved a single count of sexual assault that consisted of three instances of sexual touching. The accused touched the victim’s vagina while she was on his lap and exposed his penis, he touched the victim’s nipples during play, and he touched the victim’s vagina with his finger and rubbed his penis against her. The victim was 9 years old in that case and the accused had no criminal record. The accused was a 50-year-old man who immigrated from Jamaica and was gainfully employed. The accused was sentenced to 5.5 years in custody.

[56] In R. v. Hernandez-Perdomo, 2018 ONSC 2591, the accused was sentenced, after pleading guilty to one count of sexual interference, in relation to a 14-year-old boy who had a developmental disability. The accused touched the victim on three occasions. There was no familial relationship between the accused and the victim. The accused was sentenced to 2 years and 3 months in custody.

[57] In R. v. W. (M.) 2018 ONSC 5990, the accused held down the victim, who was 12 years old, during a play fight and forcibly masturbated the victim. The accused was a work friend of the victim’s mother and had no criminal record. He had been on a strict house arrest for three years by the time of his sentencing. The court imposed a sentence of 18 months, but noted that it would have imposed a custodial term of 24 months, but for the stringent bail conditions the accused had been subject to for an extended period of time.

[58] Mr. Fennel directed me to the case of R. v. G. (B.), 2016 ONSC 3146. The accused was found guilty after trial of two counts of sexual interference involving his two daughters. The accused’s daughters were 17 and 14 years old and involved sexual touching and digital penetration and oral sexual contact. The Crown sought a global sentence of 5 years but the trial judge agreed to the defence position that a sentence of 3 years and 8 months was appropriate. The accused had a difficult background and suffered from drug addiction. He had a criminal record.

The Sentence in this Case

[59] I turn now to the appropriate sentence in this case. As I have detailed above, there are numerous aggravating features present in this case. There is more than one victim, there was more than incident, the assaults took place in a familial context and where trust was breached, and the impact on the victims has been significant.

[60] Having regard to the circumstances of the offence, the victims, and the offender, as well as the importance of denouncing the sexual abuse of children, an appropriate sentence in this case, in my view, is a global sentence 4 years. I come to this sentence taking into consideration not only the aggravating features, but H.W.’s tragic personal circumstances, as well as the collateral consequence that H.W. will have to serve his sentence, in whole or in part, during the pandemic.

[61] The sentence will be noted as 2 years on count 1 of sexual interference, 2 years concurrent on count 3 of sexual interference, both of which relate to A.M., and 2 years consecutive on count 5 of sexual interference related to S.M., for a global sentence of 4 years.

[62] The Crown and Defence counsel jointly submitted that a stay should be entered with respect to count 2, 4, and 6, sexual assault, pursuant to the principles enunciated by the Supreme Court of Canada in R. v. Kienapple, [1975] 1 S.C.R. 729. The decision in Kienapple bars multiple convictions for two or more offences arising out of the same criminal act in circumstances where the essential elements of the offences cover the same wrongdoing. I am in agreement with their submission and those counts will be marked stayed.

[63] There will be a number of ancillary orders. There will be a DNA order on primary grounds for the offences under section s. 151 of sexual interference.

[64] There will be a s. 743.21 order prohibiting communication with the victims, A.M. and S.M., as well as with J.D. while H.W. is in custody serving his sentence.

[65] There will be an order under s. 490.013(2.1) to comply with the Sex Offenders Information Registration Act, for life.

[66] I will also make an order pursuant to s. 109 of the Criminal Code prohibiting H.W. from possessing any firearms, ammunition, and other weapons as defined by the Criminal Code for 10 years.

[67] As I understand H.W. to be self-employed and of limited means, I will waive the victim fine surcharge.

[68] Subject to any comments or need for clarification, I thank both counsel for their professionalism and excellent advocacy throughout this matter.

Justice R. Maxwell Released: April 1, 2022