ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
M.O.
V. Aujla, for the Crown
R. Fedorwicz, for M. O.
HEARD: March 11, 2022
REASONS FOR SENTENCING
Shaw J.
Overview
1Following a three-day trial in October 2021, I found M.O. guilty of one count of break and enter and committing the indictable offence of sexual assault and sexual interference contrary to s. 348(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”), one count of sexual assault contrary to s. 271 of the Code, and one count of touching the body of a person under the age of 16 years for a sexual purpose, contrary to s. 151 of the Code. All charges relate to a single sexual assault that occurred in the early morning of January 19, 2019, in the victim, M.V.’s bedroom when M.O. touched her buttocks. M.V. was 13 years of age at the time and lived with her parents, grandparents, and brother in a home located in Brampton, Ontario.
2These reasons set out what I consider to be the appropriate and fit sentence that is proportionate to the offence and the offender. These reasons should be read in conjunction with my reasons for conviction: R v. M.O., 2021 ONSC 8403.
Circumstances of the Offence
3On January 19, 2019, at around 4:00 am, M.O. entered the victims’ home through an unlocked front door late at night. Before entering the home, he was seen on home surveillance cameras walking up to other homes before he entered the victims’ home. He was intoxicated. He did not know the minor victim, M.V., or her family. He walked upstairs to where the bedrooms are located. He entered the parents’ bedroom and woke M.V.’s mother who called out. He left and entered M.V.’s bedroom. She was awake and not in her bed. M.O. walked towards and stood beside her. He then touched and squeeze her buttocks over the shorts she was wearing. M.V. slapped his hand away and walked out of the room. The only thing M.O. said in her bedroom was “Tinder date”.
4When M.O. walked out of the bedroom, he was confronted by M.V.’s parents who were wakened by M.O. and left their bedroom to see who was in the home. As M.O. tried to walk down the stairs, M.V.’s father tried to stop him and there was an altercation. M.V.’s grandfather was also awakened and he joined in to restrain M.O from leaving the home until the police arrived, 10 minutes later. He did not have a weapon.
Position of the Parties
5The Crown seeks a sentence of seven years. The Crown also seeks ancillary orders, most of which are not contested by M.O. This includes a DNA order pursuant to s. 487.051 of the Criminal Code, a s. 109 mandatory prohibition order for 10 years, a Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA”) order for life, and a noncommunication order with the minor victim and her family pursuant to s. 743.21 of the Criminal Code. The defence does not agree with an order pursuant to s. 161(a), (b), and (c) order for 10 years, that M.O. be prohibited to attending at certain locations where he may have contact with persons under the age of 16.
6The defence position is that a sentence of 15 months followed by probation for two years is a fit and appropriate sentence.
The Impact on the Victims
7Victim Impact Statements were not filed with the court. The author of the Pre-Sentence Report (“PSR”) spoke with M.V.’s father. He said that his daughter is doing okay and that she “got over it” quickly. She has not been involved with counselling and does not think the incident has had much effect on her. I have no evidence with respect to how the break and enter affected any of the others in the home at the time of the offence including M.V.’s parents, grandparents, and brother.
Circumstances of the Offender
8A very positive PSR was filed which descried pro-social circumstances.
9M.O. is 22 years of age and has two siblings. His parents divorced when he commenced high school. He lived with both after they separated, and they have remained actively involved in his life. He has a close relationship with his parents and siblings. His childhood was uneventful. He played hockey and football. He enjoys the benefit of support from his family.
10M. O. has been in a relationship for over one year. He views this as a close and long-term relationship. His partner is aware of these convictions and is supportive of him.
11M.O. graduated from high school in 2017. He was enrolled in an electrical engineering program but left before he completed college after being charged with these offences. He intends to complete the course and is optimistic about his future.
12M.O. has worked from a young age. He currently works full-time for his father’s landscaping and renovation business. His father told the author of the PSR that his son is a valuable member of his company.
13For four years, M.O. smoked marijuana daily, starting in Grade 10. His use then decreased to recreational use. He quit in 2020 and does not use any other drugs. He described himself as an “occasional drinker,” drinking mostly on weekends. He described himself as a “happy drunk” and denied that he becomes aggressive or violent when intoxicated. One of his goals is to cut back on his drinking. I note that he was intoxicated the night he committed these offences
14The author of the PSR described M.O. as polite and cooperative.
15His father told the author of the PSR that he believes that this son began to associate with a negative peer group in the latter part of high school which led to unwanted behaviour. He described his son as a “people pleaser.” His mother, who is a principal at a school, said that her son never displayed any behavioural issues while growing up and she said he was friendly and easy-going.
16M.O. began seeing a counsellor after being charged with these offences. He has continued with counselling for the past three years. The counselling focused on alcohol use, these offences, and how to move forward. Sessions were initially weekly and are now monthly. His parents report seeing improvement with their son’s attitude and behaviour.
17He did not discuss the offence with the author of the PSR and expressed no victim empathy when interviewed.
18A letter from his counsellor was filed confirming that the counsellor has been seeing M.O. regularly since June 2019 for mental health and substance abuse issues. M.O. is described as fully engaged in the process of exploring the underlying factors associated with his substance use and in identifying potential triggers for his use. According to his counsellor, there are currently no identified concerns of significance as it relates to his current pattern of substance abuse.
19Five letters of support were filed from people who have known M.O. for many years, including his uncle and close family friends. The letters are all very positive. The consensus view is that the offences for which he has been convicted are out of character for him. He is described as kind, caring, compassionate, dependable, loving, and a hard worker with a good sense of humour.
Principles of Sentencing
20The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Code.
21According to s. 718 of the Code, the fundamental purpose of sentencing is to protect society, to contribute to respect for the law, and to maintain a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:
a) Denouncing unlawful conduct;
b) Deterring this offender and others from committing offences;
c) Imprisoning offenders where necessary to separate them from society;
d) Assisting in rehabilitating offenders and in appropriate circumstances encouraging their treatment;
e) Providing reparation for harm done to victims or the community;
f) Promoting in offenders a sense of responsibility for and acknowledgement of the harm they have done to victims or to the community.
22Pursuant to s. 718.1 of the Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender. This promotes justice for victims and ensures public confidence in the justice system.
23Pursuant to s. 718.01 of the Code, the primary consideration on sentencing is the objective of denunciation and deterrence when the offence involves the abuse of a person under the age of eighteen.
24Section 718.2 of the Code sets out other sentencing principles. Those applicable to this case are as follows:
a) That a sentence may be increased or decreased depending upon the presence of any relevant aggravating or mitigating circumstances relating to the offence or to the offender which includes evidence that in committing the offence, the offender abused a person under the age of 18 yeas of age.
b) That a sentence should be similar to those imposed on similar offenders for similar offences committed in similar circumstances;
c) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
d) All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
25The object of denunciation is a sentence that communicates society’s condemnation of the offender’s conduct. When determining the fit and appropriate sentence in this case, the court must impose a sentence that denounces criminal conduct that targets minors.
26The objective of general deterrence is to impose a sanction that will discourage others from engaging in criminal conduct. This objective must also be considered when dealing with offences that involve minors.
27Restraint is also an important principle in sentencing; the least intrusive sentence that is appropriate and just should be imposed. That means that imprisonment is the sanction of last resort: R v. Hamilton and Mason (2004), 186 C.C.C. (3d) 128.
28When dealing with sexual offences that involve a child, the Supreme Court of Canada has recently stated that a strong message must be sent that sexual offences against children are “violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities”: R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 5. The court also stated that sentences must reflect “the wrongfulness of sexual violence against children and the far-reaching harm it causes to children, families and society at large.” Sentencing courts must not only consider the actual harm sustained by the child but also the potential harm that is yet to materialize but that are “reasonably foreseeable consequences of the offence and may in fact materialize later in childhood or in adulthood. To do otherwise would falsely imply that a child simply outgrows the harm of sexual violence”: see Friesen, at para. 84
The Kienapple Principle
29The Crown and defence agree that the Kienapple principle applies to counts 2 and 3. I agree. The conviction for sexual assault is stayed and M.O. is to be sentenced on the sexual interference count. They do not agree, however, on whether Kienapple applies to counts 1 and 3. The Crown’s position is that it does not as there is no legal nexus between the counts. The defence argues it does apply and that the offence of sexual interference is subsumed under the offence of break and enter to commit sexual interference.
30Multiple convictions from a single criminal act should be prevented and the accused should only be convicted of the most serious offence: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The Kienapple principle is intended to protect against the undue exercise of prosecutorial power. For the principle to apply, there must be both a sufficiently close factual nexus and a sufficiently close legal nexus between the two offences in the circumstances: R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480.
31To determine if there is a sufficient factual nexus, the issue is whether the charges arise out of the same transaction, or if the same acts of the accused ground each of the charges: R. v. Meszaros, 2013 ONCA 682, at para. 31. The legal nexus “focuses on the presence of distinguishing elements between the offences rather than on the presence of common elements”: Meszaros, at para. 32.
32In R. v. R. K. (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), Doherty J.A. found, at para. 36, that “the sufficiency of the legal nexus between offences will depend on an interpretation of the statutory provisions that create the offences and the application of those statutory definitions to the circumstances of the case”. Further, at para. 39, Doherty J.A. described the legal nexus inquiry as follows: “The crucial distinction for the purposes of the application of [the] Kienapple rule is between different wrongs and the same wrong committed in different ways.”
33At para. 38 of R.K., Doherty J.A. summarized the factors which would defeat the sufficient legal nexus argument as follows:
(i) Where the offences are designed to protect different societal interests;
(ii) Where the offences allege personal violence against different victims; and
(iii) Where the offences proscribe different consequences.
34In Prince, Dickson, J. (as he then was) stated that at para. 32 that
the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle
35In this matter, the Crown concedes that there is a factual nexus between the offences. I agree as the same acts of M.O. ground each of the charges. The Crown’s submission is that there is no legal nexus between the charges and thus Kienapple does not apply.
36With respect to the legal nexus, the question is whether there are sufficient additional and distinguishing elements between the two offences such that Kienapple does not apply.
37The Crown referred to the recent decision of R. v. Williams, 2021 ONCJ 147, where the offender was found guilty of sexual assault, sexual interference, and break and enter and committing sexual assault. Justice Kastner stayed the latter two charges pursuant to Kienapple. The Crown argues that this decision is of little assistance as there was no analysis with respect to why Kienapple applied. I agree.
38The Crown also cited R. v. Milani, 2017 ONSC 2420, where the offender was convicted of multiple counts of home invasion sexual assaults and related offences including robbery. The Crown and defence agreed that the count of sexual assault was subsumed under the count of break and enter and commit sexual assault and should be stayed. Justice Pierce agreed that there were no additional distinct elements in the sexual assault count that were not present in the count of break and enter and committing sexual assault. She found that there was both a factual and legal nexus between the two offences such that a stay with respect to the sexual assault, being the lesser offence, was appropriate.
39Justice Pierce did not agree that the count of unlawful confinement was subsumed in the count of break and enter and committing sexual assault and should be stayed. She found that confinement is not an element of sexual assault; therefore, there was a different factual nexus between unlawful confinement and the offence of break and enter and committing sexual assault. She noted that there were different legal elements in the offence of unlawful confinement that were not encompassed in the charge of break and enter and committing sexual assault as the offender intentionally confined the victim by tying her hands and feet before sexually assaulting her.
40The Crown submits that Milani is also of little assistance as the Crown and defence agreed that Kienapple applied so there was little analysis. I do not agree. There was an analysis but as will be reviewed, in my view, the analysis failed to consider the factors in R.K. which Doherty J.A. found would defeat the sufficient legal nexus argument.
41The Crown cited the August 19, 2021, unreported decision of Durno J. in R. v. Gozdzik in which the offender pled guilty to sexual interference and breaking and entering and committing an indictable offence. In that case, the offender entered a neighbour’s home and sexually assaulted an eight-year-old girl. He was sentenced on both counts. The issue of Kienapple was not addressed in that decision and so it is of little assistance.
42The defence filed the decision of R. v. Carpenter, [1999] O.J. No. 517 (C.J.), in which the offender pled guilty to charges of sexual assault and to break and enter with the intent to commit the indictable offence of theft. The offender entered a home, ate some food, and sexually assaulted an eight-year-old child. He was sentenced on both counts. The issue of Kienapple was not addressed and so the decision is of little assistance.
43The Crown referred to R. v. Rocheleau, 2013 ONCA 679, 5 C.R. (7th) 397, in support of its argument that there is no legal nexus between the two counts. In that case, the offender pled guilty to the following charges:
Robbery with a firearm;
Unlawful confinement of employees at the places robbed;
The use of a firearm in the commission of the unlawful confinement of the employees
44The offender appealed and argued that he should only have been convicted of the charge of robbery with a firearm and the other two counts ought to have been stayed based on the Kienapple principle.
45The Court of Appeal agreed that the use of a firearm in the commission of the unlawful confinement count ought to have been stayed, given the conviction on the armed robbery count. The Court of Appeal did not agree, however, that the conviction for unlawful confinement should be stayed on the basis that there was no legal nexus between that count and the count of robbery. The court found that the offences of robbery and unlawful confinement protect different societal interests. At para. 29, the court found that there was domination and a coercive restraint of the victims of sufficient length to attract liability for confinement, discrete from liability for robbery. Furthermore, the additional impact of the individual’s freedom of movement and bodily integrity was not simply incidental to the robbery. Accordingly, the court did not set aside the unlawful confinement conviction pursuant to Kienapple.
46In R. v. Hill, 2010 ONSC 5150, the offender pled guilty to a count of intent to enable or assist himself to commit an indictable offence, namely, aggravated sexual assault by choking, and a count of aggravated sexual assault. The offender agued that one of the convictions be stayed based on the Kienapple principle as the choking offence and the aggravated sexual assault were part of the same transaction. The Crown agued that Kienapple did not apply as Parliament created two separate offences arising out of the same matter and mandated multiple convictions.
47Justice Bryant noted in Hill, that the rule against multiple convictions in respect of the same cause or matter is subject to an expression of Parliamentary intent that more than one conviction should be entered when offences overlap. He held, at para. 35, that the wording of s. 246(a) discourages the application of the Kienapple principle as Parliament has specifically chosen to make choking with the intent to commit an indictable offence a separate offence from the commission of that indictable offence.
48In R. v. Snow, 1996 CarswellBC 2230, the two counts at issue were s. 246(a), which is choking with intent to commit an indictable offence, and s. 279(2), which is unlawful confinement. The BC Court of Appeal held that Kienapple principle did not apply as there was more than one wrongful act. The court found that choking is not an element of unlawful confinement. The court also found at para. 17 that, “[t]he offence of choking to enable the commission of an indictable offence is of a nature that is would rarely attract the Kienapple principle as it is an aggravating act beyond the commence committed or attempted.”
49The defence relies on R. v. Brownlee, 2018 ONCA 99, in which the offender was convicted of theft over $5,000, break and enter, two counts of possession of property for the purpose of trafficking and one count of possession of property obtained by crime.
50On appeal, the offender argued that his conviction for theft is an included offence in his conviction for break and enter and that his conviction for possession of property was an included offence in his conviction for possession knowing it was stolen for the purpose of trafficking. The Crown did not oppose. The Court found that the same transaction gave rise to two offences with substantially the same elements and there was both a factual and legal nexus. The court, therefore, stayed two of the counts.
51The defence also relies on R. v. Rutley, 2013 YKTC 7. In that case, the court found that the offender committed a break and enter and then committed an aggravated assault by wounding the victim. The trial judge found that the essential elements of the aggravated assault were subsumed in the s. 348(1)(b) break and enter and commit an aggravated assault. As such, the court found that the Kienapple principle applies and stayed the conviction of the aggravated assault.
52The Crown argues that Hill and Snow are analogous to this matter. In this case, rather than choking to commit an indicatable offence, the charge is break and enter to commit an indictable offence. The act of break and enter is not an element of the second count of sexual interference. Furthermore, I agree that Parliament chose to make the act of break and enter with the intent to commit an indictable offence separate from the commission of the underlying indictable offence.
53In my view, the proper approach is to consider the factors described by Doherty J.A in R.K. as described in para. 33 above.
54The overlapping offences are described in ss. 348(1)(b) and 151 of the Code as follows:
348(1) Everyone who
(b) breaks and enters a place and commits an indictable offence therein is guilty
(d) if the offence is committed in relation to a dwelling house, of an indictable offence and liable to imprisonment for life
151 Every person who, for a sexual purpose, touches directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years
(a) Is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year
55When I consider the first factor, the two offences protect different societal interests. The offence of sexual interference is meant to protect the most vulnerable in the community – those persons who are under the age of 16 years. The offence of break and enter with intent to commit an indictable offence is meant to protect the sanctity and safety of persons residing in a dwelling.
56When looking at the second factor from R.K., the victim of the sexual interference count was the minor in the house, whereas the break and enter count included all the family members in the home as victims.
57With respect to the third factor from R.K., the offences proscribe different consequences. The maximum sentence is life for break and enter with intent to commit and 14 years for sexual interference.
58Lastly, as noted above, break and enter with intent to commit an indicatable offence has an additional element – the break and enter in a dwelling. That is separate from the act of the indictable offence being committed which, in this case, was sexual interference. As noted in Meszaros and Prince, there is the presence of a distinguishing element in the first count, the break and enter, that is not present in the second count.
59For these reasons, the Kienapple principles does not apply to counts 1 and 3; M.O. will be sentenced on both counts.
Aggravating and Mitigating factors
60Section 718.2(a) of the Criminal Code mandates a consideration of aggravating or mitigating circumstances related to the offence or the offender. As per s. 718.2(a)(ii.1), it is an aggravating factor that the victim of the sexual interference was only 13 years of age.
61While the elements of an offence cannot be aggravating, in my view, where at the time that the sexual interference occurred is an aggravating factor. M.V. was in her bedroom when a stranger entered, at 4:00 am, and invaded the safety and sanctity of that space. I consider that to be an aggravating factor.
62The Crown also argues that this offence can be described as a home invasion. The Crown relies on R. v. Belbin, 2015 ONSC 1714, where the offender entered a home through an unlocked front door. He removed the 5-year-old victim from her bed and carried her out of the house where he removed her pajamas and pull-up diaper. At para. 44, Garton, J. discussed the concept of “home invasion” noting that the term has developed from case law to distinguish it from cases where there has been a break-in to a dwelling house as not every break-in can be characterized as a home invasion. The court found that while the break-in was properly categorized as a “home invasion”, it was imperative to consider all the circumstances of the offence, the nature and severity of the criminal acts, and the circumstances of the offender in determining the appropriate sentence.
63In Gozdzik, the Crown and defence agreed that the offence qualified as a home invasion which was a further aggravating factor on sentencing. In that case, the offender was seen trying to enter multiple other homes before entering the victim’s home through an unlocked door. The offender entered the eight-year-old victim’s bedroom, removed his pants, and removed her underwear. He touched the victim in the vagina area and touched the inside of her vagina with his finger. He never said a word and the left.
64In my view, M.O., like the accused in Belbin and Gozdzik, walked towards several houses before entering the victims’ home. He entered the parent’s bedroom first and woke them, before entering M.V.’s bedroom. He also committed an indictable offence in the home, although the nature and gravity of the offence was far less serious than in either of those cases. Thus, while this may be categorized as a home invasion, the entire context of what occurred is important to consider on this sentencing, including the nature and severity of the criminal acts, the impact on the victims, and the circumstances of M.O.
65There are several mitigating factors to consider. First, M.O. is a youthful first-time offender. He does not have a criminal record.
66Another mitigating factor is his family support. He has the support of his parents and romantic partner. That is important when considering the prospects of rehabilitation.
67M.O. has a strong work history. He has worked from a young age and is currently employed. He was in college at the time of the offence and plans to return to school to complete his education. These are further mitigating factors.
68It is also a mitigating factor that M.O. sought out counselling shortly after being charged to address, amongst other things, his use of alcohol. He has been engaged with counselling on a regular basis for the past three years. In my view, this also bodes well for rehabilitation.
69M.O. exercised his right of allocution and apologized to the family saying that everyone should feel safe in their home, but he did not express any remorse for M.V. I accept this expression of some remorse but find it to be a neutral factor.
70I consider M.O. to be a good candidate for rehabilitation for the following reasons:
i) he does not have a criminal record;
ii) he has been in counselling for the past three years;
iii) his lifestyle is pro-social;
iv) he was in college at the time of the offences and plans to return;
v) he has a solid work record;
vi) he has support of his family and romantic partner.
Sentencing Case Law
71Both the Crown and defence filed books of authorities and prepared very detailed sentencing charts. What is clear, based on these decisions, is that there is a broad range of sentences available in cases of sexual interference.
72The cases submitted by the Crown involve far more grievous sexual acts being committed. In this matter, the sexual act was a brief touching of the minor victim’s buttocks. I am, however, mindful of Friesen where the Supreme Court of Canada cautioned courts against downgrading the wrongfulness of the offence where the sexual violence does not involve penetration, fellatio, or cunnilingus, but rather touching or masturbation. Nonetheless, in my view, the sexual assault in this case is at what I consider to be the lowest end of the harm spectrum. Touching a child’s buttocks, briefly, cannot be viewed as being as equally violating as an act of penetration.
73I recognize that a victim may suffer grave harm from even a touching. In this case, however, there is no evidence that M.V. suffered any such harm. I am also mindful, however, that harm can manifest itself at a later date. In Friesen, the Supreme Court of Canada spoke of not only the actual harm suffered by the victim but that sentencing judges must also consider potential harm that is yet to materialize but is a reasonably foreseeable consequence of the offence that may materialize later or in childhood or adulthood.
74The Crown relied on Friesen. That case involved an offender who demanded that the mother of the victim, bring her 4-year-old child into the bedroom to engage in sex acts. The facts are chilling. The PSR said the there was a high risk that the offender would reoffend. He was sentenced to six years.
75The Crown relied on Belbin. The offender abducted a five-year-old from her home and took her to the backyard. He removed her pyjamas and pull-up diaper. The father went to the backyard and saw a figure hovering over his daughter who was moaning. He yelled and the offender fled. The child was out of the house for nine minutes. While there is no description of the nature of the sexual assault, the offender was sentenced to 7 years less pre-trial credits for a net sentence to 2 years and 4 months for each count, to be served concurrently.
76In Gozdzik, the offender’s conduct was far more grievous. He was sentenced to 6 years and 6 months. He removed the victim’s pants and tried to remove her underwear. The victim fought with the offender. He partially penetrated her. The impact to the victim was significant and the family had to move from their home due to the harm caused by this assault.
77In R. v. McLean, 2013 ONCJ 23, the offender drank at a bar and then broke into the victim’s apartment, thinking it was his cousin’s home. While he recognized he was in the wrong home he still entered the living room where the victim, an eight-year-old, was sleeping on a couch. He sexually assaulted her by kissing her on the mouth, vagina, and anal area. He pinched her chest and then inserted his fingers into her vagina and anus. He removed his penis and rubbed and pushed it against her vagina and anal area. The assault lasted for several minutes. The victim had bruises on her arms consistent with being held down. The offender pled guilty and expressed remorse. He was sentenced to four years. The court considered this to be a home invasion and that a lengthy penitentiary term was warranted. Again, the nature of the sexual assault was far more grievous in McLean.
78In R v. Hejazi, 2018 ONCA 435, the offender was convicted of a planned home invasion robbery and unplanned sexual assault of two women. The offender was a young first-time offender. He was sentenced to 9 years.
79The cases filed by the defence are also problematic as they do not include circumstances where the offender breaks into the victim’s home and then sexually assaults them in the safety and sanctity of their home.
80In the cases filed by the defence, the sentences range from 9 months to 5.5 years. All the victims were minors.
81In R. v. Gunaratnam, 2021 ONSC 8270, there were two victims. The offender was convicted of twice sexually assaulting one 7-year-old victim. The assaults involved touching the victim’s vagina and nipples and digital penetration. He pled guilty to sexually assaulting the other 13-year-old victim. The assault involved touching her nipples and rubbing her vaginal area. He was sentenced to a conditional sentence of 2 years less a day.
82In R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, the victim was at the offender’s house for a sleep-over with the offender’s child, who was a friend. The victim was six or seven years of age. The offender took the child into a bathroom and put her hands on his penis and told the victim to put her mouth on it. She pulled away and left. The Court of Appeal increased the sentence from 9 months to 2 years followed by 2 years probation. The court found that the offender abused his position of trust over a young child and described his conduct as violent, exploitative, and harmful to the victim and her family.
83In R. v. R.L.S., 2020 ONCA 338, the victim was the offender’s daughter. Between the ages of four and six, he watched pornography with her and had her touch his erect penis with her hand. On another occasion, he had had her play an internet game depicting genitals; and another time, he sat her on his lap while he was naked and his penis exposed. His sentence of 9 months was upheld on appeal.
84In R. v. D.B., [2021] O.J. No. 4381 (C.J.), the offender touched the 12-year-old victim on several separate occasions at his home when she was visiting. The sexual assaults involved putting his hand inside her shirt, rubbing against her buttocks, and humping her. He also touched her vaginal area over her clothes and underwear. He tried to kiss her on the mouth and showed her his penis. After a trial, he was sentenced to 18 months. The offender was employed and had no material criminal record.
85In R. v. Carpenter, [1999] O.J. No. 517 (C.J.), a sentence of 18 months was imposed, reduced to 14 months for pre-trial custody credit, following a guilty plea by an offender who was on probation at the time and went into an eight-year-old’s bedroom and digitally penetrated her. I consider this case to be of limited assistance as it was decided 21 years ago and there has been a recognition since then that sentences for sexual assault were historically too low.
86In R. v. A.B., 2020 ONSC 7691, decided after Friesen, the offender was convicted of two counts of sexual assault, two counts of luring a child, and two counts of sexual exploitation. The victim was 16 and knew the offender as she was in the same class as the offender’s son. She had a learning disability. The offender knew she wanted to be a model and he messaged her that he was in the business. The court found that the offender kissed the victim, put his had on her inner thigh, close to her vagina, and then her knee. He also extracted nude photographs from the victim. He was sentenced to 15 months followed by 24 months of probation.
87In R. v. Wyvill, 2021 ONCJ 548, also decided post Friesen, the offender pled guilty to sexual interference. The 19-year-old intoxicated offender entered a bedroom where the 14-year-old victim was sleeping and penetrated her vagina with his fingers, performed cunnilingus on her, and had sexual intercourse with her. She was unconscious for most of the assault. The offender had family support and was employed. He was sentenced to 2.5 years.
88In R. v. Neville, 2021 ONCJ 594, the offender, the victim’s babysitter, was convicted of sexual assault. It was also found that he breached a position of trust. The victim was 5 years of age. The offender had cognitive limitations. He was sentenced to two years followed by two years probation.
89In R. v. Senwasane, 2022 ONSC 120, the offender sexually assaulted the victim on three occasions when she was 13, 15, and 16. The assaults included intercourse. The accused knew the victim. He was employed and had no record. He was sentenced to 5.5 years.
90Although it was not raised during submissions, I note that the Court of Appeal found that the one-year mandatory minimum in s. 151 of the Code was unconstitutional and struck it down: R v. B.J.T., 2019 ONCA 694.
Sentence
91When determining sentence, I must grapple with several competing factors. There are both aggravating and mitigating features. There is a significant difference in the sentence proposed by counsel.
92Given the nature of the offences, the impact on the victim, and the circumstances of the offender, I consider the Crown’s suggestion of seven years to be excessive. I assume that the Crown relied on the caselaw he filed in reaching that assessment. In my view, that caselaw was of minimal assistance. While it provided sentencing ranges for sexual assault cases that also involved a home invasion, the nature of those sexual assaults was far more violent, invasive, and egregious than in this matter. In my view, the Crown failed to consider the nature of this particular offence and this particular offender in assessing what the Crown viewed as a fit and appropriate sentence.
93A conviction of sexual interference is a serious offence; it includes a finding that the offender knowingly engaged in sexual conduct with a child. The impact on the child can be profound and permanent. Fortunately, the information from M.V.’s father is that she recovered quickly and is not showing any signs of harm. However, it is reasonably foreseeable that she may yet suffer harm from this assault. Based on the nature of the assault, I expect any potential future harm to be less than had the sexual assault been of a more violent and intrusive act.
94M.O. is a young man with a positive work and education history. He enjoys a great deal of support from family and friends. He has sought out and has been engaged in counselling for several years. He made a terrible mistake, while intoxicated, that will have an impact on his life. That terrible mistake also impacted several innocent victims. Not only did he invade the safety and sanctity of their home, but he also sexually assaulted a young girl. For that, the principles of denunciation and deterrence take priority on sentencing.
95In determining what I consider to be the fit and appropriate sentence, I have considered the objectives of sentencing, the nature of the offence, the limited information of the impact on M.V., the ranges of sentences from the cases I reviewed and the mitigating and aggravating factors.
96I therefore sentence M.O. to 15 months detention for count one, break and enter with intent to commit sexual assault and sexual interference, and 15 months detention for count three, sexual interference, to be served concurrently. This period of detention shall be followed by two years probation.
97The terms of probation are as follows:
i) Report to a Probation officer as directed;
ii) Find and maintain suitable employment and provide proof to the Probation Officer upon request;
iii) Do not associate, contact, or hold communication directly or indirectly with the victim or any persons in her immediate family;
iv) Do not attend within 100 meters of any place known to the victim or any persons in her immediate family;
v) Attend and actively participate in all assessments, rehabilitative and/or counselling programs as recommended by his Probation Officer and complete them to the satisfaction of the Probation Officer for; inappropriate sexual conduct and any other counselling deemed appropriate;
vi) Sign any necessary releases to allow the Probation Officer to monitor progress and attendance within counselling.
98With respect to the ancillary orders, the Crown has sought an order under s. 161. Such orders are discretionary. In R v. Schulz, 2019 ONCA 598, the court noted at para. 40 that the function of s. 161 of the Code is to shield children from sexual violence. An order under this section constitutes punishment. The court noted that there must be an evidentiary basis upon which to conclude that the offender poses a risk to children.
99Based on all the circumstances, I am not persuaded that such an order is necessary to minimize any such risk, which I do not consider to be present, nor is such an order necessary to deal with M.O.’s specific circumstances.
100The following ancillary orders will be included in the sentence:
i. An order authorizing the taking of a DNA sample pursuant to s. 487.05(1)(a) of the Criminal Code;
ii. A firearms prohibition order for 20 years pursuant to s. 109 of the Criminal Code;
iii. An order prohibiting M.O. from communicating directly or indirectly with any of the victims M.V., S.V., N.V., L.V., and V.V. while in custody pursuant to s. 743.21 of the Criminal Code;
iv. An order requiring M.O. to comply with the Sex Offender Information Registration Act for life pursuant to s. 490.013(2.1) of the Criminal Code.
L. Shaw J.
Released: May 27, 2022
