COURT FILE NO.: 17-1637
DATE: January 19, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Teresa James for Her Majesty the Queen
- and -
P.L.
Elena Davies by her agents B. Engel and N. Valsamis for the accused
Accused
HEARD: November 1, 2021
REASONS FOR SENTENCE
James J.
Overview
[1] On January 20th, 2020, P. L. was convicted of one count of sexual assault.
[2] In a subsequent court application, Mr. L was successful in challenging the provision in the Criminal Code that stated that a conditional sentence was not an available sentencing option for sexual assault. This opened the door for Mr. L to suggest at his sentencing hearing that it would be appropriate that he be sentenced to a custodial sentence of up to two years less a day to be served in the community.
[3] Sentencing submissions were made on November 1st, 2021 and the matter was adjourned to today's date for a decision.
Facts
Circumstances of the Offence
[4] On December 22nd, 2017, Mr. L's daughter, her two children and the victim in this case visited Mr. L at his home and stayed overnight.
[5] At the time, Mr. L was about 70 years old. The victim was about one month past her 16th birthday. There was a remote, extended family connection between them. The victim had known Mr. L for most of her life.
[6] After an evening of alcohol fueled discussions about family and personal issues, Mr. L suggested to the victim that she ought to "crash in his room." Mr. L was heavily intoxicated and the victim had been drinking as well, perhaps as many as 10 or 12 drinks. The actual quantity of alcohol consumed by the victim is unclear.
[7] The victim had slept over at Mr. L's house with Mr. L's grandchildren before. They usually slept in the basement. She was not concerned about the suggestion that she should sleep in Mr. L's bedroom. She remembered bringing a ginger ale into the bedroom and that she made a social media post before going to sleep. She was fully clothed when she went to bed.
[8] She awoke in the night to discover that she was undressed, and that Mr. L was performing oral sex on her. She recalled him kissing her breast and leaving a mark. She felt very intoxicated. She rolled over to get away from Mr. L but while laying on her stomach he opened her legs to get access to her vagina and inserted his finger. Later, she discovered marks on her inner thigh. She never touched Mr. L and there was no mouth to mouth kissing. She said that she did not initiate any contact. The only reason she went into his bedroom was to sleep and that at no time did she consent to sexual activity.
[9] In the morning when she woke up, Mr. L was performing oral sex on her again. When she tried to leave the room, Mr. L didn't want her to get dressed and he tried to block her from getting her clothes.
[10] Subsequent investigations revealed the presence of Mr. L's DNA on swabs taken from the victim's left upper thigh, left breast, external genitalia and vagina.
[11] Mr. L exercised his constitutional right not to testify at the trial.
Circumstances of the Offender
[12] Mr. L is now 73 years old. He works in the construction industry and was trained as a truck driver and heavy equipment operator. He has been with his current employer for about 20 years and is now a foreman supervising a crew of up to 15 workers.
[13] He married his first wife in 1969 and they were together for about 11 years.
[14] He married for a second time in 1981 and he had three children with his second wife. This marriage lasted about 16 years.
[15] This was followed by a two year common law relationship.
[16] His adult son resides with him.
[17] He has a long history of alcohol abuse although he has been sober for over 3 years.
[18] His criminal record consists of a single 2003 conviction for impaired driving.
Legal Parameters
[19] Mr. L was convicted of sexual assault. This offence is punishable by a maximum period of incarceration of 10 years imprisonment. If the victim had been one month younger, the maximum penalty would have been 14 years imprisonment.
[20] Pursuant to Section 741.1 of the Criminal Code, a conditional sentence is not an available sentencing option for convictions for sexual assault but Mr. L was successful in challenging the constitutionality of this provision and for today's purposes a conditional sentence is an available sentencing disposition.
Position of the Crown
[21] Crown counsel says that a sentence of two to three years' incarceration would be appropriate in this case.
[22] If the sentence is less than two years, Crown counsel also requests a period of probation to follow the custodial portion of the sentence.
Position of the Defence
[23] Defence counsel says that a conditional sentence of two years less a day followed by probation would be an appropriate disposition in this case. A conditional sentence is a custodial sentence served in the community. It is sometimes referred to as house arrest. For example, it allows an offender to maintain employment which can be very important while at the same time limiting the offender's freedom of movement.
[24] The defence says a conditional sentence combined with a lengthy probation order would provide ample time, up to 5 years, for counselling and treatment in a supervised environment.
[25] Mr. L also seeks an exception from a weapons ban if imposed to permit him to hunt.
[26] The defence also contends that sentences of 2 or 3 years' imprisonment tend to be confined to situations involving multiple victims, multiple incidents and gratuitous violence.
[27] Ms. Davies on behalf of Mr. L also referred to his Indigenous heritage and made submissions as to how that should be taken into account for sentencing purposes. I will have more to say about that later.
Case Law
[28] 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.
[29] With that caveat in mind, perhaps the most significant case presented for consideration by Crown counsel is the recent decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9.
[30] In that case the offender sexually interfered with the 4 year old daughter of a woman he had met on an internet dating site.
[31] 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.
[32] 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. The Court of Appeal reduced the sentence to 4 and a half years. On further appeal, the Supreme Court of Canada restored the original 6 year sentence.
[33] 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.
[34] 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 on the lenient end of the spectrum of fit sentences.
[35] In the case of R. v. W.T., [2016] O.J. No 6563 (S.C.J.) the offender sexually assaulted his 13 year old niece, including digital penetration of the victim's vagina followed by a brief act of intercourse. At trial the offender denied the allegations and suggested that the victim had fabricated her claims. He was 49 years old at the time of sentencing. He was married with a 4 year old child and had a good work history. He did not have a criminal record. The offender was sentenced to a 2 year penitentiary term.
[36] In the case of R. v. L.W.T., [2011] A.J. (Alta. Q.B.) the 53 year old offender removed the pajama bottoms of his 7 year old step-granddaughter and licked her vagina. He was consistently employed and had an unrelated criminal record. He was sentenced to 3 years' imprisonment.
[37] In R. v. Beer [2018] O. J. No. 4487 (S.C.J.) the offender was convicted of a sexual assault that took place 26 years before the trial in circumstances where the offender had intercourse with the victim while she was asleep, which resulted in the birth of a child who the victim raised as a single parent. The prosecution sought a penitentiary term of 5 to 6 years; the defence argued for a conditional sentence of 2 years less a day. At the time of trial, the offender was 70 years old. He was on pension after a long career as a grain handler a local grain elevator. He had a dated, unrelated criminal record. The victim had experienced financial difficulties as a sole parent and difficulty forming interpersonal relationships. He was sentenced to 4 years in prison.
[38] I turn now to a review of some of the cases presented by defence counsel. I will refer to three cases presented in support of the contention that a conditional sentence would be appropriate in these circumstances.
[39] In the case of R. v. R.S., 2021 ONSC 2263 the Indigenous offender was 38 years old at the time of sentencing. He was found guilty of sexual assault and choking with intent to overcome resistance. His childhood was horrific and included the disappearance of his mother, the suicide of his father, alcohol abuse and several years in foster care. He had a successful education and work history. He and the victim had previously had a brief intimate relationship and continued to be friends. The night of the incident they had been at a hockey game and had several drinks in a bar afterwards. The attack took place in the victim's home. Her recollection of events was hazy. The offender put his hands all over her body and undid her pants and underwear. He penetrated her vagina with his finger. When the victim resisted, he choked her until she saw stars but she did not lose consciousness. The assault was interrupted by a neighbour. The victim was deeply affected by the incident. The sentencing judge determined that the offender was truly remorseful. His Indigenous heritage and disadvantaged upbringing figured prominently in the judge's decision to impose a 2 year conditional sentence followed by 3 years' probation.
[40] In R. v. A.C., 2011 ONSC 4389, the 25 year old offender had immigrated from Mexico and was married to the victim's older sister. They lived in the basement of the home of his wife's parents. The victim's bedroom was on the second floor. There were three assaults over a period of several months. When the victim was about 13 years old the offender entered her bedroom at night. He tried to touch her stomach and kiss her. On another occasion, he laid on the bed beside her while undressed and tried to remove her clothes. The last incident took place in the basement. He grabbed the victim's arm and pulled her towards his bed. She scratched his back and bit his lip when he tried to kiss her. The victim disclosed the assaults about 8 years later. The sentencing judge imposed a 2 year conditional sentence and probation for 3 years.
[41] In R. v. Morgan, 2021 ONCJ 100 a 19 year old college student became intoxicated at a party. As he was leaving, he encountered a young woman who was obviously intoxicated and throwing up. He escorted her to her residence, but she had lost her key and couldn't get in. He then took her to his parents' house where they went to sleep together on a pull-out couch in the basement. Later they had unprotected sex. When the victim awoke early the next morning, she had no memory of the events. She called her mother who picked her up. The victim phoned the offender to ask what had happened and he confirmed that they had engaged in unprotected sex. The victim attended a local hospital and had a sexual assault examination. The victim was deeply affected by the events in question and developed an eating disorder and mental health challenges. The court reviewed a number of cases where conditional sentences were imposed. The offenders tended to be youthful and a similar age to their victims. In most instances the assaults were at the low end of intrusiveness. The sentencing judge observed that had it not been for the offender's candid admissions to the victim and later to the police, the case would not likely have come to court. The offender's father died of cancer while the case was underway, and he was an important support for his mother following his father's death. He was sentenced to a 16 month conditional sentence.
[42] Defence counsel referred to several cases in support of her contention that the sentencing position of the Crown offends the parity principle, that is, similar offenders who have committed similar crimes should, all things being equal, receive similar penalties.
[43] Illustrative of the defence position is the case of R. v. Lavergne, 2017 ONCA 642 where a sentence of two years less a day was held to be reasonable in a situation involving multiple incidents with multiple victims. Mr. Lavergne was in his early 70s when he pleaded guilty to two counts of sexual assault in relation to two girls aged 12 and 9. There were two incidents involving the 12 year old and three incidents involving the 9 year old. The assaults consisted of kissing and fondling and one case of oral sex. As a result of a plea bargain, the court was presented with a joint submission of two years less a day. Later the offender sought to resile from his guilty plea and argued that a sentence of 12 to 18 months was more appropriate.
[44] In reviewing the sentence, the Court of Appeal held that the sentence was entirely reasonable and justified by multiple counts involving two young girls. The court noted that the original sentencing judge had advised counsel that he was not prepared to go below two years less a day, even on a joint submission.
[45] Also notable in this case was Mr. Lavergne's assertion that a lighter sentence was warranted due to his Indigenous heritage. The record did not disclose anything beyond his statement of Indigenous heritage. There was no evidence of any systemic or background factors which may have played a role in bringing the offender before the court. The court said that a bare assertion of Indigenous heritage, without more, would not have any impact on the sentence imposed and referred specifically to the Ipeelee decision of the Supreme Court of Canada.
Impact on the Victim
[46] The victim in this case prepared a Victim Impact Statement.
[47] She described the incident as the most traumatic event in her life.
[48] She said that the incident left her feeling disgusted, dirty, depressed and worthless. It affected her schooling and her relationships.
Gladue Considerations
[49] Mr. L identifies as Metis. He is a member of the Painted Feather Woodland Metis and has a membership card from the Metis Family Records Centre. To Mr. L's knowledge, he is the only member of his family to be a member of this organization.
[50] A Gladue Report was prepared by Katherine Melanson of the Aboriginal Legal Services.
[51] Ms. Melanson conducted research into the Metis Family Records Centre. She said that for this organization their response to the question, "What is the definition of Metis?" their answer is "Anyone with an aboriginal ancestor."
[52] There is some doubt as to whether Mr. L has Indigenous ancestry or not. Mr. L's parents were L.M.L and P. G. L. Both parents are now deceased. His mother always said there was no native ancestry in the family but Mr. L suspects that this was not the case. In the family history book given by Mr. L's mother to him, the family tree did not disclose any Indigenous family members. He was raised in the Arnprior area and his family had no known connections with First Nation communities in the vicinity.
[53] Mr. L said his parents did not teach him about their Indigenous culture, implying that there was an Indigenous connection in the past.
[54] Mr. L told Ms. Melanson that his maternal grandmother was M. M. and his paternal grandmother was M. Mc. He said his Indigenous ancestry derived from one of his grandmothers. He said he was told by unidentified family members that either his paternal or his maternal grandmother had native blood in them. He had no information about what Indigenous communities they may have belonged to. He said nobody lived on a reserve that he knew of.
[55] Genealogical research conducted by Ms. Melanson on both sides of the family included his paternal grandfather and great-grandfather, his six paternal aunts and uncles, all deceased. His paternal great-grandmother was A.S.
[56] On the maternal side his maternal grandfather was R.M. and R's parents were traced to records in Cheltenham, England.
[57] Ms. Melanson could not find any information in the First Nations Census Records for the prior generations on either side of Mr. L's family. None of the records found referred to Mr. L or his ancestors as Indigenous. Ms. Melanson found no other documentation or references connecting Mr. L or his family to an Indigenous ancestry.
[58] As a result, Aboriginal Legal Services were unable to prepare a Gladue Report for two reasons. First they were unsure about the specific nature of Mr. L's Indigenous ancestry and second, even if his ancestry could be confirmed the Gladue writer was not able to address how being an Indigenous person affected his life circumstances. Ms. Melanson made a point of saying that her investigation did not establish that Mr. L does not have Indigenous ancestry.
[59] The pre-sentence report indicates that Mr. L was raised in a supportive, loving family. He reported having a pleasant childhood. He was not abused or maltreated. He had five brothers and sisters. An older brother committed suicide and Mr. L believed that depression and alcohol were factors that contributed to his death.
[60] He left home at the age of 18 and moved into a rooming house in Renfrew where he met the woman who would later become his first wife. He attended Durham College where he acquired a work-related training certificate and lived and worked in the Whitby area for 5 years. During this time, they lost a daughter who was stillborn which was an emotional and traumatic event. Mr. L traced his alcoholism to the increased drinking that followed the loss of his daughter.
[61] Mr. L has a consistent work history. His employer is aware of his alcoholism but says it has never interfered with his work. His employer had only positive things to say about Mr. L's work habits and skills.
[62] Section 718.2(e) of the Criminal Code directs that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. We know that special care needs to be taken when sentencing Indigenous offenders due to the damaging effects of centuries of systemic discrimination and multi-generational trauma.
[63] Section 718.2(e) is a direction to sentencing judges to inquire into the socio-economic factors that have resulted in the imprisonment of a disproportionately high number of Indigenous persons and to endeavor to remedy the situation to the extent that it is possible to do so through the sentencing process.
[64] The decision of the Supreme Court of Canada in R. v. Gladue, 1999 697 directs sentencing judges to consider:
The unique system and background factors which may have played a part in bringing the particular Aboriginal offender before the courts and;
The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.
[65] What the Gladue principles are not intended to do is to create a race-based discount or automatic reduction of sentence or a remission of a warranted period of incarceration, simply because the offender is aboriginal (Gladue, para. 88).
[66] While courts may take judicial notice of matters such as the history of colonialism, displacement and residential schools and how that history continues to translate into lower education, lower income, higher unemployment, high rates of substance abuse and suicide, these matters, on their own, do not justify a different sentence for Aboriginal peoples. Rather they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counsel have a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to have it considered. In current practice, case-specific information is often brought before the court by way of a Gladue report. Bringing such information to the attention of the judge in a comprehensive and timely manner is indispensable to a judge in fulfilling his duties under s.718.2(e) of the Criminal Code (see R. v. Ipeelee 2012 SCC 13 at para. 60).
[67] In this case defence counsel was understandably challenged in discharging her duty to present individualized information about Mr. L's circumstances against a backdrop of systemic discrimination.
[68] Mr. L grew up in a family that did not observe Indigenous practices or culture. It is not at all certain that Mr. L has an Indigenous heritage. As a child living in the Arnprior area, he was loved and supported by his parents. There is no evidence of abusive behaviour, no evidence of substance abuse by his parents, and no evidence of systemic or specific discrimination.
[69] Mr. L reported experiencing a happy and stable childhood. He obtained work after attending Durham College. He has maintained a steady employment history. He has maintained good relationships with his former marital partners. There is no evidence of his 3 children having problems that can be connected to the presence of Indigenous ancestry.
[70] In making these comments I recognize that it is incorrect to require the offender to establish a causal link between background factors and the current offence before the court before being entitled to have these matters considered by the sentencing judge. It is sufficient for the sentencing judge to give attention to the unique background and system factors which may have played a part in bringing the particular offender before the courts. (Gladue, para. 69).
Mr. L's Sexual Behaviours Assessment
[71] Following his conviction for sexual assault, Mr. L agreed to participate in a sexual behaviours assessment by Dr. Brad Booth, a psychiatrist at the Royal Ottawa Hospital and associate Professor at the University of Ottawa.
[72] The assessment detected a mild neurocognitive disorder likely due to cerebrovascular disease and alcohol consumption. He has a generalized anxiety disorder and self-esteem issues. His alcoholism was rated as severe but in sustained full remission. He is genetically predisposed to depression and substance abuse. After his arrest, he had a relapse of depression. On the positive side, Dr. Booth said that Mr. L had gained some insight about the dysfunction related to his alcohol use, has good family supports and is motivated to work.
[73] Using standard risk-assessment tools, Dr. Booth determined that Mr. L was in the low risk category to re-offend. His advanced age and decision to abstain from consuming alcohol were important factors contributing to his categorization as low risk.
[74] A follow up examination to the initial assessment was performed in September, 2021. Dr. Booth reported that Mr. L presented quite similarly to his initial assessment in March, 2020. He appeared less tearful although he still seemed depressed and anxious. He seemed more organized in his thinking and his memory appeared to have improved. He had ongoing suicidal ideation but no plans to harm himself. Dr. Booth suggested that if Mr. L was sentenced to a custodial period of imprisonment, he would benefit from treatment at an institution that had mental health facilities.
Mitigating and Aggravating Circumstances
[75] A mitigating circumstance is one which tends to reduce an otherwise appropriate sentence. I would note the following mitigating factors:
a. He has been sober since the incident;
b. He was willing to undergo assessment and treatment;
c. He is at a low risk to re-offend;
d. He has family support;
e. He has maintained his employment;
f. He does not have a relevant criminal record;
g. He has been on bail for 4 years without any incidents. Defence counsel says that the absence of any bail breaches is a good indicator that Mr. L would do well with a conditional sentence;
h. His bail conditions included a prohibition against seeing his granddaughter for 15 months until this condition was eliminated;
i. He has hunted and guided in the past but has been unable to do so while on bail due to the weapons prohibition; and,
j. The disposition of his case has been delayed by the pandemic and other factors which means he has been on bail for 4 years and his bail conditions include a curfew which limits his freedom.
[76] An aggravating circumstance is one which tends to increase an otherwise appropriate sentence. I would note the following aggravating factors:
a. The victim was a person under the age of 18;
b. The assault had a significant impact on the victim as disclosed by her Victim Impact Statement;
c. The offence was committed against a vulnerable young person who was sleeping and who had been served alcohol to the point of intoxication;
d. There was a significant age difference; and,
e. There is an element of breach of trust in the circumstances of this case. The victim had known the offender for most of her life. When she was young, he had provided child care for her. There was a family connection between them, albeit somewhat remote and traced through marriage. As noted in the Friesen case, trust relationships can arise in a variety of circumstances and should not all be treated alike. I think it is fair to say that the victim trusted Mr. L as a result of their long acquaintance and family connections in a way she would not have trusted a person who was not as well known to her. As noted in Friesen, it makes sense to refer to a spectrum of positions of trust (paras. 125 to 130). 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. In making these comments, I am cognizant of the fact that Mr. L was found not guilty of sexual exploitation precisely because I was not satisfied beyond a reasonable doubt that there was a technical breach of trust or authority or a relationship of dependency within the meaning of s. 153 of the Criminal Code. While there is a breach of trust in the circumstances of this case that is an aggravating factor to the sexual assault, care must be taken not to overextend the breach of trust aspect too far by punishing the offender for an offence that was not proven.
Principles of Sentencing
[77] In fashioning an appropriate sentence for Mr. L, 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.
[78] The sentence imposed should be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[79] In addition, the sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
[80] An offender should not be deprived of his liberty if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
[81] 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.)).
[82] 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.
[83] A conditional sentence is an available sentencing option in this case due to Mr. L's successful constitutional challenge.
[84] In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. the court held that the gravity of [sexual offences against children] is relevant to determining whether a conditional sentence is appropriate in the circumstances, it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences. Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the objectives of uniformity and consistency in the use of conditional sentences. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the "punishment fits the crime" (paras. 81-82).
[85] In R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, Lamer C.J. for the majority held that, "a conditional sentence can provide significant denunciation and deterrence, particularly where onerous conditions are imposed." In that case, the Supreme Court of Canada upheld a conditional sentence of 21 months which included a condition of house arrest, after the accused was convicted of one count of indecent assault and one count of gross indecency. There were 10 to 12 incidents involving forced masturbation and fellatio while the complainant was 6 to 12 years old. The offences were committed approximately 20 years before the appeal was heard.
[86] As noted by Thorburn J. (as she then was) in R. v. Ludlow, 2008 29600 (ON SC) conditional sentences have been imposed in a variety of different instances. They have been imposed in circumstances where there was no abuse of position of trust, power or authority, in cases involving sexual touching and cases involving indecent assault. Conditional sentences have also been imposed in cases involving abuse of a position of trust, where the incidents took place long ago and the accused had since lived an unblemished life (para. 51).
[87] On the other hand, as Doherty J.A. said in R. v. Killam (1999), 1999 2489 (ON CA), 126 O.A.C. 281, at para. 13, "a conditional sentence...does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal."
[88] Returning to the Friesen decision, this recent pronouncement by the Supreme Court of Canada has directed that sentencing judges must be careful to impose proportionate sentences in cases where the victim is an adolescent. In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy. The court observed that in the past disproportionately low sentences have been imposed in cases involving adolescent girls (para. 136).
The Principles applied to the Evidence
[89] Weighing the applicable principles against the evidence and having given serious consideration to the appropriateness of a conditional sentence, I have concluded that only a term of imprisonment will adequately denounce Mr. L's conduct. As noted by our Court of Appeal in R. v. MacIntyre-Syrette, 2018 ONCA 706 at para. 19, alternatives to incarceration are restricted to situations where those sanctions are reasonable in the circumstances. There are circumstances in which the need for denunciation and deterrence is such that incarceration is the only suitable way to express society's condemnation of the offender's conduct. I readily accept that on the issue of specific deterrence, the risk of Mr. L re-offending is low but general deterrence involves a requirement to demonstrate to others that sexual assaults against children will have significant consequences. In particular, I find the following considerations determinative:
a. The victim was a young person, one month past her sixteenth birthday. The Friesen case serves as a new benchmark for the sentencing of offenders who sexually assault children. Although the Friesen case involved a young child, it is clear that the court's guidance extends to adolescent victims. Also, s. 718.2 (a) (ii.1) specifically directs a sentencing judge to consider whether the case involves the abuse of persons under the age of 18;
b. Next, the vulnerability aspect- the underage drinking to the point of intoxication and a sleeping victim; and,
c. Finally, the age difference between the offender and the victim, their relationship and the associated breach of trust considerations.
[90] I have also considered the fact that Mr. L provided several letters attesting to his good character and community involvement in clear and emphatic terms. I accept that the incident in question was out of character but it is also true that crimes such as the sexual abuse of children take place behind closed doors out of public view and often come as a great shock to the offender's friends and associates.
[91] Turning to the question of an appropriate term of imprisonment, Mr. L has the benefit of several considerations that tend to reduce the length of time required to give effect to the applicable principles of sentencing. In particular, I find the following considerations to be important:
a. Mr. L was assessed to be at a low risk to re-offend;
b. His alcoholism has been in full remission for a lengthy period of time;
c. Pretrial bail considerations. There are several. For various reasons, including the pandemic and the delay associated with the successful Application on the constitutional question, Mr. L has been on bail for nearly 4 years. For part of that time, he was prevented from seeing his grandchild for 15 months. His bail included a curfew which clearly was a restraint on his liberty. There were no breaches of his release conditions while on bail;
d. I have taken into account that Mr. L believes he has an Indigenous heritage. I have considered whether his ancestry or personal background played a role in his coming into conflict with the criminal justice system or how his Indigenous heritage ought to be reflected in the sentencing process. At bottom, however, on the available evidentiary record, I was not persuaded that there were Gladue factors present in this case that warranted the imposition of an alternative sanction;
e. I have also considered his age, his physical and mental condition and the obvious concerns associated with incarceration during the pandemic;
f. His statement to the court that he regrets the incident and asks for forgiveness. This sentiment is tempered by the absence of a meaningful expression of insight into the effect of his actions on the victim. I also note his comments to Dr. Booth that the victim had a reputation for promiscuity and she may have had a crush on him; and
g. I am also aware that financial considerations and the risk of jail time led him to give up his rented house and he has been living in a converted garage belonging to a friend.
Mr. L – Please stand up.
[92] For the reasons I have set out, I sentence you to an overall sentence of incarceration for 12 months. You are entitled to a reduction of the total sentence on account of your pretrial custody of 10 days for which you are entitled to a credit at the rate of 1.5 to 1. Pretrial custody is typically credited at a ratio of more than 1 to 1 because of various factors associated with pretrial custody including the unavailability of programs and treatment when in custody while awaiting trial. The net result is that your effective sentence, as of today, shall be 11 months and 15 days. I am recommending that, if possible, your sentence be served at a facility that can provide treatment for your depression and neurocognitive deficits.
[93] While I do not take issue with the suggestion by Crown counsel that sentences for similar crimes can extend to include a penitentiary term of imprisonment, the mitigating factors, the collateral considerations and the principle of restraint lead me to conclude that the interests of justice would not be served by a longer sentence.
[94] Upon release from custody you shall serve a period of probation of 12 months. In addition to the statutory conditions associated with probation:
a. You shall report to probation services within 72 hours of your release and thereafter as required by your probation officer;
b. You shall reside at a residence approved by your probation officer and shall notify your probation officer of a change of address;
c. You shall make yourself available for any assessment, treatment and counselling as recommended by your probation officer. You shall sign any necessary releases to permit the assessment, treatment and counselling service providers to provide information to your probation officer;
d. You shall not communicate directly or indirectly with the victim and you shall not be within 100 meters of any place where the victim lives, works, attends school or is known to be; and,
e. You shall abstain from the consumption of alcohol or other intoxicating substances and the consumption of drugs except in accordance with a medical prescription.
[95] In addition, the following ancillary orders shall be made:
a. Provide a sample of your DNA;
b. A SOIRA order with a 20 year duration;
c. A non-communication order with the victim while in custody; and,
d. A weapons prohibition for 10 years with an exception for hunting and guiding.
[96] A victim fine surcharge will not be imposed.
Mr. Justice M. James
DATE RELEASED: January 14, 2022
COURT FILE NO.: 17-1637
DATE: January 19, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
P.L.
REASONS FOR SENTENCE
Mr. Justice Martin James
DATE RELEASED: January 19, 2022