ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 19-548
DATE: August 31, 2022
B E T W E E N:
HER MAJESTY THE QUEEN
T. James, Counsel for the Crown
- and -
T. M.
Offender
P. Bragagnolo, Counsel for the Offender
HEARD: May 27, 2022
REASONS FOR SENTENCE
PUBLICATION RESTRICTION NOTICE
By court order made under subsection 486.4 and 539(1) of the Criminal Code, no information that might identify the person described in this judgment as the complainant shall be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
JAMES, J.
Introduction
[1] The offender in this case, T.M. was found guilty on June 29, 2021 after trial on four counts of sexual misconduct in relation to his teenage step-daughter.
[2] Specifically, he was found guilty of the following offences:
a) Count #1: committing a sexual assault against M. W. between January 1, 2005 to December 31, 2012 contrary to section 271 of the Criminal Code;
b) Count #3: sexually touching M.W. when she was under the age of 14 years, with his hand (by fondling her breasts) between January 1, 2005 and December 31, 2012 contrary to section 151 of the Criminal Code;
c) Count #4: sexually touching M.W., a young person, when he was in a position of trust or authority toward her by fondling her breasts multiple times, between January 1, 2005 and December 31, 2012 contrary to section 153(1)(a) of the Criminal Code; and
d) Count #5: sexually touching M.W., a young person, when he was in a position of trust or authority toward her by digitally penetrating her vagina, between January 1, 2005 and December 31, 2012 contrary to section 153(1)(a) of the Criminal Code.
[3] A pre-sentence report and a sexual behaviors assessment was requested.
[4] On December 23, 2021 the sentencing submissions were delayed because the PSR was not complete and the case was adjourned to January 14, 2022.
[5] On January 14, 2022 defence counsel advised that differences had arisen with T.M. such that Mr. Langevin, T.M.’s former counsel, indicated he could no longer carry on as T.M.’s lawyer. Mr. Langevin was removed as counsel of record.
[6] The case was spoken to on three occasions between January and April 2022. On April 8, 2022 Mr. Bragagnolo, T.M.’s new counsel, requested additional time to prepare and obtain transcripts.
[7] Sentencing submissions were provided on May 27, 2022 and the case was adjourned until today for disposition.
Facts
i) Circumstances of the Offence
[8] When the complainant was 8 or 9 years her mother commenced a relationship with T.M. and they subsequently began living together. The first incident occurred when the complainant was about 12 or 13 years old. She awoke to find T.M. laying on her bed fondling her breasts. She told her mother what had happened. In the family discussion that followed, T.M. said she had misinterpreted what had happened.
[9] When she was in Grade 9 the complainant recalled that there was an incident when she was in bed and T.M. got into her bed and pulled down her underwear. She awoke as he was spreading her legs. His hands were touching her vagina. He attempted to coax her to participate but she refused.
[10] He apologized, told her he loved her and asked her not to tell anyone.
[11] Later that year there was a similar incident that involved T.M. touching her when she was in bed.
[12] Subsequently there were more incidents of touching in her bedroom that progressed to include digital penetration of her vagina.
[13] She said she didn’t disclose what was happening because she didn’t think her mother would believe her. She felt scared, ashamed and embarrassed.
ii) Circumstances of the Offender
[14] T.M. is 51 years old. He has two adult children from a prior relationship. He was the step father to the complainant and her siblings from a young age.
[15] He was one of 5 children and grew up near Matheson, Ontario. He has been residing with his parents in Matheson while awaiting disposition of his case.
[16] He does not have a criminal record.
[17] He has a grade 11 education.
[18] He has worked as a logger and landscaper and operated a tree service business. When he was arrested for these offences, he was employed as a maintenance worker by a local school board.
Parameters of the Offences
[19] A conviction by indictment for sexual assault has a maximum term of imprisonment for 10 years and if the complainant is under the age of 16 years, a term of imprisonment of not more than 14 years and a minimum term of imprisonment for one year.
[20] A conviction by indictment for sexual interference (s. 151) or sexual exploitation (s. 153) has a maximum term of imprisonment of 14 years. Mandatory minimum sentences for these offences came into force on November 1, 2005 with a minimum of 45 days’ incarceration if prosecuted by indictment. In 2012 these minimum sentences were increased to one year.
Position of the Parties
[21] Crown counsel seeks a penitentiary term of between 5 and 7 years together with various ancillary orders.
[22] Defence counsel submits that a sentence of approximately 2 ½ years would be appropriate, with a reduction of about 6 months for onerous bail conditions during the pandemic, for a net sentence of about 2 years.
Victim Impact Statement
[23] The complainant in this case did not provide a VIS but her mother who was formerly married to T.M. did.
[24] In her VIS, T.S. said that she has experienced emotional distress and anxiety as a result of T.M.’s actions. Panic attacks as well. She lost time at work and special safety arrangements were agreed to by her employer. She found the writings and pictures he placed in the house distressing. She said she was devastated by what happened to her daughter.
Pre-Sentence Report
[25] The pre-sentence report says that T.M. described his childhood as challenging. He is one of five children. He had a stable homelife. He was present when one of his siblings was struck and killed by a car. His father was injured in a workplace accident and was unable to return to work. T.M. says he was bullied in school and struggled academically due to undiagnosed ADHD. He has been receiving counselling at the Minto Counselling Center in Cochrane, Ontario since May 2020. His counsellor reported he has difficulty remaining focused on a topic and needs additional support when learning and processing new information. He reported experiencing depression, emotional and mental stress due to his marital separation and legal situation.
Sexual Behaviours Assessment
[26] T.M. was assessed by Dr. Wood, a staff psychiatrist at the Integrated Forensics Program, a branch of the Royal Ottawa Mental Health Center, pursuant to s. 21 of the Mental Health Act.
[27] Dr. Wood noted the sharp dichotomy between T.M.’s initial and subsequent written commentaries about what had actually transpired with the complainant. Initially he appeared to accept responsibility for his conduct and was remorseful and apologetic. Later, he took a much different stance, portraying himself as the victim and blaming the situation on the complainant.
[28] Dr. Wood also noted that T.M. declined to participate in the phallometric testing portion of the assessment which limited Dr. Wood’s ability to make a full diagnosis and fully assess T.M.’s risk of reoffending.
[29] Dr. Wood’s psychiatric diagnosis included a persistent depressive disorder and an adjustment disorder stemming from the loss of his family, loss of purpose and impending incarceration. He also diagnosed unspecified trauma and stress-related disorders and ADHD.
[30] Dr. Wood commented that T.M. presented with a number of borderline personality traits that did not amount to a full borderline personality disorder.
[31] Dr. Wood was unable to reach any firm conclusions regarding paraphilia, particularly as it relates to pedophilia or an attraction to adolescents. Quoting Dr. Wood, he said that “at most, T.M. may have a probable unspecified paraphilic disorder” and that with respect to re-offending “there are limited factors to suggest that T.M. has the propensity to commit similar actions in the future.” Dr. Wood acknowledged that T.M. accepted only limited responsibility, entrenching himself in the victim role, and painting the victim as the perpetrator.
[32] Considering Dr. Wood’s report as a whole, I tend to agree that the risk of re-offending is low, especially if T.M. addresses his underlying mental health issues and participates in the recommended programming.
Case Law
[33] Both Crown and defence counsel provided copies of cases they say supports their positions on sentencing.
[34] The defence referred me to R. V. R.T., 2017 ONSC 3800. In R.T. the offender was convicted of two counts of sexual assault in relation to his daughter. The first count involved the offender rubbing his crotch against the victim’s buttocks while both were fully clothed on several occasions. The second count involved the offender putting his hand under her pajamas and touching her vagina with a cupping motion. He was sentenced to imprisonment for 27 months less time served.
[35] In R. v. K.M. 2017 ONSC 4769 the offender was convicted of sexual assault in relation to his two daughters over a lengthy period of time when they were under 16 years of age. The offences had a deep and lasting impact on their lives. The assaults consisted of numerous instances of touching their chest and vaginal areas, usually over clothing. He was sentenced to the penitentiary for three years.
[36] In R. v. E.H., 2019 ONCJ 987 the offender was found guilty of sexually assaulting his girlfriend’s two daughters over a three year period. One victim was assaulted on about four occasions when she was between the ages of 6 and 8. The assaults involved touching her vaginal area over and under her clothing when she was in bed. The other victim was also assaulted in her bedroom when she was between the ages of thirteen and fifteen. The offender routinely entered her room and fondled her breasts under and over clothing and rubbed her back with his penis. He was sentenced to two years less a day concurrently.
[37] Crown counsel has referred to the decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9. This case set a new benchmark for the sentencing of persons who commit sexual offences against children. Sentences imposed prior to the release of Friesen must be treated cautiously. The Supreme Court of Canada emphatically directed Courts to impose more significant sentences for sexual crimes against children and said that “mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should neither be unusual nor reserved for rare or exceptional circumstances”. Substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim.
[38] The Court noted that sentences must reflect the evolution in our understanding and condemnation of sexual violence against children and provided the following guidelines:
i) Upward departure from prior precedents and sentencing ranges should occur for sexual offences against children. Parliament has increased the maximum sentences
for these offences. Society’s understanding of the gravity and harmfulness of these
offences has deepened.
ii) Sexual offences against children should generally be punished more severely than sexual offences against adults. Courts are directed to revise and rationalize sentencing ranges and starting points where they have treated sexual violence against children and adults similarly.
iii) It is an error of law to treat the offence of sexual interference with a child as less serious than that of sexual assault of a child.
Aggravating and Mitigating Factors
[39] An aggravating factor is one which tends to increase an otherwise appropriate sentence. The following aggravating factors are present in this case:
a. The victim was a young person;
b. She was a family member;
c. T.M. was in a position of trust and authority; and
d. There were multiple incidents.
[40] A mitigating factor is one which tends to reduce an otherwise appropriate sentence. The following mitigating factors are present:
e. He has been obtaining treatment for his underlying mental health issues; and
f. He has a supportive family.
[41] Another factor raised by the defence can be conveniently dealt with here and that is some mitigation of sentence due to onerous pre-trial release terms. Mr. Bragagnolo pointed particularly to the period following the release order made in March, 2021 when T.M. was required to live with his mother in his parents’ home in Matheson, Ontario and to remain in the residence except when in the presence of his surety.
[42] In R. v. Downes 2006 CanLII 3957 (ON CA), [2006] 205 CCC (3d) 488 (Ont. C.A.) the court recognized that in appropriate cases, offenders ought to be granted credit for stringent pre-trial conditions, particularly when house arrest is involved.
[43] In Downes, the offender spent 18 months awaiting trial under a curfew and a condition that he remain in his surety’s home unless in the company of his surety.
[44] The court emphasized the importance of evidence from the offender about the effect of conditions. In this case there is a paucity of evidence how the stringent conditions affected T.M. and what effects it had on his liberty.
[45] I would note that the house arrest component of his bail did not jeopardize T.M.’s employment because he has been on Ontario Works for most of the time following his arrest and there is no evidence that he sought to vary his condition for employment purposes.
[46] I would note as well that this condition was imposed after T.M. was re-arrested for harassment and failure to comply with his release order.
[47] Another consideration is that T.M. was found guilty more than a year ago and was no longer entitled to the presumption of innocence. Many of the post-conviction delays were attributable to T.M.
[48] On the other side of the ledger, the residence condition that required him to live in northern Ontario likely made it much more difficult for T.M. to spend time with his adult children from his first marriage.
[49] In all the circumstances I conclude that some credit ought to be given on the basis of the Downes case but I do not regard the situation as warranting as substantial a reduction as that requested by the defence.
Letters of Reference and Support
[50] Several letters of support for T.M. were filed as Exhibit 4 at the sentencing hearing.
[51] It is fortunate for T.M. to have supportive friends and relatives and he will benefit from their ongoing support in the future.
[52] It is a common feature of offenders who have been found guilty of crimes of a sexual nature that they do not have a criminal record or a history of antisocial behaviour.
[53] These crimes take place in secret, away from public view. Friends and family often comment that the accusations seem out of character with the person they know.
[54] I have read all the letters and considered their contents.
Principles of Sentencing
[55] I agree with and adopt the summary of applicable principles provided by Justice Schreck in R. v. Holland, 2020 ONSC 846 where he stated at para 15:
Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal recently stated in R. v. Morris, 2021 ONCA 680, at para. 58, “[t]he individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.” While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[56] More specifically, when children are the victims of crimes of a sexual nature, the primary sentencing principles are denunciation and deterrence. Section 718.04 contains a provision directed at offences committed against vulnerable persons as follows: “When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances – including because the person is Aboriginal and female – the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.”
[57] Deterrence has two aspects: specific deterrence which is directed at preventing a particular offender from re-offending and general deterrence, which is intended to demonstrate generally that anyone found guilty of a sexual offence against a child should anticipate that the consequences will be severe. While I assess the risk of this particular offender re-offending as relatively low, the importance of the role of general deterrence in the sentencing process should not be overlooked.
[58] Also, a sentence that involves a period of incarceration should not be any longer than is necessary to accomplish the objectives of sentencing.
Reasons
[59] The offences in this case were directed at a child who had the right to expect that she would be protected by her family, not abused by her stepfather in her own home. There is a significant breach of trust element here that needs to be recognized in the sentence to be imposed.
[60] The Friesen case makes it clear that the appropriate sentence in this situation should be in the mid single digits range, which I take to mean a sentence of somewhere between 4 to 6 years. When compared to the sentencing cases referred to by the defence, it is clear that the Supreme Court of Canada has instructed trial judges that sentences ought to be increased to fully recognize the pernicious consequences of sex crimes committed against children.
Disposition
T.M., will you please stand up.
[61] I sentence you to a global sentence of four years’ imprisonment. This sentence will be reduced by two factors; a credit for pretrial custody and a credit for onerous bail conditions. The credit for pretrial custody will be based on your incarceration while awaiting bail from April 26, 2019 to April 29, 2019 and from March 10, 2021 to March 11, 2021, a total of 4 days for which you will receive credit at the rate of 1.5 to 1 which translates into a credit of 6 days.
[62] The second factor is a credit for onerous bail, particularly for the period from March, 2021 to the present, for which I am allowing a credit of one month and 24 days so the overall credit taking both factors into account will be two months. This means that the sentence being imposed today shall be for a period of 3 years and 10 months. The sentence shall be broken down among the counts as follows: 3 years and 10 months on count 1 and a similar sentence on counts 3, 4, and 5, to be served concurrently.
[63] Ancillary Orders as follows:
a. An order to provide a DNA sample.
b. Order to comply with the Sex Offender Information Registry Act (SOIRA) for a period of life.
c. Firearm prohibition order pursuant to s. 109 for 10 years.
d. Order prohibiting T.M. from communicating with M.W. or T.S. while he is in custody (s. 743.21)
e. A lifetime prohibition order under Section 161(1)(b) prohibiting the offender from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.
Mr. Justice Martin James
DATE RELEASED: August 31, 2022
COURT FILE NO.: 19-548
DATE: August 31, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
T. M.
REASONS FOR SENTENCE
Mr. Justice Martin James
DATE RELEASED: August 31, 2022