ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Doherty, for the Crown
- and -
JOSEPH O’NEILL
P. Boushy, for Mr. O’Neill
HEARD: August 19, 2022
REASONS FOR SENTENCE
1On March 3, 2022, after a trial with a jury, the accused, Joseph O’Neill, (“O’Neill”) was found guilty of both charges in the indictment, namely, one count of sexual interference and one count of sexual assault, contrary to their respective provisions in the Criminal Code, R.S.C. 1985, c. C-46. All of these events occurred on or about November 12, 2011 in the City of Hamilton.
2The sentence hearing was adjourned for a variety of reasons. Submissions were heard on August 12, 2021.
3The Crown seeks a jail sentence of 3 years plus various ancillary orders.
4The defence seeks a conditional sentence of two years less a day with strict terms including house arrest for the entire period. There is essentially no issue with respect to the ancillary orders requested by the Crown.
5Given the recent appellate jurisprudence in respect of s. 151 of the Criminal Code, a conditional sentence remains statutorily available, as the mandatory minimums have been deemed unconstitutional by the Court of Appeal for Ontario.
Circumstances of the offence:
6Briefly, the jury found the accused did, in fact, digitally penetrate a young person, H.B, when she was approximately 12 years old. The acts complained of include two incidents of digital penetration during a single incident in H.B’s bedroom while O’Neill was intoxicated and H.B.’s father, S.B., lay sleeping nearby.
7O’Neil was the H.B. family friend. On the offence date, he employed her as a babysitter.
Positions of the Parties:
8The Crown submits that an accused’s moral blameworthiness is amplified when he abuses his position of authority over a victim. In this case, the accused was in a position of authority given his status as friend within the H.B. family and employer in the context of babysitting.
9Evidence that the offence had a significant impact on the victim is an aggravating circumstance. From the testimony of both H.B., it is clear she suffered significantly because of this incident. The offender has neither insight nor remorse for his acts. The Crown submits that recent appellate jurisprudence involving a sexual act against a vulnerable child or young person dictates that a penitentiary sentence ought to be imposed.
10While not condoning the acts, Mr. Boushy, for the offender, argues that the acts themselves did not involve intercourse or oral gratification, however, they were repeated twice on a young vulnerable child in her own home on a single occasion.
11The defence submits that while conditional sentences are rarely imposed for this type of offence involving young persons, the circumstances of this case and of the offence warrants due consideration. This includes O’Neil’s mental and physical health issues, immigration consequences, family support, insight into his actions and prospects for rehabilitation.
Victim Impact statements (“VIS”)
12I have received VIS’ from H.B., her mother and her father in which they describe the effect of this incident throughout their lives.
13Briefly, S.B, the father, writes that “the impact of Joe O’Neill’s actions has changed my daughter’s life and my entire family’s lives forever. To this day, H.B. still has nightmares and trouble sleeping. H.B finds it hard to trust men which does greatly affect her ability to interact, work and socialize on a daily basis. As a father, it is my job to keep my children safe. Because of Joe O’Neill’s actions, I failed at that job. So to talk about how it has impacted me is very straightforward. He committed these acts while I was under the same roof as my daughter. The audacity of this is extremely troublesome to me. It brings me much anger and that anger now shows in my everyday life.”
14L.B., the mother writes: “For me to write a VIS discussing how this traumatic event has affected my life, seems of secondary importance, since the most deeply affected person by this disgusting crime is our daughter. As her mother, I can see the negative changes in my daughter and it has been heartbreaking to watch. Sadly, I believe my daughter has now mirrored my inability to discuss and deal with this matter. She now suffers from PTSD and is unable to discuss this tragic event either. This horrible crime has shocked and changed both of our families forever. The betrayal he has done to both families is unspeakable and left us to deal with many unpleasant conflicts and divided us at times. In closing, I feel it is important to consider how the defendant went about this crime and how he kept us fooled for many years. He enjoyed the company of us and H.B which absolutely makes me sick to my stomach now.”
15In her VIS, H.B. expresses that “Writing this piece had to have been one of the most difficult aspects of facing my trauma. When something cuts you so deeply, it becomes nearly impossible to put words to how exactly it has trickled into every aspect of your life. When I think of the childhood effects this had on me, the feeling that comes to mind is confusion. Trying to understand and process what had been done to me was a lot for my young mind to comprehend. Joe was someone that everyone in my family cared for and enjoyed. The more I matured through my teenage years, the more I was able to reflect on the occurrence. It’s this part that I really struggle to find the words for how I felt during those teenage years. Words cannot even begin to explain how hard it was to see Joe at nearly every single family event. I’ve seen multiple therapists but whenever my trial is mentioned or discussed, this haze goes over my body where I feel I am no longer in control of myself. I become faint and dizzy. I have since been diagnosed with severe PTSD. It is hard to explain the guilt I feel for my family. I understand that this is not my fault, it happened to me, and my family loves being there to support me, but I see a change in my family. I see heartbreak in my parents’ eyes every day. Throughout this whole process, everyone keeps telling me, you are so strong. I came forward with my truth for the sole reason to save other little girls from suffering the life I have to face every day. No little girl should have to suffer through what I have had to throughout my life.”
16The effects on H.B. are not only understandable but considerable, even as she has reached mature adulthood.
Circumstances of the offender:
17Various character references, medical documentation and an extensive Pre Sentence report was completed.
Pre-Sentence Report (PSR):
18The probation office writes, inter alia: Joseph O’Neill was born in Belfast, Ireland in 1972 and he immigrated to Canada with his family in 1976 due to political unrest in Northern Ireland at the time. The offender described a difficult period for his family in 1984 when his sister was killed in a car accident when she was only 19 years old.
19O’Neill described his family as very close. His sister, Siobhan Renouf reiterated when their sister died, it was “devastating” for her brother. She described O’Neill’s struggles with addiction to alcohol and gambling as well as concerns around his mental health.
20The offender indicated the Hamilton Catholic Children’s Aid Society became involved briefly with the family due to the current charges in 2018. He stated the file was closed approximately one month later. O’Neill reported following the separation with his wife in 2019, the children elected to stay with their mother in Waterdown, Ontario.
21The subject described his immediate and extended family were shocked when he was charged with the current offences. He described his worry when his son began experimenting with drugs and then tried to commit suicide two years ago. O’Neill’s mother and sister both expressed no concerns with Joe’s ability to be a good father.
22Since the breakup of his marriage, the subject has been residing and caring for his elderly parents. He described his parents are both in their eighties and he helps them around the house. He reported he has been in a relationship with his current girlfriend for the past two years. They do not reside together. The offender indicated his wife is aware of the charges and was still processing his finding of guilt. When they first got together, O’Neill was drinking.
23The subject reported he helped open several locations of a popular franchised restaurant over a couple of years and then in 2000 he co-owned his own restaurant until 2005. He reported that he was employed as a transportation supervisor and was responsible for over forty drivers. He described an incident, where one of his drivers was hit by a train and killed while on duty. He indicated he attended the scene of the accident which was very traumatic for him. O’Neill reported as a result of the stress he took a leave of absence from his job and has been on long term disability for the past two years. The subject reported he plans to return to work in early May 2022.
24The offender reported he began drinking at age 13. He stated even as a teenager he was drinking daily. He described then he was drinking to deal with the death of his sister; and he continued to self-medicate with alcohol throughout the years. He provided a copy of his certificate of completion of the live-in integrated addiction and trauma treatment program for men at Hope Place Men’s Treatment Centre in February 2021. He expressed a very positive experience at the rehabilitation facility, and learned tools to assist in preventing relapse. O’Neill reported he remains in touch with people that he met in treatment who continue to offer support. O’Neill reported he has been connected to ADAPT for community substance abuse counselling since 2020.
25The subject reported he has been free from substances since July 2020 and is committed to continuing his sobriety. After the ADAPT program, in July 2020 he was referred to the Community Withdrawal Program as he needed additional support in his goal to reduce his drinking. It was confirmed that upon completion of treatment, he reconnected with ADAPT for next steps and aftercare. O’Neill was actively participating in individual counselling sessions with her every 1-2 weeks as well as several groups such as Coping Skills, Sober Living and the Phase three group to assist in maintaining sobriety. In October 2021, the offender transferred to the Problem Gambling program.
26The probation officer spoke with the addictions counsellor for the Problem Gambling and Behavioural Addictions programs at ADAPT. O’Neill remained involved with the services and was engaged and actively participating in one on one bi-weekly counselling. He was described as very dedicated and conscientious, following through with all treatment goals.
27The subject reported to the probation officer that he plead not guilty to the offences currently before the courts. He denies any wrongdoing in this matter. As far as he was concerned “nothing happened” and he felt that he was “in the wrong place at the wrong time.” O’Neill indicated his wife and children were shocked when he was charged and arrested in 2018. He maintains that, although he and his wife separated in 2019, the current charges were not a factor in the demise of their marriage. His wife indicated no concerns with Joe being around the children and adult daughter, namely; a son who is 18 and a daughter who is 15 years old. She described him as kind and compassionate.
28The PSR concludes: The offender has been convicted of Sexual Assault and Sexual Interference, despite pleading not guilty to the charges. The subject does not take any responsibility for his actions and denies wrongdoing. Despite the positive changes O’Neill has made over the past couple of years including his ongoing dedication to address his addiction to alcohol and gambling as well as ongoing treatment and medication for mental health issues, the lack of accountability and acknowledgement of harm to the victim from the offender is concerning. In order to minimize risk of reoffending, the probation officer would recommend a full assessment, including phallometric testing to determine any diagnosis and suggested sexual behaviour therapy or treatment that may be appropriate going forward.
29A legal opinion was provided to the court from Mr. Abrams. He writes that there are possible immigration consequences of Mr. O’Neill’s outstanding criminal charges. A conviction for any offence that carries a maximum sentence of 10 years or more renders Mr. O’Neill inadmissible to Canada. Accordingly, convictions for these offences put him at risk of deportation from Canada, despite living here for most of his life. If deported, Mr. O’Neill would be unable to return to Canada even as a visitor, without a Record Suspension due to the nature of his convictions. Accordingly, if he is removed, in my opinion it would be very difficult for him to ever return.
30There may be an appeal to the IAD. The IAD can stay the removal order for up to 5 years on conditions, which usually involve staying out of any further trouble, and completing counselling as required. In my experience, the IAD is much more likely to provide relief in a case like Mr. O’Neill’s, because of this ability to provide for long-term supervision. However, the IAD’s jurisdiction to hear appeals depends on the sentence received – a sentence of imprisonment of 6 months or more removes access to the IAD. The Supreme Court of Canada clarified that “imprisonment” under s. 64(2) did not include Conditional Sentences. Accordingly, a CSO, even of the maximum length, would preserve his IAD appeal rights.
31In summary, Mr. Abrams opines that if Mr. O’Neill is deported from Canada, to Ireland, he is unlikely to ever be able to return, at least not for many years, and not without much difficulty. This is obviously a significant consequence for someone who grew up here since age 4. Success at the IAD is never guaranteed of course, but in my estimation, his best chance of avoiding removal lies with the IAD.
32Various character reference letters in support of the offender were provided to the court. Ciaran O’Neill writes: It has been hard to watch Joe struggle with his addictions, and even harder to see them take everything from him. I’m so proud of him for getting sober, and being clean for two years. Joe’s addictions with alcohol and gambling prior to this tragedy was becoming a growing concern for the family. Throughout my life my father has tried his best to support and care for his two children and his wife. My dad worked days and my mom nights, so I got to spend a lot of time with him watching movies, tv and sports.
33Siobhan Renouf writes that Joe has made some many positive steps to improve his life. He is a compassionate, gentle man. It has been hard to watch Joe struggle with his addictions. I’m so proud of him for getting sober and being clean for two years.
34Fiona O’Neill writes that Joe’s addiction with alcohol and gambling prior to this tragedy was becoming a growing concern for the family. While far from an ideal situation, in the past two years, I am happy to see my brother is on a road to recovery from addiction.
35A letter from Dr. Peter James Faux MD, Psychiatrist, was filed: I saw Mr. Joseph O’Neill in consultation on March 7, 2018 in the North Peel Family Practice Clinic in Brampton where I am the psychiatric consultant. He had been depressed since August of 2017. While I diagnosed a major depression with anxiety, (later diagnoses also included adjustment disorder with depression and generalized anxiety disorder), I also diagnosed posttraumatic stress disorder. He had a history of alcohol use disorder in his young adult years and reported he had been a controlled drinker for 26 years after attending Homewood’s rehabilitation program. He is still symptomatic for depression with suicidal ideation and symptoms of PTSD but then there have been numerous court delays and until the court case is behind him, I do not see him having the opportunity for either a remission and/or recovery. Nevertheless, I am impressed with his return of resiliency his taking charge of his health, both physically and mentally.
36A Letter from O’Neill’s Family Physician, indicates: I am treating Joseph O’Neill and have been so doing since 2017 for Depression and ongoing generalized anxiety. I continue to see him monthly. He continues to have ongoing symptoms of anxiety, which have worsened over the past two weeks. He continues to exhibit symptoms of ongoing depression and anxiety. He is stable clinically with ongoing medication and supportive counselling.
Case law:
37I have been provided with cases from both counsel on the issue of the appropriate sentence to be imposed. Although the law is clear that each case turns on its own specific facts, a careful review of these cases, to the extent I can find similarities to the case before me, does assist me in determining what an appropriate range is for the sentence to be imposed. As some of the cases relied upon by counsel are distinguishable on the facts or the circumstances of the particular offender, my intention is to only set out those cases that are somewhat similar to the issues in the case at bar.
38In R. v. Pham 2013 SCC 15, [2013] 1 S.C.R. 739, 2013 S.C.J. No. 15, at paras. 14-16, the Supreme Court stated:
The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.
These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where a deportation is a risk.
39For sexual offences involving children as victims, in the recent, leading case of R. v. Friesen [2019] S.C.J. No. 100, 2020 SCC 9, the Supreme Court of Canada stated at para. 42:
Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected…
40In Friesen, at paras. 44, 45 46, and 50, the court goes on to state:
Given the facts of this case, the guidance we provided is focused on sentencing principles for the offence of sexual interference and closely related offences such as invitation to sexual touching (Criminal Code, s. 152), sexual exploitation (Criminal Code, s. 153(1)), incest (Criminal Code, s. 155) and sexual assault (Criminal Code, s. 271). Courts should thus draw upon the principles that we set out in this case when imposing sentences for such other sexual offences against children.
We wish to make clear at the outset of our discussion of these sentencing principles that we recognize that criminal justice responses alone cannot solve the problem of sexual violence against children. Nonetheless, the criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament’s sentencing initiatives their full effect.
Because protecting children is so important, we are very concerned by the prevalence of sexual violence against children. This “pervasive tragedy that has damaged the lives of tens of thousands of Canadian children and youths” continues to harm thousands more children and youth each year.
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. Getting the wrongfulness and harmfulness right is important. As Pepall J.A. recognized in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, failure to recognize or appreciate the interests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity of the offence. Similarly, it can result in stereotypical reasoning filtering into the sentencing process and the consequent misidentification and misapplication of aggravating and mitigating factors. Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process.
41The Supreme Court continues at paras. 75 - 78, and 87 - 88 of Friesen:
In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle…
Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 35). Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.
As this Court recognized in L.M., violence is always inherent in the act of applying force of a sexual nature to a child (para. 26). Far from removing the violence, the sexual dimension instead aggravates the wrongfulness of the violence by adding interference with the child’s sexual integrity to the interference with the child’s bodily integrity. Physical contact of a sexual nature with a child always means that the offender has interfered with both the child’s “security of the person from any non-consensual contact or threats of force” and the child’s bodily integrity, which “lies at the core of human dignity and autonomy” (R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 28; Such physical sexual contact is also a form of psychological violence precisely because bodily and psychological integrity are closely linked (see Ewanchuk, at para. 28. The degree of physical interference and the intensity of physical and psychological violence vary depending on the facts of individual cases. However, any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury...
The wrongfulness of the exploitation of children is also always relevant to the normative character of the offender’s conduct and thus the gravity of the offence. It is inherently exploitative for an adult to apply physical force of a sexual nature to a child. This exploitation is rooted in the power imbalance between children and adults, the potential harm that sexual interference by adults poses to children, and the wrongfulness of treating children not as persons with equal dignity but instead as sexual objects to be used by adults. Courts must always give effect to the wrongfulness of this exploitation in sentencing, even if the degree of exploitation may vary from case to case.
Courts must also take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining the offender’s degree of responsibility. They must not discount offenders’ degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children.
Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to (Arcand, at para. 58; see also M. (C.A.), at para. 80; Morrisey, at para. 48). For sexual offences against children, we agree with Iacobucci J. that, save for possibly certain rare cases, offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child.
42In the case of R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 151, the accused had no prior criminal record and was a supportive ex-spouse. He was in a new relationship and attended counseling for substance abuse. He had been on bail for three years without incident. T.J’s sentence of nine months jail and two years’ probation was successfully appealed and was varied to 24 months jail.
43The Court of Appeal referred to Spivak J.A.’s comments for the Manitoba Court of Appeal in R. v. S.A.D.F., 2021 MBCA 22, [2021] M.J. No. 73, at para. 34, stating:
The sentencing judge stated that the offending behaviour was serious, and referred generally to the harmful consequences of this type of abuse, and the need to send a message to protect children. However, as indicated in Friesen, it is not sufficient to simply state that sexual offences against children are serious; sentences imposed must reflect the normative character of the offender’s actions and the consequential harm (see para 76). …
In my view, the sentencing judge’s focus on the personal circumstances of the accused, rather than the circumstances of the offences, led her to unreasonable underestimate the gravity of the offences and the paramount principles of denunciation and deterrence (see Friesen at para 50).
44In R. v. S.B., 2022 ONSC 821, [2022] O.J. No. 625, the court determined that there were at least three incidents of sexual abuse against a child. Citing both T.J. and Friesen, Hozik J. sentenced the accused to three years imprisonment.1 The trial judge found the accused guilty of sexually interfering with and sexually assaulting his common-law partner’s granddaughter. K.R. alleged that he touched her vagina and bum, under her underwear, with his hand or fingers on at least three occasions. Each occasion occurred in the basement family room of the home the accused shared with K.R.’s grandmother. On the last occasion, K.R. was in the basement alone. When the accused came downstairs he touched her. K.R. estimated that she would have been around five years old when the sexual touching started, and 13 years old at the time of the last incident.
45The judge stated at para. 37 that: “it is now recognized that two kinds of harm flow from sexual offences perpetrated on children: harm that manifests during childhood, and long-term harm that becomes apparent during adulthood... In sentencing an offender, actual harm must be considered as well as the reasonable foreseeability of potential harm.”
46In R. v. M. M., 2022 ONCA 441, O.J. No. 2527, the complainant was the foster daughter of the appellant’s aunt. She met the appellant when she was 12 years old. The appellant and the complainant texted each other over a three-year period. The text messages became sexually charged. During the course of their texting, the complainant sent the appellant photos of her breasts and a video of her masturbating. The appellant sent the complainant photos of his penis. There was a question regarding a breach of trust.
47Whether a relationship of trust exists is a mixed question of fact and law. The court applied some of the considerations relevant to determining whether a relationship of trust exists. For example, the appellant was significantly older than the complainant, he acknowledged that he was a role model for her; and he knew that the complainant looked up to him for emotional support since she was a child. The appellant knew that the complainant wanted him to be her godfather and he was prepared to do so.
48At para. 15, the Court of Appeal stated: “The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.”
49The Court of Appeal also opined that conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. The court declined to enumerate exceptional circumstances and made no attempt to do so.
50In the end, the Court of Appeal held that the sentencing judge failed to give effect to several aggravating factors, and in particular to the appellant’s breach of trust. As the Supreme Court explained in Friesen, a breach of trust is likely to increase the harm to the victim and the gravity of the offence: at paras. 125-26. It is a significant aggravating factor, but the sentencing judge mentioned it only in passing. At the same time, some of the sentencing judge’s remarks suggest that he minimized the nature of the appellant’s offending. The court found that there were no exceptional circumstances present in this case and a sentence of imprisonment should have been imposed. The court found that there were no exceptional circumstances present in the case and a sentence of imprisonment should have been imposed.
51In the case of R. v. Aird 2013 ONCA 447, [2013] O.J. No. 3027; the Court of Appeal stated at para. 28: “The considerations that bear on whether a relationship comes within s. 153 flow from the obvious purpose of this section: to protect a young person who is vulnerable to an adult because of the imbalance in their relationship. With this purpose in mind, the courts have identified several considerations relevant to an assessment of whether a relationship of trust exists. They include:
The age difference between the accused and the young person;
The evolution of their relationship;
The status of the accused in relation to the young person;
The degree of control, influence or persuasiveness exercised by the accused over the young person; and
The expectations of the parties affected, including the accused, the young person and the young person’s parents. 2
52There is also reference in the decision that trial judges ought not to discount sexual interference in comparison to sexual assault.
53As mentioned by the defence, in the case of R. v. R.A., 2022 ONSC 1161, [2022] O.J. No. 897; 2022 ONSC 1161 at para. 12, Goldstein J. referred to the Ontario Court of Appeal striking down the mandatory minimum of 12 months imprisonment in R. v. B.J.T., 2019 ONCA 694. The Ontario Court of Appeal has also struck down the prohibition on conditional sentences for offences where the maximum penalty is 14 years: R. v. Sharma, 2020 ONCA 478.
54Turning to the few cases provided by the defence where a conditional sentence was imposed for sexual interference or sexual assault against a child, post-Friesen:
55In R. v. P.S., 2021 ONSC 5091, [2021] O.J. No. 4023, P.S. was found guilty, after a trial, of the sexual exploitation of G.D., specifically having performed oral sex on G.D. on at least three occasions. P.S. was in a position of trust toward G.D. In 2010, P.S. was diagnosed with Parkinson’s disease. He was on a multitude of medications that required regular adjustment to address his progressive deterioration. Dr. Kleiner, a movement disorder specialist, advised that P.S.’ symptoms had become more problematic since October 2020, and he required specialty care to address this complex disorder. Medications must be very exact and timely.
56Given that a conditional sentence was legally available to P.S., the trial judge had to consider whether such a sentence was appropriate in the circumstances, especially given the comments in Friesen. The judge asserted that a conditional sentence is not a reward. It is a period of incarceration to be served in the community under strict conditions.
57The judge went on to be mindful of the guidance from the Court of Appeal in R. v. F. (G.C.) (2004), 2004 4771 (ON CA), 188 C.C.C. (3d) 68 (Ont. C.A.). In that case, the court held that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, especially where the sexual violation was of a vulnerable complainant by a person in a position of trust. A conditional sentence was imposed in P.S. I will return to this case later in these reasons.
58In R. v. K.K. 2020 ONSC 7198, [2020] O.J. No. 5146, K.K. had been convicted of sexual interference and invitation to sexual touching. The complainant testified that K.K. would come up from behind her and grope both of the victim’s breasts with both of his hands. He would do it for about 30 seconds. This type of touching occurred numerous times over the course of two years when she would visit his house to see his family. On one occasion, K.K. thrusted his pelvis onto the complainant’s body for approximately one minute while she was in bed. K.K. also once put the victim’s hand on his penis for about 15 seconds over his clothes.
59The offender was 60 years old and approximately 45 years older than the victim. The victim was clearly very young and vulnerable. The touching began when the young person was in grade 6 and only finished in grade 9. K.K. did not have a criminal record. His pre-sentence report identified pro-social activities and work throughout his life. The letters received from his family, employers, and friends demonstrated the offender is capable of doing good things and being a contributing member to society.
60In K.K., the judge stated that the accused had been on bail for over 3 years without incident. K.K. suffered from diabetes mellitus, which has been poorly controlled due to his failing to comply with his medications and his diet. He suffered from chronic renal disease associated with his diabetes and chronic vascular disease. He also suffered weakness in his legs causing him to fall down. This is believed to be associated with neurological problems. As a child, K.K. was himself the victim of a brutal regime in Cambodia and was taken from his home, having to escape years later to Thailand as a refugee.
61The trial judge concluded that a conditional sentence, in normal circumstances, would not sufficiently address the need for general deterrence and denunciation when dealing with offences of this sort. The need for deterrence and denunciation almost always mandates that a jail sentence be imposed. This was evident from the recent jurisprudence. However, the judge concluded that there were exceptional circumstances with the ongoing pandemic and also had some concerns with incarcerating K.K. given his age and his underlying health conditions.
62In R. v. Gunaratnam, 2021 ONSC 8270, [2021] O.J. No. 7194, following a judge alone trial, the offender was convicted of two counts of touching his niece for a sexual purpose in the late 1980’s and early 1990s, when she was between seven and 12 or 13 years old. After his conviction, the offender pleaded guilty to a charge of sexual interference, an offence he committed in 2006 or 2007 in B.C. in relation to a family friend, when she was only 13 years old. Gunaratnam was 60 years old and had no criminal record. While he denied guilt in relation to his niece during his trial, the judge accepted that he admitted his crimes and claimed to be remorseful for them.
63Importantly, the trial judge noted that both counsel for the Crown and the defence were jointly submitting that the appropriate disposition was a conditional sentence of two years less a day followed by probation for three years. The judge affirmed that a joint submission must always be given serious consideration, however, the court is not obliged to accept it.
64Overall, it seems to me that the authorities provide for sentences in the very high reformatory range to the mid-range of single digit penitentiary term for these types of offences. Of course, the individual circumstances of the offender must be taken into account. In considering these cases and the jurisprudence generally, I appreciate that the range of sentence varies considerably. I can only conclude that the range of penalty is very broad and the particular circumstances of this case must be carefully considered.
Analysis:
65The court is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code.
66Section 718.01 states, “When a court imposes a sentence for an offence that involved 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.”
67Section 718.2(a)(iii) sets out the applicable aggravating circumstances, including: “evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.”
68It is true that an accused’s moral blameworthiness may be amplified when he abuses his position of authority over a victim. The Crown alleges the accused was in a position of authority even given his status as friend within the family and employer in the context of babysitting. One does not need to imagine how these acts have impacted the victim. However, I would not go as far to classify these offences as a breach of trust situation. A friend of the family and the babysitting situation background in this case with nothing more does not give rise to a breach of trust. The Crown has not established a breach of trust beyond a reasonable doubt. Nonetheless, the conduct cannot be condoned as it was perpetrated on a young vulnerable child. O’Neill took advantage of the situation, right in H.B.’s own home.
69As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing sanctions that reflect enumerated objectives. Those objectives include denunciation of the unlawful conduct, deterrence and rehabilitation. It is also important to impose a sentence that promotes a sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community.
70The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and the mitigating factors.
71Section 718.2 addresses the principles of totality, parity and the principle of restraint among other factors. Section 718.2 also addresses specific aggravating and mitigating factors that shall be taken into consideration based on certain enumerated principles.
72In this case, the provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence”. As there is no breach of trust, these other objectives may be given significant weight, but not priority or equivalency: See: Friesen, at paras. 101-104.
73It is important to note that Friesen does not simply contain a list of principles and factors to be mentioned in a sentencing decision; it insists that those factors be reflected in a sentence that is of sufficient length to recognize them. I repeat Friesen’s guidance at para. 114: “…substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim”.
74Evidence that the offence had a significant impact on the victim is an aggravating circumstance. From the testimony and VIS of both H.B. and S.B., it is clear both suffered profoundly because of this incident.
75O’Neill cannot be penalized for insisting on his right to a trial, as he is fully entitled to his day in court. It is not an aggravating factor. However, he does not get the benefit of the mitigation of a guilty plea.
76The mitigating factors: O’Neill has the backing or support of some family members and friends and has favourable character references. I note his background. He has not been in any trouble while on bail. He has some medical conditions and addictions that have been present throughout his entire life, as presented to the court.
77There is some evidence that O’Neill has been dealing with underlying issues regarding his alcohol abuse and mental health issues. I have no evidence about his overall prospects for rehabilitation.
78As mentioned earlier, the moral blameworthiness in cases of this nature is high. As mentioned, the sexual acts on young vulnerable persons and other activity arising in this case are wholly unacceptable. Both parties concede that the nature of this offence demands denunciation and deterrence.
79In his usual able manner, Mr. Boushy rightly points out, while a conditional sentence is available, it is a huge hurdle to overcome in order to be granted such a disposition in the post-Friesen era.
80As I read the authorities, the length of sentence being proposed by the defence, is within the range of appropriate sentences in this case. The more difficult question is whether it is appropriate for O’Neill to be permitted to serve his jail sentence in the community.
81Section 742.1(a) of the Criminal Code sets out two prerequisites for such a sentence. The first is that service of the sentence must not endanger the safety of the community. I am satisfied that the community safety would not be endangered in this case. The offences took place long ago and there is no suggestion of any further criminal conduct since then, even while on bail.
82The second prerequisite in s. 742.1(a) is that a conditional sentence must be “consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.”
83As discussed, counsel concedes and I am aware of only three post-Friesen cases where conditional sentences were imposed for sexual interference convictions: Again, in R. v. P.S., and R. v .K.K., both cases raised specific concerns about the offender’s health. Incarceration appeared to have played a central or dominant role in the decision to impose a conditional sentence: P.S., at para. 81; K.K., at para. 31. In Gunaratnam, the case is wholly distinguishable as it involved a joint submission from both Crown and defence.
84Specifically, I turn to the factors raised in R. v. P.S, at paras. 75 – 79, to justify a conditional sentence as a part of the analysis: In mitigation:
a. P.S. had no criminal record; I can conclude similarly in that such is the case with O’Neill, as the one unrelated conviction is dated.
b. P.S. was 71 years of age; O’Neill is 50.
c. While P.S. did not plead guilty, but rather had a trial, the court accepted P.S.’s testimony as to what occurred. While ignorance of the law is no excuse, the judge concluded that it was obvious that P.S. truly did not appreciate that he was committing a crime at the time these events occurred. The judge concluded that P.S. now clearly understood the wrongfulness of his behaviour and the impact it has had on G.D. Such is not the case here.
d. P.S. had a number of serious health issues that are going to be a challenge to care for in an institutional setting. Significantly, P.S. had Parkinson’s disease which requires constant monitoring and his condition was deteriorating. While O’Neill has some mental health and addiction issues, they do rise to the level of medical concerns as demonstrated in P.S.
e. P.S. had been diligent about his health care and treatment plans in the past as evidenced by the Baycrest notes- it seems that O’Neill has also recently been addressing his alcohol and gambling issues.
f. P.S. was determined to be a very low risk to reoffend according to the psycholegal assessment. I do not have any evidence regarding O’Neill on this point.
g. P.S.’ PSR was determined to be extremely positive; I would say, that at best, O’Neill’s PSR is neutral.
h. P.S. had strong social supports in his life; The same can be said in this case.
i. P.S. had been on a form of release for thirty-nine months with no issues whatsoever; Similarly in this case.
As for the aggravating factors:
a. IN P.S., there was a breach of trust. G.D. was living with P.S. at the time. P.S. was providing for G.D. and was an important male role model in his life culminating in a relationship of dependency at the time of these sexual acts; Such is not the case here as I have found no breach of trust.
b. G.D. was only 15 years old at the time of these events; H.B. was younger. P.S.’s behaviour has had a significant impact on G.D., The same can be said in this case for H.B.
c. Without condoning the behaviour, there was no penile penetration or oral sex or physical violence as found in P.S. or the other cases provided by the parties.
85In P.S., the judge determined that there was no risk to the community.
86In my opinion, O’Neill does not come before me with the same degree of medical issues as in the other cases, where a conditional sentence was imposed. His potential immigration status is noted but does not in of itself, make an unfit sentence fit. I am not persuaded that these factors alone or in tandem arise to the same level as in the cases proffered by the defence.
87Aside from the serious health issues, what appeared to be fundamental in the judge’s decision in P.S. was that the accused had expressed true remorse to the extent of leaving the trial with a true understanding and insight into sexual exploitation. P.S. had developed an understanding of the wrongfulness of his behaviour throughout the proceedings and what he did wrong; an understanding that he did not have when his trial began. The judge concluded that P.S. left his trial with a new point of view.
88I observe that the judge concluded that P.S. presented as an exceptional case of someone who had truly learned from the criminal justice process. In fact, in P.S., the Crown also acknowledged the true remorse exhibited by the offender. A genuine expression of remorse can serve to mitigate a sentence: See R. v. Reeve, 2020 ONCA 381, paras. 11-12.
89Mr. Boushy submits that his client has insight into his conduct, due to some reflections and assistance from family members. This was oft-repeated in final submissions. O’Neill was expected to address the court in that light.
90Having heard from O’Neill at the conclusion of the hearing, I am less than impressed with the so-called insight into his conduct. His comments referenced the potential or possibility of a blackout during the incident, as if essentially offering an excuse for the conduct, along with a blanket apology. Indeed, any semblance of remorse or insight was not revealed in anything said by O’Neill to the court or the two families seated in the courtroom.
91In my view, O’Neill has little remorse into his behaviour and appears to me to be of the view that he is not guilty. So be it, he is entitled to have his opinion. However, despite the build-up from counsel, O’Neill’s comments fell well short of the mark.
92I reject a conditional sentence. First, the jurisprudence is clear with regards to sexual assaults on vulnerable children. In this case, it would be contrary to the public interest and the administration of justice to impose such a sentence. I am guided by the principles outlined in Friesen. The case at bar does not fall into the category of an exceptional case meriting a conditional sentence. Second, in my view, all of the aforesaid factors are an indication that specific and general deterrence and denunciation are required.
93However, I am mindful that as the Supreme Court in Friesen points out, first, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, an offender’s conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders can have a mitigating effect.
94While a conditional sentence is not fitting in this case, there is no breach of trust and I accept some of the mitigating factors. This all goes to the moral blameworthiness of the offence and the appropriate sentence to be imposed, as pointed out by Mr. Boushy through his able submissions and the evidence presented.
95Recent cases post-Friesen, indicative of an upper reformatory range with mitigating factors include, R. v. A.D., 2022 ONCJ 261, wherein the accused (aged 64, school custodian) would hug the two complainants (aged 10, students at the school). The accused’s conduct progressed and involved placing his hands on their buttocks while hugging them and gyrating his groin against their groin and buttocks of the complainants on repeated occasions. The sentence was 17 months in jail on each count, concurrent.
96In R. v. Green, 2022 ONSC 3786, the accused (aged 51), a high school teacher) taught the complainant (aged 14). The accused would ask the victim inappropriate questions about her sex life. The accused grabbed the victim’s upper thigh, squeezed it, and slid his hand further up along her leg under her clothing to her groin area. During a second encounter, the accused placed his hand on the victim’s chest and moved it down to touching her breast. He received a jail sentence of 18 months, and probation.
97In R. v. K.R.S., 2021 ONSC 8018, the accused (aged 46) was charged with several counts, including two counts of sexual interference. On one of the counts, the accused was alleged to have grabbed, and touched the breasts of the young complainant and digitally penetrated her on one occasion. For the count of sexual interference, he received a 12 month custodial term.
98In R. v. D.J.S., 2021 ONCJ 671, the accused (aged 22) placed the 10 year old child’s hand on his penis and clasped his hand over hers. The accused moved the victim’s hand in a stroking motion over his penis. With his other hand, the accused touched her genitalia. He received a custodial sentence of 14 months, followed by probation.
99Finally, in Friesen, the Supreme Court in stated at para 114: These comments should not be taken as a direction to disregard relevant factors. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance - as Moldaver J.A. wrote in R. v. D. (D.), 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), at para. 33: “sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases.”
Disposition:
100I impose a s. 161 order, parts (a)(b) & (c), for a period of 15 years, subject to the provision as it existed at the time of these offences. Mr. O’Neill is to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code.
101A s. 109 order is imposed for 10 years. No weapons, as defined in the Code. Pursuant to s. 490.013 of the Criminal Code, I make an order that Mr. O’Neill’s name be added to the Sex Offender Registry for 20 years.
102I conclude that a fit and appropriate sentence in this case for the sexual interference count is a term of imprisonment for 18 months.
103The sexual assault charge is stayed pursuant to the Kienapple principle.
104The Victim surcharge is waived.
A.J. Goodman J.
Date: September 1, 2022
COURT FILE NO.: CR19-014
DATE: 2022/09/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Joseph O’Neill
REASONS FOR SENTENCE
A. J. Goodman J.
Released: September 1, 2022
