ONTARIO SUPERIOR COURT OF JUSTICE

REASONS FOR SENTENCE

SOMJI J

Overview

[1] On May 12, 2022, the accused David Michael Sturgeon was found guilty after trial of three counts of sexual interference, sexual touching, and sexual assault of his stepdaughter E.A.: R v Sturgeon, 2022 ONSC 2879. E.A. was a child between the ages of 6 and 9 at the time. I found that

the sexual acts consisted of the accused making E.A. perform oral sex on him and in some instances, removing her panties and pants, positioning her with her head against the back of the couch, and sexually touching her with his penis against her anal area. These acts occurred on the couch in the living room of the family home while the complainant’s mother was at work and when the complainant and her three younger siblings were left in the care of the accused. On some occasions, the sexual acts occurred while E.A.’s siblings were present in the living room but engaged in other activities. In these instances, the accused would place a blanket over the complainant so that the conduct was less visible.

[2] The Crown seeks and was granted a judicial stay on the count of sexual assault. This decision addresses the sentencing of the accused on counts 1 and 2 of the indictment, sexual interference and invitation to sexually touch a person under the age of 16, contrary to sections 151 and 152 of the Criminal Code respectively.

[3] The Crown position is that the accused’s conduct warrants a penitentiary sentencing in the range of 7-8 years jail. The defence concedes that a penitentiary sentence is warranted based on the seminal decision of the Supreme Court of Canada in R v Friesen, 2020 SCC 9, but argues that upon consideration of the sentencing principles, including the Gladue principles, a sentence of three years is appropriate.

[4] All legislative references are to the Criminal Code unless otherwise stated.

Analysis

Principles of Sentencing and Their Application to this Case

[5] Section 718 of the Criminal Code sets out the fundamental purpose and objectives of sentencing. The provision states as follows:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 rehabilitating 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 acknowledgment of the harm done to victims or to the community: R.S.C., 1985, c. C-46, s. 718

[6] Denunciation requires that a sentence express society’s condemnation of the offence that was committed: R v Bissonnette, 2022 SCC 23 at para 46. Deterrence has two forms. Specific deterrence is meant to discourage the offender before court from reoffending whereas general deterrence is intended to discourage members of the public who might be tempted to engage in the criminal activity for which the offender is convicted: Bissonnette at para 47.

[7] Section 718.01 directs that in cases involving the abuse of children, which is the case here, the sentencing just must give "primary consideration to the objectives of denunciation and deterrence". In R v Friesen, the Supreme Court of Canada noted that this provision reflects Parliament's intention to re-set the approach to offences against children to better reflect the seriousness of these crimes: at para 102.

[8] Most notably, at paragraph 5 of Friesen, the Court writes:

Sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far reaching and ongoing harm that it causes to children, families, and society at large.

[9] In imposing sentence, I must also consider the proportionality principle which is that the sentence must reflect the gravity of the offence and the responsibility of the offender: s. 718.1.

Proportionality also has a restraining function and serves to guarantee that a sentence is individualized, just and appropriate: Bissonnette at para 51.

[10] Section 718.2 sets out additional principles which must also be taken into consideration in imposing sentence. Section 718.2(a) states that the court shall consider increasing or reducing the sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender and lists factors which are deemed to be aggravating. As explained below, I find the following factors are aggravating in the circumstances of this case:

(a) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family: s. 718.2(a)(ii),

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years: s. 718.2(a)(ii.1);

(b) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim: s. 718.2(a)(iii); and

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[11] The accused had been partnered with the mother for six years and they had lived in a common law relationship and as a family with her four children. E.A. was his stepdaughter and thereby a member of his family. The accused was to be E.A.’s caregiver and a father figure. He would be regularly left alone with all four children while the mother was at work. He was in a position of trust at the time of the offences.

[12] E.A. was a young child at the time. She testified that she believes, and I accepted, that the offences started as early as the age of six and continued until the age of nine. The incidents stopped not because the accused ceased his conduct, but as explained further in my decision, because E.A. made a spontaneous disclosure to other children at school which was then brought to the attention of the teacher and subsequently the parents. Upon learning of the events from the teacher and school principal, the mother refused the accused’s re-entry back to the family home and terminated the relationship with him almost immediately despite the fact that they had just been officially married several weeks earlier.

[13] The incidents were highly intrusive for a child of 6 to 9. The accused made E.A. perform oral sex on him, and E.A. testified that she could taste the stuff coming out of his penis. I also found that the sexual acts included the accused removing E.A.’s undergarments and touching E.A.’s anal area with his penis. This was not a singular incident, but occurred repeatedly in the period between 2014 and 2016. As stated in Friesen, sentences for sexual offences must be augmented in circumstances where there has been one, an abuse of trust because children are particularly vulnerable to adults in a position of trust; two, where there have been repeated incidents because the duration and frequency of repeated sexual violence can frequently result in prolonged psychological and emotional harm; three, the abuse happened in the child’s home because that is considered a safe space for children and damages their sense of security; and four, where children are particularly young because of their dependency and helplessness at that age: Friesen at paras 66, 125-130, 131-134, and 178. All of those factors are present in this case.

[14] The offences had a significant impact on E.A. as well as the mother. Both filed victim impacts statements.

[15] As noted in my trial decision, E.A. is presently 15 years of age. She is an intelligent and an articulate young woman. She is presently in grade 10 and enjoying some of her classes. She has been undergoing counselling which she states is helping a bit with addressing what happened to her. E.A. chose to express her views and sentiments about the impact of her experience in the form of a drawing and requested the Crown express in court what her picture signified. Sometimes a picture can tell a 1000 words and E.A.’s drawing is an example of that.

[16] E.A.’s drawing depicts a person with an inscription surrounding it stating, “I was a child violated.” On the forehead of the person is a circle representing her brain and inside it a jumble of lines showing the scrambled state of her mind which she explains reflects her continued confusion about what has happened to her. Beneath the eyes are two large teardrops which reflects the sadness she feels as a result of these experiences. Finally, on the mouth of the face she has marked an X which reflects the fact that she was silent about the incident for so long.

[17] E.A.’s mother also filed a Victim Impact Statement (VIS) and it was in the form of a six- paragraph poem which she read in court as well as a statement dated June 24, 2016, which was

around the time she received the disclosure. In her VIS statement, N.A. explains the shock, confusion, and disappointment she experienced upon learning about the incidents. She also discusses the immense impact the incidents have had on her. N.A explains that she has lost her trust in people, become increasingly anxious about her children, and is suffering from depression and anxiety. She has stopped working as she is no longer comfortable with leaving her children with a caregiver. Her other children have also suffered. They are experiencing anger and behavioral issues, she believes, upon learning what the accused did. They do not know how to handle their own feelings because as she candidly explains, they too trusted and love the accused who was to be a parent role model for them. Many of these sentiments are also expressed in N.A.’s poem which reflects on how learning of the incidents turned her world upside down for her and how she struggles to find a clear way forward. As she states in two of the verses:

My family and I struggle,

day after day, dealing with issues, And anger in every way.

We struggle to cope, we struggle to feel free, It’s a messed up world I live in

You created it for me.

One day I was normal, one day I was free

A long long time ago, I knew how to be me.

Now, I struggle to stretch a smile, or find the motivation to walk an extra mile It’s a messed up world I live in

You created this for me.

[18] As the Supreme Court reminds us in Friesen, sentences for child sex offences must reflect the real and profound harm of these offences on children including one, the inherent wrongfulness of these offences; two, the potential harm that flows from the offences; and three the actual harm that flows from the offence. The potential harms of these offences may manifest in childhood or be long term and become only evident in adulthood: Friesen at para 80. In arriving at my decision on sentence, I have taken into consideration the actual and potential harm of these offences as reflected in the VIS’s filed.

[19] Section 718.2(b) to (e) require a sentencing judge to consider the following additional principles when imposing sentence:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[20] In considering the sentence to be imposed in this case, I must of course consider the particular circumstances of this offender. The accused comes before the court without any prior criminal record. He is a first-time offender. While the principles of denunciation and deterrence must be emphasized for sexual offences on children, the objective of rehabilitation which is designed to reform offenders with a view to their reintegration into society, must also be considered in fashioning an appropriate sentence: 718(1)(d); Bissonnette at para 48.

[21] I must consider that the accused is an Aboriginal person, and therefore the Gladue principles require that I consider one, the unique systemic or background factors that have played a part in bringing this particular Aboriginal offender before the court; and two, the types of sentencing procedures and sanctions which may be appropriate in the circumstances of the offender because of his or her particular aboriginal heritage or connection: R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688 at para 64. These considerations are necessary because both Parliament in enacting s. 718.2(e) and the Supreme Court of Canada in its decision in Gladue have recognized the overrepresentation of Indigenous people in prisons: Gladue at paras 58 to 65; see also R v Ipeelee, 2012 SCC 13.

[22] Furthermore, it is not necessary to establish a causal link between system or background factors and the commission of the crime for which an Indigenous offender has been convicted. The interconnections are too complex and s. 718.2(e) does not require such a connection. However, the factors must still be tied in some way to the particular offender and offence if they are to influence the ultimate sentence: R v Ipeelee at para 83.

[23] A Gladue report was prepared in this case by Rachel Read-Baxter, a Gladue writer of the N’Amerind Friendship Centre. She conducted three in-person interviews with the accused. Unfortunately, she was unsuccessful in contacting various other family members. The Gladue report highlights that the accused’s Indigenous ancestry comes from both the paternal and maternal sides of his family. Although the accused did not know his father’s identity, he believes his father was an Indigenous man from Walpole Island First Nation. His mother was a status member of the Chippewas of the Thames First Nation. The accused belongs to the Turtle Clan.

[24] Both of the accused’s great grandparents attended and are survivors the Mount Elgin Residential School. It is well recognized that the intergenerational impact of the Indian Residential Schools system continues to be experienced by family and community members of subsequent generations. One need not have attended residential school to not have felt the effects. As the Gladue writer explains, some of those traumas that have been recognized in the literature include, but are not limited to the following:

➢ Poor or little to no parenting skills;

➢ Families where no nurturing or affection was present for generations;

➢ Lack of communication within the family;

➢ Children taken into custody by the Children’s Aid Society; and

➢ Addictive and self-destructive behaviours.

[25] The accused explains that his mother Glena Sturgeon was raised in poverty and that her parents struggled with alcoholism. Many of her younger siblings were apprehended by the Children’s Aid Society, and she herself left home at the age of 15 and became pregnant at the age of 16. It was an abusive relationship. Later, she met the accused’s father, but he was absent from the family and did not help raise the accused or his siblings. Consequently, the accused never had a father figure in his life. He reports that he felt abandoned by his father’s absence.

[26] The accused had a good relationship with his mother. She originally worked at a factory, but later attended Mohawk College in Brantford and became an addictions counselor. She died at the early age of 56. She was a recovering alcoholic and achieved sobriety towards the end of her life. She also had a gambling addiction. Consequently, the accused was often left with his grandparents who exposed him to partying and alcoholism at a young age. As the son of a single

mom who was of limited financial means, the accused also grew up in a household that struggled with poverty.

[27] The accused made several efforts to complete high school and is one credit away from his diploma. He has been employed in the labour industry since he was 17/18 years of age. His longest place of employment was London Eavestroughs for a period of 10 years. From 2015 to 2019, a portion of the period in which he was part of E.A.’s family, he had a job at the Goodwill Donation Centre in London, Ontario. For the last two years, the accused has been employed as a subcontractor for Universal Constructions Ltd and works an average of 40 hours a week.

[28] The accused admitted he has had a substance abuse problem since he left home at 17. He has used cocaine, and later Oxycontin, methamphetamine, and Hydro-morphine. From the age of 17 to 26, he did not have a permanent residence and described himself as homeless. He has overdosed many times and attended hospitalizations for drug use. He states he spent much of his money to fund his substance abuse. He attempted counselling through the Day Counselling Centre in London, Ontario in the early 2000s but discontinued with treatment as he felt uncomfortable with it. He has not attended professional counselling since then. He has managed, however, through programs like Narcotics Anonymous to deal with his addiction. He states he has remained substance free for the last seven years with periods of relapses early in his recovery. He admits that during the six-year period in which he was partnered with E.A.’s mother and caring for the children, he was using substances and did not disclose this to the mother.

[29] The accused reported to the Gladue writer that he experienced sexual abuse from a male babysitter at the age of 10. He believes it happened frequently. The babysitter attended the same school which scared him and affected his attendance at school. He never reported it to anyone.

[30] The accused states his first serious relationship was with N.A., mother of E.A. It started when he was 27 years of age. It lasted for six years. It ended over the charges before the court around which time he would have been 33. He is now 40 years of age. The accused described his relationship with N.A. as a healthy relationship. They share one daughter S.A. who is presently eight years of age. He has not seen her since she was one. He acknowledges he was a father figure for N.A.’s other three children including E.A. He states it was both a happy time and stressful time

because he was overwhelmed by the parenting responsibilities of the four children, especially since he never had a parental figure during his own childhood. He was using substances at the time, but was attempting towards the end of the relationship to become sober.

[31] At present, the accused is in a new relationship with a new partner. When he is not working, he spends time with his partner. He presently lives in a two-bedroom rental unit with two roommates who he has known for 12 years.

[32] When asked to speak about the charges, his only comment to the Gladue Report writer was that “This has been absolutely most stressful thing I have ever had to go through. I think it was a really stressful situation for everyone.”

[33] In determining an appropriate sentence for this case, I have considered that the accused is an Indigenous person whose grandparents were residential school survivors and that he has experienced intergenerational trauma as a consequence of his family history. The accused has been subject to and experienced poverty, sexual abuse, alcoholism and substance abuse throughout his own life. He has made some inroads on dealing with his addiction issues and has, despite all the personal challenges, been able to maintain steady employment. He has also, until these convictions, not had any transgressions with the law and comes before the court without a prior criminal record. As discussed recently by the Supreme Court of Canada in the context of parole ineligibility, rehabilitation and the prospects of re-entry into society are principles that must be considered in the sentencing of every offender no matter how egregious the crime: Bissonette at paragraph 141.

Penalty Range and Jurisprudence on Sentences

[34] It is agreed that at the time of the offences, the maximum penalty for the offences was 10 years. Parliament has since increased the penalty to 14 years to reflect the seriousness of the offences. However, I am bound by the sentencing tariff at the time of the offence.

[35] In Friesen, the Supreme Court declined to provide a starting point or set a range for sexual offences on children so as to permit discretion and flexibility for sentencing judges, but did send a message that mid-single digit penitentiary terms for sexual offences against children are normal

and that upper-single digit penitentiary terms should be neither unusual nor reserved for rare and exceptional circumstances. The Court states at para 114:

D. (D.), Woodward, S. (J.), and this Court’s own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message. 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 D. (D.), “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. ). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). [emphasis mine]

[36] In Friesen, the accused was 29 years of age with no prior criminal record. The accused had experienced an abysmal upbringing marked with his own sexual abuse. The accused was convicted of attempting forced fellatio on a 4-year-old victim who was a stranger to him and not in position trust. In those circumstances, the Supreme Court found that the 6-year sentence imposed for sexual interference was fit and appropriate.

[37] Defence does not dispute that the Supreme Court of Canada’s pronouncements and direction in Friesen with respect to sentencing for sexual offences on children applies in this case. However, defence argues that the Crown position of 8 years is closer to the maximum position and the maximum should be reserved for the worst offender. Counsel highlights that notwithstanding the court’s dicta in Friesen, the Court of Appeal has upheld sentences as low as two years. He cites the example of R v TJ, one of several cases filed by the Crown as an example. Defence argues that the appropriate sentence in these particular circumstances is 3 years jail.

[38] In R v T.J., 2021 ONCA 392, the trial judge imposed a nine-month sentence after trial for a single incident of a sexual abuse on a 7-year-old victim. The Ontario Court of Appeal overturned the decision and substituted a sentence of two years on the grounds that the sentencing judge had unduly focused on the personal circumstances of the accused and the need for restraint rather than the gravity of the offence and the harm occasioned by the victim. The court of appeal reiterated the dicta in Friesen that "mid-single digit penitentiary terms for sexual offences against children are normal” and sentencing judges can impose substantial sentences even where there has only been a single instance of sexual violence and/or a single victim": TJ at para 39 citing Friesen at para. 114

[39] The Crown has filed several other cases which illustrate that the range of sentences available for these types of offences is more appropriately between 5 to 10 years depending on the circumstances of the offender, including their prior criminal record, and the nature and severity of the sexual acts.

[40] In R v Portillo, 2022 ONSC 2234 SCJ, Regional Senior Justice Bruce Thomas sentenced the accused, a first-time offender, to 8 years jail for sexual assault. The victim was 3 to 5 at the time and the accused would babysit for the children’s mother. On multiple occasions, the accused attempted to anally penetrate the child and also have the child perform oral sex. The child believed it was a game. The accused would kiss the child’s penis and also fondle it.

[41] In R v G.R., [2020] O.J. No. 5263 (S.C.J.), the accused was sentenced to 5.5 years after trial. The accused did not have a prior criminal record. There were 3 incidents of sexual touching involving rubbing the complainant’s vagina under her clothing, rubbing her nipples, and placing his penis on her vagina. The complainant was 9 and the accused was a father figure to her.

[42] In R v D.W., 2020 ONSC 7427, the accused was convicted of sexual assault and uttering a threat to cause bodily harm. The complainant was between the ages of 5 and 8 at the time of the offences. The accused engaged in both vaginal and anal intercourse, digital penetration, and the use of a biometric device. The sentencing judge imposed a sentence of eight years for sexual assault and one year for uttering threats to be served concurrently.

[43] In R v P.J.C., 2022 O.J. No. 1135, a recent decision of this court, Muszynski J imposed a 10-year global sentence on the accused convicted of physical assaults on all three children and for sexual assault on one child involving digital penetration of the child’s vagina, sexual intercourse, and having her perform oral sex on him. The acts were accompanied by threats of violence. The children were between the ages of four and nine at the time of the offences. The accused had lived with the children for two years and was in the role of a parent at the time of the offences. The sentence imposed on the sexual assault itself was eight years.

[44] The above-noted cases illustrate the range of sentences imposed for similar offences. They are instructive but not determinative. As both counsel have correctly pointed out, no two cases are alike. While there may be some facts in each of the above-noted cases that are similar to this case, there are also dissimilarities. While the court must keep in mind the principle of parity in sentencing, determining a fit sentence is an individualized process. As the Supreme Court of Canada recently stated in R v Bissonnette when reviewing the objectives of sentencing:

[49] The relative importance of each of the sentencing objectives varies with the nature of the crime and the characteristics of the offender (R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at p. 329). There is no mathematical formula for determining what constitutes a just and appropriate sentence. That is why this Court has described sentencing as a “delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community” (M. (C.A.), at para. 91): Bissonnette at para 49

Conclusion

[45] In conclusion, upon consideration of the principles of sentencing and their application to this offender and circumstances of the case before the court, including the Gladue principles, the emphasis in Friesen on the importance of the principles of denunciation and deterrence in sentencing for sexual offences on children, and the jurisprudence on sentences for offenders who have committed similar offences, I find that a fit and proportionate sentence in this case is a global sentence of six years.

[46] On Count 1 on the indictment, the accused is sentenced to six years.

[47] On count 2 on the indictment, the accused is sentenced six years concurrent.

Ancillary Orders

[48] The Crown seeks the following ancillary orders. Defence does not object save for the time period for one of the s. 161 orders. I find the orders are appropriate in this case.

1. There will be a lifetime SOIRA order pursuant to s. 490.012.

2. There will be an order pursuant to s. 161 for a period of five years prohibiting the accused from:

a. attending a public park or swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;

a.1 being within two kilometers of the dwelling-house where E.A. normally resides;

b. 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; and

c. having any contact-including communication by any means-with a person who is under the age of 16 years, unless the accused does so under the supervision of a person who the court considers appropriate.

The s. 161 order will commence following the accused’s release from custody as per 161(2).

3. There will be a DNA identified order pursuant to s. 487.051(1)(a).

4. There will be a non-communication order prohibiting the accused from contact and communication with N.A, E.A., and R.A. pursuant to s. 743.21.

[49] Defence asks that the Victim Fine Surcharge (VIS) be waived given the accused is entering custody and the Crown takes no position. The VIS will be waived.

Somji J.

Released: September 16, 2022

Released: September 16, 2022

COURT FILE NO.: 188-21

DATE: 2022/09/16

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

David Michael Sturgeon

Accused

REASONS FOR SENTENCE

Somji J.