COURT FILE NO.: CR-20-27

DATE: 2022 04 02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S.B.2

Ms. M. McGuigan, for the Crown

Mr. H. Bassi, for S.B.2

HEARD: October 28, 2022

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant or witness may not be published, broadcasted or transmitted in any manner.

REASONS FOR SENTENCE

Chozik j.

[1] On August 28, 2021, I found Mr. S.B.2 guilty of sexually interfering with and sexually assaulting his common law wife’s granddaughter K.R., when K.R. was a young girl.

[2] K.R. alleged that Mr. S.B.2 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 Mr. S.B.2 shared with K.R.’s grandmother, S.B. Mr. S.B.2 would touch K.R. in this way when she and Mr. S.B.2 were on the couch together, watching television, while S.B. was in her reclining chair, possibly asleep. On the last occasion K.R. was in the basement alone, when Mr. S.B.2 came downstairs and 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.

[3] K.R. disclosed the fact that Mr. S.B.2 had touched her sexually to her boyfriend P.M. shortly after the last incident had occurred. She later disclosed it to two friends. In the fall of 2018, prior to telling her mother about it, she told a guidance counsellor. Her disclosure that fall was prompted by the planning of a family trip to Mexico. K.R. testified that she feared she might end up alone with Mr. S.B.2 at some point during the trip. She was very anxious about it and talked to the guidance counsellor, and then her mother, S.R.

[4] S.R. took K.R. to the police to give a statement. She also told S.B. about the allegations, at which point S.B. ceased having a relationship with S.R. and the grandchildren. Prior to the disclosure, S.R. and S.B. had been very, very close.

[5] At the conclusion of the trial, I was satisfied beyond a reasonable doubt that Mr. S.B.2 had touched K.R. in the manner that she had alleged. For the purpose of the sentencing, I rely on the facts as outlined above.

Positions of the Crown and Defence:

[6] The Crown takes the position that a fit sentence for Mr. S.B.2 is three to four years incarceration. The Crown relies on the Supreme Court of Canada (SCC) decision in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, and decisions of this court and the Ontario Court of Appeal in R. v. T.J., 2021 ONCA 392, 308 C.C.C. (3d) 307, in support of her position. She argues that the harm here was significant and, therefore, a sentence in this range is fit.

[7] The Crown also seeks a number of ancillary orders, which are not opposed by the Defence.

[8] The Defence does not dispute that a penitentiary sentence is required given the direction of the SCC and Ontario Court of Appeal. He argues that a sentence of two years plus a day is also a fit sentence.

Applicable Principles of Sentencing:

[9] The fundamental principle of sentencing is proportionality: to be a fit sentence, the sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender: Criminal Code, R.S.C. 1985, c. C-46, at s. 718.1.

[10] Crafting a fair and appropriate punishment is a highly individualized exercise that involves a variety of factors: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58. To arrive at the determination of a fit sentence, a sentencing judge must take into account any relevant aggravating or mitigating circumstances (s. 718.2(a) of the Criminal Code), as well as objective and subjective factors related to the offender’s personal circumstances. The parity principle requires that a sentence imposed be similar to those imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2(b) of the Criminal Code; R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 8 and 9.

[11] A fit sentence must aim to denounce unlawful conduct and deter others by sending a message that certain conduct will not be tolerated. Where necessary, the sentence needs also to deter a particular offender from repeating the conduct. A fit sentence must aim to rehabilitate the offender, promote his sense of responsibility for the offence, provide some acknowledgement of and reparations to victims for harm done to them and to the community. Ultimately, the sentence imposed must be consistent with the fundamental purpose of sentencing, which is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society: s. 718 of the Criminal Code.

[12] In cases involving sexual violence against children, the paramount considerations are denunciation and deterrence. As the SCC recently observed in Friesen, at para. 5:

[W]e send a strong message that 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 the 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 for 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 is caused to children, families, and society at large.

[13] In Friesen, at para. 50, the SCC explained that “sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause.” Sexual violence against children is wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity: at para. 51. Personal autonomy refers to a child’s right to develop to adulthood free from sexual interference and exploitation by adults: at para. 52. Sexual violence disproportionately affects girls as compared to boys, engaging equality interests.

[14] With this understanding comes recognition that sexual violence impacts not sexual propriety, but the wrongful interference with sexual integrity. It is important to recognize that sexual offences involve violations of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem. The psychological and emotional harm may often be more pervasive and permanent than any physical harm: at paras. 55-56. Even a single incident of sexual violence can “permanently alter the course of a child’s life”: at para. 58. A sexual violation can shatter the personality of a child, causing long-term distress, suffering, and loss of self-esteem: at para. 58

[15] Sexual violence causes additional harm to children because it damages relationships within families: at para. 60. It also creates secondary victims: parents, caregivers, and other family members who are left feeling powerless and guilty: at para. 63. This is exactly what happened in this case.

[16] There is also a broader harm to the community and society generally: at para. 64. Statistics show that children are at most risk at home and among those they trust. Sexual violence can remain hidden: “[O]ffenders perpetrate sexual violence against children in private, coerce children into not reporting, and rely on society’s false belief that sexual violence against children is an aberration confined to a handful of abnormal individuals”: at paras. 65-66.

[17] The SCC held that sentencing for sexual offences must reflect the “life-altering consequences” of sexual violence: at para. 74. 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: at para. 76. The moral blameworthiness of those who commit sexual offences on children is high: an offender ought to be aware that intentionally touching a child sexually can profoundly harm the child: at paras. 88-92.

[18] Significant factors to determine a fit sentence include likelihood to reoffend, abuse of a position of trust or authority, duration and frequency of the sexual violence, the age of the victim, the degree of physical interference, victim participation, and totality of the sentence: Friesen, at paras. 121-158.

[19] The Criminal Code sets out aggravating factors that must be considered: s. 718.2(a). This includes breach of trust. When an offence involves the abuse of a person under the age of 18 years, the primary objective of sentencing is denunciation of the unlawful conduct and deterrence: s. 718.01 of the Criminal Code; R. v. D.D., 2018 ONCA 134, at para. 15.

[20] Mitigating factors and personal circumstances of an offender must also be considered. Sentencing is always an individual exercise and each sentence must be tailored to the individual offender and the specific circumstances of the offence. At the same time, the personal circumstances of an offender ought not be overemphasised so as to reduce the sentence.

Victim Impact:

[21] Both K.R. and her mother S.R. made statements to the court regarding the impact of these offences on them.

[22] K.R. stated that, as a result of the offences, she suffered and continues to suffer from shame, thoughts of self-harm and suicide, and loss of trust. She feared losing her family if she disclosed the sexual offending, and her fears became her reality when, as a result of the disclosure, the family’s relationship with her grandmother was severed. She suffers from social anxiety and has some symptoms similar to post traumatic stress disorder.

[23] S.R. stated she suffers profoundly from the loss of the relationship with her mother. What little family she had was taken from her when the relationship severed. She suffers from isolation, loneliness, and, at times, loss of faith. She questioned her mental health, felt guilty and worried, and had to take a sick leave from work following K.R.’s disclosure. Her grief and sense of loss was palpable as she testified at the trial.

[24] In Defence counsel’s submissions, Mr. Bassi fairly and candidly acknowledged that these offences had serious impact and that this impact will be long-term. This is a fair and accurate observation.

[25] I accept that K.R. suffered a traumatic childhood injury as a result of Mr. S.B.2’s conduct and that this injury will impact her for the rest of her life. Her mother has also suffered a profound loss – the loss of her relationship with her own mother. I must, and do, take all this impact into consideration.

[26] In this case, I also take into consideration the breach of trust. A breach of trust is profound when a beloved family member violates the sexual integrity of a child placed in his care. Mr. S.B.2 was part of this close-knit family for over 20 years, of which the assaults spanned 8 years. This family was very close. Mr. S.B.2 knew K.R. all her life.

Circumstances of the Offender:

[27] Mr. S.B.2 is 59 years old. He comes before the court as a first-time offender. He was born in Liverpool, England. He came to Canada at the age of five years. He has two siblings with whom he has a good relationship. As Mr. Bassi stated, he has led a simple life. He worked hard in a steel factory most of his life. For the last 20 years he has been with the same employer, who submitted a letter for my consideration.

[28] As I heard during the trial, Mr. S.B.2 met S.B. while on a trip to Cuba. They have now been together in a common-law relationship for over 20 years. S.B. is significantly older than Mr. S.B.. She is now 74 years old. She suffers from arthritis and high blood pressure. For the last few years, he has been caring for her as well. I am advised by counsel that it is their intention that, following completion of his incarceration, he will continue to reside with S.B. in their home.

[29] I take into consideration the absence of any criminal record, and the fact that Mr. S.B.2 led a pro-social, simple life for almost 60 years. He is a loving partner to S.B., and I accept that she depends on him for her care to some extent.

Range of Sentence:

[30] It is clear the sentence for these offences will fall within the penitentiary range. Mr. Bassi candidly acknowledged that there were no special factors that would lead him to recommend two years plus a day as more appropriate than three years, except maybe that COVID-19 is still a reality in the community and institutions.

[31] In my view, the pandemic is not a relevant consideration in this case. Mr. S.B.2 has no underlying health concerns that put him in any particular risk if incarcerated. Federal correctional institutions do not have the same movement of prisoners as detention centres. Protocols and procedures are in place that make incarceration in a federal correctional facility of no extra risk to someone like Mr. S.B. from COVID-19. I also note that the sentencing was adjourned from December 17, 2021 to today on account of concerns about the Omicron variant, which has since lessened.

[32] In my view, a sentence of three years is appropriate. While I have considered all of the legal authorities put before me by counsel, I use the sentence imposed by the Court of Appeal in T.J. as a guide. In that case, decided just after the release of Friesen, the Ontario Court of Appeal allowed a Crown appeal, set aside a nine month sentence, and imposed a sentence of two years for sexual offences committed by the accused on a six year old child.

[33] In T.J., the child and her brother were sleeping over at the accused’s home with his sons, when the accused called the child into the bathroom, took her hands and placed them on his penis. He used her hands to rub his penis, which became aroused, telling her that “this is how you do it.” This went on for a few minutes. He then told the child that she could put her mouth on his penis. She pulled away and left the room: at paras. 1-2. Applying the principles articulated in Friesen, the Court of Appeal found that the trial judge did not adequately consider the gravity of the offences and their harm, and overemphasised, the personal circumstances of the offender: at paras. 33-37. The Court increased the sentence to two years.

[34] The range of penalties for sexual offences is very broad. This broad range reflects the variety of circumstances in which these offences are committed. To make sense of the various sentences, and to give effect to the principle of parity, courts often focus on two key considerations: (a) duration and frequency of the abuse, and (b) the nature of the sexual touching. This exercise is not intended to minimize the seriousness of any particular offence or to compare the trauma suffered by one victim to that of another. The T.J. decision is instructive in leading me to conclude that three years is a fit sentence for Mr. S.B.2 because his offending involved greater frequency and duration.

[35] In T.J., there was one incident of sexual violence committed on a similarly aged child. In this case, K.R. recalled in detail at least three incidents. In T.J., the child was six years old. K.R. recalled the incidents occurring from the time she was five until she was 13. Essentially, she had no memory of a childhood and no personhood that was not impacted by the offending.

[36] I also consider the inherent wrongfulness of Mr. S.B.2’s actions. As the SCC observed in Friesen, violence is always inherent in the act of applying force of a sexual nature to a child. Physical contact of a sexual nature with the body of a child always interferes with the sexual and bodily integrity. It violates human dignity and autonomy: at para. 77. It is also a form of psychological violence. A sentence must give effect to this inherent violence; it is an integral part of the normative character of the offender’s conduct. It is inherently exploitive and highly blameworthy. In Friesen, the SCC directs courts to give effect to the wrongful, exploitive nature of sexual offences: at para. 78.

[37] 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: Friesen, at para. 80. It is wrong to believe that there is no serious harm in the absence of additional physical violence: at paras. 80-82. In sentencing an offender, actual harm must be considered as well as the reasonable foreseeability of potential harm: at paras. 83-86.

[38] Having considered the relevant sentencing principles, the aggravating and mitigating factors, the victim impact, and the circumstances of the offender, I am of the view that a fit sentence for Mr. S.B.2 is three years imprisonment.

Sentence & Ancillary Orders:

[39] Mr. S.B.2 shall be sentenced to imprisonment for three (3) years on the conviction of sexual interference.

[40] The count of sexual assault shall be stayed pursuant to the principles articulated in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

[41] The following ancillary orders shall issue:

a. A weapons prohibition order shall be made under s. 109 of the Criminal Code for a period of 10 years.

b. A DNA order shall issue pursuant to s. 487.051(1) of the Criminal Code as sexual interference is a primary designated offence.

c. Mr. S.B.2 shall be registered under s. 490.012 of the Criminal Code on the Sex Offender Registry for 20 years.

d. Mr. S.B.2 shall be prohibited from communicating, directly or indirectly, with K.R. and S.R. and any immediate member of their family except S.B., pursuant to section s. 743.21 of the Criminal Code for 20 years;

e. Pursuant to s. 161(c) of the Criminal Code, Mr. S.B.2 shall be prohibited from having any contact – including communicating by any means – with any person under the age of 16 years, unless the offender does so under the direct supervision of the parent or legal guardian of that young person for 20 years;

f. Pursuant to s. 161(a.1), Mr. S.B.2 shall be prohibited from attending within 200 meters of the residence of K.R. for 20 years.

Chozik J.

Released: February 4, 2022

COURT FILE NO.: CR-20-27

DATE: 2022 04 02

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

S.B.2

REASONS FOR sentence

Chozik J.

Released: February 4, 2022