Court File and Parties

COURT FILE NO.: CR-20-0009 DATE: 2023 02 13 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – J.D.

Counsel: Ms. Victoria L. Reid, for the Crown Mr. Virgil E. Cojocaru, for J.D.

HEARD: February 13, 2023

REASONS FOR DECISION ON SENTENCING

CONLAN J.

I. The Finding of Guilt and the Facts

[1] After a fairly lengthy trial before this Court, without a jury, J.D. was found guilty of sexual assault, contrary to section 271 of the Criminal Code.

[2] The facts are outlined in the Court’s Reasons for Judgment reported at R. v. J.D., 2022 ONSC 6377.

[3] The victim is the niece of J.D.’s wife, although the offender and his wife are now separated. The victim was 18 years old at the time of the offence. The incident occurred at the home of J.D. and his family, in the living room, after J.D.’s wife and their own children had gone upstairs to bed.

[4] This Court found that J.D. touched the victim’s breast, fondled her breast for several minutes, and digitally penetrated her vagina. The victim dozed off, and when she woke-up she found that her shorts had been moved to the side and the offender was “fingering” (digitally penetrating) her vagina. She froze and kept her eyes closed. J.D. continued the digital penetration and then stopped and left the living room area.

[5] This Court found that the sexual activity between the offender and the much younger victim took place in circumstances where J.D. occupied a position of trust, power or authority, such that section 273.1(2)(c) of the Criminal Code applied – “no consent is obtained if the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority”.

II. Victim Input

[6] The author of the presentence report spoke to the victim. She indicated that she struggles to trust men because of what happened with J.D. She also stated that she has been on a leave of absence from her place of employment, in part because of the trauma that she suffered at the hands of the offender.

[7] The formal victim impact statement that was completed and filed expresses similar sentiments. The victim has suffered a devastating loss of trust in those around her, even family members, post-traumatic stress, self-guilt, paranoia, and an overwhelming feeling that she is “nothing anymore”, that she is “useless”.

III. The Circumstances of the Offender

[8] J.D. is currently 42 years of age. He is not a Canadian citizen. He grew up in Suriname and is a landed immigrant in Canada. He has no criminal record. He has an adult daughter in Suriname, from a previous relationship. He has a brother in Mississauga, Ontario. He married the victim’s aunt in 2005, and they have two teenage sons together. The criminal charge ended the marriage between J.D. and the victim’s aunt. The children live primarily with their mother, while J.D. has regular contact with them. As the presentence report states, “[f]rom all accounts, the offender has lived up to his role as a father and is actively involved in co-parenting his sons”.

[9] The offender has a new partner who he met on the internet about three years ago. That new partner has a young daughter from a prior relationship.

[10] J.D. arrived in Canada in May 2001, from Suriname. He has his own contracting business, doing construction, mainly home renovations.

[11] The offender’s health is generally good. He lost portions of four fingers on his right hand when he was a youth, but he has learned to adapt. He advised the author of the presentence report that he is waiting to see a specialist for some issues that he is currently having with his testicles.

[12] The author of the presentence report indicates that J.D. was polite and cooperative. As he is entitled to do, he maintained his innocence while speaking with the probation office. He does not accept any responsibility or accountability for the offence, though he told the probation office that he is willing to participate in Court-ordered counselling.

[13] The defence filed three very positive character letters written by J.D.’s brother, his sister-in-law, and his current fiancé. Those letters describe a man who is a good father, a loving partner, a supportive person for his entire family both emotionally and financially, a hard-working and trustworthy and dependable person both personally and professionally, and a man of generally high moral standards.

IV. The Legal Parameters and the Positions of the Crown and the Defence

[14] There is no minimum penalty applicable in this case. The maximum penalty is ten (10) years’ imprisonment: section 271(a) of the Criminal Code.

[15] In December 2018, when the sexual assault was committed, section 742.1(f)(iii) of the Criminal Code provided that a conditional sentence of imprisonment was not statutorily available on a conviction for sexual assault under section 271.

[16] In November 2022, when the Reasons for Judgment were released, section 742.1(f) of the Criminal Code had been repealed. That remains the case today.

[17] As such, today, apart from a consideration of the factors outlined in the preamble of section 742.1 (the requirement for a sentence of imprisonment of less than two years) and section 742.1(a) [being satisfied that a conditional sentence would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2], a conditional sentence of imprisonment is statutorily available for J.D.

[18] The Crown recommends a sentence of 3.5 years in custody, a DNA order, a sex offender registry order (“SOIRA”) for 20 (twenty) years, a firearms and weapons prohibition order under section 109 of the Criminal Code, and a no-contact order with the victim while J.D. is in custody serving his sentence, under section 743.21(1) of the Criminal Code.

[19] The defence opposes the section 109 order but takes no issue with the other ancillary orders requested by the Crown, save that the Court was reminded of the recent decision of the Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38, which, in part, declared invalid section 490.012 of the Criminal Code but suspended that declaration of invalidity for 12 months.

[20] The defence suggests a conditional sentence order of 18 (eighteen) months to two years less a day in length.

[21] The defence filed several authorities for the Court to consider. I have read all of them. They include court decisions and the following statutory provisions: sections 36(1), 46(1), and 64 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), and section 742.1 of the Criminal Code (which deals with conditional sentences of imprisonment), and section 11 of the Charter.

V. The Sentence of the Court

[22] In light of the rest of the sentence that this Court will be imposing upon the offender, the victim fine surcharge is hereby waived.

[23] The DNA order requested by the Crown, unopposed, is granted. Sexual assault is a “primary designated offence” under section 487.04, clause (a) of the definition, and as such the order is mandatory under section 487.051(1).

[24] The SOIRA order requested by the Crown is granted. There is no formal application or an informal request before the Court to exempt J.D. from the requirement to be registered as a sex offender, and besides I do not find that the order, on these facts for this offender, is either irrelevant to or grossly disproportionate to the objectives of the Sex Offender Information Registration Act and the order under section 490.012(1) of the Criminal Code. The duration of the order imposed herein is for 20 (twenty) years, pursuant to section 490.013(2)(b) of the Criminal Code.

[25] The section 109 order requested by the Crown is granted. I accept the submission by Mr. Cojocaru that not every sexual assault will mandate such an order under section 109(1)(a) of the Criminal Code, but rather the request must be assessed on a case-by-case basis with a view to determining whether “violence against a person was used, threatened or attempted”. R. v. Bosse, 2005 NBCA 72.

[26] I find that J.D., considered by everyone to have been the victim’s uncle, a man much older than the victim, by digitally penetrating the victim’s vagina after she had dozed off, did indeed use violence against the victim. The order is therefore made under section 109(1)(a), and its duration is for 10 (ten) years in terms of the discretionary aspect of the order under section 109(2)(a)(ii) of the Criminal Code.

[27] Regarding the request by the defence to impose a conditional sentence of imprisonment, I do not accept that submission. In my view, even if this Court concluded that a reformatory sentence (one that is less than two years in length) was appropriate, I am not satisfied that a conditional sentence order in this case would be consistent with the fundamental purpose and principles of sentencing.

[28] There are mitigating factors here, including (i) the lack of any criminal history for J.D., (ii) his general good character as evidenced by the reference letters filed on his behalf, (iii) the collateral consequences already suffered by J.D. (specifically, his marital breakdown and the fact that he no longer lives under the same roof as his children), and (iv) the collateral consequences that may be suffered by J.D. in terms of his immigration status in Canada.

[29] The aggravating factors, however, are plentiful and serious. The moral blameworthiness of this offender is high. Rehabilitation and the principle of restraint are important, especially for this first-offender, but denunciation and general deterrence are paramount here, in my opinion.

[30] This was a gross abuse of trust committed by J.D. against, effectively, his niece and a young woman he knew was vulnerable. This sexual assault was varied, including both the fondling of the victim’s breast and the digital penetration of her vagina, and it was not momentary but rather lasted several minutes in its totality. The digital penetration was committed against a helpless person, barely an adult, and it started while she was asleep. This crime has had a devastating effect on the victim, moving her from what was already a fragile and mentally unstable place to one where she feels completely worthless and amounting to nothing.

[31] In short, I do not consider a conditional sentence of imprisonment to be a fit sentence for this offender, given the aggravating factors in existence.

[32] At the same time, however, I do not accept the Crown’s submission that the range of sentence in this case would start at a floor of about 3 (three) years in the penitentiary. For that proposition, the Crown relies on the recent decision of the Court of Appeal for Ontario in R. v. A.J.K., 2022 ONCA 487, specifically paragraph 77 of that decision. As the Court of Appeal said at paragraph 78 of that same decision, however, “there is no magic to citing the correct range of sentencing; the task is to arrive at a fit sentence through the employment of proper sentencing principles”.

[33] That said, this Court acknowledges the direction provided by our Court of Appeal – “the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary”, absent some highly mitigating factor. A.J.K., supra, at paragraph 77.

[34] Although Mr. Cojocaru is correct that the facts in A.J.K., supra are different than our facts, and arguably more serious due to the gratuitous violence committed against the victim in that case, quite apart from the sexual penetration itself, including the choking of and punching at the victim, it is also true that Associate Chief Justice Fairburn’s comment at paragraph 77, quoted above, is a statement of general application. It cannot be divorced from the facts of that case, but it is meant to help sentencing judges understand what would generally be the starting point for the crafting of a sentence of imprisonment to be imposed in a case of sexual assault that includes forced penetration. Some cases will continue to fall below that starting point, and appropriately so depending on the facts and the circumstances of the offender.

[35] There is no “highly mitigating factor” in our case. The potential immigration consequences are a significant consideration, but they cannot used to justify a sentence that is otherwise unfit. R. v. Pham, 2013 SCC 15.

[36] In addition, I agree with the Crown that the statutory provisions relied upon by the defence do not necessarily mean that a sentence of imprisonment of 6 (six) months or more imposed upon J.D. will automatically mean that he will face a removal (deportation) order and will have no ability to appeal or challenge that order. Section 68(1) of the IRPA provides that a removal order may be stayed on the basis that the best interests of a child compel such a stay, on humanitarian and compassionate grounds. In our case, J.D. will have that valuable tool at his disposal, given his children who are here in Canada.

[37] Considering everything that I know about this case, it is my view that a sentence of 3 (three) years’ imprisonment is appropriate.

[38] J.D. is sentenced to a period of imprisonment of 3 (three) years.

[39] Finally, an order under section 743.21(1) is made, prohibiting the offender from having any contact or communication, directly or indirectly, with E.S. while serving his custodial sentence.

[40] For what it is worth, it is my hope that J.D. will not be deported from Canada. From all accounts, he is a good father. His forced removal from this country, I fear, would further victimize his children.

Conlan J. Released: February 13, 2023