COURT FILE NO.: CR-21-40000163-0000 DATE: 20230209

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - J.B.

Counsel: L. Guzzo, for the Crown Y. Obouhov, for J.B.

Heard: December 12, 2022

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO S. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

R. MAXWELL J.

Reasons for Judgment on Sentence

[1] J.B. was found guilty after a trial of sexual assault and sexual interference in relation to offences against J.M., the daughter of his friend and neighbor. He appeared before me for a sentencing hearing on December 12, 2022. These are my reasons for judgment on sentence.

Factual Findings at Trial

[2] My reasons for judgment (R. v. J.B., 2022 ONSC 4964) set out my factual findings. I will summarize the findings briefly here.

[3] I found that when J.M. was approximately 10 years old, she started doing work with J.B., usually on the weekends, assisting him with small maintenance jobs either in the building, or at the homes of J.B.’s friends. She would often stay overnight at J.B.’s apartment, either because she was socializing with his sons until late hours, or because she planned to work with J.B. the following day.

[4] When J.M. stayed overnight at J.B.’s apartment, she slept in a small bed inside J.B.’s bedroom, which also contained a bigger bed where he slept. On more than one occasion, she and J.B. slept in his room alone.

[5] I found that, in this context, the relationship between J.B. and J.M. became sexualized, sometimes through sexual touching and sometimes through vaginal penetration. Although J.M. could not recall specific details of all the assaults prior to May of 2019, I accepted her account that all of the incidents occurred in J.B.’s apartment, except for one which occurred at the home of one of J.B.’s friends, and another which occurred at his property in northern Ontario, when J.B. touched her breasts and put his fingers inside her vagina.

[6] I accepted J.M.’s evidence that the sexual abuse continued over the course of approximately two years, from the ages of 10 to 12 years, and that J.B. assaulted her, through touching and/or penetration as many as 25 to 30 times.

[7] I also accepted that, at the time, she did not understand what was happening to her, and her evidence that J.B. told her that they were just “cuddling” and that she was special. I accepted that J.B. would buy J.M. food, gifts, and give her money.

[8] I accepted J.M.’s evidence that J.B. was a father figure to her and that when she began to realize that she was being assaulted, she resisted telling anyone because she feared that disclosing the assaults would impact negatively on the relationship between the families. The families had become close. J.B. and his sons lived in the building. J.B. did odd jobs around the property and assisted J.M.’s mother, who has medical issues, get up in the morning to get J.M. and her sister to school on time. In exchange, J.M.’s mother assisted J.B with school and other paperwork for his sons because J.B. is illiterate. I found that J.B. functioned as a caregiver to J.M., given that she frequently stayed overnight at his home (often alone with him in his bedroom), regularly worked with him, travelled to his friends’ homes and his northern property with him alone, received money from him, socialized with his sons, and was often left in his care.

[9] I accepted J.M.’s evidence that in May of 2019, she had been assisting J.B. at one of his friend’s homes. After the work was complete, they returned to J.B.’s apartment. J.M. took a nap in J.B.’s bedroom, on his bed. I accepted her evidence that she awoke to J.B. penetrating her vagina with his penis while touching her breasts over her bra. Her tights and underpants were pulled down and her top was pushed halfway up her torso. J.M. screamed at J.B. to get off of her and asked him what he was doing. She went home to her apartment and immediately told her mother what happened. I accepted her evidence that this incident was the “tipping point”, as she had told J.B., four months prior after another assault, that if he did it again, she would tell her mother.

[10] I rejected J.B.’s testimony denying that he ever sexually touched or engaged in sexual intercourse with J.M.

Positions of the Parties

[11] On behalf of the Crown, Ms. Guzzo seeks a sentence of 10 to 12 years in custody. She also seeks an order that J.B. register with the Sex Offender Registry for 20 years; an order under s. 161 of the Criminal Code for life; a s. 109 weapons prohibition for a period of 10 years; a DNA order, as these are primary designated offences; and a s. 743.2 order for no contact or communication with J.M. and her mother, T.M., while he is in custody.

[12] On behalf of J.B., Mr. Obouhov seeks a sentence of 5 years in custody. He is not opposed to any of the ancillary orders requested by the Crown.

Circumstances of the Offender

[13] J.B. is 57 years old. He is divorced and has had custody of his two sons for their entire lives. His sons at the time of the trial, were 16 and 18 years old and have had little to no contact with their mother. He is single, but reported, through the pre-sentence report, that he had a romantic interest in J.M.’s mother for five to six years prior to the offences.

[14] In his pre-sentence report, J.B. advised that he had a good relationship with his mother and father. His father worked as a miner and truck driver. His mother worked as a tree planter. Although he did not report any family history of alcohol or drug dependency, his brother reported that their parents were alcoholics and that the older children cared for the younger ones when their parents were unable to care for them.

[15] J.B. identifies as Indigenous. He was born in South Porcupine, a district in Timmins, Ontario. A Gladue Report was requested, which although not complete, provides some of J.B.’s family background. He grew up on a farm. He is the fifth of nine children. He reported that his grandmother was Inuit and was from the Peggy’s Cove region of Nova Scotia. Unfortunately, he had little information about his grandmother’s Indigenous ancestry.

[16] He stated that, in 2008 or 2009, he had a Metis membership card, but he lost it and did not reapply for a new one. He reported that his brother also had a Metis membership card. Inquiries were made with J.B.’s brother to obtain the name of the Metis organization which issued the cards. Neither J.B. nor his brother could provide any information.

[17] Unfortunately, because J.B. never met his grandmother, his knowledge of his Indigenous background is limited. According to the author from Aboriginal Legal Services, J.B. could not speak to his experiences as an Indigenous person.

[18] J.B. completed a grade 12 education but reported that he struggled in school and was pushed through grades despite his academic struggles. His brother reported that he was bullied due to a speech impediment and he responded with physical violence. There was also reference in the pre-sentence report to the possibility that J.B. is dyslexic. His behaviour resulted in suspensions and expulsions from school. The result of his educational experience is that J.B. is illiterate.

[19] J.B. began receiving Ontario Disability Support Program (“ODSP”) payments at the age of 18 due to his illiteracy. He has supplemented his income, over the years, working as a handyman and doing skilled work in various trades.

[20] He does not drink alcohol or use any drugs.

[21] Numerous acquaintances provided input, through the pre-sentence report, as to J.B.’s character. All expressed being surprised by the allegations. He is described as honest, respectful, and helpful. To neighbors and those who have employed him as a handyman, this would appear to be completely out of character for him.

[22] Several family members expressed that there has never been an issue with J.B.’s behaviour with children. J.B.’s niece indicated that J.B. is a caring father who is supportive and helpful to family members. Another niece stated that she has a daughter who has been left in J.B.’s company, without issue. She has never heard of any complaints within the family about J.B.’s behaviour with any family members. J.B.’s sister-in-law reported that he is hard-working and she has never heard of any complaints from her nieces about J.B.

[23] One neighbor, who appears to have seen J.B. interact with the complainant and her sister, indicated that he treated the children like daughters, that she would trust him with her own children, and that she believes J.B. was set up.

[24] A theme among many who were consulted is that J.B. was very willing to help others and may have been taken advantage of due to his intellectual deficits.

[25] The pre-sentence report noted, in several places, that J.B. breached his bail and, as a result, he was required to move from his long-time address to a new address. As there is no record before me of J.B. having breached a bail condition, I will not take this into consideration as an aggravating factor on sentence.

Principles of Sentencing

[26] I begin with the most fundamental principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Criminal Code.

[27] The overriding purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society”. Section 718.1 provides that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence I impose must reflect the circumstances of the offence and the attributes of the individual responsible for the crime.

[28] Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating factors related to the offence or the offender.

[29] Sentencing ranges and a review of similar cases are useful in ensuring that the parity principle is met and that similar penalties are imposed for similar offences of a similar nature involving similar offenders. Sentencing ranges are, however, only guidelines. The sentencing of an individual is, necessarily, an individualized process, as the Supreme Court reiterated in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.

[30] All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[31] Currently, s. 151 sexual interference carries a maximum punishment of 14 years, in cases where the victim is less than 16 years of age.

[32] When it comes to offences of sexual violence against children, deterrence and denunciation are the primary objectives of sentencing. Parliament has clearly expressed, through s. 718.01 of the Criminal Code and its increase in maximum sentences for these offences, the need to prioritize denunciation and deterrence for offences of this nature.

[33] As held by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, contemporary understanding of sexual violence against children and the harmful impact it has on not only the lives of those children as they grow into adulthood, but on future generations, has led to recognition of key principles related to sentencing of offenders for sexual violence against children, including:

(1) that a decision by Parliament to increase maximum sentences for certain offences show that Parliament “wanted such offences to be punished more harshly” and that these offences should be treated more gravely than they have been in the past: Friesen, at para. 97 and 99, citing Lacasse, at para. 7);

(2) that to respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than those imposed in cases which preceded the increases in maximum penalties: Friesen, at para. 100;

(3) that Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for the court to impose more severe sanctions for sexual offences against children: Friesen, at paras. 101-105.

[34] As such, while the court in Friesen declined to set a national starting point or sentencing range for crimes of sexual violence against children, it emphasized that, in light of our contemporary understanding of the wrongfulness and harmfulness of sexual violence against children and the high degree of moral responsibility of the offender, sentences must have, as a priority, the principles of denunciation and deterrence. Further, courts should take care not to rely on older precedents which may reflect a “dated” view of sexual exploitation of children by adults: Friesen, at paras. 105 and 110.

[35] In R. v. Woodward, 2011 ONCA 610, [2011], O.J. No. 4216, at para. 72, the Court of Appeal summarized the key principles driving the primacy of deterrence, denunciation and separation as principles of sentencing for offences involving the sexual abuse of children:

(1) Our children are our most valued and our most vulnerable assets;

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators;

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators;

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weaknesses to achieve their selfish ends, heedless of the dire consequences that can and often do follow;

(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood;

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[36] Therefore, denunciation and deterrence are the primary factors on sentence in this case. Given J.B.’s lack of any criminal antecedence, his age, and his intellectual disabilities, rehabilitation and restraint are also relevant factors for consideration.

Aggravating and Mitigating Factors

[37] Turning first to the mitigating factors in this case, J.B. has no criminal record. Apart from these offences, it would appear that he has lived a pro-social lifestyle.

[38] Second, as outlined above, J.B. has support, within his family, friends, and community members. Family members, neighbors, and those who have hired him as a handyman all spoke positively of J.B. As noted above, they all described the conduct for which he has been convicted as being “surprising” and “out of character” for him.

[39] I would note, however, that it is not uncommon, in cases of sexual offences against children, that the conduct often goes undetected, even within families, within the same household, or within a social circle. I agree with the comments of Richetti J. in R. v. G.(C.), 2015 ONSC 5068, [2015] O.J. No. 4326, at para. 22, in which he observed that these types of crimes are often committed in private, and are rarely seen by family or the public. I would add that sexual offences against children, by their very nature, exploit the vulnerabilities of children, and exploit the opportunity to keep the conduct secret: see also Friesen, at para. 127.

[40] Finally, as to the application of the principles of Gladue in this case, I accept that J.B. has Indigenous background. However, there is a lack of evidence before me as to how J.B.’s Aboriginal heritage accounts for “the unique systemic and background factors which may have played a part in bringing the particular aboriginal offender before the courts.”: see R. v. Gladue, [1999] 1 SCR 688, at para. 66. As the Ontario Court of Appeal held in R. v. J.V., 2013 ONCA 251, at para. 46, while one can generalize about the impact of colonialism on all Indigenous people, Gladue is intended to redress the consequences of colonialism, in particular, as it relates to residential schools. J.B. does not bear the onus of establishing a causal link between systemic and background factors and the commission of the offence. Nevertheless, the evidence that J.B.’s ancestry played a role in his criminality, in my view, is weak: see J.V., paras. 47-48.

[41] Turning to the aggravating factors in this case, the complainant in this case was under the age of 16, a statutorily aggravating factor under s. 718.2 of the Criminal Code. The complainant was young, between the ages of 10 and 12 years, when the abuse occurred.

[42] Second, the abuse occurred over an extended period of time, two years. There were multiple incidents of abuse in that period of time.

[43] Third, there was a high degree of physical interference and included both sexual touching and full vaginal penetration.

[44] Fourth, J.B. occupied a father-like position in J.M.’s life. J.M. and her mother both trusted J.B. There was a degree of financial and social dependence on J.B., who provided J.M. with money and gifts and supported her mother in relation to her health issues. The court in Friesen recognized, at para. 126, that the closer the relationship between a child and the offender, the more harm the child will likely suffer and the greater the degree of the offender’s responsibility. While the relationship in this case is not a “classic” breach of trust situation, such as with a family member, teacher, or doctor, the relationship, in my view, was a relationship of trust, given the closeness of the family and the amount of time J.M. spent at J.B.’s home and doing jobs.

[45] Fifth, I accept that the offences had a devastating impact on the victim, as was detailed by her in the victim impact statement: see s. 718.19 (iii.1) of the Criminal Code. J.M described her trust in J.B. because he treated her family like his own and she had no father-figure in her life. After the abuse, she has been unable to trust any male and has been unable to acknowledge her mother’s long-time partner as a stepfather because of her trauma.

[46] She described the impact of the abuse on her own intimate relationships. She stated that she has not felt safe in a relationship because of the abuse. She struggles with being touched. Touch makes her feel uncomfortable and causes traumatic memories to come rushing back.

[47] She has experienced, and continues to struggle with depression, anxiety and panic attacks. Her depression and anxiety cause her to be unmotivated and unproductive. She is very wary of her surroundings and feels fear just walking around in her community because J.B. and his family, for a time, remained in the community after his arrest. She continues to fear him and fears the possibility that he might try to reconnect with her family, in particular, her mother.

[48] She also developed an eating disorder and began to over-exercise, as she described it, in an effort to change everything about who she was.

[49] Many, if not all, of J.M.’s post-offence experiences are consistent with the recognized consequences of this type of abuse, as detailed in Woodward, at para. 72.

Sentencing Caselaw and Range of Sentences

[50] As the court noted in Friesen, citing the decisions from the Court of Appeal for Ontario in D.D., (2002), 58 O.R. (3d) 788; Woodward; and S.J., 2018 ONCA 675, 142 O.R. (3d) 81; and its decisions in M. (C.A.), [1996] 1 S.C.R. 500; and L.M., 2019 ONCA 945, 59 C.R. (7th) 410, “imposing proportionate sentences that respond to the gravity of the sexual offences against children and the degree of responsibility of the offender will frequently require substantial sentences”: para. 114.

[51] The court went on to comment, at para. 114, 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 cases. The court continued, stating that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as was the case in Woodward and L.M. (2019).

[52] The court also set out a list of factors relevant to determining a fit sentence for offenders who commit sexual offences against children which includes (1) the likelihood to reoffend; (2) whether the offender has abused a position of trust or authority; (3) the duration and frequency of the abusive behaviour; (4) the age of the victims; (5) the victim’s participation; and (6) the degree of physical interference.

[53] On behalf of the Crown, Ms. Guzzo provided caselaw in support of her position for a sentence in the double-digit penitentiary range.

[54] In R. v. L.M., 2014 ONCA 640, the accused was convicted of sexual assault and sexual interference. The complainant was between the ages of nine and 11 at the time of the offences, which involved sexual intercourse and other serious sexual misconduct on numerous occasions. The accused was in his late fifties. He had a criminal record, but it was dated and he was treated as a first-time offender. There was evidence of violence, including the complainant having her hands tied behind her back or putting a cloth in her mouth. A penitentiary sentence of nine years was upheld by the Court of Appeal for Ontario.

[55] In R. v. D.G., 2019 ONSC 930, the accused was a church pastor who was convicted of sexual assault in relation to two girls, ages 11 and 14, who were foster children in his care. The trial judge found he had groomed the complainants by repeatedly assuring them that they could trust him and he would do anything for them. The assaults included sexual touching, sexual intercourse, oral sex, and anal sex. The assaults happened mostly in the family home and occurred on a weekly basis, in the case of one complainant, and somewhat less frequently in the case of the other complainant. The accused had strong family support and no criminal record. The trial judge sentenced the accused to 12 years in the penitentiary.

[56] In R. v. E.S., 2018 ONSC 4808, the accused was convicted of sexual interference and sexual assault. He was the complainant’s mother’s boyfriend and stood in as a father figure to the complainant. He occupied a position of trust in her life. There were three incidents of sexual abuse when the complainant was between the ages of 8 ½ and 9 ½ years. The abuse took place in the family apartment and included touching and sexual intercourse. E.S. identified as having Aboriginal heritage and the court applied the principles of Gladue in sentencing the accused to 8 years in custody.

[57] The defence raised the case of R. v. M.A., 2022 ONSC 1496, in which the accused was found guilty of sexual interference for touching three children he was babysitting, who were under the age of 16. The contact included sexual touching the complainants’ breasts and vaginal area, and having the complainants touch his penis. The accused was 71 years old and the primary care giver to his disabled wife. He had no criminal record and an excellent work record. The trial judge sentenced the accused to seven years in custody. The trial judge included in his assessment the impact of COVID-19 on offenders serving sentence and this was a factor in the assessment of a fit sentence.

[58] He also raised R. v. C.B., 2021 ONSC 187, in which the accused was found guilty of sexually assaulting his biological daughter when she was between 13 and 16 years old. The offence included sexual touching, digital penetration, oral sex, and repeated attempts at sexual intercourse. The accused was 43 years old with no criminal record and a good work history. He suffered from mental health issues and experienced physical distress during his arrest, both factors which were relevant to the trial judge’s assessment on sentencing. The trial judge also took into consideration the circumstances of COVID-19 on offenders serving jail sentences. The accused was sentenced to five years in custody.

The Sentence in this Case

[59] I turn now to a fit sentence in this case.

[60] Having regard to the aggravating and mitigating factors in this case, the gravity of the offence, and the degree of responsibility of the offender, the range of sentence suggested by Mr. Obouhov is not appropriate. The cases he referred to did not involve full penetration and there were other considerations in play which are not in play in this case, including mental health concerns and the pandemic.

[61] The offences in this case are very grave and involve repeated instances of sexual intercourse and sexual touching over an extended period of time. The complainant was vulnerable, in that she looked to the accused as a father figure. There is clear evidence of the accused taking advantage of the position he occupied in J.M.’s life. There are elements of grooming in this case, with J.B. creating a trusting relationship with J.M. and her family, exploiting his access to J.M. and using gifts, food, work opportunities, and money to continue to exploit J.M.

[62] The impact on J.M. has been profound.

[63] Having regard to all of the circumstances of the offence, and of the offender, and the principles of sentencing, and bearing in mind the Supreme Court of Canada’s guidance about sentencing for this type of conduct, in my view, a fit sentence in this case is one of nine years.

[64] The sentence on the count of sexual interference will be nine years.

[65] The Crown and Defence counsel jointly submitted that a stay should be entered with respect to the count of sexual assault, pursuant to the principles enunciated by the Supreme Court of Canada in R. v. Kienapple, [1975] 1 S.C.R. 729. The decision in Kienapple bars multiple convictions for two or more offences arising out of the same criminal act in circumstances where the essential elements of the offences cover the same wrongdoing. I am in agreement with their submission and the count of sexual assault will be marked stayed.

[66] There will be a number of ancillary orders.

[67] There will be an order under s. 490.013(2.1) of the Criminal Code to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for 20 years.

[68] I will also make an order pursuant to s. 109 of the Criminal Code prohibiting J.B. from possessing any firearms, ammunition, and other weapons as defined by the Criminal Code for 10 years.

[69] There will also be an order under s. 487.051 of the Criminal Code authorizing the taking of a sample of a bodily substance that is reasonably necessary for the purpose of forensic DNA analysis. Sexual interference is a primary designated offence under the Criminal Code.

[70] There will be a s. 743.21 order prohibiting communication with the J.M and T.M. while J.B. is in custody serving his sentence.

[71] There will also be an order under s. 161 of the Criminal Code, specifically prohibiting J.B. from:

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

(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where J.M. ordinarily resides;

(b) seeking, obtaining or continuing any employment, whether or not the employment is renumerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority toward persons under the age of 16 years;

(c) having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.

[72] As J.B. supports himself through Ontario Disability payments and otherwise has limited income, the victim fine surcharge will be waived.

[73] I thank both counsel for their assistance.

R. Maxwell J. Released: February 9, 2023