COURT FILE NO.: CR-21-40000181-0000
DATE: 20230515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
N.K.
B. Bovell, for the Crown
M. Reynolds, for N.K.
S.A.Q. AKHTAR J.
Introduction
[1] A jury found N.K. guilty of two counts of sexual assault, one count of sexual interference and one count of invitation to sexual touching. He now stands to be sentenced.
Background Facts
[2] The victim, S, was N.K.’s stepdaughter. S’s mother, M, began her relationship with N.K. when S was a young girl and they had two daughters together. The family lived at an apartment in North York.
[3] The sexual assaults started when S was in grade 3. Whilst her mother was at work, S would watch television on a mattress in the living room. N.K. would enter the living room and touch her breasts in a cupping motion over her clothing saying nothing as he did this. These assaults subsequently evolved into N.K. touching S’s breasts underneath her clothing.
[4] When S was in grade 4 the assaults became more intrusive. S would be lying on her back on the mattress and N.K. would sit on a chair, lay down on his side or stand nearby and start touching her vagina. S testified that he removed her underwear before rubbing her vagina in a circular motion. S testified that this happened on two occasions while she was in grade 4. The assaults would all occur at night and on the weekend when her sisters were at N.K.’s parents’ house and her mother was working.
[5] In grade 5, the assaults occurred once or twice a month. N.K. would touch S’s breasts and vagina whilst she was in the living room.
[6] The assaults grew more aggressive. When S was in grade 5, N.K. tried to insert his penis into her vagina as she was watching television in the living room. He began by touching her breasts and then removing her pants and underwear. He pulled down his shorts and spread her legs open with his hand holding his penis with the other. He lifted her body up and attempted to insert his penis into her. S told him to stop and he backed away.
[7] On another occasion, S testified that while she was lying on the mattress N.K. removed her pants and underwear and went to the bathroom returning with some Vaseline. He put some of the oil into her hand and placed it on his penis. He did not say anything but moved her hand up and down his penis until he ejaculated.
[8] There was another incident that occurred in grade 5 when N.K. tried to kiss her on the lips.
[9] S also testified that N.K. forced her to watch pornography, playing a disc on the living room television.
[10] S told no one about the assaults or this incident as she was scared that N.K. might hurt her.
[11] When she was in grade 6, S left the family home to live with her mother’s parents in Mississauga. She did not disclose the incidents and had no contact with N.K. whilst living with her grandparents.
[12] In grade 9, M left N.K. and the Jane Street apartment and came to live at S’s grandparents’ home. Even though M was now living with her S did not disclose the assaults to her mother because she wanted to be sure that the relationship with N.K. had ended.
[13] However, in the summer of 2018 N.K. again assaulted her whilst S was on a school break and her mother was working at Tim Hortons. N.K. came into the house when S was in the kitchen. He touched her breasts over her clothing using one hand. When S asked N.K. what he was doing, he laughed.
[14] In late 2019, S finally told her aunt and grandmother about what had happened before disclosing the assaults to her mother.
Positions of the Parties
[15] The Crown submits that the appropriate sentence in this case is 10 years imprisonment. She also asks that Count 1 – the sexual assault that occurred between January and December 2015 – be stayed pursuant to the principles in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. Crown counsel also asks that a number of ancillary orders be made including a s. 161 order placing restrictions on N.K.’s presence with persons under 16 years of age; a s. 109 weapons prohibition order for 10 years; and that N.K. be placed on an order pursuant to the Sexual Offender Information Registration Act for life. She also asks that a DNA order be made under the primary ground contained in s. 487.061(1) of the Criminal Code.
[16] The defence submits that the appropriate sentence is 3 years imprisonment and urges the court not to impose a s. 161 restriction banning N.K. from swimming pool areas. The defence takes no issue with the remaining ancillary orders.
Personal Circumstances
[17] N.K. is now 42 years old and was born in Great Diamond, Guyana. He came to Canada in 2001 with his parents and brother.
[18] He married his ex-wife, S’s mother, when he was 25 years old. As previously described, they share two daughters together. The marriage ended after 11 years.
[19] He has since remarried after meeting his current wife on social media. She currently resides in Guyana. They have no children together.
[20] N.K. graduated from middle school in Guyana. When he came to Canada he was unable to further his education due to family responsibilities. He began work soon after his arrival in Canada holding different positions in the labour force. In his pre-sentence report, it is noted that he was employed at a window company for several years before it closed and is currently unemployed receiving employment insurance.
[21] N.K. has a criminal record with one conviction for domestic assault on M which occurred after these offences. Accordingly, for the purposes of sentencing, the single entry will not be considered in my sentencing analysis.
The Range of Sentencing
[22] In seeking a 10-year sentence, the Crown points to R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, which held that the sentencing of offender who commit offences against children required the imposition of jail sentences at the higher end of the sentencing spectrum. There, the offender was in a relationship with victim’s mother whom he had met on an online dating website. On one occasion the offender told the victim’s mother to bring her sleeping daughter into the bedroom and both of them sexually abused her. The victim began to cry but the offender tried to force his penis into her mouth. The victim’s screams were heard by her mother’s friend who removed the victim from the bedroom. The offender threatened the victim’s mother to bring the child back or else he would tell her friend that she had sexually abused her one-year-old son. The offender pleaded guilty to sexual interference and attempted extortion. He had no prior record. The Supreme Court of Canada held that the appropriate sentence was 6 years imprisonment.
[23] At the outset of the decision, the court conveyed one of three overarching points of the reasons at para. 5:
[S]end 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 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.
[24] The court referenced the amendments made to the Criminal Code, in particular s. 718.01 which requires a sentencing court to give primary consideration to the objectives of denunciation and deterrence when sentencing an offender found guilty of committing abuse of a person under the age of 18.
[25] The court also made clear that prior precedents should be departed from to increase sentences for those who commit offences against children and that such offences should be punished more severely than offences against adults.
[26] At paras. 121-154, the court provided guidance on the factors to be taken into account to determine a fit sentence for sexual offences against children. The court explained that these factors were not exhaustive but included:
(a) Likelihood to reoffend
(b) Abuse of trust or authority
(c) Duration and frequency
(d) Age of the victim
(e) Degree of physical interference
(f) Victim participation
[27] Against this backdrop the Crown relies upon the following cases to support its position:
[28] R. v. A.S., 2023 ONSC 983: The accused was the victim’s uncle who sexually assaulted his niece 5 times when she was between the ages of 6 and 12. The sexual assault consisted of touching her breasts, vagina and buttocks. The judge found a breach of trust in the relationship and sentenced the offender to 7 years in prison. He had no criminal record.
[29] R. v. A.W., 2023 ONSC 4073: The offender was the victim’s uncle. The victim was between the ages of 3 and 5 when the offence occurred. The offender inserted his penis into the victim’s vagina 3 times. He did not have a criminal record and was sentenced to years in prison.
[30] R. v. G.S., 2023 ONCA 712, 431 C.C.C. (3d) 227: The offender, who had no prior record, was a family friend. He sexually assaulted the victim who was between the ages of 13 and 16 by penetrating her vagina with his penis on 3 occasions. He received a sentence of five and a half years.
[31] R. v. H.K., [2022] O.J. No. 6144: The offender sexually abused his daughter who was between the ages of 8 and 10 by rubbing his penis against her buttocks on multiple occasions, touching her vagina over and under her clothing and kissing her on one occasion. He had no prior convictions and received a 6-year sentence.
[32] R. v. M.S., 2022 ONSC 2279: The offender was a family friend who sexually assaulted three girls aged between 12 and 15 who were temporarily living with him. He attacked each of them whilst they were sleeping in their beds. He penetrated one of the victim’s vagina with his penis and attempted to penetrate the other two in the same manner. He also tried to get one of the victims to masturbate him. He rubbed his penis against another victim’s buttocks and touched her breasts. He had an unrelated conviction for fraud and received an 8 year sentence.
[33] R. v. M.K., 2016 ONCA 589: The offender was in a position of trust to the complainant who was between 13 and 19 years of age at the time of the offences. He engaged in kissing, fondling and partial intercourse with the complainant. He was convicted after trial and received a 7-year sentence.
[34] In contrast, the defence rely on the following set of cases to support their position:
[35] R. v. D.S., 2021 ONSC 3972: The offender, a close family friend, sexually assaulted the 13-year-old complainant on numerous occasions including trying to touch her breasts and legs whilst at the same time kissing her when driving her to the gym on four to five occasions. He also kissed her in her basement whilst she and her family stayed there. The offender had no criminal record and received a sentence of 15 months incarceration.
[36] R. v. O’Neill, 2022 ONSC 5025: The offender, a friend of the victim’s family, was convicted by a jury of one count of sexual assault and sexual interference. The offender employed the victim as a babysitter and digitally penetrated the victim when she was 12 years old during a single incident in the offender’s bedroom. The sentencing judge found no breach of trust in the circumstances of the case. The judge imposed a sentence of 18 months.
[37] R. v. G., 2023 ONSC 2990: The offender was found guilty of two counts of sexual interference against two victims, one of whom was his stepson and the other his step-nephew. The first victim was 8 to 9 years old and was assaulted when sleeping in his bedroom and awoke to find the offender performing oral sex on him. The second victim was also sleeping when he found the offender standing by his bed. The offender rubbed his erect penis on the victim’s bottom and attempted to touch his genitals through his clothing. The offender had no prior record and expressed remorse for his actions prior to sentencing. The sentencing judge found there to be a breach of trust and imposed an 18 month sentence.
[38] R. v. R.A., 2021 ONSC 7044: The offender was the victim’s stepfather. He sexually assaulted her when she was 11 years old, kissing her on the lips on 3 occasions and touching her vagina on a single occasion. The assaults took place in the bedroom shared by the offender and the victim’s mother. The offender had no criminal record and was self-employed. He was given a 2-year sentence.
The Victim Impact Statement
[39] The victim provided a Victim Impact Statement which detailed the consequences of N.K.’s actions. She described how she could not sleep and would pretend to act as if nothing had happened so that “people wouldn’t ask [her] what was wrong or if anything was going on with [her]”.
[40] She drifted away from her family, began to self-isolate, was starving herself at one point, and became disgusted with herself engaging in self-blame over what had been done to her.
Aggravating and Mitigating Features
[41] There are several aggravating factors in this case.
[42] First, s. 718.2(a)(ii.1) of the Criminal Code mandates the abuse of anyone under the age of 18 to be an aggravating circumstance at sentencing. In this case, the victim was between the ages of 8 and 14: Friesen, at para. 116.
[43] Second, this is a case of a clear breach of trust. The victim was N.K.’s stepdaughter. The courts have observed that the harm suffered is far more serious when the abuser is someone with whom the victim is in a close relationship: Friesen, at para. 126. The Criminal Code statutorily mandates this as an aggravating factor: s. 718.2(a)(iii).
[44] Third, the sexual offences resulted in serious consequences for the victim. Section 718.2(a)(iii.1) of the Criminal Code also makes clear that this is an aggravating fact. As I have already noted, the victim continues to live with the deleterious impact of the abuse she suffered.
[45] Fourth, the offences occurred over a significant period of time beginning in 2012 and continuing into mid-2018. I agree with the Crown that the hiatus in the abuse was a consequence of the victim moving out of the house. The victim testified that the abuse happened on a regular basis when she lived with the family.
[46] The nature of the sexual assaults was also significant. N.K. tried to penetrate the victim’s vagina with his penis and was thwarted only by the victim’s resistance. In addition, N.K. forced the victim to masturbate him to the point of ejaculation and repeatedly touched her vagina and body. N.K. also forced the victim to watch pornography with him.
[47] Finally, some of the assaults took place when S was sleeping at home. These two aspects were discussed in Friesen. The court held that sexual violence in the home is particularly harmful and abusing a child whilst they are sleeping attracts the need to impose a higher sentence because such victims are helpless.
[48] In mitigation, the offender had no criminal record at the time of the offences. He has the support of his family including his younger brother and sister-in-law both of whom described him as hardworking and kind as an individual in the pre-sentence report prepared for this hearing.
[49] I note that N.K. takes no responsibility for his actions nor expresses any remorse. This of course is not an aggravating factor. However, this means that N.K. does not obtain the benefit of the significant discount in sentencing that would otherwise accrue. The lack of responsibility also speaks to the limited nature of potential rehabilitation.
The Sentence
[50] Section 718 of the Criminal Code sets out the factors that a judge must consider when imposing a sentence. These emphasise balancing denunciation and deterrence with rehabilitation and promoting a sense of responsibility. Section 718.1 of the Criminal Code mandates that any sentence must be proportionate to the gravity of the offence and degree of the responsibility of the offender.
[51] This was a very serious offence committed by an offender who was in the position of trust. He assaulted S in the confines of her own home and the assaults continued over a number of years.
[52] The cases put forward by the defence are of little assistance in this case. Many of them, such as O’Neill and R.A., deal with only a single assault. R. v. G can also be distinguished because the offender expressed remorse for his actions.
[53] N.K. committed the assaults over a significant period of time and they increased in severity and intrusion. S was entitled to feel safe in the confines of her own home and N.K. deprived her of that security. The impact of these assaults cannot be understated. Denunciation and deterrence must play an important role in this sentence. However, I am also mindful of the need that the sentence cannot be so crushing as to remove any incentives for rehabilitation.
[54] I find that the appropriate global sentence in this case to be 7 years.
[55] The sentence is apportioned in the following manner:
Count 1 is stayed at the request of the Crown pursuant to principle in Kienapple
Count 2 - 7 years imprisonment
Count 3 (invitation to sexual touching) - 2 years concurrent
Count 4 (sexual assault) - 1 year concurrent.
[56] I also make the following ancillary orders:
- An order under s. 161 of the Criminal Code with the following conditions:
(a) N.K. is not to attend any public park, or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present or a day-care centre, schoolground, playground or community centre.
(b) N.K. is not to seek, obtain, or continue any employment, whether enumerated or not, or become a volunteer where it involves being in a position of trust or authority towards a person under the age of 16 years.
(c) N.K. is not to be within 200 metres of anywhere S is known to live, work, worship, attend school or otherwise known to be.
(d) N.K. is not to be in the presence of any person under the age of 16 unless in the company of a person over the age of 18.
A s. 109 order for a period of 10 years.
N.K. is to provide a sample of his DNA under the primary ground pursuant to s. 487.061(1).
An order under the Sexual Offender Information Registration Act making N.K. subject to the order for life.
S.A.Q. Akhtar J.
Released: 15 May 2024
COURT FILE NO.: CR-21-40000181-0000
DATE: 20230515
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
N.K.
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.