COURT FILE NO.: CR 20-021 (Walkerton)

DATE: 2023-07-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

-and-

A.W.

This judgment is subject to a publication ban under s. 486.4 of the Criminal Code prohibiting the publication, broadcast, or transmission, in any way, of any evidence that could identify the complainant.

D. Silvestro, for the Crown

D. Doney, for A.W.

Hearing: July 5, 2023 in Walkerton

Justice R. Chown

REASONS FOR Sentence

[1] The jury found A.W. guilty of two counts of sexual assault.

Positions of the Parties

[2] At the sentencing hearing on June 19, 2023, the Crown requested a custodial sentence of seven years on each count, served consecutively, for a global sentence of 14 years. The Crown also seeks a 20-year SOIRA order under s. 490.012, a s. 109 weapons prohibition for life, a DNA order under s. 487.051, and a non-communication order under s. 743.21.

[3] The defence proposed a custodial sentence of four to six years concurrent and did not oppose the ancillary orders sought by the Crown.

Principles of Sentencing

[4] Under the Criminal Code, s. 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.

[5] In this case, there is no dispute that denunciation and deterrence are of particular importance.

[6] Under s. 718.1, it is a fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Circumstances of the Offence

[7] Offences occurred between 2010 and 2013 when the male victim was age 3 to 5. The victim alleged anal intercourse occurred. The only witness for the Crown was the victim. The offender testified and denied the allegation. The offender’s wife testified in support of the offender.

[8] The offender was in a position of trust as the victim was his great-great nephew (the offender’s wife is the great aunt of the victim’s mother) and he babysat the complainant, and he was at the time of the offences alone with the victim.

[9] The jury was instructed as follows:

If anal intercourse occurred, it would qualify as the intentional application of force. You therefore simply need to focus on whether the Crown has proven beyond a reasonable doubt that anal intercourse occurred between [A.W.] and [the complainant].

If you are not satisfied beyond a reasonable doubt that [A.W.] had anal intercourse with [the complainant], you must find [A.W.] not guilty.

The jury’s verdict indicates that the jury concluded anal intercourse occurred.

[10] There were no medical records or reports of physical injury.

[11] In the PSR, the parole officer noted that the accused “acknowledges his involvement in the index offence.” He had not admitted it to his wife until after his conviction.

Circumstances of the Victim

[12] The victim provided a victim impact statement. He said he still thinks about the trauma on an almost daily basis. The abuse consumes his thoughts, and this has affected his relationship with others as well as his schoolwork. It has been hard for victim and his family to regulate their emotions. He has experienced anger, depression, and anxiety, and he was diagnosed with developmental trauma as a result of the abuse. He has been seen by a child psychiatrist and a psychologist and has been in counseling. The victim’s reaction echoes one of the themes in R. v. Friesen, 2020 SCC 9, at para. 56 and 58:

Sexual violence against children can cause serious emotional and psychological harm that, …, “may often be more pervasive and permanent in its effect than any physical harm.”

Sexual violence can interfere with children’s self fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity. [Citations omitted.]

[13] The court added, at para. 59:

In emphasizing the harmfulness of sexual offences against children, we do not intend to stereotype child victims of sexual violence as forever broken. To the contrary, it takes great “strength and courage” to survive sexual violence as a child. … Many victims go on to live healthy and meaningful lives with fulfilling and loving relationships. Offenders cannot rob children of their “strength, compassion, love for others and intelligence” and “resolve to take back their lives.” [Citations omitted.]

[14] I want to say here that I wish the very best for the victim and hope that despite the abuse he faced, he will go on to recover from it, to think of it less often, and to lead a healthy and productive future.

[15] The victim’s father also provided a victim impact statement. He has experienced anxiety, depression, suicidal thoughts, panic attacks and alcohol abuse. Perhaps most significantly, he has experienced a great deal of anger as a result of the crime. He smashed things including the walls of his house resulting in significant damage.

[16] The victim’s grandmother also provided a victim impact statement. She describes that her extended family has been changed because of the crime resulting in alienation of the extended family. The father’s and grandmother’s victim impact statements echo another of the themes found in Friesen, at para. 63:

The ripple effects of sexual violence against children can make the child’s parents, caregivers, and family members secondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents and caregivers’ trust in friends, family, and social institutions and leave them feeling powerless and guilty. The harm to parents’ relationship with their children can also be profound. For instance, children can react to the sexual violence by shutting their parents out of their lives. Parents and caregivers may also bear the financial, personal, and emotional costs of helping their children recover and cope with emotional and behavioural challenges. [Citations omitted.]

Circumstances of the Offender

[17] Offender is currently age 66.

[18] He was himself abused as a child by his older siblings but had not told anyone of this prior to the parole officer. This has not been independently confirmed.

[19] The offender attempted grade 9 but was unable to complete it. He worked as a chef for many years and this was something he would go back to when he was between other jobs. He worked in local factories, typically through an employment agency. He had secure employment for a period of 16 years at one local factory. He experienced a workplace injury and received government financial support in consequence of this.

[20] The offender is the fourth youngest of his twelve siblings. He told the parole officer who prepared the PSR that he was sexually abused by two older siblings from a young age and estimate that it began around the age of five and discontinued by the age of twelve of thirteen. One of the offender’s sisters could not confirm that but this sister was much younger.

Aggravating and Mitigating Factors

[21] An important principle that I must take into consideration is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence with the offender: CCC s. 718.2(a).

[22] Aggravating circumstances here include the following.

a. The victim’s young age. He was between 3½ and 5 years old. The victim in the Friesen case was four years old and the Supreme Court of Canada agreed with the trial judge that this was an “incredibly aggravating” factor (Friesen, at para. 170). Young children are exceptionally vulnerable. The moral blameworthiness of sexually assaulting such a young victim is very high. The offender here exploited the victim’s real vulnerability.

b. Abuse of a position of trust or authority. The Supreme Court in Friesen noted that there is a spectrum of trust relationships. It said, at para. 126, that a child “will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender.” It also said this “is likely to be the case in what might be described as classic breach of trust situations, such as those involving family members…” A breach of trust also increases the offender’s degree of responsibility and enhances moral blameworthiness.

c. The offender was convicted on both counts which means that the jury found the accused committed an assault on at least two occasions. This shows that the crimes were not a momentary lapse in judgment.

d. Degree of Physical Interference. The Supreme Court in Friesen, at paras. 138 to 139, acknowledged that the degree of physical interference is a recognized aggravating factor, that it reflects the degree of violation of the victim’s bodily integrity, and that greater physical interference increases the risk of harm. At the same time, the court emphasized, at para. 142, that courts “should not assume that there is any clear correlation between the type of physical act and the harm to the victim.” At para. 140, it cautioned against defining a sentencing range based on penetration or the specific type of sexual activity at issue. As I stated above, the jury’s verdict indicates that the jury concluded anal intercourse occurred. That is conduct that is intrusive in the extreme, especially when the victim is so young.

[23] The mitigating circumstances here include:

a. The offender’s lack of a relevant criminal record. His record is dated and does not include any sexual offences.

b. A history of relevant abuse in the offender’s family is sometimes found to be mitigating. This is particularly notable in child sexual offences where the offender was himself a victim of sexual abuse. This factor is present here.

[24] I do not think the offender’s brain injury is a mitigating factor in this case. The evidence about it and its impact on the offender is limited.

[25] I do not think remorse is a mitigating factor and in the following passage I will explain why.

Remorse

[26] The PSR indicates that the offender “expressed remorse for his actions.” It also states:

The subject often seemed more focused towards himself and his trauma and not remorse, insight, or empathy directly towards the victim(s) and the impact on the family. It appears the subject would digress to discussing the traumatic events during his childhood as though they were justifications and causality for his sexually deviant behaviour.

[27] When offered an opportunity to address the court, the offender said:

I’m well aware of what I’ve done. I was the adult, and regardless of what has happened in my life prior, I accept my guilt. I wish I could make it right for [the victim]. I’m sorry. And I’m sorry to the rest of the family. There’s no excuse for my behaviour.

[28] Mr. Doney submitted that there is evidence of remorse and that I should take this evidence into consideration.

[29] It has long been the case that when an offender is truly remorseful that can be a mitigating factor on sentence. The converse is not true. A lack of remorse is not an aggravating factor.

[30] A factor here that is relevant to the assessment of remorse is the offender’s trial conduct. He testified although he was not required to do so. In his testimony, he denied that the offences had occurred. He let his spouse testify in support of his version of the facts. He also denied having any homosexual tendencies and he denied any sexual attraction to children. However, in his interview with the parole officer for the PSR, he admitted each these things, and he admitted that he had denied the offence to his spouse. This means that he was not telling the truth to the jury or to his spouse and, it would seem, he has now acknowledged that he deliberately lied to the jury. It is counter-intuitive that this should not be treated as an aggravating factor, but the law is clear on this point, and it should not.

[31] I do not find it counter-intuitive that “continued protestations of innocence are not to be treated as an aggravating factor”: R. v. C.B., 2008 ONCA 486, at para. 57. If courts increased the sentence because the accused exercised his right to make full answer and defence, that would impair the right to make to full answer and defence and would impair the presumption of innocence: R. v. Valentini, 1999 CanLII 1885 (ON CA). For me, the counter-intuitive notion is that lying on the witness stand should be overlooked in sentencing. Intuitively, lying should not be considered part of the right to make full answer and defence.

[32] But on review of the jurisprudence, the concern is that if the law were to impose a harsher penalty because of the way an accused person conducts his defence, the response of accused persons who are innocent might be to attenuate their defence so as not to face an increased sentence. In 1990, Carthy J.A., speaking for the Ontario Court of Appeal, said the following in R. v. Kozy (1990), 1990 CanLII 2625 (ON CA), 74 O.R. (2d) 545 at 550:

Just as an accused should never apprehend that a penalty will flow from a plea of not guilty, there should also be no perceived impingement upon the manner of presenting the defence. This is so whether it be counsel’s viciousness in attacking a complainant or lies told by the accused. The latter may lead to its own penalty on a trial and conviction for perjury, but within the trial for the offence of sexual assault both rank as tactics of the defence, however ill-conceived, and they are embraced within the right to full answer and defence… In my view, any perceived impingement upon the manner in which a defence is to be conducted, such as a fear that a particular tactic might induce a heavier penalty, would impair the right to full answer and defence. [Emphasis added.]

[33] The jurisprudence also makes it clear that when an offender continues to maintain his innocence, this “cannot be converted into evidence that he lacks remorse or insight”: R. v. Yau, 2011 ONSC 1009, at para. 27. In Valentini, the Court of Appeal held:

The problem with treating lack of remorse as an aggravating factor is similar to treating the conduct of the defence as an aggravating circumstance. In this case, the lack of remorse appeared to rest on nothing more than the continued assertion of innocence in the face of a guilty verdict following a trial. To treat lack of remorse as an aggravating factor in those circumstances comes perilously close to increasing the sentence because the accused exercised his right to make full answer and defence.

[34] However, misconduct in the defence may negate remorse as a mitigating factor in that it will potentially be more difficult to discern the existence of remorse. The Alberta Court of Appeal held in R. v. Sawchyn, 1981 ABCA 173, at para. 34:

lt remains a valid principle that remorse, or indeed any other mitigating factor, justifies leniency; an accused who shows no remorse will, all other factors being equal, receive a higher sentence than an accused who does not. It is also a valid principle that an accused is not to receive a sentence higher than appropriate for the offence of which he has been convicted because of misconduct in his defence. In my view the two principles are not inconsistent. It is simply a fact that it will be much more difficult to perceive the existence of remorse where there has been misconduct in the defence. Where that occurs, and there is no other indication of remorse, an accused may lose the benefit of leniency arising from factors in mitigation. [Emphasis added.]

[35] In this case, despite the offender’s statement of remorse, it is not possible to see him as remorseful for what he did when he was prepared to lie to the jury to avoid the consequences of his actions, and when his statement of remorse came only after his conviction. I therefore do not accept remorse as a mitigating factor in this case.

Sentences Imposed in Similar Offences

[36] A further principle that I must take into consideration is that an offender’s sentence should be similar to the sentences imposed on similar offenders for similar offences committed in similar circumstances: CCC s. 718.2(b). This is often referred to as the principle of parity.

[37] Counsel have each provided me with sentencing decisions in cases involving sexual assault.

Case

Facts

Custodial Sentence

Crown

R v. Friesen, 2020 SCC 9

F subjected 4-year-old victim to sexual violence including attempted intercourse and attempted forced fellatio. He also threatened the victim’s mother by saying he would make an allegation that the mother sexually abused her one-year-old son.

6 years for sexual assault and 6 years concurrent for attempted extortion. The Supreme Court of Canada upheld the sentence but noted (at para. 169) that it was lenient.

Defence

R. v. B.W., 2022 ONSC 2399

33-year-old offender guilty of sexual abuse of stepdaughters ages 9 and 11

Sentenced for sexual inference in relation to one complainant and sexual interference, invitation to sexual touching, and making available sexual material in relation to other

Conduct included simulated intercourse penis to buttocks, licking vagina, digital penetration, inviting hand to penis touching with ejaculation

6 years

R. v. O’Neill, 2022 ONSC 5025

12-year-old complainant and roughly 40-year-old offender

Offender a family friend; complainant a babysitter for offender’s children

Conviction for one count of sexual interference arising from two incidents of digital penetration during a single incident in complainant’s bedroom while offender was intoxicated and complainant’s father lay sleeping nearby

18 months

R. v. P.S., 2021 ONSC 5091

2021 conviction for historic offence from 1988 when max penalty was 5 years

Approx. 38-year-old offender performed oral sex on male complainant (approx. age 15) on at least three occasions when he was in a position of trust toward him

2 years less a day plus one year probation

R. v. T.M., 2022 ONSC 4976

Four counts of sexual misconduct (sexual assault and sexual touching) against his teenage stepdaughter. The incidents including touching breasts, toughing vagina, and digital penetration

4 years global sentence

[38] There are some similarities in these cases to the facts of this case, but generally I do not think the cases provided by the defence are as serious as this case.

[39] On my own I have found three other cases that more closely resemble the circumstances here. I will review them in a moment because two of them are also instructive on the next issues I must consider, being the questions of whether the custodial sentence I impose should be consecutive or concurrent and the principle of totality.

Concurrent or Consecutive and the Principle of Totality

[40] The Crown submits that I should determine the appropriate sentence for each count and impose a sentence that should be served consecutively, as opposed to concurrently. The Crown points me to the passages of Friesen that deal with this, being paras. 155 to 156. The Crown submits that, although we do not know the extent of the separation in time between the two offences, the victim described that one of the offences occurred in the living room of the offender’s residence and the other in the bedroom. Thus, the Crown submits that this should not be considered “a single criminal adventure,” using the language in Friesen.

[41] The Supreme Court in Friesen did not deal with this issue in detail. What it said was:

While the issue warrants further discussion in another case, the general rule is that offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences.

[42] Immediately after that passage, the court dealt with the principle of totality, saying, at para. 157:

The principle of totality requires any court that sentences an offender to consecutive sentences to ensure that the total sentence does not exceed the offender’s overall culpability.

[43] Mr. Doney submitted, fairly, that to the extent it is possible to discern from the evidence, the appropriate conclusion is that the events were close together in time.

[44] Mr. Doney further submitted that the general practice in these cases is to make the sentence concurrent when the alleged offences are similar and close together in time. However, he did not point me to any authority for this position. Similarly, the Crown did not point me to any examples of cases similar to this one where the principle described in Friesen is applied and where the court imposed consecutive sentences.

[45] The only Ontario Court of Appeal case the Supreme Court points to on this issue is R. v. Ahmed, 2017 ONCA 76. That case contains extensive discussion about the issues of consecutive and current sentences and the principle of totality, but its usefulness is limited because it involved terrorism charges and the Criminal Code contains a specific provision about imposing consecutive sentences in terrorism cases. However, the case does contain several helpful passages. For instance, it says, at para. 91:

Concurrent sentences are typically imposed where the multiple charges are part of the same event or transaction, and are appropriate where the charges have a sufficiently close nexus, or where “the gravamen of the offences” is the same.”

[46] The court referred to the following passage of R. v. Jewell, 1995 CanLII 1897 (ON CA):

[T]he appropriate approach in cases such as the two under appeal is to first, identify the gravamen of the conduct giving rise to all of the criminal offences. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.

[47] The Court of Appeal recently returned to this issue and again relied on Jewell in R. v. Milani, 2021 ONCA 567, at paras. 37-38.

[48] Through my own research, I found two recent Ontario Superior Court of Justice cases helpful on this issue. The first is R. v. Puri, 2021, ONSC 6647, where the accused had abused one victim between his ages of four and seven and one victim between her ages of four to five. It is not fully clear but it appears the specific charges were one count each of sexual assault for each victim. The described conduct involved multiple sexual acts on multiple occasions including fellatio, anal penetration, masturbation. Roberts J. imposed a global sentence of nine years concurrent. On the issue of consecutive versus concurrent sentences and the principle of totality, she said:

I appreciate that the sexual abuse here involved two autonomous individuals, harming both in unique ways, with differences flowing from their different ages at the time of the abuse, the different abuse inflicted, and their different personalities and life experiences. However, the sexual abuse occurred in the same circumstances, at the same place, at similar times, and on occasion Robin and Sharon were together during the abuse. In addition, were I to impose consecutive sentences, I would have to artificially lower both sentences to reflect the principle of totality and ensure that the global sentence was no more than the 9 years

[49] This approach was followed by Schreck J. in R. v. M.S., 2022 ONSC 2279. That case involved sexual abuse of three young girls in their early teens. The abuse included intercourse, attempted intercourse, touching of their breasts and forcing them to touch his penis, as well as threats to each to ensure their silence. On five different counts, Schreck J. imposed sentences ranging from five to eight years and ordered that all sentences were to be served concurrently.

[50] I intend to take the same approach taken by Roberts J. and Schreck J. and impose a global concurrent sentence. Were I to impose consecutive sentences, I would have to artificially lower both sentences to reflect the principle of totality.

[51] I will add that I also found the Puri and M.S. cases helpful in addressing the issue of parity in that there are some factual similarities. One other case I want to mention that I found helpful on the issue of parity is R. v. Portillo, 2022 ONSC 2234. It involved a single charge of sexual assault, but the conduct involved multiple occasions of sexual abuse to a three- to five-year-old including attempted anal penetration and mutual oral sex. The court imposed a custodial sentence of eight years. There were certainly a number of distinguishing features in that case from the case here, but the basic conduct that resulted in the eight-year sentence had some real similarities to the conduct here.

Sentence

[52] [A.W.], please stand.

[53] Denunciation and deterrence of others are the most important objectives of sentencing in this case. A significant custodial sentence is required to denounce your conduct and to deter others from doing the same. What you did to the victim was callous, opportunistic, exploitative, and hugely intrusive. It has had and will have serious and ongoing repercussions for the victim and for his family.

[54] After considering the mitigating and aggravating circumstances and the applicable similar cases I have described, I have concluded that a fit and appropriate sentence is eight years in custody on each count, to be served concurrently.

[55] In addition, there will be a mandatory weapons prohibition order pursuant to section 109(1)(a) of the Criminal Code for ten years (and life with respect to prohibited weapons), and a mandatory DNA order pursuant to section 487.051(1) authorizing the taking of a DNA sample.

[56] There will also be an order under s. 743.21 of the Code prohibiting you from communicating, directly or indirectly, with the victim.

[57] In addition, pursuant to sections 490.011, 490.012(1) and 490.013(2)(b) of the Criminal Code, I make an order that your name be added to the Sex Offender Registry and that you comply with the Sex Offender Information Registration Act for 20 years.

Chown J.

Released: July 7, 2023