Court File and Parties

COURT FILE NO.: CR-827/21 DATE: 2023 08 24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Vickramjeet Aujla, for the Crown

– and –

H.P. Margaret Bojanowska, for H.P.

HEARD: June 23, 2023

REASONS FOR SENTENCE J.M. Woollcombe J.

Introduction

[1] On January 12, 2023, I found H.P. guilty of five counts of sexual offences in relation to his stepdaughter. He is to be sentenced [1].

[2] The parties agree that counts 1 and 2 (a count of sexual assault and a count of sexual exploitation) should be conditionally stayed, pursuant to the rules against multiple convictions for the same delict. This rule prevents an accused from being convicted of multiple offenses from the same conduct where the elements of the offence are substantially the same: R. v. Kienapple, [1975] 1 S.C.R. 729. Counts 1 and 2 will be conditionally stayed and H.P. will be sentenced on counts 3, 4 and 5, for sexual interference, invitation to sexual touching and sexual exploitation.

[3] The offences took place between June 1, 2018 and February 10, 2020 when the complainant was between the ages of 15 and 17 years old. Counts 3 and 4 cover the period when the complainant was under the age of 16. Count 5 is sexual exploitation after the complainant turned 16 in July 2019.

[4] The Crown seeks a sentence of six years. The defence submits that a conditional sentence of two years less a day, followed by three years of probation, should be imposed.

Circumstances of the offences

[5] The reasons for judgment, reported at 2023 ONSC 182, set out in detail the circumstances of the offences.

[6] In summary, beginning when the complainant, K.T. was 15 years old, her stepfather H.P. repeatedly came into her bedroom during the night and sexually assaulted her. He sexually touched her on her breasts and vagina, both over and under her clothing. He had her touch his penis, both over his underwear and directly, after he removed it. There was one instance of him digitally penetrating her and one instance in which he tried to force her to have sexual intercourse, which she successfully resisted.

[7] The offences began in the fall of 2018. At some point that fall, K.T. disclosed the sexual abuse to her mother. It continued. On November 3, 2019, the complainant surreptitiously recorded the accused in her bedroom. That recording was played at trial. It provided powerful confirmation of the offender sexually assaulting the complainant in the manner that she described.

[8] Unfortunately, even after the complainant played the recording for her mother, the abuse did not stop. In fact, it continued until February 10, 2020, when K.T. confided in a friend, who told her own mother. This led to the complainant providing a police statement and H.P. being arrested and charged.

Circumstances of the offender

[9] H.P. is 53 years old. He was born in Guyana and came to Canada in 1979, at the age of 7, settling and completing his schooling in Montreal. He spent two years in the Armed Forces before studying Police Foundations at Sheridan College and then working for Loomis. He now has his own successful business.

[10] H.P.’s first marriage lasted 6 years. He has a 20 year old son from that relationship, whom he supports financially and with whom he is close. In 2016, H.P married the complainant’s mother, and thus became stepfather to the complainant and her two sisters, who are triplets. He also has an 8 year old daughter, A.P., with the complainant’s mother.

[11] H.P. has no criminal record.

[12] H.P provided a letter respecting his health, written by a family doctor at a clinic where he has been a patient since April 2011. The letter indicates that he is suffering from the following medical problems: diabetes mellitus, dyslipidaemia, and fatty liver. The letter also says that he has been prescribed four medications. While the doctor offered to provide more information if requested, there are no further details respecting the nature of the medical issues in the letter. There is no additional medical evidence respecting the impact of these conditions on H.P., in either the short or long term. Nor is there any evidence as to his prognosis resulting from the enumerated conditions. On this evidentiary record, nothing can be inferred about the impact of H.P’s. health for the purpose of imposing sentence.

[13] The defence has provided 20 letters of support for H.P. from numerous family members, as well as friends and neighbours. Each letter begins with an acknowledgement that the author is aware that H.P. has been found guilty of sexual offences in relation to his step-daughter, K.T.

[14] The letters universally describe the offender in the most glowing terms, as an honest man and a person of integrity. He is characterized as a hard worker who is committed to providing for his family. He is painted as a loving and compassionate individual who cares deeply about a wide circle of people.

[15] For example, H.P. showed that he was a compassionate son by caring for his father at the end of his life. Similarly, in a letter dated June 18, 2023, his mother describes H.P. as a remarkable individual with a unique capacity for empathy and an unwavering commitment to his family. She described the various ways in which he has helped her as she has as dealt with her health issues in the seniors’ home where she lives. A “Patient Medical History Report” for her was provided for his mother, setting out that she has type 2 diabetes mellitus, hypertension and hypercholesterolemia and takes numerous medications. While not mentioned in her June 18, 2023 letter, at the sentencing hearing 5 days later, I was advised by counsel that H.P. now plans for his mother to move into his home so that he can care for her there.

[16] Many of the support letters detail what the authors perceive as H.P.’s caring, loving relationship with his three step-daughters, including the complainant. Repeatedly, comments are made by the authors that they have never seen the offender do anything inappropriate with any female, including the complainant. They say that they trust him completely, including with other girls and young women as he treats all people with the utmost respect, compassion and care.

[17] The defence provided a Father’s Day card from H.P.’s 8 year old daughter A.P., the complainant’s half sister. She wrote that her father is loving, caring, brave and smart and that she loves him. In a letter from A.P., she wrote that her father is her hero and that if he was gone far, she would cry all day and night.

[18] In addition to being described as deeply devoted to his family, the letters say that H.P. commits time to his community, donating to churches and giving food to the homeless. He is described as a deeply religious man who lives his life according to the principles of Hinduism.

[19] While expressly acknowledging the findings of guilt, the many letters filed in support of the offender extol his integrity, repeatedly saying that they would trust him with children as he has shown that he is trustworthy. To the extent that any of them weigh in on the relationship between H.P. and K.T., they all say that it was entirely positive, and that what they observed of K.T.’s behaviour towards H.P. fully demonstrated that. Implicitly, the authors seem to suggest that they would have seen or known if there was anything happening between H.P. and K.T., other than the loving relationship they observed.

[20] It is impossible to reconcile the person described in glowing letters of support with the reality of what I found, beyond a reasonable doubt, that person did to K.T. It is striking that not one of the letters acknowledges the profound damage that H.P. has caused to the victim. Not one recognizes that there is vast chasm between their description of H.P. and the reality of what he was secretly doing in K.T.’s bedroom. None of these people seems to even allow for the possibility that there is a side to H.P. of which they were unaware and which he kept hidden from everyone. While I accept that none of the authors of these letters observed or were aware of the sexual abuse inflicted by the offender on K.T., that is emblematic of the insidious nature of familial sexual abuse of children. H.P. effectively portrayed himself to everyone but his victim as a person beyond reproach, while he engaged in prolonged soul-destroying conduct toward K.T., a child for whom he was in a position of trust.

[21] I acknowledge H.P. is still perceived by all who know him as a caring and compassionate man and that he has the widespread support of his family and community. This, of course, is very positive. But, it is troubling that many of H.P.’s strong supporters appear not to really accept that he engaged in long-standing sexual abuse of K.T.. To the extent that they do, they show a complete lack of empathy for her or insight into the devastating effect that this has had on her, her sisters, her family and her community. Their support and views of H.P. must be assessed in light of this: R. v. Profit, [1993] 3 S.C.R. 637.

[22] In preparation for sentencing, the defence has had a Risk Assessment Report prepared by Vincent Murphy, a psychologist who met with H.P. over three sessions following conviction. The purpose of the Report was to provide information about his risk and to make recommendations to support any treatment initiatives that might be recommended.

[23] Significant testing was done of H.P., including of his cognitive abilities, attention control, personality and emotional development and of his risk for re-offending.

[24] The Report concludes that the offender’s cognitive profile shows average learning potential with good verbal-conceptual and logical-analytic reasoning skills. There are weaknesses in executive functioning and in working memory, but his reasoning capacity, general background knowledge and processing speed are age appropriate.

[25] H.P.’s attention controls revealed no evidence of inattention, hyperactivity or impulsivity.

[26] H.P.’s personality and emotional development, as revealed in the self-analysis, showed that he was optimistic, able to concentrate and had fairly positive motivation. He was not identified as being overanxious.

[27] There were multiple different testing and scoring assessments for risk. The author notes that the offender continues to deny committing the offences for which he has been found guilty.

[28] The author reviews the various testing and results. H.P.’s results put him at a low risk of general re-offending, as indicated by the multiple tests. The testing to evaluate the risk of sexual violence and to provide information on risk puts him at low to moderate risk of re-offending. His Sexual Violence Risk-Number 20 Version 2 (SVR-20 V2) assessment evaluated his risk rating as “low to moderate” noting that “there is concern because of the extent of Mr. P.’s denial of any of the charges”, but notes that there has never been any suggestion of other victims. H.P.’s SORAG (Sex Offender Risk Appraisal Guide) score, used to predict violent sexual recidivism, puts him at a low risk of any re-offending. Finally, his Hare Psychopathy Checklist (PCL-R) scores “indicate a very low level of psychopathic traits, other than a certain superficial charm and lack of guilt because he does not acknowledge having committed the offences”.

[29] Overall, Dr. Murphy concludes that H.P.’s scores place him at the very lowest level of risk, noting that he has no deviant sexual history, no prior involvement in criminal activity, no connection with criminal associates, and no history of alcohol or drug abuse. The only factors that could raise his level of risk are the fact he does not acknowledge guilt and lacks empathy for the victim. His risk of recidivism is exceedingly low.

Victim Impact

[30] The complainant, her father, her paternal aunt, and her two sisters (jointly) provided Victim Impact Statements.

[31] K.T. read her statement at the sentencing hearing. This was extremely challenging for her, as evidenced by the fact that she was able to read only a sentence or two at a time before becoming overwhelmed with emotion and unable to continue. While she appreciated that she was under no obligation to continue, it was obvious that she needed to articulate in court precisely how she felt H.P.’s offences have affected her.

[32] The impact of these offences on K.T. has been nothing short of devastating. She poignantly described how he took advantage of her when she was only 15, stealing her innocence and manipulating her by telling her that she liked it. She felt that she could not tell anyone about it or she would be disbelieved. She felt betrayed by both the offender and by her own mother, in whom she confided, and who failed to protect her. She described herself as feeling trapped and no longer like a human being. The abuse affected her ability to sleep and to perform in school. It hurt her physically.

[33] K.T. continues to suffer. She lost a year of school and continues to struggle with school. She continues to be scared that something bad is going to happen to her. Memories of the abuse haunt her. She experiences flashbacks that come back to her and steal her joy. She has been diagnosed with PTSD, panic disorder and depression, all flowing from the abuse. She does not feel safe. She cannot be affectionate with anyone, as affection triggers her memories of abuse. She has seen a childhood sexual abuse trauma therapist to help her function and sees a psychiatrist for medication. She describes having “lost” both her mother and her half sister, A.P.

[34] While she is motivated to grow and move forward, it is very difficult for her. K.T. describes herself as having pulled herself “out of the gutter”. She says that she has chosen to fight back and to stand up for what is right, She will not let the abuse define who she is. Remarkably, she has started her own charity, called Stand Up and Speak Up, or SUP, so that no other victim feels as alone as she did.

[35] The complainant’s sisters eloquently described the effects that the abuse has had on K.T., their triplet, and on them. They feel guilty, angry and sad that they were not able to protect her when she was living in Canada and they were with their father in the US. They are infuriated by the manner in which H.P. breached K.T.’s trust in her own home. They describe K.T. as the strongest person they know. They speak of how hurt and sad they are that the offender has put K.T. through this pain and trauma. They express their pride in their sister for standing up and speaking up about what happened to her.

[36] K.T.’s father wrote in his Victim Impact Statement about how devastated and distraught he felt upon learning what had happened to his daughter. He described how hard it is to watch K.T. experience flashbacks and to break down crying. He described in detail the emotional, financial and long terms effects that this abuse has had, and will continue to have on K.T. as she tries to heal and seeks therapy in the hope of being able to return to any kind of a normal life.

[37] K.T.’s aunt, a physician, similarly described the enormous impact that the abuse has had on K.T. She highlights the fact that any physical affection causes her niece to experience flashbacks and to be re-traumatized. She also sets out how difficult the trial was for K.T., who had to describe the traumatizing incidents she went through before people whom she felt had betrayed her. Her aunt describes the pride she felt as K.T. was able to testify in front of the offender about what he had done to her. But she also explains that after the trial, K.T. exhibited signs of PTSD as she had flashbacks to the court proceedings, which triggered panic attacks and nightmares. While the family continues to try to monitor and support K.T., they know that nothing can undo the abuse of trust and that all of their lives are forever changed.

Positions of the Parties

[38] The Crown seeks a sentence of 6 years incarceration as well as ancillary orders including:

• A DNA order pursuant to section 487.051 of the Criminal Code of Canada (“Code”);
• A non-communication order while in custody pursuant to section 743.21(1) of the Code in relation to the following individuals: K.T. or any members of her immediate family, except A.S. (his wife);
• A SOIRA order for 20 years pursuant to 490.012(1) and 490.013(2.1) of the Code;
• A 109 weapons prohibition order for life;
• A 161 order with specific prohibitions.

[39] The defence position is that in what are said to be the exceptional circumstances of this case, a conditional sentence for two years less a day followed by a term of three years probation is appropriate. The defence resists the imposition of a SOIRA order and the imposition of most of the terms sought by the Crown pursuant to s. 161 of the Code.

Analysis

[40] Sentencing begins from the principle that the sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender. This principle is codified as the “fundamental principle” of sentencing in s. 817.1 of the Code. Sentencing judges must also consider the principle of parity, codified in s. 718.2 (b) of the Code. Sentencing ranges, while of assistance, are guidelines and not hard and fast rules: R. v Friesen, 2020 SCC 9, at paras. 30-32; 37; R. v. Lacasse, 2015 SCC 64, at para. 60.

[41] Offences against children are particularly serious. Section 718.01 of the Code requires courts sentencing for offences involving the abuse of trust of children to give primary consideration to the objectives of denunciation and deterrence.

[42] Section 718.2 of the Code identifies the following factors as elevating the gravity of an offence, each of which is applicable in this case:

• evidence that the offender, in committing the offence, abused a member of the offender’s family (718.2(a)(ii);
• evidence that the offender, in committing the offence, abused a person under the age of eighteen years (718.2(a)(ii.1);
• evidence that the offender, in committing the offence, abused a position of trust in relation to the victim (718.2(a)(iii);
• evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation (718.2(a((iii.1).

[43] The principles guiding the imposition of sentences in cases involving sexual abuse of children are set out in Friesen. One of three overarching points made by the court in that case was set out in paragraph 5:

Third, we 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 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.

[44] In determining a fit sentence in this case, I have considered the following directions from the Supreme Court of Canada in Friesen:

• Sentencing must reflect the wrongfulness of sexual offences against children and the profound harm that they cause. Wrongfulness and harmfulness impact both the gravity of the offence and the degree of responsibility of the offender: Friesen, at paras. 50, 75;
• When reflecting the gravity of the offence, courts must do more than merely state that the offence is serious. The sentence must reflect the normative character of the offender’s actions and the consequential harm to children, their families and communities. This requires consideration of: the inherent wrongfulness of the offences, the potential harm to children from the offences and the actual harm children suffer from the offences: Friesen, at paras. 76-86;
• Sentencing must also reflect the degree of responsibility of the offender. Intentionally applying force of a sexual nature against a child is highly morally blameworthy conduct because the offender is or should be aware that this can profoundly harm the child: Friesen, at paras. 87-91;
• Sentencing for sexual offences against children must recognize that the protection of children is one of the most fundamental values in Canadian society. Children are most vulnerable when they are at home and with those they trust. Sexual violence can be invisible to others, and is often perpetuated in private, where it is hidden and unreported or underreported, allowing it to continue unchecked: Friesen, at paras. 65-67;
• Sexual offences against children can interfere with their self-fulfillment, and healthy and autonomous development to adulthood. It can “permanently alter the course of a child’s life”: Friesen, at para. 58;
• Sexual violence causes additional harm when it is committed by a member of the family who breaches a trusted relationship. Further, when a victim is disbelieved by a parent who takes the side of the perpetrator, the child is further traumatized by being disbelieved and families can be torn apart. Victims lose trust in their families and may withdraw from them. This “ripple effect” damages children’s other social relationships, including their ability to trust their communities, make friends, go to school and trust others. Moreover, the ripple effect may also cause the victim’s family, including parents and siblings, to suffer profound harm from the offence, leaving them feeling powerless and guilty: Friesen, at paras. 50, 58-63;
• Beyond the harm to victims and families, sexual violence against children causes broader harm to the communities in which children live and to society as a whole. The costs of these harms are enormous: Friesen, at para. 64;
• Parliament’s recognition of the profound harm that sexual offences cause to children is reflected in the decision to increase maximum sentences and to prioritize in the Code the principles of denunciation and deterrence: Friesen, at paras. 95-105.

[45] The range of sentence for sexual abuse of children was addressed in Friesen, where the court held, at paragraph 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 circumstances.”

[46] Both counsel have provided a number of sentencing cases to assist in deciding what is fit in this case. The cases provided have varying degrees of similarity with the facts in this case. Sentencing is, of course, an individualized process, with no two cases identical. Of the many cases filed, I find most helpful:

• R. v. T.K.N., 2023 ONCA 488. The Court of Appeal very recently affirmed a sentence of 6 ½ years for sexual interference. There had been 5 to 6 acts of intercourse by the 26 year old first offender against a 13 or 14 year old victim to whom he stood in a position of trust. The offence involved grooming and took place in the child’s home. The Court reiterated, at para. 19, the principle from Friesen that mid single digit penitentiary terms for sexual offences against children are normal, even if there is only one victim;
• R. v. R.I., 2022 ONSC 1615. The offender abused his 10 year old step-daughter more than four times over a period of 10 months. He had a criminal record. In mitigation were the fact that he had a difficult upbringing. He was sentenced to 4 years;
• R. v. T.M., 2022 ONSC 4976. The offender was found guilty of four counts of sexual abuse of his teenaged step-daughter, beginning when she was 12 or 13. It included touching and progressed to digital penetration. The offender was a 51 years old with no criminal record and a supportive family. A Risk Assessment Report concluded he was at low risk of re-offending if he continued to address his underlying mental health issues. He was sentenced to 4 years less pre-sentence custody;
• R. v. T.J., 2021 ONCA 392. The Court of Appeal overturned the 9 month sentence imposed by the trial judge, finding it demonstrably unfit, and held that a fit sentence for this first offender would have been 2 years. There had been one incident of the offender having the 6 or 7 year old place her hands on his penis;
• R. v. M.G., 2023 ONSC 2990. A jury found the offender guilty of two counts of sexual interference against two victims, in the 1990’s when they were under the age of 14. One victim was his cousin and the other was a step-nephew. The Crown and defence jointly proposed the imposition of a conditional sentence. The trial judge rejected the joint position finding that a conditional sentence for sexual interference could only be justified in quite exceptional circumstances, which were not present. He found that a sentence of two years “would fall towards the lower end” of the acceptable sentence but that having the offender serve it conditionally would be outside the normal range. He imposed a sentence of 18 months.
• R. v. Gunaratnam, 2021 ONSC 8270, [2021] O.J. No. 7194. The offender was convicted of two counts of touching his niece for a sexual purpose in the late 1980s and early 1990s when she was between the ages of 7 and 12 or 13. After that, he pleaded guilty to one count of sexual interference in British Columbia in relation to a family friend in 2007 or 2008 when she was 13. The offender was 60 and had no record. He admitted to his crimes and claimed to be remorseful. Noting that a conditional sentence would usually be inappropriate, the trial judge acceded to the joint position for a conditional sentence.

Aggravating Factors

[47] There are a number of significant aggravating factors present in this case:

• These offences have had a profound and devastating effect on the complainant K.T.. The harm to her includes both physical pain and the enormous psychological and emotional impact to her. There is significant evidence of actual harm: Friesen, at paras. 50-59; 85;
• The offences have also had a far-reaching ripple effect in that the impact of the offences has been deeply felt by her triplet sisters and father: Friesen, at paras. 62-63;
• The offences have torn the complainant’s world apart. She has lost her mother, who failed to come to her aid and protection when told of the abuse. She has also lost her relationship with her half-sister, A.P. The letters of support filed by the offender reveal that H.P.’s family and K.T.’s mother’s family also strongly support the offender, and appear to have little empathy for her, meaning that she seems to have lost all of her family on her mother’s side: Friesen, at para. 60;
• H.P. was K.T.’s step-father, who stood in a position of trust towards her. Not only is this a statutorily aggravating factor, but it increases the harm to the complainant and the gravity of the offence. His offences reveal a shocking and continuing breach of trust in that he went into the victim’s bedroom during the night to abuse her in a place in which she should have been safe and secure: Friesen, at paras 65-68, 128, 178;
• The sexual offences lasted over a period from June 2018 to February 2020, a protracted period for an adolescent victim There were multiple incidents of abuse. The frequency and duration of the abuse is an aggravating factor and one that distinguishes it from many of the cases relied upon by the defence: Friesen, at paras. 131-133;
• H.P. acknowledged that his wife played the recording made by K.T. of what I have found was a sexual assault. He knew, therefore, that what he was doing to K.T. had upset her so much that she had shared the audio-recording with her mother, who asked him about the kissing. Despite this, he denied to his wife that he was doing anything wrong to K.T. and continued to abuse her in what must be viewed as bold acts of opportunism;
• The complainant was only 15 when the abuse began. She was young and naïve and, as she says, had her childhood robbed from her. Courts must be mindful not to impose a disproportionately low sentence when the victim is an adolescent, rather than a younger child. Sexual offences committed on adolescent victims are associated with higher rates of suicide and substance abuse. This a case in which the complainant turned to substances to numb her pain and considered suicide: Friesen, at paras. 134-136.

Mitigating Factors

[48] At the same time, there are important mitigating factors here:

• H.P. has an absence of any criminal history;
• H.P. has, apart from the commission of these offences, led a pro-social life in which he contributed to his family and community;
• H.P. has a history of steady employment and of providing for his family;
• H.P. has been assessed as at low risk of re-offending, including of committing any further sexual offences. His low likelihood of re-offending is relevant both to the need for a sentence to protect vulnerable groups such as children from harm and to the objective of rehabilitation: Friesen, at paras. 122-124;
• H.P. has the support of the community including his extended family, his wife’s family, and friends. This increases his prospects for rehabilitation and reintegration into the community.

A conditional sentence is not appropriate

[49] Section 742.1 of the Code provides that a conditional sentence may be imposed if the sentence imposed is less than two years and if the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental principles of sentencing set out in ss. 718 to 718.2.

[50] Since Friesen, the Ontario Court of Appeal has been clear that offences of sexual violence against children call for a sentence of incarceration and that conditional sentences will rarely be appropriate. Their availability is limited to “exceptional circumstances that render incarceration inappropriate”, such as where it would give rise to a medical hardship that could not be addressed within a correctional facility: R. v. M.M., 2022 ONCA 441, at para. 16; R. v. B.M., 2023 ONCA 224, at para. 2.

[51] The defence position is that this is an exceptional case in which a conditional sentence should be imposed. Having considered the factors relied upon by the defence, I do not agree that the case is exceptional. I note:

• The offender’s 8 year old daughter will, if her father is incarcerated, lose him for the time he is in jail. There is no doubt that this will be difficult for her, but it does not make the circumstances exceptional;
• The defence says that incarceration will mean that the offender will lose the business that he has spent 23 years building successfully. I accept that he has built a successful sole proprietorship trucking business. The submission is made that it will fail if he goes to jail. It is not clear to me why, in the period since he was found guilty in January, 2023, H.P. has not or could not have taken steps to ensure the continuation of his business while in jail. Counsel says that it would not be possible. No evidence or details were provided to support this, making it a very difficult submission to assess fairly. Even assuming that there is no alternative to him shutting down the business, it is my view that building a successful business that no one else can manage or operate were there to be a jail term is not an exceptional circumstance that warrants the imposition of a conditional sentence;
• The defence further submits that although H.P.’s wife is employed full time (her pay stub indicates a monthly gross salary of $3,175 or an annual salary of $38,100), her earnings will not enable her to maintain the household and that because they have a significant mortgage, they will lose the home in which they live. The mortgage statement provided indicates that the monthly payment is $4,449.11 and that they have an outstanding balance in excess of $900,000. I am advised that they sold their previous home to release funds to pay counsel and that their current home was purchased in 2021. The submission is made that it would not be fair for 8 year old A.P. to lose both her father and her home. The family made a 2021 decision to assume a $920,000 mortgage with monthly expenses that could not be covered were the offender to be incarcerated. I am not persuaded that the result of this decision, made when they must have appreciated that H.P.’s incarceration was a realistic possibility, creates an exceptional circumstance justifying a conditional sentence;
• While the offender’s mother has been living in a senior’s home, I was advised at the sentencing hearing that there was a new plan for her to move in with the offender. No evidence was tendered as to why this had become necessary immediately prior to the sentencing hearing or what alternatives there might be for her to be cared for were the offender incarcerated. It was unclear why she could not live with the offender’s wife even if he were incarcerated. Given the evidence, and absence of evidence, and the circumstances surrounding the evolution of this new plan on the eve of sentencing, it is not an exceptional circumstance warranting the imposition of a conditional sentence.

[52] Even if individually these factors do not support the imposition of a conditional sentence, the defence submits that cumulatively, they do. The submission is made that the combined circumstances of his 8 year old daughter A.P. losing her father and her home, H.P. losing his business, the offender’s mother being unable to live with him and the outstanding history and character letters supporting H.P. mean that a conditional sentence should be imposed for this first offender.

[53] For three reasons, I have concluded that a conditional sentence is not appropriate.

[54] First, in my view a sentence in the range of two years less a day is just too low and outside of the appropriate range of sentence for these offences in these circumstances, even with an offender who has no record and has otherwise led an exemplary life and is at low risk of re-offending. Two years less a day falls well short of the “mid single digit penitentiary” term called for in Friesen and the direction for these sentences to go up. The many cases I have reviewed strongly suggest that the appropriate range of sentence in this case is a significant penitentiary term. Absent reformatory time being fit, a conditional sentence is off the table.

[55] Second, while that the collateral consequences of incarceration (such as losing a business or home) can properly impact the sentence imposed, the sentence imposed must be proportionate to the gravity of the offence and degree of responsibility of the offender: R. v. Kanthasamy, 2021 ONCA 32 at para. 9. Cumulatively, the collateral and mitigating circumstances do not make a reformatory sentence fit.

[56] Third, even were a sentence in the reformatory time appropriate, I do not think the submissions made by the defence and the circumstances that I have set out make this case so exceptional that a conditional sentence could be fit. I observe that there was no case provided post-Friesen in which a conditional sentence was found to be appropriate in similar circumstances, except Gunaratnam, which followed a joint position of counsel.

Conclusion as to a fit sentence

[57] The criminal justice system and the imposition of sentences cannot, alone, solve the problems of sexual abuse of children. However, it is one important mechanism that Parliament has chosen to protect children from sexual violence to hold perpetrators accountable and to communicate the wrongfulness of sexual violence against children: Friessen, at para 45.

[58] The sentence imposed must give primary consideration to denunciation and deterrence. It must give meaningful effect to the gravity of the offences committed by H.P, and to the severe and ongoing harm that he has caused to his step-daughter, whose trust he breached, and to all of those impacted by the ripple effect.

[59] I have concluded that a fit sentence for H.P. is four and a half years. I break this down:

Count 3 – 4 ½ years Count 4 – 4 ½ years concurrent Count 5 – 4 ½ years concurrent

Ancillary Orders

[60] I turn now to consider the ancillary orders sought by the Crown which are unopposed or on consent:

• First, a DNA order under s. 487.051 of the Code is unopposed and is made;
• Second, an unopposed order is made that H.P is prohibited, pursuant to section 743.21(1) of the Code, from communicating directly or indirectly while in custody with K.T. or any members of her immediate family, except A.S.;
• Third, an unopposed s. 109 weapons prohibition order for life is made.

[61] The Crown also seeks a SOIRA order for 20 years pursuant to ss. 490.012(1) and 490.013(2.1) of the Code. The offender applies under s. 24(1) of the Charter for an exemption from the requirement that he register under the SOIRA as is required by s. 490.012(1). H.P. would have been subject to a lifetime SOIRA order under s. 490.013(2.1) as he has been found guilty of more than one designated offence. However, in R. v. Ndhlovu, 2022 SCC 38, the Supreme Court of Canada struck down s. 490.012 and 490.013 of the Code as they were found to infringe s. 7 of the Charter. The declaration that s. 490.012 was of no force or effect was suspended for one year and applies prospectively. The declaration for s. 490.013 (2.1) was immediate and applies retroactively, such that lifetime SOIRA orders are not available.

[62] The defence seeks the exemption on the basis that H.P. is at low risk of re-offending and that granting him a remedy would not undermine the purpose of the suspension of invalidity.

[63] The Crown acknowledged that an individual like H.P. may be granted an exemption from the SOIRA registration requirement. The Crown says that granting the exemption requires the offender to demonstrate that the registry bears no relation to or is grossly disproportionate to the objective of s. 490.012 of the Code and that granting the exemption would not undermine the purpose of suspending the declaration of invalidity.

[64] In Ndhlovu, the Supreme Court accepted that the purpose of the mandatory registration system required under SOIRA is to capture information about offenders that may assist police prevent and investigate sex offences. The purpose of the lifetime registration is to give police a longer period of access to information on offenders at greater risk of reoffending: Ndhovu, at paras. 73-76. The Court concluded, however, that mandatory registration is overbroad and violates s. 7 because it captures offenders who are not at an increased risk to reoffend. Lifetime registration (as is required for those convicted or more than one sexual offence) is also overbroad because it captures some offenders who are not at a relatively greater risk of reoffending because, for example, their two offences were committed in a single transaction: Ndhovu, at paras. 112-115. The Court found that the legislation was not saved under s. 1 of the Charter.

[65] For H.P to be granted the individual exemption sought as a s. 24(1) remedy, he is required to establish:

(1) That subjecting him to the mandatory registration requirement under the SOIRA would constitute a breach of his Charter rights; and (2) That granting him an individual remedy would not undermine the purpose of suspending the s. 52(1) declaration.

[66] In other words, H.P. must show that the imposition of the SOIRA order in his particular circumstances is grossly disproportionate or bears no connection to the purpose of assisting police in the prevention and investigation of sexual offences. See: R. v. Albashir, 2021 SCC 48, at para. 67; R. v. K.S., 2023 ABKB 363, at paras. 104-105; R. v. Shokouh, 2023 ONSC 1848, at para. 23; R. v. Riossi, 2023 ONSC 3812, at paras. 143-144.

[67] The defence does not submit that a requirement for H.P to register would be grossly disproportionate. Rather, the argument is made that because he presents a very low risk of re-offending, requiring him to register has no connection to the purpose of assisting police in the prevention and investigation of sexual offences.

[68] There have been a number of decisions in which courts have granted s. 24(1) exemptions where offenders have been found to be at very low risk of re-offending and the personal exception has not undermined the purpose of the suspension of invalidity: Shokouh, at paras. 24-29; T.S., at paras. 17-18; R. v. Addo-Binney, 2023 ONSC 547, at para. 21; R. v. Levesque, 2023 CM 2001, at paras. 99-106.

[69] The only evidence before me is that H.P. poses a low risk of re-offending. While the Crown is concerned that he did not stop his sexual abuse of K.T. when she reported it to her mother and his wife twice confronted him about it, the evidence as to what was said to H.P. by K.T.’s mother after she first reported the abuse is not clear. I agree with the Crown that after the mother played for H.P. the recording K.T. had made, he denied any wrong doing and then continued to abuse K.T. This certainly aggravates the circumstances and increases the gravity of the offences committed. It does not, however, undermine the Risk Assessment Report that was prepared.

[70] I cannot conclude that H.P. poses anything other than a low risk of re-offending, having considered all of the areas considered by the Risk Assessment Report. While there is no evidence of the offender having any remorse, insight or empathy into his behaviour, he is not required to accept responsibility for the offences for which he has been found guilty. Though the Report recognizes that this may increase his risk, it is the one and only reason given for any concern whatsoever about the risk he poses.

[71] Given the low level of risk posed, his registration under the SOIRA is unlikely to ever prove useful to the police in investigating or preventing sexual offences. Requiring him to register, as was the case in both Ndhlovu and Shokouh, subjects him to reporting requirements that do not advance the objectives of the SOIRA. Granting him the s. 24(1) remedy would not, in my view, undermine the purpose of suspending the declaration of invalidity, which was to ensure that those at high-risk of re-offending would be ordered to register as sex offenders. With H.P.’s low risk of re-offending, the exemption is justified.

[72] H.P.’s application for an individual remedy, exempting him from the suspension of the declaration of invalidity of s. 490.012 of the Code, is granted. He is not required to register under the SOIRA.

[73] Finally, the Crown seeks various orders under s. 161 of the Code for 10 years including prohibitions:

• Under s. 161 (a) an order that the offender is prohibited from “attending a public park or public swimming pool or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre”;
• Under s. 161(a.1), an order that the offender is prohibited from attending within 2 km of the victim’s residence or any place where she is known to be;
• Under s. 161 (b) – an order that the offender is prohibited from seeking employment or volunteer positions involving positions of trust towards persons under 16 years old; and
• Under s. 161 (c) – an order that the offender is prohibited from communication with any persons under the age of 16, unless under the supervision of a person whom the court considers appropriate.

[74] As was recently set out by the Court of Appeal in R. v. J.B., 2022 ONCA 214, at paras. 52-57, when an offender is convicted of certain sexual offences involving children under the age of 16, the sentencing judge has discretion to prohibit the offender from engaging in a variety of everyday conduct upon release into the community, subject to any conditions or exemptions the judge considers appropriate. These restrictions are intended to protect children from sexual offenders. There is no requirement for there to have been related convictions. Nor is there any requirement for the offences to have been committed in the circumstances contemplated by the order. What is required is an evidentiary basis upon which to conclude that the particular offender poses a serious risk to young children and that the terms of the order are reasonable attempt to minimize it.

[75] This was underscored in the Court of Appeal decision in R. v. Schulz, 2018 ONCA 598, leave to appeal denied , at para. 41, where the Court held that:

The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. J. (K.R.), 2016 SCC 31, [2016] 1 S.C.R. 906 (S.C.C.), at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and the content of the order must respond carefully to an offender's specific circumstances: J. (K.R.), at paras. 48-49.

[76] The order prohibiting the offender from attending withing 2 km of the victim’s residence or any place she is known to be is consented to by the offender and is appropriate. That order, under s. 161 (a.1) is made for 10 years.

[77] Whether to make an order prohibiting H.P. from attending public places where children under 16 are likely to be, and prohibiting him from seeking employment or volunteer positions involving persons under the age of 16 are both opposed. The defence submits that H.P. is at low risk of committing further offences and that such orders would prevent him from engaging with his daughter A.P. at various locations she is likely to attend after his release from jail.

[78] H.P.’s offences were opportunistic acts of abuse of trust committed against a vulnerable child. Despite the low risk he poses of re-offending, it is entirely appropriate to minimize the risk he may pose to other children for whom he may stand in a position of trust. On that basis, I prohibit him from seeking employment or volunteer positions involving positions of trust towards persons under the age of 16 for 10 years, under s. 161 (b).

[79] I do not think there is a basis for H.P. to be precluded from going to swimming pools, playgrounds or community centres where those under the age of 16 are reasonably expected to be, in the event he wishes to attend at these locations in relation to his daughter. I decline to make the order sought under s. 161 (a).

[80] The Crown also seeks an order that H.P. is prohibited from communication with any persons under the age of 16, unless under the supervision of a person whom the court considers appropriate. The effect of such an order, were it made, would be to preclude H.P. from being able to communicate with his daughter A.P. unless a court approved individual were to be present. The Crown did not suggest who such a person might be. There are obvious concerns about H.P.’s wife, given the fact that she did nothing to protect K.T. from his abuse. I am concerned, however, that such an order would be difficult to enforce. Moreover, as a practical matter, it would likely preclude H.P. from living at home with his wife and daughter following his release. I do not think the order sought is appropriate.

[81] At the same time, given the offender’s conduct and his wife’s failure to protect K.T., I have concerns about the safety of A.P, and any other children being under H.P.’s sole care, despite the fact that he has been assessed as at a low risk of re-offending. H.P. must be precluded from opportunistically sexually engaging with A.P. or any other children placed under his care. Given the circumstances in which he abused K.T., I order that for 10 years, between the hours of 8 p.m. and 6:00 a.m., he is prohibited from being in any home with any children under the age of 16 unless there is another adult present. This means that he cannot be at home with A.P. without another adult present in the evenings and overnight. He cannot babysit other peoples’ children alone over night. He can be with children without an adult present only until 8:00 p.m. In my view such an order is warranted in light of the risk that H.P. may otherwise pose to potentially vulnerable children.

Woollcombe J.

Released: August 24, 2023

COURT FILE NO.: CR-827/21 DATE: 2023 08 24 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – H.P. REASONS FOR SENTENCE Woollcombe J.

Released: August 24, 2023

[1] The significant delay in the sentencing is as a result of the time taken for the preparation of a Risk Assessment Report sought by the defence and the delay caused when H.P. changed counsel. All of the delay was waived by the defence for the purpose of s. 11(b) of the Charter.