Court File and Parties

COURT FILE NO.: CR-21-30000416 DATE: 20230901 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – J.C. Defendant

Counsel: Eadit Rokach, for the Crown Dragi Zekavica, for J.C.

HEARD at Toronto: June 22, 2023

Publication Restrictions Notice

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the Complainant shall not be published in any document, broadcast or transmission.

Reasons for Sentence

DAVIES J. (ORALLY)

A. Overview

[1] J.C. was found guilty after a trial of two counts of sexual assault, two counts of sexual interference and one count of accessing child pornography. I found that J.C. masturbated onto his two-year-old daughter, S, while she was sleeping in March 2019. I also found J.C. put his hand down the pants of his 9-year-old niece, K, and touched her vagina when their families were vacationing together at Great Wolf Lodge in November 2017. Finally, I found J.C. downloaded and viewed dozens of images of child pornography between 2011 and 2019.

[2] I found J.C. guilty of one count of sexual assault and one count of sexual interference in relation to his daughter and in relation to his niece. In each case, the same conduct formed the actus reus of both offences. The Crown and defence submit that my findings of guilt on the sexual assault counts should be stayed. I agree. J.C. cannot be convicted and sentenced twice for the same conduct involving the same victim: Kienapple v. R., [1975] 1 SCR 729. Both counts of sexual assault are stayed and J.C. will be sentenced on the two counts of sexual interference.

[3] The Crown argues I should impose a global sentence of 7 to 9 years in custody: 4 to 5 years for the sexual interference on J.C.’s daughter, 1 to 2 years for the sexual interference on J.C.’s niece and 1 to 2 years for accessing child pornography.

[4] J.C.’s counsel argues I should impose a global sentence of two to two-and-a-half years in custody: six months for the sexual interference on his daughter, six to 12 months for the sexual interference on his niece and 12 months for accessing child pornography.

[5] For the following reasons, I impose a global sentence of 6½ years in custody minus the time J.C. spent in pre-trial detention.

B. New Approach to Sentencing in Cases of Sexual Violence against Children

[6] The Criminal Code still contains a one-year mandatory minimum sentence for sexual interference. However, the mandatory minimum sentence for sexual interference was struck down by the Court of Appeal for Ontario in 2019 and is no longer in effect: R. v. BJT, 2019 ONCA 694 at 75.

[7] The primary objectives when sentencing someone convicted of sexual violence against a child are denunciation and deterrence. Nevertheless, sentencing remains a highly individualized exercise and the sentence I impose must be proportionate to the gravity of J.C.’s offence and his moral blameworthiness: R. v. Ipeelee, 2012 SCC 13 at para. 37, R. v. M.(C.A.), 1996 1 SCR 500 at para. 92.

[8] Ordinarily, I would start by determining the applicable sentencing range. I would then decide where J.C.’s sentence should fit within the established range based on the unique constellation of mitigating and aggravating factors in his case; R. v. Lacasse, 2015 SCC 64 at para. 58. Sentencing ranges are determined by looking at what sentences have been imposed in similar cases in the past. However, in 2020, the Supreme Court of Canada declared that the approach to sentencing in cases of sexual offences against children must change and the sentences imposed for sexual offences against children must increase: R. v. Friesen, 2020 SCC 9.

[9] The Supreme Court found that Parliament’s decision to repeatedly increase the maximum sentence for sexual offences against children shows that Parliament expects judges to treat those offences as “more grave” than they had been treated in the past: Friesen, at para. 99. The Supreme Court also found that many sentencing judges had failed to recognize the gravity of sexual violence against children: Friesen, at para. 110. The Supreme Court implored sentencing judges to recognize that the intentional sexual exploitation and objectification of a child is always highly morally blameworthy conduct that can have profound and long-lasting consequences for the victims, their family and the community: Friesen, at paras. 75 and 90. I must, therefore, be very cautious about relying on sentencing decisions that pre-date the Supreme Court’s decision in R. v. Friesen.

[10] Most of the cases the defence asked me to consider pre-date Friesen. In my view, the sentence imposed in some of those cases are not consistent with the Supreme Court’s guidance in Friesen. For example, in R. v. Kirby, 2020 ONCJ 33, the Court granted a suspended sentence after giving credit for 20 days of pre-sentence detention. In that case, Mr. Kirby put his hand down the back of a seven-year old’s pants and grabbed her bum. Mr. Kirby was not in a position of trust in relation to the victim. He had no criminal record and had significant cognitive deficits. Mr. Kirby was sentenced before the Supreme Court released its decision in Friesen. It is not clear to me that the Court would have granted Mr. Kirby a suspended sentence if he was sentenced after the Supreme Court released its decision even though Mr. Kirby’s conduct was at the very low end of the spectrum in terms of its seriousness and there were several other mitigating factors.

[11] The facts of the cases relied on by the defence are also very different than the facts here, which make them less helpful to my analysis. For example, in R. v. Hussein, 2017 ONSC 4202, Mr. Hussein and the victim were in an ongoing “relationship.” She was 13 years old and he was 27 years old. There was no position of trust involved. Those circumstances are very different from what J.C. did. In this case, the sexual touching was more invasive. The victims were younger. And J.C. was in a position of trust in relation to both his victims.

[12] There are a few recent cases that provide me with some guidance on what range of sentence would be appropriate here.

[13] First, in Friesen itself the Supreme Court held that “mid-single digit penitentiary terms for sexual offences against children are normal”: Friesen, at para. 114. The Supreme Court also held that substantial sentences can be imposed even if there is only a single incident of sexual violence or a single victim: Friesen, at para. 114. Mr. Friesen was in a relationship with the victim’s mother. He ordered the victim’s mother to bring the victim into the bedroom so they could engage in sexual activity with her. The victim was four years old at the time. The mother brought the victim into the bedroom and lay her on the bed naked. The victim tried to leave but Mr. Friesen stopped her. The victim was eventually freed by another adult who was in the house at the time. The Supreme Court restored the 6-year sentence imposed by the trial judge.

[14] Second, in R. v. T.J., 2021 ONCA 392, the Court of Appeal increased the sentence for a single incident of sexual interference from 9 months to 24 months. In that case, the victim was six or seven years old. She was at T.J.’s house for a sleepover with his children. T.J. put the victim’s hands on his penis and used her hands to rub his penis. He also invited the victim to put his penis in her mouth but she pulled away. The Court of Appeal held a 9-month sentence was demonstrably unfit following the Supreme Court’s decision in Friesen because of the age of the victim and because T.J. abused a position of trust.

[15] Third, in R. v. N.S., 2022 ONSC 5123, Justice Boswell of this Court imposed a global sentence of 7 years. N.S. was convicted after a trial of two counts of sexual interference. The victims were his stepsisters. There was a single incident of sexual touching with one victim, PWC, when she was in grade three. They were sitting together on the sofa watching a movie when N.S. grabbed PWC’s hand and put it on his penis. PWC pulled her hand away and continued watching the movie. The other victim, EC, described eight incidents of sexual violence that started when she was 12 to 14 years old which included repeated forced fellatio and one incident of forced vaginal intercourse.

[16] Justice Boswell imposed an 18-month sentence for the offence against PWC and a 5.5-year sentence for the offence against EC. Justice Boswell found there were several aggravating factors. First, the defendant abused a position of trust. Justice Boswell noted that the breach of trust was not as significant as in that case it would have been if (like in J.C.’s case) N.S. had sexually abused his child or stepchild. Second, the victims were young – PWC was only 7 years old and EC was no older than 14. Third, the offences took place in the victims’ home where they should have felt safe and secure. Fourth, the offences had a profound impact on the victims and their extended family. Justice Boswell also considered the number and nature of the incidents. For JWC, there was one brief incident involving minor physical interference. The incidents involving EC were far more intrusive and took place over several months.

[17] Justice Boswell noted he would have imposed a global sentence of 8 years but for three factors. First, N.S. had never received a sentence of imprisonment before. Second, N.S. was indigenous and had experienced the impact of intergenerational trauma. Third, Justice Boswell found a longer sentence would be crushing and might jeopardize N.S.’s ability to “turn his life around.”

[18] Finally, in R. v. R.H., 2021 ONCA 236, the Court of Appeal upheld a six-year sentence for one count of sexual interference, one count of making child pornography and one count of accessing child pornography. R.H. was sentenced to five years for sexual interference. He pled guilty to sexually abusing the victim for years starting when the victim was only 10 years old. R.H. was cousins with the victim’s stepfather. The abuse started as sexual touching but escalated to forced oral and anal intercourse. The Court considered several aggravating factors, including the age of the victim, the escalation in the severity of the abuse over time, the number of incidents and the impact of the incidents on the victim and his family. The fact R.H. abused a position of trust was also a relevant aggravating factor.

[19] Based on the Supreme Court’s decision in Friesen and the sentencing decisions since Friesen, I find a global sentence in the range of 2 to 2.5 years in custody, as proposed by the defence, is outside the emerging range for multiple sexual offences against children and would be demonstrably unfit. A very short penitentiary sentence would not adequately reflect our current understanding of the wrongfulness of J.C.’s conduct or the life-altering impact his conduct will have on S, K and their families: Friesen at paras. 74, 76, 78 and 90.

[20] To determine what sentence would be appropriate, I must consider:

• The frequency and duration of J.C.’s sexual abuse of S and K;
• The nature and intensity of physical and psychological violence involved;
• The actual and foreseeable harm to S and K;
• The age of the victims;
• The abuse of a position of trust; and
• Any mitigating factors.

a. Frequency, duration and intensity of the sexual abuse

[21] J.C. was found guilty of touching his daughter for a sexual purpose once in 2019. On the day of the incident, J.C. was alone in the living room with S. Initially S was playing on the floor. She then climbed onto the sofa and fell asleep. J.C. stayed in the living room watching television while S slept. When her mother came downstairs, S’s pants were pulled down and her diaper was partially open. J.C.’s semen was found inside S’s diaper. I found that J.C. masturbated directly onto S or touched her while he was masturbating.

[22] J.C. was also found guilty of touching his niece for a sexual purpose once in 2017. J.C.’s family and K’s family went to Great Wolf Lodge together for a night. After dinner, J.C. agreed to look after K and some of the other children in one hotel room while K’s parents socialized with the other adults in another hotel room. I found J.C. put his hand inside K’s underwear and touched her vagina. K testified that J.C. had his hand insider her pants for about five seconds.

[23] Because the offences against S and K each involve a single, brief incident, they are less serious than cases like R. v. N.S. and R. v. R.H., where the sexual abuse occurred repeatedly over an extended period.

[24] Counsel for J.C. argued that both offences are also less serious because he did not physically injure either victim. The degree of physical interference with the victim’s bodily integrity is a relevant factor on sentencing. Had J.C. used significant physical violence or inflicted serious physical injuries on S or K, that would be an aggravating factor. However, any physical contact of a sexual nature with a child is an act of physical and psychological violence even if does not result in lasting injury: Friesen, at para. 77. The Supreme Court cautioned trial judges not to assume there is a correlation between the physical act committed and the degree of harm it will cause. If sentencing judges focus on the physical act, they will likely give insufficient weight to the serious emotional or psychological harm that can result from any act of sexual violence: Friesen at para. 142. For example, victims of childhood sexual violence often experience anxiety, depression, suicidal ideation, eating disorders, self-harming behaviour and other mental health issues: Friesen, at paras. 80 – 81. They can have trouble concentrating. They can experience difficulties trusting others and forming loving relationships.

[25] J.C.’s offences have already had a profound impact on S, K and their families. However, it is impossible to know the full extent of the harm J.C. has caused now. S is still only six years old and K is only 15 years old. Some of the harm caused by childhood sexual violence may not manifest until the victim is an adult: Friesen, at para. 81. I must, therefore, also consider the reasonably foreseeable harm that will result from these offences: Friesen, at para. 83.

[26] S may not remember J.C. sexually abusing her because she was only two years old and was asleep at the time. That does not, however, reduce the harmfulness of J.C.’s conduct. S will undoubtedly be told what J.C. did to her as an infant. She will have to live her entire life with the knowledge that her father, who should have protected her, sexually abused her for his own gratification while she was sleeping. The potential harm to her is enormous.

[27] S’s mother filed a victim impact statement. She says J.C.’s offence has changed her life in the worst way possible. She is now caring for their three children on her own. She describes living with constant fear and anxiety that someone else will hurt her children. She is also left with the burden of explaining to S what J.C. did to her. She dreads having to answer S’s question about why her father sexually abused her. She described the impact this has already had on their eldest child, who is now 15 years old. He is in counselling to help him deal with the loss of his father and the reality of what J.C. did to his sister.

[28] J.C.’s counsel argued that the offence against K could not have had a significant impact on her because she did not report it for two years and during those two years she continued to associate with J.C. I reject this argument. The fact K did not say anything for two years does not mean she was not suffering psychologically from what J.C. did to her. In fact, K’s victim impact statement makes it clear she was suffering on her own before she disclosed what J.C. did. K wrote that she was confused at first about what J.C. did to her but now understands it was wrong. This is understandable given her age and the fact J.C. breached his position of trust as her uncle. K told the police she was worried her parents would not love her anymore once they found out what J.C. did. She was also worried that other family members will blame her for getting J.C. into trouble. K wrote, “I have always found it hard to talk to people about what he did to me, so I have been stuck thinking about it alone.” She said she feels “alone, angry, betrayed, guilty, confused, and anxious.” K also wrote that she has difficulty trusting men since the assault, including other members of her family. K’s mother told the author of the pre-sentence report she has already seen the negative impacts of J.C.’s offences on K and is afraid of what the impact will be in the months and years to come.

[29] Although each offence involved a single, brief incident of sexual touching, they are nonetheless very serious. They have had and will continue to have a profound impact on S, K and their families.

b. J.C.’s moral culpability

[30] The intentional sexual exploitation of a child is always morally blameworthy: Friesen, at para. 90. There are, however, several factors that increase J.C.’s moral blameworthiness in this case.

[31] First, the age of the victims is an aggravating factor. Both S and K were both very young and vulnerable. S was just two years old when J.C. masturbated onto her. She was totally dependent on her parents to protect her and care for her. K was only nine years old when J.C. touched her in a sexual manner. She also had autism and ADHD, which made her more vulnerable. K, too, was dependent on her family to protect her and care for her. In Friesen, the Court held, at para. 90:

The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable.

[32] Second, J.C. abused a position of trust in relation to both S and K. Of course, not all trust relationships are the same. The Supreme Court held that children 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”: Friesen at para. 126. It is difficult to imagine a more profound breach of trust than a father sexually abusing his infant daughter: Friesen at paras. 126, 130 and 134.

[33] J.C. was also in a position of trust towards K. He was her uncle. He was supposed to be looking after K while her parents were socializing in another hotel room. K’s parents trusted him to protect K and he breached that trust. As the Supreme Court held in Friesen, “any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence”: Friesen at para. 126.

[34] Third, both offences took place in locations where the victims should have felt safe. The assault on S took place in her home. The Supreme Court held that sexual offences that take place in the child’s home may be particularly damaging because they threaten the child’s sense of security in the one place they should feel safe: Friesen, at para. 178. The offence against K took place in a hotel room where she was staying with her family, which is also a place she should have felt safe and secure.

[35] I find J.C. has a very high degree of moral responsibility for the sexual offences against S and K.

c. Mitigating Factors

[36] There are three mitigating factors in this case. First, J.C. has no criminal record. I must, therefore, apply the principle of restraint: R. v. Batisse, 2009 ONCA 114 at para. 32. I must consider whether a non-custodial sentence would be adequate to denounce and deter J.C.’s conduct. I have already found that a significant term of imprisonment must be imposed to reflect the wrongfulness and harmfulness of these offences. But even if a term of imprisonment is required, the principle of restraint demands that I impose the shortest sentence possible and I tailor the sentence to J.C.’s circumstances: R. v. Priest, [1996] O.J. No. 3369.

[37] Second, J.C. was gainfully employed before his arrest. He is 40 years old. He had a stable childhood. He completed high school and took some college courses. At the time of his arrest in March 2019, he had been working for the Toronto Transit Commission for 13 years.

[38] Third, J.C. has support in the community. According to the pre-sentence report, J.C. has a positive supportive relationship with his mother, his siblings and several friends.

d. Conclusion

[39] I find that the offences against S and K are both more serious than the incident in R. v. N.S. involving PWC for which N.S. received an 18-month sentence. I find the offences against S and K are both less serious than the incidents in R. v. N.S. involving EC for which N.S. received a 5 ½ year sentence. They are also both less serious than the circumstances in R. v. R.H., where the Court of Appeal upheld a six-year sentence for repeated forced oral and anal intercourse.

[40] I find the incident involving S is more serious than the incident involving K because of her age and the higher degree of trust inherent in a father-child relationship.

[41] I find the incident involving K is similar in seriousness to the sexual touching in R. v. T.J. In that case, the Court of Appeal increased the sentence from 9 months to 2 years.

[42] I find the appropriate sentence is 3.5 years in custody for the offence against S and 2 years in custody for the offence against K. These sentences are to be served consecutively.

C. Sentencing for child pornography

[43] The Criminal Code still contains a one-year mandatory minimum sentence for accessing child pornography. The Court of Appeal has not considered the mandatory minimum sentence for accessing child pornography. However, in 2018, the Court of Appeal struck down the mandatory minimum sentence for possessing child pornography: R. v. John, 2018 ONCA 702. Several judges of this court have found the mandatory minimum sentence for accessing child pornography is also unconstitutional because of the decision in R. v. John: R. v. Rytel, 2019 ONSC 5541, R. v. Mootoo, 2022 ONSC 384, R. v. Reid, 2022 ONSC 2987. I agree and will proceed on the basis that there is no mandatory minimum sentence for accessing child pornography.

[44] I found that J.C. downloaded and viewed dozens of images of child pornography over several years. The police could not recover all the downloaded files but the file names establish they contained child pornography. The police were able to recover 16 of the images of child pornography, of which five were duplicates. I have not looked at the 11 images of child pornography recovered by the police. The parties filed a written description of each image. The parties agree the written descriptions are sufficiently detailed to allow me to understand the gravity of the offence without looking at the images.

[45] The Crown argues I should impose a sentence in the range of one to two years for accessing child pornography. J.C. argues I should impose a one-year sentence.

[46] General deterrence and denunciation are the primary objectives when crafting a sentence for accessing child pornography: R. v. Inksetter, 2018 ONCA 474 at para. 16, Criminal Code, s. 718.01. Again, I must also consider the harmfulness and wrongfulness of J.C.’s conduct.

[47] The number of images J.C. accessed is a significant factor. The police recovered 11 distinct images on his computers. But J.C. accessed dozens of other images of child pornography that the police were not able to recover. Obviously, sentencing for child pornography offences is not a purely mathematical exercise based solely on the quantity of images recovered. Nonetheless, the number of images J.C. accessed is a relevant factor: R. v. Walker, 2021 ONCA 863.

[48] I must also consider the nature of the images J.C. accessed. Ten of the 11 images recovered by the police were anime-style images involving prepubescent or pubescent girls. In some images, the child appears to be as young as four years old. The images are extremely graphic. In many images, the child is depicted being vaginally or anally penetrated. Some depict the child performing fellatio on an adult male. I appreciate those 10 images do not involve actual children. Nonetheless, they depict very young children being violently sexually abused.

[49] One of the recovered images is a photograph of an actual female child lying on her back naked with her vaginal and anal region exposed to the camera. This image has “LS Island” written on it. Many of the other downloaded files contain the term “LS Island”. One of the officers testified that LS Magazine is a European company that uses real children as models for their images. The names of other downloaded files contain “PTHC”, which I found means “pre-teen hard core.” I, therefore, find that many of the downloaded files the police could not recover involved the abuse and exploitation of real children.

[50] The very existence of child pornography is harmful to children and to society: R. v. Sharpe, 2001 SCC 2 at para. 158. Child pornography degrades, dehumanizes, and objectifies children. It preys on their vulnerability. The Supreme Court noted in Friesen that the distribution of videos and images depicting sexual violence against children repeats the abuse they suffered because the children must live with knowledge that those images could resurface at any time: Friesen at para. 48.

[51] The Crown filed a community impact statement from the Canadian Centre for Child Protection, a non-profit that works to reduce the victimization of children through the creation of child pornography. [^1] The Community Impact Statement describes the experience of several victims of childhood sexual abuse whose abuse was recorded and distributed online. They describe the emotional trauma they experience knowing those images and videos are still available. They note that every still image of child pornography captures just one moment of the abuse suffered by the child in the image.

[52] I also consider the fact that J.C. downloaded child pornography many times over an extended period.

[53] If J.C. had been convicted of the child pornography charge only, I likely would have imposed a 2-year sentence. However, I must consider the totality principle. The total sentence I impose on J.C. must be proportionate, not just the individual sentences for each offence. If I were to impose a 2-year sentence for accessing child pornography, J.C.’s total sentence would be 7.5 years. Given that J.C. has no criminal record, a 7.5-year sentence would, in my view, be disproportionate. I find that anything more than 6.5 years would be disproportionate and potentially crushing for him. I, therefore, impose a 1-year sentence for the accessing child pornography.

[54] J.C. is sentenced to 6.5 years in custody:

• 3.5 years in custody for the offence against S;
• 2 years in custody for the offence against K to be served consecutive to the other sentences;
• 1 year in custody for accessing child pornography to be served consecutive to the other sentences.

[55] J.C. spent 8 days in pre-trial custody. He is entitled to 1.5 days of credit for each day he spent in pre-trial custody: Criminal Code, s. 719(3.1). He, therefore, is entitled to 12 days of credit.

[56] J.C. is to serve 6.5 years less 12 days in custody.

D. Ancillary Orders

[57] In addition to the custodial sentence, I also impose the following orders.

[58] First, J.C. shall provide samples of his bodily substances for the purpose of forensic DNA analysis under Criminal Code s. 487.051(1). Sexual interference and accessing child pornography are both primary designated offences. I am, therefore, required to make an order that J.C. provide a sample of bodily substances for forensic DNA analysis unless the impact of such an order on his privacy or security of the person would be grossly disproportionate to the public interest in an order being made. J.C. did not make any argument why the impact of such an order would be grossly disproportionate.

[59] Second, J.C. shall comply with the Sex Offender Information Registration Act for 20 years: Criminal Code, ss. 490.012(1) and 490.012(1)(b). [^2]

[60] Third, for a period of 20 years following J.C.’s release from prison, he shall not:

• attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present;
• attend a daycare centre, school, school playground or community centre;
• be within 250m of anywhere S lives, goes to school, works or is known to be except in accordance with a family court order or with S’s written, revocable consent given after she turns 18;
• be within 250m of anywhere K lives, goes to school, works or is known to be;
• seek or obtain employment, whether paid or unpaid, that involves being in a position of trust or authority towards anyone under the age of 16 years;
• volunteer in any capacity that involves being in a position of trust or authority towards anyone under the age of 16 years;
• communicate by any means with S except in accordance with a family court order or with her written revocable consent given after she turns 18;
• communicate by electronic means with anyone other than S who is or who is believed to be under the age of 16;
• be in the presence of any person under the age of 16 (other than S and K) unless supervised by an adult who is at least 25 years old and is aware of J.C.’s convictions and the terms of this order;
• use any peer-to-peer or file sharing program except as strictly necessary for employment purposes.

[61] Fourth, while in prison, J.C. shall not communicate directly or indirectly by any means with S, S’s mother (AA), S’s siblings, K or K’s parents except in accordance with the terms of a family court order.

Davies J.

Released: September 1, 2023

Footnotes

[^1]: The Crown sought to adduce a video as part of the community impact statement. I did not admit the video because it had not been disclosed to the defence prior to the sentencing hearing. [^2]: Section 490.013(2.1) of the Criminal Code states that when someone is convicted of more than one designated offence, they shall be subject to the Sex Offender Information Registration Act for life. Sexual interference is a designated offence. JC has been convicted of two counts of sexual interference so under s. 490.013(2.1), my order should be for life. However, the Supreme Court of Canada struck down s. 490.013(2.1) in R. v. Ndhlovu, 2022 SCC 38. The Court suspended the declaration of invalidity until October 28, 2023. Nonetheless, the Crown argued that the appropriate order would be for 20 years, not life.