COURT FILE NO.: CR-20-40000175-000 DATE: 20231106
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING - and - J.S.M.
Counsel: I. Sutherland, for the Crown A. Shakeel for J.S.M.
HEARD: October 16, 2023
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO S. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.
R. MAXWELL J.
Reasons for Judgment on Sentence
1The accused was found guilty after a trial of sexual assault, sexual interference, and invitation to sexual touching in relation to offences against S.G., his step-daughter. He appeared before me for a sentencing hearing on October 16, 2023. These are my reasons for judgment on sentence.
Factual Findings at Trial
2My reasons for judgment (R. v. J.S.M., 2023 ONSC 6114) set out my factual findings. I will summarize the findings briefly here.
3I found that, when the complainant was between the ages of 9 and 13 years old, the accused, her stepfather, sexually abused her on a regular basis, in exchange for money. The acts of sexual abuse ranged from performing oral sex on the accused and allowing him to ejaculate into her mouth or on other body parts, manually masturbating him, letting him touch her sexually by sucking on her breasts, allowing him to perform oral sex on her, rubbing lubricating substances on her in order to slide his penis between her legs and vaginal area or buttocks, and the accused using sex toys on himself while masturbating in her presence.
4I accepted the complainant’s evidence that the abuse happened as often as she asked for money from the accused and continued on a regular basis until she turned 14 and the family moved in with her maternal grandmother.
5I accepted the complainant’s evidence that the accused offered her $60-70 for oral sex, but would pay her more if she agreed to swallow his ejaculate. I accepted the complainant’s evidence that there were sometimes multiple acts of abuse that occurred during the same incident, in what the complainant described as like a “husband and wife” relationship that involved multiple sex acts during one incident.
Positions of the Parties
6On behalf of the Crown, Mr. Sutherland seeks a sentence of 9 years in custody less pre-sentence custody. He also seeks an order that the accused register with the Sex Offender Registry for life; a s. 109 weapons prohibition for a period of 10 years; a DNA order, as the offences of sexual assault and sexual interference are primary designated offences; and a s. 743.2 order for no contact or communication with the complainant and her common law partner while he is in custody.
7On behalf of the accused, Ms. Shakeel submits that, after giving consideration for pre-sentence custody and additional consideration for harsh conditions while in custody, a global sentence of 5 years in custody is appropriate. She is not opposed to any of the ancillary orders requested by the Crown.
Circumstances of the Offender
8J.S.M. is 59 years old. He was born in Quebec. His father was an alcoholic and he was subjected to physical abuse as a child. His father abandoned the family when he was 12 years old. He moved away from home for high school and only visited his family in the summers. He has two brothers and remains in contact with them. His mother died five years ago.
9J.S.M. finished his schooling at the age of 17 and began working in construction in Quebec. At the age of 19, he relocated to Ontario. He was employed in construction and later as a roofer. He stopped working as a roofer approximately 3 years ago because of back problems. He has since supported himself through ODSP.
10J.S.M. was in a common law marriage with the complainant’s mother for 20 years. He has two daughters with the complainant’s mother. His relationship with his children has become less consistent in recent years as a result of being unstably housed for the two years prior to his arrest on the charges (during which he was the victim of a violent robbery), and his subsequent incarceration.
11J.S.M. is a recovering alcoholic. He was addicted to alcohol during the timeframe of the offences.
Principles of Sentencing
12I begin with the most fundamental principles of sentencing set out in ss. 718, 718.1 and 718.2 of the Criminal Code.
13The overriding purpose of sentencing is to encourage respect for the law and the maintenance of a “just, peaceful and safe society”. Section 718.1 provides that the sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The sentence I impose must reflect the circumstances of the offence and the attributes of the individual responsible for the crime.
14Section 718.2 directs that a court must take into consideration the principle that a sentence should be increased or reduced for any relevant aggravating or mitigating factors related to the offence or the offender.
15Sentencing ranges and a review of similar cases are useful in ensuring that the parity principle is met and that similar penalties are imposed for similar offences of a similar nature involving similar offenders. Sentencing ranges are, however, only guidelines. The sentencing of an individual is, necessarily, an individualized process, as the Supreme Court reiterated in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
16All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
17When it comes to offences of sexual violence against children, deterrence and denunciation are the primary objectives of sentencing. Parliament has clearly expressed, through s. 718.01 of the Code and its increase in maximum sentences for these offences, the need to prioritize denunciation and deterrence for offences of this nature.
18As held by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, contemporary understanding of sexual violence against children and the harmful impact it has on not only the lives of those children as they grow into adulthood, but on future generations, has led to recognition of key principles related to sentencing of offenders for sexual violence against children, including:
(1) that a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted such offences to be punished more harshly” and that these offences should be treated more gravely than they have been in the past: Friesen, at para. 97 and 99, citing Lacasse, at para. 7);
(2) that to respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than those imposed in cases which preceded the increases in maximum penalties: Friesen, at para. 100;
(3) that Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Code confirms the need for the court to impose more severe sanctions for sexual offences against children: Friesen, at paras. 101-105.
19As such, while the court in Friesen declined to set a national starting point or sentencing range for crimes of sexual violence against children, it emphasized that, in light of our contemporary understanding of the wrongfulness and harmfulness of sexual violence against children and the high degree of moral responsibility of the offender, sentences must have, as a priority, the principles of denunciation and deterrence. Further, courts should take care not to rely on older precedents which may reflect a “dated” view of sexual exploitation of children by adults: Friesen, at paras. 105 and 110.
20In R. v. Woodward, 2011 ONCA 610, [2011], O.J. No. 4216, the Court of Appeal summarized the key principles driving the primacy of deterrence, denunciation and separation as principles of sentencing for offences involving the sexual abuse of children:
(1) Our children are our most valued and our most vulnerable assets;
(2) We as a society owe it to our children to protect them from the harm caused by sexual predators;
(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators;
(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow;
(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as adults, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood;
(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
21Therefore, denunciation and deterrence are the primary factors on sentence in this case. Given the accused’s age and background, rehabilitation and restraint are also relevant factors for consideration, but they are secondary considerations in the circumstances of this case and this offender.
Aggravating and Mitigating Factors
22Turning first to the aggravating factors in this case, the complainant was between the ages of 9 and 13 years old when the abuse occurred. Committing abuses against a child who is under the age of 16 is a statutorily aggravating factor under s. 718.2 of the Code.
23Second, and statutorily aggravating, the circumstances of this case represent an egregious breach of trust. The court in Friesen commented that any breach of trust is likely to increase the harm to the victim and thus, the gravity of the offence: para. 126. 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. The factor of breach of trust is further aggravating because it can inhibit reporting of sexual violence. Finally, the factor of breach of trust is particularly aggravating because it increases an offender’s moral responsibility. Those in a position of trust owe a duty of care to children. For all these reasons, those who commit sexual offences against children while they occupy a position of trust in the child’s life should receive lengthier sentences than offenders who are strangers to the child, all other things being equal: Friesen, at para. 130.
24Until she was 14 years old, and throughout the time of the abuse, the complainant believed, and the family lived, as though the accused was the complainant’s biological father. There was a very high degree of familial and financial dependance on J.S.M, who was left alone with the complainant without attracting any scrutiny and who provided the complainant with money in exchange for sexual acts. J.S.M.’s actions toward the complainant were highly exploitative of his position of trust. He used readily available opportunities to get the complainant alone in the house to sexually abuse her. He targeted her, as the only female child in his household that was not his biological child, to victimize her. He used his position to keep her silence. He told her, at least on one occasion, that if she told anyone about what they had been doing, he would be in trouble. He used her need for financial support and her fear of getting into trouble to continue to sexually abuse her. In this case, the breach of trust represents one of the grossest of breaches, on the spectrum contemplated by the Court in Friesen, given the relationship between J.S.M. and the complainant, as father and daughter. As the complainant’s step-father, J.S.M. took advantage of his position of authority and trust over the complainant.
25Third, the abuse occurred over an extended period of time, four years, and there were multiple incidents of abuse in that period of time. This was not an isolated incident. The accused persistently preyed on the complainant, using money to draw her in for his own sexual gratification.
26Fourth, there was a high degree of physical interference. As the court noted in Friesen, at para. 139, and as the Court of Appeal for Ontario noted in R. v. Stuckless, 2019 ONCA 504, sexual violence against children is always harmful, but the wrongfulness of the conduct increases as the degree of physical inference increases. The repeated incidents of oral sex on the complainant and sexual touching that included rubbing his penis on the complainant’s buttocks and vaginal area, are examples of significant physical interference. There was also some penetration of the complainant when the accused used his tongue to performed oral sex on the complainant. These acts of sexual abuse represent examples of significant interference with the complainant’s sexual integrity.
27Fifth, I accept that the offences have had a severe impact on the complainant. Although she declined to provide a victim impact statement for consideration on the sentencing hearing, the complainant’s evidence at the trial, which I accepted, reveals the lasting emotional and psychological impact the incidents of abuse have had on her. As the complainant described, she tried to suppress the memories of the abuse that she experienced as a child. She became a severe alcoholic in adulthood. As she described it, her drinking may very well have killed her, had she not been able to, in the past years, begin her recovery. While it may not be the only reason she turned to alcohol, I have no doubt that the abuse she suffered as a child is directly correlated to her alcoholism. In addition, the long history of abuse at the hands of someone she believed to be her father has impacted on her own relationships as an adult. Intimate experiences which she should have shared with a partner of her choice, at the appropriate time, are forever sullied because of the accused’s abuse of her. It was clear from her evidence that, even today, she continues to feel the shame and guilt of the abuse. She expressed, on more than one occasion during the trial, that she felt nausea as she recounted what happened to her. In sum, the abuse has had a profound and lasting impact on the complainant.
28Next, it is aggravating that the abuse took place almost exclusively in the family home, a place where the complainant should have felt safe and protected. She had nowhere else to go, and no one to turn to for assistance.
29Many, if not all, of the complainant’s post-offence experiences are consistent with the recognized consequences of this type of abuse, as detailed in Woodward, at para. 72.
30Finally, the accused has a criminal record, although it does not contain convictions for sexual offences. He was convicted of failing to attend in court and impaired driving in July of 2005 and received a $1500 fine and a 12-month driving prohibition. He was convicted of impaired driving causing bodily harm in June of 2020. The passing of sentence was suspended, in light of the equivalent of 207 days of pre-sentence custody and he was placed on a 3-year driving prohibition and 2 years of probation.
31In mitigation, or as a collateral consequence which Ms. Shakeel asks me to consider, the accused experienced harsh conditions in pre-sentence custody. Ms. Shakeel filed records from the Toronto South and Toronto East Detention Centre which detail that, since his incarceration in August of 2022, J.S.M. has spent a combined 112 days under lockdown between the two institutions. He also spent 22 nights being “double bunked” at the Toronto East Detention Centre.
32J.S.M. also filed an affidavit on the sentencing hearing detailing some of the physical and mental health challenges he has faced while incarcerated related to the conditions in the jails. He described developing a skin infection all over his body, which he believes is from mould in the institutions. He has had difficulty accessing medical care, clean sheets for his bed, and proper maintenance of his cell, including a malfunctioning toilet.
Sentencing Caselaw and Range of Sentences
33As the court noted in Friesen, citing the decisions from the Court of Appeal for Ontario in R. v. D.D, (2002), 58 O.R. (3d) 788; Woodward; and R. v. S.J., 2018 ONCA 675, 142 O.R. (3d) 81; and its decisions in R. v. M. (C.A.), [1996] 1 S.C.R. 500, “imposing proportionate sentences that respond to the gravity of the sexual offences against children and the degree of responsibility of the offender will frequently require substantial sentences”: para. 114.
34The court went on to comment, at para. 114, that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional cases. The court continued, stating that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as was the case in Woodward and R. v. L.M., 2019 ONCA 945.
35The court also set out a list of factors relevant to determining a fit sentence for offenders who commit sexual offences against children which includes (1) the likelihood to reoffend; (2) whether the offender has abused a position of authority or trust; (3) the duration and frequency of the abusive behaviour; (4) the age of the victims; (5) the victim’s participation; and (6) the degree of physical interference.
The Sentence in this Case
36I turn now to a fit sentence in this case.
37Having regard to the aggravating and mitigating factors in this case, the gravity of the offence, and the degree of responsibility of the offender, the range of sentence suggested by Ms. Shakeel, in my view, is not appropriate, in that a mid-single digit penitentiary term is not sufficiently responsive to the extremely grave nature of the offences.
38The offences in this case are very grave and involve repeated instances of oral sex and other sexual touching over an extended period of time. The complainant was vulnerable and the circumstances of the abuse were highly exploitative because the accused was, for all intents and purposes, the complainant’s father. There is clear evidence of the accused taking advantage of the position he occupied in the complainant’s life. The accused exploited his access to the complainant and used money to continue to exploit and abuse her.
39The impact on the complainant has been profound.
40Having regard to all of the circumstances of the offence, and of the offender, and the principles of sentencing, and bearing in mind the Supreme Court of Canada’s guidance about sentencing for this type of conduct, in my view, a fit sentence in this case is one of 8 years. I come to this sentence taking into consideration not only the aggravating features, but J.S.M.’s experiences while in pre-sentence custody, which I accept have been difficult and warrant recognition as a collateral consequence worthy of some consideration.
41As of today’s date, J.S.M. has accumulated 429 days of pre-sentence custody. When given enhanced credit pursuant to R. v. Summers, 2014 SCC 26, that is the equivalent of 644 days. The remaining sentence to be served is therefore 2276 days, or approximately 6 years and 86 days.
42The sentence on the count of sexual interference will be 8 years with credit for 644 days of pre-sentence custody, for a remaining sentence of 6 years and 86 days.
43The Crown and Defence counsel jointly submit that a stay should be entered with respect to the count of sexual assault, pursuant to the principles enunciated by the Supreme Court of Canada in R. v. Kienapple, [1975] 1 S.C.R. 729. The decision in Kienapple bars multiple convictions for two or more offences arising out of the same criminal act in circumstances where the essential elements of the offences cover the same wrongdoing. I am in agreement with their submission and the count of sexual assault will be marked stayed.
44The sentence on the count of invitation to sexual touching will be 6 years and 86 days, to run concurrent to the count of sexual interference.
45Therefore, the total sentence remaining is one of 6 years and 86 days in custody.
46There will be a number of ancillary orders.
47There will be an order under s. 490.013(2.1) of the Code to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for life.
48I will also make an order pursuant to s. 109 of the Code prohibiting J.S.M. from possessing any firearms, ammunition, and other weapons as defined by the Code for 10 years.
49There will be an order under s. 487.051 of the Code authorizing the taking of a sample of a bodily substance that is reasonably necessary for the purpose of forensic DNA analysis. Sexual interference and sexual assault are primary designated offences under the Code.
50There will be a s. 743.21 order prohibiting communication with the complainant and her common law partner, I.B. while J.S.M. is in custody serving his sentence.
51As J.S.M. is in custody and otherwise supports himself through Ontario Disability payments, the victim fine surcharge will be waived.
52Subject to any questions or need for clarification, I thank both counsel for their assistance.
R. Maxwell J.
Released: November 6, 2023