WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347;

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

NEWMARKET COURT FILE NO.: CR-19-8606-00

DATE: 20230216

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

A.S.

Defendant

Phyllis Castiglione, for the Crown

No one appearing on behalf of the Defendant

HEARD: February 2, 2023

REASONS FOR DECISION

RESTRICTION ON PUBLICATION

The publication and broadcast of this ruling is banned pursuant to subsection 486.4

CAMERON J.: (ORALLY)

[1] A.S. was convicted by a jury of five offences related to the sexual assault of A.A. who was between the ages of six and 12 years old when Mr. A.S. abused her. The jury returned their verdicts on November 4, 2022. Mr. A.S. was remanded out of custody to January 5, 2023 for a sentencing hearing. He did not attend on that occasion. Former counsel for Mr. A.S., Steven Stauffer, advised that he was in Iran. Mr. A.S. had sent word to his family that he intended to return on January 2, 2023 but his passport was seized by the Iranian government. The matter was adjourned to January 20, 2023 for an update on Mr. A.S.’s whereabouts. Mr. A.S. did not attend court on January 20, 2023. Mr. Stauffer had not heard from his client at all. I granted Mr. Stauffer’s application to be removed from the record. The Crown brought an application for a finding that Mr. A.S. had absconded pursuant to s. 475 of the Criminal Code of Canada and to have Mr. A.S. sentenced in absentia. For oral reasons given on that date, I granted that application.

[2] It is now my job to sentence Mr. A.S. for these offences.

[3] In fashioning a fit sentence, I must weigh all of the aggravating and mitigating factors in this particular case. The principles of sentencing are set out in ss. 718, 718.1 and 718.2 of the Criminal Code of Canada. I am bound by these principles. The most fundamental principle of sentencing is proportionality. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must also consider the principle of restraint recognizing that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

[4] The indictment was particularized with six separate events of sexual abuse that were described in detail for the jury by A.A.[1] Mr. A.S. denied all of these allegations. The jury acquitted Mr. A.S. of Count 6. This was the last instance of sexual abuse recounted by A.A. Implicit in the jury’s verdict is the fact that they accepted A.A.’s version of events with respect to the other five counts. As the trial judge, I must make findings of fact that are consistent with the verdict of the jury and that I accept the Crown has proven beyond a reasonable doubt.

The Circumstances of the Offences:

[5] A.A. came to Canada when she was four years old with her father and her mother S.T. Shortly after their arrival in Canada, they were introduced to the A.S. family by A.A.’s father’s sister who lived across the street from them. A.A.’s father was criminally charged with assaulting her mother. S.T. and A.A. were brought by the police to the A.S. home where they stayed until they moved to a women’s shelter. A.A.’s father returned to Iran.

[6] By all accounts the families became friends. Mr. A.S. hired S.T. to drive one of his ice-cream trucks during the summer months. This resulted in S.T. working into the evening. Mr. A.S.’s wife, F.G.A., agreed to babysit A.A. for free. The A.S.’s had two children of their own, who were teenagers when A.A. came to Canada and first met the family.

[7] While she was growing up, A.A. considered the A.S.’s to be family. Mr. A.S. was the “head of the household”. She called him uncle. She called his wife, Ms. F.G.A., aunt. When her mother could not pick her up from school or daycare either Mr. A.S. or Ms. F.G.A. would. In the summer months, A.A. would also spend weekends being cared for by Ms. F.G.A. while her mother and Mr. A.S. worked. Mr. A.S. and Ms. F.G.A. took care of her. They scolded her when she did something wrong and praised her when she was good.

[8] The families would spend time together socializing after work hours. They spent holidays together. There were occasions when A.A. and her mother would stay over at the A.S. home. They would often sleep in the guest bedroom.

[9] A.A. testified that on numerous occasions Mr. A.S. took advantage of situations where they were alone in a room or a car and sexually touched her. This would involve touching and sucking on her breasts, and touching her vagina and buttock area. This sexual abuse occurred frequently. She described in detail six of these incidents. The jury convicted Mr. A.S. of five of them. Therefore, I find that the jury rejected Mr. A.S.’s version of events, it did not raise a reasonable doubt and they were satisfied on A.A.’s evidence that these incidents occurred as she described them.

Count 1 – Sexual Interference:

[10] When A.A. was approximately six years old, she was sleeping in Mr. A.S.’s bed. Mr. A.S. came into the bedroom. He put his hand inside her underwear and fondled her vagina. She remembers panicking and not knowing what to do. She was too scared to say anything. She pretended she was sleeping and turned over to prevent him from fondling her. He then began putting his fingers inside her “butt crack” and touching her anus. She rolled back over to stop this and he once again touched her vagina with his fingers. He did not penetrate her. This sequence of events, her rolling over and him touching her “butt” and vagina continued. She recalled that it stopped when Mr. A.S.’s son, who would have been approximately fifteen years old, came into the room. A.A. took this opportunity to get up and go to the bathroom.

Count 3 – Sexual Interference:

[11] A.A. testified that when she was approximately six, seven or eight years old she was sitting on the couch in the A.S. home while others were getting ready for a party. A.A. was dressed and ready to go. She was watching the movie Shrek in the family room area of the home. Mr. A.S. sat beside her on the couch. He began fondling her breasts. He was making comments such as “oh wow, look at these”. He either pulled down her panty hose or asked her to do so. He fondled her vagina but did not penetrate it with his fingers. He asked her if he could kiss it. She said no. He proceeded to kiss her vagina. Either before, during or after this encounter, Mr. A.S.’s wife popped her head in the living room and said it was time to go to the party. Because of their positioning on the couch, his wife did not have a clear view of what was happening.

[12] After this happened Mr. A.S. whispered in A.A.’s ear not to tell anyone. She felt violated and disgusted. In some way, however, since it had happened before she thought it might be normal.

Count 4 – Sexual Interference:

[13] A.A. testified that Mr. A.S. picked her up from school and took her with him to Canadian Tire. She recalls she was wearing a dress. While in the car he reached over and groped her left inner thigh area and then moved his hand towards her vagina. She was approximately 10 or 11 years old at the time. She thinks he could have said something to the effect of “oh, this is mine”. Once again, she felt violated.

Count 5 – Sexual Interference:

[14] A.A. testified that when she was approximately 10 or 11 years old, she was sitting at the dining room table in the A.S. family home. Her mother and Mr. A.S.’s wife were out grocery shopping. A.A. was alone with Mr. A.S.. He told her to lift her shirt so he could suck on her breasts. She lifted her shirt and he sucked on her breasts. She did not say anything. She just endured him doing this. This encounter was very brief, however, because the family returned home.

Count 6 – Sexual Interference:

[15] A.A. testified that when she turned 12 years old and no longer had to attend day care or summer camp, she told her mother that she did not want to be babysat by Ms. F.G.A. at the A.S. residence anymore. Her mother agreed.

[16] When she was around 12 years old Mr. A.S. would often come to her home in the mornings to speak with her mother. While she was sleeping in her bed, Mr. A.S. would try to wake A.A. up. Often she would pretend to be asleep. He would touch her breasts and poke her vagina and leave money for her on the bedside table. He would make comments about her body parts claiming to own them. Sometimes her mother would come in when he was trying to wake her up and tell him to leave her alone.

Victim Impact:

[17] Both A.A. and her mother S.T. provided victim impact statements to the court. It is clear that the actions of Mr. A.S. have had a devastating effect on both of them. A.A. poignantly recounted the lifelong effects of the abuse on her which included being robbed of her innocence at the age of six years old; substance abuse as a means of escaping her emotions; and the impact of the abuse on her sexual behaviour. A.A. was trapped in a situation where she could not report the abuse out of fear her mother would lose her only livelihood and also her confusion about whether or not this was normal. A.A. explained how the abuse has led to mental health issues. Remarkably, A.A. is able to feel some sense of justice knowing that finally Mr. A.S. will be held accountable for his actions.

[18] S.T. described the horror of not being able to protect her daughter from abuse by a man she wholeheartedly trusted. She suffers from feelings of self-blame and sadness.

The Circumstances of the Offender:

[19] Prior to Mr. A.S. absconding, a pre-sentence report was prepared and submitted to the court. This report provides biographical information about the offender as well as input from his spouse.

[20] Mr. A.S. is 68 years old. He was born in Tehran, Iran. Both of his parents are deceased. He was one of six children. He does not have a criminal record. He married his wife, F.G.A. in 1987. They have two children who are now 34 and 28 years old. The family immigrated to Canada in 1998 to provide a better life for the children. Ms. F.G.A. described her husband as a perfect father and a good husband. Ms. F.G.A. is battling cancer.

[21] Mr. A.S. has a Ph. D. in pharmaceutical and biological studies. When he did not pass the pharmacist equivalency exam in Canada, he obtained his real estate license. He has been a licensed real estate agent since 2003. In addition to obtaining his real estate license, Mr. A.S. purchased and remodeled ice-cream trucks. In the summer months, he would operate the ice-cream trucks throughout the GTA selling ice-cream at various locations.

[22] Mr. A.S. maintains his innocence stating that the complainant and her mother have lied.

The Position of the Parties:

[23] The Crown submits that the appropriate sentence is a custodial sentence of 9-10 years in custody and various ancillary orders. The Crown submits that there are numerous aggravating factors including the age at which the abuse of A.A. began; the frequency with which she was abused; the position of trust Mr. A.S. had towards A.A.; the invasive nature of the sexual acts; and the profound and lasting effect of Mr. A.S.’s actions on A.A.

[24] The Crown acknowledges the mitigating factors of Mr. A.S.’s lack of criminal record and otherwise pro-social life. The Crown relies heavily on the Supreme Court of Canada’s decision in R. v. Friesen, 2020 SCC 9 where the Court held at para. 114 that mid-single digit penitentiary terms for sexual offences against children are normal. Upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

[25] Mr. A.S. absconded prior to sentencing. These proceedings continued without him or his input with respect to an appropriate sentence.

Aggravating Facts:

[26] I agree with the Crown that there are many aggravating facts in this case. Mr. A.S. was a person trusted by A.A.’s mother to care for her. The family relied on him for their income and emotional support after A.A.’s father returned to Iran. A.A. could not tell her mother or any adult what was happening because of the position he occupied in their life. Mr. A.S. was an authority figure. She thought if she told an adult what was happening she would get in trouble. She was worried that disclosing what was happening would ruin her mother’s life. Her mother depended on Mr. A.S. for her livelihood until 2015 when she bought her own ice-cream truck.

[27] A.A. was just six years old when the sexual abuse began. She was robbed of a safe and happy childhood. The abuse continued through her adolescence. Although Mr. A.S. was convicted of five distinct acts of sexual interference, I accept the evidence of the complainant that the sexual abuse occurred often and persisted over many years. The abuse included touching and kissing her vagina and breasts and touching her buttocks. The effect of the abuse was exacerbated by Mr. A.S. claiming to own A.A.’s body parts and leaving money for her after instances of sexual touching.

[28] Finally, we are not left to wonder about what the effect this abuse will have on A.A. She is now 25 years old and able to eloquently articulate its devastating effects. A.A. has suffered from substance abuse. She has had difficulty in school and in relationships. Her life trajectory was radically altered at six years old when Mr. A.S. began sexually touching her for his own gratification. I am, however, impressed at the positive outlook A.A. has on her life and her resolve not to let this completely overwhelm her.

Mitigating Facts:

[29] Mr. A.S. does not have a criminal record. He has been gainfully self-employed since he came to Canada over 20 years ago. His tenacity and determination in starting his own business is admirable. He has the support of his loving wife and children.

The Law:

[30] I am bound by the sentencing principles outlined in ss. 718, 718.1 and 718.2 of the Criminal Code of Canada. The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 outlines some of the factors that a sentencing judge should consider aggravating. These include: evidence that the offender abused a person under the age of 18 years; evidence that the offender abused a position of trust or authority in relation to the victim; and evidence that the offence had a significant impact on the victim. In cases of child sexual abuse, denunciation and deterrence are paramount considerations on sentence.

[31] The Supreme Court of Canada in Friesen, extensively reviewed the devastating consequences of child sexual abuse on vulnerable young victims. In doing so, the Court at para. 74 stated that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. Importantly, at para. 76 the Court emphasized that sexual offences against children are inherently wrong and always put children at risk of serious harm, even where the degree of wrongfulness, the extent to which potential harm materializes and the actual harm varies from case to case. Similarly, at para. 78 the Court held that sentencing judges must always give effect to the wrongfulness of this exploitation even if the degree of exploitation varies from case to case. The Court also emphasized at paras. 82 and 84 that any manner of physical contact between an adult and a child is inherently violent and has the potential to cause harm.

[32] The Court held at para. 114 that mid-single digit penitentiary terms for sexual offences against children are normal. Upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

[33] In Friesen, the accused was 29 years of age with no prior criminal record. The accused had experienced a very difficult childhood marked with his own sexual abuse. The accused was convicted of attempting forced fellatio on a 4-year-old victim who was a stranger to him and not in a position of trust. In those circumstances, the Supreme Court of Canada found that the 6-year sentence imposed for sexual interference was fit and appropriate.

[34] In R. v. T.J., 2021 ONCA 392, the Court of Appeal overturned the nine-month sentence imposed by the trial judge and substituted a sentence of two years. The court of appeal reiterated the dicta in Friesen that, “mid-single digit penitentiary terms for sexual offences against children are normal” and sentencing judges can impose substantial sentences even where there has only been a single instance of sexual violence and/or a single victim. T.J. at para. 39 citing Friesen at para. 114

[35] In R. v. Portillo, 2022 ONSC 2234, the accused had no criminal record and was sentenced to 8 years in jail. The victim was three to five years old at the time of the offences. The accused was his babysitter. The accused attempted to anally penetrate the child on numerous occasions. He also forced the child to perform oral sex.

[36] In R. v. G.R., [2020] O.J. No. 5263 (S.C.J.), the accused was sentenced to 5.5 years after trial. The accused was also a first offender. There were 3 incidents of sexual touching including touching the complainant’s vagina under her clothing, touching her breasts, and placing his penis on her vagina. The complainant was 9 years old and the accused was a father figure to her.

[37] In R. v. D.W., 2020 ONSC 7427, the accused was sentenced to 8 years for sexual assault and one year consecutive for uttering threats. The complainant was between the ages of 5 and 8 at the time of the offences. The accused engaged in both vaginal and anal intercourse, digital penetration, and the use of a device.

[38] In R. v. C.F., 2020 ONSC 5975, [2020] O.J. No. 4561 (S.C.J.), the offender was convicted of sexual interference and invitation to sexual touching. He sexually abused his step-daughter when she was between four or five to nine or 12 years old. The sexual abuse involved touching her vagina with his hands and mouth and having her perform oral sex on him. C.F. was 53 years old with no prior record. He had mental health issues and made eight suicide attempts. He was sentenced to 5 years in jail.

[39] In R. v. R.A., 2022 ONSC 1161, [2022] O.J. No. 897 (S.C.J.) the offender was convicted of two counts of sexual interference on his 11-year old step-daughter. The abuse involved kissing her on her mouth, and touching her vagina on three occasions. He was sentenced to 2.5 years jail.

Analysis:

[40] Mr. A.S. took advantage of his position of trust to sexually abuse a child over a period of approximately eight years. The fact that Mr. A.S. was a person who A.A.’s mother trusted implicitly to care for her child and that he was a father figure to A.A. is highly aggravating. Mr. A.S. knew that S.T. was financially dependent on him. A.A., at six years old, was extremely vulnerable. She felt disgusted and she believed that what Mr. A.S. was doing to her was somehow her fault.

[41] The impact of these offences on A.A. is immeasurable. She continues to struggle with substance abuse and mental health issues. The abuse was invasive and included touching and kissing her vagina and breasts and touching her buttocks. The effect of the abuse was exacerbated by Mr. A.S. claiming to own A.A.’s body parts and leaving money for her after instances of sexual touching.

[42] Mr. A.S. comes before me with no criminal record. He is 68 years old. His offending behaviour was completely hidden from everyone. His family believes him to be a person of good character. He has worked hard to create a better life for them in Canada.

[43] No two cases are the same. Determining a fit and just sentence is an individualized process. Having considered all of the applicable sentencing principles and the aggravating and mitigating factors in this case, I find that a fit sentence given the nature of the abuse and the fact that it occurred on multiple occasions throughout a lengthy period of time with the result of effectively robbing A.A. of a safe and happy childhood, is one of 7 years in jail.

[44] I am also granting the ancillary orders requested by the Crown. Mr. A.S. will provide a sample of his DNA. He will be placed on a s. 109 order for a period of 10 years. There will be a s. 161 order for a period of 20 years. There will be an Order that Mr. A.S. comply with the Sex Offender Information Registration Act for a period of 20 years. He will have no contact or communication directly or indirectly with A.A. or S.T. while incarcerated pursuant to s. 743.21 of the Criminal Code.

Justice J. Cameron

Released: February 16, 2023

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon

NEWMARKET COURT FILE NO.: CR-19-8606-00

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

A.S.

Defendant

REASONS FOR DECISION

Justice J. Cameron

Released: February 16, 2023

[1] Counts 1 and 2 related to the same incident of sexual abuse. The complainant was unclear of her exact age when this incident occurred. The legislation changed during the timeframe of this allegation. The Crown laid two charges with respect to the same incident to account for this change. The jury found the incident occurred in the earlier timeframe thereby convicting on Count 1 and acquitting on Count 2.