COURT FILE NO.: CRIM J(P) 119/22 DATE: 2024 02 23 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING N. Sohail, Counsel for the Crown
– and –
Y.Y. M. Bartlett, for the Accused
HEARD: November 1, 2023
REASONS FOR SENTENCE
RESTRICTION ON PUBLICATION By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast, or transmitted in any manner. This judgment complies with this restriction so that it can be published.
F. DAWSON J.
[1] Y.Y. was convicted by a jury of one count of assault, one count of sexual assault, and one count of sexual exploitation. These offences are contrary to ss. 266, 271, and 153(1)(a) of the Criminal Code respectively. The issue before the court is the imposition of a fit sentence.
[2] The three offences were committed against the offender’s daughter M.Y. The assault occurred in October 2014 when the complainant was 14 years old. The sexual assault and sexual exploitation convictions relate to one incident which occurred in May 2016 when the complainant was 16 years old.
[3] It is agreed by the parties that the conviction for sexual assault should be stayed and that the sentence should be imposed on the sexual exploitation conviction. This is in accord with the rule in R. v. Kienapple, [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524. That is appropriate and I proceed accordingly.
Factual Background
[4] The offender and his wife have eight children. The first seven are daughters and their youngest is a son. The complainant is their fourth daughter.
[5] The offender is a devout Christian. The evidence at trial indicated that Bible studies and prayer played a prominent role within the household. The offender was the breadwinner in the family. The complainant’s mother was a homemaker.
[6] The complainant testified that her father was a strict parent who held conservative views regarding his daughters’ interactions with boys and young men. That was disputed to some extent by the complainant’s three older sisters who testified as defence witnesses before the jury. The offender did not testify at his trial.
[7] The assault conviction arises out of the following circumstances based on the complainant’s evidence at trial. On the Thanksgiving weekend of 2014 the complainant, then 14, was in the bedroom shared by two of her older sisters. She was trying to download music from a laptop computer onto her cell phone. She was talking to a boy on her phone while she did so. Her father came into the room and wanted to see her phone. She ended her phone call and gave her phone to her father. He took her phone and the laptop with him and went to the master bedroom.
[8] A while later the complainant was called into the master bedroom by her father. He confronted her concerning calls evident on her cell phone. She explained that she had been speaking to boys from her school to get help with physics and to complete a project for her history class.
[9] The offender did not accept M.Y.’s explanation. He repeatedly accused her of telling lies. When she maintained she was being truthful he said she deserved to die but that he was giving her one more chance to tell the truth. When M.Y. maintained that she was telling the truth her father began to strike her. He first stood up and struck her in the arm while standing between her and the door, causing her to fall over onto the bed. He then slapped her in the face with a heavy hand before striking her on the arm with a shoe or slipper.
[10] The offender then called his wife into the bedroom saying, “Look at all the boys she has been talking to.” When the complainant said she had done nothing wrong, her farther called her a “slut” and said she did not deserve to live. When the complainant would not change her position that she had done nothing wrong, her father hit her repeatedly and said she was going to die that night. He then kicked her hard on her right thigh. She fell back on the bed. He then got on top of her and chocked her with both hands before he was pulled off the complainant by two of her older sisters.
[11] The sexual assault and sexual exploitation offences occurred on or about May 24, 2016 when the complainant was 16 years old. She was lying in bed looking at her phone when she heard her father’s footsteps approaching. She hid her phone under her pillow and pretended to be asleep. Her father approached her bed. She was laying on her back covered by a blanket. Her father then fluffed or, as she put it, “aired” the blanket, which left her left side uncovered.
[12] The complainant then felt her father’s hands on both sides of her left thigh. Her father then gently lifted the loose-fitting leg of her sleep shorts up to just below her underwear. She then felt her father’s knuckles touch her labia in a grazing fashion. Her father then moved his hands to the waist band of her shorts and her underwear and pulled them away from her body. She thought her father was trying to look inside her underwear. When she jerked her leg her father quickly left her room. The complainant later heard her parents having sex in their room.
[13] The complainant testified that her eyes were closed throughout the entire incident, which lasted about one and a half minutes. She did not see her father but said she heard his distinctive footsteps coming from the master bedroom near her room and she knew that her mother was downstairs with one of the younger children. She described her father’s presence as different from her mother’s. She also said she knew where the other family members were in the house at the time.
[14] The jury was given clear instructions regarding the need to be satisfied beyond a reasonable doubt both that the event happened and that it was the accused who touched the complainant. The jury’s verdict signals that the accused touched the complainant as she alleged.
[15] At trial the complainant’s mother and older sisters denied that the events giving rise to the assault, which the complainant testified they witnessed in part, ever occurred. The complainant’s mother and sisters also testified to events on the night when the complainant said that she was sexually assaulted. The complainant’s mother and sisters recounted how the mother had returned home from a trip to Pakistan that evening, how her flight was delayed, and they all testified that the entire family stayed up late to socialize, try on gifts of clothing and make calls to relatives. Their evidence contradicted the complainant’s evidence regarding when she said the sexual assault occurred. Given the jury’s convictions, it is implicit in the jury’s verdicts that they rejected or did not find the defence evidence capable of raising a reasonable doubt in relation to any of the offences charged.
[16] The jury obviously accepted the main aspects of the complainant’s evidence. Pursuant to s. 724(2) of the Criminal Code, in a case tried by a jury a trial judge must accept as proven all facts, express or implied, that are essential to the jury’s verdict and may find any other relevant fact disclosed by the evidence to have been established. To the extent the underlying facts of the offences as described above are not implicit in the jury’s verdict, I find them to have been established beyond a reasonable doubt based on the evidence at trial considered as a whole. The complainant’s evidence was credible in my assessment. She gave her evidence in a straightforward manner. While it is apparent that at this point in her life she has great disdain for her father, she was balanced, restrained, and trying to be accurate when giving her evidence.
[17] On the other hand, the evidence provided by the complainant’s mother and sisters reflected an obvious and strong bias against the complainant. Significantly, their evidence tended to downplay other established problems and difficulties in the family, particularly in relation to how the offender related to family members and the complainant’s mother. In any event, it seems clear from the jury’s verdict that they found the defence evidence lacked credibility and that the complainant’s evidence was credible.
Victim Impact
[18] The complainant prepared a victim impact statement which was read in open court.
[19] The complainant feels her sisters saved her life when her father was choking her. She was afraid to sleep that night, fearing that her father would kill her. She began to have thoughts of suicide. On her way to school the next day, limping due to the kick to her thigh, she stood in traffic hoping to be hit by a car. Family members would only speak to her when her father was not around. The complainant says she felt “disowned” and cried frequently.
[20] The complainant expresses being devastated by her father touching her in a sexual manner. She says that as a result she “lost her faith”. She said her faith in God was “ripped” from her and that nothing made sense to her anymore. Bible studies and prayer had always been a part of her family’s life. She said she felt dirty and that her body itched. She said she had trouble comprehending how she could continue to live in the same house with her father. She had suicidal thoughts and attempted suicide a number of times. She has been in many counselling and therapy programs, although the details have not been provided to me.
[21] The evidence at trial showed that once the complainant’s allegations came to light the family closed ranks around the offender. The family has not accepted that these events occurred. Indeed, in the letters of support the offender filed at the sentencing hearing, family members state that the complainant is lying about what took place. It is apparent from both the trial evidence and the complainant’s victim impact statement that she is effectively separated from her mother and siblings. That has had a profoundly negative effect on the complainant.
The Offender’s Background and Circumstances
[22] Y.Y. is currently 54 years old. He has no criminal record. He was born in Pakistan on November 14, 1969. He reports having a good childhood and adolescence in a supportive family, although there were challenging economic circumstances. His family was Christian in a Muslim country and they were subjected to discrimination. He met and married his wife of 31 years in Pakistan when he was 23. As previously mentioned, they have eight children together.
[23] The offender came to Canada with his father in September 2000. His mother has passed away, but he remains close to his father and other members of his extended family.
[24] Y.Y. has a university degree in computer science which he obtained at some point in Cypress. For several years he was involved in the men’s clothing industry and owned his own business. However, in 2011 he began working as a truck driver. He owns his own truck and does long haul driving. These charges have negatively impacted his business because he is no longer able to cross the Canada-U.S. border. This has resulted in a significant decline in income.
[25] After the charges were laid the family was living in a home in Caledon. However, that home was lost in foreclosure proceedings and the offender, his wife, and his younger children are now living in rented accommodation in London, Ontario. The offender remains the sole financial support for the family and family members have written letters emphasizing that the entire family will be affected by the offender’s incarceration.
[26] The Presentence Report (PSR) indicates that the offender participated to a minimal but acceptable level in the preparation of the report. He stated that he regretted his behaviour but would not provide details of what he was regretful about or what he could or should have done differently. He told the presentence reporter that he had found a counsellor and would participate in counselling because it would “look good in court”. He is described as having no insight into his behaviour. However, the offender has indicated that he respects the court process and will follow any directions and participate in any programs that are mandated.
[27] Defence counsel arranged a psychological assessment for Y.Y. I have been provided with a report from Dr. G. Ilacqua dated October 23, 2023 titled “Psychological Risk Assessment”. In addition to interviewing Y.Y., Dr. Ilacqua administered a battery of psychological tests. Dr. Ilacqua expressed his opinion that the test results are valid, that the offender does not exhibit any significant clinical symptoms that are detrimental to his well-being, and that his level of risk for future general involvement in the legal system is low. Dr. Ilacqua also stated that Y.Y. is willing and motivated to attend individual psychotherapy.
[28] The offender volunteers at his church where he leads Bible studies and cleans and prepares food when requested to. His faith continues to be a central feature of his life. He operates a YouTube channel devoted to Bible studies.
The Positions of the Parties
[29] Crown Counsel submits that I should impose a total sentence of three years in custody: two years for sexual exploitation, and one year consecutive for assault. In terms of ancillary orders, Crown counsel asks for a DNA order, a prohibition on the offender communicating with the complainant pursuant to s. 743.21 of the Criminal Code, a weapons prohibition for 10 years, an order pursuant to s. 161 of the Criminal Code that the offender not be in any volunteer position that would require his involvement with children under 16 years of age, and an order under the Sex Offender Information Registration Act, S.C. 2004, c.10 (SOIRA) for 20 years.
[30] Counsel for the offender submits that I should impose a sentence of one year for the sexual exploitation offence, one year concurrent for the assault and two years of probation. Counsel takes no issue with the DNA order, the non-communication order, the weapons prohibition order, or the SOIRA order. However, counsel submits that an order should not be made pursuant to s. 161 of the Criminal Code.
Analysis
[31] Section 718 of the Criminal Code describes the purpose of sentencing. Amongst other things, the purpose is to denounce unlawful conduct and harm done, to deter the offender and others from offending again, to separate offenders from society where necessary and to assist in the rehabilitation of the offender.
[32] Section 718.1 codifies the fundamental principles of sentencing: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2 describes other principles of sentencing and provides that a sentence should be increased or reduced to take relevant mitigating and aggravating circumstances into account. Some aggravating circumstances are listed, but the list is not closed. The section provides that similar sentences should be imposed for similar offenders who commit similar offences and that, where consecutive sentences are imposed, care must be taken so that the total sentence does not become unduly harsh. Restraint is also warranted in imposing a custodial sentence. I bear in mind that this will be the accused’s first sentence of imprisonment.
[33] I start with the seriousness of the offences. I will deal with the offences in chronological order.
[34] The assault conviction is for simple assault. There is no bodily harm component, and no weapon was used. The complainant had no lasting physical injury because of the assault, aside from a sore leg which caused her to limp for a short period of time. The victim impact information, however, suggests that she had a lasting fear of her father. No doubt the assault caused psychological harm.
[35] I formed the impression from the presentation of the victim impact statement and from the complainant’s testimony that, despite the severity of the physical assault, she was more severely impacted by the sexual exploitation offence.
[36] I note that the maximum sentence for an assault charged under s. 266 of the Criminal Code is five years. I see this assault as relatively serious for several reasons. First, it is well known that it is very dangerous to choke someone. The complainant said that her father applied significant pressure to her neck restricting her airway. She was having trouble breathing. He was telling her that she did not deserve to live. Experience in homicide cases teaches that neck compression can lead to death surprisingly quickly on occasion. It seems that the offender was enraged at the time. He is not a small individual. He was completely dominating his 14-year-old daughter both physically and mentally at the time of the assault. He had to be dragged off. The complainant feared for her life.
[37] The assault was prolonged and completely unjustified. Prior to the choking the offender struck his daughter repeatedly. He also kicked her. These blows were forceful and directed primarily to her arms and legs. The incident amounted to a half-hour long reign of terror. Physical assaults are not permitted for disciplinary purposes for a child of 14 and what occurred here was a breach of trust and a complete abdication of expected parental restraint.
[38] In terms of his degree of responsibility for the assault, the offender is entirely responsible. After her father took her phone and the laptop computer from her the complainant went to her room, said she uttered a short prayer, and then awaited her fate. That came soon afterwards when her father called her into his bedroom, relentlessly accused her of lying about the nature of her contact with boys, and then beat her and choked her until other family members intervened.
[39] Turning to the sexual exploitation offence, the seriousness of the offender’s misconduct must be considered in the light of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. At para. 5 of its judgment, the Supreme Court of Canada declared: “[W]e 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.”
[40] In its extensive judgment the Supreme Court of Canada went on to thoroughly examine the way courts in Canada have approached sexual offences against children over the years, to review our changing knowledge and understanding concerning the impacts of sexual offences on children and the wider community, to redirect courts concerning the approach that should be taken when sentencing offenders, and to elucidate how various factors should be considered and evaluated in the sentencing process.
[41] One of the overarching messages of Friesen is that even non-penetrative and/or seemingly less serious levels of sexual touching or violation of sexual integrity can have very profound and lasting negative impacts on the victim, their families and society. These considerations are apt in this case. Here the level of touching or intrusiveness was at the lower end of what is often seen in the sexual abuse of children. There was no penetration, no efforts by the offender to seek sexual gratification in the moment, the incident was relatively brief, and the incident was not repeated. Nonetheless, it is clear from the victim impact statement and the complainant’s evidence that she has been negatively impacted by the event in a profound way. This has been exacerbated by the fact that she has been ostracized by her entire family, who have closed ranks behind her father. This is the kind of harm discussed in Friesen.
[42] Against the background of the reformation brought about by Friesen, I turn to an objective assessment of the various relevant circumstances to be considered and balanced to determine a fit sentence.
[43] First, I note that s. 153(1.1)(a) of the Criminal Code specifies a maximum sentence for sexual exploitation of 14 years and a minimum sentence of one year. The mandatory minimum sentence has been upheld as constitutional in some cases: R. v. Reid, 2020 ONSC 5471; R. v. E.J.B., 2018 ABCA 239. It has been struck down as unconstitutional in other cases: R. v. J.C.-P, 2017 ONSC 4246; R. v. Hood, 2018 NSCA 18; R. v. E.O., 2019 YKCA 9. There is no definitive authority which is binding on me, and I am advised that the offender has instructed his counsel not to raise the validity of the minimum sentence. Indeed, defence counsel submits that the minimum sentence is the appropriate sentence in this case.
[44] In terms of aggravating factors, several statutory aggravating factors are present. The offender is the complainant’s biological father. He abused a position of trust and authority in relation to both the assault and the sexual exploitation: s. 718.2(a)(ii.2) of the Criminal Code. It is also aggravating that the victim was under 18: s. 718.2(a)(ii.1). In terms of non-statutory aggravating factors, these offences occurred within the complainant’s home where she was entitled to be safe. As already mentioned, the negative impacts upon the complainant have been profound. Her mental health has been impacted on a long-term basis by both offences. She has been suicidal. She feels ostracized and abandoned by her family. She has ongoing fear for the safety of her younger siblings who still reside with her father, and she has had to spend considerable time and effort on counselling and therapy.
[45] In terms of mitigating factors, the offender has no criminal record. He has always worked hard to provide for his family. He has a long-term marriage, and his wife and other family members continue to support him. He is involved in his church and has various prosocial and religious endeavours to his credit. The psychological assessment of the offender shows he is at low risk to reoffend and is willing to engage in counselling. These factors enhance the prospect of rehabilitation.
[46] There are some factors which are neither aggravating nor mitigating which are nevertheless relevant. Based on the presentence report, the offender has no insight and his expression of remorse is limited. His willingness to engage in counselling may be self-serving for the purpose of “looking good in court”. It is also undoubtedly true that the sentence to be imposed on the offender will have a significant negative economic impact on his family. While I take all these factors into account, they play a relatively limited role in determining the sentence. Pursuant to s. 718.01 of the Criminal Code, because this case involves the abuse of a person under 18 years of age, primary consideration must be given to denunciation and deterrence.
[47] In terms of a range of sentence, pre-Friesen cases are of limited value. Crown and defence counsel have referred me to several cases. The cases the Crown has referred me to are of assistance on matters of principle, but they are not factually similar and, therefore, are of less assistance in terms of quantum.
[48] Of the cases referred to by defence counsel, emphasis is placed on the post-Friesen decision in R. v. Lavergne, 2023 ONCA 592. In Lavergne, the appellant was a high school teacher who was convicted of sexual assault on an 18-year-old female student on the basis that he slapped her on the buttocks on one occasion. He was also convicted of sexual exploitation of a 17-year-old female student whom he touched repeatedly over an 18 month period. An appeal from a sentence of 14 months imposed by the trial judge was dismissed. Counsel for the offender submits that a lesser sentence is justified for sexual exploitation in the present case because there was only one act involved in the case at bar.
[49] Defence counsel also referred me to R. v. P.S., 2021 ONSC 5091 and R. v. Reid, 2020 ONSC 5471. Both cases considered Friesen. In P.S. the accused was convicted of sexual exploitation for performing oral sex on the complainant on one occasion in 1988 when he was in a position of trust in relation to the complainant. The complainant was 12 or 13 years old at the time and the accused was 30. The maximum sentence for sexual exploitation prosecuted by indictment was five years at the time of the offence and there was no minimum sentence. It is now 14 years with a one year minimum. The accused was 71 years old when convicted, had no criminal record, expressed remorse, had a positive PSR and was assessed as a low risk to reoffend. The accused received a conditional sentence of 12 months. I observe that a conditional sentence is no longer available for sexual exploitation due to the minimum sentence of one year that now applies: s. 742.1(b) of the Criminal Code.
[50] In Reid, the accused was convicted of sexual exploitation of a student at the high school where he was a teacher. The exact nature of the inappropriate conduct is not apparent from the judgment, but the court indicated the case involved “extreme grooming behaviour” and post-offence contact between the accused and the complainant. The accused was sentenced to 18 months in jail to be followed by 12 months of probation.
[51] These post-Friesen cases I have been referred to all involve a breach of trust. However, none of them involves an offence occurring within the family, which is capable of being viewed as an even greater breach of trust. While these cases may frame the bottom of the sentencing range for sexual exploitation involving a breach of trust, they are not of great assistance in determining a sentence in the present case. I note that in Friesen, at para. 114, the Supreme Court of Canada held that “mid-single digit penitentiary terms for sexual offences against children are normal…”
[52] Counsel for the offender submits that the sentences for the two offences I am dealing with should be concurrent. I do not agree. These are completely unrelated offences which were committed approximately two years apart. They are different in nature. In my respectful view, consecutive sentences are most appropriate in these circumstances: s. 718.3(4)(b) of the Criminal Code; R. v. Chisholm, [1965] 4 C.C.C. 289 (Ont. C.A.).
[53] Viewed objectively and compared to the wide-ranging nature of sexual offences committed against children, this offence of sexual exploitation does not fall near the more serious end of the scale. Nonetheless, as indicated in Friesen, such assaults are often very damaging at several levels. Here there is evidence of a significant impact on the victim.
[54] As previously mentioned, I also regard the physical assault that occurred when the complainant was 14 to be quite serious, particularly because she was choked and told she did not deserve to live. If the complainant’s sisters had not pulled the offender off, he might have caused the complainant serious injury or even death.
[55] Overall, I consider a total sentence of three years, as sought by the Crown, to be reasonable having regard to Friesen, the serious nature of the physical assault and the appropriateness of consecutive sentences in the circumstances. However, I must also recognize that this is a first sentence of imprisonment for an offender with no criminal record and that restraint and the total impact of the sentence must be given due consideration. While in some respects I consider the physical assault to be every bit as serious as the sexual exploitation, having regard to Friesen’s upward pressure on the sexual exploitation sentence and the need to act with restraint and with regard to the total impact of the sentence, I impose a sentence of two years on the sexual exploitation offence, which is count two of the indictment, and six months consecutive on the assault offence, which is count three of the indictment. Count one, charging sexual assault, is stayed pursuant to Kienapple.
[56] In addition, the offender is ordered to provide a sample of his DNA for inclusion in the convicted offenders’ data bank. The offender will be subject to a weapons prohibition order pursuant to s. 110 of the Criminal Code for a period of 10 years. An order is also made pursuant to s. 743.21 of the Criminal Code prohibiting the offender from communicating directly or indirectly with the complainant, M.Y., during the custodial period of his sentence. Pursuant to s. 490.012 of the Criminal Code the offender is to be the subject of a SOIRA order for a period of 20 years.
[57] Regarding the order pursuant to s. 161 of the Criminal Code sought by Crown counsel, I accept the submissions of defence counsel that such an order is not available in this case. I note that the offence of sexual exploitation found in s. 153 of the Criminal Code is not an offence to which s. 161 applies: s. 161(1.1). While sexual assault, s. 271, is an offence to which s. 161 applies, it only applies in respect of a complainant who was under 16 years of age at the time of the offence. The complainant in this case was 16 years old when the sexual offences were committed. Therefore, a s. 161 order is not available.
Justice F. Dawson Released: February 23, 2024