Court File and Parties

COURT FILE NO.: CR-22-013 DATE: 20240419

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King – and – D.S. Defendant

COUNSEL: K. Spensieri, for the Crown D.S., acting in person

HEARD: February 27th, 2024

Reasons on Sentencing

McCarthy J.

Introduction

[1] The Defendant returns before me for sentencing.

[2] The Crown seeks a global sentence of 3 years made up of 3 years for sexual assault and 2 years concurrent for indecent exposure.

[3] The Crown also seeks a weapons prohibition for 10 years, a non-communication order, an order for a DNA sample and a SOIRA order.

The Offences

[4] The Defendant was found guilty by a jury and convicted of the index offences on July 24, 2023. The first offence took place when the female victim was as young as 8 years old. It involved the Defendant luring her into a bedroom at his home, closing the door and proceeding to kiss the victim and caress her breasts. The second offence followed a couple of years later. The Defendant exposed a portion of his genitals to the victim within clear sight of her while she was sitting on a couch in his home.

The Defendant

[5] The Defendant offered an apology for his criminal conduct but continued to blame his use of alcohol for his memory and recollection problems. He failed to articulate any kind of sentence that he thought appropriate. He did not raise any objection to the ancillary orders sought by the Crown.

[6] The pre-sentence report indicates that the Defendant is 58 years old. He experienced a stable upbringing and has been gainfully employed throughout his adult life. He has been married for over 26 years and is a father to two adult children. He remains a supportive son to his ageing mother. He continues to battle alcohol addiction but believes that he now has that problem under control. There was no independent risk assessment before the court. He has a very dated previous record of sexual assault from 1990.

Discussion

[7] The fundamental principle of sentencing is proportionality: a fit sentence is one that is proportionate to the gravity of the offence and the moral blameworthiness of the offender: Criminal Code, R.S.C. 1985, c. C-46, s. 718.1.

[8] Section 718.01 of the Criminal Code specifies the sentencing principles for offences against children. It reads:

Objectives - offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[9] In the leading case of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 (“Friesen”), the Supreme Court of Canada directed courts to impose sentences that are commensurate with the gravity of sexual offences against children, and which reflect the normative character of an offender’s actions. The court must specifically recognize: i) the inherent wrongfulness of these offences; ii) the potential harm to children that flows from these offences; and iii) the actual harm that children suffer as a result of these offences: Friesen, at para. 76.

[10] The court in Friesen emphasized that sentencing judges should bear in mind that imposing a proportionate sentence might well require an “upward departure” from prior precedents and sentencing ranges because Parliament has increased the maximum sentences and because societal understanding of the gravity and harmfulness of these offences has deepened: Friesen, at para. 107.

[11] Friesen also tells us that to promote the uniform application of the law of sentencing in cases of sexual assault against children, the court should have regard to the following factors:

a) the risk of re-offence b) the offender abusing a position of trust c) whether the offences took place on multiple occasions over an extended period d) the age of the victim e) the danger of defining a sentence based upon the specific type of sexual activity.

Friesen, at paras. 121-147

[12] At para. 51 of Friesen, the court provided us with a chilling reminder of how sexual violence against children invades victims’ personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity.

[13] The aggravating factors in the case before me are obvious: the offender stood in a position of trust to the victim who was a close friend to his own daughter, a frequent visitor in his home and the child of a neighboring family which maintained a relationship with the Defendant’s own family. The offences also took place when the victim was meant to be spending time with the Defendant’s daughter engaging in innocent pursuits like watching television.

[14] A significant aggravating factor here is the age of the victim at the time of the offences. She was as young as 8 or 9 years of age at the time of the first offence.

[15] There was no risk assessment before the court. The Defendant has only a dated criminal record for a similar offence.

[16] There is compelling evidence of the real impact these offences have had on both the victim and on her family. The victim impact statements tell a sad tale of the aftermath left by the abuse. The victim’s parents speak of a stab directly to their heart, a sense of failure to protect their beloved daughter, a pressing need to leave the community and to start over with all the uncertainties and sacrifices that new start entailed.

[17] The victim herself described first feeling ashamed, then repressing her feelings. She suffered the uprooting and displacement of her family and separation from her childhood friend. She battled fear of counselling, recurring memories, loneliness and isolation.

[18] These were real impacts on real peoples’ lives. The Defendant’s actions have caused measurable damage to the victim and her family. We cannot know what further damage might manifest itself as the victim progresses on through young adulthood. Without any evidence, it is dangerous to speculate; but one fears for the victim’s ability to trust and to both form and maintain healthy relationships. The court in Friesen recognized that even a single incident of sexual violence can permanently alter the course of a child’s life, cause long-term distress, suffering and loss of self-esteem.

[19] The circumstances here are similar to those faced by the court in R. v. S.B., 2022 ONSC 821, [2022] O.J. No 625. There, relying upon the guidance provided by the Ontario court of Appeal in R. v. T.J., 2021 ONCA 392, 308 CCC (3d) 307, Chozik J. imposed a 3 year penitentiary sentence on a 59 year old offender who abused two children on one occasion while they were having a sleep over at his home. In the case at bar, the sexual acts, while they did not involve the Defendant pressing his genitals up against his victim as in S.B., nevertheless involved elements of touching, violation, degradation, confinement, and control.

[20] There remains the moral blameworthiness of the Defendant. He was anxious to stress how consumption of alcohol in the past had caused him to suffer a loss of memory for events. Even if I did accept this, it hardly amounts to a mitigating factor. The Defendant admits that he was acutely aware of his drinking problem. He must have been just as aware that excessive alcohol consumption would give rise to memory loss. Instead, he chose to remain complacent about his problem and carried on as he chose without apparent regard for the consequences. The Defendant’s use of alcohol, for whatever the reason and despite an apparent addiction, does not diminish his moral blameworthiness for these crimes.

[21] Finally, in light of the dual nature of the offences, the dated but concerning prior record for similar offences, and the Defendant’s lack of insight into the seriousness of these crimes, the court is satisfied that these offences demonstrate, or form part of, a pattern of behaviour showing that the Defendant presents an increased risk of reoffending by committing a crime of a sexual nature.

Disposition

[22] I am drawn to the inexorable conclusion that a penitentiary sentence is both just and fit. It is entirely appropriate to advance the principle of denunciation. Such a sentence will also remove the Defendant as a threat to re-offend for the duration of his time in custody. The sentence is proportionate to the gravity of the offences and to the moral blameworthiness of the Defendant. It takes into account the aggravating factors outlined above. It also recognizes the actual harm done to the victim and her family.

[23] The Defendant will please stand.

[24] I sentence D.S. to the 3 years for sexual assault and 2 years concurrent for indecent exposure for a global sentence of 3 years in a penitentiary.

[25] In addition, D.S. shall submit for a DNA sample pursuant to s. 487.051(1) of the Criminal Code.

[26] D.S. shall be registered on the Sex Offender Registry for life.

[27] D.S. shall be prohibited from communicating, directly or indirectly with N.P. or any members of her family during the Defendant’s period of incarceration.

[28] Finally, there shall be weapons prohibition order under s. 109 of the Criminal Code for 10 years.

[29] That is the sentence of the court.

McCarthy J.

Released: April 19, 2024

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.