COURT FILE NO.: CR-23-16104 DATE: 20240521 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – K.P. Defendant
Counsel: Nicholas Hegedus for the Crown Steven Norton for K.P.
HEARD: March 19, 2024
WARNING An order has been made under s. 486.4 of the Criminal Code restricting publication of any information that could identify a complainant or a witness in this proceeding.
Judgment on Sentence
Ruling on sentencing
C. Boswell J.
1On November 28, 2023, I convicted K.P., following guilty pleas, of one count of sexual assault of a female under the age of 16, one count of making child pornography, and one count of extortion. All charges arose from a sexual relationship K.P. engaged in with a young female, B.C.
2K.P. was not in a position to schedule a date for sentencing submissions on November 28, 2023. There were certain affairs he needed to attend to before submissions on sentence could be made. He was remanded to December 20, 2023 for the purpose of scheduling a date for sentencing submissions. On December 20, 2023, the date of March 1, 2024 was set. That date accommodated the time required by K.P. to get his affairs in order.
3Defence counsel was unfortunately ill on March 1, 2024. Sentencing submissions were adjourned to, and heard on, March 19, 2024. K.P. is before the court today for judgment on sentence.
The Circumstances of the Offences
4The circumstances of the offence are set out in an Agreed Statement of Fact filed at the time of the pleas.
5K.P. met B.C. through his wife. Her family and B.C.’s family were friends.
6K.P. began to communicate with B.C. by phone calls and text messages when she was in grade 8. She was 13 years of age. K.P. was 28. Their conversations took on a sexual tone. Eventually, K.P. arranged to pick up B.C. from her elementary school during lunch hour. The plan was for B.C. to perform oral sex on K.P. in exchange for a vape pen. The illicit encounter occurred in a local carwash.
7Over the ensuing two years, K.P. engaged in repeated sexual contact with B.C. He began to pay her $200 to $300 per encounter.
8On one occasion K.P. used B.C.’s cell phone to videorecord her performing oral sex on him. She was 15 years old at the time. At his request, she forwarded a copy of the video to him.
9B.C. eventually ended the relationship. K.P. was insistent that the relationship continue. He threatened to send the video of B.C. performing oral sex on him to her parents. At that point, she went to her parents and disclosed the relationship. A report to the police followed.
10The police obtained a copy of the oral sex video from B.C.’s phone. It is date-stamped September 18, 2020. The police also obtained a bra from B.C.’s bedroom. A swab was taken from the bra and tested positive for semen. A DNA profile was generated. A DNA warrant was subsequently executed on K.P. It was determined that K.P. could not be excluded as the donor of the semen on B.C.’s bra, to a likelihood of greater than one trillion to one.
The Circumstances of the Offender
11K.P. is a 33-year-old first time offender. He has a wife and children. He is in business with his parents and brother operating a gas station. He has continued to manage the business while awaiting the outcome of these proceedings. His job will be waiting for him following the completion of his sentence. He continues to have the support of his family.
12K.P. is not a Canadian citizen. He is a permanent resident and will face immigration issues as a result of the sentence imposed today.
13K.P. has been subject to a release order since his arrest in February 2021. He has been compliant with the terms of that order.
The Impact of the Offences
14B.C. declined to provide a victim impact statement. Her decision does not mean that K.P.’s offending was consequence free.
15The Supreme Court recently highlighted the nature of the long-term damage caused by sexual violence against children in R. v. Friesen, 2020 SCC 9. They observed that the violation of a child victim’s sexual integrity will likely lead to shame, embarrassment, unresolved anger, a reduced ability to trust others, and fear that people will abuse the victim and her body. See para. 57.
16Sexual violence against children can, and often does, cause physical and psychological harm that persists throughout childhood and into adulthood. This harm may manifest in self-destructive behaviour, outbursts of anger, sexually aggressive behaviour, an inability to make friends, low self-esteem, a drop in school performance, an extraordinary fear of males, sleep disturbances, anxiety and depression. See Friesen, para. 80.
17Survivors of child sexual abuse may have difficulty forming loving, caring relationships with other adults, may themselves be more prone to engaging in sexual violence against others, and are more likely to suffer with substance abuse and mental illness. See Friesen, para. 81.
18I do not have any direct evidence of physical or psychological harm to B.C. I think it axiomatic, however, that K.P.’s conduct was profoundly harmful to B.C. Moreover, it will undoubtedly have had a profound impact on B.C.’s parents and family members. See Friesen, para. 63.
The Legal Parameters
19The following maximum sentences apply to the offences committed by K.P.:
(a) Sexual assault attracts a maximum sentence of 14 years, where the victim is under the age of 16, pursuant to s. 271(a) of the Criminal Code. That section provides for a minimum sentence of one year. That minimum was, however, struck down by the Court of Appeal for Ontario as unconstitutional in R. v Basso, 2024 ONCA 168;
(b) Making child pornography attracts a maximum sentence of 14 years and a minimum sentence of one year, pursuant to s. 163.1(2) of the Criminal Code. That minimum was also struck down as unconstitutional by the Court of Appeal for Ontario, in R. v. Joseph, 2020 ONCA 733; and,
(c) Extortion attracts a maximum sentence of life imprisonment, pursuant to s. 346(1.1)(b) of the Criminal Code. No minimum sentence applies.
The Principles and Purposes of Sentencing
20Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: the denunciation of unlawful conduct, deterrence - both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims and the community, and the promotion of a sense of responsibility in offenders and an acknowledgment of the harm done.
21The importance of these individual objectives, and how they interact, varies from case to case. In cases involving sexual offences against children, the principal drivers of any sentence imposed are denunciation and deterrence. See s. 718.01 of the Criminal Code. The primary importance of denunciation and deterrence does not exclude consideration of other sentencing objectives. A judge may give other factors significant weight, but cannot give them precedence or even equivalency. See R. v Bertrand Marchand, 2023 SCC 26, at para. 28.
22Identifying the principal objectives engaged in any given case is only a first step. The next step is to assess what sentence is necessary to meet those identified objectives. In making that assessment the court is guided by the fundamental principle of proportionality. Section 718.1 of the Criminal Code directs that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
23Inherent in the concept of proportionality is the principle of parity. Any sentence imposed must be similar to those imposed on offenders who have committed similar offences with equivalent moral blameworthiness. Parity, in other words, is an expression of proportionality. See Friesen, at para. 32.
24Having said that, it is important to recognize that sentencing remains a highly individualized exercise. A sentencing court must focus on tailoring the sentence to the gravity of the offence, the moral blameworthiness of the offender and the harm caused by the offences. See R. v. Nur, 2015 SCC 15, at para. 43. In doing so, the sentencing court must pay careful attention to the unique circumstances of the offender and of the offence, with regard to any aggravating and mitigating circumstances present.
The Positions of the Parties
25The Crown seeks:
(a) A global sentence of 5.5 years in the penitentiary;
(b) DNA orders on all three counts;
(c) A s. 109 weapons prohibition for 10 years;
(d) An order requiring K.P. to comply with the provisions of the Sex Offender Information Registration Act for 20 years;
(e) An order, pursuant to s. 743.21 of the Criminal Code, prohibiting K.P., while he is in custody, from having any direct or indirect communications with B.C. or any member of her immediate family; and,
(f) An order, pursuant to s. 161 of the Criminal Code, prohibiting K.P. from, amongst other things, attending at certain locations where children under the age of 16 are likely to be, or engaging in certain activities with children under the age of 16.
26The Crown correctly asserts that the facts present here reflect an extended period of sexual violence against a young, female family friend. The assaults included oral sex and unprotected sexual intercourse. There are aspects of grooming and luring. Significantly, when B.C. attempted to break off contact with K.P., he threatened to send a sexually explicit video of her to her parents. The offences are very grave. And K.P.’s moral blameworthiness is, the Crown says, at the high end of the spectrum.
27The defence position is one of a global sentence of 15 months imprisonment, followed by two years of probation. The defence takes no issue with the ancillary orders sought.
28Defence counsel describes K.P. as a family man who is deeply remorseful for the harm caused by his offending. He has been a contributing member to society and will continue to be so on his release. He has been subject to a judicial interim release order for three years. He has been entirely compliant with his release conditions. He is a first-time offender, facing a significant jail sentence for the first time. The principal of restraint must be kept in mind.
Discussion
29Sentencing judges frequently begin their analyses with a consideration of the applicable range of sentence for similar offences committed in similar circumstances.
30In cases involving sexual violence against children, the starting point is Friesen. Though the Supreme Court did not engage in range-setting in its decision, it did instruct that, on the whole, sentences imposed in cases involving sexual violence against children have historically been too low. A modern understanding of the gravity of such offences and the harm caused by them supports an increase in the sentences imposed for them. The Chief Justice and Justice Rowe noted, at para. 114, that “mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.”
31Both Crown and defence counsel referred the court to a number of decisions in an effort to situate the facts of this case within the range of sentence advocated by each side.
32In addition to Friesen, the Crown referred the court to the following decisions:
(a) R. v. L.R., 2023 ONSC 6762, where a five-year sentence was imposed on a former hockey coach who carried on an ongoing sexual relationship with a 15-year-old player, at a time when he was 35. The offender had no criminal record, a history of pro-social behavior, and strong family support. He was 50 years old at the time of sentencing;
(b) R. v. J.B., 2023 ONSC 1275, where a nine-year sentence was imposed on an offender who repeatedly sexually assaulted the complainant over a two-year period when the complainant was between 10 and 12 years of age. The offender was a friend and neighbour of the complainant’s father. She did odd jobs for the offender and sometimes stayed over at his apartment. The sexual assaults included touching, digital and penile penetration. The offender had no criminal record, was employed, and was supported by his family. He was 57 years old at the time of sentencing;
(c) R. v. G.S., 2022 ONSC 120, where a five-and-a-half year sentence was imposed on an offender who had vaginal intercourse on three occasions with a young, female employee of his family’s bakery when she was between the ages of 13 and 16. He was convicted of sexual assault, sexual interference and sexual exploitation. The offender was approximately 40 years old and the complainant’s supervisor at work. He had no criminal record and was employed. He was 61 years old at the time of sentencing;
(d) R. v. Storrey, 2021 ONSC 1760, where the offender was sentenced to a global term of five years following convictions for sexual interference, assault, possession of child pornography, and making sexually explicit material available. The offender had a brief sexual relationship with a 13-year-old at a time when he was 21. They engaged in sexual intercourse on a number of occasions. The offender engaged in an inappropriate online relationship with another young female, which included the exchange of intimate images. The offender had a minor, unrelated criminal record, was employed and had a supportive family. He was intellectually disabled, functioning in the lowest 1% of the IQ range. He was 26 years old at the time of sentencing; and,
(e) R. v. R.A., 2021 ONCA 126, affirming 2019 ONCJ 684, where the Court of Appeal upheld a five-and-a-half year sentence imposed by the trial judge following a guilty plea to sexual assault, making sexually explicit material available and luring. The offender was 35 years old and met a 16-year-old male online. He engaged in grooming behaviour then engaged, over a nine-month period, in sexual activity with the complainant including oral and anal sex. The offender had no prior record, was employed and had community supports. He was 38 years old at the time of sentencing.
33Defence counsel referred the court to three decisions where sentences were imposed, in arguably similar circumstances, in lengths substantially shorter than that urged upon the court by the Crown. They include:
(a) R. v. Hall, 2023 ONSC 5291, where a sentence of 2 years less a day, together with a 2-year period of probation, was imposed on a stepfather who was convicted of sexually assaulting of his stepdaughter on a number of occasions when she was 17-18 years old. The assaults consisted of sexual touching of the complainant’s legs, genital area, and breasts. The offender was 41 years old at the time of trial. He had no prior record;
(b) R. v. D.S., 2021 ONSC 3972, where a sentence of 15 months was imposed on an offender found guilty, following a trial, of sexual assault. The assaults involved two incidents of sexual touching. The incidents involved kissing and the touching of the complainant’s hands, legs and breasts. The offender was a close family friend, who was regarded as an uncle to the complainant. The complainant was 13 years old. The offender had no criminal record. He ran a commercial trucking business with 20 employees; and,
(c) R. v. M.J., 2024 ONSC 1027, where a sentence of 15 months, together with 2 years probation, was imposed on an offender found guilty of sexual assault and sexual interference and upheld on summary conviction appeal. The offender was the stepfather of the complainant. The offence involved one incident of sexual touching when the complainant was 11 years old. The offender entered the complainant’s bedroom, laid on her bed beside her and touched her vagina over the top of her clothing. The Crown proceeded summarily and sought a sentence of 2 years less a day. The offender had no prior record.
34Counsel’s positions are obviously significantly divergent. To properly situate this case in the context of other offenders committing similar offences in similar circumstances, it is important to carefully consider the aggravating and mitigating circumstances of this case. Only then can the gravity of the offence and the moral blameworthiness of the offender be properly calibrated.
35By way of aggravation:
(a) The complainant was between the ages of 13 and 15 at the time of the offences. A disturbing aspect of the case is that K.P. picked up B.C. from school for the purpose of engaging in sexual activity with her. On at least one occasion, she was still in elementary school. Her age is recognized as an aggravating factor by s. 718.2(a)(ii.1);
(b) K.P. was a family friend. In my view, this is a position of trust. It is not at the high end of the trust spectrum, like a parent, a teacher, or a coach. But there was an element of trust in the relationship sufficient to act as an aggravating circumstance. As Crown counsel pointed out, the family connection made it much more likely that she would engage in phone and text communications with him in the first place;
(c) There were many instances of sexual activity between K.P. and B.C., spanning a two-year period;
(d) The sexual activity engaged in was very invasive. It involved incidents of oral sex and unprotected vaginal sex;
(e) K.P. engaged in luring. He began to communicate with B.C. by phone and by text. Those texts took on a sexual context. They progressed to video calls during which K.P. would masturbate while on video. These digital embraces were the means by which K.P. persuaded B.C. to engage in sexual activity with him;
(f) K.P. engaged in grooming. He offered B.C. a vape pen to perform oral sex on him. He eventually began paying her significant amounts of cash to engage in sexual activity with him; and,
(g) He created a pornographic video of her and later threatened to reveal it to her parents if she broke off their sexual relationship.
36While there is no evidence before the court of actual harm caused to B.C., it is reasonably foreseeable that she will suffer future harm given the repeated sexual assaults, the filming of sexual activity and the extortion. Those reasonably foreseeable harms were outlined in Friesen. One would expect that the offending may very well impact negatively on B.C.’s ability to form intimate relationships and to trust others. These reasonably foreseeable harms are an aggravating factor.
37By way of mitigation:
(a) K.P. is a first-time offender and, apart from these offences, appears to have been a contributing member of society;
(b) He has the continued support of his family;
(c) He is not a Canadian citizen and may face immigration consequences as a result of the convictions in this case; and,
(d) He entered a guilty plea and avoided the necessity of a trial and all that goes along with it.
38Defence counsel advised the court that K.P. was deeply remorseful. His guilty plea may be a reflection of remorse, but it may also be a reflection of the strong Crown case, which included the video of him engaging in sexual activity with the B.C., as well as the discovery of his semen on one of B.C.’s bras. When given his right of elocution, K.P. did not express remorse for his conduct. To the extent that he feels any remorse for the offences and their impact on B.C., that remorse, in the circumstances, is only minimally mitigating.
39Having regard to the prevailing aggravating and mitigating circumstances, I am of the view that the facts of this case align far more closely with the cases referred to me by the Crown than by the defence.
40Hall involved significantly less intrusive sexual activity and an older complainant.
41D.S. involved only two incidents and, again, involved significantly less intrusive sexual activity.
42In M.J., the Crown elected to proceed summarily. The offending behaviour involved only one incident of touching over the complainant’s clothing.
43In my view, this case falls squarely within the mid-single digit range applied in L.R., G.S., Storrey, and R.A. In the result, I impose a global sentence of five years imprisonment.
44Five years is an appropriate sentence for the sexual assault conviction on its own. I would be inclined to impose a sentence of six months consecutive for the conviction for making child pornography and a further six months consecutive for the conviction for extortion. These latter two offences are distinct from the conduct that made out the conviction for sexual assault. In other words, they are not so closely linked to each other as to constitute a single criminal adventure. See Friesen, at para. 155.
45Having said that, the sentence imposed remains five years in total, for the following reasons:
(a) In my view, a six-year sentence is longer than warranted in all the circumstances. A five-year sentence will sufficiently meet the objectives of denunciation and deterrence, while at the same time recognizing the principle of restraint, given that K.P. is a first-time offender and this will be his first custodial sentence; and,
(b) The Crown sought a global sentence of 5 ½ years. It would be inappropriate to exceed that sentence without have first advised the parties of my intention to do so and to invite them to make further submissions.
46I impose the following ancillary orders, which were not opposed by the defence:
(a) DNA orders on each of counts 1, 3, and 5;
(b) A s. 109 weapons prohibition for 10 years, on count 1;
(c) An order requiring K.P. to comply with the provisions of the Sex Offender Information Registration Act for 20 years;
(d) An order, pursuant to s. 743.21 of the Criminal Code, prohibiting K.P., while he is in custody, from having any direct or indirect communications with B.C. or any member of her immediate family; and,
(e) An order, pursuant to s. 161 of the Criminal Code, prohibiting K.P., for a period of ten years, from:
(i) attending 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, or a daycare centre, schoolground, playground or community centre;
(ii) being within two kilometres of any dwelling-house where B.C. ordinarily resides, works or attends school;
(iii) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and,
(iv) having any contact — including communicating by any means — with a person who is under the age of 16 years, excepting his own children, unless he does so in the presence of another adult of at least 25 years of age.
C. Boswell J.
Released: May 21, 2024
1This written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, it is this official written Ruling that is to be relied upon.
