COURT FILE NO.: CRIM J(P) 1167/18
DATE: 20241022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Sierra Skoropada, for the Crown
- and -
M W
Jamie Kopman, for Mr. W
HEARD: February 20, 2024
PUBLICATION BAN
These reasons for sentence are subject to an order, under section 486.4(1) of the Criminal Code, prohibiting any information that could identify the victims in this case from being published in any document, broadcast, or transmitted in any way. This version has been modified to comply with that order and is not subject to it.
REASONS FOR SENTENCE
Stribopoulos J.
Introduction
[1] After a trial, I found Mr. W guilty of six charges: two counts of sexual interference, two counts of sexual exploitation, and two counts of sexual assault— one count of each relating to each of the two victims, I A and V E.
[2] There has been a long delay between the court delivering its reasons for judgment on August 29, 2023, and the imposition of sentence in this case, which requires some explanation.
[3] The sentencing hearing was scheduled for nearly six months after the court released its reasons for judgment to accommodate defence counsel’s limited availability. However, on the date long scheduled for the sentencing hearing, defence counsel applied to adjourn the hearing to permit a different lawyer, still not retained at that point, to bring an application to have the proceedings against Mr. W declared void ab initio or, in the alternative, for a mistrial.
[4] Given that Mr. W brought his adjournment application without notice and because the victims had travelled some distance to deliver their victim impact statements at the sentencing hearing, the court dismissed the adjournment application without prejudice to Mr. W to bring his void ab initio / mistrial application after the sentencing hearing. The sentencing hearing proceeded as scheduled.
[5] Represented by a different lawyer, Mr. W eventually brought his application to declare the prosecution against him void ab initio or, in the alternative, for a mistrial. The Crown responded with an application to amend counts two and six in the indictment. On the date initially scheduled for the hearing of those applications, Mr. W’s new lawyer unexpectedly could not attend. The court finally heard those applications on August 2, 2024. It dismissed Mr. W’s application and granted the Crown’s application to amend counts two and six.
[6] These developments are the reason for the significant delay in imposing sentence in this case.
Circumstances of the Offences
[7] The court's reasons for judgment detail the circumstances of Mr. W's offences: see R. v. M.W., 2023 ONSC 4913. As a result, only a short summary of the facts is necessary for these sentencing reasons.
[8] Mr. W is Ms. E's first cousin on her mother's side of the family, and Ms. A is a first cousin on Ms. E’s father's side. After immigrating to Canada from Cameroon in 2008, Ms. A lived with the E family while attending high school.
[9] Mr. W arrived in Canada from Cameroon in 2009. He came to live with the E family shortly before or around his eighteenth birthday and stayed with them for several years. Mr. W is approximately three years older than Ms. A and four years older than Ms. E.
[10] In the E home, Mr. W held a position of authority over the children, including Ms. A and Ms. E. The family, devoutly Catholic, considered Mr. W to be highly religious and spiritual because he had made what they believed to be a miraculous and complete recovery, through the power of prayer, from an unexplained childhood illness that had left him unable to walk and in a wheelchair.
[11] Mr. W held himself out as a religious and spiritual guide, and the family entrusted him as such, especially toward the children. Additionally, given that he was several years older than the children in the home, he was responsible for assigning chores to them. Given all this, Mr. W held a position in the household that was on par with the parents.
[12] In finding Mr. W guilty of the charges, I was satisfied beyond a reasonable doubt that he repeatedly subjected Ms. A and Ms. E to non-consensual sexual acts by exploiting his authority over them. And, further, that the abuse began before their 16th birthdays and continued when they were between the ages of 16 and 18. Mr. W sexually assaulted Ms. A and Ms. E by manipulating each of them into believing that there was something wrong with them from a spiritual standpoint and that the sexual acts he subjected them to during their private "prayer" sessions were necessary to cure them of whatever it was that ailed them. Using that artifice, Mr. W sexually abused both Ms. A and Ms. E for years.
[13] With Ms. A, the sexual abuse took place when she was between the ages of 15 and 19, and Mr. W was between the ages of 18 and 22. It mainly consisted of non-consensual vaginal intercourse, a few instances of anal intercourse, and one occasion of vaginal digital penetration. The acts of sexual intercourse occurred regularly, at least every week and sometimes multiple times per week.
[14] Given the duration and frequency of these incidents, Mr. W subjected Ms. A to non-consensual sexual intercourse on hundreds of occasions. Additionally, when she was 17, Ms. A became pregnant because the intercourse she had with Mr. W was unprotected. He arranged an abortion and accompanied her when she had it.
[15] With Ms. E, the sexual abuse began shortly before or after her 14th birthday, when Mr. W would have been 18. It consisted of him touching a crucifix to her temple, hip, bare breast, and nipple during some initial "prayer" sessions. After a pause, there were a couple of further incidents involving digital vaginal penetration later that same year.
[16] A few years later, when Ms. E was 17, the summer after she finished high school, and Mr. W was 22, the "prayer" sessions began again. However, they escalated to include kissing, him sucking her breasts, digital penetration, vaginal intercourse and a couple of instances of him performing oral sex on her. That summer, she estimated the incidents involving sexual intercourse happened on an almost daily basis, except for those days when she had her period.
[17] The sexual abuse, including sexual intercourse, continued after that, albeit less frequently, even after Ms. E left for university and Mr. W relocated for college. It ended in the Fall of 2015 when Ms. E was 18 and Mr. W was 23.
[18] Given the duration and frequency of the sexual abuse she described, Mr. W subjected Ms. E to non-consensual sexual intercourse somewhere between 60 and 100 times.
Impact on the Victims
[19] Ms. A and Ms. E prepared and read victim impact statements at the sentencing hearing. Mr. W's crimes have had a devastating impact on each of them.
[20] The sexual abuse perpetrated by Mr. W made Ms. A feel powerless, afraid and ashamed. Before being victimized by Mr. W, Ms. A was outgoing and extraverted. Because of the abuse, she became withdrawn, which negatively affected her ability to maintain friendships and has adversely impacted her relationship with her current partner. The sexual abuse has resulted in Ms. A experiencing panic attacks, developing body image issues, and having a problematic relationship with food. In the aftermath of the abuse, Ms. A was diagnosed with post-traumatic stress disorder, depression and anxiety.
[21] Similarly, Mr. W's crimes have negatively impacted every facet of Ms. E's life, affecting her personal, professional, and romantic relationships. Her interactions with other people can sometimes be fraught because of the lingering psychological effects of the abuse she suffered. She feels isolated and often hopeless. In the aftermath of the abuse, Ms. E has struggled with depression, anxiety, debilitating intrusive thoughts, feelings of shame and low self-worth. These impacts negatively affected Ms. E's academic performance, which delayed her realizing her goal of studying medicine and limited her choices of medical schools.
[22] During their trial evidence, Ms. A and Ms. E also each described turning away from religion because of how Mr. W had used it to manipulate and sexually abuse them.
[23] It is apparent from Ms. A's and Ms. E's victim impact statements and their trial testimony that the effects of the sexual abuse they suffered have been significant and long-lasting. Tragically, it seems likely that they will continue to experience the impact of Mr. W's crimes for years to come and potentially even the rest of their lives.
Circumstances of the Offender
[24] Mr. W is now 32 years old. He was born in Cameroon and is one of eight siblings. At 17, he immigrated to Canada with his mother and most of his siblings before eventually moving into the E home. He is a permanent resident of Canada.
[25] Mr. W does not have a criminal record; the crimes for which he was found guilty represent his first offences.
[26] Mr. W married in 2017. He and his wife have two daughters; the oldest is three years old, and the youngest is only 11 months old. Since the birth of their younger daughter, Mr. W's wife has not returned to work. Currently, Mr. W is the sole provider for his young family.
[27] As of September 2023, Mr. W has been a manager at a Speedy Glass location. Before that, he was not working for a couple of years due to injuries he sustained in a motor vehicle accident in late 2021. While he was off work, his wife supported the family. Before the accident, Mr. W had been employed consistently since graduating from college.
[28] At the sentencing hearing, several character letters were filed on behalf of Mr. W. These were from his family, a lifelong friend, the pastor at his local church, a reverend from a church in Cameroon with an international congregation, and two Cameroonian community organizations in Ontario. One organization serves the Greater Toronto Area, while the other serves the Niagara Region.
[29] Mr. W's family and friends describe him as a kind, engaged, loving father, husband, sibling, and friend. Those who know him from the churches and community organizations referenced the leadership roles he has taken on in each and attested to the essential contributions he has made to them through his efforts. They described Mr. W in uniformly favourable terms, noting that he is a person of good character who is generous, kind, diligent, hard-working, and well-respected by everyone in the churches and organizations.
Positions of the Parties
[30] On behalf of the Crown, Ms. Skoropada began her submissions by emphasizing that the primary sentencing objectives for sexual offences against children are denunciation and deterrence. She then turned to the mitigating and aggravating circumstances.
[31] Concerning the mitigating, Ms. Skoropada acknowledged that Mr. W's youthfulness when he committed his offences is a mitigating factor. However, she submitted that the character references on his behalf are not. In that regard, she argued that sexual offences occur in private and, therefore, Mr. W's reputation in the community is of little relevance to determining the appropriate sentence for his crimes.
[32] Turning to the aggravating circumstances, Ms. Skoropada submitted there were several and that they were significant. She argued that these included that Mr. W's offences involved a profound breach of trust, the ages of the victims, who were only adolescents when the abuse began, the intrusiveness of the sexual acts involved, the duration and frequency of the sexual abuse, that the abuse took place in the home of the victims, the highly manipulative grooming behaviour involved which exploited the faith of the victims, and the considerable and lasting harm the crimes have caused them.
[33] During her submissions, Ms. Skoropada emphasized the guidance provided by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, concerning the sentencing of offenders who commit sexual offences against children.
[34] Regarding the appropriate sentence, Ms. Skoropada submitted that if the court were sentencing Mr. W separately for his offences involving each victim, a sentence of eight to ten years of imprisonment would be appropriate in the case of each, resulting in a sentence of between 16 and 20 years. However, to take account of the totality principle, she argued that the court should impose a global sentence of 12 to 14 years of imprisonment.
[35] Additionally, Ms. Skoropada noted that a DNA order is mandatory, given that the offences involved are primary designated offences: see Criminal Code, R.S.C. 1985, c. C-46, ss. 487.04, 487.051(1). Further, she requested a weapons prohibition order under section 109 of the Criminal Code for ten years and life, an order requiring Mr. W to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 ("SOIRA") for 20 years, prohibition orders under sections 161(1)(a) and 161(1)(b) of the Criminal Code, and a non-communication order under section 743.21(1) of the Criminal Code.
[36] On behalf of Mr. W, Mr. Kopman acknowledged that Mr. W's crimes are gravely serious and warrant a substantial penitentiary sentence. He did not challenge the presence of the various aggravating factors that Ms. Skoropada identified during her submissions. However, concerning the offence of sexual interference involving Ms. E, Mr. Kopman pointed out that the crime involved a few incidents of sexual touching and one incident of digital penetration and that the abuse did not escalate to include sexual intercourse until she was 17.
[37] Regarding the mitigating factors, Mr. Kopman noted that Mr. W has no criminal record. He emphasized how young Mr. W was when he committed his crimes and that, at the time, he had only recently arrived in Canada and was navigating all the challenges that came with such a significant life transition. Additionally, Mr. Kopman noted the contributions that Mr. W has made to the community since arriving in Canada, including the critical role he has played within his local church and the other organizations he is a part of, all of which have thrived, in large part because of his efforts.
[38] Further, Mr. Kopman noted the significant collateral immigration consequences that Mr. W's convictions will occasion. Because he is a permanent resident, Mr. W will likely face deportation. His separation from his young family could very well be the likely outcome. Mr. Kopman argued that the court must consider that when fashioning an appropriate sentence.
[39] Ultimately, Mr. Kopman argued that the court should impose a global sentence of 8 to 10 years for Mr. W’s offences. In taking that position, Mr. Kopman emphasized the strong parallels between this case and R. v. B.M., 2023 ONCA 224, in which the Court of Appeal imposed a seven-year sentence.
[40] Mr. Kopman took no issue with the DNA, weapons prohibition, or 743.2 orders sought by the Crown. However, he submitted that there is no justification for increasing the SOIRA order's duration beyond the ten-year minimum period. Further, he argued that nothing about the circumstances warranted the court making an order under section 161 of the Criminal Code.
Law and Analysis
[41] Sentencing is discretionary by nature. There is no set formula that judges can follow to decide the appropriate sentence. Instead, judges must consider the purpose and objectives of sentencing and be mindful of the governing sentencing principles, especially the need to impose a proportionate sentence. Against that backdrop and after accounting for the aggravating and mitigating factors, the sentencing judge must fashion a just and appropriate sentence.
Purpose, objectives, and principles of sentencing
[42] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing "to respect for the law and the maintenance of a just, peaceful and safe society": Criminal Code, s. 718.
[43] Achieving that purpose requires the court to impose "just sanctions" that reflect one or more traditional sentencing objectives: see Criminal Code, s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see ss. 718(a)-(f).
[44] Ultimately, the court must respect the fundamental principle of sentencing: that any sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender": Criminal Code, s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender's level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43.
[45] The principle of parity is an essential consideration in arriving at a proportionate sentence. Proportionality is a function of the circumstances of the offence and offender compared to sentences previously imposed on similar offenders for similar offences committed in similar circumstances. As the Supreme Court has explained: "Individualization and parity of sentences must be reconciled for a sentence to be proportionate": R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code, ss. 718.2(a) and (b). However, they do not operate in tension; "parity is an expression of proportionality": Friesen, at para. 32; see also paras. 30-33 more generally; see also R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 51.
[46] Parliament has also recognized restraint as a principle of sentencing: see Criminal Code, ss. 718.2(d) and (e). The Court of Appeal has identified it as a crucial consideration when sentencing first offenders like Mr. W. For such offenders, where a custodial sentence is necessary, the principle of restraint requires the imposition of the shortest possible sentence capable of achieving the objectives of sentencing: see R. v. A.B., 2023 ONCA 254, at para. 55; R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, at para. 37; R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-35.
[47] With the purpose, objectives and principles of sentencing summarized, these reasons next consider the specific guidance provided by Parliament, the Supreme Court of Canada, and the Court of Appeal for Ontario regarding sentencing for sexual offences against children.
Sentencing for sexual offences against children
[48] Parliament has instructed that 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": Criminal Code, s. 718.01.
[49] In its unanimous decision in Friesen, the Supreme Court of Canada offered essential guidance for courts sentencing offenders who commit sexual offences against children. It did so to ensure that "sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim": Friesen at para. 43.
[50] The Supreme Court in Friesen made various observations concerning sexual offences against children. It recognized the inherent wrongfulness of such offences and the profound harm and life-altering consequences they occasion for victims at paras. 50-67. To ensure that sentences for such crimes respect the proportionality principle, the Supreme Court provided guidance to ensure that the sentences reflect the gravity of such offences. It instructed that sentencing judges "must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences": at para. 76; see also at paras. 77-86.
[51] Further, the Supreme Court in Friesen identified various factors that courts should consider in determining a fit sentence for sexual offences against children. These include (1) the offender's likelihood to reoffend (paras. 122-124); (2) the abuse of a position of trust or authority (paras. 125-130); (3) the duration and frequency of the abuse (paras. 131-133); (4) the age of the victim (paras. 134-136); (5) the degree of physical interference, while not giving it undue emphasis given that there is no hierarchy of physical acts and remembering the emotional and psychological harm associated with all crimes of this nature (paras. 137-147); and (6) the irrelevance of a victim's participation in the act(s) (paras. 148-154).
[52] Although the Supreme Court in Friesen acknowledged that it was not its role to establish a sentencing range for sexual offences against children, it did make some crucial observations concerning the potential length of such sentences. It noted "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 circumstances.": at para. 114. Further, it observed that substantial sentences could result even in cases "where there was only a single instance of sexual violence and/or a single victim": at para. 114.
[53] In Ontario, the post-Friesen sentencing decisions involving offenders in positions of trust who commit sexual offences against children range between five and ten years of imprisonment: see R. v. C.B., 2021 ONSC 187 (five years); R. v. L.R., 2023 ONSC 6762 (same); A.B. (same); R. v. G.R., 2020 ONSC 7411 (5 1/2 years); R. v. K.Y., 2021 ONCJ 26 (six years); R. v. M.A., 2022 ONSC 1496 (7 years); B.M., (same); R. v. A.S., 2023 ONSC 983 (same); R. v. A.K., 2022 ONCA 508 (8 years); R. v. R.V., 2022 ONSC 2332 (same); R. v. Hilal, 2023 ONSC 4270 (same); R. v. J.B., 2023 ONSC 1275 (9 years); R. v. G.B., 2024 ONCA 757 (same); R. v. G.C., 2020 ONSC 7381 (10 years); R. v. R.G., 2022 ONCJ 204 (same); but see R. v. R.S., 2022 ONSC 4604 (11 years).
[54] Where a particular case falls within that wide range is a function of its aggravating and mitigating circumstances. Further, the sentences imposed post-Friesen are in keeping with observations made by the Court of Appeal over two decades ago in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 44:
... that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.
[55] With the sentencing range identified, these reasons next consider this case's aggravating and mitigating circumstances.
Aggravating and mitigating circumstances
[56] In determining the appropriate sentence, a sentencing judge must consider any aggravating or mitigating circumstances relating to the offence or the offender: see Criminal Code, s. 718.2(a).
[57] An inventory of aggravating and mitigating circumstances relating to the offence and the offender is essential to evaluating the offence's gravity and the offender's degree of responsibility in its commission. They push the sentence up or down the scale of appropriate sentences within the established sentencing range: see Nasogaluak, at para. 43.
[58] I will begin with the aggravating factors before turning to the mitigating. There are several significant aggravating circumstances in this case.
[59] First, when he committed his offences, although he was not much older than them, Mr. W was in a position of trust relative to Ms. A and Ms. E. The family entrusted him as a religious and spiritual guide, especially for the children. Mr. W exploited that position and the authority it provided him over the victims to commit his offences. A breach of trust is a significant aggravating factor because it increases the level of harm an offence causes the victim and, consequently, the gravity of the crime; it also evidences an offender's heightened degree of moral blameworthiness in its commission: see Criminal Code, s. 718.2(a)(iii); Friesen, at paras. 126-129.
[60] Second, the nature and extent of the grooming behaviour that Mr. W engaged in to facilitate his offences against Ms. A and Ms. E is a significant aggravating factor: see Friesen, at para. 125; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 43. Through an elaborate and prolonged ruse, Mr. W exploited Ms. A's and Ms. E's faith to convince them that the acts of sexual abuse he perpetrated against them were essential for their spiritual well-being. Mr. W's behaviour was extremely manipulative and demonstrates a high degree of moral blameworthiness on his part. At the same time, his conduct effectively severed the bond that Ms. A and Ms. E once had with their religion, which reflects upon the gravity of his crimes.
[61] Third, the frequency and duration of the sexual offences perpetrated by Mr. W is also a significant aggravating factor. The sexual abuse perpetrated by Mr. W against Ms. A and Ms. E lasted several years. Mr. W subjected Ms. A to hundreds of non-consensual sexual acts, and although the incidents involving Ms. E were not nearly as numerous, the number was still substantial. The frequency and duration of the acts of sexual violence perpetrated against a victim are aggravating because they increase the harm to the victim and betray a heightened level of moral blameworthiness on the part of the offender: see Friesen, at paras. 131-133.
[62] Fourth, there is the degree of physical interference with the bodily integrity of Ms. A and Ms. E associated with the sexual offences committed by Mr. W. Some of the acts of digital penetration involving both victims were extraordinarily intrusive and very painful: see M.W., at paras. 33-34; 106-107. Additionally, Mr. W subjected each to repeated acts of vaginal intercourse and, in the case of Ms. A, a few instances of anal intercourse. Finally, at least with Ms. A, the acts of vaginal intercourse were unprotected, resulting in her becoming pregnant and having an abortion.
[63] The highly invasive nature of the sexual offences perpetrated by Mr. W heightens the gravity of his crimes and, as such, is a significant aggravating factor. Relatedly, Ms. A's pregnancy and abortion are exceptionally aggravating circumstances: see Friesen, at paras. 138-139.
[64] Fifth, the ages of Ms. A and Ms. E are aggravating factors, at least to the extent that some of the acts occurred when they were under 16 and still at the most vulnerable stage of their adolescent development: see Friesen, at para. 136. That is especially the case for Ms. A, who was routinely subject to acts of vaginal, and less frequently anal, intercourse when she was only just 15.
[65] Finally, the significant impact of Mr. W's offences on Ms. A and Ms. E is an aggravating factor: see Criminal Code, s. 718.2(a)(iii.1). Although to their considerable credit, each has achieved a high degree of academic success and is well on the way to realizing their long-term professional goals, they are far from free of the impact of the abuse they endured. The victim impact statements demonstrate the profound emotional and psychological harm caused to Ms. A and Ms. E by Mr. W's offences. These effects persist despite the passage of many years since the physical abuse ended. As such, it reflects upon the gravity of Mr. W's crimes and qualifies as an aggravating factor when determining the appropriate sentence: see Friesen, at para. 85.
[66] Having summarized the significant aggravating circumstances in this case, I turn to the mitigating. There are three.
[67] First, Mr. W does not have a criminal record; these are his first offences, which is a significant mitigating factor: see R. v. Dobis (2002), 2002 CanLII 32815 (ON CA), 58 O.R. (3d) 536 (C.A.), at para. 28.
[68] Second, Mr. W was relatively young, between 18 and 23, when he committed his offences. His youth is a mitigating factor because the conduct of youthful offenders, given their lack of life experience and immaturity, is not as blameworthy as that of older and more mature offenders: see Clayton C. Ruby, Sentencing, 10th ed (Toronto: LexisNexis, 2020), at §5.187.
[69] Finally, Mr. W's positive employment history, family support, and community involvement are mitigating factors. Taken together, they bode well for his eventual rehabilitation.
Collateral immigration consequences
[70] Mr. W, as a permanent resident of Canada, is likely to be deported due to the maximum sentences available for his offences: see Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1)(a), 36(2)(a), 44, 45, 64(1).
[71] The court may consider the collateral immigration consequences resulting from a criminal conviction in fashioning the appropriate sentence "provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender": R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14, see also at paras. 15-16, 20.
[72] In other words, the court cannot impose a sentence that fails to respect the proportionality principle to avoid collateral immigration consequences: see R. v. R.B., 2013 ONCA 36, 114 O.R. (3d) 465, at para. 24; R. v. R.L.S., 2020 ONCA 338, at paras. 10; R. v. G.F., 2022 ONCA 44, at para. 8.
The appropriate sentence
[73] To arrive at an appropriate sentence, the court must remember the purpose, objectives, and principles of sentencing, including that the most pressing objectives when sentencing for sexual offences against children are denunciation and general deterrence, the range of sentences for crimes of that nature, and the aggravating and mitigating circumstances relating to Mr. W and his offences. While doing so, the court must respect the principle of parity, an essential guide in arriving at a proportionate sentence. Finally, the court must also consider the principle of restraint, which is critical because Mr. W is a first offender.
[74] As noted, the range of sentences for sexual offences against children involving a breach of trust is between five and ten years of imprisonment. The length of sentences established under that range reflects the priority given to the objectives of denunciation and deterrence in sentencing for such offences. Where a particular sentence falls within that broad range is ultimately a function of a given case's aggravating and mitigating circumstances.
[75] Not surprisingly, offenders like Mr. W, whose offences are at the graver end of the spectrum because they subjected their victims to repeated acts of intercourse over an extended period, tend to receive sentences at the upper end of the range: see Hilal (eight-year sentence for multiple incidents, including vaginal intercourse, over three years); J.B. (nine-year sentence for 25-30 incidents, including vaginal penetration, over two years); G.B. (nine-year sentence for regular acts of vaginal intercourse over three years). However, these cases all involved children who were younger than Ms. A and Ms. E.
[76] More analogous is G.C. The offender repeatedly subjected the victim to acts of vaginal intercourse when she was between the ages of 16 and 20. Like Ms. A, the victim became pregnant and had an abortion. The offender received a ten-year sentence. However, the offender was the victim's father, unquestionably a more profound breach of trust, and he was also convicted and sentenced for incest. Further, unlike Mr. W, he did not have the mitigating factor of youth weighing in his favour.
[77] As is often the case, the search for a perfectly analogous sentencing precedent is somewhat elusive. Arguably, B.M. is the decision that comes closest to the circumstances of this case.
[78] In B.M., the offender, like Mr. W, had arrived in Canada as a teenager and lived with the family of the victims, who were stepsiblings. The family had invited him to live in the home and entrusted him with caring for the victims, mentoring and protecting them. He was their “religious teacher.” The offender sexually abused the two victims repeatedly over several years when he was between the ages of 18 and 22. When the abuse began, the victims were only 12 years old.
[79] In the case of one victim, the abuse started with touching and escalated to anal penetration, which took place on four occasions. With the second victim, the offender subjected her to 20 to 30 incidents of vaginal penetration; he also requested that she provide him with intimate photos, which she did.
[80] Unlike Mr. W, the offender in B.M. pleaded guilty. The Crown sought a five to six-year sentence, whereas the offender sought a conditional sentence. The sentencing judge imposed a conditional sentence of two years less a day, and the Crown appealed.
[81] The Court of Appeal concluded that the sentencing judge committed errors that warranted appellate intervention. On appeal, the Crown requested that the court increase the sentence to four years of imprisonment, a position influenced by the fact that the offender had completed much of his conditional sentence when the court finally heard the Crown's appeal: see at paras. 36, 47. The panel that heard the appeal notified the parties that a four-year sentence might be too lenient and invited further written submissions: see at para. 36.
[82] Emphasizing the offender's breach of trust, the age of the victims, the grooming behaviour, that there were repeated acts of vaginal and anal penetration, that the abuse took place over several years, and the harm caused to the victims, while also noting the offender's youth at the time of the offences, his lack of criminal record, mental health struggles, and that he was genuinely remorseful, the Court of Appeal imposed a sentence of seven years imprisonment less the time already served toward the conditional sentence. In doing so, the court acknowledged the likely immigration consequences for the offender but noted that "nothing less than a considerable period of imprisonment would be appropriate": at para. 46.
[83] The offender's circumstances in B.M. are somewhat analogous to Mr. W's. Notably, both were youthful and had recently arrived in Canada when they first began committing their offences. Each was a first offender. Both faced the prospect of being deported because of their crimes. There are, however, material differences between them. Unlike the offender in B.M., there is no basis to suggest that Mr. W struggles with mental health issues.
[84] To be sure, the offences committed by B.M. and Mr. W have some similarities. For example, each exploited the position of trust they enjoyed in the home of their victims to perpetrate their abuse. That said, although the offender in B.M. was the victims' "religious teacher," the grooming behaviour that Mr. W engaged in was far more insidious. Additionally, although the victims in B.M. were younger, the number of instances of sexual violence perpetrated by Mr. W was much higher. Lastly, Ms. A's pregnancy and abortion are significant aggravating factors absent from B.M.
[85] Additionally, and arguably most importantly, B.M. pleaded guilty and was genuinely remorseful—these are significant mitigating factors absent in this case.
[86] In all the circumstances, the gravity of Mr. W's offences were far worse than those involved in B.M., and Mr. W's degree of responsibility is far greater than that of B.M. As a result, the principle of proportionality requires that he receive a lengthier sentence than the offender in B.M.
[87] Finally, the Court of Appeal emphasized that the sentence imposed in B.M. was due, in part, to "the passage of time" and "the trial Crown's position at the sentencing hearing" in explaining its decision to impose a seven-year sentence: at para. 47. No comparable considerations operate to mitigate the severity of the sentence the court should impose in this case.
[88] After carefully considering the purpose, objectives and principles of sentencing, including the need for a sentence that prioritizes denunciation and deterrence, the significant aggravating factors in this case, as well the few mitigating, including Mr. W’s youth when he committed his crimes, that he is a first offender, and his positive prospects for rehabilitation, while also mindful of Mr. W’s likely deportation for his crimes, I would have imposed a sentence of nine years imprisonment concurrent on all three counts involving Ms. A.
[89] Although many of the circumstances of Mr. W’s offences against Ms. E are similar, material differences warrant a somewhat lower sentence for his crimes involving her. The gravity of Mr. W’s offences involving Ms. E was not quite as severe, given that she was older when the more intrusive and repeated acts of abuse occurred, the number of acts involving her was not as numerous, and the acts of intercourse were not unprotected, so she thankfully did not become pregnant and have an abortion like Ms. A. As a result, if I were only sentencing Mr. W for his offences involving Ms. E, I would have imposed a sentence of eight years of imprisonment concurrent on all three counts involving her.
Totality principle
[90] Given that Mr. W’s offences against Ms. A and Ms. E occurred at different times and involved and impacted each of them separately, it is appropriate that he receive consecutive sentences for the crimes he committed against each of them: see R. v. Crevier, 2015 ONCA 619, at para. 129.
[91] Accordingly, the court must consider whether the combined sentences for Mr. W’s offences would result in a total sentence that is unduly long or harsh: see Criminal Code, s. 718.2(c). The totality principle requires a judge who imposes consecutive sentences for multiple offences to ensure that the cumulative sentence does not exceed the overall culpability of the offender. The aggregate sentence must be just and appropriate: see R. v. M (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at pp. 531-532.
[92] Imposing a 17-year sentence on Mr. W for his crimes would result in a sentence that exceeds his overall culpability. Ultimately, a global sentence of 12 years of imprisonment is proportionate to the gravity of these crimes and Mr. W's degree of responsibility in their commission. As a result, I shall apportion the sentences for Mr. W's offences to achieve a global sentence of that duration.
Ancillary orders
[93] I shall begin by addressing the ancillary orders that are not the subject matter of any dispute.
[94] First, under section 487.051(1) of the Criminal Code, an order shall issue to take a sample of Mr. W's blood to include his DNA profile in the National DNA Databank.
[95] Second, under section 109(1)(a) of the Criminal Code, an order shall issue prohibiting Mr. W from possessing: i) for ten years, any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance; and ii) for life, any prohibited firearm, a restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.
[96] Third, under section 743.21(1) of the Criminal Code, an order shall issue prohibiting Mr. W from communicating, directly or indirectly, with I A or V E while serving his sentence.
[97] Turning next to the SOIRA order, the parties agree that the court must make an order. However, they disagree about the duration of the order the court should issue. Given the maximum terms of imprisonment available for the offences for which the court has convicted Mr. W, a 20-year order is mandatory: see Criminal Code, s. 490.13(2)(b).
[98] Finally, the Crown seeks prohibition orders under sections 161(1)(a) and 161(1)(b) of the Criminal Code, whereas Mr. W contests that such orders are justified in the circumstances.
[99] Because Mr. W stands convicted of two counts of sexual interference, an order under section 161 is available: see Criminal Code, ss. 161(1), 161(1.1). Section 161 orders are not automatic; they are discretionary: see R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 47-48. The court may impose such an order "only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk.": K.R.J., at para. 48. Further, "the content of the order must carefully respond to the offender's specific circumstances:" K.R.J., at para. 48, see also at para. 73.
[100] Given the circumstances of his offences, I am satisfied that Mr. W poses a risk of committing sexual offences against adolescent girls, at least if his access to them is unfettered. As a result, the court shall make orders under section 161 to minimize that risk as follows:
[101] Under section 161(1)(b) of the Criminal Code, for twenty years following his release from custody, Mr. W is not to seek, obtain, or continue any employment, whether remunerated or not, or be a volunteer in any capacity that involves being in a position of trust or authority towards girls under the age of 16 years.
[102] Under section 161(1)(c) of the Criminal Code, for twenty years following his release from custody, Mr. W is not to have any contact, including communicating by any means, with any girl under the age of 16 years, unless in the immediate and continuous presence of another person 18 years or older or with the express written approval of a child protection agency that is made aware of the circumstances of his offences, any treatment he has undergone while incarcerated, and the results of any risk assessment(s) conducted by the Correctional Service of Canada. (I have included that second exception because Mr. W’s daughters will still be under 16 when he completes his sentence.)
[103] However, I decline to make an order under section 161(1)(a) because any potential risk Mr. W might pose to adolescent girls in the types of locations contemplated by that subsection seems unduly speculative given the circumstances of his offences.
Conclusion:
[104] For count 2 (sexual interference against I A), count 4 (sexual exploitation against I A), and count 6 (sexual assault against I A), the court sentences Mr. W to seven years imprisonment concurrent on all three counts.
[105] For count 1 (sexual interference against V E), count 3 (sexual exploitation against V E), and count 5 (sexual assault against V E), the court sentences Mr. W to five years of imprisonment concurrent on all three counts, but consecutive to his sentences on counts 2, 4 and 6.
[106] Additionally, the court shall issue a DNA order, a weapons prohibition order, a non-communication order, a SOIRA order, and section 161 orders as detailed above in paragraphs 94 through 97, and 101 and 102.
[107] Since Mr. W's offences predate the current iteration of section 737 of the Criminal Code, no victim surcharges are payable.
Signed: “J. Stribopoulos”
Released: October 28, 2024
Correction Notice: A corrected version of these reasons was released on October 28, 2024, to correct the misspelling of Ms. Skoropada surname in paragraphs 30 through 36 of the original.
COURT FILE NO.: CRIM J(P) 1167/18
DATE: 20241022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
M W
REASONS FOR SENTENCE
Stribopoulos J.
Released: October 22, 2024