COURT FILE NO.: CR-23-50000210-0000 DATE: 20241022

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – C.N.B.

Counsel: Kelly Simpson, for the Crown Juan Lopez, for the accused

HEARD: September 12, 2024

Reasons for Sentence

(Subject to a publication ban that applies to any information that might identify the complainant or a witness, pursuant to section 486.4 of the Criminal Code)

VERMETTE J.

[1] On May 14, 2024, I found C.N.B. guilty of twelve counts in relation to his minor daughter, V.N.: three counts of assault with a weapon (counts 1, 2 and 4); two counts of assault (counts 3 and 5); one count of invitation to sexual touching (count 6); three counts of sexual interference (counts 7, 9 and 11); and three counts of sexual assault (counts 8, 10 and 12). My Reasons for Judgment are reported at 2024 ONSC 2753 (“Reasons for Judgment”).

[2] On September 12, 2024, I heard sentencing submissions and reserved judgment. These are my reasons for sentence.

A. Factual Background

1. Facts relating to the Offences

[3] The relevant facts are set out in my Reasons for Judgment. The following is a summary.

[4] V.N. is the daughter of C.N.B. and P.C. At the time of the trial, she was 14 years old. She has a sister, M.N., who is eight years younger than her. V.N. also has older stepsiblings, including D.N. and C.N., who are the children of C.N.B. D.N. and C.N. lived with C.N.B., P.C., V.N. and M.N. for a period of time.

[5] In 2017, V.N. and her family (her father, mother and sister) moved into a condominium unit in Toronto (“Condo”). Most of the offences occurred in the Condo or while V.N. and her family were living in the Condo. V.N. was 7 years old at the time of the move. M.N. was born while the family lived in the Condo.

[6] At the time of the move, C.N.B. was working in the construction industry and P.C. was a stay-at-home mother. At some point, V.N.’s stepsiblings, D.N. and C.N., came to live in the Condo with V.N. and her family. They went to school and had part-time jobs.

[7] In September 2018, C.N.B started having problems with his back and was unable to go back to work. He went on disability. As a result, P.C. went to look for a job. She found a job in a department store in November 2018 and went to work while C.N.B. stayed at home and looked after V.N. and M.N. C.N.B. took medication for pain relief. P.C. worked 34-36 hours per week on average, and she had every other weekend off. Some of her shifts ended at 4 p.m., some at 6 p.m., and others at 9 p.m.

[8] The specific facts related to the various counts are set out below.

a. Count 1 – Assault with a belt (“Ice Cream Incident”) [1]

[9] One day when V.N. was about two years old, P.C. gave her a bowl of ice cream, despite the fact that C.N.B did not want P.C. to give dessert to V.N. before a meal. C.N.B. came home early that day and saw V.N. eating ice cream. He grabbed V.N., took her to the bedroom and hit her with a belt. The disciplining from start to finish (including the yelling) took about five minutes.

b. Count 2 – Assault with a belt (“Nail Incidents”)

[10] V.N. estimated that over the years, C.N.B. hit her with a belt ten or more times. This occurred both in the Condo and in their prior residence. On two or three occasions while living in the Condo, C.N.B. got really mad about V.N. peeling off the skin on her fingers or chewing her nails, and he hit V.N. with his belt. C.N. would hold the belt in an “O” or circle shape and hit V.N. with the belt on her back.

c. Count 3 – Assault (“Hands, Ears and Hair Incidents”)

[11] V.N. testified that C.N.B. hit her with his hand ten or more times. C.N.B. would hit her anywhere with his hand, but he hit her mostly on her back. She would have bruises, but people would not see them because the bruises would be covered by her clothes. C.N.B. also used to pull V.N.’s ears and hair.

[12] At the beginning of the trial, C.N.B. pled guilty to this count and admitted to spanking V.N. with excessive force. However, he did not admit to pulling V.N.’s hair and ears. I found that he did.

d. Count 4 – Assault with a pill bottle (“Pill Bottle Incident”)

[13] One day, while V.N.’s mother was still at work, C.N.B., V.N., M.N., D.N. and C.N. were eating at the table. C.N.B. got mad because V.N. was not eating fast enough or she did something else that C.N.B. did not want her to do. C.N.B. stood up, grabbed a pill bottle and threw it at V.N. The pill bottle hit V.N.’s nose and, as a result, she had a cut on the bridge of her nose. V.N. was approximately 10 years old when this occurred.

e. Count 5 – Assault (“Boot Incident”)

[14] During the COVID-19 pandemic, C.N.B., V.N., M.N. and C.N. went for a walk near a river. C.N.B. told V.N. to do something, but she did not hear him. He asked her again and said something along these lines: “You don’t hear me. Why are you like this?” C.N.B. then started to kick V.N. with his foot. C.N.B. was wearing heavy brown boots with laces. V.N. had a large bruise on her buttocks as a result.

f. Counts 6, 7 and 8 – Invitation to sexual touching, sexual interference and sexual assault (“Shower Incidents” and “Touching of Penis Incident”)

[15] After they moved into the Condo, C.N.B. would tell V.N. to come take a shower with him. This would usually be after dinner. Every time that C.N.B. would take a shower with V.N., he would touch her.

[16] Sometimes, C.N.B. would undress V.N., sometimes she would take off her clothes by herself. They would then go into the shower, both naked. C.N.B. would scrub soap on V.N. Sometimes, he would scrub the soap on her private area. They would then take turns rinsing themselves under the water. After they were both washed and rinsed, this is when C.N.B. would start touching V.N. He would touch her breasts and her vagina. He would rub his fingers on her vagina. V.N. felt that C.N.B. touched her vagina, but, aside from the tip of his fingers, C.N.B. did not put his fingers inside her vagina.

[17] On one occasion, C.N.B. took V.N.’s hand or wrist and made her grab his penis. He moved her hand up and down on his penis. V.N. said that nothing came out of C.N.B.’s penis, but she was not looking at her father or his penis.

[18] V.N. testified that it would burn when she would go to the bathroom after being touched in the shower. The burning sensation would happen each time that C.N.B. touched her vagina in the shower. The sensation would last for a couple of hours and was very uncomfortable.

[19] C.N.B. stopped taking a shower with V.N. when she got older, when she was around 10 years old.

g. Counts 9 and 10 – Sexual interference and sexual assault (“Couch Incidents”)

[20] There were times where C.N.B. would touch V.N.’s vagina both under and over her clothes. This would usually happen in the living room, on a brown couch. C.N.B. would often go straight to V.N.’s vagina area, but sometimes he would start on her breasts. He only touched her breasts over her clothing. C.N.B. would rub his fingers in her vagina area, using two fingers. Sometimes he would go under her underwear, sometimes he would just go on top. C.N.B. never put his fingers fully inside of V.N. He mainly just rubbed, but while rubbing, the top part of his fingers could go inside. V.N. said that it would hurt after when she went to urinate.

[21] These incidents on the couch would happen when V.N.’s mother and stepsiblings were working or at school. V.N. believes that this started when she was about ten and a half years old.

[22] V.N. said that this kind of touching happened approximately four times a week.

[23] V.N. stated that C.N.B. stopped touching her at some point in 2020.

h. Counts 11 and 12 – Sexual interference and sexual assault (“Bed Incident”)

[24] Once, V.N. was lying on her parents’ bed with her sister, M.N. V.N. thinks that she was playing on her tablet or was reading something. C.N.B. had asked her to watch her sister for a bit. At some point, C.N.B. came into the bedroom. He started touching V.N.’s legs and then he touched her private parts. C.N.B. pulled V.N.’s pants all the way down and he started to touch her vagina and rub his fingers on top of her underwear. C.N.B. left the room when V.N.’s mother called from work, and he did not come back. V.N. thinks that she was approximately 10 years old at the time of this incident.

2. Pre-sentence Report

[25] A pre-sentence report (“PSR”) was prepared in this case. The following information is set out in the PSR.

[26] C.N.B. is 49 years old. He is a Canadian citizen. He was born and raised in a South American country. He is the eldest of seven siblings. His father worked on a farm and his mother was a home maker. C.N.B. described his childhood as “beautiful”, but he said that his family had the bare minimum and that his parents worked hard to provide him with the necessities of life.

[27] C.N.B. stated that there was no violence or abuse in the familial home, but that it was common practice for his mother to use corporal punishment towards him if he misbehaved. This sometimes resulted in bruising. C.N.B. expressed the view that this was not a form of physical abuse and that his mother disciplined him appropriately to correct his behaviour. However, he stated that this was not an appropriate way to discipline children in the present-day society.

[28] All of C.N.B.’s siblings still live in C.N.B.’s home country. Despite the distance, C.N.B. maintains regular communications with his siblings via videos, messages and telephone calls. C.N.B.’s mother is still alive and resides with his siblings. C.N.B. speaks to her on a bi-weekly basis. C.N.B.’s father passed away in 2005, which was a very difficult time for C.N.B. Despite the fact that C.N.B. reported being close to his family, he has not disclosed to them information pertaining to his criminal charges as he fears that it would impact his mother’s emotional and physical health.

[29] C.N.B. had a prior common law relationship with a woman in his home country that lasted fifteen years and during which they had one daughter, D.N., and one son, C.N. They separated due to issues concerning finances and infidelity. C.N.B. left the familial home after his partner informed him that she had another romantic partner and wanted to separate.

[30] C.N.B. stated that he sponsored his two children to Canada in 2010 and that they have both resided with him since. [2] D.N. pursued a post-secondary education and is currently looking for a job in her field. C.N. maintains full-time employment.

[31] After the end of his relationship with the mother of D.N. and C.N., C.N.B. had a relationship with a woman he knew from his home country. They got married in their home country and she sponsored him to Canada in 2002. They had a daughter in 2004 and they separated in 2006. C.N.B. stated that his ex-wife denied him access to their daughter. He said that he maintains a limited relationship with this daughter and they speak via text message on occasion.

[32] C.N.B. met V.N.’s mother, P.C., in 2007. They began to live together in 2008. They had two children: V.N. was born in 2009 and M.N. was born in 2017. Both now reside with P.C. C.N.B. denied having any relationship issues with P.C. prior to 2018. He stated that it is after he sustained a serious back injury in 2018 – which resulted in permanent damage and an inability to work – that issues began to persist between C.N.B. and P.C. concerning finances and infidelity.

[33] C.N.B. completed both elementary and high school in his home country. He pursued a three-year college program in his home country to obtain a diploma in automotive mechanic. He paid for his own tuition. He was working as a mechanic during the day and attending night classes. He has not returned to school since and does not have the intention to do so.

[34] C.N.B. reported previous employment in several different industries. His longest term of employment was working as a framer for fourteen years. He sustained his back injury at work, while working as a framer. After his accident, P.C. entered the work force while he stayed at home with V.N. and M.N. C.N.B. assisted with cooking and taking the children to school.

[35] Since 2019, C.N.B. has supported himself primarily via government social assistance.

[36] C.N.B. quit drinking alcohol once he came to Canada. He does not have any current substance abuse issues. He takes medication for his chronic back pain as needed, but he does not have any other physical issues. C.N.B. denied any mental health concerns.

[37] C.N.B. described himself as a devout Roman Catholic. He spends his leisure time cooking, cleaning, walking and attending church on a weekly basis. He stated that he does not have many friends as he mostly keeps to himself, but the friends he has are kind, sincere and respectful people who mirror his values.

[38] C.N.B. acknowledged only age-appropriate sexual preferences. He stated that he does not view pornography and denied any deviant or excessive thoughts or behaviours.

[39] C.N.B. told the probation officer who prepared the PSR that he accepted partial responsibility of the assault charges before the Court, but he did not express any remorse or guilt with respect to the sexual offences as he denied responsibility. He indicated that he felt that things were “taken out of proportion and exaggerated”.

[40] C.N.B. is currently on probation for domestic violence charges. He has successfully completed all required programming, including the partner assault response program and the anger management program, and he has expressed that he is amenable to further counseling or programming. He has exhibited excellent reporting habits and his response to community supervision to date has been positive.

[41] The probation officer who prepared the PSR also spoke with C.N.B.’s eldest daughter, D.N., and with P.C. D.N. reported that C.N.B. remained a prominent figure in her and her brother’s lives after their parents separated. C.N.B. often travelled to their home country to visit them, and he provided monetary support to their mother. D.N. stated that C.N.B. instilled values of honesty, respect and responsibility into their family. D.N. described C.N.B. as a hard-working person who is sincere, wise and responsible. She denied any forms of abusive behaviours pertaining to C.N.B. She said that she often respected and listened to C.N.B. while growing up and was rarely disciplined. If C.N.B. had concerns about her behaviour, he would sit her down and talk to her about it.

[42] P.C. told the probation officer that she had safety concerns for her and her children. However, she acknowledged that C.N.B. had refrained from contacting her or their daughters while on community supervision. P.C. stated that she frequently felt micromanaged and dismissed by C.N.B. during their relationship, and that C.N.B. often exhibited aggressive and controlling behaviours.

[43] P.C. expressed the view that V.N. has been severely impacted by the offences committed by C.N.B. against her. V.N. has frequently experienced nightmares and flashbacks since the offences and was unable to sleep alone for a lengthy period of time after the offences. According to P.C., V.N. often reports stomach aches and headaches and appears to have garnered distrust in men.

3. Victim Impact Statements

[44] Both V.N. and P.C. provided statements.

a. Statement of V.N.

[45] In her statement, V.N. states that the worst part of the sexual and physical abuse that she suffered was that it came from her own father. The abuse impacted her emotionally in many ways, and it impacted her relationship with her mother.

[46] V.N. was at first upset at her mother and frustrated with her for not noticing what was happening to her because all that V.N. wanted was for the physical and emotional pain to stop and all the nightmares and flashbacks to go away. V.N. was also upset with her grandparents sometimes because they had a close connection with C.N.B. and did not know who he really was, which made her feel lonely and helpless.

[47] V.N. states that the abuse affected her ability to trust people because her father was in charge of protecting her, comforting her and keeping her safe, but he instead decided to scar her and take her childhood years away from her. She became especially distant with male friends because of the anxiety that she would get if they were just the two of them.

[48] V.N. says that at first, she began to isolate herself a lot from other people, and sometimes her own family. Afterwards, she suffered from an eating disorder, causing her to be extremely insecure about her weight. She would also slit her wrist because she thought that she did not deserve happiness but only pain. There were times when she was suicidal because she thought that that was the solution to end all of her pain.

[49] What happened to V.N. affected her at school in a lot of ways. For a while, she stopped trying at school because of how depressed and confused she was about what was happening to her. She had to be excused from the topic of sexual abuse in health class because she could not handle the emotional pain that this topic brought to her. The abuse made it really hard for V.N. to concentrate at school for a very long time, and it got harder when she had to come to court and re-live the abuse. Going to court was very hard and caused her a lot of anxiety.

[50] V.N. says that she can get triggered and emotional anytime in social situations. She used to love to paint, but she started getting flashbacks of the abuse while painting so she had to give it up. This affected her dream of pursuing arts in high school.

[51] V.N. felt like she was at fault for not saying anything. She blamed herself a lot for what happened, and she feels like no one understands the power that C.N.B. had over her. She felt guilty and felt like she did something wrong somehow while C.N.B. is the one who abused her and took advantage of her innocence. V.N. feels like she lost her dad. The abuse made her question her self-worth. However, she is extremely proud of herself for having the strength to push through and to come forward with the truth despite everything C.N.B. put her through.

b. Statement of P.C.

[52] P.C. wishes that she had the ability to erase everything that happened to V.N. She states that V.N.’s innocence was taken away from her slowly and in the most horrific way imaginable.

[53] As a mother, P.C. finds it hard to believe that V.N. lived all this and still is so strong and courageous. She states that V.N. is her inspiration. P.C. says that while V.N.’s smile and laughter will bring her joy, she also has had to wipe V.N.’s tears of sadness and fear.

[54] P.C. states that V.N. has been taken away her childhood and been given one of life’s greatest challenges, but she asks V.N. not to let this take anymore from her life and to forgive so that she can move on to better herself. P.C. is very proud of V.N. and she tells her to keep her head always up high and to remember that she will always overcome the obstacles in her journey.

B. Positions of the Parties

1. Position of the Crown

[55] The Crown submits that:

a. of the three counts that relate to the incidents that took place in the shower (counts 6, 7 and 8), counts 7 (sexual interference) and 8 (sexual assault) should be conditionally stayed; b. of the two counts that relate to the incidents that took place on the couch (counts 9 and 10), count 10 (sexual assault) should be conditionally stayed; and c. of the two counts that relate to the incident that took place on the bed (counts 11 and 12), count 12 (sexual assault) should be conditionally stayed.

[56] The Crown’s position is that an appropriate global sentence would be at least seven years in jail. The Crown also requests the following ancillary orders: (a) a DNA order pursuant to section 487.051(1) of the Criminal Code; (b) a 10-year weapons prohibition order pursuant to section 109 of the Criminal Code; (c) a non-communication order with V.N., her mother (P.C.) and her sister (M.N.) during the custodial period of the sentence pursuant to section 743.21 of the Criminal Code; (d) an order of prohibition under section 161 of the Criminal Code; and (e) an order that C.N.B.’s name be added to the Sex Offender Registry and that he comply with the Sex Offender Information Registration Act for 20 years pursuant to section 490.012 of the Criminal Code.

[57] The Crown points out that the physical and sexual assaults were committed against C.N.B.’s biological daughter. The physical abuse started when V.N. was two years old when C.N.B. used a belt to hit V.N. after seeing her eating ice cream before dinner.

[58] The Crown states that denunciation, general and specific deterrence are the primary sentencing objectives that apply in cases of sex offences against children, and that such offences must be condemned in the strongest terms.

[59] With respect to mitigating factors, while the Crown acknowledges that C.N.B. has the support of his family, more particularly his eldest adult daughter, the Crown notes that C.N.B. has not accepted responsibility and, accordingly, he does not obtain the benefit of the significant discount in sentencing that would otherwise accrue. The Crown argues that this shows a limited potential for rehabilitation, and that the lack of accountability may also increase C.N.B.’s risk of reoffending.

[60] The Crown submits that the following are aggravating factors:

a. C.N.B. has a criminal record. He has four separate convictions for assault, one in 2012 against a co-worker and three against P.C. more recently. With respect to the assaults against P.C., C.N.B.’s sentence was a 60-day conditional sentence and a two-year probation. The offences in this case predated C.N.B.’s conviction for assaults against P.C. b. C.N.B. abused a child: subsection 718.2 (a)(ii.1) of the Criminal Code. c. As V.N.’s father, C.N.B. was in a position of trust in relation to her: subsection 718.2 (a)(iii). d. C.N.B. exploited the vulnerability of the victim. V.N. was a young child and she was often at home alone with C.N.B. and her younger sister, while V.N.’s mother was at work. e. There were multiple instances of abuse over an extended period of time. The physical abuse started when V.N. was 2 years old and continued until she was 11. The sexual abuse also continued over a number of years. f. The incidents were part of a systemic pattern of unrelenting sexual abuse. C.N.B. started by touching V.N.’s breast and vagina over her clothing, and then escalated by going under her clothing and making her touch his penis. The escalation in the degree of invasiveness of the sexual assault is aggravating. g. C.N.B. used weapons in physically assaulting V.N., i.e., a belt and a pill bottle. h. The physical and sexual abuse occurred in the family home, where children are supposed to feel the most safe and secure. i. The offences had a significant impact on the victim: subsection 718.2(a)(iii.1).

[61] The Crown referred to the factors set out in R. v. Friesen, 2020 SCC 9 (“Friesen”) that were identified as significant factors to determine a fit sentence for sexual offences against children. The Crown also relies on the following cases: R. v. N.K., 2024 ONSC 2761 (seven-year sentence) (“N.K.”); R. v. T.M., 2022 ONSC 4976 (four-year sentence); R. v. C.B., 2021 ONSC 187 (“C.B.”) (five-year sentence); and R. v. Roper, 2020 ONSC 7411 (“Roper”) (5.5-year sentence).

[62] The Crown points out that in addition to sexual abuse, this case also involves significant physical abuse. The physical abuse happened over a number of years, with a belt used on multiple occasions. According to the Crown, it is aggravating that while the sexual abuse was going on, the physical abuse always remained a threat. V.N. lived in fear and one would understand why she would not say anything and comply. The Crown states that the cases relied upon by C.N.B. do not have the same aggravating factors as in this case, including physical abuse.

2. Position of C.N.B.

[63] C.N.B.’s position is that an appropriate sentence is a global sentence of 5 years in jail, which is within the range discussed in Friesen.

[64] C.N.B. submits that he should not be punished for exercising his right to trial. Further, while his lack of remorse does not provide mitigation, it does not constitute an aggravating factor.

[65] C.N.B. acknowledges that denunciation and deterrence are important principles in this case and that sentences are higher in cases of sexual abuse against children. However, he states that the principle of restraint still exists. C.N.B. points out that while he has a criminal record, he does not have a history for this type of offences, i.e., child abuse.

[66] C.N.B. relies on the following cases: Roper; R. v. G.H., 2023 ONCA 89 (five-year sentence); and R. v. A.B., 2023 ONCA 254 (five-year sentence).

[67] Defence counsel argues that the proposed five-year jail sentence is a significant and lengthy one that sends a message, especially since it will be difficult for C.N.B. to get early release if he does not express remorse.

[68] C.N.B. asks that the victim surcharge be waived in this case given that he is not working and is on the Ontario Disability Support Program.

[69] Defence counsel did not have any submissions with respect to the ancillary orders sought by the Crown. Nor did he have submissions with respect to the Crown’s proposed application of the rule against multiple convictions.

C. Discussion

[70] I accept the Crown’s submissions that the convictions on counts 7, 8, 10 and 12 should be conditionally stayed pursuant to the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729. The stay is conditional on the final disposition of the related charges which are not stayed, and will become a permanent stay upon the dismissal of all appeals or the expiry of the appeal period.

[71] Therefore, C.N.B. must be sentenced on three counts of assault with a weapon (counts 1, 2 and 4); two counts of assault (counts 3 and 5); one count of invitation to sexual touching (count 6); and two counts of sexual interference (counts 9 and 11).

1. Relevant Sentencing Principles

[72] The principles of sentencing are set out in sections 718, 718.01, 718.1 and 718.2 of the Criminal Code. Section 718 recognizes that “just sanctions” will have one or more of the objectives identified in subsections (a) to (f), including denunciation, general and specific deterrence and rehabilitation. However, those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires the sentencing judge to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender. The search for a just sanction that reflects a proper blending of the objectives of sentencing is guided by the principle of proportionality. See R. v. Morris, 2021 ONCA 680 at paras. 58-59.

[73] A first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence. See R. v. Priest. However, when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it must give primary consideration to the objectives of denunciation and deterrence of such conduct: see section 718.01 of the Criminal Code.

[74] In Friesen, the Supreme Court of Canada provided guidance on sentencing principles for sexual offences against children: see Friesen at para. 44. It sent the following “strong message” (at para. 5):

Third, we 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. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

[75] To give effect to the gravity of sexual offences against children, courts must recognize and give effect to: (a) the inherent wrongfulness of these offences; (b) the potential harm to children that flows from these offences; and (c) the actual harm that children suffer as a result of these offences. See Friesen at para. 76.

[76] Courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. Doing so will ensure that the proportionality principle serves its function of ensuring that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused. See Friesen at para. 75. It is an error of law to treat sexual interference as less serious than sexual assault: see Friesen at para. 120.

[77] In Friesen, the Supreme Court stated that mid-single digit penitentiary terms for sexual offences against children were normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. Substantial sentences can be imposed where there is only a single instance of sexual violence and/or a single victim. Further, maximum sentences should not be reserved for the abstract case of the worst crime committed in the worst circumstances; rather, a maximum sentence should be imposed whenever the circumstances warrant it. See Friesen at para. 114.

[78] I note that while sentencing ranges reflect the principles and objectives of sentencing and are used to ensure the parity of sentences, they are primarily guidelines, not straightjackets. Sentencing judges must still exercise their discretion in each case. See R. v. Lacasse, 2015 SCC 64 at paras. 57-60.

[79] The following are the factors identified in Friesen as significant factors to determine a fit sentence for sexual offences against children:

a. Likelihood to reoffend: Where the sentencing judge finds that the offender presents an increased likelihood of reoffending, the imperative of preventing further harm to children calls for emphasis on the sentencing objective of separating the offender from society in subsection 718 (c) of the Criminal Code. The offender’s likelihood to reoffend is also relevant to the objective of rehabilitation in subsection 718 (d). See Friesen at paras. 123-124. b. Abuse of a position of trust or authority: An offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. Trust relationships arise in varied circumstances and should not all be treated alike. There is a spectrum of positions of trust. The spectrum of relationships of trust is relevant to determining the degree of harm. A child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender, such as those situations involving family members, caregivers, teachers, and doctors. The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility. An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child. The breach of the duty of protection and care thus enhances moral blameworthiness. See Friesen at paras. 126, 129, 130. c. Duration and frequency: Sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime. The frequency and duration can significantly increase the harm to the victim. The immediate harm the victim experiences during the assault is multiplied by the number of assaults. Moreover, the long-term emotional and psychological harm to the victim can also become more pronounced where the sexual violence is repeated and prolonged. This increased harm magnifies the severity of the offence. It also increases the offender’s moral blameworthiness because the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults. If the conviction for a single charge includes multiple instances of sexual violence, the sentencing judge is to give weight to this factor and should not analogize the case to single instance cases simply because those cases also involved only a single charge. See Friesen at paras. 131, 132, 133. d. Age of the victim: The power imbalance between children and adults is even more pronounced for younger children. Courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. See Friesen at paras. 134, 136. e. Degree of physical interference: This factor reflects the degree of violation of the victim’s bodily integrity. It also reflects the sexual nature of the touching and its violation of the victim’s sexual integrity. However, an excessive focus on the physical act can lead courts to underemphasize the emotional and psychological harm to the victim that all forms of sexual violence can cause. The modern understanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only on bodily integrity. Further, sexual violence against children remains inherently wrongful regardless of the degree of physical interference. See Friesen at paras. 138, 142, 145. f. Victim participation: Children under the age of 16 are incapable of giving true consent to sexual acts with adults. It is an error of law to treat “de facto consent” or a victim’s participation as a mitigating factor. Adults, not children, are responsible for preventing sexual activity between children and adults. See Friesen at paras. 148, 149, 154.

[80] The Supreme Court also noted that sexual violence that takes place in the home is an aggravating circumstance. A parent’s home is a place where the child should feel safe and secure under the care and guardianship of the parent. Sexual violence against children that takes place in the home may be particularly damaging because it damages the child’s sense of security in the home environment. See Friesen at para. 178.

2. Aggravating Factors

[81] There are a number of aggravating circumstances in this case:

a. C.N.B. abused a member of his family, his biological daughter: see subsection 718.02 (a)(ii) of the Criminal Code. b. C.N.B. abused a person under the age of eighteen years: see subsection 718.02 (a)(ii.1). c. As V.N.’s father and as the parent who spent the most time at home taking care of V.N. and M.N. after P.C. started working, C.N.B. abused a position of trust and authority in relation to V.N.: see subsection 718.02 (a)(iii). d. The offences took place in V.N.’s home, a place where she should have been feeling safe and secure: see Friesen at para. 178. e. Based on the victim impact statements and the evidence at trial, I am satisfied that the offences had a significant impact on V.N., considering her young age and her family circumstances at the relevant time: see subsection 718.2 (a)(iii.1). f. C.N.B. had a criminal record at the time the offences against V.N. were committed. However, the offence for which C.N.B. was convicted (i.e., assault against a co-worker) was not committed against a child and was not sexual in nature. g. There were many instances of physical and sexual abuse over an extended period of time.

[82] I do not accept the Crown’s submission that there was a systemic pattern of escalation in the degree of invasiveness of the sexual abuse over time. The evidence at trial does not support a chronological escalation. Among other things, the only incident where C.N.B. made V.N. touch his penis took place in the shower, and V.N.’s evidence suggests that the incidents on the couch started or continued after she stopped showering with C.N.B.

3. Mitigating Factors

[83] I now turn to the mitigating circumstances relevant to sentence.

[84] C.N.B. has a supportive family. However, aside from his adult children in Canada (D.N. and C.N.), the rest of his family in his home country is unaware of this criminal proceeding.

[85] I note that while C.N.B. described his childhood positively, he stated that it was common for his mother to use corporal punishment towards him while he was growing up, and that such punishment sometimes resulted in bruising. He also stated that his family had the bare minimum. The circumstances surrounding C.N.B.’s upbringing may “shed some light” on his actions in relation to the charges of assault and assault with a weapon. See Friesen at para. 174.

[86] C.N.B. accepted partial responsibility of the assault charges before the Court (i.e., he pleaded guilty to count 3 and acknowledged part of the allegations under that count), but not with respect to the other charges of which he was found guilty. Thus, remorse is a very limited mitigating factor in this case as remorse requires an acceptance of guilt or willingness to take responsibility for one’s actions, which C.N.B. has not done for most of the offences. However, C.N.B.’s lack of remorse does not constitute an aggravating factor. An accused person is entitled to maintain their innocence: see R. v. Bradley, 2008 ONCA 179 at para. 16.

[87] In my view, the fact that C.N.B. may not be able to get an early release because he does not express remorse is not a proper consideration in determining what a fit sentence is in this case.

4. Friesen Factors

[88] I will now discuss the application of the factors identified in Friesen to this case:

a. Likelihood to reoffend: In my view, it is unlikely that C.N.B. will commit a sexual offence against a child again because it is unlikely that C.N.B. would be able to obtain a similar level of authority or control as he had over V.N. in any community setting. For this reason, I view him as a low risk to the community. See C.B. at paras. 66-67. Further, the fact that C.N.B. maintains his innocence and may be lacking insight does not completely negate his prospects for rehabilitation. I note that while on probation for domestic violence charges, C.N.B. successfully completed all required programming, including the partner assault response program and anger management program, and he expressed that he was amenable to further counseling or programming. b. Abuse of a position of trust or authority: As noted above, C.N.B. abused a position of trust when he committed the sexual offences against V.N. Given that C.N.B. is V.N.’s father, there was a very high degree of trust between them. c. Duration and frequency: C.N.B. committed sexual abuse against V.N. on multiple occasions. While the start time and end time of the abuse are difficult to pinpoint with complete accuracy, I am satisfied based on the evidence that the sexual abuse (starting with the shower incidents) occurred over a period of at least 1.5 years. d. Age of the victim: V.N. was between 8-10 years old when the sexual abuse took place. e. Degree of physical interference: C.N.B. touched V.N.’s breast and rubbed his fingers on her vagina, both over and under her clothes. While C.N.B. was rubbing his fingers on V.N.’s vagina, the tip of C.N.B.’s fingers could go inside, but C.N.B. did not put his fingers inside her vagina. On one occasion, C.N.B. took V.N.’s hand or wrist and made her grab his penis. He moved her hand up and down on his penis. f. Victim participation: Children under the age of 16 are incapable of consenting to sexual acts with adults. Victim participation was not argued in this case. In any event, any participation by the victim would have been achieved through the abuse of the victim’s trust and the offender’s power over the victim.

5. The Appropriate Sentence

[89] Most of the cases cited by the parties involve sentences that are around five years, except for N.K. where a seven-year sentence was imposed. I note, however, that the sexual abuse in N.K. occurred over a longer period of time than in this case, and the degree of physical interference was more serious (e.g., vaginal penetration attempt, masturbation to the point of ejaculation, and watching of pornography).

[90] As set out above, there are a number of aggravating factors in this case, and some mitigating factors. Considering the aggravating and mitigating factors, as well as the factors set out in Friesen – including C.N.B.’s unlikelihood to reoffend, the very serious abuse of trust, the duration and frequency of the sexual abuse and the degree of physical interference, and taking into consideration the cases referred to by the parties, including their similarities and dissimilarities with this case, I conclude that the appropriate sentence for the sexual offences in this case is a custodial sentence of 5.5 years.

[91] While the sexual offences should receive concurrent sentences, it is my view that the sentence for the physical abuse offences should be consecutive. The physical abuse started many years prior to the sexual abuse (i.e., when V.N. was approximately 2 years old) and was not part of the same “criminal adventure”. See Friesen at para. 155.

[92] I find that a global sentence of six years for all convictions is a fit sentence that is proportionate to the gravity of the offences and the degree of responsibility of C.N.B.

D. Disposition

[93] The sentences are as follows:

a. Count 1 – assault with a weapon: 6 months of imprisonment. b. Count 2 – assault with a weapon: 6 months of imprisonment, concurrent. c. Count 3 – assault: 6 months of imprisonment, concurrent. d. Count 4 – assault with a weapon: 3 months of imprisonment, concurrent. e. Count 5 – assault: 3 months of imprisonment, concurrent. f. Count 6 – invitation to sexual touching: 5.5 years of imprisonment, consecutive. g. Count 7 – sexual interference: Conditionally stayed. h. Count 8 – sexual assault: Conditionally stayed. i. Count 9 – sexual interference: 5.5 years of imprisonment, concurrent. j. Count 10 – sexual assault: Conditionally stayed. k. Count 11 – sexual interference: 4 years of imprisonment, concurrent. l. Count 12 – sexual assault: Conditionally stayed.

[94] In addition, I make the following ancillary orders:

a. Pursuant to section 487.051(1) of the Criminal Code, I make an order in Form 5.03 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis from C.N.B. b. Pursuant to section 109(1) of the Criminal Code, I make an order prohibiting C.N.B. from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years. c. Pursuant to section 743.21 of the Criminal Code, I make an order prohibiting C.N.B. from communicating, directly or indirectly, with P.C., V.N. and M.N. during the custodial period of the sentence. d. Pursuant to sections 490.012(1) and 490.013(2) (b) of the Criminal Code, I make an order in Form 52 requiring C.N.B. to comply with the Sex Offender Information Registration Act for a period of 20 years. e. Pursuant to subsections 161(1)(a.1) and (b) of the Criminal Code, I make an order prohibiting C.N.B. for a period of 10 years after he is released from imprisonment from: (i) being within 200 metres of anywhere V.N. is known to live, work, worship, attend school or otherwise be; and (ii) 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.

[95] C.N.B. does not have to pay any victim surcharge as I am satisfied that the victim surcharge would cause undue hardship to him given his inability to work.

Vermette J.

Released: October 22, 2024

Notes:

[1] The words in parentheses refer to the descriptions used in my Reasons for Judgment. [2] I note that this timing does not appear to be consistent with the evidence given at trial.