BRAMPTON COURT FILE NO.: CR-20-00000091-0000 DATE: 2024 11 04 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Madeline Lisus, for the Crown Crown
– and –
K.W. Tobias Okada-Phillips, for the Defendant Defendant
HEARD: August 9, 2024
RESTRICTION ON PUBLICATION By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR SENTENCING Tzimas RSJ.
INTRODUCTION
[1] On October 20, 2023, K.W. was found guilty of two counts of invitation to sexual touching and two counts of sexual interference, contrary to ss.152 and 151 respectively, against his girlfriend’s sister, B.B. The offences covered a period from September 2013 until December 2017. The first incident occurred in September 2013 when B.B. was eleven. Over the next four years or so, the incidents were repeated on numerous occasions. The last incident occurred in December of 2017, when B.B. was fifteen.
[2] The Crown requested a global custodial term of 8.5 years, broken down as follows: 2.5 years for Counts 1 and 2 and 6 years for Counts 3 and 4, to be served consecutively. The Crown submitted that the proposed global term was proportionate to K.W.’s moral blameworthiness and took into consideration the society’s contemporary understanding of the harmfulness and wrongfulness of sexual offences against children. The Crown also sought a number of ancillary orders.
[3] The Defence sought a global custodial sentence of 4 years, though during his submissions, counsel recognized that K.W.’s criminal record would justify a term of 5 years. He argued that a global term of 8.5 years was “crushing” and totally outside of the accepted ranges seen in cases with far greater dramatic fact scenarios, even in a post Friesen [1] era. He situated the divergence in positions in the differentiation between the consecutive terms sought by the Crown and concurrent terms sought by the Defence. When viewed in those terms, if the Crown’s terms were to be served concurrently, then the difference between the two positions was not really that pronounced. Counsel did not disagree with the ancillary orders sought by the Crown.
[4] Difficulties associated with the processing of the request for a Pre-sentencing Report (PSR) and scheduling conflicts delayed sentencing submissions until August 9, 2024.
[5] For the reasons that follow, I have concluded that a just and fit sentence for K.W. is a global sentence of 5 years along with the ancillary orders sought by the Crown with one variation related to the s.161 order outlined below.
Background Facts Regarding the Offences
[6] K.W. is 46 years old. He was between the ages of 35 and 39 in the period between September 2013 and December 2017. K.W. was R.B.’s boyfriend at the time of the various incidents. R.B. is B.B.’s sister. K.W. and R.B. remain a common law couple and have three children, one of whom is non-verbal and autistic. K.W. has two other children from a previous relationship.
[7] B.B. was eleven and in grade 6 at the time of the first incident. She got up in the morning to get ready for school. When she came down to the kitchen and family room area, she saw K.W. lying on the couch. He had slept over at the B residence. B.B.’s sister, R.B., was sleeping on a second couch in the same space. K.W. called B.B. over, he then grabbed her arm, pulled her towards him, and put her hand on his penis. The touching lasted for a about 3 seconds. Following the incident, K.W. drove B.B. to school. He told her not to say anything about the incident and gave her twenty dollars to keep quiet. A few days later, K.W. asked B.B. for a hand job and offered her twenty dollars.
[8] B.B. testified that over the next few years, whenever they were alone, K.W. would seize the opportunity to ask her to engage in sexual behaviour with him. Specifically, he would ask her to touch him sexually by asking for “favours” or by begging B.B. to give him a hand job. He would use physical motions by making hand gestures with his hands, or by making sexual gestures with objects like a straw or the gear shift in the car.
[9] B.B. would usually resist the initial invitation but K.W. would insist and beg by saying please and by showing her money. B.B. would feel sorry for K.W. and just do it.
[10] During the hand jobs, K.W. would keep his clothing on and only expose his penis. He would touch B.B. over her clothing on her thighs, her breasts, her vaginal area, and her bottom. The activity would continue until he ejaculated. These incidents occurred anywhere when they were alone – in K.W.’s car, at B.B.’s home, and in the washroom located on the main floor of B.B.’s residence.
[11] B.B., who was 21 years old at the time of the trial, gave clear evidence of K.W. inviting her to touch his penis and then grabbing her hand and putting it on his penis. She remembered the first incident, which she identified as “the incident under the sheets”, when K.W. forced her to touch his penis. She also remembered the last incident, referred to as the “Tim Hortons” incident, when she refused K.W.’s invitation for a hand job. She described her interactions with K.W. in substantial detail.
[12] B.B. said there were many incidents but she could not recall the frequency or a specific number of incidents over the four years. In addition to the first time at her home and the last at Tim Hortons, she described an incident outside of Oceans restaurant and another outside the pool. She said that she and K.W. were alone “a few times”. In response to various questions, she eventually said the invitations to touch and the touching happened “several times”. When asked if she could give a range for the number of incidents, she said it was “more than 20 times”.
[13] The frequency of the incidents is relevant to sentencing because it would speak to the magnitude of K.W.’s offence and its impact on court’s analysis of the aggravating factors to the sentencing. Both parties therefore agreed that the sentencing judge had to make a finding on the issue of frequency.
[14] The Defence submitted that the jury could find K.W. guilty on all four counts on the basis of the four incidents B.B. recalled and described in her evidence, without accepting her evidence that the incidents happened on several occasions or on more than 20 times. In light of that, for the purposes of sentencing, the defence ask that this court make a finding on the number of times the incidents occurred. Given B.B.’s inconsistent answers, the court could not be satisfied beyond a reasonable doubt of B.B.’s evidence that the incidents happened “more than 20 times”.
[15] The Crown disagreed. Counsel asked this court to accept all of B.B.’s evidence and find that K.W. committed the entirety of the sexual offending, as alleged. In counsel’s view, there would be no principled basis to accept B.B.’s evidence regarding the four incidents she recalled but then reject her evidence on the “more than 20 times” because of her inability to offer a precise figure or say how many other times she was confronted by K.W.’s offending behaviour. In response to the variability of B.B.’s answers on the frequency of the incidents, counsel invited the court to focus on the fact that B.B.’s evidence was credible, reliable, and corroborated by her mother’s, father’s and brother’s evidence. Fundamentally, B.B. was unshaken in her cross-examination on all material points.
CIRCUMSTANCES OF THE OFFENDER
[16] The court received a PSR dated June 27, 2024. K.W. was 45 years old at the time the report was written. Regrettably, he has a criminal history with 6 prior dispositions, dating from August 9, 2005 to July 12, 2016. The offences arise from various trafficking activities, possession of a prohibited or restricted firearm with ammunition, possession of property obtained by crime under obstruct justice, obstructing a peace officer and perjury.
[17] In her overall assessment of K.W. and with reference to his past convictions, the author of the PSR report noted that K.W. was not forthcoming regarding his participation in the offences but he said he was willing to complete counselling.
[18] K.W. was born in Canada. He reported a stable upbringing and shared a great relationship with his parents. Although his parents separated when he was a teenager, they remained involved in his life. At the present time, K.W. lives with his father and speaks with his mother on a regular basis.
[19] K.W. is the third eldest of eight siblings. He gets along with them and knows he can rely on them. He has been in a common law relationship with R.B. since 2011. He has five children, two from a previous relationship who reside with their mom and three with R.B.
[20] K.W. received his GED in the early 2000s while he was in custody. He was arrested when he was in grade eleven. He was released when he was seventeen. He reported to the PSR author that he was in a car accident, which resulted in him being in a coma for two weeks. Thereafter, he did not return to school. For the past seven years, A.W. has been employed with a company as a painter.
[21] With respect to substance use and addictions, K.W. reported that he consumes alcohol on weekends and has roughly two beers after work. He reported that he managed his anger and frustrations by smoking marijuana.
[22] R.B. described K.W. as a very caring individual who put his children’s interests first. She did not have any concerns about K.W.’s interaction with their three daughters. He is active at the church that he attends, and he helps his neighbours with renovations and painting. Substance abuse was not an area of concern. R.B. said she did not notice any “red flags” in the interactions between K.W. and her sister. She added that she felt caught in the middle and found it “difficult for her to fathom”.
[23] The court received letters of support for K.W. as follows: i. C.G. employer: C.G. submitted an employment reference letter. He made no mention of K.W.’s criminal convictions. He confirmed K.W.’s employment details and described him as a valued member of the team for over a decade. He reported that K.W. consistently demonstrated exceptional skill, dedication, and professionalism. He exhibited a strong work ethic, attention to detail, and was committed to delivering high-quality results. ii. M.P. acquaintance for 6 years : M.P. said he knew K.W. both professionally and personally. He described K.W. as having “a rare blend of kindness, empathy, and reliability that makes him an invaluable companion”. Speaking of K.W.’s qualities as a father, M.P described him as somebody who exemplifies dedication and love. He is committed to his children’s well-being, prioritizes quality time with them, engages in enriching activities, and fosters an environment of warmth, encouragement, and understanding. K.W.’s professional skills as a painter and renovation expert are outstanding. iii. M.G., personal friend : M.G. asked for the court’s leniency as they were going through an economic crisis. She said she knew K.W. for over 20 years. She described the support he gave her when she encountered her own personal difficulties. She described him as “truly been a rock in my life and rock in many individual lives as he is a great father to his children and extends to others.”. iv. R.B., common law partner: R.B. asked for the court’s leniency. She reported that her partner is a good father, a great provider to his 5 children, who is also very present in their lives. Their own three children are ages 6, 4 and 2 years of age. She outlined the needs of their 4-year old daughter who is autistic, non-verbal, and who cannot do things on her own, including dressing herself. She expressed shock by his convictions and said that the offences were out of character for K.W. v. S.W., K.W.’s sister: S.W. described K.W. as “an awesome brother, protective, caring, and will share or give you his last if he has it”. She asked for the court’s leniency so that K.W. could take care of his five children. She expressed concerns about K.W. missing out of his children’s lives and said it was hard to believe that he would be convicted for sexual offences. vi. V . B. Sr., B.B.’s and R.B.’s father: V.B. Sr., (who testified at the trial), wrote to the court asking for leniency towards K.W.’s sentencing on behalf of his three grandchildren. He advised the court that his daughter R.B. is “sickly and must deal with a blood disorder known as sickle disease”. He also referred to the four-year-old’s needs and explained that both his daughter and the grandkids depend on K.W. to take care of them, especially when R.B. is sick and in the hospital.
[24] In her recommendations to the court, the PSR author thought that K.W. could serve his sentence in the community on terms and conditions that involve his continued contact with his conditional sentence supervisor or probation officer.
POSITION OF THE PARTIES
A. The Crown Submissions
[25] The Crown sought a custodial sentence of 8.5 years. She also sought the following ancillary orders: a. An order under s.490.012(1) of the Criminal Code requiring K.W. to comply with the Sex Offender Information Registration Act for 20 years; b. An order under s.109(2) of the Criminal Code prohibiting K.W. from possessions of items listed in paragraph (a) for 10 years from his release from imprisonment, and paragraph (b) for life; c. An order under s.161 of the Criminal Code prohibiting him from the following form 5 years from the date he is released from imprisonment for the offence as defined in s. 161(2)(b): i. Being within 100 meters of anywhere B.B. lives, works, goes to school, or frequents, or anywhere K.W. knows B.B. to be. ii. Seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years. iii. Being in the company of or communicating directly or indirectly, by any physical, electronic, or other means with females under the age of 16 years, unless accompanied by their parents or legal guardian who is aware of K.W.’s convictions for these offences. d. An order under 487.051 of the Criminal Code authorizing the taking of a bodily sample, reasonably required for the purpose of forensic DNA analysis, for inclusion in the National DNA Databank. e. An order under s.743.21 of the Criminal Code prohibiting the offender from communicating directly or indirectly, with B.B. while he is serving his sentence.
[26] Crown Counsel identified the following aggravating factors: a. K.W. was in a position of trust towards B.B. As a frequent overnight guest in B.B.’s home, and as an individual who was entrusted by B.B.’s parents to take B.B. to school or to get food, K.W. was entrusted with B.B.’s safety and security. Instead of protecting her, he isolated her from her family and repeatedly forced her to masturbate him, repeatedly asked for “sexual favours”, and touched her sexually. b. The complainant was particularly young. B.B. was in grade 6 and 11 years old when the sexual abuse started. K.W. was 35 years old. There was a 24-year age difference. The power imbalance was pronounced. c. The degree of physical interference was high. K.W. forced B.B. to touch his penis directly with her hands. On one occasion he touched her bare breast with his own hands. K.W. became aroused and ejaculated while B.B. was touching his penis. He touched her thighs, bottom, around her breasts and her vaginal area over her clothing. d. There were multiple instances of the predatory sexual behaviour. K.W. touched B.B. sexually or had her touch him sexually over twenty times. He repeatedly asked her to touch him sexually. e. K.W. asked B.B. to put his penis in her mouth. Although B.B. refused to do so, the fact of asking a child to fellate him for own sexual gratification increases his moral blameworthiness. f. K.W. paid B.B. after he forced her to engage in sexual behaviour with him. This exercise of control and humiliation increases his moral blameworthiness. g. The sexual abuse continued for years, from 2013 until 2017. h. K.W. sexually abused B.B. in her own home, where she was entitled to feel safe. i. The victim impact was high. As reflected in her victim impact statement, K.W.’s activities were devastating for B.B. Her experiences in K.H.’s hands damaged her ability to form relationships with others, stole her sense of safety, and impacted her mental health. j. K.W. has a criminal record that spans from 1997 to 2016. This is significant in terms of the time period over which he continued offending, the variety of offending activities, and the severity of the offences he committed, which included perjury, trafficking in substances, and possession of a restricted firearm with ammunition. It demonstrates a sustained disregard for society’s values, the administration of justice, and the truth.
[27] On the mitigating factors, the Crown recognized K.W.’s sustained employment and the letters of family and community support. The fact on K.W.’s family needs, albeit very unfortunate, could not be treated as mitigating. With the sentence of any offender, there are usually collateral consequences to others.
[28] Crown counsel also identified the following neutral factors. The fact that K.W. did not plead guilty was not aggravating. However, that disentitled him to the mitigation of a guilty plea. In addition, K.W. did not demonstrate any remorse for his actions. Although this could not be treated as an aggravating factor, it spoke to his rehabilitation prospects. An absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed and therefore demonstrate a substantial likelihood of future dangerousness.
[29] In support of her submissions, counsel recognized that no case would provide an exact guide to an appropriate sentence. In addition to a substantial reliance on Friesen for the principles that are to guide sentencing in the context of sexual offences against children, counsel also drew the court’s attention to the following cases:
- R. v. T.J. 2021 ONCA 391: In this instance the Court of Appeal for Ontario found that two years was the appropriate sentence for a single incident where an adult offender placed a six or seven year old’s hands on his penis and used her mouth to rub his penis while telling her “this is how to do it” for a few minutes, before telling her she could put her mouth on his penis. The victim was having a sleepover with the offender’s sons, at the offender’s home. Unlike K.W., the offender had no criminal record. The trust relationship was limited to a single overnight. Regarding mitigating factors, the offender was a devoted father and spouse, and he was gainfully employed. The Court of Appeal found that the original sentence of nine months was demonstrably unfit.
- R. v. R.H., 2022 ONCJ 225: The offender was sentenced to two years less a day for making his 4-year-old step-daughter touch his penis over his clothing on one occasion. He had family support, was gainfully employed, and was his wife’s caretaker. Unlike K.W., he did not have a criminal record.
- R. v. G.R., 2020 ONSC 7411: The offender was 50 years old. He was sentenced to 5.5 years for three instances of sexually touching his partner’s 9-year-old daughter. He touched her vagina with his hands while exposing his penis, touched her nipples, rubbed his penis against her, and placed her vagina against his penis. He had a pro-social lifestyle and three children. Unlike K.W., he did not have a criminal record. He also faced the collateral effect of a possible deportation.
- R. v. C.N., 2015 ONSC 7431: This decision is pre- Friesen. A 31-year-old offender was sentenced to 33 months for a single incident of touching a 2-year-old boy’s bottom with his penis and ejaculating on the bed while babysitting the boy. The offender had one dated and unrelated prior conviction.
[30] Based on the foregoing, Crown counsel submitted that for the forced touching of his penis by B.B., while he was a guest in B.B.’s home and dating her older sister, an appropriate sentence is 2.5 years, or 30 months. This would recognize B.B.’s young age, her situation in her own home, and K.W. paying her to keep quiet.
[31] For K.W.’s numerous invitations to B.B. engage in sexual behaviour with him, touch B.B. sexually, and/or have her masturbate him until he ejaculated, a sentence of six years is the appropriate sentence. This would recognize that the sexual offences against B.B. were violent crimes that wrongfully exploited her vulnerability and caused her profound harm.
[32] In sum, a total 8.5-year sentence would be proportional to K.W.’s moral blameworthiness.
B. The Defence Position
[33] Defence counsel proposed a global custodial term of 4 years on account of the four convictions. Counsel argued that the Crown’s own cases did not support the proposed range of 8.5 years. Nor did he agree with the proposition that the sentencing on the four counts be consecutive. Counsel also disagreed with the aggravating factors identified by the Crown and suggested a lack of aggravating factors. He proceeded to qualify that submission to suggest that the aggravating factors were on the low end of the aggravating spectrum. In other words, the magnitude of the aggravating factors was not nearly as pronounced as that in other cases that were put before the court. In contrast to those views, counsel submitted that K.W. had a number of strong mitigating factors.
[34] Beginning with the mitigating factors, counsel submitted the following: a. Positive PSR: The author’s view that K.W. was a suitable candidate for community supervision was significant even if that is not legally an option. The author painted a picture of a 45-year-old male who can comply with court orders, who is willing to undertake counselling, and who is not likely to reoffend. Although the author discussed K.W.’s criminal record, she confirmed that the offences before this court were the first of their nature. In counsel’s view, this meant that court could treat K.W. as a first-time offender as that related to sexual offences and conclude that the risk to reoffend was not present. b. Longstanding Employment: K.W. has a solid employment history as a painter and doing various renovations. This was clearly reflected in the letters of support from his employer and co-worker. The comments spoke of somebody who was professional, responsible and hard-working. They also reflected an individual who fulfills significant prosocial functions, both at work and in his community. The prospects of being able to return to work once he is released from custody, speak to the further unlikelihood of reoffending. This is a strong redeeming quality. c. Strong Family Support: This is reflected in the family letters, including K.W.’s common law partner and his father in-law. The authors of those letters spoke of a very caring and supporting father of 5 children, one of whom is autistic and non-verbal with very high needs. K.W.’s absence from the family for a prolonged period of time will have a pronounced impact on the well-being of the family. d. “ Morris ” considerations: Although a Morris report was not obtained [2], K.W. embodied a number of Morris considerations. K.W. was raised in a Canadian-Jamaican family and one of 8 children. Financial difficulties while growing up may offer a context to understand K.W.’s trafficking and related offences. In addition, K.W. suffered a catastrophic brain injury in 1998, resulting in him being in a coma for two weeks. In 2012 he was in another motor vehicle accident and suffered a significant injury. These experiences speak to K.W.’s overall hardship as a Jamaican Canadian male, growing up in a working class family, in a large family and in a rough neighbourhood. Against those realities, it should not be lost on the court that K.W. has been a father figure to his family, his five children, his colleagues at work, and to the community, in a community where father-figures are lacking.
[35] On the aggravating factors, counsel submitted the following: a. Age: The complainant’s age should be considered to fall in the low to middle range of the aggravating scale. Having regard for the cases highlighted by the Crown to support its submissions, B.B.’s age range between 13 and 15 years old, was not nearly as aggravating as the age of a 2- to 4-year-old victim, as seen in a couple of the other cases put before the court. b. The nature of the sexual touching: Manual stimulation, which is what B.B. was subjected to was not nearly as violent as incidents involving physical penetration and serious physical injuries to victims. Even in the face of Friesen’s cautions about drawing distinctions between incidents involving more pronounced sexual activity such as penetration, counsel submitted that the court could not ignore that K.W.’s conduct did not involve physical violence involving penetration and serious physical injuries. This reality should place the offences at the lower end of the aggravating spectrum. c. The trust relationship: K.W. was neither a father, a stepfather, or a relative entrusted with the care of B.B. He was R.B.’s boyfriend who was entrusted from time to time to drive B.B. to school or for food. The weight to be placed on this relationship ought not to be as pronounced as the weight that one would place on a father, a step-father, or a relative responsible for the care of a child. d. K.W.’s criminal record: Although the record cannot be ignored, it should not be treated as a significant aggravating factor because the past offences were for trafficking and related offences. It did not reveal a history of sexual offences.
[36] In support of his submissions, counsel sought to distinguish K.W.’s facts from those in the cases raised by the Crown. He then asked the court to consider as reference points cases, pre and post Friesen. The pre- Friesen cases were provided for context [3]. Counsel made substantial submissions in relation to the following post- Friesen cases:
- R v. S.S.S. 2024 ONSC 1553: The offender was convicted of sexual assault and invitation to sexual touching and was sentenced to a total of three years custody, broken down to three years for sexual assault, and a concurrent three years for invitation to sexual touching. The offences occurred on three separate occasions in 2003 and 2004. The complainant was between the age of 2 and 4 years. The offender was 22 years old and a distant relative of the complainant. There were three incidents that involved an invitation to touch. He was found to have no criminal record, he was continuously employed, he had a young family and supported the extended family, and he lived a prosocial life in the two decades since these assaults. The offences had a long-lasting and severe impact on the complainant. The complainant’s age and the trust relationship were additional aggravating factors.
- R v. A.B. 2023 ONCA 254: The offender was convicted of sexual assault, sexual interference, and invitation to sexual touching. The trial judge sentenced to the offender to 7 years, two years more than what the Crown sought without giving the parties notice of her intentions to do so. The Court of Appeal concluded that the trial judge’s reasons were insufficient to justify her exceeding the five-year sentence sought by the Crown. In the result, the Court of Appeal reduced the sentence to 5 years. With respect to the offences, the abuse began when the complainant was 10 years old and continued for four years. The sexual acts were repeated and serious although they did not include penetration. The complainant was groomed with the use of pornographic materials and the effects on her were profound and lasting.
- R v. G.H. 2023 ONCA 89: The offender was convicted of two counts or sexual assault against his stepdaughter who was between the ages of 8 and 12. He received a custodial sentence of 5 years . The count relating to touching for sexual purpose was stayed per Kienapple. The offender assaulted the complainant over several years while they were lying or sitting on the couch or the recreation room of the family home. The offences had a significant and prolonged impact on the complainant.
- R v. F.J., 2024 ONSC 825: The offender was convicted of sexual assault, sexual interference, and invitation to sexual touching the complainant between the ages of 13 and 16. He was sentenced to 5 years for sexual interference and 5 years concurrent on invitation to sexual touching. The sexual assault charges were stayed per Kienapple. The offender was the complainant’s biological father. The abuse lasted for 9 months. The offender had a dated criminal record and unrelated. He had support in the community and was otherwise prosocial.
- R v. G.S., 2022 ONSC 120: The offender was convicted of sexual assault, sexual interference, and invitation to sexual touching. The victim was between 13 and 16 and worked at the local bakery. The offender was a 61-year-old male who supervised her. He was sentenced to a global sentence of 5.5 years.
ANALYSIS
i. Governing Legal Principles
[37] Section 718 of the Criminal Code sets out the purpose and objectives of sentencing:
718 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: a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; b. to deter the offender and other persons from committing offences; c. to separate offenders from society, where necessary; d. to assist in rehabilitating offenders; e. to provide reparations for harm done to victims or to the community; and f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[38] In other words, the purposes of sentencing are to be accomplished through the imposition of a “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, the promotion of a sense of responsibility in offenders and the acknowledgment of the harm done to victims and the community.
ii. Sentencing post- Friesen
[39] Friesen is a significant case in the determination of a just and fit sentence for K.W. Although the case concerned an offender convicted of sexual interference and extortion, at para. 5 of the decision, the Court discussed how prevalent, serious and harmful sexual offences involving children are:
… 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 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.
[40] The Court elaborated extensively on the far-reaching and profound harm that sexual offences have on children. At paragraph 56 the Court recalled the caution in R . v. McCraw, [1991] 3 S.C.R. 72, that sexual violence against children can cause serious emotional and psychological harm that “May often be more pervasive and permanent in its effect than any physical harm”. At paragraphs 57 and 58, the Court spoke of the “shame, embarrassment, unresolved anger, and a reduced ability to trust others” that children may suffer because of sexual violence.
[41] At paras. 114 and 136 the Court made it clear that the seriousness of sexual offences against children did not just apply to young children. It emphasized that the courts have historically imposed disproportionate sentences in cases of adolescent victims, even though adolescents, particularly girls, may be disproportionately victimized by sexual violence.
[42] Building on those views, at paragraph 110, the Court directed that:
Sentences should thus increase “as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims” ( Scofield , at para. 62). Courts should accordingly be cautious about relying on precedents that may be “dated” and fail to reflect “society’s current awareness of the impact of sexual abuse on children”… Even more recent precedents may be treated with caution if they simply follow more date precedents that inadequately recognize the gravity of sexual violence against children… Court are justified in departing from precedents in imposing a fit sentence; such precedents should not be seen as imposing a cap on sentences.
[43] At the same time, at para. 38, Friesen recognized that:
Sentencing judges have considerable scope to apply the principles of sentencing in any manner that suits the features of a particular case. Different methods may even be required to account properly for relevant systemic and background factors …. Similarly, a particular combination of aggravating and mitigating factors may call for a sentence that lies far from any starting point and outside any range.
[44] At paras. 121-154, the Court identified significant factors to determine a fit sentence, although it was clear that these factors were not meant to be an exhaustive checklist: a) likelihood to reoffend; b) abuse of a position of trust of authority; c) duration and frequency; d) age of the victim; e) degree of physical interference; and f) victim participation.
[45] Of particular relevance to this case are paragraphs 125-130 that discuss the issue of trust, the existence of a trust relationship, emotional manipulation, and the possible role of grooming. In these paragraphs, the SCC talks about a “spectrum” of positions of trust. “An offender may simultaneously occupy multiple positions on the spectrum and a trust relationship can progress along the spectrum over time, Friesen at para. 125. “Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence.”, Friesen at para. 126. “Threats or emotional manipulation may have a greater inhibiting impact because the victim trusts the offender.”, Friesen at para.127. Ultimately, “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”, Friesen, at para. 130.
[46] On the differentiation between physical penetration and touching, or to use the defence’s words, “manual stimulation”, given the submissions by counsel, it is necessary to remember the Court’s precise caution at para. 144 against downgrading the wrongfulness of the offence or harm to the victim where the offending behaviour was limited to touching and masturbation, without any analysis of the harm to the victim. “Simply stating that the offence involved sexual touching rather than penetration does not provide any meaningful insight into the harm that the child suffered from the sexual violence”.
[47] Building on that caution, the Court emphasized the need to recognize the wrongfulness of sexual violence even in cases where the degree of physical interference was less pronounced. The court noted at para. 145 that “Of course, increases in the degree of physical interference increase the wrongfulness of the sexual violence”. However, in the next sentence it repeated the observation that sexual violence against children remains “inherently wrong regardless of the degree of physical interference” and direct that courts recognize the violence and exploitation in any physical interference of a sexual nature with a child, regardless of whether penetration was involved. Finally, at para. 146, the Court expressly noted that it would be “an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration”. Depending on the circumstances of a case, extensive and intrusive touching could be equally or even more physically intrusive than penetration.
[48] Insofar as the defence sought to differentiate between B.B.’s age and younger victims, paragraph 153 of Friesen is especially apt: “Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality. As Feldman J.A. wrote in M.(P.), to exploit young teenagers during this period by leading them to believe that they are in a love relationship with an adult “reveals a level of amorality that is of great concern” (para.19).
iii. Proportionality in Sentencing
[49] Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility and moral blameworthiness of the offender: R. v. Proulx, 2000 SCC 5, at para. 83. The more serious the crime and its consequences, the greater the offender’s degree of responsibility, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64, at para. 12. Section 718.2 (a) directs that a sentence should be increased or reduced to account for the relevant aggravating and mitigation factors.
[50] In short, as the Ontario Court of Appeal recently stated in R. v. Morris, 2021 ONCA 680, at para. 58, “[t]he individualization of the sentencing process requires sentencing judges to prioritize and blend different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.” The imposition of a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 40. While there will rarely be only one possible fit sentence, s.718.1 of the Criminal Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, at para. 37; Friesen, at para. 30; R. v. Parranto, 2021 SCC 46, at para. 10.
[51] More recently, in R. v. T.K.N. 2023 ONCA 19, 2023 ONCA, at para. 19, relying on para.114 in Friesen, the Ontario Court of Appeal recognized that mid-single penitentiary terms for sexual offences against children are normal and substantial sentences can be imposed. In paragraph 114 of Friesen, the Court actually went further and said that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.
[52] On parity and proportionality, in R v . A.J.K. , 2022 ONCA 487, at paras. 80 and 81, the Court of Appeal noted:
[80] When imposing a sentence, the goal is always to impose a fair, fit, and principled sanction: Parranto, at para. 10. Proportionality is key to this determination, focussing as it does on the gravity of the offence and the degree of responsibility of the offender: Friesen, at para. 30; Parranto, at para. 10. Indeed, proportionality is described in the heading above s. 718.1 of the Criminal Code as being the “[f]undamental principle” of sentencing.
[81] The principle of parity is a tool that helps calibrate proportionate sentences because, at its core, parity is about treating similar offenders who commit similar offences in similar circumstances in a similar way: Friesen, at para. 31; Parranto, at paras. 10-11. Therefore, parity exists as an expression of proportionality, providing the court with a means by which to fix proportionate sentences by reference to sentences that have been imposed in other cases: Friesen, at para. 33; Parranto, at para. 10.
[53] A helpful way of summing up the task at hand is captured by Durno J. in R. v. Singh, 2023 ONSC 4949, at paras. 47-48, where he explained that there is no mathematical formula to the determination of a just and appropriate sentence:
[47] […] Sentencing is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community: R v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 91.
[48] The fundamental and cardinal principle of sentencing is proportionality: s. 718.1 of the Criminal Code. The sentence must be severe enough to denounce the offence but must “not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence”: R. v. Nasogaluak, 2010 SCC 6, at para. 42. See also: Ipeelee, at para. 37 and R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 50.
iv. Concurrent or Consecutive Sentences
[54] Given the parties’ differentiation between concurrent and consecutive sentences, it is important to review the governing principles that apply to this issue. The general rule is that offences that are so closely linked to each other so as to constitute a single criminal adventure, may but are not required to receive concurrent sentences, while all other offences are to receive consecutive sentences, see Friesen, at para. 155 and the cases referred to therein.
[55] The first step in a situation of multiple convictions is to determine the appropriate sentence for each individual offence, applying the full range of applicable sentencing principles. The sentences so arrived at should presumptively be imposed consecutively. The second step is to consider whether some, none or all of the offences are related in a manner such that they can be considered a single criminal adventure. If so, those that are so regarded should generally be made concurrent with the heaviest sentencing arising out of that single criminal adventure, see R v. Hutchings, 2012 NLCA 2, at paras. 21 and 22.
[56] Related to the consideration is the totality principle. In the context of consecutive sentences, the sentencing judge must ensure that the total sentence not exceed the offender’s overall culpability. In some jurisdictions, the sentencing judge would begin by identifying a fit sentence for each offence being considered and then decide on the applicability of concurrence and totality principles, see R v. Hutchings, 2012 NLCA, paras. 21 and 22. In other jurisdictions sentencing judges start by determining an overall fit sentence and then impose individual sentences, adding up to the total, see R v. Ahmed, 2017 ONCA 76.
[57] In my review of the cases that were put before the court, where there were multiple convictions, the sentences imposed were concurrent, with global ranges in the 5 to 6 years custodial terms.
v. Application of the foregoing principles to K.W.’s circumstances.
[58] Turning to the application of these principles to the facts before this case, the first order of business is to address the frequency of the incidents against B.B., and the corresponding finding.
[59] In accordance with s.724(2) of the Criminal Code, the Court shall accept as proven all facts expressed or implied that are essential to the jury’s findings of guilt. The Court may also find any other relevant fact that disclosed by the evidence at trial to be proven, or hear evidence presented by either party with respect to that fact. Should any factual implications be ambiguous, the sentencing judge should come to his or her independent determination of the relevant facts and not attempt to discern the thought process of the jury. The Court cannot find, as aggravating or mitigating, facts that would undermine the jury’s verdict: see R v. Ferguson, 2008 SCC 6.
[60] Where there are alternative theories to the same verdict put forward by the Crown, the offender does not automatically get the benefit of the theory with lower blameworthiness on sentencing. Instead, the judge must determine which pathway of liability was proven, see, R v. Roncaiolo, 2011 ONCA 378, paras. 58-59.
[61] In my consideration of the evidence before the jury, I disagree with the suggestion that there was any ambiguity in the evidence concerning the frequency of the incidents or the number of incidents between K.W. and B.B. The Crown’s only theory was that K.W.’s sexual interactions with B.B. reflected a very specific behavioural pattern, that repeated itself several times over the course of approximately four years. B.B.’s evidence was that beginning with the first incident in September 2013 to the last one in December 2017, whenever K.W. was alone with B.B., he would invite her to engage in sexual behaviour and he would proceed to have her touch him for a sexual purpose. K.W. would use his words to ask for “favours” or beg B.B. to give him a hand job, he used physical motions by making hand job gestures with his hands, or he made sexual gestures with objects like a straw or the gear shift in the car. When he embraced B.B., K.W. would do sometimes do so in sexual ways, seeking to touch her breasts, her bottom, and her vaginal area.
[62] B.B. described these behaviours with reference to the first incident, a second incident a few days later, another incident at Oceans, an incident at a pool, and finally, the last incident at Tim Hortons. However, she consistently said that there were many more incidents. At no time did she say that the incidents were limited to the four she described or that they were isolated incidents over the course of the four years or so. In her statement to the police, she could not say how many incidents occurred. I note that she was not asked to give a range. At trial, when asked if she could give a range, she said there were more than twenty incidents, but she readily agreed that she could not give a specific number. She said they were alone on multiple occasions and the encounters followed a similar pattern.
[63] Although the defence was correct that the jury could find K.W. guilty of all four counts by accepting B.B.’s evidence on the four specific incidents, as four discrete incidents, independent of any behavioural pattern, the Crown did not put forward such a theory. The jury was told that over the course of almost four years, whenever K.W. was alone with B.B., he would invite her to a sexual touching. Many of those invitations would lead to manual stimulation, ejaculation and then payment of money for B.B. to remain quiet.
[64] The only alternate theory put to the jury was the defence’s submission that B.B.’s allegations were fabricated. Given the outcome of the case, the jury rejected the defence theory.
[65] Against these observations, although it is always open to a jury to believe some, none, or all of a witness’ evidence, I find no principled reason to reject B.B.’s evidence that she encountered several sexual incidents in her interactions with K.W. Her evidence was that there were many incidents, of which she could remember four. Having regard for the consistency in B.B.’s evidence, I disagree with the defence submission that her answers about the frequency of the incidents were inconsistent. At no point did she say that there was only one incident, or that there were only four incidents. Having regard for her age at the time when she was first confronted with K.W.’s invitations, I was not surprised at all to hear that B.B. could not remember the number of incidents. Given the underlying family dynamics, B.B. concluding that her family could not protect her from her sister’s boyfriend, and her decision to seek help through her school, would explain her being guarded in her answers during her statement to the police.
[66] When I consider B.B.’s answer of “more than twenty times” in response to the question that asked her if she could provide a range, with her overall evidence, it is consistent with the rest of her evidence that the incidents happened many times. It is also consistent with the timeline presented to the court. Over the four years, B.B. said she would not see K.W. very often. But whenever they were alone, he would make his advances on her. B.B.’s range of more than 20 times, when divided by four years, would result in only a few encounters a year, or in other words, not very often. In proposing this range, B.B. did not seek overstate her estimate or otherwise exaggerate. She took care to reiterate that she could not be specific.
[67] That said, to eliminate any suggestion of an ambiguity, the crucial finding for the purposes of sentencing is that K.W.’s behaviour towards B.B. was not limited to the four incidents she described. Rather, consistent with the Crown’s theory of the case, I am satisfied beyond a reasonable doubt that K.W. invited B.B. to sexual touching, and sexually interfered with her on several occasions. This behaviour was part of a pattern that started with an invitation, continued with manual stimulation and related sexual touching and ended with payment. Whether those instances were approximately 20, more than twenty, or thereabouts, for the purposes of sentencing, the behaviour was repeated, it was predatory, and it happened on several occasions. As I discuss further below, these characteristics of K.W.’s behaviour are relevant to my consideration of the aggravating factors. The are also relevant to whether K.W. should receive consecutive or concurrent sentences.
[68] I turn to my consideration of the aggravating and mitigating factors for K.W. Having regard for the foregoing applicable principles, the nature of the offences, and circumstances of the offender, I find the following aggravating factors for K.W.: a. K.W. was 35 years old when he first forced B.B. to touch his penis. He took advantage of an innocent eleven-year-old child and then offered her money to stay quiet. b. That first sexual interference occurred happened in B.B.’s home, where she should have felt the safest. K.W. ignored the family’s hospitality completely. c. K.W. abused the level of trust that was extended to him by B.B.’s parents. Even if he was neither a father, a step-father, or a relative, he stood in loco parentis when he drove B.B. to school or to get food. He breached that trust by sexually abusing B.B. whenever they were alone. His moral blameworthiness as a result is very high. d. K.W.’s repeated sexual encounters and the pattern of an invitation to sexual touching, followed on many occasions by sexual interference (manual stimulation) and then payment, was predatory and had within it, elements of grooming. Whenever B.B. found herself alone with K.W., she had to endure his sexual invitations and his forced sexual activity. This is highly aggravating. e. B.B. has suffered significant harm to her self-esteem, her mental health, shattered her innocence, robbed her of her safety, and broke her relationships with her family. f. The harm to B.B. was compounded by the fact that K.W. was R.B.’s boyfriend. That broader family context impeded B.B.’s ability to obtain help from her family and fed into a host of divided loyalties within the family. K.W. was aware of that dynamic. He was given a chance by being asked to stay away from the family home. He breached that family request, thereby compromising further B.B.’s sense of safety and security in her own home. g. B.B. may not have suffered physical injuries such as the ones described in some of the cases presented by the parties, but the effect on her mental well-being was devastating and palpable during her testimony at trial. While B.B. is to be commended for building her strength to come forward and to testify, she should never have had to be put to such mental injury and humiliation. This is exactly this kind of harm that Friesen was referring to in its caution about the risks associated with the downgrading of offence that are “limited” to manual stimulation over physical penetration and related activities. To describe what B.B. encountered in the hands of K.W. as being on the low end of the aggravating spectrum, as suggested by the defence is highly problematic and objectionable. h. B.B.’s age is also aggravating. I understand defence counsel’s differentiation between a victim who is a toddler and a victim like B.B. who was a pre-teen at eleven. However, the proposed contrast as it amounts to an apples and oranges differentiation. Friesen is especially significant for the observations concerning the effects of sexual crimes on adolescents. K.W. interfered with B.B.’s formative years at a time when her personality and ability to recover from the harm she suffered was still developing. He interfered with her self-fulfilment and her healthy and autonomous development into adulthood. i. K.W. is not a first-time offender. He has a criminal record with convictions related to drug trafficking and possession of a firearm. Although the sexual convictions in this instance are the first on his record, his repeated disregard for the law is highly aggravating. In the context of this factor, I cannot ignore the attempt by B.B. and her family to give him a chance by asking him to stay away from the B home and his breach of even that simple request. This suggests that K.W. will not be easily deterred.
[69] K.W. presents with the following mitigating factors: a. K.W. is gainfully employed and has been for several years. This speaks to his responsibility towards the support of his family. It also speaks to his ability to resume employment once he serves his custodial term. b. K.W. enjoys the support of his family and the letters of support were impressive. c. The PSR is on balance positive and corroborates K.W. prosocial life activities. The author’s impression that K.W. could serve a sentence in the community, even if not possible by law, is significant. d. The indication that K.W. would be willing to receive counselling is a valuable mitigating factor. e. The particular circumstances of K.W.’s family, and specifically, his four year old’s neurological circumstances and R.B.s sickle cell anemia, though strictly speaking not mitigating, are a problem. While I accept that a custodial term for any offender will have collateral effects on their family, (if they have one), in the circumstances of this case, I worry about the possible disproportionate effect on K.W.’s family. I also worry about any continued blame and harm to B.B. as the family deals with the hardship of K.W. being in custody for a long period of time. f. Even without a formal Morris report, I am prepared to recognize that K.W. has encountered some hardships related to his background that may explain, to some extent his criminal record to date. His catastrophic injury, followed by his second accident, may explain his lapses in judgement, thought to be clear, there was no evidence before the court to make such a finding.
A JUST AND FIT SENTENCE
[70] Against the foregoing findings, I turn to the determination of a just and fit sentence for K.W. Having reviewed the applicable law in the preceding paragraphs at some length, for ease of reference, I highlight the essential guiding principles:
i. Denunciation and deterrence are of primary importance in the determination of a just and fit sentence, leaving the court with few options other than imprisonment, Inksetter, at para. 17, John, at para. 41, and R. v. McCaw, 2023 ONCA 8, at para. 29; ii. The sexual abuse and exploitation of children causes profound, devastating, and life-altering harm to the victims, their families, and the community, Friesen, at para. 5. Mid-single penitentiary terms for sexual offences against children is normal, T.K.N., at para.19. iii. Sentences for sexual offences against children must increase, see Friesen at para. 110. Courts are justified in departing from precedents in imposing a fit sentence. Precedents should not be seen as imposing a cap on sentences. iv. Sentencing judges have considerable scope to apply the principles of sentencing in a manner that suits the features of a particular case, that responds to the particular combination of aggravating and mitigating factors, and that ultimately may lie far from any starting point or range, Friesen at para. 38.
[71] Substantively speaking, as between the defence’s position of a global sentence of 4 years and the Crown’s global term of 8.5 years, the difference is pronounced. On the other hand, I agree with the defence that as between his term of 4 years, and the Crown’s proposal of 6 years for counts 3 and 4, the difference in positions is bridged very significantly.
[72] The Crown’s proposed global term runs afoul the principles of proportionality and parity. None of the cases presented to the court arrive at a global sentence of 8.5 years. The vast majority of the examples, post- Friesen, are in the range of 5 years or so.
[73] As for the differentiation between concurrent and consecutive sentences, K.W.’s behavioural pattern extended chronologically over a period of four years, but it was the same repeated behavioural pattern with the same victim. Had the charges been against multiple victims, there might be some justification for consecutive sentences. Similarly, had there been a progression from manual stimulation to invasive acts involving various forms of penetration, that might also justify consecutive sentences. However, the repetitive offending behavioural pattern towards B.B. is more analogous to one criminal adventure as opposed to separate or independent adventures.
[74] Finally, separate from concurrent or consecutive considerations, on totality principles, a global sentence of 8.5 years lies outside of the accepted ranges and outside of K.W.’s overall culpability.
[75] If I were to use the Crown’s 6 year proposal for Counts 3 and 4 as the global term, such a term would be responsive to the aggravating factors and severity of K.W.’s conduct. However, it would fail to take into account K.W.’s mitigating factors, and in particular, his family and community support, his employment prospects, and certain Morris considerations that effective diminish the significance of the previous criminal record.
[76] The defence’s proposal of 4 years responds to K.W.’s mitigating circumstances, but falls short of responding to K.W.’s moral blameworthiness, the seriousness of the offences against B.B., and the repetitive and predatory nature of his behaviour towards B.B. Given K.W.’s past disregard for society’s values, the administration of justice, and even his disregard of the requirement by B.B.’s father Mr. V. B Sr. to stay away from the B Residence, I have some concerns about K.W.’s ability to be deterred. The custodial term must be such that K.W.’s behaviour is denounced and K.W. is deterred from such future behaviour.
[77] In all the circumstances, on account of the four convictions, I conclude that a just and fit sentence for K.W. is a global custodial term of five years. Having regard for the four separate convictions, the global custodial sentence is broken down as follows: Count 1: three years; Count 2: three years; Count 3: five years; and Count 4: 5 years. With the “single enterprise” and totality principles in mind, the terms are to be served concurrently, resulting in the global sentence of 5 years.
ANCILLARY ORDERS
[78] Ancillary orders, as requested by the Crown and outlined at paragraph 25 of this decision, are to issue with the following variation. On account of the proposed s.161 (2)(b) conditions, as those relate to being prohibited for a period of 5 years from being in the company of or communicating directly or indirectly by any physical, electronic or other means with females under the age of 16 years, unless accompanied by the their parents or legal guardian who is aware of the K.W.’s convictions for these offences, an exception is to be made with reference to his own children. In addition, for the same 5-year period, K.W. may be permitted to attend his children’s schools for parent-teacher interviews, school concerts, school presentations and graduations, provided he is accompanied by another adult who is aware of K.W.’s convictions for the offences before this court.
[79] In addition, K.W. is to be assessed and supported with counselling designed to help him address his circumstances.
CONCLUSION
[80] In conclusion, K.W. is sentenced to a global term of 5 years custody, as described in paragraph 77 and the noted ancillary orders as discussed in paragraphs 25 and 78 of this decision. K.W. is to receive counselling in accordance with an assessment of his specific needs.
Tzimas RSJ.
Released: November 4 , 2024
BRAMPTON COURT FILE NO.: CR-20-00000091-0000 DATE: 2024 11 04 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – K.W. REASONS FOR SENTENCING RESTRICTION ON PUBLICATION By court order made under subsection 486.4(1) of the Criminal Code , information that may identify the person described in this judgment as the complainant may not be published, broadcasted, or transmitted in any manner. This judgment complies with this restriction so that it can be published. Tzimas RSJ. Released: November 4, 2024
[2] R. v. Morris, 2021 ONCA 680. The backlogs for such reports are over 12 months, making the request for such reports prohibitive.
[3] Pre- Friesen Decisions R. v. Lavergne, 2017 ONCA 642: The offender pleaded guilty to sexual assault against two girls, ages 12 and 9 years. Concurrent sentence of two years less a day , followed by three years probation. R. v. J.M., 2017 ONSC 1803: The offender convicted of sexual assault of stepsister, T, and a friend, B. He was 16 years older than complainants. He started sexually assaulting T when she was 9 years old and continued over several years for roughly 80 times. The offender was sentenced to 5.5 years for the offences on T and 15 months, concurrently on B. R. v. R.B, 2017 ONCA 74: The offender was convicted of invitation to sexual touching of complainant under 14 years for sexual purpose and sentenced to 4 years imprisonment, to run consecutively to a 28-month sentence imposed in companion sexual assault case. The offender was in a relationship with best friend of three-year old victim’s mother. The victim referred to the offender as “uncle”. There were 10 occurrences over a 7-month period. The offender was sentenced as a first-time offender. The Court of Appeal varied the sentence downwards to 44 months from 48 months because the trial judge exceeded the Crown’s recommendation without notice to the parties. Six years global for two separate, vile sexual assaults were held to be a fit sentence. R v. E.G., 2017 ONSC 1000: The offender was convicted of sexual touching and sexual assault of 14-year-old complainant. The offender was the complainant’s maternal great uncle. He subjected the complainant to sexual intercourse from the time she was 12 years old. It led to a relationship from her teens, until she was 25. The offender was sentenced to 6 years. R. v. Krouglov, 2017 ONCA 197: The offender was convicted of aggravated sexual assault for which he received a sentence of 5 years . He was also convicted of assault and sexual interference, for which he received one year consecutive, and assault with a weapon, assault and uttering death threats for which he received 6 months, consecutive to the other offences but concurrent to one another. The global sentence came to 6.5 years in custody.