Court File and Parties

COURT FILE NO.: CR-22-547 DATE: 2024-11-21

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Amber Lepchuk for the Crown

- and -

NANCY WHITE Stephen Bernstein for Ms. White

HEARD: October 30, 2024

The Honourable Justice H.S. Arrell

REASONS FOR SENTENCE

INTRODUCTION:

[1] Nancy White has been found guilty of two counts of sexual assault; and two counts of sexual interference. My decision was delivered orally on January 12, 2024. I applied the Kienapple principle and conditionally stayed the two convictions of sexual assault.

[2] The case was tried before me without a jury.

[3] The offender is before me today to receive my sentence.

OVERVIEW:

[4] S.B. was a friend of the accused’s son, E.M. The families lived in the same survey and the parents socialized during the summer and fall of 2020.

[5] S.B. was 14 years of age during the relevant time.

[6] The accused was married to James McDonald (“Mr. McDonald”). They have three children together, who are currently aged 13, 16, and 18 – the eldest of which is E.M. The accused and her husband separated after the sexual assaults took place, and are now divorced. The offender has a new partner, to whom she is engaged. The pair share a four-month-old baby.

[7] On January 12, 2024, I found, as a fact, that on two occasions – the first being sometime in late September/early October of 2020 and the second being October 30, 2020 – the offender had vaginal intercourse with, and performed oral sex on, S.B. in the offender’s bed.

[8] The evidence on trial indicated that over the summer of 2020 the offender and S.B. were often together and, as one witness remarked, appeared as though they were dating. When together, the two were inseparable.

[9] S.B., after first denying to police that anything happened, ultimately confirmed the sexual activity. He indicated that he had initially denied the allegations in order to protect the offender. S.B. also communicated to police that the sexual activity had been agreed upon by both parties, and that it was his first time engaging in sexual intercourse.

[10] A DNA sample was found on the inside crotch area of S.B.’s underwear, revealing a profile from S.B. and one female. There was a greater than one trillion times likelihood that the female DNA profile was that of the offender, over any other unknown unrelated person.

[11] The offender was 37 years of age in the fall of 2020. When she testified before me on trial, she adamantly denied that the sexual assaults ever happened. Suggestive text messages to S.B. were found on the offender’s phone, and put to her. She denied sending any such messages to S.B. She had no plausible explanation for how her DNA got on S.B.’s underwear.

[12] The offender confirmed, at trial, that she was aware that S.B. was 14 years of age at the time of the sexual assaults.

[13] In my January 12, 2024 reasons, I concluded that the credibility of the offender was lacking and I rejected her denials as not believable. I accepted the evidence of S.B. as more accurate, especially when considered alongside the other evidence put forward by the Crown, such as the DNA analysis and the text messages.

PRE-SENTENCE REPORT:

[14] The pre-sentence report indicates that the offender is the youngest of four children. She reported a happy upbringing with no abuse in the family. Her father passed away in 2021. The offender maintains a close relationship with her mother, and a less close relationship with her siblings. She claims her relationship with Mr. McDonald from 2001, until they split as a result of these charges, was difficult. She reported physical, verbal, and emotional abuse. Mr. McDonald denies this adamantly. Her children, from her union with Mr. McDonald, now reside with Mr. McDonald and she has not seen them since the charges were laid.

[15] The report indicates that the offender has lived with a new partner since November 2023. She now has one child from that union, born in July 2024. The offender has been on ODSP for the past four years due to chronic back pain. Prior to this, she completed high school and worked at Walmart for 12 years. She is currently on medication for depression, migraines, and chronic pain. She is currently in counselling, through her doctors in house mental health worker.

[16] The offender noted, briefly, two sexual assaults against her, having occurred when she was 15 and as a young adult. She made no comments in her pre-sentence report on the sexual assaults currently before the Court.

CRIMINAL RECORD:

[17] The offender has no criminal record.

VICTIM IMPACT STATEMENTS:

[18] The Court has received two victim impact statements. The first is from Mr. McDonald. He speaks of the significant difficulty he has had, physically, emotionally, and financially, raising the three children himself, especially during COVID. The children have also lost time with their maternal grandparents, while the offender lived with them. Time spent with the offender’s extended family has diminished. Mr. McDonald speaks at length as to the emotional harm and trauma caused to his three children, much of which is ongoing despite many attempts to get the children help. He states that the children want no contact with their mother now or in the future.

[19] The parents of S.B. also provided a victim impact statement. They speak of the offender being a family friend who took advantage of her position to abuse their son. They describe the assaults as traumatic and life altering to their family, with their son S.B. being the most affected. S.B. is traumatized and no longer the care-free, fun-loving teen he was before the abuse. He has lost his ambitions. He is withdrawn from family and friends and is doing poorly in school. Further, the family has suffered in the neighbourhood, as they have become the victims of vandalism, graffiti, and written/spoken obscenities. S.B. himself did not provide a victim impact statement.

POSITION OF THE PARTIES:

[20] Counsel for the offender seeks a conditional sentence. He argues that a sentence of two years less a day, served in the community, with three years of probation to follow, is appropriate. While a conditional sentence in a child sexual assault case is rare and only justified if there are exceptional circumstances, counsel for the offender states that such exceptional circumstances, pertaining to the offender, exist. They include the offender’s new four-month-old baby and her precarious health. A brief letter from the offender’s doctor attests to the latter of these circumstances.

[21] The Crown feels that a penalty of 7-8 years of incarceration is warranted. The Crown is of the view that the offender was in a position of trust, as a neighbour and family friend, and that she took advantage of such a position to abuse a 14-year-old, the best friend of her son. As such, the offender carries a great deal of moral blameworthiness for her actions. The trauma of sexual assault to children is significant and long lasting. The actions of the offender attract a great deal of denunciation and deterrence, both to the offender and to others. A message must clearly be conveyed, through sentencing, that such abuse of children will be dealt with strictly, argues the Crown.

AGGRAVATING AND MITIGATING FACTORS:

[22] The following are the aggravating factors in this case, some of which are statutorily set out in s. 718.2 (a) of the Criminal Code, R.S.C., 1985, c. C-46: a. S.B.’s age of 14 years, at the time of the offence. b. The over 20-year age gap between S.B. and the offender. c. That the offender abused a position of trust, as a friend of the complainant’s family. d. The degree of physical interference being oral sex and full vaginal penetration, on two occasions at least a month apart. e. The loss of S.B.’s virginity as a result of these crimes.

[23] There are some mitigating factors: a. That the offender has no criminal record and appears to have led a law-abiding life until these offences. b. That the offender appears to have the support of family.

THE LAW:

The Principles of Sentencing

[24] Parliament has stated in s. 718 of the Criminal Code that:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(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.

[25] The fundamental principle for judges to follow in sentencing is stated in s. 718.1 of the Criminal Code as follows:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[26] Stated another way, proportionality is the cardinal principle which must guide the fitness of the sentence imposed. The more serious the crime and its consequences, or the greater the offender’s degree of responsibility or moral blameworthiness, the heavier the sentence: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 12.

[27] In R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 91, Lamer C.J. stated that 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 in the community.

[28] Finally, as per the Ontario Court of Appeal in R. v. A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, citing to R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424; and Lacasse, the following is useful in understanding the proper application of proportionality:

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. 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.

82 The principle of individualization is yet another tool designed to help calibrate proportionate sentences. Individualization is central to the assessment of proportionality in that it demands focus upon the individual circumstances of each offender.

[Citations omitted].

The Principles of Sentencing when Crimes Against Children are Committed

[29] Section 718.01 of the Criminal Code provides that denunciation and deterrence are the primary considerations when imposing a sentence for offences against children. Such has been made clear by Parliament and by the courts: see R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at paras. 16-17; Friesen, at para. 105. In considering denunciation and deterrence as the primary objectives for sentencing sexual offences against children, the Ontario Court of Appeal in R. v. M.M., 2022 ONCA 441, at para. 15, wrote “[t]hose who commit sexual offences against children must understand that carceral sentences will ordinarily follow.”

[30] In Friesen, the Supreme Court of Canada made it abundantly clear that trial judges must treat sexual offences against children with the utmost severity by saying as follows, at para. 5:

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.

Mitigating and Aggravating Factors

[31] The Supreme Court strongly cautioned against characterizing children who are victims of sexual offences as willing participants: see Friesen, at para. 152. Further, the Supreme Court reminds trial judges, in Friesen, at para. 153, that,

…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).

[32] Thus, victim participation is not a mitigating factor in sentencing sexual offences against children: see Friesen, at paras. 148-150, 154. The participation of a victim should not distract the court from the wrongfulness of sexual violence against children, the harm that the child suffers as a result of sexual violence, or the fact that adults - and not children - are responsible for preventing sexual activity between an adult and a child: see Friesen, at paras. 148-154. Any sexual contact between an adult and a child is an act of physical and psychological violence, even if it does not result in a lasting injury: see Friesen, at para. 77.

[33] Affirming that participation of the victim is not a mitigating factor, in the circumstances of sexual offences against children, the court in R. v. Riossi, 2023 ONSC 3812, at para. 135, goes on to say that the gender of the victim and accused/offender, as a male and female respectively, is also not a mitigating factor.

[34] There is no evidence of threats, coercion, rewards or gratuitous violence, above that inherent to the crime of sexual assault against a child (as per Friesen), in the present case. However, as far as the Court is concerned such is not a mitigating factor. At best it represents the absence of an aggravating factor: see R. v. Luckhart, 2016 ONSC 1509, at para. 44; Friesen, at para. 77.

[35] Further, where an offender, of sexual assault against a child, is found to be occupying a position of trust such is an aggravating factor and calls for an increased sentence: see Friesen, at para. 130.

[36] Finally, I accept that there has been no remorse shown, although it is difficult to express remorse after a plea of not guilty, as pointed out in R. v. Valentini, [1999] 43 O.R. (3d) 178 (C.A.) at p. 22. I acknowledge that a lack of remorse is not an aggravating factor.

Conditional Sentences

[37] The foundational case on conditional sentences which sets out the general principles and legal test, is R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. The legal test can be summarized into a two-stage analysis: see Proulx, at paras. 46-47; R. v. Kirkpatrick, 2022 ONCJ 387, at paras. 14-15. First, a judge should consider whether a conditional sentence is available, having regard to the statutory prerequisites. At this stage of the analysis, the factors to consider include that,

1. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
2. the court must impose a term of imprisonment of less than two years; and
3. the safety of the community would not be endangered by the offender serving the sentence in the community.

Second, a judge should consider whether a conditional sentence is appropriate considering the fundamental purposes and principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code.

[38] Rarely is a conditional sentence appropriate in cases involving sexual offences against children post-Friesen: see M.M., at paras. 15-16. Only exceptional circumstances, such as medical hardship that cannot be adequately addressed at a correctional facility, could render a conditional sentence appropriate: see M.M., at para. 16; R. v. P.S., 2021 ONSC 5091, at para. 81.

Length of Sentence

[39] Friesen suggests, at para. 114, that “mid-single digit penitentiary terms for sexual offences against children are normal.” Crown, in their sentencing materials cite to Friesen; R. v. Menard, 2023 ONCA 210, affirming R. v. M.M., 2022 SCJ (unreported); R. v. B.M., 2023 ONCA 224, 166 O.R. (3d) 721; and Riossi – all of which involved sentencing following a conviction of sexual assault/interference against a child. The sentences imposed in these cases were, respectively, six years, five years, seven years, and four years. The four-year sentence in Riossi, was the result of conviction on two charges of sexual assault, each receiving two years and running consecutively. I understand these cases to be illustrative of the Friesen “mid-single digit penitentiary term”.

ANALYSIS:

[40] The defence seeks a conditional sentence, given certain unique factors in this case, being the poor health of the offender, the care of her new baby, her lack of a criminal record, and the overall factual matrix. The Crown is opposed, given the aforementioned aggravating factors, the significant moral blameworthiness of the offender, and the seriousness of a conviction of sexual interference against a child.

A Conditional Sentence is Not Appropriate

[42] I am satisfied that there is no minimum penalty and that the public is not in danger were the offender to serve her sentence in the community. However, I am not persuaded that I should impose a sentence of less than two years, nor am I satisfied that a conditional sentence is appropriate given the fundamental principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[43] I am of the view that a term of imprisonment of less than two years is inappropriate where a 37-year-old adult sexually assaulted a 14-year-old child on two different occasions. Denunciation and deterrence must play a more prominent role in a case such as this. Neither principle would be reflected in a penalty of less than two years, nor through the imposition of a conditional sentence.

[44] I am mindful of the comments in M.M., that only in exceptional cases of child sexual assault will a conditional sentence be appropriate. I am firmly of the view this is not one of those exceptional cases. See also R. v. R.S., 2023 ONCA 608, 168 O.R. (3d) 641; R. v. S.W., 2024 ONCA 173; and B.M..

[45] I understand that this offender does have some health issues and that treatment will be somewhat more difficult in a correctional institution. I am also well aware that being separated from her new baby will be particularly difficult for the offender, her partner, and her mother – the latter two of which will provide care for the child. I understand that this is a non-ideal situation for this new child, who will be separated from their mother.

[46] However, the case law is clear. The exceptional circumstances of an offender that would warrant a conditional sentence are predominantly those where the offender has serious health issues, which cannot be accommodated in a correctional institution. The onus is on the offender to provide some evidence to that affect. No such evidence has been provided in this case.

[47] The only evidence before the court of the offender’s health issues are her comments in the pre-sentence report and the brief medical report of her family doctor. He advises that she has anxiety, depression, back pain, and headaches. He also describes post-traumatic stress and panic attacks. She is on medication to treat these symptoms and has seen mental health counsellors at various times over the years. Her doctor appears to see her regularly, approximately every six to eight weeks. There is nothing in this report to suggest that these health issues are particularly exceptional, life altering, or could not be adequately monitored, treated and dealt with in a correctional institution.

[48] The circumstances detailed above are not sufficient nor exceptional enough to allow me to impose a conditional sentence – such would be an improper sentence for these very serious crimes. As per A.J.K., the circumstances of the offender are factors, among others, in determining a fit sentence in this case.

Determining the Proper Length of Sentence

[49] This is a very serious offence. Many people have been adversely affected by the actions of this offender, including the victim, his entire family, and the offender’s children and family.

[50] There is a high degree of moral blameworthiness on this offender. She was 23 years senior to her victim. She clearly would have known what she was doing was very wrong. She would have known she was exploiting this child yet persisted not once but twice, with a month gap in-between the two offences –leaving her plenty of time to think about the wrongfulness and consequences of her actions. This was not a spur of the moment, impulsive action. There is evidence that the offender formulated a relationship with S.B., over several months. She took him to her bedroom knowing they were alone, and ensured the door was locked to prevent any interruptions. This was a planned and thought-out crime.

[51] Having considered the severity of this sexual assault, and the aggravating factors noted, I do not find that the offender should be subject to a global sentence of 7-8 years, as requested by the Crown. In support of such a lengthy sentence, the Crown cited Friesen, Menard, and B.M.. The sexual assaults, in such cases, happened to a much younger individual in a forceful and aggressive fashion or took place many more times over a much longer period. I find this case law to be distinguishable from that at bar.

[52] While the presence of a guilty plea was a mitigating factor in Friesen, Menard, and B.M., the absence of one cannot bridge the gap between the proper sentence in this case and the same in those three cases. Exercising ones right to trial is not an aggravating factor. I acknowledge that S.B. has had to relive the trauma he endured on a number of occasions starting with his police interviews and statements, his testimony at the preliminary hearing, various preparations for court attendances, and his evidence before me.

[53] It is the Court’s opinion that Riossi, as cited by the Crown, is the most synonymous with the case at bar. Its distinguishable features are also apparent as the case before me does not suffer from the same degree of aggravating features, while also not benefiting from the same degree of mitigating factors. Riossi was a high school teacher that engaged in sexual relationships with two of her students. At the time of the offences the students were 15 and 16, the offender was either 27 or 28. The offender performed oral sex on both victims and engaged in vaginal intercourse with the 15-year-old victim. The offender was sentenced globally to four years imprisonment. Various aggravating factors were raised on sentencing including breach of trust, the duration of the sexual abuse (occurring for around three months with one student and nine with the other), manipulation of one victim to lie to the police, the threatening of one victim, and the impacts of the assaults. There were also numerous mitigating factors, the most significant of which was a guilty plea. Others included the lack of a criminal record, familial supports, and pro-social life experience.

[54] Like the offender, Ms. Riossi also suffered from diagnosed post-traumatic stress disorder, anxiety, and depression. Considering such symptoms on sentencing, Justice Di Luca, at para. 138, similarly found that “none of Ms. Riossi’s… current medical issues amount to exception circumstances warranting the imposition of a conditional sentence of imprisonment.” Turning to the appropriate length for a prison sentence Justice Di Luca, at para. 139, stated that “while denunciation and general deterrence are the prime sentencing objectives, I cannot entirely ignore the fact that I am sentencing a relatively young first offender who displays positive rehabilitative prospects.”

[55] I take an approach similar to that in Riossi. The crimes committed by the offender are serious, and inherently violent. They require conveyance of a clear message, to the offender and others, of denunciation and deterrence. At the same time, I am abundantly aware of the fact that the offender has a very young child, a child who will have to live, and to a degree grow-up, without the presence of their mother. I also cannot ignore that the offender’s medical issues, while not rising to the level of exceptional circumstances warranting a conditional sentence, will likely be more difficult to treat while incarcerated.

[56] In noting these above factors I return to the decision of A.J.K., in which Justice Fairburn stated, at para. 77, … Absent some highly mitigating factor, the forced penetration of another person will typically attract a sentence of at least three years in the penitentiary. While Bradley and the cases following it suggest that the range is three to five years, this is of course just a range, a quantitative sentencing tool designed to assist busy trial judges with where to start: Parranto, at paras. 15-17. Accordingly, there will be circumstances where a departure from the range, either above or below the range, is entirely appropriate.

CONCLUSION:

[57] I have concluded under all the circumstances that incarceration of 3.5 years properly reflects the seriousness of this crime, the moral blameworthiness of this offender, her unique circumstances, the harm she has caused the victim and his family, and the overall facts of this tragic case.

ORDER:

[58] The penalty of 3.5 years will be imposed on each count and served concurrently.

[59] There will be the usual DNA order.

[60] There will be a s. 109 weapons prohibition for 10 years.

[61] This offender will be registered under the SOIRA sex registry for 20 years, pursuant to ss. 490.012(1) and 490.013(4) of the Criminal Code.

[62] There will be a no contact order with the victim or his family for 10 years.

[63] The victim surcharge is waived.

Arrell, J Released: November 21, 2024