COURT FILE NO.: CR-23-3-495
DATE: 20241203
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
M.U.
Melissa Mandel,
for the Crown
No one appearing,
for the absconded accused
HEARD: November 12, 2024
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Reasons for Sentence
A. Overview
[1] The accused, M.U., was charged with sexually abusing his young step-daughter, P.N., over a lengthy period of time, between approximately April 1, 2013 and February 4, 2017, at a time when she was under 16 years of age. He was alleged to have sexually touched her breasts, vagina and buttocks on multiple occasions over that period of time. Further, on one occasion, the accused is alleged to have performed oral sex on the complainant while she was sleeping, after having given her sleeping pills earlier in the day.
[2] The accused was indicted on seven counts of “sexual assault,” contrary to s. 271 of the Criminal Code, R.S.C. 1985, chap. C-46, and with another seven counts of “sexual interference” with a person under the age of 16 years, contrary to s. 151 of the Criminal Code.
[3] At the judge-alone trial that took place over the course of about seven days in June of 2024, the accused was represented by counsel, namely Karanvir Sidhu and Lata Menon. Further, all of the proceedings were translated for the assistance and benefit of the accused, into the Indian language and dialect of his choice.
[4] The accused testified in his own defence and denied ever engaging in any sexual misconduct with the complainant, and he suggested that the complainant had invented all of these allegations against him.
[5] After hearing all of the evidence, and the closing submissions of the parties, I reserved judgment on the case. On the date scheduled for judgment, July 23, 2024, the accused failed to appear. I was told that he had returned to India, as his mother was ill. His judicial interim release order did not prevent him from travelling to India, but the date for judgment was scheduled in his presence and, in part, at his convenience, so he knew that his absence in court would be a problem for the prompt continuation of the criminal proceedings. In any event, at the request of defence counsel, the matter was adjourned to September 11, 2024.
[6] However, the accused did not appear in court on that date either. In the result, as a result of further facts provided to me that day, I found that the accused had “absconded” within the meaning of s. 475 of the Criminal Code and he was, accordingly, deemed to have abandoned his right to be present at his trial. After so concluding, I read my Reasons for Judgment aloud, and provided written copies to counsel. See: R. v. M.U., 2024 ONSC 3769. In short, and for reasons outlined more fully in my Reasons for Judgment, I accepted the honest testimony of the complainant as truthful and reliable, I completely rejected the testimony of the accused as wholly incredible, and I found the accused guilty of all 14 criminal charges then pending against him.
[7] Ultimately, I adjourned the matter to November 12, 2024 for the sentencing hearing, but anticipating that defence counsel may seek leave to be removed from the record, given that the accused was still in India, seemed to have no inclination to return to Canada, and was seemingly disinterested in having any further contact with his lawyers.
[8] Predictably, the accused did not appear in court on November 12, 2024, and defence counsel brought an application, which I granted, to be removed from the record, as they had no further contact with the accused, and had no instructions from the accused on the question of the sentence to be imposed upon him. Thereafter, I heard the submissions of the Crown only on the issue of sentence.
[9] The Crown fairly suggested that all of the “sexual assault” findings of guilt should be stayed pursuant to the rule against multiple convictions for the same offence, and that the accused should only be convicted of the “sexual interference” offences. The Crown also argued that, in all of the circumstances, the accused should be sentenced to a penitentiary term of imprisonment of between five and seven years in total duration, and that certain other specific ancillary sentencing orders should also be made. At the conclusion of these submissions, the matter was adjourned to today, December 3. 2024, for the imposition of sentence.
B. The General Nature of the Offences
The Accused’s Sexual Misconduct Against the Complainant
[10] The accused began his sexual abuse of the complainant within weeks of her arrival in Canada from India, when she began living with her mother and the accused. Without fully detailing all of the sexual misconduct of the accused against the complainant, it can be briefly summarized as follows.
[11] In the summer of 2013, the accused began to approach the complainant from behind, when she was using a computer at the dining room table in their home, and he would grab her breasts over her clothing, and afterwards, under her clothing for “skin-to-skin” contact with her breasts. This took place on multiple occasions. This sexual touching “weirded out” the complainant and she soon stopped “hanging out” with the laptop in that corner of the dining room.
[12] On one occasion in the winter of 2013, during a bad storm, and when there was no power to their home, and her mother was at work, the accused told her to come into his bedroom so that he could tell her a “scary story” about “Michael Jackson.” When she arrived, the accused put his arms around her to “cuddle” her on his bed, and he used one of his hands to touch one of her breasts over her clothes. This made her feel “very uncomfortable.” Later, the accused told her the “scary story” about how “Michael Jackson was possessed.” In accordance with his usual practice, the accused told the complainant not to tell anyone.
[13] Relatively soon after she came back to live in Canada, the accused started to frequently come into her bedroom at night when she was in bed. Sometimes he just watched her in her bed. Other times, he would touch her breasts. Sometimes, he touched her vagina or her “bum” – both over and underneath her clothes. Sometimes, as he touched her, the accused reached down with one hand to the area near his penis. Sometimes, when the complainant shifted around in the bed to try to show her discomfort, the accused would “back off,” only to return a few minutes later and “start again.” The complainant explained that she was “scared” when this happened. This happened on multiple nights over a period of years.
[14] In the summer of 2014, the complainant started “working out” in the “gym” that had been created in the basement of their home. She was lifting weights to try to strengthen her upper body, and the accused was “helping her,” like a “trainer.” One evening, during this activity, when the accused was behind her, he put both of his hands on her breasts, over her clothing, while she was lifting the free-weights. The complainant pushed his hands away and showed him that his touching made her feel uncomfortable and irritated.
[15] On one occasion, in 2014, when the complainant was 13 years old, and wanted to get the use of her cell phone back from her mother’s decision to “ground” her, the complainant spoke to him alone in his bedroom at night. The accused was sitting on his bed, as the complainant stood in front of him between his legs. The accused pulled her closer to him, rolled up her top and her training bra, and started sucking on the nipples of her breasts. The complainant recalled the sound of his mouth sucking on her breasts, and she was “really disgusted” and “weirded out” by this behaviour, and she ultimately went to the washroom to wash his saliva off her breasts.
[16] During the “March break” in 2015 or 2016, when she was 14-15 years old and in grade eight or nine, she was sleeping in her mother’s bedroom on the third floor of the townhouse, while her mother was on vacation in India. The complainant and the accused were home alone. The complainant had been experiencing a period of “insomnia” and was having trouble sleeping. When advised of this, the accused provided her with some sleeping pills, which she took. Later that night, the complainant woke up with the accused between her legs, performing oral sex on her. The complainant explained that this sounded like the accused was chewing with his mouth open. The complainant went to bed that night wearing pyjama bottoms, but when she woke up she was no longer wearing these pyjama bottoms, when the accused had his face in her vagina.
[17] On one occasion, when the complainant was at home, at night, sick with the “flu,” watching the movie “Gravity” on the television, from the couch in the living room, the accused groped her breast, over her clothing, with his hand. The accused had been seated on the arm of the couch. This happened when the complainant was 15 years old, after she had started school in grade nine.
C. The Personal Circumstances of the Offender
[18] Given that the accused has absconded to India, is deemed to have waived his right to be present at his trial, and his former lawyers have been removed from the record (at their request), I did not receive the usual personal information about the history and background of the accused, nor did I hear from him personally on the question of sentence. Accordingly, the little information I have about the accused must be gleaned from the trial testimony in this case.
[19] I understand that the accused is an adult male, approximately 57 years of age, with no criminal record. These are his first convictions.
[20] The accused married the complainant’s mother, PuN., in India, in September of 2009, in an arranged marriage. This was the second marriage for both of them. The accused was the step-father to the complainant, as she was the biological daughter of her mother’s first husband. The three of them began to live together in approximately May of 2013, in a three-story townhouse in Scarborough, when the complainant was 12 years old.
[21] Initially, the complainant thought the accused was a “great person.” They had a very good relationship. She enjoyed his company and treated him as her own father. Initially, the accused treated her well and bought her virtually anything she wanted. The complainant explained that it felt like they had a proper family, and this made her very happy. However, when the sexual misconduct began, things got worse.
[22] At trial, the accused testified that, in 2013, he started working as a security guard, for an agency, at the University of Toronto location near the St. George subway. He testified that he worked there, primarily on night shifts, until 2019.
D. The Rule Against Multiple Convictions
[23] The rule against multiple convictions for the same offence prevents an accused from being convicted of multiple offences arising from the same transaction where the elements of the offences are substantially the same. In short, the rule prevents multiple convictions where there is both a factual and legal nexus amongst the different offences. In such circumstances, the accused should only be convicted of the more serious of the offences, and the findings of guilt in relation to the other similar, lesser offences should be stayed. See: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, at pp. 744-754; R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480, at pp. 491-503; R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3, at pp. 12-18; R. v. K.(R.) (2005), 2005 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont.C.A.), at paras. 27-56.
[24] The Crown is quite right, that this important rule is applicable in the circumstances of the present case, in that it prevents the accused from being convicted of the offences of sexual assault, given that he has also been found guilty of the offences of sexual interference in respect of the same sexual misconduct against the young complainant. In the result, the accused will be convicted of all of the offences of sexual interference, but all of the findings of guilt in relation to the offences of sexual assault will be stayed.
E. The Governing Sentencing Principles
[25] Pursuant to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute 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: (1) to denounce unlawful conduct; (2) to deter the offender and others from committing offences; (3) to separate offenders from society where necessary; (4) to assist in rehabilitating offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and the community.
[26] Pursuant to s. 718.01 of the Code, when a court imposes a sentence for an offence that involved the abuse of a person under 18 years of age, it “shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” This provision clearly applies in the present case given that the accused sexually abused the complainant many times, over an extended period of time, when she was well under 18 years of age. Accordingly, I am obliged to give “primary consideration” in sentencing the accused to the sentencing objectives of “denunciation and deterrence.”
[27] According to s. 718.1 of the Code, the “fundamental principle” of sentencing, overall, is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[28] Section 718.2 of the Code requires a sentencing court to also consider a number of other principles: (1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
[29] According to s. 718.2(a)(ii),(ii.1) and (iii) of the Code, evidence that the offender, in committing the offence, abused a member of the offender’s family, abused a person under 18 years of age, and/or abused a position of trust or authority in relation to the victim, are all statutorily deemed to be “aggravating circumstances” of the offence.
[30] I find that all three of these statutory provisions are applicable in the circumstances of the present case as: (1) the accused sexually abused his step-daughter, a member of his immediate family; (2) the complainant was well under 18 years of age at the time of the sexual abuse; and (3) in committing these sexual offences against his young step-daughter, the accused abused his position of trust and authority as her step-father. Accordingly, I am bound to consider all of these relevant facts as “aggravating circumstances” with respect to the offences of sexual interference committed by the accused.
[31] Of course, the fact that the accused is a mature adult, with no previous criminal record, and a successful work history, are mitigating circumstances which must also be carefully considered in the sentencing of the accused.
[32] I am also obliged to follow the detailed, helpful guidance that was provided by the Supreme Court of Canada in its judgment in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, especially at paras. 1-2, 5, 42-45, 50. 55-68, 74-91, 95-105, 107-120, 126-136, 138-147, concerning the types of sentences that should be imposed in these types of cases.
F. The Sentence of Imprisonment
[33] Taking into account all of the relevant circumstances of this case (at least all of those facts that I am aware of) and seeking to apply the governing sentencing principles, in my view the accused should be sentenced to a six-year term of penitentiary imprisonment.
[34] The adult offender repeatedly sexually abused his young step-daughter multiple times over an extensive period of time. This was a terrible breach of trust by the accused. He was her step-father, but rather than helpfully provide her with fatherly guidance and advice to try to help raise her up to be a responsible and productive adult member of society, and help her reach her full potential, the accused frequently abused her for his own sexual pleasure and personal gratification. Further, the complainant was a vulnerable young person who relied upon the trusted accused for guidance and fatherly assistance. Still further, the accused is possessed of no mitigating excuse for this flagrantly grave sexual misconduct, and he is entirely to blame for this morally reprehensible criminal behaviour. In short, these were very serious sexual offences committed by the accused, and he is entirely responsible for their commission, many times over a period of years.
[35] The sentencing principles of denunciation and deterrence require the imposition of a sentence of penitentiary imprisonment of this duration, as do the clear dictates of the Supreme Court of Canada decision in R. v. Friesen. See also: R. v. A.S., 2023 ONSC 983, at paras. 1-4, 9-16, 26-29, 43; R. v. G.R., 2022 ONCA 374, at paras. 1-2, 9-12; R. v. D.D. (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, 163 C.C.C. (3d) 471 (C.A.), at paras. 34-38, 44-47.
G. Ancillary Sentencing Orders
[36] In addition, in my view the following ancillary sentencing orders are appropriate in all of the circumstances of this case.
[37] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The sexual interference offences committed by the accused are “primary designated offences” as defined in s. 487.04(a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.
[38] Second, as the accused has been convicted of a number of “designated offences,” pursuant to the combination of ss. 490.012(1) and 490.013(2)(b) of the Criminal Code I make an order requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years.
[39] Third, pursuant to s. 161(1) and (2) of the Criminal Code, I make an order prohibiting the accused, for the rest of his life, from: (a) attending any public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; (b) being within two kilometers of any dwelling house where the complainant is known to ordinarily reside; and (c) 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.
[40] Fourth, pursuant to s. 743.21(1) of the Criminal Code, I make an order prohibiting the accused from communicating, directly or indirectly, with the complainant while he is serving his custodial sentence.
[41] Fifth, pursuant to ss. 109(1)(a) and 109(2) of the Criminal Code, there shall be an order prohibiting the accused from the possession of any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years after the accused is released from the period of imprisonment imposed today; and from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.
[42] While the offences committed by the accused clearly did not involve the use of any firearm or other weapon, the sexual offences committed against the complainant inherently involved a sufficient act of “violence” by the accused to trigger the obligation to impose this mandatory order. See: R. v. Savard (1979), 1979 2936 (QC CA), 55 C.C.C. (2d) 286, 11 C.R. (3d) 309 (Que.C.A.); R. v. Broome (1981), 1981 3135 (ON CA), 63 C.C.C. (2d) 426, 24 C.R. (3d) 254 (Ont.C.A.); R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260, 115 C.C.C. (3d) 205, at paras. 22-23; R. v. Killam (1999), 1999 2489 (ON CA), 29 C.R. (5th) 147, [1999] O.J. No. 4289, at paras. 1, 17-18; R. v. Bossé, 2005 NBCA 72, 288 N.B.R. (2d) 82, at paras. 7-16; R. v Aguas, 2015 ONSC 5732, [2015] O.J. No. 4739, at para. 56.
H. Conclusion
[43] In the result, the accused is sentenced to a six-year term of penitentiary imprisonment. He is also subject to the various ancillary sentencing orders that have been made today as part of the sentencing process.
[44] There is one practical point that I should make clear at this time. I do not know whether the accused will ever voluntarily return to Canada (where he should immediately be arrested on the outstanding bench warrant, and will then have to serve the sentence imposed today), or whether the accused will ever be legally compelled (perhaps by extradition proceedings) to return to Canada to serve the sentence imposed on him today. However, I wish to make it clear that this sentence upon the accused should only begin to run once the accused is actually in Canada again – for whatever reason – and has actually begun serving this sentence. In other words, while sentences usually start to run when they are imposed, they cannot do so in cases like the instant one, where the accused has absconded to another country, and is not presently available to begin serving his sentence.
Kenneth L. Campbell J.
Released: December 3, 2024
COURT FILE NO.: CR-23-3-495
DATE: 20241203
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
- and -
M.U.
REASONS FOR SENTENCE
K.L. Campbell J.
Released: December 3, 2024