COURT FILE NO.: 22-11404690 DATE: 2024/12/20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – A.M. Accused

Counsel: Tasha Bobrovitz for the Crown Richard Addelman, for the Accused

HEARD: December 16, 2024

Publication Ban

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding under subsection 486.4(2.1) of the Criminal Code, R.S.C. 1985, c. C-46, directing that the identity of the victim and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

Reasons for Sentence

Parfett J.

Decision

[1] The accused in this matter, A.M. pleaded guilty to one count of sexual interference contrary to s. 151 of the Criminal Code. [1]

[2] The court must now sentence A.M.

Circumstances of the Offences

[3] The victim indicated that the assaults started at the end of June 2022 when she was 11 years old. A.M. entered her bedroom, removed her clothing and placed his finger inside her vagina. The next occasion occurred during the Canada Day weekend. The victim had some friends over and after they left, A.M. again entered her bedroom, removed her pants and penetrated the victim’s vagina with his finger. The victim experienced pain after this incident. There were several more similar incidents that occurred in the victim’s bedroom. On one occasion, A.M. commented that the victim had ‘a beautiful vagina’. There was a further occasion in late 2022 when the victim was at home sick and A.M. sat with her on the couch and penetrated her vagina with his finger under her pants. Later that day, he once again entered her bedroom and sexually assaulted in the same fashion as previously.

[4] In November 2022, the victim told several school friends what had been happening to her. They, in turn, told their parents. The Children’s Aid Society was contacted as well as the police.

[5] A.M. turned himself in on December 2, 2022. He was charged with this offence and in March 2024, he pleaded guilty. A pre-sentence report and sexual behaviour assessment was ordered.

Circumstances of the Offender

[6] A.M. was born and grew up in Poland. He was married in Poland but his wife died tragically of pancreatic cancer. As a result, he decided to immigrate to Canada and start over. He married a second time, but that marriage ended 10 years later. A.M. has two children from that marriage who he was seeing regularly until he was charged with this offence.

[7] In 2018, A.M. started a relationship with the mother of the victim. M.C. and her two children moved in with A.M. in 2019. According to the probation officer who prepared the pre-sentence report, both A.M. and M.C. described their relationship in positive terms.

[8] A.M. is presently 55 years old. He is a registered nurse practitioner, and he has worked consistently in that field since his arrival in Canada. Shortly before the sentencing hearing he retired from his job.

[9] A.M. has no prior criminal record.

[10] As noted at the outset, A.M. pleaded guilty to this charge. He expressed remorse to both the probation officer and to Dr. Gulati, who prepared a s. 21 Mental Health Act, R.S.O. 1990, c. M.7 sexual behaviours report. In court, he apologized to the victim and her family and took full responsibility for his actions.

[11] The probation officer noted that A.M.,

expressed significant remorse for his actions and appeared to grasp the seriousness of the offence before the Court, He did not attempt to minimize or rationalize his behaviour, and openly admitted he cannot provide any justification for what he did. [2]

[12] Dr. Gulati indicated that when asked about the offence, A.M. stated, “I admit to all aspects of the alleged offence” and that when asked about responsibility, he said, “I accept full responsibility”. In addition, A.M. said “I know this is wrong. It is just idiocy, I know this is not right and not normal. I feel so bad that I would have caused [L.] this pain” [3] However, Dr. Gulati also noted that,

There were periods of emotional instability where [A.M.’s] emotional expression changed to agitation in response to the details being discussed. A.M. often tried to dominate the conversation, cutting off the interviewer at times. He became emotional and agitated when asked to recount the details of and circumstances surrounding the offences. He was somewhat guarded with the details of the offences. When questioned about the number of times he sexually touched the victim, he became tense and raised his voice showing irritation. He often answered “I don’t know”. [4]

[13] The probation officer spoke to A.M.’s second wife, his mother and M.C. M.C. indicated that when she confronted A.M. with the allegations, he denied them. According to S.M. he also denied committing the offence. E.R. – A.M.’s mother – indicated that he made a partial admission to her.

Victim Impact Statements

[14] The victim, her brother and M.C. prepared victim impact statements. They each recounted the devastating impact that these incidents have had on the family.

[15] The victim’s brother stated,” I’ve … had nights of just wondering what I could have done to stop what he was doing or to help [my sister]. … And not all of his actions just affected me emotionally, they impacted my sense of safety and security.”

[16] M.C. indicated, “I have had many sleepless nights ever since I’ve been informed of the situation. … what I think about on these nights [is] about how I wish that it was me who was hurt and not my daughter. I hate that I have to watch her suffer…”

[17] Finally, the victim said,

I was already doing self-harm before all of this, but I refrained from doing so, so that [A.M.] wouldn’t ask any questions. After I was finally free from him, I relapsed so bad. I had suicidal thoughts before, but after I ended up just wishing that he had killed me and put me out of my misery. [5]

[18] According to the victim, she has been diagnosed with depression and she is taking medication.

Principles of Sentencing

[19] Section 718 of the Criminal Code sets out the governing principles of sentencing. That section states:

The fundamental purpose of sentencing is 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; (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 acknowledgement of the harm done to victims and to the community.

[20] In a case involving sexual assault, the primary sentencing principles are denunciation and deterrence.

[21] There are two aspects to the principle of deterrence; they are general deterrence and specific deterrence. Specific deterrence relates to the offender himself and aims to deter that offender from re‑offending. General deterrence relates to the belief that an appropriate sentence will have the effect of deterring other members of the public from committing similar offences. In this case, both specific and general deterrence are applicable.

[22] Two other sentencing principles set out in the Criminal Code have a significant impact on this sentencing hearing. Section 718.1 states:

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

[23] In addition, s. 718.2(d) points out that, ‘an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.’ This principle is known as the principle of restraint.

[24] In this case, both counsel agree that a custodial sentence is appropriate; they disagree on how long.

[25] It must be noted that the sentencing ranges for sexual offences have changed over time. The courts have come to recognize as stated in R. v. Friesen, 2020 SCC 9 [6] that there needs to be more emphasis on factors other than the specific nature of the sexual offence. Therefore,

[t]his emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72, "may often be more pervasive and permanent in its effect than any physical harm" (p. 81). [7]

[26] This view is especially important where the offence involves a young and vulnerable victim as it does in the present case. The age of the victim is an critical factor in determining an appropriate sentence. In Friesen, the court noted that,

At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence. In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy. [8]

[27] In the present case, given A.M. did not have a criminal record before being found guilty of this offence, rehabilitation is also a principle that is applicable.

[28] In Friesen, the Court set out a list of factors relevant to determining a fit sentence of persons who commit sexual offences against children. These factors are;

• The likelihood to reoffend;
• Whether the offender has abused a position of trust or authority;
• The duration and frequency of the abusive behaviour;
• The age of the victim;
• The victim’s participation; and
• The degree of physical interference. [9]

[29] In addition to the principles to be applied to sentencing the court must also consider any mitigating or aggravating factors.

Mitigating and Aggravating Factors

[30] The Crown argues that the following aggravating factors should be considered:

• The victim’s age. This is a statutory aggravating factor as set out in section 718.2(a)(ii.1) of the Code;
• The degree of moral blameworthiness is very high given A.M. stood in a position of trust vis-à-vis the victim. Abuse of a position of trust is also a statutory aggravating factor pursuant to s. 718.2(a)(iii);
• The offence had a significant impact on the victim who relapsed and began self-harming again. She has also had suicidal thoughts and is on medication for depression; and
• The sexual assaults were penetrative in nature and caused the victim pain.

[31] The Crown also noted that there are two mitigating factors that the court should consider. First, A.M. has no criminal and second, and most importantly, he pleaded guilty. Neither the victim, nor any member of her family was required to testify in court.

[32] Defence counsel agrees essentially with the aggravating and mitigating factors as set out by the Crown.

Positions of Counsel

[33] Crown counsel is seeking a sentence of four years in the penitentiary along with several ancillary orders. The Crown provided the court with examples of sentences that bear some resemblance to the present situation. Those sentences vary between two to six years.

[34] Defence counsel argues that a two-year sentence is more appropriate in the circumstances and suggests that sentence should be followed by a period of probation. He does not oppose the ancillary orders requested by the Crown. Defence counsel also provided a several cases with sentences that varied between two and three years.

Analysis

[35] The exercise of sentencing an offender requires the balancing of all the factors relevant to the particular situation.

[36] In the present case, as noted earlier, denunciation and deterrence are the primary factors to be considered. In addition, several of the factors set out in Friesen are relevant to the present case.

[37] In my view, the primary factors that are relevant to the present case are:

• The age of the victim – she was a young adolescent;
• The abuse of a position of trust – the victim was effectively A.M.’s step-daughter;
• The impact the incidents had on the victim, which were serious; and
• The fact that A.M. pleaded guilty, which indicates an acceptance of responsibility.

[38] Crown counsel asked the court to discount the effect of the acceptance of responsibility because A.M. denied committing the offence to S.M. or M.C. and he had taken only partial responsibility when discussing the matter with his mother.

[39] I agree with Defence counsel that in the absence of any context for the discussion with S.M. and E.R., it is difficult to place much weight on A.M.’s response. With respect to his denial to M.C., it occurred immediately after she confronted him with the allegations. Such a response would not be unexpected. Of much more importance is the fact that after reflection, he decided to take responsibility and plead guilty.

[40] Dr. Gulati concluded after significant testing that A.M. was at a low risk to reoffend. This factor is directly relevant to specific deterrence and in the context of this case, that factor is consequently of less importance. However, it nonetheless should be considered in determining the appropriate length of sentence.

[41] Other factors to be weighed in the balance are:

• The fact A.M. has no criminal record;
• His expression of remorse, which I found to be genuine;
• The nature of the sexual assaults; and
• The fact there were numerous incidents over the 5-month period.

[42] After considering all of these factors, and reviewing the case law provided by counsel, I have concluded that a sentence of three years jail is appropriate in all of the circumstances.

Ancillary Orders

[43] In addition, there will be the following ancillary orders:

• A DNA order pursuant to s. 487.051 of the Code;
• Section 109 weapons prohibition for 10 years;
• Section 161 order for 20 years prohibiting A.M. from:
  • (a) Attending a 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, schoolground, playground or community centre;
  • (a.1) being within two kilometers of any dwelling-house where the victim ordinarily resides, her school or place of employment or any other place where she may attend;
  • (b) 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; or
  • (c) having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the parole office considers appropriate. There will be an exception for his biological children if S.M. provides written consent to permit A.M. to be alone with his children.
• A s. 743.21 non-communication order with respect to the victim, her brother and M.C. and
• A SOIRA order for 20 years.

Parfett J.

Released: December 20, 2024

COURT FILE NO.: 22-11404690 DATE: 2024/12/20 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – A.M. Accused

REASONS FOR SENTENCE Released: December 20, 2024

[1] R.S.C. 1985, Chap. C-46. [2] Exhibit #3 at p. 6. [3] Exhibit #4 at p. 9. [4] At p. 19. [5] All quotes taken from the Victim Impact Statements filed as Exhibit #2. [6] 2020 SCC 9. [7] At para. 56. [8] At para. 136. [9] Friesen at para. 122-154.