Court File and Parties

Court File No.: CR-23-100 Date: 2025-10-17 Delivered Orally: 2025-10-17

Ontario Superior Court of Justice

Between: His Majesty the King – and – D.R.M., Defendant

Counsel:

• Raffi Dergalstanian, for the Crown
• George Gray, for the Defendant

Heard: May 21, 2025

Reasons for Sentence

Justice M.E. Vallee

Overview

[1] The offender is referred to as D.R.M.

[2] The complainant is referred to as A.R.

[3] The complainant's father is referred to as C.R.

[4] The complainant's mother is referred to as A.G.

[5] On January 21, 2025, I found D.R.M. guilty of sexual interference and sexual assault regarding A.R., his niece who was 11 or 12 years old at the time. Pursuant to the principles set out in Kienapple v. R., [1975] S.C.R 729 and the Crown's request, the sexual assault conviction was stayed on May 21, 2025.

Circumstances of the Offence

[6] The circumstances of the offence are set out in detail in my written judgment dated January 23, 2025. I will provide a brief synopsis. D.R.M.'s wife and A.R.'s mother are sisters. D.R.M. and his family immigrated from another country and lived in the basement apartment of A.R.'s family's house. They had work permits.

[7] D.R.M. touched A.R. sexually four times over the course of two years beginning when she was 11 years old. The first time occurred when she was lying on the couch in the basement's living room. He sat down beside her, put his hands up her shorts and touched her vagina with two fingers. The second time occurred in the basement's bedroom that D.R.M. and his wife shared. A.R. was lying down on the bed. He laid down beside her and put his hand under her underwear, directly touching her vagina. Then he pulled down her pants and put his mouth on her vagina. The third time occurred on the basement couch. D.R.M. pulled A.R. to sit on his lap facing away from him. He put his hands underneath her shirt and touched her breasts. The fourth time occurred after D.R.M. and his family had moved out of the basement apartment and had rented a townhouse. A.R. was there for a sleepover with D.R.M.'s daughter. She woke up early, went downstairs and saw D.R.M. sitting on the couch looking at his phone. She sat across from him. He asked her to sit with him which she declined to do. She went to the kitchen to get a drink. He followed her. As she turned around, he was there. He pulled down her underwear and touched her. He licked her vagina.

D.R.M.'s Circumstances

[8] D.R.M. was born and raised in the country from which he and his family immigrated. He had a positive upbringing without any abuse or trauma. He has four siblings who he visited regularly before he immigrated. They have regular contact.

[9] D.R.M.'s father passed away when he was seven years old. He left school in grade nine to work and help support the family. He has been married for 28 years. His wife immigrated to Canada first and obtained a work permit. He and their daughter followed later. He obtained a work permit and works in construction; and the daughter obtained a study permit. He has a good relationship with his wife and his children.

[10] D.R.M. does not have a history of drug or alcohol addiction issues. The author of the pre-sentence report indicated that D.R.M. was polite but did not provide much information. His goal was to obtain permanent residency in Canada for himself and his family. His wife and daughter described him as respectful, hard working and very kind – a good husband and father.

[11] D.R.M. has no criminal record.

Legal Parameters

[12] Section 151 of the Criminal Code, R.S.C. 1985, c. C-46 states that every person who commits sexual interference is liable for a minimum punishment of imprisonment of one year and a maximum of 14 years.

[13] In R. v. Friesen, 2020 SCC 9 the Supreme Court of Canada set out a number of factors to consider in determining a fit sentence for sexual offences against children as well as detailed reasons for each one. It underscores that Parliament has decided that sentences for sexual offences against children must increase. I will list the factors and later on describe how they relate to this matter:

a. Likelihood to re-offend;

b. Abuse of a position of trust or authority;

c. Duration and frequency;

d. Age of the victim; and,

e. Degree of physical interference.

i. Courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim (para. 142).

ii. Courts must recognize the wrongfulness of sexual violence even in cases where the degree of physical interference is less pronounced (para. 145).

iii. There is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference.

[14] Victim participation is irrelevant, considering that the age of consent is 16. Children under the age of 16 are incapable of consenting. Treating a victim's participation as a mitigating factor is an error in law.

The Crown's Position

[15] The Crown states that the appropriate sentence is 10 years' incarceration plus certain ancillary orders including:

a. An order that D.R.M. provide a sample of his DNA;

b. A s. 109 order for 10 years prohibiting possession of firearms, a cross bow, restricted weapon, ammunition and explosive devices;

c. A SOIRA order - that D.R.M. comply with the Sex Offender Information Registration Act for 20 years;

d. A s. 161 order for life regarding prohibition from attending certain places where children may be, employment or volunteer work that involves being in a position of trust relative to children under 16, having contact with a person under 16, and using the internet except with supervision; and

e. A s. 743.21 order preventing communication between D.R.M. and A.R. or members of her immediate family while he is in custody.

[16] The Crown relies on Friesen, R. v. B.M., 2023 ONCA 224 and R. v. T.J., 2021 ONCA 392. The Crown cited some other cases but they pre-date Friesen. In Friesen, the respondent subjected a four year old girl to sexual violence with the cooperation of her mother. Another person intervened after hearing the child's screams. The court held that a sentence of six years incarceration was appropriate.

[17] In B.M. the respondent sexually abused two children over a period of 43 months starting when they were 12 years old. They lived in the accused's house as step-siblings. The court held that a sentence of seven years' incarceration was appropriate.

[18] In T.J., the respondent directed a child who was six or seven years old to touch him inappropriately. This occurred once when the child and her brother were at the accused's house for a sleepover with the accused's sons. The trial judge imposed a sentence of nine months in custody. The Court of Appeal held that the sentence was demonstrably unfit and increased the period of incarceration to 24 months.

The Defence's Position

[19] The defence states that according to Friesen, the consequential harm caused is the key determinant of the gravity of the offence. Every victim of sexual interference will suffer emotional and psychological harm that may manifest in the future. The court should assume that this will occur. A mid-penitentiary sentence is appropriate.

[20] There is no victim impact statement from A.R.; however, there is one from her mother who states that A.R. is strong and confident enough to "let go" of this.

[21] The court should consider that there were multiple instances of sexual interference, A.R. was young - 11 or 12 years old and D.R.M. was in a position of trust or authority over her. These three factors justify a departure from the lower end of the statutory range.

[22] The defence states that parity must be considered. The Crown has not provided any authorities for its position that a 10 year sentence is appropriate. The defence states that a four year period of incarceration is an appropriate sentence, which is in line with other sentencing authorities.

[23] In R. v. T.M., 2022 ONSC 49, there was digital penetration by a step-father which is more aggravating than an offence by an uncle. The offender was sentenced to four years of incarceration.

[24] In R. v. H.P., 2022 ONSC 4976, there was also digital penetration. The impact on the victim was enormous. She suffered from post-traumatic stress disorder and panic disorder. She was taking medications. The offender had no criminal record and was at a low risk of re-offending. The offender was sentenced to four and a half years of incarceration.

[25] The defence provided two other cases; however, the circumstances were much worse than this matter; and the victims suffered from immeasurable impacts. The sentences in those cases were seven years of incarceration.

[26] The defence agrees that a DNA order, a s. 109 order for 10 years and a SOIRA order for 20 years are appropriate. The defence states that a s. 161 order is unjustified. It will prevent D.R.M. from engaging in activities that have nothing to do with the offence that he committed. He has no criminal record. There is no evidence of inappropriate contact with other children. Such an order would prevent him from having a cell phone and using a laptop without supervision. There is no rational connection between these prohibitions and the offence.

Mitigating Factors

[27] D.R.M. is a first time offender. He has the strong support of his family who spoke well of him in the Pre-sentence Report. He has complied with his bail terms since 2022.

Aggravating Factors

[28] There were four instances of sexual interference. The victim was young - 11 or 12 years old. As her uncle living in the same house, D.R.M. was in a position of trust or authority over her.

Principles of Sentencing

[29] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that the sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[30] In cases of sexual interference, the most important principles are denunciation and deterrence.

Reasons

[31] I will consider the factors set out in Friesen and relate them to this matter.

Likelihood to Re-offend

[32] While in no way diminishing D.R.M.'s moral blameworthiness, I would describe the incidents as crimes of opportunity. D.R.M. did not assault girls who were strangers to him. If he does not reside with children under the age of 16, he seems less likely to re-offend.

Abuse of a Position of Trust or Authority

[33] This is a serious factor. In Friesen, the court states that, "Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence" (para. 126). "A child will likely suffer more harm from sexual violence where there is a closer relationship and a higher degree of trust between the child and the offender" (para. 126). "The presence of a trust relationship may inhibit children from reporting sexual violence. The breach of trust may produce 'feelings of fear and shame' that further discourage reporting" (para. 127). "These barriers to reporting can be particularly pronounced where the perpetrator of the sexual violence resides with the victim and is a parent or caregiver" (para. 128). "An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. This enhances moral blameworthiness" (para. 129). "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" (para. 130).

[34] D.R.M. lived in A.R.'s home basement apartment for approximately three years before he and his family moved out to a townhouse. A.R. testified that she went to the basement two or three times a day to hang out with D.R.M., watch videos, visit with her brother (whose bedroom was in the basement) and get things for her mother. D.R.M. abused his position of trust and authority when he committed sexual interference. A.R. did not report this to her parents. She stated that she did not want to get her uncle in trouble. Instead, she reported it to a teacher after she had visions about the incidents which she said were like flashbacks and distracted her at school. She became concerned that someone was watching her in her bedroom although she knew that there was no camera there. She stated that she reported it because she felt like she needed someone to. She felt like she was carrying a bunch of bricks on her.

Duration and Frequency

[35] In Friesen, the court stated that, "The immediate harm the victim experiences during an assault is multiplied by the number of assaults. Moreover, the long-term emotional and psychological harm to the victim can also become more pronounced where the sexual violence is repeated… (para. 131) "It also increases the offender's moral blameworthiness because the additional harm to the victim is a reasonably foreseeable consequence of multiple assaults" (para. 131) Multiple assaults are "…a factor which increases the offender's degree of responsibility" (para. 131).

[36] D.R.M. sexually assaulted A.R. several times over a period of two years.

The Age of the Victim

[37] In Friesen, the court stated that, "The age of the victim is also a significant aggravating factor. The power imbalance between children and adults is even more pronounced for younger children…" "Moreover, children who are victimized at a younger age must endure the consequential harm of sexual violence for a longer period of time than persons victimized later in life" (para. 134).

[38] A.R. was a young pre-teen girl when D.R.M. sexually assaulted her.

The Degree of Physical Interference

[39] In Friesen, with respect to degree of physical interference, the court emphasized that defining a sentencing range based on a specific type of sexual activity is inappropriate. It stated, "Courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim" (para. 142). Sexual violence that does not involve penetration is still "extremely serious" and can have a devastating effect on the victim" (para. 142). "…courts must recognize the wrongfulness of sexual violence even in cases where the degree of physical interference is less pronounced" (para. 145). "…there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference" (para. 146).

[40] D.R.M. touched A.R.'s vagina, put his mouth on it and licked it. The degree of physical interference was significant.

The Effect on A.R.'s Parents

[41] I also wish to acknowledge the harm that D.R.M. has caused to A.R.'s parents. Both of them prepared victim impact statements.

[42] A.R.'s mother, A.G. stated that she was quickly consumed by pain when she learned what A.R. was going through. On learning that D.R.M. may go to jail, A.R. said that what he did was wrong but she did not want him to go to jail. A.G. interprets this as her daughter's being "strong and confident enough to being able to forgive and let go". The mother asks this court to show mercy on D.R.M. If he goes to jail, her sister will be deported. Her sister is old and will have difficulty starting over. D.R.M. will be deported after he completes his sentence. They will be in great danger once deported to a country that is unsafe.

[43] A.R.'s father, C.R. stated that what happened tore the whole family apart. He could not imagine that something so vile and so monstrous could occur under his own roof and be perpetrated by a family member. C.R. stated that he felt he had failed A.R. He was supposed to protect her but was blind and whole heartedly trusted D.R.M. who stole A.R.'s innocence and destroyed her self-esteem. C.R. stated that he feels anger and grief. He hopes that this court will impose a sentence that reflects the full impact of D.R.M.'s actions and the harm caused. C.R. shares his wife's concerns about her sister. If she were forced to leave the country she will be punished through no fault of her own. C.R. asks whether D.R.M.'s punishment can be separated from his sister-in-law's future. He believes that she should be able to stay in Canada.

Sentence

[44] I do not have any authority to make a decision regarding D.R.M.'s wife's immigration status or to separate D.R.M.'s punishment from his wife's future. I am required to impose a sentence that is fit in the circumstances.

[45] Taking all of the above into account, I impose a sentence of five years of incarceration. Regarding ancillary orders, there shall be:

a. an order that D.R.M. provide a sample of his DNA;

b. a s. 109 order for 10 years prohibiting D.R.M. from possessing firearms, a cross bow, a restricted weapon, ammunition and explosive devices;

c. a SOIRA order for 20 years; and,

d. a s. 743.21 order preventing communication between D.R.M. and A.R. or members of her immediate family while he is in custody.

[46] I decline to make a s. 161 order because it will prevent D.R.M. from engaging in activities that are not related to the offence that you committed.

Justice M.E. Vallee

Released: October 17, 2025

NOTE: As noted in court on the record, this written decision is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, the official written decision is to be relied upon.