Reasons for Sentence

Court File No.: 22-1285
Date: 2025-01-07
Ontario Superior Court of Justice

Between:
His Majesty the King
and
R.B., Defendant

Appearances:
M. Ansell / A. Lachance, for the Crown
J. Primeau, for the Defendant

Heard: November 13 and December 13, 2024
Judge: Varpio

Introduction

[1] On April 18, 2024, R.B. pleaded guilty to sexual touching of a child pursuant to s. 151 of the Criminal Code of Canada. He pleaded on the second trial date.

[2] At the sentencing hearing, the Crown sought a sentence of four years while counsel for R.B. sought a conditional sentence or, in the alternative, a custodial sentence of 12 months.

[3] Upon consideration of the facts, the aggravating and mitigating features of the case, the relevant sections of the Criminal Code of Canada, the governing jurisprudence and the position of the parties, I hereby sentence the offender to three years in custody.

The Facts

[4] On January 2, 2020, R.B. resided in a small community outside of Sudbury, Ontario. He was in a four-and-a-half-year common-law relationship. He was 70 years old at the time. The victim was his step-granddaughter, and she was 12 years old.

[5] The victim and her four-year-old brother were staying at R.B.’s house. The victim went to bed around 8:30 p.m. on that day, earlier than normal. The bedroom where the victim slept was in the basement of the residence. There was a double bed and a single bed. The victim slept in the double bed while her brother slept in the single bed.

[6] The victim fell asleep and was awakened when R.B. brought her brother down to sleep.

[7] At one point, R.B.’s wife (the victim’s grandmother) came down to the bedroom and kissed the victim good night. The victim awoke again as a result of her grandmother’s kiss. R.B. was still in the bedroom, putting the brother to bed.

[8] The offender went to the victim’s bed and began rubbing her back and legs. This was not unusual. The victim fell asleep, and she awoke for a third time with R.B. touching her under her sweatshirt in the breast area. The offender’s other hand was inside the victim’s tights, and at least one finger penetrated her vagina.

[9] The events in question – the touching of the breasts, the touching of the vaginal area, and the penetration – lasted approximately half an hour. R.B. subsequently left the room.

[10] The victim could not sleep. Shortly after the incident, she took a Snapchat video of herself explaining what had happened. She was visibly upset. She sent the video to her best friend who was active online.

[11] The victim got three or four hours of sleep, called her mother in the morning, and reported the incident. The victim then reported the incident to her grandmother.

[12] Police became involved and charges were laid on January 3, 2020.

[13] The matter came before the court and the victim testified at a preliminary hearing. An initial trial date was adjourned, and, on the second trial date of April 18, 2024, the offender pleaded guilty to one count of sexual touching as per s. 151 of the Criminal Code of Canada.

The Victim

[14] In her Victim Impact Statement (“VIS”), the victim stated that she is trying to deal with her emotions as a result of the 2020 incident. She described herself as being in a constant state of anger and fear over the course of the past four years such that she no longer sleeps well. Her mood is affected, and it has been very hard on her. Dating was difficult for her, and she has suffered from extreme body image issues. The victim described being scared for her safety to the point where, when she saw the offender at a diner one morning, she fled the restaurant and began hyperventilating.

[15] The victim’s mother also filed a VIS wherein she stated that the victim’s emotional disposition has changed such that she is no longer a happy and carefree child. Fear and emotional trauma have clouded her daughter’s life.

[16] The victim’s family also filed an affidavit wherein they outlined the costs of therapy for the victim on a go-forward basis.

The Offender

[17] A pre-sentence report (“PSR”) was prepared for the court proceedings. In it, the PSR writer disclosed that the offender has a 2014 conviction for Impaired Operation of a Motor Vehicle. The PSR described the offender as someone whose overall upbringing was positive whereby his family owned a farm. R.B.’s parents lived to 60 and 82 years of age.

[18] The offender was married for 43 years and has two children. His wife passed away at the age of 60 from pancreatic cancer. Shortly prior to the diagnosis, the offender was in a car accident where he was driving. The accident killed his grandson. The offender continues to blame himself for his grandson’s passing.

[19] The offender’s second significant romantic relationship was with the victim’s grandmother. That relationship lasted five years.

[20] The offender withdrew from school in Grade 9 and worked in the welding field until about 2013 when he “semi-retired” following his wife’s passing.

[21] The PSR writer noted that the offender had several friends write letters of support indicating that the offender is reliable, helpful and generally a good person.

[22] The PSR writer suggested that the offender would benefit from specific sexual offender counselling.

[23] As for his Indigenous background, the offender stated that he is of Mohawk descent. In this regard, the PSR writer wrote:

The offender revealed that he had been largely ignorant of his heritage throughout his life, as he was not raised in a First Nations community and cultural customs were not discussed or practiced in his family home. He disclosed he only learned of his ancestry by conducting his own research while he was married to his late wife. The offender alleged his research uncovered that his great-great-grandmother was a Mohawk, which enabled him to formerly register as Metis.

The offender reported that he has not faced discrimination or racism in his life due to his race or ethnicity. As well, he noted he was not subjected to substance abuse during his formative years, as he claimed that substance abuse is not prevalent in his family. Furthermore, the offender asserted he nor any of his family members attended Canada’s residential school system.

The offender admitted he does not have a strong connection to his cultural heritage as he does not participate in any cultural practices or traditional lifestyle activities, including smudging, sweat lodges, or trapping. Additionally, he stated he is not a member of any First Nation community or band.

[24] The offender filed documentation from his doctor indicating that he suffers from a variety of medical issues including acute stress, hyperlipidemia, hepatic steatosis, GERD, hypertension, Vitamin D deficiency, COPD and ischemic heart disease. That same doctor also wrote to the court indicating that

[R.B.] has been a patient in my current practice since 2016. He is currently managing the bulk of his medical problems by adhering to the above therapies and maintaining a healthy lifestyle which includes a proper diet and significantly above average physical activity in the form of farming.

I am concerned that this patient’s medical and mental status will substantially deteriorate if the patient ceases to participate in such activities during a period of incarceration.

[25] The offender also filed a letter that was apparently placed in mailboxes in and around the community in which R.B. lives, advising:

WARNING

There is a sexual predator living in our community, please protect yourself ladies, wives, mothers, children.

His name is [R.B.], 70ish and resides at [name of address].

Please tell everyone you know!!!!

The Law

[26] Section 718 of the Criminal Code of Canada states:

Purpose

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.

[27] Section 718.01 states:

Objectives — offences against children

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[28] Sentencing someone for the sexual abuse of a child thus requires that deterrence and denunciation serve as the primary principles of sentencing. In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada described the strong sanctions that must accompany sexual offences as against children. The majority opinion, written by Chief Justice Wagner, outlined the philosophy behind sentencing offences of sexual abuse against children at para. 5:

[W]e 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 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.

[29] At para. 42, the Chief Justice explained the importance of protecting children:

Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected (Baker v. Canada (Minister of Citizenship and Immigration), para 67). As Otis J.A. stated in R. v. L. (J.-J.), 126 C.C.C. (3d) 235 (Que. C.A.), [TRANSLATION] "the protection of children constitute[s] one of the essential and perennial values" of Canadian society (p. 250). Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society (R. v. Mills, 2019 SCC 22, para 23).

[30] After explaining the harms that are visited upon children who suffer from sexual abuse – both immediate and long-term – the majority considered the applicability of section 718.01 of the Criminal Code of Canada. At para. 105 of its reasons, it stated:

Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative and educative role of law (R. v. Proulx, 2000 SCC 5, para 102). It reflects the fact that Canadian criminal law is a "system of values". A sentence that expresses denunciation thus condemns the offender "for encroaching on our society's basic code of values"; it "instills the basic set of communal values shared by all Canadians" (M. (C.A.), at para. 81). The protection of children is one of the most basic values of Canadian society (L. (J.-J.), at p. 250; Rayo, at para. 104). As L'Heureux-Dubé J. reasoned in L.F.W."sexual assault of a child is a crime that is abhorrent to Canadian society and society's condemnation of those who commit such offences must be communicated in the clearest of terms" (para. 31, quoting L.F.W. (C.A.), at para. 117, per Cameron J.A.).

[31] At para. 114 of Friesen, the majority of the Supreme Court of Canada indicated that, while it was not the role of that court to establish a range of sentence for crimes against children, meaningful sanctions are generally appropriate:

D. (D.), Woodward, S. (J.), and this Court's own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament's statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance – as Moldaver J.A. wrote in D. (D.)"judges must retain the flexibility needed to do justice in individual cases" and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). [emphasis added]

[32] Applying Friesen, the Court of Appeal for Ontario overturned a nine-month sentence imposed at first instance in R. v. T.J., 2021 ONCA 392. T.J. dealt with the case of a single incident sexual assault as against a young person that did not involve penetration. A 24-month sentence was imposed on appeal.

[33] In R. v. D.F., 2024 ONSC 1892, Goldstein J. imposed a four-year sentence after a jury convicted a 59-year-old of sexual offences against a child. Goldstein J. found that the abuse occurred over time and included cunnilingus, fellatio, and digital penetration. The abuse continued for a period of four years when the victim was between the ages of 6 and 10. The trial judge stated at para. 40:

After reviewing the cases, especially those from the Court of Appeal, I am of the view that the appropriate range of sentence for sexual interference where the adult is in a position of trust, the child is groomed, there is a single victim, and the sexual activity is more than fleeting is two to six years.

[34] Leibovich J. imposed a four-year sentence on an offender in R. v. D’Orazio, 2024 ONSC 807 after the accused pleaded guilty to sexual interference and child luring. The offender was in his 20’s and the victim was in her teens when they engaged in sexual conduct. The offender sent numerous text messages and there were two instances of sexual intercourse when the victim was under the age of 16. At paras. 56 and 57, Leibovich wrote:

I must still consider whether the total sentence of four and a half years is fit and appropriate. In my view, reducing the sentence by 6 months to 4 years is necessary to fully reflect the mitigating factors, especially his plea, which again, saved the victim from testifying, which would have been devastating. I appreciate that 4 years is still a significant sentence for a first-time offender who is a low risk to re-offend, however, such a sentence is necessary to properly denounce Mr. D'Orazio's conduct and deter others from following along the same path and to prevent another life from being damaged, like the victim's.

Given that a penitentiary sentence is imposed, a conditional sentence is not an available option. I would simply note that the cases relied upon by the defence in support of their request (R. v. S.E., 2023 ONSC 6259, R. v. P.S., 2021 ONSC 5091, R. v. G., 2021 ONSC 8270) involve cases where the offences took place many years earlier. In R. v. S.E, the offences took place between 1994-1996, In R. v. P.S., the offences took place in 1988 and in R. v. G., the offences took place in the late 1980s and early 1990s, and was the result of a joint submission. Given the inherent differences in sentencing when dealing with a current offence and a historical offence that occurred over 30 years earlier, I did not find these cases to be of assistance. The Court of Appeal has clearly stated that the imposition of a conditional sentence involving the sexual abuse of a child would rarely be appropriate. As stated by the Court of Appeal in M.M. at para. 16:

Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so.

Position of the Parties

[35] The Crown seeks a four-year penitentiary sentence for the offender. The Crown submits that the four-year sentence reflects the serious nature of sexual crimes against children while providing the offender some credit for his plea, which did not come at an early stage.

[36] The offender seeks a conditional sentence, relying upon the mitigating features of the case, including his health concerns. Counsel for the defence submitted in the alternative that, if a conditional sentence is not appropriate in the circumstances, then a 12-month period of incarceration ought to be imposed.

[37] Both parties agreed that ancillary orders were appropriate.

Aggravating and Mitigating Factors

[38] The aggravating factors are as follows:

1. The offender abused a position of trust and authority;
2. The victim was quite young, not yet a teenager when the abuse occurred;
3. The actus reus involved penetration; and
4. The victim has suffered meaningfully as a result of the incident, with the potential for continued suffering.

[39] The mitigating features of the case are as follows:

1. The offender has a minor, unrelated record;
2. He is an elderly person with seeming uneven health; and
3. The offender’s plea of guilt.

Analysis

[40] As noted earlier, the Supreme Court in Friesen held that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstance”. By “mid-single digit penitentiary terms”, I find that the Supreme Court of Canada wished to signify sentences within a four-to-six-year range.

[41] The offender’s submission in support of a conditional sentence has some purchase in that the offender is an elderly man who has largely led a law-abiding life, but for one drinking and driving conviction that I do not consider to be an aggravating feature of this case. Further, R.B. submits that his health could fail while in custody.

[42] Despite this submission, a penitentiary sentence must be imposed in this case in order to meet the needs of sentencing. First and foremost, the crime committed is serious and the need for denunciation and deterrence must be the primary sentencing consideration. Simply put, a sentence that falls below the penitentiary level (two years) sends an inadequate message to the community that R.B.’s conduct is unacceptable.

[43] Second, the harm caused to the victim in this case is meaningful as she has communicated in her VIS that the incident has caused long-term consequences to her emotional and psychological well-being. The sentence imposed must reflect the real damage caused by the offender’s actions.

[44] Third, the offender breached a position of trust and authority which further enhances the need to send a message to the community that those who take advantage of children while in their care will be punished meaningfully. If a society does not protect its most vulnerable members, it cannot be said to be a just society.

[45] With that being stated, I accept and find that the offender’s plea of guilt is a meaningful show of remorse. It has been my experience that individuals charged with sexual offences as against children rarely plead guilty. The plea of guilt saved the victim from having to recount a horrible situation at trial. Further, sexual conduct against children oftenoften occurs in private such that the weight to be given to the offender’s plea must reflect the fact that these offences are often committed in situations where the only witnesses to the actus reus are the victim and the offender. Such is the case in this trial and the offender must therefore be accorded adequate consideration for his plea.

[46] Despite this fact, the weight to be given to the plea is mitigated. The offender pleaded on the second trial date, thereby causing the victim to testify at a preliminary hearing and to prepare for two separate trials. An early plea is to be accorded, obviously, more weight than a plea at this juncture.

[47] I do not find that the offender’s health is such that it necessitates that a conditional sentence be imposed. The offender suffers from some health issues, but that is not unusual for someone in his 70’s. Indeed, the doctor’s letter simply speculates that a less than active lifestyle in custody might have a negative effect on the offender’s health. The letter does not go so far as to say that the offender’s condition would necessarily worsen dramatically if he were incarcerated – it is quite possible that the offender could maintain good health if he were to remain active while serving his sentence. I therefore find that this factor does not require a conditional sentence as per M.M. and I hereby order that a copy of this decision be sent to the custodial facility where R.B. will be staying so that they can monitor his health regimen.

[48] Finally, the offender did not argue that the Gladue principles ought to apply. Given the findings of the PSR writer, this is not surprising. The offender has suffered no racism in his life by his own admission and the offender’s Indigenous background has apparently had little, if any, role in his life. On the facts of this case, therefore, the Gladue analysis would appear to be largely inapplicable.

Conclusion

[49] Therefore, when I consider all the aggravating and mitigating circumstances of this case I hereby impose a sentence of three years as such a sentence reflects the need to denounce and deter the offender’s conduct, while providing reasonable, albeit mitigated, weight to the offender’s plea of guilt.

[50] I order that a sample of the offender’s DNA be provided to authorities within 48 hours of today’s date as per s. 487 of the Criminal Code.

[51] I order that Mr. R.B. be subject to a 10-year firearms prohibition pursuant to s. 109 of the Criminal Code.

[52] I order that R.B. not communicate with those people named by the Crown at Exhibit 8 of this hearing while serving his sentence as per s. 743.21 of the Criminal Code.

[53] I order that R.B. be subject to a SOIRA order for a period of 20 years.

[54] I order that R.B. be subject to a s. 161 prohibition order for a period of 10 years with terms as suggested by the Crown at Exhibit Number 6 of this sentencing hearing.

[55] I order that restitution be made by R.B. in the amount of $8,100, which is on consent as per s. 738 of the Criminal Code. I heard no submissions from the offender other than his consent and I therefore refrain from providing any opinions in this regard.

Varpio
Released: January 7, 2025

Publication Ban Pursuant to s. 486.4 of the Criminal Code of Canada