R. v. A.D., 2022 ONCJ 261

WARNING An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code has been made in this proceeding. These sections of the Criminal Code provide: 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b). 486.6

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 . CITATION: R. v. A.D., 2022 ONCJ 261 COURT FILE No.: 0611-998-19-445 DATE: June 7, 2022 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — a.d.

Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on July 13, 15, 23, November 17, 2021; January 26, May 11, and June 7, 2022 Ms. Michelle Occhiogrosso ................................................................................. for the Crown Ms. Lynda Lamb.............................................................................................. for the Defendant SCHWARZL, J.: REASONS FOR SENTENCE 1.0: INTRODUCTION [ 1 .] On January 26, 2022, I convicted the offender, A.D., of two counts of sexual interference contrary to

section 151 of the Criminal Code after a trial involving two victims. On May 11, 2022, a sentencing hearing took place. The prosecution seeks consecutive sentences totalling three years plus several ancillary orders. The defence agrees with the ancillary orders but submit that a concurrent sentence of 90 days is appropriate. [ 2 .] What follows are my reasons for sentence. 2.0: CIRCUMSTANCES OF THE OFFENCES [ 3 .] At the time of the offences, the offender, then 64 years old, was a custodian at a local elementary school.

The victims were 10- year-old students at that same school. [ 4 .] The offender ran a program where students would assist him with his duties during school hours. He would control the students with tasks and supervised them when in his care. Given this role, the offender was in a position of authority over the student volunteers. The victims were two such volunteers. [ 5 .] During the fall term of the 2018-2019, the offender would hug the victims, often in appreciation for their work. This progressed to placing his hands on their buttocks while hugging them.

Later, on several occasions the offender gyrated his groin against the groins and buttocks of the two girls. The gyrating lasted for fifteen seconds or so and was always over the clothing of all parties. In the case of B.C., the gyrating occurred over the span of a week or so. At the time, she was prepared to “not make a big deal” of it. In the case of D.P., the gyrating took place over a longer period in October and November 2018. Around Christmas, 2018 the offender asked D.P. for a kiss, which was not forthcoming. The offender molested each victim not less than five times.

Sometimes, the girls were together when the molestation occurred; sometimes it happened when they were apart. [ 6 .] When the girls complained to the offender to stop, he told them he would be in trouble if anybody found out. He also got them to be quiet by berating and banishing them from the activities they enjoyed despite his behaviour. 3.0: CIRCUMSTANCES OF THE OFFENDER [ 7 .] At the time of the offences, A.D. was 64 years old. At the time of sentencing, he was 67. [ 8 .] He has been married for fifty years. He has adult children and four grandchildren.

He enjoys considerable support from his family. [ 9 .] His wife suffers from significant health challenges requiring the offender to be her primary caregiver. The offender himself is in poor health with many ailments, such that his doctor is concerned about the impact of a custodial sentence on his condition.

[ 10 .] The offender sought an in-person trial in this case which was delayed due to the COVID-19 pandemic. The entire court process has been extremely stressful for the offender, causing his health to deteriorate over that time. [ 11 .] The offender has never been in trouble before, having worked hard all his life to support himself and his family. These charges resulted in the loss of his employment. [ 12 .] Prior to the sentencing hearing, the offender was the subject of a risk assessment by a clinical and forensic psychologist, Dr. Kalia.

The doctor concluded that the offender is at a very low risk of reoffending sexually as he demonstrates no personality disorder or sexual deviance. Although the offender maintained his innocence, the offender admitted to the doctor that he was wrong to touch the girls in any way. Dr.

Kalia opined that the cause of the offender’s behaviour was a “breakdown in boundaries” and that the offender would benefit from counselling to address the dynamics of his offending while acknowledging that his denial of responsibility may affect his ability to participate in such counselling. [ 13 .] The offender has been on bail since April 2019. None of the conditions were onerous or unduly restrictive. There was a condition to reside with his surety who is his wife. There was a condition to stay away from children under the age of 16 and to stay away from parks, etc. which was modified a month into his bail.

The offender has abided by all conditions of his bail without incident. [ 14 .] At the sentencing hearing, the offender provided a written statement wherein he expressed his sincere regret and apologized for his actions. He wrote that he had no intent to cause any harm, but recognizes the nightmare this has created for him, his family, as well as for the victims and their families. 4.0: MITIGATING, AGGRAVATING, AND OTHER RELEVANT FACTORS 4.1: Mitigating Factors [ 15 .] There are mitigating factors that are present, including the following:

a) A.D. is a first offender;

b) He has strong support from his family;

c) He is in poor health;

d) He is the caregiver of his spouse whose in very fragile health;

e) The offender is at a low risk of reoffending sexually;

f) A.D. lost his job due to these crimes. He is unemployed. Given his age and his caregiving responsibilities, he is likely to remain so;

g) The offender has been on bail for over three years without incident; and

h) While denying criminal liability, the offender acknowledged that touching the victims in any way was wrong and he is sorry for the harm he has caused. 4.2: Aggravating Factors [ 16 .] This case has aggravating factors that I will set out below:

a) The offender was in a position of trust and authority over the victims;

b) There were two victims;

c) There was an age difference of over fifty years between the victims which the offender exploited to his advantage;

d) There were at least five occasions when the offender molested each victim during the fall term;

e) There was a progression from innocent hugs, to hugging while touching the victims’ buttocks, to gyrating his groin against the fronts and behinds of each girl. To this extent, there appears to have been some grooming behaviour by the offender;

f) The offences took place at school and during school hours, a place and time during which all students expect, and deserve, safety.

4.3: Victim Impact [ 17 .] Despite acting like it wasn’t a big deal at the time, the impact of these crimes on B.C. includes significant fear and anxiety. [ 18 .] D.P. likewise has suffered anxiety, panic, emotional outbursts which have in turn created stress and worry for her mother.

D.P. has engaged in counselling to cope with the effects of these offences. [ 19 .] These offences have had a traumatic and continuing impact on both victims and their families despite the passage of nearly four years since the crimes were committed. 4.4: Other Relevant Factors [ 20 .] Other relevant factors that are present include COVID as a reality to be considered. In addition, while not aggravating or mitigating, Dr. Kalia reported that there is no evidence that the offender is a pedophile. [ 21 .] The offender was found guilty after trial.

As such, he is not subject to the same level of mitigation had he pled guilty; yet he shall not be subject to a higher sentence for having exercised his right to trial. 5.0: POSTIONS OF THE PARTIES 5.1: The Crown [ 22 .] The prosecution seeks a number of ancillary orders including DNA Orders, a Firearms Prohibition for ten years, a SOIRA Order for life given there are two victims, a

section 161 Order for ten years, and a no-contact order while the offender is in jail. [ 23 .] The Crown submits that the offender should be subject to two consecutive terms of imprisonment.

They argue that because the offences did not always happen when the victims were together and because the timelines within the two-month period is not the same for each girl, that these offences are distinct criminal misadventures despite the many other similarities they share. [ 24 .] The prosecution urges me to find that upon balancing the various mitigating, aggravating, and other factors involved, including victim impact, that the appropriate sentence is 18 months for each victim for a total of three years.

In support of their position, the Crown relies on various statutorily aggravating factors as well as the well-established principle that sex crimes against children are monstrous by nature and must attract significant custodial sentences. 5.2: The Defence [ 25 .] The defence submits that they agree with the proposed ancillary orders, other than to ask that the

section 161 Order be limited to five years and have an exclusion radius smaller than two kilometres. [ 26 .] The defence submits that any sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. They say that when viewing the same factors as identified by the Crown, one must also consider that these offences were, in their words, “at the lower end of the spectrum of child abuse” insofar as the offences all occurred over the clothing and involved no overt violence or threats. They also submit that the offences occurred over a relatively short time.

A.D. submits that in light all the facts of the crimes and his personal circumstances, an appropriate period of incarceration is 90 days.

While not articulated, I understood the submission of 90 days to have been made so as to permit the sentence to be served intermittently given the poor health of the offender and his role as caregiver for his wife. 6.0: APPLICABLE LEGAL PRINCIPLES [ 27 .] I will briefly touch upon the applicable legal principles in cases of sentencing sex crimes against children as well as those applying to consecutive and concurrent sentences. 6.1: Sentencing Principles in Sex Crimes Against Children

[ 28 .] The Criminal Code of Canada provides the following relevant considerations when dealing with children as victims of crime:

a) The focus on sentencing where there is abuse of a person under 18 years is denunciation and deterrence: s. 718.01;

b) The fact of a child being a victim of a crime is an aggravating factor: s. 718.2(a)(ii.1); and

c) A breach of trust or authority is an aggravating factor: s.718.2(iii) [ 29 .] In R. v. Friesen , [2019] SCJ No 100 , 2020 SCC 9 , 2020 CSC 9 , 391 CCC (3d) 309 , 444 DLR (4th) 1 , 62 CR (7th) 1 , the Supreme Court of Canada provided extensive landmark reasons and guidance in the sentencing of sexual offences against children. [ 30 .] The Supreme Court noted that the legislative scheme of sexual offences against children is designed to protect their personal autonomy, bodily and sexual integrity, dignity and equality.

These underlying interests require sentence judges to focus on the emotional and psychological harm in addition to any physical harm caused by these offences. Many sexual offences against children are committed by someone in a trust relationship with the child. As a result, child victims often experience further trauma and damage to their other social relationships. [ 31 .] The parents, caregivers and family members of child victims also suffer profound distrust and harm because of the offence.

Communities also suffer as child victims are more likely to engage in sexual violence against children when they become adults. The innate power imbalance between children and their perpetrators allows sexual violence to go undetected, unreported, and under- recorded. Sexual violence against children disproportionately impacts girls, Indigenous youth and other vulnerable groups.

Therefore, courts must take into account the wrongfulness, and the harmfulness of sexual offences against children when applying the proportionality principle. [ 32 .] In Friesen , the Supreme Court noted Parliament’s intention that sentences for sex crimes against children, including the relevant statutory sections referred to above, as well as minimum jail sentences, better reflect the seriousness of these offences.

The Court stated that in assessing the gravity of the offence, the sentencing judge must recognize and give effect to a number of considerations including: 1) the inherent wrongfulness of these offences; 2) the potential harm to children, families, and communities that flows from these offences; and 3) the actual harm that children suffer as a result of these offences. [ 33 .] The Court in Friesen also addressed the responsibility of offenders in child sex crimes by noting that such offences are highly morally blameworthy because offenders are, or ought to be aware, of the harm this can cause a child.

The inherent vulnerability of children also increases the moral blameworthiness of those who intentionally sexually exploit children.

Courts, however, must still consider any relevant mitigating factors arising from the conduct or personal circumstances of the offender in each case. [ 34 .] Although the Supreme Court declined to set a starting point or sentencing range, they offered the following guidance to sentencing courts: 1) An upward departure from prior precedents and sentencing ranges may be required to impose a proportionate sentence given Parliament increasing maximum sentences and our contemporary understanding of the harms caused by sexual violence against children; 2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and 3) Sexual interference with a child should not be treated as less serious than sexual assault of a child. [ 35 .] The Supreme Court in Friesen also set out a non-exhaustive list of significant factors to consider when determining a fit sentence for sexual offences against children, including: 1) a higher sentence may be imposed where the offender is at a greater risk of reoffending; 2) 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 as a breach of trust is likely to increase the harm to the victim and the gravity of the offence ; 3) sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility; 4) the age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence.

The moral blameworthiness of the offender is enhanced in such cases; 5) sentencing judges must resist defining a sentencing range based on the specific type of sexual activity; and 6) a child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non-resistance should not be equated to "de facto consent"; a victim's participation should not distract the court from the harm that the victim suffers as a result of sexual violence.

6.2: Sentencing Principles in Concurrent versus Consecutive Sentences [36.] Case law recognizes that sentencing judges have significant discretion in whether to impose consecutive or concurrent sentenceswhen sentencing an offender who has been convicted of multiple counts. Where the offences arise out of the same event or series ofevents, this factor will often weigh heavily towards imposing concurrent sentences.

Whether a sentencing judge imposes consecutive orconcurrent punishments when sentencing for multiple counts, the total sentence must be a fit one: Criminal Code, 2. 718.2(c): R. v.Friesen, supra, at para 155 – 158; R. v MacKinnon, 2022 ONSC 1349 , [2022] OJ No 1821 (SCJ) at para 63 – 66; R. v.Chisholm, (ON CA), [1965] 2 OR 612 (C.A.). [37.] Factors tending to justify consecutive sentences include the number of victims, the absence any reasonably close nexus betweenthe offences, and the length of time between the offences: R. v. Smith, 2011 ONCA 564 , [2011] O.J. No. 3832 (C.A.) at para88.

In determining the question of any reasonably close nexus between the offences, courts must use common sense and conduct aflexible, but fact-specific inquiry whether the connection between two offences is sufficiently or insufficiently close to merit eitherconsecutive or concurrent sentences: R. v. W.Q., (ON CA), [2006] O.J. No. 2491 (C.A.) at para 8 – 11. 7.0: THE SENTENCE 7.1: Consecutive or Concurrent Sentences [38.] For the following reasons, the custodial portion of the sentence on these two crimes will be served concurrently.

Notwithstanding that the offence against D.P. took place over a longer period and had the additional feature of a kiss, I find that theoffences were substantially alike to each other in nature and commission.

The crimes overlapped in the same general time frame, andthey presented more overall similarities than differences. 7.2: Ancillary Orders [39.] I make the following ancillary orders on each count. [40.] There will be primary, in-custody DNA Orders to be executed at the court house today or, if not here, then at such place ofconfinement as he may be found on a date to be discussed with counsel. [41.] There will be a ten-year

section 109 Firearms Prohibition. [42.] There will be a lifetime SOIRA Order. [43.] There will be an eight-year

section 161 Order. As part of that Order he shall not be within 250 metres of any place he knowsB.C., D.P. or any members of their family to be present or associated with. As part of this Order, A.D. will be subject to restrictions oncontact with persons under 16 and restrictions on internet access. Conditions of these restrictions will be attached as an appendix to theOrder. [44.] There will be a

section 743.21 Order prohibiting the offender from contacting the victims or their immediate families whileserving the custodial portion of this sentence. [45.] There will also be Victim Surcharges of $100 per count to be paid by a date to be set upon hearing from counsel. 7.3: Custodial Portion of the Sentence [46.] It is clear from the Friesen case that sentences for sex crimes against children must be longer than crimes against other victimsand further that such sentences are a response to a major societal menace. At the same time, sentencing is a highly individualizedprocess such that the circumstances of each case and of each offender remains of utmost relevance.

[ 47 .] By their nature and by the victim impact statements, these crimes have caused considerable injury to each victim, their families, and to the community at large. The offences were serious and the offender’s responsibility and moral blameworthiness is very high. [ 48 .] Of particular concern in this case are the following facts. First, the offender egregiously violated a duty of care towards both children who trusted, if not admired, the offender. Second, the offender’s behaviour progressed from appreciative hugs to degenerate and lewd grinding and gyrating. Third, there were two victims.

Fourth, the victims were girls. Fifth, he molested each victim multiple times. Sixth, each child was very young making them even more susceptible to the offender’s predations and manipulation. Finally, while the offences were committed over the clothes and did not include overt violence and could have been more serious, they nevertheless can only be described as heinous. [ 49 .] In contrast to these concerning and troubling facts are the circumstances of the offender. He is an elderly, unhealthy man who must take care of a very sick wife.

This case has dragged on for far too long due to COVID, although had he taken the option of having a remote trial, it might have ended sooner. He is at a low risk to reoffend. A.D. expressed regret at the harm suffered by the victims, although he takes no responsibility beyond simply touching them. [ 50 .] COVID-19 still infects society and is a factor to consider on sentence. [ 51 .] When balancing all of the circumstances of this case and of this offender and viewing them through the lens of the principles set out in Friesen , the appropriate custodial sentence is 17 months on each count, concurrent.

In arriving at this sentence, I am fully aware of the offender’s poor health and that of his wife. Concerns about his health and any compassionate or temporary absences during incarceration are best dealt with by the correctional authorities: R. v. R.C. , 2022 ONCA 389 at paragraph 11 . [ 52 .] Notwithstanding that the psychologist reported that the offender would benefit from counselling, I decline to make a probation order because not only was it not asked for, but as noted by Dr. Kalia the efficacy of counselling is contingent on the offender being ready to accept responsibility.

Should the offender wish, he can access counselling while in custody. _______________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice