Back

The Ontario Superior Court of Justice - R. v. Gordon

March 19, 2022

Ontario

,

Canada

Issue

In what circumstances has the court imposed the minimum one year sentence for a sexual assault of a victim under the age of 16?

Conclusion

No cases were found where an offender convicted of sexual assault was sentenced to one year of imprisonment. Guidance may be gleaned from cases addressing the constitutionality of this minimum sentence, and the guidelines offered for sentencing offenders guilty of this and similar types of offence.

In R. v. B.J.T., (facts in R. v. B.J.T., 2016 ONSC 6616 - not available on CanLII) the Court of Appeal for Ontario struck down the mandatory minimum sentence in s.151 of the Criminal Code (sexual interference) because it contravened s.12 of the Charter of Rights and Freedoms and was not saved by s.1.

In R. v. Gordon, the Ontario Superior Court of Justice explains that the principles enunciated in Kienapple v. R. bar convictions for two or more offences arising out of the same criminal act in circumstances where the essential elements of the offences cover the same wrongdoing. In this case, the offender was convicted of offences under ss.151 and 271 of the Criminal Code. Following the principles above, the charges under s.271 were stayed. The Court canvassed many cases involving similar facts of sexual assault before arriving at a sentence of two years less a day for the charges under s.151.

In R. v. P.L., the Ontario Superior Court of Justice sentenced the accused to an overall sentence of incarceration for 12 months, followed by a period of probation of 12 months. In this case, the accused was 70 years old, and the victim was 16 years old. Both were heavily intoxicated. The accused performed oral sex on the victim and kissed her breasts, leaving a mark. He also penetrated her digitally. Citing the sentencing guidelines provided by the Supreme Court of Canada in R. v. Friesen, the Court took into account the mitigating factors and the aggravating factors when deciding the sentence.

In R. v. R.A., the Ontario Superior Court of Justice sentenced the accused to two years in the penitentiary for offences of sexual interference of a person under the age of 16. In this case, the accused was the step-father of the victim, who was 11 years old at the time of the incidents. The Court, citing Friesen as the leading case, canvassed sentences in a number of similar cases before ruling out a conditional sentence and imposing penitentiary time.

Law

Section 151 of the Criminal Code, RSC 1985, c C-46 reads:

151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

Section 271 reads as follows:

271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

In R. v. B.J.T., 2019 ONCA 694 (CanLII), (facts in R. v. B.J.T., 2016 ONSC 6616 - not available on CanLII) the Court of Appeal for Ontario struck down the mandatory minimum sentence in s.151 of the Criminal Code, RSC 1985, c C-46 (sexual interference) because it contravened s.12 of the Charter of Rights and Freedoms and was not saved by s.1:

[65] I will first address the constitutional issues and then the two sentence appeals.

(1) Did the trial judge err in holding that the mandatory minimum sentence for sexual interference is unconstitutional?

[66] The trial judge set out and applied the two-step process mandated by the Supreme Court in Nur, at para. 46, to determine whether the mandatory minimum sentence of one year is grossly disproportionate to the appropriate punishment having regard to the nature of the offence and the circumstances of the offender.

[67] That test was recently summarized by Steel J.A. in R. v. JED, 2018 MBCA 123, 368 C.C.C. (3d) 212, at para. 92 as follows:

Following R. v. Nur, 2015 SCC 15, there is a two-step analysis to determine whether the mandatory minimum sentence was grossly disproportionate (see para 46):

1.The court must determine what constitutes a proportionate sentence for the offence, having regard to the objectives and principles of sentencing in sections 718-718.2 the Code; and

2.The court must ask whether the [mandatory minimum sentence] requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the [mandatory minimum sentence] provision is inconsistent with section 12 and will fall unless justified under section 1 of the Charter. In the analysis under the second step, the court is to determine the effect of the [mandatory minimum sentence] on the offender in the present circumstances and on a hypothetical offender in reasonably foreseeable circumstances (see R. v. EJB, 2018 ABCA 239at para 11; and R. v. Morrison, 2017 ONCA 582 at para 117).

[68] The trial judge first found that the appropriate sentence for the first incident of sexual interference was a suspended sentence with a period of probation, given there was no effect on the complainant, and without the second incident, the first would not have resulted in any charge. For the second incident however, the appropriate sentence was 9 months given that it was the second time, the complainant was 15 years old, and there were the added effects of the sexual comment and action that occurred during the second pubic shaving. As discussed in the final section of this decision, I would uphold this sentence.

[69] Presumably, as a nine-month sentence could not be said to be grossly disproportionate to a one-year sentence, the trial judge then went on to consider the proposed reasonable hypothetical, the circumstances of the first incident, had it occurred when the mandatory minimum was one year and not 45 days. He concluded that the low moral culpability in the circumstances of that offence made a one-year sentence grossly disproportionate to an appropriate sentence for an offender in those circumstances, and therefore he found it to be in contravention of s. 12 of the Charter. On this appeal, the Crown did not argue that the mandatory minimum sentence could be saved by s. 1 of the Charter.

[70] Because I would set aside the conviction for sexual interference on the first incident and order a new trial, I do not view it to be appropriate for this court to speculate on the level of moral responsibility that may or may not be found at a new trial on the first incident. I would not, therefore, find it appropriate to use the first incident as a reasonable hypothetical for the purpose of this appeal analysis.

[71] However, the issue of the constitutionality of the mandatory minimum for sexual interference (s. 151(a) of the Criminal Code) has recently been considered by five other courts of appeal across the country:[1] the Quebec Court of Appeal in Caron Barrette c. R., 2018 QCCA 516, 46 C.R. (7th) 400; the Nova Scotia Court of Appeal in R. v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70; the Manitoba Court of Appeal in R. v. JED; the British Columbia Court of Appeal in R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379; and since the argument of this appeal, the Alberta Court of Appeal in R. v. Ford, 2019 ABCA 87, 371 C.C.C. (3d) 250. In all five cases, the courts found the mandatory minimum in s. 151 of the Criminal Code contravened s. 12 of the Charter and was not saved by s. 1.

[72] In those cases, the courts noted that the offence of sexual interference can be committed in a variety of ways, thereby increasing the potential for the mandatory minimum sentence to be found to be grossly disproportionate in some circumstances for some offenders. In four cases, hypothetical circumstances for conviction were posited and accepted as reasonably foreseeable, while in JED, the Manitoba Court of Appeal accepted the reasonable hypotheticals posited by the two other courts (Q.C.C.A. and N.S.C.A.) whose decisions pre-dated JED, as appropriate for the analysis. Steel J.A. noted that they were based on previous cases before the court. All five appeal courts found the mandatory minimum sentence to be grossly disproportionate to a range for an appropriate sentence for the reasonably foreseeable hypothetical offender in the posited circumstances.

[73] In Scofield, the B.C.C.A. postulated a hypothetical where two young people meet at a party; one is almost 16, while the other recently turned 21, making the close in age exception (s. 150.1(2.1) of the Criminal Code) inapplicable. The two people drink alcohol and smoke marijuana, reducing their inhibitions. They go to a private bedroom where they engage in some kissing and brief sexual touching over their clothing for ten minutes. They act willingly and know each other’s ages. Neither has a criminal record. Harris J.A. concluded that a one-year sentence for that conduct would be grossly disproportionate to a proportionate sentence which would not necessarily involve imprisonment or even a conditional sentence. He also added that if the 21 year-old had a disability that reduced his moral culpability or if Gladue factors applied, (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688,) those two characteristics of the offender could make the mandatory minimum sentence more disproportionate.

[74] In Caron Barrette, the facts were that the offender was 23 years old. He engaged in a romantic relationship with a 14 year-old girl with her parents’ consent. Neither was aware that their conduct was illegal. The court found that a 90 day intermittent sentence was proportionate and that the one-year mandatory minimum was therefore grossly disproportionate. The court also confirmed that the three reasonable hypotheticals postulated by the trial judge were appropriate and supported the finding that the mandatory minimum of one year contravened s. 12 of the Charter. Those three were:

1. A romantic relationship similar to that which existed between the offender and the victim, but for a period of several days, which only involved kissing and touching;

2. An isolated caress, over the clothes, on the thigh or buttocks, not in the context of an abuse of authority, where the sexual touching is found to be without consequences for the victim; and

3. A romantic relationship in which the victim is 15 ½ years old and legally unable to consent at the beginning of the relationship, and the relationship continues after she reaches 16 years old.

[75] I agree that the hypotheticals postulated in these cases are reasonable and that the one-year mandatory minimum sentence would be grossly disproportionate to a proportionate sentence for the offender in those circumstances. As a result, the mandatory minimum sentence constitutes cruel and unusual punishment contrary to s. 12 of the Charter. The Crown does not submit that such a provision is saved by s. 1.

The Court failed to find an appropriate remedy other than to strike down the mandatory minimum:

(2) What is the appropriate remedy?

[76] The Crown does submit, however, that if this court finds that the mandatory minimum for the indictable offence under s. 151(a) of the Criminal Code contravenes the Charter, the remedy is not to strike down the provision, but instead to read in the mandatory minimum sentences provided in s. 151(b) of the Criminal Code for when the Crown proceeds summarily. The Crown submits that so long as the mandatory minimum for the summary offence is not also grossly disproportionate, then reading in that minimum furthers the legislative intent of Parliament with a Charter-compliant minimum sentence for an inherently serious offence against a child. The Crown could offer no precedent where reading in the mandatory minimum for the same offence on summary conviction was the remedy after the mandatory minimum sentence for the indictable offence was struck down.

[77] I would not give effect to this submission for two reasons. The first is that contrary to the Crown’s submission, to read in a different and lower mandatory minimum would not be implementing the intent of Parliament, but rather would be usurping the role of Parliament to decide whether to consider a lower mandatory minimum or to trust judges to impose appropriate sentences for this offence, having regard to all the relevant circumstances of the offence and the offender. See R. v. Ferguson, 2008 SCC 6, 1 S.C.R. 96, at paras. 50-51.

[78] The second reason is that proceeding in that way would require a second Nur analysis and a finding regarding the constitutionality of the mandatory minimum sentence for the summary offence when that issue is not directly raised by this appeal. In that regard, in the recent Ontario Superior Court decision in R. v. Drumonde, 2019 ONSC 1005, Schreck J. struck down the mandatory minimum for the summary conviction offence in well-written reasons. That decision was not appealed by the Crown.

[79] In my view, the appropriate remedy is the one that has been imposed by the other courts that have found the mandatory minimum to be unconstitutional, which is to strike it down. I would uphold the decision of the trial judge on this issue.

In R. v. Gordon, 2018 ONSC 6217 (CanLII), the Ontario Superior Court of Justice explains that the principles enunciated in Kienapple v. R., 1974 CanLII 14 (SCC), [1975] 1 SCR 729 bar convictions for two or more offences arising out of the same criminal act in circumstances where the essential elements of the offences cover the same wrongdoing. In this case, the offender was convicted of offences under ss.151 and 271 of the Criminal Code, RSC 1985, c C-46. Following the principles above, the charges under s.271 were stayed. The Court canvassed many cases involving similar facts of sexual assault before arriving at a sentence of two years less a day for the charges under s.151:

Constitutional Invalidity of the Mandatory Minimum Sentences

[14] Both of Mr. Gordon’s offences carry a one year mandatory minimum sentence (because the Crown proceeded by way of indictment and AB was 15 years old at the time of the offences: ss. 151 and 271 of the Criminal Code). These mandatory minimum sentences have been declared unconstitutional in several cases before this Court, based on a violation of the right to be free from cruel and unusual punishment guaranteed in section 12 of the Canadian Charter of Rights and Freedoms: R. v. T. (B.J.), 2016 ONSC 6616; R. v. M. L., 2016 ONSC 7082, 367 C.R.R. (2d) 268; R. v. S. (J.D.), 2017 ONSC 1869, 378 C.R.R. (2d) 282; R. v. Hussein, 2017 ONSC 4202; and R. v. H.L., 2018 ONSC 1026 (sentence upheld at 2018 ONCA 823). The Ontario Court of Appeal has not ruled on the issue.

[15] The Crown in this case did not attempt to argue that the mandatory minimum sentences are constitutionally valid. Both the Crown and Defence counsel made their sentencing submissions based on the premise that no mandatory minimum sentences apply. Although I am not bound by the prior decisions of this Court on this issue, I find them to be persuasive. Moreover, I am of the view that the prior judgments should be followed for the reasons set out by Justice Code in Hussein, at paras. 27-29. Accordingly, the sentencing of Mr. Gordon in this case will proceed on the basis that the one year mandatory minimums are of no force or effect.

Stay of Conviction

[16] The Crown and Defence counsel jointly submitted that a stay should be entered with respect to one of Mr. Gordon’s convictions, pursuant to the principles enunciated by the Supreme Court of Canada in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The decision in Kienapple bars multiple convictions for two or more offences arising out of the same criminal act in circumstances where the essential elements of the offences cover the same wrongdoing.

[17] In this case, both charges arose out of a single incident and the facts underlying both of Mr. Gordon’s convictions are the same. Kienapple therefore mandates that one of the convictions should be stayed.

[18] The Crown and Defence counsel jointly submitted that the Court should order a conditional stay of the conviction under s. 271 of the Criminal Code. I agree that the law in Ontario favours staying the sexual assault conviction rather than the sexual interference conviction: Hussein, at paras. 45-46; R. v. F.L., 2016 ONSC 1215, at paras. 21-25; and R. v. K.S., 2018 ONSC 5678, at paras. 21-23. A conviction for sexual interference is more appropriate in this case because it includes a recognition that the offence was committed against a victim who was under sixteen years of age. Accordingly, a conditional stay of the conviction under s. 271 will be ordered. Mr. Gordon will be sentenced only in respect of his conviction for sexual interference pursuant to s. 151 of the Criminal Code.

[...]

Selecting Comparable Cases

[62] Both the Crown and Defence counsel submitted that I should consider sexual assault sentencing cases, rather than sexual interference cases, in identifying the appropriate range of sentence for Mr. Gordon’s offence.

[63] Sexual interference cases generally fall into three categories: (1) those involving the grooming of a very young child and a significant disparity in age between the offender and the victim; (2) those involving abuse of a position of authority or trust by the offender (often also involving grooming and a disparity in ages); and (3) those involving younger offenders with a victim who consented to the sexual touching but was not legally capable of consent because of their age. Mr. Gordon’s offence does not fall into any of these categories, which is why counsel suggested that I look instead to the sexual assault case law in fashioning an appropriate sentence for him.

[64] I agree with the approach suggested by counsel. Parity will not be achieved simply by a formalistic comparison of sentences imposed on offenders with convictions under the same section of the Criminal Code. The principle of parity requires that I consider sentences imposed on offenders with backgrounds similar to Mr. Gordon’s, who committed similar offences in similar factual circumstances. The comparability of offences is to be measured by reference to the underlying facts giving rise to the convictions. The specific provision of the Criminal Code under which an offender has been convicted has little relevance provided that the facts giving rise to the conviction are similar, particularly where (as here) the maximum penalties stipulated by the Criminal Code are the same for both offences.

[65] In my review of the sexual assault sentencing cases, I will focus primarily on cases that include vaginal penetration, since that was the nature of Mr. Gordon’s offence against AB.

[...]

[108] I recognize that any term of incarceration, particularly for a youthful first offender, is a sanction of last resort. I am also mindful of the Ontario Court of Appeal’s ruling that a first sentence of imprisonment should be as short as possible: R. v. Quashie, at para. 82.

[109] I believe that Mr. Gordon has strong rehabilitative prospects, which I do not wish to hinder by separating him from his support network for a lengthy period of incarceration. However, given the serious nature of his offence, I cannot prioritize his rehabilitation to the point of undermining the important objectives of denunciation and general deterrence.

[110] I recognize the near certainty of Mr. Gordon’s deportation if I sentence him to more than six months’ imprisonment. I have given this very serious consideration. It is a collateral consequence that strikes me as excessively harsh in Mr. Gordon’s particular circumstances as a new parent, but I cannot skew his sentence for the sole purpose of avoiding his deportation. It would not be appropriate for me to use my discretion as a sentencing judge to circumvent the operation of the provisions and policies of the IRPA. A sentence of less than six months’ imprisonment, which is what Defence counsel urges me to impose, would do just that. It would not be proportionate to the gravity of Mr. Gordon’s offence and the harm he caused to AB. While it might be sufficient to deter Mr. Gordon personally from engaging in further sexual misconduct, it would not satisfy the important objectives of general deterrence and denunciation of such conduct.

[111] Based on my review of the relevant cases, I conclude that the range of sentence for a single sexual offence involving non-consensual vaginal intercourse is from 18 months to four years’ imprisonment. In light of Mr. Gordon’s rehabilitation potential and other significant mitigating factors in this case, as well as the limited number of aggravating factors, Mr. Gordon’s offence falls toward the lower end of this range, but it does not fall at the bottom of the range.

[112] For all of the above reasons, I have concluded that a sentence of two years less a day is a just sanction in the circumstances of this case.

In R. v. P.L., 2022 ONSC 452 (CanLII), the Ontario Superior Court of Justice sentenced the accused to an overall sentence of incarceration for 12 months, followed by a period of probation of 12 months. In this case, the accused was 70 years old, and the victim was 16 years old. Both were heavily intoxicated. The accused performed oral sex on the victim and kissed her breasts, leaving a mark. He also penetrated her digitally. Citing the sentencing guidelines provided by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 (CanLII), the Court took into account the mitigating factors and the aggravating factors when deciding the sentence:

[28] I will now refer to a few of the numerous cases that counsel have referred to in support of their respective positions. A word of caution first. No two cases are exactly the same. Sentencing someone for the crime or crimes they have committed is a highly individualized exercise. The sentences imposed by judges in other cases can provide useful comparisons but ultimately, my task is to sentence this offender for this specific crime. Each case turns on its own particular circumstances.

[29] With that caveat in mind, perhaps the most significant case presented for consideration by Crown counsel is the recent decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9.

[30] In that case the offender sexually interfered with the 4 year old daughter of a woman he had met on an internet dating site.

[31] The facts surrounding the sexual interference were egregious. The offender was 29 years old. Like many sexual offenders, he did not have a criminal record.

[32] He entered a plea of guilty to the charge. He was sentenced to 6 years imprisonment. The Court of Appeal said that the sentencing judge had mistakenly presumed the existence of a trust relationship after having found that there was none. The Court of Appeal reduced the sentence to 4 and a half years. On further appeal, the Supreme Court of Canada restored the original 6 year sentence.

[33] The Supreme Court of Canada provided guidance to judges regarding the sexual abuse of children by making the following comments:

a. At the sentencing stage, in order to effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause and give effect to both in imposing a sentence;

b. The prime interests that the legislative scheme of sexual offences against children protect are the protection of personal autonomy, bodily integrity, sexual integrity, dignity and the equality of children. Emphasis on these interests require courts to focus their attention on emotional and psychological harm, not simply physical harm;

c. The fact that the victim is a child increases the offender’s degree of responsibility;

d. Mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. Sexual offences against children should generally be punished more severely than sexual offences against adults;

e. 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; and,

f. Sexual violence against children committed on multiple occasions should attract significantly higher sentences.

[34] The Supreme Court of Canada concluded that the 6 year sentence imposed in the Friesen case was not demonstrably unfit. Far from being excessive, the court said that the sentence was on the lenient end of the spectrum of fit sentences.

[...]

[75] A mitigating circumstance is one which tends to reduce an otherwise appropriate sentence. I would note the following mitigating factors:

a. He has been sober since the incident;

b. He was willing to undergo assessment and treatment;

c. He is at a low risk to re-offend;

d. He has family support;

e. He has maintained his employment;

f. He does not have a relevant criminal record;

g. He has been on bail for 4 years without any incidents. Defence counsel says that the absence of any bail breaches is a good indicator that Mr. L would do well with a conditional sentence;

h. His bail conditions included a prohibition against seeing his granddaughter for 15 months until this condition was eliminated;

i. He has hunted and guided in t

Alexsei publishing date:
120