Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. J.O., 2014 NSSC 365

Date: 20140930

Docket: CRY,  No.  373539

Registry: Yarmouth

Between:

Her Majesty the Queen

v.

J. O.

Editorial Notice:     Identifying information has been removed from this                                              electronic version of the judgment.

By the Court:

[1]             On June 19, 2014 J. O. was convicted of one count of sexual interference and one count of sexual assault in relation to K. D..  Section 724(2) of the Criminal Code requires the court to accept as proven all facts which are essential to the jury’s verdict and to find any other relevant fact disclosed by the evidence at trial to be proven.  It is open to either the Crown or the defence to present additional evidence at the sentencing hearing, however that was not done in this case.

FACTS

[2]             I have been presented with an Agreed Statement of Facts signed by both counsel.  I have reviewed my notes of the trial evidence and accept that the facts set out in the document have been proven as contemplated by s.724(2) of the Code with one minor exception.  Paragraphs two and three of the Agreed Statement of Facts say that Mr. O. was left to babysit K. D. on several occasions.  At the time of the offences Ms. D. was 14 or 15 years old and in grade 9.  She stayed with Mr. O., by her choice, when her parents went shopping because she enjoyed watching television and playing video games with him.  No witness said Mr. O. was babysitting Ms. D. and I would not characterize the arrangement in that fashion.

[3]             Mr. O. was a friend of the D. family and had known Ms. D. since she was a child.  In the summer of 2010 Mr. O. lived with the D. family.

[4]             Ms. D. was described by both of her parents as having a learning disability.  E. D. said she was kind of slow and K. D. said she had the mind of a five year old.  In the summer of 2010 she had just finished grade 9, which was the appropriate stage of schooling for her age.  At the time of trial she had graduated from high school and was living independently with her boyfriend.

[5]             In her police interview, which was entered as evidence at trial, as well as her testimony, Ms. D. displayed very little emotion.  She also seemed to have difficulty understanding questions which were asked of her.  Even though there was no psychological evidence presented I am satisfied Ms. D. has a somewhat diminished intellectual capacity, however it is not so severe that she was unable to graduate from high school or live an independent life.  Mr. O. described her as being trusting and easy to influence and I accept that description.

[6]             The evidence is clear that Mr. O. and Ms. D. enjoyed spending time together and that this was the case throughout the time period when the assaults took place.  Ms. D. enjoyed riding on Mr. O.’s scooter as well as watching movies and playing video games with him.  Ms. D. chose to spend time with Mr. O. when her parents went shopping.

[7]             In her police interview Ms. D. described Mr. O. as her friend and said he was a nice person who would buy her things which she needed or help her if she was hurt or had been bullied by someone.  Mr. O. said they confided in each other and Ms. D. talked to him about being bullied at school.

[8]             Ms. D. has not provided a victim impact statement.

[9]             Between June 1, 2009 and August 28, 2010 Mr. O. committed four sexual assaults on Ms. D..  At that time he was in his early 60’s and she was 14 or 15.  The assaults were all similar and involved Mr. O. removing Ms. D.’s clothing and sucking or kissing her breasts and vagina.  He would rub his penis on the outside of Ms. D.’s vagina.  Mr. O. would masturbate and ejaculate on Ms. D.’s stomach or buttocks.  On some occasions they would watch pornographic movies.

[10]        Ms. D. said Mr. O. did not perform any act that she told him she did not want to do.  For example, Mr. O. asked if he could put his penis in her mouth and she said no, and that was the end of the issue.  She also told him she did not want him to put his penis in her vagina and he did not.

THE KIENAPPLE PRINCIPLE

[11]        The Supreme Court of Canada in R. v. Kienapple [1975]1 S.C.R. 729, said the principle of res judicata precludes entering multiple convictions for the same actions.  In such circumstances the trial judge should enter a conditional stay with respect to the less serious charge.  In order for the principle to apply there needs to be both a factual and legal nexus between the offences.  The factual nexus exists when the charges are based on the same acts of the accused.  The legal nexus is found when the constituent elements in one are essentially the same as the other.  In my view the charges against Mr. O. for sexual interference and sexual assault arise out of the same circumstances.  The indictment alleges that he touched Ms. D. for a sexual purpose with his hands.  During the precharge conference I raised with Ms. McKinney the issue of what evidence there was to support the sexual interference charge.  She advised the only evidence of touching by Mr. O. with his hands was Ms. D.’s testimony that he undressed her.  The rest of the touching which she described took place with other body parts including his mouth and penis.

[12]        I agreed with Crown counsel’s recollection of the evidence and therefore instructed the jury that the only evidence in support of the sexual interference charge was Ms. D.’s testimony that Mr. O. undressed her.  I must assume the jury followed my instructions and therefore this conviction relates only to that limited conduct.  The much more serious conduct described in the Agreed Statement of Facts relates only to the conviction for sexual assault.

[13]        I am satisfied the two charges arise out of the same series of events and so the necessary factual nexus exists.  The essential elements of the two offences are the same.  Ms. D.’s age is a specific element of the s.151 charge, however it is also relevant to the sexual assault conviction by virtue of s.150.1(1) which removes the defence of consent where the complainant is under 16 years of age.

[14]        I believe this is an appropriate case to apply the Kienapple principle and I will therefore enter a conditional stay on the sexual interference conviction.  The result is that I will sentence Mr. O. only for the sexual assault conviction.

SENTENCING PRINCIPLES

[15]        Section 718 sets out the fundamental purpose of sentencing.  The objectives include denouncing unlawful conduct, general and specific deterrence, rehabilitation and promotion of an acknowledgement of the harm done to the victim and the community.

[16]        Section 718.01 says that for an offence involving abuse of a person under the age of 18 years the court will give primary consideration to the objectives of denunciation and deterrence.  Those principles are applicable in this case due to Ms. D.’s age.

[17]        In determining the appropriate sentence the Court must take into account any aggravating or mitigating circumstances.

[18]        There are a number of aggravating circumstances in this case.  The first, and most obvious, is Ms. D.’s age and vulnerability.  Chronologically Ms. D. was 14 or 15 at the time of the offences, however intellectually and emotionally she was much younger.  Mr. O. said she trusted him, confided in him about problems in her life and was easy to influence.  Ms. D. considered him to be a friend and someone who would provide for and protect her.  While Mr. O. was not in the same position as a parent or a step-parent and was not what I would describe as a caregiver for Ms. D., he obviously had a special relationship with her and she looked to him for guidance and support.  I am satisfied that Mr. O.’s assaults should be considered as an abuse of a position of trust.  This is a specific aggravating circumstance found in s.718.2(a)(iii) of the Code.

[19]        The fact that there were four assaults over a period of slightly more than one year is also an aggravating circumstance.

[20]        There are also mitigating factors which I must consider.  Mr. O. will be 65 years of age next week and has no prior criminal record.  In his Presentence Report it indicates that he accepts responsibility for his actions and feels badly for people who have been hurt.  He expresses the hope that Ms. D. will be okay in the future.  Mr. O. is an alcoholic, however he no longer drinks.  He has developed a relationship with his church community and regularly attends events with them.  His Pastor provided the opinion that Mr. O. is more stable now than he was six years ago and that the church has contributed to that.

[21]        In addition to the aggravating and mitigating circumstances surrounding the offence I need to consider the circumstances of Mr. O..  He is almost 65 years of age and is generally in good health although he is dependent on a wheelchair since he was injured at age 19.  He currently lives with a friend in Yarmouth who he met through church.  He has a grade 3 education and reports that he was a slow learner.  He has difficulty reading and writing.  He receives Old Age Pension in the amount of $551.00 per month.  The Presentence Report suggests Mr. O. may benefit from mental health counselling.  It recommends he undergo a comprehensive sexual offender assessment in order to determine what level of treatment may be appropriate.  For offenders assessed at a low to moderate level of risk, treatment programs are available in the community.

[22]        Section 718.2(b) says a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.  This means that I must consider sentences imposed in other cases involving sexual assaults on children.  The Nova Scotia Court of Appeal in R. v. E.M.W. 2011 NSCA 87 discussed the range of sentences for sexual offences against children which did not involve sexual intercourse.  The cases outlined by the Court of Appeal included sentences ranging from a suspended sentence of three years with probation for repeated sexual touching to six years incarceration for offences involving digital penetration and attempted intercourse which took place over a period of years.

[23]        In E.M.W. the trial judge sentenced the offender to two years incarceration for a series of assaults on his daughter when she was between nine and eleven years of age.  There were repeated incidents of digital penetration and a victim impact statement which indicated the daughter suffered lasting psychological harm.  The Court of Appeal held that the two year period of incarceration fell within the appropriate range of sentence given the circumstances.

[24]        The Crown relies on the decision of Justice Cacchione in R. v. G.K.N. 2014 NSSC 150 which involved convictions for six counts of sexual interference committed against the accused’s step daughter which took place between ages seven and eleven.  The offences included the accused rubbing his penis on the complainant’s stomach, masturbating, attempted intercourse and oral sex, ejaculation on her back and buttocks and masturbating while she was in the shower.  The victim impact statement indicated the complainant was adversely affected to a significant extent as a result of the assaults.  The accused was 60 years of age with a grade 12 education and had a supportive family.  He had a prior conviction for indecent assault on a female which took place 20 years earlier for which he was sentenced to 90 days incarceration.

[25]        Justice Cacchione imposed a series of consecutive sentences for the six offences which resulted in a total of 18 months incarceration followed by three years of probation.

[26]        Mr. Judge, on behalf of Mr. O., has referred to the Nova Scotia Court of Appeal decision in R. v. J.B.O. 2013 NSCA 97 in which a 70 year old grandfather plead guilty to sexual interference under s. 151.  The victim was his five year old granddaughter and the abuse took place over ten months and involved multiple incidents.  It included fondling of the child’s vagina, touching with his penis, forcing her to touch herself and the offender’s penis with her hands.  The Court of Appeal upheld a sentence of 90 days incarceration followed by three years probation.

[27]        Ms. McKinney, on behalf of the Crown, recommends a sentence of two and one half to three years in custody along with orders under ss. 743.21, 109, 487.051, 161 and 490.013(2)(a).  She emphasizes denunciation and deterrence and says that a sentence in this range is in line with the decisions in E.M.W. and G.K.N.  In her submissions she notes the presence of aggravating factors which include breach of trust, a child under 18, the repeated nature of the offences and the vulnerable nature of the victim.

[28]        Mr. Judge argues that Mr. O. is of limited intellectual capacity and was unable to appreciate the breach of trust.  He suggests Ms. D. was a willing partner and was not traumatized by these events.  He seeks a sentence of three months custody.

DISPOSITION

[29]        I have considered the principles found in ss.718 through 718.2 of the Code as well as the aggravating and mitigating circumstances previously described.  I have also taken into account the case law and in particular the decisions in E.M.W., G.K.N. and J.B.O.  In my view, the first two cases on which the Crown relies, were more serious and included aggravating factors not found here such as offenders who were father or step-father to the victims, evidence of significant psychological impact on the victims, and assaults which were more frequent and over longer periods of time.

[30]        The J.B.O.  decision involved abuse which was similar in nature and frequency to that committed by Mr. O..  A significant difference is the mitigating factor of an early guilty plea which is not present here.

[31]        These three decisions illustrate the principle that sentencing is a very individualized process and there is no precise formula that can be applied to arrive at an appropriate disposition.  The court must assess all of the circumstances and the governing principles in order to reach a disposition that is fair and just.

[32]        Unlike most other cases there is no victim impact statement indicating what, if any, ongoing harm may have been caused to Ms. D. by Mr. O.’s actions.  What limited evidence I have suggests she continued to enjoy spending time with him during the period of the assaults and described him as a friend during her police interview.  This may be due to her emotional immaturity and vulnerability, however I have no real evidence to substantiate that conclusion.

[33]        I do not consider Mr. O. to be in the same position of trust as a parent or step-parent and therefore I consider cases where the offender held that status to be more serious.  To the extent that Ms. D. expressed a desire not to engage in a particular activity, Mr. O. respected that.  There was no evidence of violence or physical force being used by Mr. O..

[34]        This is a case where Mr. O. abused the trust placed in him by the entire D. family.  Mr. and Mrs. D. were his friends and helped him when they could.  They went shopping for him when he was unable to do so and permitted him to move into their own home.  It was during this time that he sexually assaulted their daughter K..  He did so for his own personal gratification.  While Mr. O. has had a very difficult life with a number of personal setbacks that does not in any way excuse or justify his conduct.

[35]        Children like K. deserve protection and support.  If they choose to spend time with someone watching movies or playing video games it should be without any fear or risk of victimization.  In accordance with s.718.01 of the Code my sentence in this case gives primary consideration to the objectives of denunciation and deterrence of such conduct.

[36]        I do not accept the submissions of Mr. Judge concerning Mr. O.’s intellectual capacity.  There was no evidence presented to support that assertion.  Mr. O. knew that sexual contact with Ms. D. was wrong and he indicated as much in his statement to the RCMP.  As for Ms. D. being a willing partner, I do not believe her lack of resistance should be interpreted in that fashion.  She was a young, vulnerable girl who was easily influenced and her response to the behaviour of Mr. O. was not surprising.  The evidence here does not support the assertion that Ms. D. was a willing participant in these events.

[37]        Consent is not a defence to a charge of sexual assault on a child nor is it a mitigating factor on sentence even if the evidence were to suggest that the victim was a willing participant (R. v. Hajar 2014 ABQB 550).  With children, cooperation can be obtained through coercion either by threats or promises and is irrelevant in my opinion.

[38]        After hearing from counsel and taking all of the above noted factors into consideration I believe that a period of incarceration of 14 months represents an appropriate balance considering the severity of the offence as well as the aggravating and mitigating circumstances.  This will be followed by a period of probation of two years with the following conditions:

1.                 To keep the peace and be of good behaviour;

2.                 To appear before the court when required to do so by the court;

3.                 To notify the probation officer in advance of any change of name or address;

4.                 To report to a probation officer within two days of your release from custody and thereafter when required by the probation officer to do so;

5.                 To remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or a probation officer;

6.                 To attend for a forensic sexual offender assessment and treatment, if required, as directed by your probation officer;

7.                 To attend any mental health assessments and treatment programs as directed by your probation officer;

8.                 To have no contact, directly or indirectly, with E., K. or K. D. and to not go within 20 meters of any place where they reside.

[39]        In addition I will grant an order under s.743.21(1) of the Code prohibiting Mr. O. from communicating directly or indirectly with E. D., K.D. or K. D. during the period of incarceration.  There will also be an order under s.109 of the Criminal Code prohibiting Mr. O. from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years following his release from custody.

[40]        Mr. O. is also ordered to provide a DNA sample pursuant to s.487.051.

[41]        The Crown is seeking an order under s.161 of the Code incorporating all of the conditions in that section and I will grant such an order for a period of 20 years.

[42]        The Crown is also seeking an order pursuant to s.490.012(a) of the Code requiring Mr. O. to comply with the Sex Offender Information Registry Act.  I will grant such an order which, by virtue of s.490.013(2)(b), is for a period of 20 years.

[43]        Given Mr. O.’s circumstances the victim fine surcharge is waived.

Wood, J.