



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  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    information that could identify the victim or a witness shall not be published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, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim
    of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

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.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. B.J.T., 2019 ONCA 694

DATE: 20190906

DOCKET: C62821 & C62978

Feldman, Paciocco and Zarnett JJ.A.

DOCKET: C62821

BETWEEN

Her Majesty the Queen

Respondent

and

B.J.T.

Appellant

DOCKET: C26978

AND BETWEEN

Her Majesty the Queen

Appellant

and

B.J.T.

Respondent

Janani Shanmuganathan and Geocelyne Meyers, for B.J.T.

Craig Harper, for the Crown

Heard: February 14, 2019

On appeal by B.J.T. from the convictions for sexual
    interference and sexual assault entered by Justice John A. Desotti of the
    Superior Court of Justice, sitting without a jury, dated December 16, 2015, with
    reasons reported at 2015 ONSC 7293, and the sentence imposed on October 28,
    2016, with reasons reported at 2016 ONSC 6616.

On appeal by the Crown from the sentence imposed on
    October 28, 2016, with reasons reported at 2016 ONSC 6616.

Feldman J.A.:

Introduction

[1]

B.J.T., the father of the complainant, was convicted of two counts of
    sexual interference contrary to s. 151(a) of the
Criminal Code
, R.S.C.
    1985, c. C-46, (touching a person under age 16 for a sexual purpose) and two
    counts of sexual assault contrary to s. 271 of the
Criminal Code
. He
    was convicted of one count of sexual assault and one count of sexual
    interference for shaving his daughter's pubic hair at her request in 2011 when
    she was 13, and was convicted on both counts again for shaving his daughters
    pubic hair at her request a second time in 2013 when she was 15. The sexual
    assault convictions were stayed based on the principle from
R. v. Kienapple
,
[1975] 1 S.C.R. 729
.

[2]

After striking down the mandatory minimum sentence for the offence of
    sexual interference (45 days at the time of the first offence, amended by the
    time of the second offence to 1 year), as cruel and unusual punishment contrary
    to s. 12 of the
Canadian Charter of Rights and Freedoms
and not saved
    by s. 1, the trial judge imposed a sentence of one day for the first offence concurrent
    to nine months for the second offence.

[3]

B.J.T. appeals all of the convictions, and in the alternative seeks
    leave to appeal the nine-month sentence. The Crown seeks leave to appeal both
    sentences, asks this court to set aside the finding that the mandatory minimum
    sentences are unconstitutional, and to increase the sentence on the first count
    to six months, and the sentence on the second count to one year.

[4]

For the reasons that follow, I would dismiss the appeals on both 2013
    convictions and on the 2011 sexual assault conviction, I would set aside the 2011
    sexual interference conviction and order a new trial, and I would dismiss all
    sentence appeals.

The facts found by the trial judge

[5]

Both incidents arose out of the complainant, D.T.s significant hygiene
    problem and odour originating from her pubic hair. She was teased about it at
    school and both her parents were aware of it. B.J.T. believed that as a result,
    his daughter had low self-esteem. B.J.T. also had low self-esteem when he was
    in school. As an obese child, he was bullied and had few friends. He had been a
    special education student. The trial judge observed him to be a simple man
    and concluded that his depth of reasoningis limited.

(1)

The 2011 incident

[6]

One day in 2011, when D.T. was 13 years old, she wanted to attend a
    dance, and told her parents that she would like her mother to shave her pubic
    hair. Her mother refused, saying she was too young, but suggested she speak
    with her two aunts, her mothers sisters. Later, when her mother was absent,
    D.T. asked her father, B.J.T. to shave her pubic hair and he agreed.

[7]

The mother, J.T., was not home at the time. D.T. laid down on B.J.T.s
    bed and B.J.T. used a razor and shaving cream to remove D.T.s pubic hair.

[8]

During her police interview, D.T. was asked where B.J.T. had shaved her.
    She replied: [e]verywhere? The interviewing officer sought clarification: [l]ike,
    your pubic region? She answered: [y]es  I dont know what its called.

[9]

The interviewing officer also asked whether B.J.T. said anything to D.T.
    while he was shaving her. She answered: he just said it was really knotted,
    but, you know, you really dont do anything with yourself. These excerpts from
    D.T.s police interview were not findings of fact by the trial judge. However,
    D.T. affirmed at trial that her statements in this interview were true, and these
    statements were not disputed.

[10]

B.J.T.
    acknowledged that once the shaving was complete, he told D.T. not to tell her
    mother. But when J.T. got home that night, B.J.T. was crying, and he admitted
    to his wife that he had shaved their daughter at her request. In response, she
    threatened to beat B.J.T. with a baseball bat if he ever shaved J.T. again. The
    complainant, however, expressed gratitude to her father for helping her out.

(2)

The 2013 incident

[11]

In
    2013, when D.T. was 15 years old, she texted her father at work saying she had
    a request. He responded that she should ask him at home. When he arrived home,
    she asked him to shave her pubic hair again.

[12]

When
    he shaved her pubic hair the second time, B.J.T. inserted his finger inside her
    vagina, he said, to remove a pubic hair. She said that she experienced
    significant discomfort and told him she could have removed the hair herself.
    D.T. also said that B.J.T. commented on the large size of her clit. He denied
    that he said that, saying that he was only commenting on a large skin tag he
    observed. The trial judge accepted D.T.s evidence on this point.

(3)

Disclosure to the police

[13]

The
    police became involved in this case in 2014, when D.T.s maternal aunt, L.M.,
    found out from D.T.s boyfriend, A.K., that B.J.T. had shaved D.T. The information
    was then revealed to D.T.s other maternal aunt, A.M., her mother, and
    eventually to the police.

Decisions below

(1)

Reasons for conviction

[14]

The
    trial judge first found the facts regarding both incidents. When he turned to
    the analysis, he dealt with the second incident (October 2013) first, observing
    that the only material difference in the accounts by the father and the
    daughter was with respect to the comments made during that second incident as
    well as the discomfort that the complainant felt when B.J.T. put his finger in
    her vagina to remove one pubic hair and the fact that she told him she could
    have done that herself. While he did not believe that a great deal turned on
    the difference between the two accounts, the trial judge accepted the testimony
    of the complainant regarding what occurred during the second shaving incident
    including what was said, and rejected the skin tag explanation by B.J.T. He
    found B.J.T.s explanation for putting his finger into the complainants vagina
    absurdly inappropriate.

[15]

The
    trial judge commented that he did not believe that a great deal turned on the
    difference for the purpose of assessing the sexual connotation of B.J.T.s
    actions. It is unclear whether he was purporting to address the sexual interference
    count in this section of the reasons. He recited the Crowns position that the
    words used by B.J.T. and the fact that he put his finger in his daughters
    vagina made the second incident a clear and obvious sexual assault with an
    overt sexual connotation. He appeared to accept the Crowns position, finding
    that B.J.T.s rationale and explanation for putting his finger in his
    daughters vagina was at its highestabsurdly inappropriate.

[16]

He
    then posed the question whether without those two added features of the
    evidence, did the shaving of the complainants pubic area by B.J.T. by itself constitute
    a sexual assault, and concluded that it did.

[17]

He
    referred to the argument that the consensual shaving at the daughters request
    was not a sexual assault, and noted that argument could not realistically be
    made for the second incident. He reasoned that the entire context had changed
    after two years had passed, because: a) the complainant was now two years older
    and normally could make her own inquiries from professionals, from friends, her
    aunts, or on the internet or elsewhere to get the assistance she needed; and b)
    his wifes anger following the first incident, his own remorse, and the obvious
    ability of his daughter or him to make other inquiries for help including
    products, an aesthetician, or self-taught personal care. Based on those reasons
    the trial judge found that the second incident was entirely and thoroughly
    inappropriate and constitutes by any objective standard a sexual assault.

[18]

He
    concluded his analysis of the October 2013 incident by making the finding of
    guilt on both sexual interference and sexual assault.

[19]

The
    trial judge next turned in the reasons to consider the first shaving incident,
    which occurred in 2011. He quoted from the Supreme Court of Canadas decision
    in
R. v. Chase
, [1987] 2 S.C.R. 293, as the basis for determining the
    issue. In
Chase,
the Supreme Court says at p. 302:

Sexual assault
    is an assault within any one of the definitions of that concept in
s.
    244(1)
of the
Criminal Code
which is committed in circumstances of a sexual nature,
    such that the sexual integrity of the victim is violated. The test to be
    applied in determining whether the impugned conduct has the requisite sexual
    nature is an objective one: "Viewed in the light of all the circumstances,
    is the sexual or carnal context of the assault visible to a reasonable
    observer" (
Taylor
,
supra
,
per
Laycraft C.J.A., at p.
    269). The part of the body touched, the nature of the contact, the situation in
    which it occurred, the words and gestures accompanying the act, and all other
    circumstances surrounding the conduct, including threats which may or may not
    be accompanied by force, will be relevant (see S. J. Usprich, "A New Crime
    in Old Battles: Definitional Problems with Sexual Assault" (1987), 29
Crim.
    L.Q.
200, at p. 204.) The intent or purpose of the person committing the
    act, to the extent that this may appear from the evidence, may also be a factor
    in considering whether the conduct is sexual. If the motive of the accused is
    sexual gratification, to the extent that this may appear from the evidence, it
    may be a factor in determining whether the conduct is sexual. It must be
    emphasized, however, that the existence of such a motive is simply one of many
    factors to be considered, the importance of which will vary depending on the
    circumstances.


[20]

The
    trial judge then briefly again reviewed the circumstances in which the shaving
    occurred, including that: the complainant had the hygiene problem; she was
    being teased at school; she wanted her mother to shave her pubic area but her
    mother refused and told her to ask her aunts; and instead she asked her father
    when her mother was not at home.

[21]

He
    then listed eight facts that were not in issue from the testimony of B.J.T.,
    the mother, or the complainant:

1)

The accused, using a
    shaving brush and shaving cream, shaved the pubic area of his daughter D.T. in
    the accuseds bedroom.

2)

J.T., D.T.s mother,
    was not at home but given her response when she discovered that her husband had
    shaved her daughter, the inference is that she would have forbid this pubic
    hair shaving action and without any doubt she would have prevented her husband
    from performing this action had she been home.

3)

The daughter desired
    this conduct from her father and expressed gratitude when it was over.

4)

Although she was told
    not to tell anyone by her father, B.J.T. was clearly in some distress (crying
    in the living room) and told his wife what had occurred when she returned home.

5)

J.T. indicated to her
    husband in response to her discovery of what he had done in shaving the pubic
    hair of their daughter that she would beat him with a baseball bat should he
    ever perform this act again.

6)

No sexual statements,
    words, or expressions were used by the accused, B.J.T.

7)

No sexual gratification
    was ever observed by D.T. or J.T. as a result of the actions of the accused,
    B.J.T. in shaving his daughters pubic area on this first occasion.

8)

The accused, B.J.T.
    would have had to touch his daughters vagina in order to perform this shaving
    activity.

[22]

The
    trial judge observed that doctors, nurses and other health care personnel could
    touch a childs or teenagers vagina without it being a sexual assault, as
    could parents changing diapers on a baby or applying cream to a young girls
    vagina. However, where a pre-teen or teenaged girl is involved, he stated that
    in no event would it be appropriate for a father to apply cream to his
    daughters vagina when it could be done appropriately in another way.

[23]

B.J.T.s
    trial counsel argued that in this case, the shaving was done out of love and
    affection as a caring act, not a sexual assault, by an unsophisticated, simple
    man.

[24]

The
    trial judge observed that the fact that B.J.T. is a simple man made the
    determination of guilt or innocence all the more difficult. However, he was
    satisfied beyond a reasonable doubt that:

[B]y any objective standard, this
    accused, this father, should not have shaved his daughters pubic area even if
    he believed subjectively that he was providing and administering a necessary
    hygienic act for his daughter to alleviate some obvious anxiety experienced by
    this same daughter with respect to her pubic hair.

[25]

He
    concluded by finding B.J.T. guilty of both sexual interference and sexual
    assault for the 2011 incident as well. The trial judge stayed the two sexual
    assault convictions based on the principle in
Keinapple
.

[26]

The
    matter was put over for sentencing and a pre-sentence report to September,
    2016.

(2)

Reasons for sentence

[27]

In
    the first five paragraphs and in paragraphs 45 and 46 of his reasons for
    sentence, the trial judge further explained his reasons for finding B.J.T.
    guilty of two counts of sexual interference and two counts of sexual assault.
    It was only in the reasons for sentence that he stated the basis for finding
    that B.J.T. had a sexual purpose, the specific intent required for sexual
    interference.

[28]

Dealing
    first with the sexual assault convictions, the trial judge explained that the
    defence of consent was not available because the complainant was under 16 years
    old, and the other components: an act of force and violation of the sexual
    integrity of the complainant were made out, regardless of the accuseds or the
    complainants reasons for doing the shaving.

[29]

With
    respect to the convictions for sexual interference requiring a sexual purpose,
    for the 2013 event, the trial judge stated that the comment B.J.T. made about
    the size of the complainants clitoris and his reaching inside the vagina to
    pluck a hair denoted an additional sexual purpose and an aggravating
    circumstance.

[30]

For
    the 2011 event, the trial judge stated that he concluded that there was a
    sexual purpose in the touching that occurred. He explained that B.J.T. should
    have looked to other means to help his daughter in order to avoid the
    inappropriate touching.

[31]

At
    the sentencing hearing, B.J.T. moved to have the trial judge declare the
    mandatory minimum sentence for sexual interference to be cruel and unusual
    punishment contrary to s. 12 of the
Charter
. In 2011, the mandatory
    minimum prison sentence was 45 days, but it was increased in 2012 to 1 year.

[32]

The
    trial judge set out the test and the two-step process for determining whether a
    mandatory minimum sentence is grossly disproportionate, provided by the Supreme
    Court in
R. v. Nur
,
2015 SCC 15, [2015] 1 S.C.R. 773. He first
    determined the appropriate sentences for the two sexual interference offences
    as a suspended sentence and a period of probation for the 2011 incident (though
    he ultimately imposed a sentence of 1 day and 12 months of probation) and 9
    months for the 2013 incident.

[33]

He
    then considered the proposed hypothetical question of whether the sentence of one
    year would be grossly disproportionate for the offence on the facts that
    occurred in the first incident in 2011, and found that in the unique
    circumstances of that first shaving to help his daughter with her hygiene
    problem, B.J.T.s low moral culpability made a one-year sentence grossly
    disproportionate and not justified under s. 1 of the
Charter
.

[34]

He
    therefore found that the one-year mandatory minimum sentence violates s. 12 of
    the
Charter
. While the trial judge did not make the same specific
    finding with respect to the original 45-day mandatory minimum, he did so
    implicitly by sentencing B.J.T. to only one day on the 2011 conviction
    concurrent to nine months for the 2013 conviction. There were also a number of
    ancillary orders.

Issues

[35]

B.J.T.
    raises three issues, two relating to the convictions and one relating to
    sentence.

1.

Did the trial judge err by finding that the shavings were done for a
    sexual purpose and therefore constituted sexual interference?

2.

Did the trial judge err in finding that the shavings constituted sexual
    assault?

3.

Did the trial judge err by imposing a sentence for the second incident
    that was harsh and excessive?

[36]

The
    Crown raises three issues relating to the sentences imposed:

1.

Did the trial judge err in holding that the mandatory minimum sentences
    for sexual interference are unconstitutional?

2.

Did the trial judge err by striking down the mandatory minimums, and
    failing to read in the mandatory minimum sentences mandated for the offences on
    summary conviction?

3.

Did the trial judge err by imposing sentences that were not reflective
    of the gravity of the offences?

Conviction appeal

(1)

Sexual interference

[37]

The
    offence of sexual interference under s. 151 of the
Criminal Code
is
    made out when the accused, for a sexual purpose, directly or indirectly touches
    the body of a person who is under 16 years old. It is a specific intent
    offence, meaning that the offender must specifically intend that the touching
    is for a sexual purpose. The offender may also have another purpose or reason
    for the touching, but if he or she also has a sexual purpose, the offence is
    made out.

[38]

B.J.T.
    correctly submits that in his reasons for conviction, the trial judge never specifically
    addresses the requirement that the touching be for a sexual purpose. However,
    in the reasons for sentence, delivered several months later, he does address
    the issue specifically.

[39]

B.J.T.
    submits that the reasons are insufficient for both incidents, but in addition,
    the finding of sexual purpose for the first incident constitutes an
    unreasonable verdict.

[40]

I
    will deal with the two incidents in turn, beginning with the second incident.

(a)

Sexual
    interference  the 2013 incident

[41]

In
    his reasons for conviction, the trial judge appeared to accept the Crowns
    position that because B.J.T. inserted his finger into the complainants vagina
    for a stated reason that was, at best, absurdly inappropriate, and made the
    comment that his daughter had a large clit, those two additional aspects of
    the second pubic shaving incident added a sexual connotation. The trial judge
    also relied on the fact that B.J.T. went ahead a second time to shave his
    daughters pubic area, knowing it would not be tolerated by his wife and how upset
    he was after the first time.

[42]

In
    the reasons for sentence, after discussing why what occurred amounted to sexual
    assault, the trial judge explained that the basis for the conviction for sexual
    interference included B.J.T.s comment about the size of his daughters
    clitoris and reaching in her vagina to pluck a pubic hair. The trial judge stated
    that these two factors denote an additional sexual purpose

[43]

While
    it is expected that a trial judge sitting alone will clearly include all of his
    or her findings in the reasons for conviction, because the judge is not
functus
    officio
until the sentence has been imposed, a court of appeal may look at
    the reasons for sentence as well as the reasons for conviction to understand
    the basis for conviction. See
R. v. Trobert
, 2000 SKCA 113, 119 Sask. R.
    224 at para. 11. See for examples:
R. v. Stewart
,
2017 ONSC
    4843 at paras. 27, 29, and 47;
R. v. Menkarios
,
2010 ONSC 5478
    at para. 56.

[44]

In
    his reasons for conviction, the trial judge addressed both offences for the
    second incident, sexual interference and sexual assault, and convicted on both,
    but without referring specifically to the subjective element of sexual purpose
    that is required for the offence of sexual interference and without identifying
    what evidence satisfied that element. However, in the reasons for sentence, where
    the trial judge addressed the offences separately, with respect to the offence
    of sexual interference, he stated that it was the two additional factors that
    denoted an additional sexual purpose. This court is entitled to assess both the
    reasons for conviction and for sentence to understand the basis for the
    conviction. I would therefore dismiss the appeal on the second incident
    regarding the conviction for sexual interference.

(b)

Sexual
    interference  the 2011 incident

[45]

On
    the first incident, the trial judge addressed both the sexual interference
    charge and the sexual assault charge together on the basis that the Supreme
    Court of Canada decision in
Chase
,
which deals with how to
    determine whether the impugned conduct in a sexual assault charge has the
    requisite sexual nature, provides the basis for determining the issue. In his
    reasons for conviction, he set out the list of eight factual findings, including
    that during the 2011 incident there were no sexual statements and no sexual
    gratification, although B.J.T. had to touch his daughters vagina to perform
    the requested pubic shaving.

[46]

He
    then observed that parents changing diapers or putting cream on a young girls
    vagina would not be a sexual assault from an objective standard, but that in
    the case of a pre-teen or teenaged girl, there was no instance where a father
    could apply cream to his daughters vagina, stating: Objectively, it would
    make no sense with a plethora of alternative solutions available to resolve
    this personal care need.

[47]

Trial
    counsel for B.J.T. argued that the shaving was done out of love and affection,
    by an objective standard a caring act and not a sexual assault. Trial counsel
    for B.J.T. also submitted that B.J.T. was unsophisticated with a simple view of
    life and his family. The trial Crowns position was that other solutions should
    have been sought in order to address the hygiene problem in a more appropriate
    way.

[48]

The
    concluding paragraph of the reasons for conviction shows a trial judge who
    clearly had concerns about B.J.T.s
mens rea
for the offence of sexual
    interference. He stated:

Given that the accused, is a simple man, makes this
    determination of innocence or guilt all the more difficult. Nevertheless, on
    balance I am satisfied beyond a reasonable doubt that by any objective
    standard, this accused, this father, should not have shaved his daughters pubic
    area even if he believed subjectively that he was providing and administering a
    necessary hygienic act for his daughter to alleviate some obvious anxiety
    experienced by this same daughter with respect to her pubic hair.

[49]

In
    the reasons for sentence, in para. 5, the trial judge explained his finding on
    the sexual interference count as follows:

As indicated, I also concluded that there was a sexual purpose
    in the touching (shaving) that occurred with respect to Count # 1. My
    conclusion was that I agree and accept what the accused's wife indicated to the
    accused that she had two sisters and they could ask them about what they could
    do to assist their daughter. Moreover, B. T. could have or should have looked
    to any other means short of his own action in shaving his daughter's pubic
    hair, as a way of avoiding this inappropriate touching.

[50]

B.J.T.
    submits that even reading both reasons as a whole, the finding that B.J.T. could
    have and should have sought other alternatives before shaving his daughter
    himself does not amount to a finding of sexual purpose. I agree. While it was
    possible for a trier of fact to infer that because there were other ways for
    the father to help his daughter out of the situation, the fact that he instead
    took the opportunity to shave her including touching her vagina, shows that he
    did it for a sexual purpose, the trial judge did not make that finding.

[51]

Further,
    the trial judge repeatedly states that he is using an objective standard. That
    standard is applicable when deciding whether there was a sexual assault, but in
    the case of sexual interference, where the specific intent is that the accused
    touched the complainant for a sexual purpose, a finding of specific subjective
    intent must be made.

[52]

Instead,
    the trial judge postulated that even if B.J.T.s subjective intent was to give
    his daughter help that she needed, he would still be guilty of the offence. That
    is of course incorrect in law, unless he also intended to touch her for a
    sexual purpose, which again, the trial judge did not say.

[53]

For
    these reasons, in the case of the 2011 incident, the sentencing reasons do not
    assist the court in understanding the trial judges basis for conviction. I
    would therefore allow the appeal on that count and set aside the conviction. I
    do not accept the submission that there is no basis on this evidence to find
    sexual interference for the first incident. The problem here is that the
    reasons of the trial judge do not make the required finding of subjective
    intent to touch the complainant for a sexual purpose and identify and explain
    the basis for it. I would therefore order a new trial.

(2)

Sexual assault

[54]

As
    the complainant is under 16 years of age and none of the statutory exceptions
    apply (ss. 150.1(2), 150.1(2.2), 150.1(2.3) 150.1(3), 150.1(4) and 150.1(6) of
    the
Criminal Code
), lack of consent is not an element of the offence of
    sexual assault and consent is not a defence. As there was touching of the
    complainants body, the only issue at trial was whether the touching was of a
    sexual nature that violated her sexual integrity.

[55]

To
    determine whether what occurred amounted to a sexual assault, the issue for the
    court is to decide: viewed in the light of all the circumstances, is the
    sexual or carnal context of the assault visible to a reasonable observer? The
    circumstances to be considered include [t]he part of the body touched, the
    nature of the contact, the situation in which it occurred, [and] the words and
    gestures accompanying the act... See
Chase
at p. 302. For sexual
    assault, a sexual purpose or motive is not required, but its presence or
    absence can be a factor in considering whether the conduct was sexual: see also
R. v. Marshall
,
2017 ONCA 801, at para. 53.

(a)

Sexual
    assault - the 2013 incident

[56]

In
    addressing the sexual assault count for the second incident in his reasons for
    conviction, the trial judge removed from his consideration both B.J.T.s
    comment about the size of his daughters clitoris and the fact that he put his
    finger into her vagina to pluck a pubic hair. It is unclear why the trial judge
    did this as those two factors form part of the circumstances. However, he
    framed the issue as follows: The second issue that arises from this trial is
    whether a fathers shaving of his daughters pubic area constitutes a sexual
    assault absent any suggestive sexual words used in the course of the shaving or
    absent any unnecessary touching of the daughters vagina such as the insertion
    of a finger in the vagina to remove a pubic hair?

[57]

He
    rejected the submission that this was not a sexual assault but a consensual act
    at the request of the daughter. He found that this argument was not even possible
    for the second incident when two years had passed since the first one, where he
    had cried afterward, his wife had been very angry, and it was obvious that
    there were other ways for his daughter to deal with the problem. He concluded
    that the second incident was entirely and thoroughly inappropriate and
    constitutes by any objective standard a sexual assault.

[58]

In
    the reasons for sentence, he stated that: the act of shaving of the pubic hair
    of the complainant, his daughter, was an act of force with the sexual integrity
    of the victim violated. Absent the issue of consent, I concluded that by all
    objective standards, this conduct would denote a sexual assault to any reasonable
    observer. He added that the fact that the daughter asked her father to do it
    did not affect the criminality of the conduct, as neither consent nor motive
    would remove the violation of her sexual integrity.

[59]

I
    see no basis to interfere with the trial judges finding of sexual assault. The
mens rea
for the offence is the general intent to touch the
    complainant. The test for determining whether the touching violated the
    complainants sexual integrity required the trial judge to consider all the
    circumstances and apply an objective standard. He considered the part of the
    body that was touched and the fact that B.J.T. knew the pubic shaving was
    inappropriate and that he should not do it. He made no error in his conclusion.
    I must also add that had the trial judge also considered as part of the
    circumstances the sexual actions by B.J.T. of putting his finger into the
    complainants vagina and commenting on the size of her clitoris, those two
    factors, which he referred to as aggravating in the reasons for sentence,
    would have been confirmatory of his conclusion.

(b)

Sexual
    assault  the 2011 incident

[60]

B.J.T.
    argues that the trial judge failed to refer to evidence that could have raised
    a reasonable doubt about the sexual nature of the first shaving incident, including
    the absence of any sexual utterance or gratification by him, as well as the
    fact that the complainant felt better about herself afterward, was grateful to
    her father, and had no emotional distress following the first incident.

[61]

I
    would reject this argument as it is belied by the factual findings, which
    included the complainants gratitude, and the lack of observed sexual
    gratification or utterances by B.J.T.

[62]

B.J.T.
    submits that few if any of the eight factual findings, reproduced above, could
    logically support the conclusion that his conduct was of a sexual nature or
    violated D.T.s sexual integrity. In my view, a number of them could: the fact
    that B.J.T. shaved his daughters pubic area in his bedroom (#1); the fact he
    did so at a time when D.T.s mother was not home (#2); the fact that B.J.T. told
    his daughter not to tell anyone (#4); and the fact that B.J.T. would have had
    to touch his daughters vagina to shave it (#8).

[63]

The
    trial judge referred to the leading case of
Chase
, and considered the
    circumstances surrounding what occurred. He appropriately applied an objective
    standard. His finding that shaving his 13 year-old daughters pubic area and
    touching her vagina violated her sexual integrity was open to him on the
    evidence.

Sentence appeals

[64]

The
    sexual assault charges were stayed and no sentence was imposed for them. As I
    would set aside the conviction on the first sexual interference charge and
    order a new trial, I will address only the sentence appeal relating to the
    second incident of sexual interference. B.J.T. seeks leave to appeal his
    sentence of nine months for the second sexual interference. The Crown appeals
    the finding that the mandatory minimum of one year contravenes s. 12 of the
Charter
,
    and seeks leave to appeal the sentence of nine months as inadequate to reflect
    the gravity of the offence.

[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 239 at 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 others 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] 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.

(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 Crowns 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.

(3)

Did the trial judge err by imposing a sentence that is not reflective of
    the gravity of the offence?

[80]

Both
    sides appeal the sentence. B.J.T. appeals the nine-month sentence imposed for
    the October 2013 conviction for sexual interference. He takes the position that
    the sentence is harsh and excessive in all the circumstances and that a
    non-custodial sentence should have been imposed. As part of its sentence
    appeal, the Crown asks the court to increase the sentence imposed to one year
    to reflect the gravity of the offences and to deter and denounce sexual crimes
    against children.

[81]

It
    is well-established that sentencing involves a highly individualized assessment
    by the trial judge to which significant deference is owed on appeal. An
    appellate court may only intervene in the sentence imposed at trial where there
    has been an error in principle, failure to consider a relevant factor or the
    erroneous consideration of an aggravating or mitigating factor that had an
    impact on the sentence, or where the sentence is demonstrably unfit. A sentence
    will be demonstrably unfit if it departs from the principle of proportionality:
    that a sentence must be proportionate to the gravity of the offence and the
    degree of responsibility of the offender. See
R. v. Lacasse
,
2015
    SCC 64, [2015] 2 S.C.R. 1089, at paras. 41, 44, and 53.

[82]

The
    sentencing process in this case was particularly difficult where the trial
    judge first had to determine whether a 45-day sentence and a one-year sentence
    were grossly disproportionate to the offence and the offender. In that context,
    the gravity of the offence against a child may appear to be minimized.
    Furthermore, in this case, the child was a teenager who asked her father to
    shave her pubic area. Again, that fact was argued as one that mitigated the
    offence.

[83]

However,
    sexual interference of a child is a very serious offence. The moral
    blameworthiness on the part of the adult is because it is the adults role to
    protect the child, not acquiesce where the child may not appreciate the
    impropriety of the proposed action because of its sexual aspect. Nor should the
    effect of sexual interference on the child be minimized. In
R. v. A.B.
,
2015 ONCA 803, 333 C.C.C. (3d) 283, at para. 45, I stated:

[T]he protection for children is not simply from sexual
    exploitation but from any sexual contact or the invitation to sexual contact
    with adults. Parliament viewed the protection to be necessary because of the
    inherent power imbalance that undermines consent, and because of the physical
    and psychological consequences of a sexual encounter between a child and an
    adult stemming from that imbalance.

[84]

In
    his reasons for sentence the trial judge was alive to these considerations and
    to the gravity of the offence. He referred to this courts decisions in
R.
    v. Woodward
,
2011 ONCA 610, 107 O.R. (3d) 81, and in
R. v.
    D.(D.)
,
163 C.C.C. (3d) 471 (Ont. C.A.), where the court focused on
    the physical and psychological violence involved in sexual abuse of children,
    and to the historical evolution of (increasing) sentences for sexual offences
    against children.

[85]

At
    para. 26 of his reasons for sentence, the trial judge recognized the impact on
    the daughter in this case:

To put this psychological impact in
    some context, prior to these offences, the complainant, D. T., indicated,
    through her victim impact statement, that her father was the most important
    person in her life. She is now apprehensive when it comes to physical contact
    with anyone and at the same time she is saddened by her father's absence in her
    life.

[86]

The
    trial judge also took account of the circumstances of B.J.T. including the view
    of the probation service that he is not a high risk to reoffend, as well as the
    mitigating and aggravating factors. One of the mitigating factors is that
    B.J.T. is a simple man with limited intellectual abilities who appeared to be
    assisting his daughter.

[87]

B.J.T.
    objects to the trial judge treating as an aggravating factor under s.
    718.2(a)(iii) of the
Criminal Code
the fact that he was in a position
    of trust to his daughter. He argues that this was not an abuse of trust in the
    factual circumstances. I do not agree. The fact that a child consents or even
    initiates the activity does not remove the trust relationship or the obligation
    of the adult to decline the invitation. In
R. v. Audet
,
[1996]
    2 S.C.R. 171, at p. 188, in discussing the crime of sexual exploitation (s. 153
    of the
Criminal Code
), the Supreme Court endorsed the following quotation
    from
R. v. Hann

(1990), 86 Nfld. & P.E.I.R. 33
    (Nfld. S.C.)
: The implication of the wording of s. 153 is that notwithstanding
    the consent, desire or wishes of the young person,
it is the adult in the
    position of trust who has the responsibility to decline having any sexual
    contact whatsoever with that young person
. (Emphasis added by the S.C.C.)

[88]

In
    arriving at the two sentences, the trial judge viewed the first incident as
    warranting a very minimal sentence because it did not appear to have had a
    negative effect on the daughter and would have been buried within the dynamics
    of this particular family had the same thing not occurred a second time. When
    it did, B.J.T. certainly knew better, he had been warned and threatened by his
    wife, he knew his daughter could receive assistance in another way, and he took
    advantage of the situation by commenting on the size of his daughters clitoris
    and putting his finger in her vagina, indicating that he had a sexual purpose.

[89]

The
    trial judge came to his conclusions in paragraphs 39 and 40 of his reasons for
    sentence:

Looking at the totality of the circumstances and in particular
    the genuine concern that was raised by the accused's daughter about her hygiene
    difficulties; the failure of the complainant's mother to suggest or engage in
    some alternative remedy when this subject first was broached; the remorse shown
    by the accused thereafter; the lack of negative feedback or emotional trauma
    displayed by the complainant, D. T. after the first incident; the personal
    circumstances of the accused, B. T. including his own background of being
    bullied and demeaned; the provisions of s. 718 and in particular those sections
    that reflect denunciation and deterrence when it involves children; the lack of
    perceived sexual gratification; and finally the absolute uniqueness occasioned
    in the sexual touching, leads me to conclude that a suspended sentence and a
    period of probation is the sentence that I should impose with respect to Count
    # 1.

With respect to Count # 3, given
    that the accused was aware that the shaving of his daughter's pubic hair was
    not appropriate conduct as reflected both by his wife's earlier reaction, and,
    I infer by any common sense understanding of the nature of this activity upon
    his now 15 year old daughter, and the reality that the accused made both an
    inappropriate comment as well as digital penetration, I conclude that an
    appropriate period of incarceration would be 9 months
.

[90]

In
    my view neither side has pointed to an error that affected the sentence or made
    it demonstrably unfit. To the contrary, the sentence respects the principle of
    proportionality by reflecting the gravity the trial judge perceived in the
    incident, the need to protect the child and to take into account the
    circumstances of the offence and the offender. I would not interfere with the
    sentence imposed for the 2013 sexual interference charge.

[91]

As
    I would set aside the conviction for sexual interference on the 2011 incident,
    I would lift the stay of the sexual assault conviction for that incident and
    transfer the sentence of one day concurrent to that conviction.
[2]
All other aspects of the sentence would remain in place.

Result

(1)

Conviction appeal

[92]

I
    would allow the appeal against the conviction for sexual interference for the
    2011 incident, set aside the conviction and order a new trial. I would dismiss
    the appeal against the other convictions. I would lift the stay of the
    conviction for sexual assault for the 2011 incident.

(2)

Sentence appeals

[93]

I
    would dismiss the appeals against sentence. I would impose the one day
    concurrent sentence for the conviction for sexual assault for the 2011
    incident.

Released: K.F. September 6, 2019

K. Feldman J.A.

I agree. David M. Paciocco
    J.A.

I agree. B. Zarnett J.A.





[1]

The mandatory minimum for sexual interference (s. 151(a) of
    the
Criminal Code
) has also been held to be unconstitutional by the
    Ontario Superior Court of Justice in a number of cases, in addition to the case
    under appeal. Those include:
R. v. M.L.
,
2016 ONSC 7082, 367
    C.R.R. (2d) 268;
R. v. S
., 2017 ONSC 1869, 378
    C.R.R. (2d) 282
;
R. v. Hussein,
2017 ONSC 4202;
R.
    v. Ali
, 2017 ONSC 4531, 387 C.R.R. (2d) 209
;
R.
    v. M.
, 2018 ONSC 746
; and
R. v. H.L.
, 2018
    ONSC 1026.



[2]

The mandatory minimum sentence for s. 271 of the
Criminal
    Code
when the complainant is under 16 years old was implemented in 2012. As
    there was no mandatory minimum in place at the time this offence was committed
    in 2011, that mandatory minimum does not apply and its constitutionality need
    not be addressed here.


