R v D.L.

R. v. D.L.

2018 ONSC 3409
Ontario Superior Court of Justice — Bielby J. | June 4, 2018

Background

D.L., a 50-year-old professional engineer, was convicted of sexual assault and sexual interference involving his common-law spouse's six-year-old niece. The incident occurred between June 2006 and July 2008 at D.L.'s home while the victim was playing computer games in his office. D.L. was in a position of trust as a family member. He placed the child on his lap, undid her belt, slipped his hand down her underwear, and stroked her vagina without digital penetration. When the victim went to the bathroom to escape, she was forced to return and the touching was repeated. Later that day, D.L. told her to keep what happened "our little secret."

The victim didn't disclose the abuse until February 2015, nearly nine years later, when her sister confronted her about self-harming behavior. The case proceeded to trial where D.L. was found guilty on both charges. At sentencing, the Crown requested the sexual assault charge be stayed and D.L. be sentenced only on sexual interference.

Issues

1. Whether D.L. should receive a conditional sentence (house arrest) or imprisonment
2. Whether minimum sentence provisions applied and their constitutional validity
3. What sentence was proportionate given the circumstances and case law

The Sentencing Analysis

Defence counsel argued for a conditional sentence, relying on Charter section 11(i) which provides that if punishment changes between commission and sentencing, an offender gets the benefit of the lesser punishment. When the offence occurred, sexual interference carried a 45-day minimum sentence, but currently carries a one-year minimum. Several trial courts had struck down the current one-year minimum as unconstitutional.

However, Justice Bielby determined the appropriate sentence first, finding that if it exceeded 45 days, the constitutional arguments became moot. The judge emphasized that section 718.01 of the Criminal Code requires courts to give "primary consideration" to denunciation and deterrence when sentencing for offences involving children under 18. The court found aggravating factors included the victim's young age, D.L.'s position of trust, and his lack of remorse. Mitigating factors included his clean criminal record and productive community membership.

Reviewing case law, the judge noted that even single incidents of external sexual touching of children typically result in 6-15 months imprisonment, especially with breaches of trust. The court rejected the conditional sentence argument, finding that general deterrence and denunciation could only be properly served through actual imprisonment.

Key Takeaway

Courts will prioritize denunciation and deterrence over personal circumstances when sentencing sexual offences against children, even for first-time offenders.

This case demonstrates that child sexual offences are treated with exceptional seriousness by the courts, and even brief incidents involving positions of trust typically result in significant jail time regardless of an offender's otherwise good character or personal circumstances.