R v K.K.

R. v. K.K.

2020 ONSC 7198
Ontario Superior Court of Justice — Justice C.F. de Sa | November 26, 2020

Background

K.K., a 60-year-old man, was convicted of sexual interference and invitation to sexual touching involving a young girl between ages 10-12. The abuse occurred between 2013-2014 when the victim would visit K.K.'s house to see his family — he was the grandfather of her friend. K.K. would come up behind the girl and grope her breasts for about 30 seconds at a time, repeatedly over two years. On one occasion, he thrust his pelvis against her body for about a minute while she was in bed. He also forced her to touch his penis over his clothes for about 15 seconds.

The Crown sought 18-23 months in custody, arguing K.K. was in a position of trust and the abuse significantly impacted the victim's life. The defence argued for a conditional sentence, pointing to K.K.'s age, health problems, and COVID-19 risks in custody.

Issues

1. What was the appropriate sentence for these sexual offences against a child?
2. Should COVID-19 health risks justify a conditional sentence instead of jail time?

The COVID-19 Sentencing Consideration

Justice de Sa acknowledged that sexual offences against children normally require jail sentences for denunciation and deterrence, citing R. v. Friesen which emphasized that courts must impose sentences reflecting the "contemporary understanding of sexual violence against children." However, the judge found these were "exceptional times" due to the COVID-19 pandemic.

K.K. suffered from poorly controlled diabetes, chronic renal disease, vascular disease, and neurological problems causing weakness. The judge referenced R. v. Hearns, noting that custodial institutions pose higher infection risks due to "cramped quarters, shared sleeping and dining facilities, lack of hygiene products" making social distancing impossible. The court found that while COVID-19 considerations shouldn't make sentences disproportionate to the gravity of the offence, they could justify a sentence "outside the normal sentencing range."

The Conditional Sentence Decision

The judge imposed a conditional sentence of 2 years less one day to be served in the community, with strict house arrest for the entire duration. Recent Court of Appeal decisions in R. v. Sharma had struck down restrictions making conditional sentences unavailable for offences with 14-year maximums, making this option legally available again.

Additional conditions included: 2 years probation, no contact with anyone under 16 except with approved supervision, staying 100 metres from the victim's residence/school/work, mandatory counselling, lifetime sex offender registration, 10-year weapons prohibition, and a 10-year section 161 order restricting contact with children and access to places where children gather.

Key Takeaway

COVID-19 health risks can justify community sentences even for serious crimes that would normally require jail time.

This case shows how exceptional circumstances — like pandemic health risks for vulnerable offenders — can push sentences outside normal ranges while still achieving deterrence and denunciation through strict community conditions.