Appellant supposed to give 15-year-old girl guidance, but started sexual relationship with her
A sentencing range of five to nine years is considered the norm for sexual offences against children even when there is only one instance of sexual violence, the Ontario Court of Appeal has ruled.
The appellant in R. v. Solomon, 2022 ONCA 706 was referred to by some as a “reverend,” “shepherd,” and “prophet” of the Celestial Church of Christ. While a “prayer warrior” in one of the Celestial Churches, he met the then-15-year-old complainant when she and her mother took refuge in the church.
The appellant had the task of giving guidance to the complainant. He started a sexual relationship with her soon after meeting and she gave birth to their daughter when she was 16. The complainant lived with him and had two more daughters while they were cohabiting. They ended their relationship when she was 21.
The trial judge convicted the appellant of sexual exploitation, sexual assault, and uttering a threat of death or bodily harm. She sentenced him to five years for the sexual exploitation, six months for the sexual assault, and 90 days for uttering a death threat, all to be served concurrently. She relied on R. v. D. (D.), 2002 CanLII 44915, and found the appropriate sentence to be mid-to-upper-single-digit years of imprisonment.
The judge identified the mitigating factors as the appellant’s stable occupation and the church community’s support. She noted that he had no criminal record and no history of mental illness, substance abuse, or of being a victim of abuse. However, she found that he had previously received a conditional discharge with probation after being found guilty of assault against his children.
The judge then considered the aggravating circumstances, which included the manner and circumstances of the commission of the offence. She determined that there was recurrent intercourse and that the sexual exploitation’s nature fell at the serious end of the spectrum.
The appellant abandoned the conviction appeal but brought a sentence appeal proposing a sentence of 24 to 36 months. He alleged that the judge made two errors in principle when she misapprehended the evidence about when the first pregnancy occurred and when she relied on his lack of remorse as an aggravating factor.
The appellant argued that he was being punished for a crime he did not commit for two reasons. First, the judge allegedly misunderstood the duration of the exploitation and increased the sentence due to this expanded time frame. Second, the judge supposedly relied on the effects of the pregnancy, not of the exploitation, when considering the impact on the victim.
The appellant presented fresh evidence outlining his health problems and stating that he would most probably need surgery for ongoing ambulatory issues.
Imposed sentence fit: appeal court
The Ontario Court of Appeal dismissed the conviction appeal as abandoned and dismissed the sentence appeal.
First, the appellate court ruled that the judge knew about the duration of the exploitation. The judge did not rely on the pregnancy to locate the appellant’s culpability on the sentence range, the court said.
The Court of Appeal disagreed with the appellant’s position that the pregnancy should be detached from the exploitation. The appellate court explained:
- it was naive to argue that the pregnancy and the exploitation were not intrinsically connected, even if the pregnancy did not happen during the exact time that the exploitation occurred
- the exploitation’s effects did not stop when the exploitation period ended
- the impact of the exploitation, like the pregnancy, contributed to a lost youth, years of misery, and ongoing trauma
Next, the appellate court disagreed that the judge considered the appellant’s lack of remorse an aggravating factor. Instead, the judge addressed the appellant’s comments at the close of sentencing submissions and gave an accurate description that he showed no insight or remorse, the court said.
Lastly, the Court of Appeal admitted the fresh evidence but found that it could not reasonably affect the sentence. The appellate court noted that the judge knew about the appellant’s physical afflictions and that correctional authorities had a statutory duty to care for inmates and to provide essential health care.