Court Information
Between: Her Majesty the Queen
— And —
D.A.J.
Before: Justice D.P. Cole
Heard: June 3, 2014; July 27, 28 & 29, 2015
Reasons for Judgment Released: September 22, 2015
Counsel:
- N. Fassler, counsel for the Crown
- L. Adler, counsel for the accused
Reasons for Sentence
Facts
1On June 3, 2014 the offender elected trial in provincial court and entered pleas of guilty to charges of sexual misbehaviour with four children whose grandmother was at that time in a common law relationship with him. These charges are as follows:
Between and including October 9, 2003 and October 19, 2011 did commit a sexual assault on J.S. (born […] 1997);
Between and including September 1, 2008 and December 31, 2010 did commit a sexual assault on M.S. (born […] 2000);
Between and including June 30 and July 2, 2013 did commit a sexual assault on R.S. (born […] 2004);
Between and including September 27, 2006 and April 30, 2013 did commit a sexual assault on J.S. (born […] 2002).
2Crown counsel sought and received the permission of the Attorney General of Ontario to apply (a) to have the offender designated by me to be a long term offender (Code s. 753.1(1)), and (b) for an order that he be supervised in the community for ten years.
3An Agreed Statement of Facts (ASF) was filed to obviate the need to call any of the children as witnesses. (I have slightly edited it to prevent any possible identification of their names or identities):
"The accused, D.J., was in a common law relationship with the victims' grandmother, M.W., for 17 years. The victims referred to the accused as "Grandpa D.J.."
The victims are R.S. and M.S. (who are sister and brother), and their cousins J.S. and J.S. (who are brothers). R.S. and M.S.'s father and J.S. and J.S.'s father are brothers.
The accused lived with the victim's grandmother [at various addresses] in Toronto. The accused and the victims' grandmother would babysit the victims at their home and at the victims' homes in Toronto and [another location] in Ontario.
Count 1 - Between October 9th, 2003 and October 9th, 2010, while he was between the ages of 6 and 13, J.S. would visit the accused and his grandmother's apartment. When he would visit, J.S. would sleep in the same bed as the accused while his grandmother would sleep on the couch. These visits would occur approximately once or twice a month. On multiple occasions during this time period, J.S. would wake up during the night to find the accused's hands on his buttocks, then move on to rubbing his genitals and kissing J.S.' face and ears. The accused would eventually stop and tell J.S. he could go to sleep. There were also times when the accused would come out of the washroom and expose himself to J.S. There were also times when the accused would climb on top of J.S.' back when he was lying down watching TV and grind his genital area into J.S.' buttocks while also kissing J.S.'s face and feeling his sides. There were also times when J.S. would sit on the accused's lap, and the accused would touch his legs and his face.
Sometime between October 9th, 2009 and October 9th, 2011, J.S. and the accused were walking in a wooded area of [a Toronto park]. The accused grabbed J.S.'s buttocks and then grabbed J.S.' crotch. The accused asked J.S. to take out his "cock." J.S. told him he didn't want to and told the accused that it was inappropriate. At this point the accused stopped. The accused gave J.S. a look, the look J.S. remembered the accused always giving him after he touched him, a look that J.S. felt was a plea not to tell anyone. This was the last incident of the accused sexually assaulting J.S.
J.S. first disclosed this abuse to his girlfriend in the summer of 2013. Then in the first week of September 2013 J.S. and his cousin were discussing the accused, when it came to light that both had been sexually assaulted by the accused. J.S.'s cousin then confided in his father and police were called. J.S. told police the accused's sexual assaults happened to him for as long as he could remember, that it felt like it had been going on even when he was younger but that he had blocked it out. J.S. told police that his very first memory of abuse was of being in the backyard of his grandmother's house before the accused lived with her, and the accused touching his genitals.
Count 2 - Sometime between September 1, 2008 and December 31, 2010, M.S. and the accused were alone at M.S.'s home in [another location in Ontario] watching television. M.S.'s grandmother was upstairs at the time. In the course of play fighting, M.S. and the accused were on the floor with the accused on top of M.S. with his stomach touching M.S.'s body. The accused slid his hand over M.S.'s shorts touching his buttocks. The accused then asked M.S. to touch his "cock." M.S. refused.
In the first week of September 2013, M.S. and his cousin were discussing the accused, when it came to light that both had been sexually assaulted by him. M.S. then confided in his father and police were called. In his statement to police, M.S. indicated that he believes that the accused had sexually assaulted him when he was younger on a visit to the accused's apartment with his cousin J.S. M.S. described being there for the night but could not remember what the accused did or said to him.
Count 3 - Sometime between June 30 and July 2, 2013 the accused and his common law partner were babysitting R.S. and M.S. at their home [in another location in Ontario]. While their parents were away R.S. asked the accused to come downstairs and play with her. R.S.'s grandmother remained upstairs on the couch. R.S. and the accused played their usual game of "monster" which entailed the accused chasing and throwing R.S. around in the dark. At one point when the victim was on the ground the accused grabbed both sides of her shorts and proceeded to pull her shorts down. The accused pulled her shorts and underwear down until her vaginal area was exposed. The victim pulled her underwear and shorts up and ran upstairs to her room. The accused came up and asked the victim to go to the store to get ice cream. She said no. He returned with ice cream for her.
R.S. did not disclose this to her parents until the end of August 2013.
Count 4 - Between September 27th, 2006 and April 30th, 2013, J.S. was sexually assaulted by the accused on numerous occasions, while J.S. was visiting the accused and his grandmother. All of the assaults occurred while J.S. was alone with the accused in the accused's room. Most of the assaults involved J.S. sleeping in the accused's bed and the accused using this opportunity to sexually assault J.S. During the assaults, J.S. would be on his side facing away from the accused. The accused would put his chest against J.S.' back and would reach around J.S. and slide his hand down J.S.' pants. The accused would then rub J.S.' penis with his hand, until the accused got tired and fell asleep. These assaults occurred almost every time J.S. stayed over at his grandmother's home, which was usually one to two times a month. The assaults began when J.S. was 4 or 5 years old and continued until April 2013. J.S. had not seen the accused between April 2013 and the date the accused was arrested.
Sometime between January 1st, 2011 and December 31st, 2012, J.S. was visiting the accused and his grandmother for the weekend. While at his grandmother's house, J.S. was in the accused's bedroom and the accused asked J.S. to touch the accused's penis. J.S. refused to touch the accused's penis, so the accused did not push J.S. any further.
Sometime between November 1st, 2011 and January 31st, 2012, J.S. was visiting the accused and his grandmother for the weekend. While at his grandmother's house, J.S. heard a crashing noise from outside. J.S. went to the window in the accused's bedroom to see what had happened, as the accused's bedroom window overlooks [a highway in Toronto]. While looking out the window, the accused approached J.S. from behind. The accused reached in front of J.S. and slid his hand down the front of J.S.' pants. The accused placed his hand on J.S.' penis, on top of J.S.' underwear. The accused held his hand on J.S.' genitals between 5 to 8 minutes before J.S. said he had to use the washroom and left the room.
The last time J.S. was sexually assaulted was sometime between March 1st, 2013 and April 30th, 2013. J.S. was visiting the accused and his grandmother for the weekend. J.S. was ready for bed and went to lay in the accused's bed. The accused followed J.S. and also went to lay in the bed. As J.S. was laying on his side in the bed, facing away from the accused, the accused slid his right hand underneath J.S. and down J.S.' pajama pants. The accused positioned his chest against J.S.' back and began stroking J.S.' penis. J.S. was not wearing any underwear and the accused's hand was making direct contact with J.S.' penis. The accused stroked J.S.' penis for 15 to 20 minutes before the accused grew tired and turned over and fell asleep.
J.S. found out that his brother and cousins had also been sexually assaulted by the accused and that the accused had been arrested. J.S. informed his parents that he had also been sexually assaulted by the accused and his parents brought him to 22 Division to report the assaults."
(Although J.S. never disclosed this to police, the accused admitted to police that he performed oral sex on J.S. on multiple occasions. The accused also admitted showing J.S. adult pornography in the hopes that it might encourage J.S. to have sex with the accused).
Impact on the Victims
4Three of the four children filed written Victim Impact Statements (VIS). They were present in court when the father of two of the children read his children's VIS into the record, and Crown counsel read in the VIS of the third child. Each in their own way described continuing feelings of embarrassment that these intimate assaults had been committed on them. They indicated that they were particularly "hurt and scare[d]" when they realized that their siblings and cousins had also been abused, sometimes while they were asleep in the next room. They all described how they have continuing difficulty trusting others; the young girl wrote: "I feel that I need to be extra careful around people when my parents aren't home". The oldest boy described ongoing feelings of isolation, severe depression, anxiety disorders and panic attacks.
5The father of two of the children filed and read his VIS into the record. In addition to describing feelings very similar to those of all the children, he indicated that he now suffers from clinical depression and severe anxiety, and that he is "medicated just to function". He also wrote that he believes his "illness played a role in the break-up of my marriage [in 2014]". He summed it up well when he wrote:
"Life for my family has changed forever. We will never forget the innocence this man has stolen from my children and my nephew, and the mental anguish we have all endured and will continue to endure for the rest of our lives".
6Without in any way intending to minimize the victims' suffering, defence counsel filed letters of apology written by the offender to the children. In these letters he indicates that he is "truly sorry for my sins against you", and that he "promise[s] to get all the necessary help I need from the court system…[so] I will never reoffend or hurt any children in the future". Crown counsel properly accepted that this is evidence of an expression of remorse on the offender's part.
The Psychiatric Evidence
7As the offender had early instructed counsel that he wished to be as co-operative as possible throughout the assessment process, this case was able to proceed on the basis of a single assessment report, prepared by Dr. Mark Pearce, a forensic staff psychiatrist at the Centre for Addiction and Mental Health (CAMH). In addition to being provided with the Agreed Statement of Facts (ASF), a print out of the offender's previous criminal record and police synopses underlying some of the various convictions, and results of phallometric testing conducted at CAMH during the assessment process, Dr. Pearce interviewed the offender over a four-hour period.
8The offender, now 65 years old, described that he was born in Toronto to parents who had a stable marriage. He told Dr. Pearce that he is the second born in a sibling of four. In a letter to counsel the offender's older sister indicated that while there is presently little contact between her and her brother, at an earlier stage in her life she stepped in to act as a surrogate mother to the offender's child, because the mother of the child died suddenly when the child was 8 years old. She described her brother as having limited intelligence ("a failure to thrive child"), as a result of which he did not complete high school, and had limited work success. She further indicated that "D.J. always needed help around life skills [and] finances. [Because of this] father set up a trust fund [for him] which I am responsible for".
9I pause in the narrative to indicate that, unlike many mentally challenged offenders who are subject to DO/LTSO applications, at no point in his report did Dr. Pearce articulate any concern about the offender's intellectual capacities: though he did not arrange for psychological testing to be conducted to assess the offender's cognitive abilities, he considered that: "he impressed as possessing average intellectual abilities". Dr. Pearce thus does not appear to share the views expressed by the offender's older sister.
10I find it noteworthy that the offender admitted to Dr. Pearce that he had "fond[led] his [younger] sister over the span of a year or two, starting at her age of 12. He was never charged criminally for same as she never said a thing [until] after Mr. D.J. was charged with the index offenses". This likely explains why, in addition to the letters of apology written to the child victims of these offences, he concurrently wrote to his sister apologizing for what he did to her over 40 years ago.
11After dropping out of school in Grade 11, the offender obtained employment at a factory. Over the ensuing decades he worked at "10 or 12 full-time jobs that lasted up to several years…I would get tired of working somewhere and would move on". He admitted to being terminated from two of these places of employment, one "for not doing the job as I should have been doing". As for the other termination, which occurred in 2010 after seven years of steady employment as a shipper/receiver, he told Dr. Pearce that he was accused of misappropriating some property, which he denied; however, he acknowledged that he had been viewing (adult) pornography at work, which led to the employer's computer contracting a virus, "which crashed the system. I admitted to doing that. They were right to get angry about that". The offender told Dr. Pearce that the result was that he was laid off, rather than fired. (As he was 62 at the time, he decided not to seek further employment).
12The offender told Dr. Pearce that he voluntarily contacted a psychiatrist at some point during the 1970s "as I was having the same sexual problem [as now]…There was an incident, I drove past a 12 year-old and got real turned on. I grabbed her and was going to take her clothes off but she gave me this weird look so I just left her. But she got my licence plate number. Smart kid, stupid move on my part". Dr. Pearce attempted to locate medical records that had been created at that time, but was told that charts from that era had been destroyed. When he asked the offender what he recalled of the assessment outcome, Mr. D.J. indicated that he did not believe he had been diagnosed with a mental disorder or paraphilia, and that no further psychiatric treatment was recommended.
13Other than the index offences, the offender has two convictions for offences involving elements of sexual misbehaviour with children. The first dates from August 1970, when he was charged with indecently assaulting a female in Toronto. Given that 45 years have elapsed since the incident, it is not at all surprising that Toronto Police Service (TPS) records do not contain "official details of the offence". The offender's recollection of the incident was that he approached a "15 or 16" year-old on the street. He recalled being aroused by her "school girl outfit….I was intending to have my way with her [but] she screamed at me…and took off. A taxi driver saw me and went after me…the cops saw me and pulled me over and said there was a suspicion of assault".
14There must have been more to this incident than the offender recalls, because, on his recital of the facts to Dr. Pearce, no assault is made out. Nevertheless, the accused pleaded guilty about a year later to a reduced charge of common assault. Sentence was suspended and he was placed on probation for a year. Interestingly, regarding this offence the offender told Dr. Pearce: "[o]bviously I have a problem. I didn't seek help after that and I'm surprised that they didn't make me. I should have".
15Nearly seven years later the offender committed the offence that apparently led to his self-referral to a psychiatrist. According to TPS records:
"The victim was a 12 year-old female not known to Mr. D.J.. On the date in question, namely September 27, 1977, Mr. D.J. drove past the girl who was waiting for her school bus. She was in a "deserted" area and Mr. D.J., after driving past her, turned his vehicle around. The victim approached him and asked if he was looking for something. He stated to her, "I'm looking for you" and he proceeded to grab her and drag her into a ditch. He got on top of her and touched her thighs and legs with his hands. He instructed her to remove her pants "honey", to which the victim replied, "Don't be stupid! Why are you doing this to me? I know how feel (sic), just get out of here… My bus is coming, you better leave". Mr. D.J. got off of her, stated, "I can't do it", and entered his vehicle, leaving the girl in the ditch. She made note of his license plate and he was arrested. To police, he "admitted to the offense" on arrest and informed that he was "mildly sexually aroused at the time. I just wanted to feel and see her body but I also thought I could get away with it". He eventually pled guilty to the lesser offense of common assault.
16(In June 1992 the offender was convicted of another assault, for which he was fined $250. TPS file information in relation to this offence is non-existent, nor could the offender recall details when asked by Dr. Pearce. Given the fact that a financial penalty was imposed, I think it reasonable to assume that this offence had no sexual content).
17A TPS "Threat Assessment" provided to Dr. Pearce additionally lists a 1985 charge of assault of which the offender was acquitted, an admission by the offender that he had come to the attention of the police when he once attempted to "pick up" a stranger teenager, as well as a minor offence under the Highway Traffic Act. Even assuming that there was some validity to these allegations, Dr. Pearce did not find these to be of assistance in formulating his opinion in this case. He similarly considered irrelevant an allegation that, while in custody awaiting disposition of this case the offender had "grabbed the balls" of another prisoner. With this I agree.
18Phallometric testing conducted as part of Dr. Pearce's assessment indicated that: "Mr. D.J.'s phallometric results indicated bisexual pedohebephilia (an erotic preference for pubescent and prepubescent boys and girls)".
19Based on his interview with Mr. D.J. as well as information made available from other sources, Dr. Pearce concluded that it was "not my opinion that this gentleman suffers from a major mental illness, such as schizophrenia or bipolar affective disorder. He has never been diagnosed with such a condition and he has not struggled with his mood or attempted to harm himself. In addition, he has not abused alcohol or illicit drugs".
20Dr. Pearce then turned his attention to what is at the heart of this case, namely whether this offender can be diagnosed as having a paraphilia (deviant sexual preference). He writes:
"Paraphilias describe a sexual preference for an inappropriate sexual object or activity. Sexual paraphilias may cluster together, and multiple (as opposed to single) paraphilias are common. Whether an individual with paraphilias expresses that deviant sexual interest depends on a variety of factors, including the degree of psychological and social stress that an individual is under, the ability to cope and adapt to that stress, the presence of alcohol or substance abuse, the presence of a concurrent antisocial personality disorder or psychopathy (which, in the absence of significant conscience development, will tend to reduce the resistance to acting out on their aberrant sexual drive), and the presence or absence of treatment.
The diagnosis of a paraphilia may be made by any one of three means. An individual may be diagnosed as paraphilic when they show a paraphilic sexual preference on phallometric testing, in a laboratory with published, or available, sensitivity and specificity figures with respect to their stimulus set, and where there is some evidence of activity or fantasies consistent with the paraphilia. An individual may also be diagnosed as paraphilic if they admit to, or acknowledge, deviant sexual fantasies. Finally, a person may be diagnosed as paraphilic when they engage in behaviour that cannot reasonably be explained by any other diagnosis or diagnoses.
In this case, phallometric testing revealed pedohebephilia. Mr. D.J. admitted to deviant fantasies in that regard and his pattern of offending behaviour clearly suggests a pedohebephilic preference.
In addition to a sexual interest in children, Mr. D.J. admitted to coercive sexual behaviours in the past. He has been criminally charged for same and he is aroused by thoughts of raping women. Information obtained by police from his tablet [computer] is also consistent with such fantasies. While he denied an interest in other paraphilias, including an interest in sadism, he meets [the] criteria for a coercive sexual preference, technically a paraphilia not otherwise specified (NOS). Despite being aroused by such activities, he has not, to my knowledge, fulfilled his fantasy though certainly he has taken steps towards same.
A non-consenting, coercive sexual preference denotes a primary sexual preference for sexually arousing fantasies, urges or behaviours involving non-consensual sex with other individuals. This is sometimes referred to in forensic psychiatry as a "rape preference"."
21Dr. Pearce further concluded from an assessment of the offender's characterological structure "that "while Mr. D.J. possess certain antisocial personality traits (such as a lack of empathy, some impulsivity and a willingness to violate the rights of others), he does not meet the full criteria for a personality disorder".
22To supplement his clinical evaluation, Dr. Pearce administered three well-known (and well validated) actuarial risk assessment tools – the PCL-R, the SORAG and the Static-99R – to assess the offender's likelihood of future sexual offending. On all three instruments the offender scored "low" or "moderate". He concluded:
"Overall, I would conclude that Mr. D.J. is at moderate risk of future sexual offense, should he have access to a child. While the aforenoted actuarial tools suggest his risk may be somewhat lower, he admitted that he has not had any age-related reduction in his libido, which is uncommon. Most pedophiles are much less likely to re-offend in their seventh decade of life though in this case, one cannot assume that Mr. D.J.'s libido or interest in children will fade or diminish with time.
In addition to speaking to the probability of recidivism, risk assessment also entails addressing issues of imminence, frequency, and severity of re-offense. In these domains, we are left with clinical judgment alone. In my opinion imminence and frequency are "live" variables should this gentleman have any access to a child. That is, he continues to endorse paraphilic fantasies and he seemingly offended quite frequently in the past, when given access to children. With respect to the severity of his offending behaviour, his conduct with one male victim was towards the more serious end of the spectrum. Thus overall there is, in my opinion, the potential for him to commit another serious sexual offense should he be in close proximity to a possible victim. His interest in coercive sexual activity is also quite concerning, though he has never fully acted on his desires in this regard. Of note, I cannot exclude the possibility that he may rape a child or woman in the future. It is also possible that he could sexually assault a child not known to him though this too seems less likely in looking at his pattern of offending.
In taking into account the aforenoted actuarial and clinical risk assessment in addition to Mr. D.J.'s diagnoses and PCL-R score, it can be concluded that he is in a moderate risk category for sexual recidivism, if he has access to a potential victim."
23Dr. Pearce then addressed whether the statutory test for a Dangerous Offender (DO) designation had been met, and concluded that:
"Taking into account Section 753 of the Code, it appears that this gentleman could be declared a Dangerous Offender is if he is found to fall within Section 753(1)(a)(i), Section 753(1)(a)(iii) or Section 753(1)(b)…. I am not sure that Mr. D.J.'s actions would be considered "aggressive" behaviour although if this is the case, it is my opinion that he has displayed indifference to the reasonably foreseeable consequences of his actions. That is, he has, for many years, been aware that his fantasies are deviant and potentially harmful and he has been instructed to avoid contact with children. Notwithstanding same, he had regular contact with the victims and he sexually assaulted them on numerous occasions over the span of a decade.
Overall and given the results of the PCL-R, SORAG and Static-99R, it is my opinion that Mr. D.J. is at moderate risk to re-offend sexually, absent significant intervention and/or monitoring. Clinically, I would expect that the victim would be a child he has ready access to. In addition, he has demonstrated a repetitive pattern of behaviour with respect to his conduct with children. That is, he has sexually assaulted four children over the span of a decade and he has failed to restrain himself from doing so. Such behaviour could quite easily cause physical injury and/or severe psychological damage to his victims. He has thus also shown an inability to control his sexual impulses."
24Dr. Pearce of course stressed that his opinion on this question was based "from a purely psychiatric perspective". Crown counsel and officials representing the Attorney General no doubt considered Dr. Pearce's views, but decided not to proceed with an application to have the offender designated as a dangerous offender. While I concur with Crown counsel's view that a dangerous offender application would not have been appropriate in this case, Mr. D.J. should be cautioned that this decision must have been a close call, and that should he ever reoffend sexually, no doubt a Dangerous Offender application would be promptly launched.
25As is customary in such cases, Dr. Pearce alternatively offered his view as to the offender's suitability for a Long-Term Supervision Order (LTSO). During his interview with the offender Dr. Pearce probed Mr. D.J.'s understanding of and willingness to take "libido reducing medication" as part of sexual offender treatment. Though he was initially resistant – "I just don't like taking drugs" – when Dr. Pearce educated him about such medication, he changed his mind, stating:
"'That's fine. Anything I can do to [avoid re-offense]'. He agreed that he had struggled with unusual sexual impulses for many years and that he could, in the future, have trouble controlling same if in a risk enhancing environment. He added, 'I'll definitely be staying well out of [children's] way'. He agreed to avoid contact with children in perpetuity".
The offender's stated willingness to take sex drive reducing medication no doubt influenced Dr. Pearce's opinion as to his suitability for an LTSO designation:
"Mr. D.J.'s only relevant diagnosis is his deviant sexual preferences (paraphilias). While maladaptive personality traits are evident, they would likely be adequately targeted through sexual offender treatment programming.
In order to help avoid sexual re-offense, it must be ensured that Mr. D.J. does not have any access to children. Psychological therapy is also likely to be helpful, given this gentleman's amenability to same and his low PCL-R score. In addition, pharmacologic treatment has not been tried and it would most likely be risk reducing; Mr. D.J. was agreeable to same and this is a positive prognostic indicator. In terms of factors suggesting a more guarded prognosis, it is worth noting that while Mr. D.J. will be approaching or into his ninth decade of life at the time of expiry of a 10-year LTSO, I cannot be confident that he will display an age-related reduction in recidivism given that he offended while in his sixties.
I expect that he would, however, by that time, be less likely to come into contact with a child.
In conclusion, in considering the aforenoted factors there are some reasons for optimism regarding the likelihood of treating or managing Mr. D.J.'s paraphilias….[T]here are several reasons for optimism that this gentleman will be manageable in the community while subject to an LTSO and after the expiry of such an order. Thus there is, in my opinion…a reasonable expectation of eventual control of Mr. D.J.'s risk in the community".
26(Dr. Pearce then made several sensible and practical suggestions regarding sex offender treatment while incarcerated and for pharmacological and other monitoring once released. As these are better directed to penal and parole authorities who will deal with Mr. D.J. following the imposition of sentence I am about to impose, I shall not repeat them in these reasons).
27I did not understand defence counsel to differ substantially with Dr. Pearce's report or his conclusion that the offender represents some continuing risk to women and children if he is not medicated. However, instead of agreeing that an LTSO should be imposed following a period of incarceration, Mr. Adler first proposed a different way I should impose sentence on this offender. It is to this subject that I now turn.
The Positions of the Parties
29Defence counsel proposed two alternative sentence positions. His first submission (which is obviously what he would prefer) is one which he argued is most consistent with "the principle of restraint" enshrined in Canadian sentencing law by several decisions of the Supreme Court. This submission contains three components:
a period of custody of just under 11 months commencing on the date sentence is pronounced in this matter (see paras. 35 & 53 infra for an explanation of how counsel arrived at this figure);
following release from the custodial portion of the sentence, a period of probation supervision for the maximum permitted by law, namely 3 years;
if concerns about the offender's ongoing risk still remain after the expiry of the probationary period, Crown counsel could bring an application for a "preventative recognizance" under s.810.2 of the Code, conceivably renewable annually should the circumstances so indicate.
30Crown counsel responded to this somewhat unique proposal by drawing my attention to the Ontario Court of Appeal decision in R. v. D.V.B. 2010 ONCA 291, [2010] O.J. No. 1577, where a similar argument had been made, based on a decision of the British Columbia Court of Appeal in R. v. Goodwin (2002) 2002 BCCA 513, 168 C.C.C. (3d) 14. In the British Columbia case two judges on the panel hearing the case were most concerned that an offender suffering from "low intellectual capacity" should not be designated as a dangerous offender only because, as found by the trial judge, " there is no reasonable possibility of ever controlling his risk in the community " (emphasis in original). Writing for the majority Donald J.A. vacated the DO designation and substituted an LTSO designation (for ten years), "impliedly reject[ing] the notion that s.753.1(1)(c) would only be satisfied if it were reasonably possible to control the risk posed by [the offender] within the duration of a long-term offender sentence" ( D.V.B. at para. 53 ). In the view of the majority, if the offender remained a substantial risk to the community at the end of that period, Crown counsel could invoke the "preventative recognizance" provisions of s.810.2.
31In dissent Ryan J.A. disagreed with the majority's characterization of the role of s.753.1(1)(c). In her view "the wording of s.753.1(1)(c) means that there must be a reasonable possibility that the risk will be controlled within the duration of the long-term offender sentence". Because the trial judge had reasonably found that this particular offender could not be controlled within the duration of an LTSO sentence, "he does not meet the long-term offender criteria….In my view the analysis must end with the finding that the appellant does not meet the long-term offender criteria" (at paras. 52-3).
32Writing for the Ontario Court of Appeal, Moldaver J.A. indicated that he preferred the dissenting views of Ryan J.A. to those of the majority. Even though I am not here dealing with whether an LTSO should be preferred over a DO designation – that "choice" having been factored out of these proceedings by the Attorney General's decision not to apply to have this offender declared to be a dangerous offender – I consider that some of the language used by the Ontario Court of Appeal is of assistance to me in ruling that defence counsel's proposal for possible s.810.2 hearings upon the expiry of a three-year probationary period would simply be too inefficient and clumsy to address the risk that Mr. D.J. currently poses to children (and possibly adult women) in the community, as found by Dr. Pearce. Moldaver J.A. writes:
"In my view, s.810.2 does not…provide for the machinery needed to process the never-ending stream of annual hearings that would result. In the context of the long-term offender regime, I prefer instead to view s.810.2 as a safety valve that Parliament put into place to address those cases where the optimistic outcome envisaged by s.753.1(1(c) turns out to be unwarranted" (para. 56).
Later in his reasons, Moldaver J.A. cites with approval a comment by Cronk J.A. in the dangerous offender case of R. v. Little (2007) 2007 ONCA 548, 225 C.C.C. (3d) 20 (Ont. C.A.), where she writes:
"…the overriding purpose of the dangerous and long-term offender regimes is the protection of the public. Thus, "real world" resourcing limitations cannot be ignored or minimized where to do so would endanger public safety" (para. 70).
With modification to reflect the fact that I am being asked to substitute the possibility of potentially successive annual s.810.2 applications as an alternative to an LTSO designation for up to 10 years, I entirely agree with the practical realities discussed by both Moldaver J.A. and Cronk J.A. The reason I have added the emphasis in the previous quotation is to underscore that protection of the public must prevail in considering the application of the LTSO regime.
33While I believe that this logic by itself provides an entirely sufficient basis to reject defence counsel's proposal, I wish to refer briefly to one aspect of Dr. Pearce's report that obviously influenced defence counsel's first submission. One of the things that clearly concerned the psychiatrist was Mr. D.J.'s self-report that at age 65 "he has not experienced any significant age-related decrease in his libido or ability to achieve an erection", which Dr. Pearce found to be "somewhat unusual". If this issue of declining/decreasing libido was the only factor that had influenced Dr. Pearce to make his recommendation in support of an LTSO, I might well have had more sympathy for the logic of Mr. Adler's proposal. However, it is clear that the question of the offender's libido was only one factor on which Dr. Pearce based his opinion. In my reading of his report, he was much more concerned about the offender's 40-year period of sexual offending, his paraphilias regarding sexual contact with children and coercive sex, and the fact that he continually offended with children while in his 60s. These, combined with the need for ongoing sex offender treatment, ongoing pharmacological intervention and the need to monitor the offender closely to prevent him from being in the presence of children, all suggest to me that, overall, defence counsel's proposal, though inventive, is simply insufficiently robust in the real world. Even leaving aside issues of whether an offender can be legally required in this province to take sex drive reducing medication as a condition of probation, in my view the probationary regime, perhaps later "backed up" by a series of s.810.2 applications, simply does not, to quote Moldaver J.A. at another point in his judgment "contain the [necessary] clout" ( D.V.B. at para. 56 ).
34In sum, I entirely reject defence counsel's first submission, that I should link a custodial sentence with probation, followed by the possibility of s.810.2 applications. Simply put, in my judgment such a proposal does not adequately address the level of risk currently presented by this offender. (Of course, as pointed out by Crown counsel, if circumstances do change dramatically in the offender's favour, s.753.2(3) of the Code would allow this offender to apply to a Superior Court for an order reducing the length of or entirely terminating an LTSO).
35Defence counsel's alternative sentencing position was to concede that the offender should be "globally sentenced" to a penitentiary-length term. Based on case law precedents, he proposed that a custodial sentence of 4 years (48 months) would be adequate to address the various principles of sentencing that I must consider. Applying the principles outlined in para. 53 of this judgment, he proposed that this total sentence should be reduced according to a statutory formula designed to reflect time already spent in pre-sentence custody; in his submission this would reduce the custodial term to one of just under 11 months going forward from today.
36Crown counsel argued that I should impose a "global" sentence of 5 ½ years (66 months) for the four sexual offences committed against these children. He also applied the methodology outlined in para. 53 of this judgment in order to propose credit to the offender for time already spent in pre-sentence custody. He thus submitted that, going forward from today, the offender should serve an additional custodial sentence of just over 29 months.
37I turn now to the case law submitted by counsel in support of the "global" custodial period they respectively submitted should be imposed.
38Crown counsel began his submission by referring to various portions of s.718 of the Code, all of which have been thoroughly canvassed by appellate and trial courts. Under the general statutory "purpose" of sentencing, he reminded me of the principles of "denounc[ing] unlawful conduct", and "deter[ring] the offender and other persons from committing offences"; he further reminded me of s.718.01, which specifies that where, as here, offences abusing children under 18 have been committed, the sentencing court "shall give primary consideration to the objectives of denunciation and deterrence". He also reminded me – as conceded by the defence - that in this case it is "necessary…to separate [this offender] from society".
39Under the heading "other sentencing principles" in s.718.2, Crown counsel pointed out that various statutorily deemed aggravating factors are certainly involved in this case: "abuse of a person under 18 years", "abuse of a position of trust or authority in relation to the victim", and "[the] significant impact on the victim, considering their age and other personal circumstances" – see R. v. D.M. 2012 ONCA 520, [2012] O.J. No. 3616 at para. 44 per Feldman J.A.
40In terms of general principles derived from case law in child sexual abuse cases, Crown counsel of course began with the by now well-known decision of the Ontario Court of Appeal in R. v. D.D., [2002] O.J. No. 1061, where Moldaver J.A. wrote for the court:
"To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper digit single penitentiary terms" (para. 44).
R. v. D.D. was applied and extended in R. v. Woodward 2011 ONCA 610, [2011] O.J. No. 4216, where, in upholding a sentence of 6 ½ years (5 years for a sexual assault involving full intercourse with a 12 year-old victim, followed by an additional 18 months for luring the child), Moldaver J.A. wrote for the court:
"The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price" (para. 73).
"Adult sexual predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful factors available to him, if anything, it was lenient" (para. 75)
41To supplement his submission as to general principles to be derived from Ontario Court of Appeal decisions on quantum of sentence for child sexual abuse, Crown counsel drew my attention to a portion of the court's recent decision in R. v. D.M. 2012 ONCA 894, [2012] O.J. No. 6059, where Laskin J.A. summarized (at para. 68) factors usually present where the court had either imposed or upheld sentences of five years or more. Crown counsel pointed out that of the seven factors listed, four exist in the case at bar: oral sex, more than one victim, grooming of the victim, and a previous criminal record for sexual abuse.
42Crown counsel then listed a more detailed series of what he considered to be aggravating factors in this case:
the fact that M.S. and R.S. were assaulted in their own home;
the fact that J.S. and J.S. were assaulted at the home of their grandmother, in circumstances where their parents obviously trusted that nothing untoward would happen. Related to this, the offender used his common-law partner's physical infirmity as a convenient excuse to sleep in the same bed with the victims, where he assaulted them in numerous ways on many different occasions over a period of several years;
the ages of all of the children, one of whom was as young as four when the abuse started;
the number of victims;
the fact that the very young victims were taught to refer to the offender as "Grandpa D.J.", who had "unfettered and prolonged access" to them;
the grooming of J.S. (the complainant in count 4), by showing him adult pornography to overcome any resistance he might have;
the performing of oral sex on several occasions on this same victim;
the offender's obvious failure to learn from his previous convictions in 1970 and 1978, both of which, despite the formal findings of guilt, had clear sexual overtones on the offender's own admissions to the police and Dr. Pearce;
the offender's failure to modify his behaviour given his acknowledgment of his offending with other children (his sister, his stepson and a schoolgirl stranger), despite not having been charged with any offences in relation to these victims.
43In light of these principles enunciated by the Court of Appeal and the various aggravating factors arising from the facts of this case, Crown counsel explained that, before making any allowance for general mitigating factors and totality (as well as time spent in pre-sentence custody), his initial position was that the following ranges of consecutive custodial sentences should be imposed:
Count 1 (sexual assault on J.S.), 18 months - 2 years less a day custody;
Count 2 (sexual assault on M.S.), 4-6 months custody;
Count 3 (sexual assault on R.S.), 4-6 months custody;
Count 4 (sexual assault on J.S.), 4 years custody.
44Crown counsel then listed mitigating factors he felt should apply in the case at bar:
the offender's very early indication that he wished to enter pleas of guilty to the charges, starting from the time of his post-arrest confession;
his formal act of entering pleas of guilty once counsel had been retained and full disclosure had been provided;
his written apology to the child complainants (and to his younger sister);
his admissions to Dr. Pearce of other offending not resulting in charges;
his stated willingness to take sex offender treatment and sex drive reducing medication – and Dr. Pearce's acceptance of the offender's genuine motivation in this regard;
the filing of the letter from the offender's older sister, indicating some level of family support.
45I very much agree with Crown counsel's characterization of these as substantially mitigating factors, most particularly the significance of the pleas of guilty. Canadian sentencing law has not (yet) evolved to the state in some other countries - notably England and New Zealand – where a numerical discount is articulated (by the courts or by Parliament) whereby a reduction of as much as 25-30% is available when, as here, the plea is entered at a very early stage in the proceedings. Nevertheless, there does appear to be general agreement in Canadian law that the earlier the plea is entered, the greater should be the reduction allowed. This is for both pragmatic reasons – that the State is saved the time and expense of a trial, and that the victims do not have to testify – as well as for sound philosophical (and psychological) reasons – that the entry of the plea is evidence of an acceptance and formal admission of wrongdoing, and marks the commencement of the rehabilitative process.
46Crown counsel further explained that while the mechanical totalling up of the sentences for each of the counts would amount to a sentence of approximately 7 years, in addition to proposing a reduction to reflect the various mitigating factors, he had additionally applied the "principle of totality" enunciated in s.718.2(c) of the Code, which provides that "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh". Applying the totality principle, in combination with a further reduction to reflect the offender's early guilty plea, would explain Crown counsel's position in favour of a "global" sentence of 5 ½ years.
47More specifically, Crown counsel suggested that the factually most similar post-D.D. sentencing precedent from the Ontario Court of Appeal is R. v. I.F. 2011 ONCA 203, [2011] O.J. No. 1110, where the accused had entered guilty pleas in respect of charges of sexually abusing three of his step granddaughters. The abuse occurred when – as with J.S. and J.S. in the case at bar - the children would visit their grandparents on occasional weekends over an 8 year period. With each child the abuse began with touching and progressed to more intrusive assaults; including touching and fondling of their breasts and vaginal areas, performing oral sex on one victim, and having one victim perform oral sex on the accused. He also showed pornography to two of the victims. The ages of the girls were between 10-12, 7-14, and 9-14 – somewhat older than Mr. D.J.'s child victims.
48The Crown appealed the sentence of 2 years (followed by probation) imposed at trial. In a brief endorsement, the Court of Appeal found that this sentence was a marked departure from the case law (particularly D.D.), that it was manifestly unfit and substituted a sentence of 4 years, despite "the trial judge's acceptance of the significance of the respondent's early plea and acceptance of responsibility" (para.7). Crown counsel argued that the aggravating factors outlined in para. 42 supra should persuade me to impose a sentence higher than that imposed by the Court of Appeal in I.F.
49For his part defence counsel agreed that I.F. is the closest case factually to the case at bar. However, he invited me to keep in mind that the reasoning of the Court of Appeal expressly adverted to "this context of multiple victims" (para.6). Since the type and duration of the abuse in I.F. was quite similar to what happened to J.S. and J.S., defence counsel first argued that 5 ½ years would be too much of an increase from I.F. As a corollary to this argument he further submitted that what happened on single occasions with M.S. and R.S. does not merit the 4-6 month consecutive sentences proposed by the Crown.
50I have carefully reviewed these and other cases referred to by both counsel in their books of precedents. Given the fact that the abuse of the children in the case at bar began when they were all somewhat younger – and therefore more trusting and vulnerable – than the children in the I.F. case, I am of the view that a total "global" sentence of 4 years would be too low. Further, I assume from the report of the I.F. case that that accused had no previous record. Because Mr. D.J. has at least two sexually-related previous convictions (as well as his acknowledgement of a number of episodes of previous sexual acting out with children or young teens), I consider that his "moral blameworthiness" is particularly elevated.
51Having said this, I agree with defence counsel that the "global" separate sentences proposed by Crown counsel for the single incidents involving M.S. and R.S. are too high. In my judgment "global" sentences of 3 months on Counts 2 and 3 would be appropriate.
52I thus conclude that a total "global" sentence of 4 ½ years (54 months) will adequately reflect the various sentencing principles which guide me and which I must apply. That sentence will be broken down into the following counts (all of which are to be served consecutively to one another):
Count 1 (sexual assault on J.S.), 18 months custody;
Count 2 (sexual assault on M.S.), 3 months custody;
Count 3 (sexual assault on R.S.), 3 months custody;
Count 4 (sexual assault on J.S.), 30 months custody.
Allowance for Time Already Spent in Pre-Sentence Custody
53Mr. D.J. has been in continuous custody since his arrest on September 6, 2013, a total of 746 actual days to today's date. Since none of the factors enunciated in s.719(3.1) of the Code apply to this offender, both counsel agree that I should grant the offender credit at a rate of 1.5:1 for time spent in pre-sentence custody. Calculated mathematically this amounts to 1119 days (just over 37 ½ months), to be deducted from the "global" sentence I have outlined above.
Conclusion Regarding Custodial Sentences to be Served
54The offender will be sentenced to a further 525 days in custody (just over 17 months) going forward from today's date. I arrive at this figure in the following way:
Global sentence of 4 ½ years = 1644 days
Less allowance for pre-sentence custody credit = 1119 days
Balance of custodial sentence = 525 days
55I now turn to the issue of attributing actual sentences to the four counts for which he is to be sentenced. (Given the starting dates of each of the assaults, I believe the most appropriate way to deal with the imposition of the sentences is to begin with the earliest in time and proceed consecutively through the starting dates of each of the other three offences).
56On count 1 (sexual assault on J.S.), the offender is sentenced to 170 days in custody.
57On count 4 (sexual assault on J.S.), the offender is sentenced to 295 days in custody.
58On count 2 (sexual assault on M.S.), the offender is sentenced to 30 days in custody.
59On count 3 (sexual assault on R.S.), the offender is sentenced to 30 days in custody.
60All these sentences are to be served consecutively to one another.
The Long-Term Supervision Order (LTSO)
61Though, as I have described, counsel differed as to the quantum of the "global" sentence to be imposed, it is important to note that both counsel were in agreement that a penitentiary-length term should prima facie be imposed (subject to a deduction for time spent in pre-sentence custody). This is important, because s.753.1(3)(a) of the Code requires that a sentence of at least two years must be imposed before consideration may be given to making an LTSO order. Thus, even though defence counsel's preferred position was that I should not make an LTSO order, he very properly conceded that s.753.1(3)(a) "opens the gate" for me to do so.
62Crown counsel urged that the maximum period permitted by law – 10 years – should be imposed on this offender, given his long-standing and unaddressed proclivities, and most particularly the need for close monitoring to keep him away from children.
63Given the offender's age (and the availability of s.810.2 applications in the future, should the authorities consider them necessary), defence counsel argued, that if I am persuaded that an LTSO order should be made, that the length of the LTSO should be in the "3-5 year range".
64A few months ago I delivered reasons for sentence in R. v. J.D.S. 2015 ONCJ 226, during the course of which I expressed some concern (at para. 74) that, since the inception of the Long-Term Offender regime, some 70% of LTSO orders have been made for the maximum period of 10 years. I continue to be troubled by the idea that the "default position" seems to be the maximum permitted by law; with respect, this does not seem to me to be a particularly calibrated and cautiously gradated use of this rather extraordinary power.
65Applying these reservations in the case at bar, I am nevertheless entirely convinced that (a) an LTSO order should be made, and (b) that it should be for the maximum period of 10 years be imposed, given what Dr. Pearce has said and recommended, what the facts of this case disclose, and what the offender's background reveals about his 40-year history of sexual offending. In my judgment this offender presents a substantial risk for reoffending if he is not treated, medicated and carefully monitored in ways that are more intrusive than any s.161 order can possibly be expected to address.
66For greater clarity, it is my intention that the offender be sentenced to a total custodial term of 525 days, followed by a Long-Term Supervision Order for 10 years.
Ancillary Orders
67Defence counsel argued that there was no need to make a series of orders prohibiting the offender from being in contact with children, as authorized by s.161(a), (b), and (c) of the Code. He suggested that these were unnecessary as the offender has not committed an offence against a "stranger" since the 1970s. With respect, I disagree; Dr. Pearce's report makes it clear that this offender does represent something of a danger to any child, and the tenor of some of the offender's comments to the police about his fantasies during his post-arrest statements are rather chilling – most particularly his lack of insight into his deviance. Thus, I agree with Crown counsel that there should be orders of prohibition pursuant to s.161 (a), (b) and (c) of the Code for life.
68There will be an order for the production of a DNA sample pursuant to s. 487.04 of the Code on counts 1-4 (primary designated offences).
69The offender will be designated as a person convicted of a SOIRA-designated offence pursuant to s. 490.012 of the Code for life.
70There will be a weapons prohibition order pursuant to s.109 of the Code for a period of 10 years.
71There will be an order under s.743.21 of the Code prohibiting the offender from communicating directly or indirectly with any of the child victims, their siblings and parents, their grandmother and her son during the custodial portion of the sentence.
72Though victim surcharges could be imposed for the four offences for which the offender is being sentenced, because the time frames specified in the charges pre-date October 24, 2013 I retain discretion not to make such orders. Given this offender's penurious background, combined the length of time for which he is now to be incarcerated (either in a penitentiary or in a halfway house), I decline to make such orders.
73Pursuant to s.760 of the Code, I direct that a transcript of the proceedings on the taking of the guilty plea (June 3, 2014), copies of the 13 Exhibits filed in this case, a transcript of the evidence of Dr. Mark Pearce (July 27, 2015 – not yet prepared), and a copy of these sentencing reasons be forwarded to the Correctional Service of Canada for information.
74Finally, I wish to say something directly to Mr. D.J.. As a result of my decision today, you will serve the custodial portion of your sentence in a provincial institution. If, as you told the children in your apology, you truly wish to do something about your problems, you need to start by taking some sex offender treatment programs while you are still in custody – as Dr. Pearce has recommended. The provincial custodial facility where there are the kinds of programs you need is called the Ontario Correctional Institute in Brampton. I will try to assist you by making a recommendation on the Warrant of Committal that you be taken there to serve sentence, but you will need to start requesting that you be transferred there as soon as you get back to the remand centre; experience demonstrates that you may well have to repeat that request several times.
75I wish to thank both counsel for the brevity and thoroughness of their presentations of this case. Mr. Adler had a particularly difficult brief, which he made the best of in the circumstances.
Released: September 22, 2015
Signed: Justice D.P. Cole