R. v. B.J., 2016 ONCJ 822

WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) Mandatory order on application.

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 complainant of the right to make an application for the order; and

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

486.6 Offence.

(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.

Court Information

Date: December 12, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

B.J.

Before: Justice M. Greene

Reasons for Sentence released on: December 12, 2016

Counsel:

• M. Newhouse for the Crown
• J. Parise for B.J.

Reasons for Sentence

Background and Procedural History

1Mr. B.J. was charged in April 2015 with a number of charges relating to allegations that he sexually abused his step-daughter, C.S., between the years of 2008 and 2015. A preliminary inquiry took place in February 2016. Prior to committing Mr. B.J. to stand trial, an exit pre-trial was conducted. The matter then went over for a number of months to allow Crown and defence counsel to discuss potential resolution.

2On May 6, 2016, Mr. B.J. attended court indicating a desire to change his election and to enter a plea of guilty. After a full inquiry, Mr. B.J. re-elected to be tried by this court. His plea of guilty could not be accepted as Mr. B.J. has no memory of committing any of the sexual assaults due to blackouts from alcohol consumption. Mr. B.J., through his counsel, advised the court that he did not dispute that the events as described by C.S. at the preliminary inquiry took place, accepted that they took place as described and that C.S. was telling the truth. Mr. B.J., however, had no recollection of committing the acts. As the Canadian Criminal Justice system does not allow for "no contest" pleas, Mr. B.J. had to enter a plea of not guilty. Counsel agreed to allow the evidence from the preliminary inquiry to be admitted at the trial and Mr. B.J. elected to call no evidence. I was then invited by counsel to accept C.S.'s evidence as both credible and reliable and was asked to find Mr. B.J. guilty of the offence of sexually touching a child under the age of sixteen (section 151 of the Criminal Code). Having heard C.S.'s evidence at the preliminary inquiry/trial, I found C.S. to be a very credible and reliable witness and completely accepted her evidence as such. I found Mr. B.J. guilty of the offence. The Crown then asked that the remaining counts be stayed.

3A pre-sentence report was ordered and the matter was adjourned to November 4, 2016 for his sentencing.

Circumstances of the Offence

4C.S.'s mother and Mr. B.J. were involved in a common-law relationship during the time of this offence. C.S.'s mother was an addict and suffered from some major mental health issues. As a result, her ability to care for C.S. was limited. Mr. B.J., while suffering from an alcohol addiction himself, became the main care giver for C.S. Mr. B.J. purchased her clothes, watched C.S. when her mother was too ill to care for her and was effectively her main parent.

5During the years that Mr. B.J. lived with C.S., he would purchase drugs for C.S.'s mother. He told C.S. that he did so for her own safety as it was better than her purchasing drugs on the street. Mr. B.J. also engaged in selling marijuana and would take C.S. with him when conducting his business. Moreover, as C.S. got older, Mr. B.J. would smoke marijuana with C.S.

6For six years Mr. B.J. sexually abused C.S. The sexual abuse never took place while they were using marijuana together; instead it took place while C.S. was asleep in her bed.

7The sexual abuse started when C.S. was 8 years old. It began with Mr. B.J. touching her vaginal area and at times penetrating her with his fingers. This occurred on more than one occasion and usually when C.S. was asleep in her bed. On one occasion, Mr. B.J. forced C.S. to touch his penis. Given her young age at the time, C.S. could not recall the number of times this occurred. She was, however, able to relate details of a number of different incidents.

8When C.S. was 12 years old, Mr. B.J. forced her to have anal intercourse with him. Mr. B.J. also forced anal intercourse on C.S. on two other occasions but C.S. was unable to recall any specific details about these two other incidents. On other occasions Mr. B.J. put his hands down C.S.'s pants and placed his fingers inside her vagina.

9After the first incident of forced anal intercourse, C.S. told her mother what took place. Her mother then discovered a video on Mr. B.J.'s phone of C.S. sleeping and Mr. B.J. moving her shorts over. As a result of this discovery (the video), they had a family meeting where Mr. B.J. broke down crying and said he would never do it again. Nonetheless it continued to take place.

10In February of 2015, Ms. L.M., a friend and old neighbor of C.S., received a telephone call from C.S.'s mother asking her to take C.S. in as she was going to a rehabilitation facility. C.S. was brought over the following day. C.S.'s mother advised Ms. L.M. that Mr. B.J. could not continue to care for C.S. due to issues around abuse. Shortly thereafter, C.S. disclosed to Ms. L.M. that Mr. B.J. had been sexually abusing her.

11The next time Mr. B.J. contacted Ms. L.M. she confronted him about the allegations. Mr. B.J. broke down, started to cry, said he was sorry and stated that he was drunk. Eventually, Ms. L.M. was able to encourage C.S. to speak to the police leading to Mr. B.J.'s arrest.

Victim Impact

12The court was fortunate enough to have C.S. read out her victim impact statement in court. C.S. eloquently and thoughtfully outlined the harm she has suffered as a result of Mr. B.J.'s actions. C.S. wrote:

I've been impacted on so many levels to the point of sitting in the dark in the shower burning hot, shaking because I can hear his voice in my head. To me, changing my underwear more than 3 times a day because I feel gross, having to wake up in the middle of the night to put pants or more blankets on because the cool breeze reminds me of the feeling on your hands on me. The constant anxiety of seeing you at school, work, when I'm walking down the street.

13In November of 2014, C.S. attempted suicide. Three months later the police were contacted. C.S. attempted suicide again after she testified at the preliminary inquiry. I note that defence counsel did take all appropriate steps to attempt to reduce the harm suffered by testifying at the preliminary inquiry in that she agreed to the use of a screen and any other mechanism necessary to assist C.S. with her testimony.

14Despite the harm suffered, C.S. has tremendous strength. She is working over 35 hours a week while also attending school. C.S., having been diagnosed with PTSD, depression, insomnia and anxiety, still puts in more productive hours in one week than most people. C.S. presently has a lot of support and is focused on moving forward with her life.

Circumstances of the Offender

15Mr. B.J. is 36 years old. He is single and the primary care giver to his two children aged 14 and 15. Since these offences, Mr. B.J.'s father has taken over the care of his two boys.

16Mr. B.J. was raised by his mother until he was seven years old. His mother suffered from substance abuse issues and was often involved in abusive relationships. Mr. B.J. witnessed and was the victim of some of this violence himself. One particular incident involved a male boyfriend of his mother pouring alcohol over him and his mother while threatening to light them on fire. There is some suggestion that he was also a victim of sexual abuse as a child, but Mr. B.J. was not ready to discuss this in any detail at the time of his meeting with the probation officer who authored the pre-sentence report.

17After the age of seven Mr. B.J. moved in with his father and step-mother. Mr. B.J. was treated well by his father and stepmother. Mr. B.J. left his father's home when he was approximately 15 years old. He had started to miss school and smoke marijuana. His father presented him with an ultimatum, to clean up or move back in with his mother. Mr. B.J. decided to move back into his mother's residence, expecting less constraints and supervision. In hindsight, Mr. B.J. recognizes that he would have been better served had he stayed with his father. After moving in with his mother, Mr. B.J. stopped attending school. There was no supervision in his mother's home, leaving Mr. B.J. with the freedom to make poor choices with little accountability. Eventually Mr. B.J. moved back to his father's home, but instead of returning to school, he started to work full time.

18Mr. B.J.'s father is still very much in Mr. B.J.'s life and has taken over the care of Mr. B.J.'s sons. He was aware of the difficulties Mr. B.J. faced earlier in his life. Mr. B.J. is consistently described as a good father to his sons.

19Mr. B.J. has held a number of jobs over time. He worked as a general laborer as an adult, in construction and for a moving company. Despite his alcohol addiction, Mr. B.J. was able to maintain his jobs.

20Mr. B.J. started to use marijuana in grade seven. He used it with more frequency once he was 18 and had more money. Mr. B.J. abuses alcohol. His alcohol consumption started to become a problem when he was 25 years old. He drank heavily and started to black out. He also started to attend work while intoxicated. Mr. B.J. continued to drink heavily while involved with C.S.'s mother. He was drinking heavily when he committed all his acts of sexual violence on C.S. and has no recollection of the actual abuse. Mr. B.J. has attended Alcoholics Anonymous meetings in the past but stopped attending because the meetings made him "sad". At the present time, Mr. B.J. describes his drinking as more moderate and does not drink to the point of intoxication.

21Mr. B.J. is remorseful for his conduct and "disgusted" with himself. Since the commission of this offence he has started attending a sexual offenders program but could not complete the program for financial reasons.

22Mr. B.J. has a prior criminal record. He has drug related convictions from 2004 and 2011, two breaches of recognizances from 2004 and 2005, a cause disturbance conviction in 1999 and a property related offence in 1999. Mr. B.J.'s most recent conviction is an aggravated assault and a fail to comply with a recognizance from 2007 for which he received a sentence of 140 days in jail and three years probation. Mr. B.J. responded well to the community supervision.

23No information was provided to the court about Mr. B.J.'s risk to re-offend or whether there is a specific sexual deviancy that could be addressed through counselling. Counsel advised that due to financial constraints this material could not be obtained. The author of the pre-sentence report writes that a full sexological assessment would be necessary to properly assess Mr. B.J.'s risk of re-offending.

General Sentencing Principles

24The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include:

• General and specific deterrence
• Denunciation
• Rehabilitation
• Reparation to society and/or the victim
• Separation from society where necessary
• The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community

Generally, the Criminal Code does not place these objectives in any hierarchy of importance. How much weight a sentencing judge places on any given objective will depend on the facts of each case. As our society has become more and more aware of the damaging effects of child sexual abuse, the need to protect children from child sex offenders and the prevalence of child sexual abuse in our society, the criminal justice system has responded. Pursuant to section 718.01 of the Criminal Code, where a person is being sentenced for an offence involving the abuse of a person under the age of eighteen years old, primary consideration is to be given to the objectives of denunciation and general deterrence.

25The Appellate courts have also repeated this focus on the objectives of general deterrence and denunciation in many recent judgments. In R. v. Woodward, 2011 ONCA 610, Justice Muldaver stated, at paragraph 76:

In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

26In R. v. D.D., [2002] O.J. No. 1061, the leading authority in Ontario on sentencing child sexual abusers, the court clearly stated that the focus on sentencing these types of offenders must be on denunciation, deterrence and protection of the public. The court stated at paragraph 34:

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s.718 (a), (b) and (c) of the Criminal Code, commonly referred to as, denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

It is therefore clear that in sentencing Mr. B.J. I must focus primarily on the objectives of deterrence and denunciation.

The Aggravating and Mitigating Factors

27In assessing the appropriate sentence the court is required to assess the overall gravity of the offences and the circumstances of the offender so as to ensure that the sentence imposed is proportionate to the moral blameworthiness of the offender. To that end, sentencing judges are required to consider all the aggravating and mitigating factors.

28The aggravating factors in the case at bar include:

• C.S. was only eight years old when Mr. B.J. started to sexually abuse her. This is a statutorily aggravating factor;
• Mr. B.J. grossly abused his position of trust as he was effectively C.S.'s parent. This is also a statutorily aggravating factor;
• Mr. B.J.'s offending behaviour had a significant and profound impact on C.S. This is also a statutorily aggravating factor;
• Mr. B.J. abused C.S. in her own home, in her bedroom when she was asleep;
• C.S. was vulnerable given the parental relationship and her mother's struggles;
• C.S. could not escape from the abuse as it was taking place in her home;
• The abuse escalated to forced anal intercourse on three occasions;
• Mr. B.J.'s offending conduct spanned six years; and
• Mr. B.J. has a prior criminal record (albeit unrelated).

29Crown counsel argued that another aggravating factor in the case at bar is that Mr. B.J. essentially groomed C.S. by giving her alcohol and drugs. I disagree. Mr. B.J. did provide marijuana to C.S., but I am unable to conclude that he did so to groom her and make her willing to engage in sexual acts with him. Mr. B.J. never sexually abused C.S. while giving her marijuana; he only sexually abused her at night, when she had already gone to sleep (though was awakened by the sexual abuse). Moreover, the Crown does not dispute that Mr. B.J. only abused C.S. when he was impaired by alcohol which indicates that while the abuse was prolonged, it was not planned. As I highlight below in more detail, however, Mr. B.J. did abuse his position of trust, as the one person C.S. relied upon in order to commit this offence, which is clearly a very aggravating factor.

30The mitigating facts in this case include:

• Mr. B.J. is remorseful for his conduct;
• While Mr. B.J. could not plead guilty, he did resolve this matter in a way that avoided the need for C.S. to testify at a trial. Mr. B.J. could not plead guilty due to his lack of memory, a fact that the Crown accepts as being true. I therefore am treating Mr. B.J. as though he entered a plea of guilty (albeit only after a preliminary inquiry);
• Mr. B.J. has taken some initial steps to address his offending conduct;
• Mr. B.J. has had a difficult childhood and is a victim of abuse himself. This provides a meaningful context to Mr. B.J.'s offending;
• Mr. B.J. suffers from an addiction and is taking steps to address the addiction;
• Mr. B.J. is a good father to his two sons; and
• Mr. B.J. has some strong ties to others in the community.

31Counsel for Mr. B.J. also argued that another relevant mitigating factor the court should consider in the case at bar is that Mr. B.J. was a good father to C.S. I appreciate and accept that in many ways Mr. B.J. cared for C.S. and took care of her when her mother was incapable of doing so. Given the nature of the offence, I do not, however, consider this to be a mitigating factor. It is this relationship of trust that Mr. B.J. created that led to him being able to continuously abuse C.S. It was the fact that he was there to care for her when no one else was around that led to C.S. having no choice but to tolerate the abuse and not report the abuse to someone who could help her. Mr. B.J., as C.S.'s care giver, abused this position of trust. He ought not to be treated more leniently because when he was not abusing her, he treated her well.

32Defence counsel further argued that Mr. B.J.'s moral culpability is reduced because he committed the offences when he was very intoxicated, in fact so intoxicated that he could not recall the actual abuse. In relation to this argument, I note it is well accepted that self-induced intoxication does not reduce an offender's moral culpability, particularly in cases involving sexual violence. Moreover, even if it was appropriate to consider this as a mitigating factor in some cases, this would not be one of those cases. When C.S. was twelve years old and her mother found the video or photograph of C.S. on Mr. B.J.'s cellular telephone, Mr. B.J. was confronted with his actions of sexual violence on C.S. At the time he cried and apologized. This was not enough, however, to lead him to obtain help and reduce his drinking. Instead he continued to drink and sexually assault C.S. while he was impaired by alcohol. I appreciate that alcoholism is an illness. That making the decision to stop drinking and being able to actually stop drinking when one is an addict is phenomenally difficult. But Mr. B.J. had other options including drinking when he was not in a position to harm C.S. He chose not to avail himself of these options and continued to harm C.S. I do appreciate, however, that Mr. B.J. suffers from an addiction and is now taking steps to address this addiction. His attempts to address his addiction is a mitigating factor.

33In my view, one of the strongest mitigating factors in the case at bar is Mr. B.J.'s admission that C.S. is telling the truth and his instructions to his counsel to admit that C.S.'s evidence is credible and reliable. I find this to be very mitigating for a number of reasons. Firstly, it saved C.S. from having to testify a second time. C.S. attempted suicide shortly after the preliminary inquiry and it is clear that testifying was very difficult for her (as it would be for any young person in her situation). Given the harm associated with testifying, any steps taken by an offender to limit the victim's exposure to this harm is meaningful and should be strongly encouraged by the courts. In my view, the best way to do this is to consider the plea of guilty as a meaningful mitigating factor which serves to reduce the sentence. Secondly, it is meaningful for the victim and for society to hear an offender accept responsibility and state loudly and clearly that the victim is telling the truth. Thirdly, as already noted, Mr. B.J. has no memory of the events, but instead of using this as an excuse to run a trial and remain in denial about his own actions, he listened to C.S. and despite his lack of memory is willing to accept that he harmed C.S. in the manner to which she described.

General Range of Sentence for Similar Offences and Offenders

34It is important for every sentencing judge to remember that every sentencing is unique. No two offenders are identical and the key to sentencing properly is to apply general legal principles to the individual facts of each case. Nonetheless, it is important for a sentencing judge to be mindful of the general range of sentence imposed for similar offences and the general range of sentence accepted by the appellate courts. This information serves as a helpful guide to sentencing judges in determining the appropriate sentence in an individual case.

35As noted above, the leading case in child sexual abuse is R. v. D.D., [2002] O.J. No. 1061. In this case, the offender sexually abused 4 young boys aged 5-8 years old over a 7-year period. DD regularly and persistently sexually abused them. The sexual acts included masturbation, oral sex, group sexual encounters and relentless attempts at anal intercourse and actual anal intercourse. DD was also in a position of trust as it related to these boys. He used threats of violence and actual violence including punching his victims to force them to comply. D.D. told one boy that if he told anyone about the abuse he would go to jail and never see his parents again. DD also photographed his victims engaging in homosexual acts and threatened to show the photographs to others. He also at one point hung one of his victims over the 13th floor balcony and warned that he would be thrown off if he told anyone of the sexual abuse. D.D. did not enter a plea of guilty to these charges. He had a preliminary inquiry and a trial. He only took responsibility for his actions after he was found guilty by the court. The Court of Appeal upheld a sentence of 9 years and 1 month in this case. In doing so, the Court identified the appropriate range for sentencing offenders who sexually abuse children. The Court of Appeal stated at paragraph 32:

Cases like the present one, however, which involve repeated acts of anal intercourse and attempted anal intercourse as well as the use of other physical violence, threats of physical violence and extortion are in a different category. Such cases, in my view, call for a higher range of penalty because of the enhanced gravity and seriousness of the crimes and the greater degree of moral culpability attributable to the offender. As a general rule, I believe that upper single digit to low double digit penitentiary terms are called for in these circumstances. Thus, the global sentence of 9 years selected by the trial judge in this case was, in my view, within the appropriate range.

36To further clarify the range of sentences for these types of offences, the Court of Appeal concluded at paragraph 44 of R. v. D.D.:

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 single digit penitentiary terms. When the abuses involve full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

37In R. v. R.O., 2015 ONCA 814, the Court of Appeal was asked to consider the appropriateness of a seven years sentence on a man who sexually abused his step-daughter from the age of seven to thirteen. R.O. was convicted after trial by a judge and jury of one count of sexual assault and one count of sexual interference. R.O. supplied drugs and alcohol to the victim and her siblings. The sexual abuse began with sexual touching and over time progressed to oral sex and intercourse. The Court of Appeal upheld the seven year sentence. In many respects this case is similar to the case at bar. The nature of the sexual abuse is similar, the relationship between the offender and the victim is similar, in both cases the offender supplied drugs and alcohol to the victim and in both cases, since the arrest the offender had taken steps to address the source of his criminality. The key distinguishing feature between the two cases is that R.O. had a trial with a judge and jury and the sexual abuse took place over a slightly longer period of time. Mr. B.J. did not have a full trial, having essentially entered a plea of guilty after the preliminary inquiry. Moreover, there is no evidence that R.O. suffered the same traumatic childhood that Mr. B.J. suffered. A direct comparison between these two cases would suggest that Mr. B.J.'s sentence should be less than what R.O. received.

38In R. v. F.L., [2006] O.J. No. 844 (S.C.J.), the trial judge imposed a sentence of eight years for an offender who sexually abused his step-daughter over a nine year period. In that case, the sexual abuse started when the victim was five years old and involved the offender forcing the victim to touch his penis and perform oral sex on him until he ejaculated. The acts of sexual abuse took place two or three times a week. The sexual abuse escalated to anal intercourse which took place on at least two occasions. In reaching a sentence of eight years, the trial judge noted as follows at paragraph 30:

In the case before me, the offences seem to fit almost at the edge between the type of offences that attract mid to upper single digit sentences, and those that attract upper single to lower double digit sentence ranges. There was no overt additional or gratuitous violence beyond the sexual assault in this case. However, there was the sexual abuse of a young child on a regular and persistent basis over a substantial period of time that included at least two instances of full anal intercourse. It was a horrible breach of trust.

39The facts of the offence in the case at bar are very similar to the facts of the offence in F.L. with the exception that the sexual abuse in F.L. appears to have occurred with greater frequency than the sexual abuse in the case at bar. The circumstances of the offender, however, are different. To that end I note that Mr. B.J. has essentially entered a plea of guilty while F.L. had a trial in the Superior Court of Justice after a preliminary inquiry. I further note that the only mitigating factors identified by the sentencing judge in F.L. was his lack of criminal record and his links to the community. Mr. B.J. is a very different offender. Mr. B.J. suffered abuse in his childhood that he has had to overcome, he is struggling with an alcohol addiction, is seeking help and is remorseful for his conduct. In my view, these differences support the conclusion that Mr. B.J. should receive a lesser sentence than F.L.

40In R. v. R.T.M., 2008 ONCA 47, the Crown successfully appealed a two year sentence imposed on R.T.M. who sexually abused three victims, the youngest of which was four years old when the abuse began. R.T.M. stood in loco parentis to all three victims, and the offences took place over a period of five years. The sexual acts included acts of simulated intercourse, repeated acts of digital penetration and forcing the young children to touch his penis. The victims suffered tremendously. In this case a sentence of five years was imposed by the Court of Appeal. I note that in some respects the case of R.T.M. is more aggravating in that there were three victims, the youngest victim was four years old when the abuse began and the offender lacked insight into his offending conduct. In other respects the case at bar is more aggravating in that Mr. B.J. forced C.S. to engage in anal intercourse on three occasions where no intercourse took place in the case of R. v. R.T.M. Both cases involved a plea of guilty after the preliminary inquiry, however, I note that there are additional mitigating factors in the case at bar that did not exist in R.T.M.

41Defence counsel provided the court with four cases. In each of these cases the courts imposed a sentence substantially below the watermark set by Justice Muldaver in R. v. D.D.. In R. v. D.S., 2011 ONSC 3627, the Crown and defence jointly suggested a conditional sentence be imposed for an offender who stood in loco parentis to the victim and sexually abused her over a five year period when the victim was between the ages of 7 and 12 years old. The sexual acts involved oral sex and sexual touching but no intercourse. The offender was an alcoholic and like Mr. B.J. had no memory of the offences. In the time between arrest and sentence, D.S. took steps to address his criminality and completely stopped drinking. The court rejected the joint submission and imposed a sentence of 12 months incarceration. There are some key similarities between this case and Mr. B.J.'s case in that both suffer from addictions and have no memory of the offences. However, in D.S., there was no intercourse and there was no suggestion that D.S. had been confronted with his abusing conduct and continued to voluntarily consume alcohol despite the risk it placed on his victim. Moreover, D.S. entered a plea early on in the process before the victim testified at the preliminary inquiry.

42In R. v. A.J., 2010 ONCJ 589, Justice De Fillippis imposed a sentence of two years on a 60 year old offender, with no prior record who sexually abused his step-daughter and granddaughter. The sexual abuse included sexual touching and oral sex on four occasions. At the sentencing hearing, the Crown asked for a sentence in the range of 2.5 to 4 years while the defence argued for a conditional sentence. The differences between that case and the case at bar are obvious. Firstly, only a discrete number of incidents took place in the A.J. case as opposed to the prolonged abuse in the case at bar. Secondly, there was no intercourse involved in the A.J. case. Thirdly, A.J. entered a plea of guilty prior to the victim testifying at all. A two year sentence in the case at bar would be substantially outside the range set by the appellate courts and there is an insufficient basis to go that much outside the range.

43In R. v. I.F., 2011 ONCA 2013, the Crown successfully appealed the sentence imposed by the sentencing judge. The offender sexually abused his three step-granddaughters over an eight year period while they were visiting him on the occasional weekend. The abuse began with sexual touching over their clothes and progressed to more intrusive sexual acts including oral sex, sexual touching and watching pornographic movies. The sentencing judge imposed a two year sentence. The Court of Appeal overturned the sentence stating that the general range of sentence when adult offenders, in a position of trust sexually abuse innocent young children on a regular and persistent basis over substantial periods of time is in the mid to upper single digit penitentiary range. With this in mind, the Court of Appeal imposed a four year sentence. There are two key differences between the I.F. case and the case at bar namely that in I.F. there was no sexual intercourse and I.F. entered an early guilty plea before the victim testified.

44In R. v. S.M., unreported, Oct 31, 2011, Justice Mulligan in the Ontario Court of Justice imposed a sentence of 4½ years in a case quite similar to the case at bar. In S.M., the offender was convicted after trial. He sexually abused his 12 year old foster child over a three year period. The sexual abuse included intercourse. Crown counsel took the position that the appropriate range of sentence was 3-5 years. In accepting that this was the appropriate range, the court reviewed a number of cases, all of which imposed sentences in this range for similar offences. Some of those cases include:

• R. v. J.S., [2008] O.J. No. 4379 (SCJ): a five year sentence for three counts of sexual intercourse where the victim was the offender's step-daughter and was between the ages of six and eight years old when offences took place

• R. v. W.C.C., [2009] O.J. No. 4705 (SCJ): a sentence of 4 years for an offender who sexually abused his daughter from the age of seven

• R. v. R.G., 2010 ONSC 4082: a sentence of 6½ years for a father who sexually abused his daughter over a number of years including intercourse. The abuse was accompanied by threats of violence

• R. v. B.D., 2008 ONCJ 21: a sentence of five years where the offender sexually abused his daughter and others. The abuse included intercourse and the offender had taken photographs that amounted to child pornography

• R. v. O.B., [2008] O.J. No. 4423 (SCJ): a sentence of 8½ years was imposed for sexual assaults on two step-daughters leading to one of the daughters becoming pregnant when she was 12 years old

• R. v. D.M., 2011 ONSC 3183: a sentence of three years was imposed on an offender who sexually abused his niece over a year period where the sexual abuse included intercourse

45In my view, the authorities reviewed above lead to a number of conclusions. Firstly, the Court of Appeal has provided a range of five to nine years incarceration where the sexual abuse involves a breach of trust on a young person and it is prolonged, persistent and involves at least one incident of actual intercourse. To that end I note that the Court of Appeal in R. v. D.M., 2012 ONCA 520, stated that minimum sentence for offenders who have engaged in prolonged sexual abuse of a child and where there is a breach of trust and where there is penetration is 5-6 years. Secondly, it is only where BOTH intercourse and violence or threats of violence are also involved that the range increases to the upper single digits to the lower double digits (8-13 years). Despite the fact that the Court of Appeal has stated numerous times that the lower end of the range for these types of offences is five to six years, a number of sentencing judges have imposed lower sentences where the offender enters a plea of guilty and there are other compelling mitigating factors.

Application of the Law to the Case at Bar

46In the case at bar, Crown counsel has argued that an eight year sentence is appropriate. Respectfully, I disagree. A sentence of eight years is at the upper end of the range and does not properly reflect many relevant mitigating factors including Mr. B.J.'s decision to take responsibility for his actions, his difficult childhood where he was victimized, his addiction which he is now taking steps to address and his clear remorse for his conduct. Given the authorities outlined above, a sentence of eight years while arguably proportionate to the offence, would be disproportionate to the circumstances of the offender in the case at bar.

47Defence counsel argued that a three year sentence is appropriate. Respectfully, I disagree. In my view a three year sentence is outside the range of sentences normally imposed for such offences and fails to take into account many relevant aggravating facts and overemphasizes the mitigating facts. While I appreciate that judges are permitted to go outside the range where justified on the record, in my view there is no basis on this record to impose a sentence that is two years below the range set out by the Court of Appeal. To that end, while all the aggravating factors noted above are relevant, a few aggravating facts bear repeating including that Mr. B.J. has a prior record which includes a conviction in 2007 for violence, C.S. has suffered tremendously and was a vulnerable victim, the offending conduct took place over a span of six years, anal intercourse was involved and C.S. was only eight years old when the abuse started.

48In determining the appropriate sentence, I am mindful that the sentence I impose cannot undo the harm suffered by C.S. My sentence will not take away her pain and suffering. My sentence will, however, take into account the harm that C.S. has suffered. It will send a clear message to others that child sexual abuse will not be tolerated and that heavy sanctions will be imposed on those that sexually abuse children.

I am also mindful that it is a very difficult task to determine just how much credit an offender should receive for his plea of guilty (especially when the victim testified at the preliminary inquiry), his traumatic childhood and his recent but limited steps (due to financial limitations) to address his criminality. Finding the balance where these mitigating factors are properly recognized without being over-emphasized is a difficult task. I turned my mind to whether or not a five year sentence was appropriate in this case, being mindful that five years is at the very low end of the range. In my view such a sentence would place too much emphasis on the mitigating factors and not enough on the aggravating factors. On the flip side, a sentence of seven years or more would not properly reflect the mitigating factors. In particular, saving the victim from having to testify a second time at a trial and Mr. B.J.'s difficult early childhood. In my view, a sentence of six years is the appropriate sentence. I appreciate that a sentence of six years is still at the low end of the range in particular for an offender who does not come before the court as a first offender. I am also mindful that a sentence of six years provides for a sizeable reduction in sentence for the plea of guilty, Mr. B.J.'s background, his remorse and his positive steps towards rehabilitation. I nonetheless, am satisfied that the objectives of denunciation, deterrence and protection of the public can be properly met with this sentence and that a sentence of six years, while low, properly takes into account all the aggravating and mitigating factors.

49The following additional orders will also be imposed:

a) DNA order pursuant to section 487.04 of the Criminal Code;

b) SOIRA order for 20 years pursuant to section 490.012(1) of the Criminal Code;

c) A weapons prohibition for life pursuant to section 109 of the Criminal Code;

d) A non-communication order with C.S. while Mr. B.J. is in custody pursuant to section 743.21 of the Criminal Code;

e) An Order prohibiting Mr. B.J. from attending any public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre for 10 years pursuant to section 161(a) of the Criminal Code;

f) An Order prohibiting Mr. B.J. from seeking, obtaining or continuing any employment whether or not that employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years for a period of 10 years pursuant to section 161(b) of the Criminal Code; and

g) An Order prohibiting Mr. B.J. from having any contact, including communicating by any means, with a person who is under the age of 16 years, unless under the supervision of a person that the court considers appropriate for a period of ten years pursuant to section 161(c) of the Criminal Code. There will be an exception to this Order to allow Mr. B.J. to communicate with his biological children.