PUBLICATION BAN NOTICE

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED, PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE K.L. McKERLIE, ONTARIO COURT OF JUSTICE, DATED APRIL 18, 2018

Court Information

Date: April 18, 2018

File No.: 3211-998-18-74-00

Court: Ontario Court of Justice

Location: Stratford, Ontario

Parties

Her Majesty the Queen

v.

D.L.

Appearances

T. Koverko – Provincial Crown

M. Fair – Counsel for D.L.

Before

The Honourable Justice K.L. McKerlie

Heard: In Writing

Reasons for Sentence

Introduction

McKERLIE, J. (Orally):

On this matter there is a publication ban under section 486.4 of the Criminal Code, which prohibits the publication of the name or any information whatsoever which might disclose the identity of the complainant in this matter.

Charge

D.L., on Information 74 for 2018, you are being sentenced today on the charge of sexual interference by repeatedly engaging in vaginal intercourse, anal intercourse and other acts of sexual touching on a young girl, who was eleven years old when the abuse commenced in January 2017.

The wording of the charge is that between January 1st, 2017 and January 14th, 2018, you did, for a sexual purpose, touch [victim], a person under the age of sixteen years, directly with your penis, contrary to section 151 of the Criminal Code.

The Crown elected to proceed by Indictment. Accordingly, the maximum sentence of imprisonment is 14 years.

The charge was laid on January 18th, 2018. On February 7th, 2018, you entered your election to proceed in the Ontario Court of Justice and pled guilty.

Mitigating Factor: Early Guilty Plea

Your very early guilty plea, which is a formal expression of remorse, is a strong mitigating factor for sentencing. To your credit, you took immediate responsibility for your actions, thereby sparing the victim from any prospect of being required to testify at a preliminary inquiry or at a trial. I emphasize that I place significant weight on the mitigating factor of your very early guilty plea. It is a factor which reduces the length of the sentence of imprisonment.

Facts

The facts supporting your guilty plea are appalling and require a strong message of denunciation and deterrence. At the age of forty-three, you embarked upon the systematic sexual abuse of an eleven-year-old victim in her own home, a place where she should have been safe. A place where she should have enjoyed the innocence of childhood. Instead, you stole her innocence and sexually abused her for your own selfish, sexual gratification.

The facts are as follows. You dated the victim's mother from 1994 to 2006. In 2007, the victim's mother entered into a common-law relationship with [victim's father]. You needed a place to live and moved in with the couple. When they subsequently moved to a house in [municipality], you came with them. There was a financial agreement and you had your own living quarters, which consisted of a large room with a bed, television, several gaming systems, a computer, coffee maker and fridge.

When [victim's mother] and [victim's father] were not able to have children, they sought out adoption. In the summer of [year], they finalized the adoption of the victim and [number] of her siblings. Another sibling was adopted in [year]. There are [number and ages of siblings]. The victim did not know you until she was adopted and moved into the home in which you resided with [victim's mother] and [victim's father]. Access from your bedroom to the victim's bedroom is up the stairs located directly outside your bedroom. It was not unusual for the children to spend time with you in your bedroom playing video games.

In January 2017, you commenced your sexual abuse of the victim, which progressed to regular sexual intercourse during a one-year period ending on January 14th, 2018. The young victim was eleven years old when the abuse commenced in January 2017. She is now twelve years old and a student in grade 7.

The victim reported that the first time you engaged in vaginal intercourse, she bled from her vagina. The first time you engaged in anal intercourse, she made you stop because she was in pain. When you ejaculated, you did so in the victim's mouth, on her breasts, on her buttocks or in a napkin. The victim was worried about becoming pregnant. You sometimes, but not always, wore a condom. You did not wear a condom during the last incident of sexual abuse on January 14th, 2018.

Most of the sexual abuse took place in your bedroom, but it also occurred in the victim's bedroom. You had the victim watch pornographic videos on your cell phone, while you performed sexual acts on her. You video-recorded and took photographs of the victim performing fellatio on you. You told the victim that you would save the pictures and videos, so no-one would see them.

Generally, you directed the victim to remove her clothing, although sometimes only her pants were pulled down. You directed her to leave her undergarments in your bedroom. On most occasions, there were other people in the kitchen or rec room of the house while you were sexually abusing the victim in the bedroom.

On two occasions, with the consent of her parents, you took the victim to a motel. You also took the victim to a comedy show and to an amusement park on several occasions, but did not buy her gifts.

You sexually abused the young victim by performing the following sexual acts on her:

• cunnilingus;
• analingus;
• vaginal intercourse with the victim on her back, or with the victim on her hands and knees while you penetrated her from behind;
• anal intercourse with the victim on her hands and knees while you penetrated her from behind;
• vaginal and anal penetration with various vibrators; and
• vaginal and anal penetration with a strap-on dildo.

The sexual abuse also included the victim performing the following sexual acts on you:

• masturbation;
• fellatio;
• analingus; and
• anal intercourse with the victim wearing a strap-on dildo and penetrating your anus.

The sexual abuse only ended when you were caught by one of the victim's siblings. On January 14th, 2018, the other children were playing outside. One of the victim's siblings peeked in the window of your bedroom to ask you to come outside to play. When she looked in the window, she saw you with your pants down around your ankles. The victim was on the bed, kneeling on her hands and knees with her pants down. The sibling did not actually see a sexual act, but was bothered by what she did see. She confronted the victim and disclosed what she saw to her mother the next day. [Victim's mother] confronted you, and the police were called.

The victim told the police that she was too scared to tell her parents about what was going on. She told you that what you were doing was wrong, but you told her that you "would not get caught". The victim described the "sex toys" used in sexually abusing her, which the police subsequently recovered from your bedroom.

On January 15th, 2018, the victim was taken to the hospital and a sexual assault evidence kit was completed. A search warrant was executed on your bedroom during which the police located a number of items, including a variety of vibrators, anal beads, a strap-on dildo, a sports bra and "booty shorts" underwear.

A very short victim impact statement was provided by the victim, which indicates that she is seeing a counsellor and does not fear for her safety because she knows that you will not be able to talk to her or see her. She describes you as making a mistake and indicates that she knows you will go to jail. [Victim's mother] reports that the victim is doing well in school and participating in sports, but there are concerns respecting her sexualized behavior.

Pre-Sentence Report

Sentencing was adjourned for the preparation of a pre-sentence report, which sets out your personal background and current circumstances. At the age of forty-four, you have no prior record and no dependents. The pre-sentence report indicates that those who know you describe you in positive terms, with a stable employment history and positive work ethic, which were confirmed in the letters of support filed as exhibits.

You report that in your formative years you were exposed to domestic violence, your father's alcoholism and physical, verbal and emotional abuse by your father. After your parents separated, you resided with your mother, who exhibited erratic behaviour and struggled with mental health issues.

At the age of sixteen or seventeen, you moved in with the victim's mother. You report that you resided with [victim's mother] for 2 years, dated for 10 years and then fell out of love and drifted apart. You subsequently moved in with [victim's mother] and her new partner and assisted them financially.

You report that after the adoptions took place, you enjoyed spending time with the children and helping [victim's mother]. You "felt fulfilled living with them". You were involved in activities with the children, including taking them to the beach, movies and the amusement park. You report that you were "emotionally close" to [victim's mother] and have never been involved in any other significant relationship. [Victim's mother] reports that she has known you for 30 years and you were involved in an intimate relationship for approximately 15 years. The pre-sentence report states:

As a result of the subject's actions, [victim's mother] reports that she "lost my best friend, it feels like a death" and that he "betrayed my trust". She reports this situation has been "overwhelming" and "physically draining" and that she has begun to engage in counselling. [Victim's mother] reports that she would be open to having communication with the subject in the future, as she has always been a support for him and would like to continue that.

With respect to the charges before the court, [victim's mother] reports that you were "at a low point in your life" and "made bad choices". Remarkably, given the extent of your sexual abuse of her daughter, [victim's mother] reports that she believes you are not a threat to children and that you are not sexually attracted to children. She also reports that you were great with her children and like an uncle to them.

I emphasize that you are, in fact, an untreated sex offender and this Court is very concerned with the very real threat and risk of danger you pose to the safety of vulnerable children.

Your statements in the pre-sentence report respecting the victim are troubling. It appears you considered yourself to be in a dating relationship with the eleven-year-old victim. The pre-sentence report states at page 6:

In regards to the current offence, the subject accepts responsibility and acknowledges that his actions were "wrong". He reports that he and the victim became close when she was age eleven, 2 years after she was adopted by [victim's mother] and her husband, and that she was twelve when they started to become intimate. He advises at that time he wanted their relationship "to be known and accepted". He reports that he and the victim provided each other with attention they "both needed" and "cared for each other". He describes them as having been "dating" and notes that at times they were openly affectionate in public places. He reports that he would "hint" to [victim's mother] about his relationship with the victim, and that people approached her about it but that she would "brush it off". He reports that he "eventually would have told" [victim's mother] about the offence. The subject advises that the victim "would get what she wanted", regularly demonstrating attention-seeking and sexualized behaviours in the family home. He advises that he purchased the sex toys as an alternative option for the victim, as well as gifts for others.

You report that your "heart and head were clouded". You also report that other members of that family were involved in intimate relationships with significant age gaps, which "clouded" your judgment around the appropriateness of your relationship with the victim.

Mr. D.L., let me be perfectly clear to you and to all those impacted by this offence. This was not a dating relationship or intimate relationship with a significant age gap. This was child sexual abuse. You systematically abused the child victim, in her own home, over the course of a year, when the victim was eleven to twelve years old. You lived in that home and were a close and trusted family friend. You abused your position of trust. There were often other people in the home when you were sexually abusing the child. You penetrated the child vaginally and anally with your penis, and with a variety of vibrators and dildos. The abuse also extended to fellatio, analingus and cunnilingus. You provided the child with a strap-on dildo for penetrating your anus, and also used it to penetrate her. You exposed the child to pornography and you took videos and photos of the sexual abuse.

The pre-sentence report does indicate that you are concerned about how your actions have affected the victim, her future relationships, her adulthood and the remainder of her family members. I emphasize that the ongoing impact of your actions in robbing the victim of her sexual innocence cannot be overstated.

The pre-sentence report indicates that you have received a referral to a psychologist in an attempt to understand your choices and offending behavior. At this point, you remain an untreated sexual offender. You report some suicidal ideation, but state you would not follow through because you have ambitions to be happy and to have a relationship and a family in the future. The pre-sentence report concludes with the following Assessment:

Undoubtedly, the subject's experience as a child was significant and has impacted him as an adult. He may benefit from attending counselling to address his family background issues and how they may correlate to his adult life and offending behavior. A referral to an agency such as the Centre for Addiction and Mental Health, Sexual Behaviours Clinic for an assessment and phallometric testing may also be appropriate in this case to determine if any underlying sexual disorders exist and to assist in making appropriate counselling referrals.

Sentencing Submissions

I now turn to the sentencing submissions made by counsel. Defence counsel appropriately acknowledges that the range of sentence for this offence committed in these circumstances is a mid to upper single digit penitentiary term. Placing significant weight on the mitigating circumstances of your very early guilty plea and lack of prior record, defence counsel advocates for a five-year sentence of imprisonment.

The Crown submits that given the aggravating circumstances of the offence, including the age of the victim, the breach of trust, the duration of the sexual abuse, and the extent of the sexual abuse involving repeated vaginal and anal penetration, an eight-year sentence of imprisonment is required to meet the sentencing objectives of denunciation and deterrence.

The Crown also seeks the following orders, which are not in dispute:

1. A primary DNA order;
2. A Sex Offender Information Registration Act order for 20 years;
3. A 10-year weapon prohibition order under section 109 of the Criminal Code;
4. A 20-year order under section 161 of the Criminal Code; and
5. An order under section 743.21 of the Criminal Code, prohibiting you from communicating with the victim, directly or indirectly, while serving the sentence of imprisonment.

Law

Section 718.01 of the Criminal Code specifically directs that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. In support of their sentencing submissions, counsel have relied upon the direction and guidance provided by the Ontario Court of Appeal in the following decisions:

• R. v. D.D., [2002] O.J. No. 1061
• R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216
• R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616
• R. v. F.L., 2018 ONCA 83, [2018] O.J. No. 482
• R. v. J.N., 2013 ONCA 251, [2013] O.J. 1834
• R. v. R.O., 2015 ONCA 814, [2015] O.J. 6170

Counsel also rely on the following Ontario Superior Court of Justice trial decisions as examples of the application of those principles to particular factual scenarios:

• R. v. O.B., [2008] O.J. No. 4423
• R. v. P.C., [2016] O.J. No. 1545
• R. v. F.L., 2016 ONSC 1215, [2016] O.J. No. 844
• R. v. P.B., [2016] O.J. No. 4047

as well as the Ontario Court of Justice decision in

• R. v. B.J., 2016 ONCJ 822

Sentencing Principles

The following principles emerge from the appellate decisions filed:

1. Sentencing Ranges Are Guidelines, Not Fixed Rules

[Sentencing ranges] are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases: D.D. at paragraph 33.

2. Clear Message to Adult Sexual Predators

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: D.D. at paragraph 34.

3. Protection of Children

We as a society owe it to our children to protect them from the harm caused by [adult sexual offenders]. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators and, as such, they make easy prey. [Adult sexual offenders] know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow: D.D. at paragraph 35.

4. Sentencing Range for Abuse in Position of Trust

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: D.D. at paragraph 44.

5. Harm to Victims and Families

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 render 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: D.D. at paragraph 46 and Woodward at paragraph 73.

6. Single Victim Cases

It is the conduct that is aimed at; while the number of victims will be a factor, the instruction from D.D. does not become inapplicable where there is only one victim; D.M. at paragraph 36.

7. Minimum Sentence for Prolonged Abuse

On the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be 5 or 6 years in the penitentiary: D.M. at paragraph 44.

Analysis

I have thoroughly reviewed and considered the appellate decisions relied upon by counsel, as well as the trial decisions in which sentencing judges have applied the direction given by the Ontario Court of Appeal to specific factual scenarios. In these reasons I do not propose to dissect the factual scenarios in order to compare and contrast the extent to which the egregious factors in those decisions are similar to or distinguishable from the facts in the present case.

The Ontario Court of Appeal has clearly and consistently held that the minimum sentence for prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust is 5 or 6 years in the penitentiary. The Court of Appeal has consistently approved sentences in the range of 7 to 8 years.

Aggravating Factors

The aggravating factors in this particular case are significant and obvious:

1. The young age of the child – The victim was only 11 years old when the abuse commenced.

2. The vulnerability of the child – You abused your position as a trusted family friend, who was actually residing in the victim's home. In fact, your presence in the household pre-dated the victim's adoption.

3. Abuse in the victim's own home – You repeatedly sexually abused the child in her own home, even at times when other people were in the house.

4. Duration, repetition and extent of abuse – The sexual abuse occurred over a one-year period and included repeated acts of vaginal and anal intercourse and penetration by a variety of vibrators and a strap-on dildo.

5. Failure to use protection – You did not always wear a condom.

6. Recording of abuse – You video-recorded and took photographs of the victim performing fellatio and told her that you were saving the photos and the videos.

7. Exposure to pornography – You had the child watch pornographic videos while you performed sexual acts on her.

The constellation of aggravating factors is significant. The totality of your reprehensible conduct must be condemned and denounced in the clearest possible terms. The sentence must send a strong message of specific and general deterrence. As consistently emphasized by the Court of Appeal, "prey upon innocent children and you will pay a heavy price".

Balancing Aggravating and Mitigating Factors

The distinguishing feature between this case and the factual scenarios addressed in the Crown's brief of authorities is the mitigating factor of your very early guilty plea. The sentence imposed today must strike the proper balance between the aggravating circumstances of the offence and the strong mitigating factor of your early guilty plea.

I emphasize that this was a guilty plea entered at the earliest possible opportunity. The disclosure was made by the victim's sibling on January 15th, 2018. The charge was laid on January 18th, 2018. Less than a month later, on February 7th, 2018, you recorded your election to proceed in the Ontario Court of Justice and pled guilty. You spared the victim from any prospect of being required to testify at a preliminary inquiry or a trial. Accordingly, I place significant weight on the mitigating factor of your very early guilty plea and formal acceptance of responsibility. It is a factor which reduces the length of the sentence of imprisonment.

In R. v. D.D. at paragraph 5, the Court of Appeal noted that the young victims "had been compelled to testify not once but twice, first at a preliminary inquiry and then again at trial. In each instance, they were required to re-live the horror of their ordeals and suffer the humiliation of cross-examination designed to impugn their integrity".

To your credit, you spared the victim of this offence the ordeal of being required to testify or even prepare to testify at a preliminary inquiry or trial.

Sentencing Considerations

In determining the appropriate sentence, I have taken into account the circumstances of the offence, your background and personal circumstances, the sentencing submissions of counsel, including the relevant mitigating and aggravating factors highlighted by counsel, the guidance provided by the appellate decisions filed, and the purpose, principles and objectives of sentencing as set out in ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code.

There is no mathematical calculation by which a sentence is reduced to take into account the mitigating factor of a very early guilty plea. As noted, sentencing is not an exact science. The goal is to fashion a fit and just sentence that takes into account both the mitigating and the aggravating circumstances and achieve the sentencing objectives set out in the Criminal Code.

As expressly mandated by section 718.01 of the Criminal Code, and consistently emphasized by the Ontario Court of Appeal, children must be protected from adult sexual offenders through sentences that give primary or paramount consideration to objectives of denunciation and deterrence.

Sentence Imposed

Placing significant weight on the mitigating circumstance of your very early guilty plea, I sentence you to a term of imprisonment of 6 and 1/2 years. In addition, I impose the following ancillary orders:

1. Communication Prohibition Order

An Order pursuant to section 743.21 of the Criminal Code, which prohibits you from communicating, directly or indirectly, with [the victim] during the custodial period of the sentence.

2. Primary DNA Order

A Primary DNA Order, which requires you to provide samples of bodily substances for DNA data banking purposes prior to 4:00 p.m. today.

3. Weapon Prohibition Order

A Weapon Prohibition Order pursuant to section 109 of the Criminal Code, which prohibits you from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, explosive device or ammunition for a period of 10 years.

4. Sex Offender Information Registration Act Order

A Sex Offender Information Registration Act Order for a period of 20 years. You must report for the first time in person to the registration centre referred to in the Sex Offender Information Registration Act and that will be in the area in which your main residence is located. You are to report within 7 days from your release from custody after serving the custodial portion of the sentence. You must subsequently report to the registration centre referred to in the Act whenever required for a period of 20 years. Information relating to you will be collected and when you report you shall provide information relating to you under sections 5 and 6 of the Sex Offender Information Registration Act to a person who collects information at the registration centre. Information relating to you will be registered in a data base and may be consulted, disclosed and used in circumstances set out in the Act. If you believe the information contains an error or omission, there is a procedure for correcting that information and you have the right to apply to a court to terminate the order and the right to appeal the decision of that court. If you are found to have contravened the order, you may be subject to a fine or imprisonment or both. If you are found to have provided false or misleading information, you may be subject to a fine or imprisonment or both.

5. Prohibition Order Under Section 161

A Prohibition Order under section 161 (a) (a.1), (b) and (c) of the Criminal Code for a period of 20 years, which prohibits you from:

(a) Attending a 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 or playground.

(a.1) Being within two kilometres of the dwelling house where [victim] normally resides, her school or her place of employment.

(b) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

(c) Having any contact, including communicating by any means, with a person who is under the age of 16 years unless the offender does so under the supervision of a responsible adult.

6. Victim Surcharge

A Victim Surcharge of $200.00 which is required to be paid within 60 days.

7. Recommendation for Assessment and Treatment

In addition, there will be a recommendation on the warrant for committal that you receive assessment and treatment for sex offence specific conduct, including a referral to an agency such as the Centre for Addiction and Mental Health, Sexual Behaviours Clinic for an assessment and phallometric testing to determine if any underlying sexual disorders exist and to assist in making appropriate counselling referrals.

Released: April 18, 2018

Justice K.L. McKerlie Ontario Court of Justice