WARNING
The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(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
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
M.C.
Before: Justice A.D. Dellandrea
Heard on: July 19 and September 14, 2018
Reasons for Judgment released on: September 14, 2018
Counsel:
Ms. J. De Vuono — counsel for the Crown
Mr. R. Norris — counsel for the accused M.C.
DELLANDREA J.:
Introduction
1On July 19, 2018, M.C. pled guilty to two counts of sexual interference, contrary to s. 151 of the Criminal Code. The offences spanned a duration of almost nine years, and were committed against two girls with whom he had enjoyed a unique position of trust and authority: his biological daughter, C.N., and his step-daughter, A.R.
2In seeking a global sentence of 6 years' imprisonment, Ms. De Vuono for the Crown underscores the primacy of denunciation and general deterrence as the principles guiding the sentencing of all sexual offences against children. She emphasizes consideration of the number of victims, duration, frequency and gravity of the offences, the nature of the particular trust relationship breached by the offender.
3On behalf of the defendant, Mr. Norris has submitted that a sentence of 3 years' imprisonment is appropriate for Mr. C.'s offences, in view of the profound remorse for his offences, as expressed through his guilty plea, his very low risk of recidivism, and his continued willingness to pay for any counselling required by either of his victims.
4Following the plea in this matter, the proceedings were adjourned for the preparation of a Pre-Sentence Report ("PSR") and counsel's submissions.
Facts
5The facts in support of the offender's guilty pleas were contained in Exhibit #1, the Agreed Statement of Facts. The following is a summary of those facts.
Sexual Interference – C.N.
6The offender's first victim was his biological daughter, C.N. Over an eight year period, between 1997 and 2004, when C.N. was between the ages of 9 and 16, the defendant routinely committed a series of progressively more intrusive acts of sexual misconduct against his daughter. These offences occurred predominantly at their family home, where the defendant resided with his wife and their two children: C.N., and her older brother, A.
7C.N. does not remember a time when sexual abuse at the hands of her father was not part of her childhood. Mr. C. began to touch C.N. sexually when she was approximately nine years old. He disguised his initial acts of abuse as purported "education." He explained the concept of male arousal to his daughter, then demonstrated by showing her his own erect penis while they were in the family hot tub. These "lessons" progressed to him 'teaching' her about female arousal, by first rubbing the outside of her vagina, masturbating her to climax, then inserting his fingers into her vagina. He extended the instruction to include manual masturbation and fellatio. He regularly touched her on the vagina with both his hands and his penis. Mr. C. suggested to C.N. that this information would be useful for her when she was older.
8The early incidents of sexual assault of C.N. occurred in C.N.'s bedroom, the shower, and frequently, in the back yard hot tub.
9Mr. C. told his daughter not to tell anyone what was going on. He complained to her about his sexual dissatisfaction with her mother, and rewarded her for being his "special girl" to whom he gave preferential treatment over her brother.
10In 2001, the defendant separated from C.N.'s mother. The abuse of C.N. intensified following the divorce, as there was no longer a need to hide it from the defendant's spouse. C.N. regularly spent the night in her father's bedroom where he would rub his penis on her buttocks and ejaculate on her back, as well as manually stimulate and digitally penetrating C.N. On at least one occasion he penetrated her with his penis. C.N. described the penetration as partial, and painful.
11The defendant dressed and photographed C.N. in lingerie, and bought her sex toys. He showed her pornography with a view to encouraging her continued interest in sex.
12In 2003, the defendant began dating the woman who would become his second wife, B.R. They promptly began cohabitating, with each of their respective two children residing at least part time with them at their address in Brampton. The defendant's two children, C.N. and her brother A. were joined by B.R.'s two daughters, A.R. and A.R. The couple married in 2007.
13Once he had begun cohabitating with B.R., it became more difficult for the defendant to find time alone with C.N. During this period, Mr. C. took his daughter for drives to empty parking lots away from the family, where he would sexually assault her through mutual masturbation.
14In the summer of 2005, the defendant asked C.N. if she wanted things to stop. She said yes. Eventually it did. They renewed their mutual promise never to tell anyone.
Sexual Interference – A.R.
15A.R. is the offender's step-daughter. Her mother, B.R. and Mr. C. were in a relationship between 2003 and 2014. During this period of time, she resided with them at their home with her sister, and with Mr. C.'s two children, as a blended family unit.
16Between June of 2007 and January of 2008, when she was approximately 12 years of age, the offender routinely touched her in a sexual manner and invited her to touch him. As he had previously done with C.N., the offender groomed A.R. for sexual contact, using 'sex education' as a pretext for unlawful sexualized contact. He showed her his erection, and asked her once if she wanted to touch it. Mr. C. touched her breasts both over and under her clothes, and touched her vaginal area over her clothes. This touching often occurred when he was waking her up in the morning to get ready for school.
Disclosure within the family
17In January 2008, A.R. told her mother that M.C. was touching her inappropriately. Her mother spoke to the accused and the conduct immediately stopped. A.R.'s mother told her not to report the allegations because she was worried that she would lose custody of A.R. and her sister. A.R.'s mother and Mr. C. remained a couple and their living arrangements were for the time unchanged.
18In 2010, A.R. told her sister A.R. about her abuse. In the same year, Mr. C. suggested family counselling with a psychologist. Later that year he admitted to his wife that he had sexually abused both A.R. and C.N.
19The couple remained together until 2014 when Mr. C. moved out of the house.
20After moving out, Mr. C. admitted to C.N. that when he had stopped abusing her, he had started a "relationship" with A.R. He was worried that A.R. would be pressing charges and sought her advice on what to do. He confessed to having kept a topless photos of A.R. on his computer, which a lawyer had advised him he should not have as it could amount to child pornography. C.N. told the accused she would not tell anyone about her abuse and that she would "take it to the grave".
21In 2016, B.R. and the accused divorced. At a family gathering that same year, B.R. told C.N. that she knew about the abuse and that she would be there for her. Later, C.N. shared the story of her abuse with A.R., and sent a letter to her father advising him not to contact her again.
Disclosure to police
22In late 2017, A.R. and C.N. each reported her abuse to the Special Victims' Unit of the Peel Regional Police. On November 6, 2017, Mr. C. surrendered to police and was charged.
Offender Background
23M.C. has no prior criminal record. He is 58 years old and currently resides with his parents. He has been married and divorced twice. The victims of these offences are his biological daughter from his first marriage, and his step-daughter from his second. Mr. C. once had a successful career as an independent IT contractor.
24Mr. C.'s childhood, education, employment and relationship history are thoroughly documented in the psychiatric assessment report prepared by Dr. P. Klassen on behalf of the defence and filed with the Court. Dr. Klassen's report summarizes the results of his extensive interview of the offender as well as his actuarial and clinical assessment of Mr. C.
Psychiatric Assessment: Self-report, Diagnosis & Risk
25Dr. Klassen noted that Mr. C. expressed a sense of responsibility for his offences, stating "I'm the one who put myself here". However, there was also a tendency towards minimization or rationalization expressed during the assessment. With respect to his initial grooming and abuse of C.N., he said "I knew I was doing something wrong" with her, but it "felt like it was a game". He rationalized that it was his dissatisfaction in his sexual relationships with both of his wives that allowed him to be attracted to the comparatively consoling company of his daughter and step daughter. He indicated that he loved the girls' attention and believed that they enjoyed his too. He explained that A.R. "subbed-in" for C.N. when his sexual relationship with his second wife began to suffer, in 2008.
26Mr. C. submitted for phallometric testing. This testing was indicative of heterosexual hebephilia, a sexual disorder described as the sexual preference for female pubescents. When advised the results of his testing, Mr. C. did not express surprise, admitting to Dr. Klassen of his weakness for "the grade 8's".
27Dr. Klassen appraised Mr. C.'s risk to reoffend using the well-recognized actuarial tool, the Static-99. His score on this instrument was -3, the lowest possible score available. Dr. Klassen described Mr. C.'s qualitative risk of sexual offender recidivism as "very low". Dr. Klassen noted the apparent exclusivity of the offender's class of victims, namely: pubescent female children with whom he is in loco parentis, as well as the date of his last offence as having been approximately a decade ago.
Presentence Report
28I also have the benefit of a Pre-Sentence Report ("PSR") which was prepared by Ms. N. McIntyre of Brampton Probation & Parole. The PSR replicates similar biographical information on Mr. C.'s childhood, education, and employment history as was provided in Dr. Klassen's report. The author of the PSR noted a similar tendency of minimization and lack of insight on the part of the offender (page 4), and attributed certain expressions to the offender that he does not accept, such as the comment about him wanting the victims to "get over it" and the suggestion that he appeared not to care about having lost contact with his children. Mr. C. is adamant that he never said any such thing, and is deeply affected by having been separated from his family. I accept that the contents of the report are the author's impressions and also that her qualifications for gauging the sincerity of a subject's remorse, or conduct generally, do not compare to those of Dr. Klassen. I do not place significant weight on the particular statements said to have been made by Mr. C. to the Probation officer.
Sentencing Hearing
29Four Victim Impact Statements ("VIS") were provided at the outset of the sentencing hearing. The first of these were the statements of the offender's two victims: his daughter, C.N., his step-daughter, A.R. Additionally, the court received statements from A.R.'s sister (whose initials are also A.R.), as well as from the offender's former spouse, B.R. Mr. C. also addressed the court and his family directly.
Victim Impact Statements
30Collectively, the four victim impact statements received in this case describe the far-reaching, lasting, and devastating impacts of child sexual abuse committed at the hands of a trusted family member. Permanent emotional damage was inflicted, and continues to be felt, not only by the victims, but also by their sister and mother, whose lives were also deeply affected by the offender's breach of their family trust.
31Both C.N. and A.R. described being deprived of a normal childhood, a normal opportunity for sexual growth and development. The offender's distortion of their sexual maturation left them with profound feelings of shame, anxiety, fear and distrust within their own relationships. While not a direct victim of abuse, A.R.'s sister described her own innocence as being shattered when she learned from A.R. about their step-father's abuse. Both sisters' suffering was compounded when the abuse was revealed to their mother, who initially maintained her loyalty to the offender, and directed the girls never to speak of it to anyone. Among the greatest losses described by both sisters was their loss of the trust relationship not only with their step-father, but also of their own mother. They described the collective sense of betrayal which they suffered as profound.
32B.R., the offender's former spouse, and mother / step-mother to the complainants described the damage of her former husband's conduct as "unfathomable". She felt that she had been masterfully manipulated by him from the outset of her relationship, and remains haunted by her guilt for having failed to protect her children from him. Now that the truth of his offences has been revealed, B.R. is working hard on repairing the broken bonds with her children.
The Offender's Remarks
33After the victim impact statements were received, Mr. C. addressed the court. He apologized to the victims, his family and to the court for committing "ignorant and heinous acts of sexual abuse". He acknowledged his daughters' courage in disclosing their abuse, and accepted that he bears exclusive responsibility for their distress, both in the past, present and future. He expressed his willingness to pay for any private counselling or therapy needed by either victim.
Positions of the Parties
34As indicated previously, there is some distance between the recommended sentences in this matter. Mr. Norris suggests a 3 year sentence, taking into consideration relevant sentencing authorities, the plea of guilt, and absence of a record. Ms. De Vuono recommends a penitentiary sentence in the range of 6 years, in view of what the primary sentence principles of denunciation and deterrence, the prolonged and persistent nature of the abusive conduct, its gravity, the enormous breach of trust.
Relevant Legal Principles
35The offender committed repeated, persistent and profound intrusions upon his daughter and step-daughter's emotional well-being and sexual integrity. His conduct with both victims included his grooming of them for his intended sexual gratification, at the cusp of early pubescence. The Criminal Code instructs me that his daughter and step-daughter's age and the nature of his paternal relationship are facts that I must pay particular attention to during this sentencing and are properly considered to be aggravating factors, see Section 718.2 (a) to (i) and (iii) of the Criminal Code.
36In D.D., [2002] O.J. No. 1061 (C.A.), our Court of Appeal expressed what have come to be considered the guiding principles for the analysis and sentencing of those who sexually offend against children. The Court stated:
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 Section 718(a), (b) and (c) of the 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.
We as a society, owe it to our children to protect them from the harm caused by offenders like the Appellant. 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 like the Appellant and, as such, they make easy prey. People like the Appellant 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.
In this respect, while there may have been a time years ago, when offenders like the Appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long-since passed. Today, that excuse no longer holds sway. The horrible consequences of child sexual abuse are only too well known. (paras 34-36)
37A decade later, in D.M., 2012 ONCA 894, the Court of Appeal acknowledged that in the years since D.D., that court had either upheld or imposed penitentiary sentences of five years or more, in cases where one or more of these aggravating circumstances were present:
- Intercourse (vaginal or anal)
- Oral sex
- Incest
- More than one victim
- Grooming of the victim
- Other acts of physical violence or threatened violence to obtain compliance and keep the abuse secret
- A previous criminal record for sexual abuse
(at para. 68)
Related Sentencing Jurisprudence and Analysis
38It is to be determined on the present facts where Mr. C.'s sentence should fall. In aid of his submission that a 3 year sentence addresses all the principles of sentencing, Mr. Norris has provided me with 5 authorities from our province, which he reviewed in his oral submissions. In his submissions, Mr. Norris acknowledged the distinctions which exist between the facts of many of these cases and those of Mr. C., but recommended that their principles yet serve to guide this admittedly difficult process of sentencing.
J.R., [2002] O.J. No. 357 (C.J.) — A 3 year sentence was imposed for the historical offences of indecent assault and anal intercourse committed over a 3 year period, against a boy for whom the offender had been his scout leader. The charges were laid 38 years after the events. The victim impact was severe. The offender pleaded guilty and was in failing health at the time of his sentencing.
R. v. R.W.D., [2005] O.J. No. 2385 (CA) — In a short endorsement, the Court granted the Crown sentence appeal (of a conditional sentence of 2 years' less a day) and imposed a 12 month sentence for two incidents of sexual touching of his 12 year old step-daughter, committed three weeks apart. The first incident involved his entering her bedroom while she was in bed, pulling down her clothing and ejaculating on her bottom. The second time, he came into her room and performed oral sex.
R. v. J.W., 2013 ONSC 1712 — The 18 year old offender was sentenced to 3 and a half years imprisonment for repeated incidents of sexual touching, masturbation, and oral sex and attempted anal sex of the 10 year old victim, who was his neighbour and friend. The court received and acknowledged evidence from the victim with respect to the significant negative impact of the offences on his emotional well-being.
R. v. Hirstwood, 2015 ONCJ 489 — The 33 year old offender enticed a 13 year old daughter of a family friend into a sexual relationship. They exchanged text messages and engaged in two sexual encounters, which included oral sex and unprotected vaginal intercourse. In sentencing that offender to 5 years imprisonment, the court acknowledged the devastating impact to the victim, who attempted suicide following the offences. The mitigating effect of the offender's guilty plea, which spared the victim the trauma of testifying was also noted.
39Ms. De Vuono, for the Crown, in addition to relying on D.D.'s instructive language, provided two other appellate decisions, in P.M, 2012 ONCA 162, [2012] O.J. No 1148 (C.A.), and I.F., 2011 ONCA 203, [2011] O.J. No. 1110 (CA), in support of her request for a 6 year sentence. I have also been provided with the two trial decisions by the Crown:
R. v. J.W, [2014] O.J No. 6501 (SCJ) — Following a jury trial the offender received a 12 year sentence for multiple incidents of sexual touching committed over a 4 year period against 7 victims, with whom he had a relationship of some form of trust, although not biological.
R. v. L.M., [2018] O.J. No. 4258 (SCJ) — After trial, the offender was sentenced to 11 years imprisonment for offences spanning a 20 year period against 4 young victims, 3 of whom were his nieces. The victims were all under 12, some as young as 3.
40I have considered all of the authorities provided to me by the parties as well as by my own research in an effort of determining the appropriate sentence to impose in this particular case. Sentencing is a highly individualized exercise which requires an assessment of the particular offender's unique offending and personal circumstances. It is not surprising, then, that none of the sentencing cases provided by either party neatly matches the circumstances of Mr. C.'s offences, and personal circumstances. The cases supplied by the defence dealt with offences which were notably less frequent and prolonged as Mr. C.'s, dealt only with a single victims, and did not include a relationship of paternity. With the exception of R. v. I.F. supra, which I do find to be instructive, the facts disclosed in the Crown's sentencing cases referred to offences committed against many more victims, some of more tender years, and others including more intrusive sexual acts.
41What emerges from these authorities, however, are the now well-recognized aggravating and mitigating factors, and the sentencing principles which must guide my analysis.
Mitigating Factors
42There are a number of clearly mitigating factors here, which I have considered. Mr. C. pleaded guilty, and spared his victims and his family the agony of a trial. He offered what I accept to have been a sincere apology and expressed his acceptance of full responsibility to the court, and to his victims and his extended family on the date of the guilty plea. It was very apparent to me when Mr. C. spoke he meant what he said. He appears a man who is emotionally broken, albeit by actions of his own choosing. The impact of his having lost all connections to his family has clearly devastated Mr. C. and this was apparent to me when he spoke. However, Mr. C.'s public apology and remorse are attenuated, to some degree, by overtones of victim blaming which were noted by both Dr. Klassen and the author of the PSR in their reports. His comments about the victims having been apparently eager to give and receive sexual affection to him are of some concern. There are gradations on the spectrum of remorse, and acceptance of responsibility. Mr. C. is to be credited for accepting responsibility and expressing remorse, but his somewhat qualified expressions place him somewhere short of the top of the scale.
43I also acknowledge that when A.R. told her mother about the inappropriate touching in 2008, his offending behavior ceased.
44In additional mitigation, Mr. C. has offered to pay for any counselling needed by his family members. He has been assessed by Dr. Klassen to present very low risk to recidivate. Finally, he is a first offender. The principle of restraint requires that I sentence him to the shortest possible sentence of imprisonment that is capable of satisfying the goals of denunciation, deterrence and the need to separate Mr. C. from society.
Aggravating Factors
45There are however many more aggravating factors.
Mr. C. abused his unique position of trust, namely, his parental relationship, with his daughter and step daughter. The breach of trust in this case could only be described as profound.
The abuse of more than one victim.
The duration of the abuse. With respect to C.N., the abuse spanned 8 years. With A.R. the abuse occurred over 7 months.
The frequency of abuse was near constant with both complainants. In C.N.'s case, she cannot remember a point in her childhood when she wasn't abused.
The nature of the sexual conduct admitted to with C.N. includes repeated instances of oral-genital contact, digital penetration, ejaculation, and at least one incident of partial vaginal penetration. With A.R. the conduct included touching both over and under her clothes, and exposing her to his penis.
The offender engaged in grooming behaviour with both victims, which our Court of Appeal has recognized as a distinct aggravating factor, R. v. Woodward, 2011 ONCA 610 and R. v. F.(G.C.) (2004), 188 C.C.C. (3d) 68.
The promise of secrecy extracted by the offender from both victims, particularly C.N.
Mr. C. took photos of C.N. in lingerie, exposed her to pornography and used sex toys.
The profound and lasting emotional, psychological and financial harms described by the complainants in their Victim Impact Statements as having been occasioned by his offences.
46After considering all of the facts of this case, I return to Justice Moldaver's instruction in the Court of Appeal's decision of Woodward, paragraph 76:
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 offenders conduct and the life-altering consequences that can and often do flow from it. While the effect 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 and society's well-being, and the well-being of our children, must take precedence.
47The frequency, duration and nature of Mr. C.'s sexual abuse of his daughter and step daughter demands a severe sentence to reflect the gravity of his conduct and his moral blameworthiness for it, as well as consideration of the mitigating factors, most notably his guilty plea. Mr. C. breached the highest duty of protection and trust which can be owed by an adult to a child: the duty of a parent. Mr. C. exploited his daughter and step-daughter for his own subversive sexual gratification, in the very place where they should have been entitled to feel safe: their home. For many of the instances of abuse of C.N., the sexual conduct occurred in what had been the matrimonial bed, which her mother had formerly occupied. Indeed, Mr. C. perversely treated both of his victims as logical substitutes for his wives as sexual partners, when those adult relationships waned.
48His abuses of both girls began at the dawn of their pubescence, destroying any hope of their having healthy, age-appropriate experiences as part of their developing sexuality. The devastating impacts of his conduct persist in the complainants' collective and individual struggles, to this day. While each of them has persevered in a spirit of great courage and optimism, as expressed in their compelling Victim Impact Statements, Mr. C.'s conduct has left them with permanent emotional scars.
Disposition
49Taking into account the repeated breaches of trust and the particular sexual violations that occurred and Mr. C.'s guilty plea, as well as the principles of restraint and totality, in my view the appropriate sentence is one of 4 years, 8 months, or 56 months imprisonment. I apportion the sentence as follows:
For the sexual interference against his daughter C.N., the sentence is one of 40 months imprisonment.
For the sexual interference of his step-daughter A.R., the sentence will be 16 months imprisonment, consecutive.
The total sentence to be served will be one of 56 months imprisonment.
Ancillary Orders
The following additional orders will be imposed:
There will be a S.O.I.R.A. order for life pursuant to s. 490.013(3)
There will be a D.N.A. order.
There will be a Section 109 order for 10 years.
There will be an Order pursuant to s. 161(1)(a) – (b) for a period of ten years.
Released: September 14, 2018
Signed: Justice A.D. Dellandrea
