R. v. L.R., 2021 ONCJ 502

CITATION: R. v. L.R., 2021 ONCJ 502

DATE: September 23, 2021

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

L.R.

Before Justice P. Downes

Heard on November 23, 2020 and July 16, 20, 2021.

Reasons for Sentence delivered on September 23, 2021.

Anita Kocula and Anna Gilmer Counsel for the Crown

Jonathan M. Pyzer Counsel for L.R.

NOTE: THERE IS AN ORDER UNDER S. 486.4(1) OF THE CRIMINAL CODE THAT THE IDENTITY OF ANY OF THE VICTIMS OR WITNESSES IN THIS CASE SHALL NOT BE PUBLISHED, BROADCAST OR DISTRIBUTED IN ANY MANNER.

P. DOWNES J.:

1. INTRODUCTION

1On November 23, 2020, the day scheduled for pre-trial motions, L.R. pled guilty to two counts of sexual interference, three counts of sexual assault, and three counts of sexual assault causing bodily harm. These offences arose out of the long-term sexual abuse of his two daughters. He became their father when they were young after he married their mother. He sexually assaulted both of them over a number of years. He fathered three children with them, and compelled them to keep the true identity of their children’s father a secret until he was finally exposed in 2019. He must now be sentenced.

2The Crown seeks a global sentence of between 20 and 25 years, and an order under s. 743.6(1) of the Code requiring L.R. to serve a minimum of ten years before being eligible for parole, along with various ancillary orders.

3The defence says that a 10 to 12 year sentence should be imposed and opposes the parole ineligibility order.

2. THE OFFENCES

4L.R. is the father of the two victims, M.W., and J.R. The victims are the daughters of D.R. They have two other sisters. L.R. married D.R. when the victims were young children, and legally adopted all four girls.

5When M.W. was a young child, and before L.R. came into their lives, D.R. was in a relationship with another man. That man sexually abused M.W. and physically abused D.R. He would tell M.W. that if she told anyone what was happening, he would kill her mother. She believed him. When M.W. was around 8 years old, D.R. ended her relationship with that man and made him leave the home.

6D.R. soon met L.R. and they began a relationship. M.W. recalls an incident when the other man came to the house. She was scared and L.R. made him leave. She felt that her mother was safe with L.R.. When M.W. revealed the sexual abuse that she had suffered at the hands of the other man, L.R. was a support for her and D.R. as those charges moved through the court system. Initially, L.R. was a positive father figure to M.W.

7A few years later, however, M.W.’s relationship with L.R. changed. When M.W. was approximately 12 years old, L.R. touched her breasts and her vagina. He said he was going to make her feel good. The first time it happened, the touching was to the outside of her vagina. It lasted a few minutes. A few weeks later, L.R. touched M.W. again. This time he digitally penetrated her vagina. This touching occurred occasionally over the next couple of months. Some time before the end of 1993, L.R. forced vaginal intercourse with M.W. He did not use a condom. He ejaculated inside of her. Vaginal intercourse took place approximately six to seven times from December 1993 to early 1995. L.R. never used a condom.

8During the same time period, L.R. also had M.W. perform fellatio on him and he performed cunnilingus on her. This happened approximately five to six times during that period.

9When M.W. was 13, she became pregnant by L.R. M.W. discovered that she was pregnant when she was approximately three months along. She told L.R. and he told her not to tell anyone. M.W. actively hid her pregnancy. As her due date approached, however, M.W. told L.R. that she would have to tell someone because the baby was coming.

10L.R. hatched a plan that she should tell her mother that a boy from her class at school was the father. L.R. also said that when M.W. told her mother, he would feign shock and anger with her. They carried this out as planned.

11Because L.R. had told M.W. not to tell anyone about it, she did not visit a doctor for the first eight and a half months of her pregnancy.

12M.W. gave birth to a boy, B.R., in October 1995. DNA testing confirmed that L.R. is the biological father of that child.

13After the birth, L.R. told M.W. that he loved her. He said he was so happy that she had given him his first son. He said that they would eventually be together.

14Five months later, L.R. resumed forcing vaginal intercourse on M.W. He did not use a condom and would ejaculate inside of her. This continued until M.W. was 16 or 17 years old.

15Throughout the years of abuse, M.W. never told anyone what was happening. She did not want to break up the family. L.R. often told her that the family was happy and that she should not destroy the family by telling people about their child. She was also scared that if her mother left L.R., she would end up in another physically abusive relationship.

16For the same reasons, M.W. maintained her silence about the abuse even after it stopped. By that point, despite the history of abuse, her life had gained some sense of normality.

17On November 5th, 2019. M.W. finally disclosed the assaults to police and provided a videotaped statement.

18I turn next to the offences against J.R.

19When J.R. was 10 years old, L.R. began sexually assaulting her.

20On the first occasion, J.R. woke up in the middle of the night as she had trouble sleeping and went to the living room to watch a movie. L.R. followed her. He sat beside her on the couch and placed a blanket over them. He touched her chest and then moved his hand down and touched the outside of her vagina with his finger. L.R. exposed his penis and told J.R. that the penis is to go inside the vagina. He exposed his testicles and explained that testicles hold sperm.

21This kind of incident happened repeatedly between 1996 and 1997; L.R. regularly sexually assaulted J.R. by touching her vagina.

22The family moved homes several times during this period and J.R. recalls him touching her at each home. From approximately 1997 until approximately 2002, L.R. forced vaginal intercourse with J.R.

23In late 2002 or early 2003, when J.R. was 16 years old, she was at home with L.R. He forced vaginal intercourse until he ejaculated inside her. As a result, she became pregnant.

24J.R. did not tell L.R. that she was pregnant. He continued sexually assaulting her throughout the pregnancy, which she hid from everyone around her, including L.R., because she was afraid of what would happen if people found out. She was eight months pregnant when her mother D.R. found out. J.R. told her mother that the father was a boy from school.

25In September 2003, J.R. gave birth to a boy, N. DNA testing confirmed that L.R. is the biological father of that child.

26The forced vaginal intercourse resumed a couple of months after the birth and continued regularly through 2004 and 2005. As a result of one instance of forced vaginal intercourse in 2005, J.R. again became pregnant.

27In April 2006, when J.R. was 19 years old, she gave birth to a girl, R. DNA testing confirmed that L.R. is the biological father of that child.

28The forced vaginal intercourse with ejaculation resumed again after the second birth. For most of her adulthood J.R. was living at home. After she moved out of her mother’s and L.R.’s home when she was around 32 years old, L.R. would stay with her for extended periods. The vaginal intercourse continued through to October of 2019.

29On October 8th, 2019, L.R. was arrested in Durham Region on other charges related to J.R. He was released on a promise to appear and an undertaking to an officer with conditions not to have any contact with J.R. and not to be within 100 metres of her.

30On October 29th, 2019, L.R. picked up R. from school and drove her to a shopping mall in Oshawa. In the car, L.R. told R. that she was his daughter. He told her that he and J.R. had made a mistake and that she should not tell anyone except her mom. R. was 13 years old at the time. She had always called L.R. “Poppa” and thought of him as her grandfather. She did not know how to react.

31On November 5th, 2019 J.R. and M.W. provided videotaped statements to the Police. While at the station to provide her statement, M.W. received messages from L.R. via Facebook Messenger pleading with her not to give a statement. L.R. was arrested later that day and has been in custody ever since.

3. L.R.

32L.R. is 70 years old. He has no pertinent criminal history. In August 2020 he pled guilty to assaulting J.R. in October 2019.

33L.R. has a lengthy work history after graduating from grade 12, working various retail and other jobs over the years. In addition to M.W., J.R. and their two sisters, L.R. is the biological father of six other daughters from two previous marriages.

34The parties agreed that I could consider the psychiatric assessment report prepared by Dr. Alina R. Iosif in relation to sentencing. Dr. Iosif also testified at the sentencing hearing. Her report provides a detailed account of L.R.’s personal history, including his self-report that he himself had been sexually abused as a child and had, as Dr. Iosif described it, a “sad childhood.” It is otherwise largely unremarkable.

35The report discloses no indication of mental illness of any description.

36L.R. wrote a letter of apology for his sentencing. M.W.’s and J.R.’s two sisters, also adopted by L.R. when he married their mother, wrote letters of support for him.

4. THE LAW OF SENTENCING

37Sentencing should be a very human process. It is not a scientific exercise, and there is rarely only one outcome capable of satisfying the relevant sentencing objectives. As the Supreme Court of Canada has put it, sentencing “involves a variety of factors that are difficult to define with precision.”[1] Nevertheless, sentencing judges must be guided by statutory and common law rules and principles in order to arrive at a fit sentence that is responsive to the particular offence and the particular offender before the court.[2]

38The case-specific nature of the sentencing process is what makes the proportionality principle in s. 718.1 of the Code the touchstone of all fit sentences: a sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender.”[3] In other words, it must be enough to satisfy the relevant sentencing objectives, but no more than is necessary.[4]

39Proportionality, however, is not the only sentencing principle. The principle of restraint dictates that if a term of imprisonment is to be imposed, it should, in effect, be “the least quantum which will achieve the overall purpose of being an appropriate and just sanction.”[5] It must be enough to properly reflect the sentencing objectives, but not too much.

40A sentence must not only accord with recognized principles, it must also be consistent with the purposes identified in s. 718 of the Code:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

41Particular categories of offences also carry with them specified sentencing objectives. Offences against children, or offences involving the abuse of a person who is vulnerable because of personal circumstances are two such examples applicable in L.R.’s case.[6] Section 718.01 of the Criminal Code stipulates that a sentence for an offence that involved the abuse of a person under eighteen years, shall give primary consideration to the objectives of denunciation and deterrence.[7]

42Arriving at the appropriate sentence also requires a consideration of both aggravating and mitigating circumstances. For example, it is an aggravating feature that the offence is committed against a family member, involved abuse of a child or was an abuse of a position of trust or authority in relation to the victim.[8] Pleading guilty and not having a criminal record are examples of mitigating factors which should serve to moderate the sentence. All of these particular circumstances are features of the sentencing landscape in this case.

43I have reviewed all of the cases submitted by counsel, and more. It would serve little purpose to review each one in turn and compare and contrast each relevant factor. Some are more applicable than others. None perfectly match the circumstance of these offence and this offender. That is what makes sentencing ultimately an individualistic exercise. It must pay attention to the particular case before the court.

44It is sufficient to say that the range of sentences for this kind of conduct undoubtedly begins well into a double digit penitentiary term.

5. ANALYSIS

i. The Gross Breach of Trust

45The primary aggravating feature of this case is obvious: L.R. abused his role as a parent of these two young women and failed to meet his obligation as a parent to care for them and ensure their wellbeing. M.W. was 12 years old when he began abusing her. And he did so knowing that she had already been abused by another man, and that she looked to him to protect her from such harm in the future. This began a shocking course of conduct which left a trail of destruction in its wake.

46Before M.W. was 13, L.R. began to have sexual intercourse with her and force her to engage in oral sex. At the age of 13 he impregnated her, telling her not to disclose his conduct to anyone and hatching a plan to conceal his conduct from M.W.’s mother by blaming her pregnancy on a “boyfriend”, something which he knew would cause M.W.’s mother to blame her.

47Rather than causing him to acknowledge and retreat from his abusive conduct, the birth of M.W.’s son was, for L.R., a source of happiness: he told M.W. they would “eventually be together.” He soon returned to his sexual abuse of her, continuing it for another three or four years and telling her that their happy family would be destroyed if anyone ever found out. M.W. lived with that secret for another 20 years.

48J.R. was 10 years old when he began sexually abusing her. Once again, he took advantage of his child’s fears and vulnerabilities to sexually exploit her for his own gratification. Not only did he impregnate her, but he continued to sexually assault her even after he knew that she was pregnant, leading to a second impregnation in 2005.

49While the assaults of J.R. continued into her young adult years, that does nothing to diminish the betrayal of trust and exploitation by L.R. in relation to both of his daughters. As the Supreme Court of Canada noted recently in the context of child sexual abuse sentencing,

Children are most vulnerable and at risk at home and among those they trust….The abuse of a position of trust is also aggravating because it increases the offender’s degree of responsibility. An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. The breach of the duty of protection and care thus enhances moral blameworthiness.[9]

ii. The Impact of L.R.’s Conduct

50The impact of L.R.’s offending has been profound. I have had the benefit of hearing both M.W. and J.R. read their victim impact statements in court, and I have read the victim impact statement of B.R., M.W.’s son by L.R. Each of them is profound, moving and informative.

51B.R. described the emotional strain on him as a result of learning the truth about the person he believed to be his grandfather as, “irreparable.” As he put it, “imagine going your whole life not knowing who your biological father is and then finding out that the person you called your grandfather for 20 plus years was your father because he took advantage of your mother when she was 13.” B.R. has suffered from depression and a lack of trust in others.

52M.W. eloquently described the impact of L.R.’s offending: “I was forced to grow up and raise a child when I was still a child myself… I hate myself because I let you put fear in me to keep me quiet for over 25 years. I wish I was stronger and came forward a long time ago then maybe less people would be hurt. I hate that I let you convince me to just live life like nothing happened. I let you be a part of my children’s lives and I will regret that for the rest of my life.”

53L.R. also described the innocence of childhood taken away from her when she was very young. Since L.R.’s arrest she feels like she is “fighting a losing battle….I can’t get rid of the fear he has placed in me or the nightmares that I have on a regular basis.” She has had suicidal thoughts and other lasting effects of her victimization.

54M.W. and J.R. read their victim impact statements in court. That was plainly not an easy thing for them to do, but it was very helpful to me to hear and see the depths of the pain L.R. has caused them. Their courage in finally coming forward will serve as an example to their own children, an example they regrettably never saw in L.R.

iii. L.R.’s Lack of Insight

55I want to say something about a particularly aggravating aspect of the circumstances surrounding L.R.’s conduct. As I have already described, not long before he was arrested on these charges, L.R., at the time subject to a release order not to have any contact with J.R., picked up their daughter, R., from school and, obviously without J.R.’s agreement, disclosed to her the true state of affairs with respect to her biological father. She was 13 years old at the time.

56This was a heartless, cruel and damaging thing to do to a young child. Not surprisingly, she did not know what to do. In my view, this conduct has some bearing when considering the extent of L.R.’s remorse and gauging the level of his insight into his conduct.

57L.R.’s lack of insight is also evident from Dr. Iosif’s report and from his own comments at his allocution.

58At page 15 of Dr. Iosif’s report, for example, she notes L.R.’s comment that while he felt “horrible” about the pregnancies, he quickly added “I raised B., R. and N. … I did my duty… They had a normal childhood.” He said that he never felt weird about the three children growing up in the same household with his children. What is more, he told the doctor that he gave his daughters “every opportunity” to disclose the inappropriate sexual contact to others but that they never did.

59These are the comments of someone who has failed to grasp the extent to which he abused the trust of his own daughters. His lack of insight is disturbing. He claimed to have no idea how his daughters would have felt when he was sexually abusing them, and rejected any suggestion that these relationships were incestuous in nature because, as he told the doctor, “no, they’re not blood”.

60L.R.’s letter of apology, while expressing sorrow for the pain he caused to the victims and their family, also said that he “had no intention of hurting anyone. I just need someone to love me for me” and that he hoped to identify a place where he could be treated for alcohol and, as he put it, “sexual problems.”

61Similarly, in his comments to the Court, L.R. maintained that he “had no intention to hurt anyone.” Such comments, made in relation to repeated and prolonged offending over many years, are self-serving and meaningless. L.R. even had the audacity in his allocution to address his daughter M.W. directly, telling her that he never knew he was causing her pain because “you never showed or talked to me about it.” That he could cast even a sliver of blame on his daughter for his own callous disregard for her wellbeing is truly shocking. L.R. also addressed the three children he fathered with M.W. and J.R., telling them he was “sorry you had to find out the truth this way.” One can only wonder at what this means, particularly since it was L.R. who was the source of the disclosure, at least to R.R.

62M.W. and J.R.’s two sisters, also adopted by L.R. when he married their mother, wrote letters of support for him. L.R. apologized to them “for any sorrow or hardship there may have been.” That L.R. is unsure that he caused such hardship to them is mystifying.

iv. Mitigating Factors

63L.R. must be given appropriate credit for his guilty plea. Although it was not an early plea, it was entered before litigation with respect to private records of the victims and before either of them had to testify. At the same time, the D.N.A. evidence and the age of the victims made this an extremely strong case for the Crown. His plea was surely in part an eventual recognition of the inevitable.[10] In those circumstances, the value of the plea is somewhat diminished. Nevertheless, L.R.’s plea saved considerable and valuable court time and resources and saved his daughters from having to testify. These factors, and the acknowledgment of wrongdoing a guilty plea represents, compel me to give L.R. meaningful credit for his plea.

64It is difficult to identify any other mitigating factors in this case. While it can hardly be described as mitigating, I have kept in mind that one distinguishing factor in this case from some of the cases identified by the parties is that the sexual violence committed by L.R. was not accompanied by non-sexual physical assaults on either of the victims. That said, he has pled guilty to three counts of sexual assault causing bodily harm. While in the factual context of this case that may strike some as somewhat dissonant - pregnancy is not the type of “bodily harm” normally associated with that offence - it can hardly be said that L.R.’s treatment of his daughters was any less traumatic for them then it would be had he inflicted other physical violence upon them. While the lack of other assaultive conduct serves to modify the sentence somewhat, it does not do so to any significant degree.

v. Rehabilitation and Specific Deterrence

65L.R. has referred in the course of this sentencing to wanting to receive treatment or counselling. This suggests that there is something about L.R. which can be rehabilitated, or that he can learn something in order to avoid reoffending in the future.

66Particularly in light of the findings of Dr. Iosif with respect to risk of reoffending and the dynamics underlying L.R.’s conduct, in my view specific deterrence and rehabilitation are not significant factors in this sentencing. There can be no doubt that he must spend many years in the penitentiary. If there is rehabilitation that can or could be undertaken, most obviously with respect to his insight into his offending, he will undoubtedly receive it in that setting, regardless of whether I impose a sentence closer to that sought by the Crown or the defence.

67The primary animating features of this sentence must be an unreserved denunciation of this kind of conduct, and a strong message of deterrence to reinforce, as the Supreme Court of Canada put it in Friesen, “the wrongfulness of these offences and the serious harm they cause.”[11]

vi. The Appropriate Sentence

68The facts of these offences are truly shocking. L.R. used his daughters to satisfy his own sexual and personal gratification. He raised them surrounded by deceit and victimization. His conduct was repeated and prolonged and showed a callous disregard for everyone around him. He carefully and deviously concealed his conduct until his victims had the courage to come forward. L.R.’s degree of responsibility and moral culpability for these offences is extremely high.

69The parties have filed a number of authorities to assist in determining the appropriate range of sentence. In the individualistic sentencing environment, a case-by-case analysis of other sentences to find the “right number” is unproductive. In a case such as this which, in my experience as a trial judge is truly out of the ordinary, there are few if any comparators which meaningfully dictate the number of years L.R. must spend in jail.

70In Friesen, the Supreme Court of Canada offered some guidance to sentencing judges on the issue of range and quantum of sentence in this type of case:

D. (D.), Woodward, S. (J.), and this Court’s own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed.

The Court went on to hold:

Mid-single digit penitentiary terms for sexual offences against children are normal… upper single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances….substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).

71At the time they were committed, the maximum sentence for the sexual assaults and sexual interference offences at in this case was 10 years. For sexual assault causing bodily harm it was 14 years.

72There can be no question that when the entire course of events and all the offences committed by L.R. are viewed in their totality, the resulting sentence must be a meaningful double-digit term.

73I have considered L.R.’s relatively advanced age, his ailing health, and the fact that many of these offences took place many years ago. In my view, L.R. should receive no benefit from the fact that he is being sentenced decades after he commenced offending and many years after the most serious of these offences was committed. Even if I assume that specific deterrence may not be a factor for L.R., this is the kind of case where the abusive conduct was so serious and so prolonged, that the applicable sentencing principles demand a significant penitentiary term regardless of when these offences were committed and the lack of any prior criminal convictions.[12]

74Similarly, with respect to L.R.’s age, I have accounted for that in my application of the totality principle, and have considered the Supreme Court of Canada’s comments in R. v. M. (C.A.),[13] with respect to the possibility that the sentence could “surpass any reasonable estimation of the offender’s remaining natural life span.” It is indeed possible that, subject to any decisions with respect to parole, the sentence to be imposed will expire towards the end of L.R.’s life. But to impose a sentence that removes such a possibility for a 70-year-old man in poor health would inevitably reduce it to one which is manifestly unfit in the circumstances. By his conduct, L.R. devastated the lives of many people. It would be the ultimate irony if he received a lower sentence so that his was not adversely affected for more than a few years.[14]

75There was no evidence that L.R.’s medical conditions could not be properly treated while he was incarcerated. Indeed, in his affidavit he attests to medical conditions experienced while in custody, but that he is now being treated for them and given medication. In these circumstances, no reduction in an otherwise fit sentence is warranted due to L.R.’s health problems.[15]

76In accordance with the Court of Appeal’s recent direction in R. v. Marshall,[16] in arriving at a fit sentence I have considered the conditions in custody described by L.R. in his affidavit, as well as the COVID environment in which he will serve at least the first part of his sentence.

77The letter from one of institutions where L.R. was detained demonstrates that conditions for him there were not exceptionally harsh. He has suffered some hardship, no doubt in part as a result of the charges he is facing. And as is unfortunately all too commonplace, his liberties within the institution have been curtailed far too often. I reject, however, L.R.’s contention that he has not been provided masks in the institution during COVID. It is contrary to every experience I have had or heard about in the detention centres, and while I do not suggest for one moment that living in a confined environment during a pandemic is anything but stressful, I do not accept that it was exacerbated by the deliberate failure to provide the most basic protection mandated by public health authorities.

78There is no evidence before me as to the specific COVID conditions or measures in the federal penitentiaries.

79Applying the Friesen approach to sexual offences against children, the sexual assaults causing bodily harm alone may well attract a sentence beyond the total sought by the Crown. It is necessary to consider the principle of totality in this case in order to arrive at a sentence which satisfies the proportionality requirement in 718.1. Proportionality and totality principles can be addressed either by deciding what would be a fit sentence for each offence before considering totality, or by determining an overall fit sentence and then imposing individual sentences adding up to the total. Done properly, either approach is acceptable.[17] However it is calculated, the sentence must not be overly long and harsh and not disproportionate to the gravity of the events and the conduct of the offender.

80For some time, the approach in Ontario has been that described in R. v. Jewell[18] which involves first identifying the gravamen or the true seriousness of the conduct giving rise to all of the criminal offences before determining the total sentence to be imposed and imposing sentences with respect to each offence which add up to that total sentence and which appropriately reflect the overall criminal conduct. That is how I intend to approach L.R.’s sentence. I do so, however, on the clear understanding that if approached in the opposite manner, as I have already suggested, I am confident that the total sentence I would impose would far exceed that sought by the Crown. In this case, it makes sense to assess the overall gravamen of L.R.’s conduct and determine an appropriate total sentence bearing in mind the kinds of sentence which each count, standing alone, would attract.

81While the authorities filed by the parties are of some assistance, the particular nature of these offences and L.R.’s circumstances make them helpful in only the most general sense. The sentences ultimately imposed in R. v. C.(J.A.),[19], and R. v. M.(C.A.). support the view that even long before the Supreme Court of Canada’s holding in Friesen, sentences in the range sought by the Crown in this case were being imposed for offences of serious physical and sexual violence against children.

82In R. v. C.G.,[20] the accused was found guilty of regularly sexually assaulting his teenage daughter over a period of 2 ½ years. She became pregnant and gave birth to a child, but he continued to sexually assault her, and she became pregnant for a second time, when she was in grade 10. In imposing a 5 ½ year sentence for sexual assault and 9 ½ year sentence for incest and a concurrent five and a half year sentence for sexual assault, Richetti J’s thorough review of the sentencing caselaw touched largely on cases of incest. While that offence exists to address the potential apparent biological and medical consequences of the conduct, the other devastating consequences described in C.G. apply with full force to any parental relationship, regardless of biology. The betrayal of trust, the reliance the victims placed on L.R. to care for them, the position of authority L.R. held over them and the resulting impact on this family, torn apart by his wanton disregard for anyone other than himself, are present with just as much force in an adoptive family as they are in any other.

83I have no difficulty in determining that the Crown’s position for conduct of this nature, for this long, and with these consequences, is a reasonable one. Considering the principle of totality,[21] “Duncan” factors and L.R.’s guilty plea, I am imposing a global sentence of 22 years.

(Table of counts and sentences follows in the original decision.)

6. THE PAROLE INELIGIBILITY REQUEST

84The Crown seeks an order under what is now section 743.6 of the Code[22] that L.R. serve a minimum 10 years of his sentence before being eligible for release on parole.

85Although the wording has changed slightly over the years, the substance of the provision has remained the same. The sentencing court may order that the offender not be released on parole until one half of the sentence or 10 years, whichever is less, has been served. The section may be invoked if the sentencing judge is satisfied, “having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence” requires it. The current subsection 2 of 743.6 makes it clear that in considering the application of this provision rehabilitation is subordinated to the paramount principles of denunciation and deterrence.

86The Ontario Court of Appeal has consistently held that the section should not be routinely invoked.[23] In R. v. Goulet, for example, Griffiths J.A. held that it, “should only be invoked as an exceptional measure where the Crown has satisfied the court on clear evidence that an increase in the period of parole ineligibility is ‘required’. There should be articulable reasons for invoking s. 741.2.” That the decision to impose a delayed period of parole should be “out of the ordinary”, was more recently endorsed by the Supreme Court of Canada in R. v. Zinck.[24]

87The challenge in determining whether it is appropriate to impose a period of parole ineligibility is that the section contemplates principles already taken into account in determining the sentence in the first place. Where there is nothing about the circumstances of the offences that goes beyond the rationale already considered when determining the period of incarceration, then the record will struggle to justify invoking it.

88Offences of unusual brutality or degradation may warrant the application of the section, but even in those circumstances, the section also obliges the sentencing judge to look to the circumstances of the offender to justify its application. In that regard, Goulet held that it is only “Where the Crown has adduced clear evidence that the offender will not be deterred or rehabilitated within the normal period of parole ineligibility” that the section should be invoked.

89As I read the Supreme Court of Canada’s direction at paragraph 31 of Zinck, it suggests that the sentencing judge should only make this order if he or she is satisfied that the objectives of sentencing, namely denunciation deterrence, can only be met by delaying the period of parole ineligibility. I am not satisfied that the Crown has satisfied its burden to demonstrate that this is such a case.

90While I have no difficulty in concluding that the offences committed by L.R. can safely be described as utterly depraved and shocking, I am satisfied that the sentence I have decided to impose properly reflects those characterizations. Without more, I am unable to find that eligibility for parole should be judicially imposed, rather than determined in the normal course by the parole board.

7. PRE-SENTENCE CUSTODY

91L.R. has been in custody since November 6, 2019. As of the date of sentencing, that is 688 days (22 months, 18 days). He will receive “Summers” credit of 1½ days for each day, resulting in a credit of 1,023 days or 34 months.

92L.R. seeks an additional credit of about seven months to reflect custodial conditions and the COVID environment of his pre-sentence detention.

93As I have already said, I have factored into the determination of a fit sentence the circumstances under which L.R. served his pretrial custody. Attaching a specific number of days of “Duncan” credit is unnecessary.

94The total sentence of 22 years will be reduced by 34 months, credited against count 12. The net sentence remaining to be served is 19 years, 2 months.

8. ANCILLARY ORDERS

95There are a number of ancillary orders sought by the Crown. All but one aspect of one of them are on consent.

96First, since these are primary designated offences, L.R. is ordered to provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.

97Second, there will be a SOIRA order. As L.R. has been convicted of more than one “designated offence”, pursuant to the combination of ss. 490.012(1) and 490.013(2.1) of the Criminal Code, I make an order requiring him to comply with the Sex Offender Information Registration Act for life.

98Third, there will be an order pursuant to s. 109 prohibiting L.R. from possessing the designated weapons and ammunition for life.

99Fourth, there will be an order under section 743.21(1) of the Code. While L.R. is in custody, he is prohibited from communicating, directly or indirectly, with M.W., J.R., B.R., N.R. and R.R. The Crown seeks to include L.R.’s wife, D.R., in that order. L.R. opposes that request. She will be named in the order but, with respect to her only, it will be subject to an exception if she provides her written revokable consent to the Warden of the custodial facility in which L.R. is detained, or that person’s deputy.

100Finally, there will also be an order under s. 161 of the Code. Only subsections (1)(a) and (b) are requested. L.R. is prohibited for life from attending the named locations in subsection (a) and from holding any employment as described in subsection (b).

101I am grateful to all counsel for their hard work on this case, and I thank M.W., J.R. and their families for being in court throughout these difficult sentencing proceedings. I wish them all well for the future.

P. Downes J.

September 23, 2021