R. v. R.L., 2021 ONCJ 688
Information No. 19-25569
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
R.L.
P R O C E E D I N G S A T S E N T E N C E
BEFORE THE HONOURABLE JUSTICE W.J. BLACKLOCK
on December 2, 2021 at BRAMPTON, Ontario
APPEARANCES:
N. Sohail Counsel for the Crown
L. Ben-Eliezer Counsel for R.L.
THURSDAY, DECEMBER 2, 2021
Background and Circumstances of the Offence
I have before me Mr. R.L. who has entered a plea of guilt with respect to the offence of sexual interference. The behaviour occurred with respect to his biological daughter who was approximately 14 at the time. On five occasions over a period of months he touched her inappropriately, including touching her on the breasts over her clothes and eventually culminating with him getting into bed, cuddling with her and asking her if she was ready to become a woman, kissing her on the mouth, resting his hand on her chest over her clothes, and then moving it down and rubbing her vaginal area again over her clothes.
Mr. L. is a person who has suffered his share of physical abuse as a child and young person. He has been seriously addicted to drugs. He was during this period abusing cocaine to a great extent. Indeed, his plea was advanced on the basis that he has no real memory of this activity, although he is not advancing any notion that he was an automaton as a result of drug abuse at the time of this offence. He has a drug record but no record for violence or sexual acting out. He has employment available to him. He has the support of people who have filed letters on his behalf which I’ve read, and the support of his 20 year old daughter from an earlier relationship.
No victim impact was filed in this case but this type of conduct by a biological father cannot help but have real emotional and psychological impact on the victim who should have been able to turn to her father to shelter against the storms of the world as opposed to being abused by him. His offence involves a very grave breach of trust. Indeed, perhaps the one of the greatest breaches of trust one can imagine.
Positions of the Parties
The Crown seeks a period of 15 months. The defence seeks a sentence of three to six months. Both sides are largely although not completely in agreement on the ancillary orders.
Sentencing Principles
As Mr. Justice Moldaver put the matter in R. v D(D) [2002] 44915 Ont CA at para 34 when he was a member of the Court of Appeal of Ontario.
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 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.
In addition, more recently as noted by the Crown in her submissions the highest court of this country has recently indicated that quite simply the sentences for this type of offence should increase and sentences in excess of two years are very much on the table for this type of activity.
Analysis
Having reflected on it, I have come to the conclusion that the end of a trial on this matter the appropriate sentence, balancing all the aggravating and mitigating circumstances would have been something in the area of two years. In coming to that conclusion I have considered the decision of the Ontario Court of Appeal in R. v T.J. [2021] ONCA 392
In T.J. the victim was six or seven years old and at the accused’s house for a sleep-over being a friend of the accused’s children. The accused took her into the bathroom at night and had her rub his penis and invited her to perform fellatio. She then pulled away and left the bathroom without doing so.
T.J. was a person with no criminal record. He was said to be a devoted father. He had a supportive ex spouse. He was in a new relationship. He had had a substance abuse problem but had prior to sentencing engaged in counselling. He had been out on bail for three years without incident and he was employed by his father.
The trial judge had rejected a conditional sentence and imposed a sentence of nine and a half months real jail. On a Crown appeal to the Ontario Court of Appeal, that court which binds me, unanimously held that even that sentence was too lenient. The court indicated that a sentence of two years real jail should have been appropriate in that case.
It is clear that the victim in T.J. was much younger than the victim in this case and that is a significant aggravating factor. In addition, one might say that the touching in that case involved more direct action and again that is a significant aggravating factor. On the other hand, the degree of breach of trust, in my view, in this case is much higher than the breach that occurred in that case, Mr. L. being the victim’s biological father, and the conduct here was ongoing as opposed to a one-time affair as it was in T.J.
I accept, however, Mr. Ben-Eliezer’s argument that he made in this case, that although Mr. L. is having difficulty fully seeing himself acting out in the way that the facts which were admitted in this case paint, he is nonetheless in a real sense remorseful. His plea following a judicial pretrial is very real evidence of that. In pleading guilty he has given up any chance of defeating the Crown’s case which is always a possibility. He has in doing so engaged in the healing behaviour of saying to the complainant you were right, I betrayed you.
He has also spared her the further trauma of having to come into a public courtroom, reliving the events and suffering the indignity of having her own father deny her truth. In my view, he deserves real credit for that and I believe that that opens the door in this case to a sentence as low as one year, but I do not believe I can go below that.
Sentence
In the result then the sentence in this case will be
a sentence that is the equivalent of 365 days less credit for five days pretrial custody which I will treat as eight, and that takes me to the imposition of a sentence of 357 days. I also believe that such a sentence may also just make him eligible for programming at OCI, which I believe may be helpful to him, and I recommend that he be considered for admission there.
Probation
This portion of the sentence will be followed by three years probation. The terms of probation will be the statutory terms. In addition, it will be a term of his probation that he report initially by telephone within 72 hours of his release to Probation and thereafter as directed by them.
After his initial telephone reporting he will report as directed by Probation. He will cooperate with them. He will sign any releases necessary to monitor his progress and he will provide proof to Probation that he has complied with any term of my order. He also will report to anybody who is authorized by Probation to assist in his supervision. It will be a term of his probation that he comply with the Ontario Sex Offender Registry requirements
He will not contact or communicate, directly or indirectly by any means, the complainant in this matter, F.L.C., or anyone in her immediate family; by that I mean a parent or sibling except in accordance with the written revocable consent of the complainant’s mother, K.C., or in accordance with a valid family court order made after today’s date, or through counsel, or as is necessarily incidental to conducting family court litigation.
In addition, he will not attend any place that any of the above named individuals live, work, attend school, worship or he knows them to be, except again with the written revocable consent of the mother. And those consents will be filed in advance with Probation, Intake, or his assigned Probation Office or in accordance with a valid family court order made after today’s date, or except as necessarily incidental to the conduct of family court litigation.
In addition, he will attend and actively participate in the sexual behaviour assessment as directed by his Probation officer, including but not limited to, the program at CAMH and/or the Mansa clinic. He also will attend and actively participate in any counselling as directed by his Probation Officer, and I recommend that the counselling include counselling directed towards healthy relationships and boundaries, as well as counseling directed towards substance abuse.
He will sign any releases necessary to monitor by Probation his progress and his program.
He will reside at an address to be approved of by his Probation Officer and he will not move from the address except with their prior approval.
The terms of probation will be that he will not possess any weapons as defined by the Criminal Code except for the purposes of his employment.
In addition, there is an order pursuant to section 110 of the Criminal Code prohibiting him from possessing the item set out in that section for the period of five years.
There will be a DNA order. This being a custodial disposition the DNA order will be executed in custody.
This is the approach I have contemplated with
respect to section 161. I would make an order pursuant to that section, prohibiting him from attending any public park, public swimming area where persons under the age of 16 are present or can reasonably expect to be present, or a daycare centre, school ground, playground, or community service, except in the presence of an adult over 21 years of age for a period of five years
In addition, I would prohibit him from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 for the period of ten years.
In addition, I would make an order under sub clause C that he not have any contact, communicate by any means with a person who is under the age of 16 except in the present of another adult over 21, or except regarding his own children in accordance with the terms of a valid family court order made after today’s date, or with the written consent of the children’s mother, which may be revoked at any time. And that order would be in place for a period of five years.
In addition, he will be required to comply with the SOIRA legislation for the period of ten years, and his first attendance will be at 180 Derry Road within 72 hours of his release from custody.
In addition, I am going to waive the Victim Fine Surcharge.
The DNA sample will be taken within 72 hours of today’s date.
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Brenda Ferland, certify that this document is a true and accurate transcription of the recording of R. v. R.L. in the Ontario Court of Justice held at 7755 Hurontario Street, Brampton, Ontario taken from Recording(s) No. 3111_106_20211202_083157__30_BLACKLJA.dcr.
January 20, 2022 ______________________________
(Date) (Signature of authorized person)