W AR NI N G

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162,

162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

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

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE DATE: March 1, 2024

B E T W E E N :

HIS MAJESTY THE KING

— AND —

E.U.

Before Justice Maureen H. Bellmore

Heard on February 7, March 23, April 4, May 8, May 15, September 11, November 1, and December 15, 2023

Reasons for Judgment March 1, 2024

Patricia Garcia ..................................................................................... counsel for the Crown Stephen Proudlove .................................................................. counsel for the accused EU

BELLMORE J.:

1EU pleaded guilty to repeatedly sexually assaulting his stepdaughter BK by having forced sexual intercourse with her when she was 10 and 11 years old. The last sexual assault resulted in BK becoming impregnated one week after her 11 th birthday.

2By the time BK’s mother became aware of her pregnancy, it was too late for her to legally have an abortion. BK gave birth to a baby girl in the spring of 2022, at age 11. DNA testing established that EU is the biological father of the baby.

3On March 23, 2023, EU pleaded guilty to Sexual Interference and Aggravated Sexual Assault. There was a lengthy sentencing hearing which spanned ten months.

4At the sentencing hearing, the Crown called viva voce evidence of several witnesses including, BK and her mother, as well as two experts: Dr. Rachel Spitzer and Tanya Smith (a registered nurse). The Crown also relied on a report authored by Dr. Nina Vitopoulos.

5A Pre-Sentence Report (“PSR”) was prepared and EU submitted materials at the sentencing hearing.

6These are my reasons for sentence.

NOTE: This judgment is under a publication ban described in the WARNING page(s) at the start of this document. If the WARNING page(s) is (are) missing, please contact the court office.

I. Circumstances of the Offences

7EU is BK’s stepfather. He has been married to BK’s mother, JU, since 2016. BK refers to EU as “Daddy” and he is the only father figure in her life. EU and JU have two sons, now aged 6 and 7. At the time of the offences, EU, JU, BK and the two boys lived together in Toronto.

8Between January and August 2021, EU forced his 10/11-year-old stepdaughter to have sexual intercourse with him on four different occasions. He did not use any birth control or protection when he sexually abused her. The first 3 sexual assaults took place when BK was 10. After the third time she was sexually abused by her father, she told him that she was going to tell her mom or the police if it happened again. Despite his claims that it would not happen again, EU raped his stepdaughter one last time in August of 2021.

9All sexual assaults took place in the family home. EU has pleaded guilty to sexual interference in relation to the first instance of child sexual abuse and aggravated sexual assault in relation to the last incident, which resulted in BK’s pregnancy.

10After the final sexual assault by her stepfather, BK recognized that she had missed her menstrual cycle by 8 days and took a pregnancy test. The test was positive. BK told EU that she was pregnant and he provided her with another pregnancy test. The second pregnancy test confirmed that BK was pregnant.

11BK testified that her Daddy did not want to tell her mother that he was the father. He wanted his 11-year-old stepdaughter to tell her mother that she was pregnant and to lie about who fathered the baby.

12EU discussed an abortion with BK, who agreed that she would have the procedure.

13EU then contacted his friend who, along with his friend’s fiancée, took BK to a clinic for the purpose of obtaining an abortion. Both friends were advised that BK had become pregnant as a result of having sexual intercourse with her stepfather, EU, on one occasion yet neither friend reported this to the police or any child protection agencies.

14EU’s friends were unsuccessful in obtaining an abortion for BK, because of her young age and the lack of a parent being present.

15On Wednesday, February 9, 2022, JU noticed that her daughter’s appearance had changed and spoke to BK about her observations. BK eventually disclosed to her mother that she was pregnant.

16JU told her husband that BK was pregnant. He expressed surprise and shock. He did not disclose his sexual abuse of his stepdaughter to his wife.

17JU and EU arranged to contact an abortion clinic. When the receptionist found out BK was 11, she advised that they could not assist her. The clinic receptionist then contacted child protection authorities.

18BK’s mother brought her to a walk-in clinic on February 15, 2022, which confirmed the pregnancy and dated it at 25 weeks and 3 days. Calculations put the date of conception at approximately August 20, 2021, 6 days after BK’s 11 th birthday.

19JU reported her daughter’s pregnancy to the authorities. Toronto Police commenced an investigation and interviewed BK and her mother.

20BK initially reported that she had become pregnant as a result of a sexual assault committed by a “boy from her school”. Two days later, BK was scheduled to attend the Hospital for Sick Children with her mother for an appointment with the Suspect Child Abuse and Neglect (“SCAN”) unit. The investigating officer met with and interviewed BK again.

21That evening, JU was speaking with BK about her claim that her pregnancy had been caused by a “boy from school”. After some discussion, BK admitted that her pregnancy was the result of having been sexually assaulted by her Daddy, EU.

22The following day, BK’s mother contacted the CAS worker and reported that her daughter was ready to speak about how she came to be pregnant.

23The police interviewed BK for a third time. It was during this interview that BK identified four specific incidents of sexual assaults by her stepfather, EU.

24On Friday, February 18, 2022, EU was contacted and advised of the sexual assault investigation. He turned himself in to 32 Division and was placed under arrest.

25BK was diagnosed as having intrauterine growth restriction, causing her to go into labour spontaneously and prematurely. BK gave birth on April 29, 2022, via vaginal delivery. Her baby was born at 36 weeks gestation, approximately one month prematurely.

26DNA analysis confirmed that EU is the biological father of BK’s baby.

II. Viva Voce Evidence

27In addition to the facts set out in the Agreed Statement of Fact (as summarized above), the following further facts were established during the evidence of BK and JU, who were called to testify for two reasons. First, there were certain aggravating circumstances the Crown sought to prove, namely that the sexual assaults involved violence above and beyond the violence inherent in the sexual abuse of a child. However, at the end of the hearing, given BK’s supplementary statement (described below), the Crown did not argue that I find those additional aggravating facts to be present in this case.

28Second, the evidence of BK and JU was required to prove BK’s age. EU would not agree that BK was 10 and/or 11 years old at the times of the offences. He took the position that her date of birth was not August 14, 2010, rather she was older. At the end of the sentencing hearing and after the viva voce evidence of BK and JU, Defence Counsel did not dispute BK’s birthdate.

1. BK’s Evidence

29The Crown played BK’s video recorded statement to police pursuant to section 715.1 of the Criminal Code , on the consent of Defence Counsel. BK had to watch the video as it was played in court. At one point during the video, the Court had to take a break as BK was extremely upset and crying. At the end of the video, BK adopted its contents.

30BK explained in her video that she considered EU to be her biological father, even though she knew he wasn’t. She stated that she felt comfortable around him and trusted him.

31During the video, BK described struggling and trying to resist EU’s effort to force intercourse on her but she eventually gave up and “just laid there”. In the statement she said that the first forced sexual intercourse took place in BK’s own room, on her bed. She described how her stepfather came into her room during the day and raped her while her brothers were in the other room and her mother was out. She explained that after her stepfather finished sexually abusing her that first time, she “grabbed her stuff and ran to the washroom and locked the door”. She saw blood from her vagina on a tissue while in the bathroom. BK said the bleeding lasted for 2-3 days and that she experienced some pain in the form of stomach cramps.

32BK testified that she was sexually assaulted by her “Daddy” four times, all in the home she shared with him and the rest of their family. The final sexual assault took place in her mother’s bed, approximately one week after BK’s 11 th birthday.

33BK described being scared, overwhelmed and emotional when she found out she was pregnant. She said she did not know what to do. BK testified that because of her fear, she “didn’t have the courage or strength to tell her mom” that she was pregnant. When her stepfather found out she was pregnant he advised her to tell her mom but to conceal that he was the father.

34BK testified that when she was taken to the abortion clinic by EU’s friends, she felt confused, but she said she was “ok with it, I didn’t want, at that time, I didn’t want to have a baby I couldn’t take care of”.

35She described that at the beginning of the pregnancy she felt “normal”. BK described being able to participate in childhood activities like physical education class at school but that as she started to get bigger, she became uncomfortable. She experienced back pain and found it hard to sleep. BK explained that she had multiple medical appointments which made her feel anxious and worried.

36When asked how she felt emotionally while pregnant, BK described that when she felt the baby kick, it would make her feel better, that she had “nothing to worry about”. She said, “that’s what kept me going because I felt that I had something to be strong for”.

37BK described labour as “really painful” but that she felt better once she received the epidural. She described herself as a “mess” before she had the epidural. She explained that while in labour she was scared.

38BK described how she felt after the baby was born. She testified that she felt “relieved”, “happy and kind of at peace for a moment” but then she felt angry when she went home from the hospital. She emotionally described her anger at not being able to do much, not having much money, living in a shelter with her family and not being able to eat much. She expressed frustration at the baby not being able to “do tummy time because the floor [of the shelter] was so dirty”.

39BK stated that she felt ashamed when her mom found out about her pregnancy. She felt that she had ruined all of her family’s lives.

40BK described it as being painful watching her family endure the situation. She testified that she just wanted “everyone to be ok, I want him also to be ok … I don’t want people around me to be hurt”.

41BK testified that her date of birth is August 14, 2010. In cross-examination, when it was suggested to her that her birthdate was actually a couple of years earlier she said that she did not know how to respond as she has always known that she was born on August 14, 2010.

2. JU’s Evidence

42JU testified that she has been married to EU since 2015 or 2016. She said they have two sons together and he is the stepfather to BK. She described BK’s relationship with the offender as father/daughter.

43When JU found out that BK was pregnant, she felt discouraged and badly about BK’s future. When she was informed that her husband was the father of the baby, she felt betrayed, ashamed and awful. During her evidence, JU was very emotional and crying. The traumatic impact of these events on JU was clearly evident in Court.

44JU described being fearful when she learned that the baby may have down syndrome. She relied on her faith in God to get her through the pregnancy and birth. JU testified that she was scared watching her young daughter in labour.

45When asked how many children she had, JU responded “4”. She testified that she is raising BK’s baby as her own. She does not want people to know that BK is the mother of the child as she does not want her daughter to be stigmatized. JU wants BK to live a normal life.

46As a result of her decision to raise the baby as her own, JU could not work. The family lost their home as she could not afford it while unemployed. As a result, the family lived in one room in a shelter for 8 months.

47JU explained that both she and BK are receiving counseling. She testified that in addition to the impact on her and BK, her two sons have been negatively impacted. JU testified that it is extremely difficult raising all the children on her own and being responsible for everything without any support or assistance from her husband.

48JU ended her testimony by apologizing to the government of Canada. She explained this was not the husband she knew. She explained that they are a peaceful and loving family.

49JU was not cross-examined by Mr. Proudlove.

III. Expert Evidence

50The Crown called two medical experts, Dr. Spitzer and RN Tanya Smith, to testify about the physical and psychological impact the offences on an 11-year-old child. The Crown also submitted (on consent) the report of Dr. Vitopoulos, which describes the potential psychosocial consequences associated with the multiple adverse experiences of the victim, BK.

1. Dr. Spitzer’s Evidence

51Dr. Spitzer is a doctor who specializes in pediatric obstetrics and gynecology (children and adolescents). She has an impressive and extensive curriculum vitae which was marked as Exhibit 2 on the sentencing hearing. I will not review her CV in detail but will review some highlights of her professional experience. Dr. Spitzer is the medical director of the Young Prenatal Program at the Hospital for Sick Children in Toronto. She coordinates and oversees this multidisciplinary program which involves other professionals including, midwives, dieticians and nurses. She teaches medical students and gynecology residents attending the University of Toronto. In addition, she has a general gynecology practice which includes delivering babies at Mount Sinai hospital in Toronto and providing clinical care at Sick Kids. Defence counsel consented to Dr. Spitzer giving expert evidence.

52In addition to testifying, Dr. Spitzer prepared a report about the physical impact and risks associated with BK’s pregnancy.

53Dr. Spitzer reviewed BK’s medical records from Sick Kids and Mount Sinai, noting that BK had to attend a multitude of medical appointments during her pregnancy, sometimes more than once a week. She testified that BK suffered from intrauterine growth restriction, a condition that arose because BK was too small to have a baby at her age.

54Dr. Spitzer explained that BK delivered her baby one month prematurely after spontaneously going into labour. A detailed plan for delivery had been developed for BK which included all the caregivers BK knew and trusted. Unfortunately, Dr. Spitzer and the other trusted caregivers were unable to be present at the birth because of the premature, spontaneous labour. Although not those she was familiar with, the medical personnel present for the birth included an obstetrician, midwife, doula, social worker and nurses.

55Dr. Spitzer detailed in her report that all adolescent pregnancies are considered high-risk by definition. Further, pregnancies in adolescents are often subclassified as those in younger (15 and under) and older (over 15) adolescents. Those in the younger age group are noted to have further increased risks compared to those of older adolescents although data is more limited.

56Risks of several pregnancy-related complications are increased in the adolescent population, including preterm birth, preterm pre-labour rupture of membranes, intrauterine growth restriction for the fetus (the condition that BK suffered) and infectious risks including increased risks of sexually transmitted infections at presentation and in the third trimester.

57Dr. Spitzer testified about the physical wounding that occurs in pregnancy, delivery and postpartum periods. The wounding is associated with weight gain and stretching of ligaments and the pelvic floor. Many pregnant people experience stretch marks on the skin, which will reduce in colour over time but never disappear. In addition, BK underwent an epidural requiring that her back be punctured so that a catheter could deliver pain relieving medication into her spine.

58BK was in labour for 7 hours. It was not until 3 or 4 hours into labour that she received an epidural to help her deal with the pain.

59From a medical perspective, there were specific concerns related to BK during her pregnancy, including:

(1) The fact she did not receive any medical care for the first 5 months of pregnancy, she missed critical testing that is done early in pregnancy;

(2) Her blood count was low causing concern about anemia and/or her nutritional health;

(3) She faced extensive prenatal testing late in her pregnancy in relation to a suspected genetic condition of her baby;

(4) She experienced intrauterine growth restriction which occurs when the fetus is less than the 10 th percentile for what is expected of their gestational age;

(5) Risks associated with receiving an epidural in a spine; and

(6) The heightened risks inherent in any pregnancy, especially in that of a child/adolescent including, but not limited to, infection/sepsis, hypertensive disorders, thromboembolic phenomena, and acute liver and kidney disorders.

60There were also concerns about the health of the baby. Due to the intrauterine growth restriction and her premature birth, the infant was quite small at birth, weighing less than 5 lbs.

61Dr. Spitzer testified about an incident after the birth of BK’s child when JU suffered a seizure. Dr. Spitzer opined that the seizure was due to being overwhelmed by the situation. Dr. Spitzer testified that BK witnessed her mother’s seizure and reflected later about how difficult that would have been for BK.

62On this issue of age, Dr. Spitzer testified that based on her observations, she had no reason to doubt that BK was 11 years old at the time she delivered her baby.

2. RN Tanya Smith’s Evidence

63Nurse Smith was qualified as an expert in the medical evaluation of children and adolescents who have experienced sexual abuse. She testified and prepared a report in this matter.

64Nurse Smith provided her opinion that “reports of bleeding from the genital area, following penile-vaginal penetration, with no other sources of bleeding identified, is likely the result of injury to the external vaginal tissue or hymenal tissue. The injury could be an abrasion or laceration both of which are breaks to the skin/mucosal tissue that may result in bleeding”. She testified that in the case of a 10-year-old sexually assaulted by an adult male, she would likely see some form of injury on the hymen or external vaginal tissue that would most likely result in bleeding.

65After the first time she was sexually abused by her stepfather, BK reported bleeding from her vaginal area, consistent with the type of injury described by Nurse Smith.

3. Dr. Vitopoulos’ Report

66The Crown also tendered a Report authored by Dr. Nina Vitopoulos, a clinical and forensic psychologist. Her Report focussed on the potential psychosocial consequences associated with the multiple adverse experiences of the victim, BK. However, BK did not consent to a clinical assessment therefore the Report is solely based on the information provided by the Crown.

67In the Report, Dr. Vitopoulos summarized the literature relevant to understanding the psychological impacts of childhood sexual abuse, early adolescent pregnancy and parenthood, and the impact of pregnancy/birth resulting from sexual violence. Although she provided a report about the psychosocial impacts of each of these, she noted the cumulative impact of these multiple adversities is not well represented in the literature due to their low co-occurring incidence, documentation and investigation.

68Dr. Vitopoulos outlined the various possible consequences of sexual abuse on a child, including neurobiological changes, sexual behaviour problems, symptoms of post traumatic stress disorder, anxiety, fear and distrust of others, low self-esteem, behavioural problems, high risk lifestyles, and other mental health problems.

69Dr. Vitopoulos concluded:

What is clear from the above literature is that a very young person who has experienced sexual abuse by a family member is at high risk for a myriad of subsequent psychosocial adversity. In addition to this experience alone, in the case before the court, extremely young motherhood, pregnancy via sexual violence and the possibility of a child with disability, confers a very high risk of increased psychosocial and parental stress with potentially limited protective factors (i.e., access to resources, community support, mental health support, etc.) and increased vulnerability factors. Taken together, a young person experiencing these co-occurring multiple adversities, each which would be difficult to experience and that confer significant risk on their own based on the literature, is likely to experience cumulative and compounding risk for psychosocial difficulty across the lifespan. This risk for impact is unfortunately not only relevant to the victim, but to her family and child, as well.

IV. Positions of the Parties

70The Crown argued that the appropriate sentence for EU is 25 years in custody. The Crown also requested several ancillary orders including:

(1) A DNA Order – which is mandatory as both offences are primary designated offences;

(2) Section 109 Order banning the offender from possessing any weapons for life;

(3) An Order pursuant to the Sex Offender Information Registry Act (“SOIRA”) for life;

(4) An Order pursuant to Section 161(a) for life; and

(5) An Order pursuant to Section 743.21 that EU not have any communication with BK and any child of BK while in custody.

71Mr. Proudlove submitted that the appropriate sentence is 9 years in custody. He agreed with the DNA and SOIRA orders requested by the Crown. However, he submitted that any Order pursuant to section 161 be worded so that it does not prevent EU from eventually resuming a relationship with his young sons. Finally, Mr. Proudlove requested that the 743.21 Order only be imposed until BK turns 18 years old.

V. Circumstances of the Offender

1. Pre-Sentence Report

72EU is 50 years old and has no criminal record. He was born in Nigeria, the eldest of seven children. His parents were married until his mother’s death in 2019. He was close to his mother but not his father, whom he described as a disciplinarian.

73EU has a degree in mechanical engineering but moved to China in his 20s to pursue a career in music. He met his wife JU in China and the two wed in 2015. The offender and JU have two sons together, six and seven years old, respectively. He is also the stepfather to BK, JU’s daughter from a previous relationship. EU’s music career ended in 2018 due to an issue involving marijuana use. The family moved to Canada in 2020 as refugee claimants.

74In the PSR, EU described himself as a “caring person who does more to satisfy others than himself”. EU also advised the PSR author that he “never thinks about children in a sexual way”. He stated that he “made the wrong choice” when he had sexual intercourse with BK but explained that he and his wife were going through a difficult time in their marriage when the sexual assaults occurred and that the couple was not sexually active with each other when the offences took place. He said BK was aware of the issues in the marriage and he described the 10-year-old as his “saviour” who gave him advice resulting in him developing a sexual attraction to her.

75EU claimed to be under the influence of drugs and alcohol when the offences occurred. However, the evidence of BK and JU does not support this claim and I therefore reject it.

76EU’s younger sister described him as a gentle person. She was shocked to hear of the offences and stated that it was out of character for him. The offender’s friend, Tony Zino, who is a pastor and has known EU for over 25 years described him as a “good person” and explained that his offences were a “normal human flaw”. Mr. Zino stated that he was “highly disappointed” when he found out about the charges.

2. Letter of Support

77EU filed a letter of support written by John Anderson, who is the Duty Chaplain at the Toronto South Detention Centre.

78Mr. Anderson stated that he rarely provides letters of support for inmates. However, in EU’s case, Mr. Anderson felt “compelled” to do so.

79In the letter, Mr. Anderson described EU as suffering his own “personal anguish” due to his “profound sense of remorse”. EU is commended by Mr. Anderson for his honesty about his own failings and his desire to make “amends for his actions and the need to restore his family”. The Chaplain stated: “I know this man has made some bad decisions, but I do not believe that he operates with criminal intent”. EU is said to selflessly serve other inmates and to have a positive influence on them.

3. Programs in Custody

80EU has been in custody at the Toronto South Detention Centre (“TSDC”) since his arrest on February 18, 2022. During his time in custody, the offender has not been idle, rather he has successfully completed several programs and has received numerous certificates and/or diplomas:

(1) Ontario Secondary School Diploma;

(2) Change is a Choice – Connections Rehabilitative Program dated September 28, 2022;

(3) Recognizing Healthy Relationships Educational Session dated October 3, 2022;

(4) Goal Setting Educational Booklet dated December 27, 2022;

(5) Change is a Choice – Anger Management Rehabilitative Program dated January 28, 2023;

(6) Gospel Echoes Team Certificate dated March 31, 2023 – for completing a series of 8 faith-based courses;

(7) Gospel Echoes Team Bible Studies Advanced Course dated April 12, 2023;

(8) Substance Use – Men’s Educational Session Booklet dated April 17, 2023;

(9) Looking for Work – Educational Sessions for Men dated April 26, 2023;

(10) Use of Leisure Time – Men’s Educational Sessions Booklet dated May 4, 2023;

(11) Changing Habits – Men’s Education Sessions Booklet dated May 13, 2023;

(12) Anger Management – Men’s Education Sessions Booklet dated May 13, 2023;

(13) Understanding Feelings – Men’s Education Sessions Booklet dated May 14, 2023; and

(14) Several correspondence courses offered by New Life Ministries including: Managing Emotional Pain, Christmas, What the Bible Teaches, Mending Hearts, Loneliness, The Company We Keep, and Anger: Gods Help to Tame the Fire.

4. Statement to the Court

81At the end of the sentencing hearing, EU made a lengthy statement to the Court. He stated that he was sorry for his actions and for the torment it caused his family. The offender stated that he wanted BK’s forgiveness and that he only ever wanted the best for her, to see her “thrive in education and succeed in life”.

82These words ring hallow given the magnitude and seriousness of the offences he committed against her. EU’s lack of insight is also evidenced when he stated “all of this has gotten in the way of a wonderful relationship” between he and BK. This statement is dismissive of the magnitude of his crimes.

83EU expressed his regret that JU is left to shoulder the responsibility for caring for their family during the most challenging time of their lives. He described JU as a courageous woman and lamented the fact that he was not able to see his sons. He described having repented for his sins and expressed that he is committed to healing his family.

84However, much of his statement was self-serving and showed a lack of insight. The self-serving nature of his statement is demonstrated by his repeated pleas to be reunited with his family. For example, he expressed how he would be grateful for the opportunity to assist with the “recovery of BK and my family”. Not once does he acknowledge that he needs or wants counseling for his sexual attraction to children. That the criminal acts he committed were deviant sexual acts. Rather, he describes the offences as being caused by his “imperfections”.

85Finally, I note that not once in his lengthy statement did EU mention the baby he fathered when he sexually abused his stepdaughter.

VI. Victim Impact Statements

1. BK

86I have already summarized the oral testimony BK gave at the sentencing hearing. The impact of these crimes was expressed in her evidence.

87However, in addition to her viva voce evidence, BK read her victim impact statement (“VIS”) in Court. To read a personal impact statement in court is a courageous and emotional experience for any victim of crime, especially a 12-year-old. BK read her statement with emotion and concern for her family but with hope for the future.

88The vast majority of BK’s VIS is dedicated to how her father’s incarceration has affected her brothers and her mother. She also focused on the offender and his character and her hopes for him in the future. Very little of her VIS describes the impact of the offences on BK. She is a remarkably empathetic child.

89She described how challenging the past year has been for her and her family, especially because they had to move into a shelter. She stated that the hardest thing for her has been learning to live without her Daddy as part of their family and missing him on her birthdays.

90BK expressed particular concern for her young brothers who cry daily missing their father and wondering if he will return. She demonstrated great empathy for her brothers and stated that she hopes they can have a relationship with their father.

91BK described the offender as a “great person” who has made mistakes. She still cares for him and misses his presence in their home. She stated: “I want him to be in a place where he can work on his mental health and not a place that he feels trapped and locked behind bars or in boxes. I want him to better himself for the boys. I want him to be happy, I want him to be healthy, I want him to come out and do better with his life.” She finished her remarks by stating: “overall, I just want everything to work out where everyone is ok and no one is hurt”.

92After reading her VIS into Court, BK disclosed more information to the Officer in Charge of the case. BK stated that she felt guilty. She stated that she never said stop, she never said “no” when EU was sexually abusing her, although she previously reported that she had. BK explained that she was worried what her Mom would think if she told her the “whole truth”, that she did not say “no” to her stepfather’s sexual advances. BK also stated that she was not sad about what happened, rather she was disappointed in herself because she realized what was happening with her stepfather was wrong. She further expressed that she feels guilty with God.

93BK also stated that she was scared and worried when she was pregnant that someone would take the baby from her. At another point in the statement, BK stated that she did not want to have the baby, she wanted to have an abortion.

94During the audio recorded interview, BK is emotionally distressed and upset.

95Although this statement serves to correct information previously reported to the police and to refute certain aggravating circumstances of the offences (that she said “no” and physically resisted EU’s advances), in my view, it is also clear evidence of the significant torment, confusion and trauma this child has endured and continues to endure as a result of the offences committed on her by her stepfather.

2. JU

96JU also submitted a VIS. She described the challenges her family has faced once EU’s offences were disclosed.

97JU explained that life has not been easy for her. She has been left to deal with the devastating fallout from her husband’s crimes on her own. JU had to care for her pregnant child, witness her give birth at age 11 and then become a new mother of her grandchild.

98JU described how the offences have had a devastating impact on her sons. For their own mental wellbeing, JU has not told her sons of their father’s offences, rather she has told them that he is away for work. She described having sleepless nights due to the pain her sons are experiencing. JU referred to one occasion the boys lashed out against her, missing their father, and wishing she would go away to work and their father would come home.

99JU described trying to stay positive. She explained that despite the circumstances surrounding her birth, BK’s child has given JU “so much joy and happiness”, and that she sees the child as a blessing.

100JU stated that these offences are out of character for EU. She described him as an otherwise caring and loving father, a great friend and trusted brother.

VII. Sentencing Principles

1. Criminal Code Sentencing Provisions

101The Criminal Code of Canada includes a comprehensive statutory scheme that governs sentencing. The fundamental purpose of sentencing is outlined in Section 718 , “to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions…”

102Pursuant to Section 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As stated in R. v. Morris, 2021 ONCA 680 at para. 61 “proportionality is the fundamental and overarching principle of sentencing”. Determining a proportionate sentence is a highly individualized process that requires an assessment of the gravity of the offence, the blameworthiness of the offender and the harm caused by the crime.

103In arriving at a “just sanction”, sentencing judges must prioritize and blend the following objectives outlined in section 718(a) to (f) in order to properly reflect both the seriousness of the offence and the degree of responsibility of the offender:

(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.

104The sentencing judge must also consider any mitigating or aggravating factors, including those listed in s. 718.2(a)(i) to (vii); the parity principle that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances (718.2(b)); the totality principle that if consecutive sentences are imposed, the total sentence should not be unduly long or harsh; and the principle of restraint: courts should exercise restraint in imposing a sentence of imprisonment (718.2(d) and (e)).

105Parliament has legislated the primary sentencing principles of denunciation and deterrence in cases involving the abuse of children. Section 718.01 of the CCC provides as follows:

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.

106Pursuant to s. 273 (2)(ii)(a.2) of the Criminal Code of Canada , the minimum sentence for the aggravated sexual assault of a person under the age of 16 is 5 years and the maximum sentence is life in custody.

2. Friesen

107The seminal decision regarding sentencing for crimes involving child sexual abuse is R. v. Friesen , a 2020 decision of the Supreme Court of Canada ( 2020 SCC 9 ). In the opening paragraph, the court states “this case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.”

108As a starting point, the Court in Friesen stated at para 5 :

… we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far reaching and ongoing harm that it causes to children, families, and society at large.

109The Court addressed the rationale for the statutorily mandated prioritization of denunciation and deterrence in sentences involving child sexual abuse at paragraph 105:

Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative and educative role of law. It reflects the fact that Canadian criminal law is a “system of values”. A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code of values”; it “instills the basic set of communal values shared by all Canadians”. The protection of children is one of the most basic values of Canadian society. As L’Heureux- Dubé J. reasoned in L.F.W. , “sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms”. [cites omitted]

110The Supreme Court’s overall message is that “mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances” (Friesen , para. 114 ). Substantial sentences can be imposed where there is only a single instance of sexual violence and/or a single victim, and “a maximum sentence should be imposed whenever the circumstances warrant it”. (Friesen , para. 114 )

3. Range of Sentences

111Given the seismic shift regarding sentences for child sexual abuse offences in Friesen , the pre- Friesen caselaw is less helpful with respect to determining an appropriate range of sentence.

112Both counsel provided me with numerous cases. I have reviewed all of them. There is a broad span of sentences in the caselaw which reflects the broad range of acts that encompass child sexual abuse.

113Sentencing is an individualized process. It is not a scientific or mathematical calculation. Unsurprisingly, there is no case that has been provided that is exactly the same as the case before me. It would be unproductive to summarize each case in these reasons given the differences. However, there are two recent cases that are similar to Mr. EU’s.

114R. v. L.R. , 2021 ONCJ 502 , involved historical sexual assaults by a stepfather on two of his stepdaughters. LR sexually abused his stepdaughters for a number of years starting at ages 10 and 12, respectively. His sexual abuse escalated and ultimately resulted in each of them being impregnated and giving birth. One victim had two children as a result of the sexual abuse and the other had one child. LR coerced the victims into concealing the paternity of the children. The sexual abuse continued for many years.

115LR pleaded guilty to two counts of Sexual Interference, three counts of Sexual Assault and three counts of Sexual Assault Causing Bodily Harm. Justice Downes sentenced LR to a global sentence of 22 years, less pre-sentence custody. His sentence was appealed by LR. In very brief reasons, the Ontario Court of Appeal upheld the sentence (R. v. L.R. , 2023 ONCA 486).

116The facts of LR are different, specifically with respect to certain aggravating factors. In LR, there were multiple victims and multiple births as a result of the child sexual abuse over several years.

117It is also important to note that given the historical nature of the offences, the maximum penalties applicable in L.R . were lower. For example, the maximum sentence for Sexual Interference was 10 years, whereas the maximum sentence available in relation to EU for the same offence is 14 years in custody. Also, it is clear from his decision that the sentencing judge in LR placed significant weight on LR’s advanced age (70 years old) and his ailing health in determining a fit sentence. However, despite the differences, the sentence in L.R. reflects the impact of Friesen in determining a fit sentence for sexual abusers of children.

118The other case that is similar is R. v. E.A.V. , 2022 ONCJ 545 , a decision of Justice Faria of the Ontario Court of Justice. In that case, EAV pleaded guilty to one count of Sexual Interference and one count of Aggravated Sexual Assault.

119EAV was the victim’s stepfather. The victim was between 11 and 12 years old when EAV repeatedly sexually abused her. The sexual abuse resulted in her becoming pregnant. The pregnancy was confirmed and disclosed to the victim’s mother at 9 weeks. Due primarily to religious beliefs, the victim chose to give birth to the child rather than have an abortion.

120Justice Faria imposed a global sentence of 18.5 years in custody. She allocated the time as 18.5 years in jail for the Aggravated Sexual Assault and 14 years concurrent on the Sexual Interference offence.

121There are many differences in both the aggravating and mitigating factors compared to those applicable to EU. However, the case is informative in terms of the balancing that the Court engaged in and the range of appropriate sentence in a case with similar facts.

VIII. Analysis Aggravating Factors

122There are numerous aggravating factors in this case:

1. Gross Breach of Trust

123Parliament has seen fit to codify particularly aggravating factors to be considered on sentencing. Pursuant to Section 718.2(a)(iii) of the Criminal Code of Canada abuse of a position of trust or authority in relation to the victim is an aggravating factor that the Court must consider.

124The primary aggravating factor in this case is the gross breach of trust perpetrated by EU.

125EU was, for all intents and purposes, BK’s father at the time of the offences. He was not her biological father but had acted in the role of her father since she was approximately 5 years old. She called him Daddy. BK’s love for her father is evident from the words in her VIS and in her evidence.

126BK testified that when the sexual abuse began, she did not resist because she trusted EU and felt comfortable with him. He apologized after sexually abusing her and promised after the third rape that it would not happen again. BK believed him. She felt safe again because of the gap between the third and fourth sexual assaults.

127EU took advantage of BK’s vulnerabilities. He knew she was 10 years old. He knew that they were newcomers to Canada and were isolated due to the pandemic.

128His deviant sexual urges for his 10-year-old daughter were more important to him than being a parent to the child. It was more important than his marriage. It was more important than his relationship with his sons, who were in the home at the time the offences occurred. EU chose forced sexual abuse above his family. He grossly breached the trust BK had in him.

2. Sexual Abuse of a Child

129Section 718.2(a)(ii.1) codifies that it is an aggravating factor on sentence if an offender, in committing the offence, abused a person under the age of 18. In this case, BK was just 10 years old when her stepfather started sexually abusing her. The abuse continued for months and seemed to stop only because BK became pregnant.

130In my view, the extremely young age of BK when the sexual abuse began is particularly aggravating. BK’s evidence was heartbreaking when she testified about going to elementary school when pregnant and being able to participate in physical education class early on but becoming more uncomfortable and having back pain as the pregnancy progressed. It is unfathomable that a child in grade 6 had to go to school while pregnant and was coerced into hiding the fact that the pregnancy was a result of a sexual assault by her father.

131The experts who testified in this case explained that there is little data on pregnancies on a child so young due to the low occurrence of such circumstances. Dr. Spitzer testified that she has only ever treated two 11-year-old pregnant patients, including BK. The age of BK when sexually abused and the fact that she was impregnated and gave birth to a baby at age 11, are particularly aggravating factors in this case.

3. Repeated Incidents of Sexual Abuse

132EU has pleaded guilty to two separate incidents of sexual abuse on his stepdaughter. However, he acknowledged in the Agreed Statement of Fact that he committed two additional sexual assaults on his stepchild.

133These egregious offences were not a one-time occurrence. He committed repeated and sustained violent sexual abuse of his stepdaughter over a period of several months.

4. Impact of Offences on BK

134Section 718.2(a)(iii.1) directs a sentencing judge to consider as an aggravating fact evidence that the offence had a significant impact on the victim, considering their age and any other personal circumstances.

135It is extremely difficult, if not impossible, to measure the psychological impact of the offences on BK. Not surprisingly, it is evident from her testimony and VIS that she is not able to fully comprehend the impact of the offences on her life.

136It is also evident that BK blames herself for the trauma her family has endured. In her video statement she stated: “I know my Mom and my brothers are going to have to suffer for my mistake”. She testified that she wished she had been stronger and more courageous and had told her mother of the sexual abuse before she was impregnated.

137There is not one iota of blame on BK for the trauma caused by these offences to her and her family. EU is completely and solely blameworthy for the offences and the fallout from those offences. The continued guilt, trauma and torment experienced by BK was truly palpable in her evidence and her VIS.

138One of the reasons BK testified, was so that the Crown could prove the aggravating fact of violence during the various sexual assaults, above and beyond the violence that is inherent in the rape of a 10-year-old child. Initially in her evidence, she recounted fighting back against EU when he tried to have sex with her. However, she recanted that allegation after she bravely read her victim impact statement to the Court on video. In my view, her recantation is not a reflection of her credibility or reliability. Rather, it is a reflection of a child who is experiencing torment, emotional despair, and confusion.

139Much of BK’s evidence focused on the suffering of her brothers, her mother and EU. She is a remarkably empathetic child. Not only does BK have to deal with the trauma of being sexually abused by her Daddy and giving birth to a child at age 11, she has to witness and deal with the trauma caused by her victimization on her family on a daily basis. EU has stolen BK’s childhood from her. He did so for his own sexual gratification. BK is dealing with a multitude of issues that no child should ever have to cope with.

140It is an understatement to say that the impact of the offences is “significant”. It is debilitating, devastating and has destroyed BK’s childhood. The impact on her as a teenager and adult is unknown, however, Dr. Vitopoulos’ Report provides a window into the kind of serious, life-altering effects these offences are likely to have on BK in the future.

5. Physical Injuries Caused by the Offences

141The Crown did not rely on the existence of physical violence beyond that inherent in the sexual assault of a small girl. However, BK did suffer physical injuries. She described bleeding from her vagina after the first instance of sexual abuse. She also described the pain she endured for days in the form of stomach cramps.

142Additionally, the permanent physical injuries caused to this 11-year-old child as a result of her pregnancy were described by Dr. Spitzer, including, but not limited to, permanent stretching of her abdominal ligaments, stretching of pelvic floor and stretching/separation of her abdominal wall muscles.

6. Location of the Offences

143The Court in Friesen has stated that sexual abuse that takes place in the home is an aggravating factor (see paragraph 178). The Court also made the following observations at paragraphs 66 and 67:

Children are most vulnerable and at risk at home and among those they trust ( Sharpe , at para. 215 , per L’Heureux-Dubé, Gonthier and Bastarache JJ.; K.R.J. , at para. 153 , per Brown J.). More than 74 percent of police-reported sexual offences against children and youth took place in a private residence in 2012 and 88 percent of such offences were committed by an individual known to the victim ( Police-reported sexual offences against children and youth in Canada, 2012 , at pp. 11 and 14).

It is for this reason that sexual violence against children can all too often be invisible to society. To resist detection, offenders perpetrate sexual violence against children in private, coerce children into not reporting, and rely on society’s false belief that sexual violence against children is an aberration confined to a handful of abnormal individuals (see R. J. R. Levesque, Sexual Abuse of Children: A Human Rights Perspective (1999), at p. 11). Violence against children thus remains hidden, unreported, and under-recorded ( Report of the independent expert for the United Nations study on violence against children , at pp. 8-9).

144It is an aggravating factor that all of the offences against BK took place in the family home. The place where she should feel the most safe and secure. Not only did the offences take place in the home, they took place at home while BK’s young brothers were in another room.

7. Lack of Birth Control

145BK testified that her stepfather knew that she had her menses as he had purchased maxi pads for her at the store on occasion. Notwithstanding this knowledge, EU did not use protection when he sexually abused BK. This was a callous and cruel decision exposing BK not only to the possibility of pregnancy but also sexually transmitted infections.

8. Coercion and Concealment of the Pregnancy/Paternity

146When BK told EU that she was pregnant, he bought her a pregnancy test to confirm the information. When the pregnancy was confirmed, EU held his head in his hands. Instead of prioritizing BK’s health and wellbeing (both physically and mentally), he coerced BK into concealing the fact that he was the father. He counseled her to lie to her mother about the paternity of the child. This was an 11-year-old child who was confused and scared. He preyed on BK’s vulnerabilities in order to conceal his criminal acts. He was only concerned about his own self-preservation.

147Rather than taking responsibility for his actions, EU cowardly left the burden of telling her mother of the pregnancy to his 11-year-old stepdaughter.

9. Lack of Medical Care

148EU became aware of BK’s pregnancy very early on. She had just missed her period by only 8 days when the pregnancy was confirmed. EU had a choice. He could get his stepdaughter the medical support and care she required or he could continue to conceal his criminal acts. He chose the latter.

149EU told his friends that BK was pregnant and had them bring her to an abortion clinic. He lied to his friends about the frequency of his child abuse. He coerced BK to go along with his lie. The friends brought a scared BK to an abortion clinic but they were unsuccessful in having the procedure done because parental consent was required. EU did not accompany BK to the abortion clinic. Again, EU had a choice. He could have taken BK to the abortion clinic himself and provided the required parental consent. Again, EU chose self-preservation over the health and wellbeing of his stepdaughter.

150At age 11, BK endured 5 months of her pregnancy without medical care. She endured 5 months of pregnancy without the support of her mother. By the time her pregnancy came to light, it was too late for her to have an abortion. As a result of his cowardly acts, EU stripped BK of the choice of whether to have the child or not.

10. Impact of Offences on JU, her sons and the baby

151The impact of EU’s offences on JU are enormous. Her husband and partner betrayed her by sexually abusing their daughter. Her marriage abruptly ended as EU was arrested and taken into custody.

152She experienced stress and worry as she helped her daughter through the last trimester of her pregnancy. She watched her 11-year-old go through labour and birth. She suffered a seizure in the hospital shortly after the baby’s birth due to being overwhelmed with all that was happening. The psychological impact of knowing her husband repeatedly raped and impregnated her 11-year-old daughter is immeasurable and cannot be overstated. It is traumatic and devastating.

153The impact of EU’s crimes on JU goes beyond psychological trauma. These crimes impacted JU and the family financially. When the baby was born, JU decided to raise the child as her own in an effort to remove any stigma BK might face. In order to care for the baby, JU left her job. As a result, the family lost their home. They moved to a one room shelter where all five of them resided for many months. The unquantifiable cost of the care of the child will be borne by JU now and in the future.

154All of JU’s acts have been selfless and in the best interests of her children. She has lovingly taken care of her child as she became a parent. She is raising her grandchild as her child. To protect her sons’ mental wellbeing, she has told them that their father is away at work. Her sons have lashed out at her, upset at their father’s absence. She has had to shoulder all of the family issues on her own. Her strength is remarkable. Her love for her family unsurpassed. I hope she continues to get the therapy and support she needs as she navigates life with her family in the future.

155The impact of these offences on JU’s two young sons is significant. They are angry about the absence of their father. They miss him daily and especially on special occasions like birthdays. Someday they will likely come to learn of their father’s incarceration and the reason for it. The trauma from that knowledge on the boys is unknown and immeasurable at the present time.

156Finally, the impact of these offences on the infant child who was conceived from the violent sexual act is also not known. As with the boys, surely if/when the child finds out how she was conceived and who her father is, the trauma will be significant.

157The legacy of the intergenerational trauma caused EU’s violent criminal acts is surely profound but is largely immeasurable at this point in time.

Mitigating Factors

158There are a number of mitigating factors that I have considered and that serve to moderate the appropriate sentence in this case.

1. No Criminal Record, Offences Out of Character

159EU comes before the Court with no criminal record. He is a first-time offender.

160The criminal acts that EU has committed are described by JU, BK and others as being out of character. By JU’s account, EU was an otherwise good father to BK and his sons.

161The Duty Chaplain at the TSDC described EU as selflessly serving other inmates and having a positive influence on them. He described EU as profoundly remorseful for his actions.

2. Guilty Plea

162EU entered guilty pleas. He took responsibility for his actions without the necessity of a full-blown trial. However, the mitigating effect of his guilty plea is attenuated by the fact that both BK and JU had to testify on the sentencing hearing.

163I note that EU’s refusal to admit the aggravating facts sought to be proved by the Crown was not unreasonable in light of BK’s recantation of some of those facts. However, EU also refused to agree that BK’s date of birth was August 14, 2010. As a result, BK and JU were required to testify on that issue. Ultimately, BK’s date of birth was conceded albeit after BK and JU testified.

164I would note that BK was not cross examined extensively and JU was not cross examined at all. I do not mean to detract from the stress and anxiety involved in testifying, rather I wish to highlight that their experience testifying at the sentencing hearing was significantly different from what it likely would have been at a contested trial.

165EU’s guilty plea is also somewhat moderated by the fact that, given the DNA evidence, the case against him was very strong. That being said, he made admissions about other criminal acts apart from the offence that cause BK’s pregnancy.

166In all of the circumstances, although somewhat diminished, I still find EU’s guilty plea and acceptance of responsibility to be a mitigating factor.

3. Remorse

167EU claimed to be remorseful for his actions. In his speech to the Court, he expressed that he was sorry for his actions and knew they were wrong. He was also remorseful about the impact his actions have had on his family and indicated that he has sought forgiveness from them. He is clearly a deeply religious man and described repenting to God.

168As mentioned earlier, the Duty Chaplain also expressed his observations of EU’s deep remorse and the need to restore his family.

169However, his remorse is attenuated by his lack of insight into his actions. His justification for his sexual abuse of BK is deeply concerning. This lack of insight is most strikingly obvious in the PSR, when he attributes having sexual intercourse with his 10- year-old stepdaughter to marital strife and a lack of sexual intimacy with his wife. To suggest that anyone other than himself is responsible for the reprehensible criminal acts committed against BK demonstrates a stunning lack of insight.

4. Rehabilitation/Insight

170The primary sentencing principles in this case are denunciation and deterrence. However, the other principles still apply albeit with less force in cases of child sexual abuse. In my view, EU’s prospect for rehabilitation is an important factor to consider in arriving at a fit sentence.

171EU has completed numerous courses and programs while in custody, including obtaining his high school diploma. He is to be commended for completing so many courses/programs. While the subject matter of the courses he has completed aim to better him as a person, none of them appear to address the root cause of his offences: namely, his sexual attraction to children.

172EU’s prospect for rehabilitation is significantly diminished due to his lack of insight into his crimes. He has not expressed a desire to get help for his sexual attraction to children. In fact, in the PSR, he denies any such attraction. Until EU acknowledges his sexual proclivity for children and seeks help for it, he continues to be a risk to the community and his prospect for rehabilitation is low.

5. Conditions of Pre-Sentence Custody

173In R. v. Duncan , 2016 ONCA 754 , the Ontario Court of Appeal provided that particularly harsh pre-sentence custody conditions can, in appropriate circumstances, result in a further mitigation of sentence beyond that provided for in R. v. Summers , 2014 SCC 26 . Both the conditions of the incarceration and the impact on the particular offender should be considered in an assessment of the significance of the lockdown as a mitigating factor.

174In R. v. Marshall , 2021 ONCA 344 , the Ontario Court of Appeal recently stated at paras 52 and 53:

The “ Duncan ” credit is not a deduction from the otherwise appropriate sentence but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “ Summers ” credit will be deducted. Because the “ Duncan ” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

Often times, a specific number of days or months are given as “ Duncan ” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “ Duncan ” credit, only one of presumably several relevant factors, there is a risk the “ Duncan ” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “ Summers ” credit. If treated in that way, the “ Duncan ” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004) , 187 O.A.C. 307 (C.A.) .

175EU has been detained at the TSDC since his arrest on February 18, 2022. Records documenting the number of lockdowns he has endured while in custody up to and including August 6, 2023, were marked as an Exhibit on the sentencing hearing. I am aware of the fact that the total number of lockdowns reflected in the records does not account for the last 7 months EU has spent in pre-trial custody. Given the pattern and extent of lockdowns indicated in the records I have received, I note that the total number would be significantly higher if the records up to the date of sentencing were received.

176As of August 6, 2023, EU had spent 534 days in pre-sentence custody. He spent an astounding 243 days of those 534 in full or partial lockdown. Almost half of his time in custody to August 6 th , 2023, was spent in lockdown. The vast majority of the lockdowns were caused by staff shortages. This is completely unacceptable.

177I adopt the comments of the Court in R. v. Studd, 2020 ONSC 2810 , 2020 OJ No 2035 at paras 33 and 34 , regarding lockdowns at TSDC:

It is not simply the number of hours that detainees are locked down that make the conditions at the TSDC intolerable. It is the persistence of the problem, the cumulative effect of repeated lockdowns and the unpredictability of how long any lockdown will last that causes unacceptable stress and tension for the detainees.

Occasional lockdowns for security or operational issues are to be expected in large correctional facilities like the TSDC. However, the number of lockdowns at the TSDC is simply unacceptable and the reason for the lockdowns is unconscionable. Staff shortages at the TSDC have been a problem for years. The failure to address this problem reflects a shocking lack of concern on the part of the institution and/or the government to the rights of individuals detained in pre-trial custody. Adequate resources must be allocated to ensure that inmates in pre-sentence custody are treated in a humane manner.

178I note that, by choice, EU is being housed in segregation. I also note that notwithstanding the significant number of lockdowns, EU has been able to participate in and complete several programs at the TSDC.

179However, given the number and frequency of lockdowns, a mitigation of sentence is required to reflect the harsh pre-sentence custody EU has experienced. I have considered this a significant mitigating factor in arriving at the appropriate sentence.

Denunciation and Deterrence

180Parliament has directed that the primary sentencing principles in the case of child sexual abuse are denunciation and deterrence.

181The sentence to be imposed on EU must not only deter him from committing similar offences in the future, it must also serve to deter others from committing these types of horrendous crimes on children.

182In my view, in order to appropriately reflect the principles of denunciation and deterrence, a significant custodial sentence is required in this case.

Totality

183The totality principle in the Criminal Code states that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. The primary purpose of the totality principle is to “ensure that the total sentence imposed does not extinguish the rehabilitative potential of the offender” (R. v. Angelis , 2016 ONCA 675 , per Watt J.A. at para. 51).

184However, the Court of Appeal has been clear that the totality principle must not be applied in such a manner that the global sentence fails to recognize the overall gravity of the sexual offences against children for which the offender is being sentenced. As Feldman, J.A. noted in R. v. F. (D.G.), 2010 ONCA 27 at paras. 26-27 :

… by focusing on the totality principle and imposing concurrent sentences for each of the offences, the trial judge failed to address the interrelation of the crimes and the need for a sufficiently long global sentence to address the seriousness and moral blameworthiness of the respondent’s overall criminal conduct.

Although the totality principle must always be considered in sentencing for multiple offences, the sentence imposed cannot thereby become inadequate to properly recognize the overall gravity of this conduct that victimizes children in the most horrendous way.

185In R. v. Hannora , 2020 ONCA 335 , the Court of Appeal made a number of sentences concurrent as a means of satisfying the principle of totality. The Court stated at para. 12:

It is recognized that one way to reconcile the overall sentence with the totality principle is to impose concurrent sentences, where otherwise sentences would be consecutive: Clayton Ruby, et al. Sentencing, 9th ed. (Toronto: LexisNexis, 2017), at 2.75.

Restraint

186EU is a first offender. The principle of restraint is applicable in sentencing all offenders, and in particular first offenders ( see R. v. Sousa , 2023 ONCA 100 at para. 37 ).

X. Pre-Sentence Custody Calculation

187EU has been in custody since he was arrested on February 18, 2022. He has spent 2 years and 2 weeks in pre-sentence custody. He is entitled to credit on a 1:1.5 basis resulting in his pre-sentence custody to be credited as 3 years and 3 weeks.

188As indicated above, I have considered the harsh pre-sentence custody conditions as a mitigating factor in arriving at the appropriate sentence and therefore no additional mathematical calculation is required.

XI. Balancing - Appropriate Sentence

189In arriving at my conclusion as to the appropriate sentence in this case, I have taken guidance from the Court in Friesen at para 76 :

Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities (see M. (C.A.) , at para. 80; R. v. Morrisey , 2000 SCC 39 , [2000] 2 S.C.R. 90 , at para. 35 ). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.

190BK endured the physical and psychological pain of being repeatedly sexually assaulted by her “Daddy”. In addition, she endured the pain, fear and permanent changes (wounding) to her body that no child should experience. She became a parent at 11 years old.

191EU’s selfish, violent criminal sexual acts against a child have caused immeasurable intergenerational trauma. The VISs in this case as well as the evidence of BK and JU are merely a snapshot of the impact of these offences at this point in time. The lingering trauma to BK, her mother, her brothers and her baby is unknown but will surely be significant.

192Given all of the above, in particular, the gravity of the offending behaviour, the accused's exceptionally high moral culpability and the significant impact on the victims, a high double digit penitentiary sentence is required.

193The position of 25 years in jail taken by the Crown is not unreasonable in the particular circumstances of this case. However, in my view, such a sentence does not adequately address the mitigating factors in this case (in particular, the harsh pre- sentence custody conditions) and does not sufficiently apply the principle of totality or restraint.

194In my view, if I sentenced EU consecutively on each count, the totality principle would be offended. Accordingly, I have decided to impose a global concurrent sentence.

195Having balanced all of the foregoing, I find the appropriate sentence for EU’s crimes is 19 years in custody, less his time spent in pre-sentence custody. The sentence is allocated as follows: 19 years on the Aggravated Sexual Assault and 14 years concurrent on the Sexual Interference.

196The calculation of his sentence is as follows: 19 years in custody, minus his enhanced presentence custody of 3 years and 3 weeks, resulting in him having 15 years, 11 months and 1 week remaining to serve on his custodial sentence.

Ancillary orders

197I also make the following ancillary orders:

a. A DNA Order pursuant to s. 487.04.

b. A Weapons Prohibition Order pursuant to s. 109 for life.

c. A Sex Offender Information Registry Act Order (SOIRA) pursuant to s. 490.013(2)(c). As the maximum sentence available for Aggravated Sexual Assault is life, the SOIRA Order will be for life.

d. A s. 161 (1) Order for life as both Aggravated Sexual Assault and Sexual Interference pursuant to s. 161 (1.1). Given that EU’s offences were a gross and repeated breach of trust in relation to a very young child, I order the following:

i. Pursuant to s. 161 (1) (a) EU is prohibited from 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, schoolground, playground or community centre unless in the presence of an adult over 18 years of age.

ii. Pursuant to s. 161 (a.1) EU is prohibited from being within two kilometres of any dwelling-house where BK resides, or any child of hers reside.

iii. Pursuant to s. 161 (1)(b) EU is prohibited from 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.

iv. Pursuant to s. 161 (1) (c) EU is prohibited from having contact with children under 16 years of age unless in the presence of an adult over 18 years of age.

e. I make a Non-Communication Order pursuant to s. 743.21. Given the aggravating factors in this case and EU’s lack of insight, I order that EU is to have no communication, directly or indirectly, with BK and any child of BK for the entire period of his incarceration.

198I decline to issue an Order prohibiting EU from entering a relationship with someone who has children under the age of 16, as the s.161(1)(c) Order will protect the children of any such person. Similarly, I decline to order a s.161 (1)(d) Order prohibiting the use of the internet as there is no evidence the internet or a digital network is connected to EU’s offending behaviour.

199Given the length of the sentence I have imposed and the fact that EU has been in custody since February 18, 2022, I waive the victim fine surcharge as it would be an undue hardship to impose it.

XIII. Conclusion

200This has been a challenging case for all involved. I thank both counsel for their professionalism and comprehensive, thoughtful and thorough work on this difficult and complex case.

201Finally, I reiterate what I said at the end of BK’s evidence. She is the most courageous and strong 12-year-old I have ever met. I hope that with counselling, support, and any other therapy required that she comes to realize that she was truly the victim and in no way responsible for the trauma caused to her, to her family and her child. I wish BK all the very best in the future.