WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

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

486.6 Offence.

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

Court Information

Ontario Court of Justice (East Region)

Her Majesty the Queen v. P. V.

Before: Justice David M. Paciocco – Ottawa, ON

Sentencing Decision

Released: January 19, 2016

Counsel:

• Mrs. M. Cunningham for the Crown
• Mr. W. Murray for the Accused, P. V.

Decision

Paciocco J.

I. Introduction

[1] P.V. is being sentenced before me for her considerable role in atrocious crimes she committed with her husband, J.V., against the couple's two daughters, the older daughter K.V., and her younger sister Kl. V. These young women are now in their early twenties.

[2] Specifically, on July 14, 2015 I formally found P.V. guilty of the following sexual offences:

COUNT 1

P.V. and J.V.

between the 1st day of January in the year 2001 and the 31st day of December in the year 2003 at the Community of In Or Around The City Of Ottawa in the East/De L'Est Region did commit a sexual assault on Kl. V., contrary to Section 271, subsection (1) of the Criminal Code of Canada.

COUNT 2

P.V. and J.V.

between the 1st day of January in the year 2000 and the 31st day of December in the year 2003 at the Community of In Or Around The City Of Ottawa in the East/De L'Est Region did commit a sexual assault on K.V., contrary to Section 271, subsection (1) of the Criminal Code of Canada.

[3] These findings were based upon Ms. V.'s practice of assisting J.V. while he sexually violated his young daughters, primarily by bringing them to J.V. for sex. She not only failed to protect her children, she used her authority as a parent to compel them to go to their father, knowing what was in store for them. She also participated in demeaning them and isolating them in order to facilitate the abuse that was occurring.

[4] P.V. was also proclaimed guilty of bringing J.V. a dog, knowing or being wilfully blind to the fact that J.V. would be using the dog to violate the younger of the two daughters sexually. This finding was made under Count 3 in the information.

COUNT 3

P. V. and J.V.

between the 1st day of January in the year 2009 and the 31st day of December in the year 2009 at the Community of In Or Around The City Of Ottawa in the East/De L'Est Region did, for a sexual purpose, touch Kl. V., a person under the age of sixteen years, with an object, namely a dog, contrary to Section 151 of the Criminal Code of Canada.

[5] I also formally proclaimed P.V. guilty of, on one occasion, joining, at J.V.'s request, in the sexual abuse of the younger of the two girls. This conduct was not repeated by P.V. after her daughter protested. This finding was made under the following count:

COUNT 7

P.V.

between the 1st day of January in the year 1999 and the 9th day of May in the year 2008 at the Community of In Or Around The City Of Ottawa in the East/De L'Est Region did, with a part of her body, to wit tongue, for a sexual purpose, directly touch the body of a person under the age of fourteen years, namely Kl. V., contrary to Section 151 of the Criminal Code of Canada.

[6] In addition, there were offences of physical violence proved. I formally proclaimed P. V. guilty of a specific offence of physical assault.

COUNT 6

P.V. and J.V.

between the 1st day of January in the year 2001 and the 31st day of December in the year 2003 at the Community of In Or Around The City Of Ottawa in the East/De L'Est Region did, in committing an assault on Kl. V., use a weapon, namely a lighter, contrary to Section 267, clause (a) of the Criminal Code of Canada.

[7] Through administrative error, formal proclamations of guilt or innocence were not made with respect to counts 8-11 of the information. In the course of my decision, however, I had expressed reasonable doubt about the allegations in counts 8, 9 and 11. I am therefore directing the clerk to correct Appendix "A" of the Information, which erroneously recorded findings of guilt on these counts.

[8] I am directing that the finding of guilt recorded for count 10 be retained in Appendix "A" to the information, which alleges:

COUNT 10

P. V.

between the 1st day of January in the year 1999 and the 31st day of December in the year 2009 at the Community of In Or Around The City Of Ottawa in the East/De L'Est Region did, in committing an assault on Kl. V., use a weapon, namely an electrical cord and a stick, contrary to Section 267, clause (a) of the Criminal Code of Canada.

[9] I am doing so because, after reciting that Kl. V. had testified to being beaten by her father, including with an electrical cord and sticks, and that her mother assisted her father in assaulting her, I made the following findings, communicated in my decision of July 14, 2015:

[254] I am, however, convinced beyond a reasonable doubt, that P.V. committed both the physical and sexual assault offences Kl. V. described.

[10] I am therefore sentencing P. V. of the sexual offence charges described above, as well as the assault with a weapon charges contained in Count 6 and 10.

[11] Mr. Murray, for Ms. V., asks that a sentence be fashioned to reflect time served, which is the equivalent of a penitentiary sentence of a little over 2 years and 9 months. [1] He paints Ms. V. as a victim of her husband's abuse and a casualty of her own sexual abuse as a child at the hands of her grandfather. He argues that Ms. V. is a battered woman, suffering chronic or complex post-traumatic stress disorder that dulls her degree of responsibility to the point where the usual governing principles in child sexual abuse and physical abuse cases - denunciation and general deterrence - should not be allowed to animate her sentence.

[12] Ms. Cunningham, for the Crown, asks me to imprison Ms. V. for 10 – 12 years, minus credit for time served. She disputes that the evidence about Ms. V.'s own struggles succeeds in explaining Ms. V.'s role in these heinous offences, which did untold but clearly profound damage to her own children. The Crown contends that Ms. V. had choices, but chose to please her husband over her duty to protect her children. The Crown submits that if Ms. V. is indeed haunted by a relevant pathology, it is the antisocial, personality disorder that Dr. Kunjukrishnan observed in his section 21 Mental Health Act report that I had ordered, at Ms. V.'s request. Ms. Cunningham agrees that Ms. V.'s sentence must be tempered by the abuse she has suffered, and because she was not the initiator in these offences, but not in the extravagant measure the defence suggests.

[13] My task in arriving at a fit sentence is not to choose between these two polarized positions, nor is it a simple exercise in mathematics. Sentencing is a complex exercise that is to be guided by settled principles of law, and precedents.

[14] Specifically, I am to gain a measure of the gravity of the offences, and Ms. V.'s degree of responsibility, including any personal factors that might aggravate or mitigate her sentence. Having done so, I am to identify the appropriate priorities the sentence is to be given among the purposes of sentencing identified in section 718 of the Criminal Code. I am then to craft a fit sentence in light of those objectives and the guiding principles of sentencing, with careful regard to the range of sentencing approved in the case law.

[15] This is not a precise exercise, but it is a systematic one that is meant to lead to a fair, just, and humane but purposeful outcome.

II. The Gravity of Ms. V.'s Offences

[16] No-one can deny that the lives of the courageous young complainants who testified before me have been horrific, primarily because of the shocking crimes their parents committed against them. These young women were raised as objects to be exploited, not human beings to be respected. The offences before me that Ms. V. assisted flirt with, if not attain, the high-water mark of seriousness for sexual crimes. Even the crimes she committed directly are extremely grave.

[17] I begin by noting that the sexual offences that Ms. V. aided were not impulsive, or fleeting, or unobtrusive, or isolated.

[18] The younger of the two girls, Kl. V., has known nothing, in her living memory, but sordid abuse, including full penetration, oral violation, anal sex, and bestiality at the hands of her father, including during the period alleged in Count 1. Ms. V. repeatedly assisted her husband in these offences. Instead of being able to look upon her mother as someone who would nurture and protect her, this young woman was left to come to the grotesque realization that, instead, her mother would assist in her exploitation and abuse. She must also live with the memory of a depraved threesome involving her own mother.

[19] The older of the two girls, K.V., was subjected to intercourse and oral sex with her father from a young age, including the period alleged in Count 2. She, too, has been left to cope with the reality that her mother helped her father do these things, not once or twice, but repeatedly.

[20] Without question, these atrocities have been a central, defining feature of the childhood of each of the two complainants.

[21] Even the acts of physical abuse I have convicted Ms. V. of were shocking. She overpowered her own child so her husband could terrify her, and cause her pain.

[22] While Mr. V. was the most proximate actor in all but one of the incidents I will be sentencing Ms. V. for, the crimes of Ms. V. have not been convicted by simple omission or neglect. As indicated, Ms. V. not only made the offences possible by failing to avail herself of countless obvious opportunities to complain when suspicious officials were inquiring into the welfare of the children, she deprived her children of what should have been their most promising avenue of escape – a complaint to their mother. Instead of protecting them, she delivered her own daughter's to this abuse, and then protected her husband. Even at the end, after these young women had gone to the police, Ms. V. attempted to persuade her daughters that Mr. V. was a good man.

[23] As Ms. Cunningham put it, the facts of these offences are self-aggravating because of the nature and number of offences. Resort to the law is not required for right-thinking people to know how serious these transgressions are. Technical rules confirm, however, that these offences are aggravated in their severity for sentencing purposes by the age of the victims, pursuant to section 718.2(a)(ii.1).

[24] These offences are also aggravated by the abuse of trust and authority they entail, pursuant to section 718.2(iii). It is difficult to describe a more extreme breach of trust than that committed by P.V.

[25] And these offences are aggravated according to section 718.2(a)(iii.1) of the Criminal Code, by the significant impact they have had on the victims, considering the age of these victims, and their other personal circumstances, including their health. This significant impact was felt over many ages by her daughters, during their tender years as mere children, then their impressionable adolescence, and then their early teens.

[26] Throughout their childhood these young women were isolated from others to protect the family secret, and dressed as boys to make them unattractive to males, enterprises Ms. V. helped service.

[27] The young women were also made to feel shame, by both parents, for their compelled participation. They were subjected to sexualized name-calling in an apparent effort to reinforce that these women were rightly objectified. They were called pigs, and sluts, and whores by their father, and their mother.

[28] The victim impact statements filed in this case are heart-wrenching. Both young women struggle with mental health challenges, motivational challenges, self-confidence issues, trust issues, social isolation, and a generally impaired quality of life as they strive to deal with what has happened. The youngest daughter was driven to a frightening suicide attempt that almost succeeded.

[29] Evidence does not show what the lives of these young women would have been like if the crimes that Ms. V. was complicit in had not occurred, but one thing is clear. Because of the offences against them, these young women were not given a chance to see how healthy and fulfilled they might have been. They were robbed of many years, and their potential has been delayed if not destroyed. Only great courage and support will enable them to live the lives they deserve.

[30] One looks in vain for any serious offsetting mitigating factors related to the manner of offending. Ms. V.'s crimes are horrendous, even when full recognition is given to the predominantly secondary role she played, and the fact that she did not initiate any of the offences I am convicting her of.

[31] Mr. Murray, for Ms. V., does not contest any of this. He does not deny that the offences are deplorable. In seeking a bottom-level penitentiary length sentence on behalf of Ms. V. he focuses intently on Ms. V.'s personal circumstances and degree of responsibility.

III. Ms. V.'s Degree of Responsibility, and Personal Mitigating Factors

[32] As indicated, Mr. Murray casts Ms. V. as a victim whose responsibility is significantly abridged by the abuse she herself has endured, and by the mentally unhealthy state it has left her in.

[33] It is not contested that Ms. V. was sexually abused herself as a child for many years, by her maternal grandfather, or that she was physically abused by her father. No expert evidence was led about the intergenerational nature of abuse, or of how it can damage victims to the point where they become abusers. I nonetheless accept, as a simple matter of common sense, that these horrible experiences were scarring, and may have damaged Ms. V.'s ability to form truly healthy attitudes about sexual boundaries and the use of force to exert discipline within families. Indeed, in R. v. S.(W.B.) and R. v. P.(M.), 73 C.C.C. (3d) 530 at 535 (Alta. C.A.), in a passage that Moldaver J.A. (as he then was) quoted and endorsed expressly in R. v. D.(D.), [2002] O.J. No. 1061 at paras 37-38 (Ont. C.A.), the Alberta Court of Appeal took judicial notice based on judicial experience that a "consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child."

[34] It has been recognized that the sexual and physical abuse of the accused as a child is, indeed, a mitigating factor: R. v. D.A.H.; R. v. B.(G.) [2014] O.J. No. 192 (Ont.C.A.), and see R. v. C.A. [1995] O.J. No. 1459 (Ont. C. J. (Prov. Div.)), and the decisions cited therein. While I accept that, the sexual abuse Ms. V. experienced as a child does not, in my view, reduce Ms. V.'s degree of responsibility anywhere close to the extent argued for by her counsel.

[35] First, as a matter of sound policy, the law cannot rationally afford to recognize that sexual victimization gives licence to sexually victimize others with significantly minimized responsibility. Everyone who is capable of understanding that conduct is condemned by society, whether they have been victimized or not, bears responsibility for their actions. When P.V. became a parent she took on the task of protecting her children, an obligation that was not lessened in significant measure by the failure of those around her to have protected her.

[36] Second, while abuse can damage one's socialization, individual resolve has a good deal to do with how someone who has been abused responds. It is a sad comment on the state of humanity that too many individuals have experienced sexual and physical abuse as children, as Ms. V. has. It is a credit to the state of humanity that many sexual and physical abuse victims, if not most, go on to lead law abiding lives. Indeed, some dedicate themselves to fighting against abuse, and they are among our best citizens. It would be a slur on their contributions to accept that Ms. V. could not help herself because she was abused.

[37] Most significantly, on the only evidence before me, Ms. V. knew that this kind of behaviour is wrong. Even as a young teenager she reported her own abuse to the Children's Aid Society. Yet instead of relying on her experience to preserve her own children from the pain she experienced, she chose to pass it on. While she will receive some "sad life" credit by way of mitigation, her sentence will not be governed by her own sexual or physical abuse.

[38] It is also agreed that Ms. V. herself was physically abused by J.V. throughout their long relationship, often brutally. Mr. V. punched her and strangled her at times. In the judgment I issued in their joint trial, I spoke of his repugnant control over the entire family, at para. 135.

[39] After meeting with Ms. V. on two occasions pursuant to the section 21 Mental Health Act assessment order I made, Dr. Kunjukrishnan determined to his satisfaction that Ms. V. suffers from a range of mental disorders, including "substance abuse," "adjustment disorder with depressed mood secondary to legal problems and being incarcerated," and "borderline antisocial personality traits/behaviours." Dr. Kunjukrishnan also offered that Ms. V. suffers from additional mental disorders linked to the abuse she herself has experienced, including "chronic/complex PTSD secondary to childhood abuse," and "wife abuse syndrome/PTSD secondary to abuse from husband."

[40] Mr. Murray, in his empathetic and emphatic submissions, relied heavily upon this diagnosis of "wife abuse syndrome" in an effort to persuade me that the abuse Ms. V. has experienced from Mr. V. significantly diminishes her degree of responsibility. He cited a number of leading and local cases where lenient sentences, including suspended sentences, have been imposed for the offence of manslaughter, which he implied because of its fatality was an even more serious offence than the charges faced by Ms. V.

[41] I agree with Ms. Cunningham that the manslaughter cases are easily distinguishable. In these homicide cases the battered woman does not participate in the abuse of others. She kills her abuser, and then benefits in her sentencing from recognition of the human instinct of self-defence, and the excuse of flagrant provocation by an actor who did much to bring his demise on himself. There is a chasm in personal responsibility between a woman who returns abuse to her abuser, and a woman who helps her abuser abuse her own children. Even if an abused woman joins in for reasons of self-preservation, she is still choosing her self-interest over decency and duty.

[42] This is not to say that the law should never allow a battering relationship to reduce responsibility in a case of child-abuse offences committed by a battered woman with her abuser. It is to say that the manslaughter cases offer little help.

[43] The extent to which a battering relationship, or even proof of chronic bullying, will be a mitigating factor in this or any other kind of offence depends upon the nature and quality of the evidence that is available.

[44] In this case, the Crown has cautioned me about relying on Dr. Kunjukrishnan's report generally, including to find that Ms. V. suffers from "wife abuse syndrome/PTSD secondary to abuse from husband." She points out that Dr. Kunjukrishnan made his determinations without discussing the details of her offences with Ms. V., and therefore does not have a complete picture. Moreover, while the conditions described above are summarized in the report as diagnostic conclusions, in the body of his report Dr. Kunjukrishnan was more circumspect, commenting only tentatively how "one has to consider a possible diagnosis of chronic or complex PTSD," and "one has to consider a possible diagnosis of PTSD secondary to spousal abuse and wife abuse syndrome." This is not a confident diagnosis capable of driving a sentencing decision.

[45] I would add that in evaluating Ms. V., Dr. Kunjukrishnan was a pioneer. He was attempting to diagnose Ms. V. in the absence of any established psychiatric history, and he endeavoured to do so relying on two interviews, with little background information. All Dr. Kunjukrishnan's report describes about the battering nature of the relationship was Ms. V.'s self-report that she fought with her husband, experienced bruising and swelling, and never went to the hospital.

[46] Without question, the utility of Dr. Kunjukrishnan's report is marginalized for these reasons. I am not persuaded, even to the standard of mitigating evidence, that Ms. V. suffers clinically from "battered woman's syndrome." This is not to say that the abuse that Mr. V. has visited on Ms. V. has not imprinted on her. I am sure it has. Indeed, during the course of my decision I shared my suspicions, at para. 260, that this physical abuse enhanced Ms. V.'s readiness to participate in Mr. V.'s "sordid activities." I am prepared to proceed during this sentencing on the basis that Ms. V. was more inclined to help her husband because he dominates her, emotionally and physically, but on the evidence before me I cannot go beyond that.

[47] The impact of the violence that Ms. V. has experienced from her husband must also be put into perspective.

[48] First, this is not a case where direct duress is being offered by way of mitigation. There is no evidence before me that physical force or active threats were used to get Ms. V. to participate in any of the specific acts that occurred.

[49] Moreover, there is no evidence before me that fear arising from the abuse played the dominant, or even a predominant, role in what happened.

[50] When Dr. Kunjukrishnan asked Ms. V. why she would commit these offences, "Ms. V. replied that she was using cocaine and alcohol around the time of the alleged offences over the years and her judgment was impaired. She was also afraid of her husband." (at 7 of 11). In this passage her fear is presented almost as an afterthought.

[51] Indeed, when Dr. Kunjukrishnan offered his "Conclusions and Diagnosis" he does not even mention fear. He appears to have understood Ms. V. as casting primary blame on her substance abuse, saying, in total, "She attributed her behaviours of abusing her two daughters and supporting her husband in his abuse of the two daughters to her alcohol and drug abuse and her poor judgment resulting from those abuses."

[52] I have considered that at the time Ms. V. gave these "explanations" she was unequivocally committed to her relationship with Mr. V., being frank in her interview with Dr. Kunjukrishnan about her intention to stay with him. It may be that in light of her desire for, or dependence on him, Ms. V. was not being forthright in emphasizing her fear of Mr. V.

[53] On the other hand, when Ms. V. was confronted in Google Hangout chats by K.V. about sexual abuse, Ms. V. linked that abuse to drugs, and drugs to sex. When asked whether she was sorry she said "that's without question but I did the drugs with [J.V.] and some times i would make him get them that's what drugs can do to a person it makes them sexual so that we could just be with each other." The daughter asked shortly after, "Why didn't you just stop the drugs, if it made you do all that to me?" Ms. V. responded "yes it does dop that but it is just a lie to make you think you need it."

[54] I appreciate that Ms. V. is not likely to have complete or reliable insight into why she did what she did. Unfortunately, other than reporting her perspective on this, Dr. Kunjukrishnan does not offer an expert opinion on why she committed these offences. Of interest, the thing he does focus on is how the mental health consequences of Ms. V.'s experiences with abuse have influenced her loyalty to her husband. On even that, Dr. Kunjukrishnan is cautious, if not puzzled. He comments, in his conclusion:

"Her strong dependency to her abusive husband, not only abusive to her, but also abusive to her two daughters, is probably related to her own history of abuse as a young girl and the resulting personality and behavioural issues associated with borderline and antisocial personality traits. Even now, she is very committed to her husband and she expresses her plans to re-unite with him if and when they are both out of custody. Considering that Ms. V. is fairly bright, at least of average intelligence, it is difficult to understand her commitment with her husband and not the same commitment to her two abused daughters."

[55] The evidence before me, then, is that Ms. V. does not believe that abuse was the driving force in her behaviour. Drugs were. She was afraid of her husband, but there is no evidence that she was threatened into participating, or that her fear was the foremost or even a predominant influence in the offences.

[56] I also have evidence before me that, at the time of these offences, and as recently as the October 13, 2015 interview with Dr. Kunjukrishnan, Ms. V. was deeply loyal to her husband. While his dominance, including his physical abuse, supported that loyalty, there is no clear psychiatric explanation for why she would be loyal enough to him to abuse her daughters.

[57] On this record I am satisfied that Ms. V. assisted her husband primarily out of loyalty that was inspired, in part, by fear, but it would be too far a reach to accept that her ongoing readiness to participate was a desperate act of self-preservation.

[58] As a result, Ms. V.'s degree of responsibility remains considerable. Her shocking behaviour was, in large measure, affected by a substance abusing lifestyle and her readiness to appease her husband, even at the expense of supporting and participating in the violation of her children.

[59] In assessing Ms. V.'s degree of responsibility, I have also looked at her general character. I want to make clear that her minor criminal record for property offences alluded to in the evidence does not aggravate things. Nor is her personal responsibility aggravated by her knowledge, if not involvement, in her husband's systematic internet fraud. I point this evidence out solely to reinforce that I have looked, in vain, for evidence of prior good character, either generally or towards the children, that could mitigate her sentence. She cannot call her character into aid on her behalf.

[60] The Crown contends that Ms. V. should not receive any benefit for showing remorse either.

[61] It is certainly true that Ms. V. does not get the benefit of having pled guilty. While Ms. V. was never in a position to spare her daughters the spectre of a trial, given that a trial would have been needed in any event to deal with the charges against J.V., Ms. V. did nothing to save her daughters from having the allegations they made against her challenged. While Ms. V. cannot be punished for exercising her right to a trial in this way, it is obvious she cannot receive the considerable credit that a guilty plea would have engendered in a case such as this.

[62] Beyond this, Ms. Cunningham does, in my view, overstate things by saying that there can be no benefit for remorse here. Ms. V. does deserve some credit for belated expressions of remorse. I appreciate that her dock statement was not open to challenge by cross-examination, but two things are noteworthy.

[63] First, unlike many offenders convicted of infamous crimes, she did not continue to deny her guilt. She admitted her complicity in the sexual abuse of her children to Dr. Kunjukrishnan. Indeed, she went further in her dock statements than I did in my findings, explicitly acknowledging that she watched her children being abused. She is attempting to admit, openly, for the first time, what she has done.

[64] Second, I believe her dock statement claim that she is sorry, and not just for what has happened to her, but for what she did to her own children. I agree with Ms. Cunningham that Ms. V.'s apology was left generic and vague, but in context there is no question that she was admitting shame and regret for her offences. This and her expressed hope that she can gain forgiveness in time are credible. It is also to her credit that Ms. V. did not, herself, seek to cast blame for what happened on any outside influences, dismissing potential explanations as "excuses."

[65] I accept, as well, that Ms. V. is attempting to move forward. Currently, she wants a life without Mr. V., and I commend her for trying to better herself educationally, and for connecting with helping agencies while in custody. These factors will have appropriate influence on my decision.

[66] In sum, Ms. V. bears significant moral responsibility for her offences, even allowing for her own child-hood abuse, the physical abuse leveled at her by her husband, and her belated expressions of remorse and attempts at self-improvement. That significant moral responsibility arises from her long-standing choice to put her own self-interest and her unremitting loyalty to her husband ahead of the welfare of her daughters, to the extent that she chose repeatedly to help in their abuse and to isolate and demean them, aggravating the horror they were experiencing.

IV. Sentencing Priorities and Principles

[67] As has been stated by Justice McGowan, "there is more to imposing a just sentence than merely reacting viscerally to odious facts": R. v. M.(D.C.) [2015] O.J. No. 6231 (Ont. C.J.) Section 718 of the Criminal Code describes the range of purposes a sentencing judge should consult in arriving at a just sentence. Some of these purposes are inherently punitive, employing punishment to hold offenders accountable as a matter of justice, and to discourage crime. Other sentencing objectives focus on the needs of the offender, in the expectation that by rehabilitating or restoring the offender as a contributing member of society, the risk the offender poses in the future will be lessened.

[68] When it comes to crimes involving the abuse of persons who are under 18 years of age, not all of these objectives hold equivalent influence. The Criminal Code directs in section 718.01 that in such cases "primary consideration" shall be given by the sentencing judge to the punitive objectives of denunciation and deterrence. The rehabilitative needs of the offender, including factors such as remorse and efforts at self-improvement, play a secondary role to broader notions of justice and societal self-preservation.

[69] The same priority is animated for sexual offences against children by the decision of R. v. Woodward 2011 ONCA 610. There, at para 76, the Ontario Court of Appeal made clear that in cases of sexual predation of children by adult offenders, the focus of the sentence should be "on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it." As the Court put it:

"While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of the children must take precedence."

[70] In my view, the Court's direction to focus on the harm caused to the child is an admonition to judges sentencing sexual predators to respect the principle in section 718.1, that the sentence must fit the crime. It must be sufficiently harsh to be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[71] In R. v. M.(C.A.), [1996] 1 S.C.R 500 at para 80 Lamer C.J.C. described this sentencing objective as "retribution":

"Retribution in a criminal context … represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender's conduct."

[72] To be clear, retribution is a not vengeance. Vengeance is a non-calibrated, emotional response intended to cause pain, and has no place in the criminal justice system. In contrast, retribution is the rational quest for a penalty that is justly deserved in light of the gravity of the offence, and the degree of responsibility of the offence. Retribution, in effect, is the call for accountability housed in the principle of proportionality.

[73] Of critical importance, while the principle of retribution counsels that the sentence must be significant enough to reflect the harm caused by the offender and the moral fault of the offender, that sentence cannot exceed this measure. In R. v. M.(C.A.), supra, Lamer C.J.C. therefore continued at para 80:

"… [U]nlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate punishment, and nothing more. As R. Cross has noted in The English Sentencing System (2nd ed. 1975), at p. 121: "The retributivist insists that the punishment must not be disproportionate to the offender's deserts.""

[74] In effect, the principle of proportionality in section 718.1 not only houses the sentencing goal of accountability, it also "performs a limiting or restraining function" on the sentence that can be imposed: R. v. Nasogaluak 2010 SCC 6, [2010] 1 S.C.R. 206 at para 42.

[75] For its part "denunciation," a sentencing priority featured expressly in section 718.01 and mentioned in R. v. Woodward, supra, requires that the sentence imposed must be adequate to "communicate society's condemnation of [the] offender's conduct." A denunciatory sentence "represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within the substantive criminal law": R. v. M.(C.A.), supra at para 81. Naturally, the more repugnant the offence, the harsher the sentence must be to demonstrate that repugnance, always bearing in mind that the sentence used to express societal revulsion must never become disproportionate.

[76] In my view, the sentencing goals of retribution and denunciation work together in helping to identify an appropriate sentence. This is why, in R. v. M.(C.A.), supra, Lamer C.J.C. referred to retribution and denunciation as "legitimate siblings." Simply put, a sentence sufficient to achieve accountability is adequate to express denunciation, and a sentence that is disproportionate cannot be justified on either basis. While these two sentencing goals reflect different objectives, they are redundant influences on the sentencing outcome. In tandem they play a leading role in identifying the appropriate sentence for the sexual offences committed by Ms. V.

[77] Both section 718.01 and the direction in R. v. Woodward, supra, also compel those who are sentencing child sexual offenders to impose a sentence that is harsh enough to discourage both the offender, and the public at large, from future offences. This is one of the utilitarian objectives, alluded to in the Woodward case, intended to promote the "well-being of children." The hope is that the punishment imposed will be sufficient to discourage offenders, and therefore protect children from experiencing sexual abuse.

[78] In this case, I do not believe that the specific deterrence of Ms. V. is a primary sentencing consideration. Her experience in the criminal justice system has been difficult on her. She has not only been deprived of her liberty for the past two years, her odyssey through the justice system has affected her physical and mental health. If my sentencing decision was only about the need to deter Ms. V., I would be more attracted to Mr. Murray's position than I am. As indicated, however, this sentence must be driven by retribution and denunciation, and by the pursuit of general deterrence.

[79] I do note, however, that as with retribution and denunciation, general deterrence must be used with restraint. Since it is immoral to treat one person as "a resource for others," all exemplary sentences must be deserved by the person being sentenced. A court cannot impose an unduly harsh sentence on an offender in the belief that this harsh sentence will be a more effective disincentive for others. The principle of proportionality limits the extent a court can go in promoting deterrence: R. v. M.(C.A.), supra at para. 78. In effect, the value of justice imposes limits on how far a fair society can go in pursuing its self-protection from crime.

[80] The same holds true with the direction in R. v. Woodward, supra, to impose sentences that fill "the need to separate sexual predators from society." Some offenders should be incarcerated or "incapacitated" to keep them away from their potential victims, but no longer than would be just.

[81] In this case it is my view that there is little need to separate Ms. V. from society, in order to protect society. While Ms. V. has demonstrated herself to be capable of committing horrendous acts at the urging of another who she is dependent upon, she is unlikely, on the evidence before me, to sexually abuse children of her own initiative. When not with her husband or another controlling, criminally minded individual, she does not pose a sufficient risk of sexual violence to others to require that her sentence should be animated by the need to separate her from potential victims. In my view, the specific deterrence that has already been achieved reduces the risk of her physically abusing others to the point where she cannot fairly be incarcerated in order to incapacitate her from having access to potential victims. In saying this I am aware that her daughters have expressed fear for themselves and their families, if she is released. I accept that fear as genuine. It is not surprising given what they have been through. I do not, however, have a fair basis for locking Ms. V. up for the purpose of keeping her away from others. She will be punished, but not with this end in mind.

[82] In my view, as a matter of law, given the facts I have found, in sentencing Ms. V., I must give emphasis to the overlapping goals of retribution, denunciation, and general deterrence, while considering rehabilitation to the extent that emphasizing retribution, denunciation and general deterrence permits. Put more simply, the sentence I impose must be harsh enough to fit the crimes I have described, and to reflect Ms. V.'s considerable degree of moral responsibility, and it must be harsh enough to discourage others who might be tempted to behave in this way.

V. Sentencing Tools, Governing Principles and Precedents

[83] The parties agree, through the substance of their submissions, that the only sentence capable of satisfying these goals is incarceration. Even Mr. Murray, who is asking for a time-served sentence on Ms. V.'s behalf, has tried to find credibility for that submission in the fact that Ms. V. has already served the equivalent of a short penitentiary term of two years and nine months, which should be attributed to her sentence.

[84] The issue before me, then, is whether an additional period of incarceration is required to meet the sentencing goals I have described, in light of the principles of sentencing, including the principle of restraint that I have identified. This principle of restraint finds further support in sections 718.2(c) and (d) of the Criminal Code.

[85] In determining what that fit, but restrained sentence, will be, I am obliged to respect section 718.2(a), which holds that, as a matter of fairness, similar offenders should receive similar sentences for similar crimes. Regard must therefore be had to the "usual" sentencing ranges for the offences in question.

[86] This exercise is intended to ensure that all accused persons are treated equally, to the extent possible, and to promote sentences considered to be adequate in law to achieve the relevant sentencing goals: R. v. Stone (1999), 134 C.C.C. (3d) 353 at 450 (S.C.C.). Every case is to be sentenced on its own facts, however, and there are exceptional circumstances where a judge can and must deviate from the usual range of sentence: R. v. D.A.H, supra. This is not, in my view, a case for departing from the usual range. Instead, it is a case that requires a determination of where those crimes are to be situated in that range.

[87] I will begin with the sexual offence charges. For many years, the "usual range" of sentence for sexual abuse by persons in loco parentis to their victim involving sexual intercourse was three to five years: R. v. B. (1990), 36 O.A.C. 307. Since this case was decided, courts have gained a more complete insight into the long-term damage that sexual abuse of children causes particularly in cases of repeated and intrusive abuse. Courts are now using longer sentences in an effort to ensure that the penalties reflect the damage done to victims, to ensure that the public denunciation that occurs is sufficient, and to reinforce the deterrent message in the hope of better protecting children.

[88] In the decision in R. v. D.(D.), [2002] O.J. No. 1061 (Ont. C.A.), Justice Moldaver (as he then was) described a 9 year sentence for an offender who had groomed and grossly and repeatedly sexually abused four young boys, as falling at the lower end of the fit range of sentence. He articulated guidelines, at para. 43:

"I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted."

[89] This case does not stand in isolation. In R. v. D.(M.) 2012 ONCA 520, [2012] O.J. No. 3616 (Ont. C.A.), and again in R. v. Y.(W.) [2015] O.J. No. 5230 (Ont. C.A.), the Court noted that the minimum sentence for prolonged abuse, including penetration, of an adult in a breach of trust situation, should be five to six years in the penitentiary, absent unusual circumstances.

[90] Where, then, does Ms. V. sit relative to this scale? Not surprisingly, there are few cases where an offender is sentenced for assisting another in committing sexual offences of this ilk.

[91] In R. v. B.(O.J.) 2010 ABCA 49, however, a mother who had the benefit of significant mitigating circumstances received a 2 year sentence for aiding her boyfriend in merely touching her sleeping daughters. This case alone is sufficient to demonstrate that the sentencing range sought by the defence is woefully inadequate.

[92] In R. v. M.(D.C.), supra (Ont. C.J.) an aunt in a position of trust received 7 years in prison for child pornography offences and for sexually assaulting her two year old niece on a handful of occasions, including attempted bestiality. Three and one-half years were designated for the sexual offences, with an additional 2 years for making child pornography by taking photographic images of the violation. The aunt, who had no record and had been sexually abused as a child, pled guilty.

[93] In R. v. C.(J.A.V.) and C.(D.A.), an aboriginal mother with no prior record and a history of being sexually abused received 4 years imprisonment and 9 months consecutive for participating in "threesomes" with her abusive husband and her young teenage daughter under the pretense that they were teaching her about sex. The mother's participation was "much less frequent" than the dozen or so occasions when the father abused their daughter.

[94] In determining where Ms. V. falls relative to this scale, I am being careful to sentence her solely on the offences charged. The evidence before me that I have accepted is that Ms. V. assisted her husband in perpetrating the sexual offences for more than a decade, but the general sexual assault counts, Counts 1 and 2, surprisingly allege offences only between January 1, 2001 and December 31, 2003. The discrete acts identified in counts 3 and 7 occurred after 2003, but beyond that, I am not sentencing Ms. V. for any of the sexual assault events that occurred after the periods identified in counts 1 and 2.

[95] Notwithstanding this, Ms. V. has been found guilty of "an extreme form of breach of trust": R. v. B.(T.L.) 2007 ABCA 61. She committed numerous sexual offences against two innocent young children on a regular and persistent basis during the charging period, in addition to the two discrete acts identified in counts 3 and 7. That abuse involved assisting her husband to commit full vaginal intercourse repeatedly against both girls, assisting at least two acts of anal intercourse against Kl. V., and on occasion, assisting bestiality. As indicated, once Ms. V. herself perpetrated oral sex against Kl. V.

[96] While I have not found that Ms. V. used violence or threats of violence, or assisted in the use of violence, at the time those sexual offences were occurring, she both used and assisted in the use of violence against Kl. V. on other occasions. The violent nature of the relationship within which Ms. V. used her parental authority to commit her sexual offences aggravates the sexual crimes she committed by giving added menace to her use of authority over the young girls in the commission of these offences.

[97] These offences were also accompanied by severe psychological and emotional brutalization. P.V.'s daughters were isolated socially to facilitate and hide these offences, and the young girls were made by her and her husband to feel blame for what was happening.

[98] In my best judgment a fit sentence for the sexual acts committed against the two victims, K.V. and Kl. V., falls in the upper single digit to lower double digit penitentiary term range.

[99] None of the sexual offences committed by Ms. V., however, save one, were committed directly by her. It would not be appropriate, given this, to sentence Ms. V. as if she was the instigator and direct perpetrator. Still, as I have pointed out, by using her authority as a mother to support these offences, and denying her daughters what should have been their most trusted avenue of escape, the significance of her secondary role cannot be overblown. It is mitigating, but not controlling.

[100] The "sad life" mitigation that Ms. V. warrants, including her history of sexual and physical victimization and the secondary impact that her husband's physical abuse may have had on her readiness to please him, mitigate the range further, but, again, not to the extent that Mr. Murray would have it.

[101] Finally, I need to allow for the secondary consideration of rehabilitation. I agree with Mr. Murray that there is burning need for Ms. V.'s rehabilitation. She has a profoundly distorted perspective on human relationships, and on personal restraint, as well as considerable personal challenges of her own. She is badly in need of professional help, and she has taken steps by admitting responsibility, resolving now to distance herself from her husband, and seeking support from services available to her within the detention centre.

[102] The law of sentencing enables sentencing judges to peruse rehabilitation most directly through probationary orders, but probation is not an available feature of a criminal sentence that exceeds two years in duration. It should be obvious from the foregoing that Ms. V. requires a sentence in excess of two years, even allowing for time served. Ms. V.'s rehabilitation will have to be serviced most directly by support within the penitentiary system, but the indications that she is amenable to rehabilitation that I have noted require me to avoid imposing a sentence the extinguishes any hope for her reintegration.

[103] One last component of the principle of restraint must also be considered prior to settling on the appropriate sentence. For cases such as Ms. V.'s, where an offender is being sentenced for more than one crime, the principle of totality, which is partially expressed in section 718.2(c), must be applied. As Lamer C.J.C. put it in R. v. C.(M.A.), supra at para 42, "The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the moral culpability of the offender."

VI. Conclusion

[104] In all of these circumstances, including her secondary role in the bulk of the sexual offences, her late remorse, her own abuse, and the principles of restraint and rehabilitation, it is my view that the appropriate range for Ms. V.'s own sexual offences is dragged down into the mid-single digits, but no lower. I am sentencing Ms. V. to the equivalent of 6 years in prison for the four sexual offence charges I am convicting her of. Since each of these offences were part of an ongoing pattern of abuse involving the two victims, it is appropriate to order that she receive a concurrent sentence for counts 1, 2, 3, and 7. To reflect the appropriate 6 year sentencing range and to ensure that she receives appropriate credit for her pre-sentence custody of 670 days, credited at 1.5:1, or 1005 days, I am sentencing Ms. V to 39 further months in custody on each of the counts, with count 1 to reflect the time that she has served.

[105] Further, I am sentencing Ms. V. to additional incarceration for her physical assaults. She held Kl. V. down and muffled her screams on a number of occasions so J. V. could physically brutalize her, including by burning her feet. I feel the need to impose a separate consecutive sentence of imprisonment on the physical assault offences housed in counts 6 and 10 and to have those sentences served consecutively to the sexual offences, but concurrently to each other. I feel that this is appropriate so that the sentence I impose reflects the compound nature of the abuse that Ms. V. assisted or engaged in, and to ensure that these serious offences of physical assault are not lost in the sexual violations.

[106] Standing in isolation, in all of the circumstances, it is my view that the appropriate sentence for these physical assault offences is 18 months, concurrent. I must, however, bear in mind the principle of totality. I am therefore sentencing Ms. V. to a further 12 months of incarceration, concurrent on these offences, but consecutive to the 3 years and 3 months she is required to serve for the sexual offences.

[107] In sum, Ms. V. is receiving a global sentence for her offences, of the equivalent of 7 years, with 51 months, or 4 years and 3 months, left to serve. She will therefore be incarcerated for a considerable time before her release. Obviously, Ms. V's focus upon her release must be on her rehabilitation and reintegration. In those circumstances it would constitute an undue hardship for me to impose a victim surcharge on her for these offences, all of which predate the mandatory victim surcharge period. I am therefore waiving the victim surcharge.

[108] I am, however, making an order pursuant to section 490.012 of the Criminal Code requiring P.V. to comply with the Sex Offender Information Registration Act for a period of 20 years. The Clerk of the Court will be reviewing this order with Ms. V. and will secure her signature acknowledging that she understands.

[109] I am also making an order pursuant to section 487.051(1) of the Criminal Code that a sample of DNA be taken forthwith by an person authorized under the Criminal Code, in a manner authorized by the Criminal Code, for inclusion in the National Data Bank.

Dated at Ottawa this 19th day of January 2016

Justice David M. Paciocco

Footnote

[1] Ms. V. has been in custody since March 20, 2014, a total of 670 days. Credited at 1.5:1 she has spent the equivalent of 1005 days in custody, a little over 2 years and 9 months.