His Majesty The King v. M.C., 2024 ONSC 4503

Court File No.: 8503/21 Date: 2024-09-04 Ontario Superior Court of Justice

Between: His Majesty The King

And: M.C., Defendant

Counsel: Karen Pritchard, for the Crown A. Rene Fabris, for the Defendant

Heard: July 30, 2024

Before: Rasaiah J.

Reasons for Sentence

Overview

[1] On November 1, 2023, M.C. was found guilty on counts 1, 2, 3, 5, 6, 7, 9, 10, and 11 on the indictment.

[2] The details of the counts and applicable Code sections considered are set out in my reasons for judgment, and I will not repeat them.

[3] The case was one of historical acts committed by the offender, M.C. involving two of his daughters, C.B. and N.K.; that he over the periods as set out in the indictment for the said counts, touched C.B. for a sexual purpose, had sexual intercourse with C.B., committed incest and acts of gross indecency with C.B., sexually assaulted C.B., committed acts of gross indecency with N.K., invited C.B. to touch N.K.’s body, and N.K. to touch C.B.’s body.

[4] The details of my findings of the facts and the further circumstances of the offences not addressed herein are in this case are set out in my said reasons for judgment and I will not repeat them in their entirety here but clarify I have considered all the same on this sentencing.

[5] A presentence report (“PSR”) was ordered to be prepared on November 1, 2023, which was in fact prepared along with an addendum, which reports were filed, reviewed, and considered by me.

[6] The court received victim impact statements from C.B. and N.K. which were filed, reviewed, and considered by me per s. 722 of the Code.

[7] The court received case authorities from both counsel for consideration and submissions which were considered.

[8] The Crown proposes a global sentence of 12 years imprisonment. The defence proposes a global sentence of 7 to 9 years imprisonment.

Discussion/Analysis

Sentencing Principles

[9] In accordance with s. 718 of the Criminal Code of Canada (the “Code”), the fundamental purpose of sentencing is 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 that have one or more of the following objectives:

(a) to denounce 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 and to the community.

[10] The sentencing principles enumerated in ss. 718.01 and 718.02 represent well-established common law principles that long predate their codification in these statutory provisions and the commission of the offences in this case. The primary sentencing principles for the types of offences before me are denunciation and deterrence: R. v. D.W., 2024 ONCA 516, para. 13.

[11] Section 718.04 of the Code, based on the evidence of C.B.’s disability, further engages denunciation and deterrence as primary considerations. All the evidence, including that of the offender, at trial supported that C.B. was a vulnerable person cognitively in addition to being a vulnerable child.

[12] On the facts of this case, the principles in ss. 718.2(a)(i), (ii), (ii.1), (iii), and (iii.1) are required to be considered. They support consideration of an increased sentence on the aggravating nature of the circumstances relating to the offences.

[13] The offender was unquestionably based on his evidence at trial fully cognizant of C.B.’s disability and her resulting nature to be compliant with his direction; in this case both victims are members of his family; in this case both victims were under the age of 18 at the time of the offences; in this case the offender was in a position of trust and authority of the highest level as their father and primary parent in my view; and it is evident that C.B.’s mental health has been impacted significantly by the acts the offender perpetrated on her which she sets out in her victim impact statement.

[14] The defence acknowledges Friesen as the leading decision for sentencing the offences. A sentencing judge’s reliance on Friesen is required.

[15] The Crown submits the court should impose a global sentence of 12 years. The defence submits the court should impose a global sentence of 7 to 9 years. The defence acknowledges that the cases submitted and relied on by the offender are pre-Friesen. The defence submits that although admittedly on the “low end” of the range, a sentence of 7 to 9 years globally, is an appropriate sentence for the offender.

[16] I acknowledge that as to range of sentence, sentencing ranges serve as “guides for the application of all the relevant principles and objectives, not as straightjackets”. Sentencing ranges should be seen as “historical portraits for the use of sentencing judges, who must still exercise their discretion in each case”, and a sentence falling outside the range is not necessarily unfit. A sentencing judge is not restricted to relying on sentencing ranges from a distant era. It is incumbent on the sentencing judge to impose a sentence having regard for the jurisprudence and understanding of sexual offending as it exists today. While I am required to acknowledge maximum sentences that existed at the time for these offences, a sentencing judge may consider changes to the maximum sentence to contextualize Parliament’s and society’s concern about the sexual abuse of children when determining an approportionate sentence. Understanding the gravity of the offences in a general sense is an important aspect of imposing a proportionate sentence. Sentencing should not be divorced from a contemporary understanding of the harm occasioned by the offences. Legislative amendments reflect society’s better understanding of harm caused by these offences to victims and the community, and the need to address this harm in the sentencing. The overarching objectives of the legislative scheme governing sentencing sexual offences against children are “to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children.” A sentencing judge is required to “take the modern recognition of the wrongfulness and harmfulness of sexual violence against children into account when determining degree of responsibility” and “not discount degree of responsibility by relying on stereotypes that minimize the harmfulness or wrongfulness of sexual violence against children”: See R. v. D.W., 2024 ONCA 516 para. 9-12.

[17] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code.

[18] Section 718.3(7) of the Code directs cumulative and consecutive punishments regarding sexual offences against children. As set out further herein, I find this section is engaged.

[19] Kienapple principles must also be considered with respect to some of the offences in this case. As set out further herein, I find this principle is engaged.

[20] It is acknowledged that the measurement of a just sanction is a highly individualized process.

Circumstances of Offender

Pre-sentence Report Excerpts

Personal and Family Information

[21] The offender at the time of the report was 72 years of age. The offender is the eldest of four children, and his parents are now both deceased. His father did use corporal punishment. He had a positive relationship with his parents and siblings.

[22] In 1973 he married D.F. and had been married to her up until over approximately four years ago when she filed for divorce. They have five children. The offender described his marriage as difficult at times. He shared that his children all struggled with some learning disabilities and behaviour issues.

[23] The offender also indicated he joined the Mormon Church with his wife and described that as a very negative period in his life, describing it as a “cult”; they had strong beliefs about raising children and being a husband.

[24] I accept that the offender’s wife suffered from mental illness throughout the marriage based on the record.

[25] Child protective services were involved with the family during various time periods. The offender acknowledged that he used physical discipline with his children. The PSR addendum reflects comments from Children’s Aid Society file records (“CAS”), essentially that there were issues over 1988 to 1994 with the offender’s behaviour towards the children, mainly verbal and physical abuse. The writer indicates that the records note that in 1989 there were some concerns noted regarding two of the children and sexual behaviours but does not name the specific children. In 1993 they received concerns that the offender had sexually abused the children. Again, the children referred to are not identified. These instances however were testified to at trial and are in my reasons for judgment. I will not repeat them. There are other entries post but with no verifications by CAS noted by the writer of any re-offending behaviour.

[26] The writer states and assesses upon their review of the comments, the statements, and the historical nature of these offences, it is apparent that this family could be described as quite dysfunctional.

[27] The offender does not disagree with the statements in the PSR as redacted and the addendum. Defence emphasizes from same as well as the trial evidence, for supporting that it is fair to characterize the family as very dysfunctional, outlining the moves and issues with D.F.’s mental health and the responsibilities that arose for the offender as a result.

[28] MK.C., the offender’s son, stated to the author that he was staying neutral when talking about the court proceedings involving his sister and his father. He was not home for periods of time and doesn’t remember much about his childhood.

[29] The offender stated the only child of his that speaks with him currently is his son MK.C.

Education and Employment

[30] The offender attained his grade 12. He described himself as “not a great student”.

[31] The offender left high school at the age of 17 and worked in a silver refinery in Cobalt, but then the facility closed, and he moved out West for employment to Thompson, Manitoba for approximately nine years.

[32] Other educational courses were acquired by the offender throughout his employment such as completing an apprenticeship in instrumentation that led to opportunities in the mining field.

[33] The offender moved to Elliot Lake for employment in the mines. When the mines closed, he worked as a handy man and then partnered with his son MK.C.

[34] Currently the offender is partners with his said son and has been for the past nine years or so. The work entails roofing, and snow removal. He is now doing more of the paperwork. He does do some snow removal but has a helper only due to his age and physical condition.

[35] The offender’s Pastor confirmed the offender has been hired by the Gentle Shephard Church to work as their custodian for the past several years with parameters put in place by the Church given the offences.

[36] The offender described “never” struggling with alcohol or substance use/abuse.

Character, Behaviour and Attitude

[37] The writer states that with members of the church community the offender has demonstrated a strong work ethic, and commitment to the church and their guidance. The offender has sought out the supports of several different religious groups/church.

[38] The offender stated his Pastor Bob Davies is a support for him. The pastor is reported as stating that he will walk with the offender in this path moving forward as a Christian and will support him whatever happens.

[39] In the PSR addendum the writer also reflects speaking to another individual, B.S., who knew the offender from church. She did not know him when he was parenting his children. She described the offender as someone who is valued at the church and a good worker. The church has placed parameters on his work at the church given the charges. She stated that if the charges were true, that the offender is not the same person and has really turned a corner in his life. There are insufficient details to assess the nature and extent of her understanding of the offender outside of his employment and as a member of the Church.

[40] With respect to comments of B.S., and the pastor, I agree with the Crown’s submissions on prosocial behavior and how it should be treated as outlined in the case authority referred to. In this specific case, the acts complained of in fact occurred, in the privacy of the family home with specific directions not to reveal them to anyone. During those times, the family members were attending church and part of a church community.

[41] The offender is not on any medication other than heart medication. The offender has not been diagnosed with any social or mental health issues. He did participate in counselling when the children were small and completed an anger management course.

[42] The offender is reported as not admitting to the offences but did not provide any alternative reason of why his daughters would say such things about him.

[43] With respect to sexual history, the offender denies any unusual or disturbing sexual thoughts or actions. He denies any sexual interest in children. As set out in my trial reasons, I accepted the testimony of C.B. claiming the offender stated to her when he victimized her that essentially if he did not get it from her mother, he was getting it from her. D.F. testified that the offender would often say to her, that if he “didn’t get it from her he would get it from the children”. The victim C.B. spoke with the writer. She has provided a Victim Impact Statement which is quite detailed, describing the physical and emotional trauma she endured for years since the offences took place, addressed later herein.

[44] There appear to be community resources that can work with the offender and there are resources in institutions that can address sexual deviancy. The writer suggests and assesses that the offender is going to have to garner an understanding of sexual deviance, his identified risk factors, and his triggers as well as to confront his own cognitive distortions as part of an effective relapse prevention plan.

[45] The offender is not admitting any responsibility. That is his right to do so and to disagree with the findings in my view.

Other Submissions/Considerations

[46] I agree that the evidence at trial supports that the offender had primary responsibility for raising and caring for the children, and that there were many challenges. However, the evidence supports that CAS was involved with this family for a significant period on unrelated matters and directly with the offender regarding physical abuse. He attended counselling and anger management. The children were apprehended at one point, the two boys and N.K. for a significant period. As such, there were resources available to the offender if he chose to avail himself of them during that time, contrary to what seemed to be suggested. From time to time, the offender was being told directly that physical abuse was not acceptable and being guided to formulate an appreciation of the wrongfulness of it. Instead, he and his former spouse chose to continue to direct the children to conceal same and/or they blamed the children for CAS involvement with their family. Their primary goal presented as being to conceal all issues not avail themselves of resources that could assist them.

[47] The offender raises the love that his two victims still have for him. I acknowledge same. He is their father. Despite this, it is noteworthy to me, that despite his disagreement with the trial findings, neither of his daughters to this day are recanting the events they testified to occurring. I have noted that N.K. has forgiven the offender for the single act involving her which in my view is her absolute prerogative which I respect. This in my view, however, does not lessen the disturbing circumstances of the perpetrated acts.

[48] At this date, defence agrees that it cannot be said that the offender has health issues that would impact consideration of a sentence of incarceration. Again, defence submits that a single digit sentence should be considered, a global sentence of 7 to 9 years. Defence acknowledges this submission as to sentence is at the lower end of the spectrum. Defence raises that the offender has been through a lot; he has been on court conditions for years and has complied with them; the offender has no criminal record; he is not a risk for re-offending – submitting deterrence will be answered by the length of sentence being suggested by defence and the interests of justice met. Defence, however, still emphasized the offender’s advancement in age and suggested that the sentence should not be so lengthy that the offender does not survive his sentence. I note however that there is no evidence to suggest that he would not survive the sentence being proposed by the Crown, namely a global sentence of 12 years.

[49] I do accept that there is no evidence establishing that the offender has re-offended since the time of the offences.

Circumstances of the Offences

[50] Relying on the findings I made a trial and the evidence at the trial; I summarily state the following:

(i) There is no question that M.C. stood in a position of authority and trust with respect to both victims.

(ii) There are multiple victims in this case, two victims.

(iii) The victims were his daughters.

(iv) There is no question that C.B. and N.K., at the time the offences were committed, were under the age of 16.

(v) There is no question that C.B. based on the evidence regarding her disabilities was a vulnerable person beyond simply the factor of her age.

(vi) There is no question that M.C. exploited his children. He repeatedly exploited C.B. for years. He escalated his actions with her from touching to full intercourse. He exploited C.B.’s disability and his position of trust to perpetrate the offences directing her not to disclose them, and ultimately it progressed to directing C.B. to touch N.K.

(vii) There is no question that M.C. violated the sexual integrity of his daughters quite significantly, for his own sexual gratification.

(viii) Again, with respect to C.B., the evidence supported numerous acts that included fondling, digital penetration, vaginal penetration, and anal penetration over years.

(ix) With respect to the offences involving N.K., he directed both daughters to touch each other.

(x) The perpetrations are very grave in my view and at the very highest level of moral blameworthiness.

Victim Impact

[51] A victim impact statement is to provide a description of the physical or emotional harm, property damage of economic loss suffered on the victim.

[52] C.B. completed a victim impact statement with the assistance of her therapist. The impact on her has been very significant. Emotionally C.B. has a hard time trusting people especially in romantic relationships. She had unhealthy romantic relationships. She dissociates because of PTSD trauma triggers. She has been suicidal and self-hating. She states she had to dress more like a man because she did not want to be noticed or attractive. Economically she states that she cannot work because of PTSD and anxiety from traumatic childhood. In terms of fears for security she states she is very scared that M.C. will do “this” to other children. Part of her trial evidence included the foregoing as one of the reasons she came forward. C.B. wrote a letter in which she states that she would like an apology from the offender and for him to take responsibility for his actions.

[53] N.K. provided a victim impact statement. The same impact she stated at trial was essentially reiterated in her victim impact statement. It further provides that she does not have any trauma from the offender. At trial, she testified that she had not spoken to the offender since 2019 based on his release conditions, however, had the conditions been lifted, she would have and wants a relationship with him. She has forgiven M.C., loves him and does not want him to go to jail. I respect her wishes.

Kienapple Principles

[54] The findings of facts for the offences are set out in my trial reasons and will not be repeated as stated above. They all apply.

[55] I agree with the Crown that there is a factual nexus between count 1 and count 2, but that legal nexus is not satisfied. As such concurrent punishment is available with respect to these two counts and in my view, based on same, it is appropriate to impose same.

[56] On count 3, I find that there is no factual nexus nor legal nexus. There were several acts captured, while some overlapping, that go beyond those attributed to other counts, and or the societal reasons for the offence, the sentence ought to be consecutive.

[57] On count 5, this count encompasses specific different conduct with a different societal reason for this offence, but accordingly, this offence may be imposed as concurrent sentence based on factual nexus with count 6. As such concurrent punishment is available and, in my view, based on same, it is appropriate to impose same.

[58] Counts 6, and 11 occur in different time frames, but count 7 can capture factually and legally everything of these three offences. I note that the Crown agrees that count seven may be stayed by the court under this principle. In my view, based on same, it is appropriate to impose a stay.

[59] Counts 9 and 10 involve a single incident involving both N.K and C.B. Count 9 must be a consecutive sentence. The Crown suggested that count 10 could run concurrent with count 11, both involving C.B. However, count 11 involves M.C. touching C.B. While recognizing there are two separate victims, the single incident in my view supports concurrent sentence which I will place on count 10.

[60] Count 11 covers a different period to count 6, but I considered that the impulses just worsened as time went on, continuing to have unprotected sexual intercourse during a time that C.B. was an adolescent and a higher risk of potential harm to her, while dealing with CAS and their attempts to educate M.C. (and he himself) on behaviours towards all of his children that were occurring on or around that time frame, and accordingly sentence should be imposed consecutive to other counts for these reasons.

Appropriate Sentence

[61] Based on all my considerations, I am not satisfied that 7 to 9 years is an appropriate sentence. The Crown’s submission is more in line with the factors and legal principles I considered applicable, the evidence, the circumstances, and the case authorities filed. The circumstances of the offence call for a longer global sentence than that submitted by the defence. Considering all the above and the totality principle, I find that a global sentence of 12 years is an appropriate sentence.

Ancillary Orders

[62] The defence takes no position with respect to the imposition of SOIRA orders as requested and that their application is retrospective. Applying 490.012(1), all the counts were prosecuted by indictment and both victims were under age 18 at the time of the offences. All but count 2 are designated primary offences and a sentence of two years or more was imposed by me on counts 1, 5, 6, and 11. For count 1 however, the maximum term of imprisonment is life (requiring a Life SOIRA). On count 11 the maximum is 5 years (requiring 10 years SOIRA); for count 5 it is 14 years (requiring 20 years SOIRA), for count 6 it is 10 years (requiring 20 years SOIRA). The convictions for counts 1, 5, 6 and 11 in this case will be over two years for designated offences in the same proceeding. Section 490.013(4) of the Code applies in this case, namely application of the longest maximum term of imprisonment based on my considerations herein. The defence offered no position on SOIRA.

[63] The defence takes no position with respect to the imposition of a s.109 weapons prohibition order as requested.

[64] The defence takes no position with respect to imposition of DNA orders acknowledging the mandatory impositions. Count 2 appears to be an anomaly here as well and is not listed as a designated offence (as with SOIRA).

[65] The defence takes no position with respect to the s. 743.2 order requested with respect to C.B. C.B. does not want contact. I recognize that N.K. does.

[66] It is agreed that no s. 161 order and no victim fine surcharge order are applicable in this case.

Conclusion

[67] For the reasons articulated herein, I sentence M.C. as follows.

[68] I sentence M.C. to imprisonment for a global term of twelve years allocated as follows:

1. On count 1, M.C. is sentenced to imprisonment for a term of 2 years.

2. On count 2, M.C. is sentenced to imprisonment for a term of 2 years concurrent to count 1.

3. On count 3, M.C. is sentenced to imprisonment for a term of 1 year consecutive to count 1.

4. On count 6, M.C. is sentenced to imprisonment for a term of 3 years consecutive to counts 1 and 3.

5. On count 5, M.C. is sentenced to imprisonment for a term of 3 years concurrent to count 6.

6. On count 9, M.C. is sentenced to imprisonment for a term of 1 year consecutive to counts 1, 3 and 6.

7. On count 10, M.C. is sentenced to imprisonment for a term of 1 year concurrent to count 9.

8. On count 11, M.C. is sentenced to imprisonment for a term of 5 years consecutive to counts 1, 3, 6 and 9.

[69] Pursuant to s. 490.013(4) of the Criminal Code of Canada, an order shall issue in the prescribed form requiring M.C. to comply with the Sex Offender Information Registration Act for life.

[70] Pursuant to s. 743.21(1) of the Criminal Code of Canada, I order that M.C. is prohibited from communicating, directly or indirectly, with C.B. during the custodial periods of his sentence in relation to counts 1, 2, 3, 5, 6, 9, 10 and 11.

[71] On counts 1, 3, 5, 6, 9, 10, and 11, all being primary designated offences, I order that a DNA order shall issue pursuant to section 487.04 of the Criminal Code of Canada, in the prescribed form, authorizing the taking of from M.C. the number of samples of bodily substances that is reasonably required for forensic DNA analysis.

[72] On counts 1, 2, 3, 5, 6, 9, 10, and 11, pursuant to s. 109 (2) of the Criminal Code of Canada, I order that:

a. M.C. shall be prohibited from possessing any firearm other than a prohibited firearm or restricted firearm, and any crossbow, any prohibited weapon, restricted weapon, ammunition, and explosive substance for a period of ten years beginning of the day on which he is released from imprisonment and ending not earlier than ten years after his release from imprisonment; and

b. any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.

[73] On the indictment, I hereby direct that convictions shall be marked and registered with respect to counts 1, 2, 3, 5, 6, 9, 10 and 11.

[74] On the indictment, on count 7, pursuant to Kienapple principles, I direct that this count be marked as stayed.

[75] On counts 4 and 8, on the indictment, I hereby direct that acquittals be marked.

Rasaiah J. Released: September 4, 2024