W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s.486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:

486.(3) Subject to subsection (4), where an accused is charged with

(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,

1. the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.

(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction. R.S., c. C-34, s. 442; 1974-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6.

DATE: 20030124

DOCKET: C38614

COURT OF APPEAL FOR ONTARIO

McMURTRY C.J.O., CRONK AND ARMSTRONG JJ.A.

B E T W E E N : )

HER MAJESTY THE QUEEN ) Tina Yuen

) for the appellant

(Appellant) )

and )

D.A.H. ) Anthony Moustacalis

) for the respondent

(Respondent))

) Heard: November 28, 2002

On appeal from the sentence of Justice D. Pettit-Baig of the Ontario Court of Justice dated June 24, 2002.

McMURTRY C.J.O.:

OVERVIEW

[2] This is an appeal by the Crown of the conditional sentence imposed on the respondent by the Honourable Madam Justice D. Pettit-Baig on June 24, 2002 following a plea of guilty to one count of incest contrary to s. 155 of the Criminal Code, R.S.C. 1985, c.C-46 (“Criminal Code or “Code”). A conditional sentence of eighteen months was imposed, followed by one year probation.

FACTS

[3] In 1999, the respondent was 24 years old and lived on a First Nation Reserve with his common law spouse and their infant son. They now have two sons. The complainant is the half sister of the respondent and at the time of the offence was 14 years old.

[4] The complainant had spent the previous seven years living in foster homes. On August 1, 1999, the complainant was placed in the respondent’s home as a foster child as a result of a foster care service agreement.

[5] In the course of the year between August 1, 1999 and the removal of the complainant a year later, there were a series of sexual contacts between the respondent and the complainant.

[6] The sexual contact began by the respondent kissing the complainant, then touching her genitals and having her masturbate him until he ejaculated. This conduct escalated and developed into mutual oral sex which occurred on four occasions and then to full intercourse on six occasions. These incidents took place in the family home and behind the railway tracks.

[7] During the sexual relationship with the complainant, the respondent was heavily addicted to alcohol.

[8] The relationship between the complainant and the respondent was eventually disclosed to the respondent’s common-law spouse and as a result the complainant was removed from the home and placed elsewhere.

[9] On July 20, 2001, the respondent disclosed the relationship to his psychologist who advised a probation officer who in turn advised the police. The same day, the respondent attended upon the police and provided a videotaped, cautioned statement in which he fully admitted the offence. The complainant shortly thereafter provided a videotaped statement confirming the statement of the respondent.

[10] The respondent has a previous criminal record as follows:

1992-12-02 Possession of Property Obtained by Crime Under (5 counts)

Possession of Property Obtained by Crime Over $1,000

Sentence: 1 year probation and $1100 compensation

1996-17-15 Possess Narcotic

Sentence: $50 fine

2000-12-12 Assault

Sentence: Suspended Sentence; 12 months probation

PRE-SENTENCE REPORT

[11] The respondent’s childhood years were characterized by parental substance abuse, neglect, physical and emotional abuse and death. His parents had a tumultuous relationship. His father abused his mother, and his mother abused the respondent. She was extremely physically abusive, causing broken bones and cutting him with knives. Child welfare agencies were constantly involved with the family. When the respondent was seven, his father was killed in a car accident.

[12] Intermittently, the respondent lived with his paternal grandfather and his step-grandmother. During this time, he suffered extensive sexual abuse, at the hands of the step-grandmother’s two sons. They were convicted of sexual offences in relation to the respondent.

[13] After his father’s death, the respondent and his sister were placed in their first foster home. A year later their mother gained custody of them and moved them to Alberta. She worked as a prostitute and the respondent often saw sexual acts in the home. She would disappear for months at a time. He began to steal to survive. After this, he was placed in twenty different homes, many of which he ran away from. From age 11 to 14 he lived in a group home in Alberta. He also spent time living on the street, stealing, pimping and trafficking in drugs to support himself.

[14] The respondent commenced a relationship with his common-law spouse when he was 20 years old. He was convicted of assaulting her but, according to the appellant’s factum, that assault was “uncharacteristic behaviour” by the respondent.

[15] The respondent moved out of their home when, as a result of the charge of incest, he was ordered by the local Child and Family Services Agency to leave because of the presence of his two sons. According to the pre-sentence report, a professional assessor had expressed the opinion that he was not a danger to his sons but the author of the pre-sentence report was unable to clarify the situation with the Agency.

[16] The pre-sentence report also indicated that the respondent hopes to one day reconcile with his common-law spouse, who he states is the most stable and consistent person he has ever had in his life. He recognizes that he “messed up” and has to deal with himself and the consequences of his conduct before they can reconcile. Regardless, he intends to be a part of his sons’ lives. His common law spouse described the respondent as a “really good guy” and good with the kids. She was upset that he was forced to leave the home, and wishes to reconcile after the respondent has “[dealt] with his situation”. They apparently had a very positive family relationship before the respondent got involved with the complainant. They continue to spend time together outside of the family home.

[17] The respondent’s substance abuse history, as detailed in the pre-sentence report, began when his mother used to put alcohol in his baby bottle to put him to sleep. He remembers drinking with his mother at the age of five, thinking she would like him more. At age seven he used marijuana with her for the first time. His use of substances progressed. At age eighteen, he was admitted to the Adolescent Residential Program for Chemical Dependency and Treatment at the Smith Centre in Thunder Bay. He voluntarily discharged himself after less than one month. He reports having abstained since that time until he reverted to alcohol as a result of the pressures of having a young child and his involvement with the complainant. He was intoxicated at the time he assaulted his common-law spouse, for which he was convicted in 2000.

[18] The respondent recalled having extended counselling as a young boy in relation to his own victimization at the hands of his uncles. Following his conviction for assault in 2000, and after his arrest in relation to the conviction herein, the respondent was referred for various treatments but showed little motivation, at least until recently.

[19] In relation to his sexual contacts with the complainant, the respondent told the author of the pre-sentence report that he had brought the complainant into his home because he knew what it was like to grow up without a family and he wanted her to have a family environment. While he wanted to show the complainant a different life, he admitted that he ended up by “repeating on her the experiences he knew growing up”.

[20] The respondent described his involvement with the complainant as being “so mutual”. He recalls feeling scared and uneasy about the involvement and the fact that it happened behind his spouse’s back. He described being “flooded” with emotions for the complainant, for whom he felt love and wanted to make happy. In speaking with the probation officer during preparation of the pre-sentence report, he advised that he now felt that he likely caused the complainant some emotional problems, and that “she must feel so used”.

[21] The respondent has upgraded his education over the years after leaving public school in grade five. In the months prior to his sentence in June of 2002 the respondent completed a Personal Career Development Program at Confederation College and commenced a Literacy and Basic Skills Program at the same College. The respondent has a limited employment history, which is mostly comprised of short term contract work in tree planting, fire fighting and bush cutting.

FRESH EVIDENCE

[22] The appellant agreed that the respondent be permitted to file a letter from the Lakehead Psychiatric Hospital dated November 27, 2002 related to the hospital’s sexual behaviour program and a letter from Confederation College dated November 19, 2002 in relation to the respondent’s enrolment as a full-time student in the Literacy and Basic Skills (LBS) Program.

[23] Although the letter from the Lakehead Psychiatric Hospital stated that it was too early in the program to comment on the respondent’s progress to date, it indicated that he “appears highly motivated and has been an attentive, vocal and an active participant to date”.

[24] The letter from Confederation College stated as follows:

In my interactions with Mr. H. I have found him to be highly motivated to succeed. He works hard, takes great pride in his accomplishments and is very receptive to feedback. In addition he takes responsibility for his progress and often identifies learning strategies that will help with his academic success. He is a pleasure to have in the class and to work with, and I look forward to seeing him reach his academic goals.

POSITIONS OF COUNSEL ON SENTENCING

[25] Defence counsel submitted that a conditional sentence was appropriate given the respondent’s tragic background, his guilty plea, the absence of violence or threats of violence, the fact that he voluntarily ceased the conduct and disclosed it to the authorities, and his positive relationship with his common law spouse and two children.

[26] The Crown submitted that a penitentiary sentence in the range of three to five years was appropriate because of the egregious breach of trust by the respondent who, in addition to being an older sibling, stood in loco parentis to the complainant by virtue of being her foster parent.

[27] At trial, the respondent made the following statement to the court:

I’m sorry I’m a bit nervous. I just wanted to say I’m sorry, I know what I did was wrong and the choices I made weren’t the best. I didn’t mean to cause [the complainant] any harm, my sons and [common law spouse]. I’ve turned myself in, I brought myself here to – I don’t know if I can fix the future but iron it out, try to make it for a family and ahead of time with maybe counselling and on [the complainant’s] behalf and mine maybe. I’m just sorry for what I did. What I did was wrong and I’m willing to accept what comes. Thanks Your Honour.

VICTIM IMPACT STATEMENT

[28] The following victim impact statement was filed on the sentencing hearing:

This offence has scared [sic] me for life. I now have a hard time letting people get close to me in fear they are out to hurt me. I feel a lot of betrayal and hatred for D.A.H. for what he did to me. I don’t think I’ll ever be able to forgive him even though he’s family. I have also lost my nephews who are the last blood relatives I have that are close to me because of what D.A.H. has done. I feel very deppresed [sic] and lonley [sic] because I have not seen my nephews in a long time and may not see them again because D.A.H.’s girlfriend thinks that I wanted to let D.A.H. take advantage of the love I had for him by hurting me this way. I also fear that in the future I may not trust another man who tries to get close to me because of what D.A.H. has done. I have emotional problems becase [sic] of lack of trust for people expecially [sic] men. This is how this offence has affected me.

THE REASONS FOR SENTENCE

[29] The trial judge accepted that the range of sentence for the abuse of a child by a person standing in loco parentis where intercourse is involved, is three to five years. However, she stated that there were a number of factors which took this case outside of that range, as follows:

(a) Appellant turned himself in prior to detection

(b) guilty plea, voluntary disclosure, confession to police

(c) remorse, full acceptance of responsibility

(d) absence of violence, threats of violence

(e) little risk of re-offence as complainant lives elsewhere

(f) disruption of family life

(g) support of common law spouse; needs of his children

(h) has had to overcome almost insurmountable obstacles

(i) the importance of rehabilitation given his youthful age

(j) he is on the path to financial independence

(k) promising treatment prospects

(l) he does not fall within the definition of parent.

[30] The trial judge also made the following observations concerning the relationship between the respondent and the complainant:

I do not see that he truly comes within the definition of parent. He and the complainant are half-brother and half-sister. There is a discrepancy in their age which makes him the offender in this relationship. He was old enough, he ought to have known better and he needs to understand that she was in a situation where her security depended upon him. He was opportunistic, although he may not have understood that at the time.

The fact that the complainant went into that household with the accused and his common law spouse assuming the position of foster parents for the sake of the funding of the complainant in the household does not make him a parent. The complainant was not a young child. She is a child under the law but she was 14 turning 15 and seemingly sexually mature.

[31] The trial judge rejected a penitentiary sentence as being inappropriate. She decided that the seriousness of the offence and the need for deterrence and denunciation could be reflected in a term of less than two years. She concluded that the rehabilitation of the respondent would best be achieved by allowing him to serve the sentence in the community. As stated earlier in these reasons, a conditional sentence of eighteen months was imposed, followed by one year probation. A DNA order was also made.

[32] The terms of the conditional sentence were as follows:

(a) curfew from 11 p.m. to 5:30 am, subject to written permission from the supervisor

(b) continue in school full time and/or seek and maintain employment

(c) attend and, actively participate in, and complete rehabilitative treatment in the Sexual Behaviours Program, and psychological counselling with Dr. Brockwell

(d) abstain absolutely from alcohol and other substances

(e) non-association with the complainant subject to written permission by her

[33] The terms of the probation are as follows:

(a) report as required to the probation officer

(b) attend school and/or seek and maintain employment

(c) continue psychological counselling with Dr. Brockwell

(d) abstain absolutely from alcohol and other substances

(e) non-association with the complainant subject to written permission by her

ANALYSIS

[34] In R. v. B. (1990), 36 O.A.C. 307, this court held that the “usual range” of sentence in all cases of sexual abuse of children to whom the offender stands in loco parentis if the abuse involves sexual intercourse is three to five years. That decision has been repeatedly followed in this court and nothing in these reasons should be taken as a departure from that holding. However, the court is required to consider the particular circumstances of the case in determining whether the usual range of sentence should be applied. Trial judges are required to do justice in the individual case and, in appropriate circumstances, this may require departure from the usual range of sentence. Bastarache J. made this clear in R. v. Stone (1999), 1999 688 (SCC), 134 C.C.C. (3d) 353 (S.C.C.) at 450:

One function of appellate courts is to minimize disparity of sentences in cases involving similar offences and similar offenders; see M. (C.A.), supra, at para. 92, and McDonnell, supra, at para. 16, per Sopinka J. In carrying out this function, appellate courts may fix ranges for particular categories of offences as guidelines for lower courts. However, in attempting to achieve uniformity, appellate courts must not interfere with sentencing judges’ duty to consider all relevant circumstances in sentencing; see McDonnell supra, at para. 43, per Sopinka J.; and at para. 66, per McLachlin J. In Archibald, McEachern C. J. clearly stated, at p. 304, that it would be wrong to assume that there is any “precise range that will apply to every case”. In my opinion, this qualification reveals that the Court of Appeal in Archibald correctly intended for trial judges to balance uniformity in sentencing with their duty to consider the circumstances of the particular case [emphasis added].

[35] In this case, the trial judge considered a number of circumstances that, in her view, took this case out of the usual range. Unfortunately, she erred in at least one respect. She seems to have been of the view that the respondent was not in a position of loco parentis with the complainant. I do not think that the admitted facts can fairly bear that interpretation. The respondent’s own counsel conceded that the respondent was in a position of parent with the complainant although she was also his half-sister. Given that error in principle, it remains for this court to determine the appropriate sentence: R. v. Rezaie (1996), 1996 1241 (ON CA), 112 C.C.C. (3d) 97 (Ont. C.A.).

[36] I also disagree with the statement of the trial judge that “[t]he complainant was not a young child. She is a child under the law but she was 14 turning 15 and seemingly sexually mature.” These comments would suggest that the complainant should bear some responsibility, a position which is simply unsupported by the evidence.

[37] Notwithstanding the very serious nature of the offence, it is my view that this is a proper case to impose a reformatory sentence and that the sentence be served in the community as a conditional sentence. My primary reason for coming to that conclusion concerns the application of s. 718.2(e) of the Criminal Code as interpreted by the Supreme Court of Canada in R. v. Gladue (1999), 1999 679 (SCC), 133 C.C.C. (3d) 385 and R. v. Wells (2000), 2000 SCC 10, 141 C.C.C. (3d) 368.

[38] I will begin with a consideration of the factors that justify a reformatory sentence in this case, although I point out that many of these circumstances are also relevant to the decision to impose a conditional sentence. First, the circumstances leading to this conviction are quite unusual. As I have indicated, the offence came to light because of the respondent’s voluntary disclosure to his psychologist when he was seeking treatment. Thereafter, the respondent was fully co-operative with the police, provided a videotaped statement to them and, of course, pleaded guilty. The respondent has only a minor unrelated criminal record. Second, the respondent’s upbringing is simply one of the most horrendous that I have seen. He was subjected to terrible physical abuse at the hands of his own mother and extensive sexual abuse from other relatives. He was heavily addicted to alcohol, having begun to consume alcohol as an infant. Only recently has he been able to start to overcome some of the effects of this background by participating in counselling and various programmes and educational upgrading. In my view, these circumstances justify departure from the usual range as set out in R. v. B, supra.

[39] It now remains to consider the application of s. 742.1 of the Criminal Code in this case and whether there should be a conditional sentence. The starting place is s. 718.2(e) which provides as follows:

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders [emphasis added].

[40] As held in R. v. Wells, supra, at para. 30, “whenever a judge narrows the choice to a sentence involving a sentence of incarceration, the judge is obliged to consider the unique system or background circumstances which may have played a part in bringing the particular aboriginal offender before the courts.” In short, Gladue and Wells require a different approach to the sentencing of aboriginal offenders because of systemic or background circumstances. In R. v. Sackanay (2000), 2000 1840 (ON CA), 47 O.R. (3d) 612 at para. 9 this court observed in relation to that offender that his background “is a poignant example of just how much the upbringing of an aboriginal can differ from that of most Canadians.” The same can be said of this respondent. I have set out some of those circumstances above and they need not all be repeated. The most significant are these. The respondent was subjected to alcohol as an infant. He began drinking with his mother when he was five. His father abused his mother and she in turn inflicted terrible physical abuse on him. His father was killed when he was seven. He suffered terrible sexual abuse from his own relatives. His mother was a prostitute and performed sexual acts in his presence. She would disappear for months at a time. As a child, the respondent was left to fend for himself for long periods and spent time in twenty different foster homes and in a group home. This has left the respondent psychologically damaged and with a serious alcohol addiction, a Grade 5 education, and few marketable employment skills.

[41] In Gladue, supra, the court described the impact of these kind of systemic and background factors, at para. 68:

It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offenders as well. However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions. Moreover, as has been emphasized repeatedly in studies and commission reports, aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and less likely to be “rehabilitated” thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towards them is so often rampant in penal institutions.

[42] Gladue also instructs the sentencing court as to how to use the evidence of these systemic and background factors, at para. 69:

In cases where such factors have played a significant role, it is incumbent upon the sentencing judge to consider these factors in evaluating whether imprisonment would actually serve to deter, or to denounce crime in a sense that would be meaningful to the community of which the offender is a member. In many instances, more restorative sentencing principles will gain primary relevance precisely because the prevention of crime as well as individual and social healing cannot occur through other means.

[43] At the time that the respondent disclosed the commission of his offence, he had begun to access resources in the community that could begin to help him deal with the consequences of his terrible upbringing. Earlier interventions at the time his relatives sexually assaulted him and when he assaulted his common-law wife had not met with much success. The difference now seems to be that it is the respondent who is motivated to try to recover from the years of abuse and alcoholism. In this, as I have said, he has the support of a number of community-based resources. He had a Grade 5 education. He is now taking courses to upgrade his education at Confederation College. He has completed one course and is now taking a literacy and basic skills course. He has taken steps to deal with the sexual problems at Lakehead Psychiatric Hospital. He has continued to see the psychologist to whom he made the initial disclosure. He is abstaining from the consumption of alcohol and drugs. Finally, and significantly, the respondent has the support of his common-law spouse. She is hopeful that in time she and the respondent will be able to re-establish their family unit.

[44] I recognize that a conditional sentence in this type of offence is a highly unusual disposition. However, I am of the view that such a disposition is consistent with s. 718.2(e) of the Code, and I am satisfied that with appropriate conditions the sentence can meet the important objectives of deterrence and denunciation. In that respect, I do not consider the conditions imposed by the trial judge to be appropriate. They were simply not sufficiently punitive. In particular, at a minimum, the trial judge should have directed that the respondent be under house arrest. The curfew that was imposed was from 11:00 p.m. to 5:30 a.m. It is my respectful view that such a minimal curfew in any conditional sentence risks undermining public confidence in the conditional sentencing regime.

CONCLUSION

[45] I would increase the conditional sentence to two years less one day and increase the probation period to two years. The terms of the balance of the conditional sentence are to be as follows:

(a) The respondent to remain in or on his residential property at all times except for the following: transportation to and from and attendance at his employment; pre-authorized attendance for ordinary medical and dental requirements, exempting emergency conditions; pre-authorized attendance for visits with children; pre-authorized attendance for religious service; shopping on Saturdays from 9:00 a.m. to 11:00 a.m.; also as required for his community service, as required for reporting to his supervisor and for children’s activities, provided they are pre-authorized by his supervisor.

(b) The respondent will abstain from the consumption of alcohol.

(c) He will provide samples of blood or breath for alcohol analysis upon demand by his supervisor or a peace officer.

(d) He will perform 150 hours of community services as directed by his supervisor.

(e) When off his residential property, the respondent will carry a copy of this order, which he will provide to police upon request for identification.

(f) The respondent will take counselling as may be directed by his supervisor and actively participate therein.

(g) The respondent will not communicate or associate with the complainant C. D. in any way; he will not be at her residence or place of employment.

_____ “R. Roy McMurtry C.J.O.”

_____ “I agree. E. A. Cronk J.A.”

_____ “I agree. Robert P. Armstrong J.A.”

RELEASED: January 24, 2003

“RRM”