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complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.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: 20030130

DOCKET: C38454

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

Stacey D. Young

for the appellant

Appellant

• and -

S. L.

Jeanine LeRoy

for the respondent

Respondent

Heard: November 29, 2002

On appeal from the sentence imposed by Justice J. Donohue of the Superior Court of Justice dated June 11, 2002.

McMURTRY C.J.O.:

OVERVIEW

[1] This is an appeal by the Crown of the conditional sentence of two years less one day plus probation, imposed by the Honourable Justice Donohue on June 11, 2002, following a plea of guilty to four counts of indecent assault, one count of gross indecency, two counts of assault causing bodily harm, and two counts of assault.

FACTS

[2] The sexual assaults occurred during a two-year period in 1978 and 1979 when the respondent was abusing alcohol. He repeatedly sexually fondled his two daughters. He forced his daughter S. to perform oral sex on him when she was eight or nine. The respondent also engaged in incidents of sexual touching of his nieces who were ages 14 and 16 at the time. The sexual contact occurred before the respondent joined Alcoholics Anonymous at the end of 1979. There is no evidence that the respondent engaged in any sexual assaults after this period although he physically abused both his spouse and daughters over a lengthy period of time.

[3] The first instance of domestic violence occurred during 1979 and involved striking his wife in the eye. In or about 1985, the respondent slapped and punched his wife, causing her injuries. On one occasion, he beat her on the head while she was holding a baby.

[4] In 1986, the respondent’s daughter S. was dating someone of whom he did not approve. During two confrontations with his daughter about her boyfriend, he slapped her across the face. On another occasion the same year, the respondent picked up S. and threw her into the corner of the kitchen cabinets, bruising her hips.

[5] In the spring of 1989 when S. was approximately 20, the respondent pushed her violently several times against a garage door. On the same occasion, the respondent threw hot tea in her face, scalding her. He then struck her violently in the mouth with the back of his hand.

[6] When the respondent’s older daughter A. was 16, he confronted her about whether or not she had had sex, and beat her on her buttocks with a belt.

[7] The last incident of physical assault occurred in 1994 when his wife, from whom he was separated and who was recovering from surgery, was pushed to the ground and suffered injuries to her leg and her eye.

[8] The following table indicates the offences to which the respondent pleaded guilty, a brief description of the relevant incidents referred to above and the sentences imposed:

Offence Facts Sentence

(a) Indecent Repeated genital and chest fondling 1 month

assault of daughter S.

Dec. 1978 –

Dec. 1979

(b) Gross Genital touching and fellatio 7 months

indecency involving daughter S.

May-June 1979

(c) Assault Slapping daughter S. on two occasions; 4 months

Bodily Harm throwing her into the corner of a

May 1987 - kitchen cabinet; and repeatedly pushing

Dec. 1990 her into a door and then throwing

boiled tea on her face and slapping her

(d) Indecent Repeatedly rubbing the inner thighs of 1 month

assault his daughter A. Also fondled her

Dec. 1978 - chest on one occasion

Dec. 1979

(e) Assault Beat his daughter A. on the buttocks 1 month

Jan – Dec. 1985 with a belt

(f) Indecent Fondled the chest of a visiting niece 1 month

assault

Dec. 1978 –

Dec. 1979

(g) Indecent Had another visiting niece stroke his 5 months

assault penis

Dec. 1978 –

Dec. 1979

(i) Assault Punched wife in the eye Suspended (2 years

Jan – Dec 1979 probation)

1979

(j) Assault Slapped his wife several times: 4 months

Bodily Harm banging his fists down on her head less a day

Jan. 1984 - on one occasion; and pushing wife

July 1994 into a door

SENTENCING

[9] At the respondent’s sentencing, victim impact statements were filed by his former wife and older daughter indicating that both had experienced significant emotional trauma.

[10] The conditional sentence imposed was strict house arrest for two years less a day, the maximum number of community service hours, and other conditions including the following:

(a) House arrest for the first 12 months except for medical, dental or spiritual purposes and Saturday morning for general shopping from 9:00 a.m. to 12:00 p.m.;

(b) House arrest for the second 12 months as above except to allow for gainful employment only, not to exceed 58 hours a week including travel time;

(c) Other exceptions to house arrest as authorized by the Supervisor;

(d) Perform 240 hours of Community Service work. This work to commence within 30 days and to be completed at a rate of not less than 20 hours per month and shall be completed within 18 months;

(e) Attend and comply with treatment program as ordered by Dr. Komer;

(f) Abstain from the purchase, possession or consumption of drugs except in accordance with a medical prescription;

(g) Abstain from the purchase, possession or consumption of alcohol;

(h) Not associate or communicate directly or indirectly with the complainants;

(i) Make reasonable efforts to find and maintain suitable full-time employment.

[11] In this appeal, the Crown is seeking a penitentiary sentence and argues, in particular, that the sentences for the offences which are listed in (a) and (d) in paragraph 9 are inadequate.

ANALYSIS

[12] I agree with the appellant’s submission that the sentencing judge misapprehended the evidence in relation to the number of times that the respondent assaulted his two daughters. He stated that the counts which are numbered as (a) and (d) above for the purpose of this appeal dealt with isolated incidents. In fact, the agreed statement of facts stated that the sexual fondling of the respondent’s two daughters occurred repeatedly.

[13] The trial judge described the indecent assault on the respondent’s daughter S. as follows:

Count number four was an indecent assault, in the nature of touching S.’s vagina over her panties, occurring sometime between 1978 and 1979.

[14] In the statement of agreed facts, the sexual assault was described as follows:

S. was sexually assaulted by her father repeatedly during this period using a “tickling game” fondling scenario. Her father would start to tickle her and be so aggressive with it that she would end up on the floor. He would then rub her neck and abdominal areas before moving to her vagina and chest, on top of her clothing, using the flat of his fingers.

[15] The indecent assault on his older daughter A. was described by the trial judge as follows:

This took the form of groin rubbing while A. was seated in the accused’s lap and steering the family car and, in addition, an incident of chest fondling.

[16] The agreed statement of facts in relation to A. referred to her recollection of being several times with her father in his car when her father’s hands were rubbing her inner thighs next to her vagina.

[17] The trial judge described the sexual offences as follows:

These counts basically characterize individual incidents. These are not counts which capture a lengthy course of depredation upon the victim.

[18] When these counts are considered with the gross indecency count which involved the forcing of S. to assist him in masturbation of himself and, in addition, forcing her to perform fellatio on him, I respectfully do not agree with the trial judge that the offences can be described as individual incidents and not a lengthy course of depredation of the victims. The incidents involve repeated sexual assaults by the respondent on his daughter S. and more than one on his daughter A., as well as on his nieces. These assaults clearly represent a course of depredation of over two years on the victims, in respect of all of whom the respondent was in a position of trust.

[19] This court has indicated in previous cases that, in the absence of exceptional circumstances, a penitentiary sentence is generally required in cases of sexual abuse of children where there has been a breach of trust. See: R. v. Cromien 2002 ONCA 4807 (ON CA), [2002] O.J. No. 354 (C.A.) at 7, and R. v. Bedard (2001), 2001 ONCA 8536 (ON CA), 158 C.C.C. (3d) 216 (Ont. C.A.).

[20] Although the trial judge referred to the appropriate sentencing objectives and principles, the sentences imposed, particularly with respect to the two indecent assaults referred to above which involved the respondent’s daughters, fail to reflect the seriousness of the offences and are simply inadequate. Although the appellant for the purpose of this appeal, given the global nature of the sentences, is not asking us to increase the seven-month sentence imposed in relation to the gross indecency conviction, that sentence, in my view, was extraordinarily lenient.

[21] The trial judge was undoubtedly impressed by what he described as the respondent’s “remarkable personal achievements.” He mentioned the fact that the respondent, who is now 53 years old, had immigrated to Canada and had upgraded his trade into a university degree, and ultimately had a 20-year career as a teacher. The respondent lost his position as a teacher and at the time of sentencing, was an unemployed truck driver living in his truck cab. The trial judge noted that the respondent and his former wife had adopted two children from Korea but these children are now Crown wards. He now has a new spouse and a child of grade-school age, but a family court order removed the respondent from his home after he was charged with the offences that are the subject of this appeal.

[22] The trial judge also noted that a “highly regarded” psychiatrist who examined the respondent had expressed his opinion that the respondent does not show any of the characteristics of paedophilia.

[23] The sentencing judge also made reference to the fact that the “incidents of sexual abuse … occurred during a two year period when the accused was recovering from a shattering construction injury which had caused considerable permanent damage to his spine … and [that] he abused alcohol during that period.”

[24] In sentencing the respondent, the trial judge appeared to place great emphasis on the Supreme Court of Canada decision of R. v. L.F.W. [2001] 1 S.C.R. 132 which upheld a conditional sentence in a case that the trial judge stated “bears certain similarities.” In L.F.W., the accused was convicted of one count of indecent assault and one count of gross indecency. The offences were committed between 1967 and 1973 and at the time the victim, who was the respondent’s first cousin, was between 6 and 12 years old. The respondent was between 22 and 28 years old.

[25] There were 10 to 12 incidents involving forced masturbation and fellatio at a time when the respondent in L.F.W. was abusing alcohol. Most of the incidents occurred in a locked shed next to the complainant’s home. The complainant was warned not to tell anyone about what transpired, particularly her parents. The respondent told the victim that he had a gun, leading her to believe that her family would be endangered if she told anyone about the events.

[26] The respondent in L.F.W., a widower, had four children and has resided in Bay de Verde his whole life, except for three years spent in the armed forces. He had no criminal record and a good work record. He was close to and had the support of his four children, for whom he had provided throughout their lives. There were letters from respected leaders of his community attesting to his good character and reputation in the community.

[27] The respondent in L.F.W. was sentenced to a 21-month conditional sentence. The Crown appealed, seeking a 21-month term of incarceration. A majority of the Newfoundland Court of Appeal dismissed the appeal. Cameron J.A. dissenting, would have ordered the respondent to serve the remainder of his sentence in prison.

[28] The evenly split Supreme Court in L.F.W. referred to its decision in R. v. Proulx, [2001] 1 S.C.R. 61 where it reiterated that the sentence imposed by a trial judge is entitled to considerable deference from appellate courts. The court also referred to R. v. M. (C.A.), 1996 SCC 230 (SCC), [1996] 1 S.C.R. 500 at para. 90 where it was stated that:

[A]bsent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if it is demonstrably unfit.

[29] There are important differences between this case and L.F.W. Although L.F.W. took advantage of a family relationship in his abuse of his cousin, he was not in a parental relationship with her. That is not the case here. Two of the victims were the respondent’s daughters. He also abused his position of trust in assaulting two nieces who were visiting his home, and in assaulting his wife. Further, in this case, unlike L.F.W., there were multiple victims and a pattern of criminal conduct extending over almost 15 years. Finally, in this case, unlike L.F.W., the trial judge misapprehended the facts in material ways that led him to minimize the seriousness of the offences, especially the indecent assaults on the respondent’s daughters.

[30] Ordinarily, these offences would require imposition of a penitentiary sentence of at least three years, notwithstanding the passage of time since the most serious offences were committed. This was not an appropriate case for a conditional sentence. Having regard to the gravity and repeated nature of the respondent’s abuses, the objectives of general deterrence and denunciation could not be met by a conditional sentence, even with the strict punitive terms imposed by the trial judge.

[31] Determining the appropriate sentence at this stage is a matter of some difficulty. Since the respondent has already served over six months of the conditional sentence under strict terms, he is entitled to credit for that time. In all of the circumstances I also do not think that it would be in the public interest to now incarcerate the respondent in a penitentiary. I am also taking into consideration that the respondent’s life has suffered rather catastrophic consequences as a result of his arrest on these charges.

[32] Some comment should be made about the sentences actually imposed by the trial judge. The trial judge imposed sentences of one month for the indecent assault of S. and for the indecent assault of A. Those sentences were manifestly inadequate given the very serious conduct involved.

CONCLUSION

[33] Accordingly, I would grant leave to appeal, allow the appeal and vary the sentence as follows:

(a) Indecent assault on S. 7 months imprisonment

(b) Gross indecency involving S. 9 months concurrent

(c) Assault causing bodily harm of S. 4 months consecutive

(d) Indecent assault on A. 7 months consecutive

(e) Assault on S. 1 month concurrent

(f) Indecent assault on niece 1 month consecutive

(g) Indecent assault on another niece 5 months consecutive

(h) Assault on wife 1 month concurrent with two years

probation

(i) Assault causing bodily harm on wife 2 months consecutive

[34] The total sentence is therefore twenty-eight months imprisonment. Were it not for the need to give effect to the totality principle, some of the individual sentences would be much longer and some of the sentences that I have made concurrent would be consecutive.

[35] As I stated earlier, the respondent should be given six months credit for the six months of the conditional sentence that he has already served. The total sentence that I am imposing will therefore be twenty-two months imprisonment to commence from the day that the respondent surrenders into custody.

“R. Roy McMurtry C.J.O.”

“I agree. E. A. Cronk J.A.”

“I agree. Robert P. Armstrong J.A.”

RELEASED: January 30, 2003

“RRM”