DATE: 20060207
DOCKET: C40931
COURT OF APPEAL FOR ONTARIO
BORINS, JURIANSZ and LAFORME JJ.A.
B E T W E E N:
HER MAJESTY THE QUEEN
Timothy E. Breen for the appellant
Respondent
- and -
M., W.W.
Philip Perlmutter for the respondent
Appellant
Heard: November 16, 2005
On appeal from the conviction entered by Justice Peter H. Howden of the Superior Court of Justice dated September 16, 2003 and the sentence imposed on December 8, 2003.
JURIANSZ J.A.:
JURIANSZ J.A.:
[1] The appellant was convicted, by a jury, of two counts of incest involving his two half-sisters. He was sentenced to four years in prison. He appeals his conviction and sentence.
Facts
[2] The appellant was almost sixteen years old when he first had sexual intercourse with a nine-year-old half-sister in 1965. The abuse continued for two years. The appellant began to abuse another half-sister in 1966 when he was sixteen or seventeen and she was eight years old. Abuse of this sister continued for four years until she was twelve and he was twenty or twenty-one. Neither half-sister was able to quantify the number of times abuse occurred, but the sentencing judge was satisfied that the conduct reoccurred many times at regular intervals.
[3] For both sisters, the appellant was the oldest brother who took charge of the house while their single mother was out working.
[4] The sisters did not complain to the police until the fall of 2000, some thirty years after the abuse ended. The appellant had no prior criminal record and was a “hard-working member of the Barrie Police Force for over twenty years.” After a lengthy marriage, he had undergone a bitter divorce and had remarried. A psychotherapist and the presentence report concluded that he was unlikely to re-offend. The presentence report also indicated that he had been sexually abused himself in a foster home at the age of six. The appellant's father, with whom the appellant had never had a real relationship, had been murdered in 1969.
The Conviction Appeal
[5] The appellant appeals his conviction, submitting that the trial judge erred in instructing the jury on the relevance of the complainants’ delay in reporting the sexual abuse.
[6] Appellant’s counsel recognized that the trial judge's instructions on this issue closely followed the instructions suggested by the Supreme Court of Canada in R. v D.D. (2000), 2000 SCC 43, 148 C.C.C. (3d) 41. His objection was not so much to what the trial judge said, but to the order in which he said it. He focused on the placement of the last sentence of the instructions suggested by Major J. in R. v. D.D., at para. 65:
“A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.”
[7] He submitted that this instruction, if provided after the judge has reviewed the particular circumstances of the case, would be understood by the jury to qualify the significance of the delay. It would, he said, unfairly limit the relevance of the evidence, in effect creating a rebuttable presumption that the delay in complaining is not relevant.
[8] I do not agree that the fact the trial judge provided the R. v. D.D. instruction after having reviewed the circumstances of the case in general would have misled the jury. In my view, the instructions would not have misled the jury into believing that, in relation to the credibility of the complainants, they should not consider the failure to complain promptly as part of the circumstances surrounding the making of the complaints. Included in the judge’s R. v. D.D. instruction was a specific direction that the timing of the complaints and the complainants' evidence regarding it, and their behavior to each other and to their brother in the meantime, were all circumstances to consider.
[9] The appellant also relied on this court's endorsement in R. v. Crampton (2004), 188 O.A.C. 357, to submit that the trial judge should have instructed the jury that, in the circumstances of this case, it was required to consider whether the delay in disclosure was the result of fabrication after one of the complainants had spoken with the appellant's ex-wife.
[10] Crampton was a different case. In Crampton, a new trial was required because of the cumulative effect of four deficiencies in the trial judge's jury instructions, one of which related to the circumstances of the delay in complaining. The defence theory in Crampton was that the complainant had fabricated her allegations after her boyfriend learned that the appellant had been at the home where the complainant was babysitting when the alleged sexual assault took place. The allegation of fabrication went hand-in-hand with the defence theory of consent.
[11] In this case, the defence did not advance a specific motive for fabrication. The trial judge instructed the jury that the appellant had “no onus or duty whatsoever to prove either complainant has a motive to fabricate false allegations” and that “motives are not always clear and you should avoid putting too much weight on absence of motive for the complainants to lie.”
[12] Given the defence position in this case, there was no error in the trial judge’s instruction.
[13] Accordingly, I would dismiss the appeal from conviction.
The Sentence Appeal
[14] In R. v. B. (1990), 36 O.A.C. 307 this court indicated the sentencing range for sexual intercourse with children by a person in a position of trust is three to five years, except in unusual circumstances. The length of sentence within that range depends on the age of the victim, the duration and frequency of the sexual assaults, the criminal record of the offender, the effects on the victim and the presence or absence of collateral violence or remorse.
[15] R. v. H. (D.A.) (2003), 171 C.C.C. (3d) 309 (Ont. C.A.) and R. v. G. (G.A.), 2006 CarswellOnt 58 (C.A.) (File no. C42144) are recent affirmations of the R. v. B. range to the crime of incest.
[16] The four year sentence imposed in this case is justified by the criteria in R. v. B. given that:
• • The appellant, as the oldest brother who took charge of the household while the mother was out working, was in position of trust.
• • The abuse consisted of repeated acts of vaginal intercourse.
• • The abuse extended to more than one victim.
• • The abuse continued over two and four year periods respectively.
• • The very young age of the victims (8 and 9) and the relatively older age of the appellant (16 and 17) when the abuse commenced.
• • The appellant threatened the victims not to tell anyone.
[17] However, R. v. B. did not consider the effect of an extended interlude between the commission of the offence and sentencing, as exists in this case. The appellant submits that sentencing judge erred in failing to give sufficient effect to his youth at the time of the offenses and to his evident good character throughout his adult life.
[18] I do not accept this submission. The careful reasons of the sentencing judge indicate that he closely considered the offender’s young age at the time of these offences and his subsequent long period of intervening good conduct as an adult.
[19] In my view, the sentencing judge was correct in concluding that the appellant, though young, was relatively older than the victims, and that an exemplary life led in the years intervening between the abuse and the sentencing must be accompanied by expressions of genuine remorse and the acceptance of responsibility for one’s actions in order to have appropriate mitigating effect.
[20] In considering the effect of the lapse of time, the sentencing judge paid particular heed to the reasoning in R. v. Spence (1992), 1992 ABCA 352, 78 C.C.C. (3d) 451 (Alta. C.A.) and R. v. A.R. (1994), 88 C.C.C. (3d) 184 (Man. C.A.), both of which considered the possible effect of the passage of time on the appropriate sentence in an incest case.
[21] The court in Spence stated that the “lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation” and drew a connection between the mitigating effect of a subsequent “good life” and the presence of remorse. The court said:
If the accused, during the intervening years, has led an exemplary life in all respects, including non-repetition of sexual offenses, and upon the matter ultimately being reported to the authorities and during the resulting investigation and prosecution he is remorseful, then the principles of individual deterrence and rehabilitation may arguably, by themselves, not justify a stern sentence of the kind which would have been obligatory many years earlier. It will be noted, however, that if, despite having led an exemplary life, the offender lacks remorse, any potential discount must be less than it otherwise would have been.
[22] The sentencing judge in this case noted that the court in A.R. made the same point:
Nonetheless, where the delay in the reporting of the offense has not resulted from threats made by the offender, or from other attempts to suppress a complaint, the offender may be entitled to a somewhat reduced sentence if he has led an exemplary life during the intervening years and demonstrates genuine remorse.
[23] As I have indicated, the sentencing judge was correct to adopt this reasoning and to conclude that “[t]he coupling of a lengthy period of exemplary conduct and genuine remorse of an accused when later faced with his earlier conduct, is a reasonable one.” The sentencing judge noted that in this case the appellant had pleaded not guilty, remained in denial about his conduct, and had not produced evidence of any acceptance of responsibility for his conduct.
[24] Given the appellant’s lack of remorse, the trial judge correctly found that decisions of this court involving lapses of time applied to the case before him. In R. v. E.W. (1998), 42 O.R. (3d) 455 the offender, after having sexually abused two half-sisters when he was between seventeen and twenty-two years old, went on to live a responsible life as an adult. He was sentenced in 1997 for the offences that had occurred between 1970 and 1974. The sentencing judge noted the many similarities between the facts of E.W. and those of the case before him, including the longtime abuse of two young half-sisters by an older brother, the position of trust, the effects of the abuse as indicated in the victim impact statements, along with the offender's subsequent life of good character as a mature adult, and his rehabilitative efforts. However, as he noted, this court in R. v. E.W. stated that the offences called for “a very substantial penitentiary term” and decided that a fit sentence was five years.
[25] In R. v. J.R., [2003] O.J. No. 3458 (C.A.), this court found a trial sentence of two-and-a-half years for incest to be demonstrably unfit and increased the sentenced to four-and-a-half years. The court said:
While the respondent's conduct in the twenty years between the offences and his arrest demonstrates that he poses little risk of re-offending, the passage of time does not diminish the need for a denunciatory sentence given the seriousness of these crimes.
In our view, a total sentence of 4 1/2 years would have the required denunciatory effect and also recognize the respondent's positive lifestyle since he committed these crimes.
[26] As the appellant has not identified any error of principle or established that the sentence is demonstrably unfit, the appeal cannot succeed.
[27] Although I would grant leave to appeal sentence, I would dismiss the appeal.
Signed: “R.G. Juriansz J.A.”
“I agree S. Borins J.A.”
“I agree H.S. LaForme J.A.”