WARNING

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

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) 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.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. H.S., 2014 ONCA 323

DATE: 20140425

DOCKET: C56945

Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

H.S.

Respondent

Michelle Campbell, for the appellant

John Collins, for the respondent

Heard: March 7, 2014

On appeal from the sentence imposed on March 28, 2013 by Justice Jane E. Kelly of the Superior Court of Justice, sitting without a jury.

Epstein J.A.:

OVERVIEW

[1] B.H., the victim in this sexual assault case, spent most of her childhood in the care of the Catholic Children’s Aid Society. During the period from 1976 to 1978, B.H. had been in 22 foster homes. In early 1978, when B.H. was placed in the care of the respondent and his wife, as foster parents, she was in a desperately fragile state.

[2] Starting in the late spring of 1978 and into mid-July of that year, when B.H. was barely 15 and the respondent was 24, the respondent engaged in unprotected vaginal intercourse with B.H. on a number of occasions. B.H. became pregnant. The Catholic Children’s Aid Society (“CCAS”) was advised and removed B.H. from the respondent’s home. The CCAS placed B.H. in what was then known as a home for unwed mothers where she gave birth to a baby girl. B.H. raised her daughter initially on her own and then with the assistance of a partner.

[3] In April 2010, B.H. reported the matter to the police who, in turn, contacted the respondent. DNA testing proved that the respondent was the father of B.H.’s daughter.

[4] The respondent was charged with: (1) rape, contrary to s. 144 of the 1978 Criminal Code of Canada (“1978 Code”); (2) having sexual intercourse with a previously chaste female person who was not his wife over 14 and under 16 years of age, contrary to s. 146(2) of the 1978 Code; and (3) having illicit sexual intercourse with his foster daughter, contrary to s. 153(1)(a) of the 1978 Code. After the preliminary inquiry the Crown withdrew the rape charge. The respondent pleaded guilty to, and was convicted of, having sexual intercourse with a female person between 14 and 16 years of age and illicit sexual intercourse with his foster daughter.

[5] At the sentencing hearing, the Crown sought a custodial sentence of two to two and one-half years. The defence sought a conditional sentence of two years less a day. The sentencing judge accepted the defence position and imposed a conditional sentence of two years less one day to be served in the community with terms that amounted to a strict house arrest. The sentencing judge also imposed a three-year period of probation during which the respondent was required to perform 360 hours of community service. Accompanying SOIRA and DNA orders were made.

[6] The appellant seeks leave to appeal sentence and, if leave is granted, appeals against the respondent’s sentence.

[7] The appellant submits that the sentencing judge made errors in principle in her sentencing decision and that the sentence is significantly below the range of sentences that other courts, including this court, have imposed on similar offenders who have committed similar offences.

[8] For the reasons that follow, I am of the view that the sentencing decision is encumbered by error and the sentence imposed is manifestly unfit. I would grant leave to appeal, allow the appeal, set aside the sentence imposed and substitute in its stead, a sentence of three years less credit of one year for the time the respondent has served under his conditional sentence.

THE FACTS

[9] The following agreed statement of facts was read into the record and formed the basis for the convictions.

Background Information

1. [B.H.] was in and out of the care of the [CCAS] beginning from the age of 6 years old. From approximately the beginning of 1976 until the spring of 1978, she resided in 22 different foster homes.

2. As a result of [B.H.] being repeatedly moved between foster homes, and the nature of the care in some of those foster homes, [B.H.] was in an emotionally fragile state.

3. [The respondent] and his wife were approved foster parents with the CCAS and in the early spring of 1978 they agreed to take in [B.H.], who at the time was 14 years old.

4. [The respondent and his wife] owned a four bedroom home in Scarborough. Residing in the home were [the respondent and his wife] and their two children. Each of the children had their own room and [B.H.] was given her own room as well.

5. Early on, after [B.H.] moved into the home, there was nothing untoward about the relationship between [B.H.] and any member of the [respondent’s] family. In fact, for the first time in CCAS care, [B.H.] finally felt that she was in a stable environment where she was treated on equal footing with the [respondent and his wife’s] biological children.

6. The [respondent] was in a position of trust and authority over [B.H.] throughout her time in the home.

The Offences

7. Approximately 1-2 months after [B.H.] moved into the residence, [the respondent] was involved in a serious motor vehicle accident. As a result, he was housebound and both he and [B.H.] were in the home at the same time a lot. It was after this accident that the nature of the relationship between [B.H.] and [the respondent] changed.

8. [The respondent] began making sexual advances towards [B.H.], and over a relatively short period of time, between the late spring of 1978 and mid-July 1978, there was vaginal intercourse on 3-4 separate occasions, all in the home. There was no other form of sexual touching before or after these incidents.

9. At no time did [the respondent] use a condom. And, on each occasion he ejaculated inside [B.H.].

10. As a result, [B.H.] became pregnant. The CCAS became aware that she was pregnant and removed [B.H.] from the [respondent’s] residence, placing her in a home for unwed mothers. The CCAS never reported these incidents to any police service.

11. [B.H.] maintained custody of the baby and raised her, initially on her own, and subsequently with a partner. [B.H.’s] daughter believed that her biological father was [B.H.’s] partner, until [B.H.] told her the truth when she was a teenager.

12. In April 2010, [B.H.] decided to contact the London, Ontario Police Department and reported the allegations. London Police provided this information to the Toronto Police Service who, in turn, conducted a further investigation. As part of that investigation, the TPS spoke with [the respondent], advised him of the allegations, and asked if he would consider providing a DNA sample.

13. A consent sample was provided to the TPS and testing confirmed that [the respondent] was the father of [B.H.’s] daughter.

14. [The respondent] was arrested and charged with the offences before the court and was released on an undertaking to the officer-in-charge.

THE SENTENCING REASONS

[10] B.H. had attended court for the plea and for the sentencing hearing. The sentencing judge began her analysis by describing her observations of B.H. as follows: “To describe her appearance as that of a broken woman would be an understatement”.

[11] The sentencing judge then made observations about the respondent. She commented on the extensive support provided by his friends and family and noted the difficulty they had reconciling the respondent’s positive personality traits with the “monstrous error in judgment” he had made in committing the offences. The sentencing judge observed that the respondent had taken the witness stand and apologized to B.H. She concluded that the respondent, through his guilty plea, had taken responsibility for his actions.

[12] The sentencing judge identified denunciation and general deterrence as the primary sentencing principles.

[13] The sentencing judge then considered whether the circumstances called for a sentence to be served in the penitentiary, as argued by the Crown, or whether, as submitted by the defence, this was one of those “rare” cases in which a conditional sentence would satisfy the sentencing principles she had identified. After reviewing the authorities upon which each side relied, the sentencing judge concluded, at para. 28, that this was a “rare case” and that “the conditional sentence imposed will address both the punitive and rehabilitative aspects of sentencing.”

[14] In paras. 35 and 36, the sentencing judge identified a lengthy list of aggravating factors, as follows:

[35] [BH’s] victim impact statement was heart wrenching. The impact of these offences on her were described as follows and are obviously aggravating:

a. Her life forever changed with the pregnancy.

b. She was put into a home for unwed mothers and told to give up her child.

c. She “was taken from being a kid with a life ahead of [her] to a kid raising a kid and living a life of fear”.

d. Parenting was a struggle.

e. She used to wash herself with bleach in an attempt to cleanse herself.

f. She felt that “depression and fear became a way of life”.

g. That although she married it did not last. She felt that during her marriage, her past was used against her to “attack” her in her marriage.

h. That her life has been adversely impacted by what happened 35 years ago.

i. She suffers from chronic sleep problems, eating disorders and nightmares.

j. She believes that the actions of [the respondent] have affected her entire life, including her marriage and consequently the lives of her children and grandchildren. She says: “Every relationship I have ever had in my lifetime has been adversely impacted by what happened to me some 35 years ago”.

k. She describes herself as “numb”, especially when it comes to herself. She does not have a life and she cannot hold down a job. To quote [B.H.]: “I have not been the mother and grandmother I should have been because of the path of life which [the respondent’s] crimes have done. I am unable to trust few people in my life. … Trust is not a part of my world and never has been since I was violated by [the respondent] and then told I was a liar by the CAS workers when I went to them for help”.

l. That she is “broken” and her life is a “living nightmare”.

[36] I also consider the following to be aggravating factors regarding [the respondent’s] involvement in the offences before the Court:

a. [B.H.] was under the age of 18 at the time of the offences. She was 15 and a virgin at the time she had sexual intercourse with [the respondent].

b. The acts of sexual intercourse occurred three to four times over a short period of time.

c. [B.H.] became pregnant because [the respondent] did not take any precautions to prevent such an occurrence.

d. [B.H.] was an extremely vulnerable person having been in approximately 22 foster homes before being put into what she thought was a stable environment in the [respondent’s] home.

e. [The respondent] was in a position of trust and authority which he breached when he engaged in sexual intercourse with [B.H.].

f. Although [B.H.’s] quality of life up until this point could not be described as ideal, it worsened with these crimes against her. She was removed from the home, entered parenthood at age 15 and remained in a situation that could be politely described as “chronic stress”.

g. Although the blame for [B.H.’s] poor quality of life cannot be placed solely on [the respondent], his conduct was a significant contributing factor. As Crown Counsel submitted, it is impossible to quantify the damage inflicted on [B.H.] by [the respondent’s] conduct.

h. Dr. Larry Schmidt described that [B.H.] suffers from severe post-traumatic stress disorder as well as medical conditions causing chronic pain such as irritable bowel syndrome and fibromyalgia.

[15] Before considering the mitigating factors, the sentencing judge turned to the “dispute as to when [the respondent] knew of [B.H.’s] pregnancy”. The sentencing judge noted that in her victim impact statement, B.H. said that the CCAS had approached the respondent about her pregnancy in 1978 and that he had claimed he was not the father of her child. The respondent, through his counsel’s submissions at the sentencing hearing, took the position that he did not learn about B.H.’s pregnancy until 2010 when the police contacted him. As noted above, the agreed statement of facts merely indicates that “the CCAS became aware that [B.H.] was pregnant and removed [B.H.] from the [respondent’s] residence, placing her in a home for unwed mothers. The CCAS never reported these incidents to any police service.”

[16] Crown counsel indicated to the sentencing judge that he did not intend to rely on the respondent’s denial of responsibility for the pregnancy in 1978 as an aggravating factor for the purposes of sentencing as he did not want to force B.H. to have to testify again at a Gardiner hearing. Although the timing of the respondent’s knowledge of the pregnancy was contested, defence counsel suggested that the respondent would have taken immediate responsibility for his actions had he known the child was his, and submitted that the sentencing judge could not “come to any other conclusion”, saying:

My friend knows that my client takes the position that he was not aware of the consequences. I know that this is one of the other situations where it may be controversial as to the fact that he was aware that he had a child out there, but he takes the position and in fact that was one of the reasons he consented to the DNA. But that is not going to make a difference, I am sure, to Your Honour in terms of the ultimate sentencing, but you might given the information that you have here about the progression that this man has made, you might believe, as he would want you to believe, that if he had been able to do anything to help the daughter that he participated in bringing into this world he would have done it, and I don’t think you can come to any other conclusion when you see the evidence that’s before you, and I am sure that he, if given the opportunity, would even do that today.

[17] In the light of the Crown’s position, the sentencing judge held that she would not consider the respondent’s potential knowledge that he had fathered a child with B.H. as an aggravating factor on sentencing. She then found as a fact that “[the respondent] became aware of the birth of his child with [B.H.] in 2010”.

[18] From that finding, the sentencing judge identified the mitigating factors she considered relevant as follows:

[43] [The respondent’s] factual background demonstrates that he is a person of good character:

a. [The respondent] is 61 years of age. He has led a productive life since these offences. He worked for the TTC commencing in 1972 and ending in 2008. During these 36 years, he was promoted 17 times. At the time of his departure, he was supervising over 5,000 people in his capacity as the General Superintendent of Surface Transportation for Toronto.

b. He suffers from diabetes. A growth on his pituitary gland was removed surgically in 2011. Some pituitary tumor remains and as such, he will require lifelong monitoring. If the tumor grows, [the respondent] will require repeat surgery, possibly radiation and possibly hormone replacement.

c. He suffers from Sleep Apnea Syndrome. Medical doctors are carefully and closely monitoring [the respondent]. He takes numerous medications.

d. At the time of the offences, he was 24 years of age. He has no criminal record. Approximately 35 years have passed since the offences occurred and there is no evidence of any other criminal activity.

e. [The respondent] appears to be proficient in construction. For years, [the respondent] has devoted his time and his handyman skills to family and community members in need.

f. Upon his arrest, and 33 years after the offences, [the respondent] provided his DNA sample on consent so that he could help determine whether he was the father of [B.H.’s] child. This was the first time he had been asked to take responsibility for his most irresponsible conduct.

g. [The respondent] is extremely remorseful. He asked to take the witness stand during the sentencing hearing so that he could face [B.H.] and apologize to her personally. As I have stated above, the apology appeared to be sincere and moving.

h. Those who have shown support for [the respondent] through these difficult circumstances have also shown empathy for [B.H.].

i. There is nothing to suggest that [the respondent] has been anything but a contributing member of our society. As Crown Counsel submitted, such letters from family, friends and colleagues that speak glowingly of [the respondent] are to be expected. I agree. However, what one normally does not see is the compassion shown for the victim of the crime such as that shown for [B.H.].

[19] The sentencing judge then reproduced a letter the respondent’s current wife had written about the respondent. The sentencing judge described the letter, at para. 44, as a “compassionate description that gives some insight into the type of person [the respondent] has proven to be”. The sentencing judge also repeated and reinforced her earlier reference to the support the respondent had from friends and family.

[20] The sentencing judge returned to the significance of the respondent’s remorse and of his “genuine” apology that evidenced his having taken full responsibility for his “grave error in judgment”. The sentencing judge concluded her consideration of the mitigating circumstances by adding that “the stigma of these proceedings and convictions cannot be minimized” and then reproducing a portion of submissions made by the respondent’s counsel about the extent to which the respondent had suffered from his “fall from grace”.

[21] The sentencing judge started her analysis of a fit sentence with the observation, at para. 50, that “sending [the respondent] to jail is not going to cure [B.H. of] her state of being”.

[22] The sentencing judge held that a conditional sentence was appropriate because the respondent would not be a danger to the community and because such a sentence would adequately denounce the respondent’s conduct and deter other persons from committing this type of offence. She therefore sentenced the respondent to two years less one day to be served in the community.

ANALYSIS

[23] The disposition of a sentencing judge attracts a high degree of deference from a reviewing court: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at paras. 46-49. Unless the sentencing judge made an error in principle, failed to consider relevant evidence, misapprehended a material fact, or imposed a sentence that is demonstrably unfit, appellate interference with the sentence imposed is precluded: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90; R. v. T.(K.) (2008), 2008 ONCA 91, 89 O.R. (3d) 99 (C.A.), at paras. 30-31.

[24] A number of factors satisfy me that this is not a case in which deference should be accorded to the sentencing judge’s decision.

1. The sentencing judge erred by relying on her finding of fact that the respondent was unaware, until 2010, that he had fathered a child with [B.H.]

[25] Counsel for the respondent concedes that the sentencing judge erred in finding that the respondent only became aware that he had fathered a child with B.H. in 2010. In my view, the sentencing judge’s use of that finding significantly interfered with her appreciation of the respondent’s moral culpability and constituted an error in principle.

[26] It was not established one way or the other whether the respondent was aware, in 1978, that B.H. had given birth to his child. Thus, the sentencing judge’s finding that the respondent only became aware of B.H.’s pregnancy and the birth of his child in 2010 constitutes an error in principle. As Weatherston J.A. noted in R. v. Holt (1983), 1983 CanLII 3521 (ON CA), 4 C.C.C. (3d) 32 (Ont. C.A.), at p. 52, the Crown’s failure to – or as in this case, decision not to – prove an aggravating factor on sentencing does not mean that “in the absence of such proof all possible mitigating facts must be assumed in favour of the accused.”

[27] In my view, this finding implicitly formed the foundation for the sentencing judge’s conclusion that this was one of those rare cases in which a conditional sentence was appropriate.

[28] As previously noted, the sentencing judge listed the respondent’s consent to provide a DNA sample to determine whether he was the father of B.H.’s child as a mitigating factor because, in her view, it demonstrated that, early on, the respondent was prepared to accept responsibility for his actions. However, the respondent’s cooperation with the police only indicates an intention to take responsibility if the respondent was, prior to that point in time, unaware that he was the father of B.H.’s child.

[29] Furthermore, the letter from the respondent’s wife upon which the sentencing judge relied for insight into the respondent’s otherwise good character includes the following comments:

Although he had no idea the child was his at the time, now knowing he has a daughter who has grown up and become a woman and mother herself thinking that her biological father abandoned her is almost more than he can bear.

He worried about the last 35 years of their lives, if he had known, what he could have done to help them.

[30] The insights these comments purport to provide are based on the assumption that the respondent was unaware he had fathered a child with B.H. in 1978. Given that the timing of the respondent’s awareness was not established, these comments in the letter were at best irrelevant. At worst, they were misleading.

[31] The sentencing judge, at para. 47, found as a mitigating factor that the respondent had taken “full responsibility for his actions”. Again, this conclusion necessarily assumes that the respondent did not know, prior to the DNA results, that his foster daughter – with whom he had unprotected intercourse – had given birth to his child. If he were aware, the inescapable conclusion would be that the respondent had failed to own up to his conduct – that he, in fact, had failed to take responsibility for not only his criminal acts but also his parental responsibility.

2. The sentencing judge erred in her approach to determining a fit sentence

[32] The sentencing judge started her analysis by concluding that the respondent should not be incarcerated. Having determined that critical matter, the sentencing judge then proceeded to explain how a conditional sentence would give effect to the sentencing principles relevant to this offence and offender. This approach runs contrary to the direction provided in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 58-60, in which Lamer C.J. sets out the approach for determining the availability of a conditional sentence:

[58]…In my view, the requirement that the court must impose a sentence of imprisonment of less than two years can be fulfilled by a preliminary determination of the appropriate range of available sentences. Thus, the approach I suggest still requires the judge to proceed in two stages. However, the judge need not impose a term of imprisonment of a fixed duration at the first stage of the analysis. Rather, at this stage, the judge simply has to exclude two possibilities: (a) probationary measures; and (b) a penitentiary term. If either of these sentences is appropriate, then a conditional sentence should not be imposed.

[59] In making this preliminary determination, the judge need only consider the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for the offender. The submissions of the parties, although not binding, may prove helpful in this regard. For example, both parties may agree that the appropriate range of sentence is a term of imprisonment of less than two years.

[60] Once that preliminary determination is made, and assuming the other statutory prerequisites are met, the judge should then proceed to the second stage of the analysis: determining whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. Unlike the first stage, the principles of sentencing are now considered comprehensively. Further, it is at the second stage that the duration and venue of the sentence should be determined, and, if a conditional sentence, the conditions to be imposed. [Emphasis added.]

[33] By failing to initiate her analysis of a fit sentence with a determination of the appropriate range of available sentences, the sentencing judge erred.

3. The sentencing judge erred in her consideration of other mitigating circumstances

[34] Crown counsel submits that the sentencing judge erred by: (1) listing the respondent’s health problems at the time of sentencing as a mitigating factor; (2) treating the stigma in the community arising from the criminal charges against the respondent and his convictions as having the same denunciatory effect as jail; and (3) minimizing the respondent’s culpability by adopting the defence suggestion that the respondent’s crimes reflected merely a “horrendous error in judgment”.

[35] I make three observations.

[36] First, I would reject the Crown’s contention that the sentencing judge minimized the respondent’s culpability by characterizing his criminal conduct as merely an “error in judgment”. In my view, when the reasons are read as a whole, they indicate that the sentencing judge appreciated the seriousness of the crimes of which the respondent was convicted and their tragic – indeed, as she put it, their “heart wrenching” – impact on the complainant.

[37] However, I agree that the sentencing judge erred by treating various of the respondent’s health problems (diabetes, pituitary gland issues and sleep apnea) as a mitigating factor on sentencing.

[38] The status of the offender’s health may be a relevant consideration on sentencing, but in this case there was no evidence at the sentencing hearing that the respondent’s medical conditions could not be properly treated while he was incarcerated. In these circumstances, no reduction in an otherwise fit sentence was warranted due to the respondent’s health problems: R. v. Aquino (2002), 55 W.C.B. (2d) 314 (Ont. C.A.); R. v. Malicia, [2004] O.J. No. 2554 (C.A.); R. v. R.L., 2013 ONCA 504.

[39] I also agree with the Crown that the sentencing judge erred by finding the stigma of the criminal proceedings and the respondent’s convictions to be a mitigating circumstance. Absent evidence that the prosecution affected the respondent in a manner beyond what one would expect for any person facing criminal proceedings of this serious nature, this consideration was irrelevant: R. v. R.W.D. (2005), 2005 CanLII 20711 (ON CA), 198 C.C.C. (3d) 541, 199 O.A.C. 254 (Ont. C.A.), at para. 12. There was no such evidence in this case.

[40] These two errors adversely affected the sentencing judge’s ability to properly assess the respondent’s moral culpability.

4. The sentence is manifestly unfit

[41] It is of paramount importance that children be protected from seducers and predators through sentences that emphasize the principles of denunciation and deterrence: R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 34.

[42] Mid-to-upper single digit penitentiary sentences are appropriate where an adult in a position of trust sexually abuses a young child on a regular basis over a substantial period of time: See D.D., at para. 44.

[43] In R. v. S.M.H, 2011 ONCA 215, this court upheld a sentence of four years and three months on conviction for several historical sexual and domestic offences. When he was sentenced, the offender was 55 and had a serious medical condition. The court noted the offender’s age and serious medical condition; that the offences had occurred years earlier; and that the offender had no criminal record. However, the court reinforced that “absent exceptional circumstances, adult offenders in a position of trust who sexually abuse children over a substantial period of time can expect to receive mid to upper single digit penitentiary terms”.

[44] In my view, the sentence imposed, in the light of the circumstances of these offences and this offender, is manifestly unfit and an unjustifiable departure from the range.

5. What is a fit sentence in the circumstances of this case?

[45] Given the errors the sentencing judge made in her approach to sentencing and having concluded that she imposed a manifestly inadequate sentence, it falls to this court to determine the appropriate sentence. In doing so, the court must apply the principles set out in Part XXIII of the Criminal Code and, in particular, s. 718:

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...

[46] Section 718.1 of the Code provides that: “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” This direction requires that, in fashioning an appropriate sentence, a sentencing judge have regard to both the seriousness of the offence and the offender’s degree of responsibility. Section 718.2(a)(iii) of the Code provides that the abuse of a position of trust in the commission of an offence is an aggravating circumstance on sentencing.

[47] The respondent committed serious crimes with serious consequences. The aggravating factors are significant. The respondent occupied a unique position of trust in relation to B.H. As previously noted, B.H. was particularly vulnerable. In fact, she had been judicially declared to be a child in need of protection under the child welfare legislation in place at the time. After a period of unimaginable instability in her young life, B.H. found herself in the respondent’s home. According to the agreed statement of facts, it was there that B.H. felt safe for the first time in her life, until the respondent violated her trust by subjecting her to repeated unprotected vaginal intercourse.

[48] The negative effect of crime on its victims is always an important consideration on sentencing. See R. v. Drabinsky, 2011 ONCA 582, 274 C.C.C. (3d) 289, at para. 179 (Ont. C.A.). B.H.’s account of how the sexual abuse impacted her life is tragic.

[49] The guilty plea and the respondent’s lack of a prior criminal record, work history and otherwise good standing in the community are valid mitigating circumstances to take into account. However, their weight must be considered in the light of the fact that it is not unusual for individuals who commit this kind of offence to have jobs or to otherwise be individuals of apparent good character: See R. v. M.(G.) (1992), 1992 CanLII 7399 (ON CA), 11 O.R. (3d) 225 (C.A.), at p. 232.

[50] Here, as in all cases, the dominant sentencing principle is that the sentence must be commensurate with the gravity of the criminal conduct. As the sentencing judge correctly identified, the subordinate sentencing principles are general deterrence and denunciation. The application of these principles and the relevant jurisprudence supports the imposition of a lengthy custodial sentence.

[51] However, there are additional factors relevant to this court’s determination of a fit sentence in the unique circumstances of the respondent before this court at this time.

[52] One such factor is the time lapse. The offences took place over 35 years ago. There is no evidence that the respondent has lead anything but an exemplary life since 1978. The man before the court today is not the same as the man who committed the crimes. The question is how much, if any, weight ought to be given to the lapse of time in crafting a fit sentence for the respondent.

[53] The leading case on the treatment of time lapse in sentencing is R. v. Spence (1992), 1992 ABCA 352, 78 C.C.C. (3d) 451 (Alta. C.A.), adopted by Juriansz J.A. for this court in R. v. W.W.M (2006), 2006 CanLII 3262 (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A). In Spence, at pp. 454-456, the court held that:

When a period of many years has elapsed between the commission of an offence of sexual assault and its discovery by the authorities, that circumstance dictates review of the degree to which the usual principles of sentencing are applicable in such circumstances.

The lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation. The first of these requires a sentence which will intimidate those other than the offender who might be tempted to follow his example. The second requires a sentence by the imposition of which the court will reflect society's view of the wrongness of the conduct, and persuade those who might be confused about what is right and wrong. These two principles may overlap in their effect on the choice of sentence.

The need for the sentence to reflect the community's desire to denounce offences of the kind with which we are concerned is not diminished by the passage of time. Conversely, if the court were to impose a lenient sentence because of the passage of time, some members of the community might regard the sentence as judicial condonation of the conduct in question. That would tend to lessen respect for the administration of justice. In the circumstances we are considering in these appeals, the lapse of considerable time, and (we assume, for the purpose of discussion) the intervening years of unblemished conduct, do not lessen the relevance of these two principles.

The only sentencing principles which may be affected by the lapse of time are those of individual deterrence and rehabilitation. By individual deterrence we mean that the sentence should deter the accused from committing a similar offence in the future. By rehabilitation we mean that the sentence imposed should reflect the hope that somehow, while serving his or her sentence, the accused will be rehabilitated and at its end will resume his or her place in society as a useful and law-abiding citizen. These two principles overlap. In the case of a sexual offence against a child, when on occasion the child does not report the offence to the police or any other authority until many years after the event, should the sentence be less than what it would have been if the prosecution had occurred not long after the commission of the offence? If the accused, during the intervening years, has led an exemplary life in all respects, including non-repetition of sexual offences, 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. Indeed, in cases of this sort, of sexual abuse of children by parents, one might well ask whether one could ever have both remorse and lengthy suppression of the facts.

[54] Given the respondent’s circumstances, the principles of specific deterrence and rehabilitation have no relevance. As previously noted, the relevant sentencing principles in this case are denunciation and general deterrence. A fit sentence must reflect the need to respond to these principles. As made clear in the above passages from Spence, these particular sentencing principles are unaffected by the passage of time. See also: W.W.M. at paras. 21-25 and R. v. S.(R.), 1997 ABCA 377, 1997 A.J. No. 1136, 209 A.R. 231 (Alta. C.A.).

[55] I am therefore of the view that while a delay of over 35 years is a relevant consideration, its mitigating impact is reduced by its lack of relevance to the operative sentencing principles.

[56] Applying the principles mandated in s. 718 of the Code that are germane to the circumstances of this particular offender and these particular offences, I conclude that the objectives of general deterrence and denunciation, and the importance of ensuring parity with other sentences in similar circumstances, support a sentence of five years.

[57] However, there are other factors that must be taken into consideration in the unique circumstances of this case.

[58] First, while I have concluded that the principles of general deterrence and denunciation cannot be adequately served without incarceration, the fact that the respondent has spent the last two years in legal limbo uncertain as to whether he would be incarcerated and, if so, for how long, is a relevant factor to take into account: See R. v. Hamilton (2003), 2003 CanLII 2862 (ON SC), 172 C.C.C. (3d) 114 (Ont. S.C.), at paras. 216-219.

[59] Second, I am mindful of the fact that the Crown seeks a harsher sentence on appeal than that sought below. While there is no rule or principle that precludes the Crown from repudiating its position taken at trial, jurisprudence has established that it may only be done in exceptional circumstances - where it can be shown that the public interest in the orderly administration of justice is outweighed by the gravity of the crime and the gross insufficiency of the sentence: See R. v. P.J.B. (1999), 1999 CanLII 18938 (NL CA), 141 C.C.C. (3d) 290 (Nfld. C. A.); R. v. Marks (1994), 1994 CanLII 9742 (NL CA), 91 C.C.C. (3d) 421 (Nfld. C.A.); Attorney General of Canada v. Roy (1972), 1972 CanLII 2257 (QC CS), 18 C.R.N.S. 89 (Que. Q.B.).

[60] The public’s interest in the orderly administration of justice requires a consideration of any potential unfairness to the offender resulting from the Crown’s change of position as to sentence on appeal.

[61] Appellate courts have refused to intervene in a sentence where the record demonstrated that the offender acted in reliance upon the Crown’s position below. Courts have been particularly reticent to give effect to increased Crown submissions on appeal where offenders have pleaded guilty after receiving sentencing assurances from the Crown, or where the parties have made a joint submission on sentence: See R. v. Agozzino (1969) 1968 CanLII 456 (ON CA), 6 C.R.N.S. 147 (Ont. C.A.); R. v. Wood (1988), 1988 CanLII 7095 (ON CA), 43 C.C.C. (3d) 570, 29 O.A.C. 99 (Ont. C.A.); R. v. Simoneau (1978), 1978 CanLII 2650 (MB CA), 40 C.C.C. (2d) 307 (Man. C.A); R. v. Dubien (1982), 1982 CanLII 3901 (ON CA), 67 C.C.C. (2d) 341 (Ont. C.A.); Attorney General of Canada v. Roy (1972) 1972 CanLII 2257 (QC CS), 18 C.R.N.S. 89 (Que. Q.B.); R. v. Edwards (2001), 2001 CanLII 24105 (ON CA), 54 O.R. (3d) 737. In such cases, appellate courts have found that it would prejudice the offender to allow the Crown to repudiate its position on appeal. See also: R. v. Fleury (1971), 1971 CanLII 2057 (QC CA), 23 C.R.N.S. 164 (Que. C.A.); R. v. Wood (1975), 1975 ALTASCAD 33, 26 C.C.C. (2d) 100 (Alta. C.A.).

[62] The crimes the respondent committed are profoundly serious. For the reasons set out above, I have concluded that the sentence imposed is contrary to the governing jurisprudence and is patently unfit. Furthermore, the record discloses no evidence that the respondent conducted himself in a particular manner in reliance on the expectation that the trial Crown would propose a lenient sentence. Nor, in my view, does the record support a reasonable inference that the respondent relied upon the Crown’s position below in any particular respect. As a result, unlike in the authorities cited above, it is not possible to identify any unfairness to the respondent in allowing the Crown to request a longer sentence on appeal.

[63] In my view, it follows that that this is one of the exceptional cases in which the public interest in the orderly administration of justice is outweighed by the gravity of the crime and the gross insufficiency of the sentence. There is therefore no reason why this court should not consider the sentence sought by the Crown on appeal even though it is greater than the sentence the Crown sought below.

[64] That said, this court, in fulfilling its ultimate responsibility to determine a fit sentence, pursuant to s. 687 of the Code, must take into account the Crown’s position at trial and on appeal. I agree with the position espoused by Watt J.A. of this court in his dissent in R. v. Peters, 2010 ONCA 30, 250 C.C.C. (3d) 277, at para. 57 that, in the interest of fairness, the term of imprisonment imposed on appeal may be somewhat circumscribed by the position of Crown counsel at trial and on appeal.

[65] In the light of these additional factors and in the unique circumstances of this case, I would grant leave to appeal sentence, allow the appeal and set aside the sentence imposed by the sentencing judge. I would impose a sentence of three years. The respondent is entitled to a credit of one year for the year he has served of his conditional sentence. I would not impose any period of probation but maintain the remainder of the existing ancillary orders.

[66] In the result, I would impose a custodial sentence of two years, to commence on the day that the respondent surrenders. I would have the respondent surrender three days after the date of the release of these reasons, failing which a warrant should issue for his arrest.

Released: April 25, 2014 (“E.A.C.”)

“Gloria Epstein J.A.”

“I agree E.A. Cronk J.A.”

“I agree M.L. Benotto J.A.”