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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 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, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

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. W.Y., 2015 ONCA 682

DATE: 20151009

DOCKET: C59782

Hoy A.C.J.O., Weiler and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

W. Y.

Respondent

Roger Shallow, for the appellant

Michael Dineen, for the respondent

Heard: October 5, 2015

On appeal from the sentence imposed by Justice J.W. Bovard of the Ontario Court of Justice, dated November 27, 2014.

ENDORSEMENT

[1] Following his plea of guilty, the respondent was sentenced to five years imprisonment for having committed a number of sexual offences against his 14-year-old daughter: sexual touching (1 count); invitation to his daughter to touch his body with her mouth for a sexual purpose (2 counts); and sexual intercourse (1 count). The offences took place between June 18, 2013 and July 30, 2013.

[2] The Crown seeks leave to appeal, and, if leave is granted, requests that a sentence of at least 8 years be imposed.

[3] The sentencing proceeded by way of an agreed statement of facts from which we have extracted the following summary. After being unknown to his daughter, the respondent had contact with her in April 2013 for approximately a week when she and her mother visited him. At the end of the school year, the mother, who was having difficulty with her daughter, reached out to the respondent, hoping that a relationship with him would help the daughter improve her lifestyle choices. The daughter left her home in the United States to live with the respondent for the summer.

[4] Within days, the respondent initiated sexual activity with his daughter. He told her to think of him as her boyfriend, and not her father. Over the next approximately six-week period, the respondent had intercourse with his daughter nearly daily. He also had his daughter perform oral sex on him twice and once took pictures of her while making her pose naked.

[5] At the end of this period, the respondent, an alcoholic, took his daughter to meet her older, half-sister. Everyone was drinking. The younger daughter drank too – to the point of vomiting. The respondent and his younger daughter stayed overnight, sleeping on the living room couch. During the night, the older daughter went into the living room to check on her younger half-sister. She saw her father performing oral sex on her half-sister and digitally penetrating her. She contacted the police, who arrested the respondent.

[6] The Crown submits that the sentencing judge erred in principle by misidentifying the range of appropriate sentences for the sexual offences committed by the respondent and, as a result, imposed a sentence that was manifestly unfit. In particular, the Crown argues that the sentencing judge found that he was bound by the sentencing range of three to five years identified in R. v. B.(J.) (1990), 36 O.A.C. 307 (C.A.) and that he erred in doing so. The Crown submits that the correct range was identified by this court in R. v. D.(D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.). In that case, Moldaver J.A. held that adult offenders, in a position of trust, who sexually abuse innocent young children on a regular and persistent basis over substantial periods of time can expect to receive mid to upper single digit penitentiary terms. The Crown relied on both decisions in its sentencing submissions.

[7] In addition, the Crown submits that the sentencing judge failed to give sufficient consideration to the fact that the respondent was a repeat offender. He had two prior convictions for sexual offences against children: one in 1987 for sexually assaulting a 9-year-old girl he was babysitting, on two occasions, and one in 1988, again for sexually assaulting a 9-year-old girl he was babysitting. In both cases, the respondent touched the victim's vagina.

[8] We are not persuaded that the sentencing judge felt bound to impose a sentence that did not exceed five years. Thus, in our opinion he did not err in principle. He thanked counsel for the authorities they submitted because it gave him a "good idea of the range of sentences that the courts consider in cases such as this one." The sentencing judge described B.(J.) as "the most helpful case". In B.(J.), the court noted that a number of factors will determine the appropriate length of sentence within the range for a sexual assault. These include 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. The court also noted that the ordinary range will be exceeded when the circumstances cry out for a more severe penalty.

[9] While the sentencing judge did not specifically advert to D.(D.) in his reasons, he imposed a sentence at the bottom of the range identified in that case. In D.(D.), at para. 44, Moldaver J.A. (as he then was) wrote:

[W]hen adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[10] A brief outline of the facts in these two cases is of assistance in appreciating how they compare with the instant case. In B.(J.), the accused commenced having sexual intercourse with his stepdaughter when she was only six years old. The abuse continued weekly, and sometimes more frequently, until she was fourteen. The victim was threatened with punishment if she did not comply and there was an instance of violence, apart from the sexual assaults. The accused's criminal record included a charge of attempted rape of an eight-year-old girlfriend of the victim. The accused's sexual abuse of his stepdaughter persisted after he had served his sentence for attempted rape. Because of this, the appellant’s counsel conceded that a sentence beyond the usual five-year range was required. The court upheld the sentence of eight years imposed by the sentencing judge.

[11] In D.(D.), the accused coerced four boys – ranging in age from 5 to 8 years – to engage in all manner of sexual activity for periods of time ranging from two to seven years. The accused stood in a position of trust towards the boys. He employed violence, threats of violence and extortion. In one instance, he held a boy over his thirtieth-floor balcony and warned him that he would be thrown off if he complained to anyone. The court upheld a sentence of nine years and one month.

[12] In this case, the appellant’s conduct was insidious. He abused his teenage daughter who had come to him for help. The acts also included full sexual intercourse, nearly daily. His final assault on his daughter in the home of his older daughter, after permitting her to consume alcohol to the point where she vomited, is particularly disturbing. Further, the abuse stopped only because his older daughter caught him. That said, without minimizing the appellant's conduct towards his troubled and vulnerable daughter, in the context of cases involving sexual abuse perpetrated by persons in a position of trust, these offences occurred over a relatively compact period of time. The undeniably major breach of trust is attenuated to some extent, relative to other cases of sexual abuse by a parent, by the fact that the respondent really had no prior relationship with his 14-year-old daughter before she came to live with him. The respondent did not employ physical violence, threats of violence or extortion. He pled guilty and expressed remorse and a desire for treatment. The sentencing judge was alive to these circumstances, as well as the fact that the respondent’s related criminal record was very dated.

[13] In R. v. P.M., 2012 ONCA 162, 282 C.C.C. (3d) 450, Rosenberg J.A., writing for the majority, after a thorough analysis of the case law, recognized the upward trend in the sentencing of sexual offenders in a position of parental trust and adopted and reasserted the principles set out in D.(D.). He explained that B.(J.) must now be read with D.(D.). At para. 46, he wrote:

[T]he court signalled in D.(D.) that the sexual abuse of a child will attract lengthy penitentiary sentences. In my view, where a father has committed repeated acts of incest with his daughter over many months, as in this case, it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years. Such a range is more consistent with this court's decision in D.(D.) and is also more consistent with amendments to the Criminal Code since B.(J.) was decided.

[14] While in our view, the sentence imposed was at the bottom of the range, we are not persuaded that the individual circumstances of the case render it manifestly unfit.

[15] We therefore grant leave to appeal but dismiss the appeal.

“Alexandra Hoy A.C.J.O.”

“K.M. Weiler J.A.”

“G. Pardu J.A.”