WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) Mandatory order on application. — 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.

486.6 Offence. —(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.

Court Information

Court File No.: Halton 11-2307, 12-213

Date: 2012-07-31

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

B.L.

Before: Justice Stephen D. Brown

Heard on: February 13, May 24, July 16, 2012

Reasons for Sentence released on: July 31, 2012

Counsel:

Kelly Frew — for the Crown

Lungile Tinarwo — for the accused B.L.

Reasons for Sentence

Brown, J.:

[1] B.L. pleaded guilty before me to the following offences:

1. Sexual Exploitation contrary to s. 153(1)(a) of the Criminal Code
2. Incest contrary to s. 155(1) of the Criminal Code
3. Assault on C.S. contrary to s. 266 of the Criminal Code occurring in 1999
4. Assault with a weapon against T.L. contrary to s. 267(a) of the Criminal Code
5. Uttering threats to cause death to T.L. contrary to s. 264.1(a)
6. Unlawful possession of a firearm, a shotgun, contrary to s. 91(1)
7. Unlawful possession of a firearm, a rifle, contrary to s. 91(1)

[2] The first three counts proceeded by way of indictment and on the remaining four counts the Crown proceeded summarily.

[3] The sentencing was adjourned for the purpose of preparing a presentence report to May 24, and thereafter to July 16 for submissions on sentence and for the filing of an agreed statement of facts. A 'bare bones' admission of the essential elements of the offence was agreed to by the offender at the first hearing allowing me to make findings of guilt on the charges and to order a presentence report. On the last hearing date a more detailed agreed statement of facts was filed and agreed to as being correct by B.L. personally.

1.0 THE CIRCUMSTANCES OF THE OFFENCES

[4] I will set out the agreed statement of facts filed as exhibit 3 in these proceedings.

1.1 Assault with a weapon and utter threat:

[5] B.L. and the victim, T.L., have been in a tumultuous and sometimes violent marriage for the last 29 years. They have two adult children and one 14-year-old son together. On April 12, 2011, the victim advised her husband that she would be filing for divorce. They separated at that time but remained living in the same house. T.L. had the upstairs bedroom with a lock on the door and her husband moved into the basement.

[6] On July 23, 2011 at about 10:30 p.m., T.L. went upstairs to her bedroom to speak to her male cousin about a real estate purchase when her husband got another receiver and heard another man's voice on the line. The accused became enraged with jealousy and stormed upstairs to the victim's locked bedroom door. He was kicking in the bottom panel on the wooden door. The victim, fearing her husband, called her daughter, and asked her to phone the police and then hung up the phone. Her daughter, C.S. could hear the banging of her father against the door in the background when speaking with her frantic mother.

[7] B.L. managed to kick in the bottom panel of the bedroom door and reached in and unlocked the door. He entered the room and charged at his wife with a steel folding knife in his right hand. He had a knife over his head and he grabbed her by the throat and threw her backwards onto the mattress. He held her there with the knife over her head and he was threatening to, "fucking kill" her and, "fucking stab her". T.L. told her husband that police had been called and he told her to pack her bags and get out. Upon police arrival, officers noted two red striations on the neck of T.L.

1.2 Unauthorized possession of a firearm x 2

[8] When police arrived at the house they spoke with T.L. and she told officers that there were guns in the house. B.L. at first denied there were any guns in the house but then confirmed for police that there was an unloaded shotgun behind the door in the basement. Police Constable Webber attended the basement and located an unloaded 12-gauge shotgun sitting behind the basement door, propped up on its butt end. This shotgun was a 12-gauge Winchester Defender shotgun and it did not have trigger locks. B.L. indicated to police that was the only gun in the house. However the victim indicated that there was another one in a drawer in the basement. The offender maintains that he told the police that there was another firearm while the Crown disputes this. I do not think that a lot turns on this disagreement.

[9] P.C. Webber went back to the basement and located the following in a drawer:

1. One wooden stock sawed-off .22 caliber Squires Bingham Long rifle
2. Six loose 12gauge shotgun shells
3. One box of Federal .22 caliber hyper velocity long rifle ammunition (box holds 40 rounds but there are only 10 in the box)
4. One magazine containing 15 rounds of .22 caliber hyper velocity ammunition.

[10] B.L. did not have a license to possess either of the guns seized from his quarters in the basement. The Squires Bingham rifle had been sawed off by B.L. in his living room and due to these alterations, the barrel length of that weapon was reduced to 150 mm and is therefore a prohibited firearm.

1.3 Sexual exploitation and incest

[11] On Saturday, July 23, 2011, Halton Regional Police Service officers attended at the matrimonial home in Acton, Ontario. They were responding to a call regarding a domestic incident between T.L. and her husband, B.L. When speaking with T.L., police were given information that B.L. had sexually assaulted his daughter, C.S.

[12] B.L. is the biological father of C.S. and has two sons with T.L.

[13] C.S. was interviewed by the police on July 26, 2011 and she provided a videotaped statement disclosing the following:

[14] C.S. had been sexually assaulted by her father over the course of many years. The inappropriate touching started from a very young age and lasted until she was about 13 years old (1997). At first, it began as touching but when C.S. was about nine or ten years old, it turned into full intercourse. This lasted until she was about 13 years old. B.L. engaged in sexual intercourse with his daughter throughout this time period. The intercourse started when the family was living on C. Street in Acton. The assaults continued when the family moved to M. Street in Acton but they decreased in regularity as at this point, C.S. was now getting older and was more able to put up resistance to her father. B.L. would tell C.S. that because he was not using force, it was not considered rape. He also, on one occasion, attempted to force C.S. to perform fellatio on him by pushing her head towards his crotch.

[15] To facilitate the sexual assaults on his daughter, B.L. would kick his younger son, V.L., out of the house or use a broom to secure the door. No condoms were ever used but the offender would not ejaculate inside his daughter during intercourse. B.L. made his daughter feel as if the sexual activity between the two of them was a normal thing.

[16] The sexual assaults stopped when C.S. was about 13 years old and had started taking sexual education courses at school. She was finally able to stand up to him and demanded that he stop. Although the sexual intercourse stopped, her father continued to slap her buttocks and look at her breasts.

1.4 Assault

[17] When C.S. was about 15 years old (January 1999 to December 31, 1999), the accused called his daughter a "lazy bitch" because she would not do the dishes. Her father pretended to go to the basement but instead hid behind a door and heard C.S. made comments about her father indicating that he is an asshole and that she hated him. B.L. grabbed his daughter and threw her against the door to the basement. It caused her to suffer loose teeth, a sore jaw and a cut lip. Her friend was present for this and witnessed the assault.

2.0 THE CIRCUMSTANCES OF THE OFFENDER

[18] The offender is 52 years of age and until his arrest resided in the family home with his estranged wife. He has no criminal record.

[19] He is the youngest of four children and was raised in a stable environment. He did not suffer physical, emotional or sexual abuse or violence in his family life while growing up.

[20] At sixteen years of age he quit school after obtaining a grade 11 education and then started working because he said his father was ill and he wanted to help his family financially.

[21] He met his wife at 18 years of age and four years later they were married. They had three children, C.S., now aged 28 and two sons age 26 and 15. None of his children or his wife desire to have any further contact with him.

[22] He has been incarcerated since his arrest. His wife is in the process of securing a legal separation from the offender and is hopeful their financial and legal issues will end quickly.

[23] The offender has 'some' contact with his older sister who has Alzheimer's disease and 'some' contact with one brother. His parents are both deceased. He does not otherwise appear to have family or friends in the community that are supportive of him.

[24] His marriage was problematic from the outset. According to the author of the presentence report he was described as being "constantly angry and aggressive towards family members."

[25] The presentence report goes on to say that:

He was suspicious of their activities and would accuse his wife of infidelity routinely. Verbally abusive behaviour and threats of violence was a constant feature in the family home by the Offender. The Offender denied these characterizations of his behaviour in the home suggesting his wife was constantly involved in affairs from the outset of their marriage and thus he questions the parentage of his children. He did acknowledge the sexual abuse of his daughter suggesting the abuse occurred over a period of six months during her early teenage years.

[26] This is contrary to the agreed statement of facts that the offender agreed to after his plea when he agreed that the sexual abuse consisting of touching began when his daughter was very young and continued until it escalated to intercourse, when she was nine or ten and only ceasing when she was thirteen.

[27] Therefore there was a period when intercourse was happening that spanned a period of some three to four years. I suggest that his comments to the probation officer are simply an attempt to minimize his conduct. The agreed statement of facts were acknowledged and agreed to by the offender and entered as an exhibit after the presentence report was prepared.

[28] The offender has no assets other than the matrimonial home and has no idea where he will live upon his release.

[29] Regarding his employment history he stated to the probation officer that he has worked primarily in the trucking industry and his counsel indicated that he worked in construction and indicated that he last worked for a cement company as a driver just prior to his arrest on these charges. However when the probation officer contacted the personnel office of that company with the number provided to her by the offender they indicated that he had not worked for them for several years.

[30] The offender does not use narcotics or abuse alcohol and the only medication that he takes is for his asthma, high cholesterol and medication to assist him sleeping as he has been experiencing difficulties sleeping while in custody.

[31] During his interview for the preparation of the presentence report he expressed remorse for the verbal and sexual abuse of his daughter but expressed dismay that his family wants no contact with him upon his release. He stated that he did wish to have contact with his sons after he is released from custody.

[32] B.L. consulted Dr. Julian Gojer, a forensic psychiatrist and signed a release to allow the probation officer to speak with Dr. Gojer, but Dr. Gojer stated that he was not at liberty to disclose any information to the probation officer. Similarly there has been no psychiatric report filed or any evidence led at the sentencing hearing touching on his mental or psychological health.

[33] In her assessment, Ms. Cahill, the author of the presentence report, states as follows:

The Offender took little responsibility for his criminal behaviour. While he acknowledged frequent verbal arguments between himself and his wife he suggested that her behaviour was the cause of his conduct further he suggested that his daughter was a willing participant in the sexual abuse. He does not fully acknowledge or appreciate the harm he has caused others and does not fully take responsibility for his behaviour. Given such he remains a high risk to reoffend and should be barred from future contact with family members.

Emphasis mine.

4.0 IMPACT ON THE VICTIMS

[34] I have read and taken into account the victim impact statements filed by C.S. and T.L.

[35] Understandably they show the profound and lasting effects that these grave acts have had on them.

[36] C.S. describes a life of turmoil and emotional pain. She is now married and has two daughters of her own but speaks of her anger and sadness and emotional instability that she fears is having negative effects on her 5 year old daughter and her husband because she frequently verbally lashes out at them.

[37] She states that "I never felt comfortable at school or work, I always felt like people were staring at me, always felt the want and the need to go home and change my clothes or have a shower because I felt dirty." She has not made new friends since high school and speaks of an estrangement that she feels from her mother after she told her about the abuse in May 2011. She feels that her mother has not supported her and now feels very distant from her.

[38] She sometimes has nightmares about the events, and states that she and her husband never leave their daughters with others. She has recently taken a substantial pay cut to be with her children by working the night shift, while her husband works a day shift. She cannot trust her children in a small day care center and cannot find a day care center that allows for video over the Internet for monitoring and enhanced security.

[39] She has significant issues with her feelings of self-worth and her lack of confidence in her ability to engage in new tasks and social activities and relationships.

[40] Finally she is extremely fearful that her father will arrange for someone to hurt her while his is in prison and that when he is released she is afraid that he may hurt her and her family. She wants nothing to do with him in the future.

[41] T.L. states that her life of abuse from the offender has put her in a shell. She couldn't talk to anyone about the abuse she was suffering and is estranged from some of her brothers and sister. She says that she could only see her daughter when the offender was with her. She is wracked with guilt for putting her children through this environment and not getting out of it sooner. She speaks of having constant headaches, nightmares and insomnia. She as well is extremely fearful of retaliation from the offender when he is released from prison.

5.0 POSITIONS OF THE PARTIES

5.1 Position of the Crown

[42] The Crown seeks a sentence of 8 years incarceration on the incest and sexual interference charges. Regarding the assault charge on C.S. the Crown proposes that a further three months incarceration to be served consecutively would be appropriate. Regarding the information that includes the firearms charges and the assault with a weapon, the Crown seeks a further period of 9 months incarceration, consecutive to the sexual interference and incest charge and assault, but concurrent with each other, totalling a period of custody of 9 years incarceration.

[43] The Crown acknowledges that the offender has been in custody since July 23, 2011 and urges me to give him credit for time served on a one for one basis.

[44] The Crown also seeks several ancillary orders, common in a case such as this. The Crown also seeks forfeiture of the seized weapons and ammunition, and a section 743.21 order prohibiting contact with his wife or any of his three children while incarcerated. His wife and children have asked for a no contact order.

5.2 The Position of the Defence

[45] The defence seeks a shorter period of custody and asks that I also credit Mr. Lemoine for the time that he has spent in pretrial custody at the rate of 1.5 to one.

[46] Ms. Tinarwo takes no issue with the ancillary orders sought by the Crown.

[47] She stresses that the offender's pleas of guilty should be given considerable weight in the sentencing analysis as and that his expressions of remorse is genuine.

[48] She points out that her client has worked from a very young age to support his family. She suggests that he has worked seasonally for the concrete company as a driver notwithstanding the information that was received by the probation officer. No evidence was presented to contradict the author of the presentence report and she was not cross-examined on any aspect of her report.

[49] With respect to the argument for enhanced credit for time served counsel for B.L. argues that he has been subject to protective custody at his request for virtually all of the time that he has been in Maplehurst in pretrial detention.

[50] She points out that he was hospitalized with pneumonia for four days, that he has asthma and that the showed signs of an irregular heartbeat. She states that these conditions and his stay in pretrial detention amount to the exceptional circumstances allowing me to exercise my discretion to increase the credit for pretrial detention from 1:1 to 1.5:1.

[51] Counsel for B.L. states that he is quite despondent realizing that his family does not wish to have any contact with him as a result of his conduct towards them. I find it difficult to accept that he takes this position given the enormity of his actions and the effect that it has had upon them.

[52] Counsel for B.L. stresses that an important principle in her client's sentencing consideration is rehabilitation. She states that he wishes to avail himself of any rehabilitative programs but to date has not done so primarily because of the lack of rehabilitative programs in pretrial detention. However records filed from Maplehurst indicate that a program is available for anger management a program that the offender has professed to want to complete but there is no indication that he has tried to take any steps in that regard to enrol in that or any other program.

[53] Counsel for B.L. suggests that an appropriate range would be in the three to five year range for the sexual offences and because of the aggravating factors present more towards the upper end of that range.

6.0 ANALYSIS

[54] The relevant governing sentencing principles are set out in section 718 to 718.2 of the Criminal Code.

718. PURPOSE — 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 that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.01 OBJECTIVES — OFFENCES AGAINST CHILDREN — When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.1 FUNDAMENTAL PRINCIPLE — A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 OTHER SENTENCING PRINCIPLES — A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,...

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,...

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;...

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(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.

[55] Each sentence is an attempt to balance these sometimes-conflicting principles and apply them thoughtfully, judicially and wisely to the circumstances of the offender and the circumstances of the offences.

[56] While many of the cases cited to me by counsel are helpful in highlighting the approaches to be taken in offences of this nature no two cases are identical and I am acutely aware of how necessary it is to balance those factors and apply the correct principles to this offender in these circumstances.

[57] The dominating sentencing principles to be applied in cases where a father sexually abuses his child with acts up to and including intercourse are the principles of general and specific deterrence and denunciation, and separating the offender from society.

[58] Society is repulsed by sordid sexual acts that a predatory parent engages in with a child who is supposed to be under his care. A parent should nurture, love and respect and protect their children not use them as objects for the fulfillment of their own base desires. When a parent turns from a protector to a sexual predator, willing to abuse his own daughter for his sexual desires and with no thought of the consequences that will flow as a result of these actions to the victim and other members of their family, then his moral culpability is extremely high and society cries out for a punitive sentence that will not only serve to act as a warning to like minded offenders but to the accused as well that such conduct is repugnant and deserving of severe penalties.

[59] I agree with and am bound by the observations made by Moldaver, J.A. (as he then was) stated in R. v. D.D., [2002] O.J. No. 1061 (Ont. C.A), setting out the relevant principles, in a case that differs from the case at bar by having aggravating factors such as multiple victims. Nonetheless it is instructive and clear in setting out the relevant considerations. The Court states that:

34 The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

35 We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

36 In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

37 Two such consequences were identified by the Alberta Court of Appeal almost ten years ago. In R. v. S.(W.B.) and R. v. P.(M.), 73 C.C.C. (3d) 530 at 535, the court, composed of Major J.A. (as he then was) and McDonald and Quigley JJ. made the following observations:

When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious psychological harm to the victim.

When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent.

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.

Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child - that is, he or she may abuse a child sexually. There is no empirical way of proving that a particular child victim, when he or she becomes an adult, will do to some child what has been done to him or her. We do know that sentencing judges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both) who had stood in a parental relationship to him or her when he or she was a child.

38 As is apparent from these passages, with which I completely agree, the Alberta Court of Appeal was focussing on the potential long term effects of sexual abuse. Time alone will tell whether the children in the present case will fall victim to one or both of these consequences. In the short term, the immediate harm to them (a third consequence) is well documented. I have earlier referred to the devastating effects of the appellant's conduct and there is no need to repeat it. Manifestly, the situation in the four affected families is tragic.

39 A question arises in this case whether the appellant should benefit from the fact that unlike Stuckless, he has not been diagnosed as a pedophile. In particular, the appellant submits that because he has not been found to be a pedophile, this should be viewed as a mitigating factor weighing in his favour.

40 With respect, I disagree. If the appellant is not a pedophile and he does not suffer from some other psycho-sexual disorder that could account for his reprehensible behaviour, then arguably his degree of moral culpability rises significantly. Surely, that cannot translate into a mitigating factor weighing in his favour.

41 My rejection of this aspect of the appellant's argument should not be taken as an indicator that had the appellant been diagnosed as a pedophile, I would have concluded that the 9-year global sentence selected by the trial judge was too high. It was not.

42 In this respect, assuming that the appellant is a pedophile, I agree entirely with the views expressed by Abella J.A. at pp. 242-246 of Stuckless under the subheading "The Role of General Deterrence and Rehabilitation". In a nutshell, as my colleague points out, the sentencing objectives of denunciation, and general and specific deterrence, can and do play a significant role in the sentencing of pedophiles. Moreover, as Abella J.A. observes at pp. 244:

... Pedophilia is an explanation, not a defence. Society is entitled to protection no less from pedophiles than those who sexually abuse children without this tendency.

43 I agree wholeheartedly with this observation and would only add that in the case of pedophiles, while their degree of moral culpability may be somewhat diminished by virtue of their psycho-sexual disorder, absent successful treatment, they remain dangerous and represent a very high risk to society. As such, in the case of pedophiles who have not been successfully treated, I believe that in addition to the sentencing objectives of denunciation and deterrence, serious regard must be had to the objective of separating such individuals from society to protect our children and spare them from the risk of irreparable harm.

[60] This upward trend in the sentencing of sexual offenders in a position of parental trust that commit major sexual offences against their children has most recently been considered in R. v. P.M., 2012 ONCA 162, [2012] O.J. No. 1148 (Ont.C.A.). In that case I suggest that Rosenberg, J.A. writing for the majority recognizes the need for the upward trend after a thorough analysis of the case law. He adopts and reasserts the principles set out in R. v. D.(D.) and recognizes in my view that there is an evolution of more punitive sentencing in major sexual assaults against children by a parental figure in part as a result of recognition by the courts of Parliamentary action in increasing sanctions in these types of cases. He states at para 43:

43 …I will briefly discuss two decisions from this court: R. v. B. (J.), [1990] O.J. No. 36 and R. v. D. (D.) (2002), 58 O.R. (3d) 788.

44 In B. (J.), this court held that where a parent commits an offence of sexual abuse of a child in his care, and that abuse includes sexual intercourse, the normal disposition should be a penitentiary sentence in the range of three to five years imprisonment. The court held as follows:

The decisions of provincial appellate courts establish that, except in unusual circumstances, a penitentiary sentence is called for in all cases of sexual abuse of children to whom the convicted person stands in loco parentis if the abuse involves sexual intercourse. Such sentences reflect society's denunciation of this abhorrent conduct and the breach of trust reposed on parents or guardians of children. Both counsel agreed that the usual range of sentences for this type of offence is from three to five years. The length of sentence within the range of three to five years depends on a number of factors. 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.

45 B. (J.) was decided in 1990. Blair J.A. speaking for the court referred to decisions from this court and appellate courts of other provinces, especially the Alberta Court of Appeal. A review of those cases supports the three to five year range for incest, even where the abuse has been prolonged and even where the offences involved more than one child. B. (J.) has been repeatedly followed by this court. See, R. v. H. (D.A.) (2003), 171 C.C.C. (3d) 309 at para. 33; R. v. M. (W.W.) (2006), 205 C.C.C. (3d) 410 at para. 413; R. v. G.A.G. (2006), 206 O.A.C. 134 at para. 13; R. v. M.G., 2007 ONCA 837. However, this court's decision in B. (J.) must now also be read with the decision in D. (D.). While making it clear that he was not setting out fixed and inflexible guidelines, Moldaver J.A., speaking for the court, said this in D. (D.), at para. 44:

To summarize, I am of the view that as a general rule, when 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.

46 Each case will, of course, turn on its own facts and sentencing is a highly individualized exercise. However, the 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. The Criminal Code now provides that the primary objectives of sentencing are deterrence and denunciation where the victim of sexual abuse is a child under the age of 18 years. The Criminal Code also explicitly provides that abuse of a child under 18 years and abuse of trust or authority in relation to the victim are aggravating factors:

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim

shall be deemed to be aggravating circumstances,

(Emphasis mine)

[61] R. v. P.M. supra contains some similarities to this case. In that case the offender had no previous record. Over a period of 13 months he had engaged in acts of sexual intercourse with his then 13 or 14 year old daughter. Three improperly stored firearms were found at his house when he was arrested. He suffered from post-traumatic stress disorder as a result of his military service. In that case the offender video recorded some of the sexual assaults on his daughter and was in possession of other images of child pornography, which the court found to be a highly aggravating factor and is not present in the case at bar. The majority of the Court of Appeal found the total sentence of 6 years being comprised of 5 years for the sexual assault on his daughter and one year consecutive for the making of child pornography in totality to be a sentence that did not warrant appellate intervention, and although the court considered the sentence to be "lenient but not clearly inadequate" taking into account the totality principle and the unique circumstances of that case they showed deference to the trial judge and did not increase the sentence.

6.1 AGGRAVATING AND MITIGATING FACTORS CONSIDERED

Mitigating Factors

[62] Applying these principles to the facts of this case the mitigating factors that I took into account at this sentencing were some of the following:

• The offender has no previous criminal record
• He pleaded guilty to the offences thus sparing the victims the ordeal of testifying and saving considerable court resources (although only on the day of the preliminary hearing on the incest charge and one week before the trial date scheduled for the charges against his wife). Thus the victims had some stress and trauma in having to be prepared for trial by the Crown and having to review their witness statements, expecting to have to confront the offender at a trial
• The offender has worked and supported his family for a good deal of his life
• The offender has expressed remorse for his conduct to the probation officer and in his statement to this court prior to sentencing
• He does not have alcohol or substance abuse issues
• He expresses a wish to engage in rehabilitative programs even though to date he has not availed himself of any opportunity to do so despite the information from Maplehurst that an anger management program is available for inmates.

Aggravating factors on the Sexual Interference and Incest and Assault Charges

[63] Unfortunately for the offender the list of aggravating factors far exceeds the mitigating factors in this sentencing.

[64] I would have appreciated a more detailed agreed statement of facts to assist me in this sentencing. For instance, I have before me the fact that sexual touching occurred at a very young age but I am not aware of what that age was. Was the victim two years or eight years of age when the inappropriate touching began?

[65] Also, particulars of the sexual touching were not provided to me. Did it involve fondling, digital insertion, or touching over the clothes? When did it start? How frequent was it? All of these factors are important in the determination of a just and fit sentence.

[66] That said I am mindful of the difficulties that counsel for the defence and Crown face when trying to draft a statement of facts that involves the delicate balancing of facts that the Crown wishes to put before the court to support the charges against the facts that the accused is willing to concede to counsel and the court.

[67] The ultimate goal in this endeavour seems to be to put as may relevant facts before the court as are necessary to make a finding of guilt and to give an appropriate sentence by making concessions on both sides sometimes by way of obfuscation of the facts to enable the avoidance of the trauma of having the victims testify. This obviously makes sentencing on a case such as this more difficult.

[68] The aggravating factors that I took into account are the following:

• These offences regarding his daughter commenced when she was at a very young age. It started first as inappropriate sexual touching and progressed to include full intercourse for a period of 3 to 4 years commencing when his daughter was 9 or 10 years of age
• This was a manifest and significant breach of trust of a father against his young defenceless daughter
• He engaged in unprotected sexual intercourse with his daughter
• Intercourse continued for a period of three to four years until his daughter was able to resist his assaults, thankfully from the strength given to her by the maturation process and the information she received from her courses at school indicating how wrong this behaviour was on the part of her father
• He does not accept full responsibility for his conduct and states to the probation officer that his daughter was a "willing participant" in the sexual abuse. He shifted and continues to this day to deflect the blame for his conduct to his daughter by implying that he is somewhat less blameworthy because she "was a willing participant" in the sexual acts – the fact that anyone much less a father could consider a girl of those age ranges to be capable of consent to sexual touching and intercourse shows a profound lack of comprehension about basic societal tenets of children and their ability to 'consent' to sexual abuse and the role of a parent as a protector not a predator
• He was an abusive and controlling father and husband with an explosive temper that left the whole family in fear of what he could do
• He told C.S. that because he was not using force that sexual intercourse with her was not rape and generally counselled her to consider his actions as 'normal' behaviour
• He would lock his son out of the house or block the door with a broom to ensure that he was not detected while he was abusing his daughter
• The concurrent and constant abuse that he engaged in with her mother effectively isolated his daughter and deprived her from confiding in her mother about her abuse. His tyrannical and brutal rule of the family left a fear in his daughter and her mother that created a climate where she would not feel safe in standing up to him or reporting him to the authorities or even to her mother
• There is no psychiatric or psychological evidence before me to allow me to assess whether any disorders played a role in these offences and if so what his risk of reoffending may be and what may be the treatment options open to him and the programs or counselling that may be effective and appropriate in these circumstances
• Prior to his arrest there is no evidence that he engaged in or took any counselling or other steps towards rehabilitation – it appears he stopped his sexual abuse of his daughter only because of her growing maturity and ability to stand up to him and rebuff his advances rather than because of a realization on his part that his conduct was reprehensible, deviant and criminal
• He has no community supports, friends or family that appear willing to support him upon his release from custody

[69] Ms. Tinarwo urges me to follow the court of appeal authority in the R. v. B. (J.) supra decision. She has also provided to me the case of R. v. C.O.L., [2010] O.J. No. 2820 (Ont. Sup. Ct.). In that case Code, J. sentenced a young man to a 3 ½ year period of custody before credit for pretrial custody for an incest and sexual assault charge that was committed with his half sister who was 16 at the time and he was some 6 years older. He had a significant criminal record for crimes of violence and was under a deportation order. Two acts of non-consensual intercourse occurred during one day when the victim was visiting him from the United States. That case is distinguishable on many factors however. First it occurred on a one-day period and was not repeated for a three or four year period as are the agreed facts in the case at bar. Second, it does not involve a father daughter relationship, which I consider to be a greater breach of trust. Finally and most importantly, Code J. makes no mention of Moldaver's, J.A decision in R. v. D. (D.). I also note that Code, J. did not have the benefit of the recent decision of R. v. P.M., because of course his decision predates the release of P.M by two years.

[70] I was also provided with the case of R. v. D.A.H., [2003] O.J. No. 143 (Ont. C.A.) by counsel for B.L. That case involved a stepsister as the victim and an age disparity of 10 years with the victim being 14 years of age at the time of the offences. Sexual intercourse occurred for the period of about one year and the aboriginal offender who stood in a position of loco parentis to the victim voluntarily disclosed the offences to his psychologist and gave a full statement to the police. In that case the Court of Appeal gave a conditional sentence of two years less a day. It appears that the Court recognized the positive rehabilitative steps that the offender had taken and his horrific upbringing as well as his aboriginal heritage in fashioning a sentence that best applied the sentencing principles to the facts of that case and that offender.

[71] Taking all of the above into consideration and giving due credit and weight to the appropriate sentencing principles and the mitigating and aggravating factors that I have found in this case, and accepting as I do that our Court of Appeal in P.M. has recently signalled the need for an upper trend in sentencing in these types of cases, I am of the view that the appropriate global sentence in this case is the one that the Crown is asking for, being one of 9 years.

[72] I agree with Ms. Frew's analysis of the case law and I find that the aggravating factors far outweigh the mitigating factors in this case. B.L embarked upon an almost decade long rein of horrific abuse of his daughter and intimidation and abuse of his wife. His ready access to weapons and propensity for violent outbursts of temper could only serve to enhance this family's abject terror of living with him.

[73] In relation to his daughter, his sexual assaults against her were continuous, over a lengthy period, and escalated from sexual touching up to unprotected intercourse that began when she was only 9 or 10 and continued until she was 13.

[74] Cessation of this abuse occurred only because of her strength of will and not because of any realization on his part that his actions were wrong. The fact that he said to the probation officer preparing the presentence report that his daughter was a willing participant in the acts shows just how little he comprehends the years of abuse that he visited on his daughter even now.

[75] Absent any psychiatric evidence that he is treatable or not a danger to his family or society I must presume that he is both a danger to his family and the public at large in light of his conduct over all those years and his present lack of understanding of the nature of the offences and the effect that it has had on his family. As such it is particularly necessary to separate him from society for a lengthy period of time to protect the public and to address the principles of denunciation and deterrence both general and specific.

[76] I believe that an appropriate sentence for these offences would be one of 8 years concurrent on both counts.

[77] His assault on C.S when she was 15 was particularly brutal and resulted in her suffering loose teeth, a sore jaw and a cut lip. This was done in the presence of her friend. It was, in my view, a particularly degrading assault and served to maintain the terror and control that the offender wished to exert over this victim. I am of the view that this assault warrants a further period of consecutive custody of 3 months imprisonment.

[78] The effects of the abuse on the victims are profound and continuing. Both live in terror of his anger and what he may do to them when he is released or even arrange to have done to them while he is in custody.

[79] Dealing with the second information arising from the events of April 12, 2011 where the Crown proceeded summarily, I note that the assault against T.L. was horrific and persistent. The offender kicked a portion of her locked door in to gain access to her bedroom and then charged at her uttering threats and brandishing a knife and causing red striations on her neck. Fortunately he broke off the attack when he was told the police were called and T.L suffered no serious injuries but the effect upon her has been profound.

[80] When he was kicking in her bedroom door and she was on the telephone to her daughter C.S. she could not have known whether he was unarmed, armed with a knife or even with the sawed off rifle or the shotgun that he kept in his house with readily available ammunition.

[81] Ms. Tinarwo states that B.L. had the guns in the house for a long time and that he used them 'primarily' for hunting. I know of no hunter who finds it necessary to saw the barrel of a rifle down to a prohibited weapon length but I can think of many reasons for doing so if you wish to have a readily available, short rifle for the purpose of intimidation or for use at close quarters. That was a just one more tool that B.L. used in his destruction of his family.

[82] Accordingly for the Assault with a Weapon charge and the Threatening and Firearms charges the appropriate sentence in my view would be one of 9 months in totality consecutive to the charges against C.S. but concurrent to each other.

[83] Therefore the global sentence in my view should be one of 9 years incarceration less credit for time served.

7.0 CREDIT TO BE AFFORDED FOR PRETRIAL CUSTODY

[84] I have reviewed B.L.'s institutional records from Maplehurst to allow me to consider whether or not it would be appropriate to grant him enhanced credit for time served.

[85] I have also considered the cases of R.v. Camara, [2012] O.J. No. 1788 (Ont. C.J.), R. v. Abubeker, [2011] O.J. No. 2927 (Ont. C.J.), R. v. Johnson, 2011 ONCJ 77, [2011] O.J. No. 822 (Ont.C.J.), R. v. Simoes, [2012] O.J. No. 1002 (Ont. Sup. Ct.), and R. v. D.A.J., 2011 ONSC 5330, [2011] O.J. No 4026.

[86] When interpreting the provisions of s. 719(3) and 719(3.1) I am mindful of the fact that Parliament brought in this amendment effective February 22, 2010 and that generally it was enacted to limit the common practice as then existed in the courts of allowing credit for pre-trial custody in a ratio that was generally fixed at 2:1.

[87] The reasons that existed for that practice was that it was recognized by the Courts that pretrial detention is generally more arduous than post sentence custody. Provincial remand and holding centers are overcrowded, lacking in rehabilitative programs and an inmate serving time before he or she is sentenced is not entitled to statutory remission or parole eligibility.

[88] That said, it must be assumed that Parliament was cognizant of those factors when they enacted the Truth in Sentencing Act.

[89] Although I find the points made by Green, J. in Johnson, supra to be thoughtful and compelling, I agree with other cases such as Camara, Abubeker, Simoes, and D.A.J. that following Johnson would generally automatically credit each inmate with enhanced credit of 1.5 to 1 because time spent in presentence custody is not considered by federal or provincial correctional plans when assessing parole eligibility or statutory remission. To do so in my view would result in effectively ignoring the will of Parliament.

[90] I do not see anything particular harsh or onerous in B.L.'s circumstances of his pretrial custody. It is true that he contacted pneumonia while in custody, but he was hospitalized and his medical needs were looked after by way of treatment and medication. One cannot say that he would not have developed pneumonia even out of custody on the information that I have before me I see no causal link to that disease and his incarceration. Similarly, the fact that he has asthma does not persuade me that this is a case where enhanced credit should be granted.

[91] He is in protective custody at his own request and there is no compelling argument before me that simply because an inmate requests protective custody that the conditions of protective custody are such that there should be an enhancement of credit. There are no instances of him being assaulted or threatened while he has been in custody.

[92] He has not attempted to even get into the anger management program offered at Maplehurst and there is no evidence before me on the record that he has been thwarted in his attempt to get into rehabilitative programming because of lack of space or programs.

[93] There is nothing in his institutional history or medical conditions that I feel warrants enhanced credit in this case so I decline to grant it for any time spent prior to his plea of guilty.

[94] However I feel that he is entitled to enhanced credit on a 1.5:1 basis for time spent in custody after his plea of guilt. Even though a presentence report was requested by the defence, if they had not requested it I would have ordered one so that I could make the best assessment of what an appropriate sentence in this case would have been. I am of the view that B.L. should not be penalized in this case because he was waiting for reports to be prepared that were beyond his control. As well the adjournment requested by his counsel from the date scheduled for the first sentencing hearing was reasonable in my view as they only received the PSR on the morning of the sentencing and did not have sufficient time to properly review the report and its disclosures and to make sentencing submissions.

[95] According to my calculation, B.L is entitled to credit for presentence custody from July 23, 2011 to the date he entered his pleas of guilt on February 13, 2012 a period that I calculate to be 205 days or a period of approximately 6 months and three weeks.

[96] I will give him enhanced credit from February 13, 2012 until July 31, 2012, which I calculate to be a period of 169 days. Applying a 1.5:1 ratio to that he is entitled to a credit of 253 days or approximately 8 months and one week.

[97] Therefore I calculate the total credit to be applied to the sentence to be a total of 15 months.

[98] I will apply this credit to the sexual offences against C.S. so taking into account pretrial custody he will be sentenced on the incest and sexual exploitation charge to a period of 6 years and 9 months.

[99] The sentence on the assault against C.S. will be a consecutive sentence of 3 months in custody.

[100] The sentence on the charge of assault with a weapon and threatening charge will be 9 months concurrent to each other but consecutive to the offences against C.S.

[101] The accused is sentenced to a period of 3 months in custody on each firearms charge, concurrent to each other and to every other charge.

[102] Therefore I sentence B.L. to serve a period in the penitentiary of 7 years and 9 months from this date onward.

Ancillary Orders

[103] B.L. is ordered to provide a sample of his DNA pursuant to s. 487.051 of the Criminal Code for inclusion in the data bank on the charges of incest and sexual exploitation, which are primary designated offences under section 487.04 of the Code.

[104] Pursuant to s. 490.012 of the Criminal Code, there will be an order that the offender comply with the Sex Offender Information Registry Act for a period of life. The convictions under s. 153 and s. 155 mandate this order.

[105] Pursuant to s. 109 of the Criminal Code the offender will be prohibited from possessing or acquiring any firearm or any other item set out in s. 109 for life.

[106] Pursuant to s. 161(1)(a)(b) and (c) of the Criminal Code the offender B.L. is prohibited for life from:

• attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare center, schoolground, playground or community center
• seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; or,
• using a computer system within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years.

[107] The Crown also seeks forfeiture of the seized weapons and ammunition and I agree that is appropriate. All firearms and parts thereof and all ammunition seized from the offender are hereby ordered forfeited to the Crown.

[108] Finally pursuant to s. 743.21 of the Criminal Code, B.L. is prohibited from communicating directly or indirectly with C.S. or any members of her immediate family including her husband and her children, T.L., V.L., and B.L. Jr. during the custodial period of this sentence, except through legal counsel for the purpose of dealing with any legal matters.

[109] Victim fine surcharges are waived in light of the custodial sentence.

Released: July 31, 2012

Signed: "Justice Stephen D. Brown"

Addendum: On August 17, 2012 an amendment to the SOIRA order was requested by the Crown and granted. The period of time on the Sex Offender Registry, to comply with Sex Offender Information Registry Act is life not 20 years as in paragraph 104.