WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. Order directing matters not to be published for specified period. —(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) Failure to comply. — Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Court File and Parties

Ontario Court of Justice

Date: 2014-11-27

Court File No.: Brampton 13-10223

Between:

Her Majesty the Queen

— and —

W.H.Y.

Before: Justice J.W. Bovard

Heard on: August 12, 2014 and November 4, 2014

Reasons for Sentencing released on: November 27, 2014

Counsel:

• R. Levan, counsel for the Crown
• J. Pyzer, counsel for the defendant W.H.Y.

BOVARD J.:

Charges and Offence Dates

[1] This is the sentencing of W.H.Y. on two counts of sexual touching of his daughter who was under the age of 16 (s.151), one count inviting his daughter to touch his body with her mouth for a sexual purpose (s.152), one count of having sexual intercourse with his daughter (s.155), and to breaching a non-contact condition of his recognizance (s.145(3)).

[2] The sexual offences occurred between June 18, 2013 and July 30, 2013.

[3] The breach of recognizance occurred between August 5, 2013 and October 28, 2013.

[4] The Crown proceeded by way of indictment on all of the sexual offences and by way of summary conviction on the breach of recognizance.

[5] Counsel submitted an agreed statement of facts with regard to the sexual offences. It is exhibit 1.

Agreed Statement of Facts

W.H.Y. and T.C. are the biological parents of E.C. who in August of 2013 was 14 years old. T.C., E.C. and K.C. (E.'s sister) live in the Midwestern United States. V.Y. is Mr. Y.'s daughter from another woman. Mr. Y. is an alcoholic who was consuming alcohol at various points during the months of June, July and August 2013.

During April of 2013 T.C. and E.C. began to discuss T.'s mother's concerns regarding her lifestyle and choices she was making. T.C. believed that her father who was otherwise unknown to E. might be able to assist and so she contacted him and E. and her father began to communicate using Skype, a computer program that facilitates video calling. T. and E. decided to visit Mr. Y. in London Ontario where he lived in a basement apartment. They brought K.C. along on the trip. During their visit T.C. and Mr. Y. briefly rekindled their relationship. Additionally during this visit there was a family discussion which included E. and the subject matter was Mr. Y.'s prior criminal history including drinking and driving as well as a prior incident where Mr. Y. (18 years old at the time) had sexually assaulted a 9 year old girl. After staying with Mr. Y. in London for approximately one week, T., E. and K. left and travelled back to the United States.

W.H.Y. was advised by T.C. that E.C. had been sexually active.

E.'s school ended on June 13th and on June 14th T. dropped E. off with her father before going back to the United States either the same day or the next day.

On June 17th, 2013 E. tells her father W.H.Y. that T.C. is also in a relationship with a man whose first name is T.

On or about June 18th, 2013 there were a series of texts between E. and her father. Mr. Y. asked E. about whether she had experienced oral sex and whether she would like it if he did it to her, to which she responded that she would not like to have him do that to her and that he was her father not her boyfriend. He then told her not to think of him as a father, but rather as a boyfriend and indicated he would perform oral sex on her and that he wanted to have intercourse with her.

Later that evening Mr. Y. told E. to come downstairs to the jam room and he proceeded to undress her and they subsequently had vaginal sexual intercourse. Mr. Y. wore a condom and did ejaculate.

Between June 18th, 2013 until July 30th 2013 W.H.Y. had vaginal intercourse with his daughter on an almost daily basis. All of the incidents of intercourse took place in the rehearsal room on an air mattress on which E. slept. On at least two occasions during this period Mr. Y. asked his daughter to perform fellatio on him which she did. Additionally on one occasion during this time period Mr. Y. had E. pose naked and he took some number of photographs of her using a camera on his phone.

On Friday August 2nd 2013 E.C. and W.H.Y. came to Brampton to visit her half-sister V.Y. for the weekend. V. and E. had never met before. V.Y. lived in a basement apartment at (address removed due to publication ban). V.Y.'s boyfriend K.S. was also at her house on August 2nd 2013 as were two of V.'s friends. Everyone at the house was drinking, including E.C. who consumed 3 cans of beer and two glasses of wine. At some point in the evening E. vomited and was put to bed on the couch in the living room. V.'s friends subsequently left and everyone went to sleep. Mr. Y. was to sleep on the other section of the L shaped couch where E. was sleeping.

At some point later in the evening V. went back into the living room to check on E. When she entered the living room she saw W.H.Y. performing oral sex on E. and digitally penetrating her. E. woke briefly when V. was in the room and was aware of her father performing oral sex on her. Her pants and underwear were down and only still on one ankle and observed her father's head between her legs.

V. went back to her bedroom and shortly thereafter spoke to K.S. about what she had seen. E. then fell asleep and later woke up again at which point she put her underwear and pants back on. She vomited again and then asked W.H.Y. to go outside to get some fresh air and smoke a cigarette.

V. then came out of her bedroom and saw E. and Mr. Y. on the balcony having a cigarette. V. took E. back inside into her bedroom and subsequently confronted Mr. Y. Mr. Y. told V. "peanut, I'm fucked up". V. called T.C. before subsequently contacting police. After being dispatched the police arrived just after midnight, however by this time Mr. Y. had left the residence and efforts to locate him at that time were unsuccessful.

E.C. was subsequently transported to the Trillium Health Centre where a sexual assault kit was completed.

At 10:32 a.m. on August 3rd 2013 police received a call regarding someone worried about the wellbeing of Mr. Y. who they believed might be suicidal. Police were able to locate Mr. Y. who was found under a bridge on Steeles Avenue just east of Hurontario Street in the City of Brampton. He was arrested at 11:05 a.m. and taken to 22 Division.

When he was arrested Mr. Y. was in possession of a camouflaged knapsack, a reusable shopping bag, a condom, two cell phones, a 3 to 4 foot length of nylon rope with a receipt, a marijuana cigarette, a ziplock bag containing 2.75 grams of marijuana and 15 Percocet pills.

[6] The facts with regard to the breach of recognizance are that after the police charged him with the sexual offences, the court ordered him not to contact the complainant, her two siblings and her mother.

[7] He sent them each a letter apologizing for what he had done.

The Position of the Crown

[8] The Crown seeks a global sentence of 8 to 10 years, minus pre-trial detention.

The Position of the Defence

[9] The defence asks for a sentence of between 4 and 4 ½ years, minus pre-trial detention.

The Law

[10] Counsel submitted numerous cases with regard to the courts' pronouncements on the proper sentence in a case like this. As usual, none of the cases is sufficiently similar to the case at bar to serve as anything more than general guides to what an appropriate sentence might be. However, I thank counsel for the case law to which they referred me because it gave me a good idea of the range of sentences that the courts consider in cases such as this one.

[11] The most helpful case, which I find is binding on me is, R. v. B. (J.), [1990] O.J. No. 36, a decision of the Ontario Court of Appeal. The court stated on pages 2, 3 that:

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.

[12] The court appears to have agreed with counsel that "the usual range of sentences of this type of offence is from three to five years." The court indicated that "The length of sentence within that range…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" (p. 3).

[13] In addition to considering the jurisprudence in determining the sentence in this case, I directed myself according to sections 718 to 718.2 of the Criminal Code.

Mitigating Factors

[14] Defence counsel advised the court that Mr. Y. wanted to plead guilty from the outset after the police charged him. It was only on the advice of counsel that he waited so that counsel could review all of the disclosure and ensure that a plea of guilt would be appropriate. This is understandable and proper because of the serious nature of the offences.

[15] Mr. Y. has expressed remorse by his plea of guilt. He also expressed it in his pre-sentence report and by writing several letters of apology to the victim and the family members that were involved in the case, albeit by doing this he committed a criminal offence by breaching the condition of his recognizance that forbade him to contact them.

[16] Mr. Y. expresses a strong intention to get help through counselling to deal with his acknowledged pedophilia.

[17] Mr. Y. has served 481 days of pre-trial detention, 245 days of it in lock-down. During his incarceration he was confined with two other inmates in a cell built for two inmates. He had to sleep on the floor next to the toilet.

[18] By pleading guilty, Mr. Y. spared the victim and her family the ordeal of a trial.

[19] Mr. Y. had a troubled youth. He told the pre-sentence report writer that when he was about 7 years old, an adult male from his judo class sexually assaulted him. The man forced him to fondle him and to perform oral sex on him. Two years later, his older brother sodomized him. Mr. Y. described these incidents in the pre-sentence report.

[20] There is no evidence to confirm the veracity of Mr. Y.'s account of these incidents, nor is there any evidence that casts doubt on his report of them. The Crown did not contest their truthfulness. I give Mr. Y. the benefit of the doubt and accept his account of the incidents.

[21] Mr. Y. stated in his pre-sentence report that he felt ignored by his parents and he started getting into trouble when he was 13 years old. In addition, he spent one year in a psychiatric hospital. He also spent about one year in a reformatory/training school. He spent time in group homes and he ran away from them frequently. He was an alcoholic by the age of 18 years.

[22] The pre-sentence report states that Mr. Y. has been estranged from his siblings for many years. Both of his parents are deceased.

[23] Mr. Y. describes himself as a loner. His hobbies are reading and watching sports on television.

[24] He completed his GED in 2008. The pre-sentence report states that he does not have a "significant history of employment". He works now and then in menial labour type jobs. His main source of support is social assistance.

[25] He uses drugs, such as marijuana, occasionally.

Aggravating Factors

[26] Mr. Y. abused his 14 year old daughter. Section 718.2(a)(ii.1) of the Criminal Code states that abusing a person who is under 18 years old is an aggravating factor.

[27] In abusing his 14 year old daughter, Mr. Y. abused a position of trust in relation to her. Section 718.2(a)(iii) identifies this as an aggravating factor.

[28] The victim's impact statement shows that Mr. Y.'s abuse of his daughter had a severe impact on her. Section 718.2(a)(iii.1) lists this as an aggravating factor.

[29] The victim was 14 years old when he sexually assaulted her. Her mother, in an extremely ill-advised effort, sent her to live with him in order to help the victim to resolve personal issues that were leading her to act in negative ways. She was his troubled daughter who came to him for help and, instead, he sexually assaulted her, thereby making her plight even worse.

[30] In addition to sexually assaulting his daughter, Mr. Y. took pictures of her naked.

[31] Mr. Y. was extremely selfish in committing these offences against his young daughter, but the last one, where his other daughter caught him in the act on the sofa of her living room contained an element of careless demeaning and callousness that the other offences do not have.

[32] In addition, it is a reasonable inference that he caused great distress and pain that will last a long time to his daughter that caught him sexually assaulting the victim, her step sister. What a horrible thing it must have been for her to catch her father performing cunnilingus on and digitally penetrating his other daughter on the sofa of her living room after she had invited them over for a party. Not only this but she had to call the victim's mother to tell her that Mr. Y. was sexually abusing her, and then had to call the police on her own father.

[33] That this traumatized her is common sense and is evidenced in part by the fact that she has broken off all communication with Mr. Y.

[34] Therefore, Mr. Y. destroyed what appeared up to have been up to that night a good relationship with his other daughter (she invited him over to her home for a party), thereby spreading the damage and pain that he caused even further.

[35] With regard to the impact of the offenses on the victim, the court in R. v. B. (J.) noted on page 3 that "No expert psychiatric or psychological evidence was given as to the effect of the appellant's conduct on his stepdaughter." Unfortunately, this is the same situation in the case at bar.

[36] In these types of cases it is extremely important in order for the court to be able to assess the impact of the offense on the victim that the Crown adduce psychological and/or sociological evidence on which the Court can base its assessment of the severity of the consequences of the sexual assault on the victim.

[37] Without this type of evidence the Court only has at its disposal the generalized reasonable inferences that can be drawn that in these situations the victim suffered intense trauma. However, these inferences cannot inform the Court with regard to the specific victim in the case with which it is dealing. This has the unfortunate consequence of relegating the specific victim's trauma to a realm of generalities.

[38] In the case at bar I note that the victim's mother indicates that the victim lives with her again and that the behavioral problems that she hoped Mr. Y. would be able to help her with have not diminished. Indeed, one would expect that they have probably intensified as a result of what Mr. Y. did to her. The victim's mother told the Pre-sentence report writer that the victim has been diagnosed with bipolar disorder and is on medication. She is also in therapy in order to deal with the "backlash of what happened in Canada."

[39] In the pre-sentence report the victim's mother states that the victim believes that she is responsible for Mr. Y.'s legal predicament and that she feels guilty. She said that her daughter told her that she does not want Mr. Y. to go to jail. She feels that she led him on and that if she could she would move back in with him.

[40] This is at odds with the victim's impact statement, which she says that her father should serve 15 years in prison. She says that she has flashbacks and outbursts of anger and that she has been more violent.

[41] Mr. Y. admitted that he has been diagnosed as a pedophile. He told the pre-sentence report writer that he is sexually attracted to children. He has a criminal record for sexually assaulting two other young girls.

[42] In 1987, the parents of a 9 year old girl trusted him to babysit the girl and he took advantage of it, abused the trust that they put in him, and sexually assaulted her. He touched her vagina under her clothes on two separate occasions. He was convicted of two counts of sexual assault and served a 90 day intermittent sentence concurrent on each charge.

[43] In 1988, he was convicted of sexually assaulting another young girl who he was entrusted to look after. He fondled her vagina. The Court sentenced him to 18 months jail and 3 years' probation.

[44] The agreed statement of facts states that Mr. Y. was 18 years old at the time of these offences. Defence counsel submitted that Mr. Y. was 19 years old. Both of these ages are incorrect. The pre-sentence report lists his birthdate as November 26, 1960. Therefore, on March 25, 1987 when he was convicted of sexually assaulting the two 9 year old girls, he was 26 years old. And on May 24, 1988, when he was convicted of sexually assaulting the other young girl, he was 27 years old.

[45] Mr. Y. told the pre-sentence report writer that he "believes" that he completed treatment for sexual offending at the Ontario Correctional Institute. In addition, he attended counselling at the Ontario Family Guidance Centre. However, there are no records of any of this counselling.

[46] The only record that the pre-sentence report writer could find was from the Centre for Addiction and Mental Health, which is dated January 3, 1986. This is a "brief assessment" by Dr. P.G. Lynes that was completed following Mr. Y.'s sexual assault charges against the two girls that he was babysitting.

[47] The report says that Mr. Y. was not suffering from a major mental disorder, but he appeared to have a personality disorder, which was evidenced "by a long history of behavior disorder in childhood and adolescence, alcohol and drug abuse and antisocial behavior beginning in adolescence. In addition, [the offender] appears to have a serious program (sic) with addiction to alcohol".

[48] Mr. Y. told the pre-sentence report writer that he intends to take counseling while he is in jail for the offenses for which I am sentencing him today.

Sentencing Principles

[49] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions with one or more of the following objectives: to denounce unlawful conduct; deter the offender and others; separate offenders from society where necessary; assist in rehabilitating offenders; provide reparation to the victims and the community; promote a sense of responsibility in offenders, and acknowledgement of the harm that they do.

[50] Section 718.01 states that "when a court imposes a sentence for an offense that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct."

[51] Section 718.1 states that the fundamental principle of sentence is that it "must be proportionate to the gravity of the offense and the degree of responsibility of the offender."

[52] The principle of parity demands that sentences for similar offenses committed by similar offenders should be similar.

Disposition

[53] After considering all the circumstances, the law, and counsels' submissions, I find that the appropriate sentence for the sexual offences in this case is a global one of five years in the penitentiary minus credit for pretrial detention.

[54] Mr. Y. has spent 481 days in pretrial detention. I will accord him 1.5 value for each day. This amounts to 721.5 days. This is the equivalent of 24 months.

[55] This is fair because this is the same value that one receives when one is serving a sentence. In addition, the evidence is that for 245 days the jail was in a locked down situation. Also, Mr. Y. was confined with two other inmates in a cell that was designed for only two persons. He had to sleep on the floor next to the toilet.

[56] Therefore, on the sexual offences Mr. Y. is sentenced to a further 36 months in the penitentiary. The sentence is concurrent on all the sexual offences.

[57] In addition to this, Mr. Y. is sentenced to 60 days in jail for the breach of recognizance charge. This is consecutive to the 36 months.

[58] All of his sentences are consecutive to any other sentences that he may be currently serving.

Ancillary Orders

[59] The Court makes the following ancillary orders:

[60] Mr. Y. shall give a sample of his DNA as soon as possible. The invitation to sexual touching offense is a primary designated offense.

[61] There will be a section 109 order for life.

[62] There will be an order under section 743.21(1) prohibiting Mr. Y. from communicating in any way with the victim, or with V.Y., unless they give a signed, written consent to the warden of the institution in which Mr. Y. is serving his sentence.

[63] There will be an order under s. 490.012 of the Criminal Code that requires Mr. Y. to comply with the Sex Offender Information Registration Act (SOIRA). The offences of invitation to sexual touching (s.151 Criminal Code) and incest (s.155, Criminal Code) are listed as a designated offence under s. 490.011(a)(iii) and (xvi).

[64] Pursuant to s. 490.013(2.1) of the Criminal Code, the SOIRA order shall be for life. The reason is that this section states that the order "applies for life if the person is convicted of…more than one offence referred to in s. 490.011(1)(a). The court has convicted Mr. Y. of two counts under s.151, one count under s. 152, and of one count under s. 155, all offences referred to in s. 490.011(1)(a).

[65] There will be orders under section 161(1)(a), (b), (c). These orders will be for life. The order under subsection 161(1)(a) will have the exception that he may attend at the locations mentioned in the subsection only if accompanied by an adult female of at least 25 years of age. The reason for this is that it is highly unlikely that Mr. Y. would be a threat to any children that may be in these locations if he is thus accompanied.

[66] Defense counsel consented to the orders under s. 161 except for the order under subsection (a). He argued that an order under section 161(1)(a) that prohibits Mr. Y. from going to public parks, swimming areas etc. is not necessary because these are not places where Mr. Y. has offended in the past. Moreover, there is no indication that he is a predator who seeks out children in such locations. His offenses are committed when an opportunity presents itself, such as babysitting or as in the present case his daughter coming to live with him.

[67] These are good arguments, however, since he was 26 years old Mr. Y., who is now 53 years old, has been convicted of seven offenses of sexual assault against young children. He is a pedophile who has recently, in the pre-sentence report, admitted that he is still attracted sexually to young children. Since no evidence was called on the issue of the likelihood of Mr. Y. re-offending and/or whether he is a likely danger to young children attending public parks and the other places mentioned in section 161(1)(a), the Court feels that in order to protect young children it is best to err on the side of caution in this respect. Mr. Y. did not adduce any evidence nor did his counsel make any argument with regard to a particular necessity that would require him or make it beneficial to him or anyone else for him to attend at any of the locations mentioned in section 161(1)(a).

Released: November 27, 2014

Justice J.W. Bovard