Court Information

Information No.: 14-13713

Ontario Court of Justice

Her Majesty the Queen v. L.O.

Reasons for Sentence

Before: The Honourable Justice M.S.V. Felix

Date: April 17, 2015, at Oshawa, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 AND 517(1) OF THE CRIMINAL CODE OF CANADA BY ORDER OF HER WORSHIP JUSTICE OF THE PEACE D. MECOY, ONTARIO COURT OF JUSTICE, DATED SEPTEMBER 24, 2014.

Appearances

J. Barrett – Counsel for the Crown

E. Prutschie – Counsel for the Defendant

Reasons for Sentence

FELIX, J. (Orally):

The defendant pled guilty on March 17, 2015 to count one on this information alleging the offence of sexual interference related to the complainant and victim G.O. contrary to Section 151 of the Criminal Code of Canada.

The Victim Impact Statement

At the outset I would like to recognize the victim, the family, and the parents for the victim impact statements and the window into the effect that this offence has had on the complainant, the family, and their relationship.

The complainant sets out in a simple manner the breach of trust that has occurred. Her parents set out in detail the magnitude of the impact on their young family.

I'm struck by the unstated tone of guilt in the victim impact statements and it is clear that the complainant's parents imagined that they were doing the right thing by having their daughter cared for by loved ones; they presumed no harm would come from loved ones.

A criminal sentencing sometimes appears to the general public to be about the accused before the court and that is because primarily it is about the accused before the court. The victim impact statements have provided me with relevant and necessary information and I thank the family for providing them.

The complainant is the only grandchild of the defendant. In September of 2014 contact was made with the complainant's parents with a suggestion to get medical attention for their daughter. With respect to the facts in this matter, at the time of the interview with the complainant in September 2014, she was five years old and it is important that I set out clearly the facts in the sentencing.

She reported that Papa had been putting his hands under her underwear between her legs, but he did not take her underwear off, that she would pull his hand out and he would do it again, and this sequence was repeated. It was done while watching television shows, he would be rubbing her, he didn't say anything, this happened a number of times. There were other occasions where he would only be wearing a shirt. She also described touching his private parts a few times, touching his front with her hand. At times a discharge was the result, and that is to say masturbation occurred with discharge, requiring it to be cleaned up, and in the disclosure by the complainant, that her grandfather required her to obtain a paper towel to clean it up.

I understand that the gentleman before the court and his spouse, the complainant's grandmother, were caregivers on a regular basis, on regular occasions before and after school, full days during the summer, there would be sleepovers and the factual basis for the plea establishes that this occurred on multiple occasions both at the defendant's home and the complainant's home for approximately two years between the ages of three and five.

The Position of the Defendant

The Defendant submits that twice the minimum sentence is appropriate: 90 days in jail plus probation and ancillary orders.

The Position of the Crown

The Crown submits that 18 months to 2 years less one day is the appropriate range of sentence.

Mitigating Factors

The Defendant pled guilty. He indicated his intention to do so at an early stage of the proceedings. His counsel is quite correct to point out that this is a significant factor. The allegations involve a child and the defendant. There are no independent witnesses to the crime.

The complainant, the victim in this case, was a toddler at the time the crime commenced. The preparation and support required to assist the complainant with the court process alone would have been significant. There would be possibly a preliminary inquiry and if not at least a trial to prepare. This case would have been before the court for a few years.

I accept those submissions on the part of the gentleman before the court.

The Defendant admitted some culpability to family members prior to police becoming involved. When the police became involved, he initially denied the event, but eventually confessed.

I keep in the foremost of my mind that nothing that I will say or do today to this gentleman will repair what has been done to the complainant and I appreciate that, or put her in a better place. But at least she did not have to go through the process of trial in this matter.

It's important to keep in mind that there is a presumption of innocence in criminal law. This presumption does not shift unless or until the case is proven beyond a reasonable doubt. There are, unfortunately, many cases similar to the case before the court where a conviction is not the end result, but the consequent impact on the family, the victims or complainants in those cases.

I find that the plea of guilt in this case is a significant mitigating factor. Any criminal prosecution, as I have outlined, poses some attendant cost on the complainant. Simply waiting for a trial is agonizing. While there are professionals who assist the Crown Attorney with preparing witnesses for trial, even with this assistance the impact is often significant. Where there are child complainants this cost is high.

I do not know at this time what the cost will be to the complainant as a result of this gentleman's actions. No one knows the total cost to her, but I believe that going through a lengthy criminal prosecution would have posed at least the potential of further attendant harm to her. I have listened to the agony of her parents during this hearing. There is no question that a lengthy trial would have had a significant and profound impact on them.

The defendant knows all of these things because he is represented by experienced criminal counsel well versed in these matters. Nevertheless he entered a guilty plea.

He has no prior criminal record.

The third factor in mitigation is Dr. Peter Sheridan, psychologist, who has examined this gentleman and administered several instruments to assess risk. His conclusion is that the defendant is capable of rehabilitation and is at a low risk to reoffend.

Factors Neither Mitigating Nor Aggravating

The gentleman does not suffer from a substance abuse problem. And there are no significant medical issues that I need to consider that would be associated with his advanced age.

Aggravating Factors

There are numerous aggravating factors in this case.

The Criminal Code assists me with addressing the appropriate sentencing principles in this case. Section 718.01 of the Criminal Code codifies that the primary consideration in sentencing for offences involving the abuse of children are the objectives of denunciation and deterrence.

Section 718.2(a) provides that the fact that a child was abused and the fact that there was a position of trust is aggravating.

Section 718.2 provides other considerations that are also relevant to sentence.

I have been assisted by the submissions and cases provided by counsel. I will not go through every case provided by counsel or discussed in submissions. I will go through a few of the cases that I have found helpful in guiding me on the difficult decision that I have to make today.

In R. v. A.N.C., a decision of Mr. Justice Nordheimer, in the Superior Court of Justice, outlined an important consideration in the context of a breach of trust in an aggravated assault matter.

At paragraph 6 in part he said:

"….I begin by stating what should be obvious, there's no group in our society that is more defenceless and therefore more deserving of protection than children, especially infants. They not only rely on society generally for protection, they rely particularly on their parents for such protection. When a parent fails in his or her duty to provide that protection it represents conduct that is especially reprehensible because it exposes completely innocent and extremely vulnerable members of our society to harm at the hands of the very people whom they ought to be able to trust the most. That fundamental principle is not only a self-evident truth, it is itself codified as one of the sentencing principles set out in Section 718.2 of the Criminal Code …."

Those wise words are also applicable to this case speaking generally about the magnitude of the breach of trust. As I have already outlined, the parents here in this case had a right to expect that their child was safe with loved ones.

This gentleman's previous good character is of limited weight in this sentencing: R. v. Profit.

The previous good character is not something that I ignore, but it is of limited weight. When I think about this case of Justice Nordheimer and some of the other cases, really the crux of the breach of trust is that parents have an expectation that they could leave their child with loved ones, family members. It is a concern that all parents have, a choice, do you leave your child in a daycare with strangers or with family. And here, when I review the victim impact statements, I can see the torturous thoughts that have occupied the parents in this matter.

I have considered as well a case, R. v. C.M.R., an Ontario Court of Appeal case at paragraph 14:

"Strict maintenance of the trust relationship between parents and children, particularly children whose vulnerability and needs are heightened by young age, developmental difficulties or conditions such as FAS, or other similar factors, is an integral component of responsible and civilized community life in Canada. Few, if any, other relationships in society will attract more rigorous scrutiny by the courts in their application of the law in order to protect against the abuse and exploitation of vulnerable persons by those to whom their care and protection have been entrusted."

Now paragraph 16 in that case, Madam Justice Cronk concluded:

"As well, this court has long emphasized that the imposition of substantial sentences is essential to meet the purposes of sentencing in order to protect defenceless children from mistreatment by their parents or other caregivers."

In R. v. D.R., at paragraph 8, again the Ontario Court of Appeal in a case addressing the applicability of a conditional sentence said:

"While sentences imposed by sentencing judges attract considerable deference from this court, on the facts of this case, we conclude that the governing principles of denunciation and deterrence, both specific and general, cannot be satisfied by a conditional sentence. This court has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where, as here, the sexual violation is of a vulnerable victim by a person in a position of trust. In addition, circumstances that involve multiple sexual acts over an extended period of time and escalating in intrusiveness generally warrant a severe sentence…."

I will not cite all of the cases relied on by the Court of Appeal, but this case is of assistance, first of all, because of the duration of the acts in this case. This is not a single event or an event borne out of impulsivity. These actions were taken, by this gentleman before the court, over an extended period of time on multiple occasions. And to a degree when I think about the genital contact with this gentleman's private areas, that escalation and intrusiveness is present.

In R. v. R.D., Mr. Justice Rosenburg of the Ontario Court of Appeal once again, at paragraph 20:

"I will deal first with the adequacy of the sentence. I agree with the Crown that this sentence is manifestly inadequate. I have described the conduct above. This was a prolonged course of conduct involving the appellant's own daughter. It represented a serious breach of trust. In addition, the appellant used alcohol on two occasions to put the complainant in an even more vulnerable position. The offences have had a serious impact on the complainant. The range of sentence suggested by Crown counsel at trial of fifteen months to two years less one day was the appropriate range given the seriousness of the conduct, even taking into account the appellant's lack of criminal record and good work record."

In this particular case at trial, the defendant received a 90 day sentence. The Court of Appeal found that sentence to be manifestly inadequate, declined to impose a conditional sentence and imposed 12 months custody.

Last of all, the case of R. v. D.D., again, the Ontario Court of Appeal. At paragraph 34 the Court of Appeal discusses the fact that:

"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 Section 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."

At paragraph 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."

The Court of Appeal goes on to cite the Alberta Court of Appeal in Paragraph 37 and on through to paragraph 44. To summarize, some of the self evident observations we make in cases such as this, including the impact on the child, which I have already touched on, the fact that we do not know the future impact on that child, the connection between sexual abuse and childhood and other difficulties later on in adulthood.

Paragraph 44, the Court of Appeal summarized:

"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."

The Court cites the authority for that proposition.

Paragraph 44 is an oft cited passage from the Ontario Court of Appeal in cases such as this and in cases where there are other aggravating factors.

I find this case instructive because it guides me and the cases that I have outlined highlight the many operative sentencing considerations in this case.

The conduct in this case spans approximately two years on multiple occasions. There is an escalation from touching to requiring the child to manipulate the defendant sexually. I find it particularly egregious that the child was then sent to clean up the mess.

Psychiatric Report

I will continue on with further analysis of the aggravating factors in this case.

The psychiatric report from Dr. Sheridan discloses some limits to the insight into the offence available to the defendant. While there is no question that he is remorseful, he did not appear to recognize that he had already caused damage to his granddaughter. That this was not a speculative harm in the future.

He held a distorted view that young children are sexually aware and enjoy sexual pleasure in a manner similar to adults.

Finally, over the past ten years he had been aware of a sexual interest in female children, teenagers and adults. No steps were taken to address this behaviour or this interest.

Absence of Penetration is Not a Mitigating Factor

I have considered the Ontario Court of Appeal's guidance in R. v. Stuckless where the Ontario Court of Appeal noted, and I quote in part:

"The absence of penetration does not automatically relegate the sexual abuse of children to the "lower range" of sexual offences. There is no question that "additional force", "collateral crimes", and penetration are aggravating factors. But their absence does not thereby transform them into mitigating circumstances nor neutralize the other aggravating factors found in this case: the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of their victims. These offences were individually and collectively, unconscionable."

Age of the Victim

The abuse, in this case, commenced when the victim was approximately three years old. This is a highly aggravating factor (R. v. R.T.M.).

The Duration of the Crime

As I have already outlined, the victim was sexually abused, multiple times, over a two year period.

While a survey of sentencing authorities reveals a wide variety of time frames ranging from decades, to years to months, the cases are highly dependent on the particular facts and the particular offender. Certainly where the sexual abuse is over a prolonged period of time, it is my respectful view, that this should increase the range of sentence. The authority for that proposition is R. v. D.D.; R. v. B.(J.), Ontario Court of Appeal decision; again R. v. M.D..

Impact on the Family

Leaving aside the impact on the victim and the family as a whole, the defendant has also had a significant impact on his own family and his son's family.

The impact on his wife is simply unfathomable.

The impact on the relationship between his son and his wife is enormous. The impact on the family, catastrophic.

Conclusion with Respect to Sentencing Principles

Each sentencing is a specific exercise requiring an individualized approach to the particular offender.

I must try to impose a sentence similar to sentences imposed on similar offenders for similar offences. This is a challenge in any case, but particularly challenging when dealing with an elderly first offender.

I would also cite another important consideration. Many of the sentencing cases in this area address the availability of a conditional sentence. Parliament has removed this sentencing option. In my view, sentences in this area of law should track higher overall. I have not found any decisions involving the exact same circumstance, not surprising. I have referred to a decision of a senior Judge in this region, Mr. Justice DeFilippis. R. v. J.(A.) in which Justice DeFilippis sentenced the accused to 18 months incarceration. That case involved an elderly person, and grandfather. It involved two complainants. It involved a longer period of time. And it involved more intrusive sexual acts, for example, forcing the child to perform oral sex. The 60 year-old, in that case, had no criminal record, had been in Canada for 35 years, and was steadily employed.

I recognize that a jail sentence must be the minimum needed to meet the aims of the balanced sentencing principles and tailored to the particular offender. This is a challenge in most cases, but particularly in this case. And I am aware that a jail sentence for an offender of advanced age is particularly punishing. I am also aware and recognize that I should not over-emphasize the consideration of rehabilitation, but nor should I ignore the potential for rehabilitation identified in Dr. Peter Sheridan's report.

I must also seek the sentencing goal of proportionality. As the Supreme Court of Canada outlined in R. v. Ipeelee, 2012 SCC 13, at paragraphs 36 to 37.

Finally I must balance the seriousness of the offences that he has committed so that a proportionate sentence is the result. See generally R. v. Morrisey, 2010 SCC 39; R. v. M.(C.A.); R. v. Borde, Ontario Court of Appeal decision, R. v. Priest.

Ancillary Orders

The Crown and Defence agree on the ancillary orders in this case.

There will be an order pursuant to Section 743.21 of the Criminal Code of Canada prohibiting any contact with the complainant, the complainant's father, and the complainant's mother.

This is a primary designated offence as per Section 487.04 of the Criminal Code. Pursuant to Section 487.051(1) an order in Form 5.03 will go authorizing the taking of samples of bodily substances that is reasonably required for the purpose of forensic DNA analysis.

Mr. L.O., I have made a mandatory order that you provide a sample of your DNA. I will ask you to cooperate with the officers when they execute that order.

Pursuant to Section 109 of the Criminal Code, as this is a first offence, the defendant will be prohibited from possessing any firearm, crossbow, restricted weapon, ammunition and explosive substance effective today. And any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

The Crown has proceeded by way of indictment and I have found the defendant guilty of a sexual interference offence. As such, by operation of Sections 490.012 and 490.013(2)(b) of the Criminal Code of Canada, I will make an order in Form 52 requiring the defendant to comply with the Sexual Offender Information Registry Act for 20 years.

Pursuant to Section 161 of the Criminal Code of Canada, Mr. L.O. you are prohibited in the following ways:

You will not attend a public park or public swimming area where persons under the age of 16 years are present or can be reasonably expected to be present, or a daycare centre, school ground, playground or community centre.

Pursuant to Section 161(a.1), you are prohibited from being within 500 metres of any dwelling house where the complainant ordinarily resides or of any other place where you know her to be.

You are prohibited from 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.

You are prohibited from having any contact, including communicating by any means, with a person who is under the age of 16 years.

Sentence

I sentence you to imprisonment for 14 months.

You will also be placed on probation for 3 years.

Probation Conditions

You will keep the peace and be of good behaviour.

You will appear before the court when required to do so.

You will notify the court or probation officer in advance of any change of name or address.

You shall promptly notify the court or probation officer of any change of employment or occupation.

You will report in person to a probation officer within 5 working days of your release from custody and after that at all times and places as directed by the probation officer or any person authorized by your probation officer to assist in your supervision.

You will live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.

You will have no contact, in any way, either directly or indirectly, by any physical, electronic or other means with the complainant, the complainant's father, the complainant's mother.

Do not be within 500 metres of any place where you know any of those persons named, to live, work, go to school, frequent or any place you know the persons to be.

Do not possess any weapons as defined by the Criminal Code. For example, a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury to threaten or intimidate any person.

If you now possess any of the items referred to in the above condition, you must surrender them to the police forthwith.

Dr. Peter Sheridan has identified that your rehabilitative potential is there. You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for psychiatric or psychological issues and other.

You shall sign any release of any information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Exception to Section 161 Order

You may attend the Clarington Community Centre in Courtice, Ontario in the physical presence of your spouse, J.O., at all times.

Additional Orders

Victim Fine Surcharge: $200 (one year to pay; one day in default)

Recommendation: The defendant is recommended for placement at the Ontario Correctional Institute (OCI).

Other Counts: Two other counts are withdrawn.

Released: April 17, 2015

Justice M.S.V. Felix