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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court Information

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

G. Brienza, for the Crown

— And —

R.L.

A. Sobcuff, for the accused

Heard: May 11, 2015

Decision

FELDMAN J.:

Conviction and Facts

[1] I found R.L. guilty of four counts each of Sexual Interference and Sexual Assault of four nieces committed over a period of 3-4 years during their early and pre-teen years. Three of the victims, C3, C4 and C1, now 18 years of age, are triplets. Their older sister, C2 is 21 years old.

[2] Their grandparents, to whom they were close, lived with Mr. L.. The assaults occurred over the course of many weekends when they would visit them and also sleep over. The defendant's criminal behaviour involved multiple occasions of unwanted sexual touching, including digital penetration.

[3] C3 described incidents of kissing and sucking on her breasts, as well as the defendant placing his tongue on her vagina. C4 spoke of being 'fingered' by the accused. C1 recalled having her breasts felt, in addition to the defendant placing his finger in her vagina, as did C2. The passage of time affected the memories of these complainants in relation to times and details, but I accepted their evidence that this interference with their sexual integrity occurred numerous times over the years until the visits stopped when the triplets were 11 or 12 years old.

Impact on the Victims

[4] The criminal charges led to a split in the family. The impact on the victims was profound. In a victim impact statement, C3 wrote that she is unable to forget what she endured and is concerned that her family now perceives her as different. She says she still cries and feels hurt. She trusts men less and is hesitant to be in relationships. She feels disappointment in her uncle, as well as anger. C4 described feeling scared and vulnerable during the assaults. She says she cried a lot and felt insecure. She, too, finds it hard to trust men. She feels emotionally scarred by her experiences and still has trouble sleeping. C1 bottled up her feelings and is left with anger. She believes she will never get over what was done to her by her uncle. C2 did not provide a statement.

[5] This evidence, as well as judicial experience, permits the inference that the victims have suffered emotional and psychological harm, perhaps irreparably so.

Positions of the Parties

[6] Mr. Brienza, for the prosecution, describes the defendant's actions as opportunistic in relation to these young, vulnerable and naïve girls. He highlights the aggravating nature of his breach of their trust. He emphasizes both denunciation and deterrence and submits the authorities support the imposition of a penitentiary term of 4 years.

[7] Mr. Sobcuff, for the accused, says there are a number of mitigating factors to consider. Mr. L. is 64 years of age and without criminal antecedents. He has been on bail since April 2012 without incident. The last 3 years have undoubtedly taken a toll on him emotionally and financially.

[8] Mr. L. is in a stable marriage and has looked after his in-laws since their arrival in this country. He has worked steadily since he came to Canada in 2002. He is now a Canadian citizen. He has the support of family and friends who describe him as helpful to others and of otherwise good character. Counsel submits there is support in the authorities for a sentence of 2 ½ years.

Sentencing Principles

[9] In Her Majesty the Queen v. D.D., [2002] O.J. No. 1061 (Ont. C.A.), the accused, a close and trusted family friend, was found guilty after trial of 11 sex-related offences involving four young boys over a period of 7 years. The facts were much more serious than in the case at bar and included masturbation, fellatio and anal sex. The defendant sometimes used violence or threats to compel compliance and silence. He was sentenced to 8 years.

[10] Moldaver J.A., as he then was, was clear that a severe sanction was to be imposed where adult offenders preyed upon innocent children "to satisfy their deviant sexual craving". At para. 35, he said:

"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."

[11] Justice Moldaver observed that, "the horrific consequences of child sexual abuse are only too well known". As well, experience indicates that as a victim of abuse used to satisfy an adult's sexual gratification, that child will frequently suffer emotional trauma and psychological harm, in addition to an inability to form a trusting relationship with another adult of the opposite sex: see R. v. S. (W.B.) and R. v. P. (M.) (1992), 73 C.C.C. (3d) 530 (Alta. C.A.), referred to in D.D.

[12] In this regard, in S. (W.B.) and P. (M.), the court said, at p. 535: "There is no empirical way of proving that a particular child'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".

[13] In D.D., Justice Moldaver concluded 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".

[14] Sentencing is a highly individualized process. The gravity of the facts in D.D. is particularly high and the sentence severe. Nonetheless, in the case at bar, it is aggravating that a family member, in a position of trust, sexually abused his four young nieces over an extended period of time traumatizing them while stealing their innocence.

[15] Abella J.A., as she then was, captured the abhorrent nature of this behaviour in R. v. Stuckless, [1998] O.J. No. 3177 (Ont. C.A.), at para. 44, where she said: "Sexual abuse is an act of violence. When committed against children the violence is both physical and profoundly psychological. It is coercive and exploitive conduct and represents the use of compulsion against someone who is defenceless".

[16] While there are mitigating factors to weigh here, it is of paramount importance to give emphasis to the principles of denunciation and deterrence as a signal to the community that the court rejects this repellant behaviour and seeks to protect vulnerable young children from sexual predation. The authorities are firm that this can only be accomplished by a penitentiary term.

[17] I will refer to additional sentencing authorities for the limited purpose of determining an appropriate range of sentence for the facts in this case. In R. v. M. (D.), 2012 ONCA 894, the accused was convicted on 8 counts of sexually molesting his step-daughter over a period of 8 years. This involved touching her breasts, vagina and clitoris, and included digital penetration. Laskin J.A. was mindful of the parental breach of trust as particularly aggravating and was of the view that the frequency and duration of the sexual abuse required a severe sentence. He imposed a 4-year term.

[18] In Her Majesty the Queen v. A.H., 2013 ONSC 6846, the accused subjected his 3 granddaughters to years of unwanted fondling and sexual touching that included rubbing of the vaginal area, breasts and buttocks, some digital penetration and placing the hand of one victim on his covered penis. He was 70 years old, socially isolated and had no insight. His wife had health problems and was dependant on him. Justice Wilson imposed a sentence of 2 ½ years.

Conclusion

[19] Mr. L. is a mature man of otherwise good character. He has worked hard and steadily. He has the support of family and friends. He has endured conditions of bail for 3 years without incident.

[20] Nonetheless, counsel for the accused concedes that these serious facts involving multiple incidents of sexual abuse of 4 vulnerable children over a number of years in the context of a breach of trust warrant a penitentiary term.

[21] The sexual acts perpetrated here were indeed coercive and exploitive. They persisted over several years while breaching the trust of these defenceless children. They caused emotional pain and suffering that endures. These offences require a denunciatory sentence as a signal that the courts take the protection of children from sexual predators seriously.

[22] Mr. L. will be sentenced to 3 years. In addition, he will be subject to a SOIRA Order for 10 years and a s. 109 Weapons Prohibition Order also for 10 years. He will as well provide a sample of his DNA.

Released: June 8, 2015

Signed: "Justice L. Feldman"