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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: November 12, 2015

Court File No.: Halton 14-3461, 15-1130, 15-935

Between:

Her Majesty the Queen

— and —

J.D.

Before: Justice D.A. Harris

Heard on: June 9, 10, 23 and August 31, 2015

Reasons for Sentence released: November 12, 2015

Counsel:

Mary Ward — counsel for the Crown

Ryan Gibson & Dean Paquette — counsel for the defendant J.D.

HARRIS J.:

[1] Convictions and Guilty Pleas

Following a trial, I found J.D. guilty of sexual assault, sexual interference, invitation to sexual touching and four counts of sexual exploitation, all with respect to TH. At the request of Crown counsel, I entered a conviction with respect to sexual interference, invitation to sexual touching and two counts of sexual exploitation (which were amended to expand the time period) and entered a conditional stay with respect to the sexual assault and the other two sexual exploitation charges.

Crown counsel had elected to proceed by indictment.

In addition, Mr. J.D. entered a guilty plea to two charges of breaching his recognizance of bail.

Crown counsel had elected to proceed summarily with respect to these charges.

Mr. J.D. is before me today to be sentenced.

[2] Crown and Defence Submissions

Crown counsel suggested that I should sentence him to imprisonment for five years for the sexual offences and to further imprisonment on a consecutive basis for the breaches.

Counsel for Mr. J.D. suggested that I impose a sentence of imprisonment for three years for the sexual offences and concurrent sentences for the breaches.

Counsel disagreed as to the credit I should give him for his pre-sentence custody.

Both counsel agreed however that I should make the following ancillary orders:

1. a DNA order;
2. an order compelling Mr. J.D. to comply with the Sex Offender Information Registration Act for life;
3. an order pursuant to s. 743.21 of the Criminal Code, prohibiting communication with TH while he is serving his term of imprisonment; and
4. a firearms prohibition order pursuant to s. 109 of the Criminal Code.

[3] Sentence Imposed

I find that a sentence of imprisonment for the equivalent of 4½ years is the appropriate sentence for the sexual offences. That should be followed by imprisonment for the equivalent of a further 90 days for the breaches.

My reasons for this are as follows.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[4] Sentencing Objectives

The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.[1]

[5] Proportionality Principle

The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.[2]

Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.[3]

He went on to state that:

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.[4]

He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.[5]

On this point, Doherty J.A. concluded by stating that:

Fixing a sentence that is consistent with s. 718.1 is particularly difficult where the gravity of the offence points strongly in one sentencing direction and the culpability of the individual offender points strongly in a very different sentencing direction. The sentencing judge must fashion a disposition from among the limited options available which take both sides of the proportionality inquiry into account.[6]

Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[6] Restraint in Use of Imprisonment

I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.[7]

The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.[8] As a general matter restorative justice involves some form of restitution and reintegration into the community.[9]

[7] Abuse of Persons Under 18 Years

Section 718.01 provides that in cases involving the abuse of a person under the age of 18 years, the primary considerations on sentencing are denunciation and deterrence.

Section 718.2(a) provides further that the fact that an offender, in committing the offence, abused a person under the age of 18 years is an aggravating circumstance on sentencing and that a sentence should be increased to account for that.

That section also provides that it is an aggravating feature if the offender, in committing the offence, abused a position of trust or authority towards a victim.

[8] Sentencing Child Sexual Abuse Cases

In R. v. D.D.[10], the Ontario Court of Appeal "discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children".[11] The relevant considerations and principles are summarized below:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing 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.[12]

The fundamental message that the Court of Appeal sought to convey is that:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price![13]

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]

[9] Mandatory Minimum Sentences

In this case, the Criminal Code was amended such that there was a mandatory minimum sentence of imprisonment for one year with respect to certain of the offences committed by Mr. J.D.. Counsel agreed, in their submissions, that in light of the positions taken by both counsel that the appropriate sentence exceeded the minimum in any event, I need not overly concern myself with determining what crimes occurred following the amendments to the Code as opposed to before that date.

At all times, the maximum sentence for these offences was imprisonment for 10 years.

[10] Consecutive vs. Concurrent Sentences

With respect to the issue of whether I should impose consecutive or concurrent sentences with respect to the breach charges, I note the comments of the Ontario Court of Appeal that even in cases where offences arise out of the same incident, sentences "should not necessarily be made concurrent if the offences constitute invasions of different legally protected interests, although the principles of totality must be kept in mind".[15]

The court went on to say that "ensuring that those under a recognizance comply with its terms, protects a different societal interest".[16]

Needless to say, the argument in favour of a consecutive sentence is much stronger where the breach occurs separate and apart from the other offences.

Before I can apply the applicable principles of sentencing to Mr. J.D., however, I must look at the facts underlying the offences here, the impact that they had on the victim, and the background of Mr. J.D..

THE OFFENCES

[11] Facts of the Sexual Abuse

TH was the stepdaughter of Mr. J.D..

Beginning when she was 13 and continuing until some months after her 18th birthday, Mr. J.D. touched her in a sexual fashion and had her touch him in a sexual fashion. This began with a short grooming period which led to him touching her breasts and her vagina over her clothing and with her touching his penis over his clothing. This quickly progressed to mutual touching of these body parts directly and then to her sucking on his penis and to him licking her vagina.

In return for these sexual favours he rewarded her with alcohol and drugs.

He never used force or threatened to use force with her.

He told her not to tell anyone else what they were doing but he told her this only once.

He persisted for a while in attempting to talk her into having sexual intercourse with him but when she stuck to saying "no" he accepted that.

In the end, he also accepted her "no" when she said that she would no longer do what she had been doing with him up until then.

[12] Breach of Recognizance

Following his arrest, Mr. J.D. was released on a recognizance of bail that required him to be in his residence daily unless in the presence of one of his sureties. He was also prohibited from being in the presence of anyone under the age of 18 unless in the presence of one of his sureties.

On March 22, 2015, he was at his former residence with his common law spouse and his 12 year old step-daughter. No eligible surety was present.

He had also done this on a number of earlier occasions between December 23, 2014 and March 22, 2015.

Mr. J.D. and his sureties claimed to be somewhat confused as to the exact terms of his release but not to the extent that it would amount to lawful excuse.

VICTIM IMPACT

[13] Victim Impact Statement

In her Victim Impact Statement and in the Pre-Sentence Report, TH indicated that some days she feels okay, others, like it was her fault, she should have known better.

Her relationship with her mother has been destroyed forever. She hopes that she might be able to resume a relationship with her siblings. In the meantime this relationship too has been destroyed as her mother will not allow her to have contact with them.

She has been ostracized by extended family members who believe that she had fabricated the allegations of sexual abuse.

She questions whether she would have used as many drugs as she has, or slept with as many men as she has, had she not been the victim of these crimes.

BACKGROUND OF MR. J.D.

[14] Pre-Sentence Report

I have had the benefit of a Pre-Sentence Report which provided me with the following information.

Mr. J.D. is 38 years old.

He was born and raised in Burlington. His parents separated when he was a child, largely because his father abused alcohol. Mr. J.D. lived with his mother following this and had no contact with his father after he was 12 years old.

He was a rebellious and troubled youth. He became involved in criminal activity. His criminal record starts when he was 14 years old and ends when he was 21. The record contains no sexual offences. There are six breaches of court orders.

He married a single woman with a daughter from a prior relationship. They had a son together. He is now 15. He has not had contact with his son for several years. He blames his ex-wife, saying that she was unreliable and manipulated visitation with the boy. He does not pay any child support for his son.

He and LC, TH's mother, have been in a relationship for ten years. She has two other children (other than TH). They are 12 and 10 years old. She and Mr. J.D. do not have any children together. He describes himself as a father figure to her children.

He has a grade 10 education.

He was employed as a mover for 21 years. As a result of injuries from his work, he received Ontario Works and had applied for ODSP.

He used marihuana daily to cope with chronic pain and anxiety. He does not consider himself to be an addict.

He continues to vehemently insist that he is not guilty of these offences. TH was manipulated into fabricating the sexual abuse by her boyfriend. He further suggests that this is retaliation for him imposing discipline in the home and on her behaviour.

His partner (mother of TH) is effusive in praise of Mr. J.D. as a partner and step-father and believes that he is innocent. The family is distraught and devastated as a result of the criminal charges. She will not have contact with her daughter, who she believes concocted the stories of sexual abuse for revenge.

PRE-SENTENCE CUSTODY

[15] Calculation of Pre-Sentence Custody Credit

Mr. J.D. has been in custody for 243 days.

He spent 7 days in custody following his initial arrest. That was with respect to offences which occurred prior to enactment of the Truth in Sentencing Act and I am prepared to credit that time on a 2:1 basis, as was the practice prior to the passage of that Act.

He was rearrested March 22, 2015 when he was charged with breaching his recognizance of bail. The new offences occurred after the Truth in Sentencing Act came into being. Mr. J.D. was in custody for 163 days between March 22, and August 31, 2015 when I heard counsels' submissions as to sentence. In light of the recent decision of the Ontario Court of Appeal in R. v. Akintunde[17], I find that I can only credit this pre-sentence custody on a 1:1 basis.

Mr. J.D. has been in custody for a further 73 days since then. Had I sentenced him on August 29, 2015 he would have earned 36 days of remission during that time. I am not prepared to have Mr. J.D. lose that credit simply because I needed time to make my decision and prepare these reasons. Accordingly I will be crediting that time on a 1.5:1 basis, the maximum allowable under the Truth in Sentencing Act.

Accordingly, I will be crediting his 243 days of pre-sentence custody as 286 days (14 plus 163 plus 109 days).

ANALYSIS

[16] Gravity of the Offences

Mr. J.D. committed most serious offences.

TH was his teenaged step-daughter. He should have been protecting her and not taking advantage of her.

Instead he provided her with alcohol and drugs in return for sexual favours.

He did this repeatedly for more than five years.

That was, to say the very least, reprehensible of him.

The impact on TH has been severe. She has been ostracized by her family. Any sense of self-worth has been shattered. It is possible; if not likely that she will never recover fully from the psychological trauma of what her step-father did to her.

[17] Sentencing Principles Applied

Denunciation and deterrence, both general and specific, are the primary principles of sentence to be considered here.

Mr. J.D. is not entitled to any mitigation flowing from any signs of remorse. There are none here.

I note that his reputation in his community has been destroyed.

His family continues to support him. This factor cuts two ways however. Those same family members have turned against TH, intensifying the impact that Mr. J.D.'s crimes had on her.

Mr. J.D. has sustained injuries which will make it more difficult for him to spend any period of time in jail.

After taking all of these factors into consideration, I am satisfied that the appropriate sentence for the sexual offences is imprisonment for 4½ years.

[18] Breach Charges

After he was released on a recognizance of bail, Mr. J.D. breached that recognizance on a number of occasions.

I note that Mr. J.D.'s criminal record may be very dated but that it does include six prior entries for breaching court orders.

I am satisfied that the breaches call for imprisonment for a further 90 days to be served consecutively to the above sentence.

SENTENCE

[19] Sentence Imposed

For the above reasons, with respect to the sexual offences, I sentence Mr. J.D. to time served, being pre-sentence custody of 227 days credited as 270 days (9 months) plus imprisonment for a further 45 months, concurrent to each other.

[20] Ancillary Orders

I also make the following ancillary orders.

These are primary designated offences and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. J.D. of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

The offences are also designated pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to s. 490.012 of the Criminal Code, that Mr. J.D. comply with the provisions of the Sex Offender Information Registration Act for the rest of his life.

I am not satisfied that the provisions of s. 161 of the Criminal Code are applicable here except as follows. I am making an order pursuant to that section prohibiting Mr. J.D. for the next 10 years from (b) 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.

Pursuant to section 109 of the Criminal Code, for the next ten years Mr. J.D. is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

In light of the time Mr. J.D. has already spent in custody and the time that he will spend in custody, together with the fact that it is unlikely that he will be capable of working once he is released, I am waiving the victim fine surcharges with respect to the sexual offences which all occurred before that surcharge became mandatory.

With respect to the breach charges, having regard to all of the circumstances, I am imposing a fine of $10 plus time served, being 16 days pre-sentence custody credited as 16 days plus imprisonment for a further 74 days. The jail terms will be consecutive to the 45 months but concurrent to each other.

I am allowing Mr. J.D. four months following his release from custody to pay the fines and surcharges.

Finally, I make an order pursuant to section 743.21 of the Criminal Code prohibiting him from communicating, directly or indirectly, with TH during the custodial portion of his sentence.

Released: November 12, 2015

Signed: Justice D. A. Harris

Footnotes

[1] R. v. Hamilton, [2004] O.J. No. 3252 (Ont. C.A.) at para. 102; R. v. Lyons, [1987] 2 S.C.R. 309 (S.C.C.) at para. 26; R. v. Morrisey, 2000 SCC 39, [2000] S.C.J. No. 39 (S.C.C.) at para. 46.

[2] Criminal Code, section 718.1.

[3] R. v. Hamilton, supra, at para. 90.

[4] Ibid, at para. 91.

[5] R. v. Priest, [1996] O.J. No. 3369 (Ont. C.A.) at para. 26, quoted in R. v. Hamilton, supra, at para. 92.

[6] R. v. Hamilton, supra, at para. 93.

[7] Gladue v. The Queen, [1999] S.C.J. No. 19 (S.C.C.) at para. 36; see also R. v. Proulx, supra, at para. 20.

[8] Gladue, supra, at paras. 43 and 48; see also R. v. Proulx, supra, at paras. 18 to 20.

[9] Gladue, supra, at para. 43; R. v. Proulx, supra, at para. 22.

[10] R. v. D.D., [2002] O.J. No. 1061 (Ont. C.A.) per Moldaver J.A. as he then was.

[11] R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (Ont. C.A.) per Moldaver J.A. as he then was at para. 72.

[12] R. v. Woodward, supra, at para. 72; R. v. D.D., supra at paras. 34 to 38.

[13] R. v. Woodward, supra, at para. 73; R. v. D.D., supra at para. 45.

[14] R. v. Woodward, supra, at para. 75; R. v. D.D., supra at para. 44; R. v. I.F., 2011 ONCA 203, [2011] O.J. No. 1110 (Ont. C.A.) at para. 5.

[15] R. v. Mascarenhas, [2002] O.J. No. 2989 (Ont. C.A.) per Abella J.A. at para. 31.

[16] R. v. Mascarenhas, supra at para. 32; see also R. v. Walker-King, [2011] O.J. No. 3088 (Ont. S.C.J.) per Thorburn J. at para. 38; R. v. Thompson, [2011] O.J. No. 369 (Ont. S.C.J.) per Quigley J. at paras. 54 to 55; R. v. Swaby, [2009] O.J. No. 1974 (Ont. S.C.J.) per Thorburn J. at para. 61; R. v. Boyd, [2008] O.J. No. 4434 (Ont. C.J.) per Forsyth J. at paras. 82 to 85; R. v. Berezowsky, [2006] O.J. No. 928 (Ont. S.C.J.) per Fuerst J. at para. 20.

[17] R. v. Akintunde, [2015] O.J. No. 4614 (Ont. C.A.).