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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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: August 21, 2017

Court File No.: HAMILTON 16-5101

Between:

Her Majesty the Queen

— and —

Rui DaSilva

Before: Justice P.H.M. Agro

Heard: July 31, 2017

Reasons for Judgment Released: August 21, 2017

Counsel:

• Ms. Janet Booy — counsel for the Crown
• Mr. Jeff Manishen — counsel for the accused

Reasons for Sentence

Introduction

[1] Rui DaSilva faces sentencing having entered pleas of guilty to two counts of sexual interference and two counts of making child pornography, contrary to ss. 151 and 163.1(2) of the Criminal Code of Canada.

[2] The offences were committed on two discrete dates: February 14, 2016 and April 27, 2016.

The Facts

[3] The victim, 7 year old female E.C., lived with her mother, her two older siblings and her mother's partner, T.L.

[4] Over a period of two years, T.L. repeatedly sexually abused E.C. The abuse took place in the basement of the family home while other occupants were asleep.

[5] T.L. took videos of the abuse on his cellphone and advertised for likeminded participants on Craigslist.

[6] On 23 December 2015 DaSilva responded to one such ad. Text message exchanges between the two men resulted in DaSilva going to T.L.'s home on 26 December 2016.

[7] There were no charges laid respecting that encounter.

[8] On 29 January 2016 T.L. and DaSilva exchanged emails in which they agreed that T.L.'s sleeping daughter would be made available for their next meeting.

[9] At 4:15am on 14 February 2016, T.L. invited DaSilva over asking him to record his activities with E.C. Da Silva agreed and arrived around 5:30am.

[10] A video was extracted from T.L.'s laptop dated 14 February 2016 depicting E.C. bent over and a male, later identified as DaSilva, rubbing his penis on her anus and ejaculating.

[11] On 2 March 2016, DaSilva told T.L. he had a female friend who shared the same interests. T.L. responded on 5 March 2016, inviting DaSilva to bring his friend.

[12] On 27 April 2016, Da Silva and Sonya Lucas went to T.L.'s home around 3am. A video extracted from T.L.'s laptop bearing that date depicted T.L., DaSilva and Lucas all participating in abusing E.C. The two men were recorded rubbing their penises on E.C.'s vagina and anus. DaSilva ejaculated on E.C.'s anus and Lucas spread the ejaculate all over E.C.'s vagina.

[13] A more fulsome account of the facts as agreed is set out in exhibit 1.

[14] Seven videos were extracted from T.L. devices. One was created on 14 February and the remaining six on 27 April 2017. T.L. participated in the abuse on each occasion. DaSilva was seen to be abusing E.C. in the February video and in three of the remaining April videos, and Lucas in five of the April videos.

[15] For each of these videos T.L. dressed E.C. in black lingerie with an opening at the vaginal and anal areas.

[16] The videos were made an exhibit and a more detailed description of the content of each was marked as exhibit 2.

[17] On 1 May 2016 while on a weekend visit with her biological father, E.C. disclosed that T.L. gets her up late at night and does disgusting things to her. This was immediately reported to authorities and T.L. was arrested on 4 May 2016. DaSilva was arrested at his home in Waterloo on 14 July 2016.

[18] On arrest several items were seized from DaSilva's residence including electronic devices. On four of such devices police found 82 items of child pornography of which three were videos and the remainder still images. There were no videos or images of E.C. on these devices.

Victim Impact

[19] E.C. did not write a victim impact statement but did draw a picture for the court, exhibit 7, depicting two "stick" people. One such person I take to be E.C., with long blonde hair, a sad face and what appears to be multiple tears streaming from each side of her face. The other "stick" person is clothed in black with the word "you" over the head and additional text that is difficult to interpret.

[20] That drawing serves to emphasize the loss innocence of a seven year old who is only able to express herself in drawings.

[21] E.C.'s aunt, T.C., with whom she is now living, filed a victim impact statement, exhibit 8.

[22] There is not a day that goes by that T.C. does not think of the obscene atrocity perpetrated on her niece. She is quite naturally untrusting of others and highly protective of E.C.

[23] She related her own recurring nightmares and the sounds of E.C.'s whimpering through the night: "Please don't hurt me."

[24] T.C. and E.C.'s biological father were both contacted for the pre-sentence report. Both relate having developed mental health concerns since E.C.'s disclosure. Her father is taking sleep medications as well as daytime medication to address possible post-traumatic stress disorder. They both expressed concern about E.C.'s future well-being.

[25] The disgust and emotional pain they expressed is palpable.

Circumstances of the Offender

[26] DaSilva is a 39 year old first offender, single and without children.

[27] He has a University degree in Archaeology and History. After University he secured employment at age 23 and maintained that employment for 11 years, reaching a position as Supervisor. The pre-sentence report is unclear about DaSilva's reason for leaving that employment but states that he is now unemployed and willing to upgrade his skills for future employment.

[28] There is no evidence of alcohol or drug addictions, but his sexual addiction is considered "problematic". Ten years ago he began looking on line to arrange sexual encounters and would engage in various sexual fantasies. These liaisons became more frequent over the last five years but involved women aged 18 to 45 years. The wide range of sexual fantasies and "role play scenarios" set out in the pre-sentence report appear to have few limitations.

[29] DaSilva does not believe he has a sexual attraction to children and expressed disbelief regarding his deviant behaviour in these offences. He told the author of the pre-sentence report that he "got caught up (and) wasn't expecting it to go this far". He did express that he feels "horrible" about his behaviour and "guilty for touching her and not calling police."

[30] There is no sexual deviance assessment before the court that might shed light on the root of DaSilva's behaviour, any recommended treatment or the risk of similar recidivism.

[31] I concur with the recommendation in the pre-sentence report that given DaSilva's lack of insight into his sexually deviant behaviour, he, and society, might benefit from Phallometric testing to determine his risk for sexual reoffence and his potential pool of victims.

[32] DaSilva kept his friends and family separate from his life of sexual addiction and fantasies. In addition to his mother he has two close friends, one of whom provided a letter of reference to the court. DaSilva acknowledges that these individuals are aware of the offences for which he has been convicted but remain supportive. The close relationship he shared with his brother has diminished since these charges.

Aggravating and Mitigating Factors

Aggravating Factors

[33] I find these to be the aggravating factors:

1. As evidenced by the initial text messages exchanged between DaSilva and T.L., this offender was actively seeking an incestuous scenario with a young person.

2. The text messages and subsequent email exchanges between the two men support my finding an element of planning and deliberation for the sexual abuse of a child and the recording of that offence.

3. Although DaSilva was not in a position of trust toward E.C. it is clear from his communications with T.L. that he was well aware that T.L. held such a position, thereby becoming a willing aider and abettor to T.L.'s breach of trust.

4. DaSilva's recording of T.L.'s abuse of E.C. perpetuated, aided and abetted T.L.'s continuing abuse of his step daughter.

5. The abuse took place on two discrete occasions, two months apart, which I find to be demonstrative of a total lack of insight into the nature of that behavior and its effect on E.C.

6. As evidenced by the creation times for the videos of April 27, 2016, DaSilva's participation in the abuse took place over some hours.

7. DaSilva, with enthusiasm, introduced a third party, Sonya Lucas, to the abuse of E.C.

8. DaSilva had 82 other items of child pornography in his possession at the time of arrest.

9. These offences have not only had an immeasurable impact on E.C., they have had significant impact on E.C.'s immediate and extended family.

Mitigating Factors

[34] There are mitigating factors:

1. The pleas of guilty are an acknowledgment of responsibility and willingness to be held accountable.

2. Those pleas have spared E.C. and her family the additional trauma of testifying at trial and having to identify her on those videos.

3. DaSilva did not upload any of the videos to his own electronic devices, which in some small way lessens further distribution.

4. DaSilva has no prior criminal record and but for his secret addiction has led a pro-social life.

Positions of the Parties

[35] Each of these offences carries a minimum sentence of 1 year and a maximum of 14 years.

[36] The Crown seeks a sentence in the range of 8 to 10 years with credit for time served. Ancillary orders under sections 109, 161 and 490.013(2) and an order for DNA sampling and forfeiture of four of the electronic devices seized from DaSilva are also sought.

[37] The defence takes no issue with the ancillary orders, save for some minor variation where permitted, but seeks a sentence of 5 years less time served. That time to the date of plea is 383 days with another 21 days to this date.

The Fit Sentence

[38] Counsel have provided me with a number of authorities, both at trial and appeal levels, addressing the range of sentencing in cases of this kind. The range of sentencing extends from single digit to high double digit penitentiary terms, allowing for flexibility depending on the facts of each case. The common elements and overriding sentencing principles to each of these authorities is the denunciation of the conduct, general and specific deterrence, and the separation of offenders from society to protect our most vulnerable from the horrific consequences of sexual abuse.

[39] In the decision of the Ontario Court of Appeal in R v D.D., [2002] O.J. No. 1061, the court summarized at paragraph 45:

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!

[40] In R v D.G.F., 2010 ONCA 27, [2010] O.J. No. 127, Feldman, J.A., reflected at paragraph 22:

Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but perpetrators.

[41] As set out in the pre-sentence report, DaSilva's prospects for rehabilitation are uncertain. His admitted sex addiction strayed from multiple sexual fantasies and culminated in the making of child pornography. The likelihood of his committing similar offences in the future is unknown.

[42] In my view, this case calls for a very significant sentence in order to meet the sentencing principles for offences of this kind.

[43] I am mindful of the overarching principle of totality, however the aggravating factors set out a confluence of circumstances that elevate DaSilva's moral blameworthiness and overall criminal conduct. Added to those is the fact that these offences took place in E.C.'s home - a place that ought to have been one of comfort and security, a place where depravity lived and came knocking.

[44] For these reasons I impose a global sentence of 8 years in the penitentiary, less time served of 404 days to this date. Applying a credit of 1.5 days for each served, I calculate the time served as 1 year 241 days, or 1 year and 8 months. The remainder to be served is therefore 6 years and 4 months, concurrent on each charge.

Ancillary Orders

[45] Additional ancillary orders are these:

1. Pursuant to s. 487.051 of the Criminal Code, a sample of DNA will be provided.

2. Pursuant to section s. 490.13(2.1) of the Criminal Code, DaSilva will be registered on the sex offender registry and so remain for life.

3. Pursuant to s. 109 (a) and (b) of the Criminal Code, the offender is prohibited from owning or possessing any firearms, weapons, devices or ammunition therein set out for life.

4. Pursuant to s. 161(1) (a) of the Criminal Code, the offender is bound by the prohibitions therein relating to persons under the age of 16 years for a period of 10 years from release from imprisonment, save and except while in the presence of immediate family members under that age who are accompanied by a parent or guardian.

5. Pursuant to s. 161(a.1), the offender shall not, for life, be within two kilometers of any known place of residence, schooling or worship of the victim E.C. or any place he may know her to be.

6. Pursuant to s. 161 (c) the offender shall not for a period of 15 years from release from imprisonment, seek, obtain or continue employment as prohibited by that subsection.

7. Pursuant to s. 161 (c) the offender shall not, for a period of 15 years from release from imprisonment, have any contact or communication, by any physical, electronic or other means, with persons under the age of 16 years, save and except for immediate family members while in the presence of that person's parent or legal guardian, or for incidental contact at a place of employment while in the presence of one or more adult persons.

8. Pursuant to s. 161 (d) the offender shall not, for a period of 15 years from his release from imprisonment, use or access the internet or other digital network except:

   (i) for the purpose of internet banking at a financial institution or at any store for the purpose of making debit or credit card payment;

   (ii) on his own personal telecommunications device or computer: for which you have provided Detective John Tselepakis of the Hamilton Police Service or his designate, in writing, the make, model, serial number, IMEI and service provider as well as any telephone number connected with the device; which is equipped with software or hardware that blocks access to:

   (iii) social networking sites (including but not limited to Facebook, twitter and Tumblr);

   (iv) peer to peer file sharing networks (including but not limited to motherless, lime wire, gnutella, bearshare) and which does not have scrubbing software installed, and does not save files in an encrypted fashion.

   (v) where he is not self-employed, he may use or access the internet or other digital network at his place of business, for business purposes and in accordance with IT and other policies at that place of business and for the same period, the offender shall not use any telecommunication device to access the internet or other digital network in order to access or participate in chat rooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material and, for the same period, shall submit any computer or telecommunication device he may own to the Hamilton Police service immediately when requested to do so by the Hamilton Police Service for forensic analysis to ensure compliance with these conditions and to co-operate fully with the Hamilton Police Service in the conduct of that inspection.

9. Forfeiture order will issue for DaSilva's seized electronic devices, now in the possession of Hamilton Police Services.

Released: August 21, 2017

Signed: Justice P.H.M. Agro