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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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.
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(3) 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(3), read as follows:
486.4(3) CHILD PORNOGRAPHY — (1) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
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: February 16, 2018
Court File No.: Hamilton/Central West 17-11259
Between:
Her Majesty the Queen
— and —
TL
Before: Justice George S. Gage
Heard on: January 26 and February 16, 2018
Reasons for Sentence
Released on: February 16, 2018
Counsel:
- Janet Booy, counsel for the Crown
- Cory Cornale, counsel for the accused TL
Reasons for Sentence
GAGE J.:
Introduction
[1] Based on the disclosure of allegations of sexual abuse made by a 7-year-old child to her biological father, the accused was arrested on May 3, 2016.
[2] On the same date a warranted search of the home the accused shared with the child and her mother and sister resulted in the seizure of electronic devices a forensic examination of which disclosed the presence of an extensive collection of child pornography, the bulk of which consisted of images and videotapes of the child as well as one surreptitiously recorded video of his 16-year-old stepdaughter.
[3] As of May 3, 2016, the accused was already facing prosecution on charges of Assault Police Officer (June 6, 2015) and Fail to Appear in Court (October 7, 2015).
[4] The accused has been in custody since his arrest on May 3, 2016. He has consistently indicated a willingness and intention to plead guilty from the early stages of the prosecution. No dates were scheduled for either a preliminary hearing or a trial.
[5] On November 20, 2017, the accused entered pleas of guilt to the following charges:
- Assault Police Officer
- Fail to Appear in Court
- Sexual Interference
- Possession of Child Pornography
- Make Child Pornography
- Surreptitious Visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy
[6] The accused is an Aboriginal person as defined by the Constitution Act and a status Indian under the Indian Act.
[7] Pre-sentence and Gladue reports were ordered and subsequently filed with the Court.
[8] Sentencing submissions were presented on January 26, 2018. The Court adjourned sentencing to February 16, 2018 for the preparation and delivery of these reasons.
[9] In his decision in R v Holmgren, Justice Clarke describes the process of arriving at a fit and just sentence as follows:
"Sentencing is an art, not a science – an enterprise of the heart and mind, not the impersonal product of a computer. While adhering to the general sentencing principles, the Court must examine the facts in each case and tailor its judgment to the offender. Aggravating and mitigating circumstances should be weighed. Rehabilitation must be considered. The legitimate expectations of the community must be addressed. Out of this diverse meld, the Court must seek a sentence that is both just and reasonable."
[10] Amongst the duties entrusted to the judiciary, the task of sentencing is in many ways, the most difficult. That difficulty is compounded in this case by the nature of the crimes committed and the complexity of the personal circumstances of the offender.
[11] The Criminal Code and relevant jurisprudence provide that the overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[12] The profoundly difficult dilemmas that arise in this case may be summarized as follows:
How does the Court sensibly apply the fundamental objectives of sentencing in a context where the gravity of the offences is so shockingly horrific and so far outside the range of ordinary decent and rational behaviour as to be utterly incomprehensible? and,
How does the Court assess the degree of responsibility of an offender whose own childhood was so indelibly marked by chaos, abandonment and sexual abuse as to be almost equally inconceivable?
[13] The reasoning process by which this sentence is determined unfolds beneath the dark and disturbing shadow that arises from the heartrending and certain knowledge that no sentence that I can lawfully impose, no matter how lengthy or severe, can restore the victim's innocence nor can any sentence soothe the pain of the indelible scars that she has sustained from the abuse that she has endured. In that sense no sentence will ever be long enough or harsh enough.
Summary of the Facts
The Offences
[14] Over the course of roughly 18 months up to and including April 27, 2016, the accused systematically, methodically and repeatedly sexually assaulted and abused his step-daughter. She was 6 years old when the abuse began. She was almost 8 years old when it stopped.
[15] During that time the accused video-taped the assaults and made the video recordings available through Craigslist to other persons with similarly deviant sexual interests.
[16] The assaults included both anal and vaginal penetration. There were no overt threats of violence. There was some indication of spanking that was additional to the inherent violence of the acts of abuse.
[17] 1032 explicit child pornographic photos were found on the accused's Samsung Galaxy phone. His step-daughter was in all of those.
[18] The accused's Apple MacBook contained 2,368 child pornographic photos and 257 child pornographic video files. All but 80 of those items were of his step-daughter.
[19] A 16 GB USB drive was found in the accused's possession. It contained 145 child pornographic photos. His step-daughter was in 78 of those photos.
[20] Fortunately, it does not appear that any of these images and files were posted on the internet.
[21] The accused orchestrated participation by at least 3 other adults in the assaults and abuse of his step-daughter.
[22] A more fulsome description of the agreed facts is found in Exhibit One. A synopsis of 15 of the videos is found in Exhibit Three. A representative sampling of the content of the videos was shown to the Court and marked as Exhibit Four. The content of all of the 15 videos is found in a DVD marked as Exhibit Five.
[23] The content of these files is, quite simply, unspeakably repulsive and profoundly sickening.
[24] On June 6, 2015, while in a state of advanced inebriation, the accused assaulted a police officer, who was in the lawful execution of his duties, by spitting at the officer.
[25] On October 7, 2015 the accused failed to appear in court on the assault charge when lawfully required to do so. It was not a trial date.
[26] On October 17, 2015 he surreptitiously recorded the bathroom showering of his 16-year-old step-daughter.
The Offender
[27] The accused was born in Northern Ontario on [date redacted], 1981. He is 37 years old. He is of indigenous ancestry traced through his mother and is a member of the Cree Nation.
[28] He is the son of his mother. His biological father is unknown. His mother had three children – all with different fathers. The accused has an older half-brother and a younger half-sister.
[29] To say that his early childhood was chaotic would be a gross understatement. His mother was addicted to alcohol throughout his childhood. They moved on a frequent basis between various northern Ontario communities. His mother would often abandon her children for days at a time. Child protection services were involved. Alcohol and drug abuse within the home was pervasive. His mother had a combative personality and was often involved in fights, domestic and otherwise, that were witnessed by her children. His mother's sister helped out when she could.
[30] When the accused was 6 years old, his mother began to cohabit with a man who is a residential school survivor and a victim of sexual abuse at the St. Anne residential school.
[31] Shortly after the accused's mother and this man began to live together, this man began to sexually abuse both the accused and his older brother.
[32] The accused took the brunt of the abuse. The abuse, which included repeated acts of coerced anal intercourse, continued for twenty years. When the accused initially reported the abuse, in his early teens, he was not believed.
[33] It was not until many years later, incredibly, in February 2016 at the very same time that the victim was being abused by the accused, that this man was finally convicted in relation to that abuse.
[34] For that abuse this man was sentenced, pursuant to a joint submission, to be imprisoned for two years less a day. In the course of sentencing this man the presiding jurist made the following frighteningly prescient comment: "We're certainly dealing with very sad circumstances in a case where the cycle is just being repeated over and over"
[35] The effect of sexual abuse on male children is described in the Gladue report at page 14 as follows:
Anxiety, low self-esteem, guilt and shame, strong fear reactions, depression, post-traumatic stress disorder, withdrawal and isolation, flashbacks, multiple personality disorder, emotional numbing, anger and aggressiveness, hypervigilance, passivity and an anxious need to please others have all been documented. Compared to non-abused men, adult male survivors of sexual abuse experience a greater degree of psychiatric problems, such as depression, anxiety, dissociation, suicidality and sleep disturbance.
[36] Given these circumstances it is no surprise that by his early teens the accused was abusing both alcohol and illicit drugs. The alcohol and drugs were provided by his abusive step-father. The accused also resorted to burning himself with cigarettes to numb the pain.
[37] In 2005 the accused effectively attempted suicide through heavy drinking in the bush and crashing his snowmobile through the ice. He was rescued by park rangers and spent a month in the hospital.
[38] The accused did not progress beyond Grade 10.
[39] His employment history is sporadic as it was often interrupted by drinking binges. It appears however, that the accused was a skilled and valued employee when sober and present.
[40] The accused has a 14-year-old son and 2 children, aged 3 and 5, with his former spouse.
[41] There have been several abortive and unsuccessful attempts to address the issue of substance abuse.
[42] The accused has a relatively minor criminal record. There are no prior convictions for sexual offences. The last entry on his record is in May 2008 when he was sentenced to 60 days in jail, in part, for assaulting his abuser.
[43] In conversations with his ex-wife and interviews with the pre-sentence reporter and the Gladue Report author, the accused has expressed remorse and shame. He told them that he hated what he had done and what he had become. He said that he had become a monster just like his own step-father.
Victim Impact
[44] The victim's drawing demonstrates with a powerfully eloquent simplicity the pain that she has endured and will continue to suffer as a result of the gross betrayal of her trust and innocence that was perpetrated by her step-father. It is too early to assess the overall impact of the abuse but it is certain that she has been psychologically traumatized in a manner that will have life-long implications such as those described in the community impact statement.
[45] There can be little doubt that the community at large is alarmed, demoralized and disturbed by learning that anyone, never mind 4 people who up until recently walked in our midst, could be capable of engaging in such monstrously grotesque behaviour.
[46] The effect on the immediate family of the victim including her sister, her mother, her father and her aunt has been profound. Their anguish is eloquently expressed in the victim impact statement provided by the victim's aunt.
Positions of Crown and Defence
[47] The Crown submits that the appropriate global sentence in relation to all offences is 15 years less time served in pre-trial custody.
[48] Counsel for the accused urges the Court to impose a global sentence of 10 years less time served in pre-trial custody.
[49] The accused has been in custody since his arrest on May 3, 2016. The Criminal Code makes provision for enhanced credit for pre-trial incarceration based on a factor of 1.5 to 1. The rationale for treating pre-trial custody in this manner is the lack of statutory remission or the availability of parole in pre-trial custody as well as the absence of any meaningful programming. It is not suggested that the accused's pre-trial incarceration should be treated differently. The accused has served a total of 654 days in custody to this date. I calculate that the pre-trial incarceration credit to be applied is therefore 981 days.
Sentencing Principles
Relevant Statutory Provisions
[50] The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender – Criminal Code section 718.1
[51] Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which are set out in section 718 of the Criminal Code as follows:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[52] Evidence that an offender, in committing the offence, abused a person under the age of eighteen years is deemed to be an aggravating factor – Criminal Code section 718.2(a)(ii.1).
[53] Evidence that an offender, in committing the offence, abused a position of trust or authority in relation to the victim is deemed to be an aggravating factor – Criminal Code section 718.2(a)(iii).
[54] Evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation is deemed to be an aggravating factor – Criminal Code section 718.2(a)(iii.1)
[55] Generally speaking a sentence should be similar to sentences imposed on similar offenders committed in similar circumstances – the parity principle – Criminal Code section 718.2(b)
[56] Where consecutive sentences are imposed the combined sentence should not be unduly long or harsh – the totality principle – Criminal Code section 718.2(c)
[57] A sentence of imprisonment for possessing or producing child pornography must be consecutive to any sentence of imprisonment imposed for another sexual offence against a child – Criminal Code section 718.3(7)(a).
[58] A sentence of imprisonment for a sexual offence committed against a child (other than child pornography) must be consecutive to any sentence of imprisonment for a sexual offence committed against another child – Criminal Code section 718.3(7)(b).
[59] The maximum sentence for sexual interference prosecuted by indictment is 14 years – Criminal Code section 151(a).
[60] The maximum sentence for possession of child pornography prosecuted by indictment is 10 years – Criminal Code section 163.1(4).
[61] The maximum sentence for making child pornography prosecuted by indictment is 14 years – Criminal Code section 163.1(2).
[62] The maximum sentence for voyeurism prosecuted by indictment is 5 years – Criminal Code section 162(5).
[63] Eighteen months is the maximum punishment for the assault of a police officer, and for a failure to appear in court, where the Crown proceeds summarily.
Jurisprudence
[64] The seminal case in Ontario dealing with the sentencing of sexual offenders who prey on children is R v DD.
[65] The adult offender in DD had repeatedly masturbated, fellated, fondled and sodomized four young boys aged 5 to 8 years old. He did this for periods of time of between two and seven years. He was in a position of trust in relation to all of the children. He used violence and threats of violence to compel compliance including hanging one of the boys by his heels off the balcony of a 13th story balcony. His crimes permanently scarred 4 children and devastated four different families.
[66] DD had an uneventful childhood. He was not an abuse victim. He did not plead guilty. The victims were obliged to testify at both a preliminary hearing and a trial. He did not admit responsibility until after he was convicted. He was 34 at the time of sentencing. The trial judge sentenced him to 9 years in prison. He appealed.
[67] In DD the Ontario Court of Appeal upheld the sentence of 9 years imposed at trial. In the course of so doing the Court suggested certain sentencing guidelines as follows:
Mid to Upper single digit penitentiary for repeated sexual abuse of a child by a person in a position of trust over an extended period of time not accompanied by violence and not including repeated acts of anal or vaginal penetration;
Upper single digit to low double digit penitentiary terms where the abuse includes repeated acts of anal penetration or attempted anal penetration and the use of physical violence or threats of physical violence or extortion;
[68] In the reasons for decision in DD the Court emphasized that adult sexual offenders who prey upon innocent children should expect that, in the absence of exceptional circumstances, the sentencing objectives of denunciation, general and specific deterrence, and the need to separate offenders from society, will take precedence over the other recognized objectives of sentencing.
[69] In R v Woodward the Court of Appeal reiterated and reinforced the same direction at paragraph 76 of the decision where Justice Moldaver stated:
[76] In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.
[70] While every sentencing is unique and no two offenders are identical, it is important for a sentencing judge, particularly in the context of adhering to the parity objective codified in section 718.2(b) of the Code, to be mindful of the general range of sentence imposed for similar offences.
[71] The following is a summary of decisions I have located that demonstrate a general range of sentence for sexual interference or assault offences and somewhat similarly situated offenders:
R v DD – 9 years – circumstances described above
R v RO – 7 years – conviction after jury trial – victim is stepdaughter – abuse continues over 6.5 years when victim is between 7 and 13 years old – abuse includes vaginal intercourse – addiction issues – no indication of troubled childhood – not a victim of abuse - not Aboriginal
R v FL – 8 years – conviction after trial – victim is stepdaughter – abuse perpetrated over a period of 9 years on a frequency of 2 to 3 times per week – abuse includes anal and vaginal intercourse – no overt or additional gratuitous violence – not aboriginal – not a victim of abuse – no prior criminal record
R v RTM – 5 years (increased by Court of Appeal from 2) – 3 victims the youngest of which was 4 when abuse began – offender is in a position of trust – abuse continues for 5 years – abuse includes fondling, digital penetration and simulated intercourse – plea after preliminary hearing at which complainants testified – no indication of troubled upbringing – not aboriginal - offender demonstrated limited insight
R v BJ – 6 years – victim is stepdaughter – abuse began when victim was 8 years old and continued for 5 years – abuse includes forced anal intercourse on 3 occasions – 36-year-old offender – prior criminal record for assault and property related offences – addiction issues – troubled childhood – may have been victim of sexual abuse – not aboriginal – no gratuitous additional violence indicated
R v DGF – 4 years at trial increased to 7 years on appeal – 35 year old offender with no prior record – abuse of 4 year old biological daughter while photographing and videotaping the abuse – the culminating act was a live sexual assault of his daughter broadcast by webcam to a chat room for pedophiles – extensive collection of graphic child pornography as well as images of the offender abusing his daughter – the decision of the Court of Appeal is of limited value inasmuch as the Court felt constrained by the position taken by the Crown at trial which was a global sentence of 7 years
[72] All of the summarized decisions, save one, are decisions of courts of superior jurisdiction in this province and they are therefore of considerable persuasive effect in the context of this sentencing.
[73] By way of comparison with the case against the accused, I note the following:
Gladue factors are not present in the background of any of the other offenders;
The periods of time over which the abuse was perpetrated are significantly longer in most of the cases;
Two of the cases involved multiple victims;
A breach of trust was implicated in all of them;
In five of the six cases the offender required the victims to testify at either a preliminary hearing or a trial or both;
None of the sentences exceed 9 years.
[74] Justice Campbell of the Ontario Superior Court recently examined the question of sentencing for the offence of possession of child pornography in his decision in R v Bieierle in which he quotes with approval the following summary from the decision of Justice Woolcombe in R v John:
It is my conclusion that in order to recognize and give effect to the appropriate sentencing principles for possession of child pornography, the appropriate sentence spans a considerable range, from around six or eight months at the bottom end of the range upwards to about three years. Determining where within that range is appropriate depends on the particular aggravating and mitigating circumstances in the case.
[75] Justice Molloy, at paragraph 7 of her decision in R v Kwok identified the aggravating and mitigating factors to be considered as follows:
Not surprisingly, each case turns on its own particular facts. However, an analysis of the case law does reveal an emerging consensus on the relevant factors to be taken into account:
Generally speaking, any of the following are considered to be aggravating factors: (i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography; (iii) the size of the pornography collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted); (v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and (vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloads from the Internet.
Generally recognized mitigating factors include: (i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extent to which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or community).
Analysis
Aggravating and Mitigating Factors
[76] The aggravating factors on the count of sexual interference are as follows:
The young age of the victim and her level of vulnerability
The breach of a position of trust
The frequency and duration of the abuse
The planning and deliberation involved in orchestrating the abuse
The fact that the abuse included both anal and vaginal penetration
The presence of some measure of extraneous violence in the form of spanking
The invitation to others to participate in the abuse
[77] The aggravating factors that are relevant to the charges of possessing and producing child pornography are as follows:
The accused produced the bulk of the child pornography in the collection
There was limited distribution of the pornography to others within a confined group but thankfully the images were not published on the net
The size of the collection is moderate in comparison to those found in other prosecutions but still substantial
The victim is the primary victim portrayed in the images and she was 6 and 7 years old at the time
In common with all child pornography the images are depraved but do not depict bondage or violence and the level of depravity, I regret to say, is not as egregious as other images I have been obliged to view in other cases
[78] The factors that are more properly described as an absence of an aggravating factor are: the pornography was not purchased nor was it offered for sale for commercial gain; and, the accused has no prior record for sexual offences.
[79] The mitigating factors that are relevant to all of the charges are as follows:
An early indication of willingness to plead guilty – no trial or preliminary hearing dates were set – it was clear from the outset that the victim would not be required to re-live the horror by giving evidence;
The accused's horrendous and chaotic upbringing and his own experience as a victim of long term sexual abuse – neither of which excuses his conduct but assists in giving context to his actions and understanding the reason that he lacked the moral compass that should have deterred him from the victimization of the victim; and,
His genuine expression of remorse and his recognition of the harm he has perpetrated.
A Just and Fit Sentence
[80] I am mindful that the sentences I impose on the charges under section 163.1 must be consecutive to the sentences imposed for sexual interference and voyeurism. I am also mindful that the sentence imposed for the offence of voyeurism, since it relates to a different victim, must be consecutive to the sentence imposed for the sexual interference relating to the victim. The fact that consecutive sentences must be imposed means that the principle of totality is very much a factor in the sentencing calculus in this case.
[81] The accused is a member of the Cree nation. He grew up in small communities in Northern Ontario where the sad and disgraceful legacy of the residential schools and sixties scoop reverberate to this day.
[82] His mother's alcoholism and the resulting absence of any appreciable parenting skills, or even minimal parental concern, are a part of that legacy.
[83] His step-father is a product of the notorious St. Anne residential school. The impact of the abuse he suffered at the hands of the Christian brothers led inexorably to his subsequent sexual abuse of the accused that persisted for over 20 years.
[84] These are circumstances that do not by any means excuse the offences committed by the accused but they are likewise circumstances that cannot be ignored in considering a fit sentence for the crimes he has committed.
[85] Turning first to the offence of sexual interference I find that the most useful comparator is the DD decision.
[86] In both cases the abuse was planned, frequent and sustained over a lengthy period of time. The accused's abuse of the victim persisted for 18 months before it was exposed. DD perpetrated his abuse for seven years.
[87] The sexual abuse included anal intercourse in both cases. The abuse was accompanied by a measure of extraneous violence in both cases. Both offenders were in a position of trust.
[88] The accused abused one victim whereas DD abused four.
[89] DD had a normal upbringing whereas the accused's childhood was nothing short of horrific.
[90] DD was not abused as a child. The accused was abused.
[91] DD forced his victims to testify twice. The accused made it clear from the early stages that the victim would not be required to testify.
[92] The accused invited others to participate in the abuse whereas DD did not.
[93] Based on this analysis, having regard to the comparative lengths of time over which the abuse was sustained and the number of victims abused, the gravity of the crime is more profound in DD than in this case although it is acknowledged that the invited participation of others is a factor that brings the accused closer to DD.
[94] Having regard to the Gladue factors cited above, the mitigating effect of the plea and acknowledgement of harm and responsibility by the accused and conversely an absence of a plea or expression of remorse by DD I conclude that the moral responsibility of the accused is less than that of DD.
[95] One important feature of the accused's matrix that is not present in the DD case is the recording of the abuse. Since that factor is addressed by consecutive sentences imposed for the child pornography offences it does not play a role in fixing a sentence for the sexual interference.
[96] With all of these circumstances in mind and being mindful that the predominant objectives of sentencing in this case must be deterrence, denunciation and separation from society I find that the appropriate sentence for the crime of sexual interference is eight years.
[97] The bulk of the collection of child pornography found on the accused's electronic devices consists of images of the victim. These are all images that the accused produced. This is a circumstance that militates in favour of concurrent sentences for the separate possession and production offences in section 163.1 to which the accused pled.
[98] Keeping in mind: the depravity of the images; the age of the victim at the time they were produced; the indignity to which she was subjected; the fact that they were produced in the victim's home from which she could not escape and in which she should have been able to feel secure; the number of the images; the fact that the collection included video tapes; and the fact that the videos were shown to others though not published on the net; I find that the appropriate sentence for the offences of producing and possessing child pornography is three years concurrent to each other but consecutive to the sentence imposed for sexual interference. This is at the high end of the range of sentence identified by Justice Woolcombe.
[99] The police conducted a thorough forensic search of the accused's electronic devices. In the course of that examination they discovered one video of the 16-year-old stepdaughter. The victim was showering. No other voyeuristic videos were found. Having regard to these facts and being mindful of the principle of totality but also giving due consideration to the fact that the accused played this video for others and he stood in a position of trust in relation to the stepdaughter, the consecutive sentence for the voyeurism count will be two years, to be served consecutively to the other sentences.
[100] On the count of assault police, the sentence will be 2 months consecutive.
[101] On the count of fail to appear the sentence is one month consecutive.
[102] The total global sentence of imprisonment is therefore 13 years and 3 months.
[103] As noted earlier in these reasons the accused has already served a portion of his sentence in pre-trial custody for which he is entitled to a credit of 981 days. For administrative purposes the credit for pre-trial custody will be credited as follows:
On assault police the information will note 40 days of pre-trial custody equivalent to 60 days and a disposition of time served;
On the fail to appear the information will note 20 days of pre-trial custody equivalent to 30 days and a disposition of time served;
On the count of voyeurism, the information will note 487 days of pre-trial custody equivalent to 730 days and a disposition of time served;
The remaining 107 days of pre-trial custody which is equivalent to 160 days will be applied to the concurrent 3-year sentences for possession and production of child pornography which results in a remaining concurrent sentence on those two counts of 935 days or 2 years and 205 days.
[104] I calculate that the global sentence remaining to be served is 10 years and 205 days.
[105] Ancillary orders will issue as follows:
The accused will provide a sample of his DNA;
The accused will be registered in the sex offender registry for life;
A weapons prohibition will issue for life pursuant to section 109;
An order pursuant to section 161 will issue in accord with the draft provided by the Crown.
Conclusion
[106] The horrible and depressing scenario exposed by these offences and the many circumstances that created them represent an exceedingly dark chapter in the life of this community.
[107] The natural inclination is to succumb to depression and despair.
[108] For the victim's sake, it is an inclination we must resist.
[109] There is both promise and hope to be found in the bravery and resilience of the victim in disclosing the abuse. Her family can build on that.
[110] There is strength and inspiration to be found in the fierce and steadfast support and love of her aunt. The victim can rely and lean on that.
[111] The sentences imposed today will not and cannot restore the victim's wounded psyche or ease her pain. That will only be accomplished through the love of those who surround her, an enduring faith in the power of the victim's heart, and trust in the strength of her spirit.
Released: February 16, 2018
Justice George S. Gage