Court Information

Information No.: 16-867-00

Date: March 15, 2018

Ontario Court of Justice

Heard: March 15, 2018, at Brampton, Ontario

Publication Ban Pursuant to s. 486.4 of the Criminal Code of Canada

Parties

Her Majesty the Queen

v.

W.R.

Appearances

For the Crown: A. Berg

For the Defendant: B. Smith, Agent for Counsel S. Shikhman

Before

The Honourable Justice N.S. Kastner

Reasons for Sentence

KASTNER J. (ORALLY):

Background and Procedural History

On this matter the sentence hearing was originally scheduled for December 13, 2017, and for various reasons, including the fact that the applicant was bringing a s.11(b) application which had not yet been perfected, and there were some medical issues that counsel wished W.R. to explore prior to the imposition of sentence, sentencing was adjourned. The sentence hearing in this matter took place on February 24th, 2018, and March 1st, 2018. Mr. Bytensky made argument for W.R., and Ms. Valarezo for the Crown.

My reasons for judgment are found in full in R. v. W.R., 2017 ONCJ 772.

The Offences and Victims

The accused has been found guilty of an historical sex offence against his stepson A.B. and an assault on his biological son C.D. A.B. was born in 1987, making him now 30 years of age. C.D. was born in 1995, now 22 years of age. The accused also has another son born in 1986, from an earlier relationship who is also mentioned in these proceedings.

The accused met A.B.'s mother in approximately 1988 or 1989; she had immigrated to Canada in the summer of 1988 from Guatemala and settled in Kingston, Ontario with her first husband who is from El Salvador. They were part of a Catholic program for settling immigrants which directed them to Kingston. They had a small son, A.B., who was just less than two years old when the accused came into his mother's life. He may have been an infant, the timing was not specific. A.B.'s mother left her husband and had a relationship with the accused, which had its difficulties with his substance abuse and dysfunction.

The accused isolated his stepson and cut off contact that A.B. had previously maintained with his biological father. C.D. was born several years later, and then the accused treated A.B. even more cruelly.

The Offences

Sexual Assault Against A.B.

A.B. was only 14 years old, approximately, at the time his stepfather sexually assaulted or raped him anally one early dark morning, when he was in grade nine. He was asleep on his stomach in his bed, in his own bedroom, when he awoke to grunting and the weight or thrusting of the accused on top of him. It is not known how long the accused was there for, but anal penetration had occurred. He felt pain, and A.B. had some bleeding from that area initially, enough to soak some toilet tissue, and later whenever he defecated for several days.

A.B. felt isolated and alone. His mother had retreated into her own state of denial about their substance abuse - both herself and the accused - the effect on the children and just how miserable her son was. He did not feel he could tell his mother what had happened. He was by nature shy and reclusive. A.B. would have "taken this to his grave" without reporting had not his younger brother spoken up about 15 years later with his own claims.

The proverbial Pandora's box had been opened. This incident came to light and the investigation followed culminating in the accused arrest.

Assault Against C.D.

C.D. was approximately six years old when his father forcefully pulled a shirt from him in a closed washroom, during an adult party, after one of the accused's friends said he had liked C.'s T-shirt. This was done, notwithstanding the protest of his mother and C.'s unwillingness. It was not a disciplinary act; it was malicious and humiliated him. The incident has burned a place in his memory.

Although initially C.D. had reported other acts, he declined to think about that time when testifying; he indicated he just wanted to block it all out. And the result the court only found the accused guilty with respect to C.D. on the assault of ripping off his shirt in the closed washroom.

Positions of the Parties

Defence Position

To say that they are far apart is an understatement. The defence position is that W.R. ought to receive a sentence of two years less a day conditional sentence and probation, with regard to the offence concerning A.B. He says this is in fitting with the principles of general and specific deterrence, and focuses on rehabilitation for W.R. He acknowledges that if such a sentence were imposed that it would require strict constriction of his liberty in order to properly deal with the deterrent aspect of sentencing.

On the offence for C.D., the defence seeks a suspended sentence or a concurrent short, sharp sentence.

The defence acknowledges that the sentence in R. v. Snipe, [2002] O.J. No. 5951 (S.C.J.), in the Superior Court of Justice was upheld in the Ontario Court of Appeal for three years for one act of intercourse on a 15-year old child, which was not a breach of trust. Although Mr. Bytensky indicated that Mr. Snipe was virtually a first offender, similarly situated to the accused, it was more serious, he said, because it was a stranger and not a family member. And while three years is not outside of the range, he says, two years is not outside of the range also, and therefore the court ought to consider more the conditional sentence of imprisonment as being appropriate.

The defence relies primarily on R. v. H.S., 2014 ONCA 323, and R. v. A.C., 2012 ONCA 608, because both were appellate authority, one from 2014 and one from 2012, on sentencing for historical offences.

In the H.S. decision a foster father had intercourse with his foster child on a number of occasions. She became pregnant and delivered the child. There was no plea, this was a trial, and DNA testing proved that he was the father of that child. The victim impact statement was devastating. At trial the trial judge gave two years less a day conditional sentence, and the Court of Appeal said that was manifestly too low and raised it to three years. But Mr. Bytensky said the gravity was substantially higher than that of the accused, and thus a lower sentence should be imposed for him.

In the A.C. decision, a 2012 decision of the Court of Appeal, it was historical sexual abuse, multiple occasions by a teenage relative who was not a parent. Over a period of time that appellant had entered the girl's bedroom, he was staying with the family and he tried to touch her under her shirt, kiss her, lay on top of her and placed his penis near the vagina. At trial there was a reasonable doubt there was penetration. The Crown called it attempted intercourse. The court made a finding that it was actually intercourse, but for whatever length of time was unable to be determined, but it would have to be very brief.

The Crown sought in that case three to five years, and at trial there was the conditional sentence and probation for three years, which the Court of Appeal upheld that the sentence should be in that range. It was not clear if he'd already served his conditional sentence and whether there were other factors which the Court relied upon to affirm the sentence.

The defence acknowledges that the other decisions mentioned pre-date the decision of D.(D.) and must be therefore of less influence, but he relied on the Supreme Court of Canada decision in R. v. L.F.W., 2000 SCC 6. In that case there was no intercourse; there was no remorse, and there were 10 to 12 incidents over 6 years with a 6 to 12 year old cousin. While appreciating there was no intercourse in L.F.W., Mr. Bytensky posited that he is not sure if what is worse, one brief active intercourse or these multiple acts of sexual touching, which were horrible. The accused was 22 to 28 years old at the time of these offences, and the sentence was 21 months.

The closest on the facts that defence counsel found was the decision of R. v. Nikkanen, which was a decision of the Ontario Court of Appeal in 1999. In that case the victim had awoke to intercourse. There was a consent issue. The trial judge gave a sentence of 18 months straight time, and the Court of Appeal imposed a conditional sentence of imprisonment.

It was the suggestion of the defence that community safety was not at risk here, and that a sentence in the community would be sufficient to reflect the principles of sentencing. In addition, defence asked me to consider his health issues and whether he had other issues in life to address.

The fact that his roommate had no concern about leaving the accused with his very young children was not specifically dealt with. Although the roommate was content, it is unknown as to what if any information the roommate has about the circumstances of the offence here.

Crown Position

The Crown on the other hand seeks a four-year penitentiary term, which she has justified by some cases that she has provided, and she seeks various ancillary orders regarding A.B. She also seeks a short concurrent sentence with regard to C.D.

The Crown relies on general and specific deterrence and denunciation as paramount. While she does not lose sight of the fact that rehabilitation must be a concern of the court, as well, it is her position that the lack of remorse here or the lack of insight is relevant, pursuant to s.721(3)(a), where the Pre-sentence Report should contain, among other things, information about his willingness to make amends.

The Crown was content that I excise a portion of Doctor Wilson's opinions from the Pre-sentence Report.

The Crown took the position that the absence of remorse is not aggravating, but is the lack of a feature which may show remorse towards his victim or victims, and she does not intend to conflict with the right to silence and maintain innocence by her comments.

In this case she reminds the court that W.R. has taken no active steps of rehabilitation prior to sentence. He has not sought counselling. He has not gone to any rehabilitative programs. He merely maintains his innocence, and he does not accept that he needs help. And of course rehabilitation cannot ultimately be successful without some responsibility being taken by the offender to show that he has some insight and is willing to take steps to rehabilitate himself.

The Crown spoke to the fact that he lived in a home with four male children who are very young, which speaks to risk and danger in the absence of any information, which would indicate that he is not a danger.

Both counsel agree that at the time that the first count was committed that a conditional sentence was permitted, as there was no mandatory minimum for this offence, and it was not precluded by statute from consideration under s.742.1. So the Crown agrees that I ought to consider whether or not a conditional sentence is appropriate, which I do consider.

The Crown, however, reminds the court that there is now a mandatory minimum, which is an evolution of how Parliament and appellate courts deal with these cases, and how society views these cases.

The Crown was seeking various ancillary orders which were not contested by the defence. She relied on primarily the change in tone on sentencing persons who abuse young children, beginning with the decision of R. v. D.M., 2012 ONCA 520. The aggravating circumstances she says here are the breach of trust, the psychological impact to the individuals, particularly as he placed his own selfish sexual appetite above the needs of A.B., and he destroyed A.'s entitlement to a normal upbringing and damaged his life as a person who trusted him.

She has provided the case of R. v. Woodward, 2011 ONCA 610, in which Justice Moldaver, as he then was, repeated from nine years earlier in D.(D.) the need to rearticulate the principles upon which one sentence someone who has abused a child.

She also relied on the physical acts themselves, that there was a fair amount of blood. A.B. was sore, blood was coming for days, and the definition of penetration included any penetration, though matter how brief or prolonged. She says it occurred in privacy and the sanctity of A.'s bedroom, and she submitted it was planned and deliberate in the early morning hours when everyone else was asleep, and that W.R. took advantage of the knowledge of what times the families wake and sleep times were and thought no one else would be aware of his act. She also says he did not stop on his own and jumped off A.B. when he saw he was waking. He took some time to confirm that A was awake and then he slipped to his own bed and feigned sleep to remove himself from the situation.

For impact the Crown submits it is emotional and physical, and the Crown repeated what was in the victim impact, which I have already indicated.

Circumstances of the Offender

W.R. has one entry on his record, which occurred after the sexual assault, on December 4th, 1998, for driving while impaired. He received a $1,000 fine and a driving prohibition. Although this post dates A.B.'s event, it occurred prior to the C.D. charge and it reveals that he had an issue with alcohol, consistent with the description of the accused on the night of the party that he assaulted C.D., and many times over the years. It was the evidence of the witnesses who knew him best, his son, his stepson and his wife, that he had a terrible problem at that time with both alcohol and substance abuse. The evidence discloses that cocaine was also an issue for him in the period of time that we are discussing.

He had no pre-trial custody in this particular case; he was released by an officer in charge of a station by way of an undertaking. There was no onerous conditions of release on that undertaking, which reasonably had primarily no contact provisions with the complainants in this matter.

Pre-sentence Report

A Pre-sentence Report was prepared. Mr. Bytensky takes issue with parts of the Pre-sentence Report, many of which I indicated to him in submissions that I was disregarding.

The Crown was relying upon an indication that Doctor Wilson who is a manager, risk management at Peel Police was interviewed and shared some concerns about potential risk for this offender, in light of what she had read, notwithstanding that she continued by making a recommendation of a combination of custody and mandatory therapy post custody. Now, notwithstanding that this was included by the probation officer in the Pre-sentence Report, it is quite improper for any party to make recommendations as to what the sentence should be, and I do disregard that portion of it.

In addition, Mr. Bytensky took issue with the fact that the author of the report indicated that he was maintaining his innocence and he showed no insight into his behaviour and was not remorseful towards any of the victims of the offence.

While it is quite clear that the lack of remorse is not an aggravating circumstance, and I do not take it into account at all in that way, it is of some significance in terms of rehabilitation as to whether or not W.R. has any insight into his offending behaviour, and whether or not he has taken any steps towards his own rehabilitation. That is entirely absent in this case and it is one of the factors that should be considered, although it carries absolutely no weight in terms of the way he conducted the trial, as he is entitled to have a trial, and no inference should be taken from that.

Character Letters

Character letters have been filed. Some of these character letters are of value. The Crown objected to the character letters being filed. But as indicated in submissions, some of the letters have less weight because they did not know W.R. in the timeframe that we are talking about for this charge, and none of these persons were in either an intimate or residential relationship with him during that period of time, and I take into consideration that these types of offences happen generally behind closed doors. But I do weigh the favourable character letters as some evidence of support in the community and something that ought to be considered in the circumstances of the offender.

Living Arrangements and Health Issues

It was indicated that W.R. is presently living with another gentleman as a roommate, and that person has four young children, all boys. The ages of those children was discussed in submissions. One is an infant and the others are three, seven and nine years of age. This may be of some concern, given the nature of this charge and the potential for recidivism.

It was indicated to me that W.R. had some health issues, and in particular he had been diagnosed with some type of mass in his abdomen that was going to be the subject matter of a visit to an oncology clinic or a surgeon. It became clear, as I allowed for the defendant to go and get whatever medical treatment he needed, that notwithstanding the clinic he went to, that what he has is not a cancer. I am advised by Ms. Shikhman this morning that it is a mass in the buttock area and there is some leakage which requires bandaging, and that the surgeon's opinion whom he saw last week is that is something that he would just have to learn to cope with. Although I do take into consideration his present state of health, it is something that could clearly be dealt with by any authority if he were to be incarcerated.

Lack of Insight and Empathy

There is no doubt that W.R. has not demonstrated any insight into his behaviour, and as a result he shows no empathy for his sons; they do not wish to have contact with him.

A Pre-sentence Report establishes that W.R. does work; he does go to church and he does favours for his roommate in terms of picking up his sons and other care-giving roles.

As I commented about the letters of recommendation, one co-worker and friend acknowledge that regarding his relationship with his children, he stated, "It is limited, I know this because I lived with him for a year about two years ago", and to his knowledge his relationship with his children is strained.

Substance Abuse History

W.R. maintains that he sometimes has a glass of wine now, but he does not have a problem with alcohol at present. He admitted that he used cocaine for one year with his ex-wife, about 10 or 12 years ago, and tried it 9 times, but he denied experimenting with this or any other drug. His friend describes W.R.'s consumption of alcohol as "moderate, I wouldn't say it's excessive."

No report has been filed by a psychologist or any other expert with regard to W.R. All of the information in the Pre-sentence Report as to his sexual orientation and his sexual behaviour is all self reports by W.R., who claims to have no sexual interest in children.

In the conclusion of the Pre-sentence Report the author describes W.R. as a 55-year-old repeat offender who is not remorseful. She reviewed all of his antecedents and indicated there were no noted special considerations in respect of the subject's ability to comply with community supervision and his willingness to change. She made various recommendations in the event that he received community supervision, which also would require attendance for a sexual behavioural assessment and counselling in a clinic.

Victim Impact

C.D.'s Impact

C.D. declined to give a victim impact statement. It is quite clear Mr. Bytensky rightly submitted that C.D. is quite a messed up young man. But the source of that degree of dysfunction one cannot isolate to the defendant, necessarily. Although it is quite clear that the incident with C.D. had quite an impact on him, and notwithstanding his reluctance to testify about anything which is alleged to be sexual, he was quite willing to talk about that particular incident. He did describe it as a sexual incident, but in my reasons I have indicated why that cannot be established beyond a reasonable doubt.

A.B.'s Impact

A.B. gave an victim impact statement and it is quite compelling. He indicates:

This process has been extremely hard and stressful, I have had mental breakdown since starting this process. When the process started I ended up getting Bell's Palsy from the stress. Bell's Palsy is when your nerve system shuts down. It took me three to four months to regain my facial muscles, to either drink anything properly and be able to talk properly again. Growing up I felt like a coward, never strong enough or brave enough to face what happened until I became an adult. My self esteem is very low because of the things that happened. I feel like I am not normal and I will never be normal. I will never forgive or forget you.

This poignant victim impact statement clearly understates the impact that was noted during the trial on A.B.

A.B. did not have an anxious need to testify. He was doing his civic duty in light of the investigation. As far as he was concerned had his brother C.D. not reported anything he would have taken his secret of what the defendant did to him to the grave.

A.B. spiralled downward after this anal intercourse with the defendant. He was in grade nine and he neglected his studies. He became involved with boys that took substances, which he said he took to try to escape into another world where this pain would not be remembered.

Fortunately A.B. has rehabilitated himself over a period of number of years, to the extent that he is engaged to be married. He works and he is anxious to get on with his life and put this incident behind him, if he can. He testified as to the nightmares that he has and the terrible feeling of aloneness that came with this brutal act.

Legal Principles

Both counsel have filed a number of cases which reflect general principles, as well as specifically dealing with issues related to this type of case.

Most of the Crown's book of authorities is with respect to general principles. There is some cases to support a range, and Mr. Bytensky also provides cases to support the lower end of any range.

By way of general principles, s.718 of the Criminal Code enunciates that the fundamental purpose of sentencing is to protect society and to contribute along with crime prevention initiatives, respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives, and I include:

(a) To denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 reparation for harm done to victims or the community; and

(f) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

Further s.718.01 indicates that:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

In s.718.2:

A court that imposes a sentence shall take into consideration the following principles [which include]:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender...including:

(ii.1) Evidence that the offender, in committing the offence, abused a person under the age of 18 years.

(iii) Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

(iii.1) Evidence that the offender had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

And all of these factors shall be deemed to be aggravating circumstances.

Also s.718.2 indicates that:

(d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Application of Principles

Defence Argument

It is Mr. Bytensky's position that one can achieve these goals with strict conditions on a conditional sentence of imprisonment. His client is effectively a first offender with one conviction for impaired driving, while not completely irrelevant is somewhat relevant. He said he no longer abuses alcohol, which is contradicted by his medical condition now, and his family dynamic that was the subject in the trial is not current. He submits there is nothing about the accused to say he is an ongoing danger to the community outside of the family dynamic. It was the defence position that the sexual offender registration process would be sufficient to protect the community.

He distinguishes the cases relied upon by the Crown. In R. v. D.M., 2012 ONCA 520, the Court of Appeal raised a three-year sentence to a seven-year sentence, but he said that that regarded 124 acts of intercourse over a lengthy time.

In R. v. Woodward, 2011 ONCA 610, he distinguishes that case by indicating it was luring a 12-year old with money for sex, and that person was not in a position of being a parent, but the aggravating circumstance was luring.

I agree with Mr. Bytensky that the circumstances surrounding the fact that there was a trial with the complainants having to testify is not an aggravating circumstance. He did not need cases to support that position, I am quite aware and it makes ultimate sense that someone can maintain their innocence and have a trial.

Crown Argument

The Crown on the other hand relies on general and specific deterrence and denunciation as paramount. While she does not lose sight of the fact that rehabilitation must be a concern of the court, as well, it is her position that the lack of remorse here or the lack of insight is relevant, pursuant to s.721(3)(a), where the Pre-sentence Report should contain, among other things, information about his willingness to make amends.

The Crown was content that I excise a portion of Doctor Wilson's opinions from the Pre-sentence Report.

The Crown took the position that the absence of remorse is not aggravating, but is the lack of a feature which may show remorse towards his victim or victims, and she does not intend to conflict with the right to silence and maintain innocence by her comments.

In this case she reminds the court that W.R. has taken no active steps of rehabilitation prior to sentence. He has not sought counselling. He has not gone to any rehabilitative programs. He merely maintains his innocence, and he does not accept that he needs help. And of course rehabilitation cannot ultimately be successful without some responsibility being taken by the offender to show that he has some insight and is willing to take steps to rehabilitate himself.

The Crown spoke to the fact that he lived in a home with four male children who are very young, which speaks to risk and danger in the absence of any information, which would indicate that he is not a danger.

Both counsel agree that at the time that the first count was committed that a conditional sentence was permitted, as there was no mandatory minimum for this offence, and it was not precluded by statute from consideration under s.742.1. So the Crown agrees that I ought to consider whether or not a conditional sentence is appropriate, which I do consider.

The Crown, however, reminds the court that there is now a mandatory minimum, which is an evolution of how Parliament and appellate courts deal with these cases, and how society views these cases.

Crown's Reliance on Key Cases

The Crown was seeking various ancillary orders which were not contested by the defence. She relied on primarily the change in tone on sentencing persons who abuse young children, beginning with the decision of R. v. D.M., 2012 ONCA 520. The aggravating circumstances she says here are the breach of trust, the psychological impact to the individuals, particularly as he placed his own selfish sexual appetite above the needs of A.B., and he destroyed A.'s entitlement to a normal upbringing and damaged his life as a person who trusted him.

She has provided the case of R. v. Woodward, 2011 ONCA 610, in which Justice Moldaver, as he then was, repeated from nine years earlier in D.(D.) the need to rearticulate the principles upon which one sentence someone who has abused a child.

She also relied on the physical acts themselves, that there was a fair amount of blood. A.B. was sore, blood was coming for days, and the definition of penetration included any penetration, though matter how brief or prolonged. She says it occurred in privacy and the sanctity of A.'s bedroom, and she submitted it was planned and deliberate in the early morning hours when everyone else was asleep, and that W.R. took advantage of the knowledge of what times the families wake and sleep times were and thought no one else would be aware of his act. She also says he did not stop on his own and jumped off A.B. when he saw he was waking. He took some time to confirm that A was awake and then he slipped to his own bed and feigned sleep to remove himself from the situation.

For impact the Crown submits it is emotional and physical, and the Crown repeated what was in the victim impact, which I have already indicated.

Key Passage from Woodward

The following passage from Woodward, 2011 ONCA 610, beginning at paragraph 73, is relied upon and may be of assistance:

The foregoing concerns inform the fundamental message that D.(D.) sought to convey, at paragraph 45:

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.

He further said in paragraph 75 that:

Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. [In that case] in light of the appellant's past criminal activity...the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid to upper-level single-digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.

At paragraph 76 Justice Moldaver concluded:

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 sentence 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.

Crown's Mitigation Arguments

By way of mitigation the Crown submits that W.R. is now a productive and working member of society, however, he has a lack of insight about the offences and the effect of the offences on others.

In the D.M. case the Crown submits that the Woodward sentence was reviewed by the Court of Appeal, which was only one act of intercourse against a child, realizing that luring meant that it should be a higher sentence in that case, the principles are relied upon, and further the Crown relies upon the Snipe decision, in the Superior Court and the Court of Appeal, which was the rape of a 15-year-old girl. In that case the accused was a stranger to her so there was no breach of trust, and the trial judge imposed four years, which sentence was upheld by the Court of Appeal.

The Crown reminds the court that Correctional Services Canada abides by acceptable standards regarding health and that health services are available.

Conclusions

Ancillary Orders

First of all, the ancillary orders which were not seriously contested, I am going to impose most of them; I am denying one of them.

Firstly, the Crown seeks a DNA order with regard to the sexual assault, which is a primary designated offence. That is not opposed by the defence. I am going to impose it. This will be an in-custody DNA order to be taken today in this building.

The Crown also seeks a DNA order for the s.266 offence on C.D., which is a secondary designated offence. Although the Crown makes some argument about whether or not one count is appealed or another count is not, I find no utility in also imposing such an order on a second charge, so there will be no order on that charge. He is already subject to a DNA order on the first count.

The Crown is also seeking on the sexual assault a s.109 order for life. S.109 does apply to the s.271 offence in all the circumstances, as the Crown proceeded by indictment. It is hereby ordered that W.R. is prohibited from possessing any firearm other than a prohibited firearm, a restrictive firearm and any cross-bow restricted weapon, ammunition and explosive device during a period that ends not earlier than 10 years after the person is released from imprisonment. And he is prohibited from any prohibited firearm, restricted firearm, prohibited weapons, prohibited device and prohibited ammunition for life.

Further the Crown seeks a Sexual Offender Identification Registration order, pursuant to s.490.012 of the Criminal Code of Canada for a period of 20 years. I have reviewed that section and under s.490.013 an order is made under sub-section 490.012, which ends 20 years after it is made.

Further the Crown sought an order under s.161 for a period of 20 years for non-communication with certain named parties. She is not seeking an order in relation to sub(d) which relates to internet communication; it is not applicable in these circumstances.

It is not opposed, although Mr. Bytensky asked me to consider making some exceptions for the children of his roommate, but there is no assurance that this is going to be a permanent type of relationship and does not appear that there is any reason to alter from what is contemplated in the section, so I am going to make an order under 161(1), prohibiting him from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or a community centre. He is also prohibited from being within two kilometres, or any other distance specified in the order, of any dwelling house where the victim identified in the order ordinarily resides or of any other place specified in the order.

Sub(b), he is prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

And (c), he is prohibited from having any contact, including communicating by any means, with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.

Further, the Crown seeks an order under s.743.21 of non-communication while he is in custody. I will impose this order, as well, and I prohibit him from communicating directly or indirectly with the two named victims - with their full names in this order - and the mother G., except in accordance with any conditions specified in the order. The order specifically indicates that the prohibition can be against any victim, witness or other person identified in the order, so I will name those three. Ms. Valarezo did not indicate who specifically, but I imagine that is who it is.

Sentence

Now with regard to the sentence itself. After very careful consideration I am of the view that for the sexual assault against A.B., only a penitentiary sentence range properly reflects the range of penalty appropriate for such a grave offence against the vulnerable teenager with whom he was entrusted a parental role for most of his life. Given the abhorrent nature of the act and the grievous effect upon the young boy. A.B. was robbed of the discovery of his own nascent sexuality at a particularly fragile age and brutally violated in his own bedroom. He had some physical manifestations for a week or two, but the psychological effects are deep and persistent and not dulled by the passage of time, but exacerbated by having to bury that secret deep within for years, and then by the anxiety of testifying.

I have reviewed all of the cases which have been filed by both counsel, and their careful and thorough submissions. As the length of the appropriate sentence exceeds two years, a conditional sentence for imprisonment is not available. (See s.742.1 of the Criminal Code). Even if the range of sentence in this case fell below the two-year mark it would not be by much, and the principles of general and specific deterrence could not be met in this case by the imposition of a conditional sentence. Nor would such a sentence reflect society's revulsion for the offence. I accept as the Supreme Court of Canada did in Proulx that in some cases general and specific deterrence can be met by such a sentence. This is not one of those cases.

There is no pre-trial custody prior to the imposition of sentence, and thus no deduction for any pre-trial custody.

There is no bail order or any significant restrictions on W.R.'s liberty pending the trial of this matter or sentencing.

While the court shares concerns about potential health hazards for this accused person, that has been thoroughly canvassed at this time by medical physicians of his choosing, and I am assured that this is thought by the specialist to be something he would just have to deal with or he may need a second opinion. It is not cancerous, and I am assured that the facilities can ensure that W.R. gets proper care for any of his health issues.

The range posited by Crown counsel here is not only within the range, but it is the sentence that was imposed in Snipe for a single act of intercourse. I am reducing that four years by half a year to reflect the passage of time since the offence and the significant health issues that now W.R. has to deal with.

So the sentence will be three and a half years in the penitentiary on that count.

The offence against C.D. while not insignificant is not as heinous or grave as the act perpetrated on A.B. Both counsel indicate that a short, sharp concurrent sentence could reflect the breach of trust, the young age of the child and the actions taken by W.R. that night. I am in agreement and I am going to impose 30 days incarceration concurrent to the s.271 offence.

A victim surcharge does get added to each of these two counts. Ms. Smith, how long is being requested to pay the victim surcharge?

MS. SMITH: I have not been given any instructions, so the typical on that would probably be appropriate, if there is – I honestly – sorry.

THE COURT: All right. Well 30 days is what is standard, but given the fact that he is going to go to jail for a significant period of time I will give three years time to pay.

MS. SMITH: Thank you.

...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED

Released: March 15, 2018

Justice N.S. Kastner