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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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: 2019-04-10

Court File No.: Belleville 180568-181159-181168-182021

Between:

Her Majesty the Queen

— AND —

R.S.

Before: Justice E. Deluzio

Heard on: March 7, 2019

Reasons for Sentence released on: April 10, 2019

Counsel:

• Pardeep Bhachu, counsel for the Crown
• Ruth Roberts, counsel for the accused R.S.

Reasons for Sentence

Justice E. Deluzio

[1] On November 14th, 2018, R.S. pleaded guilty to two counts of sexual interference, three counts of incest, two counts of sexual assault, and one count of making child pornography. One count of sexual assault relates to a single incident of unwanted sexual touching against R.S.'s wife G.S. All of the other offences relate to acts of sexual abuse by R.S. against his three biological daughters with G., namely C., S. and Sk. By the time the charges were laid, C. was 23, S. was 22, and Sk. was 15.

[2] R.S. was first arrested for making child pornography when police discovered that he had taken nude pictures of his 15-year-old daughter S., who then posted the pictures of herself online. She posted the photos on an online social media dating application called Scout, that her father had introduced her to. Sk. believed she was sharing her photos with two other females under the age of 13, who were also sharing their photos with her, but a short time later, an unknown individual started emailing Sk., demanding that she send him naked videos of her. This prompted R.S. and Sk. to go to the police. The police were unable to identify the individual demanding the videos and they closed their investigation. On June 26, 2018, police received a report from the CAS. Sk. had told them about the nude photo-sharing incident and she also told them that it was her father who had taken the nude photos of her. On July 11th, 2018, R.S. attended the Bancroft OPP station and was arrested for making child pornography.

[3] Under caution, he admitted to taking the nude of his daughter Sk., and during the statement, R.S. also admitted to having sexually abused all three of his daughters multiple times over ten years. His acts of sexual abuse included sexual intercourse beginning when each girl was around 13 years old.

[4] R.S. admitted that he had sexual intercourse with C. monthly for about ten years. He admitted that he had sexual intercourse with S. and Sk.; he said about two or three times with each girl. And he admitted to multiple acts of touching the girls on their buttocks and breasts, forced masturbation, forced oral sex, and digital penetration. R.S. admitted sexually abusing each of his daughters on a weekly basis. He also admitted to police that he had last had sexual intercourse with his daughter C. within the past few weeks of his police interview.

[5] Police later interviewed the girls and they all described having sexual intercourse with their father on multiple occasions, dating back to when they were living in a different residence prior to 2012. C. and S. also described their father having anal intercourse with them on multiple occasions. All of the girls believed they were around 13 years old when the sexual assaults started.

[6] All three girls have intellectual disabilities and they receive community supports. At the time of R.S.'s arrest, C. and S. were living independently in a building owned by Community Integration Services, and they were and continue to receive daily living supports. Sk. lives with her mother.

[7] The Crown asked that the Court impose a penitentiary sentence of 11 to 12 years, taking into account R.S.'s pretrial custody of eight actual months or 12 months on an enhanced 1.5 to 1 basis. Defence counsel suggests that the appropriate sentence is a sentence in the range of eight to nine years, less credit for pretrial custody. She agrees with the ancillary orders sought by the Crown.

[8] R.S. is 44 years old. He and G.S., the girls' mother, have been married for 24 years. I understand that at this point, Ms. G.S. does not want contact with R.S. and plans to divorce him. R.S., as I've indicated, has remained in custody since his arrest.

[9] The Crown acknowledges the mitigating factors here, including R.S.'s confession, his guilty plea and his expressed remorse. Defence counsel agrees with the aggravating factors detailed by the Crown, but argues that R.S. should be given significant credit for his guilty plea because, had R.S. not confessed, these crimes may not have come to the attention of the police. She argues that R.S.'s confession and guilty plea demonstrate his level of genuine and extreme remorse to this Court and his strong desire to get help.

[10] A pre-sentence was ordered and has been filed by the Court, and a sexual-behaviour assessment was also conducted by Dr. Jan Looman, and the report has been filed and is dated February 2nd, 2019.

[11] Frankly, neither report provides much insight or understanding of R.S.'s sexual offending.

[12] R.S. told the officer at the sexual-behaviour assessment that he sexually abused his own daughters because he and his brother had been physically abused and because he had seen his sister sexually abused by his stepfather. He also said that he used his sexual behaviour to cope with feelings of loneliness and boredom. The actuarial risk assessments completed with R.S., suggest that he has a high level of dynamic risk factors and treatment needs but that overall, he is rated to be an average risk to re-offend sexually. Dr. Looman writes:

"From what little I could get from R.S. in the interview regarding his offending, it appears that he commenced his sexual abuse of his daughters when his relationship with his wife grew strained and they stopped having sex. He appears to have turned to his daughters as substitutes for his wife."

[13] As Justice Moldaver, writing for the Ontario Court of Appeal, noted in the oft-quoted Ontario Court of Appeal decision in R. v. D.D., [2002] O.J. No. 1061 (C.A.):

"As a general rule, when adult offenders in a position of trust sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid-to-upper single digit penitentiary terms. When the abuse involves full intercourse and is accompanied by other acts of physical violence, threats of physical violence or other forms of extortion, upper-single digit to low-double digit penitentiary terms will generally be appropriate to reflect the enhanced gravity of the offence and the increased level of moral culpability of the offender."

[14] There is no question that this involves the most serious breach of trust. It is sexual abuse by a father against his own daughters, who are vulnerable not just by their complete dependency on their father, but exacerbated in this case by their intellectual delays which contributed to their ongoing vulnerability to ongoing sexual abuse continuing into their early twenties.

[15] R.S. has been committing multiple serious acts of sexual violence against his three daughters for at least a decade. C. was a victim of sexual intercourse perpetrated by her father, by his own admission monthly for ten years, at least 120 times. Both Sk. and S. were also subjected to multiple acts of intercourse and multiple weekly acts of sexual abuse for many, many years. It is aggravating in this case that R.S. took nude photos of his 15-year-old daughter after introducing her to a social media dating site.

[16] As Justice Moldaver wrote:

"Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know they will pay a heavy price."

[17] Instead of protecting and nurturing his daughters, R.S. abused his position of trust and authority over them by repeatedly victimizing them in forcing them to perform sexual acts with him. Their dependency made them always available to satisfy his deviant sexual needs. R.S. robbed his daughters of their innocence and their childhood. Their victim impact statements, prepared with the assistance of the Victim Support Worker, indicate that the girls feel sad and angry about what their father did to them.

[18] S. shared that she is angry and upset, that her heart feels torn apart and cracked, that it's not right what he did, and she feels safer when her father isn't around, but she also misses him.

[19] C. tells us that she also feels sad and angry and she was able to describe how her sadness has affected her. She gets headaches frequently. She has difficulty sleeping most nights. She cries herself to sleep at night. She has feelings of shame. She doesn't want to tell anyone what happened with her dad.

[20] Sk. says that she hated what her dad did to her by forcing himself on her and that she won't trust her dad again because he betrayed the trust she had for him.

[21] The Crown submits that R.S.'s conduct was monstrous and that his breach of his daughters' trust is aggravated by his awareness of their disabilities. He abused his position of trust and authority and he took full advantage of their disabilities and their vulnerabilities to groom and violate them sexually. I agree with her assessment. The Crown argues that R.S. remains a risk to all of his daughters, especially given their own disabilities. I agree with this too.

[22] The victim impact statements that the girls filed illustrate their intellectual disability and challenges, but they also illustrate their conflicted feelings towards their father even to this day.

[23] I have reviewed the cases provided by both the Crown and Defence, and while I found all of the cases of assistance, I find the following cases most relevant in this sentencing hearing: case of R. v. O.B., [2008] O.J. No. 4423 (Sup. Ct.), a 2008 decision of the Ontario Superior Court. That decision involved an accused convicted of sexually assaulting his two stepdaughters, including two incidents of inter-course, multiple incidents of sexual touching. One of the daughters became pregnant. The girls were between nine and 13 and seven and 11 when the abuse occurred, and the Court imposed an 11-year sentence. The Court noted that it was appropriate to impose consecutive sentences and to separate the crimes against each girl, and imposed a nine-year sentence for one daughter and a two-year consecutive sentence for the other daughter. This case is distinguishable, obviously, in the fact that there are only two admitted incidents of intercourse, as opposed to the multiple acts of sexual intercourse in this case.

[24] The case of R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 (C.A.), is also helpful. The accused in that case was an uncle of the victims. There were 124 incidents over three years. I believe it was one incident, one victim, and the Court imposed a seven-year sentence.

[25] The case of R. v. J.W., [2014] O.J. No. 6501 (Sup. Ct), again a case in the Ontario Superior Court, there were seven victims. The offences involved multiple acts of sexual assault, including touching, oral sex, forced masturbation, over a period of four years, short of intercourse. The Court imposed a global sentence of 12 years.

[26] In the case of R. v. C.K., 2015 ONCA 747, [2015] O.J. No. 5769 (C.A.), another decision of the Ontario Court of Appeal in 2015, the Court imposed a sentence of ten years. There were two victims. The offences included fondling, oral sex, anal intercourse. A ten-year sentence was upheld on appeal and the Court noted that the appellant, in a position of trust, subjected two of his grandsons to prolonged sexual abuse over nearly ten years and caused incalculable damage to the complainants' lives.

[27] The case of [R. v. R.S., [2017] O.J. No. 1096 (OCJ) affirmed by 2019 O.J. No. 558 (C.A.), is also instructive in this case. In that case, the 2017 decision of the Ontario Court of Justice upheld by the Ontario Court of Appeal, the accused was convicted of 25 counts of sexual assault against three girls and was found to be in a parental relationship with the girls when these multiple acts, including sexual intercourse occurred, and although he was 84 years old at the time of sentencing and significant time had occurred between the acts, the Court imposed a 12-year sentence.

[28] I understand and have heard the defence submissions that it is mitigating that R.S. confessed to his crimes and has pled guilty and expressed remorse. I want to note that it is not mitigating that he has no criminal record. He has been a criminal for at least a decade, committing repeated criminal acts of sexual violence against his own children.

[29] In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (C.A.), which was a decision in 2011 by the Ontario Court of Appeal, Justice Moldaver again writing for the Court, was considering an appeal by Mr. Woodward from a conviction for luring a 12-year-old child for the purpose of committing an offence of sexual interference and sexual assault. The Ontario Court of Appeal upheld the Trial Court's six-and-a-half-year global sentence and reaffirmed the significance of the sentencing principles of denunciation and deterrence when sentencing adults convicted of sex crimes against children. Justice Moldaver writes at paragraph 76 of that decision:

"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 this. While the effects of a conviction on the offender and the offender's prospects of 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."

[30] The cases, especially the cases provided by the Crown, indicate the Courts are more and more willing to impose significant sentences in these cases. When sentencing an offender, who is a parent, for repeated sexual offences against his own children, over a lengthy period of time and including multiple acts of full sexual intercourse, the sentencing principles of denunciation and deterrence are indeed paramount and a substantial sentence is required in this case.

[31] Therefore, taking into account R.S.'s pre-trial custody of one year, and frankly, giving R.S. credit for his confession and his guilty plea, I impose a sentence of 11 years; otherwise, in my view, an appropriate sentence here would be a global sentence of at least 15 years, possibly higher, in the range of 15 to 18 years. So, in my view, I am giving significant credit for time served and for R.S.'s confession.

[32] The sentence will be imposed as follows:

i) On counts 3 and 6 (the offences relating to C.), eight years on each count, concurrent;

ii) On count 7 and 12 (the offences involving S.), three years concurrent;

iii) On count 13 (involving Sk.), three years consecutive;

iv) On count 15 (involving Sk.), three years concurrent;

v) On count 17 (the child pornography), one year concurrent;

vi) On count 2 of the second information (involving G.), 90 days concurrent.

vii) The ancillary orders requested by the Crown will be made, including the DNA order, a lifetime SOIRA order, a ten-year Section 109 order, and a Section 161 order for life. There will also be the requested non-communication order while R.S. is in custody, and I will make the recommendation on the warrant that he be transferred to a penitentiary in New Brunswick so that he's closer to family.

Released: April 10, 2019

Signed: Justice E. Deluzio