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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

ONTARIO COURT OF JUSTICE

CITATION: R. v. P.F., 2019 ONCJ 38

DATE: 2019 01 24

COURT FILE No.: Ottawa 18-RA19534

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

P.F.

Before Justice David A. Berg

Reasons for Sentence

Ms. T. Dobec….……………………………………………...counsel for the Crown

Mr. P. Giancaterino.....................................................counsel for the defendant

BERG J.:

Introduction

[1] On June 15, 2018, P.F. pleaded guilty before me to the following two charges:

• that between October 7 and 31, 2017, he did without lawful excuse make child pornography in the form of a photograph contrary to section 163.1(2) Criminal Code

• that between October 7 and 31, 2017, he did, knowing that K.F. was by blood relationship to him a daughter, have sexual intercourse with that person contrary to section 155(1) Criminal Code

Both charges are straight indictable offences. In the context of the incest charge, I note that the victim was seventeen years of age.

Facts relevant to sentencing

[2] The victim in this matter is the daughter of P.F. Her mother separated from the accused when the victim was still a toddler and took all the children with her. The victim and her father appear to have had but minimal if any contact from that time until she was fifteen years old. Then, in 2015, she moved to Ottawa and commenced living with P.F. at least on a part time basis. The accused began giving his daughter back rubs which then led to full body massages and then eventually to vaginal intercourse. At the time of the intercourse, the victim was seventeen years of age. The intercourse occurred over a period of three weeks.

[3] In October of 2017, the victim had an argument with P.F. As a result, she contacted her mother who drove to Ottawa to pick her up and take her back to the mother’s home. During the drive, the victim disclosed that she and P.F. had been having sexual relations. The victim asked her mother whether such father/daughter relations were illegal; her mother advised her that they were indeed illegal.

[4] During the week of December 28, 2017, the mother had occasion to observe the victim’s Facebook account profile. She noticed photographs of the victim and P.F. where they were naked. She also observed photographs of the victim performing fellatio on the accused. I have been advised that the photographs were sent only to the victim.

[5] The mother contacted the police on January 4, 2018 to report the above activity. During the course of the investigation, the victim, while reluctant to speak to the police, confirmed that the photographs were of her and her father and that her father took the photographs. I have been advised that “she does not wish to proceed with charges as she loves her father and would like to move back in with him.”

[6] P.F. was arrested on February 8, 2018. He advised the investigating officer that “I never forced sex on my daughter or made her touch me unwillingly.”

[7] I have received a pre-sentence report prepared by probation services. P.F. is a 39-year old man who was raised in southern Ontario. He was adopted at a very early age after having been taken from his abusive mother or grandmother. It seems that he never bonded with his adoptive family and left home at the age of sixteen and ended up living on the streets of Toronto. He has not had much to do with his adoptive family since leaving home albeit he has remained in contact. He began a relationship with the victim’s mother about twenty years ago. They moved from Toronto and ultimately had four children. The relationship dissolved in 2005 with the victim’s mother taking all her children to another city. The victim is P.F.’s eldest child. The accused had had no experience raising a child since 2005.

[8] While she was living with P.F., she does not seem to have been attending school or working. The accused did not follow up on his daughter’s medical appointments. The P.S.R. cites a worker for the Children’s Aid Society that had some dealings with P.F. and his daughter at that time as indicting that if the victim had been younger, she would have been apprehended.

[9] It is noteworthy that during the period his daughter was living with him, P.F. was incarcerated on two separate occasions. Each time, the victim would live on her own until P.F. was released after having served his sentence.

[10] P.F. was diagnosed with Attention Deficit and Hyperactivity Disorder in elementary school. He did not progress beyond Grade 9 in high school. He has what can best be described as a spotty work history. He usually works at short-term or casual jobs. These do not seem to last long because P.F. appears to be unable to get along with co-workers or employers. That being said, it does seem that he worked for one employer for six months in 2017 and that that employer is willing to employ him again.

[11] The P.S.R. well documents that P.F. has a history of substance abuse issues with both drugs and alcohol. When P.F. was released from the penitentiary in 2015 “he claimed that he was abstaining from chemical drugs but admittedly relapsed with [the victim]”. A Sexual Behaviours Assessment prepared by Dr. Jonathan Grey, a forensic psychiatrist, for this sentencing quotes the accused as stating “that is where I screwed up as a father because I let her do drugs. I promoted it.” He told Dr. Grey that he used marijuana, MDMA, and speed with the victim.

[12] Dr. Grey’s assessment included the following diagnoses:

• Stimulant and other hallucinogenic use disorder, mild, in remission in controlled environment

• Possible attention deficit hyperactivity disorder

• Possible antisocial personality disorder

[13] Dr. Grey was of the opinion, however, that there is no evidence that P.F. suffers from pedophilic disorder. He noted that

[i]ncest offenders, even those with prepubescent or pubescent victims, are less likely to be generally sexually attracted to underaged males or females than those who offend against extra-familial victims. This is due to the fact that incest offenders tend to commit their offences due to motivations other than a specific sexual preference for under-aged males or females. Family dynamics, opportunity, and other factors are generally underlying causes of the behavior of incest offenders rather than pedophilic interests.

The doctor continued:

[t]here are many factors associated with a higher risk of general or violent reoffence in [P.F.’s] case. This includes: his extensive criminal record, including more than 13 past sentencing dates; his history of several violent offences; his history of recreational drug abuse and his admitted history of drug abuse influencing his offending behavior in the past; frequent breaches of terms of release or supervision; and a diagnosis of antisocial personality disorder. Mitigating factors in terms of his risk of reoffence include: his advancing age; his relatively good history of employment; and his apparent responsivity to treatment.

With respect to [P.F.’s] index offences in particular, they were not motivated out of the presence of a paraphilic disorder such as pedophilic disorder. Rather, his index offences were opportunistic and facilitated by his use of recreational drugs at the time causing a disinhibiting effect and increasing his libido. There is some evidence in the literature that the so-called “incest taboo”, a natural aversion to sexual activities in biological relatives, not being developed if the father does not live or have contact with their biological child during their early development. Indeed, [P.F.] had no contact with his daughter between the ages of five until she was likely post-pubescent at the age of fifteen. This lack of contact during a substantial portion of her childhood likely reduced the natural aversion he would have had to sexual attraction towards her.

He concluded that P.F. poses generally a moderate to high risk of violent reoffence. In regards to sexual reoffence, his risk is “low and based only on opportunity. There is no evidence of a specific sexual disorder and treatment should be directed towards more general criminogenic factors.”

[14] P.F. has a significant criminal record starting in 1997 with entries in 1998, 2005, 2006, 2007, 2008, 2010, 2013, 2016, and 2017. There are no prior convictions for sexual offences in his record. There are, however, many convictions for crimes of dishonesty, breaches of court orders, and violence. In particular, I note 2008 convictions for aggravated assault, possession of a weapon, uttering threats, and breach of probation for which he received a global sentence of thirty months on top of sixty days of pre-sentence custody. As well, another conviction in 2013 for aggravated assault led to a twenty-one month jail sentence on top of thirteen and a half months of pre-sentence custody. Clearly, P.F. is no stranger to lengthy jail sentences.

[15] P.F. does not seem to fully understand that his daughter bears none of the blame for what has occurred. In the P.S.R. he is quoted as saying that he has cut ties with his daughter because he was “doing good before my daughter came down, they are bad influences on me.” While he told the probation officer that he understood that he has destroyed his daughter’s life, he also stated that he did not understand why it happened. To his way of thinking, it was because he acted very immaturely, “was not thinking like an adult, but that I am not a sexual predator.”

[16] P.F. told the probation officer that the victim started bringing drugs to their home and they started using them together. Page 10 of the P.S.R. has the following passage:

He divulged their drug use progressed to every other weekend during the summer of 2017, where both were getting high all weekend and barely sleeping. He acknowledged he knows that he was responsible being the adult but stated “she initiated it”. He revealed that his loneliness escalated, and he was bored so he “gave in”. He mentioned that he is to blame but mentioned their sexual relationship was consensual, but initiated by her.

[17] In the Sexual Behaviours Assessment, when referring to the act or acts of fellatio, P.F. told Dr. Grey that it was mostly at her direction. He also told the doctor that the victim had said “I always wanted to know what it would be like” in regards to intercourse with her father. With respect to the photographs of the victim performing fellatio on him, P.F. told Dr. Grey that she had asked him to take the pictures and had only sent them to her at her request begging the question why had he kept the photographs after taking them. When the doctor asked him if he had been sexually attracted to his daughter, he replied “I hate to say fun, but it was recreational stupidity. I didn’t think of her sexually.”

Respective Positions

[18] The Crown submits that the appropriate sentence in this case is a total of eight years less pre-sentence custody calculated at an enhanced rate. The Crown is also seeking various ancillary orders (e.g., D.N.A., s. 161, S.O.I.R.A., and a weapons prohibition). Mr. Giancaterino has advised me that the defence will be consenting to the making of such orders.

[19] It is the position of the defence that the appropriate global sentence in this case would be one of four years: three years on the incest and one year for the making child pornography available to be served consecutively as per s. 718.3(7)(a) Criminal Code.

Analysis

[20] The Ontario Court of Appeal decision in R. v. D.M., 2012 ONCA 894, is an indication of the current sentencing regime in the context of sexual abuse of children. At paragraph 66, we read:

[h]owever, several decisions of this court in the last decade demonstrate that the range outlined in R. v. B.(J.) is no longer appropriate. We have recognized that sexual abuse of children by a person in a position of trust or authority now warrants more severe sentences, and where the abuse includes sexual intercourse, in most cases, a three- to five-year range is too low. The trial judge referred to one of our decisions, R. v. D.(D.) (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788, and cited Moldaver J.A.’s oft-quoted statement “that 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”: para. 44. See also: R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721.

As well, the same court, in R. v. P.M., 2012 ONCA 162, stated at paragraph 46 that “where a father has committed repeated acts of incest with his daughter over many months, as in this case, it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years.”

[21] The significant aggravating factors present in this case are P.F.’s criminal record, his partial lack of insight with concomitant blaming of the victim, and the fact that the victim was under eighteen years of age. In mitigation, one notes the lack of coercion or violence, the very small number of pornographic images, the fact that the images were only made available to the victim herself, that she was seventeen years old, the relatively short period of time during which he engaged in the incestuous acts, the low risk to reoffend in the context of sexual offences, and, most significantly, the plea of guilt where no date was ever set for a preliminary inquiry or trial.

[22] P.F. has entered a guilty plea in this matter. It is clear that generally speaking, a guilty plea is to be taken as a mitigating factor on sentencing. The reason for this was reviewed by Hill J. of the Ontario Superior Court of Justice in R. v. Holder, 1998 14962:

14 A plea of guilt is generally acknowledged to be a mitigating factor in sentencing: Report of the Attorney Generals Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (the Martin Committee Report) (August, 1993) at page 310; R. v. Beier (August 10, 1995), Doc. CA Cl4856 (Ont. C.A.) at para. 2 per curiam: R. v. Sawchyn (1981), 1981 ABCA 173, 60 C.C.C. (2d) 200 (Alta. C.A.)at 210 per Laycraft J.A. (as he then was) (leave to appeal to S.C.C. refused (1982), 39 N.R. 616 (S.C.C.)); Guilty Pleas, J. Watson, (1990-91), 33 C.L.Q. 163 at 198.

15 The effect of a guilty plea in setting the appropriate sentence will vary with the circumstances of each case: R. v. Faulds (1994), 1994 770 (ON CA), 20 O.R. (3d) 13 (Ont. C.A.) at 17 per curiam. A plea of guilt, a confession of wrongdoing, may evidence remorse and public acceptance of responsibility for the criminal wrong-doing: R. v. Finnis (1978), 3 C.R. (3d) S-54 (Ont. C.A.) at 54 per Martin J.A.; Martin Com­mittee Report, supra at 310. In these circumstances, the prospects for rehabilitation are enhanced.

16 An early guilty plea is deserving of considerable weight in sentencing disposition: R. v. Patterson (March 5, 1998), Doc. CA C28919 (Ont. C.A.) at para. 1 per curiam; R. v. Pitkeathly (1994), 1994 222 (ON CA), 29 CR. (4th) 182 (Ont. C.A.) at 184–5 per curiam; R. v. T. (R.) (1992), 1992 2834 (ON CA), 17 C.R. (4th) 247 (Ont. C.A.) at 263 per Doherty J.A.; Martin Committee Report, supra at pages 310–311; R. v. Wijs, [1998] 2 Cr. App. R. 436 (Eng. C.A.) at 439 per Lord Bingham C.J.

17 A plea of guilt results in a saving of public cost and expense: R. v. Johnston, 1970 281 (ON CA), [1970] 4 C.C.C. 64 (Ont. C.A.) at 67 per Gale C.J.O. Even in those instances where a guilty plea is simply a recognition of the inevitable, the plea brings finality, spares judicial resources, and reduces the trauma and inconvenience to victims and witnesses: R. v. Faulds, supra at 17; R. v. Santos (1993), 67 O.A.C 270 (Ont. C.A.) at 270–271 per curiam. Indeed, a plea of guilt, entered during a trial itself, may be deserving of mitigation of sentence: R. v. Garofoli (1988), 1988 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.) at 153 per Martin J.A. affirmed on other bases (1990), 1990 52 (SCC), 60 C.C.C (3d) 161 (S.C.C.)). [emphasis added]

[23] Similarly, we see in R. v. Doucette, 2015 PECA 5, the following analysis:

[20] There is truth in the old adage that one who pleads not guilty seeks justice while one who pleads guilty seeks mercy. Absent good reason, a guilty plea must be taken into account in mitigation of sentence (R. v. Macki, 2001 BCSC 427, at para.55). There are two schools of thought as to why a guilty plea is a mitigating factor. The first is that a guilty plea is an expression of remorse and an acceptance of responsibility. The more pragmatic rationale is that it saves the justice system the time and expense of a trial. These two rationales were articulated by MacDonald J. in R. v. Bruce (1982), 1982 4803 (PE SCAD), 35 Nfld. & P.E.I.R. 530 (PEICA), at para.14:

A second mitigating factor referred to by the trial judge was that she had pleaded guilty thereby saving a lengthy trial and this could also be taken as a sign of her remorse. Numerous courts have held that a guilty plea should be taken into consideration on a sentencing: R. v. Johnston and Tremayne, 1970 281 (ON CA), [1970] 4 C.C.C. 64 (Ont. C.A.); R. v. Carriere(1952), 1952 676 (QC CA), 14 C.R. 391 (Que. C.A.). It has also been stated that a guilty plea should be given less weight where there is such a preponderance of evidence against the accused that the only reasonable choice or option left open is a plea of guilty. R. v. Spiller, 1969 950 (BC CA), [1969] 4 C.C.C. 211 (B.C.C.A.). In the present case the respondent had signed a statement in which she had admitted her guilt and it could be said that her only choice was to plead guilty. However, if the rationale for a policy of decreasing sentence where a guilty plea had been entered, is based on the consideration of the time saved by not having a trial, I am unable to accept the proposition that there should be less weight given to a guilty plea from a person who has been inescapably caught. I would agree with the trial judge that the guilty plea by the respondent should be a mitigating circumstance. ...

[21] In my view either or both rationales may be used to justify a reduction in sentence. The amount of credit engendered by a guilty plea however depends on the circumstances of the case. Some courts have held that a guilty plea can justify a discount of up to 25 to 33% (R. v. Weiler, 1991 2747 (PE SCTD), 1991 2747 (PESCTD)). That does not mean, however, that a guilty plea merits such a discount in every case (R. v. Lyons, [1991] P.E.I.J. No. 10 (PEICA)). There may well be cases where there is good reason to grant no reduction for a guilty plea. For example, a guilty plea entered at trial after the Crown has called some or all of its case is a recognition of the inevitable and not an expression of remorse nor does it save any appreciable time and expense. Such a guilty plea would merit little or no reduction in sentence.

[22] Where a reduction in sentence is warranted, it is not simply a matter of a mathematical calculation. There are many factors to consider including, but not limited to, as the strength of the Crown’s case, the nature of the case, the timing of the guilty plea, whether the guilty plea saves a vulnerable victim from testifying, and the circumstances of the offender including his criminal record to mention a few. [emphasis added]

[24] Finally, I agree with the analysis of Justice H.F. Pringle of this court in R. v. Berquas, 2018 ONCJ 623, where she concluded

[38] Here in Canada, Parliament has left the degree of reduction to the discretion of sentencing judges. However, in my view for a guilty plea to have any true meaning as a mitigating factor, there should generally be a discernable difference between sentences imposed after a contested trial and those imposed following a plea of guilt.

[39] Dambrot J.’s decision in R. v. Pearce, supra was only one of two Ontario cases presented to me, where sentencing followed a guilty plea and not a contested trial[2]. Justice Dambrot would have imposed a sentence between 12 and 15 years, save and except for the guilty plea and some non-exceptional mitigating factors. Instead, he imposed a nine year sentence, which was between 3 and 6 years lower than the sentence he deemed otherwise appropriate. This case has assisted me in understanding the calculable difference in sentence a guilty plea may have. The difference in quantum should generally be meaningful. [emphasis added]

[25] Clearly, it is mitigating where a victim of a sexual offence does not have to testify due to the resolution of the matter by a guilty plea. This factor was discussed by Justice K. L. McLeod of the Ontario Court of Justice in R. v. D.B., [2015] O.J. No. 1861, where she stated at paragraph 57

[t]he importance of the guilty plea in these circumstances should not remain unacknowledged. While insisting on a full trial is not an aggravating circumstance, a guilty plea is most definitely mitigating. It has spared A.O. having to relive, in a public forum, the acts to which she was subjected. A guilty plea has long been held to mitigate sentence.

I refer here as well to R. v. C.G., 2018 ONSC 1151 at paragraph 27, where Varpio J. commented

McLeod J.’s suggestion that a plea should attract a “great deal of credit” is buttressed [sic] the well-known fact that every day in courts all across the county, young people are forced to testify about acts of degradation tragically visited upon them by adults who [sic] standing in loco parentis towards them. These young people will often suffer as a result of the courtroom experience. The value of a plea in such situations, therefore, is both a legitimate and powerful consideration.

[26] In R. v. Packwood, [1993] B.C.J. No. 1628, the British Columbia Court of Appeal commented obiter dicta in a similar fashion at paragraph 16:

[i]n some cases the entry of a guilty plea obviates the necessity of a complainant having to testify. That is sometimes a mitigating circumstance, particularly in sexual assault type cases, and in cases involving young complainants.

We find a similar view expressed by the Alberta Court of Appeal in R. v. S.(W.B.); R. v. P.(M.) (1992), 1992 2761 (AB CA), 73 C.C.C. (3d) 530 at p. 550: “Then the court would take into account mitigating factors such as evidence of remorse, an early guilty plea which spares the child from testifying, …”.

[27] A timely plea of guilt, therefore, in a matter where the Crown would otherwise have had to rely on the testimony of a vulnerable witness, is highly mitigating. Surely as a matter of public policy, we as a society wish to encourage offenders to resolve such matters without the need to have the victim publically describe in detail the abuse to which they were subjected.

[28] It is not possible to express the effect of this mitigating factor as a quantitative rule. Each case is different as is each offender. However, I am of the opinion that generally speaking, a guilty plea calls for a reduction in sentence of one quarter to one third of the sentence that would have been imposed should the matter have been contested: see the decision of the Prince Edward Island Court of Appeal in the incest case of R. v. C.B.M., [1992] P.E.I.J. No. 40.

[29] I have reviewed a number of recent reported cases where an accused was being sentenced for both incest and child pornography (e.g., R. v. S.(J.), 2017 ONSC 5952; R. v. B.(D.), [2015] O.J. No. 1861 (Ont. C.J.); R. v. M.(P.), 2012 ONCA 162; R. v. M.S., 2017 ONCJ 479). The differences in the fact scenarios were sufficient that they provided only but general direction. Nonetheless, when weighing the various factors discussed in the cases, I am of the opinion that the eight years sought as a global sentence by the Crown, while possibly appropriate after a trial, would be outside of the range on the facts before me on this guilty plea. I am well aware that s. 718.01 Criminal Code requires me to give primary consideration in this case to the objectives of denunciation and deterrence.

Conclusion

[30] Balancing all the factors discussed above, I am of the view that a sentence of five years of incarceration is the appropriate global sentence in this case attributed as follows: four years on the count of incest with one year on the pornography charge to be served consecutively. This is a total of 1,825 days.

[31] During submissions, the defence submitted that I exercise the totality principle when sentencing P.F. Respectfully, I do not see the case at bar as engaging the concerns expressed by, for example, the Ontario Court of Appeal in R. v. Johnson, 2012 ONCA 339.

[32] As of today’s date, P.F. has served a total of 350 days of pre-sentence custody. Calculated at an enhanced rate of 1.5:1, he has served the equivalent of 525 days. Off-setting the global sentence with the pre-sentence custody, P.F. has 1,300 days or slightly more than three and a half years to serve. The ancillary orders referred to above will follow.

Released: January 24, 2019

Signed: Justice David A. Berg