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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: October 2, 2020

Court File No.: Ottawa 17-SA5116

Between:

Her Majesty the Queen

— and —

J.L.

Before: Justice P.K. Doody

Heard on: February 11 and September 11, 2020

Reasons for sentence released on: October 2, 2020

Counsel:

• M. Savage, counsel for the Crown
• P. Giancaterino, counsel for the offender

Decision

DOODY J.:

Overview

[1] On December 8, 2018, the offender pleaded guilty to one count of sexual interference with a person under the age of 14 years contrary to s. 151 of the Criminal Code. He had sexual intercourse with his daughter and sexually touched her on multiple occasions over the course of several years prior to October 2017. This is my decision and reasons for his sentence.

[2] Crown counsel sought a sentence of between 8 and 10 years in the penitentiary. Defence counsel submitted that a sentence of 5 years incarceration would be appropriate.

Circumstances of Offence

[3] The facts were agreed to when the plea of guilty was entered on December 8, 2018 and in a subsequent appearance on February 7, 2019.

[4] On December 8, 2018, the offender admitted that the following facts were correct after they were read by Crown counsel and interpreted into Cantonese:

The accused and the victim [name removed] date of birth [removed] 2003 are father and daughter. They currently reside at [address removed]. The victim's mother also resides with them.

The victim was born in Canada. She is fluent in English and Cantonese. She is a grade 9 student at [name removed] High School. The accused and the victim's mother do not speak English.

On November 7, 2017 a high school guidance counsellor, [name removed] was notified by another student that the victim may be pregnant. The victim was brought into the guidance counsellor's office on the same day to discuss her health and wellbeing. While in the office the victim disclosed that she had her last menstrual period in June of 2017. She did not know if she was pregnant, however, she expressed that her clothes had not been fitting and that she had been wearing her mother's clothes.

The victim was shopping with her mother on October 25, 2017 when her mother noticed that she had a bit of a belly. The victim's mother became concerned that the victim was pregnant. The victim disclosed to her mother at that time that her father had raped her. The victim's mother bought a pregnancy test on that same day, however, the results were negative. Subsequent investigation revealed that there may have been difficulties with administering the pregnancy test as per the instructions.

The victim disclosed, and it's admitted, that she was not sexually active with other boys. And she believed that she couldn't get pregnant by her own biological father, that was her understanding at the time.

The victim's mother confronted the accused on October 25, 2017. No further assault occurred after the confrontation.

On November 8, 2017 the victim provided a statement to the police. She disclosed that the accused put his private part in her hole and forced vaginal intercourse on her. She wrote the words penis, vagina, and sperm on a piece of paper. She also wrote slang words that she knows are used for the word penis including peanut, ding-dong, and private part. She made numerous references to the words she wrote by pointing at them as she expressed she had a hard time saying the words out loud. The victim expressed that her body felt different, and she doesn't know if she is pregnant, and that she had a regular menstrual cycle until June of 2017 when her periods stopped. The victim indicates she knew what sperm is and that she has had her father's sperm in her underwear. She described it as slimy and disgusting.

Further investigation revealed that she was in fact pregnant. She did have an abortion. A sample of the fetal tissue was preserved, sent to CFS for testing, and it's admitted that the accused was the father of that unborn child.

[5] On February 7, 2019, the offender signed an Agreed Statement of Facts after it was read to him by an interpreter out of court. He told me that the facts in it were true after it was interpreted by a Cantonese interpreter in court. The Agreed Statement of Facts is as follows:

1. As previously alleged, and accepted by [name of offender], [name of offender] impregnated his daughter, [name of daughter], in 2017.

2. [Name of offender] further accepts that he had sexual intercourse with his daughter [name of daughter] and sexually touched her on multiple occasions over the course of the last several years up until October 2017.

[6] Crown counsel advised that a victim impact statement was not available. Individuals from the Victim Witness Assistance Program have met with the victim several times, but she is not in a position to articulate the effect this has had on her. She has received and continues to receive psychiatric care from the Children's Hospital of Eastern Ontario. Crown counsel advised that the impact on her has been rather profound.

[7] I can take judicial notice of the effects on children of being preyed upon sexually by adults. The Ontario Court of Appeal endorsed, at para. 37 of R. v. D.(D.) (2002), 58 O.R. (3d) 788, the words of the Alberta Court of Appeal in R. v. S.(W.B.) and R. v. P.(M.), 73 C.C.C. (3d) 530 at p. 535:

When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious psychological harm to the victim.

When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent.

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child-victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.

Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child -- that is, he or she may abuse a child sexually. There is no empirical way of proving that a particular child-victim, when he or she becomes an adult, will do to some child what had been done to him or her. We do know that sentencing judges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both) who had stood in a parental relationship to him or her when he or she was a child.

[8] The Supreme Court of Canada has held in its recent decision in R. v. Friesen, 2020 SCC 9 at para. 86, that:

Where direct evidence of the actual harm to the child is unavailable, courts should use the harm to the child as a lens through which to analyze the significance of many particular aggravating factors. Courts may be able to find actual harm based on the numerous factual circumstances that can cause additional harm and constitute aggravating factors for sexual violence against children, such as a breach of trust or grooming, multiple instances of sexual violence, and the young age of the child. We stress that direct evidence from children or their caregivers is not required for the court to find that children have suffered actual harm as a result of sexual violence. Of course, we do not suggest that harm to the child is the exclusive lens through which to view aggravating factors.

[9] These aggravating factors are all present in this case. The complainant was the offender's daughter. A more significant breach of trust is hard to imagine. The complainant was a 14 year old grade 9 student in December 2018. She was pregnant in October 2017. The offender has admitted having sexual intercourse with her and sexually touching her on multiple occasions over the course of the last several years up until October 2017. She was a young girl. There were multiple instances of sexual violence. I have no doubt that the victim has suffered horribly, and will continue to do so for the foreseeable future.

Application to Strike the Plea

[10] After the offender was found guilty, a pre-sentence report and a s. 21 assessment were ordered. He told the author of the pre-sentence report and Dr. Federoff, the psychiatrist conducting the s. 21 assessment, that he had no choice but to plead guilty, that his lawyer forced him to do so, and that he had never had sex with his daughter. His lawyer applied to be removed from the record and I granted that order because of the breakdown in the lawyer client relationship. After some delay, the offender retained a new lawyer. I ordered a fitness assessment and Dr. Joel Watts, a forensic psychiatrist, opined that the offender was fit.

[11] The offender applied to strike the plea of guilty. On February 11, 2020, I dismissed that application. I held that he had voluntarily pleaded guilty and that he was fully informed about the plea, the facts underlying the charges, what he was pleading guilty to, and the consequences he was facing. He understood that his guilty plea was an admission of the essential elements of the offence. He was not forced, threatened, or coerced by anyone into pleading guilty. He freely and voluntarily admitted to the essential elements of the offence and the facts agreed to on February 7, 2019. I issued written reasons for my decision. Those reasons elaborate on the circumstances underlying the application and should be consulted if necessary.

The Delay in the Release of This Decision

[12] I heard submissions on sentence on February 11, 2020. I reserved my decision until April 3, 2020. By then, the courts were closed because of the pandemic. On April 2, 2020, the Supreme Court of Canada released its reasons for decision in Friesen. That decision significantly clarified the law relating to sentencing for sexual offences against children. When courts resumed and this case came back before me on September 2, 2020, I asked that counsel make oral submissions before me about the effect, if any, of the Friesen decision on this case. I heard those submissions on September 11, 2020.

Circumstances of the Offender

[13] The offender is 61 years old. He was born in China, and immigrated to Canada in 1992. He married his wife, who is also Chinese, in 1996 and she immigrated to Canada. They have one child, the victim, who was born in 2003. They separated after these charges were laid in 2017.

[14] The offender has worked in restaurants, washing dishes and cooking, full-time since he came to this country. He now lives alone and has few social contacts. He has no criminal record.

[15] The offender left school in grade 2 because his parents could not afford to send him and needed him to work on the farm. He is illiterate in any language. He speaks only Cantonese.

[16] A friend of the offender's, who had promised his mother he would look after him after she died, spoke to the pre-sentence report author. He said that the offender "does not have normal logic … he is short-circuited … his mental health is not normal."

[17] Dr. Federoff reported that the offender appeared to have no significant medical problems. He has never received psychological or psychiatric treatment. He diagnosed no mental illness. He performed a sexual behaviour risk assessment. He scored the offender in the "low" risk category. Compared to other male sex offenders, the offender is in the 1.4th percentile. About 4.2% of sex offenders shared this score. Roughly 2.8% of sex offenders scored lower (better) than the offender, and about 97.2% scored higher (worse). The sexual recidivism rate of sex offenders with the same score as the offender would be expected to be about 0.20 times the risk posed by the typical sex offender. Men with scores similar to the offender were estimated to sexually reoffend at a rate of 1.0 percent within 5 years. In other words, according to actuarial risk assessments, after 5 years of follow-up about 99 percent of men with a score similar to the offender's are not known to have sexually reoffended.

[18] Dr. Federoff also noted that the offender may have some intellectual disability.

[19] Dr. Watts and Dr. Zeynep Selaman, a post-graduate forensic psychiatry resident, conducted the fitness assessment. They found that the offender was fit to stand trial. They reported that he did not exhibit a history nor a current presentation consistent with a major mental illness. He has had no problems with anxiety, depression, mania, psychosis, or substance use. He has not been diagnosed with a paraphilia.

[20] Dr. Watts and Dr. Selaman considered whether the offender had an intellectual disability. They concluded that he likely has low intellectual functioning, but shows no apparent functional deficits that are essential to the diagnosis of an intellectual disability.

Analysis

[21] The fundamental purposes of sentencing, as established by s. 718 of the Criminal Code, are to denounce unlawful conduct and the harm done to victims and the community caused by it; deter the offender and others from committing offences; separate offenders from society where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or the community; and promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[22] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[23] Other relevant principles are that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)) and that courts should exercise restraint in imposing imprisonment (s. 718.2(d) and (e)).

[24] In 2005, Parliament amended the Criminal Code by adding s. 718.01. That section provides 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.

[25] The following circumstances are deemed by s. 718.2(a) to be aggravating:

(a) evidence that the offender abused a person under the age of 18 years (718.2(ii.1));

(b) evidence that the offender abused a position of trust or authority in relation to the victim (718.2(iii)); and

(c) evidence that the offence had a significant impact on the victim, including their age and other personal circumstances, including their health (718.2(iii.1)).

[26] These principles are put to the test in sentencing for an offence of the kind committed by the offender. As Wagner C.J. and Rowe J. wrote at paras. 65, 66, 67, 68, 74, 75 and 76 of Friesen (citations omitted):

The protection of children is one of the most fundamental values of Canadian society. Sexual violence against children is especially wrongful because it turns this value on its head. In reforming the legislative scheme governing sexual offences, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity. Yet instead of relating to children as equal persons whose rights and interests must be respected, offenders treat children as sexual objects whose vulnerability can be exploited by more powerful adults. There is an innate power imbalance between children and adults that enables adults to violently victimize them. Because children are a vulnerable population, they are disproportionately the victims of sexual crimes. …

Children are most vulnerable and at risk at harm among those they trust. …

It is for this reason that sexual violence against children can all too often be invisible to society. To resist detection, offenders perpetrate sexual violence against children in private, coerce children into not reporting, and rely on society's false belief that sexual violence against children is an aberration confined to a handful of abnormal individuals. Violence against children thus remains hidden, unreported, and under-recorded.

Sexual violence also has a disproportionate impact on girls and young women. Like the sexual assault of adults, sexual violence against children is highly gendered. …

It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the "life-altering consequences" that can and often do flow from the sexual violence. Courts should also weigh these harms in a manner that reflects society's deepening and evolving understanding of their severity.

In particular, courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. The wrongfulness and the harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Taking the wrongfulness and harmfulness into account will ensure that the proportionality principle serves its function of "ensuring that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused."

Courts must impose sentences that are commensurate with the gravity of sexual offences against children. It is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender's actions and the consequential harm to children and their families, caregivers, and communities. … Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.

[27] Parliament has significantly increased the sentences for sexual offences against children. In the last 15 years, there have been two sets of amendments to the Code to do this. In 2005, Parliament tripled the maximum sentences for sexual interference, invitation to sexual touching, and sexual exploitation where the Crown proceeds summarily. In 2015, it increased the maximum sentences for those offences, and for sexual assaults, where the victim is under the age of 16 from 10 to 14 years when prosecuted by indictment and from 18 months to 2 years less a day when prosecuted summarily.

[28] Wagner C.J. and Rowe J. wrote at para. 100 of Friesen:

100 To respect Parliament's decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences.

[29] In D.(D.), a 2002 decision of the Court of Appeal, the court dismissed the offender's appeal of a 9 ½ year sentence after trial for 11 sexual offences involving 4 boys ranging in age from 5 to 8 years. The offender had, over a 7 year period, befriended the boys; he regularly and persistently engaged in all manner of sexual activity, including attempted or successful anal intercourse. He used violence to compel compliance, and threats of violence to keep them quiet. He stood in a position of trust towards them, and was a close and trusted family friend to three of them. He assumed a stepfather role to one boy, who he held over a 30th floor balcony, threatening to throw him off if he ever complained to anyone. He was found guilty after the victims had had to testify at the preliminary inquiry and trial.

[30] Moldaver J.A. wrote for the Court at paras 33-35 and 44-46:

[33] Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

[34] The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

[35] We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

[44] To summarize, I am of the view 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. When the abuse involves full intercourse, anal or vaginal, and it 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. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

[45] The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him 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!

[46] The price in this case was a global sentence of nine years and one month, reduced to eight years and one month by reason of time served in pre-sentence custody. The sentence selected by the trial judge was within the appropriate range. Far from being too high, in my view, it fell at the lower end of the range of sentences for crimes as grave as those committed by the appellant.

[31] At para. 113 of Friesen the Supreme Court commended this decision as an example of appropriate appellate guidance, with the caveat that the 2015 statutory amendments that increased the maximum sentence were not yet in effect when the decision was released.

[32] In R. v. C.M., 2008 ONCA 430, the victim was the offender's daughter. He was found guilty after a jury trial of sexual interference, incest, sexual assault, sexual exploitation, and assault causing bodily harm. He had raped his daughter, more or less on a daily basis, over a three year period beginning when she was 13 years old. She contracted a sexually transmitted disease, became pregnant, and the offender arranged for her to have an abortion. He struck her on various occasions, causing permanent injury to her ear. The trial judge sentenced the offender to 10 years' imprisonment. The Court of Appeal dismissed the appeal.

[33] The Court wrote:

We see no merit in the sentence appeal. These were extremely serious offences involving the appalling sexual exploitation of the appellant's own daughter over a period of three years. The consequences for the complainant were grave. She had to deal with sexually transmitted disease, pregnancy and abortion, and the humiliation of being sexually abused by her own father. She suffered a significant physical injury. She continues to struggle with the psychological trauma inflicted upon her by the appellant's conduct. While the sentence was certainly lengthy, it does not fall outside the permissible range of sentence for this conduct.

[34] In R. v. P.M., 2012 ONCA 162, the offender received a global sentence of 6 years imprisonment following pleas of guilty to sexual assault, incest, sexual interference, making child pornography, possessing child pornography, and careless storage of a firearm. Five years of the global sentence was allocated to the sexual offences other than the child pornography offences. The offender had had forced anal and sexual intercourse with his daughter, then 13 or 14 years old, over a 13 month period. The victim was shown in 3 videos and 5 still images of the 1,837 images of child pornography on the offender's computer. The offender had served in combat in Afghanistan and Bosnia and suffered from post-traumatic stress disorder and alcohol abuse. The victim did not want him to go to jail. The offender was remorseful.

[35] The Court of Appeal dismissed the Crown's sentence appeal. Rosenberg J.A., for the majority, wrote:

46 Each case will, of course, turn on its own facts and sentencing is a highly individualized exercise. However, the court signalled in D. (D.) that the sexual abuse of a child will attract lengthy penitentiary sentences. In my view, 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.

47 In this case, the trial judge imposed concurrent sentences of five years imprisonment for the sexual offences of incest, sexual interference and sexual assault committed against the respondent's daughter. Standing on its own, the sentence of five years imprisonment was a lenient one, and at the bottom end of the range. That said, I have not been persuaded that the sentence was unfit having regard to the several mitigating circumstances including the lack of prior criminal record, the guilty pleas, the remorse, the commitment to treatment and the respondent's mental illness. Since the respondent was separately charged with making child pornography and to avoid "double-counting", in considering the sentence for the sexual offences I have not taken into account what would otherwise be the serious aggravating circumstance that the respondent filmed the abuse of his daughter.

[36] In R. v. D.M., 2012 ONCA 520, the Court of Appeal held that

where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.

[37] Defence counsel relies on another case of the same name decided the same year, R. v. D.M., 2012 ONCA 894. In that case, the offender had sexually molested his step-daughter over a period of 8 years when she was between 11 and 20 years old. The molestation consisted of sexual touching and digital penetration, but not intercourse. The trial judge found that the molestation was "almost unrelenting". The five year sentence imposed by the trial judge was reduced to four years. Laskin J.A. wrote for the court:

62 The trial judge sentenced the appellant to five years in the penitentiary. The appellant submits that this sentence exceeds the proper range for these offences and this offender.

63 In assessing this submission, I begin with the trial judge's reasons. The trial judge correctly noted that the primary sentencing objectives were denunciation and deterrence. He also correctly noted the several aggravating circumstances of these crimes. They include:

• The appellant committed a gross breach of parental trust by abusing his step-daughter. Abuse of a position of trust toward a victim, and abuse of a person under age 18 are deemed by s. 718.2 (a) of the Criminal Code, R.S.C., 1985, c. C-46, to be aggravating circumstances on sentence.

• The appellant's sexual molestation of his step-daughter occurred frequently, and at times was unrelenting.

• The offences took place over a long period of time (eight years).

• These offences have had a devastating impact on the victim, E. Her entire well-being, but principally her emotional well-being, has been affected. Twice she has attempted suicide. Almost unimaginably to any right-thinking person, her entire family has turned on her for reporting the abuse, so that she is now almost completely isolated from her mother and her siblings.

64 The trial judge also referred to several of the mitigating circumstances surrounding these offences:

• The appellant had no previous criminal record.

• He sought professional help and counselling for what he had done.

• He has a stellar professional reputation, and has done much to benefit society, including, for example, volunteering in developing countries.

• He has shown some remorse, albeit limited. However, I acknowledge that the trial judge found on a balance of probabilities the appellant was not "genuinely remorseful" for the abuse of E.

65 In the light of these circumstances and the nature of the offences, is a five-year penitentiary sentence excessive? Over 20 years ago, in R. v. B.(J.) (1990), 36 O.A.C. 307, this court said that, except in unusual cases, where a person in a position of trust sexually abuses a child, and the abuse includes sexual intercourse, the range of sentence is three to five years in the penitentiary: para. 5. In this case, the appellant's abuse of E did not include sexual intercourse.

66 However, 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), 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.

67 However, even taking account of our court's more recent jurisprudence, I agree with Mr. Breen that a sentence of five years imprisonment for the appellant exceeds an appropriate range. I would reduce the appellant's sentence from five years to four years in the penitentiary. I would do so for two main reasons.

68 First, in those cases where this court has either upheld or imposed penitentiary sentences of five years or more, one or more of the following aggravating circumstances has been present:

• Sexual intercourse (vaginal or anal)
• Oral sex
• Incest
• More than one victim
• Grooming of the victim
• Other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret
• A previous criminal record for sexual abuse

70 In this case, not one of these aggravating circumstances is present.

[38] That decision was made before the 2015 amendments which increased the maximum penalties, and before the Supreme Court decision in Friesen, in which the Court emphasized the effect of those amendments. Furthermore, there are a significant number of aggravating circumstances in this case. Three of them are on the list provided by Laskin J.A. in the second D.M. decision. All of them are cited as aggravating factors by the Supreme Court in Friesen.

[39] The offence included sexual intercourse. It consisted of incest. As defence counsel conceded, on the admitted facts it included grooming of the victim. The offender was in a position of trust toward the victim. He sexually interfered with her over a period of years. As the Supreme Court held at para. 133 of Friesen, "sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime." She was very young – 14 at the time the offences were discovered. She became pregnant. She had an abortion. She suffers and will continue to suffer significant psychological harm. Her life has, in all likelihood, been permanently affected.

[40] There are few mitigating factors.

[41] The offender has no criminal record.

[42] While he did plead guilty, I cannot find that he is remorseful.

[43] Defence counsel submitted that both psychiatric reports showed that the offender had some element of insight and remorse. Dr. Federoff's report of April 2, 2019 noted that when he was interviewed by police, the offender initially denied committing the crimes, but later admitted that he had sexually assaulted his daughter and that his daughter could be pregnant with his child. Dr. Federoff wrote that he "accepts slight responsibility for the alleged offence". He also wrote that he completely denied the offences. Drs. Watts and Selaman's report similarly notes that the offender admitted to more details during the police interview after denying the allegations. They also note that he told the police that he "felt badly after" and knew he had "done something wrong".

[44] I do not accept this submission. While the offender did have moments of insight during the police interview, and when he entered his plea of guilt and agreed to the facts on December 8, 2018 and February 7, 2019, he attempted to withdraw that guilty plea and those admissions of fact. When I asked him at the sentencing hearing if there was anything he wished to say, he told me that a lot of what he did was because of the influence and impact his daughter had on him. He said that she would go swimming with her girlfriend, watch pornography together, and engage in lesbian acts. He made similar comments to Dr. Federoff, as he notes on page 3 of his report of April 9, 2019. This shows a lack of appreciation of what he has done and his own guilt. He is not remorseful. I do not take this as an aggravating factor, but I cannot find a mitigating factor of remorse.

[45] His plea of guilt did, however, spare his daughter the further trauma of having to testify and be cross-examined. That is a mitigating factor.

[46] I accept that, as Crown counsel submitted, while the offender has not been diagnosed with mental illness, he struggles to interact with Canadian society. He does not speak English or French. He has led an insular life. His cognitive abilities are somewhat limited. He will feel the impact of a custodial sentence differently than would an average offender.

[47] At para. 114 of Friesen, Wagner C.J. and Rowe J. wrote:

mid-single digit penitentiary terms for sexual offences against children are normal and that upper single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

[48] After considering all of the circumstances, including the primacy of deterrence, denunciation, and separation from society, I conclude that the appropriate sentence is a 9 year penitentiary term. This sentence is required, in my view, by the aggravating factors I have set out. But for the guilty plea and the resulting avoidance of the offender's daughter giving evidence, the sentence would have been higher.

[49] The offender was in custody for 30 days before being released on bail. He is entitled to 45 days credit. I therefore sentence him to a custodial term of 8 years and 320 days.

[50] I order that the offender be prohibited for life under s. 161(b) of the Criminal Code from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

[51] I order that the offender comply with the Sex Offender Information Registration Act for 20 years, under s. 490.012 of the Criminal Code.

[52] I order that the offender provide a sample of his DNA for analysis and registration under s. 487.051 of the Criminal Code, sexual interference being a primary designated offence under s. 487.04.

Released: October 2, 2020

Signed: Justice P.K. Doody