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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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 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.
Ontario Court of Justice
Date: 2021 01 18 Court File No.: Region of Niagara: 998 S19 0383
Between:
HER MAJESTY THE QUEEN
— AND —
Y. (K)
Before: Justice J. De Filippis
Heard on: July 17 and 29, September 11, October 8 and 15, 2020 and January 8, 2021 Reasons for Sentence released on: January 18, 2021
Counsel: Mr. T. Morris......................................................................................... counsel for the Crown Mr. V.J. Singh................................................................................... counsel for the accused
De Filippis, J.:
Offence and Offender
[1] The defendant pleaded guilty to incest and sexual interference on July 17, 2020. The facts presented by the Crown in support of the plea were qualified by the defendant. This resulted in several adjournments so that the parties could discuss the matter and for the defendant to undergo counselling. Eventually a Gardiner Hearing was scheduled for January 8, 2021. This hearing did not proceed because, a few days earlier, Crown counsel notified the Defence and me that he would accept the defendant’s version of events. Submissions were received on this basis. The facts below are those relied upon by the Crown, as qualified by the defendant.
[2] The victim in this matter is the defendant’s biological daughter. He sexually abused her during the course of two or three years, beginning when she was 12 years old. The details are distressing, but need to be told. The defendant started by fondling his daughter’s breasts and vaginal area. This progressed to oral sex. Eventually, there were two incidents of sexual intercourse. After the last event, the victim called the police.
[3] On being arrested, the defendant confessed as follows: The events began because he saw his daughter walking naked in the home and his “urges took over”. She allowed him to touch her breasts for money. When she became embarrassed by her emerging pubic hair, he acceded to her request to remove it, with a cream. This aroused him and he masturbated in front of her. Oral sex on her was initiated by him. Later, he “taught” her how to perform fellatio because, she told him, her boyfriend wanted that. The sexual intercourse occurred after he and his daughter had consumed alcohol. He became aroused after she “had taken her clothes off and was being erotic”. He did not ejaculate on either occasion.
[4] I must pause in these reasons to make an obvious and important point: The defendant is entirely to blame for the events leading up to these charges. None of this is the victim’s fault. Whatever, she may have said or done, she was a 12-year-old child and the defendant, her father, had a duty to care for her. He failed to perform this basic parental role.
[5] In sentencing submissions, Crown counsel explained that he abandoned the Gardiner Hearing because, after speaking with the victim, he concluded it would be too hard on her to testify. He also reported that she said it would be too difficult to provide a formal victim impact statement. The victim told the Crown that all she wants is for the defendant “to be out of her life forever”. I understand the victim now resides with the mother of one of her friends. That woman advised the Crown that the victim is treated as her own child and that it breaks her heart to know of her pain, that she “feels blessed to have [the victim] in her family’s life”, and that all the victim “ever needed was parents who loved and cared for her”.
[6] I have the benefit of two assessments; a presentence report and a discharge treatment report prepared by a clinical therapist. I understand the following: The defendant is 45 years old. He was a shy child with few friends. He witnessed arguments between his parents and his father became violent when drunk. However, the defendant did not experience physical abuse himself and his parents, although financially stressed, provided for him. The defendant married at the age of 24 and has a daughter (i.e. the victim) and a son. The marriage quickly became acrimonious because of religious differences that arose after his wife converted to the Jehovah Witness faith. The defendant was convicted of assault causing bodily harm with respect to his wife. The marriage ended after seven years. The defendant readily confessed when arrested and wrote a letter of apology. The defendant has attended 29 therapy sessions over the 22 months since his arrest. The therapist notes that phallometric testing is not indicative of pedophilia. The counselling program focused on the defendant’s cognitive distortions in minimizing the harm he caused, blaming the victim and in thinking that touching a child sexually can be a way to show love and affection. Clinical tests place the defendant at a low risk of re-offending. It is recommended that he participate in sex offender specific treatment while incarcerated and in the community.
[7] The defendant provided me with a written statement asserting that he accepts full responsibility for his actions, understands the seriousness of his crime, and regrets the harm he has caused to his daughter and family. He attributes this insight to the therapy and pledges to continue participation in similar programs in the future. He reported that before obtaining bail for these offences, he was badly beaten in jail and fears similar retribution in the penitentiary. This fear is heightened by the pandemic.
Legal Principles
[8] Section 151 of the Criminal Code provides that sexual interference is committed where a person, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years. Section 155 states that a person commits incest if, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person. The maximum punishment for both offences is imprisonment for a term of not more than 14 years. However, in the case of incest, if the other person is under 16 years of age, there is a minimum penalty of five years’ imprisonment.
[9] With respect to sentencing generally, the Criminal Code provides as follows:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to 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:
(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 reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[10] Any offence that involves a victim who is under the age of 18 or a breach of trust by the offender engages sections 718.01 and 718.02; in such cases, I must give primary consideration to the objectives of denunciation and deterrence of such conduct.
[11] Section 718.1 provides that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. This is the cardinal principle of all sentencing.
[12] In applying these principles, I am guided by the recent decision, by the Supreme Court of Canada, in R. v. Friesen, 2020 SCC 9. This is a sexual interference case, but it applies to all sexual offences involving children. The Supreme Court of Canada recognized that protecting children from wrongful exploitation and harm defines the legislative scheme of sexual offences against children and that understanding this is the critical duty of sentencing judges. This means that those who commit this offence must be sent to jail, absent exceptional circumstances that mitigate an offender’s moral responsibility, such as mental or cognitive disabilities.
Submissions
[13] The Defence submits that a total sentence of five years is appropriate. Counsel notes that “this was always a guilty plea; a trial date was never set”. The delay was due to the pandemic and consent adjournments for counselling. The therapist report shows that the defendant’s remorse is genuine and he now fully understands his misconduct. The report also supports the conclusion that rehabilitation is promising and the risk of re-offence is low.
[14] The Crown questions the clinical finding that there is no indication of pedophilia and points out that the abuse began because the defendant became sexually aroused by the sight of his naked daughter. Counsel reminds me of the statements made by the defendant after the guilty plea in which he blamed the victim for some of the abuse. In arguing for a seven-year sentence, the crown asserts that the defendant is not a “minimal offender” with limited misconduct and that a total sentence reflecting the mandatory minimum penalty for incest is not appropriate.
Result
[15] The defendant’s moral culpability cannot be overstated. He breached the most fundamental fiduciary relationship – the duty of care owed by a parent to a child – through acts involving profound exploitation and harm over a lengthy period of time. I agree with the Crown that he initially minimized his crimes and attributed some blame to the victim. This would be highly aggravating if not for the insights achieved through an intensive counselling program. That therapy, as the Defence notes, points to other mitigating factors; there is reason to hope the defendant can reform and not be a future risk to others. I accept the acknowledgement by both lawyers that the defendant’s guilty plea is substantially mitigating as it means his daughter did not have to testify. I can conclude that doing so would have been especially hard on her as she did not wish to participate in the Gardiner Hearing or prepare a formal victim impact statement.
[16] The offence of incest, unlike that of sexual interference, requires sexual intercourse. Where the sexual interference is grounded in the act of incest, or closely linked to it, concurrent sentences are appropriate. That is not the case here. There were several acts of sexual interference that preceded the incest with both offences occurring during a period of two to three years. Those acts included, masturbating in the presence of the victim, removing her pubic hair, cunnilingus and fellatio. As such, subject to the principle of totality, the sentences for the two offences should be consecutive. It is the principle of totality that anchors the Defence submission in this case.
[17] In the circumstances of this case, the mandatory minimum penalty for incest affects the total sentence to be imposed by reducing the penalty that would otherwise be required for the sexual interference. It does not, as the Defence argues, mean that both sentences should be concurrent. In coming to this conclusion, I am being faithful to the policy choices made by Parliament. Subject to constitutional considerations, that are not present in this case, it is my duty to do so. That said, the sentence cannot be crushing or deprive the defendant of any hope.
[18] The defendant is sentenced to five years for the crime of incest and one-year consecutive for the offence of sexual interference. The total sentence, therefore, is one of six years.
[19] I also impose the following ancillary orders: The defendant will supply a sample of his DNA and register with the federal sex offender registry life. He is prohibited, pursuant to section 109 of the Criminal Code from possession of weapons as defined therein. The defendant will also be bound by an order pursuant to subsection 161(b) of the Criminal Code; namely, that for a period of 10 years, he is prohibited 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”.
[20] The defendant will pay a victim fine surcharge in the amount of $200.00 for each count, with five years to pay.
[21] The sentence I have imposed reflects my appreciation that denunciation and deterrence are the dominant legal principles in play. It recognizes the victim’s innocence and injury. As such, it may provide some comfort to her. But her full recovery must come from elsewhere. In this regard, I acknowledge that she is loved and cared for by a new guardian. It is my hope that the important support from this generous woman will lead the victim to good health and happiness.
Released: January 18, 2021 Signed: Justice J. De Filippis