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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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
DATE: 2021 04 28 COURT FILE No.: Windsor 20-11265
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
C.M.
Before: Justice S. Pratt
Heard on: 25 September 2020, 8 March 2021 Reasons for Judgment released on: 28 April 2021
Counsel: Craig Houle......................................................................................... Counsel for the Crown Daniel Topp.................................................................................. Counsel for the defendant
Reasons for Judgment
Pratt J.:
[1] In my 20+ years working in the criminal courts as a lawyer and now as a judge, I have likely been involved in thousands of cases. A very small handful of those cases have stuck in my memory. This will be one of those rare cases.
[2] On 25 September 2020 and 8 March 2021, C.M. (hereinafter “the Offender”) entered pleas of guilt to the following offences on Information 20-11265:
Count 1: Possession of Child Pornography; Count 4: Making Child Pornography Available; Count 5: Accessing Child Pornography; Count 7: Sexual Assault on Ch.M.; Count 10: Making Child Pornography; and Count 11: Sexual Assault on B.M.
[3] These offences arose between September 2019 and January 2020. Ch.M. is the Offender’s biological daughter. Her date of birth is […] 2015. B.M. is the Offender’s biological son. His date of birth is […] 2013. At the relevant times, Ch.M. was either 3 or 4 years old and B.M. was 5 or 6 years old. Each child had a birthday during the time period set out in the information.
The Facts
[4] The Offender came to police attention in January 2020 when they discovered that a particular Twitter account at a particular IP address had uploaded child pornography to the internet. Investigation led to the identification of the Offender and the execution of a search warrant at his residence on 30 January. They also attended the Offender’s workplace, where he was arrested for possessing and making available child pornography. Police seized his cell phone. He admitted to uploading child pornography but denied ever touching his own children.
[5] Police executed a search warrant on the Offender’s cell phone on 12 February. They discovered 174 child pornography images and 258 child pornography videos. I was advised that these videos were graphic. They depicted the assault of babies and children ranging from approximately 6 months of age to 10 years of age.
[6] In the course of reviewing the material found on the phone, police discovered three videos of particular interest. They appeared to show Ch.M. While there were three videos, police were unable to determine if one of them was a duplicate of another. Curiously, however, all three videos had been given different file names. For the purpose of this plea, I was given details about two videos.
[7] The first video shows Ch.M. in the master bedroom of the M. residence. She is fully clothed. The Offender’s penis is visible in the video. She puts her mouth on his penis but then backs away and says “no”. She moved back, and then away again. The Offender is seen rubbing his penis. This video is approximately 13 seconds in length.
[8] The second video is 7 seconds long. It shows Ch.M. with her mouth on the Offender’s penis. He is heard saying “keep going” and physically pushing her head towards him to put his penis further into her mouth.
[9] As I said, Ch.M. was either 3 or 4 years old at the time of these assaults.
[10] The Offender was interviewed about these videos on 21 April 2020. He admitted touching Ch.M. and recording it. He claimed to have forgotten about doing it, and that he had told Ch.M. to forget about it as well.
[11] The next day, 22 April, B.M. disclosed that the Offender had assaulted him as well. He said they had a “private party” where they both removed all their clothing. B.M. laid on top of the Offender and the Offender put his penis on B.M.’s face.
[12] As I said, B.M. was either 5 or 6 years old at the time of this assault.
[13] All of the above facts were accepted by the Offender and it is on the basis of those facts that I found him guilty and now consider his sentence.
Pre-Sentence Report/Victim Impact Statements
[14] I have had the benefit of a Pre-Sentence Report (hereinafter “PSR”) authored by Probation and Parole Officer Ken Harper. It was acknowledged as accurate by the Offender.
[15] The PSR details a difficult childhood. The Offender’s parents separated when he was an infant. Both formed new relationships. His mother’s new partner was physically and emotionally abusive. One of the children of his father’s new partner sexually abused him. Ultimately the Offender was taken into care by the Children’s Aid Society and at the age of seven was put into foster care.
[16] That care was also difficult. He was in two foster placements and one group home until, in Grade 10, he moved in with his third foster family. This placement was much more positive.
[17] The Offender had no contact with his mother from the ages of 7 to 18. At that point he re-established contact, but they only speak occasionally.
[18] He had supervised visits with his father while he was in Children’s Aid Society care. His father had his own difficulties, spending time in jail as a result of his physical abuse of the Offender’s stepmother. His father passed away nine years ago, a loss that the PSR says “had a profound effect on the Offender”.
[19] He has been with his wife R.M. for fourteen years. They have been married for eleven years and have three children. In addition to Ch.M. and B.M., they also have K.M., age 3. In the PSR, Ms. R.M. describes the family dynamic in positive terms and says the Offender is a “great father” when not using drugs.
[20] Since these offences came to light, they have worked on their relationship and it appears that Ms. R.M. is prepared to take him back into the family home. The Children’s Aid Society, as expected, has several conditions that must be met before they would permit that to happen.
[21] The Offender began abusing alcohol and drugs in his teens. At the time of these offences, he was abusing cocaine and opiates. He told Mr. Harper that he kept his drug abuse and descent into child pornography secret from his family.
[22] The PSR further describes the Offender’s actions since being charged. He has very strong family support and has joined his wife and her family in their Christian faith. He has also attended several counselling sessions while in custody.
[23] I received one Victim Impact Statement, from R.M. I will address this statement in more detail when I review the volume of letters filed on behalf of the Offender later in these reasons.
Principles of Sentencing
[24] The Criminal Code sets out the principles that must guide trial judges in the imposition of sentence. Those principles begin at s. 718, which states:
718 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.
[25] Further principles are set out in subsequent sections. Several are relevant to the present case. Section 718.01 says the following:
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[26] Section 718.2(a) lists what Parliament has determined to be statutorily aggravating factors. Among them are (ii.1), evidence that the offender abused a person under the age of 18 and (iii), evidence that the offender abused a position of trust or authority in relation to the victim.
[27] Section 718.2, paragraphs (b) – (e), recognize the principle of judicial restraint in imposing sentences. Custody should not be the first option but should only be ordered if less restrictive sanctions are not appropriate or reasonable. It follows from that reasoning that if custody is imposed, it should only be for as long as necessary to achieve the objectives of sentencing.
[28] Finally, pursuant to s. 718.1, these specific principles must be considered in light of the fundamental requirement that any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Aggravating and Mitigating Factors
[29] Aggravating factors are not difficult to find. They include:
(1) The victimization of children for sexual pleasure; (2) There were multiple victims; (3) Each victim’s very young age; (4) The victims are the Offender’s biological children; (5) The relationship of trust and authority the Offender had over both victims; (6) The Offender’s recording of Ch.M.’s abuse; (7) The Offender’s role in perpetuating the market for internet child pornography by uploading images to social media; and (8) The graphic nature of the images and videos found on his phone, including the abuse of infants.
[30] One potential aggravating factor that I am missing in this case is evidence of the impact these offences has had on the victims. I will address how the victims in this case have been treated since the offences later in my reasons.
[31] In mitigation, the chief factor weighing in favour of the Offender is his clear desire to plead guilty to these charges from the outset. He did not require any witness to testify. His plea is meaningful and is, in my view, a genuine sign of remorse. That is to his credit.
[32] He also has strong family support. His wife and in-laws are committed to helping him maintain the transformation he’s undergone since his arrest. He should be exceptionally grateful that they have not only remained in his life but are actively interested in helping him move forward. He also has the support of his pastor, R.P. All speak of how the Offender has changed in recent months. K.L. and L.L., the Offender’s in-laws, “pray that [C.M.] will receive the most lenient sentence possible”. Pastor R.P. asks “for mercy and grace with respect to his sentencing”. It is a testament to their faith that they have clearly forgiven the Offender for his actions and seek to help him in the future. He is fortunate to have them in his life.
The Positions of the Parties
[33] The Crown seeks a sentence of 10 years custody. Counsel argues that it would be hard to imagine a greater breach of trust than this. He urges me to denounce the Offender’s conduct in the strongest terms. In addition to the period of custody, the Crown seeks DNA on all eligible counts, SOIRA registration for life, and an order under s. 161 for ten years, with the only exception being internet use for the purpose of lawful employment.
[34] Defence counsel seeks a term of 6 years custody. He acknowledges the obvious gravity of these offences but asks me not to lose sight of the rehabilitative efforts the Offender has made since his arrest. He takes no issue with the ancillary orders being sought by the Crown.
[35] I pause to thank both counsel for their hard work and thoughtful submissions in a very difficult case. Ours is an adversarial system, and both sides were represented effectively and professionally.
Analysis
[36] The explosion of technology in modern society has had many positive effects. Among them are the ability to communicate with people on the other side of the world in an instant, or to have everything from the latest news to the works of Shakespeare literally at one’s fingertips.
[37] Technology has also made the exploitation of children easier than ever. The trade of child pornography images and videos, once limited to clandestine mail deliveries or hand-to-hand transactions, can now be accomplished with a few clicks or taps. Libraries of thousands upon thousands of child abuse images can be accessed in minutes by those who wish to see them. In doing so, they continue the abuse the children in this material have already suffered. Consumers keep the industry going with their demand. More active participants, like the Offender, also feed it by uploading their own material. And every time a video or image is opened, the abuse of vulnerable and defenceless children happens again. Nothing is ever truly gone from the internet. Despite the efforts of law enforcement around the world, the child abuse images circulating today will likely be there forever. And the collection grows, thanks in large part to people like the Offender.
[38] Section 718.01 tells me that denunciation and deterrence must be my primary sentencing considerations when dealing with child abuse offences. While s. 718 sets out several principles of sentencing, denouncing this conduct and deterring others from engaging in it must be paramount.
[39] Courts have, perhaps too slowly, come around to the gravity of child sexual abuse offences. This acknowledgement has most recently been made in the case of R. v. Friesen 2020 SCC 9, [2019] S.C.J. No. 100. Chief Justice Wagner and Justice Rowe, writing for a unanimous court, began the decision with this statement:
Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children.
[40] At paragraph 5, the Court explained one of its goals with the decision:
Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
[41] At paragraphs 46-49, the Court spoke of the increasing role of technology in the victimization of children, and of society’s attempts to respond:
Because protecting children is so important, we are very concerned by the prevalence of sexual violence against children. This "pervasive tragedy that has damaged the lives of tens of thousands of Canadian children and youths" continues to harm thousands more children and youth each year (Canada, Committee on Sexual Offences Against Children and Youths, Sexual Offences Against Children: Report of the Committee on Sexual Offences Against Children and Youths (1984), vol. 1, at p. 29 ("Badgley Committee")). In Canada, both the overall number of police-reported sexual violations against children and police-reported child luring incidents more than doubled between 2010 and 2017, and police-reported child pornography incidents more than tripled (Canada, Department of Justice Research and Statistics Division, Just Facts: Sexual Violations against Children and Child Pornography, March 2019 (online), at pp. 1-2). Courts are seeing more of these cases (R. v. M. (D.), 2012 ONCA 520, 111 O.R. (3d) 721, at para. 25). Whatever the reason for the increase in police-reported incidents, it is clear that such reports understate the occurrence of these offences (R. v. L. (W.K.), 1991 SCC 54, [1991] 1 S.C.R. 1091, at pp. 1100-1101).
New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Social media provides sexual offenders "unprecedented access" to potential child victims (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 102). The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child's caregiver. Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera (see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193). The Internet has also "accelerated the proliferation of child pornography" (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 114, per Deschamps J.).
Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 92; R. v. S. (J.), 2018 ONCA 675, 142 O.R. (3d) 81, at para. 120).
Both Parliament and the courts have begun to respond to the prevalence of, new forms of, and qualitative changes in sexual violence against children. Parliament has attempted to keep pace with these developments by amending sentencing provisions for sexual offences against children (K.R.J., at para. 103). Courts too have been on a "learning curve" to understand both the extent and the effects of sexual violence against children and sentencing has evolved to respond to the prevalence of these crimes (R. v. F. (D.G.), 2010 ONCA 27, 98 O.R. (3d) 241, at para. 21).
[42] The present case includes features of modern technology, hands-on offending, and the combination of the two. When the Supreme Court says that sentences for these offences must increase (at paragraph 93 and onward), they clearly include situations like the Offender’s.
[43] Another point the Court makes in Friesen relates to the harm done to victims of child sex offences. Using them to create child pornography violates their dignity by treating them as sexual objects. It robs them of their right to grow free of violence and exploitation. It impacts their view of themselves, their relationships with others, and ultimately, society as a whole. It can have ongoing and pervasive effects on their development, even if there are no physical scars.
[44] As stated by my colleague, Justice Dellandrea, in R. v. J.R., 2021 ONCJ 142 at paragraph 35:
It is well known that sexual offences against children rob them of their youth and innocence. They can tear families apart and leave them dysfunctional. Victims' lives are irretrievably damaged and sometimes permanently destroyed. Children who are sexually abused are often unable to form loving relationships with others as adults, as they may fear that any form of intimacy might expose them to exploitation or harm, as opposed to comfort or affection.
[45] Further, that this risk of harm exists is something I can consider even if there is no specific evidence of it presented to me (See: R. v. P.(M.) (1992), 73 C.C.C. (3d) 530 (Alta. C.A.)).
[46] That last point is especially important in this case. Regarding the impact of these offences on the victims, I read the statement of Ms. R.M. and also heard her testify. Her words, written, and spoken, cause me tremendous concern.
[47] In her Victim Impact Statement, Ms. R.M. wrote about both children. She said, “There was only one incident of something inappropriate happening with [B.M.].” She said that B.M. has forgiven his father and wants him to come home. She ends the paragraph devoted to B.M. with, “[C.M.] was a good father and loves his children very much.”
[48] The next paragraph was about Ch.M. Ms. R.M. said that she’s spoken to Ch.M. but, “She was three when the incident happened and I honestly think she doesn’t really remember them.” She says Ch.M. “misses him and also wants him to come home. She is always asking me when she can see him again.”
[49] That she said the sexual assault on B.M. was “only one incident of something inappropriate happening” is very troubling to me. It isn’t only one incident of something inappropriate. It is the sexual victimization of a young boy by his father. The Offender and his son disrobed completely. B.M. climbed on top of him. The Offender put his penis on his son’s face. That is not inappropriate. It is degrading. It is sexual objectification of a five-year old boy by his father. It is a gravely serious criminal offence.
[50] As for Ch.M., Ms. R.M. stated that on the one hand, she didn’t think Ch.M. remembered what happened as she was so young. On the other hand, she also wrote that Ch.M. talks about the Offender all the time and constantly asks when he’s coming home. She’s too young to remember her father forcing her to give him oral sex on multiple occasions, but her memory is so clear that she constantly asks when her daddy is coming home? I have great difficulty accepting that evidence.
[51] When the impact on the victims became an issue during submissions, counsel for the Offender called Ms. R.M. to testify. She again downplayed the impact these offences have had on her children. When asked about counselling for either child, she advised that she had several meetings with counsellor C.B. about the children. That is, she and Ms. C.B. had meetings about the children, not with the children. After these meetings, according to Ms. R.M., Ms. C.B. told her the children did not need counselling.
[52] To be clear, when dealing with two young children who had been sexually assaulted by their father, Ms. R.M.’s evidence is that the counsellor told her they didn’t need counselling without actually meeting either child. On this evidence, the declaration that no counselling was needed came not from assessing either child directly, but from interpreting what their mother (the Offender’s spouse) was saying about them. Crown counsel said he was shocked to hear that. I echo that sentiment. The idea that the mental well-being of young sexual victims can be definitively assessed through phone or video calls with a third-party is ludicrous on its face.
[53] Ms. R.M. further testified that the children did get some personal counselling, from someone called Camilla (she couldn’t recall her last name). She testified that each child received approximately 90 minutes of counselling over two visits. That counselling has now concluded.
[54] The letter from K.L. and L.L., while effusive in its praise for the Offender, is silent on how this has affected their grandchildren. The letter from Pastor R.P. likewise doesn’t mention the victims (though in fairness, he may not know Ch.M. and BM.).
[55] Then there is the letter from the Offender himself. It is five paragraphs long. He uses the first four paragraphs to outline his own history of abuse and drug use. He uses the final paragraph to talk about living with his in-laws and his plans to continue addictions counselling.
[56] A person reading this letter wouldn’t even know the Offender has children, let alone that the letter was written in advance of his being sentence for sexually abusing them.
[57] I asked the Offender if he had anything to say before we adjourned on the last occasion. He said:
I’d like to say I’m sorry and that I hope you’ll take into consideration of me turning myself in a way of showing that I’ve changed. And that’s it Your Honour.
[58] Again, the Offender’s words are focused exclusively on himself. Not a word about the children he’s victimized. While any guilty plea is a show of remorse this obvious lack of insight into what he’s done, and his failure to even mention his children’s names in either his letter or his statement, cause me to question his understanding of the gravity of what he has done.
[59] With the greatest of respect, it is my view that the mistreatment of Ch.M. and B.M. continues to this day. No one, and I mean no one, is taking the harm that has been done to them seriously. There was apparently a decision that no counselling was needed, made without actually speaking to either child. They received a total of approximately 90 minutes of counselling with someone whose name Ms. R.M. can’t remember. There are no plans for further support beyond ill-defined “spiritual counselling” through their church. Everyone with responsibility for looking after Ch.M. and B.M. is so fixated on supporting the Offender that the victims have been all but ignored. Ms. R.M. said she would communicate with her children and assist them if needed. Candidly, I don’t trust that will happen. Nothing that has happened since the Offender’s arrest leads me to any different conclusion.
[60] I also observe that the Offender’s past abuse is being pointed to as a significant contributing cause of his own conduct. But, I’m told, Ch.M. and B.M. are fine. Unlike their father, their abuse won’t pose a problem going forward. That is nonsense. I’m happy to hear that the Children’s Aid Society is maintaining an active interest in the children’s welfare. I’m happy to hear that someone is.
[61] In considering an appropriate sentence, I note the comment of Justice Wagner (as he then was) in the case of R. v. Lacasse 2015 SCC 64, [2015] 3 S.C.R. 1089. In that case, the Supreme Court opined on the effect of Parliament increasing maximum and minimum punishments for offences. While Lacasse was a driving case, His Honour’s words are applicable and were quoted in Friesen. He said:
The increase in the minimum and maximum sentences for impaired driving offences shows that Parliament wanted such offences to be punished more harshly.
[62] The Court in Friesen pointed out the increases in minimum and maximum sentences for child sex offences enacted by Parliament began in 1987 and continued in 2005 and 2015. Chief Justice Wagner and Justice Rowe stated the following at paragraphs 99 and 100:
These successive increases in maximum sentences indicate Parliament's determination that sexual offences against children are to be treated as more grave than they had been in the past. As Kasirer J.A. (as he then was) reasoned in Rayo, the legislative choice to increase the maximum sentence for child luring [TRANSLATION] "must be understood as a sign of the gravity of this crime in the eyes of Parliament" (para. 125). We agree with Pepall J.A.'s conclusion in Stuckless (2019) that Parliament's legislative initiatives thus give effect to society's increased understanding of the gravity of sexual offences and their impact on children (paras. 90, 103 and 112).
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. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament's view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [TRANSLATION] "toughened sanctions" (para. 175; see also Woodward, at para. 58). Sentencing judges and appellate courts need to give effect to Parliament's clear and repeated signals to increase sentences imposed for these offences. (Emphasis added)
[63] In my view, Friesen is sufficiently comprehensive in its statement of how courts should deal with child sex offences that all other caselaw must be evaluated as “pre-Friesen” or “post-Friesen”. The Supreme Court could not have been clearer that older precedents dealing with child sex assaults should be given less weight going forward. This brings me to the case filed by the defence, R. v. P.M. 2012 ONCA 162.
[64] In P.M., the Court of Appeal for Ontario upheld the trial judge’s sentence of six years for an offender who had engaged in repeated and forced vaginal and anal intercourse with his teenage daughter. He had also recorded some of the abuse on video, which police found on his computer.
[65] To be sure, there are some similarities between the Offender and P.M. Both came from difficult childhoods. Both have the support of their family. P.M. had no prior criminal record, while the Offender has only one dated and unrelated entry.
[66] There are differences as well. The most obvious is the nature of the assaults perpetrated by P.M. The Offender did not force repeated intercourse on his victims. That is a relevant distinction. At least as relevant, however, is the fact that this decision is from 2012. That the decision is pre-Friesen is seen in the words of Justice Rosenberg at paragraph 46:
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.
[67] Had the Court of Appeal been equipped with Friesen at the time P.M.’s appeal was heard, I suspect a different result would have followed. I find the reasoning in P.M. has been overtaken by Friesen and no longer represents an accurate statement of sentencing ranges regarding child sex assaults.
[68] Even before Friesen was released in April 2020, the Court of Appeal for Ontario had already begun resetting its sights on what constitutes a fit child sex offence sentence. In R. v. M.S., 2019 ONCA 5701, released five months before Friesen, Justice Watt spoke for a unanimous Court when he upheld a ten-year sentence in a case involving the repeated, recorded abuse of M.S.’s four-year old daughter. As Justice Watt said at paragraph 10:
Nor are we persuaded that the sentencing judge erred in considering the sexual abuse of the complainant as an aggravating factor in determining the sentence to be imposed on the child pornography counts. These offences involved an egregious breach of trust. They violated the physical and sexual integrity of a four-year-old child. The appellant's conduct - that of a predator, not a protector - attracted the operation of the aggravating factors in ss. 718.01 and 718.2(a)(ii.1) and (iii). We are satisfied that the sentence imposed is fit.
Decision
[69] The Offender has committed several very serious criminal offences. He has debased and abused young children who looked to him for protection and security. Instead of nurture and comfort, they found exploitation and degradation.
[70] I have no assessments that might predict his risk of re-offending. What I do have from the Offender is a demonstrated lack of insight into his crimes, and from the family a baffling minimization of the impact these crimes have had and will likely continue to have, on Ch.M. and B.M. I am genuinely concerned for how this family will choose to move forward.
[71] Using children to satisfy sexual desires is abhorrent conduct that will not be tolerated in Canadian society. Children have a right to grow in an environment of peace, support, and affection. They have a right not to be subjected to sexual violence, least of all from their own parent. The sentence I impose must denounce the Offender’s conduct in the strongest possible terms. He has committed a fundamental breach of one of the strongest trust relationships humans have. While he must be sentenced for his own conduct and courts should not make an example of any one offender, today’s sentence must also send a clear message to like-minded individuals that if you act as the Offender has acted, you will go to jail for a very long time.
[72] I do not ignore the fact that by pleading guilty, the Offender has saved all involved a very difficult trial. That is a significant mitigating factor and it is what has saved the Offender from a double-digit sentence. Taking into account the principles laid out in Friesen, together with the principles of sentencing and Parliament’s desire that child sex offences be treated more harshly, I impose the following sentence:
(1) A global period of incarceration of 9 years. This will be divided as follows: (a) Count 7: 9 years. The Offender will receive credit for 256 actual days of pre-sentence custody, enhanced at 1.5:1 to 384 days. This leaves 7 years, 11 months, 11 days still to be served. (b) Count 11: 7 years, concurrent to Count 7. (c) Count 1: 4 years, concurrent to Count 7. (d) Count 4: 4 years, concurrent to Count 7. (e) Count 5: 4 years, concurrent to Count 7. (f) Count 10: 6 years, concurrent to Count 7. (2) There will be an order that the Offender provide a sample of his DNA for inclusion in the national DNA databank on all counts as all are Primary DNA offences; (3) There will be an order under paragraphs a, b, c, and d of s. 161 of the Criminal Code for ten years. The only exception will be to paragraph d. The Offender may access the internet or other digital network for the purpose of lawful employment or education; (4) There will be an order on Counts 7 and 11 under s. 109 of the Criminal Code prohibiting the Offender from possessing weapons for a period of ten years; (5) There will be an order under s. 490.012 of the Criminal Code that he comply with the Sex Offender Information Registration Act, for life; and (6) If the Crown seeks it, I will entertain an application under s. 164.2 of the Criminal Code for forfeiture of the seized cell phone.
[73] Finally, I have considered the issue of victim surcharges. This is an entirely appropriate case for these payments. Bearing in mind the length of the Offender’s sentence and his consequent ability to pay, I am ordering surcharges on counts 7 and 11 only. They will be $200 each, payable pursuant to the schedule established by the Lieutenant-Governor in Council.
[74] That is the sentence of the Court. Sir, I wish you luck.
Released: 28 April 2021 Signed: Justice Scott G. Pratt