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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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.
ONTARIO COURT OF JUSTICE
DATE: 2021 09 13 COURT FILE No.: Brampton 19-12461 Brampton 20-7075
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
W.S.
Before: Justice K.L McLeod Heard on: November 30, 2020, April 13, 2021, September 13, 2021 Reasons for Judgment released on: September 13, 2021
Counsel: Ms. Y. Brar............................................................................................ counsel for the Crown Mr. S. Whitzman..................................................................... counsel for the accused W.S.
K.L. McLeod J.:
Introduction
[1] Mr. W.S. has pleaded guilty to Sexual Interference and Invitation to Sexual Touching.
[2] The victim is his now 9-year-old daughter M.S.
[3] For these offences the Crown seeks a sentence of 5 years, the Defence a sentence in the range of 3-4 years.
[4] Both Crown and Defence agree that a DNA order, a SOIRA order for life and a Section 161 order should be imposed, although there is a disagreement as to the length of the Section 161 order: the Crown sees a 15-year prohibition and the Defence a 10-year prohibition. The Crown also seeks an order under Section 743.21 prohibiting Mr. W.S. from communicating with his daughter M.S. while serving his sentence.
[5] The facts were entered through an Agreed Statement of Facts which is Exhibit 1 on the Plea. It was entered on the day set for trial in November of last year. The matter has been adjourned awaiting the completion of an assessment looking into psychiatric sexological and risk indicators.
Circumstances of the Offence
[6] The facts admitted were as follows:
On June 14th, 2019, in the midst of the aftermath of an argument between Mr. W.S. and his wife Ms. J.S about his drinking, M.S. was asked by her mother what Mr. W.S. had told her about a possible separation. Ms. J.S. asked the question as her husband had told her that he had already spoken to the children and that M.S. knew that if they ever split up, Social Services would take M.S. away from her mother. In responding to her mother’s query of her, M.S. at that time disclosed that her father had told her about "how babies were made" and "how the thing goes into the hole", and that she had seen her father’s private parts. Ms. J.S. asked M.S. if she had ever touched her father in his private parts: M.S. asked, "is it bad if I say yes?”
The next day Ms. J.S. took M.S. to the police station and revealed that over what she thought was approximately a 6 month period her father had removed his underwear and her underwear was removed, that she sat on his lap “doing things he shouldn’t be doing” and he would teach her how to make a baby. She described Mr. W.S.’s "wiener" touched her vagina: that it hurt a little bit, but that he made it hurt less by "doing it lighter".
According to M.S. her father would stop when he realized he should not be doing that. He told her that and said it would stop.
When these episodes occurred, Ms. J.S., according to M.S., would be taking her usual after work nap.
In November 2019, M.S. went back to the police station and disclosed that she was in the living room with her little brother and her father, her mother was again napping. Mr. W.S., according to M.S. asked her to "suck on his wiener.” He pushed her head down and had her open her mouth and suck on it and "cream was coming out". She said this happened way more than one time. M.S. also revealed that she told her father to stop many times in a firm voice whenever this happened.
M.S. also revealed that her father told her not to tell her mother and that he would cry saying “he should not have done what he did, but that he was trying to show her what bad people do".
The Victim Impact
[7] M.S. provided a victim impact statement in which she states that she has trouble sleeping and that she feels mad, sad, confused, and frustrated. It impacts her focus at school. She says: "it just doesn’t feel right that he did this stuff to me and that other people do the same thing to other people.” She also said it makes her “feel happy that he admitted what he did, but it makes me feel sad that he didn’t tell them the truth when they asked him the first time”. M.S. concludes with this: the fact that she knows she will never forget, but that she may want to see him after he gets out of jail “if he has learned his lesson and he won’t do it again and won’t break the promise”.
[8] M.S.'s mother also provided her own statement, explaining that after her husband's arrest she and her two children had to move in with her mother, M.S. changed schools and moved away from her friends.
[9] Her daughter has had problems sleeping, had nightmares about monsters, had trouble focussing at school, that she has been seeing the school social worker but that there have been outbursts of anger and tears, according to M.S. because she can’t take her anger out on her father, she does it to her remaining parent, her grandmother and her brother. Ms. J.S. said:
One of a parent’s many roles is to protect their kids from harm. Never did I think I would have to protect M.S. from him. This is something that never should have happened and I myself have felt a lot of guilt as her mother realizing that these things happened right under my nose and I didn’t see it. I will carry this guilt with me forever.
[10] In closing she states:
I take solace in knowing that M.S. is still one of the bravest, strongest little girls and this has not broken her spirit. She still sees all the good in the world and I believe she has been able to show many that know her that this this will not define her.
[11] At this juncture I want to express my thanks to Ms. J.S. and M.S. It is all too common that those who have been victims of this kind of offence take on themselves the cloak of guilt and as I say time and time again, that is so understandable but so wasted. These victims should never place any guilt on their shoulders: it rests entirely with this offender. Ms. J.S and M.S. played no role in "causing this”. They have nothing to feel guilty about. I would posit a suggestion: the strength of these two people is cause for celebration. Ms. J.S did exactly the right thing: she went to the police immediately; she understands the reasons for her daughter’s anger and sees the good in her daughter. I am encouraged by M.S.'s strength that she will overcome this, although I agree she will never forget.
[12] I thank Ms. J.S and M.S. for their courage in compiling these statements, it is such an important part of the process of making offenders truly accountable. Thank you both.
The Circumstances of the Offender
[13] Mr. W.S. is 37 years old: he has a previous finding of guilt from 2013 for Voyeurism which apparently involved attempting to video women up their skirts with a cell phone. He was drunk.
[14] He is married, although separated when he was charged, he has two children, M.S. and a young boy who is 3.
[15] As a child he was diagnosed with ADHD and was prescribed Ritalin (which he did not ingest) and an antipsychotic medication which he stopped taking when he turned 16. With respect to his parents, he says his father was arrested for the same thing as he has been charged with. No further details were provided
[16] Mr. W.S. was interviewed and assessed by a Forensic Psychiatrist, Dr. Derek Pallandi. He provided a thorough report to the extent possible within the limitations of this assessment in the middle of the COVID Pandemic: phallometric testing was not available. Mr. W.S. identified as someone who, in his adolescence abused illegal drugs extensively, which led to hospital admissions, but no longer. However, he does identify himself as a heavy drinker: 2 litres of wine per day. He admits his use of alcohol has increased hugely. He had been abstinent for 2 years prior to 2017, when he started surreptitiously drinking again. While the facts read in on the plea spoke of Mr. W.S.’s use of alcohol, in his interview with Dr. Pallandi, he denied it could be a considered a cause of his aberrant behaviour.
[17] Of relevance is the fact that Mr. W.S.'s father was a heavy drinker and while Dr. Pallandi's report stated: "Mr. W.S. was sexually educated both in school and at home. He preferred not to fully disclose whether he had a history of sexual maltreatment". Mr. Whitzman submitted on behalf of Mr. W.S. that “yes, he was in fact abused by his father”. That would explain the reason for his father's charge. With respect to his father, Mr. W.S. who was born in Newfoundland, said his father "abandoned me in Newfoundland". Mr. W.S. moved to Toronto when he was 5 and lived briefly with his mother but was raised by his uncle. He has no contact with either of his parents.
[18] Mr. W.S. has 3 sisters and 2 stepbrothers, however he only is in contact with one sister.
[19] Mr. W.S. barely finished Grade 10 and appears to have worked in carpentry and fabrication and moulding until his present long-term employment. He works as a maintenance manager for several facilities.
[20] In terms of explanation for his actions there was none; in terms of insight, Dr. Pallandi considered it to be "difficult to gauge although appeared superficial".
[21] In terms of risk: Dr. Pallandi opined that incest type offending is known to be associated with lower rates of recidivism: in this case M.S. is his only daughter, although Dr. Pallandi stated that her young age was of additional concern. That Static 99-R instrument placed Mr. W.S.’s scores in the low moderate nominal range which Dr. Pallandi endorsed and suggested that there were appropriate targets for treatment that could address his risk. He suggests OCI which is not available to Mr. W.S. as that is a provincial institution, he recommended that Mr. W.S. receive assistance for his alcohol abuse and whatever is available for the nature of his offending.
[22] Mr. Whitzman suggests that the abuse that Mr. W.S. suffered at the hands of his father has repeated itself. Mr. Whitzman, an experienced counsel suggests that the abused who then abuse and who marries a woman who was abused, and who witnessed his sisters being abused by his father and is then a heavy drinker is indicative of what abuse can do to someone. He suggests that while Mr. W.S. may not see this straight-line connection, it is obvious to those looking at the situation.
[23] I agree, indeed the connection identified by Mr. Whitzman is one that is spoken of by the Court of Appeal in R. v. D.D. (and repeated in R. v. Woodward) in which the Court suggested that the consequences of the effect of sexual abuse of children are “only too well known” (R. v. D.D. at paragraph 36) that
(i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult to form a loving caring relationship with another adult and (iii) children who have been sexually abused are prone to become abusers themselves when they reach adulthood. (R. v. Woodward at paragraph 72)
[24] Mr. W.S. is that damaged person who has then become an abuser himself. It may be that is why his insight was "appearing superficial" to Dr. Pallandi. There is no evidence that he ever received any form of therapy for what may have happened to him and may not fully understand how or why he committed this awful crime.
The Principles of Sentencing and the Range of Sentence
[25] Section 718 of the Criminal Code sets out the purposes and principles of sentencing. The principle purposes for this offence are the denunciation of the unlawful conduct, deterrence both specifically to the offender and other persons and to separate offenders from society where necessary.
[26] The fundamental principle of sentencing mandates that any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (Section 718.1 Criminal Code)
[27] Section 718.2 sets out circumstances that will increase a sentence as they aggravate the seriousness of the offence and the degree of responsibility of the offender. The enumerated circumstances that apply to Mr. W.S. are the abuse of a family member, that the victim was under the age of 18, that the offender was in a position of trust or authority towards the victim, evidence that the offence had a significant impact on the victim, considering their age, other personal circumstances including their health.
[28] Section 718.2 also states that a sentence should be similar to sentences imposed on similar offenders for similar offences (see discussion of R. v. Friesen infra).
[29] What then is the range of sentence in similar circumstances? Woodward suggests the following:
Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. And further that when trial judges are sentencing adult sexual predators who have exploited innocent children the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospect for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators for society for society's well-being and the well-being of our children must take precedence.
[30] That siren call is repeated and enhanced into a clarion call by the Supreme Court in R. v. Friesen. As Mr. Whitzman stated: “there was before Friesen and after Friesen”. The Chief Justice sent a very clear message at paragraph 114 of the decision:
Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that 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. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). (R. v. Friesen at paragraph 114)
[31] While resisting the invitation to set a sentencing range, the Court directed appellate courts to revise and rationalize sentencing ranges and suggested that courts can and sometimes need to depart from prior precedents and directed that courts must recognize and give effect to the 1. inherent wrongfulness of these offences, 2 the potential harm to children and the actual harm. (R. v. Friesen at paragraph 108)
[32] The Court then provided a set of factors that courts should take into account in determining the range of sentence to meet the principle of proportionality. I now turn to listing those factors and their applicability to this case.
A. The likelihood to reoffend: the greater the risk of reoffence, the longer the sentence.
[33] In this case the only evidence I have is that Mr. W.S. has some specific issues on which he requires treatment, but that he is, without more, considered a low to moderate risk of reoffence:
B. The extent of the abuse of trust: the closer the relationship the greater the breach of trust and the degree of responsibility of the perpetrator.
[34] Mr. W.S. committed unfathomable offences against his only daughter. He owed her a duty of care and protection that he utterly disregarded
C. The duration and frequency of the assaults: the court stated that "sexual violence against children that is committed on multiple occasions and for longer periods of times should attract significantly higher sentences that reflect the full cumulative gravity of the crime”.
[35] In this case the immediate harm suffered by M.S. was multiplied by the number of times she was made to suffer. M.S. thought that the touching of her father's penis to her vagina while she sat on him naked occurred between 3-6 times and that the forced fellatio happened "way more than one time". The timeframe she thought was after Christmas until June.
D. The age of the victim: the younger the child the dependency on the adult who breached her trust is total: the younger the child the more serious the offence and the degree of moral blameworthiness.
[36] M.S. was 6 years old when her father abused her.
E. The degree of physical interference
[37] In this case while there is not an admission of full penetration there is an agreed statement by M.S. there was hurt and so "he did it lighter". The fellatio and the form of penile invasion are at the high end of the degrees of physical interference.
[38] These then are the factors that the Supreme Court has so recently stated I must consider when looking at the appropriate sentence. Also, I must consider the following additional factors:
[39] The timing of the plea: this is not an early plea: indeed M.S. was prepped for trial and was actually in the courthouse ready to testify on the day her father formally changed his plea. However, it is a plea. As Mr. Whitzman explained and I acknowledge: the ramifications of the admission of this type of offence are enormous in the public domain. Many ultimately convicted offenders protest their innocence throughout and likely maintain that position both in jail and after, using it as a shield. I also acknowledge that offenders who are truly remorseful sometimes find it hard to accept themselves the degree of their offending.
[40] I am told M.S. was so relieved when she heard that her father had pleaded guilty, while disappointed he had not done it earlier, her relief apparently was palpable when she was told by Ms. Brar. This admission has clearly opened the door at this time for M.S. to eventually consider whether she wishes to speak to her father.
[41] Two other factors are also relevant: 1. the effect on M.S.'s mother: she too was the victim of abuse when she was a child. Her daughter's experience was very triggering for her and no doubt was extremely damaging all over again; and 2. the fact that M.S. recounted her brother was present watching when she was made to perform fellatio on her father. He would have been 3.
[42] Finally, I must look to rehabilitation prospects which plays a lesser role in terms of the principles of sentencing in this offence but is clearly still relevant. Mr. W.S. has a supportive cousin who has been his surety and appears to have a good work record which hopefully will allow him to be in the workforce upon his release. However, the limited extent of Mr. W.S’s insight is troubling. When he was asked by Dr. Pallandi about what happened he stated: he had difficulties with his memory, but that it was true he had assaulted his daughter and said, "we’ll go with what she said". While obviously a full recitation of all of the events is not expected, it is clear he has a long road to truly coming to grips with all of the implications of his offending.
[43] The one other aspect of Mr. W.S. that raises some issues is this: in the personal history section of Dr. Pallandi's report there is a description of Mr. W.S.’s school experience. I will quote: “Mr. W.S. attended school at the normal time although evidenced significant behavioural and academic difficulties. He was often detained. He was identified with a learning disability and ADHD. Although he nominally completed Grade 10, he reported that "they finished grades for me". He was eventually "kicked out for not wearing shoes".” His lack of education may go towards explaining in part or all the comment from Dr. Pallandi about Mr. W.S.’s insight. It also speaks to his ability to fully embrace and comprehend the extent of the rehabilitative steps he must take.
[44] In terms of the range of sentence, Mr. Whitzman concedes he has been unable to locate precedents that would support a submission of a 3 year sentence, so he submits a range of 3-4 years arguing the heightened significance of the guilty plea, the fact that Mr. W.S. is a victim of abuse and going forward the collateral consequence of serving a sentence commencing in the COVID Pandemic in line with R. v. Suter and R. v. Hearns.
[45] Dealing with each of these submissions in turn therefore:
- The significance of the guilty plea. I agree a guilty plea is rare in these circumstances. Indeed, the majority of the cases provided by the Crown as a useful reference of sentencing ranges before Friesen speak of trials as opposed to pleas which are rare. A guilty plea is a sign of remorse and therefore is treated as a mitigating circumstance leading to a reduction in sentence.
- Mr. W.S. is a victim: I have taken note of Mr. W.S. as being a victim; while it explains, in part his offending, it does not serve as a mitigating factor; in fact, it is further evidence of the long-lasting effects of child abuse.
- Serving a sentence of jail during the COVID Pandemic is a collateral consequence which can lead to mitigation of sentence given the hardship to be experienced. However, it cannot reduce the sentence to an extent that is below the appropriate range so that the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender. (R. v. Morgan, 2020 ONCA 279, R. v. Marshall, 2021 ONCA 344, R. v. Bristol, 2021 ONCA 599)
Conclusion
[46] Balancing as I must the seriousness of the offence, the responsibility of this offender which is high, I have concluded that but for the guilty plea and that fact that Mr. W.S. is entering jail in the midst of the Pandemic, the appropriate sentence taking into account all of the aggravating and mitigating circumstances, would have been at the very least 5 years. However, given those significant mitigating factors I have concluded that the appropriate sentence is one of 4 years and 6 months in the penitentiary.
[47] I will now turn to the ancillary orders: both counsel agree that a Section 161 prohibition order should be made; they differ as to its length. I have determined that for a period of 15 years Mr. W.S. will be subject to the following prohibitions:
(a) you are not to attend a daycare centre, schoolground, playground with no exceptions.
Furthermore, you are not to attend a public swimming area or community centre where children under the age of 16 years are present or can reasonably be expected to be present unless in the company of a person over the age of 25 years who is aware of this order.
(a.1) you are prohibited from being within two kilometres of any dwelling house or any place you know M.S. or her brother to be, unless in accordance with the terms of a Family Court Order dated after today.
(b) you are prohibited from seeking obtaining or continuing any employment whether or not the employment is renumerated, or become 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.
(c) having any contact or communication by any means except incidental contact or communication with any person who is under the age of 16 years unless you are in the company of the parent’s child or guardian or a person designated by them.
[48] An order will be made under Section 487.051 (a DNA order); Mr. W.S. has been convicted of a primary designated offence.
[49] Mr. W.S. is ordered, within 10 days of his release from custody, to Register himself under the Sex Offender Information Registration Act at the address provided on his order and to report annually for life.
[50] Mr. W.S. is prohibited from communicating directly or indirectly with his daughter M.S. during the custodial period of his sentence.
[51] The Victim Fine Surcharge is waived, Mr. W.S. will have no income for a considerable period of time.
Released: September 13, 2021 Signed: Justice K.L. McLeod