Non-Publication and Non-Broadcast Order

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 04 29 COURT FILE No.: City of Stratford 3211-998-19-1269-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

R.G.

Before: Justice K. L. McKerlie

Sentencing submissions made on: April 14 and 19, 2022 Reasons for Sentence released on: April 29, 2022

Counsel: J. Costain, counsel for the Crown T. Bitton, counsel for the accused R.G.

McKerlie J.:

Offences and Background

[1] On Information 19-1269, R.G. is being sentenced for 10 offences relating to the sexual abuse of his daughter.

[2] The trial was heard on March 30, March 31, April 1, and April 7, 2021. The findings of guilt were made on July 6, 2021.

[3] The offences span an eight-year period from October 2011 to October 2019. The victim was 9 or 10 years old at the time of the first offence. The last offence was on October 3, 2019, a few days before the victim’s 17th birthday.

[4] The following is a summary of the trial findings relative to the counts set out in the Information:

Count 1 (s. 151): On a number of occasions between October 12, 2011 and December 31, 2012, R.G. touched the victim, a person under the age of 16 years, for a sexual purpose by groping her buttocks and breasts over her clothing. He also made sexually inappropriate comments about her body and her clothing.

Counts 3, 4 & 5 (ss. 272(2)(b), 279(2) and 155): On a date between October 12 and December 31, 2015, R.G. unlawfully confined the victim in the basement bedroom of her grandparents’ home by forcibly restraining her and handcuffing her to the bed. After forcibly removing her clothing, R.G. masturbated and put a condom on his penis. R.G. spread the victim’s labia and forcibly subjected her to sexual intercourse in circumstances where he knew the victim was his daughter, thereby committing the offences of incest, sexual assault with a weapon and unlawful confinement.

Counts 6 & 7 (ss. 271 and 155): After her parents separated, the victim attended weekend access visits with her father. On one occasion, between December 1 and December 31, 2017, R.G. entered the bedroom while the victim was sleeping. The victim awoke to find R.G. on top of her, masturbating and removing her pajamas. R.G. restrained the victim with her hands over her head and told her to keep quiet. He took a condom from the drawer of the cabinet and forcibly subjected her to sexual intercourse, in circumstances where he knew she was his daughter, thereby committing the offences of sexual assault and incest.

Counts 8 & 9 (ss. 271 and 279(2)): On another occasion between October 12, 2017 and December 31, 2017, R.G. and the victim were in the garage while her brother was inside the house watching a movie. R.G. told the victim to get in his truck. He sexually assaulted the victim by forcibly kissing her and trying to suck her breasts. She told him to stop, and he told her to shut up. R.G. removed the victim’s clothing. He told her to get into the storage area of the truck. R.G. unlawfully confined the victim, who was then naked, in the storage area of the locked truck for hours before letting her out in the morning.

Count 10 (s. 272(2)(b)): On October 3, 2019, R.G. told the victim to meet him in the Tim Hortons’ parking lot. R.G. entered the victim’s vehicle and sexually assaulted her using a pocket knife as weapon. He kissed her, told her to shut up and sucked her breasts. The victim struggled to keep her pants up but was unsuccessful. R.G. used a pocket knife and deliberately nicked the surgical incision at the hairline of her vagina.

Count 11 (s. 155): On October 3, 2019, after sexually assaulting the victim in her vehicle, R.G. told the victim to get out and get into his truck. He told her to lay down on the back seat, to shut up and to not move. He pulled down her pants and underwear. He then pulled his own pants down, masturbated and put a condom on his penis. R.G. forcibly subjected the victim to sexual intercourse in circumstances where he knew she was his daughter, thereby committing the offence of incest.

[5] The sentencing hearing was originally scheduled for August 17, 2021. However, on August 15, 2021, R.G. packed his belongings, cut off his GPS ankle bracelet and left his surety’s residence. According to the Crown’s Notice of Application seeking revocation of the release order, R.G. was located and arrested approximately 4 hours later. R.G.’s release order was then revoked.

[6] R.G. sought an adjournment of the August 17, 2021 sentencing hearing on the basis that he had retained new counsel. At R.G.’s request, the sentencing hearing was subsequently adjourned on a number of occasions. By Notice of Application dated December 10, 2021, R.G. sought an order for the reopening of the trial and a declaration of a mistrial. The Application was heard on February 8, 2022 and dismissed on March 24, 2022.

[7] The sentencing hearing proceeded on April 14 and 19, 2022.

[8] The primary issue on this sentencing hearing is the total length of penitentiary sentence to be imposed. The crown submits that a 14-year sentence is required. Defence counsel advocates for a 7-year sentence.

[9] The crown filed the following case authorities:

• R. v. Friesen, 2020 SCC 9
• R. v. C. M., 2008 ONCA 430
• R. v. D. (D.), 2002 ONCA 44915, [2002] O. J. No. 1061 (Ont. C.A.)
• R v. C. B., 2021 ONSC 187
• R. v. G. C., 2020 ONSC 7381
• R. v. C. G., 2015 ONSC 5068
• R v. K. Y., 2021 ONCJ 26
• R. v. J. C., 2011 MBPC 71

[10] Defence counsel filed the following case authorities on the issue of the length of sentence, together with 27 further cases respecting Downes and Duncan/Marshall credits:

• R. v. O. (R.), 2015 ONCA 814
• R. v M. (D.), 2012 ONCA 894
• R. v. M. (D.), 2012 ONCA 520
• R. v. C. B., 2021 ONSC 187
• R. v. S. (J.), 2017 ONSC 5952
• R. v. M. (C.), 2017 ONSC 720
• R. v. B. (P.), 2016 ONSC 4350
• R. v. P. (K.), 2012 ONSC 4372
• R. v. G. (R.), 2010 ONSC 4082
• R. v. L. (C.O.), 2010 ONSC 3792
• R. v. K. Y., 2021 ONCJ 26
• R. v. L. (J.), 2015 CarswellOnt 14716

Governing Principles

[11] The starting point in the analysis of the guidance provided by the case authorities is the clear direction from the Supreme Court of Canada in the 2020 decision of R. v. Friesen—described by the unanimous Court as a case “about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children”.

[12] In Friesen, the Supreme Court of Canada emphasized:

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. (para. 5)

[13] The Supreme Court specifically addressed the sentencing principles of proportionality and parity at paragraphs 30-33:

All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality has long been central to Canadian sentencing … and is now codified as the “fundamental principle” of sentencing in s. 718.1 of the Criminal Code.

Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences (s. 718.2(b)). …

… Parity is an expression of proportionality. A consistent application of proportionality will lead to parity. …

In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to sentences imposed in other cases. …

[14] The Supreme Court characterized the Friesen appeal as an opportunity for the Court to consider the sentencing principles for sexual offences against children and to provide guidance so that sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim. (para. 43)

[15] In addressing the need to understand the wrongfulness and harmfulness of sexual violence against children, the Supreme Court emphasized, inter alia:

1. The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. (para. 51)
2. Courts must focus their attention on emotional and psychological harm, not simply physical harm. (para. 56)
3. Sexual violence causes additional harm in children by damaging their relationships with their families. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship. If a parent is the perpetrator of the sexual violence, other family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim. The ripple effects can cause children to experience damage to their other social relationships and lose trust in the communities and people they know. (paras. 60-61)
4. 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 home and among those they trust. 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. (paras. 65-67)

[16] The Supreme Court also emphasized that sentences must reflect the contemporary understanding of sexual violence against children. 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. As such, the proportionality principle ensures that offenders are held responsible for their actions and the sentence properly reflects and condemns their role in the offence and the harm they caused. (para. 74-75)

[17] As the Supreme Court held at paragraph 90:

The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable. … The use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions…

[18] At paragraph 114, the Supreme Court made it clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Recognizing that judges must retain the flexibility to individualize the sentence to the offender before them, the Court noted it was incumbent to provide an overall clear message: mid-single digit penitentiary terms for sexual offences against children are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. In addition, maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances”. Instead, a maximum sentence should be imposed whenever the circumstances warrant it.

[19] At paragraphs 121-154, the Supreme Court addressed a non-exhaustive list of significant factors to consider in determining a fit sentence for sexual offences against children:

(a) likelihood to reoffend (b) abuse of a position of trust or authority (c) duration and frequency (d) age of the victim (e) degree of physical interference (f) victim participation.

[20] In particular, the Supreme Court emphasized that the abuse of a position of trust is aggravating because it both increases the harm to the victim and increases the offender’s degree of responsibility. An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger and thus enhances moral blameworthiness and also exploits children’s particular vulnerability to trusted adults, which is especially morally blameworthy. (para. 129)

[21] In addition, the duration and frequency of the sexual violence must receive weight in sentencing. 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. Each instance of sexual violence traumatizes the child anew and increases the likelihood that the risks of long-term harm will materialize. Each further instance shows a continued and renewed choice by the offender to continue to violently victimize children. (paras. 131-133)

[22] I have reviewed the additional caselaw provided by counsel, but do not propose to summarize those decisions in these reasons for sentence. The caselaw provides an overview of sentences imposed for sexual violence against children. The sentences imposed ranged from 3 ½ years to 12 years. The scenarios in which 3 ½ and 4 year sentences were imposed are clearly distinguishable because there was either no parental trust relationship or a situation where the offender was a step-parent and the sexual violence did not include intercourse.

[23] The various sentences imposed in the decisions filed by counsel reflect a number of factors including: the degree to which the offender abused a position of trust; the victim’s age when the sexual violence started; the frequency and duration of the sexual abuse; the extent of force used by the offender; the impact on the victim; and the mitigating factor of a guilty plea where the victim was not required to testify.

[24] The various sentences imposed also reflect, in part, the sentencing positions taken by the crown and the dates of the sentencing decisions. The following three decisions are the only cases relied upon by counsel that post-date the Supreme Court of Canada’s “strong message” in Friesen:

1. R. v. C.B., 2021 ONSC 187: The trial judge imposed a 5-year sentence in circumstances where the crown sought a sentence of six years and the sexual violence included oral sex and digital penetration but not intercourse. The 43-year-old offender sexually abused his daughter beginning when she was 13 years old and continuing until she disclosed the abuse at the age of 16.
2. R. v. K.Y., 2021 ONCJ 26: The sentencing judge imposed a 6-year sentence in circumstances where the crown sought a sentence of seven years and the offender accepted full responsibility for his actions. His guilty plea was characterized as “substantially mitigating as it meant his daughter did not have to testify”. The 45-year-old offender sexually abused his daughter for two or three years starting when she was 12 years old. The sexual violence included oral sex and two incidents of sexual intercourse.
3. In R. v. G.C., 2020 ONSC 7381: The sentencing judge imposed a sentence of 10 years in circumstances where the crown sought a sentence of 12 years and the sexual violence included 5 years of unprotected intercourse, resulting in a pregnancy. The accused was 67 and committed the sexual violence when he was in his 40’s and his daughter was between the ages of 16 and 20.

[25] In R. v. T.J., 2021 ONCA 392, the Ontario Court of Appeal reminded sentencing judges that:

[29] To ensure that effect is given to the wrongfulness and harmfulness of sexual offences against children and Parliament’s sentencing initiatives, Friesen provided guidance about the appropriate length of sentences. To follow that guidance, upward departure from prior precedents and sentencing ranges may be required: Friesen at paras. 108-14.

[39] … Friesen does not simply contain a list of the principles and factors to be mentioned in a sentencing decision; it insists that those factors be reflected in a sentence that is of sufficient length to recognize them. I repeat Friesen’s guidance: “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] … substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim”: at para 114.

Circumstances of Offender

[26] I turn now to the circumstances of the offender as set out in the sentencing materials filed as Exhibit 1 and as highlighted during the submissions of defence counsel.

[27] R.G. is 54 years old. His criminal record consists of an August 16, 2018 suspended sentence with 12-months of probation for the offence of assault, contrary to s. 266 of the Criminal Code. As it relates to the offences before the court, the record is subsequent to the offences between 2011 and 2017 and predates the October 3, 2019 offences of sexual assault with a weapon and incest.

[28] R.G. has been steadily employed in construction and as a truck driver. Apart from these offences, he has been a contributing member of the community, including his faith community. R.G. suffered from a back injury, which required surgery in 2005, and has struggled with depression from time to time.

[29] R.G. has a close relationship with his siblings, who are strongly supportive of him and described him as caring and compassionate when their parents’ health declined. His aunt described him as a family man, a hard worker and a man of faith who is kind, loving and caring toward his friends and family members. He is likewise described in positive terms by other friends and family members who wrote letters of support on his behalf.

[30] R.G. and the victim’s mother separated in 2017 and are now divorced. R.G. was released on bail in February 2020 and met his new partner in September 2020. His partner and two of her daughters, who are in their early 20’s, wrote letters of support in which they describe R.G. as a family man who deeply misses his children, being the victim and her younger brother. R.G.’s partner also wrote, “My children love and adore him. He calls them “my daughters” or “my princesses” and they think of him as their dad…They have never felt uncomfortable around him in any way”.

[31] Following his arrest, R.G. was in custody from November 19, 2019 to February 21, 2020, a period of 95 actual days.

[32] On February 21, 2020, R.G. was released on bail conditions with house arrest subject to GPS monitoring, which required him to wear a GPS ankle bracelet at all times. He was required to reside with his surety and remain in the residence except for employment, counselling, medical emergencies, court appearances and meetings with his lawyer. The release conditions also included a requirement not to attend within Perth County.

[33] R.G. was found guilty of the offences on July 6, 2021, and sentencing was adjourned until August 17, 2021. On August 15, 2021, R.G. cut off his GPS ankle bracelet and left his surety’s residence. He was arrested later that day and his release order was revoked. Accordingly, R.G. was bound by bail conditions for a period of 542 days.

[34] R.G.’s second period of pre-sentence custody, which was after he was found guilty of the offences, was from August 15, 2021 to present, which is a further 258 actual days for a total of 353 actual days (95 + 258) in pre-sentence custody. Credited on a 1.5 to 1 basis, the 353 actual days of pre-sentence custody is the equivalent of 530 days or 17.7 months, which will be rounded up for a credit of 18 months.

[35] In his affidavit, R.G. deposes that the time on house arrest was very difficult, particularly since he could not have any contact with his children, and he slipped into depression. His income also decreased because of the area restrictions in his bail conditions.

[36] R.G. also set out the hardships he has faced while serving pre-sentence custody during the Covid-19 pandemic and the impact of the lockdowns on his physical and mental health. He has lost weight, has difficulty sleeping and is experiencing stress anxiety and depression. During lockdowns he does not have access to the phone and is isolated from his family and friends. R.G. describes the atmosphere in the institution as toxic and oppressive and deposes that he feels very uneasy and scared for his life.

[37] R.G. contracted Covid-19 in pre-sentence custody and experienced significant symptoms requiring him to spend two weeks on the medical range, which was a source of constant worry. He continues to feel unsafe given the ever-present risk of contracting the virus.

Mitigating Circumstances and Credits for Pre-Sentence Custody and Time on Bail

[38] The mitigating circumstances highlighted by counsel in submissions are R.G.’s history of steady employment, the support of his family and friends, and the fact that his one item of record is unrelated and does not predate the commission of most of the offences before the court.

[39] I also take into account as mitigating the time spent under restrictive bail conditions and the reality of serving both the pre-sentence custody and the upcoming sentence during the ongoing Covid-19 pandemic, currently in its 6th wave.

[40] I further take into account that the periods of lockdown as set out in the materials filed were as a result of precautions due to the Covid-19 pandemic and as a result of staff shortages rather than as a result of conduct by the offender.

Aggravating Factors

[41] The sentence imposed today must also reflect the significant aggravating factors highlighted in the crown’s submissions.

[42] First and foremost, the offences involve an egregious and continued breach of trust by R.G. R.G. had a duty to protect and care for his daughter. Instead, he chose to exploit his young daughter’s vulnerability for his selfish sexual gratification. He breached his daughter’s trust and his family’s trust. Incest is a crime demonstrating the worst of intentions for which the offender’s degree of responsibility and moral blameworthiness is exceptionally high.

[43] The age of the victim is also an aggravating factor. The victim was only 9 or 10 years old when R.G. started to sexually interfere with her by groping her buttocks and breasts over her clothing and making sexually inappropriate comments about her clothing and her body. Her father violated her bodily integrity, her sexual integrity, and her dignity. He exploited her in her home, a place where she ought to have been protected and respected, not treated as a sexual object.

[44] The victim was only 13 years old when R.G. first subjected her to forced vaginal intercourse—forever robbing her of her childhood and her innocence.

[45] The duration and frequency of the sexual offences is aggravating. This was not a single incident. As the Supreme Court of Canada emphasized in Friesen, each instance of sexual violence traumatizes the child anew and shows a continued and renewed choice by the offender to continue to violently victimize the child: at paras. 131-133.

[46] In this case, the offences span the eight-year period from October 2011 to October 2019—beginning when the victim was between 9 or 10 years old and ending a few days before her 17th birthday. The offences include 3 instances of incest with offence dates in 2015, 2017 and 2019.

[47] The degree of physical interference and violence inflicted by R.G. is a further aggravating factor. In 2015, R.G. committed incest while unlawfully confining the victim in the basement bedroom of her grandparent’s home. He forcibly restrained her and handcuffed her to the bed. She described him ripping off her clothes, telling her to shut up, spreading her labia and forcibly subjecting her to vaginal intercourse. He told her not to tell anyone.

[48] In 2017, R.G. entered the bedroom while the victim was asleep. He restrained her with her hands over her head, told her to be quiet and while she was crying he forcibly and aggressively subjected her to vaginal intercourse.

[49] In 2019, R.G. used a pocket knife when he sexually assaulted the victim in her vehicle. As she struggled, cried, and protested, he told her to shut up. He kissed her, sucked her breasts, pulled down her pants and used the pocket knife to deliberately nick the recent surgical incision at the hairline of her vagina. R.G. then demanded that the victim get into the back of his truck. She testified that she just did it because she was scared. Her father had a knife and she did not want to make a bad move. She was crying. He told her to shut up. He pulled down her pants and underwear and forcibly subjected her to vaginal intercourse.

[50] In addition, R.G. sexually assaulted his daughter in 2017 by forcibly kissing her and trying to suck her breasts. He then removed her clothing and unlawfully confined her in the storage area of his locked truck for hours before letting her out in the morning.

[51] Sexual assault and incest are inherently violent crimes. In this particular case, R.G. also used handcuffs and a pocket knife when he inflicted sexual violence on his daughter. On one occasion he restrained her by handcuffing her to the bed. On another, he removed her clothing and confined her in his locked truck. On the last offence date, he used a pocket knife to further demonstrate his dominance and control over the victim, who was vulnerable—both physically and emotionally.

[52] The repeated offences have had a devastating impact on the victim. In her trial testimony, she described feeling scared, violated, shocked, and confused. She also described not wanting to make things worse and not wanting anyone else to get hurt, especially her mom and her younger brother.

[53] As to weighing the consequence of meeting or not meeting her father on the most recent offence date, the victim explained, “At the end of the day, I didn’t want my mom to get hurt, I didn’t want my brother to get hurt, I didn’t want [my boyfriend] to get hurt. I didn’t want anyone to get hurt because of my problems. And I now am starting to realize that at the end of the day, it wasn’t me with the problems. I wanted to protect those who I loved. So that was what was going through my mind”.

[54] The victim further explained, “But the thing is, if you’re going to go into a situation like this, there’s going to be no good possible outcome, regardless. And it’s not going to be any easier if you don’t go, it’s not going to be any easier if you stay. … Like, there is no win-win situation here.”

[55] When asked at trial how the events affected her, the victim replied, “Well, I can tell you one thing, it’s made my life completely hell. I’m only being parented by one person. I can only imagine what a normal life would look like, I won’t get to experience it.”

[56] The extent of the victim’s profound pain and sense of loss is also captured in her Victim Impact Statement, which was filed as an exhibit. The victim has lost not only her childhood and her innocence, but also other important family relationships as extended family members have “turned their backs” and “shunned” her. She writes, “I wish that you could give me my innocence back, to give back what you have taken from me.”

[57] The victim’s mother provided a Victim Impact Statement, in which she outlined the serious and long-lasting impact of these offences on her daughter’s emotional health. She describes being heartbroken to learn that her daughter had to not only endure the abuse, but also carry such a heavy burden because she felt the need to protect her mother and her brother. The victim’s mother emphasizes that her former husband shattered their daughter’s trust. Her son carries the burden of not protecting his sister and growing up without a healthy father-son relationship. She indicates that they have all been struggling to find their way and to rebuild the trust they once had.

[58] The victim’s mother also speaks of her daughter’s courage, a theme touched on by the Supreme Court in Friesen:

[59] In emphasizing the harmfulness of sexual offences against children, we do not intend to stereotype child victims of sexual violence as forever broken. To the contrary, it takes great “strength and courage” to survive sexual violence as a child. … Many victims go on to live healthy and meaningful lives with fulfilling and loving relationships. Offenders cannot rob children of their “strength, compassion, love for others and intelligence” and “resolve to take back their lives”. …

Purpose, Objectives and Principles of Sentencing in the Criminal Code

[59] As emphasized in Friesen, s. 718.1 of the Criminal Code provides that 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.

[60] Section 718.01 expressly directs: “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 objectives of denunciation and deterrence of such conduct.”

[61] Section 718.2 deems the following as statutory aggravating circumstances:

(ii) evidence that the offender, in committing the offence, abused … a member of the offender’s family; (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years; (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[62] Section 718.2 also expressly directs that:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

Conclusion

[63] R.G., you profoundly and repeatedly breached your position of trust toward your daughter. You preyed upon her vulnerability for your selfish sexual gratification. The sentence imposed today must denounce your abhorrent conduct in the clearest possible terms and also address sentencing principles of proportionality, parity, totality and restraint.

[64] The sentence must provide appropriate credits for pre-sentence custody, lockdowns while serving pre-sentence custody and time spent on restrictive bail conditions. The sentence must also reflect the reality of serving a lengthy penitentiary sentence during the ongoing Covid-19 pandemic.

[65] I am mindful of the hardships of serving a sentence of incarceration during the ongoing pandemic, now in its sixth wave. I take those hardships into account.

[66] In R. v. Hearns, 2020 ONSC 2365, Pomerance J. succinctly addressed the impact of the pandemic on sentencing principles in the Criminal Code, including the following:

[16] Covid-19 [affects] our conception of the fitness of sentence. Fitness is similar to proportionality, but not co-extensive with it. … Fitness looks at a broader host of factors. A sentence may be fit even if it is not perfectly proportionate. Fitness looks, not only at the length of sentence, but the conditions under which it is served. As a result of the current health crisis, jails have become harsher environments, either because of the risk of infection or, because of restrictive lock down conditions aimed at preventing infection. Punishment is increased, not only by the physical risk of contracting the virus, but by the psychological effects of being in a high-risk environment with little ability to control exposure.

[20] There is nothing collateral about the conditions of imprisonment—they are as direct a consequence as one can imagine. Yet, the impact of the pandemic is a matter that is extraneous to the pillars of proportionality—the gravity of the offence and the moral blameworthiness of the offender. … Covid-19 is not a mitigating factor in the classic sense. However, it adversely affects conditions of imprisonment, and increases health risks for those in jail. On that basis, it is an important part of the sentencing equation.

[23] …The consequences of a penalty—be they direct or collateral—cannot justify a sentence that is disproportionately lenient, or drastically outside of the sentencing range. It cannot turn an inappropriate sentence into an appropriate one or justify dispositions that would place the public at risk… It is ultimately a question of balance. As noted by Goodman J. in R. v. T.K., 2020 ONSC 1935, at para 74:

In summary, even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in the various institutions, while at the same time exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public.

[67] In determining the appropriate sentence, I have taken into account the direction given by the Supreme Court of Canada in R. v. Friesen, parity as informed by the sentencing decisions filed by counsel in support of their submissions, the purpose, objectives and principles of sentencing as set out in the Criminal Code, the relevant aggravating and mitigating factors, the circumstances of the offences, the impact on the victim, your personal circumstances, time spent in pre-sentence custody and under restrictive bail conditions, and the reality of serving a sentence of incarceration during the Covid-19 pandemic, including the fact that you contracted Covid-19 while in pre-sentence custody and will be serving your sentence during the ongoing pandemic.

[68] I conclude that a total sentence of 10 years is required to denounce the nature, extent, and duration of the sexual violence you inflicted upon your daughter, your very high degree of moral blameworthiness, and the egregious breach of trust. It is a sentence that separates you from society, emphasizes denunciation and deterrence, and also addresses the principles of totality and increased emphasis on restraint in assessing a fit and proportionate sentence during the pandemic.

[69] I now turn to the calculation of the credits to be given for the pre-sentence custody, lockdowns during pre-sentence custody and the time spent under stringent bail conditions.

[70] R.G. has served 353 actual days of pre-sentence custody, which credited on a 1.5 to 1 basis is the equivalent of 530 days or 17.7 months, which is rounded up for a credit of 18 months.

[71] The total time R.G. spent in lockdowns due to staff shortages, construction and droplet precautions was 799 hours.

[72] Defence counsel submits that in addition to the accepted 1.5 to 1 credit for pre-sentence custody, R.G. ought to receive an additional 3 month “Duncan/Marshall credit” for the harsh conditions during lockdowns and a further 5 month “Downes credit” for the time during which he was bound by stringent bail conditions.

[73] I am mindful of the direction given by the Ontario Court of Appeal in R. v. Marshall, 2021 ONCA 344 and R. v. Bristol, 2021 ONCA 599 that the Duncan credit is “not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence”.

[74] I accept defence counsel’s submission that in these particular circumstances an additional 3-month credit is appropriate.

[75] I next turn to the “Downes” credit. In R. v. Downes, 2006 ONCA 3957, [2006] O. J. No. 555 (C.A.), the Ontario Court of Appeal held that:

[33] …Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest. …

[34] … It is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms of the house arrest may impinge very little on the offender's liberty. Some accused may be allowed to work as usual, take care of their family obligations as usual and in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult.

[76] In R. v. C.C., 2021 ONCA 600, the Court of Appeal summarized the principles approved in Downes and emphasized that pre-trial bail is conceptually a mitigating factor in assessing a fit sentence. The Court noted:

[5] Some judges choose to achieve that mitigation by granting a “Downes credit” that is set off against the sentence that would otherwise have been imposed. Other judges choose to factor the punitive impact that bail conditions have had on the offender into their overall determination of a fit sentence. Neither approach is in error.

[77] R.G. was bound by house arrest conditions monitored by a GPS ankle bracelet that required him to reside with a surety and allowed him to be absent from his residence for the purposes of employment. He was bound by bail conditions for 542 days. In my view, a “Downes credit” of 3 months provides the appropriate mitigation in the circumstances. The credit takes into account the length of time R.G. was bound by stringent bail conditions, the nature of the conditions and their impact on R.G. as set out in the defence materials.

[78] Accordingly, a total of 24 months or 2 years will be credited against the 10-year sentence imposed today. The credit is comprised of:

• pre-sentence custody of 353 days, which is credited as the equivalent of 18 months.
• 3-month Duncan credit for lockdown conditions.
• 3-month Downes credit for stringent bail conditions.

[79] In arriving at the sentence, I have focused on the principle of totality, taking into account that the maximum sentence for incest is 14 years and there is a mandatory minimum sentence of imprisonment of 5 years. Accordingly, I impose concurrent sentences.

[80] On each of the incest charges, being Counts 5, 7 and 11 of the Information, the sentence imposed is 10 years, concurrent on each count, less the 2 years of “time credited”.

[81] Accordingly, on Count 5, concurrent on each of Counts 7 and 11, the clerk will endorse that the “time credited” is 2 years, the “term that would have been imposed before credit granted” is 10 years and “imprisonment” is imposed today for 8 years.

[82] In other words, the 2-year combined credit is set off against the 10 year sentence of imprisonment, leaving a sentence yet to be served of 8 years.

[83] On each of the remaining counts, being counts 1, 3, 4, 6, 8, 9 and 10, a 5-year concurrent sentence is imposed.

[84] I also impose the following ancillary orders:

1. An order under s. 743.21 of the Criminal Code which requires R.G. to abstain from communicating directly or indirectly with the victim, A.G., during the sentence of imprisonment.
2. On each count, a Primary DNA Order, which requires R.G. to provide samples of bodily substances for DNA data banking purposes to the Ontario Provincial Police or their designate prior to May 31, 2022.
3. On each count, a s. 109 weapons prohibition order for life. In imposing a lifetime order, I take into account the totality of the circumstances.
4. An order to comply with the Sex Offender Information Registration Act for life. R.G., you must report for the first time in person to the registration centre referred to in the Sex Offender Information Registration Act which will be in the area in which your main residence is located. You are to report within 7 days after you are released from custody. You must subsequently report to the registration centre referred to in the Act whenever required for life. Information relating to you will be collected and when you report you shall provide information relating to you under Sections 5 and 6 of the Sex Offender Information Registration Act to a person who collects information at the registration centre. Information relating to you will be registered in a database and may be consulted, disclosed, and used in circumstances set out in the Act. If you believe the information contains an error or omission, there is a procedure for correcting that information and you have the right to apply to a court to terminate the order and the right to appeal the decision of that court. If you are found to have contravened the order, you may be subject to a fine or imprisonment or both and if you are found to have provided false or misleading information, you may be subject to a fine or imprisonment or both.

[85] Given the length of the penitentiary sentence yet to be served, the victim surcharges will not be imposed.

[86] I now turn to the conditions of the s. 161 order sought by the crown. It is a discretionary order. The crown seeks an order for 10 years with limited conditions. Defence counsel submits that there is no basis to include a prohibition on employment or volunteering in a capacity that involves being in a position of trust or authority toward persons under the age of 16 as the sexual offences were in the familial context and not within the scope of employment or volunteer work.

[87] The nexus between the offending conduct and the condition sought by the crown is R.G.’s egregious breach of a position of trust. In these circumstances, the condition sought by the crown is both appropriate and warranted.

[88] Accordingly, I impose a 10-year prohibition order under s. 161 of the Criminal Code, with the following specific conditions tailored to the circumstances of the offences:

(a.1) You are prohibited from being within 2 kilometres of the dwelling house where A.G. normally resides or any place of employment, education, or religious observance of A.G. (b) You are 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 any person under the age of 16 years.

Released: April 29, 2022 Signed: Justice K.L. McKerlie