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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2022 11 07 COURT FILE No.: Metro North, Toronto Region 21-45001878
BETWEEN:
HIS MAJESTY THE KING
— AND —
E.A.V.
Before: Justice Cidalia Faria Heard on: March 7, May 2, June 9, August 26, 2022 Reasons for Sentence released on: November 7, 2022
Counsel: Patricia Garcia, counsel for the Crown Juan Lopez, counsel for the accused E.A.V.
Faria J.:
I. Introduction
[1] EAV pled guilty to Aggravated Sexual Assault and Sexual Interference on March 7, 2022, for having sexually assaulted and impregnated his 12-year-old stepdaughter. The matter was adjourned to May 2, 2022, for the purpose of obtaining a Pre-Sentence Report and material to be filed before sentencing submissions. Submissions were made on May 2, June 9, and August 26, 2022.
[2] These are my reasons for sentence.
II. The Offences
[3] The parties filed an Agreed Statement of Fact [1] which outlined the offences. It is a 7-page exhibit that documents the background, context and progression of the sexual offences pled to. Although more efficient to summarize the offences in broad strokes, it is necessary to review the facts in detail to enable both a proper analysis of the gravity of the offences, and an appropriate evaluation of the blameworthiness of the offender.
[4] EVJ was 5 years old when EAV met her mother TJV. He moved in with her, her mother, and her younger sister becoming EVJ’s stepfather whom she called “Dad”. Her parents then had two more children and the six of them lived in a two-bedroom apartment in Toronto. EVJ’s mother is deeply religious. TJV and her children attend a Christian church regularly and all adhere strictly to their faith. At the time of the offences, TJV had not provided any sexual education to her 11-year-old child E.
[5] EAV and his wife ran a small construction business. TJV would wake up at 4:00am to drive from Toronto to Brampton to pick up her husband’s employee, and then drive him back to Toronto at which time EAV and the employee would leave for work together. Every morning, EAV was alone with all 4 children from the time their mother left for Brampton to the time she returned with the employee.
[6] The same process occurred at the end of the day. EAV and his employee arrived home at 6:00pm, and his wife would drive the employee to Brampton and then return home. Again, EAV was alone with all four children.
[7] During the evening, 11-year-old E. was expected to serve her father dinner, take care of her three younger siblings (ages 10, 5, and 4 at the time), and clean up. The younger children would often be in their bedroom watching television or using digital devices.
[8] EAV committed all the offences between April 2020 and May 2021. All the offences took place when TJV was out of the apartment, either picking up or dropping off the employee of their business, shopping or running errands for the family.
[9] E. was between 11 and 12 years old when EAV committed the offenses against her. [2]
[10] Between April 1 and May 31, 2020, E. was in the family room with her father while her mother was in the kitchen. Her father gave her a hug. While hugging her, he put his hand on her breast. She did not know what to do as he continued to hug her and touch her breast. He let go of her and continued with his day. The next day, E. told her mother what her father had done. Her mother confronted EAV with this information. He became upset at the accusation but did not deny the sexual assault.
[11] Beginning in December 2020, when EAV was alone with E. he began sexually assaulting her. He would bring E. to the bedroom he shared with his wife, tell her to lay down on his bed, or push her on it. He would push her shirt and bra up to expose her breasts and then suck her breasts. He sucked so hard he caused pain and left red marks.
[12] Sometimes E. would try to push her father away. When she refused to comply, EAV would tell her she would never get to visit El Salvador again, or he would ensure her cell phone or other privileges would be taken away. This occurred on a regular, almost daily, basis.
[13] During the sexual assaults after February 14, 2021, EAV made her lie on the couch. He forced digital penetration three times.
[14] The sexual assaults progressed to the point EAV asked E. to have sex with him. She did not understand what ‘sex’ was or what he meant. She refused EAV’s demands.
[15] EAV told her he would have sex with her. He told her if she did not comply, he would take away her cell phone, and “the day you tell your mother, you will never be able to go to El Salvador.”
[16] EAV then raped [3] E. He forced intercourse, finished, and went to clean himself up. E. described her father cleaning a white substance off himself. She did not understand what it was and did not have the vocabulary to describe this to police.
[17] During one sexual assault EAV lay E. on the couch and attempted to have her touch his penis with her hand. When she tried to pull away from him, he forcefully vaginally penetrated her.
[18] The sexual assaults continued. In April 2021, EAV called E. to his bedroom, closed the door behind her, pushed her on the bed, pulled down her pants and underwear, and put his tongue inside her vagina. When E. asked him to stop, he replied “stop being such a baby. One more time.” During another sexual assault EAV caused E. great pain. When she cried out, he told her to “Stop being such a baby.” E. experienced pain and discomfort that lasted for two weeks.
[19] In April 2021, after having served him dinner, E was in the kitchen cleaning up. As on prior occasions, EAV asked to have sex. She said no. He pulled E. to his bedroom, closed and locked the door behind him, lay her on his bed and raped her, ejaculating inside her.
[20] EAV proceeded to rape E. approximately once a week, for approximately 8 times in total. He did not use a condom or any form of birth control during any of these sexual assaults.
[21] EAV told E.’s mother that she had been disobedient with him and tried to persuade her mother to punish E. and take her phone away.
[22] All these offences took place during the Covid-19 pandemic, and some while E. was isolating with her family during several province-wide lockdowns. E.’s phone was her only link to friends.
[23] On May 24, 2021, E. realized she had not had her menstrual period as expected. She told her father. He purchased a pregnancy test. On the morning of May 26, 2021, while her mother was out picking up EAV’s employee, E. took two pregnancy tests. Both results were positive. She called her mother and told her she was pregnant and that her father had sexually assaulted her. [4]
[24] When TJV arrived home she confronted EAV. As he already had an airline ticket to El Salvador, he begged TJV to help him. [5] TJV ensured police were contacted. EAV was arrested that same morning.
[25] E. was taken to the Suspected Child Abuse and Neglect Unit (SCAN) at the Hospital for Sick Children. Though she believed she was only 4 weeks pregnant, diagnostic tests conducted days later revealed she was 9 weeks pregnant.
[26] Due to deeply held religious beliefs, E. continued with the pregnancy and gave birth via cesarian section in January 2022. [6]
[27] The Centre of Forensic Science (CFS) testing confirmed EAV is the biological father of E.’s baby. [7]
III. The Offender
[28] The Pre-Sentence Report [8] provided extensive information about EAV’s current circumstances as well as his background. Counsel supplemented the Report with information about the impact some of EAV’s experiences have had on him and his current emotional state as mitigating circumstances, which will be reviewed in that portion of my reasons.
[29] EAV is a 49-year-old married man who had a thriving construction business and was living with his wife and 4 kids during the offences.
[30] EAV attended primary school in his country of origin and attended high school in Toronto. He left school to support himself becoming a cleaner, then moving into framing and construction and ultimately forming a small construction company with his wife TVJ in 2014. He is described as hardworking by all those who know him. He worked long hours 7 days a week. At the time of his arrest, his company was grossing $300,000 annually and he was doing well financially.
[31] EAV’s childhood in El Salvador was rife with violence. He witnessed his father physically assault his mother. His father also beat him with various items used as weapons. His parents separated when he was 5 and his brother was 6. His stepmother was also cruel to him. His complaints led to beatings. His father moved the family when he was 7 to be away from his mother. He witnessed his father’s violence against his mother when she attempted to see EAV. He moved again at the age of 9 where his neighbour’s sons sexually abused him and his brother until he was 11. EAV and his brother fled his father’s house and hid in their mother’s home. His father located them and took them back by gunpoint. When the brothers were 12 or 13, they again fled to their mother and hid from their father. The brothers lived with their mother’s family until EAV was 16. He was well treated there.
[32] When EAV was 16, his father relocated to Canada. His father funded the two brothers’ illegal move to his home in Scarborough. Violence erupted again. The brothers moved out, obtained social assistance, and tried to continue high school. EAV did not obtain his diploma.
[33] EAV had 3 adult relationships with women before he met TVJ, E.’s mother. These occurred between the ages of 20 and 41. He fathered two daughters with his first partner. He fathered two sons with his second partner. He fathered a son with his 3rd partner. He stated each woman had been unfaithful because he could not perform sexually because of his childhood sexual victimization. During this time, he abused cocaine and became addicted to alcohol. He became sober when he met TVJ and joined the Church in 2014. He co-parented TVJ’s two children, including the victim, and had two more children with TVJ. TVJ reported to the author that it was difficult to “love him due to the physical and verbal abuse she experienced at his hands.” [9]
[34] EAV “disclosed that prior to the offence, his oldest stepdaughter was his main emotional support. He stated that when he could not walk well, she helped him. She would also cook for him. He reported that while she was 12 years old at the time, he thought of her as a woman.” [10]
[35] The Pre-Sentence Report author spoke to EAV’s best friend and co-worker RR, his pastor CQ, and his maternal half brother, who also worked with him, JB. Each indicated EAV is lonely in jail. Each indicated they were trying to support EAV financially or otherwise. Each indicated EAV has not expressed any remorse to them. Counsel informed the Court he had instructed his client not to speak of the offenses to anyone.
[36] EAV denies any sexual pre-occupation, has not been assessed and says “he is not sexually attracted to children, and does not emotionally identify with them” claiming he thought of the victim, a 12-year-old child, as a woman [11].
IV. Position of the Parties
[37] The Crown submits the bottom range for these offences is 15 years incarceration, and a fit sentence in this circumstance is one in the 20-year range. She also submits several ancillary orders are necessary.
[38] The Defence submits the appropriate range is 12 to 15 years of incarceration and takes no issue with the Crown’s recommended ancillary orders.
V. The Law
Criminal Code
[39] Sexual Interference, s. 151 of the Criminal Code reads:
151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years
(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
[40] Aggravated Sexual Assault, s. 273 reads
273 (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
(a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum punishment of imprisonment for a term of five years;
[41] The Criminal Code also provides the purpose of sentencing in s. 718 to be the protection of society and to contribute, along with crime prevention initiatives, 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 as outlined in subsections (a) to (f):
- to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct.
- to deter the offender and other persons from committing offences.
- to separate offenders from society, where necessary.
- to assist in rehabilitating offenders.
- to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[42] Of fundamental importance is that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender, s. 718.1.
[43] Offences against children are specifically addressed in s. 718.01 which indicates that a sentence for an offence that involves the abuse of a person under 18 shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[44] In addition, s. 718.04 directs that when a court imposes a sentence for an offence that involves the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence for that conduct (emphasis added).
[45] Other Criminal Code sentencing principles applicable in this case are:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or 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,
(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,(emphasis added)
shall be deemed to be aggravating circumstances;
(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;
Caselaw
[46] In 2019, the Supreme Court of Canada set out an overarching framework reflecting a principled new approach to sentencing regarding sexual offences against children in the case of R. v. Friesen, 2020 SCC 9.
[47] The Court affirmed that 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 and as codified as proportionality (at para. 30). It also affirmed the principle of parity, that similar offenders who commit similar offences in similar circumstances should receive similar sentences (at para. 31).
[48] However, that having been said, the Court articulated its role in setting a new direction. It stated at para. 35:
Sometimes, an appellate court must also set a new direction, bringing the law into harmony with a new societal understanding of the gravity of certain offences or the degree of responsibility of certain offenders (R. v. Stone, [1999] 2 S.C.R. 290, at para. 239). When a body of precedent no longer responds to society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencing judges may deviate from sentences imposed in the past to impose a fit sentence”
[49] The Court went on to consider the sentencing principles for sexual offences against children at para. 43:
Sentencing is one of the most important and “most delicate stages of the criminal justice process” (Lacasse, at para. 1). It is at this stage that the judge must weigh the wrongfulness of sexual violence and the harm that it causes and give effect to both in imposing a sentence (C. L. M. Boyle, Sexual Assault (1984), at p. 171). It is important for this Court 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 (see P. Marshall, “Sexual Assault, The Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216, at p. 219). To do otherwise would improperly permit myths that Parliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge at the sentencing stage (R. P. Nadin-Davis, “Making a Silk Purse? Sentencing: The ‘New’ Sexual Offences” (1983), 32 C.R. (3d) 28, at p. 46). This result could undermine the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large (see Lacasse, at para. 3).
[50] The Supreme Court in Friesen refers to Parliament’s new direction and the effect of this direction on sentencing courts when it states in key passages:
- The protection of children is one of the most fundamental values of Canadian society. By reforming the legislative scheme governing sexual offences against children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity. [para. 65]
- Parliament recognized the profound harm sexual offences against children cause and determined that sentences for such offences should increase to match Parliament’s view of their gravity. Parliament expressed this view by increasing maximum sentences for sexual offences against children and by prioritizing denunciation and deterrence in sentencing for sexual offences against children via s. 718.01 of the Criminal Code. [paras. 95 -105]
- To respect Parliament’s decision to increase maximum sentences for sexual offences against children, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences and shift the distribution of proportionate sentences. [paras. 45, 96-100].
[51] In Friesen, the Court then recognizes a broader understanding of harm in these cases and points out:
- Sentences for sexual offences against children must correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. [paras. 5, 107]
- Contemporary understandings as to the harmfulness and wrongfulness of sexual offences against children impacts a sentencing court’s proportionality assessment of both the gravity of the offence and moral culpability of the offender. [paras. 5, 30, 75]
- When determining the gravity of the offence, Courts must impose sentences that recognize and give effect to (1) the inherent wrongfulness of these offences, (2) the actual harm that children suffer, and (3) the potential harm to children that flows from these offences.
[52] Of note is the appreciation that the entirety of the harm caused to children by sexual violence is not actually known at the time of sentence. As a result, courts must always consider forms of potential harm that have yet to materialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize in childhood or adulthood. Courts have recognized that sexual violence against children inherently has the potential to cause several recognized forms of harm (Friesen paras. 74-86).
[53] Factors particularly applicable to the case at bar are:
- An offender who abuses a position of trust or authority should receive a lengthier sentence than an offender who is a stranger to the child; (Friesen, paras. 125-130)
- 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 and the offender’s increased degree of responsibility; (Friesen, paras. 131-133)
- The age of the victim is a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence, which enhances the moral blameworthiness of the offender; (Friesen, paras. 134-136)
[54] What this means in terms of actual sentences, the Supreme Court of Canada emphasized: (1) an upward departure from prior precedents and ranges may well be required to impose a proportionate sentence; (2) sexual offences against children should generally be punished more severely than sexual offences against adults; and, (3) sexual interference with a child should not be treated as less serious than sexual assault of a child (Friesen, paras. 106-120).
[55] “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” and substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, and “a maximum sentence should be imposed whenever the circumstances warrant it” (Friesen, para. 114).
[56] On this note, R. v. E.A.M., 2019 ABCA 413 stated at para. 11:
This is not to say that maximum sentences are justified only for offenders whose crimes are the most heinous imaginable. That position was rejected by the Supreme Court in R v M(L), 2008 SCC 31 at paras 17 to 23, [2008] 2 SCR 163, and in particular:
This individualized sentencing process is part of a system in which Parliament has established a very broad range of sentences that can in some cases extend from a suspended sentence to [page175] life imprisonment. The Criminal Code provides for a maximum sentence for each offence. However, it seems that the maximum sentence is not always imposed where it could or should be, as judges are influenced by an idea or viewpoint to the effect that maximum sentences should be reserved for the worst cases involving the worst circumstances and the worst criminals. As can be seen in the case at bar, the influence of this notion is such that it sometimes leads judges to write horror stories that are always worse than the cases before them. As a result, maximum sentences become almost theoretical:
In the end the difficulty with maximums is that they may be seen as almost theoretical rather than as an indication of how seriously an offence is be treated in the “ordinary” case. (T. W. Ferris, Sentencing: Practical Approaches (2005), at p. 292)
[57] The parties provided a large volume of cases from across the country dealing with the sentencing of sexual offences against children. I have reviewed them all.
[58] Overall, cases decided prior to Friesen demonstrated a limited appreciation of the gravity of sexual offences against children and an inadequate weighing of the blameworthiness of such conduct as Friesen identified. [12] A few do articulate principles that become part of the new approach Friesen took. [13]
[59] Turning to jurisprudence decided after Friesen for guidance, it appears courts are still grappling with the new direction both Parliament and Friesen point to. A few cases were outliers in their leniency. [14] The majority were within the range of 14 to 22 years. [15] The sentencing jurisprudence is clearly still evolving to adequately reflect the horrendous nature of sexual offences committed over long periods of time on children.
[60] In their totality, these cases demonstrated the uniqueness of every offence and every offender and demonstrated the accuracy of the Supreme Court’s description that sentencing is a “highly individualized exercise that goes beyond a purely mathematical calculation” R. v. Lacasse, 2015 SCC 64 (para. 58).
VI. Analysis
Aggravating Factors
[61] Aggravated Sexual Assault and Sexual Interference are serious offences by their very nature. Although not all the aggravating features of EAV’s offences can be identified at this time, given the unknown impact of his offences on so many in the future, the following are currently known and considered in the determination of his sentence.
i. Gross Breach of Trust
[62] Children need, depend on, and deserve the protection and care of their parents. Society recognizes the most vulnerable of our community are our children. A child, E. was entitled to protection and care from her stepfather EAV. Instead, he violated her. He did so from a position of power, control, and authority. He did it to satisfy his sexual desires at the expense of her health and well being in every sense. A person she expected to rely on for safety, breached her trust, destroyed her sense of security and betrayed her.
ii. Age of Victim – Lack of Knowledge & Education
[63] E. was not only young, but she was also uninformed. Although already menstruating at the age of 11, E. was a naïve child. She had a very limited amount of sexual education, if any. EAV took advantage of her lack of knowledge of sexual acts and their consequences. At the age of 12, she did not know what he meant when he said he wanted to have “sex” with her before forced vaginal intercourse. She could not identify or name the ejaculate she observed and tried to describe to police, even after she had been forcefully penetrated approximately 8 times and was already pregnant. This lack of knowledge made her even more vulnerable to EAV’s offences as she did not have the vocabulary to process the violation.
iii. Progression and Severity of Sexual Assaults
[64] EAV first sexually assaulted E. when she was 11 when he hugged her and touched her breast while doing so. When she was 12, he progressed to sucking her breasts, digitally penetrating her, forcing oral to genital contact, and finally to repeatedly forcing vaginal intercourse. Each sexual assault was more intrusive and violent than the last.
iv. Injuries of Sexual Assaults
[65] EAV’s sexual assaults caused physical pain and injury at the time. First when he left marks on her breasts and then when he forcefully penetrated her the first time, causing her pain, discomfort and difficulty walking for two weeks.
v. Prolonged Period of Sexual Abuse and Number of Sexual Assaults
[66] EAV sexually assaulted E. in several ways numerous times between April 2020 to May 2021 culminating to an intensification over a 6-month period and then to forced intercourse weekly for two months.
vi. Lack of Birth Control
[67] Given E.’s age, her sexual ignorance, and that she had her menses, she was unable to protect herself and use birth control. EAV’s decision not to use a condom was callous and cruel. It exposed E. to possible sexually transmitted disease and caused her pregnancy.
vii. Religious Context
[68] Having attended Church with the family and having relied on the Church to assist him to obtain sobriety, EAV was aware of his wife’s and the family’s strong religious beliefs and adherence. He knew that should he impregnate E. she would not likely terminate the pregnancy. He was therefore particularly apathetic about the risk he was taking every time he forcefully penetrated E., and the possibility that he would impregnate her. He knew such a pregnancy would likely be carried to term, making E. a mother while still a child.
viii. At Home
[69] Every sexual assault occurred in E.’s home. What was to have been her place of safety was the location of her violation.
ix. Frequent and Persistent Threats, Coercion, and Humiliation
[70] EAV threatened to deprive E. of privileges and opportunities that were important to her, particularly at her age. He specifically threatened to have her cell phone and other privileges taken away if she did not comply. He further threatened if she told her mother, she would not be permitted to go to travel to a place that was important to her. He told her mother she was being disobedient and not listening to him. Given E. had originally complained to her mother when EAV first sexually assaulted her during a hug and his offending just escalated, these threats were understandably particularly effective on E.
[71] EAV also demeaned E. when she reacted appropriately to his assaults by crying. He minimized and ignored her response, then humiliated her with taunts that she was a baby. As E. cried in pain and distress, EAV violated her body, her integrity, her dignity, and her sexual autonomy.
x. Vulnerability Caused by Pandemic Lockdown
[72] The COVID-19 pandemic hit Canada in March 2020. The province of Ontario went into lockdown several times between March 2020 and May 2021. This was when EAV sexually assaulted E. These lockdowns included restaurant and retail closures, travel restrictions, public service closures and restrictions, and of relevance in this case, school closures. E. was isolated in her home, with her family, and her abuser, in effect trapped. Her interactions with teachers, and other persons in authority were eliminated or severely curtailed. She could not seek solace with other adults.
[73] E.’s social circle with friends was similarly eliminated or severely curtailed during these periods of isolation. She could not seek solace with her peers either. Isolation during the pandemic impacted everyone, however, it particularly impacted E.’s ability to interact with others. EAV’s threats to deprive E. of her cell phone was therefore more serious given her personal circumstances during the pandemic and what was tantamount to eliminating her connection to the outside world.
xi. Pregnancy
[74] A momentous aggravating factor is that EAV impregnated E. at the age of 12. This was a catastrophic result of his sexual violence.
[75] The medical records disclose a truly horrific experience of a 13-year-old child enduring a brutal high-risk pregnancy. She had a horrendous experience giving of birth. [16] [i] She endured multiple attempts to administer an epidural. Her small body was not physically able to give birth vaginally and she had to deliver by cesarian surgery. E. was so psychologically fragile and terrified, she needed the support of an Obstetrician, a Midwife, a Doula, a Social Worker and Nurse Practitioners to help her make it through the birth.
[76] The pregnancy and birth are only the beginning of the legacy of trauma EAV’s sexual assaults caused E. physically, emotionally, and psychologically.
xii. Victim Impact on EVJ
[77] EVJ audio victim impact statement reveals her empathy, her insight, her vulnerability, and her understandably limited ability to appreciate the enormous struggles ahead. She takes the time to outline the impact EAV’s absence from the family since his arrest has had on her little stepbrother, EAV’s son, who misses his father. She describes her little stepsister, EAV’s daughter, drawing her missing father in her every family picture. She articulates how her mother’s heart “broke into pieces thinking she wasn’t enough” when she found out “her daughter was raped by a guy she thought loved her”.
[78] It is not until the end of E.’s victim impact statement that she turns to herself, “of course you hurt me too.” E.s haunting repetition of EAV’s insistent words “‘It’s gonna be the last time, just one more time’, but you know it never ended” was a potent demonstration of the trauma she lives with. [17]
[79] In addition to the impact of the permanent physical and psychological scarring EAV caused, E. must now deal with child protection authorities, social workers, the criminal justice system, and learn to care for a newborn baby – while only 13 years old and in grade 7. Mothering while becoming an adolescent and then an adult will be a complicated and burdened journey.
[80] The damage to E’s sense of self and life trajectory, even as she re-constructs her life, adapts, adjusts, and heals, as best she can, with all the help she can get, has forever changed her. The impact of EAV’s crimes is more widespread than just one child’s life, as extensive as that is. This child of 13 was able to identify and articulate how she would have to explain what happened in the future. EAV’s violations are a devastating and distorting blow to every person that is currently and in the future related to, or involved with E.
xiii. Psychology Report Outlining Impact of Parenthood from Intrafamilial Sexual Abuse [18]
[81] The Crown filed a report authored by Dr. Nina Vitopoulous, a clinical and forensic psychologist specializing in traumatic stress and its sequelae across the lifespan. The Report was provided to “assist the court in understanding the current and potential future psychosocial consequences associated with the cumulative experiences of EVJ.” [19] She stated that due to the fact an independent clinical assessment of E. at this time would “represent further undue hardship and would not be in her best interest”, Dr. Vitopoulous based her report on a review of the legal and clinical documentation, as well as the current psychological literature,” which she forthrightly noted that parenthood resulting from intrafamilial sexual abuse is a “comparatively rare circumstance with little to no literature to draw from.” [20]
[82] Although Dr. Vitopoulous’ expertise was not challenged in general, or as it pertains to this case, I am cognizant of its limitations and accept the Report as providing information helpful only in so far as it can be supported by the evidence filed as Exhibits.
[83] Dr. Vitopoulous notes E.’s psychological care has been focused on coping with the issues related to pregnancy, adjustment to very early motherhood and maintaining emotional stability. As such, a full trauma assessment and structured treatment for the trauma she has experienced has not yet begun. E. reports feelings of anxiety, shame, disgust, fear, anger, betrayal, and guilt she did not report sooner, that need to be addressed. She is also experiencing symptoms of Post-Traumatic Stress Disorder such as intrusive thoughts, distressing memories, recurring distressing dreams, avoidance, and sleep disturbances to name a just few. She also experiences emotional numbness, low mood and intense periods of crying. Dr. Vitopolous quotes E.’s current treating psychologist at the SCAN clinic at the Hospital for Sick Children, Dr. Lana Depatie, that E.’s use of avoidance is “likely to become maladaptive in the future”. More specifically “given E.’s challenges the “full impact of the abuse is not presently known. [21]
[84] In addition, E. is at an increased risk to experience and engage in high-risk behaviours and be further victimized. Her trajectory in one of high risk for negative outcomes in emotional and physical health. It is expected she will be treated at SCAN at the Hospital of Sick Children until she is 18. Thereafter she will need to transition to adult services. [22]
[85] The Report reviewed the literature on the impacts and consequences of childhood sexual abuse across the life span. This was informative, and reinforced the correctness of much of the understanding of the damage caused by sexual violence perpetrated on children as articulated in Friesen and in the jurisprudence already reviewed and quoted. EAV permanently and profoundly injured E. physically, psychologically, and emotionally in such a way that it will affect her development psychological and emotional, her physical and mental health, her academic and vocational potential, and her trajectory in life. Though the resilience, strength, and determination she has demonstrated thus far will assist her, it will not eliminate the damage done.
xiv. Family and Intergenerational Impact
[86] E.’s mother, EAV’s wife, TVJ attended court and read her Victim Impact Statement. She described her world crashing when she learned of EAV’s offences and how he “took away my little girl’s innocence.” She described how EAV wanted a chance to “pay” for his “wrong” outside of jail. She described her efforts to help her husband during their marriage, how she knew he “had demons” and thought she could “fight them” for him as she advocated for him with his family. “Turns out I was just able to silence them for a while, until you did what you did” she said [23].
[87] TVJ articulated the “harm, embarrassment and trauma” EAV has caused to the people around him, how it has spread internationally to family members elsewhere, how EAV’s mother is impacted and then she describes the scenario that will one day emerge. She haltingly described how she will one day have to explain to her son and daughter, what their father did to their stepsister, and that their niece is actually their half sister.
[88] This is to say nothing of how E.’s child will have to deal with having been conceived by an act of deep violation and violence.
[89] TVJ’s statement to the court outlined the legacy of inter-generational trauma EAV’s sexual violations of E. have caused.
xv. Lack of Insight
[90] Although EAV appears to understand the gravity of his offences to some extent, he demonstrates he is unable to truly appreciate the enormity of his offences because he does not see E. for what she is, a child.
[91] He told the author of the Pre-Sentence Report that his “oldest stepdaughter was his main emotional support”. He stated that when he could not walk well, “she helped him”. He stated “she cooked for him”. He reported that while “she was 12 years old at the time, he thought of her as a woman”. He indicated “their interactions eventually led to the offences.” [24]
[92] This description is a grave distortion of his relationship with his young daughter. It is a description more akin to an adult romantic partner than that of a father and daughter. E. was not supposed to be his main emotional support or cook for him. He was to provide that support to her as a father. “Their interactions” did not lead to “the offences”, his sexual violations of her lead to his offending.
[93] Though EAV states he is “not sexually attracted to children and does not emotionally identify with them”, his forced sexual intercourse with a 12-year-old child whom he described as his “main emotional support” likely indicates otherwise. His is a glaring misapprehension of his criminal behaviour and a clear demonstration of lack of insight. It is troubling and aggravating.
xvi. Criminal record
[94] EAV has two dated criminal convictions for Impaired Driving in 1995 and 2005, and five more relevant convictions for assaults, assault with a weapon and a breach of a release between in 2011 and 2012. These were perpetrated against different women with whom he was in intimate domestic relationship. Similar aggressive behaviour is described to the author of the Pre-Sentence Report by TVJ as existing in her relationship with EAV. E. also refers to EAV’s negative treatment of her mother. Both the criminal record and the information provided by TVJ and E. point to aggression and violence towards women.
Mitigating
[95] There are also several mitigating circumstances to consider.
i. Guilty Plea
[96] EAV plead guilty, and as such he is entitled to mitigating consideration for having done so. As his counsel rightly pointed out, none of the traumatized witnesses had to testify, his plea is a demonstration of remorse, and he has saved the criminal justice system considerable resources, particularly at a time when they are so strained because of the COVID-19 pandemic backlog.
[97] However, his guilty plea is significantly attenuated in value given both the strength of the prosecution’s case, and the circumstances under which he pled.
[98] EAV was arrested on the day E.’s home pregnancy tests results were positive in May 2021. Although he signaled, he may plead guilty in September 2021, he would not do so until the DNA paternity of 13-year-old E’s baby was determined to be his. This could only be done after the birth in January 2022 when the Centre of Forensic Science could complete the testing of the newborn. It did so on February 17, 2022. [25] This meant the entirety of the child’s pregnancy was experienced while waiting for EAV’s decision to plead, and it was only after he was faced with an overwhelming case that he entered his plea in March 2022.
[99] Regarding remorse, I find it was EAV’s decision-making when he learned E. was pregnant that does demonstrate some acceptance of responsibility. When provided the opportunity to address the Court during his guilty plea, EAV explained that at that moment, knowing the gravity of the situation, he did not flee. He stayed to speak to TVJ, he stayed till the police came and submitted to his arrest. It is in this way that he demonstrated accountability and responsibility.
ii. Background
[100] EAV’s exposure to intimate partner violence in his childhood, his victimization of both physical violence at the hands of his father, and of sexual violence at the hands of teenage neighbours, as well as the psychological impact of his turbulent upbringing and challenging adolescence in Canada, not surprisingly led to his own perpetration of violence, substance use, alcoholism, and troubled sexual experience with all of his 4 adult partners.
iii. Rehabilitation Potential
[101] EAV has demonstrated resiliency and rehabilitation potential. He was able to become employed, stay employed and start his own business. He was also able with the help of his fourth partner, TVJ, and the Church, to become sober, and has been so for almost 8 years.
[102] Although, as already stated, EAV has very limited insight into his offending behaviour, has not been diagnosed or treated, he has expressed a willingness to participate in any necessary treatment as “he sees the damage he caused and does not want to hurt anyone else.” [26]
iv. Collateral consequences
[103] I am informed that EAV is not a Canadian citizen and because of this conviction he will face immigration consequences, most likely deportation to El Salvador. He has been in Canada since he was 17 years old, over 32 years. This is a collateral consequence as defined in R. v. Suter, 2018 SCC 34. It is to be considered, though it is but one factor amongst others pertaining to EAV’s personal circumstances R. v. Pham, 2013 SCC 15.
v. Lockdowns
[104] Counsel filed a Toronto South Detention Centre (TSDC) Lockdown Summary outlining the dates, types and reasons inmates at the detention center were locked down between May 27, 2021, and June 8, 2022. [27] EAV’s unit was in a partial or full lockdown 189 days out of 378 days at the time. That is 50% of the time in lockdown. Only 3 of those 189 days were for lockdowns for maintenance reasons, only 1 day was for isolation protocols, 2 days had no reason at all, and the rest were noted as “Staff Shortage” or “Staff Shortage/Isolation Protocols”. Although EAV may have been able to avoid the brunt of all the lockdowns, as has obtained work in the kitchen of the facility which may excuse him at times, nonetheless, this is an extraordinary amount of time to be “locked” down and unable to participate in the most basic of movements inside a jail.
[105] Courts have repeatedly decried conditions in detention facilities which can give rise to lockdowns and exceptionally difficult and punitive pre-sentence custody conditions. These go beyond the normal restrictions during pretrial custody as referred to in R. v. Summers, 2014 SCC 26 which posited 1 day for 1.5 days enhanced credit for pre-sentence custody. Consideration for such exceptional circumstances was articulated in R. v. Duncan, 2016 ONCA 754, known as “Duncan” credit, and pandemic conditions were considered to fit the exceptional category in R. v. Morgan, 2020 ONCA 279. The combination of staff shortages and isolation protocols in this case call for such consideration as outlined in R. v. Marshall, 2021 ONCA 344. A specific quantification is not made, but these conditions are considered into creating an appropriate sentence.
vi. Mental state
[106] Both the Pre-Sentence Report and Counsel referred to EAV’s mental state while in custody. The Pre-Sentence Report author writes that EAV made four suicide attempts. His mental health has improved by turning spirituality for support. Counsel indicates EAV is experiencing depression, shame, and isolation as family members, including his mother, are no longer in contact with him because of what he has done. I accept that EAV’s conduct, and current circumstances have significantly negatively impacted his mental health and are factors to be considered as part of his personal circumstances.
Balancing
[107] When reviewing all the factors to be considered, it is the duty of the court to approach sentencing dispassionately and apply the principles and objectives of sentencing in a balanced and thoughtful manner.
[108] Sentences are based on the principles set out in the Criminal Code and sentencing directions provided by the appeal courts. Here, denunciation and deterrence are the paramount principles applicable. Parity, totality, and rehabilitation also play a role given the mitigating factors of EAV’s unique personal circumstances.
[109] No sentence that I impose today can repair the damage done. Candidly, it is impossible to fashion a sentence that reflects the enormity of E.’s loss and the impact on her, her future, her nuclear and extended family. The impact on her future and all those she knows and comes to know, is unknown. Moreover, the impact is so wide-reaching, it will extend into future generations.
[110] EAV committed atrocious crimes, the gravity of which are severe. As a cognitively capable, sober, adult 48-year-old male, he is solely responsible for his actions, his blameworthiness is extremely high.
[111] Attenuating that blameworthiness is that EAV himself came from a chaotic, violent, and abused childhood. He did not flee, pled guilty, and will ultimately be deported from the home he’s known for over 30 years. In addition, the circumstances of his incarceration have led to a serious impact on his mental health demonstrated by attempts to take his life.
[112] But for this unusual and unique set of mitigating factors, a sentence of well over 20 years would be warranted.
VII. Sentence
i. Sentence
[113] Having considered, balanced, and applied all the relevant principles, objectives, and factors in this case, I sentence you to 18.5 years in custody minus 17.66 months of pre-sentence custody enhanced to 26.5 months. [28]
ii. Ancillary orders
[114] I also make the following ancillary orders:
a. A DNA Order pursuant to s. 487.04. b. A Weapons Prohibition Order pursuant to s. 109 for life. c. A Sex Offender Information Registry Act Order (SOIRA) pursuant to s. 490.011(1) (ii) and (xix). As the maximum sentence available for Aggravated Sexual Assault is life, the SOIRA Order will be for life. d. A s. 161 (1) Order for life as both Aggravated Sexual Assault and Sexual Interference pursuant to s. 161 (1.1). Given that EAV’s offences were a breach of trust where he uses threats and demonstrated conduct that became progressively more severe on a child, I order the following: i. Pursuant to s. 161 (1) (a) EAV is prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre unless in the presence of an adult over 18 years of age. ii. Pursuant to s. 161 (a.1) EAV is prohibited from being within two kilometres of any dwelling-house where EVJ resides, or any child of hers, or any member of her family including her mother TVJ, JOV, AAV, LAV reside. iii. Pursuant to s. 161 (1)(b) EAV is prohibited from seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years. iv. Pursuant to s. 161 (1) (c) EAV is prohibited from having contact with children under 16 years of age unless in the presence of an adult over 18 years of age. e. I make a Non-Communication Order pursuant to s. 743.21 that EAV is to have no communication, directly or indirectly, with: EVJ; any child of EVJ; any member of EVJ’s immediate family including her mother TVJ, siblings JOV, ARV, and LAV.
[115] I decline to issue a blanket Order prohibiting a EAV from entering a relationship with someone who has children under the age of 16, as the s.161(1)(c) Order will protect the children of any such person. Similarly, I decline to order a s.161 (1)(d) Order prohibiting the use of the internet as there is no evidence the internet or a digital network is connected to EAV’s offending behaviour.
[116] This has been a challenging case for all involved. I thank both counsel for their helpful and comprehensive submissions.
Released: November 7, 2022 Signed: Justice Cidalia C. G. Faria
[1] Exhibit 1: Agreed Statement of Fact, March 7, 2022. An error was corrected on November 7, 2022, pertaining to the timeframe of the offences to read April 1, 2020 to May 27, 2021. [2] EAV stated at the time of his Guilty Plea that E. was 12-13 years old when he sexually assaulted her. The period of the first sexual assault straddled E.’s 12th birthday. [3] The word rape was used in the Agreed Statement of Fact, and by both parties in submissions. It was used interchangeably with forced penetration, forced intercourse, and sexual assault. [4] Exhibit 5: First EVJ Statement. Exhibit 6: Second EVJ Statement. Exhibit 7: Third EVJ Statement. [5] EAV stated at the time of his Guilty Plea that the airline ticket had already been purchased by his wife and he called her to talk. [6] Exhibit 2: SCAN Report, June 21, 2022. Exhibit 3: Medical Records of EVJ. [7] Exhibit 4: Centre of Forensic Science Biology Report, DNA Confirmation of Paternity, February 17, 2022. [8] Exhibit 14: Pre-Sentence Report, April 27, 2022, author Probation Officer Janelle Hutten. [9] Exhibit 14: Pre-Sentence Report, April 27, 2022, author Probation Officer Janelle Hutten at page 6. [10] Exhibit 14: Pre-Sentence Report, April 27, 2022, author Probation Officer Janelle Hutten at page 7. [11] Exhibit 14: Pre-Sentence Report, April 27, 2022, author Probation Officer Janelle Hutten at page 9. [12] Cases prior to Friesen: R. v. F.H.L., 2018 ONCA 83; R. v. S. (H.), 2014 ONCA 323; R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216; R. v. M. (C.), 2008 ONCA 430; R. v. B. (O.), [2008] O.J. No. 4423; R. v. L. (J.J.), 2007 ABPC 194; R. v. B. (J.), [2004] O.J. No. 2559 (Ont. C.A.); R. v. G. (D.P.), [2003] O.J. No. 160. [13] R. v. A.R. [2017] O.J. No. 6840, upheld R. v. A.R., 2022 ONCA 80; R. v. D. (D.), [2002] O.J. No. 1061 (Ont. C.A.). [14] R. v. JDW, 2021 MBCA 49, R. v. BCM, 2022 ONSC 3511, R. v. Alcorn, 2021 MBCA 100. [15] R. v. N.BM, 2021 ABCA 248, R. v. RDS, 2021 MBQB 100, R. v. O., 2020 ABQB 497, R. v. A.A.J.T., 2021 MBQB 264, R. v. J.T., [2021] O.J. No. 314, R. v. K.D.M. [2021] M.J. No.164, R. v. L.R. [2021] O.J. No. 4880, R. v. Sage, Taylor, Man.QB. Unreported. [16] Exhibit 3: Medical Records, EVJ. [17] Exhibit 10: Audio Victim Impact Statement, EVJ & Exhibit 15: Transcript of Victim Impact Statement. [18] Exhibit 13: Forensic Psychology Report, Dr. Nina Vitopoulos. [19] Exhibit 13: Forensic Psychology Report, Dr. Nina Vitopoulos, page 1. [20] Exhibit 13: Forensic Psychology Report, Dr. Nina Vitopoulos, page 2. [21] Exhibit 13: Forensic Psychology Report, Dr. Nina Vitopoulos, page 3-4. [22] Exhibit 13: Forensic Psychology Report, Dr. Nina Vitopoulos, page 4. [23] Exhibit 11: Victim Impact Statement, TVJ, March 7, 2022. [24] Exhibit 14: Pre-Sentence Report, April 27, 2022, author Probation Officer Janelle Hutten at pages 6-7. [25] Exhibit 4: Centre of Forensic Science Biology Report, DNA Confirmation of Paternity, February 17, 2022. [26] Exhibit 14: Pre-Sentence Report, April 27, 2022, authored by Probation Officer Janelle Hutten at page 9. [27] Exhibit 16: Toronto South Detention Centre Lockdown Summary, EAV, June 8, 2022. [28] In oral reasons the court did not clarify the sentence to be 18.5 years on the Aggravated Sexual Assault, and 14 years concurrent on the Sexual Interference.