WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
DATE: February 15, 2024 COURT FILE No: 20-1328
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
-AND-
K.D.
Before Justice M. G. March
Submissions heard on January 16, 2024 Reasons for Sentence released on February 15, 2024
Counsel: Teresa James, Crown Counsel Jon Doody, Counsel for K.D.
March, M.G., J. :
Introduction
[1] On August 10, 2023, I found K.D. guilty of one count of sexual assault upon J.D. contrary to then s. 246.1 of the Criminal Code (“the Code”), and one count each of sexual assault and gross indecency upon H.D. contrary to then ss. 246.1 and 157 of the Code following a ten-day trial.
[2] K.D. is the paternal uncle of both J.D. and H.D. The offences he committed upon them were quite historical in nature, having occurred between 1979 and 1985. Over that period, K.D. would have been a young man roughly between the ages of 18 and 24. At the material times, his niece, J.D., would have been between the ages of 5 and 7, and his nephew, H.D., between the ages of 4 and 10.
[3] For various reasons, chief amongst them, the time it took to seek to have a Gladue Report prepared, which did not come to fruition, the imposition of sentence upon K.D. was delayed inordinately until today.
Circumstances of the Offences
[4] The facts as found at trial are set out in written reasons I have earlier provided. (see R. v. K.D., 2023 ONCJ 601).
[5] Briefly, K.D. committed horrible sexual acts upon his niece, J.D., and his nephew, H.D. Regarding J.D., the following occurred on separate occasions:
a) K.D. fondled and digitally penetrated her in a bathtub, b) he touched her both over and under her shorts, c) he “humped” her in her parents’ bed, but did not penetrate her, d) he caressed her with skin on skin contact in her vaginal and buttocks area, and placed his penis in her mouth, e) he forced her to perform oral sex upon him causing her to regurgitate, f) he “humped” and smothered her in his bed causing her to briefly lose consciousness, and g) he attempted to fondle her in the basement of her childhood family home, which was witnessed by her brother, H.D. (see K.D., supra. at para. 473)
[6] Regarding H.D., the following occurred on separate occasions:
a) K.D. penetrated H.D.’s “thigh gap” from behind with his penis, b) K.D. repeated similar acts upon him over time using a lubricant, c) K.D. threatened to harm H.D.’s siblings, should H.D. tell anyone about what was occurring, d) K.D. exposed his penis to H.D., and used his nephew’s hand to masturbate his penis, and e) on a subsequent occasion, K.D. showed a porn magazine to H.D., then forced H.D to touch his penis before flipping his nephew onto his stomach in order to penetrate his thigh gap again (see K.D. supra. at para. 474).
[7] The abuse J.D. and H.D. suffered at the hands of their uncle, K.D., occurred at varying points in times while:
a) he was living with them in their family home, b) visiting them, or c) they were visiting him.
[8] J.D.’s and K.D.’s parents were prone on occasion to excessive alcohol consumption. Not surprisingly, their supervision over their children at times was lacking.
[9] H.D. chose not to file a Victim Impact Statement (“VIS”) prior to K.D.’s sentencing. According to Crown counsel, he did not wish to relive the experience of what his uncle did to him.
[10] J.D., on the other hand, filed a VIS and read it aloud in Court. It was both powerful and moving. She chronicled how her uncle had destroyed her soul. He left “invisible scars covering old wounds that ache even till this day”.
[11] Aptly, she observed that K.D. “ . . . with grown man hands . . . viciously violated the small bodies and undeveloped minds of . . . innocent children.”
[12] She hearkened back upon her experience as follows: “As a child, he showed me that monsters really existed, and in this case, we called him Uncle.”
[13] In consequence of his conduct, her life went “ . . . spiraling into a vortex of depression, anxiety and anger”. Sadly, she “ . . . began to cut [her] arms, drink and use drugs as a way to quiet the suffering.”
[14] Almost miraculously, J.D. has found the strength to put her hellish childhood experiences behind her. She concluded her VIS stating:
“Despite you, we are healing. Despite your attempts to destroy us, we are thriving. Despite what you have done, we all have found happiness. And now we can finally be safe. And I can let my 8 year old self finally rest.”
[15] As set out in R. v. Friesen, 2020 SCC 9, the benchmark case of the Supreme Court of Canada (“SCC”) guiding lower courts on the sentencing principles to be applied and approaches to be taken on the available evidence in child sexual abuse cases, I must act on the following direction:
[85] When possible, courts must consider the actual harm that a specific victim has experienced as a result of the offence. This consequential harm is a key determinant of the gravity of the offence (see M. (C.A.), at para. 80). Direct evidence of actual harm is often available. In particular, victim impact statements, including those presented by parents and caregivers of the child, will usually provide the “best evidence” of the harm that the victim has suffered (R. v. Gabriel (1999), 137 C.C.C. (3d) 1 (S.C.J. Ont.), at p. 11). Prosecutors should make sure to put a sufficient evidentiary record before courts so that they can properly assess “the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it” (Woodward, at para. 76).
Circumstances of the Offender
[16] At present, K.D. is 62 years old. He has a dated, minimal criminal record consisting of an impaired driving offence from 1986 and an assault from 1991. He has no related convictions.
[17] He was born and raised in the Pembroke area. Aside from brief periods spent in western Canada to obtain employment, K.D. has remained a lifelong resident of Renfrew County.
[18] He believes he has indigenous roots which he traces to his maternal grandmother. In spite of attempts made by Aboriginal Legal Services (“ALS”) of Toronto, no definitive link could be made for K.D. to the Kitigan Zibi Anishinabeg First Nation in Maniwaki, Quebec, with whom he believed his grandmother was associated. Amanda General, the author of correspondence from ALS dated November 29, 2023 and addressed to the Court, was quick to comment nevertheless that:
“This letter should not be read in any way as stating that [K.D.] is not an Indigenous person - we are not in a position to draw such a conclusion. Neither should this letter be read as stating that there may not be relevant Gladue issues in this case. The fact that we are not able to prepare a Gladue Report for [K.D.] does not mean there are no Gladue-related issues counsel may wish to raise with the Court.”
[19] Quite appropriately, the author of his Pre-Sentence Report (“PSR”), Nicola Olmstead, pointed out that K.D., due to his long-standing marriage to T.D., a member of the A[...] of P[...] First Nation in G[...], Ontario, has lived in an indigenous milieu “for many years”.
[20] Ms. Olmstead set out as well that K.D. is the youngest of five children. He remembered having a good childhood, free of abuse or neglect.
[21] His father had served in World War II as a tank operator. He passed away unfortunately while K.D. was only a teenager.
[22] His father was not a drinker, but his mother liked to imbibe on occasion. She tried to hide it from the children when they were young. Following his father’s death, his mother’s use of alcohol increased.
[23] When the PSR was prepared on September 19, 2023, K.D. indicated that he had contact with only one of his three brothers. His sister, with whom he was close, passed away a decade before.
[24] K.D. and his wife, T.D., had 3 children together, twin daughters and a son. The PSR author met with both adult daughters, then aged 35. During an interview with them, they recalled when they were young there was “lots of drinking in the home”. Their parents would then frequently argue. Their mother often became physical with them while under the influence. To the contrary, they described their father as someone who drank excessively too, but who acted more as a protector for them.
[25] The twin daughters were removed from K.D.’s and T.D.’s home by Family and Children’s Services of Renfrew County (“FCS”) in their early teenage years. K.D. attributed this to his girls becoming “boy crazy”. His wife and he did not permit them to have boyfriends. According to K.D., in retaliation, the girls told school officials that they were being abused at home by their mother.
[26] K.D. told the PSR author that his wife, T.D., found a letter from one of the girls stating they were going to make up allegations against their parents, so that they could be placed in a foster home in Eganville closer to where their boyfriends lived.
[27] K.D. recounted that his wife and he spent years in legal battles trying to have the girls returned to them. Meanwhile, their daughters’ behaviour was so bad that no foster families in Renfrew County would take them.
[28] At some point after the girls turned 16, an FCS worker on the P[…] reserve eventually tired of their behaviour and dropped them back at the family home. The Family Court then gave up and allowed them to remain with his wife and him.
[29] When his daughters were 18 years old, K.D. and T.D. had a son, who was later apprehended from them as well by FCS after the boy attained the age of 15 months. The child welfare agency did so apparently without notice to K.D. or T.D.
[30] K.D. went on to explain to the author of the PSR that T.D.’s and his history worked against them. He took the drastic step of separating from T.D. and moved into an apartment on his own, but this apparently was deemed an unsatisfactory living arrangement for him to care for his son in the opinion of FCS. The boy was ultimately adopted by the foster parents with whom he was living in Westmeath, Ontario.
[31] K.D. concluded that this was yet another instance of “taking the native out of his home”, as the government did in the past with the residential school system.
[32] The PSR author noted that T.D. and her daughters are firmly of the belief that J.D. fabricated the allegations which she made against K.D., and which led to the findings of guilt against him by this Court. Of course, K.D. is well within his right to continue to maintain his innocence before me.
[33] When K.D. spoke of his education with Ms. Olmstead, the PSR author, he remembered struggling in school. He had difficulties with spelling and reading. By grade 10, during a teacher strike, he left and never returned.
[34] Over the course of his adulthood, K.D. worked in various labour jobs. Eventually, he developed self-taught skills as a mason and started his own company. However, his career ended due to pain issues with his back. Since the age of 55, he has supported himself through assistance offered by way of the Ontario Disability Support Program.
[35] Regarding substance use and addiction, K.D. denies that he has any current problems of this nature. In previous years, he conceded that there was dependence on alcohol for both his wife and him. He felt they used it as a way of coping with Family Court. Following his daughters’ apprehension by FCS, they continued to abuse alcohol to forget “the negative things happening in their lives and to numb their feelings.”
[36] At present, K.D. indicated to the PSR author that he “only drinks a few times a week and not with the intention of getting intoxicated.” Years ago, he attended AA, but he has never received any form of residential treatment, or other counseling, to address his use of alcohol.
[37] K.D. pointed out that his life has been marred by tragedy in recent years as well. One of his brothers had a heart attack which required surgery. His nephew, not H.D., overdosed. His wife and he suffered the ordeal of house fire, and while they were living in a trailer on their property, because their home was uninhabitable, his uncle was murdered following a campfire gathering they held in their backyard.
Crown’s Position on Sentence
[38] Crown counsel seeks a period of incarceration of seven years. Denunciation and deterrence are the salient sentencing principles to be taken into account by the Court, she submits. Indeed, they are mandatorily legislated as primary factors to be emphasized in sentencing an offender who commits a crime upon a child by virtue of section 718.01 of the Code.
[39] Statutory aggravating features arise by virtue of the language chosen by Parliament in section 718.04 of the Code. J.D. and H.D. were both “vulnerable because of personal circumstances”. J.D. is also “Aboriginal and female”.
[40] Further, under s. 718.2 (a) (ii) and (ii.1) of the Code, the fact that K.D. abused his niece and nephew – members of his family – while they were under the age of 18 are aggravating circumstances as well.
[41] Candidly, Crown counsel admits that a sentence of the duration she is seeking is near the higher end of the range, but there are numerous other aggravating features to the offences committed by K.D.
[42] Firstly, there are multiple victims (two). The Court must therefore give effect to s. 718.3(7)(b) of the Code and impose consecutive periods of imprisonment for each child victim.
[43] Secondly, the offences were committed over an extended period – years, in fact - involving multiple incidents for both victims.
[44] Thirdly, K.D. was J.D.’s and H.D.’s uncle. At times he lived under the same roof as they did. They were clearly vulnerable children of tender years. As a young adult, he ought to have watched over and cared for them. Instead, he gravely breached the trust their parents placed in him.
[45] Fourthly, K.D. used threats to gain compliance over and maintain secrecy with both J.D. and H.D.
[46] Fifthly, there was an aspect of grooming in respect of the offences committed upon J.D. She testified at trial about how K.D. made her feel as though he loved her.
[47] Sixthly, the very nature of the offences themselves take on a unique gravity. The violation of a defenceless child is particularly deplorable and reprehensible. An innocent is robbed of his or her youth. Families are torn apart. Lives are forever affected or ruined.
[48] Lastly, Crown counsel emphasized the significant impact the offences have had upon the victim, J.D.
[49] By way of mitigation, the Crown pointed out that K.D. has no related criminal record. He appears to have led a life free of brushes with the criminal justice system for some 30 years since 1991, before he was charged with the historical offences for which he has now been convicted, and notwithstanding his prior struggles with alcohol.
[50] All the while, he remained in a committed relationship with his wife, T.D., and managed to raise his daughters, all of whom remain fiercely dedicated to him.
[51] Crown counsel urges me to consider Gladue factors in spite of any clear connection to indigeneity that ALS was able to make out on K.D.’s behalf.
[52] Turning her mind to the appropriate length of the custodial sentence for K.D., she drew my attention to paragraph 110 of Friesen, where Wagner C.J. and Rowe J. wrote of the need for an “upward departure from precedents” based on “Canadian society’s understanding of the gravity and harmfulness” of child sexual offending. Sentences are to increase “as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims”.
[53] In short, as set out at paragraph 112 of Friesen, “sentencing judges must have the ability to impose substantial sentences for sexual offences against children when the gravity of the offences and the degree of responsibility of the offender so demand”.
[54] By way of ancillary orders, the Crown submits that K.D. be required:
a) to provide a sample of his DNA to the authorities under section 487.051 of the Code, b) to comply with the provisions of the Sex Offender Information Registration Act 2007, c. 5, s. 12 for a period of 20 years under s. 490.012 of the Code, c) to be prohibited from possessing any weapon or thing as set out in s. 109 of the Code for a period of 10 years, and d) to abstain from communication directly or indirectly with J.D. and H.D. while serving his sentence by virtue of s. 743.21 of the Code.
Defence Position on Sentence
[55] Defence counsel submits that the proper range of sentence in the post-Friesen era for K.D. would be four to nine years imprisonment. However, it must be remembered that he is a first-time offender for sex crimes. He was quite young at the time they were committed.
[56] Even though the principles of denunciation and deterrence are primary, restraint must still be exercised in accordance with the principles set out in R. v. Priest. Consequently, the defence seeks the imposition of a five-year penitentiary term.
[57] Defence counsel takes no issue with any of the ancillary orders sought by the Crown. He was as well in substantial agreement with the Crown’s assessment of the aggravating and mitigating aspects of K.D.’s offending.
[58] The defence points out, quite properly, that the maximum available sentences for the crimes for which K.D. was found guilty at the point in time they were committed, was 10 years for sexual assault, and 5 years for gross indecency. Maximums, of course, are reserved for the worst offenders in the worst set of circumstances. While K.D.’s criminal acts were serious and caused lifelong impacts upon his victims, they were not nearly the worst conceivable.
[59] The Court, the defence argues, must also give effect to the totality principle.
[60] Some four decades have passed since K.D. committed the offences. The individual he is now is not the person he was then. A sentence of five years or greater in the penitentiary for a man in his early 60s will exact a much greater toll than if K.D. were a younger man.
[61] The defence provided to the Court several character reference letters regarding K.D. They speak glowingly of his kind and helpful nature. They describe him as “family oriented”. There can be little doubt that K.D. possesses some caring, giving and prosocial traits.
[62] Given K.D.’s modest financial means, defence counsel also asked that this Court to waive the victim fine surcharge.
Analysis
[63] In arriving at a fit disposition for K.D., I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.
[64] K.D.’s sentence must be an appropriate one upon consideration of the circumstances of the offences he committed as well as his personal circumstances.
[65] Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.
Denunciation and Deterrence
[66] The principles of denunciation and deterrence are paramount when one sentences an adult who engages in sexual acts with children. In Friesen, the SCC could not have been any clearer in the following passages:
[88] Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to (Arcand, at para. 58; see also M. (C.A.), at para. 80; Morrisey, at para. 48). For sexual offences against children, we agree with Iacobucci J. that, save for possibly certain rare cases, offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child (Scalera, at paras. 120 and 123-24).
[89] All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim’s human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48). As L’Heureux-Dubé J. reasoned in L. (D.O.), “the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women” precisely because both forms of sexual offences involve the sexual objectification of the victim (p. 441). Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation (Benedet, at p. 310; Hajar, at para. 67).
[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 (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 153). As L’Heureux-Dubé J. recognized in R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, “[a]s to moral blameworthiness, 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” (para. 31, quoting R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115 (N.L.C.A.), at para. 117, per Cameron J.A. (“L.F.W. (C.A.)”)). Offenders recognize children’s particular vulnerability and intentionally exploit it to achieve their selfish desires (Woodward, at para. 72). We would emphasize that the moral blameworthiness of the offender increases when offenders intentionally target children who are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society.
[67] The SCC went on to add:
[101] Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children. In 2005, Parliament added s. 718.01 to the Criminal Code by enacting Bill C-2. In cases that involve the abuse of a person under the age of 18, s. 718.01 requires the court to give “primary consideration to the objectives of denunciation and deterrence of such conduct” when imposing sentence.
Separation from Society
[68] Offenders must be separated from society where necessary. Clearly, incarceration must be the penal sanction of last resort.
[69] Unfortunately for K.D., it is the only sanction which can adequately pay respect to the principles of denunciation and deterrence, and which must be reflected in the sentence this Court must craft.
Rehabilitation
[70] K.D. needs some form of rehabilitation, but without an acknowledgement by him of any criminal wrongdoing, I do not know what, if any, real assistance can be offered.
Promotion of a Sense of Responsibility and Acknowledgement of Harm
[71] K.D. wishes to maintain his innocence. That is his right. However, it does not bode well for his rehabilitation.
[72] I can only hope that K.D. will, in future, take the time to reflect on his conduct and understand that what he did constituted the most heinous of crimes.
Aggravating and Mitigating Circumstances
[73] Crown and defence counsel concur as to what constitute the aggravating and mitigating factors for the offences committed by K.D. They are set out above at paras. 39 - 40, and 42 – 50. I need not repeat them again.
Parity
[74] Section 718.2 (b) of the Code provides:
“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
The Case Law
[75] Crown counsel drew my attention to pre- and post-Friesen cases in a Sentencing Chart she provided to the Court. Frankly, I see little to no utility anymore in the pre-Friesen cases. For more than three years, Friesen has been the beacon for judges like I at this stage of the proceeding to guide me with respect to all relevant sentencing considerations.
[76] Crown counsel referred me to two post-Friesen decisions during oral submissions, which I find to be of great assistance:
a) R. v. Guindon, 2020 ONSC 6065, and b) R. v. N.S., 2022 ONSC 5123.
[77] In Guindon, O’Bonsawin J. of the Superior Court of Justice, as she then was, had before her a 69-year-old offender in ill health and with no criminal record, who she had previously found guilty of indecent assault, sexual assault and buggery.
[78] When Mr. Guindon committed the offences, the victim had freshly come into Mr. Guindon’s life, having been placed with his family as a foster child. The victim was six or seven years old at the time. The offender was then a 26-year-old adult. Shortly after the arrival of the child victim in the Guindon household, the abuse commenced.
[79] In terms of the factual underpinnings, O’Bonsawin stated:
[44] With regard to the sexual acts, I found as follows:
- Mr. Guindon took RB’s hand and placed it on his penis both over and under his clothes while RB sat on his lap at Guigues;
- Mr. Guindon put RB’s hand inside of his shorts while in Mr. Guindon’s bedroom at Guigues;
- Mr. Guindon performed oral sex on RB at Murray;
- at Murray, Mr. Guindon had RB perform oral sex on him, which included RB being on his knees in order to perform oral sex, Mr. Guindon pushing his penis inside of RB’s throat, making him gag, and Mr. Guindon’s ejaculating on RB’s face and in his mouth;
- Mr. Guindon and RB performed oral sex on one another in the “69” position at Murray;
- Mr. Guindon had RB straddle him while he grabbed both of their penises in his hand at Murray;
- Mr. Guindon had RB squeeze his nipples while he masturbated RB at Murray;
- Mr. Guindon performed oral sex on RB and had RB perform oral sex on him at the Co-op.
- Mr. Guindon engaged RB in acts of mutual masturbation at the Co-op; and
- Mr. Guindon had RB lick and insert his tongue into his anus.
[80] While I consider the facts in Guindon to be similar to what K.D. did to J.D. and H.D. over a period of years, K.D.’s abuse of his niece and nephew was not as invasive as what Mr. Guindon did to his victim, RB.
[81] I would hasten to point out however, that I am not downplaying the horror J.D. and H.D. were forced to endure. I also note that Mr. Guindon had a solitary victim. K.D. had two.
[82] The comments of O’Bonsawin J. in the following passages, in my view, have particular application to K.D.’s case as well:
[52] Mr. Guindon’s age is not a mitigating factor. As for his health issues, the letter provided by Dr. Yeats states that he requires medication to manage his heart condition. He may also require medication for other medical conditions. As in R. v. May, there is no evidence suggesting that CSC is unable to treat Mr. Guindon’s medical conditions. In fact, given the information provided by Mr. Irving at CSC, CSC can properly manage Mr. Guindon’s medical issues. With regard to Dr. Yeats’ comments about the high risk should Mr. Guindon be infected with COVID-19, I acknowledge that given his age and medical conditions, he may be at a higher risk. However, I am taking judicial notice that there are protocols in place at CSC regarding COVID-19.
[53] When I balance compassion with the seriousness of the offence, the latter weighs more heavily. These are serious offences that have had a devastating impact on RB’s life.
[54] As stated by Moldaver J. in R. v. D.(D.), “[o]ur children are at once our most valued and our most vulnerable assets”: at para. 35. RB was a very young, impressionable and vulnerable person when Mr. Guindon took advantage of RB for his own sexual gratification. As the role model and older “brother”, Mr. Guindon was in a position of trust with RB. This is a case of significant sexual abuse. This case is filled with horrendous facts surrounding the repeated sexual abuse that RB suffered at the hands of Mr. Guindon over a number of years. Mr. Guindon also threatened RB of the consequences if he disclosed the sexual abuse he endured.
[55] In Friesen, the Supreme Court of Canada reiterated what may seem trite: “the fact that the victim is a child increases the offender’s degree of responsibility”: at para. 90. This moral culpability “increases when offenders intentionally target children who are particularly vulnerable”: at para. 90. In paragraph 201 of the trial decision, I found that RB was one such vulnerable child. In reaching my final disposition, I am mindful of this high degree of moral culpability. I do not, however, allow these considerations to overwhelm the principle of proportionality.
[83] The offender described himself before O’Bonsawin J. as an “honest, caring and loving person”. He maintained his innocence to the end. Notwithstanding, O’Bonsawin J. sent Mr. Guindon to jail for seven years during a time when some of the harshest conditions of confinement prevailed in Canada and elsewhere within correctional institutions - roughly six months following the declaration of the Covid 19 pandemic by the World Health Organization 1.
[84] In the other case to which I was referred by Crown counsel, N.S., Boswell J. had before him for sentencing, following a trial by judge and jury, a 31-year-old Indigenous male found guilty of two counts of sexual assault and two counts of sexual interference upon his two ‘de facto’ stepsisters. There was a significant age gap between the offender and his victims.
[85] The sexual assault offences were stayed by Boswell J. upon application of the Kienapple rule. The task remaining for His Honour was to sentence the offender on two counts of sexual interference with his stepsisters.
[86] Based on the facts the jury must have relied upon to ground their findings of guilt, Boswell J. set out what he concluded to have been the specific sexual acts perpetrated by the offender upon the victims, as follows:
a) a solitary instance of grabbing the hand of one of his stepsisters and placing it on his penis, b) placing a hand down the pants of his other stepsister and touching her vagina for several minutes, c) placing her hand on his penis and pushing her head toward it, so that she could take it into her mouth “a few times”, d) placing her hand on his penis and making her hand go up and down, e) placing her hand on his penis and having her perform fellatio on him, f) masturbating himself and then inserting his penis in her mouth notwithstanding her resistance, g) forcing vaginal intercourse upon her, h) grabbing her hand and placing it on his penis while offering her money to suck it, which she refused to do, and i) pushing his penis in her mouth during a period when his girlfriend had briefly absented herself from the apartment where they all were.
[87] The reflection taken by Boswell J. in N.S. to reach a fitting disposition for the offender, and his distillation of the sentencing principles to be gleaned from Friesen are particularly apposite to the case before me. He synopsized those principles as follows:
[86] In the case of sexual offences against children, the applicable range of sentence is in flux as a result of the Friesen decision. There is no doubt that the yardsticks are moving and that they are moving towards more significant sentences. It remains premature, in my view, to say with any confidence, what the post-Friesen range for sexual interference is.
[87] Friesen does offer guidance, however, as to where the appropriate range ought to be. At the outset of the ruling, the court emphatically instructed that sentences for offences against children must increase, saying, at para. 5:
…[W]e 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.
[88] They went on to note, at para. 114, that while it is not the function of that court to set ranges, they considered it important to send the following message:
…[T]hat 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.
[89] The Supreme Court left no doubt that sexual offences against children are grave offences with profound and long-lasting consequences for the children victimized by them. They highlighted a number of compelling factors engaged in the sentencing process for offenders who commit sexual offences against children. These include:
(a) Sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. Sentences must reflect the “life-altering consequences” that can and often do flow from sexual violence (Para. 74);
(b) The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers and communities (Para. 76);
(c) The wrongfulness of the exploitation of children is always relevant to the normative character of the offender’s conduct and thus the gravity of the offence (Para. 78); and,
(d) 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 (Para. 90).
[90] Friesen directs that sentencing judges take into account a number of factors when passing sentence for an offence of sexual violence against a child. They include:
(a) The likelihood to re-offend; (b) The abuse of a position of trust or authority; (c) Duration and frequency; (d) Age of the victim(s); (e) Degree of physical interference; and, (f) Victim participation.
[88] I have no evidence before me regarding K.D.’s likelihood to reoffend. Given his advancing age, his libido may be decreasing; however, I have no basis for assuming or taking judicial notice of this to be so. Accordingly, I will treat his likelihood to reoffend as an unknown factor.
[89] K.D. certainly did abuse his position of trust within the D. family. He was at times the ‘live in’ uncle of J.D. and H.D.
[90] The duration and frequency of the sexual acts K.D. committed upon his niece and nephew spanned years and were copious. J.D.’s and H.D.’s parents were put on notice at the time they were occurring. Sadly, their father and mother did little, if anything, to put an end to their children’s nightmare.
[91] The degree of invasiveness was severe. K.D. took egregious sexual liberties with J.D.’s and H.D.’s tiny bodies. K.D.’s acts included grooming, fondling, caressing, touching private areas, digitally penetrating, simulating intercourse, smothering, and forcing fellatio and masturbation. Further, he threatened harm to his niece and nephew, or to their parents, or to their siblings, should they reveal what he was doing.
[92] Neither J.D. nor H.D. participated at all in the acts described above. K.D.’s depravity was completely forced upon them.
[93] The sentence I impose must, of course, reflect the high moral blameworthiness of K.D.’s use of his niece and nephew as objects for his sexual gratification. He ravaged their childhood innocence. He decimated any trust they could place in those they believed ought to have been their protectors.
Gladue Factors
[94] In Friesen, the SCC explained:
[91] These comments [regarding moral blameworthiness inherent in child sex crimes] should not be taken as a direction to disregard relevant factors that may reduce the [specific] offender’s moral culpability. The proportionality principle requires that the punishment imposed be “just and appropriate . . . and nothing more” (M. (C.A.), at para. 80 (emphasis deleted); see also Ipeelee, at para. 37). First, as sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct, the offender’s conduct will be less morally blameworthy in some cases than in others. Second, the personal circumstances of offenders can have a mitigating effect. For instance, offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability (R. v. Scofield, 2019 BCCA 3, 52 C.R. (7th) 379, at para. 64; R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269, at para. 180).
[92] Likewise, where the person before the court is Indigenous, courts must apply the principles from R. v. Gladue, 1999 SCC 679, [1999] 1 S.C.R. 688, and Ipeelee. The sentencing judge must apply these principles even in extremely grave cases of sexual violence against children (see Ipeelee, at paras. 84-86). The systemic and background factors that have played a role in bringing the Indigenous person before the court may have a mitigating effect on moral blameworthiness (para. 73). Similarly, a different or alternative sanction might be more effective in achieving sentencing objectives in a particular Indigenous community (para. 74).
[95] Bearing the above passages in mind as I must, I find that there are few, if any, Gladue factors in K.D.’s case to mitigate his moral blameworthiness. Try as he may, K.D. could not point to any traceable connection to indigeneity, nor any sense of cultural loss he endured, nor any other identifiable hardship he suffered, in consequence of his tenuous belief in his aboriginal ancestry.
[96] Notwithstanding, I appreciate that K.D. has lived for a substantial period of his adult life with his wife and children amongst the A[…] of P[…]. His wife is Indigenous. His children share this ancestry with their mother. The children were all subject to intervention or apprehended by child welfare authorities at some point or another.
[97] To this limited extent, I have case specific information pointing me to unique systemic and background factors for K.D.’s suffering. They link to the upheaval he experienced through the apprehension of his children. As he put it, they were “taking the native out of [the] home”. However, all this emotional pain he experienced post-dated the commission of his offences. As far as I can see, K.D. had no direct or generational connection to Indigenous culture when his offending occurred. Surely, he must bear some onus to show an ancestral connection to indigeneity for the Court to properly consider Gladue factors 2. ALS through its research, determined that his father’s lineage was non-Indigenous, and his mother’s, French.
A Fit Sentence for K.D. in the Circumstances of the Offences He Committed and His Personal Circumstances
[98] It warrants repeating that the length of time for which I will incarcerate K.D. must pay adequate respect to the principles of denunciation and deterrence.
[99] The effects of K.D.’s crimes were profound and unerasable for both J.D. and H.D. Through the miracle of the human spirit and pure, sheer resilience, both emerged from the agony of their childhoods to lead productive lives. They carried on. They raised children themselves. With immense courage and resolve, they survived the nightmare K.D. visited upon them as young, vulnerable children.
[100] As stated by the SCC in Friesen at para. 83:
If the victim is an adult at the time of sentencing, the court may be able to conclude that these forms of potential long-term harm have materialized into actual harm.
[101] Clearly, J.D.’s and H.D.’s relationship with their father was devastatingly impacted. Both testified during the trial to the estrangement they developed with their father, W.D., K.D.’s brother, and their sense of betrayal owing to their father’s acceptance of K.D. back into the family fold. As explained in Friesen:
[60] Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship (R. v. D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para. 41). If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator . . . (see “The ‘Statutory Rape’ Myth”, at p. 292).
[102] I will exercise some restraint, given the offences K.D. committed are his only known spate of sexual offending. Still, they remain deplorable, horrific acts to which J.D. and H.D. were subjected many years ago. K.D.’s victims tragically bear the psychological and emotional scars he inflicted to this day. I can only hope that their bravery in coming forward offers them some solace and a path to healing.
[103] Upon consideration of all relevant principles of sentencing and their purpose, I shall impose a sentence of 3.5 years imprisonment for the sexual assault upon J.D., and 3.5 years to be served consecutively for the sexual assault upon H.D. For the acts of gross indecency perpetrated upon H.D., I will impose 2 years to be served concurrently. Having regard to the totality principle, I will reduce the global sentence to one of six years. A cumulative global sentence for K.D. of 6 years at his advancing age is a fitting and appropriate one.
Conclusion
[104] Upon assessment of all relevant provisions of the Code, I must jail K.D. for a period of 6 years going forward from today’s date. I find I can go no lower if I am to adequately address the pressing principles of sentencing in this case, primarily deterrence and denunciation.
[105] By way of ancillary orders, K.D. shall be required:
a) to provide a sample of his DNA to the authorities under section 487.051 of the Code, b) to comply with the provisions of the Sex Offender Information Registration Act 2007, c. 5, s. 12 for a period of 20 years under s. 490.012 of the Code, c) to be prohibited from possessing any weapon or thing as set out in s. 109 of the Code for a period of 10 years, and d) to abstain from communication directly or indirectly with J.D. and H.D. while serving his sentence by virtue of s. 743.21 of the Code.
[106] Lastly, I will waive the imposition of any victim fine surcharge for K.D. I find it will cause him undue hardship to face any type of monetary penalty upon his release from custody, given the significant length of time he is likely to be incarcerated, his limited education and the financial struggles he will face upon release.
DATED: February 15, 2024
March, M.G., J.
Endnotes
1 March 11, 2020 was the day the World Health Organization declared Covid 19 a pandemic.
2 See R. v. Powley, 2003 SCC 43 at paras. 29-35 and R. v. Bourdon, 2024 ONCA 8 at paras. 26-28.