ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIMJ(P) 208/10

DATE: 20120216

B E T W E E N:

HER MAJESTY THE QUEEN

L. Stokes, for the Crown

and -

M.E.

R. Singh, for the Defence

Defendant

HEARD: February 13, 2012

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainants and any information that could disclose such identity, shall not be published in any document or broadcast or transmitted in any way.

REASONS FOR SENTENCE

HILL J.

INTRODUCTION

[1] It falls to determine what a fit and just sentence is for the historical crimes for which M.E. has been found guilty.

[2] The parties agree that a proper application of the Kienapple principle will result in conditional stays upon count #’s 10 and 12 as they effectively amount to duplicative allegations of sexual misconduct. Because the unlawful confinement (count #6) formed an integral part of the assault causing bodily harm (count #7), count #6 will also be conditionally stayed: see R. v. Owusu, [1998] O.J. No. 2258 (C.A.)(QL), at para 1; R. v. Alli, [1996] O.J. No. 2542 (C.A.)(QL), at paras. 3-4. Given the offender’s continuing possession of the belt/strap for the purpose of committing an assault (count #17) independent of its routine use against A.E. (count #16), neither of these counts will be stayed: see R. v. Basilio (2003), 2003 15531 (ON CA), 175 C.C.C. (3d) 440 (Ont. C.A.), at p. 448; R. v. Arnill, [1999] O.J. No. 322 (C.A.)(QL), at para. 3.

[3] As to the remaining nine counts, the background facts will be summarily referenced as the evidence was extensively reviewed in the earlier reasons of the court: 2011 ONSC 571.

THE OFFENCES

Overview

[4] On the whole of the evidence, it was established that the offender persistently engaged in the unlawful use of force against two of his biological sons (P.E. and A.E.) and against his step-daughter, C.T. They were youths at the time. Mother figures in the home were routinely beaten as well.

[5] The use of physical force was generally driven by the offender’s loss of temper, frustration and anger – not reasonable, correctional discipline. The violence was systemic and long-term. Injuries resulted. At times the children were struck with various implements.

[6] C.T., as described below, was also the victim of sexual abuse.

[7] The offences are summarily described below with parenthesized reference to the indictment count # and the relevant paragraphs of the Reasons for Judgment.

The Victim P.E.

[count #2 – assault causing bodily harm

– paras. 34-9;

count #3 – assault

– paras. 23-33, 41-51]

[8] P.E. was beaten by his father on a near daily basis from ages 9 to 16 years. There were slaps and punches to various parts of his body including his head. There were verbal threats. He was struck with various objects during the offender’s fits of rage.

[9] P.E. became the focus of the offender’s physical attacks whenever he sought to step in to protect a step-mother or younger brother from physical violence.

[10] At times, the abuse resulted in injuries including bleeding, bruises, welts and black eyes. He was frequently subjected to derogatory and demeaning insults. The years of unlawful assaultive behaviour took their toll upon P.E.

[11] The assault causing bodily harm occurred during an out-of-control angry outburst on Mr. M.E.’s part during which he grabbed a broomstick on-the-sudden and struck more than one blow against the youngster’s arm raised to defend himself. The victim was 10 to 12 years of age. The violence broke his arm. The victim was instructed on a cover story to conceal from hospital staff the true cause of his injury.

The Victim C.T.

[count #7 – assault causing bodily harm

– paras. 91-3

count #13 – assault

– paras. 85-90

count #8 – sexual intercourse with step-daughter

– paras. 102-5

count #9 – sexual assault

– para 100

count #11 – sexual assault

– para. 101]

[12] C.T. experienced a relationship with her step-father which became violent, terrifying and horrific. She was physically abused from the age of 9 years. As a young teenager she was forcefully struck during every week. She was hit on her face and head. There were slaps and punches. Bruises, a bloody nose and black eyes resulted. She was called names by her step-father.

[13] There were frequent whippings with a belt. Red welts and bruises were sustained.

[14] A severe episode of violence occurred when C.T. was about 15 years of age. In the kitchen of the home, she was unlawfully confined by being tied to a chair and beaten by the offender. There were punches and slaps. Her mother, herself a recipient of the offender’s abuse, did nothing to help. Several nasty injuries resulted. A disfiguring scar subsists. The victim was given no medical attention.

[15] Sexually inappropriate behaviour on the part of C.T.’s step-father began when she was 11 or 12 years of age. Her breasts and buttocks were grabbed and her vaginal area was touched. Despite protestations for the touching to stop, the offender persisted for some years.

[16] On February 23, 1989, C.T., a 14-year-old virgin, was raped in the family home by the offender. Her mother was in the hospital having given birth that day to her half-brother. The offender ejaculated on the floor and directed the victim to clean it up.

[17] Within a week, with her mother still in the hospital, the victim was raped a second time.

[18] The third, and final, rape occurred about six months later again in the family home. After an episode of domestic violence resulting in the victim’s mother retiring upstairs, the offender interrogated the victim about suspected infidelity on the part of his wife. In rage, the offender smacked and punched C.T. and then raped her. One of the saddest moments of the trial – when the victim responded as to why she did not call out for her mother – she “wouldn’t have come”.

The Victim A.E.

[count #16 – assault

– paras. 52-4, 56-65

count #17 – possession of a weapon for a purpose dangerous

– para. 55]

[19] From ages 11 to 15, A.E. was regularly subjected to physical abuse by his father. He was punched, slapped and hit with objects. He was struck in the face. He sustained injuries including bruises, cuts, bleeding and swelling. The offender beat him in anger.

[20] From the age of 7 until he went into C.A.S. care at about age 15, A.E. was systematically beaten with a belt or strap-like device. His father would resort to belting when “really mad”. The proven facts revealed that A.E.:

...was first hit with a belt as a 7 or 8-year-old – “I was too small. I wouldn’t know what would lead up to a smack”. The item was also referred to as a belt in the evidence. The device was brown leather, like a barber used. It was hung. A.E. described the accused as wetting the strap in the sink, folding it in half, and with a fist at each end pulling it back and forth to make a snapping sound. In the witness’ words, when this happened, “you know he’s coming”. He would be told to bend over. A beating was coming. If he didn’t, “you’d get it where you get it”. A.E. recalled being hit by the belt or strap up to three or four times weekly. Asked if there was just one strike on any one occasion, the witness replied: “I wish it was one but it’d be a bunch” – there would be five or six before he stopped counting as the pain became too much – he curled up and waited for it to end. Asked where on his body the strap landed, A.E. recalled being struck on his back, bum, neck, legs and head – in his words, it “depends how I was twitching on the ground how he would get it”. He would sustain black and blue marks and welts.

Offender’s Criminal Record

[21] Mr. M.E.’s criminal record is as follows:

April 19, 1982

(Brampton)

• sexual intercourse with a female under 14 years of age

• 6 months and 18 months’ probation

November 5, 1992

(Hillsborough County, Florida)

• false imprisonment

• child abuse

• 1 year of probation concurrent on all charges

March 21, 2005

(Brampton)

• assault with a weapon

• 6 month conditional sentence of imprisonment and 1 year probation

[22] The 1982 record entry relates to an offence committed by Mr. M.E. against his step-daughter, D.M., S.M.’s daughter. The offender was off work, on compensation and staying at home. The crime was committed in May of 1980 against the 10-year-old girl. The parties agreed that the factual circumstances are as described below:

Between 10 and 16 of May on a weekday the victim who lives with her mother, the complainant, and the accused, her mother’s common-law husband, and his three sons, returned home from school. She went into the bathroom and the accused followed her in, removed her clothes layed her on the floor and had sexual intercourse with her, to completion.

[23] Medical examination of the child established that her hymen was broken. Mr. M.E. denied to the police committing the offence. He subsequently failed a polygraph test.

[24] Mr. M.E. pleaded guilty to the 1992 Florida charges. The victims of the child abuse charges, a 1^st degree level criminal misdemeanour, were J. and A.E.. The relevant instance of child abuse occurred on August 23, 1992 when J. was 10 years of age and A.E. was 7 years of age. After the offender broke up a fight between the boys, he hit each of them with a belt. When the police arrived, J. was found to have bruises and red marks on his stomach, back and left arm consistent with strikes with a belt. A.E. too was bruised with a red mark as well on the inside of his right knee which appeared consistent with a belt strike. Investigators photographed the boys’ injuries. The boys’ mother, J.F., told police at the scene that her husband “started beating the shit” out of the boys. In speaking to the deputies, the accused acknowledged hitting his sons with a belt. He stated that this was not a wrong thing to do.

[25] The 1992 false imprisonment charge, a felony level crime, related to the offender confining J.F. on August 23, 1992 for a 30-minute period in their home after beating J. and A.E.. He told her she was not going anywhere. The offender stopped her from calling 911. The victim informed the police that she did not attempt to leave as she feared her husband as he had hit her before.

[26] The 2005 assault with a weapon record entry relates to a domestic violence context of an assault of J.F..

Offender’s Background

[27] The offender’s date of birth is […], 1943. He is currently 68 years of age.

[28] M.E. was one of nine children born to his parents in Guyana. The offender related to the Presentence Report (PSR) author that he never had a childhood. He self-described himself as “a child worker”. He left school at age 14 having attained a grade 10 equivalent education. The offender’s brother informed the PSR writer that their “parents would spank us...you would get the strap...it was also the method of discipline in the school system”.

[29] Mr. M.E. came to Canada in 1965. In speaking to the PSR author about the circumstances of bringing his three sons (P.E., A.E., M.E.) from Guyana, the offender stated that he really did not want to reunite with them here:

I really was not ready because I had my life set up and wanted so bad to join the armed forces or the police forces. I did not want to go and get kids. I wanted to move on with my life. But I was forced in a situation where I was a parent and had to rescue these kids.

[30] The offender’s predominate employment in Canada has been driving for various courier companies. He sustained a work-related injury in May 1978 with back pain subsisting since the time of the injury.

[31] The offender retired in December 2008 and currently resides alone supporting himself on pension income.

[32] Dr. Barrington, the offender’s back specialist since April 1979, has seen his patient about every six months. Tylenol 3 has been prescribed for pain control. The offender walks with a cane and uses a motorized chair in good seasonal conditions.

[33] Dr. Abouelnasr, a psychiatrist, assessed the offender in January 2012 after a referral from the offender’s family physician on account of symptoms of depression. The PSR states:

The subject presented with symptoms of depression, lack of sleep and anxiety. There was no psychosis at this time and the subject was diagnosed with depression. Dr. Abouelnasr suggested the subject be prescribed with an antidepressant, cipralex, 10 mgs and within three weeks 20 mgs if there are no side effects. Dr. Abouelnasr also suggested that anger management may be helpful as these types of situations usually involve anger of some sort. Dr. Abouelnasr recommended the subject receive supporting psychotherapy to deal with his emotions and stress and hopefully this, in addition to the medication, will help improve his symptoms of depression. The subject informed the writer that, other than his involvement with Dr. Abouelnasr, he has never attended with a mental health professional. He noted that he believes counselling in the future will benefit him to deal with his issues of anxiety.

[34] The PSR noted that Mr. M.E. continued to deny committing the offences before the court “claiming that his son framed him”.

The Victim Impact Evidence

[35] In her victim impact statement, C.T. expressed her sense of how she has been affected by the abuse at the hands of her step-father. She has had few successful personal relationships, she has an instinctual distrust of others, she can be cynical interpreting events in the light of her experience; there has been emotional disturbance and family relationship disruption.

[36] P.E.’s victim impact statement records his distrust of others, impairment of ability to concentrate and make decisions, disrupted sleep, continuing problems with the arm broken by his father, and time off from work. In P.E.’s words, “[t]his crime has taken away my childhood”.

Positions of the Parties

[37] Having regard to the principle of totality in sentencing, Crown counsel submitted that a global sentence in the range of 7 to 8 years would be appropriate. Mr. Stokes emphasized the principles of general and specific deterrence as well as denunciation.

[38] As to the convictions for sexual crimes, the three rapes of C.T., counsel submitted that the offender must be severely punished for preying on an innocent child. Given the presence of significant aggravating factors, and the absence of meaningful mitigating circumstances, the sentences upon count #’s 8, 9 and 11 should result in 6 to 7 years’ imprisonment. As to aggravating features, Mr. Stokes noted the complainant’s age, the prior record for sexually assaulting a female child, the offender’s breach of trust, the contextual pattern of physical abuse, and the lasting impact upon the victim.

[39] Crown counsel submitted that an additional 1 to 2 years’ incarceration to be served consecutively, having regard to totality, would be a fit disposition for the seven non-sexual offences. Counsel emphasized in particular the persistent pattern of brutality, the young age of the victims, the parental breach of trust, and the permanent physical and emotional and psychological injury.

[40] On behalf of the offender, Mr. Singh acknowledged that the offences for which M.E. has been convicted are “serious” crimes deserving of a penitentiary term. Counsel submitted that a term of imprisonment of 2 ½ to 3 years would be an appropriate sentence.

[41] Mr. Singh was hard-pressed to identify mitigating circumstances. Counsel referred the court to the offender’s age, his ongoing health problems, and his difficult childhood. The offender’s prior criminal record was referred to as “somewhat dated”.

[42] Defence counsel submitted that because of the offender’s age and because he is living alone, and given the passage of time without reoffending, he was a suitable candidate for rehabilitation. He presents no current risk to the community.

[43] In exercising his statutory right of allocution pursuant to s. 726 of the Criminal Code, the offender asked the court for “mercy”.

ANALYSIS

[44] Childhood is expected to be very much about adventures, learning, fun, exploration and defining a sense of self. Memories of childhood should be good ones eagerly recalled – a time of development and innocent happiness with parental protection from harm and negative influences. The complainants here experienced the nightmare of years of abuse at the hands of a parent – a childhood worth forgetting.

[45] The offender was a mean bully. He systematically brutalized his children subjecting them to violence and degradation. Any adult woman in the household was physically abused. The children had no meaningful escape from the offender’s tyranny. There was little or no contact with relatives, friends or the health care system. The only real survival prospect was that the complainants were in the ordeal together.

[46] General deterrence is the paramount consideration in cases of physical and sexual abuse of children by a parent. All too often what goes on behind the closed doors of the home is invisible to those who might be in a position to help. Children, vulnerable members of society, must be protected by severe denunciatory sentences from the courts in instances of systemic abuse.

[47] A civilized society accepts that “children are entitled to look for protection to their parents” and parental brutality toward children “cannot and will not be tolerated” by the courts: R. v. Cudmore (1972), 1972 493 (ON CA), 5 C.C.C. (2d) 536 (Ont. C.A.), at p. 538 . “The criminal law will decisively condemn and punish force that harms children, is part of a pattern of abuse, or is simply the angry or frustrated imposition of violence against children”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at p. 111.

[48] It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact: R. v. J.A., 2011 SCC 28, at para. 1. “Sexual assault is an evil” (R. v. D.A.I., 2012 SCC 5, at para. 1), destructive of family and innocence (R. v. D.D. (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.), at para. 45), and an inherently violent crime: R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 170; R. v. G.M., 1992 7399 (ON CA), [1992] O.J. No. 2304 (C.A.)(QL), at para. 17; Sentencing Guidelines Council (U.K.), “Sexual Offences Act 2003 – Definitive Guideline” (April 2007), at pp. 7, 19.

[49] In R. v. Stuckless (1998), 1998 7143 (ON CA), 127 C.C.C. (3d) 225 (Ont. C.A.), at p. 241, Abella J.A. (as she then was) stated:

I am unable to find a single reported appellate decision in recent years which does not view the sexual abuse of children as extremely serious, whether or not there is penetration.

Sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitive conduct, and represents the use of compulsion against someone who is defenceless.

[50] Predatory sexual contact with a child by a parent is a gross breach of trust, and an “odious” crime: R. v. Harrison (1993), 1993 8589 (ON CA), 84 C.C.C. (3d) 465 (Ont. C.A.), at p. 472.

[51] The exact nature of the sexual activity should be a key factor in assessing the seriousness of a sexual assault and should be used as the starting point from which to begin the process of assessing the overall seriousness of the offending behaviour: “Sexual Offences Act 2003 – Definitive Guideline”, at pp. 31-2. Without diminishing the gravity of the sexual assault of a child, there are varying degrees of intrusiveness of an offender’s behaviour. For example, the “presence or absence of collateral violence” must be considered in assessing the seriousness of the assault: R. v. W.W.M., (2006), 2006 3262 (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A.), at para. 14; Stuckless, at para. 42. Penetrative conduct aggravates the circumstances of the offence (Stuckless, at para. 42; R. v. F.P. (2005), 2005 23218 (ON CA), 198 C.C.C. (3d) 289 (Ont. C.A.), at para. 52) and has led to a guideline of 3 to 5 years’ imprisonment where an offender in a position of trust has sexual intercourse with a child: R. v. B.(J.) (1990), 36 O.A.C. 307 (C.A.), at para. 5 (principle aff’d: R. v. G.A.G. (2006), 206 O.A.C. 134 (C.A.), at para. 13; R. v. Gianfelice, [1992] O.J. No. 2075 (C.A.)(QL), at p. 2; W.W.M., at paras. 14, 16); R. v. S.M.H., 2011 ONCA 215, at para. 17 (leave to appeal refused, [2011] S.C.C.A. No. 347); R. v. Mino (1985), O.A.C. 81 (C.A.), at paras. 4-5.

[52] Given M.E.’s antecedents, specific deterrence remains a legitimate concern. He has no insight into his criminal behaviour and has not accepted responsibility for his crimes. The 1992 and 2005 criminal convictions respecting offences committed after those before this court remain relevant to understanding the offender’s character and risk to the community.

[53] A sentencing court may take into account in the exercise of its sentencing discretion, not as an aggravating feature of sentencing, but as the absence of a factor entitling sentence reduction, and as relevant to whether restorative objectives can be satisfied in a particular case, an offender’s lack of remorse and acceptance of responsibility for his or her crime: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 113; R. v. Valle-Quintero (2002), 2002 45123 (ON CA), 169 C.C.C. (3d) 140 (Ont. C.A.), at p. 164; R. v. A.(K.) (1999) , 1999 3756 (ON CA), 137 C.C.C. (3d) 554 (Ont. C.A.), at p. 570.

[54] An accused person may not, however, be punished for exercising his right to have guilt decided by a trial : R. v. Valentini (1999), 1999 1885 (ON CA), 132 C.C.C. (3d) 262 (Ont. C.A.), at paras. 81-3; G.A.G., at para. 12; R. v. Nash, 2009 NSCA 7, at paras. 29-33.

[55] While a plea of guilt constitutes a public acceptance of responsibility, a finding of genuine remorse on the offender’s part tends to mitigate in his favour: Proulx, at para. 113. An offender who remains unrepentant and who continues to deny the offences occurred, and exhibits little or no insight into the nature of his behaviour and its consequences, is undeserving of such mitigation: R. v. R.N.S., 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 18; R. v. C.B., 2008 ONCA 486, at para. 57.

[56] The offender is 68 years of age. The age of an offender is often referred to in amelioration of punishment: R. v. Duncan, [2005] O.J. No. 4804 (C.A.) (QL), at para. 3; R. v. W.(S.), [1998] O.J. No. 2867 (C.A.)(QL), at para. 8; Gianfelice, at pp. 243-4; R. v. MacNaughton, [1997] O.J. No. 4102 (C.A.)(QL), at para. 7; R. v. Anderson (1998), 1998 15019 (BC CA), 128 C.C.C. (3d) 478 (B.C.C.A.), at paras. 3, 5. Advanced age ordinarily merits some consideration as a mitigating factor both because the older a person is the harder it is to serve a sentence, and the less is that person’s life expectancy in prison: R. v. R.(A.) (1994), 84 C.C.C. (3d) 184 (Man. C.A.), at p. 191.

[57] “[T]he mere fact of delay, particularly in cases of sexual abuse should be approached with caution as a feature of mitigation”: R. v. H., [2011] EWCA Crim 2753, at para. 28. Indeed, in the absence of a demonstration of remorse and acceptance of responsibility, the passage of time cannot mitigate in cases of historical sexual abuse: R. v. Brown, [2006] O.J. No. 5276 (C.A.)(QL), at para. 14. The same must be said respecting historical cases of a pattern of physically assaultive conduct.

[58] The ill health of an offender is a factor worthy of some consideration in sentencing: R. v. Kluke, 2008 ONCA 181, at paras. 3-4; R. v. Eshaque, [2002] O.J. No. 511 (C.A.)(QL), at para. 1; R. v. Bansch, [1997] O.J. No. 1691 (C.A.)(QL), at para. 3; R. v. Scobie, 1997 1292 (ON CA), [1997] O.J. No. 2286 (C.A.)(QL), at para. 13; R. v. L.J.S., [1997] O.J. No. 2286 (C.A.)(QL), at paras. 10, 13; R. v. Aitkens, [1993] O.J. No. 3995 (C.A.)(QL), at para. 1; R. v. Lysack, (1988) 26 O.A.C. 338 (C.A.), at pp. 339-340; W.(S.), at para. 8; Gianfelice, at pp. 243-4; Anderson, at para. 3; R.(A.), at p. 191; R. v. Dinn (1993), 1993 7745 (NL CA), 104 Nfld. & P.E.I.R. 263 (Nfld. C.A.), at p. 267. Whether leniency on account of precarious physical health is warranted becomes very much a case-specific inquiry. Mr. M.E., at age 68 years, suffers from various physical ailments.

[59] However, the Federal correctional authorities “are obliged under the Corrections and Conditional Release Act to provide inmates with essential health care”: R. v. Aquino, [2002] O.J. No. 3631 (C.A.)(QL), at para. 2. While the increased hardship of suffering significant health problems is a factor to be considered in sentencing, it does not amount to an exceptional circumstance in the absence of evidence that the health concerns cannot be addressed in the correctional environment: R. v. Drabinsky and Gottlieb (2011), 2011 ONCA 582, 274 C.C.C. (3d) 289 (Ont. C.A.), at paras. 169-170 (appl’n for leave to appeal filed by Drabinsky, [2011] S.C.C.A. No. 491); R. v R.J., 2009 ONCA 138, at para. 16; R. v. Weig, 2009 ONCA 5237, at para. 5; R. v. J.G.R., 2009 ONCA 116, at paras. 14, 16; Duncan, at para. 4; R. v. Taipow, 2005 39666 (ON CA), [2005] O.J. No. 4643 (C.A.)(QL), at paras. 4, 7-8; R. v. MacDonald, [2001] O.J. No. 4926 (C.A.)(QL), at para. 1.

[60] The aggravating features of the non-sexual assaultive abuse are manifestly apparent including:

(1) the young age of the victims ranging from 7 to 16 years

(2) the prolonged duration and persistent frequency of the assaults occurring in the home

(3) the offender breached the position of trust he held as a parent

(4) the nature of the assaultive behaviour including punches, slaps

and hitting with objects

(5) injuries were sustained in the beatings

(6) C.T. has a permanent scar and P.E. chronic problems with his

arm as a consequence of the offender’s actions

(7) the enduring and profound psychological and emotional impact of the abuse.

[61] The aggravating features of the offender’s sexual molestation of his step-daughter include the following:

(1) the offender commenced a pattern of non-consensual sexual

familiarity with the complainant when she was only 12 years of

age

(2) the sexual abuse progressed to three instances of rape

(3) the complainant was a virgin

(4) the sexual intercourse was unprotected

(5) the offender, as the victim’s stepfather, occupied a position of

trust and breached that trust for his own selfish sexual gratification

(6) earlier in the decade, the offender was convicted and sentenced

for raping a different, 10-year-old step-daughter

(7) the sexual abuse occurred in the victim’s own home

(8) in two of the rapes, the offender took advantage of the child’s

mother being out of the home in the hospital

(9) the violent final rape, following a physical attack on the victim’s

mother, included an interrogation and beating

(10) the long-term impact of the sexual abuse upon the victim.

[62] Apart from recognition that the offender has not offended in the past two decades, and has honoured the conditions of his judicial interim release, little can be advanced in mitigation on his behalf.

[63] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In sentencing for multiple offences, some properly attracting consecutive sentences, the combined sentence must not be unduly long or harsh.

[64] In R. v. Paul (1982), 1982 179 (SCC), 67 C.C.C. (2d) 97 (S.C.C.), at p. 107, the court noted that “each offence should at the outset be punished individually and in proportion to its seriousness”. In the later case of R. v. C.A.M. (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327 (S.C.C.), the court stated at p. 349:

In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the "totality principle". The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A. Thomas describes the principle in Principles of Sentencing (2nd ed. 1979), at p. 56:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45:

The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate "just and appropriate". A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above the normal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushing sentence" not in keeping with his record and prospects.

[65] Accordingly, in light of these pronouncements, the court should not, as suggested by some authorities (R. v. Jewell and Gramlick (1995), 1995 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont.C.A.), at p. 279; R. v. Hatch, 1979 4379 (NS CA), [1979] N.S.J. No. 520 (C.A.)(QL), at paras. 5-7), first determine the total sentence to be imposed and next parcel out sentences with respect to each offence “which result in that total sentence”. In other words, it is an error to work backwards from a global sentence without first determining the appropriate sentence for each crime: R. v. Hutchings, 2012 NLCA 2, at paras. 18-84; R. v. Adams (2010), 2010 NSCA 42, 255 C.C.C. (3d) 150 (N.S.C.A.), at paras. 56-60; R. v. Draper (2010), 2010 MBCA 35, 253 C.C.C. (3d) 351 (Man. C.A.), at paras. 25-34.

[66] This ensures, with final adjustment of concurrent/consecutive determinations to honour the totality principle of overall proportionality, that the effect of individual sentences will be preserved should appellate review remove elements of the overall blended or merged sentence.

[67] In R. v. Tasew, 2011 ABCA 241, at para. 74, Watson J.A. (dissenting in the result) observed that:

...the principle of totality reflected in s. 718.2(c) of the Code does not contemplate some sort of routinized rounding down to sentences leading to results that are fundamentally unrelated to proportionality.

[68] In the Draper case, at para. 30, the court stated:

That procedure is for the sentencing judge to first determine whether the offences in question are to be served consecutively or not. Second, if they are to be served consecutively, then an appropriate sentence for each offence should be determined. Third, the totality principle should be applied to the total sentence thereby arrived at to ensure that the total sentence is not excessive for this offender as an individual. In effect, the sentence must be given a “last look.” Fourth, if the judge decides that it is excessive, then the sentence must be adjusted appropriately. In some cases that might require a significant adjustment.

[69] The court in Hutchings, at para. 84, recommended this approach:

I would state the following as guidelines for the analytical approach to be taken henceforth:

When sentencing for multiple offences, the sentencing judge should commence by identifying a proper sentence for each offence, applying proper sentencing principles.
The judge should then consider whether any of the individual sentences should be made consecutive or concurrent on the ground that they constitute a single criminal adventure, without consideration of the totality principle at this stage.
Whenever, following the determinations in steps 1 and 2, the imposition of two or more sentences, to be served consecutively, is indicated, the application of the totality principle is potentially engaged. The sentencing judge must therefore turn his or her mind to its application.
The approach is to take one last look at the combined sentence to determine whether it is unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender.
In determining whether the combined sentence is unduly long or harsh and not proportionate to the gravity of the offence and the degree of responsibility of the offender, the sentencing court should, to the extent of their relevance in the particular circumstances of the case, take into account, and balance, the following factors:

(a) the length of the combined sentence in relation to the normal level of

sentence for the most serious of the individual offences involved;

(b) the number and gravity of the offences involved;

(d) the impact of the combined sentence on the offender's prospects for rehabilitation, in the sense that it may be harsh or crushing;

(e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of the offences and the offender's degree of responsibility.

Where the sentencing judge concludes, in light of the application of those factors identified in Step 5 that are deemed to be relevant, that the combined sentence is unduly long or harsh and not proportionate to the gravity of the offences and the offender's degree of responsibility, the judge should proceed to determine the extent to which the combined sentence should be reduced to achieve a proper totality. If, on the other hand, the judge concludes that the combined sentence is not unduly long or harsh, the sentence must stand.
Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it would otherwise have been.
In imposing individual sentences adjusted for totality, the judge should be careful to identify:

(a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality;

(b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and

(c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced.

Finally, the sentencing judge should indicate whether one or more of the resulting sentences should be further reduced to reflect any credit for pre-trial custody and if so, by how much.

[70] It is within the discretion of a trial judge to make a prison term run consecutively or concurrently: R. v. Keough, 2012 ABCA 14, at paras. 16, 31. While “[t]he question as to when offences should be treated as concurrent as opposed to consecutive is not an easy one” (R. v. Maroti (2010), 2010 MBCA 54, 256 C.C.C. (3d) 332 (Man. C.A.), at para. 12), the approach should remain flexible with a sentencing judge exercising a discretion with “first-hand knowledge of the case”: R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, at para. 46.

[71] Consecutive sentences should not normally be imposed when the individual counts have a sufficiently close connection arising from what in reality is the same incident or transaction: R. v. Maroti, at paras. 12-24; R. v. Chisholm, 1965 211 (ON CA), [1965] 4 C.C.C. 289 (Ont. C.A.), at p. 291 (approved in Keough, at para. 61; R. v. Traverse (2008), 238 C.C.C. (3d) (Man. C.A.), at para. 45); H, at para. 127. In Chisholm, the court stated:

We do not think that, in the circumstances that exist here, there should be concurrent sentences. As I have already stated there was no relationship between any of these four robberies. If sentences were to be concurrent in such cases, that would almost be an inducement to a criminal to not refrain from crimes of the same sort or even of different sorts, committed at times closely related to one another. He would reason that, if he were caught on the first one, any sentence that he would get on the others would likely be concurrent and his liberty not further restrained because of his committing these other offences.

[72] Dealing first with the sexual crimes, the February 23, 1989 rape (count #9) by a rescidivist offender, in a breach of trust context ruining his step-daughter’s virginity, warrants a 6-year term of imprisonment. The additional sexual offences (count #s 8 and 11), two further rapes, one with gratuitious violence, are separate crimes, not part of a spree or unbroken transaction. Each warrants a further 1-year term consecutive to one another and to the sentence on count #6: see R. v. White, Dubeau and McCullough (1974), 1974 1495 (ON CA), 16 C.C.C. (2d) 162 (Ont. C.A.), at p. 174. Put differently, an 8-year global term is proportionate to the offender’s moral blameworthiness and the gravity of his sexual offending.

[73] Turning to the crimes of physical violence against the three victims, a fit disposition would be two years’ incarceration respecting the crimes against P.E. (count #s 2, 3), C.T. (count’s 7, 13), and A.E. (count #s 16, 17). In the ordinary course, the sentences, involving separate victims and delicts, would be consecutive to one author (R. v. Robert (1970), 1970 1773 (ON CA), 16 C.R.N.S. 7 (Ont. C.A.), at pp. 8-9) and consecutive to the sexual crimes. The hundreds of criminally assaultive episodes properly attract a 6-year sentence.

[74] However, a global sentence of 14 years is, in the context of totality, an unduly harsh sentence disproportionate to the offender’s overall criminality. Accordingly, some compression of the punishment to be meted out is necessary. That is best accomplished by making the sentences for the sexual crimes concurrent to one another and the sentences for the non-sexual crimes concurrent to one another but consecutive to the sexual offences’ term of incarceration.

[75] Sexual offences:

count #9

6 years

count #8

1 year concurrent

count #11

1 year concurrent

[76] Non-sexual offences:

count #2

2 years consecutive to sentence imposed on count #9

count #3