R v JWH
Reasons for Decision
REASONS FOR DECISION
August 2 nd , 2012
Quinlan, J. (Orally):
OVERVIEW
[ 1 ] On April 13, 2010, J.W.H. was found guilty after trial of sexual exploitation, sexual assault, incest and assault of his daughter, J. He was acquitted of forcible confinement and two counts of uttering threats.
[ 2 ] The Crown sought a court-ordered assessment pursuant to s.752.1 of the Criminal Code . [1] Following a return of the assessment report, the Crown advised that the consent of the Attorney General for Ontario was being sought to bring an application under s.753. Consent was given and Mr. H. is now before me on an application to have him declared a dangerous offender.
[ 3 ] The predicate offences span the years from 2006 to 2009. On July 2, 2008, the Tackling Violent Crime Act , [2] came into effect and amended the dangerous offender provisions of the Criminal Code . As noted in R. v. D.M.L , [3] the amendments make proof of dangerous offender status easier. The discretion not to find a person a dangerous offender, if the criteria in the Criminal Code are met , is removed. In addition, the amendments give the judge the discretion to impose a long-term supervision order (LTSO) on a dangerous offender, instead of an indeterminate sentence. Under the pre-July 2008 regime (old regime) and the amended regime (new regime), the route to the LTSO is similar.
[ 4 ] In view of the offence dates, I must determine which regime applies. If the old regime applies and I find that Mr. H. meets the criteria of a dangerous offender, I must determine if there is a reasonable possibility of eventual control in the community of Mr. H.’s risk of reoffending. If the new regime applies, and I find that Mr. H. meets the necessary criteria, I must declare him a dangerous offender. Then I must determine if I am satisfied that there is a reasonable expectation that a lesser measure other than an indeterminate sentence will adequately protect the public against the commission by Mr. H. of a serious personal injury offence.
[ 5 ] The Crown contended that:
a. Mr. H. meets all of the criteria of a dangerous offender under ss. 753(1)(a)(i), 753(1)(a)(ii) and 753(1)(b);
b. The new regime should apply, requiring the court to declare Mr. H. a dangerous offender; and
c. An indeterminate sentence of imprisonment should be imposed: there is no reasonable expectation that a lesser measure would adequately protect the public.
[ 6 ] On behalf of Mr. H., the defence conceded that the offender has met the statutory criteria to be found to be a dangerous offender under ss. 753(1)(a) and (b) . The defence contended, however, that:
a. The old regime should apply;
b. There is a reasonable possibility of eventual control in the community; and
c. I should exercise my discretion to designate Mr. H. a long-term offender.
[ 7 ] The Crown filed correctional records relating to Mr. H.’s two previous federal incarcerations for sexual offences. Also before me were the assessment report of Doctor Mark Pearce, transcripts of previous proceedings, Mr. H.’s criminal record, a Gladue Report, information regarding institutional programs and victim impact statements.
[ 8 ] The court heard evidence from Dr. Mark Pearce, a psychiatrist, and Lawrence Taylor, a federal parole officer.
PREDICATE OFFENCES
[ 9 ] J.’s parents separated when she was quite young. She grew up not knowing her biological father, Mr. H. She lived with her maternal grandparents from the time she was in grade four. In 2005, when she was about 14, J. had the chance to meet her father. She was excited. J. eventually talked her mother into letting her move in with him.
[ 10 ] In the summer of 2006, when J. was 15, she moved in with Mr. H. They lived together at various residences in and around the City of Orillia until March 17, 2009, when J. called police and Mr. H. was charged with assaulting her.
[ 11 ] The sexual relationship between Mr. H. and J. began shortly after she moved in with him. Mr. H. took J. to a motel. J. testified that she was not expecting what happened to happen. They “got cuddly”; her father fondled her and had vaginal sex with her. She was too scared to say anything during the course of this first sexual encounter.
[ 12 ] J.’s evidence was that she did not feel she had a choice about continuing to have sex with her father; he just kept doing it. The sex was regular, at times almost daily, unless her father was out all night “partying it up.” Their relationship was like that of boyfriend and girlfriend, not father and daughter.
[ 13 ] On one occasion, Mr. H. performed anal intercourse on J. On another, when he began to anally penetrate her, she “freaked” and he did not persist. Mr. H. attempted anal intercourse on several other occasions but, when J. resisted, Mr. H. was content with it “her way,” that is, vaginally. J. performed oral sex on her father a couple of times. Mr. H. occasionally digitally penetrated her.
[ 14 ] The relationship between J. and her father was marred by arguments. Mr. H. became angry if J. was late from school, accusing her of screwing around with boys. J., in turn, became angry with her father for being with other women. It upset J. that her father would have sex with other women and then with her on the same night.
[ 15 ] On March 17, 2009, J. wanted to go out with her friend. She had left her cell phone with Mr. H. and wanted to retrieve it before she went out. Mr. H. was in the apartment of another woman. J. went to that apartment, got her cell phone and went back to the apartment she shared with her father to change to get ready to go out. Mr. H. returned to their apartment, yelling and screaming, accusing J. of trying to control him over his drinking and his attendances at another woman’s apartment while J. was at work. J. told her father, “If you shove your dick inside me, then you shouldn’t be at another girl’s place.”
[ 16 ] Mr. H. reacted by pushing J. She tripped over a table. He threw a piece of board at her and chased her into the bedroom and the bathroom. Mr. H. got on top of J. She kicked her father to get him off her. He started to strangle her. J.’s nose started bleeding. She was coughing and “puking up blood.”
[ 17 ] When J.’s friend knocked at the door, J. was able to run out of the apartment. She made a hang-up call to 911. Mr. H. pursued J. down the stairs but she was able to get away.
[ 18 ] Police officers who attended found the apartment in a state of disarray. A board was on the floor. They saw bruises on J.’s nose, face and leg and scratches to her face. Blood was crusted around J.’s nose and lips and her nose was starting to swell.
[ 19 ] Police saw blood streaks on the hands of Mr. H., who was confrontational, yelling and swearing at the police. Both J.’s friend and the police saw symptoms consistent with alcohol consumption by Mr. H.
[ 20 ] J. initially told police only about the physical assault perpetrated on her by her father. Days later, her mother, who unbeknownst to J. had been physically and sexually abused by Mr. H. more than ten years earlier, told J. that her father had been in jail and he could have diseases. J.’s mother asked J. if she needed to see a doctor. J. said that she did. After, J. told police that her father had had a sexual relationship with her.
[ 21 ] Mr. H. was arrested on March 17, 2009, and has been in custody since then.
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CONCLUSION
[ 308 ] I am satisfied beyond a reasonable doubt that an indeterminate period of detention is the least restrictive means by which to reduce the public threat posed by Mr. H. to an acceptable level. I declare Mr. H. a dangerous offender under ss. 753(1) (a)(i), 753(1)(a)(ii) and 753(1)(b) of the Criminal Code . I decline to exercise my discretion to declare him a long-term offender. I sentence him to an indeterminate period of incarceration in the penitentiary.
[ 309 ] Pursuant to s. 760 of the Criminal Code , I order that a copy of the report of Dr. Pearce and the testimony given by Dr. Pearce along with a transcript of these reasons be forwarded to CSC.
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- v. –
J.W.H.
DANGEROUS OFFENDER PROCEEDINGS
REASONS FOR DECISION
BEFORE THE HONOURABLE
JUSTICE E. QUINLAN
On AUGUST 2 nd , 2012, at BARRIE, Ontario
APPEARANCES:
S. Tarcza Counsel for the Crown
J. Bliss Counsel for Mr. H.
INFORMATION CONTAINED HEREIN
IS PROHIBITED FROM PUBLICATION PURSUANT TO
THE ORDER OF THE ONTARIO COURT OF JUSTICE
DATED APRIL 28 TH , 2009