ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 0477/11

DATE: 20130612

W A R N I N G

A non-publication order in this proceeding has been issued pursuant to subsection 486.4 of the Criminal Code.

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

• and -

R.S.

Darren J. Hogan, for the Crown

David Maubach, Victoria Rivers, for the Defendant

HEARD: April 29, 2013

REASONS FOR SENTENCE

Harvison Young J.

[1] R.S. was convicted of sexual interference (2 counts) and sexual assault (2 counts) following a trial before me sitting as a judge without a jury. Conditional stays were entered on a number of related counts on the indictment pursuant to the Kienapple principle.

[2] The facts are set out in great detail in my reasons for judgment and may be briefly summarized here.

[3] The complainants are three young boys, two of whom, C.D. and D.D., were his stepsons, and the youngest, D.S., his biological son. The indictment covers the period from January 1, 2008 until September 15, 2009.

[4] C.D., the oldest, was born on […], 2002, and was thus roughly between five-and-a-half and seven during the period covered by the indictment. D.D., born […], 2003, ranged from about four-and-a-half to six during the same period. D.S., the youngest, was born on […], 2005, and ranged in age from about two-and-a-half to five during this period.

[5] The sexual interference convictions arose out of two incidents in which R.S. “sucked and smacked” the boys’ penises. One of these occasions involved the two younger boys, D.S. and D.D., witnessed by their older brother C.D. In the other incident, C.D. was similarly assaulted along with his two brothers. The sexual assault convictions were based on two incidents in which R.S., to use C.D.’s language put his penis in his “bum”. It is clear as my reasons indicate that I was satisfied beyond a reasonable doubt that R.S. did put his penis in C.D.’s “bum”, to use his language, and also that R.S. ejaculated as evidenced by the diagram drawn by C.D. that shows dripping from that area.

[6] R.S. has been in custody on these charges[^1] since December 15, 2010. The convictions were entered on December 19, 2012 and the sentencing hearing was scheduled for January 16, 2013.

[7] On February 22, 2010, Bill C-25, the Truth in Sentencing Act (the “Act”) came into force. Section 719(3) of the Criminal Code, as amended by the Act, provides that the court “shall limit any credit [for time served] to a maximum of one day for each day spent in custody”, but s. 719(3.1) provides that “if circumstances justify it”, credit of up to 1.5 days per day spent in custody may be granted. As the Court of Appeal recently held in R. v. Clarke, 2013 ONCA 7, the new provision, properly construed, applies to persons charged since it came into force, even if the offences were committed before it came into force. R.S., who was charged after the Act came into force in relation to these offences which were committed before it came into force, seeks a declaration that the Act is of no force and effect against him insofar as this sentencing is concerned. He submits that the application of this provision to him would constitute a violation of his rights under article 11(i) of the Charter.

[8] Accordingly, there are three issues to be addressed in this appeal:

a. What is the appropriate global sentence?

b. Would the application of the Act to R.S. violate his s. 11 (i) Charter rights?

c. What credit is to be applied for R.S.’s time in presentence custody?

[9] I will address these in turn.

What is the appropriate global sentence?

[10] The Crown seeks a global sentence of 9 years. The defence submits that a sentence in the range of 5-5.5 years would be appropriate.

[11] R.S. is a 39 year old man with a grade 8 education who grew up in a poor environment, apparently raised by his mother and step father. He developed alcohol problems at an early age. His criminal record shows some 21 entries on his criminal record. Many of these entries relate to theft (e.g. over $1000) and failures to comply. He had one robbery conviction in 1995 with respect to which he was sentenced to 3 years and 4 months, which is the longest sentence he has so far received. The entries also include a number of impaired driving convictions. There are a number of assault causing bodily harm entries as well, the most recent (May, 2009 and March, 2010) being the ones in which the victim was E. D., the mother of the three boys. He has also been recommitted for violating the terms of his statutory release on two occasions (in September 2002 and July 2003). There are, notably, no prior offences of a sexual nature and none against children.

[12] Section 718 of the Criminal Code sets out the fundamental purpose of sentencing and the objectives which the sentence should attempt to achieve. These objectives include denunciation, general and specific deterrence, rehabilitation, and the promotion of a sense of responsibility in the offender and acknowledgement of the harm done to victims and the community. Counsel agree that, for crimes of this nature, general deterrence is the paramount consideration.

[13] Mr. Maubach on behalf of R.S. submits that the case law supports a range of 5 to 5.5 years in these circumstances. The Crown submits that the range is much higher, relying on the case of R. v. D.D. , 2002 44915 (ON CA), [2002] O.J. No. 1061 (Ont. C.A.). In that case, Moldaver J.A. stated para. 44:

…as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. (supra para. 44).

[14] As the defence submitted, however, the factual context of D.D. supra consisted of a pattern of abuse that included numerous victims over substantial periods of time. Other cases referred to me by the Crown also have elements that are absent here, for example, in R. v. R. S. [2005] O.J. No. 5181, in which the Court of Appeal imposed a sentence of nine years where the respondent had “…subjected his children to a reign of terror. He not only sexually assaulted one child and repeatedly raped another child, but beat and humiliated the children and threatened them with a loaded firearm” (para. 1).

[15] Having said that, many of the cases referred to me by the defence are cases with very different facts or circumstances, such as guilty pleas: see, e.g. R. v. W.Q. 2006 21035 (ON CA), [2006] O.J. No. 2491 (Ont. C.A.), cases involving only one victim: see R. v. D.M. [2012] ONCA 894, or cases where the assault falls short of sexual intercourse: D.M., supra.

[16] Two points may be made about the sentencing range in cases involving the sexual assault of children. First, the range has increased in recent years, with D.D. supra, most frequently cited as marking the shift. Second, the range of appropriate sentences for sexual interference or sexual assault of children may vary widely. An isolated incident of sexual touching by a person not in a position of trust is at a very different point on the spectrum than the sort of abuse described by Moldaver J.A. in D.D., supra. Determining the appropriate global sentence requires a consideration of all the particular circumstances and aggravating and mitigating factors.

[17] There are a number of serious aggravating circumstances in the present case. R.S., as father and step-father, was in a position of trust. As a parent, he, along with the childrens’ mother, was one of the two people most directly and fundamentally responsible for the care of these young boys and they were abused in their home where all children deserve to feel most safe and secure. It is hard to conceive of a more egregious violation of a position of trust.

[18] The age of these young boys is another aggravating factor. They ranged between 2.5 to 7 during the period covered by the indictment. The fact that the three boys were all sexually abused is an additional aggravating factor. Moreover, the “sucking and slapping” incidents took place as group events, with both or all three boys being made to participate. In addition, the counts relating to C.D. of forced anal intercourse constitute particularly aggravating conduct.

[19] Mr. Maubach urged the court to find that these incidents did not constitute patterns of abuse in the sense referred to by Moldaver J.A. in D.D., supra but were rather confined to the very stressful period for the family after R.S.’s release from prison in May, 2009 shortly after the death of his daughter, S., from leukemia, during which R.S. was drinking excessively.

[20] While the evidence does not support a finding of a pattern of abuse continuing for any length of time as in D.D., supra or other similar cases, nor does it support a finding that these were isolated events. There were a number of incidents as reflected in the counts upon which R.S. has been found guilty.

[21] Another aggravating factor is R.S.’s extensive criminal record, although as I have noted he has no prior convictions for sexual assault or for any offences against children.

[22] No victim impact reports were filed. I do not infer from the absence of such reports that the impact has or will be minimal. The effect on C.D., in particular, was evident from his evidence and particularly the fact that he was unwilling to disclose the assaults which he experienced for a significant period of time. These boys struck me as bright, appealing and lively children who have been undoubtedly marked forever by these assaults and by the fact that they were committed by one of the two people upon whom they were so dependent for the necessities of their everyday lives.

[23] I do note that it was clear from the evidence that the child protection authorities were involved with this family before any of these allegations arose and for reasons quite apart from them. The boys have, sadly, faced many challenges in their young lives, quite apart from the assaults for which R.S. is being sentenced. They were already particularly vulnerable given their unfortunate circumstances and it is hard to believe that these assaults have not made already difficult lives much worse, or that their effects will not continue to manifest themselves over the years to come.

[24] As far as mitigating factors are concerned, I have noted the fact that R.S. had a difficult childhood marked by alcohol abuse on the part of his mother and that he was apprehended by child protection authorities for a period of time. While he was in custody prior to being charged with the present offences, he availed himself of all the AA programming that he could as the certificates filed with the court indicate. While he was in Brampton OCI, he was diagnosed with ADHD. A letter from Ann McManamen, MA, MSW documents his attempts, during his incarceration in relation to the assaults on Ms. D. from May-Dec 2010, to deal with his problems. She wrote that he “took full responsibility for his violent and abusive behaviours, and benefited enormously from the group”. R.S. also attended AA meetings.

[25] While he was in the Toronto East Detention Centre, R.S. participated in religious and spiritual services. I am satisfied that R.S. has made genuine efforts to address his substance abuse issues. This is a mitigating factor to the extent that alcohol likely played some role in the abuse of these children.

[26] Having said that, R.S. did not plead guilty to these charges. This is, of course, not an aggravating factor, but he is not entitled to the mitigating effect that a guilty plea would have. He has not accepted responsibility or shown any remorse for his offences in the course of these proceedings.

[27] Taking all of these factors, as well as the totality principle, into consideration, I have concluded that a global sentence of 7 years is appropriate. I will return to the breakdown of sentence by count at the end of these reasons.

Would the application of the Act to R.S. violate his s. 11 (i) Charter rights?

[28] As indicated above, R.S. seeks a declaration that the Act is of no force and effect against him because its application to him in respect of these offences would violate his Charter rights pursuant to section 11(i) of the Charter which provides that:

S. 11 Any person charged with an offence has the right

if found guilty of the offence and if the punishment for the offence has been varied between the time of commission of the offence and the time of sentencing, to the benefit of the lesser punishment.

[29] Section 5 of the Truth in Sentencing Act provides as follows:

Subsections 719(3) to (3.4) of the Act, as enacted by section 3, apply only to persons charged after the day on which those subsections come into force.

[30] As I mentioned at the outset of these reasons, R.S. committed these offences before the Act came into force. He was, however, charged after it came into force.

[31] The difference to R.S. is significant in this case. He has spent roughly 30 months in custody on these charges to date. Under the previous provisions he could have obtained credit for 60 months had he been granted credit on a 2:1 basis. Pursuant to the new provisions of the Act, he could receive a maximum credit of 43.5 months if he were to receive credit for dead time on a 1.5:1 basis. Under the new provisions, he could receive up to 1.5:1 credit, or (most likely) something in between 1:1 and 1.5:1.

[32] Until the Court of Appeal released its decision in R. v. Clarke on