ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-11-058
DATE: 2013-01-24
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. Kozak, for the Crown
- and -
P.B.K.
Mr. McCartney, for the Defendant
Accused
HEARD: November 28, 2012 at Thunder Bay, Ontario
Mr. Justice J.S. Fregeau
Reasons on Sentence
PUBLICATION BAN PURSUANT TO SECTION 486.4(1)
Introduction
[1] On April 16, 2012, the accused, P.B.K., pleaded guilty to a charge “That he…between the 1st day of July 2006 and the 31st day of October 2010, at the City of Thunder Bay, in the said Region, did have sexual intercourse with R.S. while knowing that R.S. was his biological granddaughter contrary to Section 155 of the Criminal Code”. The accused was found guilty on this date.
[2] Sentencing was adjourned and a Pre-sentence/ Gladue report was ordered. On November 28, 2012, a sentencing hearing was held. I reserved my decision on sentence. What follows is my decision as to sentence and the reasons for that decision.
The Facts
Circumstances of the Offence
[3] Counsel filed an Agreed Statement of Facts in support of the plea of guilty. The agreed facts are as follows:
R.S.(born […] 1986), is the biological granddaughter of P.B.K. (born […] 1946) (her mother is Mr. P.B.K.’ daughter V.).
The subject matter of this offence begins in 2006, when Ms. R.S. was 19 or 20 years old, and Mr. P.B.K. was 59 or 60, and ends in the fall of 2010 when they were 24 and 64, respectively.
R.S. came to live with her grandparents, P.B.K. and J.K., when she was 4 years old in about 1990 (her mother was living in Western Canada at the time). They looked after her throughout her upbringing, and she remained resident with them until 2010. They were initially living in Armstrong, Ontario, but eventually moved to Thunder Bay, Ontario. Mr. P.B.K. treated her well during her upbringing, and she recalls him being strict during her teenage years.
Ms. R.S. grew up experiencing firm discipline from Mr. P.B.K. for disobedience, which Mr. P.B.K. felt was required for the children in his care to maintain focus in their schooling.
She remained resident in the home into her early adulthood.
One evening while Ms. R.S. was 19 or 20, while the family was resident at P[…]Street, Mr. P.B.K. and Ms. R.S. were alone at home. He asked her if she wanted to sleep in his bed, and she did so. In the morning hours, he touched her on her breasts, and she then rose from bed and went to her own room and lay on her bed. A short time later, Mr. P.B.K. came to her room and lay down beside her. He touched her genital area under her clothing. She never agreed to the contact, nor did she expressly object to the contact.
They were always alone in the home when the sexual incidents occurred.
Every few weeks to a month, the Accused would again seek to touch the Complainant’s genitals or breasts.
In the course of the following year, sexual contact continued at intervals, eventually escalating to oral sex, and then full sexual intercourse when Ms. R.S. was 21. Condoms and, subsequently, a spermicide, were used at the suggestion of Mr. P.B.K.. Later, Ms. R.S. went on birth control pills.
Mr. P.B.K. and Ms. R.S. had full sexual intercourse approximately 86 times between 2006 and the fall of 2010.
Ms. R.S. reports that she lost her virginity to Mr. P.B.K..
Ending the relationship was discussed on several occasions, but this did not occur.
Mr. P.B.K. believed that Ms. R.S. was participating consensually in the sexual relationship (and in a November 2010 email to him, Ms. R.S. does describe the sexual relationship as having been “consensual”). However, in her statement to police, Ms. R.S. described that she was not comfortable with the onset of sexual contact with Mr. P.B.K..
No specific threats or violence were ever used by Mr. P.B.K. to obtain Ms. R.S.’s participation in the sexual relationship.
By the fall of 2010, Ms. R.S. had entered the nursing program at Lakehead University. In October 2010, Ms. R.S. moved out of her grandparents’ residence. Mr. P.B.K. wanted to meet with Ms. R.S. to discuss their situation and get her to come home, and he continued computer communications with her on this theme, but she would not move back.
When Ms. R.S. mentioned in an 8 November email that she’d spoken to her mother V. “about it,” Mr. P.B.K. was upset and replied that she could be charged as well, and probably removed from nursing, if the sexual relationship were revealed. During the first few weeks of November 2010, Mr. P.B.K. exchanged several emails with Ms. R.S.. Mr. P.B.K. threatened to reveal their sexual relation to officials of the nursing program if Ms. R.S. divulged anything to the authorities. He further reminded Ms. R.S. that in his experience as a Justice of the Peace, she was as guilty as him of having committed a crime and that she too would go to jail if she divulged any information to the authorities.
Mr. P.B.K. withdrew his threat several days later, and informed Ms. R.S. that he would not be speaking to the nursing program. He did however drop off an envelope at the nursing program addressed to Ms. R.S..
On 10 December 2010, Ms. R.S. complained to police. Mr. P.B.K. was arrested the same day, and held in custody for several days, before being released on a recognizance with conditions, inter alia, not to communicate with Ms. R.S., and there has been no further contact between them since that time.
These facts are accepted by the accused as substantially correct.
Circumstances of the Offender
[4] Mr. P.B.K. is a 66 year old Aboriginal man. He is a status member of Whitesand First Nation. Mr. P.B.K. had two half siblings and nine full siblings. The family lived in a small cluster of dwellings on a railway siding east of Armstrong, Ontario. Mr. P.B.K.’s father was employed as a sectionman by CN Rail; his mother was a homemaker.
[5] In his early years, Mr. P.B.K. enjoyed the benefits of a close extended family engaged in a traditional aboriginal lifestyle. The family home, in Mr. P.B.K.’s early years, was free of alcohol or substance abuse.
[6] At age six, Mr. P.B.K. was removed from his family and home and forced to attend the McIntosh Indian Residential School, south of McIntosh, Ontario on the CNR line. Mr. P.B.K. was required to attend this school ten months of the year for nine years. This was a traumatic event for Mr. P.B.K., who described a hostile environment, akin to a penal institution, where he had to spend an annual ten month sentence, far removed from the emotional nurturing that he had grown up with.
[7] During the seven years Mr. P.B.K. spent at this residential school, he was subject to harsh and excessive discipline and the loss of language, customs and culture. Mr. P.B.K. was not aware of the sexual abuse of students at the school while in attendance there, but did learn of it many years later. Mr. P.B.K. was himself the victim of sexual abuse, when at age 15, a member of the religious order that ran the school attempted to rape him on two successive nights.
[8] Mr. P.B.K. described his residential school experience as follows:
“How do you make a six year old understand that he has to go away and leave the love of mother and father to go into these ugly places that they sent us to? Overnight it’s a transition from a loving environment to the hostile environment of these horrible institutions. For me it was a lot of confusion and a lot of fear because all of a sudden I am taken from an environment that is loving and protective and literally overnight dumped into a place where I have to learn to fight to survive at six years old. The only peace I had was when I was at home. Otherwise it was ferocious.”
[9] Despite the challenges, Mr. P.B.K. excelled academically while in residential school, made some good friends and met his eventual and current wife, who attended a different residential school in the area. Mr. P.B.K. ended his residential school experience at age 15, having achieved a grade nine level.
[10] While Mr. P.B.K. was away at school, his parents moved into the community of Armstrong. Mr. P.B.K.’ parents began to experience domestic conflict and alcohol abuse. When Mr. P.B.K. was 28 years old, his mother died from exposure while intoxicated. Two years later, his father was killed when struck by a vehicle.
[11] Mr. P.B.K. met his wife when they were 14 years old. They married in 1971 and had seven children. They remain together and Mrs. J.K. remains supportive of her husband. Mrs. J.K. suffers from diabetes and is legally blind. She also suffers from a degenerative back condition. The P.B.K. live in a rental apartment in Thunder Bay. Mrs. J.K. is heavily reliant on Mr. P.B.K. to attend to her daily needs.
[12] During the early years of their marriage, the P.B.K. moved between the communities of Collins and Armstrong. Mr. P.B.K. consistently found employment of various kinds. Both Mr. and Mrs. J.K. developed alcohol issues. Mr. P.B.K. began abusing alcohol as a teenager which he suggests was a factor in his inability to maintain steady, consistent employment. While alcohol abuse was prevalent in the family home, the oldest daughter of the accused reports that the children were never abused and that there was always structure and rules in the home. Mr. P.B.K. overcame his alcohol issues in his mid- thirties, his spouse having done so one year earlier.
[13] In 1984, Mr. P.B.K. became a National Native Alcohol and Drug Abuse Program (NNADAP) worker for Whitesand First Nation. He worked in this position for three years, during which the family lived in Armstrong. Mr. P.B.K. also worked as a heavy equipment operator and qualified and was sworn in as a Native Justice of the Peace in 1993. However, he was never successful in acquiring a full time position as a Justice of the Peace.
[14] In addition to raising their own children, Mr. and Mrs. J.K. also had four of their grandchildren placed in their care, who they have raised to adulthood, one being the victim of this offence. The family moved to Thunder Bay in 1994, when R.S. was nine years old.
[15] During 2011, Mr. P.B.K. attended a series of counselling sessions with Dr. Julie Woit, Ph.D, R.S.W. of Thunder Bay. Dr. Woit reports that Mr. P.B.K. has actively participated in his therapy sessions and “…presents as extremely receptive and open to the exploration of content that may be beneficial in increasing his understanding of his present challenges and concerns”. Dr Woit also reports that Mr. P.B.K. “…has been guided through an exploration of the dynamics and/or variables that may have contributed to the situation for which he is presently facing charges”.
[16] Recently, Mr. P.B.K. has served as a public speaker in his capacity as a survivor of the Canadian residential school system. Mr. P.B.K. is described by Ms. Patty Hajdu, a Drug Strategy Coordinator with the Thunder Bay District Health Unit and a college sociology instructor, as “…an expert speaker with an excellent ability to engage audiences of all ages and backgrounds in a very emotional and complex subject.”
Impact on the Victim
[17] R.S., born […], 1986, now 26 years old, is the biological granddaughter of Mr. P.B.K.. She came to live with her grandparents when she was four years old, first in Armstrong and then moved with them to Thunder Bay in 1994, when she was nine years old. It is not disputed that Mr. and Mrs. J.K. assumed the role of father and mother to Ms. R.S. and fulfilled this role during her formative, adolescent, teenage and young adult years.
[18] Ms. R.S. was treated well by her grandparents, but perceives that during her adolescent and teenage years she was treated differently than her cousins being cared for in the home. Ms. R.S. advises that Mr. P.B.K. was the disciplinarian and that she had a very restrictive curfew, was forbidden to date and had her activities and social contacts restricted.
[19] Ms. R.S. reports that the incestuous relationship with her grandfather began when she was 19 or 20 years old and continued for approximately five years, ending in the fall of 2010. In September 2010, Ms. R.S. entered a Nursing Program at Lakehead University in Thunder Bay. Ms. R.S. first disclosed the relationship to a counsellor when being questioned about a decline in her grades. She was encouraged to remove herself from the family home. She did so on October 8, 2010.
[20] During the next couple of months, Ms. R.S. felt forced to relocate several times between various supportive environments with family and/or friends. Mr. P.B.K. had repeatedly contacted her during this period of time, both during school hours and while she was at home. Mr. P.B.K. urged Ms. R.S. to return home and cautioned her as to possible legal ramifications to them both if matters were reported. Mr. P.B.K. also threatened to reveal their sexual relationship to officials within the nursing program at Lakehead if Ms. R.S. reported it to the police. This latter threat was apparently withdrawn several days later. This ongoing unsolicited contact had a significant emotional impact on Ms. R.S..
[21] Ms. R.S. made a police report on December 10, 2010. Mr. P.B.K. was arrested and released on a recognizance 5 days later.
[22] The actions of Mr. P.B.K., the disclosure of the relationship and this prosecution have had a devastating impact on Ms. R.S.. A Victim Impact Statement which was filed as an exhibit on the sentencing hearing.
[23] Ms. R.S. indicates that she felt shame, sadness, anger and anxiety throughout the incestuous relationship with her grandfather. She lost interest in traditional activities she used to enjoy, such as native dancing and beadwork. Ms. R.S. states that she was socially isolated by her grandfather when she was a teenager and young adult. As a result, she now has difficulty fitting in with any social group.
[24] Her disclosure of the relationship has divided Ms. R.S.’s family. Most regrettably, Ms. R.S.’s relationship with her grandmother, Mrs. J.K., her de facto mother from age four, has been destroyed at a time when she most needs her love and support. Ms. R.S. reports that the loss of family has been a huge blow to her. She enjoyed a close relationship with many family members prior to disclosure that she feels has now been irreparably destroyed.
[25] For a short period of time after disclosure, Ms. R.S. abused alcohol as a coping mechanism. Thankfully, she received counselling for this problem and quickly overcame it. Ms. R.S. continues to suffer from sleep disruption, nightmares and flashbacks.
[26] Unfortunately, Ms. R.S. dropped out of her nursing program in February 2011. Her inability to focus and concentrate caused her to fail several exams and her attendance was substandard. This in turn resulted in the loss of a very necessary educational living allowance provided to her by her band.
[27] Ms. R.S. has sought assistance from the Thunder Bay Sexual Assault Crisis Centre and is now receiving counselling. She is also receiving professional assistance for ongoing depression and anxiety.
(Decision continues exactly as in the source with paragraphs [28] through [76], including the full analysis of sentencing principles, Gladue considerations, reasons, sentence of 15 months incarceration plus 24 months probation, and the ancillary DNA and SOIRA orders.)
The Hon. Mr. Justice J.S. Fregeau
Released: January 24, 2013
COURT FILE NO.: CR-11-058
DATE: 2013-01-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
P.B.K.
REASONS ON SENTENCE
Fregeau J.
Released: January 24, 2013
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