R. v. R.C., 2013 ONSC 6058
COURT FILE NO.: CR12-30000185-0000
DATE: 20130926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.C.
Jerry Bienza, for the Crown
Mathew Granic, for the Defendant
HEARD: September 24, 2013
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proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
KELLY J.
Reasons for SENTENCE
[1] R.C. has been found guilty of committing various sex acts on his granddaughter, the complainant. Findings of guilt were made on the following offences: sexual assault, sexual interference and sexual exploitation between January 1, 1998 and December 31, 2005.[^1] The acts commenced when the complainant was approximately 5 years of age and ended when she was 11 years of age.
[2] R.C. now comes before me for sentencing. Crown Counsel seeks a custodial sentence of one year. Counsel for R.C. submits that a conditional sentence of two years less one day is appropriate. I completely disagree.
[3] But for R.C.’s age (80) and his medical condition (described below) R.C. would be sentenced to a lengthy term of imprisonment in the penitentiary. In light of these two extraordinary factors, I will accept the submission of Crown Counsel and impose a sentence of 1 year followed by three years of probation. What follows are my reasons.
The Facts
[4] Following a trial wherein both the complainant and R.C. testified, I found the following to be the facts giving rise to R.C.’s convictions:
a. Starting when she was age 4 or 5 (1997 to 1998), R.C. would have the complainant sit on his lap and he would fondle her vagina, beneath her underwear. He would also fondle her breasts and kiss her on the lips.
b. On other occasions, R.C. would enter the bathroom when the complainant was bathing. He would “soap her” and while doing so fondle her breasts and vagina. He would apply cream to her breasts and vagina following the bath or shower. This occurred, on occasion, until the last sexual act in the summer of 2004.
c. There were times when the complainant was napping or R.C. would “lift her up” and take her for a nap. R.C. would join the complainant and fondle her beneath her underwear.
d. On one occasion the complainant was asleep in a single bed at night. In the middle of the night R.C. came to her and touched her “private area”: he put his hands in her pants and penetrated her vagina. He kissed her on the lips.
e. When the complainant returned home from Sri Lanka in the summer of 2004, her brother was hospitalized for a period of approximately 1.5 weeks. Her grandparents came to the home. R.C. continued touching the complainant on her body, but at this point the touching escalated to oral sex. R.C. entered her room and joined her on her single bed. He began to fondle her vagina and then told her that he wanted to kiss her on her “private area” and asked if it was “okay”. He removed her pyjamas and saw her pubic hair. He told her that he could assist her in removing such hair in the shower. She was confused and permitted the oral sex to happen without incident.
f. During the same period following the trip to Sri Lanka, R.C. again approached the complainant and joined her in bed. The complainant told R.C. that she did not wish him to perform oral sex on her because she did not like it. He asked “why” and she said that she did not like it and that it was painful. He said that he would perform it in a way that was not painful. He told the complainant that he was doing this to make her happy “like when she was a little girl”. Because she was scared, she allowed R.C. to perform oral sex on her again.
g. On another occasion, the complainant was watching television with her brother. R.C. told the complainant to come to him. She did. He closed the door of the room they were in and kissed her on the lips. She got nervous, went to the bathroom and then joined her brother watching television.
The Impact on the Complainant
[5] The complainant provided a Victim Impact Statement for consideration on sentencing. She spoke of the devastating impact the abuse has caused on her life. Despite the fact that she is currently in her third year of university, she continues to be haunted by these crimes. As she so eloquently said:
I was forced to grow up in a short period of time, deal with adult issues and experiences at an age where I was far too young to comprehend what was going on. He [R.C.] took away my innocence, my sense of security and wellbeing. He was a father figure to me, provided me with so much love and affection he had me in the palm of his hand, I was craving the attention that he gave me, and he took advantage of me. He used me, and exploited me for his own selfish needs. I feel so manipulated, taken advantage of, like an object used at his exposal [sic]. He made me feel as though he was doing me a favour and I feel so stupid for believing it. It makes me cringe to think that my first sexual experience was at such a young age with my grandfather. I am completely disgusted with myself. I can’t imagine any man wanting to be with someone who has been used like that, I feel like I am truly not good enough for anybody.
[6] The complainant also talked about the impact of these offences and the disclosure of them on her family. Despite the support of her immediate family, her extended family has been “split apart”. She feels that she has been “targeted and judged” by her traditional Sri Lankan community. She said:
My mind is consumed with thoughts about the aftermath of bringing my true feelings to the surface. I didn’t expect to lose so many people in such a short span of time, and it has all caught me off guard, and put me in such a vulnerable place. I have completely lost everyone in my extended family due to confronting the sexual abuse and reporting it to the authorities. They don’t want anything to do with me, and I feel so much hurt and pain. I have never felt so betrayed in my entire life. Not a day has gone by that I don’t think about it, I feel so alone all the time. Being abandoned by so many people who I thought were on my side has destroyed me completely.
[7] To deal with the impact of these offences, the complainant advises that she is going to counselling in an attempt move on from the past.
The Circumstances of the Offender
[8] R.C. is currently 80 years of age. He was born on April 1, 1933 in Sri Lanka. His father died a month before his birth and he was raised by his mother. She maintained the family farm sporadically as they had to move frequently due to the civil war in that country. R.C. obtained a grade 10 education and then took over the operation of the family farm. He was also employed as the manager of a cooperative food store.
[9] R.C. married his wife in 1956. Together they produced four children. In 1986, R.C.’s eldest son came to Canada. Each of the siblings eventually came to Canada, as did R.C. and his wife in 1996. R.C. and his wife currently live in a condominium with his eldest daughter, her husband and their daughter. R.C. has not been employed since moving to Canada. However, he has assisted in providing care for his grandchildren over the years.
[10] R.C. appears to have the support of one of his son’s (not the father of the complainant), his two daughters and their families. He has also reported a “strong and respectful” relationship with his wife although she remains unaware of his involvement in the criminal justice system. The reason provided is that she has “issues” with memory. He could not advise or elaborate on any mental health issues that she may suffer. Other family members are “stunned” by the current circumstances and continue to express disbelief. The charges and convictions have not been discussed by any family members directly with R.C.
[11] R.C. attributes his involvement in the criminal justice system to conflict with the complainant’s family. He advised the author of the pre-sentence report that “the victim had intended to marry her cousin, which is common place within the culture”. He advises that it is because of his lack of support for the union that he is currently before the Court.[^2]
[12] R.C. states that he would be willing to comply with sexual offending counselling but “there is no need”. He plans to continue to spend time with his wife, helping family and attending Temple. He advised that his family intends to keep this matter from coming to the attention of the Sri Lankan community. As stated in the pre-sentence report: “members of their community have noted that there appears to be a fracture within the family; however, they have explained that it was due to a disagreement regarding a family wedding”.
[13] In a letter provided by R.C.’s medical doctor,[^3] R.C.’s medical history is set out as follows:
Date
Diagnosis
December, 2002
Hyperlipidemia and coronary artery disease.
Post 2002
Hypertension, type II diabetes mellitus and progression of coronary artery disease. He was also noted to have valvular heart disease such as mitral valve prolapse with mitral regurgitation and aortic regurgitation.
July, 2006
R.C. suffered a transient ischemic attack (a mini-stroke) and accordingly, he had to be monitored regularly by his physician. He has generalised vasculopathy with progression of coronary artery disease as demonstrated on cardiac investigations over the years as well as cerebral vascular disease.
The physician has found that R.C.’s health status has been declining in his multitude of morbid conditions such as hypertension, diabetes mellitus, hyperlipidemia, generalised atherosclerosis and ageing.
[14] The physician concluded by saying the following about R.C.:
Presently he is 80 years of age and over the last 11 years I could see the declining of his health status in view of his medical illness though it is being maintained with various medications. In view of his generalised vasculopathy there is a high possibility that he may suffer acute coronary events such as myocardial infarction or cerebral events such as stroke in any stressful situation or change in his life style.
It is very imperative that he should continue his medications at the appropriate time interval as prescribed. He should also monitor his blood sugar at the appropriate time interval and to continue with the prescribed diabetic diet as well as regular exercise activities.
Failure to observe the above may result in severe catastrophic medical event to this gentleman.
Analysis
[15] In determining the appropriate sentence for R.C., I am guided by s. 718 of the Criminal Code which sets out the objectives of sentencing. Section 718.01 of the Criminal Code is also applicable because there was an abuse of a child who was under the age of 18. This section provides that the Court shall give primary consideration to the objectives of denunciation and deterrence. Section 718.2 obliges the Court to consider that R.C. abused a position of trust in relation to his granddaughter and the impact upon her in committing these offences.
[16] I am mindful of the guidance of the Ontario Court of Appeal in cases such as this. The relevant considerations and principles to consider were outlined in R. v. D.D.[^4] and reiterated a decade later in R. v. Woodward.[^5] As Moldaver J.A. (as he then was) held in R. v. D.D.[^6]: “… as a general rule, when adult offenders, in a position of trust, sexually abuse innocent children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms”.[^7] Such a principle, in normal circumstances, would be applicable here.
[17] There is rarely any case that is exactly the same as that before the Court to provide an exact precedent. Counsel have acknowledged that, despite filing books of authority with a number of cases for consideration. The facts of the case and the circumstances of the offender often differ. However, a conditional sentence is well below the range for offences such as these.
[18] While I appreciate that it is wrong to consider a conditional sentence as lenient, it is not appropriate in the circumstances. The terms proposed of house arrest subject to medical appointments, exercise and religious functions would not serve to restrict R.C.’s liberty as he currently resides with family, goes to his medical appointments and enjoys going to Temple. He is in no position to perform any community service. He will not suffer any stigma in the community because his community is unaware of the offences. His wife has not even been told of his involvement in the criminal justice system.[^8]
[19] Further, the facts of this case are deplorable. The impact of these offences on the complainant is devastating. If it were not for the advanced age of R.C. and his serious medical issues, a lengthy penitentiary sentence would be required. This is an exceptional case for those two reasons and accordingly, I am prepared to accept the submission of Crown Counsel that one year in custody is appropriate. The sentences will be concurrent to each other.
[20] The period of incarceration shall be followed by three years of probation wherein R.C. shall have no contact, either direct or indirect, with the complainant in addition to the statutory terms.
[21] In addition, there will be a mandatory weapons prohibition order pursuant to s. 109(1)(a) of the Criminal Code for 20 years, a DNA order pursuant to s. 487.05(1) authorizing the taking of a DNA sample and an order that his name be added to the Sex Offender Registry for 20 years.
Kelly J.
Released: September 26, 2013
R. v. R.C., 2013 ONSC 6058
COURT FILE NO.: CR12-30000185-0000
DATE: 20130926
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
R.C.
Defendant
Reasons for sentence
Kelly J.
Released: September 26, 2013
[^1]: These offences are contrary to sections 271, 151 and 153(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46 respectively.
[^2]: The allegation that the complainant fabricated the offences the accused has been found guilty of was pursued at trial and soundly rejected by the Court.
[^3]: Dr. Pon Sivaji M.D., FRCPC (Critical Care and Internal Medicine)
[^4]: 2002 44915 (ON CA), [2002] O.J. No. 1061
[^5]: 2011 ONCA 610 at para. 72
[^6]: R. v. D.D., supra, at para. 44
[^7]: See also: R. v. D.M., 2012 ONCA 520 and R. v. J.L., 2009 ONCA 788
[^8]: (1997) 115 C.C.C. (3d) (C.A.) at p.39-40