Her Majesty the Queen v. Gilles G. Simard, 2013 ONSC 6561

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-SA5116

DATE: 20130918

B E T W E E N:

HER MAJESTY THE QUEEN

Meghan Cunningham, for Her Majesty the Queen

• and -

GILLES G. SIMARD

James Harbic, for the accused

HACKLAND R.S.J. (orally)

REASONS FOR SENTENCE

1The accused, Gilles Simard, has plead guilty and been convicted of all 16 counts on this indictment. The first 8 counts charge that he committed a serious of sexual assaults, gross indecency and assaults causing bodily harm against the complainant J.L. during the period January 1978 through December 1986. The remaining 7 counts charge a series of sexual assaults, gross indecency and assaults causing bodily harm against the complainant G.G. during the same period.

2I will note that the non-publication order in this case has been rescinded at the request of the complainants. I will nevertheless refer to the complainants by their initials.

The Facts

3J.L. and G.G. are sisters and are the nieces of the accused. They were placed in his care and he had lawful custody of them because their parents were unable to look after them. This situation persisted during the 8 year period covered by the indictment. When they began living with Mr. Simard, G.G. was 6 years old and J.L. was about 5 years old.

4During their 8 years living with Mr. Simard they were subjected to horrific physical, sexual and emotional abuse . I will quote the factual summary filed by the Crown, which Mr. Simard has admitted to be substantially accurate.

Both G.G. and J.L. were beaten regularly by Mr. Simard while in his care. He would beat them with a belt leaving welts and marks on them. He would also use martial arts techniques such as pressure points to inflict pain upon them. He would require them to do all the chores and cleaning and they were given little food while in his care although Mr. Simard would always eat regular and substantial meals. If the girls attempted to take food they were not permitted to have he would stab them with a fork.

Within a few weeks of moving in Mr. Simard began touching the genital areas of G.G. and J.L. while giving them baths. G.G. reports that Mr. Simard taught her how to masturbate and touched her to show her that she was doing it wrong. J.L. reports that Mr. Simard taught her to perform oral sex on him and told her that this was normal behaviour within families.

The sexual abuse would always happen when the complainants were left alone with the accused. Mr. Simard would wait until his girlfriend left the house with one of the girls and then he would abuse the other. J.L. recalls that the accused would make her play games such as hide and seek and the penalty for being found was that she would have to perform oral sex on the accused. The accused also penetrated J.L. vaginally but oral sex was more common. J.L. estimates that Mr. Simard sexually abused her about twice a week for the entire time she lived with him – approximately 5-6 years.

Mr. Simard had vaginal intercourse with G.G. as well. G.G. reports that Mr. Simard attempted to force anal intercourse on her at least one occasion but she fought back.

Mr. Simard would give rewards of food and money for compliance with his sexual demands and inflict beatings for non-compliance. As a result, G.G. and J.L. were treated very differently by Mr. Simard, and this contributed to the girls having a very contentious and difficult relationship with one another. G.G. resisted Mr. Simard’s advances with regularity and thus she got the worst of the physical assaults, while J.L. got the worst of the sexual assaults as she was meeker and more compliant.

In 1984, after a fight between G.G. and J.L., Mr. Simard dropped them off with their father without any warning. Although she was not longer living with him, Mr. Simard continued to have sexual intercourse with J.L. by taking her for drives in the country where he would assault her. On the last occasion, sometime in 1985 or 1986, J.L. fought back and after physically assaulting her, Mr. Simard left her to walk back to Ottawa on her own.

The Law

5Both parties acknowledge the applicability to this case of the decision of the Ontario Court of Appeal in R. v. D.D., [2012] O.J. No. 1061 which sets out the sentencing principles applicable in cases of serious sexual abuse of children. Moldaver J.A., as he then was, writing for the court, held at paragraphs 35-36:

We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child abuse are only too well known.

6The Court of Appeal sought in D.D. to establish some general parameters for sentencing in cases of this nature, stating as follows at paragraph 44:

To summarize, I am of the view that 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 or physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

7Justice Moldaver explained that his identification of ranges was meant to be a guideline only. Nevertheless, in the present case, which involves breach of trust by a person in a parental role and years of physical, sexual and emotional abuse inflicted on these two children, a low double digit penitentiary sentence is in my view the appropriate range, as suggested by the Court of Appeal.

Mitigating Factors

8Mr. Simard’s counsel has accurately identified the mitigating factors in this case. There are not many. Mr. Simard plead quilty at the opening of trial thereby sparing the complainants the agony of reliving these events through trial testimony, although they were required to testify at the preliminary inquiry. At the time these offences were committed, Mr. Simard had no criminal record. He has since been convicted of and served a sentence of 2 years less a day for possession and distribution of child pornography. Rather than being granted the statutory remission for the last one third of his sentence, he has remained in custody on the present charges. I view this additional 8 month incarceration as a mitigating consideration, not as pre-trial custody. However, the period since the end of his previous sentence (47 days) will be recognized as time served. I also had the impression that he displayed some genuine remorse in his tearful in-court apology to his victims.

Aggravating Factors

9The aggravating factors are obvious. This is perhaps the grossest breach of trust one can imagine. Mr. Simard’s responsibility was to parent and look out for the welfare and security of his two young nieces. Instead he chose to brutalize and sexually assault them on a continuous basis for 8 years, for his own gratification. These 2 young girls have become courageous women but as J.L.’s victim impact statement reminds us, the abuse they suffered destroyed their childhood and has had a devastating impact on their personal relationships and on their career and educational and economic goals. Mr. Simard is a diagnosed pedophile. The court had available a pre-sentence report and a sexual behaviours assessment from his sentencing on the pornography charges, which tend to suggest that he is at low risk to re-offend. I give little weight to these reports because the authors were unaware of his abuse of the two complainants which form the basis of these charges.

Position of the Parties

10Defence counsel acknowledges that a significant penitentiary sentence is warranted in the circumstances. Counsel for the Crown submits that a sentence of 10-12 years imprisonment is warranted for each of the complainants and these sentences should be served consecutively, albeit with modifications as required in recognition of the totality principle. The Crown submits the total sentence should be in the 13-15 year range.

11There can be no doubt that the sentencing objectives applicable in this case are deterrence and denunciation, as explained by Moldaver J.A. in D.D. I would view Mr. Simard’s chances of rehabilitation as being poor. He is 59 years of age, is a diagnosed pedophile and has spent 8 years molesting his nieces in the present case and laterally, pursuing his interests in child pornography, prior to present incarceration. I adopt the views of Molloy J. in R. v. O.B., a similar case to the present, albeit without the same level of on-going violence, in which she stated at paragraph 26:

The principles of deterrence and denunciation are of primary importance and require a substantial sentence in this case. Sexual assault of children, particularly children to whom the offender is in a parental role, is abhorrent. It must be condemned in the strongest of terms to reflect society’s disgust for crimes of this nature. Children are the most vulnerable members of our community and must be protected from sexual predators such as Mr. B. Sentence for such crimes must be sufficiently severe to deter others from using their stepchildren for their own sexual gratification.

12In R. v. O.B., Molloy J. sentenced the offender to 9 years for sexual assaults on one child and 4 years for sexual assault on another child. She ordered that the sentence be served consecutively, totalling 13 years, so as to reflect the individual crimes against each child. Then, having regard to the totality principle, she reduced the overall sentence to 11 years.

13In my view, this is an even more egregious case than R. v. O.B. The sexual assaults in the present case, including full sexual intercourse, accompanied by other physical violence went on for 8 years against each of these girls. And as noted previously, Mr. Simard was in the role of a parent to thee 2 young girls. It is not possible on the information available to me to distinguish between the level of violence and harm suffered by each, other than to say, as the statement of facts recites, that G.G. “resisted Mr. Simard’s advances with regularity and thus she got the worst of the physical assaults, while J.L. got the worst of the sexual assaults as she was the meeker and more compliant”.

14I am of the opinion that the interests of justice are served in this case, not by attempting to weigh the harm and abuse suffered by one of the complainants over the other, nor to provide consecutive sentences as the Crown suggests modified by the totality principle. I view a global sentence as more appropriate on the information available to the court, and this is in no way meant to ignore the very individual and separate ordeals these 2 children suffered during the 8 years they lived with Mr. Simard.

15With respect to J.L., count 1 charges Mr. Simard with having sexual intercourse with her without her consent between January 1978 through January 1983. In the egregious circumstances of this case I sentence Mr. Simard to 13 years imprisonment. With respect to counts 2 to 8, indecent assault (count 2), sexual assault (count 3), sexual intercourse with a person under 14 (count 4), sexual intercourse with a blood relative (count 5), gross indecency (count 6) and assaults causing bodily harm (counts 7 and 8), I sentence Mr. Simard to 5 years on each count to be served concurrently with the 13 year sentence on count 1.

16With respect to G.G., count 9 charges Mr. Simard with attempted sexual intercourse for which I sentence Mr. Simard to 13 years imprisonment and 5 years concurrent for each of the other counts, indecent assault (count 10), sexual assault (count 11), gross indecency (count 12), assaults causing bodily harm (counts 13 and 14) and assault with a weapon (count 15).

17Each 13 year sentence for the assaults against J.L. and G.G. will be served concurrently.

Additional Orders

18In addition, you will be bound by the following orders:

(a) You will be bound by the Sex Offender Information Registration Act provisions of the Criminal Code for the rest of your life.

(b) Pursuant to Section 109, you will not be permitted to have any firearms, ammunition, or any of the related items listed in the Criminal Code for a period of 10 years.

(c) Under Section 161 of the Criminal Code, for the rest of your life, you will be prohibited from attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present or a daycare centre, school ground or playground. Further you will not be alone with a person under 16 years of age to whom you are not related.

(d) You will be prohibited from seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards a person under the age of 16 years or from using a computer system within the meaning of Section 342.1(2) for the purpose of communicating with a person under the age of 16 years.

(e) I will require as well, Mr. Simard, that you provide a sample of your bodily substances to the Ottawa Police Services for DNA typing purposes.