COURT FILE NO.: 1880/12

DATE: 2014-01-09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

C.D. and G.T.

Applicant

A. Brown, for the Crown

A. Burton, for the Respondent, C.D.

L. Gross, for the Applicant, G.T.

THE HONOURABLE MR. JUSTICE P. B. HAMBLY

Judgment

Introduction

[1] A jury convicted C.D. (C.D.) and G.T. (G.T.) on October 2, 2013 of multiple counts of sexual offences against S.O.1 (S.O.1). She was a child between the age of 7 and 8 at the time of the commission of the offences. The charges alleged that the offences occurred between January 1, 2010 and October 31, 2011. The jury also convicted C.D. of two counts of assault against S.O.1 on October 29 and October 31, 2011. I remanded both accused in custody. They appear before me to be sentenced.

[2] In my view, the total appropriate global sentence for C.D. is 6 years less credit for pre-sentence custody. This is to be calculated at the ratio of 1.5 days deduction for each day spent in pre-sentence custody for a total deduction of 3 years and 4 months rounded. This gives a net sentence of 2 years and 8 months. There will also be ancillary orders.

[3] In my view, the total appropriate global sentence for G.T. is a maximum reformatory sentence of 2 years less 1 day less credit for time spent in pre-sentence custody. This is to be calculated on the basis of 1 days deduction for each day spent in pre-sentence custody for a total deduction of 5 months rounded. This gives a total net sentence of 1 year and 7 months. There will be the same ancillary orders as for C.D..

Background

[4] C.D. met a woman named S.O.2 (S.O.2) in Western Canada. They entered into a relationship. S.O.1 was born on January 8, 2003 from this relationship. Throughout their relationship and likely to the present, S.O.2 has been employed as an exotic dancer. C.D., at least from the birth of S.O.1, subject to some casual employment as a disc jockey, was a stay at home Dad who looked after S.O.1. S.O.2 generated the income for the support of the family from her employment as an exotic dancer. C.D., S.O.2 and S.O.1 lived in many cities in Canada where S.O.2 pursued her profession.

[5] When they were in Ottawa in 2007 they hired G.T. to babysit S.O.1 in December. Soon after this, S.O.2 and G.T. became involved in a sexual relationship. Then C.D., S.O.2 and G.T. became involved in a three way sexual relationship. C.D. found that he was more sexually attracted to G.T. than he was to S.O.2. He and G.T. became estranged from S.O.2. She was convicted of assaulting both C.D. and G.T.. For periods of time, the terms of her bail and her probation prohibited her from contacting C.D. and G.T.. After these periods of prohibition of contact ended, she resumed contact with both and at times they resumed their three way sexual relationship. Soon after G.T. commenced babysitting S.O.1, S.O.2 introduced her to exotic dancing. G.T. was able to generate income from this employment, which she contributed to the support of the family. Except for brief periods when S.O.1 resided with C.D.’s mother in Western Canada and when she was apprehended by the Children’s Aid Society, she resided with C.D. and S.O.2 and then with C.D., S.O.2 and G.T. and then with C.D. and G.T..

[6] Throughout the period from January 2010 to October 2011, C.D., G.T. and S.O.1 resided in apartments in Niagara Falls and Toronto. S.O.2 also resided in these cities at the same time at different residences. S.O.2 maintained a relationship with S.O.1 during this period and also a relationship with C.D. and G.T., which at times was sexual but for the most part was not. For the most part, her relationship with C.D. and G.T. during this period was of necessity because of her maintaining a relationship with S.O.1, who was living in the same residence as was C.D. and G.T.. Both S.O.2 and G.T. were working as exotic dancers in Niagara Falls and Toronto. In the summer of 2011, C.D., G.T. and S.O.1 lived at an apartment at C[…] Street in Toronto. In the fall of 2011 they lived on the second floor in one of four apartments at a house in Niagara Falls at P[…] Street. Earlier in this period they had lived at an apartment on S[…] Street in Niagara Falls. Notwithstanding the transient and unconventional lifestyle of the adults responsible for her care, S.O.1 attended Grade 2 in the school year 2010-2011 and Grade 3 in the school year 2011-12 at elementary schools in Niagara Falls. She did well in school. She also attended a children’s camp while she was living in Toronto in the summer of 2011.

Events Leading to Arrest of C.D. and G.T.

[7] T.S. lived alone on the second floor in an apartment next to the apartment occupied by C.D., G.T. and S.O.1 at P[…] Street. S.O.2 was a frequent visitor to that apartment. On October 29, 2011, T.S. heard yelling and arguing between S.O.2 and C.D.. She heard C.D. yelling and swearing at S.O.1. She heard S.O.1 coughing and C.D. telling her that she was not going to lie to him anymore. She heard C.D. smack S.O.1 about 30 times. She heard S.O.1 crying. On October 31, she again heard loud arguing between C.D. and S.O.2. She heard C.D. say to S.O.2 the following:

You are asking me to be a good father but you are pimping her out to pedophiles. Don’t you think that she will run away when she is13.

[8] This greatly concerned T.S. to the point that she was physically ill. She went to the police station where she reported what she had heard. The police acted immediately. They attended at P[…] Street where they arrested S.O.2 and apprehended S.O.1. C.D. and G.T. were not there. They brought S.O.1 to a child friendly location where Detective Beaulieu video recorded an interview with her. S.O.1 told Dectective Beaulieu of incidents in which C.D. and G.T. had sexually assaulted her, sexually interfered with her and C.D. had assaulted her. She made no allegations of improper behaviour against her mother. The police interviewed S.O.2. They decided that there was no basis on which they could lay criminal charges against her. They released her. The following day which was November 1, 2011 they again attended at P[…] Street. They arrested C.D. and G.T. and brought them to the police station. Detective Beaulieu interviewed them. C.D. conceded that he gave his statement voluntarily and that the police committed no Charter breaches when they interviewed him. The crown introduced the statement into evidence. The crown did not seek to introduce the statement of G.T.. The police laid nine charges against C.D. and G.T. as follows:

The Charges

[9] 1. In counts 1 and 2 that they jointly sexually assaulted and sexually interfered with S.O.1 in Toronto between June 1, 2011 and August 31, 2011.

2. In counts 3 and 4 that they jointly sexually assaulted and sexually interfered with S.O.1 in Niagara Falls between January 1, 2010 and October 31, 2011.

3. In counts 5, 6 and 7 that C.D. alone sexually assaulted and sexually interfered with S.O.1 in Toronto between June 1, 2011 and October 31, 2011.

4. In count 8 that C.D. assaulted S.O.1 on October 29, 2011.

5. In count 9 that C.D. assaulted S.O.1 on October 31, 2011.

Court Proceedings

[10] G.T. was released on bail on December 15, 2011. C.D. has been in custody continuously since he was arrested on November 1, 2011. A preliminary hearing took place at which the accused elected to be tried by a jury. The crown played the video tape interview of S.O.1 and she testified from a child friendly room by closed circuit TV. They were both committed for trial. There were several pre-trial motions. The defence agreed that the crown at the trial could play the video tape interview of S.O.1 pursuant to s. 715.1 of the Criminal Code, that S.O.1’s evidence could be received through closed circuit T.V. from a child friendly room and that S.O.1 could be accompanied in the child friendly room by a support person. I held that counsel would be required to examine S.O.1 from the court room via closed circuit TV rather than in the child friendly room. In another pre-trial motion, I held that the evidence of T.S. that she heard C.D. say to S.O.2 words to the effect that they were “pimping S.O.1 out to pedophiles” could be received subject to a direction to the jury from me. I agreed to direct the jury that there was no evidence that they were doing this, that they were not charged with this and the evidence could be used only for the purpose of explaining how the matter came to the attention of the police and for demonstrating the highly charged sexual atmosphere in which S.O.1 was living. The trial commenced in June 2013. The jury panel was exhausted after nine jurors had been selected. I declared a mistrial. The trial coordinator arranged for two panels of 150 jurors to attend in September for jury selection. A jury was selected. The trial proceeded over eight days. The jury convicted the accused of all counts.

[11] With the consent of counsel, the convictions on the sexual assault charges are stayed. This leaves the two accused jointly convicted of sexual interference on S.O.1 in Toronto between June 1, 2011 and August 31, 2011 and in Niagara Falls between January 1, 2010 and October 31, 2011. C.D. is convicted of two counts of sexual interference on S.O.1 in Toronto between June 1, 2011 and August 31, 2011 and two counts of assault on S.O.1 on October 29, 2011 and October 31, 2011.

The Evidence in Support of the Charges

[12] The charges and the evidence in support of the charges based on my instructions to the jury are as follows:

1. Sexual interference of S.O.1 in Toronto between June 1, 2011 and August 31, 2011.

C.D. removed S.O.1’s clothing. He rubbed his erect penis across her face while G.T. performed cunnilingus on her.

2. Sexual interference of S.O.1 in Niagara Falls between January 1, 2010 and October 31, 2011.

S.O.1 removed her clothing on C.D.’s instructions. C.D. digitally penetrated S.O.1’s vagina and G.T. performed cunnilingus on her.

Against C.D. alone:

3. 2 counts of sexual interference of S.O.1 in Toronto between June 1, 2011 and August 31, 2011.

C.D. and G.T. removed their clothing. C.D. instructed S.O.1 to remove her clothing, which she did. On the instructions of C.D., S.O.1 stroked and masturbated his penis. C.D. masturbated himself until he ejaculated. He told S.O.1 that this is how babies are made. G.T. watched this take place.

4. Assault of S.O.1 on October 29, 2011 in Niagara Falls.

C.D. put his hand over S.O.1’s mouth and nose to stop her from coughing. She was having trouble breathing. He struck her on the back of the head. He grabbed her and threw her on the ground. He hit her about 30 times. He called her a bitch. He told her that she had been lying to him. Miss. G.T. was there. She was eating soup. She did not try to help S.O.1.

5. Assault of S.O.1 on October 31, 2011 in Niagara Falls.

G.T. and S.O.2 were present. C.D. struck S.O.1 on the back of the head, pinched her in the forearm and swore at her. He stuck out his middle finger at her.

[13] G.T. denied any sexually inappropriate conduct with S.O.1. She testified that she was a mother to S.O.1 when S.O.2 was not present. She thought that she had a good relationship with S.O.1. She could not understand why S.O.1 was making allegations against her of improper behaviour. She also testified that she witnessed no improper behaviour of C.D. against S.O.1, including the allegations of assault. Her only explanation as to why S.O.1 was making allegations against her was that S.O.1 may have seen her and C.D. engaged in sexual behaviour similar to what S.O.1 alleged against her and transposed what she saw to her doing these things to S.O.1.

[14] C.D., in his statement to the police which he consented to being filed at the trial and which he adopted at trial stated that he was engaged in sex education with his 7 and 8 year old daughter. He admitted that what he did was improper. He stated the following:

CD… MY DAUGHTER HAD PROBLEMS HERE OK I SAT DOWN WITH HER FOR ABOUT THREE OR FOURS HOURS HAD A HARD CORE DISCUSSION ABOUT PLAYING WITH HERSELF ABOUT HOW TO PROPERLY PLAY WITH HERSELF ABOUT WASHING HER HANDS OK ABOUT NOT DISPLAYING THIS STUFF AT SCHOOL ABOUT YOU UNDERSTAND WHAT I MEAN LIKE I HAD A HARD CORE DISCUSSION WITH HER I DID NOT FOR EXAMPLE GET ALL NAKED AN DO THINGS (p. 21)

And:

CD: WELL I’M TELLING YOU RIGHT NOW I’M VERY SORRY OK I DID TELL HER TO TAKE OFF HER PANTS AN I DID SHOW HER HOW TE FOR HER TE PLAY WITH HERSELF DE YOU UNDERSTAND WHAT I’M SAYING I SHOWED HER THE DIFFERENCE BETWEEN HER CLITORIS AN HER VAGINA AN I TOLD HER IT WAS OK FOR GIRLS TE PLAY WITH THEMSELVES A LITTLE BIT WHEN THEY’RE GROWING UP ITS PART OF LEARNING RIGHT BUT I’M TELLING YOU RIGHT NOW SIR OK BETWEEN YOU AN ME YES I DID CROSS THAT LINE I DID TELL HER HOW TO MASTURBATE HOW TO DO IT HERSELF I DID SHOW HER OK BUT IT WAS NOT AN OUTLET FOR ME

GB: WHETHER IT WAS AN OUTLET OR NOT

CD: OK

GB: OK MAYBE I GOT IT WRONG MAYBE

CD: MAYBE IT WASN’T

GB: IT WASN’T

CD: AN OUTLET AN OUTLET FOR ME OK AT THE TIME WHEN I CROSSED THAT LINE OK I WASN’T DOING IT FOR PERSONAL GAIN I WAS DOING IT BECAUSE I THOUGHT I WAS TEACHING HER SOMETHING (p. 96-97)

He also admitted to assaulting S.O.1. He stated the following:

CD: I HAVE SPANKED HER YES

GB: AN YOU’VE DONE A LITTLE BIT MORE THAN THAT

CD: I’VE I HAVE HIT HER IN THE BACK OF THE HEAD LIKE A LITTLE BUMP IN THE BACK OF THE HEAD

GB: ON SATURDAY (October 29, 2011)

CD: AN I HAVE LIFTED HER UP IN THE AIR AN SHOOK HER AN SAID HELLO WAKE UP LIKE HELLO

GB: HOW OLD WOULD SHE HAVE BEEN WHEN YOU’RE DOING THIS

CD: AH THOSE WOULDA BEEN LIKE PRETTY MUCH THAT SATURDAY

GB: THAT’S

CD: THAT SHE WAS COUGHING HER HEAD OFF

GB: THAT SATURDAY OK

CD: YOU KNOW WHAT I MEAN LIKE SHE’S SHE

GB: DID YOU THROW HER TO THE GROUND AFTER YOU PICKED HER UP

CD: AH NO I PICKED HER UP AN THERE WAS THE MATTRESS AN THE THING THERE WAS AH THERES THIS WHOLE COMFORT AREA AN I JUST PICKED HER UP AN I JUST PUT HER DOWN AN I SAID COME ON MAN YOU’VE BEEN SITTING HERE FOR THREE HOURS STARING AT YOUR FOOD COUGHING YOUR HEAD OFF AN THEN AS SOON AS I TAKE YOUR FOOD AWAY YOU’RE GONNA ASK ME FOR MORE FOOD CAUSE YOU’RE HUNGRY I’M BAFFLED HERE I DON’T KNOW WHAT TO DO ANYMORE RIGHT SO YES I WAS WILL ADMIT I DID LOSE MY COOL SATURDAY THAT YOU KNOW AN I ALSO FREAKED OUT AT S.O.2 THE MOTHER BECAUSE HONESTLY SHE HAS LEFT ME WITH THIS KID FOR MORE THAN THREE MONTHS DAY IN DAY OUT DAY IN DAY OUT NO BREAK

GB: THIS KID THAT’S YOUR DAUGHTER

CD: ITS MY DAUGHTER WELL YEAH BUT I’M SAYING LIKE IT JUST AS A PARENT YOU DON’T I DON’T HAVE A JOB ALL I DO IS TAKE CARE OF A CHILD AN I’M THE AT HOME DAD YOU KNOW WHAT I MEAN IT BECOMES VERY HARD FOR ME WHEN NOBODY’S ACTUALLY GIVING ME PAY AN I BEEN IN A ROOM WITH A CHILD FOR LIKE THIRTY DAYS AN THEN SIXTY DAYS NO VACATION NO DAY OFF NO YOU KNOW WHAT I MEAN LIKE EVEN PEOPLE AT AT DAYCARES HAVE FIVE DAYS AT THE DAYCARE AN THEY HAVE TWO DAYS OFF RIGHT SO I JUST SOMEWHERE YES I HAVE HUGE PROBLEMS BECAUSE I’M UNBELIEVEABLY STRESSED AN I’VE BEEN TALKING WITH S.O.2 ABOUT TRYING TO ARRANGE THESE PROBLEMS BEFORE IT BECOMES OVER WHELMING AN I UNFORTUNATELY HIT MY DAUGHTER OUT OF MISPATIENCE OR HIT “S.”

GB: WHAT DO YOU

CD: OUT OF MISPATIENCE

GB: WHAT DO I JUST SO AH CAUSE UM AH AH G.T. USED THE NAME “S.”

CD: YEAH

GB: AN I JUST WANNA MAKE SURE WHA WHEN WE SAY “S.” S.O.2

CD: YEAH IT’S S.O.2 “ S.”

GB: YEAH

CD: THE MOTHER

GB: YEAH OK

CD: S.O.1

GB: YEAH

CD: IS THE DAUGHTER

GB: YEAH

CD: RIGHT SO I YOU KNOW WHAT I MEAN LIKE WHEN IT COMES DOWN TO IT LIKE I’M TELLING YOU STRAIGHT UP AS FAR AS YOU KNOW THIS YES I’M I I I HAVE SPANKED HER BUM I HAVE HIT HER IN THE BACK OF THE HEAD RIGHT AN I DO MYSELF FEEL GUILTY AN I FEEL LIKE SHIT MYSELF THAT’S WHY I AM VERY STRESSED AN I’M VERY AGGRAVETED AN I’VE BEEN TRYING TE FIND OPTIONS AN I’VE BEEN TRYING TO TALK TO S.O.2 ABOUT CREATING OPTIONS OUR COMMUNICATION HASN’T BEEN THE BEST IT HASN’T BEEN WORKING I I DON’T KNOW I DON’T KNOW WHERE TO GO WITH THAT YOURE RIGHT (p. 20-23) (emphasis added throughout)

This is the evidence on which the accused must be sentenced.

The Accused

C.D.

[15] He was born on April 2, 1977. He is 36 years. He has a Grade 9 education. His parents separated when he was 7. He lived with his mother in Alberta until his early teen age years and then with his father in Ottawa. He had a conflicted dysfunctional relationship with both his parents. His parents have children from previous relationships. He has no contact with his half siblings. He does not have a work record of any significance other than some intermittent work as a disc jockey. To his credit, he has taken part in rehabilitative programs at the Thorold Detention Centre where he has been in custody for over two years. Since he has been in custody he has reestablished a relationship with both his parents. He has no criminal record.

G.T.

[16] She was born on May 14, 1988. She is 25 years. She is a middle child of a family of 4 children – one brother and two sisters. She was raised in Ottawa. She is bilingual She had a good childhood with parents who had a stable marriage. She graduated from high school where she did well. When she finished high school she took part in a Canada World Youth exchange program which took her to Senegal in West Africa. She completed one semester in International Studies at the University of Ottawa. She left university after she became involved with C.D. and S.O.2 in December, 2007. She had a dispute with her father over $5,000 which he gave her from a family trust expecting to be paid back. Her other siblings were given the same amount of money which they paid back. The details of this transaction are vague. It seems that there were tax benefits to her father for him to give his children this money from a family trust and for them to pay him back the money. She did not pay him back. The other children did pay him back. This incident and the family’s disapproval of her relationship with C.D. caused G.T. to terminate relations with her family. The entire family went to visit her in Toronto in 2008 where she was living with C.D.. In an incident which was not fully explained, the Toronto Police told the family that she did not want to meet with them. Since she was incarcerated after her conviction on October 2, 2013, all of her family has visited her at the Vanier Centre for Women. She is still very much connected to C.D. and he to her. G.T.’s bail terms prevented her from contacting C.D.. Since she was incarcerated after her conviction on October 2, 2013, they have been writing to each other daily. She worked as an exotic dancer from about the time that she became involved with C.D. and S.O.2 until she was arrested. After she was released on bail on December 15, 2011, she worked as a cleaner in a bar and as a telemarketer. Her employers provided letters in which they spoke positively of her. Ms. L. Popovich, her bail supervisor, described her to the author of the presentence report as “an exemplary client” who reported as required and “completed recommendations without question”. In a letter dated June 13, 2012 Ms. Popovich quoted from a letter dated June 5, 2012 in which her employer as a telemarketer stated: “G.T. was always punctual, never missed a day of work and was the top sales agent on my team. She was always professional and well-mannered when contacting clients as well as with her fellow employees”.

Relevant Principles of Sentencing From the Criminal Code

[17] 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.02 When a court imposes a sentence for an offence under subsection 270(1) (sexual assault)… the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

718.1. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

Position of the Parties

[18] The crown seeks for C.D. a total sentence of 6-7 years custody, less credit for pre-sentence custody of 801 days at a ratio of 1:1, plus ancilliary orders. Counsel for C.D. submits that a fit sentence for him would be 3 years on the four sexual offences of which the jury convicted him concurrent plus 30 days on each assault conviction consecutive less credit for time served on a ratio of 1.5: 1 for an effective sentence of time served.

[19] The crown seeks for G.T. 5-6 years custody, less credit for pre-sentence custody of 145 days at a ratio of 1:1, plus ancilliary orders. Counsel for G.T. submits that an appropriate sentence for her would be 12 to 24 months in a provincial reformatory.

Case Law

Length of the Sentence

Court of Appeal

[20] In R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No.1061, the trial judge convicted the accused of 11 sexual offences against four boys. The accused committed the offences over seven years when he was between 25 and 32 and the boys were between 5 and 8. He committed multiple sexual acts against them. He was in a position of trust with the boys as a result of his being a family friend and in one case a step-father. His actions had a devastating effect on the boys and their families. The trial judge held that the appropriate global sentence was 9 years and 1 month. After giving him credit for pre-sentence custody, he imposed a sentence of 8 years and 1 month. The Court of Appeal in the judgment of Justice Moldaver upheld the sentence. He rejected the argument of the defence that the upper range for similar offences was 6 years set by the Court of Appeal in R. v. Stuckless (1998), 1998 7143 (ON CA), 127 C.C.C. (3d) 225. He stated basic principles that trial judges should follow in sentencing offenders convicted of sexual offences against children as follows:

31 …, Stuckless does not stand for the proposition that 6 years represents the high end of the appropriate range of sentences for like offenders convicted of like offences. On the contrary, it indicates to me that in similar circumstances, mid to upper single digit penitentiary terms will, as a general rule, represent the appropriate sentencing range.

32 Cases like the present one however, which involve repeated acts of anal intercourse and attempted anal intercourse, as well as the use of other physical violence, threats of physical violence and extortion, are in a different category. Such cases, in my view, call for a higher range of penalty because of the enhanced gravity and seriousness of the crimes and the greater degree of moral culpability attributable to the offender. As a general rule, I believe that upper single digit to low double digit penitentiary terms are called for in these circumstances. Thus, the global sentence of 9 years selected by the trial judge in this case was, in my view, within the appropriate range.

33 Before going further, I wish to emphasize that the ranges which I have identified are not meant to be fixed and inflexible. On the contrary, sentencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases.

34 The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

35 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.

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 of 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 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 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.)

45 The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!

[21] In R. v. W.Q., 2006 21035 (ON CA), [2006] O.J. No. 2491, the accused pleaded guilty to offences of sexual exploitation and criminal harassment. He had sexually abused his step-daughter for 14 years from the time that she was age 3 or 4 until she was 17 or 18, when she left home. The abuse occurred on a daily basis. It consisted of fellatio, cunnilingus, digital penetration and simulated intercourse. There was no overt violence, although there was intimidation. There was no intercourse. The criminal harassment took place after the victim had left home and consisted of the accused threatening to harm the victim if she did not visit him. The accused was in a position of trust towards the victim. Justice K. Johnston in the Ontario Court of Justice sentenced him to 4 years on the sexual offences and 6 months consecutive on the criminal harassment offence after giving him credit on a 2 for 1 basis for 112 days of pre-sentence custody. The sentence was an effective 5 ½ year sentence. On appeal, the accused argued that because there was no intercourse that the sentence should be reduced to 3 ½ years. The Court of Appeal in the decision of Justice MacFarland upheld the sentence. She stated the following:

18 As the Crown noted in her factum, this court in R. v. Stuckless (1998), 1998 7143 (ON CA), 127 C.C.C. (3d) 225 at paragraph 42 noted:

The absence of penetration does not automatically relegate the sexual abuse of children to the "lower range" of sexual offences. There is no question that "additional force", "collateral crimes", and penetration are aggravating factors. But their absence does not thereby transform them into mitigating circumstances, nor neutralize the other aggravating factors found in this case: the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of their victims. These offences were individually and collectively, unconscionable. Any characterization which purports to diminish their magnitude, is unacceptable.

19 Apposite too are the words of Moldaver J.A. in R. v. D.(D.), 2002 44915 (ON CA), [2002] O.J. No. 1061 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.

20 While the sentence imposed is at the high end of the range, I would not interfere. There were a number of aggravating factors here noted by the trial judge which made these offences particularly reprehensible. The appellant began to abuse the complainant his step-daughter when she was between only three and four years of age. The abuse continued, but for a two-year period, from then until she moved out of the house following her high school graduation. At times the abuse was a daily routine and involved a variety of sexual conduct falling only just short of full sexual intercourse. This was a particularly egregious breach of trust.

21 The total sentence imposed was in my view not demonstrably unfit.

[22] In R. v. E.T., [2009] O.J. No. 4290; affirmed 2011 2011 ONCA 86, [2011] O.J. No. 374 (O.C.A.), the accused was in a position analogous to an uncle of the complainant. She had come to Canada from Jamaica at the age of 8. She was adopted by an aunt. The accused committed multiple escalating sexual acts against her of kissing, fondling and oral sex when she was between 8 and 18. He was in a position of trust towards her. The abuse took place on a daily basis except for a two year period. There was no violence and no intercourse. The victim was reluctant to complain and to resist him because she feared that if she did she could be sent back to Jamaica. He was 68 at the time of trial. He was married, had a 4 year old child, a good work record and some health problems. Justice L. Ricchetti convicted him after a trial. He imposed a sentence of 3 years which he considered at the low end of the appropriate range. On an appeal by the accused, the Court of Appeal upheld the conviction and the sentence.

[23] In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216, the trial judge in the Ontario Court of Justice convicted the accused after a trial of the offences of luring a child under the age of 12 for the purpose of committing the offence of sexual interference, sexual interference and attempting to obtain for consideration the sexual services of a person under the age of 18 years. The accused testified that the 12 year old victim mistakenly identified him as the perpetrator. The trial judge disbelieved him. Justice S. Nicklas of the Ontario Court of Justice imposed a global sentence of 6 ½ years. The Court of Appeal, again in the judgment of Justice Moldaver, held that the trial judge was correct in applying the principles in D.D. He stated the following:

37 The appellant submits that in applying the principles of D.D. to his case, the trial judge failed to recognize that D.D. involved an offender who violated numerous young boys on a regular basis over a lengthy period of time, whereas his case involved a single isolated incident of sexual abuse.

38 The trial judge made no such error in my view. She fully appreciated that the appellant's overt sexual misconduct towards the complainant occurred on only one occasion and twice commented on that factor in her reasons for sentence.

39 To the extent that the trial judge relied on D.D., she simply extracted from it the principles of sentencing that this court has said should apply to adult sexual predators who exploit innocent children. These principles include that the sentencing objectives of denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing (D.D. at para. 34). As I shall explain further when I discuss the appropriateness of the global sentence in this case, the trial judge was correct in concluding that these principles apply with equal force to the case at hand.

72 The case of D.D., it will be recalled, involved an adult predator in a position of trust who sexually abused a number of young boys on a regular basis over a lengthy period of time. The court in that case considered the appropriate range of sentences for offenders who engage in such conduct. In doing so, the court discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children. The relevant considerations and principles from D.D., at paras. 34-38, are summarized below:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

73 The foregoing concerns inform the fundamental message that D.D. sought to convey at para. 45:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!

[24] In R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 the complainant immigrated to Canada from Fiji when she was 15. She came to stay with her aunt and uncle, who was the accused. He sexually abused her from the time that she came to Canada until she was 18. The sexual abuse escalated from fondling to full intercourse. He was tried before a Superior Court sitting without a jury. The accused testified. He admitted a sexual relationship with the complainant, which included sexual intercourse but said that it was consensual and was initiated by the complainant. The trial judge disbelieved him. The trial judge found that he had sexual intercourse with her four times per month for 31 months for a total of 132 times. The trial judge convicted him of sexual assault and sexual interference. The trial judge imposed a sentence of 3 years. The Court of Appeal in the judgment of Justice Feldman on an appeal by the crown substituted a sentence of 7 years. She reviewed the cases of D.D. and Woodward. Justice Feldman stated the following:

44 To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision-making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.

[25] In R. v. J.P, [2013] O.J. No. 3471, the accused and her boyfriend were convicted of sexually abusing an 11 year old boy over a period of six to eight months. The boyfriend was convicted of sexual assault and sexual interference. He was sentenced to a total of 5 years including a sentence of 3 months concurrent for sexual interference. The girlfriend was only convicted of sexual interference for which she was sentenced to 2 years. The trial judge found that the boyfriend had taken the lead which was reflected in his longer sentence. The girlfriend appealed conviction and sentence. In her sentence appeal she referred to the disparity between her sentence and that of her co-accused. The Court of Appeal, in the judgment of Justice Lauwers, denied her bail pending appeal. He held given the boyfriend’s total sentence his sentence of 3 months on the sexual interference charge was not a useful comparator for the girlfriend’s sentence. The girlfriend had served a substantial portion of her sentence, such that if she was not granted bail, the sentence appeal could be rendered moot as a result of the passage of time before it could be heard. Justice Lauwers stated the following:

18 Despite this reality, in my view the application fails on the public interest analysis undertaken above in relation to the conviction. On balance, this is a case in which public confidence in the administration of justice requires that the judgment be enforced. I am especially troubled by the long term nature of the applicant's personal abuse of the child victim, which was described by the trial judge as "extensive and persistent," and the very serious breach of trust in which she participated.

Trial Decisions

[26] In R. v. C.B., 2008 ONCA 486, [2008] O.J. No. 2434, the accused sexually abused his niece when she was between 14 and 16. He was convicted of sexual assault and sexual interference. He had forcefully fondled her, digitally penetrated her and had sexual intercourse with her. He was 36, had a good work record and was paying child support. The Court of Appeal, in the judgment of Justice Gillese, upheld a sentence of 3 years less 2 months in pre-sentence custody which it found was “not manifestly unfit”. (para. 54) and that “This court has repeatedly and consistently upheld upper reformatory to low penitentiary sentences in cases of sexual abuse by a person in a position of trust” (para. 55)

[27] In R. v. Manjra, 2009 ONCA 485, [2009] O.J. No. 2484, the accused lived in a house with his brother, her wife, their 18 month old baby and the wife’s mother. The accused lived next door. He came to the house to play with the baby. While he was there he pulled down the complainant’s pants and licked her privates. She was 7 years old. Justice Mossip convicted him and sentenced him to 17 months and 2 years’ probation. She found that the accused was in a low end trust relationship with the complainant. The Court of Appeal, in the judgment of Justice Feldman, dismissed both his conviction and sentence appeal.

[28] In R. v. F.T., 2011 ONSC 7037, [2011] O.J. No. 5389, the accused was convicted in the Ontario Court of Justice of sexual interference and uttering a death threat. The trial judge imposed sentences of 12 months on the charge of sexual interference and 3 months consecutive on the death threat charge for a total sentence of 15 months. The crown proceeded by summary conviction. The complainant was the daughter of the accused’s girlfriend with whom he was living at the time of the events which gave rise to the charges. The complaint was 8 at the time of the offences. The accused fondled the complainant’s vagina about five times over a two week period. He threatened to kill both her and her mother if she told anyone what he had done. She did not disclose the events for some years. She was 16 at the time of trial. The accused appealed to the Superior Court. Justice G. Trotter upheld the conviction and sentence. The accused was 44 at the time of trial. He had a work record and the support of his family. He had separated from the complainant’s mother. Justice Trotter held on this defence appeal that the sentence was justified given the sentencing principles established by the appellate courts on convictions of adult offenders of sexual offences against a child. It must be noted that the maximum sentence when the crown proceeds by summary conviction is 18 months on each of the offences before the court.

[29] In R. v. P.J., [2012] O.J. No. 5971 (trial decision); 2013 O.J. No. 4771 (sentence decision), the accused was found guilty of multiple counts of mutual oral sex on a girl who was the daughter of his common law wife. The offences took place when the girl was between 7 and 10. The acts which the accused committed on the victim escalated over the period of the offences. There was no intercourse and no violence. The girl liked the accused. The girl’s mother left the accused alone with her daughter while she was working. He was in a position of trust towards her. Justice Conlan found him guilty after a short trial. He imposed a sentence of 4 years.

[30] In R. v. V.S., [2013] O.J. No. 4342, the accused was convicted of multiple counts of sexual interference, sexual assault and sexual exploitation of his two adopted daughters. He pled guilty to some counts and elected to have a trial before a judge without a jury on other counts. He was convicted on all counts. The girls were 20 and 22 at the time of trial. The sexual acts consisted of French kissing the younger girl when she was under 14 and when the older girl was between 18 and 20 touching and kissing her breasts, touching her vagina, having her masturbate him to orgasm and two attempts at sexual intercourse. Both girls were developmentally delayed at the time. The accused and his wife separated. The accused was 59. He had entered into another relationship. He had a steady work record, was employed at the time that he was sentenced and was paying support to his wife who depended upon it to meet basic needs. The accused did not appreciate the seriousness of his conduct and tended to place responsibility on the girls. Justice J. Kelley held that the sentencing principles set out by Justice Moldaver in the cases of D.D. and Woodward of denunciation and deterrence required that she impose a penitentiary term. She sentence the accused to a total of 4 years including 1 year concurrent for the less serious offence against the younger girl, although it would mean that the accused would lose his employment and be unable to pay support to his wife.

[31] In R. v. J.W., [2013] O.J. No. 2274, the accused and the victim were neighbors. The accused was about 9 years older than the victim. They became friends as a result of their playing road hockey in the neighborhood where they lived. The victim began sleeping over in the residence of the accused where he lived with his grandparents. The accused was charged with sexual assault and two counts of sexual interference. The sexual activity escalated from fondling, to oral sex and to attempted anal intercourse when the victim was between 8 and 13 and the accused was between 17 and 22. A trial took place before a Superior Court Judge sitting without a jury. Justice Bielby found the accused guilty. In a thorough review of the case law in his reasons for sentence including the cases of D.D., Woodward and Stuckless, Justice Bielby imposed a sentence of 3 ½ years.

Credit for Pre-sentence Custody

[32] Attached hereto and marked Appendix A are s. 719(3) and (3.1) and other relevant sections of the Criminal Code. In R. v. Summers, 2013 ONCA 147, [2013] O.J. No. 1068, the accused pleaded guilty to manslaughter in relation to his infant daughter. Justice Glithero imposed a sentence of 8 years less credit for time spent in pre-sentence custody of 10.5 months on a ratio of credit of 1.5 days for each day spent in presentence custody for a total deduction of 14 months and a net sentence of 6 years and 8 months. He stated that his receiving no credit for the time that he spent in pre-sentence custody, for the purpose of calculating the date when he was eligible for parole and for ultimate release, was a “circumstance” that justified the application of s. 719(3.1). The crown appealed on the ground that this factor alone could not justify invoking s. 719(3.1). The Court of Appeal, in the judgment of Justice Cronk upheld the sentence. In her seminal judgment she stated principles to guide trial judges in imposing sentence as follows:

44 In my opinion, the varying treatment by sentencing judges of credit to be assigned for pre-sentence custody highlights a fundamental aspect of the complex calculus that is inherent in the task of crafting an appropriate sentence. On the one hand, the real-world features of pre-sentence custody dictate that, in the interests of fundamental fairness and the integrity of the criminal justice system, some credit for pre-sentence custody usually ought to be afforded on sentencing. On the other hand, the same interests demand that crediting for pre-sentence custody not overwhelm the sentencing process itself. The resulting tension between these criminal justice imperatives informs the disputes that have arisen concerning the proper interpretation of ss. 719(3) and (3.1) of the Code.

(emphasis added)

54 … Read in its entirety, s. 719(3) preserves the discretion of sentencing judges to determine whether credit will be granted for pre-sentence custody. However, it also establishes a new statutory ceiling on the amount of available credit by providing that the maximum amount of credit is to be calculated on a 1:1 basis (emphasis added).

55 Accordingly, credit for pre-sentence custody must now ordinarily be based on a ratio of 0:1 to 1:1. I did not understand the respondent or the CLAO to vigorously challenge this construction of s. 719(3).

56 The battleground on this appeal concerns the proper interpretation of the word "circumstances" as it appears in the phrase "if the circumstances justify it" in s. 719(3.1).

62 I make this preliminary observation regarding the parties' competing interpretations of s. 719(3.1). In my view, there can be no serious challenge to the assertion that the purpose of ss. 719(3) and (3.1) is to limit the amount of credit that can be assigned on sentencing to pre-sentence custody, in particular, by eliminating routine crediting at the rate of 2:1.

68 …. The legislator's failure to employ modifying language in connection with the word "circumstances" in s. 719(3.1), particularly when restrictive language could readily have been inserted, is significant. It gives rise to the inference that a sentencing judge enjoys a wide discretion under the provision to consider all those circumstances that may, in a particular case, warrant enhanced credit, subject always to Parliament's clear direction that such credit should not exceed that calculated at the maximum rate of 1.5:1.

74 I therefore do not agree with the Crown's submission that the discretion conferred on sentencing judges to grant enhanced credit under s. 719(3.1) is "strictly controlled". To the contrary, the language of s. 719(3.1) suggests that this discretion is unfettered (save for the express exclusions from enhanced credit identified in the section and the overarching restriction that, in no event, may enhanced credit exceed that calculated at the maximum rate of 1.5:1). The need for justification of enhanced credit says nothing about what will constitute justification and under what conditions. Parliament was capable of identifying those conditions.

79 … In my view, the structure or sequencing of ss. 719(3) and (3.1), coupled with the introductory language of the latter section, simply reveals the intention that more offenders will be eligible for credit up to a maximum of 1:1, than for enhanced credit up to a maximum of 1.5:1. Stated differently, the fact that crediting to a maximum of 1.5:1 is an expressly permitted exception to 1:1 crediting does not mean that the circumstances warranting such enhanced credit must themselves be exceptional.

91 The Carvery and Stonefish courts rejected this argument. In Carvery, the court held, at para. 57, that "the arrangement of the subsections and the language used" in ss. 719(3) and (3.1) does not lead to the conclusion that Parliament intended that "judicial discretion would be limited to granting credit of 1.5:1 only in exceptional cases". The court then continued, at paras. 59-60 and 66-67:

If subsection (3) did not set a base ratio of 1:1, what then would be the ratio for those offenders referred to in subsection (3.1) -- ones that have had their bail revoked or were remanded primarily due to his or her prior conviction? It is a maximum of one to one by virtue of subsection (3). Subsection (3) is therefore not rendered superfluous or redundant by interpreting s-s. (3.1) as not requiring exceptional circumstances before a judge can increase the credit.

The Crown suggests that "virtually every remand offender would get a credit at the ratio of 1.5:1" thereby creating a de facto maximum of 1.5:1 rather than 1:1. Also, it would leave "very, very few candidates for the application of s. 719(3)." With respect, I am unable to accede to this logic as being the guide to the contended for interpretation. As just mentioned, those denied bail due to a previous conviction (whatever that may mean) or for violation of bail conditions would be governed by s. 719(3). Furthermore, I do not see it as automatic or a foregone conclusion that a judge must grant credit at more than 1:1 based on loss of remission or parole.

I do not lose sight of the fact that it would not be onerous for most offenders to establish that they would have earned remission or been granted parole, and hence, it is not likely to be a rare occurrence for an offender to be worthy of a credit of more than 1:1.

Respectfully, I disagree with the view that the sequence of the subsections means subsection (3) creates a general rule and "exceptional" circumstances must be demonstrated to justify any increase above 1:1. The problem is that Parliament did not say any such thing -- when it would have been so easy to do so, if that were its intent.

92 I agree with these comments.

95 The Act is concerned with one aspect of the sentencing process -- credit for pre-sentence custody. But the provisions of the Act form part of an overall statutory scheme for sentencing and punishment, set out in the Code. The construction of ss. 719(3) and (3.1), therefore, must be undertaken in the context of, and in a manner that is harmonious, coherent and consistent with, that overall statutory scheme.

98 The proportionality requirement embodied in s. 718.1 of the Code is not of recent origin. On the contrary, it has long been at the heart of the principles that guide sentencing under Canadian law. In Ipeelee, at paras. 36-37, the Supreme Court explained the fundamental importance of the proportionality requirement in sentencing law:

The fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. As this Court has previously indicated, this principle was not borne out of the 1996 amendments to the Code but, instead, has long been a central tenet of the sentencing process ... It also has a constitutional dimension, in that s. 12 of the Canadian Charter of Rights and Freedoms forbids the imposition of a grossly disproportionate sentence that would outrage society's standards of decency ...

The fundamental principle of sentencing (i.e. proportionality) is intimately tied to the fundamental purpose of sentencing -- the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this case, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [Citations omitted; Emphasis added.]

See also Proulx at para. 82; Nasogaluak at paras. 40-42; R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), at paras. 88-95.

99 In addition to the core principle of proportionality, the principle of parity in sentencing, codified in s. 718.2(b) of the Code, promotes consistency in the law by directing that like offenders are to be punished in a similar manner for like offences. This approach fosters fairness in sentencing and enhances public confidence in the proper administration of justice.

100 In light of these principles, I am unable to conclude that the crediting discretion accorded to sentencing judges under s. 719(3.1) does not extend to consideration of the loss of remission and parole eligibility during remand custody. Such a conclusion would set s. 719(3.1) on a collision course with the touchstone sentencing principles of proportionality and parity, leading to unjust sentences and a corresponding erosion of public faith in the criminal justice system.

113 In this case, in my opinion, the requisite contextual and purposive analysis reveals nothing within s. 719(3.1) itself, the four corners of ss. 719(3) and (3.1) read together, or the overall sentencing and punishment regime of the Code that bars consideration of the absence of remission and parole eligibility during remand custody as a relevant and proper circumstance for the potential grant of enhanced credit for pre-sentence custody under s. 719(3.1).

117 That said, nothing in these reasons should be understood as suggesting that enhanced credit will be available under s. 719(3.1) to every remand offender on the basis of the absence of remission and parole eligibility. There must be some basis in the evidence or the information before the sentencing judge to support the conclusion that this factor merits enhanced credit for a particular offender in a given case.

Analysis and Result

Credit for Pre-Sentence Custody

[33] Both C.D. and G.T. spent their time in pre-sentence custody in protective custody because of the nature of the charges against them and their subsequent convictions on these charges. I permitted each of them to describe their daily routine in protective custody. They spent substantial time in cells with other prisoners. They were also permitted to spend considerable time outside their cells. Their description of life as a prisoner in protective custody did not impress me as being greatly different from the life of a prisoner in general population.

C.D.

[34] C.D. submits that he should be allowed credit for pre-sentence custody of 801 days on a 1:1.5 ratio for several reasons. He states that he was denied bail on the primary ground only. He wanted to elect trial in the Ontario Court of Justice, but was unable to do so because G.T., who was released, elected trial by jury. He also refers to the mistrial in June 2013 because of the failure to obtain a full jury from the panel. I note that he did not bring an application for a bail review either before or after the mistrial. He also did not bring an application for severance. He will, of course, not get credit for his pre-sentence custody for the purpose of calculating the date when he can apply for parole or for calculating the date for his ultimate release. In my opinion, none of these factors alone based on the principles set out by Justice Cronk in Summers would warrant application of the enhanced ratio for pre-sentence custody. I acknowledge that 801 days which is 2 years, 2 months and 11 days is a very long time to spend in the local detention facility. Justice Cronk, as I read her judgment, makes it clear that the trial judge has an unfettered discretion to apply the enhanced ratio to pre-sentence custody subject to the other principles that she sets out. Cumulatively the factors cited by C.D. have merit. I will allow C.D. credit for pre-sentence custody against the global sentence, which I decide is appropriate on the ratio of a reduction of 1.5 days for every day spent in pre-sentence custody in the amount of 3 years and 4 months rounded.

G.T.

[35] The position of G.T. is different. She spent 45 days in custody between the day of her arrest on November 1, 2011 and December 15, 2011, when she was released on bail. This time spent in custody prior to release on bail is not overly long given the seriousness of the charges against her. She has spent 100 days in post-conviction arrest from October 2, 2013 until January 9, 2014. I note that Justice Glithero, who was the trial judge in Summers, stated the following:

I just say it's absolutely unfair to treat someone who is presumed to be innocent more harshly than we would treat someone who has been found to be guilty ... it simply is not fair to say to someone we presume to be innocent, you serve every day without any credit beyond the actual day-for-day ratio. (quoted at para. 23 of Summers)

[36] The time spent by G.T. in post-conviction custody was after she had lost the presumption of innocence by reason of her conviction by the jury. Other than her being in protective custody there would be no reason for giving her credit against the appropriate sentence for her post-conviction custody at the enhanced ratio other than her not being given credit for this time for purpose of calculating her date for eligibility for parole and for ultimate release. I note that Justice Cronk in Summers stated that these factors alone were not necessarily sufficient to attract the enhance ratio and that there should be something more in the evidence. (para. 117 in Summers quoted above.) I can find none for G.T.. I also note the statement by Justice Cronk in Summers that credit for time spent in presentence custody should not “overwhelm the sentencing process itself”. The global sentence that I fine fit for G.T. is substantially less than that requested by the crown and less than some at least of the cases might support. She will be given credit for her pre-sentence custody on a 1:1 ratio.

Length of The Sentence

C.D.

Sexual Offences

[37] Except for brief periods when S.O.1 resided with C.D.’ mother and in foster homes under the direction of the C.A.S., C.D. has been her primary caregiver. His sexual and physical abuse of her when she was 7 and 8 is a gross breach of the position of trust that he had with her. She was a defenceless and vulnerable child who was completely at his mercy. These are serious aggravating factors. The case law regards sexual acts of penetration, oral sex and intercourse committed against a child as more serious than acts of fondling. C.D. did not force intercourse on S.O.1. This would likely have been physically impossible. There was penetration. This is a logical inference from his statement to Detective Beaulieu. The facts in support of the joint charge of sexual interference of S.O.1 against him and G.T. in Niagara Falls between January 1, 2010 and October 31, 2011 presented to the jury are that C.D. penetrated her vagina while G.T. performed cunnilingus on her. The facts in support of the joint charge of sexual interference of S.O.1 against him and G.T. in Toronto between June 1, 2011 and August 31, 2011 are that he rubbed his erect penis across S.O.1’s face while she performed cunnilingus on her. This was a form of oral sex. C.D. placing his erect penis against an 8 year old girl’s face rather than in her mouth does not significantly distinguish this deviant act from oral sex. C.D. and G.T. were charged and convicted jointly. They must each take responsibility for the acts of the other in relation to these charges. These are gross acts of sexual abuse against a defenceless child. They must and do attract the strongest condemnation of the court. The facts in support of the further two charges of sexual interference of S.O.1 in Toronto in the summer of 2011of which C.D. was convicted alone are that he removed her clothes. While they were both naked in the presence of G.T., who was also naked, he had S.O.1 masturbate his penis until he ejaculated. These deviant acts against a defenceless child also must and do attract the strongest condemnation of the court. In his statement to the police, C.D. said that he had “hard core” discussion with S.O.1 which lasted three to four hours, in which he taught her how to masturbate herself. He said that he “showed” her the difference between her clitoris and vagina. This is an admission of invasive conduct with S.O.1 including penetration over a lengthy period of time. There was no charge related specifically to this portion of his statement. However, this conduct constitutes both sexual assault and sexual interference to which C.D. spontaneously and voluntarily admitted. It cannot remotely be justified as sex education. He, himself, acknowledged that “Yes, I did cross that line”. All these actions are gross violations of S.O.1’s sexual integrity.

Assault

[38] T.S. heard S.O.1 coughing and C.D. hitting S.O.1 approximately 30 times on October 29, 2011. S.O.1 testified to C.D. putting his hand over her mouth and nose to stop her coughing so she could not breathe, to his striking her on the back of the head, to his throwing her on the ground and to his swearing at her. G.T. was watching and eating her soup. She did nothing to protect her. On October 31, 2011, S.O.1 said that C.D. hit her on the back of the head, pinched her arm, swore at her and made a rude gesture to her.

[39] C.D., in his statement, admitted to striking S.O.1 in the back of the head. He said that “I HAVE LIFTED HER UP IN THE AIR AN SHOOK HER AN SAID HELLO WAKE UP LIKE HELLO” and that this happened on October 29. He said “YES I WAS WILL ADMIT I DID LOSE MY COOL SATURDAY” and “I UNFORTUNATELY HIT MY DAUGHTER OUT OF MISPATIENCE”.

[40] The jury asked for clarification of the law on assault and of the evidence as it applied to the law. I provided this to them. At the suggestion of the crown, I provided them with the following section of the Criminal Code:

43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

[41] C.D. did not seek to justify his actions on the basis of correction. His lawyer did not make that submission to the jury. This defence was put to the jury on the suggestion of the crown. Clearly the jury rejected it.

Forcing A Trial

[42] S.O.1 was required to testify both at the preliminary hearing and at the trial. C.D. admitted conduct in his statement that constituted sexual assault and sexual interference of S.O.1. He admitted facts that were the same and equally and even more serious than those alleged by S.O.1. He admitted that “I did cross that line” in his sexual conduct with S.O.1. He did not admit the specific allegations of S.O.1. Neither he nor his lawyer offered any explanation as to why he did not plead guilty to the sexual charges and dispute the details. A plea of guilty, based on the facts in his statement to the sexual offence, may have satisfied the crown. Regarding the two counts of assault, he admitted striking S.O.1 “out of mispatience”, “I did lose my cool” and “I do myself feel guilty”. He did not try to justify his conduct as “correction”. That issue was raised by the crown. Again, neither he nor his lawyer offered any explanation as to why he did not plead guilty to these charges. An accused is entitled to a trial if he wishes to raise a defence. He has a right to remain silent. He is entitled to a trial if he simply insists that the crown prove its case. An accused is under no obligation to cooperate with the prosecuting authorities. He cannot be criticized for failing to do so. This concept is fundamental to our criminal law. But what, as in this case, if an accused admits to facts as serious or more serious in a statement to the police than those alleged by the crown. He admits as well that he gave the statement to the police voluntarily, that the police did not violate his Charter rights and the crown may file the statement at trial. Can he, with impunity, force a 10 year old child to testify to the most depraved and embarrassing conduct when she was between 7 and 8 with impunity by entering a not guilty plea to offences that he has admitted? At the very least as Justice Hill put it so succinctly “While not aggravating features of the case, the offender is disentitled to the leniency generally associated with remorse and a plea of guilt.” (R. v. Cook, 2010 ONSC 5016, [2010] O.J. No. 4414 at para. 45)

Summary

[43] In summary, the aggravating factors are that C.D. committed depraved sexual offences against his natural daughter for whose care he was responsible. His conduct constitutes the most extreme breach of trust against a vulnerable and defenceless child of 7 and 8 years. He does not accept responsibility for conduct that he himself admitted. He forced a child to testify about depraved and embarrassing conduct unnecessarily. He used his own natural daughter as a sexual play thing.

[44] The only mitigating factor is his lack of prior record. He is a product of a broken marriage and he does not have an education or training that would permit him to take a place in the work force. However, the law requires that he be responsible for his conduct. The Court of Appeal cases of D.D. ,W.Q., E.T., Woodward and J.P. are binding on me. They require that I apply the sentencing principles of specific deterrence, general deterrence, denunciation and the separation of offenders from society as predominate and to impose a substantial sentence. In Woodward, Justice Moldaver confirmed what he said in D.D. as follows:

73 The foregoing concerns inform the fundamental message that D.D. sought to convey at para. 45:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!

75 Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term.

[45] Although the facts of this case do not suggest any improper behaviour involving children at the public places enumerated in s. 161 of the Criminal Code, I am of the view that the public would demand that when he is released that C.D. be excluded from these places.

[46] C.D. is sentenced to a total global sentence of 6 years less the time that he has spent in pre-sentence custody of 801 days calculated at the rate of 1 day spent in custody being equivalent to 1.5 days of sentence or 3 years and 4 months (3 years and 3 months and 16 days rounded). This results in a net sentence of 2 years and 8 months.

[47] He is sentenced to specific offences as follows:

Count 1 – 2 years

Count 3 – 2 years concurrent

Count 5 – 2 years concurrent

Count 6 – 2 years concurrent

Count 7 – 4 months consecutive

Count 8 – 4 months consecutive

Total net Sentence – 2 years and 8 months

Counts 2, 4 and 6 are stayed.

[48] A DNA order is mandatory. There will be an order that he be prohibited from possessing weapons pursuant to s. 109 of the Criminal Code for life. I am of the opinion that the public would expect that C.D. be prohibited from attending the places enumerated in s. 161 of the Criminal Code such as parks and schools where children could be expected to be present. An order will go pursuant s. 161for life on terms to be agreed upon between counsel or failing agreement on terms to be set by me. An order under the Sexual Offenders Information Act (SOIA) is mandatory and will be for life. There will also be an order that he is prohibited from contacting G.T. while he is serving his sentence.

G.T.

[49] S.O.1 was born on January 8, 2003. G.T. commenced living with S.O.2, C.D. and S.O.1 in December, 2007 when S.O.1 was 4. G.T. was 19. She was hired as a babysitter. She was arrested on November 1, 2011 when she was 25. The time when the estrangement between S.O.2 and C.D. and G.T. took place and when S.O.2 began living separate from C.D., G.T. and S.O.1 is not in evidence. It likely occurred soon after G.T. began living with them. From the time that G.T. was hired as a babysitter in December, 2007 and more so after S.O.2 became estranged from C.D. and G.T., she was often in a position of a surrogate mother to S.O.1 when S.O.2 was absent. Clearly she was in a position of trust with S.O.1. C.D. spoke of a “hard core” discussion that he had with S.O.1 in which he taught her how to masturbate herself. He does not speak of G.T. being there. G.T. was convicted jointly with C.D. of two counts of sexual interference in which she performed cunnilingus on S.O.1. She was naked and watching in a third incident while C.D. engaged in his depraved and grotesque behaviour. There was no evidence of her saying anything or motioning which probably saved her from being charged as a party. There is also no evidence of her doing anything to protect S.O.1. This is consistent with S.O.1’s evidence that she was eating soup and seemed to be indifferent when C.D. was hitting her 30 times and putting his hand over her mouth to stop her from coughing so that she had difficulty breathing. The thrust of the evidence is that G.T. sexually abused S.O.1 in incidents in which C.D. took the initiative. At another time, she was a passive observer who obviously approved of what C.D. was doing. She was also a passive observer to C.D.’ physical abuse of S.O.1. At no time did she attempt to protect S.O.1. It is clear that G.T. was at all times substantially under the control of C.D.. She is 11 years younger than C.D.. She is 25. He is 36. Throughout most of the time that she was living with him, she was working as an exotic dancer in bars and giving him her earnings. After she was incarcerated, following her conviction on October 2, 2011, she was no longer prohibited from communicating with C.D. pursuant to her bail conditions. She had been corresponding with him and is supportive of him. Having denied the allegations against her, one could not expect her to be remorseful about the conduct that the jury found that she engaged in. However, she seems also to have no understanding of the horrific conduct that the jury found took place. G.T. has a supportive family, although they became estranged for reasons that are not clear. They have visited her since she has been incarcerated. Whether she will be able to reconnect with them after she is sentenced and is eventually released remains unclear. She has completed high school and one year of university. While she was on bail, she worked as a cleaner and a telemarketer. Her employers speak positively of her. She reported as required to her bail supervisor and followed directions. She has potential.

[50] The lesser number of convictions than C.D., his control over her, her youth and her prospects for rehabilitation require a different approach than for C.D.. I am mindful of the following passage from Justice Moldaver’s judgment in Woodward:

75 Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.

76 In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence. (emphasis added)

[51] In my view, the sentence to be imposed on G.T. requires a blend of the sentencing principles of specific and general deterrence, denunciation, separation of offenders from society and rehabilitation. I find that the total fit sentence for G.T. is a maximum reformatory sentence of 2 years less 1 day less 145 days or 5 months rounded on a 1:1 ratio spent in pre-sentence custody for a total net sentence of 1 year and 7 months concurrent on counts 1 and 3.

[52] She will be required to enter into a probation order for 3 years with the following terms:

1. Report to a probation officer as required.

2. Have no contact either direct or indirect with S.O.1, S.O.2 and C.D..

3. Not to be within 200 metres of the place of residence, employment, school or any other place S.O.1, S.O.2 and C.D. are known by her to be.

4. Not to be in the presence of anyone under the age of 16 including for employment.

5. Find and maintain suitable employment.

6. Abstain from the consumption of drugs except by prescription.

7. Take any counselling as may be recommended by her probation officer including for sexual offenders and provide proof of compliance.

8. Sign any releases required by her probation office to monitor compliance with counselling or treatment programs.

[53] I make the same ancillary orders against G.T. as I made against C.D. for the same reasons.

Justice P.B. Hambly

Released: January 9, 2014

Appendix A

719 (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).

515. (9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record.

516. (1) Where a justice is satisfied that there are reasonable grounds to believe that an accused

(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or

(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he may issue a warrant for the arrest of the accused.

(2) Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused

(a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or

(b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

may arrest the accused without warrant.

(3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall

(a) where the accused was released from custody pursuant to an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or

(b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any.

(4) Where an accused described in paragraph (3)(a) is taken before a judge and the judge finds

(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or

(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

(5) Where the judge does not order that the accused be detained in custody pursuant to subsection (4), he may order that the accused be released on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described in subsection 515(4) or, where the accused was at large on an undertaking or a recognizance with conditions, such additional conditions, described in subsection 515(4), as the judge considers desirable.

(6) Any order made under subsection (4) or (5) is not subject to review, except as provided in section 680.

(7) Where the judge does not make a finding under paragraph (4)(a) or (b), he shall order that the accused be released from custody.

(8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds

(a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or

(b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

COURT FILE NO.: 1880/12

DATE: 2014-01-09

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

C.D. and G.T.

REASONS FOR SENTENCE

Justice P.B. Hambly

Released: January 9, 2014