ONTARIO COURT OF JUSTICE
COURT FILE NO.: CR13-4000353
DATE: 20140626
HER MAJESTY THE QUEEN
v.
G.H.E.
R e a s o n s f o r S e n t e n c e
DELIVERED BY THE HONOURABLE MR. JUSTICE B. O'MARRA
on Friday, May 30, 2014
at 361 UNIVERSITY AVENUE, TORONTO, Ontario
Appearances:
B. Cohen Crown Attorney
I. Horic Counsel on behalf of G.H.E.
G.H.E. In Person
ONTARIO COURT OF JUSTICE
T A B L E O F C O N T E N T S
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
5 Typed apology letter 15
Reasons for Sentence 1
Transcript Ordered....................... June 6, 2014
Transcript Completed..................... July 8, 2014
Ordering Party Notified..................
FRIDAY, MAY 30, 2014
Reasons for Sentence
O'MARA, J. (Orally):
So these are my reasons for sentence in the matter of Her Majesty the Queen and G.H.E..
On January 14th, 2014, G.H.E. was found guilty by a jury of sexual assault on CT between October 1st and 31st of 2011, contrary to section 271 of the Criminal Code.
Facts
G.H.E. was found guilty by the jury of a sexual assault on CT that occurred in late October of 2011. She was 18 years old at the time. G.H.E. was then 52 years old. He had been her stepfather from when she was four years old.
The victim was living in a two-bedroom apartment with G.H.E., her mother, and her brother. She went to sleep at night on a sofa in the living room. She awoke to find G.H.E. on top of her and attempting, or succeeding, in putting his penis into her vagina. Her sweat pants and underwear had been pulled down. She did not consent to any of this activity and showed that by trying to push G.H.E. off of her and asking why he would do such a thing to her when she considered him as her father from the age of four. His hands were forward on the sofa near where her head was. He inserted his penis into her vagina. The incident lasted about five minutes. She could not remember how it ended. G.H.E. told her not to tell anyone. He said he would give her money to "shut up." She could not remember whether G.H.E. used a condom, or whether he ejaculated.
The victim did not tell anyone what G.H.E. did to her until January 18th, 2012. On that date, the victim made what Crown and defence agreed at trial was a serious suicide attempt. The victim was found to have overdosed on drugs. As she regained consciousness she made disclosure of the incident incrementally first to the 911 personnel and then to police and her mother. These disclosures led to G.H.E. being charged with sexual assault.
I will have further comment on the suicide attempt when I address the impact of this crime on the victim.
Positions of the Parties
The Crown seeks a jail term of three years. The defence seeks a jail term of between 12 and 18 months plus the maximum period of probation. Counsel agree on the ancillary orders that should accompany this disposition.
Gladue Report
Section 718.2(e) of the Criminal Code provides that a Court that imposes sentence shall take into consideration a series of principles and these include the following: all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders with particular attention to the circumstances of aboriginal offenders.
The principles in Gladue, which is a decision of the Supreme Court of Canada reported at 1999 679 (SCC), [1999] 1 SCR 688 were recently reviewed by the Supreme Court in another case by the name of Regina v. Ipeelee, which is reported at 2012 SCR 13. In Ipeelee the Court emphasized that the overrepresentation of aboriginal people in Canadian prisons was the impetus for the specific reference to aboriginal people in section 718.2 of the Criminal Code.
In a decision under the name of Regina and Wells reported at (2000) 2000 SCC 10, 141 CCC 3d 368, another decision of the Supreme Court of Canada, the following was indicated: what is required by Gladue is that the judge imposing sentence discreetly consider the serious and unique social issues pertaining to aboriginal people. This requires a different methodology for assessing a fit sentence for an aboriginal offender. It does not mandate necessarily a different result. Section 718.2(e) does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender.
The Gladue and Ipeelee principles require consideration of the impact that those systemic factors have had on the aboriginal population at large, and the fact that because of these systemic factors, aboriginal offenders are seriously overrepresented in Canada's prison population. Another consideration of the Gladue principles was in another decision of our Court of Appeal in Regina v. Jensen, which is reported at [2005] OJ number 1052. At paragraph 28 of that decision the Court indicated as follows.
"There will be cases in which the principles and objectives expressed in Gladue will not weigh as heavily as other sentencing objectives. In those cases it may be likely that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same. However, the Gladue principles remain applicable in all cases where the offender is an aboriginal person."
At page 28 of the Jensen decision the Court went on to indicate that neither Gladue, nor section 718.2(e) of the Criminal Code, mandate better treatment for aboriginal people when they are being sentenced for a criminal offence. Rather, Gladue directs that the sentencing Courts discreetly consider the serious and unique social issues pertaining to aboriginal people.
Exhibit 2 on sentence in this case is a very extensive 32 page report produced in accord with the Supreme Court of Canada decision in Gladue. Exhibit 4 is further information from the Anishnawawbe Health Toronto Agency. G.H.E. is an aboriginal person as defined in section 35 of the Constitution Act 1982. He is also recognized as "a status Indian" under the Indian Act RSC 1985. He is registered with the Mississauga Band Number Eight located in Blind River Ontario.
I am grateful for the thorough review and information provided in Exhibit 2 on sentencing. I am satisfied that G.H.E. as an individual has been affected by the systemic factors discussed in Gladue and Ipeelee. He has had direct experience with the intergenerational effects flowing from the residential schooling of parents, alcoholism, domestic violence, violence against him and sexual abuse.
Impact on the Victim and Her Mother
Section 722 of the Criminal Code provides that for the purpose of determining the sentence to be imposed on an offender the Court shall consider any statement describing the harm done to, or loss suffered by the victim arising from the commission of the offence.
Mr. Cohen for the Crown advised me during sentence submissions that the victim, CT, was advised of her right and option to present a victim impact statement. The Crown indicates that she has chosen not to submit such a statement. However, in her trial evidence she described the devastating impact of this offence on her. I will refer to that as one of the aggravating circumstances on the issue of sentencing.
Section 722(4) of the Criminal Code defines victim for the purposes of section 722 of the Criminal Code. It means a person to whom harm was done, or who suffered physical or emotional loss as a result of the commission of the offence.
The Crown filed as Exhibit 1 on sentence the victim impact statement of PT, who is the victim's mother. PT read the one-page statement in open court. The defence did not object to the Court receiving her impact statement.
PT describes herself as an aboriginal person who grew up with the negative impacts of alcohol abuse as well as physical and emotional abuse. When she had her own children, she was determined that they would grow up in a healthy and safe environment. She was very hurt in 2012 when she learned that her common-law spouse, G.H.E., had sexually abused her daughter. She is determined to provide support and a healing atmosphere for her daughter.
Impact of the Crime on the Victim
The victim made a serious attempt to kill herself by a drug overdose some two and a half months after she was sexually assaulted by her stepfather. She testified that she attempted suicide because "I got raped" by G.H.E.. She could not understand why he would do this to her when she viewed him as her father figure from the age of four years. She said she wanted to die. Her suicidal thoughts started after the incident and became more serious after Christmas of 2011.
The defence did not dispute at trial the seriousness of the suicide attempt, but suggested it was not related to a sexual assault by G.H.E., but rather to other issues in this young lady's life.
The jury's verdict that the victim was sexually assaulted by her stepfather in late October of 2011 is a direct link to the suicidal thoughts leading to the attempt suicide on January 18th, 2012. There is a direct line between the sexual assault and the suicide attempt. The impact of this crime on the victim was, and continues to be, devastating.
A very sad aspect of this case is that while I must, and I do, consider G.H.E.'s aboriginal heritage as context, and background, for considering the appropriate sentence it is also sad to point out of course that the victim in this case is also of aboriginal heritage.
Mitigating Circumstances
I first wish to address the issue of remorse.
G.H.E. was convicted after trial. He was entitled to have the Crown prove the case. He did not testify, and specifically, he did not put forward a denial of the acts in question. His counsel properly, fairly, and in the best interests of the way counsel should conduct themselves, challenged the Crown's case so that the jury could come to a determination in this case.
G.H.E. has indicated remorse and regret for the harm he has caused to the victim. At page 24 of the Gladue report he indicated as follows; "I realize what I've done and take responsibility for it to offer restitution. I want to address how it impacted her. I am seeing a woman from CAMH about the apology. It's a suggestion. I have nothing to lose, but at least I put it out there."
The last line of that quote from Exhibit 2 could be viewed as a qualified level of remorse, in effect saying I have nothing to lose by an apology. However, in the course of sentence submissions on April 23rd, 2014, G.H.E. addressed the Court and expressed what I took to be genuine remorse. He said he wanted to apologize to the victim. He said he was sorry and ashamed. He acknowledged that he had betrayed a trust and accepted responsibility. He indicated he has been sober since his arrest and he hopes to be forgiven. A further mitigating factor in this case is that I understand G.H.E. does not have any previous criminal convictions.
The issue of rehabilitation is also a factor in the mitigating circumstances in this case. Based on the Gladue Report, Exhibit 2, as well as Exhibit 4, the following information has been provided and confirmed.
G.H.E. has faithfully reported while on bail awaiting his trial and sentencing.
He has been sober since his arrest.
He has committed to continue counselling and seek support to maintain sobriety.
There are concrete plans to maintain employment.
He has expressed remorse that I find to be genuine.
Based on all of these factors, in my view, there are realistic prospects for rehabilitation for G.H.E.. I am satisfied that he is motivated to continue his very beneficial, and important, connection to his aboriginal heritage. And also, and very importantly, he will continue counselling for sobriety and employment and does not require a court order to tell him to continue to seek such connections and counselling and support in his own life.
Aggravating Circumstances
The sexual assault in this case included penetration of the victim.
The sexual assault in these circumstances was a breach of trust. The victim viewed G.H.E. as her father from the age of four.
The impact of this crime on the victim has been devastating. This offence violated her personal and sexual dignity.
Ancillary Orders
First, in regard to the Sex Offender Information Registration Act.
Sexual assault is a designated offence defined in section 490.011(1) of the Criminal Code. Pursuant to section 490.012(1) and 490.013(2)(b) G.H.E. is ordered to comply with the Sex Offender Information Registration Act for 20 years from this date.
Second of all DNA. Section 271, sexual assault, is a primary designated offence as defined in section 487.04 of the Criminal Code. Pursuant to section 487.051(1) I order the taking of samples of bodily substances reasonably required for DNA analysis from G.H.E..
- Mandatory weapons prohibition. According to section 109(2)(a) G.H.E. is prohibited from possessing any firearm, other than a prohibited firearm, or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosives substance, for a period of 10 years. And under subsection (b) of section 109(2), he is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and prohibited ammunition for life.
The fourth ancillary order is the victim fine surcharge under section 737(2). That will be in the amount of $200 as mandated by the Criminal Code.
Result
The appropriate range for cases involving a father figure having sexual intercourse with their daughter, or stepdaughter, is three to five years. In this case, bearing in mind the aggravating features, including the devastating impact on the victim, the breach of trust aspect and the need to reflect general deterrence and denunciation, a sentence in the penitentiary is required in my view.
Factoring in the very detailed information in the Gladue report, Exhibit 2, as well as exhibit 4, plus what appears to be genuine remorse, and tangible prospects of rehabilitation, I am of the view that the lower end of the range is appropriate in this case.
G.H.E. is sentenced to three years in prison. Based on the information provided in the Gladue Report, I will recommend that he be transferred as early as possible in his sentence to the Fenbrook Correctional Institute. That he be transferred as early as possible in his sentence to the Fenbrook Correctional Institution near Gravenhurst, Ontario. I am advised that institution facilitates the Aboriginal Pathways programs, which may prove beneficial to G.H.E. in his rehabilitation process. I am further directing that a copy of Exhibit 2 and Exhibit 4 on sentence is to accompany the court documents to the institution where he will be held and I'll provide that to Madam Registrar.
Do counsel have any questions on any aspects of the disposition?
MR. HORIC: No, Your Honour. What I wish to submit as I indicated in the last occasion is a typed apology letter from G.H.E., which is what he said on....
THE COURT: Oh sure.
MR. HORIC: What he wrote by hand. I think it might be beneficial for him down the road especially with respect to parole hearings.
THE COURT: Absolutely. We will certainly receive that. We will mark that as the next exhibit.
COURT REGISTRAR: It's Exhibit Number five, Your Honour.
THE COURT: Exhibit Number 5.
EXHIBIT NUMBER 5: Typed apology letter - produced and marked.
MR. HORIC: Thank you.
THE COURT: Thank you, counsel. And I, of course, have taken into account what G.H.E. said the last day and in fact I find in this case that his indication and remorse is genuine and I accept that. And it is a factor that is mitigating and is part of the totality of consideration in this case. I want to thank both counsel for the way you have handled a difficult and sensitive case. Both of you have acted as officers of the Court, as well as, carrying out your duties in your respective roles. Thank you very much.
MR. HORIC: Thank you.
MR. COHEN: Thank you, Your Honour.
COURT FILE NO.: CR13-4000353
DATE: 20140626
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
G.H.E.
Defendant
REASONS FOR sentence
B. P. O’Marra J.
Released: June 26, 2014