SUPERIOR COURT OF JUSTICE

Court File Number CR-11-5110-00SR

HER MAJESTY THE QUEEN

Against

P.R.

REASONS FOR SENTENCE

DELIVERED ORALLY BY THE HONOURABLE MR. JUSTICE P. KANE

On the 2nd day of May, 2014, at OTTAWA.

APPEARANCES:

Mr. W. DeVenz Counsel for the Crown

Ms. E. Davies Counsel for the accused

(i)

Table of Contents

TABLE OF CONTENTS

Cr- Re-

WITNESSES in-Chief Exam. Exam.

NO WITNESSES CALLED

Date transcript ordered: July 18th, 2014

Date transcript request given to this reporter: July 27th, 2014

Date transcript completed: August 16th, 2014

Date counsel notified: ________________

R. v. P.R.

Reasons for Sentence

Friday,

Courtroom Number 34 May 2nd, 2014

REASONS FOR SENTENCE

KANE, P., Mr. Justice, (S.C.J.), Orally:

This morning, we are here for the delivery by myself the reasons and sentence of P.R.. Following a trial before a judge alone, the accused was found guilty of the following charges:

COUNT 1

Between January 5, 2002 and January 5, 2006, the accused, with his hand, for a sexual purpose, touched the body of his daughter, S., who was then under 14 years of age, contrary to section 151 of the Criminal Code.

COUNT 2

Between January 5, 2002 and January 5, 2006, the accused, for a sexual purpose, counselled his daughter, S., who was then less than 14 years of age, to touch by her hand, the body of the accused, contrary to section 152 of the Criminal Code.

COUNT 3

Between January 5, 2002, and January 5, 2006, the accused committed a sexual assault on his daughter, S., contrary to section 271(1) of the Criminal Code. This conviction under count 3 was stayed on November 1, 2013, pursuant to the provisions of

R. v. Kienapple.

FACTS LEADING TO CONVICTION

The accused, over this four year period, when his daughter was between six and nine years old:

a. on numerous occasions undressed his daughter, undressed himself, and with his hand, the accused rubbed the body of S., including her chest, her nipples and her vagina. This touching included digital vagina penetration. The accused, on these occasions, sucked the nipples of S.

b. On the above occasions of sexual touching of S., the accused directed S., to rub his chest and penis and to kiss his face, his lips and his chest. S. complied with these directions.

c. On a few occasions, while swimming with his daughter, S., in the family swimming pool, the accused directed S. to lower his swimming trunks and rub his penis. S. complied with these directions from her father.

RELEVANT CRIMINAL CODE SENTENCING PROVISIONS

In 2002, the relevant provisions of the Criminal Code, dealing with these matters, read as follows:

Section 151: Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the

body of a person under the age of fourteen years, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

Section 152: Every person who, for a sexual purpose, invites, counsels or incites a person under the age fourteen years to touch, directly or indirectly, with a part of the body, or with an object, the body of any person, including the body of the person who so invites, counsels or incites, and the body of the person under the age of fourteen years, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.

In 2002, there was no mandatory minimum sentence for either offence. By virtue of Bill C-2, an amendment to amend the Criminal Code (protection of children and other vulnerable persons), as of November 1, 2005, both provisions were amended to include a mandatory minimum period of imprisonment of 45 days when proceeding by indictment. In August, 2012, the Safe Streets and Communities Act, S.C. 2012, c.1 s. 11 increased the mandatory punishment (for both offences) for indictable proceedings, from 45 days to one year, thereby eliminating an intermittent sentence.

As the acts in the present case were found to have occurred between January, 2002 and January, 2006, the earliest version of the Code, as above stated,

is relevant to the offender in this case, given that section 11(i) of the Canadian Charter of Rights and Freedoms provides a constitutional prohibition against the retroactive application of increased penalties.

Both parties agree that the following are mandatory orders required by the Code upon these convictions under sections 151 and 152 of the Code, namely:

a. A DNA order pursuant to sub-section 487.04 of the Code;

b. A ten year weapons prohibition under section 109 of the Code; and

c. Registration of the accused as a sexual offender under sub-section 490.13(2)(b) of the Code.

The Crown requests and the defence, depending on the sentence determined, does not dispute that there be a non-communication order prohibiting direct or indirect communication by the accused with S. during any period of his incarceration, pursuant to sub-section 743.21.

SENTENCING SUBMISSIONS BY THE PARTIES

The Crown submits that the appropriate sentence in this case is between three to five years, with a credit for pre-trial custody.

The defence submits that the appropriate sentence is:

a. A reformatory period of incarceration, or

b. A conditional sentence.

AGGRAVATING FACTORS

The aggravating factors consist of the following:

1. The criminal acts of touching S. in a sexual manner and directing her to similarly touch the accused, occurred on multiple occasions over four years.

2. S., at the time, was a very young girl. She was a defenceless child who adored her father. The accused used S., his daughter, and abused his parental position of trust to comfort himself emotionally and sexually in a home environment filled with parental conflict and excessive consumption of alcohol by the accused.

3. The frequency of these criminal acts over this length of time with a very young daughter, has created long term damage to S as she referred to in her Victim Impact Statement. It is not uncommon for victims of this kind of abuse to suffer emotional damage for decades and for it to negatively impact the victim and her future relationships. S. describes her father as stealing her youth, of stealing her innocence and subjecting her to years of doubt, anger, and questioning why her father, her parent, would do this for so long and then force her to re-live his abuse publically and repeatedly in the courts since 2011, and before that as he denied and challenged her allegations in his defence of these charges.

4. There is grooming in this case to the extent of:

a) the very young age of the victim and this

father’s repeated directions as to what she should do in relation to this conduct.

b) conducting these acts on a daughter he knew to be suffering from insomnia and thereby using that issue for his opportunity and benefit, and

c) his direction to S. that she was not to tell anyone that she was sleeping with him, which was aimed at preventing any questioning or suspicion by others which, had it occurred, may have caused intervention and reduction in the harm done to this child.

I wish to be clear that the above references to S.’s allegations being challenged in the accused’s defence of these charges does not warrant or result in an increased sentence. The accused’s right to presumption of innocence and his right to contest those allegations at trial are absolute. The negative impact to S., however, of being through those proceedings and being challenged by counsel for her father in questioning as a young teenager, are substantial and confirmed in her Victim Impact Statement and constitute part of the trauma and harm to this victim.

The absence of a guilty plea results merely in the absence of a mitigating factor, nothing more.

In summary, the accused introduced and taught improper sexual conduct to this very young child over a lengthy period of time. He taught her to accept this conduct as appropriate as between a

father and daughter, between a male adult and a young female child. S. never questioned or

challenged these directions at the time. She was told to do these things and as a young child she complied with directions from a parent she then loved and trusted.

MITIGATING FACTORS

The defence correctly submits that the sexual abuse in this case could have been and was not worse. There was no intercourse, no ejaculation, no multiple victims, no gratuitous violence in excess of the sexual abuse, nor threats thereof, no other sexual offences against this or other victim and no filming of or exposure of this child to sexual materials.

The mitigating factors include the following matters:

a. The accused had no criminal record at the time he stopped this sexual abuse of S. Nor did he have any criminal record in 2010, when S. first revealed these allegations to her mother.

b. When S. became nine years old, the accused unilaterally stopped this abuse of his daughter without intervention by authorities or his spouse.

c. The accused has not breached his terms of recognizance or bail, if any, in relation to these charges, or in relation to S.

d. The accused, at the conclusion of counsel’s submissions as to sentence, addressed this Court, and in doing so, addressed S. He

acknowledged that he sexually abused S. as charged and convicted. He expressed regret and remorse for these actions. These statements, however, are in direct contradiction to his testimony at trial.

e. In the above address to this Court, the accused directly links this abuse of S. to his addiction to alcohol. I questioned counsel as to what impact this alcohol addiction should have on sentence, given society’s recognition that addiction to alcohol is a sickness. My conclusion on this point is that this sickness of this accused should have little, if any, impact on this sentence for the following reasons:

i) The accused was not impaired by alcohol 24 hours a day during this four year period. During periods of sobriety, at home or at work, he occasionally must have been conscious that he was sexually abusing this child. Despite that knowledge, he did nothing to protect this child from his subsequent abuse which continued for years.

ii) I am further troubled with the fact that the accused was not forthright in his testimony as to the role of alcohol in his life during this period of time.

The accused testified that his alcohol consumption only became problematic in 2007.

Not mentioned in his testimony in this trial is his statement to the author of the Pre-Sentence

Report that upon graduating from university in 1993, he was drinking 26 beers every two days, which led to a psychosis and he was thereupon hospitalized for two weeks. He stated to the author of that Report, that thereafter, he reduced his consumption, but later that he was “self-medicating” with the use of alcohol during the marriage. The accused’s medical doctor, Doctor Khazzan, reported that the accused, “suffered from chronic alcoholism since about 20 years.” The accused acknowledged to the author of this Report that his consumption of alcohol was historically problematic in his prior relationships and had negatively impacted his employment.

The accused’s addiction or misuse of alcohol did not become problematic just prior to he and his wife separating in 2007.

f. What is relevant regarding the potential risk of future abuse by the accused of this nature towards members of society is the fact that:

i) The accused has accessed therapy and treatment for his addiction to alcohol. With that assistance he remains determined to remain sober and involved in Alcoholics Anonymous.

ii) The assessment performed by Doctor Fedoroff concluded that the accused, based on an actual risk assessment, is in the “low” risk category, with an appropriate sexual re-offence risk of one per cent within five years.

iii) The Phallometric testing results indicate the accused’s primary sexual arousal is towards adult women. Sexual pedophilic arousal was not clinically significant upon testing.

iv) The absence of any history beyond this case of sexual crimes or history of attempting to resume sexual abuse of this daughter after she turned nine years of age are, in the opinion of Doctor Fedoroff, very favorable prognostic indicators.

v) The length of abstinence of abusing S., combined with the fact this is a case of incest, in the opinion of Doctor Fedoroff, points towards a reduced risk of re-offence from this type of conduct, provided the accused abstains from alcohol which increases the risk addressed in that Report.

The loss of employment and resulting financial difficulty to the accused, the loss of his marriage and the loss of contact with his children are not, in my opinion, mitigating factors on this sentence, as those results are at least equally attributable to his addiction to alcohol.

SENTENCING PRINCIPLES

The principles of sentencing contained in the Code include:

a) Section 718(1)(a) – to encourage crime prevention, respect for the law and a just and safe society through the imposition of

sanctions aimed at denunciation, deterrence and separating offenders from society if required; rehabilitation; reparations for harm done or promote responsibility and acknowledgement of harm. Those principles include section 718.01.

b) Section 718.01 – Both counsel agree that from among the factors listed in section 718, deterrence and denunciation are the principle considerations in this case.

c) Section 718.2 – the aggravating principles to be considered include those mentioned above, as reflected in sub-section 718.2(a)(ii.1)(iii) and (iii.1), namely; an abuse of trust or authority, and abuse of someone under 18 years of age with a significant negative impact on the victim are all relevant in the present case.

Pursuant to section 718.2, the applicable sentencing principles that are to be considered include:

A) Similar offenders, offences and circumstances. These are inapplicable.

B) Loss of liberty, being the second element in this section, is to be avoided if a less restrictive sanction is appropriate. That is inapplicable.

C) Sanctions other than imprisonment, if reasonable, must be considered.

D) Section 718.3 – The Court, subject to legislation, has sentencing discretion; there

is no minimum punishment unless legislated.

JURISPRUDENCE

I agree with the Crown that the general sentencing principles in a case such as this are contained in the two Ontario Court of Appeal decisions of R. v. D.(D), (2002), 2002 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), and R. v. D.M., 2012 ONCA 894.

The Court in R. v. D.(D.) held that as a general rule, adults in a position of trust who sexually abuse children for a lengthy period of time can expect to receive mid to upper single digit penitentiary terms (paragraph 44).

The facts in this case, in my opinion, are less serious than those in R. v. D.(D.).

In the present case before this Court:

• There was no physical violence

• There was only one victim

• There were no threats

• The victim was the accused’s biological daughter

• The acts were correlated to the accused’s addiction to alcohol

• The accused appears to exhibit some remorse

• The accused is motivated and is undergoing alcoholic abuse treatment

The facts in the present case akin to those in R.

v. D.(D.) are:

• The abuse persisted over a lengthy period of time

• The abuse included repeated and persistent acts

• The victim was within the same age range as those in R. v. D.(D.)

• The accused did not plead guilty

The facts in R. v. D.M., supra, are closer, in my opinion, to the present case.

The Court in R. v. D.M. held that the earlier jurisprudence indicating a sentence range of three to five years for these types of offences is no longer applicable.

In R. v. D.M., the court stated at paragraph 66:

“However, several decisions of this court in the last decade demonstrate that the range outlined in R. v. B.(J.), is no longer appropriate. We have recognized that sexual abuse of children by a person in a position of trust or authority now warrants more severe sentences, and where the abuse includes sexual intercourse, in most case, a three to five year range is too low.”

The appeal court reduced the sentence in R. v. D.M. to four years. The accused in that case, a university professor, sexually molested his step- daughter over eight years when she was between 11

and 20 years of age. The conduct consisted of sexual touching by the father, digital penetration, but no intercourse. Unlike the present case, the accused, D.M., admitted his criminal conduct to C.A.S. and police and, following a voir dire at trial, admitted his statement to police, namely having performed the acts alleged. The trial proceeded as to the disputed frequency of the abuse which the trial judge determined ultimately, was “almost unrelenting”. The appeal court reduced the trial sentence of five years to four years as there was no sexual intercourse, no oral sex, and the accused had no prior criminal record. The frequency of abuse over eight years led the appeal court to state that a “severe sentence was required” and determined that sentence in that case to be four years.

The defence in this case submitted a number of decisions for consideration, particularly several of which pre-date the above 2012 Court of Appeal decision in R. v. D.M., and must therefore be considered in light of the latter directions from the Court of Appeal. A number of these earlier decisions rendered a sentence of incarceration in the range of two years, as well as several years of probation.

R. v. P.M., 2012 ONCA 162, [2012] O.J. No. 1148, by the Court of Appeal involved more serious assaults on the child, including vaginal and anal intercourse. It appears the accused was suffering P.T.S.D. from military service abroad. The appeal court stated the

sentence of six years by the trial judge was light,

but upheld the sentence.

The Court, in R. v. B.J.W., [2012], O.J. No. 1196, imposed a sentence of four years for convictions of invitation to and sexual touching of a nine year old, and with threat of death, forcing the child to perform fellatio on him on one occasion while the accused was in a position of trust. That accused had no criminal record.

The present facts are too serious in nature, too frequent and continued over too long a period of time to consider a sentence to be served in the community.

The factors in this case, namely;

• The principle objective, as per R. v. D.M., paragraph 63, are denunciation and deterrence;

• The breach of trust by this father;

• The young age of the victim, namely six to nine years of age at the time;

• The frequency of such abuse over a four year period of time;

leads me to the conclusion that two years less a day is insufficient.

Anything in excess of four years on these facts would be excessive. The length of abuse in this case is materially shorter than in R. v. D.M.,

however, the severity of that factor, after several years, diminishes.

On:

a) Count 1, the accused is sentenced to three years and six months, to be served concurrently with his sentence on

b) Count 2, on which the accused is sentenced to three years and six months.

Against the above length of sentence, which is three years and six months, the accused is to be credited for custodial time to date. The credit is eight days.

As stated previously, there will be ancillary orders consisting of:

• A D.N.A. order, pursuant to sub-section 487.04 of the Code.

• A ten year weapons prohibition under section 109 of the Code, and

• Registration of the accused as a sexual offender under sub-section 490.013(2)(b) of the Code for a period of twenty years.

• There will be, pursuant to sub-section 743.(2.1) of the Code, an order prohibiting communication – an non