CITATION: R. v. D., 2015 ONSC 4204

COURT FILE NO.: 12-SA5040

DATE: 2015/06/19

PUBLICATION BAN IN EFFECT UNDER S. 486.4

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D. A. D.

Accused

J. Semenoff, for the Crown

O. Abergell, for the Accused

HEARD: April 16, 2015

REASONS FOR JUDGMENT

Aitken J.

Offences

[1] On May 28, 2014, I found D.D. guilty of four offences against his daughter, K.D.: three counts of sexual exploitation and one count of sexual assault. The circumstances of the offences and the context in which they occurred were set out in detail in my written reasons released on that date, and I will not repeat them now.

Kienapple Principle

[2] The Kienapple principle precludes multiple convictions for sexual assault and sexual exploitation arising from the same facts. In this case, counts two and four relating to sexual exploitation and count three relating to sexual assault arise from the same facts, namely: D.D. measuring K.D.’s breasts, waist and hips; D.D. conducting a breast examination on K.D.; and D.D. touching K.D. with a vibrator. Consequently, the convictions under counts two and four shall be conditionally stayed. D.D. shall be sentenced only in regard to count three (sexual assault) and count five (sexual exploitation arising from D.D. inviting and counselling K.D. to touch her body with a vibrator).

Positions of the Crown and Defence

[3] At the time when these offences were committed, sexual assault under s. 271(1) of the Criminal Code, R.S.C. 1985, c. C-46 carried a maximum sentence of 10 years and sexual exploitation under s. 153(1)(b) of the Code carried a maximum sentence of five years. Mandatory minimums for these offences were introduced in November 2005. In that it has not been proven beyond a reasonable doubt that the offences occurred after that date, no minimum sentence applies to either offence.

[4] Crown counsel seeks a global sentence of 30 months.

[5] Defence counsel argues for a conditional sentence, or a conditional sentence on one count and a short custodial sentence of no more than six months on the other.

D.D.’s Circumstances

[6] D.D. is a divorced, 54 year-old, career civil servant with no previous criminal convictions and no outstanding charges. He lives on his own in rental accommodation in an Ottawa suburb. He can retire from the public service in 2016 at the age of 55.

[7] D.D.’s family of origin consisted of two parents and five children, with D.D. being the eldest sibling. The family lived on a farm southwest of Ottawa, where D.D. remained until he married at the age of 27. D.D. reported having a stable and positive childhood and, until the allegations that led to these convictions surfaced, a good relationship with his siblings and their families. At this point, his parents remain supportive; however, his siblings refuse to speak to him and he is banned from attending any family gatherings where his nieces and nephews may be present.

[8] D.D.’s marriage to his wife, L.D., ended in 1999 when she learned of D.D.’s infidelity with a co-worker. The couple have two children: K.D., now 25, and B.D., now 23. Neither child wants to have any continuing relationship with their father, and they have distanced themselves from him since K.D. started university.

[9] L.D., K.D., B.D., and one of D.D.’s brothers have indicated that D.D. has a temper. K.D. described her father as being unpredictable in the sense that she could never tell what little thing might send him into a rage. She tried to please him, but was not always successful. It was in this climate that the sexual offences occurred.

Report of Dr. Jonathan Gray

[10] Dr. Jonathan Gray, a forensic psychiatrist at the Royal Ottawa Mental Health Centre completed a court-ordered sexual behaviours assessment in August 2014. That assessment consisted of four lines of investigation: an in-person psychiatric interview, a battery of biochemical laboratory tests, a series of self-reported psychological questionnaires, and phallometric testing.

Psychiatric interview

[11] D.D. did not report to Dr. Gray any symptoms, behaviour, or episodes suggestive of any form of mental illness. The sexual history he reported to Dr. Gray was unremarkable, aside from one episode of sexual abuse of himself and his brother by a parish priest. D.D. denied being attracted to pubescent or prepubescent males or females.

Biochemical laboratory tests

[12] D.D.’s hormonal tests were within the range of normal for his sex and age.

Self-reported psychological questionnaires

[13] In regard to all of D.D.’s psychological questionnaire results, it must be noted at the outset that he scored very high on the impression management subscale, indicating that he was deliberately attempting to portray himself in an overly-positive light to those administering the tests. Consequently, little weight can be assigned to the questionnaire results.

[14] On the sexual functioning inventory scale, D.D.’s scores were particularly low in regard to sexual information, sexual experiences, and sexual drive, and in the low normal range otherwise. This profile could be consistent with a typical sexual offender with some impairment in sexual functioning. According to Dr. Gray, studies have shown that those who commit sexual offences tend to have below average levels of sexual functioning. D.D.’s scores in regard to propensity towards physical aggression, verbal aggression, anger, and hostility were average or low. He scored within normal ranges in regard to impulsivity.

[15] There was no indication on the questionnaires that D.D. struggled with alcohol or drug dependency, and he reported no difficulties in this regard.

[16] In regard to statements typically made by sexual offenders against children, D.D. did not endorse any cognitive distortions in the area of children and sexuality; however, Dr. Gray could not discern whether this was the result of D.D. attempting to create a good impression, whether it was because D.D. genuinely did not have such cognitive distortions, or whether his psychological counselling several years ago assisted him to move off such thought patterns.

Phallometric testing

[17] Dr. Gray reported that, overall, D.D.’s phallometric profile was relatively normal, with his highest response being to the control videotape depicting heterosexual sexual intercourse. In Dr. Gray’s view, it is very unlikely that D.D. suffers from pedophilia.

Risk Assessment

[18] D.D. received a score of 0 on the STATIC-2002-R, a well-recognized actuarial risk assessment instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders. He is in the lowest of five ascending risk categories, with 95.4 to 100 percent of Canadian sexual offenders being at a higher risk of reoffence.

[19] Dr. Gray also noted that incest offenders are at a much lower risk of committing future sexual offences than those who have extra-familial victims. As well, D.D.’s relatively advanced age at the time of sentencing also contributes to this low risk, as does the fact that there is no evidence that he ever engaged in a sexual offence when he was younger or that he has committed any further sexual offences since those committed against his daughter.

[20] Dr. Gray opined that: “D.D.’s offences could be explained by his extremely poor judgment with respect to father and daughter relationships and sexuality, and his odd beliefs around sexual education.” In terms of recommendations, Dr. Gray was of the opinion that D.D. could benefit from further counselling with his community therapist, Dr. Sharon Harrison. She, in turn, has indicated that she would be willing to resume her sessions with D.D.

Objectives of Sentencing

[21] The key objectives that guide my sentencing of D.D. are: (1) denunciation of sexual crimes against children, which can have such a devastating impact on victims; (2) denunciation of the significant breach of trust by a parent against a vulnerable child which, again, can have such a detrimental psychological impact on the child; and (3) general deterrence to reinforce not only to D.D., but to others as well, the importance of protecting children and not exploiting them sexually.

Legal Principles

[22] In R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), Moldaver J.A. (as he then was), after reviewing the dire consequences that can flow from the sexual abuse of a child, went on to summarize the range of sentences that can be expected when children are sexually abused. He stated, at para. 44:

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.

[23] In the more recent case of R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, Moldaver J.A., again writing for the court, reiterated, at para. 72, how children are our most valued and our most vulnerable assets and how we, as a society, owe it to them to protect them from the harm caused by sexual predators. For that reason, when 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” (para. 76). For that reason, the objectives of denunciation, deterrence, and the need to separate sexual predators from society take precedence over the effects of a conviction on the offender and the offender’s prospects for rehabilitation, important as those considerations are (para. 76).

[24] In R. v. D.M., 2012 ONCA 894, 295 C.C.C. (3d) 159, D.M. was found guilty after trial of sexually molesting his step-daughter repeatedly over an eight-year period when she was between 11 and 20 years old. The acts of molestation consisted of sexual touching and digital penetration, but not intercourse. Although D.M. acknowledged his acts of wrong-doing to his step-daughter and to the Children’s Aid Society, at trial, he only acknowledged culpability in regard to a few isolated acts of sexual touching. The trial judge sentenced D.M. to five years imprisonment. The Court of Appeal reduced the sentence to four years. Laskin J.A. observed that, in cases where the Ontario Court of Appeal had either upheld or imposed penitentiary sentences of five years or more, one or more of the following aggravating circumstances were present:

• Sexual intercourse (vaginal or anal)
• Oral sex
• Incest
• More than one victim
• Grooming of the victim
• Other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret
• A previous criminal record for sexual abuse.

[25] In D.M., none of these aggravating factors was present. Despite that, the Court of Appeal found that the frequency and duration of the abuse, the fact that it continued even after D.M. acknowledged his wrong-doing and had apologized for it, and the absence of mitigation through real remorse and a guilty plea, meant that a four-year sentence was justified.

[26] As Defence counsel in this case pointed out, there are cases where a conditional sentence has been imposed where a child has been sexually assaulted or interfered with by an adult.

[27] In R. v. A.G. (1998), 1998 CanLII 7189 (ON CA), 130 C.C.C. (3d) 30, 114 O.A.C. 336 (C.A.), upheld 2000 SCC 17, [2000] 1 S.C.R. 439, the Ontario Court of Appeal gave a conditional sentence of five months to an uncle for the sexual assault of his six to eight-year old niece. The assaults consisted of three brief sexual touchings over the victim’s clothing that had happened nine to ten years earlier. The offender had no criminal record. He had complied with all bail conditions. There was no suggestion that the offender had ever engaged in other such conduct. He did not pose a danger to reoffend. His actions had been completely out of character. He was supported by his family and friends, and he had always been a productive member of his community. He was gainfully employed and supporting his family.

[28] In R. v. B.S. (2004), 2004 CanLII 32226 (ON CA), 185 O.A.C. 45 (C.A.), the Court of Appeal decided that a twelve-month sentence for a first-time offender should be served in the community and not in prison. Over a period of months, the 33-year old offender, a close friend of the 13-year old complainant’s family, and someone whom she considered akin to an uncle, attempted to touch the complainant on her breasts, offered to show her his penis, kissed her on the mouth and put his tongue in her mouth, had her sit on his lap when he had an erection and both were fully clothed, and put his hand down her bathing suit and touched her buttocks. At trial, the Crown was not opposed to a conditional sentence. In determining that a conditional sentence was appropriate for an offence of this nature, the Court of Appeal focused on the following factors: the offences were out of character, the offender had the support of his wife and the community, the offender had an excellent work record and was a key man in the firm where he was employed, and the offender’s family would be subject to hardship if he were incarcerated. The Court did add the following: “We cannot disagree with the principle that some brief period of incarceration would have been appropriate bearing in mind the need for denunciation and general deterrence. Thus, the trial judge might have imposed a short jail sentence on the charge of sexual assault and a consecutive conditional sentence on the charge of invitation to sexual touching.”

[29] In R. v. A.C., 2012 ONCA 608, the Court of Appeal upheld a conditional sentence of two years plus three years’ probation imposed on a mature first offender for an historical sexual assault on a teenaged relative. The assaults occurred over a period of several months and consisted of the offender entering the complainant’s bedroom at night, touching her under her shirt, attempting to kiss her, and, on one occasion, taking her clothes off, forcefully lying on top of her, and placing his penis near her vagina. On another occasion he grabbed the complainant, fought with her to get her on his bed, and went on top of her and tried to kiss her. The Crown had originally sought a period of incarceration of three to five years. In the alternative, the Crown had asked for a sentence of two years less a day plus three years’ probation.

[30] I was also referred to several trial court decisions with a range of sentences, some conditional and some with custodial periods of two years less a day or less. I was not referred to any case that is close to being on all fours with this one.

Analysis

[31] D.D. is entitled to be sentenced under the sentencing regime in place when these offences were committed. A conditional sentence was an available option at the time, based on the provisions in the Code and the directions in R. v. Proulx, [2001] 1 S.C.R. 61. The real question is whether a conditional sentence would meet the objectives of sentencing for these offences and this offender in the circumstances of this case. Of greatest concern is whether a conditional sentence would adequately meet the key objectives of denunciation and general deterrence. Removing D.D. for the protection of society is not an important consideration, given the very low risk of reoffending that he presents. However, an important consideration is the need for D.D. to appreciate, and assume responsibility for, the harm done to K.D., B.D., L.D., and members of his birth family, by his conduct which was not simply misguided, but also criminal.

[32] The chief aggravating factors in this case are the following:

• D.D. abused his position of trust and authority in regard to K.D. There is no relationship that embodies trust and authority more than a parental one. Under s. 718.2(iii) of the Code, this is an aggravating factor.
• K.D. was a vulnerable young person who was only 14 years of age when the offences started. By her nature, which was well known to D.D., she was timid, sensitive, and susceptible to his pressure.
• D.D. took advantage of K.D. being in his sole care when he committed the offences against her. He realized that she did not have ready access to her mother or other adults who could help her challenge his sexually abusive behaviour. This made her additionally vulnerable.
• D.D.’s unpredictable rages and his withdrawal of attention and affection increased K.D.’s vulnerability by increasing her fear of a negative reaction on his part if she stood up to him. These were effective measures of control – even if they did not involve overt violence.
• D.D. was relentless in his goal to engage K.D. sexually, and his inappropriate and criminal behaviour towards her was multifaceted. This was not a one-off event. It was a series of events that went on for, at the very least, a year.
• At the time that he was embarking on this abusive behaviour, D.D. realized that it was having a harmful effect on K.D. She cried regularly when she was in his care. She would ask him not to do things, such as come into the bathroom when she was having a shower, and he would ignore her requests. Her discomfort at what he was doing was obvious to him. Finally, there could be no uncertainty on his part as to how upset K.D. was in regard to his behaviour after she told him about the conversation that she had had on the Kids Help Line.
• In committing his sexual offences against K.D., D.D. purported to be acting as any normal, concerned, and involved parent would do – simply educating his child. By trying to justify to K.D. behaviour which she felt was wrong and abusive, he added to her confusion and psychological distress. In this way, he undermined her confidence and her own good judgment.
• By sticking to his justification of his behaviour as having been done for K.D.’s own good, despite the obvious harm inflicted on K.D., D.D. has made it more difficult for K.D. to recover from the wrong he did.
• Although s. 718(a)(iii.1) of the Code was not in effect when these offences were committed, it has always been recognized that the impact an offence has on its victim is one factor that can be considered on sentencing. There is evidence about just how sad and distressed K.D. was during her teenage years as a result of her father’s behaviour. She often went to school in tears. She frequently called her mother in the evening in tears. She did not confide in anyone about what was going on in D.D.’s home to make her so upset; instead, she tried to bury all of the bad stuff and keep it to herself. It must be remembered that she had endured the break-up of her parents’ marriage and had felt dragged into the fray by her father. She did not want to revisit that atmosphere of hostility and distrust in which she and her brother were pawns. As a result, she suffered through years of psychological isolation which it has now taken years to put behind her with the help of a psychologist and supportive friends and family members.
• D.D. has shown little insight into the seriousness of his actions and the impact they have had on his daughter. This is significant when one considers that an important objective of sentencing is to promote a sense of responsibility in offenders and to promote acknowledgement of the harm done to victims and to the community. As the probation officer who prepared the pre-sentence report observed:

Of concern to this writer is the subject’s total lack of insight, understanding or questioning of his own actions. He violated the most important form of trust between parent and child. The subject claimed at one point that he was trying to protect his daughter from bullying at school, when in fact he did anything but protect her from his own inappropriate behaviour. Without, at minimum, an acknowledgement of his behaviour and the recognition of his own deviance, there is little therapeutic value that can be derived from community supervision.

[33] Certain other aggravating factors are absent:

• There were not multiple victims.
• There was no vaginal or anal intercourse.
• There was no oral sex.
• Although all sexual offences inherently embody violence, there was not the level of physical aggressivity in this case that is often present in sexual assault cases.
• D.D. did not tell K.D. not to tell anyone else or to keep his actions secret.
• It has not been proven beyond a reasonable doubt that D.D.’s motivation in committing these offences was personal sexual gratification.
• It has not been proven beyond a reasonable doubt that D.D. was grooming K.D. to become his sexual toy or partner.
• There is no evidence, aside from the fact of the current offences, to suggest that D.D. poses an on-going threat as a sexual predator.

[34] The mitigating factors are the following:

• D.D. has no criminal record.
• He has been a contributing member of society throughout his adult life, working full-time, and engaging in volunteer activities. He continues to be employed with the federal government and, if allowed to continue with his employment, will be entitled to retire in 2016.
• The offences happened approximately 10 years ago. There is no suggestion that D.D. has been involved in any sexual offences, or any other criminal behaviour, since that time.
• Once D.D. learned from his brothers that K.D. was making these allegations against him, he went for counselling with Dr. Harrison.
• Dr. Gray’s assessment, based on the four types of investigations conducted in the context of the Sexual Behaviours Assessment, is that D.D. poses a very low risk of reoffending.
• D.D. was sexually abused by a priest when a youngster – a factor that may have affected his understanding of boundaries and what is appropriate behaviour.

[35] There are other factors warranting mention. Throughout her teenage years, and as a university student, K.D. has always been concerned about what would happen to her father if she told others about his wrongful conduct. Even once she had spoken to a counsellor, her mother, and her brother, she did not immediately contact the police. She was only driven to do so when her father refused to leave her alone and continued to send her distressing emails in an attempt to justify his actions. K.D. chose not to file a victim impact statement at the sentencing hearing. It is not clear to me that sending D.D. to jail would be something well received by K.D. or other members of her family. That, of course, is not determinative of anything; however, it is one factor in the mix.

[36] D.D. has suffered significant approbation already within his family and the community. He has no continuing relationship with his children or his nieces and nephews. His siblings have distanced themselves from him. He will be in the Sex Offender Information Registration Act S.C. 2004, c. 10 (“SOIRA”) registration system for the rest of his life.

[37] I have found it very difficult to settle on a sentence that expresses the Court’s denunciation of this type of behaviour, that fully recognizes the long-term harm that is caused by the sexual abuse of a child by a parent, but which, at the same time, recognizes that on a scale of sexual misconduct, the behaviours exhibited by D.D. are at the low end, and his risk of reoffending is very low. A penitentiary sentence rarely does anything positive, other than expressing denunciation and removing an offender from society. For some types of crime, it may also act as a general or specific deterrent, though much research suggests that the deterrent effect of custodial sentences is overrated.

Disposition

[38] D.D., please stand up. Taking all of these factors into account, I am imposing a global conditional sentence of two years less a day to be served in the community. During the entire period of this sentence, you shall abide by the following conditions:

• You shall keep the peace and be of good behaviour;
• You shall appear before the court when required to do so by the court;
• You shall report to your supervisor by June 26, 2015, and thereafter when required by the supervisor and in a manner directed by the supervisor;
• You shall remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor;
• You shall notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation, and that includes should you retire during the course of this sentence;
• You shall abstain from owning, possessing, or carrying a weapon;
• You shall remain at your home except (1) to attend work, (2) to obtain medical/dental services, (3) to attend religious services, and (4) for two hours per week to purchase food and other necessities or as may be approved in advance by your supervisor;
• You shall not have any contact with K.D. or be within 500 metres from where she works, lives, or studies, or where you know her to be;
• You shall obtain psychiatric, psychological, or other counselling as directed by your supervisor and, in this regard, I recommend that you restart your counselling sessions with Dr. Harrison, with whom you already have a relationship;
• You shall sign any necessary releases to enable your probation officer to receive any assessment reports and to follow the progress you are making in any counselling or treatment program.

[39] I consider this an adequate period of time to express the court’s denunciation of this type of offence and to send a message to others who may consider taking sexual advantage of vulnerable children in their care that their behaviour will be punished. Being subject to two full years less a day of house arrest can be as onerous as a custodial sentence where the offender is able to take advantage of parole eligibility or earned remission and be subject to less restrictive conditions in the community.

[40] I decline to make any order under s. 161(1)(a) of the Code. This was a crime of opportunity that took place in D.D.’s own home. There has been no suggestion that D.D. has acted in a sexually inappropriate, aggressive, or abusive fashion with any children or young persons prior to the offences against K.D., or since that time. Dr. Gray’s assessment is that D.D. is in the category of sexual offenders with a very low risk of reoffending. It was also his opinion that D.D. is not a pedophile. The various forms of investigation in the sexual behaviours assessment suggest that D.D. is likely not attracted to pre-pubescent or pubescent children. In this context, denying D.D. the ability to go to a community centre, community swimming pool, or public park or community swimming pool, for a period of up to 10 years, strikes me as overkill.

[41] On the other hand, I will make an order under s. 161(1)(b) and (c) for a period of 10 years. In the past, D.D. coached K.D.’s soccer team. At that time, he appeared to take an interest in the sexual development of other players on the team. He tried to explain some of his inappropriate behaviours towards K.D. through reference to concerns that he had about other girls of her age becoming sexually active. There is no need on D.D.’s part to be in a position of trust or authority towards persons under the age of 16 years, or to use a computer system to communicate with children of this age.

[42] D.D., under s. 487.051 of the Code, you will be required to provide a DNA sample.

[43] You will also be required to comply with SOIRA for the rest of your life under s. 490.012(1) and s. 490.013(2.1) of the Code.

[44] Finally, you will be subject to a weapons prohibition order under s. 109(1)(a) and s. 109(2)(a) and (b) of the Code for a period of 10 years.

Aitken J.

Released: June 19, 2015

CITATION: R. v. D., 2015 ONSC 4204

COURT FILE NO.: 12-SA5040

DATE: 2015/06/19

PUBLICATION BAN IN EFFECT UNDER S. 486.4

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

AND:

D.A.D.

REASONS FOR SENTENCING

Aitken J.

Released: June 19, 2015