Court File and Parties

Court File No.: 22325/14 NJ Date: 2015-07-09 Superior Court of Justice - Ontario

Re: Regina v DH

Before: E.M. Morgan J.

Counsel: Tracy Vogel, for the Crown Donald Powell, for the Defendant

Heard: Trial: March 10 -12 and 23-24, 2015; sentencing submissions: June 9, 2015

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

Sentencing Judgment

[1] The Defendant was charged with three counts of sexual interference and three counts of sexual assault in relation to acts of oral and anal sex he perpetrated on his biological son.

[2] On April 14, 2015, after a four day trial before me as judge alone, convictions were entered on two counts of sexual interference and one count of sexual assault. The balance of the charges are stayed under the principle set out in R v Kienapple, 1974 CanLII 14 (SCC), [1975] 1 SCR 729 barring multiple convictions for the same cause.

[3] The incidents in issue occurred in April 2004, when the victim was 6 years old. He is now 17 years old.

[4] It is an understatement to say that the sexual acts done to this child by his father have had a serious effect on his life. The impact has been devastating for him and his family. He suffers from personality disorders, has found it impossible to maintain healthy relationships with those around him (including with his own mother), has been placed in group homes, has performed poorly in school, and has generally been an angry and anti-social youth.

[5] Indeed, his victim impact statement says that the Defendant’s violation has caused him over the years to act out in physical aggression, to engage in inappropriate sexual actions with the other people around him, and to suffer depression. It also caused him to blame his mother and himself for all his troubles, and has caused his family serious economic impact. The victim’s testimony at trial expressed the shame and degradation of these events.

[6] The Defendant has a criminal record, including one previous conviction for sexual interference with a minor. However, the current offenses pre-date that offense; the Defendant was a first time offender when the acts in issue were committed.

[7] After the previous conviction, the Defendant attended the Sexual Offender Relapse Prevention Program and the Sexual Offender Group program at CAMH. He has been diagnosed with Pedohebephilia (a sexual preference for pre-pubescent children). He has not committed any offense since 2009, and is in the process of upgrading his job skills to suit the contemporary employment market.

[8] In R v M (C), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at 566, Lamer CJC articulated the objectives of sentencing in an instructive way:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of the community.

[9] For cases of sexual assault of a child, the Court of Appeal has indicated that the key factor is protection of the child and other children in society. In R v Woodward, 2011 ONCA 610, [2011] OJ No 4216, at para 76, the court specifically noted 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.

[10] The Defendant’s offense is a particularly heinous one. He is convicted of performing oral sex and compelling oral sex to be performed on him, as well as forcing anal intercourse on a six year old. The Court of Appeal has said on a number of occasions that, “Harm occasioned to children by adult sexual predators is cause for concern”: R v DD, 2002 CanLII 44915 (ON CA), [2002] OJ No. 1061, at para 45; R v Woodward, supra, at para 73. If anything, the cause for concern is all the greater where the perpetrator is the child’s own father.

[11] Generally speaking, sentencing must be proportionate to the gravity of the offense, taking into account mitigating factors. In the Defendant’s case, there is limited mitigation. He opted for a full preliminary inquiry and trial, which is his legal right for which he cannot be faulted; however, this course of action did nothing to mitigate the traumatic effect on the child complainant. Moreover, the Defendant continues to be in denial; although it was clear at trial that he had a good relationship with his son in the past and that he feels bad about the problems his son has had in recent years, he does not take personal responsibility and thus shows no remorse for the offense.

[12] The offense itself was an act of aggression that attacked the emotional and physical integrity of the child. It was not a momentary loss of control by the Defendant, but a violation of a person for whom he was in a position of trust. A child’s loss of the ability to love and trust a parent is something that is impossible to restore. The victim in this case has suffered a kind of psychic damage from which he may never fully recover.

[13] An appropriate sentence should be in line with sentences imposed on similar offenders who perpetrate similar offenses in similar circumstances. Counsel for the Crown suggests that the range of incarceration in these circumstances, where there is breach of trust and sexual assault culminating in penetration, is 5-8 years. Counsel for the defense suggests that the appropriate range is somewhat shorter, 3-5 years, given that the offenses did not occur over a protracted period of time, but rather stopped when the victim was six years old and never recurred.

[14] In R v D(M), 2012 ONCA 894, [2012] OJ No 6059, at para 66, Laskin JA stated that, “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 cases, a three-to-five year range is too low.” He went on to specify, at para 68, that aggravating circumstances for such offenses include, inter alia, “sexual intercourse (vaginal or anal), oral sex, incest…” These are the very acts for which the Defendant has been convicted here.

[15] Likewise, in DD, supra, Moldaver JA (as he then was) indicated that a 9 year sentence is at the low end of the spectrum where there was breach of trust together with intercourse with a multiple underage victims. As a follow-up, the Court of Appeal has commented in subsequent decisions that, “…while the number of victims will be a factor, the instruction from DD does not become inapplicable where there is only one victim”: R v DM 2012 ONCA 520, [2012] OJ No 3616, at para 36 (Ont CA).

[16] On the other hand, one factor leading to the number of years imposed in the DD case was that the sexual assaults were committed on “a regular and persistent basis over substantial periods of time”. That is a distinguishing point in the present case, where the Defendant’s offending conduct ceased almost as suddenly as it began. The acts for which the Defendant has been convicted took place over the course of two weeks in April 2004, and were never repeated.

[17] In R v PM, 2012 ONCA 162, Rosenberg JA reviewed the historic evolution of sentencing for this type of case. At para 43, he noted that, “Each case will, of course, turn on its own acts and sentencing is a highly individualized exercise.” He then went on to explain, at para 46, that, “where a father has committed repeated acts of incest with his daughter over many months, as in this case, it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years.”

[18] Counsel for the defense cites R v B(J), [1990] OJ No 36 (Ont CA), where Blair JA indicated that 3 to 5 years is the appropriate range in a case of this nature. He concedes, rightly, that this calculus has been modified more recently, and that Laskin JA specifically qualified this in D(M), supra, at para 66, where he stated: “However, several decisions of this court in the last decade demonstrate that the range outlined in R v B(J) is no longer appropriate.”

[19] To this end, Rosenberg JA opined in PM, supra, at para 47, that a 5 year sentence is “a lenient one and at the bottom end of the range.” In that case, the victim was the defendant’s daughter and the abuse took place over a period of 13 months when the child was 13 to 14 years old. The defendant there had pleaded guilty and was remorseful, and had the support of his family including the support of the victim herself.

[20] In R v DM, 2012 ONCA 520, [2012] OJ No 3616, at para 32, Feldman JA provides a relevant summary of aggravating and mitigating factors in a case such as this one: “…the age of the victim, the duration and frequency of the sexual assaults, the criminal record of the offender, the effects on the victim and the presence or absence of collateral violence and remorse.” The Defendant here has no criminal record that is relevant to this offense, and his sexual acts did not take place in a context of collateral violence in the form of beatings, etc. On the other hand, as indicated above, he expresses no remorse and perpetrated his acts when his son was at a young and very vulnerable age.

[21] Overall, the Crown and the defense are not that far apart on what they consider to be the appropriate range of sentence. Having regard to the range set out in the more recent cases, and the comments made by the Court of Appeal, I am of the view that the low end of this spectrum as articulated by Blair JA in B(J) is too low, and that the high end of this spectrum as articulated by Moldaver JA in DD is too high.

[22] Under the circumstances, the Crown posits that 5 years is at the low end of the appropriate range, and the defense posits that 5 years is at the high end of the appropriate range. I consider 5 years to be the appropriate term of imprisonment, taking all of the aggravating and mitigating factors into account.

[23] Mr. DH, please stand at this time.

[24] In all of your circumstances and those of the offence, I sentence you to a period of 5 years’ incarceration.

[25] In addition, as suggested by counsel for the Crown, you are prohibited for the rest of your life from possessing any firearm or other weapon or ammunition as set out in s. 109 of the Criminal Code. I also make a DNA order pursuant to section 487.051(2) of the Criminal Code.

[26] Further, pursuant to s. 161 of the Criminal Code, you shall not

(a) attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(b) be within two kilometres of any place where your son, the complainant/victim in this matter, ordinarily resides, is employed, or attends school;

(c) seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(d) have any contact – including communicating by any means – with a person who is under the age of 16 years, unless you do so under the supervision of a person whom the court considers appropriate.

[27] Finally, you are to register as a sex offender under the relevant provincial and federal registries.

[28] Mr. DH, the Court of Appeal has been clear that where sexual acts are performed on a young person by a parent or a person in loco parentis, the sentence must reflect society’s abhorrence not only at the physical abuse, but at the breach of trust. The terrible consequences of this incident for your son have underscored the need for you to control any and all sexual impulses toward children. I trust that you will contemplate this in the years ahead.

Morgan J.

Date: July 9, 2015