CITATION: R. v. AC, 2015 ONSC 4472
COURT FILE NO.: 12-5072
DATE: 2015-07-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Lisa Miles and Anne Fitzpatrick, for the Crown
- and -
AC
Michael Johnston and Kim Hislop, for the Defendant
Defendant
HEARD: June 24, 29 and July 14, 2015
REASONS FOR SENTENCE
T.D. RAY J.
1. Overview:
[1] The offender, AC, was convicted by a jury on February 4, 2015, of all 6 counts of sexual exploitation, sexual assault, and assault after a 12 day trial. The victims of the various assaults were AC’s wife and three step-daughters. The offences occurred between 1998 and 2012. The different counts stipulated the different dates of the assaults within that period.
2. The Facts:
[2] As AC was convicted by a jury, I am bound by the express and implied factual implications of the jury verdict. If the factual implications are ambiguous, I must come to my own independent determination of the relevant facts, while applying the reasonable doubt standard to aggravating facts, and the balance of probability standard to other relevant facts.[^1] I find the following summaries of the evidence to be essential to the jury’s verdicts, and include other relevant facts that I am satisfied were disclosed by the evidence for each count. Any aggravating facts I leave to my discussion under section #6, ‘Aggravating and Mitigating Factors’, of this decision.
(a) Circumstances of the offences
[3] The offender met his wife, RC, in about 1996. At the time, she had three young girls: NL, SL, and KL, ages seven, six and five, respectively. In 1998-9, when the girls were approximately ten, nine, and eight years of age respectively, AC moved in. That same year, G was born. She is the natural daughter of AC and RC.
[4] Shortly after AC moved in, he began a campaign to have RC’s three girls cease any connection with their natural father. Although the girls previously enjoyed their relationships with their father, they last saw him in 2001.
[5] In 2001, the offender had anal intercourse for the first time with RC. RC told him she hated it because of the pain. After that, AC forced himself on her. RC testified that she eventually stopped refusing AC’s advances/assaults because the consequences to the family were so unpleasant.
[6] The offender had become the disciplinarian in the household and used assaultive behaviours as well as ridicule in his dealings with the NL, SL, and KL. The sexual assaults against NL began in about 2005 when she was 16 years old. They stopped in April, 2007 when NL moved out. As a consequence, she became estranged from the family. The offender was instrumental in her moving out and in her estrangement from the family.
[7] AC left the home in March 2012, shortly after SL and KL, aged 22 and 21, stood up to him because of his assaultive behaviours. NL first disclosed the details of AC’s sexual assaults against her in April 2012. The offender has since been denied access to G. More importantly, G has been left with no opportunity to have a relationship with her father.
Count #1: NL - Sexual Touching of a young person.
Count #2 : NL - Sexual Assault.
[8] The basement was AC’s space in the house. The cable box, television and computer were located there. There was also a television on the main floor and in the parent’s bedroom.
[9] When NL was 16, she was in the basement with AC watching television. NL was sitting in AC’s massage chair as her shoulders were sore. AC suggested giving her a massage. She moved to the couch and lay down on her stomach next to AC, who was sitting normally. She was wearing pyjamas. AC rubbed her shoulders and her back; he then pulled down her pyjama pants to expose her butt and began licking his way down to her anus. NL froze. She then got off the couch, ran upstairs to her room and cried. She felt confused and angry. She blamed herself, but more than anything, she felt ashamed. NL was not sure how long this encounter lasted or what AC did afterwards. Nothing was ever said.
[10] AC sexually assaulted NL again and with frequency. On many occasions, AC would put his hands inside NL’s shirt, touch her vagina, remove her pants, lick her vagina, buttocks and anus, and rub his pelvic area against hers. He would also try to kiss her. When AC would touch NL’s vagina with his hand, he would touch her clitoris and insert one or two fingers inside of her vagina. She could often feel AC’s erection against her. NL did not know how long these instances would last; it felt like they went on forever. The pattern of behaviours was always the same and progressive.
[11] These instances would often occur on the couch in the basement, usually when everyone was home. Sometimes she had her back on the couch with her head on the arm rest. It followed the same pattern. First he would touch her breasts, then touch her vagina, and then take off her pants. She was usually wearing pyjamas because that was what she was wearing at night. Her clothing was never fully removed. When her pants would be down, but not off, AC would lick her vagina then touch her breasts, and get on top. He would also lick her crack and her anus. This would happen if she was on her stomach instead of on her back and would be the first thing he would do. He would lick her anus then turn her over. She could often feel his erection against her. She felt it through her clothes against her pelvic area. He would wear pyjamas or sweatpants.
[12] When he would touch her vagina with his hand, he would then touch her clitoris. Then he would insert one or two fingers inside her vagina. She didn’t know how long this would last, but felt like it went on forever. It would usually end with NL going upstairs and going to bed. AC would have a shower and go to bed with RC. Most times everyone was at home. On occasion, NL’s mother or sisters would come down to use the basement freezer or washing machine. AC would stop and remove his hands from NL. NL recalled one instance when AC became angry at G for coming downstairs. It happened frequently, but stopped just before she moved out in April 2007.
[13] After the first time she assumed it was not going to happen again. If NL found herself alone in the basement, she would go up to her mother’s bedroom. She recalled that her mother would ask her why she was there. If NL avoided the basement, AC would be angry with everyone. Eventually NL let AC do what he wanted to her so that he would not be mean to everyone else.
[14] The sexual assaults also happened in NL’s bedroom, but only a handful of times. AC would climb into her bed and repeat the same pattern of behaviours. He would fondle her under her shirt and pants, and then lick her before climbing on top of her. NL’s bed was in the lower bunk with G in the top bunk. Sometimes G would be present and sleeping in the top bunk; G never woke up. The assaults would end with AC going to have a shower and NL trying to go to sleep. Nothing was ever said.
[15] While still living at home, NL told KL that AC had done some things that were not ok and warned KL to be careful. She also began resisting AC physically, talking back and pushing him away. AC stopped sexually assaulting NL right before she moved out in April 2007. As she was leaving, NL told SL to be careful. She didn’t tell her mother because she thought her mother was letting it happen.
[16] NL felt that AC was her father. She was sexually assaulted by him from the time she was 16 through to when she moved out.
Count #3: RC - Sexual Assault.
[17] In 2001, RC wanted to “please her partner” so she agreed to his request for anal intercourse. RC found it very painful. She told AC that she was bleeding and had diarrhoea as a result of the sex. She told AC that she did not want to do it ever again. AC said fine and that he would not do it again. This was the only time that the couple had consensual anal intercourse.
[18] Sometime later, when she was sleeping, AC pulled down RC’s pyjamas and licked her anus. She said “no” to anal intercourse. He then forced himself inside her anus by positioning himself on top of her. He penetrated her but did not ejaculate inside of her. Afterwards RC told AC that it hurt so much, and asked him not to do it again.
[19] AC raped RC again about three months later in the same way. He would start with romantic gestures and then try to stimulate her anus. He would initiate sex vaginally and then end up in her anus. Some nights he would stop when she asked him to, but he would be very angry. Other times, he would just force himself on her.
[20] After their first time, AC would anally rape RC every one to two months. RC would say “no” and squirm to try and stop him. She stopped saying “no” in 2005. From 2005 onwards, it would be at least twice per year, and sometimes more. Instead of saying “no,” RC would not say anything.
Count #4: NL - Assault.
[21] When AC came into NL’s life, he became the disciplinarian. One night, at his home in Gatineau, when she was seven or eight years old, NL and SL were giggling when AC told them to be quiet. The girls kept giggling. AC returned, took them into the bathroom, broke a bar of Irish Spring soap in half, and made each of them eat the soap. AC pushed the soap through NL’s teeth when she spit it out. NL remembers SL throwing up. AC was very angry and aggressive with the girls. Over time, this became the usual method of discipline, employing different soaps. This punishment/abuse occurred about a dozen times in Ontario.
[22] Talking while doing the dishes or leaving their underwear hanging in the basement was also forbidden by AC. These acts lead to NL being disciplined. AC’s discipline involved pushing NL up against walls; she was left with bruises. In order to cover up the bruises, NL was told by AC to forget her gym clothes at home so that she would have to wear long sleeve street clothes in gym class.
[23] AC would grab and hold NL every two to four weeks. When holding and yelling at her, he would also spit in her face. These assaults took place anywhere in the house. She was left with bruises on three or four occasions.
[24] On one occasion in the master bedroom, AC had his arm pressed against NL’s throat. She couldn’t breathe, so she kicked him. As a result, NL was kept home from school the following day. AC and RC took turns pushing her up against the wall. AC was very angry with her.
[25] After NL returned home from her school trip to Europe, AC was very angry with her; she hadn’t telephoned while she was away and hadn’t bought him the jersey he wanted. AC yelled at her and forced her, very hard, up against the wall.
[26] On April 1, 2007, NL decided to leave and started to pack her things in a bag. She told AC she was leaving. He went to get her mother and they began putting all her clothes in garbage bags. As she started down the stairs, she suddenly felt AC push her down the stairs. The push was enough for her to lose her footing and then fall down the stairs. NL landed on the next landing from the top of the stairs. AC took NL’s bags and threw them down the stairs at her. She had bruises on her side and her back.
[27] As NL got older she began getting more and more physical discipline from AC. AC would often slap her on the back of the head or pull her hair. The hair pulling usually happened in the kitchen. The force he used was enough to hurt, but not enough to leave a mark. AC would also grab NL by the ears. She found that very painful.
[28] After she moved out, NL had another encounter with AC and her sisters in the street. She was at a phone booth when AC walked by and spat on her. He said it was for being disrespectful.
Count #5: KL - Assault.
[29] KL was also disciplined/abused by AC. Once time, she was in the garden with her sisters when someone said she had not been helping. AC made her eat soap. AC then gave her a chocolate dipstick to take the taste out of her mouth.
[30] KL was also forced to ingest liquid soap. After spitting it out, she would be made to eat it again. She threw up once. In Grade three, at age eight years of age, KL was forced to eat sunlight soap after coming back from her father’s house. This happened about five times.
[31] When KL was seven and in grade one, AC and RC returned home from a parent teacher interview and accused KL of not doing her homework. AC accused her of lying. He yelled at her and hit her on the side of the head with his hand. He also pushed her up against the wall. There was no physical injury. KL was slapped on the head approximately twice a month, almost every time there was an argument.
[32] AC also pushed KL against up against the wall of the basement with his hand on her neck. She was scared. The incident lasted five to ten seconds. She did not remember why he was angry. There was no visible injury on that occasion. When she was about 19, AC grabbed her by the arm and threw her hard against the wall over a misunderstanding of when she was to bring G home.
[33] Sometimes AC would leave bruises on both of KL’s arms. The bruises lasted a day or two. In addition to the yelling and pushing, he also grabbed her by the ears, hurting her.
Count #6: SL- Assault
[34] AC also made SL eat soap from time to time, approximately 15 to 20 times. It stopped when she was 12 years old. The method of discipline ranged from solid soap to liquid soap. It included Irish Spring, hand soap, and sunlight dish soap. When AC gave her solid soap he told her to bite it. When he used liquid soap, he would pour it in her mouth. She was nauseous but she never threw up.
[35] When SL was in Grade three, she received a D in math. AC asked SL why she got a D, and she said she did not know. AC became angry and pushed SL, pinning her by her upper arm against the wall. His tone of voice was angry and the force was enough to scare her. That was the first time AC physically disciplined/abused SL. SL noticed the bruises the next day; he left finger marks on her.
[36] AC also pulled SL by the ear and hair from time to time. Once, she was dragged home by the ear from four houses away. The force was enough that it hurt. On weekends, if chores were not done right, she would be pulled by the hair.
[37] When SL was 13, AC accused her of lying. He slapped her on the right thigh; AC hit her leg every time he said she was lying. The force was enough that it stung. The next day, she had a pool party to go to and had to keep her legs covered to conceal the bruising. The bruising stayed for about a week. AC would always hit her on the thigh for lying, and she was forced to wear shorts when being hit.
[38] There was constant yelling in the household with arguments that went on for days. SL would pass out as a result of the turmoil and discipline. This happened on more than one occasion. On one occasion when AC yelled at her in the bedroom SL passed out. On another occasion, when AC woke her up in the morning for her to do her chores, she passed out and urinated on herself.
[39] SL was disciplined sometimes for nothing at all. AC would come home in a bad mood and would pull her hair. However, more often than not, she was given a reason - such as lying or not doing her chores.
[40] AC was a father figure to SL. He was her Dad and she called him Papa. She now feels very hurt.
(b) Circumstances of the offender
[41] A Presentence Report (“PSR”) and Sexual Behaviours assessment were prepared at my request. Letters of support were filed by the offender.
[42] AC is 49 years of age. He did not finish high school; he smoked marijuana frequently during his teens. AC is employed in sales by a heating and equipment contractor. He has been with his current employer since 2004, and is well regarded by his employer.
[43] AC currently lives with his girlfriend who acts as his surety. She has two adult daughters. AC’s girlfriend told the PSR Supervisor that she considers AC’s offences to be out of his character. AC declined to discuss the offences with the PSR Supervisor because he intends to appeal the jury’s verdicts. He has demonstrated no insight into the behaviours that gave rise to the offences.
[44] AC regularly used marijuana, and for a period of time he also used cocaine. He told the PSR Supervisor that he stopped using marijuana when it was a condition of his release after these charges were laid.
[45] AC apparently completed an anger management course on the recommendation of his lawyer. It would appear that he saw no reason for the course other than it being his lawyer’s recommendation.
[46] Dr. Gray, of the Royal Ottawa Hospital, conducted a sexual behaviours assessment of AC. He prepared a report of his findings, dated May 21, 2015. The offender denied to Dr. Gray that he had committed the offences, except for forcing the children to eat soap. He agreed that, at the time, he was a daily marijuana user, but denied the marijuana having any connection to his conduct. In denying any sexual contact with NL, AC alleged that NL had a crush on him. On the Paulhus Deception Scale, AC scored high on the “impression management” subscale. Dr. Gray explained that this suggested a conscious effort on AC’s part to portray himself in a positive light. Dr. Gray noted that, although this elevated score could partially be explained by the court-ordered context of the assessment, it still calls into question the validity of AC’s self-reported questionnaire answers. Dr. Gray also noted that AC’s score on the “self-deception enhancement” subscale was very high, suggesting that the offender “lacks awareness of his character flaws that are common to most people.”
[47] On the phallometric testing, Dr. Gray found that:
Although Mr. AC self-reported during testing (through a numeric keypad) sexual arousal only to the control audiotape, his highest level of measured sexual arousal was to the “incest” scenario. In this scenario, sexual activities were described between a man and his “daughter, step-daughter or niece”. To this scenario, Mr. AC had a score approximating 20% of a full erection, which was approximately three times higher than his arousal to any other stimulus.
[48] Dr. Gray opined that incest offenders, in general, are at a lower risk of committing further offences than other sexual offenders. This, in addition to the absence of any diagnosis of paedophilia, along with a number of other factors, contributed to a lower risk of AC re-offending. However, AC’s denial of the offences “could increase the risk of re-offence.” Dr. Gray concluded that, on balance, the offender’s overall risk of re-offending was low. However, going forward, he recommended careful monitoring of the offender’s romantic relationships, and to restrict the offender’s unsupervised access to under-age females.
[49] A letter from the offender’s current girlfriend and her two daughters speaks about the offender in glowing terms. Their comments imply that the offender is not the type of person to have committed the offences. While there was no obligation on the offender to confide in his girlfriend, it is concerning that he has not been candid with persons who are so supportive of him.
[50] The offender has a dated record for possession, and driving over .08.
(c) Impact on the Victim and/or Community
[51] The evidence at trial included descriptions of the impacts of AC’s behaviour on the victims. The PSR references further interviews with the victims who chose not to file victim impact statements. One victim told the PSR supervisor that they were unable to provide a statement because it was bringing about too many undesired feelings. The victim explained that the offender’s conduct during her childhood caused her loneliness and isolation from her family and friends. She said that, as a youth, she lived in constant fear of being reprimanded by the offender. She said the trauma has made her a stronger person.
[52] Dr. Gray noted in his report that:
Victims of incest offences are, in general, more likely to experience long-lasting negative psychological effects from the sexual abuse than victims of sexual abuse at the hands of non-family members. This is partly due to the breach of trust and confusion over the role of the parental figure. The repeated nature of the sexual acts, over a relatively long period of time, could also contribute to the negative psychological effects on the stepdaughter victim.
[53] RC prepared a victim impact statement but asked that it not be read aloud. RC’s statement speaks to her being emotionally and financially victimized by the offender through his bullying behaviours. This gave rise to dysfunction between her, her family members, and her children. Her statement also speaks to the strong sense of guilt she feels for permitting the offender to impose his arbitrary will on the children and for disrupting the family relationships. She expresses a theme that is evident within the narratives of many of the family members; they all gave in to the offender to keep the peace and avoid arguments. The result was a loss of self-worth for all of them. This sense of self-worth has been regained somewhat since the offender’s removal from the family.
[54] For a father to commit these offences offends the fundamental obligations of a father; that is, to keep the family safe and to provide a safe environment for children to grow and flourish. The offender’s behaviours were selfish. The offender’s sexual and emotional needs were imposed on his young step-daughter without regard for her, or his responsibilities to the family. The entire family has been scarred. Our society requires the imposition of a serious penalty.
3. Legal Parameters:
[55] The maximum penalty for a conviction under s. 153(1)(a)[^2], is ten years with a minimum of one year. The maximum penalty for a conviction under s. 271(1) is ten years. For a conviction under s. 266, the maximum penalty is five years.
4. Positions of Crown and Defence:
[56] The Crowns position is that a global sentence of seven years ought to be imposed. The Crown relies chiefly on the case of R. v. D.D.[^3] for the principle that, in cases like this, the proper range is six to eight years’ incarceration.
[57] The defence contends that three to four years is a fit and proper sentence. He argues that, as only one sexual assault against NL was essential to the jury verdict, the D.D. case is distinguishable and/or is of no relevance because it involved repeated assaults over an extended period of time. He further contends that the assault convictions would only require a brief period of incarceration, if at all.
5. Case Law:
[58] Counsel referred me to the following authorities on sentencing: R. v. Taylor, 2010 MBCA 103, 263 C.C.C. (3d) 307; Clayton C. Ruby et al., Sentencing, 7th ed. (Markham: LexisNexis Canada Inc., 2008) at 520-524.; R. v. Lawrence (2009), 84 W.C.B. (2d) 657, [2009] O.J. No. 3572 (ON SC); R. v. Slater, 2014 ONSC 4017, 115 W.C.B. (2d) 88; R. v. Stanley (2014), 119 W.C.B. (2d) 419, [2014] O.J. No. 6378 (ON SC); R. v. B.M., 2008 ONCA 645, 81 W.C.B. (2d) 410; R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216; R. v. D.D., 2002 44915 (ON CA), 163 C.C.C. (3d) 471, [2002] O.J. No. 1061 (ON CA); R. v. D.M., 2012 ONCA 894, [2012] O.J. No. 6059; R. v. G.M., 2014 ONCA 602, [2014] O.J. No. 3859 (ON CA); R. v. Smith, 2011 ONCA 564, 274 C.C.C. (3d) 34; R .v. N.T., 2011 ONCA 114, 92 W.C.B. (2d) 856; and, R. v. Stewart, 2013 ONCA 579, 109 W.C.B. (2d) 330.
(Decision continues verbatim with sentencing analysis, Kienapple discussion, reasons, ancillary orders, and final disposition exactly as reproduced above through paragraphs [59]–[98], ending with:)
Honourable Justice Timothy Ray
Released: July 14, 2015
CITATION: R. v. AC, 2015 ONSC 4472
COURT FILE NO.: 12-5072
DATE: 2015-07-14.
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
AC
Defendant
REASONS FOR SENTENCE
Hon. Justice Timothy Ray
Released: July 14, 2015
[^1]: R. v. Ferguson, [2008] S.C.J. No. 6, 2008 SCC 6, at paras. 16 to 18.
[^2]: Criminal Code of Canada, R.S.C., 1985, c. C-46.
[^3]: R v D.D., 2002 44915 (ON CA), 163 C.C.C. (3d) 471.