R. v B., 2016 ONSC 3146

Court File and Parties

COURT FILE NO.: CR-14-104 DATE: 2016/05/11 ONTARIO SUPERIOR COURT OF JUSTICE

Note: INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

BETWEEN: HER MAJESTY THE QUEEN – and – G.B. Respondent

Counsel: Matthew Collins, counsel for the Crown William Wade, counsel for the Respondent

HEARD: April 29, 2016

Reasons for Sentence

Lacelle, J.

1G.B. is being sentenced following his convictions after trial for sexual offences involving two of his daughters.

2A pre-sentence report and victim impact statements were filed with the court as exhibits at the sentencing hearing. The Crown additionally provided a book of authorities for the court’s consideration.

The Positions of the Parties

3The defence submits that a global sentence of three years and nine months imprisonment is an appropriate one on the facts of this case, having regard to the relevant principles of sentence and the wide range of sentence established for similar offences and offenders in the case law. The defence is not opposed to the various ancillary orders applicable in view of the offences committed.

4The Crown submits a sentence of five years would be fit having regard to the range set by the Court of Appeal for sexual offences against children, and the relevant principles of sentencing. In addition, the Crown seeks various ancillary orders.

5The parties are agreed that the roughly nine months that G.B. has served in pre-sentence custody should be credited at a rate of 1 for 1.

The Circumstances of the Offences

6The facts relating to the convictions were fully set out in my reasons for judgement and I will not repeat the entire background to these offences here. As far as the conduct is concerned, G.B. is being sentenced in relation to two incidents.

7The first involved his daughter J.B., who was then 17 years old. The incident occurred after she had moved in with her father. Both she and her little brother were home from school. She was in the living room with her brother, who was seated right in front of the TV watching a movie. J.B. was lying on the couch, under a blanket, still wearing her pyjamas. The accused was in the kitchen, drinking a beer.

8The accused walked over to the couch and asked if he could lie next to J.B. He mentioned how they used to cuddle when she was younger and watch TV. J.B. did not reply. The accused then squeezed himself behind her on the couch. She was not sure how to handle this, and was very uncomfortable. Her brother continued to watch TV, and did not pay any attention to what was going on behind him on the couch. The accused told J.B. he “wanted a relationship but wanted more”. She did not know what he meant by that.

9The accused then started rubbing her legs with his hand. He rubbed both sides of her legs, and rubbed the area beside her vaginal area at the top of her legs. The accused told J.B. he wanted to have a special kind of relationship. She had a feeling about what he meant, but she didn’t really know. She was thinking, “is this right?” She wanted to get out of the situation, but didn’t know how. The accused then stuck his hand under her clothing, touching her skin in her vaginal area. He stuck his fingers in her vagina. After this, the accused performed oral sex on her, under the blanket. Eventually, he stopped. J.B. estimated the sexual touching took place over a period of 10 to 15 minutes.

10A.B. was 14 turning 15 at the time of the offence involving her. This offence occurred a few months after the offence involving J.B. A.B. recalled visiting her father’s house for the week-end. Upon arriving, A.B. went to sit with her father who was on the living room couch to say hi. He was drunk. He asked her to “experience with him”. She was not sure what he meant, and whether this might be a reference to trying new drugs. Then he told her she was good looking or words to that effect, and she caught on to what he meant.

11The accused then grabbed the collar of her shirt and said her breasts were the attractive part of her. He pulled her shirt collar forward about 6 inches as he made that comment. He started rubbing her legs and arm. He touched her thighs and the top part of her arm. He said it was better to touch skin than clothing. She thought this comment was odd and sexual, and it scared her. The accused then asked if A.B. wanted to go upstairs with him. She said no. She was confused. She didn’t want to believe this was happening, and she was hoping her sister would walk in.

12The accused apologized the next day. He cried, and asked if she was going to tell. He begged her not to. She told him she was not going to say anything. She thought it would be ok because he had apologized. She also recalled that he said that this was the reason he didn’t want her around when he was drunk.

The Circumstances of the Offender

13The pre-sentence report sets out G.B.’s criminal record, which includes 6 convictions between 1999 and 2005 for various offences. There are two entries for violent offences, the last being a conviction for threatening in 2004. In addition to his CPIC record, G.B. confirms he was convicted of impaired driving and possession of marijuana in 2015. G.B. has never served a lengthy jail sentence.

14G.B. is 40 years old. He has three children with D. B., who is the mother of the victims in this case. He is now in another relationship with W.H., and they have a son together named J.B. W.H. remains supportive of the accused, and indicates they have a positive relationship. Nevertheless, she indicates the future of their relationship will be determined by how much G.B. is committed to getting counselling and staying sober. She has made the accused aware that she will leave him if he starts drinking again after completing his sentence.

15G.B.s’ background is tragic. While he enjoyed a good family life with his parents, with whom he continues to have a good relationship, he was repeatedly sexually abused as a child and teen-ager by three different offenders. While his parents obtained counselling for him to help him to address these events, it was not effective. G.B. indicates that he does not remember anything about this counselling as he has “blocked out” this time from his life.

16The accused has a limited education. He did not complete high school. While he has been employed from time to time, he is now supported by ODSP.

17G.B. has a history of drug use from the age of 14. His habit became so pronounced he would use “whatever he could afford and whenever he could afford it”. He has used marijuana, LSD, crack, cocaine and speed. He started mixing alcohol and drugs after losing his children with D.B. to the Children’s Aid Society. Over time, he started drinking more, and using narcotics less. Most recently, alcohol has been his drug of choice. He also continues to use marijuana.

18G.B. has been placed on probation four times in the past, and has been given the opportunity to address his substance abuse problem through counselling. Those efforts appear to have had a limited impact. G.B. acknowledges the extent of his substance abuse, and indicated to the author of the PSR that he intends to abstain from alcohol once he is released from custody. However, because he knows that drinking is the only way he knows how to cope with stress, and he drinks to forget, he does not think it is realistic to think he will never drink again. Nevertheless, he remains open to attending for counselling if this is mandated as part of his sentence.

19In the pre-sentence report, G.B. continued to deny his guilt, as is his right. At the same time, there is no evidence in the report, or from any other source, that G.B. has any insight into his offending behaviour, or its impact on the victims. His view is that his daughters are “playing him and his drinking”, and that they fabricated their allegations because they are angry he did not reconcile with their mother.

20The author of the pre-sentence report was of the view that G.B. requires a significant period of substance abuse rehabilitation, as well as an assessment for psychological factors that are continuing to contribute to his substance abuse. In the author’s view, if G.B. does not learn to resolve his problems without using alcohol or drugs, it is only a matter of time before he will be before the courts again. She did not recommend community supervision.

Factors Considered on Sentence

1. The Relevant Principles of Sentencing

21The relevant principles of sentencing are set out in ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. Section 718.1 directs that the sentence imposed by the court must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, the purpose of the sentence imposed by the court must reflect the principles set out in s. 718.

22In this context, the jurisprudence has consistently emphasized that the purposes of denunciation and deterrence have primacy. This has now been codified in s. 718.01 of the Code. Given the primacy of these principles, the objective of rehabilitating the offender figures less prominently.

23Section 718.2 codifies the principle of restraint. It further directs that the court should impose a sentence that is similar to sentences imposed on similar offenders for similar offences in similar circumstances.

2. The Mitigating Factors

Community Support

24G.B. has the support of his wife, W.H., and his mother, both of whom are aware of his offences. This support will be of assistance to him in addressing his substance abuse and living a pro-social lifestyle.

The Accused’s Disadvantaged Background

25The court considers the difficult circumstances G.B. faced as a child and his history of victimization. G.B. indicates he has used alcohol and drugs to deal with stress and to forget this history, and I consider that his addiction is rooted in his tragic background.

3. The Aggravating Factors

Victim Impact

26Victim impact statements were filed by each of J.B., A.B, and their mother, D.B. Each statement reveals the pain caused by G.B.’s behaviour, and its profound impact. Section 718.2 (a)(iii.1) of the Criminal Code recognizes that evidence of this kind shall be considered by a court and the sentence imposed should account for this aggravating factor.

27In this case, the evidence is that J.B. has experienced depression and suicidal ideation since the offence. In the aftermath of the offence against her, she had difficulties with school, employment, and other activities she used to enjoy. She describes living every day just hoping that one day she will forget what happened. She has anger issues, and her body is showing the effects of stress in significant ways. She feels like she will never be able to trust her father again, and is scared that her family will never be the same again. She fears that she will never feel the same as she did before the offence.

28A. describes the impact of the offences on her family. She no longer sees her little brother as often, and she feels like she has lost her family. Her schooling has been affected. She says she feels numb, and tries not to think about what happened. She has noticed her drinking has increased since her disclosure, and she feels angry that her father put her in this situation. She is also feeling the impact of the offence in her own relationships as an adolescent. She is very uncomfortable being touched in a sexual manner.

29D.B.’s statement indicates that her trust was violated by G.B.’s conduct. She feels guilty for having trusted the accused with her daughters, and that she has failed as a mother. She is the one who is now dealing with the aftermath of the offences as she tries to look after her daughters. Witnessing how hurt they are hurts her. She is also suffering the physical impact of this stress.

Breach of Trust

30The victim impact statements make plain what the courts have repeatedly recognized: sexual offending against your own child is a profound breach of trust. Parliament has also recognized this as an aggravating factor under s. 718.2(a)(iii).

31The breach of trust is further aggravated in this case by the extreme vulnerability of the victims, particularly J.B. J.B. counted on her father to offer her a safe haven in a life of turmoil. Instead, her father took advantage of her for his own sexual purposes. The impact of this type of breach of trust cannot be understated.

The Victims Were Children

32The jurisprudence and s. 718.2 (a) of the Criminal Code both recognize that the fact that the victims were children is aggravating.

33This is for good reason. Children are entitled to be protected by the adults around them. When they are not protected, but are instead victims of offences of this kind, their psychological immaturity makes them even more vulnerable to the impact of the offences. Tragically, G.B.’s own history demonstrates the difficulties many children will have in overcoming the effects of abuse of this kind.

There Were Two Victims

34It is aggravating that G.B. offended against two of his children.

The Accused’s Prior Criminal Record

35The accused has a criminal record that includes convictions for violence. However, I also consider that the record for violence is dated.

The Invasive Nature of the Assault on J.B.

36While sexual touching of all kinds may have a profound impact on the victim, I consider that the offence involving J.B. had a more invasive quality than touching alone. It involved digital penetration of her vagina as well as oral sex performed by the accused.

The Accused’s Substance Abuse

37The accused had used alcohol prior to committing the offences. He has a history of using alcohol to the point of blacking out.

38The impact of this substance abuse and its link to the offending behaviour is a difficult issue on sentencing. The defence urges that G.B.’s addiction be considered as a mitigating factor.

39The evidence in this case indicates that G.B.’s substance abuse has been problematic for some time. While I am sympathetic to the circumstances that lead him to drink, and the difficulties that he has had in overcoming this addiction, I am unable to conclude that this absolves him from the moral responsibility for what occurs when he has been drinking.

40The author of the PSR concluded that so long as G.B. is unable to address his substance abuse, he is at risk of re-offending. I agree with this assessment. In these circumstances, G.B.’s substance abuse is a risk factor with respect to his prospects for re-offending. His comments to A.B. after he touched her to the effect that this was why he did not want her around when he had been drinking confirms he understood the risk his drinking posed to his daughters. Insofar as sentencing is concerned, I view his substance abuse and the role it played in these offences as an aggravating factor.

4. The Sentence Imposed for Similar Offences Committed by Similar Offenders in Similar Circumstances

41The Crown has filed a book of authorities that address the appropriate principles of sentencing, and provide some insight into sentences imposed for similar offences by similar offenders. The cases cited are: R. v. D.D., 2002 ONCA 44915, R. v. D.(M.), 2012 ONCA 520, R. v. G.M., 2014 ONCA 602, and R. v. W.Y., 2015 ONCA 800. G.M. and W.Y. are intended to assist the court with the appropriate range of sentence. As is so often the case in these hearings, the cases involve myriad facts that differ from those at issue on this hearing. While both cases resulted in sentences of 5 years that were upheld by the Court of Appeal, they are distinguishable from the facts in this case.

42G.M. involved assaults by an offender in a position of trust on a regular and persistent basis over a period of about two years. At the time of the assaults, the victim was 11 and 12 years old. While the assaults are not described fully, the court’s endorsement indicates there was no penetration involved. The trial court found as a fact that there had been prior grooming of the child by providing her drugs and alcohol, and that the accused exploited her vulnerable state after her consumption of the drugs and alcohol he provided. The Court of Appeal found that even on those facts, the trial judge might have imposed a lower sentence, but was not obliged to do so.

43The finding of regular and persistent conduct over a period of two years distinguishes G.M. from this case. The case is also distinguishable because the serious aggravating fact of the exploitation of the victim after providing her with drugs and alcohol is not present here. While similar allegations were made in relation to J.G., the accused was acquitted on the counts relating to that allegation. While there was evidence led in the trial that I accept that the accused consumed marijuana with the two victims at various times, my findings of fact do not support the conclusion that the accused took advantage of his daughters after he had provided them with either drugs or alcohol.

44W.Y. involved a sentence of 5 years for an accused who abused his 14-year-old daughter when she came to live with him one summer. The accused pleaded guilty, and expressed remorse and a desire for treatment. He had two prior dated convictions involving sexual offences against children. Over a period of six weeks, the accused had intercourse with his daughter nearly daily. He also had his daughter perform oral sex on him twice and once took pictures of her while making her pose naked. Further, he digitally penetrated his daughter and performed oral sex on her. The Crown appealed the sentence imposed by the trial judge. In upholding the sentence of five years imposed by the trial judge, the Court of Appeal cited the fact that the offences occurred over a relatively compact period of time. While the sentence was described as being at the bottom of the range, the Court was not satisfied that it was unfit on these facts. In my view, the repeated and grossly invasive nature of the conduct at issue in W.Y., in addition to the accused’s prior related record, are significant distinguishing factors.

5. Conclusion

45These offences have had profound effects upon the victims. The court’s sentence must be one that both deters and denounces this extremely serious conduct. Given the nature of the aggravating and mitigating factors here, a penitentiary sentence is warranted.

46As to the range of sentence that is appropriate, I have considered the cases provided by the Crown, and particularly the decision of the Court of Appeal for Ontario in D.D. at paras. 34-35 and 44-45. I am guided by the direction of the court at para. 44 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”.

47Through his counsel, G.B. suggests that a global sentence of 3 years and 9 months is appropriate. I agree. G.B. was found guilty in relation to two incidents of sexual abuse. The conduct here was not engaged in on a “regular and persistent basis over substantial periods of time”, as contemplated in setting the range in D.D. In my view, something less than a mid-digit penitentiary term is appropriate. A global sentence of 3 years and 9 months is fit given all the factors to be balanced by the court.

48Consequently, in addition to the nine months pre-sentence custody served by G.B., a further sentence of three years from today’s date will be imposed.

6. The Sentence Imposed

49Pursuant to the Keinapple principle, stays are entered in relation to counts 1 and 5. Convictions will be entered on counts 2 and 6.

50G.B. is sentenced as follows:

51On count one for sentencing (count 2 on the indictment) which relates to the offence against J.B., G.B. is sentenced to 2 years.

52On count two for sentencing (count 6 on the indictment) which relates to the offence against A.B., G.B. is sentenced to 1 year to be served consecutively to the sentence on count one.

53The pre-sentence custody of 9 months is to be divided equally and applied to each count.

54While in custody, pursuant to s. 743.21 of the Code, G.B. is not to have any contact or communication, directly or indirectly with J.B., A.B. or D.B.

55Pursuant to s. 487.051 of the Criminal Code, there will be an order requiring G.B. to provide a sample of his DNA to the police for the purposes of the DNA databank. That order applies to each conviction.

56Pursuant to s. 490.012 of the Criminal Code, and in conjunction with s. 490.013(2.1), there is a SOIRA order for life.

57Pursuant to s. 109(1)(b) of the Code there is an order prohibiting G.B. from having possession of the items set out in that section for 20 years.

58There will be an order pursuant to s. 161(a),(a.1), (b) and (c) of the Code in relation to count two for sentencing for a period of 10 years. Pursuant to s. 161(a.1) of that section, the accused is not to be within 500 metres of any dwelling-house where A.B. ordinarily resides. The order pursuant to s. 161(c), will have an exception for the accused’s son J.B.

59As J.B. was 17 at the time of the offence involving her, the provisions of s. 161 do not apply to the conviction relating to her.

60The court also imposes a Victim Surcharge of $400, to reflect two convictions for indictable matters. In view of his limited financial prospects, G.B. will have two years to pay that fine. He may apply for an extension to pay it if he is unable to pay it within the two year period granted today.

61As requested by G.B., the court recommends that the correctional authorities give strong consideration to providing him with counselling for survivors of sexual abuse, and that consideration be given to placing him in a facility, such as the Pittsburgh penitentiary, with programmes addressing substance abuse and sexual offending.