Court File and Parties

COURT FILE NO.: CR/14/10000/7080000 DATE: 20160729 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN - and - P.B.

Counsel: Adrienne Samberg, for the Crown Peter Thorning, Richard Dinley and Ellen Jamshidi, for the Accused

HEARD: May 3, 2016

B.P. O’MARRA J.:

Pursuant to s. 486.4 of the Criminal Code of Canada there is an Order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

Reasons for Sentence

[1] On November 14, 2014, P.B. was found guilty by a jury of the following counts on the indictment:

(a) Count 2: Sexual interference, with offence dates between June 1, 1997 and August 31, 1998;

(b) Count 3: Sexual assault, with offence dates between June 1, 1997 and August 31, 1998;

(c) Count 4: Sexual assault, with offence dates between August 1, 2004 and September 12, 2012; and

(d) Count 5: Incest, with offence dates between August 1, 2004 and September 12, 2012.

[2] The first date set for sentence submissions was June 17, 2015. Before that date, new counsel for P.B. filed an application for a stay of proceedings or a reduced sentence. On November 20, 2015, counsel completed submissions on those applications.

[3] On January 14, 2016 in reasons reported at 2016 ONSC 325, I dismissed the applications for a stay of proceedings or a reduced sentence. On consent, May 3, 2016 was scheduled for the sentence hearing.

Overview of the Facts and the Impact on the Victim

[4] The victim on all of the counts is the daughter of P.B. A Victim Impact Statement from A.B. dated January 30, 2015 was filed as an exhibit on the sentencing hearing. In addition, the victim testified for one-and-a-half days in chief at trial and almost three days in cross-examination. This court has a detailed history of the offences, the personal circumstances of the victim and the long-term negative impact on her of these crimes.

[5] P.B. began to sexually abuse his daughter when she was eleven years old. It commenced with him taking her hand and placing it on his erect penis. The conduct of P.B. escalated from sexual interference and sexual assaults to fellatio, anal intercourse and vaginal intercourse. P.B. convinced A.B. that their relationship was loving and normal. He also exerted financial control over her.

[6] The impact of these crimes on the victim has been and will continue to be devastating. She felt a loss of innocence and feelings of “anger, loneliness, fear, hurt, shame, guilt, depression, rejection and humiliation”. In her adolescence and teen years, she had difficulty forming normal relationships with young people of her own age. Her feelings of “confusion, fear and anxiety” caused her to wet her pants during class in high school. That in turn caused her to feel ashamed that she could not control her own body. Understandably, she became severely depressed.

[7] The victim felt totally humiliated and controlled by her father. She felt like a slave. He treated her like a wife and made her do chores for him as well as imposing unwanted sexual intimacy on her.

[8] The victim was referred by her family physician to a psychiatrist. She was diagnosed with post-traumatic stress disorder. She has been prescribed medication and counselling. She states that she has “lost everything; my childhood, my adolescence, my life…. I had nothing but shame and guilt…. that my loved ones would just forsake me if they found out about the reality of my life.”

[9] Despite all that P.B. did to her, despite all the pain he has caused her, A.B. ended her Victim Impact Statement with the following comments:

One last thing I want to say is that today I decide to forgive my father for what he has done to me, because I understand now that by forgiving it does not mean I will allow him to hurt me again, by forgiving him today I’m letting him go, and with him all those memories of pain, shame and guilt. I forgive him because I want to live my life to the fullest. I want to break all those chains from my past.

[10] By forgiving him now she also asserts her resolve to be free of the past and move on with her life as best she can.

Statutory Purpose and Principles of Sentencing

[11] I have considered the following provisions of the Criminal Code of Canada, R.S.C. 1985, c. C-46:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing.

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

722(1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim.

[12] Two decisions of the Court of Appeal for Ontario clearly set out the principles of sentencing to be applied in cases such as this.

[13] In R. v. D. (D.) (2002), 58 O.R. (3d) 788 (C.A.), the issue on appeal was the appropriate range of sentence for adult offenders who prey upon innocent children to satisfy their deviant sexual cravings. D.D. had been found guilty after trial of eleven sex-related offences involving four young boys. D.D. at all material times stood in a position of trust towards the victims. The crimes caused untold grief and misery for the victims and their families. D.D. had a relatively minor criminal record. He was sentenced to eight years and one month on each count concurrent.

[14] D.D.’s appeal as to sentence was dismissed. Moldaver J.A. (as he then was) made the following comments at paras. 34-36, 44 and 45 that are apposite to the case before me:

34 The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

35 We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

36 In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

44 To summarize, 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. (See, for example, R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 138 C.C.C. (3d) 449 in which this court upheld a sentence of 18 and a half years imposed at trial.)

45 The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear -- prey upon innocent children and you will pay a heavy price!

[15] The case of R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721, has particular resonance to the case before this court. D.M. was the victim’s uncle. The victim came from another country to reside with her aunt and uncle. D.M. started by touching the victim’s breast. Over the next three years, D.M. engaged in near-daily progressively more invasive sexual touching, escalating to sexual intercourse two or three times a week. D.M. gave her a birth control pill each morning. He made her watch pornographic videos. A jury convicted D.M. of sexual assault, sexual exploitation and invitation to sexual touching.

[16] D.M. had no prior record and filed twenty-seven letters of reference. A Victim Impact Statement described the devastation of the abuse. The trial judge concluded that the appropriate range of sentence was three to five years’ imprisonment. A sentence of three years was imposed.

[17] A Crown appeal of sentence was allowed and D.M. was sentenced to seven years’ imprisonment. Feldman J.A. referred to “the real sea change” in 2002 in the decision of the Court of Appeal in D.D. At para. 44 of D.M., Justice Feldman indicated the following:

44 To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.

Position of the Parties

[18] The Crown seeks a global sentence of five to six years. The defence submits that a total sentence at the lower end of two to three years is appropriate. The defence also seeks additional credit for the stringent bail conditions in effect since P.B.’s arrest in September 2012.

Ancillary Orders

[19] In addition to the custodial aspect of this sentence, I make the following ancillary orders:

(a) Pursuant to ss. 109(1) (a) and (2) (a) and (b) of the Criminal Code, I order that the accused be prohibited from the possession of any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for 10 years and from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

(b) As the accused has been found guilty of offences that are all “primary designated offences”, pursuant to s. 487.051(3) of the Criminal Code, I order the taking of bodily substances from the accused for forensic DNA analysis.

(c) Pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code, the accused is ordered to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for life. This term applies since he has been found guilty of more than one offence referred to in s. 490.011 as a “designated offence”.

(d) Pursuant to s. 743.21 of the Criminal Code, the accused is prohibited from communicating, directly or indirectly, with A.B. during the custodial period of this sentence.

(e) Pursuant to ss. 737(1) and (2)(b)(ii), the accused is ordered to pay a victim surcharge of $200 for each offence, for a total of $800.

Credit for Stringent Bail Conditions

[20] P.B. spent one day in pre-sentence custody. Since September 24, 2012, he has been subject to stringent bail conditions that amount to house arrest. Some of the terms were varied over time to permit greater freedom of movement. Counsel for P.B. has referred to the “devastating” impact of the bail terms on his employment and personal relationships.

[21] In R. v. Downes (2006), 205 C.C.C. (3d) 488 (Ont. C.A.) at para. 37, the court outlined the approach to be taken in relation to stringent bail conditions:

37 In summary, credit for pre-trial bail conditions should be approached in the following manner:

• Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

• As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.

• The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

• The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

• The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

• Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code.

[22] In the particular circumstances of this case, I will apply a credit of six months to the total sentence to be imposed based on the stringent bail conditions and the length of time he was on bail.

Personal Circumstances of P.B. and Mitigating Factors

[23] A pre-sentence report was filed as an exhibit on sentencing.

[24] P.B. was born on November 15, 1961 in Quito, Ecuador. He came to Canada in 1985. In 2001 he became a Canadian citizen. He has always been gainfully employed in the house renovation business. That work routinely involves two or three casual employees as well as four or five regular subcontractors. He has been married four times and is currently in a longstanding common-law relationship. His dependents include two teenage children.

[25] P.B. has no criminal record other than the very serious charges now before me for sentence. He did not testify at trial and chose not to say anything in court after submissions were complete. The pre-sentence report indicates that he continues to deny any responsibility for the offences and thus “assessment of remorse is impossible”.

[26] P.B. was entitled to have a trial and there will be no negative impact on sentence for exercising that right. The lack of remorse is simply an absence of what would otherwise be a mitigating factor.

[27] In mitigation of sentence counsel for P.B. made two submissions that I cannot accept. He refers to there being “no extreme violence” in the evidence before the jury. In this case, involving years of sexual abuse and extreme control of his daughter, this is, at most, an absence of what would otherwise be an aggravating feature. Counsel also takes issue with the Crown submission that the victim was “groomed” by her father. The evidence in this case demonstrates a textbook example of grooming a young victim with escalating sexual demands. P.B. preyed upon his daughter and led her to believe that their sexual relationship was appropriate. He wanted her to believe that they were “lovers” rather than parent and child.

Aggravating Factors

[28] These offences involve an egregious breach of parental trust. The victim was deprived of a normal, supportive father and subjected to sexual touching and assaults commencing when she was eleven years old. P.B. manipulated and controlled the victim and convinced her that she had to prove she loved him. The victim was dependent on him emotionally and financially. The impact of these crimes on her was devastating and will no doubt be long-lasting.

[29] Incest is a soul-destroying crime. The victim testified that there were numerous instances of anal and full vaginal intercourse for several years prior to September 2012. In 2009 she had a sexual relationship with a young man she had met. They had protected sex. In the summer of 2009 her father insisted that she have unprotected sex with him when he found out about the young man. She testified that she believes she became pregnant with her father’s child. There was evidence at trial, including medical records, that A.B. had an abortion in October 2009. The victim denied the suggestion, in cross-examination at trial, that her boyfriend was the father of her aborted child.

[30] The jury was instructed that on the incest allegation the Crown was not required to prove that the aborted child was fathered by P.B. The issue was whether the Crown had proven that there had been vaginal intercourse between father and daughter. For sentencing purposes I am satisfied, based on the evidence at trial, that there were numerous instances over time when P.B. committed incest. This was not an isolated incident. That is a significant aggravating factor.

Consecutive Sentences and Totality

[31] The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender: see R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 42.

[32] Sentences for offences arising out of the same transaction or incident should not necessarily be made concurrent if the offences constitute invasions of different legally protected interests, although the principle of totality must be kept in mind: see R. v. Gummer (1983), 38 C.R. (3d) 46 (Ont. C.A.), at para. 13; and R. v. Mascarenhas (2002), 60 O.R. (3d) 465 (C.A.), at para. 31.

[33] In R. v. M.E., 2012 ONSC 1078, Justice Hill held, at para. 65, that it was an error to work backwards from a global sentence without first determining the appropriate sentence for each crime. He summarized, at paras. 68-69, that the sentencing judge should first determine whether the offences are to be served consecutively and then affix an appropriate sentence for each offence. Then the court should apply the totality principle.

Analysis

[34] P.B. has committed escalating sexual offences against his daughter over many years. This gross breach of trust began when she was eleven years old. P.B. exercised extreme control and demanded sexual intimacy in acts that included anal and vaginal intercourse. The offences started in the family home, a place where the eleven year-old should have been safe. The offences were unrelenting over several years. The victim was made to believe that their relationship was normal and acceptable.

[35] There are positive prospects for rehabilitation. However, the overriding principles for these types of offences are denunciation and general deterrence.

[36] I have carefully considered the positions of counsel for the Crown and defence. Based on the relevant sentencing principles and the serious aggravating factors in this case, I am unable to impose a total sentence in the range proposed by counsel.

[37] I have considered the need for consecutive sentences for the various counts while also factoring in totality. In balancing these factors, it is my view that the sentences required in this case are as follows:

(a) Count 2: Sexual interference ‑ 1 year;

(b) Count 3: Sexual assault, between June 1, 1997 and August 31, 1998 ‑ 1 year consecutive;

(c) Count 4: Sexual assault, between August 1, 2004 and September 12, 2012 ‑ 2 years consecutive; and

(d) Count 5: Incest, between August 1, 2004 and September 12, 2012 ‑ 4 years consecutive.

That is a total sentence of eight years. There will be a credit for stringent bail conditions totalling six months. That will be applied to the four-year sentence on Count 5.

[38] For clarity, the sentence will be as follows:

Count 2: 1 year

Count 3: 1 year consecutive

Count 4: 2 years consecutive

Count 5: 4 years consecutive, less 6 months’ credit for stringent bail conditions.

Total Sentence Going Forward: 7.5 years

B. P. O’Marra, J. Released: July 29, 2016