Court File and Parties

COURT FILE NO.: CR-14-50000342 DATE: 20160728 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.M. Defendant

Counsel: Kelly Simpson, for the Crown Joshua Frost, for the Defendant

HEARD: June 22, 2016 at Toronto, Ontario

REASONS FOR SENTENCE

Michael G. Quigley J.

Introduction and Overview

[1] J.M. was charged with nine sexual assault and sexual interference-related charges against three complainants. Those offences allegedly occurred over a twenty-year period from 1990 until 2010.

[2] The first three charges of sexual assault, sexual interference and invitation to sexual touching related to the complainant K.C.1. The offences against K.C.1 occurred between 2002 and 2008 when K.C.1 was between five and twelve years of age. The fourth and fifth charges of sexual assault and sexual interference related to the complainant K.C.2 and occurred between 2005 and 2008 when she would have been between six and nine years of age. The final four charges related to A.P.

[3] At trial, I found the evidence of K.C.1 and K.C.2, on their own and as supported by the evidence of each other and other witnesses, to be credible and reliable. J.M. did not testify at his trial. On the evidence as a whole, I was satisfied that the Crown had established the elements of counts 1, 2, 3, 4 and 5 beyond a reasonable doubt relative to K.C.1 and K.C.2. I was and am satisfied to the criminal standard that J.M. perpetrated these offences against them. I found J.M. guilty as charged on counts 1, 2, 3, 4 and 5.

[4] However in the case of A.P., the older cousin of K.C.1 and K.C.2, I was not satisfied beyond a reasonable doubt on the whole of the evidence that J.M. committed the four offences alleged against her. As such, I found J.M. not guilty of counts 6, 7 and 8, and granted a directed verdict of acquittal on count 9 at the conclusion of the Crown’s case. In the result, J.M. is convicted of counts 1-5 and acquitted of counts 6-9. My Reasons for Judgment are reported at R. v. J.M., 2016 ONSC 1615.

[5] The first two complainants, K.C.1 and K.C.2, are sisters. The third complainant, A.P., is a cousin of K.C.1 and K.C.2. The accused, J.M., is the uncle of K.C.1 and K.C.2. K.C.1 and K.C.2’s mother is S.M., who is married to J.C., their father. K.C.1 is nineteen years of age now, born on May 5, 1996. She is a student in her first year at a local community college. Her sister, K.C.2, is now seventeen years of age. She is a student in grade 11.

[6] The first offence occurred against K.C.1 when she was five years old, in or about 2001, when J.M was visiting her parents’ home for a celebration and took her up to her bedroom at the end of the evening while her parents took the other children to bed. The other occurrences against K.C.1 and K.C.2 took place at a later time, commencing in about 2004 and continuing until late 2008. During that period, J.M. lived in a second floor room in the family apartment on Sheppard Avenue in Toronto where J.C., S.M. and their four children, including K.C.1 and K.C.2, resided. The occurrences against K.C.1 and K.C.2 ended when their family moved out of Toronto in 2008. J.M. did not accompany the family when they moved.

[7] The issue on this sentencing hearing is what the fit sentence is for this first-time offender for these very serious sexual assaults in all the circumstances of the case.

Circumstances of the Offences

[8] The first of the offences in this case was disclosed to police authorities by K.C.1 in 2013. She had been skipping school. Her mother, S.M., caught her at McDonalds with a boyfriend. This led to a meeting with the school principal the following Monday to discuss the situation.

[9] On Monday, S.M. met with the principal in the principal’s office. K.C.1 was called down from class. After the mother and principal confronted K.C.1 about skipping school, K.C.1 yelled at her mother stating, “Why would you care when you did nothing when I told you that J.M. sexually assaulted me years ago.” K.C.1 then gave an emotional report of the incident to her mother, and then told her mother that J.M. had touched her sexually repeatedly after he moved into their family home on Sheppard Avenue around 2003 or 2004, about a year or two years after that original incident. K.C.1 gave her video statement to police a couple of hours later that same day, on Monday, March 25, 2013, just after 2:00 o’clock in the afternoon.

[10] The revelations about K.C.1 led to the parents asking their other children if J.M. had touched them. K.C.2, the second eldest child, lowered her head, started to cry and nodded in the affirmative. She told S.M. and J.C. that she had been touched repeatedly by J.M. As a result, the parents took her to the police station on Wednesday, March 27, 2013, where K.C.2 gave her statement to the police just after 10:00 in the morning.

[11] I found that J.M. molested K.C.1 before and during the time he lived with her family from the age of five to fourteen years. On the first occasion, when she was five or six years old, before he moved in with her family, J.M. carried her upstairs, laid her on his bed and touched her under her clothing on her chest and vagina. She distinctly remembered him whispering to her not to tell anybody. During the later time when J.M. lived with her family, he would touch her several times a week over and under her clothing on her breasts, buttocks and vagina. She alleges that he exposed himself and showed her with his hand how to masturbate him, pulling her hand and placing it on his penis. When he was finished doing these things to her, he would tell her not to tell her parents, and would give her some money.

[12] I found that J.M. also repeatedly sexually touched K.C.2 when he lived with her family and when she was between the ages of six and nine years. J.M. would take her to his room, bend her over his bed, and rub his penis on her vagina or buttocks while both of them remained clothed.

[13] The abuse against K.C.1 and K.C.2 stopped after they moved out of the apartment on Sheppard Ave. because they and their family were moving to a new house and he was not moving with them.

Circumstances of the Offender

[14] J.M. is forty-six years old. He was born in Ecuador and is one of four children. His parents separated when he was a young child and he has no recollection of his family being together. His father migrated to Canada but always provided for the children by sending money or goods. His mother was his primary caregiver and provided well for him and his siblings. However, when he was six or seven years old, his mother remarried and he and his younger brother were sent to reside with his paternal aunt. His two older siblings remained with his mother and her husband.

[15] His aunt was a stay-at-home mother and his uncle worked at a local university as a maintenance person. Family members were evidently well-provided for. Nevertheless, J.M had difficulties adjusting to his “new family” and hated living with his aunt because she was very strict and limited his freedom as a child. He felt she discriminated against him, relative to his brother and her own two daughters.

[16] At eighteen years of age, he was drafted into the Ecuadorian Army and served for one year. He then returned to reside with the aunt but learned that his father had sent immigration documents and that he was to move to Canada. He did not wish to leave Ecuador and was forced by the aunt to reunite with his father, along with his two siblings. He arrived in Toronto at the age of twenty in 1999 and met his father for the first time.

[17] The offender described his stay at his father’s place as “rough”, and following some disagreement of some kind, he and his older brother moved out to live in a basement apartment for the next six or seven years.

[18] At twenty-seven years of age, he was in a relationship that produced two children. It did not end well. His ex-partner would not permit him to have access to their children. Another relationship in 2003 or 2004 produced another child, although J.M. contested the child’s paternity, which was proven following testing.

[19] In 2008, J.M. met his present wife, J.F. He has had an eight-year relationship with her, which produced a daughter, but sadly the daughter is autistic and requires programs and assistance for children with special needs and disabilities.

[20] J.M. graduated from high school and received an award in wrestling. He has successfully completed courses in English as a second language. He has always maintained employment at one time having his own construction business, and more recently has been employed with a company doing framing of houses seven days a week. He has no issues with substance abuse.

[21] Although J.M. was very cooperative and forthcoming with information to the probation officer who prepared his pre-sentence report, he denied his involvement in the offence. He had poor recollection of events and presented them in a scattered manner. He expressed shock to the probation officer that what appeared to him to be “a simple misunderstanding” could have escalated to such proportions. Although he acknowledged that he has been found guilty of the offences, he considers himself to be the “victim” in this situation, and claimed numerous times when being interviewed that he was innocent of the charges. He has refused to take responsibility for the acts that he has been convicted of committing, and he shows no remorse for his actions or towards the victims.

[22] J.M.’s wife confirms that they have an excellent relationship, and that he is a great partner, great father, and a wonderful friend. He has shown distinctive care and kindness for their disabled daughter. J.F., along with all other members of his extended family and his good friends, who described him as hard-working and family-oriented, remain entirely shocked that he was charged and convicted of these offences. J.M. has one prior involvement with the justice system having served twelve months of probation in February 2010 for assault causing bodily harm, but he has no prior convictions for sexual offences. There were no issues and he successfully completed the period of community supervision to which he was sentenced. There has been overwhelming support from his family, friends and his employer. Letters of unqualified support from nine friends or family members filed as exhibits attest to this support.

[23] J.M. does not acknowledge these offences and appears to have little insight into his criminal behavior. The probation officer had concerns that he did not grasp the magnitude of the seriousness of the offences or the harm that was done to the victims and the community. His focus in his interview with the probation officer appears to have been on the possibility of a “misunderstanding” and he continually expressed his upset that his own family had suffered. He expressed no remorse or understanding of the impact that his actions may have had on the victims but spoke only at length of his own personal distress regarding his inevitable absence from his family that will result from the imposition of the sentence.

[24] There is another important aspect to J.M.’s circumstances arising out of his assessment by Ms. Julie Toporoski, a professional social worker whose resume of qualifications was filed as an exhibit on the sentencing hearing. Importantly, Ms. Toporoski concludes from her assessment that J.M. presents as an individual who has a very low risk of re-offending. I quote in part from her summary and recommendations at page 11 of her 12-page report:

J.M. suffered a traumatic separation from his mother and siblings when he and his brother were placed with their aunt and uncle when he was seven years old. Furthermore he was subject to physical and emotional abuse and forced to labour for his relatives far beyond what should be expected of a child. He was deprived of the opportunity to engage in socializing and activities outside of the home and school. The perceived and real rejection by his mother and rigid and grueling home environment contributed to J.M.’s low sense of self-esteem, identity and confidence problems but has also made him more sensitive to his young daughter’s needs, and according to J.F., [his wife], has led him to be what is described as a caring compassionate and generous father, partner and friend.

J.M. has significant familial and financial pressures. His daughter requires private speech, language and behavioral therapies, some of which are covered by a President’s Choice grant. J.M. and J.F. reinforce the behavioral strategies at home. M., [their daughter], depends on J.M. for engagement, assistance with verbal skills and interaction. On her own she can become withdrawn and J.M. reportedly has a special connection with her and can draw her out and prompt her verbal expression.

J.M. has not accepted responsibility for any of the sexual offences for which he has been convicted. Given his history he does not have the typical indicators of someone who has a deviant sexual preference for children. If he is responsible for the behaviors for which he has been convicted, the motivation was likely more opportunistic, impulsive and partner novelty related than paedophilic.

[25] Ms. Toporoski recommends, if possible, that it would be beneficial for J.M. to be detained at an institution that offers specialized treatment for men who have committed sexual offences.

Victim Impact Statements

[26] K.C.1, K.C.2 and their father, J.C, all prepared and submitted victim impact statements. Their mother, S.M., also prepared a victim impact statement that she read in court at the sentencing hearing.

[27] It is not surprising that both K.C.1 and K.C.2 report significant emotional damage owing to the abuse perpetrated against them by their uncle, J.M. They express feelings of continued injury from the abuse perpetrated against them, and acknowledge living in a state of constant fear of men and feel that their ability to trust men has been permanently undermined.

[28] S.M and J.C. both also express great emotional damage arising from these incidents, and in addition, state that this destruction of trust within the family unit and their feelings of extreme guilt at not protecting their two daughters against such assaults has not only undermined unity and happiness in their family, but in addition has contributed to a serious undermining of their marriage. This sense of guilt was particularly evident with J.C., the father of the victims, who blames himself for not having believed that K.C.1 had been assaulted on the single occasion when she was five, two years before J.M. moved into their home and commenced his more persistent and continuing sexual assaults on K.C.1 and then also K.C.2.

[29] In one of the victim impact statements, K.C.2 expresses the hope that J.M. will be incarcerated for life because she will have to carry the damage he caused to her for life. Her mother also expresses a wish that Canada still had a death penalty that could be imposed on J.M. I found it necessary to address the family right then on these points.

[30] I explained then as I will in full detail today, that the sentencing of an offender like J.M. does not involve any prospect of incarceration for life and that there are no longer capital crimes in Canada, but that the sentence imposed here must respect the principles of sentencing that have been established for cases like this and particularly address principles of denunciation and deterrence against persons in positions of trust who sexually abuse children. It must adhere to the ranges of sentence that have been established by appellate courts as being applicable in such circumstances. It must also consider principles of rehabilitation of the offender. That is what our law directs me to do.

[31] I would end this portion of my reasons by simply reminding the victims, K.C.1 and K.C.2 and their parents, S.M. and J.C., that the sentence I impose today will not likely heal the wounds and emotional injury that they feel was visited upon them and their family by J.M., but it is the sentence I have found to be fit in all of he circumstances of this case. However, I would encourage them and express the sincere hope that they move on past this difficult period in their lives and reconstruct the relationships in their family and that they will have the ability and the courage to leave these events behind as they repair their emotions and relationships in the months and years ahead.

Positions of the Parties

[32] The Crown takes the position in this case that a sentence of at least five years in the penitentiary is required, having regard to the particular facts, the appropriate principles of sentencing that the Crown contends are engaged, and in consideration of aggravating factors that are present.

[33] In addition, by way of ancillary orders, the Crown also seeks:

(i) A DNA order under section 487 of the Criminal Code; (ii) A lifetime firearms weapons prohibition order under section 109 of the Criminal Code; (iii) An order under section 161 of the Criminal Code for life prohibiting the offender from attending a public park, swimming area, daycare centre, school ground, playground, community centre or similar location were a child under the age of fourteen is present or can reasonably be expected to be present. It also seeks an order prohibiting the offender from being within two km of any dwelling house where K.C.1 or K.C.2 ordinarily reside, go to school, or are otherwise known to be, and from seeking or continuing any employment, remunerative or otherwise, that involves being in a position of trust or authority towards a person under the age of fourteen years; (iv) A lifetime sex offender registration order because he has been convicted of more than one designated offence as designated by paragraph 490.011(1)(h) of the Criminal Code, and under section 743.2 of the Criminal Code; and finally, (v) An order under section 743.2(1) of the Criminal Code that J.M. is not to communicate directly or indirectly by any means with K.C.1, K.C.2 or their family members during any custodial period of his sentence.

[34] Defence counsel agrees that the circumstances here call for a custodial sentence, but claims it should be one that is considerably more lenient than that called for by Crown counsel. He acknowledges the state of the law in this province relative to appropriate ranges of sentences for offenders in positions of trust who have been convicted of offences such as these, but contends that a high reformatory sentence is adequate in the circumstances of this case and acceptable to meet the principles and the requirements of sentencing. That lesser sentence is called for based on his detailed distinguishing of the cases referred to by the Crown relative to issues of violence, severity of the abuse, existence of a prior criminal record for similar offences or violence, and the overall criminal background of the offender. He also relies on the many mitigating letters of support advanced as evidence on the sentencing hearing, and in particular, the evidence relative to the offender’s current role as an important economic provider for his family, and his role as one of the principal and centrally important caregiver’s for his and his present wife’s autistic daughter.

[35] As for the ancillary orders, defence counsel accepts most of the ancillary orders requested by the Crown, but contends that a ten-year order under section 161 of the Criminal Code is adequate in the circumstances of this case, and that the low likelihood of recidivism on the part of this offender does not require a lifetime prohibition.

Principles of Sentencing

[36] The sentencing principles from section 718 of the Criminal Code that are of overriding importance in the case of an offence such as this are denunciation and deterrence: denunciation of the despicable conduct of the offender in sexually abusing two children who trusted him, and a substantial term of incarceration as specific deterrence to this offender and general deterrence to others who might emulate his conduct.

[37] The relevant case law on this sentencing speaks with brilliant clarity to that need and is well-known. It focuses at its core on the obvious fact that sexual offences perpetrated against minor children are particularly egregious and require a significant sentence having regard to the fundamental breach of trust between a child and an adult that must necessarily underlie all such offences. This is even more important where the offender occupies a position of familial trust relative to the victims.

[38] In R. v Woodward, 2011 ONCA 610, referring to the seminal decision in R. v. D.D., below, Justice Feldman emphasized that my focus on this sentencing hearing must be on the harm caused to the child by the offender's conduct and the life-altering consequences that flow from it, as they have in this case, as evidenced by the victim impact statements filed as exhibits on this sentencing hearing. While the effects of a conviction on the offender and the offender's prospects for rehabilitation also warrant consideration, as they always must, 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 and will necessarily take precedence.

[39] In R. v. D.D., an adult predator in a position of trust sexually abused young boys on a regular basis over a lengthy period of time. The Court of Appeal considered the appropriate range of sentence in that case for offenders who engage in such conduct. Moldaver J.A., now of the Supreme Court, discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adults exploit innocent young children. He listed the relevant considerations and principles, and then concluded at para. 45 that:

The harm occasioned [to children] by [adult sexual predators] 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!

[40] Consequently, Feldman J.A. emphasized that adult predators who sexually abuse young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant in that case for the sexual assault he committed on a twelve-year-old complainant was not excessive. While the Court of Appeal acknowledged that trial judges retain flexibility to fashion a fit and just sentence in a particular case, crimes like those committed by the appellant in that case will typically warrant mid to upper-level single-digit penitentiary sentences.

[41] The Court of Appeal again emphasized the point in R. v. D.M., 2012 ONCA 520, where a 57-year-old uncle repeatedly sexually abused a minor child for a prolonged period. At para. 44, while acknowledging that sentencing is always an individualized process of decision-making, Feldman J.A. observed that where an adult in a position of trust sexually abuses and assaults a child for a prolonged period, including penetration, the minimum sentence will be five or six years in the penitentiary.

[42] At paragraph 68, the court observed that in cases where sentences of five years or more were imposed, one or more of the following aggravating factors was present: (i) sexual intercourse, (ii) oral sex, (iii) incest, (iv) more than one victim, (v) grooming of the victim, (vi) other acts or threats of physical violence to obtain compliance and keep the abuse secret, or (vii) a previous criminal record for sexual abuse. In this case, oral sex was present, there was more than one victim, and at least one aspect of sexual grooming was present with J.M. giving toonies to encourage his victims to keep his conduct shrouded from discovery. However, importantly, no sexual intercourse occurred; a factor that on its own commands the higher levels of sentence.

[43] However, the decision in D.M. also recognizes that sentences of that duration will not always be called for. Even where one or more of the preceding aggravating factors was present, the court noted at para. 71 that sentences of less than five years have nonetheless either been imposed at an appellate level or upheld in particular cases: see R. v. I.F., 2011 ONCA 203, R. v. C.B., 2008 ONCA 486, R. v. B.A., 2008 ONCA 556, R. v. G.A.G., (2006), 206 OA.C. 134 and R. v. A.G., (2004), 190 C.C.C. (3d) 508 (C.A.).

Aggravating and Mitigating Factors

[44] There are a number of aggravating factors in this case:

(i) J.M. preyed on children opportunistically from a position of trust (s. 718.2 of the Criminal Code). He did so while being dishonest to the family who was generously permitting him to live with them; (ii) There were two victims, and he engaged in at least limited grooming by providing them with money to ensure they would not tell the parents about his conduct; (iii) The occurrences took place over a number of years, with one initial incident in the case of K.C.1 and then repeating abuse once he started to live with their family two years later, extending for some seven years. In the case of K.C.2, his conduct extended over a three to four-year period. (iv) While it is difficult to say with precision how many occurrences took place when children such as K.C.1 and K.C.2 describe it as having taken place “all the time”, certainly there were multiple instances of the abuse, and the pattern of abuse was consistent; and finally, (v) The significant emotional impact upon the victims, K.C.1 and K.C.2 and their mother and father, S.M. and J.C. and the undermining impact that J.M.’s conduct had on the stability of that family unit.

[45] However, there were also mitigating factors present here:

(i) The offender has been assessed as having a low risk to re-offend, and there are no concerns about a deviant paedophilic personality; (ii) Apart from an earlier assault incident for which he was given a term of probation that he completed without incident, and bearing in mind that there was no violence or aggressive conduct reported in the evidence relative to the incidents of sexual conduct, J.M. has no criminal record; (iii) He has been steadily employed and has provided for his present wife, J.F. and their disabled daughter, and his employer indicates that he is honest, hard-working and reliable and that he will be quickly re-employed once he has served his sentence; and (iv) He enjoys extraordinary and solid support from a strong family unit in his current family, and extended family circumstances, and enjoys the trust and support of potential employers.

Analysis

[46] In this case, the initial sexual conduct of J.M. against K.C.1 involved touching her under her clothing on her chest and vagina. During the later time when J.M. lived with her family, it involved repeated touching several times a week over and under her clothing on her breasts, buttocks and vagina. He also exposed himself and caused her to masturbate him.

[47] In the case of K.C.2, the conduct was repeated sexually touching when she was between the ages of six and nine years old, and rubbing his penis on her vagina or buttocks, but while both were clothed. While the offences against K.C.1 and K.C.2 are very serious and call for a significant sentence of incarceration, the offences against K.C.2 are less egregious from a legal perspective and would necessarily call for a lesser sentence on a standalone basis than those perpetrated against K.C.1.

[48] Crown counsel seeks a sentence of at least five years. In addition to the key Court of Appeal decisions referenced above, she relies on a number of other appellate and trial level decisions as supportive of her position. However, in my view, defence counsel successfully distinguished many of these decisions on the basis of an absence of intercourse (R. v. M.B.), an absence of weapons or physical aggression (R. v. A.H.K.), or a materially longer period of abuse coupled with threats that the offender there would kill the victim’s dog if she did not comply in silence, as was the case in R. v. W.Q. I agree with defence counsel that each of these cases involves facts that are more egregious than those present here.

[49] On the other hand, to support his claim that the principles and requirements of sentencing can be met with a reformatory sentence of two years less a day, defence counsel refers to a more recent trial level decision in a case also named R. v. D.D., [2015] ONSC 400, as well as R. v. R.D., 2013 ONCJ 486, R. v. E.R.F., [2009] O.J. No. 994 (S.C.J.), R. v. S.K., [2007] O.J. No. 2912 (S.C.J.), R. v. R.M., 2007 ONCA 33, R. v. Y.C.B., 2014 ONSC 3498 and R. v. Grabon, [2005] O.J. No. 5371 (C.J.). The sentences in these cases, apart from ancillary orders, ranged from the seven months and three years’ probation imposed by D.A. Harris J. of the Ontario Court in R. v. R.D., to eighteen months’ incarceration with three years’ probation imposed in Kenora by D. Fraser J. of the same court in R. v. Grabon.

[50] The range of sentences, when all of these decisions are taken into consideration, from a low of seven months and three years’ probation (R. v. R.D.), to a high of nine years and one month (R. v. D.D.), certainly once again shows the obvious fact that sentencing is always an individualized process and that there is no one-size-fits-all sentence for sexual offences. It shows that the presence or absence of particular aggravating or mitigating factors relating to the offence and to the offender can cause a wide range of possible sentences.

[51] In my view, the decisions most apropos in the present circumstances are the decisions of the Court of Appeal in R. v. I.F. and that of Dunnet J. of this court in R. v. R.R. In R. v. I.F., the circumstances of the offences were described at paragraph 2:

The respondent sexually abused his three step-granddaughters over an eight-year period, from 2001 to 2009, when the sisters were under the care of the offender while visiting their grandparents on occasional weekends. With each victim, the sexual abuse began with touching over clothes and progressed to more intrusive sexual assaults. At the time of the abuse, the girls were between the ages of 10 to 12, 7 to 14 and 9 to 14 years, respectively. The respondent's acts included touching and fondling their breast and vaginal areas; performing oral sex on one victim; having two of the victims watch pornographic movies or magazines while he masturbated; and having one of the victims masturbate him.

[52] The sentencing judge sentenced the respondent to eight months’ imprisonment consecutive on each count for a total sentence of two years’ imprisonment, to be followed by three years’ probation. He acknowledged that the principles of deterrence and denunciation were paramount when a step-grandfather abuses his position of trust and specifically stated that a sentence of two years less a day would not adequately reflect the principle of denunciation. He considered that the appropriate sentence was three years, plus three years’ probation. Nevertheless, inexplicably, he imposed a sentence of two years’ imprisonment so that he could also impose a period of probation with terms.

[53] At paragraphs 6 and 7 of its endorsement, the Court of Appeal recorded its disapproval and conclusion that the sentence imposed was unfit, stating as follows:

6 While the sentencing judge cited these principles, the sentence he imposed failed to adequately reflect the principles of deterrence and denunciation, represents a marked departure from the case law, and was manifestly unfit in this context of multiple victims.

7 Taking all the circumstances of this case, including the trial judge's acceptance of the significance of the respondent's early plea and acceptance of responsibility, we allow the appeal and substitute a global sentence of four years imprisonment. Apart from the probation order, the other orders of the judge remain in force.

The court imposed a sentence of four years’ imprisonment.

[54] In R. v. R.R., there were materially fewer occurrences than were present here, but as in this case, there were incidents of oral sex and inappropriate sexual touching. The offender was in a position of trust. Although the victim did not know at the time that he was married to her mother, she has known him all her life. He was a close family friend and appeared regularly at their home. The incidents happened inside the home where R.R. took advantage of situations when they were alone and the victim would have had legitimate expectations that nothing would happen to her, just as K.C.1 and K.C.2 should properly have had that expectation relative to their uncle, J.M., living in their family home. In R.R., however, the abuse continued over a period of ten years, a period that is materially longer than the period of the offences in this case, although roughly the same period as the total period in the case of both K.C.1 and K.C.2 combined.

[55] In that case, Justice Dunnet imposed a global sentence of three years’ imprisonment having regard to the fact that the offences involved a breach of trust, and that they began when the victim was a very young child and continued over a long period of years and had significant impact on the victim, just as these offences have had significant emotional impact on both K.C.1 and K.C.2.

[56] In this case, notwithstanding the very thorough and detailed efforts of defence counsel, I am not persuaded or satisfied that the principles of sentencing relevant on a case like this can be met by the imposition of a reformatory sentence. The appellate jurisprudence makes it plain, in my view, that in circumstances where there were multiple offences committed against more than one victim from a position of trust, even if no violence or aggressive behavior is present, the principles of denunciation and deterrence necessarily require the imposition of a penitentiary sentence. The question is of what duration.

[57] I have concluded on a standalone basis that two-and-a-half years would be an appropriate sentence for the sexual conduct perpetrated against K.C.1 and that a lesser sentence of eighteen months could have been an appropriate disposition for the less egregious conduct committed against K.C.2., if considered on a standalone basis. In aggregate this totals four years, and is in line with the conclusion that arises from the decisions in I.F. and R.R. that imprisonment for a period of three to four years is called for.

[58] The presence of the aggravating factors previously noted would call for a sentence at the upper-end of that range. However, I am persuaded that the single opportunistic nature of these offences, the evidently blameless life lived by J.M. since these offences were committed and in particular having regard to the strong employment prospects he has and the severe need his present family has for his financial support and his contribution to the education and training of his autistic daughter, together with the evidence of the offender being at low risk of re-offending, presents a suitable case for a sentence of a somewhat lesser duration to be imposed.

[59] Crown counsel states that there can be no rehabilitation without remorse and acknowledgement of ones responsibility. That is generally true and were it not for the exceptional need I perceive for J.M to be returned to his present family as soon as possible, I might not have concluded that the global sentence should be reduced. However, I do consider those circumstances to be exceptional and that consideration has caused me to reduce the global sentence on account of that pressing need.

Conclusion

[60] J.M, you will please stand up.

[61] These were serious acts committed by you against young and trusting members of your family; a family who had trustingly invited you into their home. Your conduct has created lasting emotional damage to the two victims, K.C.1, and her sister, K.C.2, not to mention the impact on the stability and foundation of their family unit. It is despicable conduct that requires the imposition of a penitentiary sentence to convey fully our society’s disapproval and repugnance at your conduct. These are cases where denunciation and deterrence must be paramount. These offences cause enormous harm to their victims and their families. As the victim impact statements in this case suggest is the result here, your conduct stole K.C.1 and K.C.2’s youth and innocence. Their family has been undermined and all of their lives are damaged, hopefully not irretrievably, by your conduct. For that, sir, a significant price must be paid.

[62] J.M., having regard to all these factors, I sentence you to serve three-and-a-half years in the penitentiary for these offences. The ancillary orders will all go, although I am persuaded that the order under s. 161 need only be for ten years given the evidence of low risk of recidivism.

Michael G. Quigley, J.

Released: July 28, 2016