COURT FILE NO.: CR-16-10000139-0000 DATE: 20160916 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – A.S. Defendant

Mareike Newhouse, for the Crown Michael Fairney, for the Defendant

HEARD: August 12, 2016

REASONS FOR SENTENCE

B. P. O’Marra, J.

[1] On May 13, 2016, I found A.S. guilty of the following criminal offences:

1. Failure to provide the necessaries of life, contrary to s. 215(2) (a)(ii) of the Criminal Code of Canada, R.S.C. 1985, c.-46.

and

2. Criminal negligence causing bodily harm, contrary to s. 221 of the Criminal Code.

[2] The trial and submissions had proceeded on six days in March and April 2016. A.S. did not testify and no evidence was called by the defence. The reasons for judgment are reported at 2016 ONSC 3032.

[3] Based on the principle set out in R. v. Kienapple, [1975] 1 S.C.R. 729, the crown submits that there should be a judicial stay on count one. I make that order and now proceed to sentence on count two, being criminal negligence causing bodily harm.

THE FACTS

[4] I.B. was nine years old when she was victimized by the two people she viewed as her parents. Between September 2013 and February 2014 she was sexually abused and exposed to pornography by her stepfather, J.K. At that time she was in grade four. She lived with J.K., her mother A.S., her brother R., and sometimes J.K.’s children from another relationship.

[5] In February 2014, J.K. was separately charged and subsequently pleaded guilty to the following offences related to I.B.:

• Aggravated sexual assault;
• Sexual interference;
• Invitation to sexual touching;
• Making child pornography; and
• Making child pornography available.

J.K. was sentenced to seven years for these crimes.

[6] Based on the evidence before me, I was satisfied that A.S. knew that her daughter was being sexually abused by J.K. from at least April 2013 and that her daughter was at ongoing risk of further harm from J.K. I was also satisfied that A.S. did not take steps to protect I.B. from J.K. or report the matter to appropriate authorities until February 2014. Paragraphs 31-41 inclusive from the reasons for judgment dated May 13, 2016 set out my specific findings:

[31] The information from nine-year-old I.B. as to when her mother knew of the sexual abuse was unclear. At one stage, I.B. said her mother “knew about it” when I.B. was eight or nine years old. That could have been in 2012. I.B. said her mother “knew something weird was going on”, and that her mother told her she wanted to get more evidence. However, I.B. also said more than once that she did not tell her mother anything specific about the abuse until “the Saturday”, being two days before I.B. was interviewed by police.

[32] The video statement provided by A.S. on February 11, 2014 includes admissions that she knew the following in the months of February through April 2013: (1) One evening when A.S. and J.K. were talking “dirty”, J.K. told her he wanted to see I.B.’s “thing.” In context, this refers to I.B.’s vagina. A.S. says she warned J.K. never to “do that thing he talked about.” J.K. said he would not promise he would not do it and if he did he would not tell her. (2) In April 2013, she “caught him.” A.S. emerged from the shower and could not find I.B. The bedroom door was locked. She knocked and J.K. did not open it right away. A.S. knew something was wrong. J.K. finally opened the door and wore only a towel around himself. He asked A.S. to make love with him. A.S. asked where I.B. was. She found I.B. hiding in the bedroom closet. Neither J.K. or I.B. would say why she was in there. A.S. asked I.B. again. I.B. mentioned something about “suck.” A.S. knew this meant “his private thing.” A.S. confronted J.K. who apologized and said he loved her. A.S. referred to this as “the first time it happened.” (3) On February 8, 2014 (three days before the interview), A.S. was suspicious when she saw J.K. make a gesture towards I.B. I.B. then went into the bathroom and came out with J.K.’s cell phone. I.B. then handed the phone to J.K. A.S. wanted to see what image was on the phone but J.K. refused. A.S. later confronted I.B. and asked “did daddy do that thing again like the last time” (underline added). I.B. then told her “everything.” I.B. told A.S. that J.K. “rubbed her thing” that day while A.S. took a nap. She also told A.S. that J.K. had told her to take a video of her “thing” in the washroom. The reference was to her vagina. I.B. also described further sexual conduct by J.K. towards her. I.B. told her mother she did not want to do these things but felt forced to do so.

[33] In February 2013, J.K. told A.S. in rather explicit terms that he wanted to interact with her daughter for his sexual gratification. A.S. told him not to do so. J.K. said he would not promise not to do so. More ominously, he said he would not tell her if he did so. This exchange with J.K. should have put A.S. on high alert about the need to protect I.B.

[34] In April 2013, A.S. observed events and received information from both J.K. and I.B. that he was abusing I.B. in a sexual manner. This included having I.B. take photos of her private parts on J.K.’s cell phone. I.B. actually disclosed to A.S. that she had performed oral sex on J.K. When A.S. confronted J.K. he apologized.

[35] Thus, by April 2013, A.S. had clear knowledge of J.K.’s sordid intentions toward I.B. and that he had abused I.B. sexually in various ways. A.S. acknowledged at the end of her interview on February 11, 2014 that her failure to go to the police in April 2013 put I.B. at risk. A.S. explained that she chose not to report the sexual abuse because she cared for J.K. and was confused. She had options. She made a choice.

[36] There is no dispute that J.K. sexually abused and exploited I.B. in the family residence from and including September 2013 through early February 2014. The evidence of I.B. and what A.S. told the police confirms that the sexual abuse of I.B. had gone on for several months before September 2013. The sexual abuse and exploitation of I.B. caused her bodily harm as well as psychological harm. A.S. clearly knew that I.B. was in clear and present danger of ongoing sexual abuse for almost a year before the police and the CAS were contacted in early February 2014.

[37] I.B. was subjected to severe sexual assaults and degrading conduct. The latter included photos of her private parts for the sexual gratification of J.K. She was a child. She was frightened.

[38] A.S. knew what was happening by February and April of 2013. A.S. had a legal duty to protect I.B. from such harm.

[39] Section 215(2)(a)(ii) refers to the failure to perform a duty that “causes or is likely to cause the health of that person to be endangered permanently”. This court does not require expert testimony to reasonably infer that this protracted course of sexual and emotional abuse of an eight-year-old child by her step-father would cause that child long-term trauma. The added layer of harm in this case is that I.B. knew that her mother was aware of the abuse and did not take steps to protect her. The Crown is not obliged to prove that the conduct was a threat to I.B.’s life. The requirement of permanence does not mean forever. That would be impossible to prove and that cannot be what the Crown is required to prove.

[40] At various parts in her interview of February 11, 2014, A.S. referred to having “a feeling” or “mother’s instinct” that something bad was going on between J.K. and her daughter. If that was the extent of her knowledge, she would not be guilty of the crimes alleged. However, that is not the case. A.S. had specific knowledge and information from J.K., I.B. and events she actually observed that I.B. had been sexually abused and was in grave danger of further, even escalating abuse.

[41] In the words of the Supreme Court in F.(J.), I find that the conduct and failure of A.S. to protect her child between February 2013 and February 2014 represented both a marked and substantial departure from the conduct of a reasonably prudent parent in the circumstances. She had to know that her failure to protect I.B. put I.B. at an obvious and serious risk for her immediate and long-term health.

PERSONAL HISTORY AND CIRCUMSTANCES OF A.S.

[7] A.S. was born on […], 1986 in the Philippines. Her mother had arrived in Canada in 2003 and subsequently sponsored A.S. and her family to come to Canada in 2009. A.S. came to Canada with her five siblings, as well as her own two children. She has no criminal record.

[8] The oldest sister of the accused currently has custody of both children, as well as the child of the relationship between the accused and the sexual abuser, J.K. A.S.’s older sister and her family are in the process of adopting all of the children. The accused has distanced herself from her family and has had virtually no contact with her children since she was charged in February 2014.

[9] The pre-sentence report indicates that the accused is currently engaged to J.K. who has been convicted and indeed pleaded guilty to sexual assault and related offences against her daughter. The accused apparently plans to marry J.K. once he is released from custody. That event may be difficult to complete in view of the fact that J.K. is currently subject to a deportation order once he has served the custodial aspect of his sentence. The accused apparently met J.K. through an online dating website in 2012. They became engaged in 2013. She described their relationship as “positive” and explained that she is very happy with him. She indicated that they as a couple began experiencing problems once she introduced him to her family. She explained that her family behaved negatively towards him and indicated that the family is racist (J.K. is a black male). The accused describes J.K. as a “good father”.

[10] A.S. has received education and training as a Personal Support Worker. In that capacity she assisted elderly patients for two years. When she was charged with these offences, she had worked part-time for two years as a hotel room attendant.

[11] The accused advised the author of the pre-sentence report that the events relating to her daughter happened “because her partner got hurt so bad emotionally, verbally and mentally by her family.” She explained that her family disliked him from the moment she introduced him. She reports that she plans to marry him “if he still wants to marry her after what she did to him.” The accused explained that she had reported the assault on her daughter to the police and was not able to speak to him prior to his arrest. She also advised the author of the pre-sentence report that she does not know if in fact the assaults occurred until she is able to confirm it with him. The author of the pre-sentence report indicated that the accused did not “display any victim empathy and still questions whether her daughter was in fact assaulted.”

[12] The defence filed a redacted report dated July 30, 2014 prepared by psychologist Dr. Giorgio Ilacqua. He met with A.S. on June 12, 2014. The historical background was based on the self-report of A.S. The information she provided included reports of physical and verbal abuse she received from her father and the two men who fathered her three children. There was evidence on the trial before me that A.S. had been the victim of domestic violence in her relationship with J.K. in the same time period that J.K. was sexually abusing her daughter.

[13] Dr. Ilacqua’s conclusions include the following:

• A.S. presents with a low level of risk, which primarily includes dynamic factors of recidivism.
• If her identified dynamic factors were appropriately and professionally dealt with, her overall recidivism risk could conceivably decrease further, especially if her overall “criminal thinking” was reduced.

EVIDENCE OF A.S. ON THE SENTENCE HEARING

[14] A.S. testified that despite all that has happened, she still loves her family. She is “sad and upset” about her daughter. She does not excuse what happened but still loves J.K. “because he made sacrifices for me and the children.” She claimed that the restrictive bail terms made her feel like she was in jail awaiting trial.

POSITION OF THE PARTIES

[15] The Crown seeks a penitentiary sentence of three to four years. The defence submits the following:

1. A range of sentence between six and eighteen months is appropriate.
2. Based on two weeks of pretrial custody plus stringent bail terms since February 25, 2014, the disposition should be time served.
3. A.S. is a permanent resident and may be subject to a deportation order. That proceeding has not started yet. A custodial sentence of six months or more would disentitle her from appealing a deportation order.

VICTIM IMPACT

[16] The Crown advised this court that I.B. chose not to submit a victim impact statement. She testified at trial by way of CCTV. She is now in grade six. I do not require expert evidence to discern the significant, long term, negative impact of these events on this young girl. She suffered protracted sexual abuse, including exposure to pornography, from her stepfather. Her mother failed to take any steps to protect her or report the incidents to the relevant authorities for several months. At the most basic level, A.S. should have either ordered J.K. to leave the family home or she should have taken both of her young children out of the home and away from J.K. A.S. as the adult, as the mother, had choices that could have saved I.B. from further harm. As a result of her mother’s failure to protect her, I.B. suffered both physical and emotional harm. No person, no child, should have to suffer this pain and indignity.

[17] The elder sister of A.S. provided a victim impact statement on consent and read it aloud in court. She describes a family that has been shattered by these events. A.S. is thoroughly estranged from her siblings and the rest of her family. The elder sister and her family have adopted I.B. and her brother, as well as a daughter born of the union between A.S. and J.K. Those children are in a far better place. A.S. apparently will not oppose the formal adoption of the children by her sister’s family. This decision to sever ties with her children and her family has occurred only after protracted proceedings in family court.

SENTENCING PRINCIPLES

[18] I have considered the statutory conditions related to sentence in s. 718 and subsequent sections of the Criminal Code. The following sections relate specifically to the matter at hand:

• 718.01. Objectives — offences against children 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.

• 718.1. Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

• 718.2. Other sentencing principles 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,

[19] In R. v. D.D., [2002] O.J. No. 1061 (C.A.), Justice Moldaver dealt with the appropriate range of sentence for adult offenders “who prey upon children to satisfy their deviant sexual cravings” (para. 1). He made the following references to the impact of such crimes on young victims and their families that are relevant on this 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. (Underline added.)

36 I n 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. (Underline added.)

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! (Underline added.)

CREDIT FOR PRETRIAL CUSTODY AND STRINGENT BAIL CONDITIONS

[20] A.S. spent two weeks in pretrial custody before bail was granted. She has been subject to bail terms that approximate house arrest since February 25, 2014. In the recent decision of R. v. Daley, 2016 ONSC 3513, Justice B. Durno provided a very helpful summary of the law on this issue at pages 9-11:

The leading authority on this issue is the Court of Appeal judgment in R. v. Downes (2006), 79 O.R. (3d) 321 where for 18 months the offender was required to be in his residence at all times except when in the company of his surety. He was granted five months’ credit. As the Court of Appeal noted, he could not work, go to medical appointments, or attend worship services.

From Rosenberg J.A.’s comments in Downes and subsequent Court of Appeal judgments, and trial judgments, the following summary of the law can be derived:

1. Time spent under stringent bail conditions, especially house arrest, is a relevant mitigating factor and must be taken into account as a relevant mitigating circumstance. Downes, at paras. 33 and 37.

2. While a trial judge is not required to give any credit for restrictive bail terms (R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 at paras. 32 and 36) where no credit is given, the trial judge should explain why that was so: Downes, at para. 33; R. v. Siconolfi, [2015] O.J. No. 6650 (C.A.) However, the failure to do so, is not automatically an error in principle. R. v. Dragos, 2012 ONCA 538.

3. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence: Downes, at para. 29.

4. House arrest is a form of punishment, albeit of a different character than actual incarceration, yet he or she receives no credit towards parole eligibility for time spent on house arrest: Downes, at para. 29.

5. The impact of bail conditions cannot be assumed: Downes, at para. 28. However, there will be some restrictions from which inferences can be drawn and the impact is obvious, as was the case in Downes: R. v. Brown, [2015] O.J. No. 5425 (S.C.J.) at para. 70.

6. If an offender asks that pre-trial restrictive bail terms be considered, the offender should provide the judge with information as to the impact of the conditions. The onus is on the offender to establish those facts on a balance of probabilities pursuant to s. 724(3) of the Criminal Code: Downes, at para. 37. The offender must show the restrictions prejudiced or imposed a hardship on him or her: R. v. Ijam (2007), 2007 ONCA 597, 87 O.R. (3d) 81 (C.A.) at para. 27.

7. There is no formula that judges are required to apply: Downes, at para. 37. It is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms may impinge very little on the offender’s liberty. Some may be allowed to work as usual, take care of their family obligations, and generally see little impact on their pre-bail way of life. For others, house arrest may be very difficult, with the accused essentially confined to a very small space, cut off from family and friends and unable to work: Downes, at para. 34. As is the case with any potential mitigating circumstances, there will be variations in its potential impact on the sentence, and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest: Downes, at para. 33.

8. Sentencing judges should adopt a flexible approach with the credit and manner in which it is taken into account as a mitigating factor, a matter for the judge: Downes, at para. 36. R. v. Dragos, 2012 ONCA 538.

9. Provided the trial judge addresses the issue, there is no error in declining to grant any credit for restrictive bail terms.

[21] After considering all of the factors in the particular circumstances, there should be a pretrial credit towards the custodial aspect of this sentence. Based on the combination of pretrial custody and stringent bail terms, A.S. will receive a credit of six months.

AGGRAVATING AND MITIGATING CIRCUMSTANCES

[22] This crime was a breach of parental trust that exposed her child to protracted sexual abuse and exposure to pornography. The negative impact of this crime on the victim and the extended family is significant.

[23] In mitigation, counsel has referred to the lack of a criminal record and an expression of remorse. Based on the information presented on sentence, her remorse can at best be described as tepid. She had a right to plead not guilty and not to testify. There can be no negative impact on her at sentence for exercising those rights. However, the equivocal expression of remorse and her reluctance to accept what J.K. did to her daughter (despite his guilty pleas) is relevant to her prospects of rehabilitation. I have also considered the report of Dr. Ilacqua that indicates she is at a low risk to re-offend.

DISPOSITION

[24] The accused will be subject to the following ancillary orders:

1. Criminal negligence causing bodily harm is a secondary designated offence as defined in s. 487.04 of the Criminal Code. This is a discretionary order pursuant to s. 487.051(3). I am satisfied that it is in the best interests of the administration of justice that the accused provide a DNA sample for forensic analysis.

2. Pursuant to s. 109 of the Criminal Code, the accused is prohibited from possessing: (a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for ten years, and (b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

3. Pursuant to section 743.21 of the Criminal Code, the accused is prohibited from communicating, directly or indirectly, with J.K., I.B., R. and S. during the custodial period of her sentence. The crown will provide the full names of those persons for inclusion in this order.

4. Pursuant to s. 737 of the Criminal Code, the accused is ordered to pay the victim surcharge of $200.00.

[25] The conduct of A.S. in failing to protect her nine-year-old daughter from the ongoing, sordid sexual abuse by J.K. amounts to an egregious breach of parental trust. The fact that the victim knew that her mother chose to leave her vulnerable to this ongoing abuse added a layer of hurt to the dreadful abuse she suffered from J.K. The long-term negative impact on the victim and the extended family is significant. The prospects for rehabilitation of A.S. must be considered. However, in cases involving breach of trust and sexual abuse of children, the overriding principles are denunciation and general deterrence.

[26] Notwithstanding everything that has happened to A.S. and her daughter, A.S. maintains she hopes to one day wed J.K. if he will have her (and if he is available, subject to his current prison term and prospects of deportation). Forgiveness is one of the most admirable human traits. However, it is one thing for A.S. to forgive J.K. for what he has done to her and her daughter. It is quite another thing, and indeed alarming, that A.S. still harbours some doubts about what he actually did to her daughter and that she still wants to marry him. That is a mystery. Her lack of insight into the devastating consequences of her failure to protect her daughter casts a shadow over the prospects for rehabilitation.

[27] In my view, a penitentiary term is required to reflect the need for denunciation and general deterrence. Adults in a conjugal relationship have a legal and moral obligation to protect their children from harm by their partner that they are aware of. If they choose not to protect their children, there must be significant consequences. The lower end of the range suggested by the crown is appropriate in this case.

[28] A.S. is sentenced to three years in the penitentiary. She will receive credit for pre-trial custody and stringent bail terms to a value of six months. Thus, the sentence going forward from today is two years and six months.

[29] I am grateful to both counsel for their helpful presentation and submissions.

B. P. O’Marra, J.

Released: September 16, 2016