Her Majesty the Queen v. D.O.

Court File and Parties

Court File No.: CR-12-10 Date: 2016/12/09 Ontario Superior Court of Justice

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 – D.O.

Counsel: Jason Pilon, Counsel for the Crown Geraldine Castle-Trudel, Counsel for the Accused

Heard: September 2, 2016

Before: Leroy, J.

Reasons on Sentencing

Overview

[1] Mr. D.O. was convicted before judge and jury on November 24, 2015 on counts involving sexual interference and invitation to sexual touching, contrary to sections 151 and 152 of the Criminal Code. The complainant’s evidence was that Mr. D.O. engaged in sexual intercourse with her at least fifteen times during the spring and summer of 2005 when she was twelve and he was twenty-seven.

Background Facts

[2] The victim, BH who is an only child was born in 1992. There is no relationship with her biological father. BH has always resided with the mother, DL. At the material time, DL was residing in a common-law relationship with RO that began near the end of 2004. They shared the home with RO’s daughter and her two young children.

[3] RO is the father of Mr. D.O.. Mr. D.O. was a daily visitor to the home. BH felt comfortable in the household and said she regarded Mr. D.O. loosely in a big brother context.

[4] DL was incarcerated in May or June 2005 through to April 16, 2006. She planned to resume residence with RO on release. The plan was that BH was to remain in the RO household until near the end of summer vacation after which she was to move to Buffalo to stay with extended family for the school year.

[5] The first assault was on April 4, 2005. BH and Mr. D.O. left the house in his truck for a fast food run at 10:30 p.m. Mr. D.O. detoured on the way home, parked in a remote location, removed her shorts and underwear and coerced sexual intercourse. When Mr. D.O. was finished, BH escaped the vehicle and eventually walked the two or so miles home.

[6] The ensuing incidents of sexual intercourse occurred late at night in her bedroom. BH realized early on that crying out or resistance was futile. The last assault was on July 20, 2005. She estimated that Mr. D.O. had intercourse with her at least fifteen times. BH vacated the RO home on July 29, 2005.

Sentence provisions

[7] In 2005, convictions under ss. 151 and 152 attracted liability to imprisonment for a term not exceeding ten years. Parliament imposed a one-year minimum period of imprisonment in 2012.

Principles of Sentencing

[8] The Criminal Code sentencing algorithm summarized by Mr. Justice LeBel in R. v. Nasogaluak, 2010 SCC 6, 2010 S.C.C. 6 in paragraphs 39 through 46 is incorporated into these reasons by reference.

[9] The fundamental purpose of sentencing and its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations and promotion of a sense of responsibility in the offender (s. 718 Criminal Code).

[10] A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender (s. 718.1 Criminal Code).

[11] Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances (s. 718.2 (b) Criminal Code).

[12] Section 718.2(e) does not mandate better treatment for Indigenous offenders than non- Indigenous offenders. It is a recognition that a sentence must be individualized and that there are serious social problems with respect to Indigenous that require more creative and innovative solutions. This is not reverse discrimination. It is an acknowledgment that to achieve real equality, sometimes different people must be treated differently - R. v. Vermette, 2001 MBCA 64, 156 Man. R. (2d) 120, at para. 39.

[13] The methodology set out in R. v. Gladue is designed to focus on those unique circumstances of an Indigenous offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a part in bringing the particular Indigenous offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Indigenous heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence.

[14] First, systemic and background factors may bear on the culpability of the offender, to the extent that they shed light on his or her level of moral blameworthiness. Many Indigenous offenders find themselves in situations of social and economic deprivation with a lack of opportunities and limited options for positive development. Their constrained circumstances may diminish their moral culpability. Failing to take these circumstances into account would violate the fundamental principle of sentencing — that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[15] The second set of circumstances — the types of sanctions which may be appropriate — bears on the effectiveness of the sentence itself.

[16] The Gladue principles direct sentencing judges to abandon the presumption that all offenders and all communities share the same values when it comes to sentencing and to recognize that, given these fundamentally different world views, different or alternative sanctions may more effectively achieve the objectives of sentencing in a particular community.

[17] Sentences arising from the sexual abuse of children are rising as Courts become more familiar with the horrific consequences for the victims. See Moldaver J.A. in R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.), at paras. 34-38, R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 72, and R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721, at para. 38.

[18] 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 – R. v. D.M. at para. 44.

[19] Section 718.01 provides that where a Court imposes a sentence that involves 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.

[20] Evidence that the offender abused a person under the age of eighteen years, or that in committing the offence the offender breached a position of trust or authority in relation to the victim or that the offence had a significant impact on the victim considering her age and other personal circumstances are codified aggravating factors in s. 718.2(a)(ii.2), (iii) and (iii.2).

[21] A position of trust does not necessarily carry with it any actual authority over the victim. Whether the offender was in a position of trust relative to the complainant is fact specific. Relevant factors include their age difference, the evolution of the relationship and the status of the offender in relation to the victim. In R. v. Audet, [1996] 2 S.C.R. 171 Justice Laforest wrote that the determination in each case must account for the purpose and objective pursued by Parliament of protecting the interests of young persons who due to the nature of their relationship with certain persons are in a position of vulnerability and weakness in relation to those persons.

The Offender

[22] Mr. D.O.’s pre-sentence report reveals an Indigenous person who has bridged the old values with present realities. His upbringing was structured and loving. The environment was healthy and positive. He maintains strong family connections. He is spiritually attuned to his heritage and maintains a strong cultural identity. He is not dependent on alcohol or drugs. He maintains steady employment in the construction industry. He is noted to be a dedicated father to his children.

[23] Mr. D.O. has a criminal record. It is unrelated and neutral to this process.

Victim Impact

[24] The victimization inherent in repeated forced intercourse was panoptic in effect and life altering for BH. Mr. D.O. robbed BH of her childhood innocence. She resorted to alcohol and drugs to numb the consequential emotional wasteland of loneliness and fearful insecurity. She reports being an addict by age 16. She found the experiences of having to go to court one of the hardest things she ever had to do.

[25] To her credit, BH found a way to let the pain go. She forgave Mr. D.O. and is in recovery.

Aggravating and Mitigating Factors

[26] A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances. Mitigating factors are to be found on a balance of probabilities, while aggravating factors are to be considered after a finding beyond a reasonable doubt (s. 718.2 Criminal Code). Mitigating and aggravating factors are only those that are related to the gravity of the offence or the moral blameworthiness of the offender.

[27] The codified aggravating factors are in play. BH was twelve. Mr. D.O. was in a position of trust in relation to her. He was more than double her age, he was in the household on a daily basis, he utilized BH in a sitter role for his children and his status as RO’s son qualified him to drive to town with BH at 10:30 p.m. It was DL’s trust in his good character that engendered the first opportunity. It was his status as son of the homeowner that gave him free access to the home during the late evening. This experience had heart-wrenching impact on BH.

[28] The absence of a factor that might be viewed as aggravating or mitigating is neutral. Mr. D.O. shows no remorse. He denies that any of this happened. Sincere remorse can be mitigating. Lack of remorse, especially in the context of denial is not aggravating. A plea can be mitigating. Denial and trial are not aggravating.

[29] Mr. D.O. is an Indigenous person. There are recognized pervasive systemically induced implications attached to such status even in the most benign upbringings. In terms of reduced moral blameworthiness or culpability that can attach to Indigenous status derived from the constraint of social and economic deprivation, Mr. D.O. fortunately experienced a fulsome upbringing that propelled him to normative contemporary achievement while maintaining a strong spiritual connection.

[30] In terms of the types of sanctions which may be appropriate, the appellate jurisprudence on sentence for sexual offences against children trumps the potential for ameliorative influence of how the Indigenous community might regard penitentiary imprisonment for these offences. The Indigenous community shares the same repugnance for the sexual violation of a child and the same appreciation for the objectives of denunciation and deterrence. That said, different or alternative sanctions may more effectively achieve the objectives of sentencing in the Indigenous community.

[31] Mr. Pilon submitted that Mr. D.O. exploited BH’s vulnerability inherent in DL’s departure from the home. I do not accept that to be part of an opportunistic scheme. These assaults began before DL’s departure and carried on after. That said, Mr. D.O. was insensitive to BH’s sensibilities. His actions exacerbated her response to the loss of her mom in the home and that is aggravating. As she wrote in the victim impact statement, BH sought numbness from her emotional wasteland that took years to rehabilitate.

[32] There was some violence indicated in the earlier assaults. BH testified to struggling and calling out in the earlier in-home assaults. There were at least fifteen occasions of sexual intercourse.

[33] In terms of mitigation, these charges have weighed on Mr. D.O. since October 2011. He lived with the release conditions for five years. There is no evidence of breach. He has been consistently a productive member of his community and has strong family support. He is otherwise pro-social.

[34] As noted in some situations, the sentence for an Indigenous offender can be reduced in the context that different or alternative sanctions may more effectively achieve the objectives of sentencing in Mr. D.O.’ community. The Gladue component of the PSR did not offer different or alternative sanctions that may more effectively achieve the objectives of sentencing in the Akwesasne Mohawk community.

[35] Generally, as the violence involved in the commission of the offence increases, the closer will be the sentence outcome to that of a non-Indigenous offender.

Positions of Counsel

[36] The Crown asks for a term of imprisonment of seven to eight years, to ancillary orders to include a Sex Offender Information Registration Act compliance order for life, DNA sample, ten year weapons prohibition under s. 109 Criminal Code and a no contact order in respect to Crown witnesses while in custody – s. 743.21 Criminal Code.

[37] Counsel for Mr. D.O. argues for two years imprisonment plus two years’ probation. She referenced his Indigenous status, the positive pre-sentence report, the fact of the long delay until final disposition attributable to the complainant and its impact, the fact that Mr. D.O. has maintained stable employment and is a productive member of the community with fulsome support.

Conclusion

[38] Sentencing is an individualized process. No two cases are the same. Parity in sentencing requires similar sentences for similar offenders and similar offences. It is another way of recognizing the principles of proportionality relative to the gravity of the offence and moral culpability of the offender.

[39] The sentence range is between three and nine years in the penitentiary. This is not a case for a reformatory sentence. Mr. D.O. was in a position of trust relative to BH, not in the sense of parent or caregiver capacity, but in the sense of age disparity, his standing vis-à-vis his father, RO in the home and the entitlements consequent thereto.

[40] The victim impact has been poignant and likely immutable. Mr. D.O. coerced sexual intercourse with BH fifteen times, most often in the sanctuary that was her bedroom. He put her in the position at the age of twelve years of having to walk bare foot a distance of two miles in the darkest part of the night after the first assault. Mr. D.O. stole her innocence and childhood. Each of us gets only one. BH said that she stopped resisting once she realized the futility. That is an alarming message.

[41] The predominant sentencing purposes and objectives are denunciation and deterrence. The message to the community has to be that adults who prey on vulnerable children for sexual gratification can expect to pay a heavy price. The Court of Appeal stresses the value of protecting the children in our community and the repugnancy with which the community views that behaviour.

[42] Defence asked me to consider the impact of the weight of the lengthy delay between his arrest date and disposition – five years on Mr. D.O. as mitigating and worthy of sentence discount. Mr. D.O. did not breach. I am alert to Mr. Justice Rosenberg’s directions on this issue in R. v. Downes (2006) 3957 (Ont. C.A.). To my knowledge Mr. D.O. was not on house arrest. He was released on standard bail terms and functioned in his work and domestic life. I appreciate the outcome would weigh on him to some extent, analogous to a toothache. No evidence was adduced on the impact/effect this matter has had on Mr. D.O.. That he has conducted his affairs within the law while on release reinforces the mitigation inherent in the positive pre-sentence report. Beyond that, I am insufficiently informed to assign an appropriate discount number.

[43] In the end result, Mr. D.O. is caught by direction from the Court of Appeal in R. v. D.M. 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 – at para. 44.

[44] That Mr. D.O. is otherwise a pro-social productive community member is not exceptional in this case genre. That qualification is two-edged. That good standing facilitated the crime commission and is not an uncommon component. As the sentencing priorities are denunciation and deterrence, the restorative purposes and principles of sentencing are accorded lesser significance.

[45] Accordingly, Mr. D.O. is sentenced to six years penitentiary imprisonment. He is to provide a DNA sample – primary designated offence. There will be a ten-year weapons prohibition and lifetime SOIRA compliance order. Mr. D.O. shall be prohibited from contact/communication of any kind with any Crown witness during the course of this sentence. Lastly, pursuant to s. 161(1)(a.1) Criminal Code, Mr. D.O. is prohibited from being within 500 meters of the dwelling house where BH normally resides or her place of employment for a period of eight years commencing today.

Justice Rick Leroy Released: December 9, 2016