Court File and Parties
Court File No.: 509/13
Superior Court of Justice
Her Majesty the Queen
v.
H. B.
Reasons for Sentence
Before the Honourable Justice R. Delfrate
Information contained herein cannot be published, broadcast or transmitted pursuant to section 486.4 of the Criminal Code of Canada by order of Justice R.G.S. Delfrate, Superior Court of Justice dated November 24, 2014
on October 7, 2016 at SUDBURY, Ontario
Appearances:
J. Lefebvre, Counsel for the Crown G. Fournier, Counsel for H.B.
Friday, October 7, 2016
Reasons for Sentence
DEL FRATE, J. (Orally):
Firstly, I’ll give an overview of the allegations. H.B. pled guilty to the following three counts: count number one, that he, a male person, on or between the 1st day of September 1964 and the 1st day of September 1980, in A. Township and other places in the said region, did indecently assault D.B., pardon me, a female person, contrary to section 149 of the Criminal Code of Canada. Secondly, that he, a male person, on or between the 1st day of September 1964 and the 1st day of September 1980, in A. Township and other places in the said region, did commit acts of gross indecency with D.B., contrary to section 157 of the Criminal Code and thirdly, that he, a male person, on or between the 1st day of September 1964 and the 1st day of September 1980, in A. Township and other places in the said region, did have sexual intercourse with D.B., knowing that D.B. was his daughter, contrary to section 150(1) of the Criminal Code of Canada.
These allegations began in the mid-60’s and continued for some 15 or 16 years. They involve sexual improprieties committed by the accused with his daughter. The victim, at the time, was four years of age when these incidents first took place and they continued until she was approximately 20 years of age. At the time, H.B. and his family were living in the M. area. These acts took place in their home, at his place of business and various other locations in the M. area.
Initially, the incidents involved H.B. fondling his daughter in a sexual manner, over and under her clothes. They progressed to cunnilingus and fellatio and eventually, to vaginal and anal intercourse.
Despite leaving home when she was 16 years of age, these incidents continued to take place until the victim was approximately 20 years of age.
The circumstances of the offender are as follows: H.B. is currently 80 years of age. He has a severe medical history. He is also a caregiver to his wife, who is suffering from Alzheimer’s and he, himself, is inflicted with early onset of dementia and post-traumatic stress disorder that originated from his youth during World War II where he, himself, was sexually abused.
Additionally, H.B. has no prior criminal record and has led an exemplary life looking after his family and the community. Various neighbours have provided letters of support, speaking to H.B.’s generosity in assisting the community.
The position of the various parties is as follows: the defence submits that a conditional sentence is in order, given the dated nature of the sexual offence, H.B.’s age, his health, his otherwise exemplary and caring lifestyle and lack of a criminal record.
I should also mention, for the record, that I will be referring to case law and I will not give out the entire citations but I will provide the citations to the court reporter so that she can include them in the reasons – in the recorded reasons.
The defence submits that case law substantiates a conditional sentence in situations of this nature and refers to R. v. Taveres, 2013 ONCJ 381, 289 C.R.R. (2d), R. v. L.F.W., 2000 SCC 6, [2000] 1 SCR 132, and R. v. Arbuthnoth, 2008 ONSC 3227. Alternatively, the defence submits that a short period of incarceration, followed by a period of probation would comply with the principles of sentencing enunciated in section 718 of the Criminal Code of Canada.
The Crown, on the other hand, is seeking a period of incarceration of five years. It argues that a conditional sentence is not appropriate, considering the facts of this case. The Crown refers to numerous decisions stating that a period of incarceration is necessary for the protection of vulnerable individuals, such as children. It must be made clear to society, anyone who violates the trust of the children by sexually abusing them, faces a lengthy jail sentence. The Crown refers on R. v. D.D. (2002, 58 O.R. (3d) 788 (C.A.); R. v. M.(B.), 2008 ONCJ 514; R. v. G.(R.) 2010 ONSC 4082; R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721; R. v. P.M., 2012 ONCA 162, 282 C.C.C. (3d)450; R. v. R.P., 2013 ONCA 53, 295 C.C.C. (3d)28.
The Crown submits that the aggravating features of this case are such that only a term of incarceration complies with the sentencing principles of section 718. It refers to the young age when the improprieties started, the nature of the sexual acts, the lengthy time period over which these acts took place, the effects of the abuse on the victim and most importantly, the lack of insight and remorse exhibited by the accused.
The Crown then submits that the only redeeming feature exhibited by the accused is that the victim did not have to testify at any of the proceedings leading to his eventual plea. However, one must remember that although he did enter a guilty plea, he then brought an application to withdraw that plea.
Other mitigating factors that the Crown points to are that he is 80 years of age, has had no record, is looking after his ailing spouse and he, himself, is inflicted with numerous medical challenges. However, as the Crown states, these factors should not permit him to escape the appropriate penalty for the terrible and degrading actions inflicted on his daughter for so many years. The five year penalty appropriately reflects these factors. Without such consideration, a higher penalty would have been appropriate.
Discussion
This is a troubling case where the lives of a family have been devastated by the selfish acts of a person who should have been the protector. Everyone has been affected by what the accused did.
The victim has been suffering all of her life and will continue to suffer for the remainder of her life. She has been deprived of the joy and support of a regular family life. She is estranged from her son, who has been raised by her mother and father, being the accused. She has lived with the guilt of what her father did to her. In spite of her troubles, she has succeeded professionally. However, her career as an associate professor in the school of social work is a constant reminder of what she was subjected to. One can only wonder as to what she would have been capable of achieving, had she had a normal life and support from her family and especially her father.
The selfish actions of the accused have also had a negative impact on the victim’s family. They have been deprived of the presence of the victim, who by all accounts, has been extremely successful in her career. The mother, who requires the assistance of her husband, has been deprived of the help that she could have obtained from her daughter. The accused himself has been deprived of the help that he could have received from his daughter.
The case law is very clear that in offences involving children, a period of incarceration is necessary. As Moldaver, J.A., as he then was, stated in R. v. D.D., at paragraph 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.”
He then refers to R. v. M.(C.A.) [1996] 1 S.C.R. 500, a Supreme Court of Canada decision, which restored a 25 year sentence imposed at trial and R. v. W.(L.K.) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.), in which the Ontario Court of Appeal upheld a sentence of 18 and a half years imposed at trial.
Justice Moldaver, at paragraph 45, continues, “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 to pay a heavy price!”
Although the case that Justice Moldaver refers to the sexual abuse of more than one person, the remainder of the comments are applicable. More recently, factually similar case law shows that the courts agree with the approach taken by Justice Moldaver.
In R. v. Slater, 2014 ONSC 200, a 2014 decision, the offender was 74 years of age at the time of sentencing. The offences, which were sexual in nature occurred between 1968 and 1970 and between 1983 and 1984. The victims were in the offender’s Grade 7 and 8 classes. The defence argued that the offender’s age, lack of previous criminal record, low risk of re-offending and his significant community involvement amounted to exceptional circumstances justifying a conditional sentence.
At paragraph 40, Parfett, J. accepts the comments of the Court of Appeal, which state the clear position of that court as to the suitability of a conditional sentence involving the sexual abuse of children as follows: “This court has repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind.”
She then refers to R. v. F. (G.C.) (2004), 188 C.C.C. (3d) 68, R. v. L. (G.S.) (2003) 175 C.C.C. (3d) 564, both cases of the Ontario Court of Appeal. Her Honour rejects the defence’s submission, finding that the fact that the offender showed no remorse for his actions, the numerous victims indicating a pattern of behaviour and the breach of trust make a conditional sentence inappropriate.
She also notes that while the offender’s age and lack of criminal record indicate he was not a danger to the community, “His good reputation in the community is tempered by the fact that the community was unaware that he had another side to his character and that some adolescent boys had a very different experience with him.”, again referring to Slater.
I appreciate that the accused has had a very difficult upbringing and has been traumatized by it. However, I cannot understand how a person, who has been abused, would inflict similar abuse. Yet, in our society, it happens and all too frequently. One would think that the opposite would occur. In this case, we have a person in a position of authority who violated the trust owed to his daughter, to his family and to society. The consequences have been devastating to all parties. There has not been one iota of remorse and it is clear from the pre-sentence report, that he has no understanding of what he has done. He continues to maintain his innocence, even though he has pled guilty to it.
What is also troubling in this case are the comments contained in the pre-sentence report and I quote, “It would seem the subject suffered significant childhood trauma, especially emotional, physical and sexual abuse as a result of growing up during wartime. The subject and collaterals have suggested the subject continues to struggle with the impact of this trauma on his daily life. The impact of this trauma on the subject’s decision making capacity and ability to maintain healthy interpersonal relationships is unknown. The subject did not think it was inappropriate to engage in sexual relations with a young friend of his daughter nor the potential embarrassment and/or harm this could have caused his daughter. This lack of insight into his actions demonstrates the broader lack of insight the subject presented with during his pre-sentence report interview. Additionally, the subject is of failing health and is his wife. The subject and collaterals have expressed concern over the well-being of the subject’s wife, should the subject be sentenced to a custodial term.”
The pre-sentence report further states, “The subject has never behaved in any inappropriate sexual activities and did not identify sexual offender counselling as a tool for the subject. A pivotal aspect of successful relapse prevention is contingent on the offender understanding their respective offence cycle and enlisting measures to prevent re-entering their cycle. This writer...”, being the person who wrote the pre-sentence report, “...has concerns regarding the subject’s lack of understanding in relation to his offence cycle, specifically in relation to relapse prevention.”
The victim impact statement indicates that the victim would appreciate an acknowledgement and expression of remorse from the accused for what he has done. Such an acknowledgement would go a long way in healing the struggles that she is continuing to undergo. In the time that has elapsed and even until today, no effort has been made by the accused to accede to that request.
The accused suffers from multiple serious medical issues, which may be more aggravating at his current age than if he were younger. Such issues, although a factor in considering the appropriate penalty, do not absolve him of a jail sentence if it is necessary. In my view, H.B.’s actions and conduct have been egregious and a conditional sentence would be totally inappropriate, regardless of the conditions that would be imposed. It would not address the principles of denunciation and deterrence that are required from this sentence. As the Crown fairly stated and as is supported by the case law, the mitigating factors previously outlined have already been considered in the Crown’s request for a five year term of imprisonment. Ordinarily, based on the facts of this case, a much higher penalty would be imposed. Although the likelihood of re-offending is low, it is troubling that the accused does not understand the harm that he has caused to his family and to himself.
In my view, the sentence requested by the Crown is appropriate. Accordingly, on count number three, I sentence the accused to five years imprisonment. On count number one, I sentence the accused to two years imprisonment to run concurrently. On count number two, I sentence the accused to two years imprisonment to run concurrently. Over and above, the accused is to provide a DNA sample as soon as is practicable. Further, there is to be a SOIRA registration for life and a section 109 weapons prohibition. No one indicated the length of time.
MS. LEFEBVRE: I would recommend 10 years, Your Honour.
THE COURT: Mr. Fournier?
MR. FOURNIER: I take no position, sir.
THE COURT: There will be a section 109 weapons prohibition for a period of 10 years and I am open to any other suggestions that counsel may wish to make.
H.B.: Now, may I talk?
THE COURT: Not yet.
MS. LEFEBVRE: I believe that addresses the request the Crown made, Your Honour. I would like to withdraw any other counts that are before the Court, however this morning.
THE COURT: All right. May I have the indictment, please? Thank you.
MS. LEFEBVRE: My understanding, there’s an old indictment.
THE COURT: I’m sorry, I didn’t hear you.
MS. LEFEBVRE: My understanding from Ms. B. is, there’s an old indictment that needed to be withdrawn.
THE COURT: Today’s the 7th?
CLERK REGISTRAR: Yes, it is.
THE COURT: Subject to what counsel may say, the following endorsement has been made: “For oral reasons, a term of imprisonment is imposed on count number three. On count number one, two years to run concurrently. On count number two, two years to run concurrently. Further, a DNA sample is to provided as soon as is practicable. A SOIRA registration for life and a section 109 weapons prohibition for 10 years are imposed. All other counts on the indictments are withdrawn.” Is there anything else I should be endorsing on the indictment?
MS. LEFEBVRE: No, thank you.
THE COURT: Mr. Fournier?
MR. FOURNIER: No, sir.