R. v. C.S., 2016 ONSC 7681
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C. S.
Accused
David Steinberg, for the Crown
Marcus Bornfreund, for the Accused
HEARD: October 10, 2016
PUBLICATION RESTRICTIONS NOTICE
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify either of the two complainants shall not be published in any document, broadcast or transmission.
B.A. ALLEN J.
DECISION ON SENTENCING
TRIAL EVIDENCE
1CS was convicted at a jury trial in relation to historical sexual offences against his two nieces, GS and VS.
2The offences took place over a ten-year period between 1976 and 1986, with GS from 1976 to 1980 and with VS from 1983 to 1986. The girls were about 14 and 16 years of age when the abuse started. He was charged under the criminal law at that time with one count of rape and one count of indecent assault against GS and with one count of sexual assault against VS.
3The offences would occur routinely on weekends at family gatherings at the complainants’ family home.
4Regarding the rape charge involving GS, GS was upstairs preparing to take a shower wrapped in a towel. She was 14 years of age. CS pushed her into the bathroom, trapped her in there, locked the door, and restrained her against the wall and raped her. On many occasions when CS would find GS and VS alone in a room in the house or on a stairway he would grope their breasts and vaginas through their clothes and make lewd remarks. On one occasion on the driveway of the home, CS also kissed VS on the lips, when she was age 14, inserting his tongue into her mouth.
5CS also bribed both GS and VS with money and shopping to induce them not to tell anyone about the abuse.
THE PRE-SENTENCE REPORT
6CS is currently 68 years of age and retired. He immigrated to Canada from Dominica, West Indies at age 25. He had completed secondary school. He has a son, now 33, from his first marriage which lasted 14 years. He had three children with his second wife. After the second marriage ended he commenced a common law relationship with his first wife.
7CS was employed for 16 years with a sheet metal company until he lost his job due to a company bankruptcy. He received social assistance for four years until he got a job at a friend’s print shop where he worked until he retired. He supports himself on an Old Age Pension and his savings.
8CS indicated, and others interviewed confirmed, that he does not have any alcohol problems as he stopped drinking alcohol about 15 years ago. He admits to having enjoyed drinking at family gatherings in the past. Twenty years ago he was diagnosed with insulin dependent diabetes which has created some vision problems for him. He has not been under the care of a mental health professional.
9His first wife, his son, and a common law ex-spouse gave character references for the Pre-Sentence Report.
10CS has a criminal record from 2009 for sexual assault and sexual exploitation in relation to his 16 and 20 year old step-daughters, the daughters of his common law spouse at the time. The charges relate to CS exposing himself and masturbating in front of the girls and touching their bodies on mornings after the common law spouse left for work. One of the step-daughters took a video recording with her cellphone of this conduct which was part of disclosure for the trial related to his step-daughters. CS pleaded guilty. He was sentenced to 60 days’ custody.
11In spite of his conviction and jail time persons interviewed for the report describe him in glowing terms. His common law ex-spouse, the mother of the two girls he sexually abused, stated she and CS remain “friends”. They talk on the phone and see each other often. She said she was “shocked, disappointed and angry” about the abuse of her daughters. However, she complained that it was the court that “forced” CS “to leave”. So it appears the mother of the two girls would not have forced CS from the home for abusing her daughters.
12CS’s first ex-wife and their son expressed surprise about the offences before the court. They described CS as “friendly”, “helpful”, “easy going”, “a jokester” and a “very nice person”. The son described the offences before the court as out of character for his father. The first ex-wife and the same son stated that CS is religious and regularly attends the Seventh Day Adventist Church on Saturdays.
13CS’s brother, the father of GS and VS, was interviewed. He stated he was never informed of the charges before the court and gave no credence to the validity of the charges. He states “hell would have been raised” if he had known. He stated he has a good relationship with CS and has absolutely no relationship with either GS or VS.
VICTIM IMPACT STATEMENT
14VS provided a victim impact statement. The Report indicates that GS is in bad health and not in a position to make a statement.
15VS stated she did not trust the adults in her life enough to tell them what her uncle was doing to her. She always felt she would get into worse trouble and not be protected for speaking badly about her uncle. She felt ashamed, confused and afraid about the things CS was doing to her.
16VS has never been in a healthy relationship with a man. She feels that her experiences with sexual abuse by CS and the feeling that she had to keep silent about it led her into making poor choices in relationships with men. She stated that she has been in three major relationships with men. She suffered abuse with all three men, enduring the abuse in silence. She learned from a young age not to speak about abuse. VS has struggled with weight gain and explains that she has purposely put on weight so as not to be noticed by men. This has had an adverse effect on her self-image. VS also stated that CS would whisper in her ear during the abuse. She bemoans the fact that if an intimate partner whispers closely in her ear she has flashbacks of her uncle’s abuse.
17The experience with abuse by CS has also resulted in a breakdown in VS’s relationship with her family members. She has no relationship with her father or her father’s side of the family. They have not been and are not supportive and do not acknowledge what CS has done.
18In spite of the barriers in her life, VS has managed to pursue her career goals and feel good about where she is in her life today. Sadly, this is not so for GS. VS pondered, had CS not raped GS, where might GS be in her life today.
19VS spoke on behalf of GS in her victim impact statement. VS did not know at first about her sister’s abuse by CS. She did not understand the troubles her sister was facing in her life. Her description of GS’s issues are regretfully, the all too commonplace results of childhood sexual abuse. She remains close to GS and states GS struggles with addictions and abusive relationships with men. GS is shunned by the family because of her life choices.
SENTENCING PRINCIPLES
Basic Objectives of Sentencing
20Section 718 of the Criminal Code sets out the principles that underpin the objectives for sentencing: denunciation, deterrence and the separation of the offender from society.
21The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.
22Section 718.01 provides that with offences against children under age 18 years the objectives of denunciation and deterrence shall be given primary consideration. R. v. D.D., a leading Ontario Court of Appeal case, emphasizes the operative principles of denunciation and deterrence and the need to separate offenders from society with sentencing an offender convicted of sexual violence against children. R. v. D.D. held:
… In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.
[R. v. D.D. (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.)]
23In R. v. D.D. the accused was convicted of 11 sexual offences involving four boys. Starting when he was age 25 years, and for a period of seven years, the offender befriended four boys, ages 5 to 8 years, and involved them in various types of sexual activity over a prolonged period of time. The court laid down the general rule that adult offenders in a position of trust who sexually abuse innocent children persistently over a protracted period of time can expect to receive mid to upper single digit penitentiary terms.
24Section 718.1 of the Criminal Code provides a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Following that principle, R. v. Woodward commented on penalties for more extreme forms of sexual abuse of children. The court held that adult offenders whose abuse involved full intercourse, violence, threats of violence and other forms of extortion would attract penitentiary sentences from upper single digits to low double digits to reflect the increased gravity of the offence and the enhanced moral culpability of the offender: R. v. Woodward (2011), 2011 ONCA 610, 276 C.C.C. (3d) 86, at paras. 36 to 39 and 73, (Ont. C.A)].
Aggravating and Mitigating Factors
25Section 718.2(a) provides that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”. There are a number of aggravating factors a judge is required to consider both at common law and under statute law.
26Statutory aggravating factors are set out in section 718.2. The statutory aggravating factors that are pertinent to the case at hand are abuse of a person under 18 years of age and breach by a person in a position of authority or trust.
27Common law aggravating factors include considerations of whether or not the victim was a vulnerable victim such as is the case with children.
APPLICATION OF PRINCIPLES AND LAW
Mitigating Factors
28The mitigating factors in this case are few. These are as follows:
CS is a relatively elderly man at age 68 years.
He had steady employment for 16 years and after a period on social assistance is now retired living on savings and a pension.
At the time of the offences before the court CS had no criminal record.
His son, ex-wife (the mother of his son), common law ex-spouse and brother are supportive of him; and
CS has insulin-dependent diabetes.
29Lack of a guilty plea is not considered an aggravating factor although if there was a plea that would have been considered a mitigating factor.
30CS’s ex-wife, common law ex-spouse, his son and brother vouched for CS as a good guy, a fun loving generous jokester and a churchgoer. The common law ex-spouse, the mother of the other two girls he abused, even maintains a close friendship with him and a positive attitude towards him.
31I cannot place much stock in the comments of those persons.
32It is impossible to imagine that they would not at least have known about the sexual exploitation of his two step-daughters since he pleaded guilty and did time in jail for those offences. The mother of those girls admitted knowing this and her reaction as expressed in the Pre-Sentence Report indicates she openly condones his conduct.
33The persons who sing his praises say they are close to him. Therefore each of them would reasonably have known he was convicted and went to jail for his crimes against his step-daughters. They most certainly know he was convicted in the matter before this court. Yet none of this seems to have negatively impacted their view of him. Even the parents of his four young victims do not seem to care. To point to CS’s regular attendance at church as an indicator of his “goodness” flies in the face of his utter lack of contrition for his depraved deeds and reeks of the worst kind of hypocrisy. He should be condemned, not praised.
34The positive affirmation of CS by family members confirms GS’s and GS’s feelings of alienation from the family and their fears about reporting him lest they not be protected. For GS and VS, seeing praise being heaped on their abuser, a child sexual predator must be next to unbearable.
Aggravating Factors
The young ages of VS and GS, in their early to later teenage years and the divergence in their ages and CS’s, an approximate 15-year difference.
CS was in a position of trust in relation to his nieces as an older close relative, their father’s brother and their uncle.
The sexual abuse was frequent, every weekend at family gatherings at GS’s and VS’s family home over a lengthy ten-year period.
The adverse effect on VS’s and GS’s lives: They were teenage girls hounded by CS at family gatherings every weekend for years where everyone enjoyed CS as the life of the party and the girls felt no one would believe them; the sexual abuse destroyed family relationships and trust, led GS and VS into abusive intimate partner relationships, poor self-images, poor life choices; more profoundly so for GS who has suffered serious health and addiction problems through her life.
The variation and escalation in the types of abuse, from CS groping GS’s and VS’s breasts and vaginas, pressing them against walls, making lewd remarks to them, to the kissing of VS and placing his tongue in her mouth, to rape.
CS committed a forced rape which involved fully unprotected sexual intercourse with GS while confining her in the washroom while she was naked and restraining her arms; and
The use of bribery with money and shopping to induce the teenage girls not to tell anyone about the abuse.
35Although a lack of remorse cannot be counted as an aggravating factor, since accused persons are entitled to maintain their innocence, a show of remorse could be regarded as a mitigating factor. CS does not receive this benefit.
Subsequent Criminal Offences and Rehabilitation
36CS committed the sexual abuse of his two step-daughters in 2009, years after the abuse of GS and VS. Criminal offences committed subsequent to the offences before the court cannot be regarded as aggravating factors on sentencing. Subsequent criminal charges can however be considered in determining the appropriate weight to give the objective of rehabilitation. Effective rehabilitation no doubt requires acceptance by the offender of responsibility for his crimes and an understanding of the harm done.
37CS is completely devoid of any inkling of his own blameworthiness. He expresses no shame. In the face of a finding of guilt on the current charges and pleading guilty to the earlier sexual abuse, he has allowed his family members to give glowing accounts of his character.
38No surprise he has not sought rehabilitation since to his mind he did not need help because he did nothing wrong. He sought no help after the abuse of his nieces and went on to abuse again. CS was not open to counselling or therapy when interviewed for the Pre-Sentence Report. This gives the court no faith that rehabilitation is a viable consideration.
39Statute and common law recognize a diminished role for rehabilitation in these circumstances. The Ontario Court of Appeal found in a case involving sexual abuse of a young person by an adult offender in a position of trust that the offender’s rejection of rehabilitative measures on conviction did not bode well for his prospects for future rehabilitation. The court went on to hold that greater emphasis on rehabilitation was not warranted: [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), s. 718.01 and see R. v. B.D. 2014 ONCA 621, at para. 16, (Ont. C.A.)]. I also find in the case before me no increased emphasis on rehabilitation is warranted.
CASE AUTHORITIES
R. v. D. (D.) (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.): adult male offender, a close family friend, abused boys over a seven-year period starting when he was 25; befriended four young boys ages five to eight years old and engaged in multiple types of demeaning sexual abuse including anal penetration; offender groomed them and gained compliance with gifts and fun activities; offender was sentenced to nine years, one month imprisonment.
R. v. S. (J.), [2008] O.J. No. 4379 (Ont. S.C.J.): stepfather convicted on three counts of sexual assault in relation to three incidents of sexual intercourse with a female under 14 who was his stepdaughter; victim was between the ages of six and eight years; offender had no criminal record; he was in a position of trust; court found young age of victim and devastating effect on victim's life aggravating factors; sentenced to five years' imprisonment.
R. v. C. (A.), [2008] O.J. No. 4334 (Ont. S.C.J.): over 18-year period offender sexually assaulted his stepdaughters and their cousins; assaults included sexual intercourse; a prior dated record; offender had no remorse; position of trust; devastating effects on victims; given nine-year sentence.
R. v. K. (P.N.), [2004] O.J. No. 3021 (Ont. C.J.): offender pleaded guilty to sexual assault escalating from touching to sexual intercourse with 13 year old stepdaughter; offender stable work record; offender attempting to reform; sentenced to five years' imprisonment.
R. v. P. (K.), [2012] O.J. No. 3728 (Ont. S.C.J.): offender, age 63, unemployed; sexually abused stepdaughter for four years at ages nine to 12; digital penetration and masturbation in front of the victim; offender no criminal record; devastating effect on victim; sentenced to four years' imprisonment.
R. v. P. (D.), [2014] O.J. No. 401 (Ont. S.C.J.): offender, age 70, stepfather of victim; no criminal record; committed sexual abuse including full intercourse over a five to eight-year period on stepdaughter at ages 10 to 18; given sentence of four years.
SUMMARY ON A FIT SENTENCE
40The Crown seeks a total penitentiary term of nine to ten years to run concurrently on the counts related to GS and VS. The Crown seeks the following ancillary orders: a DNA order, a SOIRA order, a s. 109 order; a s. 161 order; and a non-communication order.
41The defence does not oppose the ancillary orders. The defence seeks a conditional sentence of a total of nine to 12 months to run concurrently on the counts related to GS and VS, plus two years’ probation. A conditional sentence is available for sexual crimes committed before a change in the law in 2012 disallowed this type of sentence for sexual offences.
42CS has diabetes which is controlled by insulin. He does not have a criminal record. He was stably employed during most of his working life. He had a normal and supportive upbringing in Dominica and there is no evidence of challenging or traumatic experiences in his life. There is no evidence of substance abuse or psychological or emotional problems apart from those underlying his perverse appetite to abuse young girls.
43The aggravating factors are much more pronounced. CS has abused the trust of his young nieces. He is their uncle, their father’s brother. He should have been protective of them. They should have been able to look up to him. Instead they dreaded him and because of his reputation in the family as “the good fun loving generous guy”, they did not dare complain about his abuse to their parents or anyone for fear of being disbelieved and alienated.
44VS’s and GS’s subsequent life experiences are sadly in keeping with what is well-known about the experiences of young girls who are sexually abused by a person in a position of trust or authority.
45VS described her problems with abusive relationships and with her self-image as she gained weight to ward off the attraction of men. She spoke about the flashbacks of her uncle she experienced with something that should be a loving experience, a whisper in her ear by an intimate partner. VS described GS’s anguished and sad life with abusive partners, drug addictions and health problems. VS did not know about the rape. GS kept this a secret even from her. VS always wondered why her sister’s life was so sad and wracked with addiction and bad health. She wonders what GS could have been had she not been raped and abused by CS.
46The cases I have reviewed gave penitentiary terms to adult offenders in positions of trust who, over prolonged durations, committed progressive acts of sexual abuse of children which included sexual intercourse without a condom and inducements not to report the abuse. These are the circumstances in the case before me with VS and GS.
47I find a sentence of four years’ imprisonment for the offences against VS on count 3 and six years’ imprisonment for the offences against GS on count 1 and count 2, to run concurrently, is a fit sentence that will properly address the sentencing principles of denunciation and general and specific deterrence and the separation of the offender from society.
SENTENCE
48I will now pronounce sentence. CS, will you please stand?
49You have been convicted in relation to your niece, GS, for rape (count 1) and for indecent assault (count 2).
50I sentence you to a total of six years’ imprisonment in a penitentiary for your crimes against GS.
51You have been convicted in relation to VS for sexual assault (count 3).
52I sentence you to four years' imprisonment in the penitentiary to run concurrently with the sentence for your crimes against GS.
53Your total sentence will be a six-year prison term in the penitentiary.
54In addition, there shall be the following ancillary orders and orders of prohibition:
(a) a Criminal Code s. 734.21 order not to communicate with GS and VS while in prison.
(b) a Criminal Code s. 490.013 SOIRA order to be entered into the sex registry for life.
(c) a Criminal Code s. 487.04 order to provide a DNA sample.
(d) a Criminal Code s. 109 weapons prohibition for ten years to commence after release from prison.
(e) a Criminal Code s.161(1)(a) order that CS not attend a public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a daycare centre, school ground or playground or community centre. This order shall be enforceable for life to commence after release from prison.
B.A. ALLEN J.
Released: December 8, 2016
R. v. C.S., 2016 ONSC 7681
COURT FILE NO.: CR-12-30000108-0000
DATE: 20161208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C. S.
Accused
DECISION ON SENTENCING
B.A. ALLEN J.
Released: December 8, 2016