Court File No. 14-4699
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
C.M.
R E A S O N S F O R S E N T E N C E
GIVEN BY THE HONOURABLE JUSTICE A. SKARICA
on December 5, 2016, at HAMILTON, Ontario
IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE
APPEARANCES:
B. Moodie Counsel for the Crown
M. Wendl Counsel for C.M.
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Page
Reasons for Sentence 1-11
Certification 12
MONDAY, DECEMBER 5, 2016
R E A S O N S F O R S E N T E N C E
INTRODUCTION
On October 8, 2016, a Hamilton jury found C.M. guilty of the following offences involving his natural born daughter:
(1) Sexual Assault;
(2) Sexual Interference;
(3) Incest.
FACTS
K.M. is the accused’s daughter. She was born on […], 1999. When she was in grade three and just eight years old, K.’s teacher phoned her father regarding a test that K. did not write at school. K.’s father, the accused, told her to go downstairs and get a movie. The accused followed K. downstairs. He looked at her with disgust and hatred. He pushed K. down and raped her. He told K. he hated her; she was a mistake; he didn’t want her as a kid.
During that first incident he ripped her clothes. There was a bruise on her face. She told teachers and students she fell, but it was not true. Regarding her vagina, “It hurt a lot and didn’t feel good.”
There were 50 rapes over 5 years. It mainly happened in the accused’s downstairs bedroom. It also happened in the living room and also on an Algonquin Park trip. She got a lot of bruises from the incidents. Her vagina hurt a lot. Her daddy used to tell her he hated her and that he would break her leg and arm, or that he would kick her out and put her in foster care. She never saw a condom, but there was no ejaculation, as far as she could tell.
In cross-examination she indicated that it happened one time in the living room. That there was no penetration and her pajama bottoms were wet.
C.M., in his statement to the police, admitted being attracted to his daughter, but he denied any sexual assaults. At trial he maintained his innocence and continues to do so to the present day, even after being convicted.
K. was an excellent witness. I believe and accept her evidence in its entirety, as I believe the jury did as well.
THE IMPACT ON THE VICTIM K.
K. and her mother have filed victim impact statements. Ms. M.’s side of the family does not believe K. and have rejected her. K. has lost faith in humanity and has had her childhood ripped from her. She cuts herself to relieve the pain and hurt and has been doing that for the last six years; and this self-molestation continues to this day.
REGARDING THE LAW
Section 718 of the Criminal Code sets out the many factors I must consider in sentence.
I do not need to repeat those sections here, except to note that Section 718.01 indicates that: where an offence involves the abuse of a child the primary considerations are denunciation and deterrence.
Section 718.02 requires me to consider mitigating and aggravating circumstances.
The mitigating circumstances here are that the accused has no criminal record; and, according to the pre-sentence report, was steadily employed for a long time.
The aggravating factors are that this victim, K., was the accused’s daughter. She was raped 50 times, from the tender age of eight until twelve. The accused has shown no remorse of any kind. The pre-sentence report indicates that he does not accept responsibility for his actions.
As indicated, there were 50 acts. Actually, I find there were 51, that other incident in the living room, where there was no penetration and her pajama bottoms were wet.
The 50 acts of rape occurred over four to five years, when this child was very young and vulnerable, from the ages of eight to twelve. There was full intercourse 50 times. It was accompanied by violence, which resulted in bruises, which K. had to lie about at school. She indicated her vagina hurt a lot.
There were threats and extortion. The accused told K. he would break her leg and arm and put her in foster care. The accused is in a position of trust, this a father-daughter relationship.
The family has been torn apart. K. herself continues to this day to physically cut herself. She was robbed of her youth. She has been severely, if not permanently, psychologically damaged.
THE CASE LAW
The sentences for cases of this type have been going up over the years.
In R. v. D.(D.) 2002 44915 (ON CA), [2002] O.J. No. 1061, also reported at 157 O.C.C. 323, Justice Moldaver held as follows, at paragraphs 44 and 45:
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.
Justice Moldaver continues at paragraph 45 as
follows:
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!
My brother, Justice Richetti, in
R. v. C.(G.) 2015 ONSC 5068 held at paragraphs 36 and 38 as follows:
36 Incest is a particularly heinous crime.
It is the abuse of a sacred trust and parental
relationship by a parent for the parent’s own
sexual gratification at the expense and
disregard of the devastating effect on the
parent’s own child. Further, the potential
medical and negative impact on children born
of incest, make this a very serious offence in
our society. As has been said: This type of
offence strikes at the very moral fibre of our
society.
38 In this case, unlike Woodward, the sexual
abuse was by an adult against his own child,
adds a further and significant layer of
negative impact on the community.
Finally, mostly recently, the Ontario Court of Appeal in R. v. D.M. [2012] ONCA 520 held at paragraphs 36, 43 and 44 as follows:
36 Second, and most importantly, while the
court in D.D. set specific ranges for
categories of cases described by the court
that were similar to the facts in D.D.,
Moldaver J.A. also made two things clear:
- ranges of sentence are only guidelines;
they leave trial judges with the flexibility
“to do justice in individual cases.”
- for conduct where an adult in a position of
trust sexually abuses children on a consistent basis and over an extended period of time, a higher range of sentence is called for. Depending on the specific facts, a
penitentiary sentence, ranging from upper
single digit to low double digit or beyond is
appropriate. Although Moldaver J.A. referred
to “children” in the plural, it is the conduct
that is aimed at; while the number of victims
will be a factor, the instruction from D.D.
does not become inapplicable where there is
only one victim.
43 Since the argument in this case, Rosenberg
J.A. has addressed the issue of any perceived
discordance between [a variety of cases listed
at that paragraph]. He concluded that the
B.(J.) decision must now be read with D.D. and
that “the court signaled in D.D. that the
sexual abuse of a child will attract lengthy
penitentiary sentences. In my view, where a
father has committed repeated acts of incest
with his daughter over many months…it will be
highly unusual for the court to impose a
penitentiary sentence of less than five to six
years”.
Then the Court of Appeal indicates:
44 To conclude on the issue of the proper
range of sentence, 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.
The position of the Crown is that the accused should receive eight to ten years in the penitentiary.
The defence submission is that he should receive five years, which is at the absolute low end.
He has done pre-trial custody of what I assess as two months; and I will give him the credit for three months.
CONCLUSION
The range of sentence in this matter is at the very low end, five to six years, to ten years, or perhaps more, on the high end.
In this case, there is repeated sexual intercourse over many years, accompanied by violence and threats and/or extortion.
The accused accepts no responsibility for his actions.
In my opinion, the absolute minimum appropriate sentence is eight years, minus the credit for three months trial custody.
The accused is sentenced, after the credit for three months, to a further seven years and nine months, or 93 months in custody, concurrent on counts 2 and 3.
I have endorsed the indictment as follows:
Convictions are entered on counts 2 and 3.
Count 1 is conditionally stayed.
The accused, on counts 2 and 3, is sentenced, on a concurrent basis on each count, to a total of seven years, nine months, total of 93 months, after being given a credit to pre-trial custody assessed at three months.
The ancillary orders are ordered as follows:
(1) The victim fine surcharge is concurrent on
both charges;
(2) There is a DNA order pursuant to Section 487.055(3);
(3) There is a Section 109 Criminal Code weapons
prohibition order for life;
(4) There is a Section 161.1(b) order prohibiting
the accused from obtaining employment or
volunteering in a position where he is in a
position of trust towards persons under 16
years of age;
(5) There is a Section 490.012 SOIRA order for
life;
(6) There is a Section 743.21 non-communication
order with K.M. and J.M. while the accused is in custody.
MR. MOODIE: Thank you, Your Honour. I forgot to include in the Crown’s submission that Ms. M., J.M. has changed her last name to P.
THE COURT: Do I need to aka P.?
MR. MOODIE: That was my error; I apologize to the court.
THE COURT: So I have just added aka P.
MR. MOODIE: Thank you.
THE COURT: Thank you.
MR. WENDL: Thank you, Your Honour.
THE COURT: I thank counsel for their assistance.
MR. MOODIE: Thank you.
…PROCEEDINGS CONCLUDED
Form 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Laurie Lougheed, certify that this document is a true and accurate transcript of the recording of
R. v. C.M. in the Superior Court of Justice held at 45 Main Street East, Hamilton, Ontario taken from Recording No. 4799 604 20161205 094729 10 SKARICT.dcr
which has been certified in Form 1.
January 30, 2017