Court File and Parties

COURT FILE NO.: 14-SA-5044 DATE: 20170120 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – L.C. Accused

COUNSEL: Jonathan Melo, for the Crown Dominic Lamb, for the Accused

HEARD: January 6, 2017

REASONS FOR SENTENCE

Beaudoin J.

1On September 21, 2016, L.C. was found guilty by a jury of one count of sexual assault under s. 271 and one count of sexual interference under s. 151 of the Criminal Code of Canada (the Code). On September 15, 2016, I granted the Defence motion for directed verdict wherein I acquitted L.C. of a charge of invitation to sexual touching contrary to s. 152 of the Code.

2The offences in the indictment read as follows:

THAT THE SAID L.C., between the first day of January 2006 and the sixth day of July 2008, at the City of Ottawa said East Region did, use a part of his body for a sexual purpose, directly or indirectly touch the body of a person under the age of 14 years, namely S.B.M. contrary to section 151 of the Criminal Code.

AND FURTHER THAT THE SAID L.C., between the first day of January 2006 and the sixth day of July 2008, at the city of Ottawa in the said East region did, commit a sexual assault on S.B.M., contrary to section 271 of the Criminal Code.

The Facts

The Facts

3By way of background, the victim was between six and eight years of age at the time of the offences. L.C. was her stepfather. S.B.M. testified that between the ages of approximately six and eight years of age, L.C. engaged in sexual contact with her. The sexual contact included numerous incidents of sexual intercourse. S.B.M. disclosed the sexual contact to her father and stepmother four years later after she left the home she had shared with her mother and L.C.

4Because there was a finding of guilt by a jury, s. 724 of the Code comes into play; I’m required “to accept as proven all facts, express or implied that are central to the jury’s verdict of guilty or may find any other relevant fact that was disclosed by evidence at the trial to be proven…”.

5At the time of her video statement, S.B.M. was 13 years of age and she was recalling events that took place four years earlier. She adopted that statement at trial when she was then 16 years of age. In the video statement, she initially indicated that the incidents took place four times per week. She said that the offender would come to her room when everybody else was sleeping and insert his penis in her vagina. She resisted and he would bend her legs down to prevent her from trying to kick him off.

6She said that these sexual assaults would also happen when her mother drove her older stepbrother, Scott, to cadets. On those occasions, L.C. would come into the shower when she was showering and do the same thing. She said this happened once, maybe twice a month. While there were no acts of physical violence, there was some force used and she was threatened that she would not be able to see her father if she told anyone. She also described one incident where she woke up at night and could see her hand around L.C.’s penis.

7At trial, she testified that the incidents took place once or twice a week and that the incidents took place very second week. There was some lack of detail and there were discrepancies in some of the details regarding those events. She added that there was one incident of cunnilingus while a pornographic movie was on the television. In re-examination, she said there were 20 incidents, “more or less.”

8While there were discrepancies in some of S.B.M.s’ statements, I accept, as a fact, that there were 20 incidents in total over a two and one half year period. These incidents included full intercourse and at last one act of sexual touching and another act of cunnilingus. I accept that there was some force used to overcome S.B.M.’s resistance and that she was threatened that she would not see her father if she told anyone.

Position of the Crown and the Defence

Position of the Crown and the Defence

9Both the Crown and the Defence agreed that the conviction on the charge of sexual interference should be conditionally stayed on the basis of the Kineapple principle (R. v. Kineapple, [1975] 1 S.C.R. 729) and a stay on that charge is so ordered.

10The Crown seeks the following terms:

Nine years’ incarceration and the following ancillary orders:

i. a DNA order under s. 487.051 of the Code; ii. a sexual offender information and registration order under s.490.012 and 490.013(5) of the Code for life; iii. an order s. 161(1) (a),(b) and (c) of the Code for life; iv. an order prohibiting the offender from communicating with the victim during his custodial sentence in accordance with s. 743.21.

11The Defence argues that a sentence of between 3 to 5 years is appropriate in the circumstances and does not oppose the imposition of the ancillary terms requested by the Crown other than the prohibition under s. 161.

The Sentencing Principles and Considerations

The Sentencing Principles and Considerations

12Section 718 of the Code sets out the fundamental purposes and objectives of sentencing. The objectives include denunciation, general and specific deterrence, rehabilitation and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done to victims and to the community.

13Section 718.2 (a)(ii.1) of the Code requires that in imposing a sentence, evidence that the offender in committing the offence abused a person under the age of 18 years is deemed to be an aggravating circumstance.

14Section 718.2 (a) (iii) of the Code describes as an aggravating circumstance evidence the offender, in committing the offence, abused a position of trust or authority in relation to the victim.

Circumstances of the Offender

Circumstances of the Offender

15L.C. is currently 49 years of age. He met S.B.M.’s mother (B.M.) in 2003 and they were married in 2005. She brought three children to the marriage. His wife suffered from depression throughout their time together and she passed away in 2008 from an overdose of medication. By that time, the marriage was not a happy one. S.B.M. described her mother as “too strict” and that she was not “what a mom should be.” The last time L.C. saw the children was at the memorial service held for his wife as custody of the children was then awarded to their biological father.

16In 2012, he met his current partner through an online service. She’s from the Philippines and they were married on May 5, 2013. In February 2014, he sponsored his wife along with her daughter to come to Canada. They have been together since that time until the Children’s Aid Society became involved when L.C. was officially charged with these offences. He and his wife now have a son who was 19 months of age at the time of the preparation of the Pre-Sentence Report (“PSR”). The family maintains a home in Windsor Ontario and L.C. has maintained a separate residence in London.

17His wife continues to be very supportive of her husband and the relationship appears to be strong. His wife has no concerns about his behaviour or having been sexually inappropriate towards her or towards her daughter.

18His cousin, J.K., describes L.C. as a sensitive man who is dedicated to his family and assures the Court that he will participate in any required assessments or programming to prove that his children are not at risk of his presence.

19There is a current protection order in effect for L.C.’s wife and children. There was a prior breach of the protection order but there have been no further violations since that time. There was no prior involvement with the CAS.

20L.C. completed some post-secondary education and training and was successful in obtaining employment as an aviation mechanic and has been gainfully employed throughout most of his working life.

21There are no current problems with respect to substance abuse or consumption of alcohol although alcohol consumption appears to have been a problem in the past. He participated in the PSR process in a cooperative and polite manner. There is no evidence that he suffered from any mental health or cognitive impairments. He maintains his innocence and therefore displayed no victim empathy at the time of the PSR. He believes that the victim was lying and is being influenced by her family to make these false accusations. He adamantly denies that he is sexually attracted to children.

22There is a prior conviction in 1989 for two counts of break and enter with intent and sexual assault. According to the collateral source, L.C. was absolutely blind drunk on those occasions when he left a house party and he entered a few different homes in the vicinity of the house party where he ended up in a young girl’s bedroom and he kissed her on the cheek. He had attempted to remove the bedcovers and get into bed but the victim pushed him away and told him to leave. He then entered the mother’s bedroom attempted to get into bed with her and she told him to leave. He then went downstairs and was detained by male parties sleeping in the living room. It was determined that he gained entry by cutting a screen and climbing into the main floor kitchen window. He pled guilty and received a suspended sentence and 2 yrs. probation. He was also convicted on a breach of recognizance in 1991. These offences took place over thirty years ago and it is apparent that L.C. turned his life around and went on to lead a normal and productive life until these offences occurred.

23The review of the information gathered confirmed that L.C. had continuously strived for academic and employment achievement and was described as a kind caring individual who is dedicated to his family and friends. He has remained on bail and there are no reported violations with respect to his recognizance order and there was one breach of the protection order by the CAS.

24The PSR concludes:

…The subject’s denial of the sexual inappropriate behaviour increases his risk level to re-offend; his victims were both young pre-pubescent females, one was a stranger and the other family member was no biological connection. The subject possesses a deviant sexual preference that will require programming to assist development and self-management strategies to avoid future behaviours. In addition, members of his family and support network must be included in this relapse prevention plan by being informed of his offence cycle.

25A Sexual Behaviours Assessment Report prepared by Dr. J. Gray and dated November 24, 2016 concludes:

Given that L.C.’s index offences were committed against an underage victim, a diagnosis of pedophilia disorder needs to be considered.

The index sexual offences, for which he was convicted, involved multiple, highly invasive sexual acts against a victim who was, by her age, clearly prepubescent. There was no evidence in the materials available to me, or through L.C.’s account of his habits at the time, that alcohol was a disinhibited influence. This would suggest it is a clear choice of victim. The sexual acts against the prepubescent victim continued over a period of time exceeding the 6 months minimum listed in the DSM – five criteria.

L.C. said he committed the prior sexual offence against an 11-year-old girl after drinking copious amounts of alcohol, and that he was unaware of the age of the victim. Nevertheless, the fact that there was a prior sexual offence against a female in the same age category lends further evidence for the diagnosis of pedophilia disorder.

Phallometric testing did not lend any evidence against or supporting the diagnosis…

26In terms of Risk and Recommendations, the Report goes on to state:

Based on actual testing, L.C.’s relative risk of sexual and violent re-offence is moderate. Relevant risk factors include having a prior sexual offence involving a stranger victim, and his prior breach of conditions. His more advanced age is a modulating factor.

L.C. denies that he committed the acts leading to the index offences. Denial has not been shown, in general, to be an independent risk factor among sexual offenders in the literature. However, more recent studies have shown that denial of offences may be an incremental risk factor for low-risk offenders, including specifically incest offenders, and not an additional factor for high-risk offenders. L.C. is at moderate risk of re-offence, and hence it is unclear to what extent this denial will factor into his future risk. At the very least, his complete denial of sexual interest in prepubescent children and the index offences would make sexual offender therapy to reduce his risk more of a challenge.

Although L.C.’s risk of violent or sexual re-offence is moderate, not high, I understand that other factors are taken into consideration by the court for the purposes of sentencing, including the impact of the offence on the victim. Victims of sexual offences are more likely to experience its long-standing psychological trauma if the perpetrators are known to them but even more so if they’re in a position of trust or authority and especially the perpetrator is the father or stepfather as is the case here. Other factors suggesting a higher degree of psychological trauma to the victim in this case includes the fact that the acts were very intrusive, were repeated over time, and involved threats of restricting access to her biological father. There was also suggestion of physical force during the commission of the acts leading to the index offences which is another negative factor in terms of the victim’s prognosis for recovery.

Impact on the Victim

Impact on the Victim

27S.B.M. read her Victim Impact Statement in court. This was very difficult for her and it is clear that she remains emotionally affected by the past experiences and from having to testify at trial. She described the impact on her family, especially her relationship with her father. She felt embarrassed for her extended family when they found out about the events. She has found school difficult where she has a hard time focusing. She has a hard time socializing with peers and getting close to males her own age. Other events can trigger memories about what happened to her. She has trust issues now, even with friends, and her impact statement echoes the comments made in Dr. Gray’s reports and the observations of this Court in other sentencing decisions. She concluded her statement this way:

I don’t think that this would happen to me. It feels like this can’t be real. He was my stepdad, I didn’t expect him to be able to do this now it makes me worry about any guy.

When I have a flashback it all comes flooding back with all memories. It feels like I’m in the world again and it puts me back in that place. I don’t see where I am anymore, just the emotions and the memories and I see myself back there.

28S.B.M.’s memories have been burdened by dirty secrets, damaged by her experience of pain and betrayal and she has been robbed of the innocence of the youth that she was entitled to.

29S.B.M. concluded her statement on a positive note stating that this experience has made her stronger, helped her find her voice, and has encouraged her to join and volunteer in community programs and she aspires to become a police officer.

Aggravating Factors

Aggravating Factors

• The victim’s age. S.B.M. was between 6 and 8 years of age.
• An egregious abuse of trust; the offender was her stepfather.
• There were several acts of intercourse over a period of 2 and ½ years.
• The prior convictions, although dated, for a similar offence.
• The long-standing psychological impact on the child.

30The Crown has asked that I consider, as an aggravating factor, the fact that S.B.M was forced to testify at trial and he relies on her statement that she found this very difficult. In my view, this issue is addressed by the absence of the mitigation that might be recognized where there is a guilty plea.

31The Crown further submits that an offender should not benefit from the victims’ silence when they have been threatened from disclosing what took place. In my view, this is not an aggravating factor in and of itself but one of the many factors that a court must consider in arriving at an appropriate sentence.

Mitigating or Neutral Factors

Mitigating or Neutral Factors

• There is a positive Pre-Sentence Report (PSR)
• L.C. has held steady employment for more than two decades.
• He has the support of his family
• He has lost his job and his family and he has already been punished to some degree.

32The offender’s lack of remorse is a neutral factor given his position that he is innocent and maintains that S.B.M. fabricated the allegations against him.

Decision – The Sentence

Decision – The Sentence

33Given the extremely serious nature of the offence of sexual interference with a child, the circumstances of this case call for a significant period of incarceration.

34In setting a proper and fit sentence, in addition to the considerations and principles discussed above, it is also important to examine decisions of the court involving similar offenders and victim as required by s. 718.2(b) of the Code.

35It must also be noted that these offences occurred at a time when the maximum penalty was 10 years’ incarceration as opposed to the 14 years that could be imposed today. While the offender is entitled to have his sentence imposed in the context of the range of sentences existing at that time, he cannot unduly benefit from the silence he exacted from his victim.

36A number of noteworthy appellate decisions have considered the appropriate sentence to be imposed in cases involving the sexual abuse of young children. The Ontario Court of Appeal has also confirmed that in cases involving the sentencing of offenders convicted of sexual offences against young persons, absent exceptional circumstances, the objectives of denunciation, deterrence and need to separate the offenders from society must take precedence.

37In R. v. D.(D.) (2002), 58 O.R. (3d) 788 (ON CA), Moldaver J.A., as he then was, noted for the Court of Appeal at para. 34:

The overall message however is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price.

38These principles and considerations were restated and summarized by the Court of Appeal in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81 at para. 72:

1. Our children are our most valued and our most vulnerable assets.
2. We as a society owe it to our children to protect them from the harm caused by sexual predators.
3. Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and make easy prey for such predators.
4. Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
5. Three such consequences are now well recognized: i. children often suffer immediate physical and psychological harm; ii. children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; iii. and the children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
6. Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing 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.

39In R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721, Feldman J.A., writing for the court provided a detailed discussion of the case law. That court also confirmed that its decision in D.(D.) represented the establishment of a new range of sentences for cases involving sexual abuse of young victims.

40While the decision in D.(D.) set specific ranges for categories of cases, the court also affirmed that the ranges of sentence are only guidelines and they leave trial judges with the flexibility "to do justice in individual cases."

41In R. v. D.M., the court reviewed its earlier decision in R. v. B.(J.), 1990 CarswellOnt 806, where counsel had agreed that the usual range of sentence for this type of offence was three to five years at that time. Feldman J.A. explained at para. 33:

To summarize, in B. (J.) this Court acknowledged a range based on case law of three to five years for sexual intercourse by an adult in loco parentis to a child. However, the court also made clear that sentences well beyond that range would also be appropriate if the circumstances were more egregious, including in B. (J.) itself, where a sentence of eight years was upheld.

42At para. 43, Feldman J.A. also referred to the court’s decision in R. v. P.M., 2012 ONCA 162, 289 O.A.C. 352 (at paras. 43 to 47) where Rosenberg J.A. (MacPherson J.A. concurring) recognized at para. 46:

...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.

43In her concluding remarks about the appropriate range of sentence, Feldman J.A. commented at para. 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.

44That conclusion was referred to by the Court of Appeal in R. v. R.(B.) 2013 ONCA 36, 114 O.R. (3d) 465. More recently, in R. v L.K., 2015 ONSC 2887, Justice Thorburn reviewed the case law, including the D.(D.) and (P.M.) and (B.J.) decisions cited by counsel here. In that case there were three victims between the ages of 6 and 9. Before imposing a sentence of seven years (less time served), she continued her review of the case law at paras. 36 through 41:

36In R. v. M. (W.W.), (2006), 205 C.C.C. (3d) 410 (Ont. C.A.) the offender sexually abused two half-sisters. The offender was between sixteen and twenty one at the time of the offences. The abuse consisted of repeated acts of vaginal intercourse. The victims were ages 8 and 9 when the abuse began. It continued for two years with one victim and four years with the other. The offender was convicted of two counts of incest. He was sentenced to four years in prison. The sentence was upheld on appeal.

37In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (O.C.A.), the offender was found guilty of luring a child he knew was only twelve years old for the purpose of committing sexual interference. He engaged in sexually explicit discussion. When he met her he put her hand on his penis, had her perform fellatio on him, told her to bend over and had sexual intercourse with her. He lured her to the meeting by promising her millions of dollars if she engaged in sex acts with him. In these circumstances, the Court of Appeal held that a six and one half year sentence was not excessive.

38In R. v. D.M. [2012], 111 O.R. (3d) 564 (O.C.A.), the offender was sentenced to seven years in custody for a near-daily chain of progressively more invasive sexual assaults culminating in sexual intercourse several times per week within the three year period. The Complainant was a fifteen year old girl from Fiji who was entrusted to the offender by her family and who was subjected to threats of deportation if she disclosed what the offender was doing. The offender was 57 years old.

39In R. v. V.A. [2013] O.J. No. 458 (Ont. S.C.J.) a 43 year old offender was sentenced to five years’ imprisonment for six counts of sexual assault on two young girls beginning when they were aged six and eight years old and continued for six to seven years. The abuse included unprotected sexual intercourse. The offender gave each complainant treats after each incidence of abuse.

40In R. v. B.S. [2014] O.J. No. 6130 (Ont. S.C.J.) a 27 year old offender with a lengthy criminal record who was convicted of unprotected sexual intercourse with the victim hundreds of times and assaulting her many times, beginning when she was twelve years old, was sentenced to eight years’ imprisonment.

41Finally, in R. v. J.S., [2008] O.J. No. 4379 (Ont. S.C.J.), an offender was sentenced to five years in prison for three counts of sexual intercourse with his step-daughter who was between six and eight years old.

45In R. v. W.Y. 2015 ONCA 682, 2015 CarswellOnt 15239, the Court of Appeal dismissed an appeal of a five year sentence. The accused had committed a number of sexual offences against his 14-year-old daughter over a six week period. He also had a related criminal record that was very dated, The Court of Appeal concluded that the offender’s conduct was insidious but noted his guilty plea, his expressed remorse and his desire for treatment.

46I recognize that the determination of a fit sentence is unique to each case and the set of facts and evidence presented: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43.

47As a result, having regard to the jury’s finding of guilt and the findings of fact I have made regarding aggravating circumstances, while also considering victim impact and the circumstances of the offender, I conclude that the fit and proper sentence for L.C. on the count of sexual assault is six years and six months’ (6.5 years) incarceration. As noted, the conviction of sexual interference in Count 1 shall be conditionally stayed.

48As to the prohibition order sought pursuant to s. 161 of the Code, I agree with Daley, J. where he held in R. v. M.A.J. 2012 ONSC 6415, 2012 CarswellOnt 15094 that this is not a proper or necessary order in the circumstances. Such an order represents a considerable interference with personal liberty, and it would be most difficult for this offender to completely avoid places accessible to the public for recreational use like public parks or community centers if he is ever allowed to renew contact with his children.

49In conclusion, L.C. is sentenced as follows:

1. for the offence in Count 2 of the indictment under s. 271 of the Code, the offender is sentenced to 6.5 years in jail;
2. the conviction with respect to Count 1 for the offence of sexual interference under s. 151 of the Code is conditionally stayed;
3. the offender shall provide a DNA sample in accordance with s. 487.051(1) of the Code;
4. the offender shall be registered under the Sex Offender Information Registration Act pursuant to s. 490.012 of the Code for life;
5. the offender is prohibited from communicating with the victim during the custodial period of the sentence, in accordance with s. 743.21 of the Code.

Mr. Justice Robert N. Beaudoin Released: January 20, 2017