CITATION: R. v. R.T., 2017 ONSC 3800
COURT FILE NO.: 14-SA5005
DATE: 2017/06/26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
R.T.
Accused
COUNSEL:
Kerry McVey, counsel for the Crown
Neha Chugh, counsel for the Accused
HEARD AT OTTAWA: June 23, 2017
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486(4) OF THE CRIMINAL CODE OF CANADA
REASONS FOR SENTENCE
HACKLAND J. (orally)
[1] The accused was convicted on two counts of sexual assault on the complainant, his daughter. The first count related to conduct occurring during the period 2006 to 2013, and the second count to an incident occurring during the year 2013, when she would have been 15 years of age.
[2] The sexual assault charges arise under section 271(a) of the Criminal Code and carry a minimum sentence of one year imprisonment.
[3] Following a three day trial in which both the complainant and the accused testified, the Court found (in reasons for judgment reported at R. v. R.T., 2017 ONSC 2591), that during the period of these charges, the accused sexually assaulted the complainant. Specifically, the accused would get on top of the complainant and rub his crotch area against her buttocks. They were both fully clothed and the incidents lasted five minutes or so and occurred every few weeks when the mother was away from the family home shopping or doing errands. These incidents were not accompanied by any sexualized conversations or overt sexual activities. The complainant was unable to say whether the accused had an erection or ejaculated during any of these incidents. She would tell him to get off of her, which he would do, but the conduct was repeated over a lengthy period and became very upsetting to her.
[4] The incident in 2014 occurred when, in what the accused said was an effort to encourage the complainant to stop sleeping in and get out of bed, the accused pulled down the bed cover and slid his hand under the complainant’s pajama bottoms and touched her vagina in a cupping motion, lasting about five seconds with a finger penetrating her vagina “a little bit”, as she described it.
[5] The Crown seeks a sentence of three and a half years in custody, less time served. The defence submits a proper sentence is two years custody plus two years probation.
[6] I recognize the following aggravating factors in this case:
- sexual exploitation of a child by a parent is an extreme breach of trust;
- the accused’s conduct persisted for years; and
- contrary to what is stated in the pre-sentence report, the accused is not remorseful. Rather than demonstrating any insight, he continues to view the incidents as innocent kibitzing. When invited to speak at the conclusion of sentencing submissions, the accused simply said to his daughter that he was sorry for how she felt.
[7] However, there are mitigating factors as follows:
- the sexual conduct was comparatively low level – no overt sexual conduct was engaged in;
- the complainant said she was close to her father and thought he was a good parent to herself and her siblings, apart from the sexual touching;
- the accused has no criminal record and is a respected businessman;
- the accused has been alienated from the complainant and other family members as a result of these charges, and this is, in itself, a significant punishment in the circumstances of this case; and
- The pre-sentence report is generally positive.
[8] It is the Court’s view that the accused is highly unlikely to engage in this type of conduct in the future and will be most unlikely to be engaged in further anti-social behaviour of any sort.
[9] In terms of sentencing principles, section 718.01 of the Criminal Code establishes that the Court is required to give primary consideration to the principles of deterrence and denunciation in sexual offences against minors. The Court of Appeal has suggested that a high reformatory sentence is the minimum sentence normally applicable to such offences.
[10] Counsel for the accused referred the Court to R. v. Rivera, 2016 ONSC 3684, a recent decision on very similar facts to the present case, although the accused was a visiting boyfriend of the victim’s mother, rather than a parent. Corrick J. sentenced the accused to 18 months imprisonment.
[11] The Crown has provided several cases indicating that penitentiary sentences are required in cases in which a parent has abused one’s own child (see: R. v. D.(D.)(2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788).
Disposition – (I will now ask the accused to please stand)
[12] On the two charges of sexual assault, I sentence you to imprisonment in a penitentiary for a term of 27 months less any time served (deemed to be 14 days) in pre-trial custody. These sentences are to be served concurrently.
[13] Pursuant to section 743.21 of the Criminal Code, I impose the requirement that you not initiate contact with the complainant unless you are provided with a written letter signed by the complainant requesting or agreeing to such contact.
[14] You will have a 20 year mandatory weapons prohibition under section 109(1)(a) of the Criminal Code.
[15] You will provide a DNA sample pursuant to section 487.05(1) of the Criminal Code.
[16] Your name will be added to the Sex Offender Registry for life.
Mr. Justice C.T. Hackland
Released: June 26, 2017
CITATION: R. v. R.T., 2017 ONSC 3800
COURT FILE NO.: 14-SA5005
DATE: 2017/06/26
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486(4) OF THE CRIMINAL CODE OF CANADA
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
R.T.
Accused
REASONS FOR SENTENCE
Hackland J.
Released: June 26, 2017