CITATION: Her Majesty the Queen v. B.D., 2017 ONSC 5526

COURT FILE NO.: CR-17-065-0000

DATE: 20170915

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Mr. Peter Leger, for the Crown

• and -

B.D.

Mr. Greg Deakin for the Accused

Accused

HEARD: September 15, 2017

REASONS FOR SENTENCE

Conlan J.

I. Introduction

1On May 15, 2017, B.D. entered a guilty plea and was found guilty of one count of sexual interference contrary to section 151 of the Criminal Code.

2The facts are very troubling.

3The offender was charged with assaulting his partner. He was released on bail. His surety was T.T. That lady is the mother of K.T. K.T. is the victim of the sexual touching perpetrated by B.D.

4In other words, the offender sexually abused the minor daughter of his bail surety.

5K.T. was just 14 years old at the time of the offence.

6Eventually, after being confronted by his partner that he was charged with assaulting, the offender confessed to having sex with K.T. on two occasions.

7The sexual contact involved full intercourse. In fact, K.T. became pregnant and has since given birth to the offender’s child.

II. The Offender

8As B.D. is a first-nations man, I have the benefit of a thorough Gladue report.

9The offender is 31 years old. His paternal grandmother was a registered band member of the Munsee Delaware First Nation. The offender, however, has never felt connected to his Native home community and, but for while incarcerated at Central North Correctional Centre on the offence before this Court, has never been an active participant in Aboriginal culture.

10B.D. has two half-siblings, both younger than him.

11The offender’s father had substance abuse problems, run-ins with the criminal justice system and was at times a real tyrant towards B.D.’s mother. No doubt, B.D. would have witnessed some of his father’s abusive tendencies.

12As an infant, B.D. contracted bacterial meningitis and barely survived. Even long afterwards, the consequences remained and were evidenced, for example, through learning disabilities. B.D. never did well at school. He was diagnosed with Attention Deficit Disorder.

13B.D.’s brother bullied the offender, something confirmed by B.D.’s mother, a woman who essentially raised the offender as a single-parent.

14B.D. was also bullied at school, partly due to his hearing and eyesight problems which resulted from the meningitis.

15The offender began to experiment with alcohol and drugs before he was even a teenager, leading to criminal charges.

16At 16 years old, B.D. dropped out of high school. He never completed grade 10.

17In August 2002, the offender had a son. The boy lived with the offender and B.D.’s mother for many years but, at age 13, was placed into the custody of his mother.

18At around 18 years old, B.D. became very depressed and isolated.

19At age 21, the offender started to rack-up quite a criminal record. He was consuming hard drugs on a regular basis.

20At age 23, B.D. lost his father to a heart attack and drug overdose.

21In 2012, the offender had another son who was born with autism. Two years later, he had a daughter.

22At one point, the offender fractured his spine and began taking Percocets.

23B.D. has a checkered employment history.

24In 2015, after discovering that his partner had an affair, B.D.’s life got even worse than it already was. His alcohol and drug abuse intensified.

25B.D. has a terrible criminal record. It includes about 18 entries between 2006 and 2017, for crimes of dishonesty like uttering forged documents, crimes against the administration of justice like breach of recognizance, property offences like mischief, and violent crimes like assault, assault a police officer and assault with a weapon.

III. The Positions of the Parties

26The Crown requests the following sentence: four (4) years’ imprisonment, less presentence custody of 217 days credited as 10.5 months, for a net sentence of 37.5 months in custody from today, plus ancillary Orders.

27The Crown focusses on the sentencing principles of denunciation and deterrence.

28The Defence requests a custodial sentence of two (2) years less one day, on top of the presentence custody, for the equivalent of about 34.5 months total. The jail sentence would be followed by two (2) years of probation.

29The Defence does not oppose any of the ancillary Orders sought by the Crown, except for some exceptions to the section 161 Order.

IV. Analysis

The Legal Parameters

30The maximum penalty for this crime is 14 years in prison. There is a minimum sentence of imprisonment for one year.

The Basic Legal Principles on Sentencing

31Sentencing is a highly discretionary and individualized process.

32I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.

33The paramount sentencing principles most applicable here are denunciation, general deterrence, specific deterrence, the need to separate B.D. from society, and rehabilitation

34Any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender – section 718.1.

35This is a very serious offence. The facts are disgusting. While out on bail for assaulting his domestic partner, B.D. had sexual intercourse more than once with the 14-year old daughter of his surety and got her pregnant.

36B.D. should not be deprived of his liberty if less restrictive sanctions are appropriate in the circumstances – subsection 718.2(d). I should consider all available sanctions other than imprisonment that are reasonable in the circumstances – subsection 718.2(e).

37Here, no sentence will suffice except for a lengthy custodial one.

38In fashioning an appropriate sentence, I am at liberty to consider what other consequences will be suffered by the accused besides a period in jail. Those other consequences include the criminal justice system experience itself, the criminal record, and community stigma. R. v. M.B., [2006] O.J. No. 5876 (S.C.J.), at paragraph 27.

39One of the collateral consequences of B.D.’s criminal behaviour is that he has gone many months now with little to no contact with his children.

The Aggravating and Mitigating Factors

40The aggravating factors here include (i) the breach of trust in that the offender took advantage of his bail situation to advance a sexual relationship with the minor girl, (ii) the repetitive nature of the sexual contact, (iii) the degree of the sexual abuse which included full intercourse leading to pregnancy, (iv) the very tender age of the victim, just 14 years old at the time, and (v) that B.D. is far from a first offender.

41The chief mitigating factor is the guilty plea. It shows remorse. It avoided the necessity of a trial.

42There is very little else by way of mitigation except to recognize that B.D. has had a very difficult life and is to some degree a victim of circumstances that would have been a challenge for anyone to overcome. In addition, I give him credit for being cooperative with the police in agreeing to provide a sample of his DNA to confirm paternity of the child.

What is a fit Sentence for B.D.?

43Unopposed, (i) the primary DNA Order will issue, (ii) the section 109 Order will issue for ten (10) years and life as per the two subsections, (iii) the Sex Offender Registry Order will issue for twenty (20) years, (iv) the mandatory victim fine surcharge will apply with twelve (12) months to pay upon release from custody, and (v) paragraphs (a), (a.1), (b) and (c) of subsection (1) will be included in the section 161 Order, which Order shall be for life.

44There are no exceptions to clauses (a), (a.1) and (b) of the section 161 Order.

45I am well aware that K.T., her mother and her sister have all filed Victim Impact Statements which are very friendly to and supportive of the offender. That does not change my view that paragraph (a.1) is necessary.

46Regarding paragraph (c), there are exceptions for B.D. to be able to have contact with his three older children and, with the approval of the local Children’s Aid Society, with the child that he shares with K.T.

47There are certain cases where the offence is so serious, the facts so disturbing, that the sentence imposed on an Aboriginal offender is not markedly different, if different at all, than that which would be imposed on a non-Aboriginal offender. R. v. J.N., 2013 ONCA 251, [2013] O.J. No. 1834 (C.A.), at paragraph 51.

48That is the situation here.

49B.D. took advantage of the situation that he found himself in. He had a sexual relationship and impregnated a girl who was approximately half his age and well below the valid age of consent. And not just any girl but the daughter of his bail surety.

50In my opinion, a fit sentence for this offender is something between 3.5 and 4.5 years in the penitentiary.

51Primarily because of the guilty plea, which I place substantial credit on in terms of mitigation, even though the prosecution’s case was a strong one, I will impose a sentence at the low end of that range.

V. Conclusion

52In addition to the ancillary Orders mentioned above, the sentence of the Court is as follows: 3.5 years or 42 months in custody, less credit of 10.5 months for presentence custody, for a net sentence of imprisonment from today of 31.5 months in a federal penitentiary.

53While in custody, a non-communication Order is in place between B.D. and K.T.

Conlan J.