R. v. S. (J.), 2017 ONSC 5952
COURT FILE NO.: 16-30000054-0000
DATE: 20171027
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
J. S.
Defendant
B. Olesko, for the Crown
U. Kancharla, for the Defendant
HEARD: October 6, 2017
Mcwatt, j.
[1] J. S. has pleaded guilty to sexually abusing his daughter. The convictions are for sexual assault, invitation to sexual touching, sexual exploitation and incest. He has also pleaded guilty to one count of Possessing Child Pornography.
The Facts
[2] L. S. was born in 1999. She is the defendant’s biological daughter. L.’s mother was killed in a car accident when L. was, roughly, 5 years old. After her mother’s death, L. went into her father’s care. Between the years 2008 and 2012, L. lived in Port Hope with her father and her step-mother, C. M., along with various step-siblings and half siblings. L. was between 9 and 12 years old during this period. When the victim was 12 years old, J. S. began to sneak into his daughter’s room at night and touch her breast and vaginal areas. From there, he moved on to getting L. to touch his penis. After a period of time, the defendant had L. perform fellatio on him. He then began to have intercourse, both vaginal and anal, with his child.
[3] Mr. S. was employed as a long-haul truck driver. He operated a truck that had a sleeping cab inside of it and he would often take L. on trips with him. It was during these trips that the majority of the assaults occurred.
[4] At the end of April, 2012, the victim and the defendant moved to unit […] at D[…] Road, Toronto. This was a two bedroom apartment. Mr. S. shared a room with his son, B. S. - M., and L. had a room to herself. During this time, the defendant went into L.’s room at night to engage in vaginal and anal sex with her as well as have her give him fellatio.
[5] B. eventually moved out of the apartment and, from October, 2012 to February, 2013, Mr. S.’s ex-common law wife, D. M., and their daughter, B., moved into the apartment. D. M. slept in the living room, B. took the room J. S. had previously been sharing with B., which had two beds in it. J. S. moved into L.’s bedroom with her.
[6] In their bedroom, Mr. S. and L. shared a queen-sized bed. The defendant slept in the nude. L. slept on the left side of the bed and her father slept on the right side. While sharing a bed, the defendant had vaginal and anal intercourse with the victim. He would make L. touch his penis with her hands and mouth, have her lick his breasts and he would make her give him fellatio. He would touch L.’s breasts, vagina and buttocks. He would also ‘French-kiss’ her.
[7] In 2014, the defendant told L. to go on birth control. He, himself, took her to the doctor to ensure that she did. Afterwards, the defendant would ejaculate inside the victim’s vagina when engaging in intercourse with his daughter. Prior to, and after L. was put on birth control, Mr. S. never wore a condom during any of the sexual assaults.
[8] At one point during the years of abuse, the defendant told the victim that he loved her as he had loved her mother.
[9] On January 20, 2015, the Toronto Police Service received an anonymous tip that J. S. was sleeping in the same bed as his 15 year old daughter and having sex with her. The police and the Children’s Aid apprehended L. the same day. She has been living in the care of the C.A.S. ever since.
[10] On January 21, 2015, 5 pair of the victim’s underwear were seized from the apartment and were submitted to the Centre of Forensic Sciences for DNA testing.
[11] In April of 2015, L. provided a consent DNA sample to the TPS. In 2016, a DNA warrant was executed on J. S.. The sample of the bodily fluid taken from J. S. was submitted to the Centre of Forensic Sciences for testing. The DNA on the victim’s underwear matched the defendant’s DNA.
[12] After his arrest on January 20, 2015, Mr. S. was released the next day and ordered to stay away from the apartment where the offences had occurred. On February 3, 2015, officers received information from the defendant’s daughter, B. S.-M., that there were two hard drives containing child pornography hidden under the kitchen sink at the defendant’s former residence. A search warrant was executed to retrieve the hard drives. Upon forensic examination of their contents, over 60,000 unique images of child pornography and over 3,000 unique videos of child pornography were discovered.
[13] On February 3, 2015, a search warrant was also executed at 169 Wildwood Avenue, Richmond Hill, where Mr. S. was required to live with his surety. A memory card was seized from the defendant’s bedroom which contained a further 4 unique images of child pornography. Mr. S. was arrested and charged with possession of child pornography.
The Position of the Parties
[14] Mr. S. has been in custody since February 3, 2015. The parties agree that he has served 32 months of pre-trial custody. I am prepared to give him credit of 1.5 days for each day served for a total of 4 years of pre-trial custody.
[15] The Crown asks for a total sentence of 9 years in custody - 8 years for the abuse charges and a further 1 year, consecutive, for the possession of child pornography charge. The remaining sentence would then be 5 years in jail.
[16] The Crown also asks for the following ancillary orders, which the defence does not contest:
A DNA order for a primary designated offence;
A SOIRA Order for 20 years pursuant to s. 490.011(1) of the Code;
An order pursuant to s. 743.21 of the Code that he have no contact with L. S. while he is in custody;
An order pursuant to s. 161(a.1) of the Code prohibiting the defendant from being within 2 kilometers of any dwelling house where L. S. ordinarily resides or attends school or works for the rest of his life;
For life, not to have any contact – including communication by any means – with a person under the age of 16 years unless the child is in the continuous physical presence of their legal guardian or custodial parent;
Not to use the internet or other digital network for the next 10 years unless:
• Under the direct supervision of a corrections officer; or
• While at a place of employment that is not self-employment, solely for the purpose of completing his employment.
- Forfeiture of all seized computer hardware.
[17] The defence joins the Crown on the 1 year sentence, which is the mandatory minimum sentence (MMS) for the possession child pornography charge. The defence submits that a 5 to 6 year sentence, in total, is the appropriate sentence. Because the offender has served 4 years of that sentence, he should be sentenced to 2 years less 1 day and be ordered to serve his sentence at the Ontario Correctional Institute where he can be treated for his admitted “problem”.
[18] Both parties agree that whatever the sentence, Mr. S. should be assessed by the correctional authorities to determine his risk to the community upon his release.
The Law
[19] I have recently set out, in the case of R. v. Jordan Cristoferi-Paolucci, released August 17, 2017, the following, at paragraphs 34 to 40:
[34] For the last two decades, there has been a consistent focus on finding the appropriate range of sentences for offenders who sexually abuse children. This focus and the change in the sentencing ranges has come about as a result of an increased understanding of the irreparable harm caused to the victims of these offences. This recognition of harm has been set out in the case law.
[35] In R. v. Sharpe, 2001 SCC 2, at para. 28, Justice McLachlin noted the harm caused by the creation, distribution and possession of child pornography as follows:
Just as no one denies the importance of free expression, so no one denies that child pornography involves the exploitation of children. The links between possession of child pornography and harm to children are arguably more attenuated than are the links between the manufacture and distribution of child pornography and harm to children. However, possession of child pornography contributes to the market for child pornography, a market which in turn drives production involving the exploitation of children. Possession of child pornography may facilitate the seduction and grooming of victims and may break down inhibitions or incite potential offences.
[36] In R. v. (D.) D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A) at paras. 34 to 38, Moldaver J.A. (as he then was) said the following in order to set out appropriate sentencing ranges for offenders who abuse children:
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. 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 applicants from society, must take precedence over the other recognized objectives of sentencing.
35 We as a society owe it to our children to protect them from the harm caused by applicants like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
36 In this respect, while there may have been a time, years ago, when applicants like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.
37 Two such consequences were identified by the Alberta Court of Appeal almost ten years ago. In R. v. S.(W.B.) and R. v. P.(M.) (1992), 1992 2761 (AB CA), 73 C.C.C. (3d) 530 at 535, the court, composed of Major J.A. (as he then was) and McDonald and Quigley JJ. made the following observations:
When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious psychological harm to the victim.
When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent.
One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.
Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as he or she had been treated as a child - that is, he or she may abuse a child sexually. There is no empirical way of proving that a particular child victim, when he or she becomes an adult, will do to some child what has been done to him or her. We do know that sentencing judges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both) who had stood in a parental relationship to him or her when he or she was a child.
38 As is apparent from these passages, with which I completely agree, the Alberta Court of Appeal was focusing on the potential long term effects of sexual abuse. Time alone will tell whether the children in the present case will fall victim to one or both of these consequences. In the short term, the immediate harm to them (a third consequence) is well documented. I have earlier referred to the devastating effects of the appellant's conduct and there is no need to repeat it. Manifestly, the situation in the four affected families is tragic.
[37] In 2011, our Court of Appeal revisited the (D.)D. case in R. v. Woodward, 2011 ONCA 610. At paragraphs 72 to 73 and 75 to 76, Justice Moldaver restated the harm caused by sexual abusers who prey on children and affirmed the approach he set out in D.D. to be taken by the courts in sentencing such individuals.
[38] In 2010, the Supreme Court of Canada commented again on the harm posed to our society by the presence of child pornography in R. v. Morelli, 2010 SCC 8 at paragraph 8:
To be sure, offences involving child pornography are particularly insidious. They breed a demand for images that exploit vulnerable children, both economically and morally. Understandably, offences of this sort evoke a strong emotional response. They generate widespread condemnation and intense feelings of disapprobation, if not revulsion.
[39] Also in 2011, the Ontario Court of Appeal, in R. v. Nisbet, 2011 ONCA 26 at para. 1, noted, with concern, the continued proliferation of child pornography in our society:
Sadly, possession of child pornography facilitated through the internet is on the rise. It is an abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences to reflect denunciation and deterrence.
[40] With this understanding of the harm caused by these offences has come the recognition that an increase in the severity of punishment imposed on persons who commit these crimes is necessary to protect the most vulnerable members our society, to denounce their conduct and to deter others in the community from preying on children to satisfy their deviant desires. This recognition has been reflected in a number of legislative amendments to the Criminal Code. Those amendments have steadily increased the maximum and minimum sentences to be imposed on adults who commit sexual offences against children, legislated the abuse of a child as a statutorily aggravating factor on sentence and mandated that the courts to focus on deterrence and denunciation as the primary sentencing principles when sentencing an applicant who abuses a child.
[20] It is clear that, while rehabilitation is a legitimate and necessary goal in the sentencing of all offenders, deterrence and denunciation are the primary sentencing goals here. Mr. S. must “pay a heavy price” for abusing his daughter for 6 years or more. There are no “exceptional circumstances”, in this case, which can possibly mitigate 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 Mr. S. from society. They must take precedence over other recognized objectives of sentencing in cases of this sort.
The Circumstances of the Offender
[21] Mr. S. is 51 years old. He has no criminal record. He lived in Toronto before being incarcerated. He was raised in Richmond Hill and was the youngest of six children. He had a difficult childhood. His father suffered from alcoholism, but had bouts of sobriety during which the defendant and his siblings’ lives were enjoyable. Otherwise, he became a “loner”. He had three children with his first common law wife, D. M.. During that relationship, he was accused of being sexually inappropriate with his 7 year old daughter. No conviction followed, but Mr. S. resolved not to be alone with any children for extended periods.
[22] After separating from Ms. M., Mr. S. had a relationship with L.’s mother, A.. A. died suddenly in a motor vehicle accident in 2004.
[23] Mr. S. then met C. M. who he later married. She had two daughters. He, L. and Ms. M.’s family moved in together in Port Hope.
[24] Mr. S. has a grade 10 education. He has been steadily employed since leaving school as a long haul truck driver in Canada and the United States.
[25] The defendant does not use drugs and reports that he drinks responsibly.
The Victim
The victim filed a Victim Impact Statement for the sentencing. It would be an understatement to find that the defendant has irreparably harmed her. She has no mother. Now, she has no father and no other family due to Mr. S.’s actions. In spite of having siblings, Mr. S. isolated L. from them. She is in the care of the C.A.S. after having lived a nightmare from the age of 5 to 15 years. She talks to teddy bears in order to console herself. She does not do well in school and wonders whether her father’s isolating her from family and friends has contributed to her difficulties.
Disposition
[26] The mitigating features of this case are the fact that Mr. S. pleaded guilty to the charges and has no criminal record. He has also worked to support his various families.
[27] What Mr. S. did to his daughter has to be the most serious breach of trust. I cannot think of anything worse. His daughter was 12 years old when her father started to sexually abuse her and groom her for fellatio, anal and vaginal intercourse. He took her on the road with him to work and abused her in the cab of his truck. He moved into her room at one point and slept in the bed with her. After his arrest, the police found stuffed teddy bears on L.’s side of the bed where she was forced to sleep nude beside the defendant at night. In spite of her obvious youth and fragility, Mr. S. ignored the victim’s needs as a child and used her for his sexual needs – at the same time professing his love for her. The love he professed to the victim, however, was that of a husband or adult partner rather than the love of a father. He never wore condoms throughout the years he ejaculated in her. He, then, put her on birth control so that he could continue to ejaculate in her during intercourse after she had reached puberty and could become pregnant. All the while, he isolated her from family and friends so that his abuse would not come to light.
[28] The length of time over which Mr. S. abused his child is significant. For about 3 years, he used her instead of helping her to develop into a normal and healthy human being. He has deprived her of a normal life which may impact her for the rest of her life. The serious nature of the sexual acts he perpetrated on the victim is obvious. Although not the worst offender in terms of his history, he has committed one of the worst offences.
[29] In light of the guilty plea, Mr. S. should serve 8 years in jail. The incest charge, alone, has a MMS of 5 years. There shall be a sentence of 7 years in the penitentiary on the incest charge. There shall be 7 years in jail, concurrent, on each of the sexual assault, invitation to sexual touching and sexual exploitation charges. There shall be a 1 year jail sentence on the possession of child pornography charge, consecutive to the 7 year sentence for the other charges. The total sentence of 8 years is reduced to 4 years left to be served in the penitentiary because he has served the equivalent of a 4 year sentence already.
[30] As well as the ancillary orders set out above, there shall be a recommendation that Mr. S. be assessed by Correctional Services Canada to determine treatment options and his risk to reoffend in the future.
McWatt, J.
Released: October 27, 2017
CITATION: R. v. S. (J.), 2017 ONSC 5952
COURT FILE NO.: 16-30000054-0000
DATE: 20171027
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
J. S.
REASONS FOR JUDGMENT
McWatt, J.
Released: October 27, 2017