CITATION: R. v. J.C.J., 2017 ONSC 6704
COURT FILE NO.: 11634
DATE: 2017/11/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Kenna Dalrymple, for the Crown
- and -
J.C.J.
Cassandra Demelo, for the Defendant, J.C.J.
HEARD: October 18, 2017
RESTRICTION ON PUBLICATION
By court order made under s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Mitchell J. (ORALLY)
REASONS FOR SENTENCE
INTRODUCTION
[1] On July 20, 2017 following a 2-day trial, I convicted Mr. J.C.J. of both counts on the indictment which related to one count of sexual assault and one count of incest involving Mr. J.C.J.’ biological daughter, D.B. (formerly D.V.), which took place on September 21, 2013, contrary to s. 155(2) and s. 271 of the Criminal Code of Canada (the “Code”), respectively.
[2] After making findings of guilt, sentencing was adjourned to September 20, 2017 to allow for preparation of a presentence report. At the request of counsel for the defendant, sentencing was further adjourned to October 18, 2017 at which time sentencing submissions were received and the pre-sentence report and D.B.’s victim impact statement were filed. D.B. read her statement into the record on that same date. My reasons for sentence and imposition of sentence were then put over to today.
Circumstances of the Offence
[3] The circumstances of the offences are as follows:
(a) The victim of these crimes is D.B., Mr. J.C.J.’ biological daughter. At the time of the offences, she was 18 years of age and the offender was 39 years of age. At the time of the offences, D.B. was residing with the offender in his home together with his wife and their 3 young daughters – her half-sisters.
(b) The offences relate to events which occurred on September 21, 2013.
(c) D.B. and Mr. J.C.J. were drinking in the basement of the home during the evening of September 20th. Ms. K.M.J. was working the night shift and Mr. J.C.J.’ 3 young daughters were asleep upstairs. The drinking continued into the early hours of September 21, 2013.
(d) At some point during these early morning hours while Ms. K.M.J. was still at work, the defendant made unwanted sexual advances towards and sexual contact with the victim while she was lying on a futon in the basement. At some point during the sexual assault, the defendant left the home to pick up his spouse from work; however before doing so, he told the victim that he would “finish up later”.
(e) Upon arriving home with his wife, Mr. J.C.J. returned to the basement where his daughter lay on the futon pretending to be asleep whereupon he proceeded to have unprotected sexual intercourse with her to the point of ejaculation without her consent and over her objections.
The Circumstances of the Offender:
[4] Mr. J.C.J. is 43 years of age. He has a limited criminal record with just four prior non-violent convictions. Two of these convictions relate to breach of recognizance.
[5] I have had the benefit of a pre-sentence report authored by probation and parole officer, Daniel Lee. Mr. Lee conducted an interview with Mr. J.C.J. and conducted collateral interviews with his adoptive mother, R.J., the defendant’s spouse, K.M.J., Blaire Courville of the Children’s Aid Society of London and Middlesex and Linda Bradford of Bradford Counselling Services.
[6] According to the presentence report:
• Mr. J.C.J. was born in Toronto Ontario and placed into foster care during his infancy. He was adopted by his parents when he was approximately 18 months old and enjoyed a supportive childhood free from any form of abuse, domestic violence or substance abuse. His adoptive father died when Mr. J.C.J. was 21 years of age. He maintains regular contact with his mother but has a difficult relationship with her common-law spouse.
• Mr. J.C.J. has an older adopted sister and a younger sister who is the biological daughter of his adoptive parents. He is close with his older sister with whom he maintains regular contact. He has no contact with his younger sister.
• Alcohol and drug addiction has never plagued his family. Mr. J.C.J. does not suffer from any alcohol or drug addiction issues. He has abstained from the consumption of alcohol since committing these offences.
• Mr. J.C.J. received his high school diploma and completed a three-year automotive technician program thereafter. He has been employed in the automotive industry for approximately 15 years and has been employed on a full-time basis as an automotive technician at his current place of employment for the past 7 years.
• Mr. J.C.J. has been involved in a relationship with his spouse, K.M.J., for 15 years and they have been married for 8 of those years. The couple share three daughters together ages 13, 10 and 8.
• Mr. J.C.J. has two adult daughters from prior relationships, including the victim.
• Since committing the offences, Mr. J.C.J. has engaged in counselling focusing on his relationship with his spouse and children.
[7] Mr. J.C.J. was asked whether he wished to make a statement to the court. He declined the offer.
Victim Impact Statement
[8] D.B. elected to read her victim impact statement to the court. Simply stated, it was heartbreaking for her to deliver and it was equally heartbreaking to receive. Her pain was palpable. Her statement contained the words of a young woman who I found at trial to be entirely forthright and truthful.
[9] As a result of these offences, D.B. lost her relationship with her young siblings and was never given the opportunity to say goodbye. She lost the security of having a home. She lost her trust in people. She could not stand to be touched. She hated crowds. She became reclusive. Her life spiralled out of control and she suffered a psychological breakdown. D.B. stated:
My life lost all direction and purpose. I was falling through a black hole and could not escape.
[10] It is beyond question that D.B. was badly bruised both physically and emotionally by the crimes perpetrated against her by her father - but thankfully she was not broken. To describe her present state of mind I quote from her statement as follows:
The pain is still very fresh but I feel positively about my future. I don’t want to die anymore. I have lived at one address for more than a year and a half. I am working full time. I have goals of going back to school. I am taking one day at a time.
Positions of the Crown and Defence
[11] Ms. Dalrymple for the Crown submits that the appropriate disposition involves the imposition of a 5-6 year penitentiary sentence for each offence to be served concurrently. The Crown also asks for a DNA order under s. 487.051(1) of the Criminal Code which is mandatory on the basis that both offences are primary designated offences, a 10-year weapons prohibition order, a SOIRA and a lifetime s. 161 order.
[12] Ms. Demelo on behalf of Mr. J.C.J. submits that a 90-day intermittent sentence to be served on weekends followed by a 3-year period of probation is appropriate. The defendant takes no issue with respect to the corollary orders requested by the Crown save and except that any s. 161 order imposed by the Court should be crafted in such a way so that Mr. J.C.J. is able to continue to parent his young children.
Caselaw – Incest
[13] To support the defendant’s position on sentence, Ms. Demelo, referred me to three cases none of which involved sentencing on a conviction for incest.
[14] In the 1992 Ontario Court decision in R. v. C.S.W.[^1] the accused was charged with sexually assaulting his 14 year old daughter on two occasions. He pled guilty to the charges and had no prior record. The offender was granted a suspended sentence and placed on probation for a period of two years.
[15] In R. v. D.A.D.[^2], a 2014 decision of this Court, the offender had sexually abused his daughter and was convicted of the abuse approximately 10 years after the offences were committed. The accused was given a conditional sentence of two years less a day which was a sentence available to the court having regard to the law as it existed on the date of the offences. In support of this sentence, the court noted that the behaviours exhibited by the accused were at the low-end of the scale of sexual misconduct and that based on assessments conducted and the passage of time, the offender’s risk of reoffending was “very low”.
[16] In the case of R. v. D.G.[^3] a 2011 case of the Ontario Court, the offender pleaded guilty to a charge of sexually assaulting his 17-year-old daughter. The Crown elected to proceed by way of summary conviction. The accused was sentenced to six months in custody followed by a two-year probationary period.
[17] The Crown’s case brief contained various decisions supporting the requested length of sentence. In R. v. D.M.[^4] Laskin J.A. observed that, in cases where the Court of Appeal had either upheld or imposed a penitentiary sentence of five years or more, one or more of the following aggravating circumstances were present:
• sexual intercourse (whether vaginal or anal);
• oral sex;
• incest;
• more than one victim;
• grooming of the victim;
• other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret;
• a previous criminal record for sexual abuse.
[18] Despite none of these aggravating factors being present in D.M., the Court of Appeal upheld a four-year sentence for a number of reasons including the absence of mitigation through real remorse and a guilty plea.
[19] In R. v. C.C.P.[^5] a 2016 decision of the British Columbia Supreme Court, the accused pled guilty to incest and sexual interference in relation to sexually touching and having vaginal and anal intercourse with his 13-year-old daughter on five separate occasions. The Crown and defence agreed that the appropriate range of sentence was 5 to 8 years and the court imposed a concurrent sentence of seven years for each offence noting that a sentence of more than eight years would not be outside the range for this type of offence. The court considered the guilty pleas as a mitigating factor suggesting some remorse and acceptance of responsibility on the part of the accused.
[20] In R. v. C.G.[^6] the offender was sentenced to 10-years’ imprisonment for sexual assault and incest. The offender’s daughter was 16 years old and the offender repeatedly had sexual intercourse with her over a period of 2 1/2 years.
[21] In R. v. C.O.L.[^7] the accused was convicted of sexual assault and incest involving his half-sister. The complainant was 16 years of age at the time of the offence and the accused who was 23 years of age denied any sexual contact. At trial the accused was found to have had vaginal intercourse with the complainant without her consent. The accused was convicted and sentenced to 3 1/2 years’ imprisonment which sentence was upheld on appeal.
[22] In the case of R. v. M.O.[^8], a very recent decision of the Newfoundland Trial Division, the accused pled guilty and was convicted of two counts of sexual assault and two counts of sexual interference and one count of invitation to sexual touching and one count of incest in relation to his daughter who was 13 years of age at the time of the offences. The offender was sentenced to six years’ imprisonment on the charge of incest and concurrent sentences on the other five charges. The court noted that the sentence imposed must reflect modern societal values and that the minimum sentence for a conviction on a charge of incest where the victim is under the age of 16 should be greater than the mandatory five years in circumstances of incest involving a parent and their child.[^9]
Principles of Sentencing
[23] The fundamental purposes of sentencing are set out in s. 718 of the Criminal Code.
[24] They are: to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: to denounce unlawful conduct, to deter the offender and other persons from committing offences, to assist in rehabilitating offenders, to separate offenders from society where necessary, and to promote a sense of responsibility in offenders and to acknowledge the harm done to victims and to the community.
[25] In addition, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
[26] The sentence imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[27] Although D.B. was over the age of 18 years at the time of the offences, I note that s. 718.01 of the Code mandates that when a court imposes a sentence for an offence involving the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Given the nature of the offences, the age and vulnerability of D.B., I find that the objectives of denunciation and deterrence are the primary sentencing principles for consideration in this case.
[28] Section 155(2) of the Code mandates that a conviction for incest involving a victim under the age of 16 years is subject to a minimum punishment of imprisonment for a term of five years. Similarly, s. 271(a) of the Code mandates that a conviction for sexual and assault involving a victim under the age of 16 years is subject to a minimum punishment of imprisonment for a term of one year. While I am not bound by the minimum sentences imposed by these sections in this case, D.B. was a teenager at the time of the offences and so these minimum sentences serve as a useful guide.
[29] Of course, each case turns on its own unique set of facts.
Mitigating and Aggravating Factors
[30] Here, the aggravating factors include:
i. Pursuant to s. 718.2(iii) of the Code abusing a position of trust in relation to the victim. D.B. was an exceptionally vulnerable person who met the defendant when she was 17 years old, was residing with the defendant and his family at the time of the offences and with whom she had sexual intercourse when she 18 years of age.
ii. Mr. J.C.J. had unprotected sexual intercourse with his daughter and he ejaculated in her vagina putting her at risk of contracting a sexually transmitted disease and becoming pregnant.
iii. Mr. J.C.J. encouraged his daughter to consume alcohol to facilitate his commission of the offences. He had made unwanted sexual advances towards the victim on an earlier occasion.
iv. Section 718(a)(iii.1) of the Code requires the impact of the offences on the victim to be considered. As previously outlined in these reasons, D.B. was full of hope and excitement at the prospect of developing a relationship with her biological father and her half-sisters 17 years after being placed for adoption. Mr. J.C.J. stole that dream and replaced it with an overwhelming sense of self-loathing, mistrust, fear and hopelessness that persisted for the past 4 years and is only recently showing signs of abating.
[31] I must now consider any mitigating factors. There are few. The most notable of the few I must consider is the fact Mr. J.C.J. has been a contributing member of society throughout his adult life. He is an automotive technician and has worked full time in his current position for seven (7) years and is the primary financial support for his young family. In addition, Mr. J.C.J. has abstained from alcohol use since he was charged with the offences. Last, he has the continued support of his spouse and other family members.
[32] The absence of mitigating factors is a neutral factor and is not an aggravating one. However, the absence of certain mitigating factors precludes me from reducing an otherwise appropriate sentence having regard to the aggravating factors at play. It is noted that the following mitigating factors are absent:
• Mr. J.C.J. does have a criminal record albeit dated and absent any convictions for violent crime.
• Mr. J.C.J. did not plead guilty. These proceedings have been protracted. Mr. J.C.J. at first denied he had sexual intercourse with his daughter. Once DNA evidence proved conclusively that he had sexual intercourse with his daughter, he challenged the admissibility of the DNA evidence. After this Charter challenge proved unsuccessful, Mr. J.C.J. denied knowing at the time he was having sexual intercourse with D.B. that she was his biological daughter. In a final effort to defend the charges, Mr. J.C.J. claimed he had no memory of any of events of that morning including having sexual intercourse with his daughter yet gave no explanation for his amnesia.
• Mr. J.C.J. is receiving counselling from Ms. Bradford that does not address the sexual abuse perpetrated by Mr. J.C.J. against his daughter. Instead the focus of the counselling has been on helping Mr. J.C.J. as a victim suffering from depression and anxiety.
• Mr. J.C.J. has shown little insight into the seriousness of his actions and the impact they have had on his daughter. This is significant when one considers that an important objective of sentencing is to promote a sense of responsibility in offenders and to promote acknowledgement of the harm done to victims and to the community. Despite having been found guilty of these offences beyond a reasonable doubt, Mr. J.C.J. accepts no responsibility for his actions and instead believes he is the victim. He is quoted in the presentence report as advising Mr. Lee that “he doesn’t remember the offence happening” and further reported to the author of the presentence report that the victim “made a mess of our lives”. He testified at trial that after ejaculating into the vagina of his daughter he felt “violated”. The author of the presentence report noted: “Of concern is the fact that the subject has not engaged in any counselling to address the inappropriate sexual behaviour related to current matters before the Court. In addition, the subject appears to show little empathy towards the victim.”
[33] I find that the support of family and friends is misguided and misinformed. There is no evidence suggesting that his children, and in particular his eldest daughter who wrote a letter of support, have been advised of the nature of the crimes committed by their father. His wife, sister, partner of his father-in-law (L.E.) and mother appear not to attribute any responsibility for the events of September 21, 2013 to Mr. J.C.J.. His wife wrote in her letter of support: “J.C.J. believes in the good in people, and it is one of his qualities that he has passed on to our children. In a world where everyone is screaming for something, or blaming someone, or demanding something for self-interest -- it is a rare quality.” In this case, it is Mr. J.C.J. who demanded sex from his daughter for his own self-gratification and who blames his daughter for his actions. Ms. K.M.J. refused to allow CAS to speak directly with the children. CAS relies on Ms. K.M.J. to ensure the safety of the children and mitigate any risk by following the guidelines contained in a letter dated October 11, 2017. There is no evidence that Ms. K.M.J. holds her husband responsible for the events of September 21, 2013 and I have no confidence that she will abide by the guidelines recommended by CAS.
[34] R.J., the offender’s adoptive mother, indicated to the probation officer that the victim is “trying to get back at [Mr. J.C.J.]” and is “revengeful” due to the fact she was placed for adoption when she was younger. It is apparent Ms. R.J. sees her son as the victim and not the offender.
[35] Ms. L.E. wrote: “This whole mess has been confusing, and at times frightening to those girls, but it is clear to me that [Mr. J.C.J.] is committed and determined to keeping his family’s home life as normal and healthy as possible given the obstacles they have been facing”. This statement suggests that Ms. L.E. believes the charges and the convictions which followed (which Ms. L.E. describes as “a mess” and as “obstacles”) arose from conduct committed by a third party - someone other Mr. J.C.J.. The fact, which seemingly everyone rallying in support of Mr. J.C.J. cannot face let alone accept, is that their co-worker, father, husband, son and son-in-law had sexual intercourse with his own teenage daughter. This overwhelming state of denial is deeply concerning particularly with respect to his spouse (the person the CAS has entrusted with the responsibility to keep their young daughters safe) who does not hold Mr. J.C.J. responsible for the crimes he committed against D.B..
[36] In a position of trust, Mr. J.C.J. knowingly had unprotected, non-consensual, sexual intercourse with his biological daughter, who was mere months into her adulthood and who was vulnerable and dependent on Mr. J.C.J., financially and emotionally. Those are the facts. Those facts were proven beyond a reasonable doubt at trial.
[37] His letters of support bespeak of a man respected by his friends and family and revered as a family man who has shown only love and devotion to his family. I have no doubt that is the picture Mr. J.C.J. paints of himself to the outside world but it stands in stark contrast to the man that emerged when alone with D.B. on September 21, 2013. I attribute little weight to these letters and adopt the concerns of the court in R. v. C.G.[^10] where it was noted at para. 22 that “the type of offences at issue are ones which other members of the offender’s family or the public rarely see. The offences are committed behind closed doors and out of sight and so the contents of the letters are often entirely inconsistent with the conduct of the offender forming the subject matter of the offences”.
[38] It is apparent from a review of the caselaw that the length of penitentiary sentence sought by the Crown is amply supported by the jurisprudence. I adopt the words of Madam Justice Bennett in R.A.J. at para. 30 where she states: “…I cannot conceive of a more morally blameworthy act than a parent sexually offending against his or her child…” With respect to the crime of incest in particular, Richetti J. in C.G. at para. 36 provided the following insight when he wrote:
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.
[39] It must be remembered that, although not under the age of 16 years so as to trigger the minimum sentence, at the time of the offences D.B. was a teenager having turned 18 only 4 1/2 months earlier (April 28, 1995) and was exceptionally vulnerable. She was entirely dependent on Mr. J.C.J.. I note, that the circumstances of this case meet two of the aggravating circumstances listed by the Ontario Court of Appeal in D.M. justifying a sentence of five years or greater – incest and sexual intercourse.
Decision
[40] Mr. J.C.J. has been convicted of very serious offences, namely, incest and sexual assault. With respect to the principles of denunciation and deterrence – both general and specific – a strong message must be sent.
[41] Considering all of the principles of sentencing in the context of the circumstances of this case, I impose the following sentences. In respect of Count one on the indictment being a conviction for incest contrary to s. 155(2) of the Code, I impose a sentence of five years’ imprisonment. In respect of Count 2 on the indictment being a conviction for sexual assault contrary to s. 271 of the Code, I impose a sentence of three years’ imprisonment to run concurrent, for a total of five years’ imprisonment.
[42] In respect of each conviction, a victim fine surcharge of $200 as required by s. 737 of the Code is payable.
[43] In addition, I make the following ancillary orders:
a) Both offences are primary designated offences so an order is made requiring the offender to provide a sample of your DNA pursuant to s. 487.051 of the Code;
b) A mandatory weapons prohibition order shall issue pursuant to s. 109(1)(a) of the Code for a period of 10 years;
c) both offences are designated offences referred to in s. 490.011 of the Code and, therefore, a lifetime order is made pursuant to s. 490.012 requiring the offender to comply with the Sex Offender Information Registration Act.
d) An order pursuant to s. 743.21 of the Code prohibiting the offender from communicating directly or indirectly with D.B. during the custodial period of your sentence.
[44] I have also been asked to consider imposing a lifetime order pursuant to s. 161 of the Code. Such an order is discretionary. In the circumstances I find it appropriate that an order be made pursuant to s. 161 of the Code for a period of 10 years prohibiting Mr. J.C.J. from:
(a) being within 500 meters of any dwelling house where the D.B. ordinarily resides;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years unless under the supervision of another person over the age of 18 years; and
(c) having any contact including communicating by any means with a person who is under the age of 16 years, save and except the offender’s own children when in his residence, unless under the supervision of another person over the age of 18 years.
[45] I have endorsed the indictment accordingly.
“Justice A. K. Mitchell”
Justice A. K. Mitchell
Released: November 7, 2017
CITATION: R. v. J.C.J., 2017 ONSC 6704
COURT FILE NO.: 11634
DATE: 2017/11/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
J.C.J.
REASONS FOR sentence
Mitchell J.
Released: November 7, 2017
[^1]: [1992] O.J. No. 796 (O.C.J.) [^2]: 2014 ONSC 3394. [^3]: 2011 ONCJ 116, [2011] O.J. No. 1188 (O.C.J.) [^4]: 2012 ONCA 894 [^5]: [2016] B.C.J. No.588 (S.C.). [^6]: 2015 ONSC 5068, [2015] O.J. No. 4326 (S.C.J.). [^7]: [2010] O.J. No. 2045 (S.C.J.). [^8]: [2017] N.J. No. 188 (T.D.). [^9]: Ibid., at para. 42. [^10]: 2015 ONSC 5068, [2015] O.J. No. 4326 (S.C.J.) at para. 22.