R. v. T.D.S., 2017 ONSC 6841
COURT FILE NO.: CR-15-0391
DATE: 2017 11 17
WARNING
His Honour Justice Bloom directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue in respect of the three victims (complainants). These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Judith MacDonald, for the Crown
- and -
T.D.S.
David Doney, for the Defence
Defendant
REASONS FOR SENTENCE
Bloom J.
Overview
[1] The accused was found guilty by a jury on February 21, 2017 of three counts of sexual assault, one count of sexual exploitation, and one count of sexual interference.
[2] He has been in custody since that time.
[3] I have heard submissions from the parties on the matter of sentence. These are my reasons for sentence.
The Facts
(a) Circumstances of the Offence
[4] The parties agree on the material facts of the offenses of which the accused has been found guilty. The offenses involved three young female victims.
[5] Count # 1 was a sexual assault against a female victim which took place when she was 18 years old. The accused pushed her to the bed and threatened to rape her if she did not have sexual intercourse with him.
[6] Count # 2 was sexual exploitation of the same female victim. It occurred over an extensive period when the accused was in a position of trust acting as her father. The victim was at least 16 years old but under 18. The accused would put his hand down her pants and touch her vagina; he would go up her shirt and touch her bare breast with his hand. This conduct lasted a couple of minutes each time and took place periodically over three years.
[7] Count # 3 involved three incidents; the victim in each was the same and was a different person from the first victim. On one occasion the accused threw a blanket on the victim and put his fingers in her vagina through her underwear for a couple of minutes.
[8] Another occasion took place at a garage in Kingston out of which the accused operated a business. He pulled down the victim’s pants; pulled out a condom and put it on; and then put his penis in her anus. The penetration lasted a few minutes.
[9] The third incident occurred near a Blockbuster Video store in Kingston. The victim was in a car driven by the accused. He unzipped his pants and asked her to masturbate him. When she refused, he put her hand down his pants and moved her hand up and down his penis. He ejaculated during this incident.
[10] Count #4 was a sexual assault against the third victim. The accused in an automobile in Kingston touched the upper thigh of the victim and asked her for sexual intercourse.
[11] Count # 5 was a count of sexual interference with respect to the third victim. When the victim was 11 or 12 years old, the accused touched her vagina through her clothing for a few seconds when she brought down a meal to him in the basement of a townhouse in Guelph in which they were living.
(b) Circumstances of the Offender
[12] According to the Pre-Sentence Report the Accused is 53 years old, and grew up in a home free from abuse and in a positive environment. Further, according to that report, he has been married since 1986, and the relationship is a positive one; he and his wife adopted a child. Additionally, according to that report, the accused also may have another child.
[13] Moreover, according to the Pre-Sentence Report, the accused completed grade 10, and left to begin working. He also completed a mechanical apprenticeship according to that report. The report further stated that he has generally maintained employment. In that regard, the report stated that he and his spouse operated a property maintenance business before his incarceration, and he also made furniture to supplement his income.
[14] According to the Pre-Sentence Report, the accused has had two heart attacks, and has had shoulder surgery on both shoulders. He has also recently had a cardiac event while in pre-sentence custody according to submissions by the Defense, which I accept.
[15] Because the Pre-Sentence Report disclosed that the accused was of aboriginal descent on both sides of his family, I ordered a Gladue Report. Exhibit 1 on the sentence hearing was a letter dated August 17, 2017 from Stephanie Bean, Senior Manager, Gladue Caseworker Program, Aboriginal Legal Services in Toronto. The letter stated that “[a]t this point…we are unable to prepare a Gladue Report…because we are unsure about the nature of … [the accused’s] Aboriginal ancestry and…we cannot address how being an Aboriginal person has affected his life circumstances.” The accused has expressed a desire to learn more about his Aboriginal culture. The testimony of Jillian Collins of Aboriginal Legal Services did not advance the evidentiary record materially in respect of the information about the accused’s aboriginal background.
(c) Impact on the Victim
[16] Victim Impact statements were provided by two of the victims (the victims on counts # 3, #4, and #5).
[17] The victim on count # 3 stated that she has flashbacks to the events subject of the charges; that she will become dazed and emerge crying. She also stated that she has a hard time trusting boys her age.
[18] The victim on counts # 4 and # 5 stated that she feels guilt about not speaking about the abuse earlier because she believes that it may have prevented abuse of the other victims, her sisters. She also stated that she is self-conscious and often shuts others out.
Legal Parameters:
[19] Extended periods specified in the indictment for the charges raise the issue of statutory changes over time to the applicable sentencing provisions. However, in the circumstances of the offenses before me the important point is that the applicable term for each count under the Criminal Code carries a maximum of no less than ten years.
[20] The Criminal Code also mandates that I consider available sanctions other than imprisonment, having regard to the Aboriginal background of the accused.
Positions of Crown and Defence:
[21] The Crown argues that the accused’s Aboriginal background should be taken into account, but that the offenses of which he has been found guilty are so serious and aggravated that the applicable principles of specific and general deterrence, separation of the accused from society, and denunciation produce the same sentence for the accused as for a non-Aboriginal offender.
[22] The Crown further argues that the offenses require a lengthy period of incarceration for a number of reasons. The behaviour was egregious; and the accused was in a position of trust regarding the three victims. Moreover, contends the Crown, the accused took advantage of the mental challenges of the victim on count # 3, an aggravating circumstance; in that regard the Crown points out that the most invasive conduct of the accused was the non-consensual anal intercourse committed upon that victim.
[23] The Crown argues for a total of incarceration of seven years in addition to the presentence custody on September 11, 2017 that would be 303 days at the rate of 1.5 to 1, for a total of almost eight years. The Crown sets out the specific terms appropriate for each offense as follows, all terms being consecutive to one another, except that on count 4 which is concurrent to the other terms: on count #1, one year; on count # 2, one year; on count # 3, four years; on count # 4, one year; and on count # 5, one year, for a total of seven years.
[24] In addition the Crown seeks the following ancillary orders: (1) an order under s. 487.051 of the Criminal Code for the taking of samples of bodily substances for forensic DNA analysis; (2) orders under s. 109 (2)(a) and (b) of the Criminal Code; (3) an order under s. 490.012 (1) and s. 490.013 (2.1) of the Criminal Code; (4) an order under s. 161 (1) (a),(a.1), (b), and (c) of the Criminal Code for life under s. 161(2) (under s. 161(1) (a.1) in respect of being within at least one kilometre and perhaps two kilometres, of any dwelling-house where the victims reside); and (5) an order under s. 743.21(1) of the Criminal Code in relation to the three victims. The Crown also submits that a victim surcharge of $ 200 per count is appropriate under s. 737 of the Criminal Code.
[25] Finally, the Crown contends that the offenses of which the accused was found guilty were not of a historical nature for purposes of the case law on sentencing historical sexual offenses. The Crown argues also that, even if they had been historical offenses, their serious nature attracts the application of specific and general deterrence, denunciation, and the need to separate the accused from society so as to make the delay since their commission not important as a factor on sentence.
[26] The Defense argues that the accused is a man who is well into middle age and has no criminal record; that he has had a history of cardiac problems, including a recent event which has left him weakened; that he has the support of his wife; that he has become involved in a religious group in prison pre-sentence; and that the pre-sentence custody conditions were cramped and difficult. In all of those circumstances and admitting that the offenses are serious, the Defense seeks a sentence of five years less pre-sentence custody calculated at the rate of 1.5 days to 1 for every day in custody.
[27] The Defense specifically does not contest the ancillary orders sought by the Crown under s. 487.051 of the Criminal Code and under s. 490.012(1) and s. 490.013(2.1) of the Criminal Code. With respect to s. 161(1)(a.1), the Defense submits that the appropriate distance is 500 metres.
Governing Principles:
(a) The Approach to Sentencing an Aboriginal Offender
[28] In R. v. Kakekagamick, 2006 CanLII 28549 (ON CA), [2006] O.J. No. 3346 (ONCA) at paras. 34 to 43 and 46 Justice LaForme for the Ontario Court of Appeal considered the specific duty imposed by the Criminal Code on a sentencing judge in approaching the sentencing of an Aboriginal offender. He stated:
34 The Court affirmed that s. 718.2(e) imposes a duty on the sentencing judge to approach the sentencing of Aboriginal offenders differently. That is, it is not a mitigating factor on sentencing simply to be an Aboriginal offender, as the Crown erroneously asserts in its factum. Nor is being an Aboriginal offender, as I have heard it referred to, a "get out of jail free" card.
35 Rather, s. 718.2(e) was enacted as a remedial provision, in recognition of the fact that Aboriginal people are seriously over-represented in Canada's prison population and in recognition of the reasons for why this over-representation occurs. Thus, although s. 718.2(e) requires a sentencing judge to consider reasonable alternatives to imprisonment for all offenders, special consideration must be given to the circumstances of Aboriginal offenders. The Court in Gladue stated at para. 33:
[T]he words of s. 718.2(e) do not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender. ... What s. 718.2(e) does alter is the method of analysis which each sentencing judge must use in determining the nature of a fit sentence for an aboriginal offender [emphasis added].
36 Therefore, while s. 718.2(e) requires a different methodology for assessing a fit sentence for an Aboriginal offender; it does not necessarily mandate a different result. The subsection does not alter the fundamental duty of the sentencing judge to impose a sentence that is fit for the offence and the offender: R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, para. 44.
37 Section 718.2(e) imposes an affirmative duty on the sentencing judge to take into account the surrounding circumstances of the offender, including the nature of the offence, the victims and the community (Wells, para. 41). Where the sentencing judge narrows the choice of sentence to one involving imprisonment, the judge is obliged to consider the unique systemic or background circumstances which may have played a part in bringing the particular Aboriginal offender before the courts. The judge must also consider the types of practicable procedures and sanctions that would be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage (Wells, para. 30).
38 It is important to emphasize, as this Court held in R. v. Jensen (2005), 2005 CanLII 7649 (ON CA), 74 O.R. (3d) 561 at para. 27, that the law in Ontario requires that the Gladue analysis be performed in all cases involving an Aboriginal offender, regardless of the seriousness of the offence. I would note that this is also the law in Alberta: see R. v. Abraham (2000), 2000 ABCA 159, 261 A.R. 192 (C.A.). See also Gladue, para. 79.
39 The sentencing judge therefore has a statutory duty to consider the unique circumstances of Aboriginal offenders; the only discretion is with respect to the determination of a just and appropriate sentence (Gladue, para 82). To fulfil their duty, sentencing judges must undertake the sentencing of Aboriginal offenders individually --as with all offenders -- but also differently, because the circumstances of Aboriginal people are unique and call for a special approach (Gladue, para 6).
40 Gladue establishes the framework by which a sentencing judge is to carry out his or her duty when determining a truly fit and proper sentence for Aboriginal offenders. The background considerations underlying the unique circumstances of Aboriginal offenders, which will direct the sentencing judge's analysis, are:
(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and
(B) The types of sentencing procedures and sanctions, which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. (Gladue, para. 66)
41 It is only after a thorough review of those considerations that the sentencing judge will be in a position to determine a fit and proper sentence….
42 To be clear, s. 718.2(e) does not require, nor is there a general rule, that Aboriginal offenders must be sentenced in a way that gives the most weight to the principle of restorative justice. It may be that in certain cases the objectives of restorative justice articulated in s. 718.2(e) and Gladue will not weigh as favourably as those of separation, denunciation and deterrence. As was noted in Gladue, Aboriginal people also believe in the importance of those latter objectives. Those principles will always be relevant and may predominate for more serious offenders or where the offence is serious enough that imprisonment is necessary.
43 It was noted in Gladue that while in some circumstances the length of an Aboriginal offender's sentence may be less than that of any other offender, "the more violent and serious the offence the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals will be close to each other or the same" (para. 79). See also R. v. R.L., [2004] O.J. No. 384 (S.C.J.) at para. 39. However, it is important to once again repeat that regardless of the seriousness of the offence, the analysis set out in Gladue will nevertheless apply in all cases where the offender is an Aboriginal person.
46 While the role of the sentencing judge is not that of a board of inquiry, there is nevertheless an obligation to make inquiries beyond the information contained in the pre-sentence report in "appropriate circumstances", where such inquiries are "practicable" (Gladue, para. 84). The sentencing judge's assessment of whether further inquiries are either appropriate or practicable is to be accorded deference (Wells, para. 54).
[29] In R. v. J.N., 2013 ONCA 251, [2013] O.J. No. 1834 (ONCA) at paras. 41 to 43, 47, and 51 the Court elaborated on those principles:
41 In Ontario, the law requires that a Gladue analysis be performed in all cases involving an Aboriginal offender: R. v. Kakekagamick (2006), 2006 CanLII 28549 (ON CA), 81 O.R. (3d) 664 (C.A.), at para. 38 (emphasis in original). See also R. v. Jensen (2005), 2005 CanLII 7649 (ON CA), 74 O.R. (3d) 561 (C.A.), at para. 27.
42 In R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, the Supreme Court clarified the scope of a sentencing judge's duty following Gladue, at para. 55:
[I]t was never the Court's intention, in setting out the appropriate methodology for this assessment, to transform the role of the sentencing judge into that of a board of inquiry. It must be remembered that in the reasons in Gladue, this affirmative obligation to make inquiries beyond the information contained in the pre-sentence report was limited to "appropriate circumstances", and where such inquiries were "practicable" (para. 84). The application of s. 718.2(e) requires a practical inquiry, not an impractical one. As with any other factual finding made by a court of first instance, the sentencing judge's assessment of whether further inquiries are either appropriate or practicable is accorded deference at the appellate level.[Emphasis added.]
See also R. v. Pelletier, 2012 ONCA 566, 295 O.A.C. 200, at para. 140.
43 In this case, the sentencing judge had been told that Aboriginal Legal Services could not confirm the appellant's ancestry, and the appellant himself was unable to provide any further information. In these circumstances we are reluctant to second-guess the sentencing judge's decision not to pursue the matter further.
47 Second, however, even assuming for the sake of argument that Gladue applies, the evidence that the appellant's Aboriginal ancestry may have played a part in his criminality is weak. In coming to this conclusion, we are mindful of this court's direction in R. v. Collins, 2011 ONCA 182, 104 O.R. (3d) 241, at paras. 32-33, that an Aboriginal offender does not bear the burden of establishing a direct causal link between the systemic and background factors and the commission of the offence. Gladue simply requires that the sentencing judge take those systemic and background factors into account in shaping an appropriate sentence.
51 Finally, and most significantly, this is simply one of those cases where the crimes were so heinous, and the aggravating factors were so compelling, that the appellant's Aboriginal status should not affect the length of the sentence imposed.
[30] Recently in R. Moncton, 2017 ONCA 450 at para. 116 Justice Trotter for the Court stated:
116 In Radcliffe, this court addressed the failure of a sentencing judge to order a Gladue Report in the context of a dangerous offender proceeding. Writing for the court, Watt J.A. described the proper approach to sentencing Aboriginal offenders (at paras. 52-55):
It is now firmly established that when sentencing an Aboriginal offender, a judge must consider:
i. the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the court; and
ii. the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage and connection.
See R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 66; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59.
Courts are required to take judicial notice of the systemic and background factors affecting Aboriginal people in Canadian society. But, on their own, these matters about which judicial notice must be taken do not necessarily justify a different sentence for Aboriginal offenders. They provide the necessary context for understanding and evaluating the case-specific information which counsel have a duty to present, absent express informed waiver of the right to have it presented: Ipeelee, at para. 60.
Although systemic and background factors provide the necessary context to enable a judge to determine an appropriate sentence, rather than to excuse or justify the underlying conduct, it is only where the unique circumstances of an offender bear on culpability, or indicate which sentencing objective can and should be actualized, that they will influence the ultimate sentence. [Emphasis in original.]
(b) The Principles Applicable to the Sentencing of Serious Sexual Offenses
[31] In R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (ONCA) at paras. 34, 44, and 45 Justice Moldaver for the Court set out principles governing the sentencing of serious sexual offenses such as those of which the accused has been found guilty:
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 offenders from society, must take precedence over the other recognized objectives of sentencing.
44 To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted….
45 The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!
[32] In R. v. Woodward, 2011 ONCA 610 Justice Moldaver for the Court elaborated on these principles at para. 72:
72 The case of D.D., it will be recalled, involved an adult predator in a position of trust who sexually abused a number of young boys on a regular basis over a lengthy period of time. The court in that case considered the appropriate range of sentences for offenders who engage in such conduct. In doing so, the court discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children. The relevant considerations and principles from D.D., at paras. 34-38, are summarized below:
(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 they 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 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.
(c) Effect of Passage of Time Since the Offenses
[33] In R. v. H.S., 2014 ONCA 323, [2014] O.J. No. 1974 (ONCA) at 53 to 56 Justice Epstein for the Court set out the applicable principles regarding the effect of the passage of time since the commission of the offenses on the imposition of sentence:
53 The leading case on the treatment of time lapse in sentencing is R. v. Spence (1992), 1992 ABCA 352, 78 C.C.C. (3d) 451 (Alta. C.A.), adopted by Juriansz J.A. for this court in R. v. W.W.M (2006), 2006 CanLII 3262 (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A). In Spence, at pp. 454-456, the court held that:
When a period of many years has elapsed between the commission of an offence of sexual assault and its discovery by the authorities, that circumstance dictates review of the degree to which the usual principles of sentencing are applicable in such circumstances.
The lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation. The first of these requires a sentence which will intimidate those other than the offender who might be tempted to follow his example. The second requires a sentence by the imposition of which the court will reflect society's view of the wrongness of the conduct, and persuade those who might be confused about what is right and wrong. These two principles may overlap in their effect on the choice of sentence.
The need for the sentence to reflect the community's desire to denounce offences of the kind with which we are concerned is not diminished by the passage of time. Conversely, if the court were to impose a lenient sentence because of the passage of time, some members of the community might regard the sentence as judicial condonation of the conduct in question. That would tend to lessen respect for the administration of justice. In the circumstances we are considering in these appeals, the lapse of considerable time, and (we assume, for the purpose of discussion) the intervening years of unblemished conduct, do not lessen the relevance of these two principles.
The only sentencing principles which may be affected by the lapse of time are those of individual deterrence and rehabilitation. By individual deterrence we mean that the sentence should deter the accused from committing a similar offence in the future. By rehabilitation we mean that the sentence imposed should reflect the hope that somehow, while serving his or her sentence, the accused will be rehabilitated and at its end will resume his or her place in society as a useful and law-abiding citizen. These two principles overlap. In the case of a sexual offence against a child, when on occasion the child does not report the offence to the police or any other authority until many years after the event, should the sentence be less than what it would have been if the prosecution had occurred not long after the commission of the offence? If the accused, during the intervening years, has led an exemplary life in all respects, including non-repetition of sexual offences, and upon the matter ultimately being reported to the authorities and during the resulting investigation and prosecution he is remorseful, then the principles of individual deterrence and rehabilitation may arguably, by themselves, not justify a stern sentence of the kind which would have been obligatory many years earlier. It will be noted, however, that if, despite having led an exemplary life, the offender lacks remorse, any potential discount must be less than it otherwise would have been. Indeed, in cases of this sort, of sexual abuse of children by parents, one might well ask whether one could ever have both remorse and lengthy suppression of the facts.
54 Given the respondent's circumstances, the principles of specific deterrence and rehabilitation have no relevance. As previously noted, the relevant sentencing principles in this case are denunciation and general deterrence. A fit sentence must reflect the need to respond to these principles. As made clear in the above passages from Spence, these particular sentencing principles are unaffected by the passage of time. See also: W.W.M. at paras. 21-25 and R. v. S.(R.), 1997 ABCA 377, [1997] A.J. No. 1136, 209 A.R. 231 (Alta. C.A.).
55 I am therefore of the view that while a delay of over 35 years is a relevant consideration, its mitigating impact is reduced by its lack of relevance to the operative sentencing principles.
56 Applying the principles mandated in s. 718 of the Code that are germane to the circumstances of this particular offender and these particular offences, I conclude that the objectives of general deterrence and denunciation, and the importance of ensuring parity with other sentences in similar circumstances, support a sentence of five years.
(d) The Effect of Pre-Sentence Custody
[34] In R. v. Summers, 2014 SCC 26, [2014] S.C.J. No. 26 (S.C.C.) at paras. 70 to 74 Justice Karakatsanis for the Court set out the following principles which govern the according of credit on sentence for pre-sentence custody:
70 In determining credit for pre-sentence custody, judges may credit at most 1.5 days for every day served where circumstances warrant. While there is now a statutory maximum, the analytical approach endorsed in Wust otherwise remains unchanged. Judges should continue to assign credit on the basis of the quantitative rationale, to account for lost eligibility for early release and parole during pre-sentence custody, and the qualitative rationale, to account for the relative harshness of the conditions in detention centres.
71 The loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely. Of course, a lower rate may be appropriate when detention was a result of the offender's bad conduct, or the offender is likely to obtain neither early release nor parole. When the statutory exceptions within s. 719(3.1) are engaged, credit may only be given at a rate of 1 to 1. Moreover, s. 719 is engaged only where the pre-sentence detention is a result of the offence for which the offender is being sentenced.
72 This means that two offenders, one of whom lost the opportunity for early release and parole, and a second who, in addition to losing those opportunities, was also subject to extremely harsh conditions, will likely both have credit assigned at a rate of 1.5 to 1. The unavoidable consequence of capping pre-sentence credit at this rate is that it is insufficient to compensate for the harshness of pre-sentence detention in all cases. However, this does not mean that credit should be scaled back in order to "leave room at the top" of the scale for the most egregious cases. A cap is a cut-off and means simply that the upper limit will be reached in more cases. It should not lead judges to deny or restrict credit when it is warranted.
73 Indeed, individuals who have suffered particularly harsh treatment, such as assaults in detention, can often look to other remedies, including under s. 24(1) of the Charter.
74 The sentencing judge is also required to give reasons for any credit granted (s. 719(3.2)) and to state "the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed" (s. 719(3.3)). This is not a particularly onerous requirement, but plays an important role in explaining the nature of the sentencing process, and the reasons for giving credit, to the public.
Mitigating and Aggravating Factors
[35] By way of aggravating circumstances I note that the accused was in a position of trust regarding the victims, acting as their parent. Moreover, the criminal conduct in question was not isolated but repeated over a lengthy period. In addition, with respect to the anal intercourse committed on the victim in count # 3, it was very invasive assaultive conduct and committed on a person vulnerable because of her mental challenges.
[36] By way of mitigating circumstances, I note that the accused has no criminal record, and has a good work history as reflected in a letter of reference and the pre-sentence report.
Reasons including Ancillary Orders :
[37] The evidence is insufficient to clarify both issues which relate to the impact of the aboriginal status of the accused. It is uncertain what are the unique systemic or background circumstances which may have had a role in bringing the accused before this court. Further, the evidence is also inadequate as to the sanctions that would be appropriate in light of the accused’s aboriginal status.
[38] In any event, given the serious and aggravated nature of the offenses of which the accused has been found guilty, the principles of specific and general deterrence, denunciation, and the need to separate the accused from society must govern the sentencing of the accused in this case. Further, the Defense did not argue, nor do I find, that this matter is one to which the principles of sentencing historical sexual offenses apply.
[39] I enter a conviction on each count. I find that a sentence of eight years in total less time served in pre-sentence custody at the rate of 1.5 days to 1 day served, is appropriate. I give credit at the rate of 1.5 days to 1 day based on both the quantitative and qualitative rationales discussed in R v. Summers,supra. I apportion the eight years on the five counts as follows: count # 1-one year; count # 2-one year; count # 3-four years; count # 4-one year; count # 5-one year. The terms are all consecutive to one another. On November 17, 2017 the credit to be given for pre-sentence custody is 404 days. Therefore, the time the accused is sentenced to imprisonment in the penitentiary is 6 years and 326 days.
[40] In addition I make a number of ancillary orders.
[41] First, I make an order under s. 487.051 of the Criminal Code for the taking of samples of bodily substances for forensic DNA analysis.
[42] Second, I make an order under s. 109 (2)(a) and (b) of the Criminal Code.
[43] Third, I make an order under s. 490.012(1) and s. 490.013(2.1) of the Criminal Code.
[44] Fourth, I make an order under s. 161(1)(a), (a.1), (b), and (c) of the Criminal Code for life under s. 161(2). Under s. 161(1)(a.1) the prohibited distance is within one kilometre of any dwelling-house where any of the three victims (whose names are noted in the indictment) ordinarily resides.
[45] Fifth, I make an order under s. 743.21(1) of the Criminal Code in respect of all three victims.
[46] Finally, I make an order under s. 737 of the Criminal Code that the accused pay a victim surcharge of $ 200.00 on each of the five counts on which he was found guilty. The Registrar is to provide to the accused the information specified in s. 737(8) of the Criminal Code.
Bloom J.
Released: November 17, 2017
CITATION: R. v. T.D.S., 2017 ONSC 6841
COURT FILE NO.: CR-15-0391
DATE: 2017 11 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
T.D.S.
Defendant
REASONS FOR SENTENCE
BLOOM J.
Released: November 17, 2017