R. v. J.V.R., 2018 ONSC 5334

CITATION: R. v. J.V.R., 2018 ONSC 5334

COURT FILE NO.: 17/882

DATE: 20180913

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.V.R.

Accused

Kevin Ludgate, for the Crown

John Saftic, for the Accused

HEARD: April 16, 17, 18, 19, 23, 24, and July 23, 2018

REASONS FOR SENTENCING

CORNELL J. Orally:

Introduction

1J.V.R. was charged with one count of sexual assault, one count of sexual touching of a person under the age of 14 years and one count of inviting a person under the age of 14 years to touch for a sexual purpose. On April 24, 2018, a jury found Mr. J.V.R. guilty on all three counts.

2On July 23, 2018, I received sentence submissions. After giving consideration to such submissions, I sentence Mr. J.V.R. to six years imprisonment in accordance with the reasons that follow.

Background

Sexual Offences

3In or about 1991, J.V.R. began to live with S.C., and her two children, R.C. and J.C. At the time that the parties began to cohabit, R.C. was approximately nine years old.

4R.C. stated that in May of 1993, he was sexually assaulted by J.V.R.. The sexual abuse continued for approximately ten years.

5R.C. testified that the first incident occurred when he and J.V.R. were driving back from Brampton along the highway 401. At the request of J.V.R., R.C. began to masturbate. In return for $20 offered by J.V.R., R.C. proceeded to give J.V.R. a blow job.

6R.C. testified that the masturbation and blow jobs happened “many times” over a period of approximately ten years. J.V.R. would request the sexual activity when, according to R.C., “there were no eyes watching”.

7When J.C. was nine or ten years old, J.V.R. touched J.C. with his hands for a sexual purpose. At a later point in time, J.V.R. asked J.C. to suck his penis. J.C. declined.

8J.C. is R.C.’s younger brother. When he was approximately nine or ten years old, he was told by J.V.R. to go sleep in the parents’ bed. J.C. proceeded to do so. After falling asleep, he was awoken by J.V.R. who was rubbing J.C.’s penis. After doing so, J.V.R. proceeded to put J.C.’s penis in his mouth.

9At a later point in time, J.V.R. was driving J.C. to a park. During that drive, J.V.R. asked J.C. if he could “suck [him] off”. When J.C. said no, J.V.R. said “Okay, I will wait until you are older”.

10It is clear from the jury verdict that the jury accepted the evidence of R.C. and J.C. For the purpose of s. 724(1)(2) of the Criminal Code, R.S.C. 1985, c. C-46, I find as a fact that J.V.R. sexually assaulted R.C. by making R.C. masturbate and engaging in oral sex with R.C. I find as a fact that J.V.R. rubbed J.C.’s penis and engaged in oral sex with J.C. as well as asking J.C. if he, J.V.R., could give J.C. a blow job. I find as a fact that this sexual activity between J.V.R. and J.C. as well as the invitation to sexual touching took place when J.C. was under 14 years of age.

Personal Circumstances

11J.V.R. is now 72 years of age.

12His parents are deceased. He is one of four brothers and two sisters. His father passed away when he was nine years old. He reports an average upbringing given the family’s limited financial resources after his father’s passing.

13J.V.R. was born without functioning hearing and without ears. He underwent many operations involving skin grafts to fashion ears. He received an implant during childhood that gives him some level of hearing. Despite this, he struggles to talk on the phone and avoids crowds of people.

14He left home when he was 17 years old to seek employment.

15His employment largely consists of work in a beverage plant and janitorial services provided at a school. This employment ended following a criminal conviction for gross indecency. In the mid-1990’s, he began receiving Ontario Works. He is currently supported by the Ontario Disability Support Program.

16Since the end of his relationship with the victims’ mother in 2003, J.V.R. reports that given his age and circumstances, he has minimal social interaction. In or about 2007, J.V.R. began to live with L.O.. This relationship is characterized as a friendship. Ms. L.O. suffers from her own medical problems and requires the use of a walker. She indicates that J.V.R. is a caring person who does not complain or raise his voice. Ms. L.O. reports that she feels safe and supported in the current living arrangement that she shares with J.V.R..

Position of the Parties

The Crown

17The Crown asks that a prison sentence of five to six and a half years be imposed together with various ancillary orders that will be later detailed.

The Defence

18Counsel for J.V.R. suggests that the proper term of incarceration ranges from 18 to 36 months.

Sentencing Provisions

19The fundamental purpose and principles of sentencing are set out in s. 718 of the Criminal Code as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

20Section 718.1 of the Criminal Code requires that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender.”

21I am also to be guided by the sentencing principles contained in s. 718.2 of the Criminal Code. It requires me, among other things, to take into account any aggravating or mitigating circumstances relating to the offence or the offender. According to s. 718.2 I must also impose a sentence which is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Aggravating Factors

22There are a number of aggravating factors present in this case.

23At the time of these offences, J.V.R. was a stepfather to R.C. and J.C. As such, he was in a position of trust and authority. As R.C. put it in the pre-sentence report, instead of receiving love, protection and acceptance from his stepfather, he was the victim of sexual abuse that occurred during his formative years.

24The breach of trust extended, not just to J.V.R.’s stepsons, but also to his spouse, S.C., who had welcomed J.V.R. into the family.

25J.C. was under 14 years of age at the time that the criminal misconduct took place.

26Both R.C. and J.C. were vulnerable. They are both small of stature and required special education due to their limited intellect.

27There was not one victim, but two.

28This was not the first occasion that J.V.R. engaged in this type of behaviour. In 1987, J.V.R. was convicted of gross indecency. Once again, this conviction involved children of one of J.V.R.’s former partners. The victims were one male and one female. J.V.R. received a nine month sentence. In the pre-sentence report, J.V.R. stated that he did not complete programming at the time that he was incarcerated nor did he attend counselling after his release from custody.

Mitigating Factors

29It was pointed out that, during the course of these offences, there were no threats, actual violence or penetration.

Victim Impact Statements

30The victims’ mother, S.C., indicates in her statement that her former partner’s conduct has made her very depressed. In addition, she feels guilty as she should have been able to see the signs of abuse and thereby protect her children. She states “I don’t sleep”.

31R.C. indicates that these events have had a devastating effect on his life. He suffers from anxiety and depression. His thoughts and attempts at suicide have required hospitalization on more than one occasion.

32R.C. goes on to say that he feels shame and anger for being manipulated. In order to be “comfortable”, he needs to be “polluted” so that he can deal with his feelings of anxiety and depression.

33In his statement, J.C. reports that he is unable to trust men, even men that he has known for many years. He continues to have nightmares and wakes up in cold sweats. He lives in fear that J.V.R. will come to his house and as a result, is always on alert. He is currently taking three medications including an antidepressant. J.C. reports that he attempted suicide in order to “try and stop the memories”.

Analysis

34Section 718.2 of the Criminal Code provides as follows:

718.2 A court that imposes a sentence shall also take into consideration the following principles:

a) (ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

shall be deemed to be aggravating circumstances.

35I have already found that J.V.R. abused a person under the age of 18 years and was in a position of trust and authority when he did so.

36The decision that is most often referred to when considering cases of this nature is R. v. D.D., 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), a decision of the Ontario Court of Appeal. In that case, the accused befriended four young boys and engaged in all manner of sexual activity with them over a seven year period. At trial, a sentence of eight years and one month was imposed after credit for time served. Like this case, the accused stood in a position of trust towards the victims.

37Although this sentence was upheld on appeal, the court made the following comments and observations at paras. 34-36, 44-45:

34The 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.

35We as society owe it to our children to protect them from the harm caused by offenders 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.

36In this respect, while there may have been a time, years ago, when offenders 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.

44To 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. (See, for example, R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W.(L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

CONCLUSION

45The 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!

38In this particular case, J.V.R. sexually abused his innocent young stepchildren on multiple occasions. In the case of R.C., this abuse continued for ten years.

39As in the case of D.D., J.V.R.’s conduct can only be characterized as reprehensible. At a time when he should have been providing love, protection and guidance, J.V.R. was engaged in the sexual abuse of his stepchildren.

40R.C. and J.C. have been robbed of their innocence. The events in question have taken a terrible toll upon them. This toll includes depression, anxiety, fear, and various attempts at suicide.

41A specific example of this can be detailed by evidence given by J.C. After he was initially molested by J.V.R., J.C. was so terrified about a possible reoccurrence that he would wear some combination of five or six pair of pants, sweatpants or pyjamas when he went to bed until Mr. J.V.R. left the family home. Even though these events occurred many years ago, J.C. is still unable to sleep unless he does so with the benefit of medication.

42During the many years that followed the abuse, Mr. J.V.R. has lived what he characterizes as a solitary existence, albeit in the company of his friend, Ms. L.O.. This quiet existence stands in stark contrast to the troubled existence of R.C. and J.C., the legacy of the abuse suffered by them at the hands of J.V.R..

43D.D. tells us that when an adult offender, in a position of trust, sexually abuses 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. That is the factual situation I am dealing with. The Crown has suggested a sentence that falls at the low end of that range. I can only assume that the Crown chose to do this based upon J.V.R.’s advanced age.

Disposition

44Mr. J.V.R., please stand up.

Imprisonment

45On count 1, I sentence you to six years. On count 2, I sentence you to four years. On count 3, I sentence you to two years. All of these sentences are to be served concurrently.

Ancillary Orders

46As requested by the Crown and agreed to by you, I make the following ancillary orders:

Weapons Prohibition Order

a. Pursuant to s. 109(3) of the Criminal Code, there shall be a lifetime weapons prohibition order.

DNA

b. As these are all primary compulsory designated offences, I order that you provide a bodily sample suitable for DNA analysis in accordance with s. 487.051 of the Criminal Code. The order shall remain valid and in force until such time as a suitable sample has been analyzed.

Sex Offender Information Registration Act

c. In accordance with s. 490.012 of the Criminal Code, I order that you be registered under SOIRA for life.

Non-Communication

d. Pursuant to s. 743.21(1) of the Criminal Code, I order that you have no communication with R.C., J.C. or S.C. during the custodial period of your sentence. (Names are for record purposes only and are not to be disclosed under any circumstances).

The Honourable Mr. Justice R. Dan Cornell