ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Court File and Parties

COURT FILE NO.: CR-39700-15-23

DATE: 2018/02/02

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.V.

André White, Counsel for the Crown

David Nugent, Counsel for the Accused

HEARD: January 19, 2018

amended reasons for sentence

Lacelle, j.

INTRODUCTION

[1] The offender, Mr. V. has been found guilty of various sexual offences involving J. At the time of the offences, Mr. V. was the complainant’s step-father and she was between the ages of 8 and 14.

[2] The Crown says that a penitentiary sentence in the range of 5-6 years is necessary in this case. The Crown emphasizes various aggravating factors, such as the devastating impact of the offences upon the victim, the breach of trust, the lengthy period of time over which the abuse was committed, the victim’s young age when the abuse started, the repeated nature of the conduct, the fact that it involved all manner of sexual abuse apart from intercourse, and the coercion the offender achieved by buying her gifts. He highlights the absence of the mitigating factor of remorse, and additionally submits that the lack of remorse or insight by the offender heightens the concern about specific deterrence in this case.

[3] The defence argues that a penitentiary sentence in low range of 2-3 years is more than appropriate to address the principles of sentencing at issue here. Counsel highlights various factors in support of his submission. On the mitigating side, he points to the offender’s age, the fact that he is a first time offender, his support from his family and friends, his adherence to the conditions of his recognizance since 2014, the conclusion from a sexual behavior assessment that he has a low risk of reoffending, his rehabilitative potential, and the fact that the offender has not been diagnosed as a pedophile. Counsel also draws the court’s attention to the absence of many of the aggravating factors that can sometimes be present in cases like this, such as the use of violence or threats, and sexual activity as invasive as intercourse.

THE PRINCIPLES OF SENTENCING

[4] In considering these positions, I must apply various principles set out in the Criminal Code and in the case law. I must adhere to the fundamental principle of ensuring that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

[5] The Criminal Code sets out a number of additional principles of sentencing which must be considered in determining a fit sentence. The fundamental purpose of sentencing is confirmed in s. 718. That section provides that the sanction imposed by the court should 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.

[6] Section 718.2 of the Code identifies additional principles of sentencing, including that the court should increase or decrease the sentence to account for any relevant aggravating or mitigating factors.

[7] In this context, where the offence involves the abuse of a child, the jurisprudence has consistently emphasized that the purposes of denunciation and deterrence have primacy. This has now been codified in s. 718.01 of the Code. Given the primacy of these principles, the objective of rehabilitating the offender figures less prominently.

[8] Section 718.2 codifies the principle of restraint. It further directs that the court should impose a sentence that is similar to sentences imposed on similar offenders for similar offences in similar circumstances.

[9] These principles govern the court’s analysis. I turn now to the relevant facts and circumstances in this case.

THE CIRCUMSTANCES OF THE OFFENCES

[10] In my reasons for decision, I set out the facts I accepted in finding the offender guilty, and I will not repeat my full review of the evidence supporting those findings here. Suffice to say the offences were extremely serious. The offender was the step-father to the victim. He had known the victim from the time she was about 5 or 6 years old when he started dating her mother. He moved in with the victim’s family when she was about 8 years old.

[11] Over a span of six years, beginning when the victim was 8 years old, the offender coerced the victim into performing various sexual acts upon him and he performed various acts upon her. These included oral sex by the victim on the offender and vice versa, digital penetration of the victim’s vagina by the offender, and masturbation of the offender by the victim. In addition, the offender placed his penis on the victim’s vagina and between her breasts. He would also command her to show him her breasts. The offender would generally request a hug before initiating the sexual abuse.

[12] The sexual abuse occurred repeatedly and regularly when the victim’s mother was out of the house. On some days, it occurred multiple times in the same day. It ended when the victim was 14 years old. The abuse came to an end not because the offender decided to stop abusing the victim in this way, but because the victim’s brother overheard the offender asking the victim to show him her breasts.

THE CIRCUMSTANCES OF THE OFFENDER

[13] The court has the benefit of two reports in respect of the offender which shed light on his background and circumstances.

[14] The Pre-Sentence Reports describes the then 57 year old-offender as having had a positive upbringing. He has a close-knit family of origin who have been supportive of one another and who think highly of him.

[15] Prior to meeting the victim’s mother, he was married to another woman with whom he has two daughters. He and his former partner remain on good terms. The accused also has another daughter from another relationship and six grandchildren. He has been residing with one of his daughters recently. I acknowledge that the support of his family has been evident as his daughter has frequently accompanied him to court proceedings.

[16] The offender is now on social assistance. However, he has his grade twelve diploma and has demonstrated a strong previous work history working in the trades. As for other aspects of his character, collateral sources described the offender as kind, generous, big-hearted and someone who is always there to help others.

[17] While the offender has no criminal record, the author of the PSR concludes that he is not a good candidate for community supervision. The offender does not take responsibility for the offences. Because of this, he is reportedly not a candidate for treatment programs administered through the probation office.

[18] The offender also participated in a sexual behaviours assessment at the Royal Ottawa Hospital. The assessment was completed by Dr. Federoff. Various psychological tests were used in the assessment. The offender declined to undergo phallometric testing.

[19] In the opinion portion of his report, Dr. Federoff described the offender’s actuarial risk assessment as placing him in the “low” risk category with an approximate re-offence risk of 1.6% within 5 years. In regard to “DSM-5 Diagnoses”, he concluded that there were no definitive psychiatric diagnoses. He opined there was “possible pedophilia, but he completely denies having any problems and denies the offence”.

THE MITIGATING FACTORS

[20] There are a number of mitigating factors in this case.

The offender’s prior good character

[21] Mr. V. has no criminal record and he has demonstrated prior good character. He has been described in positive terms by those who know him. He has until recently had a strong work history. He has reportedly been a good father and grand-father. I consider all of these things as enhancing his rehabilitative potential.

The community support for the offender

[22] Mr. V. enjoys the support of his family. As a general rule, this kind of community based support is often helpful to offenders in their rehabilitation.

The time the offender has spent on pre-sentence bail

[23] I consider as well that the offender has spent almost 4 years on pre-sentence bail and he has abided by his conditions over that very lengthy period of time. This is also to his credit.

The offender presents a low risk of re-offending

[24] The sexual behaviours assessment concludes that the offender presents a low risk of reoffending. There is no evidence that the offender has committed any other similar offences, or indeed, any other criminal offences of any kind. I agree with counsel that this is relevant to my assessment of the need for specific deterrence in this case.

The absence of a diagnosis of pedophilia

[25] While Dr. Federoff opined that a diagnosis of pedophilia was possible, there is no diagnosis of pedophilia in this case. The Crown argues that I should consider that this conclusion was formed without the benefit of the results of phallometric testing. Given that the offender requested the sexual behaviours assessment, and did not participate in that aspect of the testing, the Crown says that this is an aggravating factor.

[26] It was the offender’s right to choose whether or not to participate in phallometric testing. While I am alive to the fact that this choice is a limit on Dr. Federoff’s assessment (as Dr. Federoff himself acknowledges in his report), I decline to find that the offender’s choice amounts to an aggravating factor. The state of the evidence before me is that there is no diagnosis of pedophilia.

[27] As to the significance of the absence of that diagnosis, I rely on the direction given in D.D. As noted at para. 40 by Modaver J.A. (as he then was), “[i]f the [offender] is not a pedophile and he does not suffer from some other psycho-sexual disorder that could account for his reprehensible behaviour, then arguably his degree of moral culpability rises significantly. Surely, that cannot translate into a mitigating factor weighing in his favour”.

[28] I note as well the absence of mitigating factors which often factor significantly into the court’s assessment of a fit sentence. In this instance, there is no evidence that the offender has any remorse for what he did or any insight into the harm he has caused. There was no plea of guilt. The victim was not spared the experience of testifying. I repeat, these are not aggravating factors: see for instance R. v. Pavich, 2000 CanLII 16971 (ON CA). But they are features of the case before me that I consider in determining where this case falls in the range of sentences for this kind of offence that has developed in the case law.

[29] I also agree with the Crown that the offender’s lack of remorse is relevant to the issue of specific deterrence. As was observed by Trotter J. (as he then was) in R. v. Vallada 2016 ONSC 887 at para. 17, a lack of remorse is not an aggravating factor. The accused is entitled to maintain his innocence. But the lack of remorse “requires that, in addition to general deterrence and denunciation, [the court] must also address specific deterrence”.

THE AGGRAVATING FACTORS

[30] I turn now to consideration of the aggravating factors in this case.

Victim impact

[31] J. has prepared a victim impact statement and describes very well the emotional impact the offences have had upon her. She describes feeling used by the offender, like she was his toy. She felt empty and alone. For years, she cut herself. She has wanted to die and has attempted suicide twice. She has been depressed and anxious and unmotivated to continue with school. She has abused drugs and alcohol to help her to forget what happened to her for “what seemed like forever”.

[32] Similar observations were made by the victim’s mother when she spoke with the author of the Pre-Sentence report. The victim’s mother indicates that J. missed a year in school after starting to use hard drugs and that she had constant nightmares. She also confirmed that the family moved after the offences because it was too difficult to remain in the home where the offences occurred.

[33] The impact of these offences for J. have been devastating and life-altering. This is a significant aggravating factor.

[34] As for the defence submission that there is mitigation in the signs that J. may be healing and has hope for overcoming what happened to her, I have difficulty seeing how her strength of character and her hard work in overcoming these offences is in any way a mitigating factor in determining the offender’s sentence.

Breach of trust

[35] The courts have repeatedly recognized that when persons in loco parentis abuse the children in their care this creates a profound breach of trust. Parliament has also recognized this as an aggravating factor under s. 718.2(a)(iii).

[36] The breach of trust is further aggravated in this case by the extreme vulnerability of the victim who was only 8 years old when the abuse started. She was defenceless and entirely dependent on the adults around her for her care. As her step-father, the accused was one of those adults. He should have protected her. Instead, he took advantage of her for his own sexual gratification. The impact of this type of breach of trust cannot be understated. The court understands that it is often life-long.

The victim was a child

[37] The jurisprudence and s. 718.2 (a) the Criminal Code both recognize that the fact that the victim was a child is aggravating.

[38] This is for good reason. Children are entitled to be protected by the adults around them. When they are not protected, but are instead victims of offences of this kind, their psychological immaturity makes them even more vulnerable to the impact of the offences.

The invasive nature of the assaults on J.

[39] While sexual touching of all kinds may have a profound impact on the victim, I consider that the offences were very invasive to the bodily integrity of J. The offences involved digital penetration of her vagina, oral sex performed by the accused upon her, and forced oral sex by J. on the offender.

Span of time the offences occurred

[40] The offences went on for a period of 6 years. This is an unspeakable eternity for a child. The harm the offender has caused in repeating his acts over so many years cannot be sufficiently described by the court. It is not an exaggeration to say that the offender’s conduct has robbed her of the childhood that she should have had. No sentence that the court could impose will get that back for her.

SENTENCES IMPOSED FOR SIMILAR OFFENCES

[41] Both parties have provided me with cases to assist in identifying the range of sentence imposed for similar offences. The Crown relies on R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), R. v. D.(M.), 2012 ONCA 894, [2012] O.J. No. 6059 (C.A.), R. v. G.A.G.,[2006] O.J. No. 67 (C.A.), R. v. J.L., 2009 ONCA 788, [2009] O.J. No. 4683 (C.A.), R. v. F.P., [2005] O.J. No. 2747 (C.A.). The post-D.D. cases provided by the Crown resulted in sentences ranging from 4 to 6.5 years. In addition to Pavich, the defence provides the court with the cases of R. v. R.B., [2003] O.J. No. 3450 and R. v. Vincent, 2014 ONSC 1068. The defence cases involved sentences of 2 years and 18 months respectively.

[42] None of the cases provided to me is exactly like this one. I have considered the factors raised by the defence that distinguish some of the cases relied upon by the Crown, such as the absence of threats that were present in J.L., and the abuse of multiple victims, as was the case in J.L. and F.P. Certainly I do not consider this case to be factually similar to D.D. Rather, I take guidance from the general principles set out in that case as to how to generally determine the appropriate range of sentence. As for the cases relied upon by the defence, I note that both involved cases where the offenders pleaded guilty. In Vincent, the abuse was also confined to a period of 3 days. In R.B., there is no reference to the direction given in D.D. about the appropriate range of sentence.

[43] The case of D.M. is of particular assistance. There are a number of factual similarities. This case involved an offender who abused his step-daughter when she was between the ages of 11 or 12 and 20 years old. The trial judge found that the acts were “almost unrelenting” and occurred many, many times over the course of the eight years. They involved sexual touching and digital penetration, but not intercourse.

[44] Decided in 2012, D.M. is also helpful because it confirms that D.D. has shifted the range in sentence for this type of offence. The court also reviews its post-D.D. cases to identify factors that have resulted in sentences of 5 years or more. It noted a list of factors that were present either alone or in combination in cases where the sentence was 5 years or more. Oral sex is listed as one of those factors. Because the facts in D.M. did not involve oral sex, but rather sexual touching and digital penetration, the court held that a sentence of 5 years was excessive and reduced it to 4.

[45] I find that this case presents with the additional aggravating factor of oral sex, which was performed by the victim on the offender, as well as upon her by the offender. It is also aggravating that the victim was even younger. At a minimum, this is because an eight year old child would be even more defenceless in the face of this kind of predatory conduct. Finally, I consider that some of the mitigating factors present in D.M. are not present here. The offender has not sought professional help and counselling for what he has done, unlike the offender in D.M., who was noted by the Court of Appeal to have shown some remorse, even if its genuineness was questionable.

CONCLUSION

[46] These offences have had a profound effect upon J. The court’s sentence must be one that both deters and denounces this extremely serious conduct. Given the nature of the aggravating and mitigating factors here, as both parties agree, a penitentiary sentence is warranted.

[47] As to the range of sentence that is appropriate, I have considered the cases provided by counsel and particularly the decision of the Court of Appeal for Ontario in D.D. at paras. 34-35 and 44-45. I am guided by the direction of the court at para. 44 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”.

[48] After consideration of this direction and the range cases provided by counsel, I conclude that a sentence of 5 years in the penitentiary is fit. That sentence shall be imposed concurrently on each count before the court.

[49] In addition, the sentence will include various ancillary orders. The offender will provide a sample of his DNA. He is subject to a weapons prohibition under s. 109 of the Code for a period of 15 years. I impose a SOIRA order for life. There will be an order pursuant to ss. 161(a), (a.1), (b) and (c) of the Code for 15 years. In particular, pursuant to s. 161(c), the offender shall have no contact with a person under the age of 16 unless the offender does so under the supervision or with the express consent of of that person’s parent or guardian who has knowledge of the offender’s convictions.

[50] Finally, there will be an order prohibiting the offender from having any contact with J. and her immediate family while he is in custody.

The Honourable Madam Justice Laurie Lacelle

Released: February 2nd, 2018

COURT FILE NO.: CR-39700-15-23

DATE: 2018/02/02

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN REGARDING THE IDENTITY OF THE (WITNESSES OR COMPLAINANT) IS PROHIBITED FROM PUBLICATION BY ANY METHOD PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

HER MAJESTY THE QUEEN

– and –

J.V.

amended REASONS FOR sentence

The Honourable Madam Justice Laurie Lacelle

Released: February 2nd, 2018