Court File and Parties

COURT FILE NO.: 39700-16-78 DATE: 20181205 ONTARIO SUPERIOR COURT OF JUSTICE

IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCASTED OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA.

BETWEEN:

HER MAJESTY THE QUEEN – and – D.C. Defendant

Counsel: Elaine Evans, counsel for the Crown D.W. Johnson, counsel for the Defendant

HEARD: Trial dates: January 22,23,24,25/18 March 19,20/18

reasons for sentence lacelle, j.

Introduction

[1] D.C. has been found guilty on two counts relating to the sexual abuse of his younger half-sister, T. The offences occurred while the offender was 18 and 19 years old. The victim was 5 when the abuse started and 6 when it ended. The offences involved repeated acts of intercourse over a period of 18 months while the accused was in a caregiving role towards T.

[2] The offender appears before me today to be sentenced on one of those counts. The other is stayed.

[3] The defence submits that the appropriate range of sentence in this case is 3-5 years imprisonment. Counsel relies on the case of R. v. B.(J.) (1990), 36 O.A.C. 307 in support of that submission. Counsel urges the court to consider the offender’s relatively young age and to impose a sentence that will not destroy his chances of becoming a productive member of society. Counsel suggests that a sentence of 3 years would best accord with those objectives.

[4] The Crown seeks a sentence of 5-6 years and various ancillary orders. The Crown relies on R. v. D.M. 2012 ONCA 520 at paras. 33-44 and the direction from our Court of Appeal that “where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary”. Crown counsel submits that the imposition of the minimum sentence suggested by the Court of Appeal would reflect the sentencing factors in this case, including the accused’s young age at the time he committed these offences.

The Principles of Sentencing

[5] 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.

[6] 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.

[7] 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.

[8] 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.

[9] 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.

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

The Circumstances of the Offences

[11] The offender abused the victim over a span of time that pre-dated and continued after his 18th birthday. The abuse occurred in the home they shared with their father during times when the offender had been asked to look after his sister and the adults were out of the house.

[12] The offender had intercourse with his sister in various locations. The abuse would end when he ejaculated. The victim described redness to her vagina and discomfort while urinating following the abuse.

[13] For a period of about 18 months following the offender’s 18th birthday, the abuse occurred as often as every two weeks. At trial I found that the abuse was a regular and repeated occurrence throughout those 18 months. It is only the conduct after his 18th birthday that is the subject of sentencing today.

The Circumstances of the Offender

[14] The evidence at trial provides me with some information about the offender’s background. A pre-sentence report provides me with additional information. At the time it was prepared, the offender was 23 years old.

[15] The offender came to Canada from Jamaica, where he had lived with his mother until the age of 16. His family struggled financially and he had what he described as a “rough childhood” because of that. However, he said his mother was able to provide him with the necessities of life, even though some days he missed school because “it was between food and school”. He reported there was no abuse in the family home. The offender remains in contact with his mother and siblings in Jamaica.

[16] To improve his quality of life and his opportunities, the offender moved in with his father at the age of 16. At that time he started attending a local high school. He reports he did not have any issues with either students or teachers but he was suspended for attending school under the influence of marijuana. He was very involved in his high school athletics teams and played football, soccer and rugby.

[17] The offender reports he was close to his father when he arrived in Canada but that the relationship has become strained because of his drug use and choice of negative peers. The offender’s father confirms that he distanced himself from the offender over time as he did not agree with or support his life choices.

[18] The offender admits that drug use is an issue for him, though I note it is not a factor in the offences before me. Nevertheless, in terms of the rehabilitative prospects of the accused, this history is concerning, particularly the offender’s use of drugs like speed, crack and cocaine. The offender recognizes that this drug use is connected to “spending time in the wrong crowd” and that his drug use has negatively impacted his life. He says he will distance himself from criminal peers once released and intends to lead a drug free life. He has yet to receive any treatment for his substance abuse. He is open to treatment for this and other issues.

[19] The offender has a three year old daughter. He ended the relationship with the child’s mother 6-7 months after his daughter was born. While the offender reports he had some contact with his daughter after that, he has had no contact with her since he was placed in custody. Counsel confirms there is no family court order relating to the offender’s access to his daughter.

[20] The defence concedes that the pre-sentence report has some negative aspects, insofar as it sets out the offender’s convictions for a number of offences since these offences were committed, and his involvement with a peer group that appears to have contributed to his use of illicit drugs. As emphasized by the Crown, the report also makes clear that the offender has no insight into his offending behavior. There is no evidence of remorse or empathy for the victim. His belief that the victim would be comfortable having contact with him demonstrates that lack of insight. I agree with the Crown that while none of this is an aggravating factor in sentencing, it is relevant to his prospects for treatment and specific deterrence: R. v. Vallada 2016 ONSC 887 at para. 17.

[21] There are some positive aspects to the report, however. It confirms that the accused has been successful in obtaining his high-school diploma and that he has attempted some course work at the college level. He has been employed, including during his high school years, which demonstrates a good work ethic and his ability to contribute to society. The offender confirms he hopes to maintain employment upon his release and possibly follow through with his college program. The author of the pre-sentence report notes, however, that he has not followed through on these intentions while on probation since the commission of these offences and has been supported by Ontario Works.

[22] Counsel and the offender confirm they do not anticipate any immigration consequences as a result of any sentence the court would impose.

Mitigating Factors

[23] In mitigation of sentence, I consider that at the time of these offences the accused had no prior criminal record. He was a first and youthful offender.

[24] The accused’s status as a youthful offender facing his first term of significant imprisonment requires careful consideration by the court. R. v. Priest, 93 O.A.C. 163 affirms at para. 18 the long-standing principle in criminal law that a sentence imposed on a youthful first offender “should constitute the minimum necessary intervention that is adequate in the particular circumstances”. Sections 718 (c), s. 718.2(d) and (e) of the Code all reflect aspects of the law discussed in Priest.

[25] I also consider the offender’s history. The difficulties for his family in Jamaica led him to leave his childhood home in search of better opportunities. He has experienced disruption in his relationships with his mother and siblings in beginning a new life in Canada in his teen-aged years. These circumstances have no doubt presented challenges to him as a young adult.

[26] I also consider that while the offender has not always followed through on his intentions to lead a more productive life, he is still a young man who can learn from his mistakes. He has demonstrated that he can succeed at school and that he is willing to work. He is open to counselling and treatment for his issues. He has real and meaningful rehabilitative potential. He appears to have the support of his mother and siblings, which will assist him in living a more productive life in future.

The Aggravating Factors

[27] There are a number of aggravating factors in this case. The offences breached T.’s trust in her older brother. He was in a position of trust towards her not only because he is her sibling, but because he was acting as her caregiver when the abuse took place. Parliament has recognized the abuse of a position of trust as an aggravating factor in sentencing under s. 718.2(a)(iii) of the Code.

[28] The offence also had a significant impact upon the victim (s. 718.2(1)(iii.1) of the Code). T., who was 9 years old at the time she testified at trial, has prepared a Victim Impact Statement which confirms the significant impact upon her of both the offence and the court process. She describes feeling sad and that it was hard for her to smile like she used to. She asked her parents to get rid of the couch where some of the abuse happened because it brought back bad memories. She has to deal with these memories surfacing when she is at school. She has attended counselling to help her with all of this. T.’s father confirms in the pre-sentence report the stress experienced by his daughter. He is concerned that were she to have contact with the offender this would spark memories for her and he does not want her to experience these events again.

[29] T. is still a young child. Her Victim Impact Statement articulating the impact of the offence upon her reflects that fact poignantly. The court is mindful that the impact of the offence may change for her as she matures and has the potential to be life-long.

[30] The fact that T. was a child at the time of the offences is an aggravating factor (s. 718.2(a)(ii.1) of the Code). The fact that she was so young when she experienced this abuse is even more aggravating.

[31] The nature of the abuse T. suffered is also aggravating. The offences involved intercourse to the point of ejaculation by the offender. They were profoundly invasive of her bodily integrity.

[32] Finally the offences were a regular and repeated occurrence for a period of 18 months. T. should not have been abused even once. A sentence for one act of intercourse would be significant. The repetition of this conduct on a regular basis makes its impact even worse and heightens the offender’s moral blameworthiness.

Analysis and Decision

[33] 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.

[34] 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 R. v. D.D., [2002] O.J. No. 1061 (C.A.) 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”.

[35] D.M. confirms the range suggested by the defence no longer applies in circumstances like these. D.M. makes clear that “where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary”: see para. 44.

[36] I consider as well the comments of the court in R. v. Woodward, 2011 ONCA 610 at paras. 72-78 and the direction at para. 75 that the focus of a sentencing hearing for offences like these should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.

[37] Counsel were unable to find any reported cases involving an offender of a similar age who had committed similarly serious offences. I have not had the benefit of the reasoning of any other court in a case involving both the range set for this type of case in D.D. and the principles that apply to youthful offenders as set out in Priest. While Priest itself makes clear that the principles generally applicable with respect to youthful first offenders yield to other principles in cases involving very serious offences and offences involving violence (see Priest at para. 17), the various codifications of the principle of restraint in the Criminal Code confirm the Priest principles continue to warrant consideration in all cases. I consider that the offender was a very young adult at the time of the offence and that the sentence in this case should be the “minimum necessary that is adequate in the particular circumstances”: Priest at para. 18.

[38] Considering all of these principles, the significant aggravating factors in this case, the relatively modest mitigating factors, and the overarching requirement that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender, I conclude that a sentence at the lowest end of the minimum range identified as generally appropriate by the Court of Appeal in D.M. is fit.

[39] The accused has served 127 days of pre-sentence custody. Counsel are agreed that the accused should receive credit for those days at a rate of 1.5 per day, resulting in a credit of 191 days. For the sake of simplicity, I accord a pre-sentence credit of 7 months. The resulting sentence imposed is therefore 4 years and 5 months from today’s date.

[40] 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 10 years. I impose a SOIRA order for life in accordance with s. 490.013(2.1).

[41] There will be an order pursuant to s. 161 of the Code for 20 years. I make this order for this duration because there is no evidence at this time that the accused has any insight into his offending behaviour. At this time, he has not received any treatment that might further assist him with that insight. I am mindful that Mr. C. has a child with whom he may seek to develop a relationship at some point in the future. In that event, he may apply for a variation of this order pursuant to s. 161 (3), at which time his circumstances and the ongoing need to protect the safety of the public may be re-assessed.

[42] A victim fine surcharge of $200 is imposed.

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

The Honourable Justice Laurie Lacelle Released: December 5, 2018