CITATION: R. v. H. (T.S.), 2019 ONSC 2644
BY COURT ORDER MADE UNDER S. 486.4(1) OF THE CRIMINAL CODE, INFORMATION THAT MAY IDENTIFY THE PERSON DESCRIBED IN THIS JUDGMENT AS THE COMPLAINANT MAY NOT BE PUBLISHED, BROADCAST, OR TRANSMITTED IN ANY MANNER.
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T. S. H.
Accused
Anya Kortenaar, for the Crown
Elena Davies, for the Accused
HEARD: April 18, 2019
REASONS FOR JUDGMENT RE SENTENCING
Aitken J.
Nature of the Offences
1On January 16, 2019, I found T.S.H. guilty of the following offences:
Having sexual intercourse with C.G. between January 1, 1969 and April 15, 1971, while knowing that she was his sister, contrary to s. 142 of the Criminal Code, R.S.C. 1953-54, c. 51, as it existed at that time.
Having sexual intercourse with C.G. between January 1, 1978 and January 2, 1983, while knowing that she was by blood relationship to him his sister, contrary to s. 150(2) of the Criminal Code, R.S.C, 1970, c. C-34, as it existed at that time.
Having sexual intercourse with H.B. between July 15, 1971 and December 31, 1979, while knowing that she was his sister, contrary to s. 150 of the Criminal Code, R.S.C, 1970, c. C-34, as it existed at that time.
2In my Reasons for Judgment (R. v. H. (T.S.), 2019 ONSC 306), I set out in detail the context in which these offences occurred and the circumstances of the offences. I will not repeat those details here but simply refer back to my earlier Reasons.
Positions Advanced by Crown and Defence Counsel
3Crown counsel is seeking a sentence in the range of two years each for the offences against C.G. and H.B., with the sentences being served consecutively, for a total sentence in the range of four to five years.
4Defence counsel is seeking a conditional sentence with the possible addition of a probation order of up to three years which could see T.S.H. under some form of supervision for up to five years.
5The maximum sentence that applied to each of these offences on the dates on which they occurred was 14 years. That reflects how seriously this behaviour was considered at the time. In the most recent incest provisions in the Criminal Code (R.S.C. 1985, c. C-46, s. 155), the maximum sentence remains 14 years, showing society still believes that this type of offence is very serious.
Jurisprudence
6Both Crown and Defence counsel referred me to numerous cases dealing with incest. Understandably, no case was directly on point. The sentences in these cases ranged from nine months conditional (one incident when the offender was 21 and the victim was 17 years of age) to four and a half years (30 months for one sister (aged 9-13) repeatedly raped by her brother (aged 14-18) and 24 months for a second sister (aged 19) raped by her brother (aged 24) and a friend).[1] In a number of cases, the court stated that the range of sentence for the offence of incest involving sexual intercourse and an offender who is in loco parentis is between three and five years. [2] There is no proclamation from an appellate court establishing a standard range of sentence for non-consensual incest between adult siblings.
7Certain principles can be gleaned from the jurisprudence to which I was referred:
The primary objectives to be met on a sentence for sexual abuse and incest are denunciation and general deterrence.[3]
In the case of historical offences, the passage of time does not diminish the need for a denunciatory sentence given the seriousness of this type of crime.[4]
That being said, the passage of time, during which the offender has not reoffended, may be a mitigating factor.[5]
The more incidents of incest that occurred, the longer the sentence the offender may face.[6]
The age of the victim at the time of the incest is a relevant factor with higher sentences being imposed if the victim is under sixteen years of age.[7]
The age of the offender at the time of the incest may also be a relevant factor, where the offender is young and the difference in age between the offender and the victim is small.[8]
In regard to sibling incest, non-consensual incest is far graver than consensual incest.[9]
Incest between siblings is a breach of trust, although not necessarily as serious as an incestuous relationship involving a breach of parental trust.[10]
That being said, older siblings can become in loco parentis in a variety of circumstances, one being where there is some element of dependency and vulnerability between the older and younger sibling not dissimilar to what exists within parent/child relationships.[11]
Conditional sentences are legally available in regard to historical incest offences; the real question is whether a conditional sentence would be appropriate after considering all of the circumstances of the offence and the offender.[12]
Gladue considerations may lead to a reduction of the sentence that otherwise would be imposed on an aboriginal offender convicted of incest.[13]
As with all offences, a guilty plea and genuine remorse may act as mitigating factors.[14]
Generally, sexual assaults that are separate, unrelated, transactions should receive separate consecutive sentences. There should be no substantial discount for victimizing multiple victims. However, the totality principle should then be applied to the global sentence.[15]
Pre-sentence Report
8The following information was provided in the Pre-sentence Report.
9T.S.H. is 70 years of age. He lives in Langley, British Columbia, with his common law spouse, J.K.
10In my Reasons for Judgment released in January, 2019, I described in detail the general living arrangements in the H. family as T.S.H. and his siblings were growing up. T.S.H. confirmed much of this information, and much of the chronology, when speaking to the probation officer who authored the Pre-sentence Report. The Pre-sentence Report contained additional information, for example, that S.H. had a temper and had, on occasion, beaten T.S.H. when he was disobedient.
11T.S.H. quit school after grade 8 in order to work. Subsequently, he obtained his high school diploma. T.S.H. worked in various occupations throughout his life, primarily as a truck driver, a warehouseman, and the manager of a maintenance business. Due to health issues, T.S.H. retired in 2012. T.S.H. and J.K. currently survive on Canada Pension Plan and Old Age Security benefits.
12T.S.H. recounted the various relationships with women in which he had been as a young man, all of which had been short-lived. I accept the evidence of T.S.H.’s sisters that he had a daughter with his first spouse even though T.S.H. told the probation officer that they had no children. T.S.H. had a second daughter with his next partner. There were a number of other women in T.S.H.’s life until he moved in with J.K. in approximately 1986.
13J.K. had four children from a previous relationship. T.S.H. became the children’s step-father. T.S.H. has a particularly close relationship with the youngest of J.K.’s children, K.K., his wife, and their two sons. K.K. described T.S.H. as being a positive influence in his life, and his wife described how their sons miss seeing their step-grandfather due to the bail restrictions. C.B., K.K.’s previous partner, confirmed that T.S.H. was an active and beloved grandfather to their daughter, who is now 19 years old, and that their daughter very much misses T.S.H. Although T.S.H.’s daughter from an earlier relationship moved in with T.S.H. and J.K. when she was 11 years old because she was not being cared for adequately by her mother in Ottawa, that daughter stopped having any contact with T.S.H. after the current charges came to light. Nevertheless, she wrote a letter in his support to express her concern about his medical status and to urge the court to let him serve any sentence in the community.
14An inconsistent picture was portrayed regarding the extent to which T.S.H. has a violent or aggressive nature. H.B. described him as being physically violent with women and as being aggressive whenever he did not get his own way. C.G. also described T.S.H. as being violent with women and, at trial, recounted an occasion in British Columbia when she and her husband saw T.S.H. punch J.K. in the face. T.S.H.’s oldest sister, A.L., recalled T.S.H. getting into bar fights in his early twenties. T.S.H.’s older sister, M.H., recalled that, when T.S.H. was young, he was “always picking fights” and being quite aggressive.
15In contrast to this portrayal of a man with violent and aggressive tendencies, J.K. and K.K. described T.S.H. as never being abusive or violent with either of them. None of the collateral sources residing in British Columbia expressed any concern about T.S.H. being aggressive, abusive, or violent in the past or currently, though some noted that, since these charges were laid against him, he is quicker to lose his temper. The same sources reported a concern about T.S.H. seeming more depressed, despondent, and forgetful since charges were laid.
16Further inconsistencies exist in regard to the information provided to the probation officer respecting T.S.H.’s use of alcohol and drugs – something that must be considered because the incidents of incest occurred when T.S.H. had consumed alcohol.
17After she had left the H. home and was married, M.H. recalled T.S.H. calling her over the years from time to time when he was drunk. A.H. also confirmed that T.S.H. was a big drinker and H.B. described him as having a drinking problem.
18A rather different picture of his drinking habits was offered by T.S.H. who stated that, although he used to drink when he was younger, it was never problematic (aside from one incident of drinking and driving when he was 18), and none of his previous spouses had ever complained about his drinking. He reported that he stopped drinking when he was 56, primarily due to J.K. not liking it.
19C.G. advised that T.S.H. was a drug user in the past and used to use drugs intravenously. She reported being aware of T.S.H.’s continued drug use when he was living in British Columbia, and of J.K. being well aware of that. M.H., as well, stated that T.S.H. had used drugs when he was living in Ottawa and that was one of the reasons why she kept her distance from him. T.S.H. denied that he had ever used illicit drugs.
20Normally, a sentencing court will not consider allegations in a pre-sentence report of other potential offences by the offender not before the court. I have recounted the information from T.S.H.’s siblings about his violent behaviour and his abuse of drugs and alcohol in the past because that information stands in stark contrast to the portrait of the man being presented by T.S.H. himself, J.K., K.K., and K.K.’s wife. The highly divergent information presented to the probation officer about T.S.H.’s aggressivity, or lack thereof, and about his use of alcohol and drugs presents challenges when I am considering whether a conditional sentence would be appropriate in the circumstances of this case. More will be said of this shortly.
Medical Status of T.S.H.
21A medical report relating to T.S.H., and prepared by Dr. Michael McCann for the purpose of determining T.S.H.’s employability, was filed on the sentencing. The report indicates that T.S.H. has been diagnosed with multi-infarct dementia, osteoarthritis, and ischemic heart disease. Dr. McCann does not expect any improvement in T.S.H.’s condition; in fact, he anticipates a further decline in his cognitive abilities. Dr. McCann assessed that T.S.H. has been severely impacted by his medical impairments in regard to memory, concentration and reasoning skills; mobility; and exercise tolerance. As a result, he suffers a permanent or chronic mental or physical impairment that is a barrier to his finding and retaining employment. As part of his assessment regarding T.S.H.’s mental health, Dr. McCann noted that T.S.H. has some emotional and aggression issues that impair his employability.
22In a separate note, Dr. McCann advised that T.S.H. has impaired judgment, as well as impaired memory and cognitive abilities.
23The letter submitted by Crown counsel from Correctional Service Canada, although not specifically commenting on T.S.H.’s medical conditions, states that Correctional Service Canada is used to dealing with inmates who have medical conditions such as those experienced by T.S.H. I am satisfied that, if sentenced to a period of incarceration in a correctional institution, T.S.H. would receive the on-going medical care and treatment that he requires.
Victim Impact Statements
24In her Victim Impact Statement, C.G. described the very difficult life she endured from age 16 onward, after she was sexually assaulted by her brother, T.S.H. She ended up on the streets of Toronto, as she had nowhere to go after she left T.S.H.’s room. She became addicted to hard drugs. She ended up in a physically and emotionally abusive relationship. She had trouble keeping a job. She had trouble making friends. C.G. advised that, following the incest, she felt dirty and ashamed and resorted to using bleach to cleanse her body.
25H.B.’s Victim Impact Statement focused on her childhood and how she never felt good enough for anyone. Clearly, the neglect and abuse she suffered in the H. home while she was growing up led to her having numerous challenges: difficulty learning at school, getting drawn into abusive relationships, difficulty getting and keeping a job, alcohol addiction, depression, and child protection interventions. H.B. did not separate out from this constellation of problems the specific impact the incident of non-consensual incest had on her life. But it is not difficult to conclude that T.S.H.’s sexual assault on H.B. sunk her mental health and resilience to new lows and further reduced her already extremely low self-esteem.
26K.E., H.B.’s daughter, filed her own Victim Impact Statement. She described all of the challenges she faces after having been parented by a mother who had so many struggles of her own that she was often not present to parent K.E. and her siblings or, even if present, could not model effective parenting behaviour. K.E. described the impact on her of repeatedly witnessing violence in the home (including that between T.S.H. and her mother), of being in and out of foster care, of having to parent her younger siblings because her mother was unable to do so, of losing trust and faith in society, and of struggling on a daily basis with a variety of demons. Life has not been at all easy for her. As with H.B.’s Victim Impact Statement, it is very difficult to identify from the myriad of challenges facing K.E., what negative elements in her life arose from or were worsened by T.S.H.’s sexual assault of H.B.
27What is very important to state, however, is that non-consensual sex is never “just sex”, as T.S.H. repeatedly tried to tell his sister, C.G. It is a profoundly disturbing assault on the victim - one that undermines her right to control who has access to her body and, consequently, undermines her sense of self-worth and her personal dignity. Non-consensual sex has a long-lasting impact on the victim – one that is very difficult to parse out from the impact of other possible challenges and defeats in one’s life – but one that is nevertheless always present, affecting one’s ability to value oneself, to trust others, and to form healthy relationships. It hangs over the victim’s head like a shroud that cannot easily be cast aside. The impact can seep down to the next generation by suppressing the victim’s ability to parent. That is what happened here.
Aggravating and Mitigating Factors
28The court is obliged to consider any aggravating or mitigating circumstances before imposing sentence.
Aggravating Factors
29There are a number of aggravating factors in this case:
T.S.H. was four years older than C.G. and a year and a half older than H.B. Prior to the incidents of incest that occurred, T.S.H. had placed himself in a position of power and intimidation toward both of his younger sisters through his sexual advances toward them when they were children and teenagers. This had happened over a number of years when they had all been living together in Deschênes, Stittsville, and, ultimately, Ottawa. Both sisters were made easier targets for incest due to the earlier treatment they had received from T.S.H. T.S.H. is not being sentenced for any offences he may have committed as a youth, but his behaviour as a youth set the stage for his actions as an adult. I am referring to that behaviour to explain why C.G. and H.B. were particularly vulnerable in their relationships with T.S.H. – a vulnerability that he was well aware of and of which he took advantage.
At the time of the first incident of incest against C.G., she was only 16 years of age, and was without resources. T.S.H. was 20 years of age. He was working and had his own accommodation. He was independent and was in control of his life. C.G. was in very different circumstances, with no job and no residence.
At the time of the first incident of incest against C.G., T.S.H. had invited C.G. into his room at the boarding house to offer her refuge when she did not have anywhere else to stay. T.S.H. was purporting to act as an older, protective, brother who was helping C.G. out when she could not turn to her mother or father for assistance. C.G. was vulnerable and dependent on him at the time. T.S.H. took advantage of that and undermined the trust she had placed in him.
At the time of the second incident of incest against C.G., T.S.H. again took advantage of C.G.’s vulnerability. She was staying in H.B.’s basement because she had nowhere else to stay. She was not in control of the situation in terms of where she could sleep and whom H.B. allowed into the house.
At the time of the incident of incest against H.B., T.S.H. had invited H.B. to stay with him and his first spouse when H.B. and her two young children had nowhere else to stay. He offered a place of refuge to his vulnerable and dependent younger sister. He then abused the trust she had placed in him by sexually assaulting her, knowing that she had nowhere else to go with her two infants.
In both instances of incest against C.G., C.G. attempted to resist and T.S.H. placed a hand over her mouth. At the time of the first incident, C.G. described T.S.H. as weighing about 200 pounds and her weighing only 110 pounds. He placed his full weight on her, thereby preventing her to physically resist in any meaningful way.
T.S.H. did not use a condom when he forced himself on C.G. in his boarding house room.
During the incident of incest against H.B., T.S.H. used force to get what he wanted.
At the time of the incident of incest against H.B., H.B.’s two young infants were present.
The incest had a profound and lasting impact on both C.G. and H.B. There was a further ripple effect on H.B.’s daughter, K.E. This was described in detail in the Victim Impact Statements.
30Certain aggravating factors are not present in this case:
The sexual intercourse did not occur when the victims were young children.
T.S.H. has no related criminal record.
This is not a situation where the offences were committed while T.S.H. was on bail or subject to a probation or prohibition order.
There is no indication that T.S.H. has breached any bail conditions while awaiting trial and sentencing.
Mitigating Factors
31There are a few mitigating factors:
T.S.H. grew up in the same dysfunctional home where H.B. and C.G. were raised. Thus, he was also the victim of inadequate parenting and supervision.
T.S.H. has only one offence on his criminal record – a conviction for dangerous driving in 1972. He has never been convicted for any other sexual offences.
T.S.H. worked over the years to support himself and, latterly, his spouse, J.K., and her children.
T.S.H. complied with all of his bail conditions over the last four years, suggesting that he is capable of complying with conditions if residing in the community. That being said, his bail conditions were lenient.
T.S.H. has a number of significant medical conditions that could render a period of incarceration challenging for him, despite receiving necessary medical care. As well, his mobility issues suggest that specific deterrence may not be a necessary objective of sentencing.
T.S.H. has the support of his spouse, his step-son’s family and his daughter. By their accounts, he has played a positive role in their lives and in the lives of his grandchildren.
32There are a number of mitigating factors that are not present in this case:
T.S.H. did not plead guilty – thereby necessitating a trial where his sisters were obliged to testify.
T.S.H. has not shown any remorse for his behaviour.
The incidents of incest were not consensual.
This was not the situation where there was just one incident where the offender quickly expressed his remorse, perhaps sought counselling, and changed his attitude and behaviour. T.S.H. persisted with his attitude that he was entitled to have sex with his sisters when the opportunity arose because, after all, “it was just sex”.
Conditional Sentence
33Defence counsel urges me to consider a conditional sentence for T.S.H. She pointed to a number of factors that would support the appropriateness of a conditional sentence for T.S.H.:
The likelihood of T.S.H. reoffending is reduced due to his medical challenges, which were described above.
There are several cases where sentences of less than two years were imposed for adult incest.
There are several cases where conditional sentences have been imposed in incest cases.
T.S.H. complied with his bail conditions for approximately four years, without incident.
T.S.H. has the support of his family in British Columbia. He could continue residing with his spouse, J.K., and continue to receive the support of his step-son and his family.
T.S.H. would be willing to attend the Forensic Sex Offender Program offered through the Forensic Psychiatric Services Commission in British Columbia. This program could be available to T.S.H. both if he served his sentence in a provincial institution and if he served his sentence in the community. This program uses a cognitive behavioural therapy model that includes group discussions, individual exercises, written assignments, and individual presentations to the group. It teaches self-management and deals with such topics as cognitive distortions and management strategies, empathy and victim awareness, intimacy, relationships and social functioning, emotional well-being, and sexual arousal and fantasy. I question the usefulness of this program for T.S.H., considering his cognitive impairment and reduced ability to concentrate and reason.
Correctional Service Canada operates a national Sex Offender Program for high or medium intensity offenders. This program may not be well suited to T.S.H. considering his age, his medical conditions, and the relatively low risk he presents to reoffend. In any event, T.S.H. may not benefit from this type of programming, due to his cognitive challenges.
34One concern I have as a result of the very divergent descriptions of T.S.H. provided by his siblings and by his family in British Columbia is that T.S.H.’s family in British Columbia may not be providing accurate information about his behaviour because, for a variety of reasons, they do not want to see him incarcerated and unavailable to the family. It is difficult for the court to assess the true risk presented by T.S.H. when faced with such different descriptions of how he conducts himself. Although T.S.H.’s medical conditions may reduce his ability to act out any sexual aggression, that does not necessarily mean that the aggressivity is not there or that he would not act on it if given the opportunity to do so.
35Ultimately, I return to the most important objectives in incest cases: denunciation and deterrence. The victims here have lived a lifetime of pain – in part, due to being sexually assaulted by their older brother. This type of behaviour must be denounced in the strongest terms. For this reason, I have concluded that a conditional sentence in the circumstances of this case, would be inadequate to express the level of denunciation felt by society for this type of crime. Although this involved sibling, and not parental, incest, there are aspects of the offences – particularly the first assault against C.G. – that are akin to parent/child incest. An older sibling was taking advantage of a vulnerable and dependent teenager who had looked to him for support.
Disposition
36I sentence T.S.H. to three years incarceration broken down as follows: two years for the incidents of incest against C.G. and one year for the incident against H.B. Had T.S.H. been younger and not suffering from the medical conditions outlined above, I would have sentenced him to four years incarceration: two years for the first incident involving C.G, one year for the second incident involving C.G, and one year for the incident involving H.B.
37T.S.H. has spent 44 days in pre-sentence custody. Both counsel agree that credit on the basis of one and a half days to one for this period would be appropriate. Consequently, T.S.H. shall receive credit for 66 days which, rounded off, leaves a balance of 34 months to be served.
Ancillary Orders
38The following additional ancillary orders are made:
A weapons prohibition order for 10 years under s. 109 of the Criminal Code;
A DNA order under s. 487.051(3) of the Criminal Code. Although T.S.H. does not have a lengthy criminal record, or a criminal record for previous sexual offences, he has now been convicted of three serious sexual offences, namely incest, that occurred over a number of years. The length of time between the offences, the fact that there were two victims, and the fact that he repeated the offence of incest against C.G. suggest that T.S.H. had a well-established penchant to force himself on others to satisfy his sexual needs, even if that meant breaching well-established norms against sexual intercourse between siblings. T.S.H. used force in order to get what he wanted and, as he was forcing himself on his victims, he did not care if what he did hurt them physically or psychologically – the one caveat being that he apologized to C.G. shortly after forcing anal intercourse on her when it was obvious this was causing her great pain. He showed no other remorse immediately following the incidents of incest involving both C.G. and H.B. Although the risk of T.S.H. reoffending sexually may be reduced due to his mobility limitations, the fact that the risk of reoffending may be minimal is not the governing factor in determining whether a DNA order should be made. In my view, the importance of protecting society against sexual offenders and incest offenders, through the assistance of DNA testing of T.S.H., now convicted of three incidents of incest, vastly outweighs any concern about T.S.H.’s rights to privacy and security of the person. T.S.H. has raised no specific concerns as to how DNA testing would breach his privacy interests or the security of his person. His DNA can be taken in privacy immediately following the sentencing. There is no evidence to the effect that taking T.S.H.’s DNA will be painful for T.S.H. or will jeopardize his health or safety in any respect. Thus, I conclude that a DNA order in the circumstances of this case is in the best interests of the administration of justice; and
An order prohibiting T.S.H. from communicating, directly or indirectly, with C.G., H.B., and K.E. during the custodial period of his sentence.
39It is my recommendation that T.S.H. be permitted to serve this sentence in the province of British Columbia in a locale close to Langley so that he can benefit from ongoing contact with his spouse, J.K., and his step-children and grandchildren.
Aitken J.
Released: May 7, 2019
CITATION: R. v. H. (T.S.), 2019 ONSC 2644
COURT FILE NO.: 15-SA5153
DATE: 20190507
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
T. S. H.
Accused
REASONS FOR JUDGMENT RE SENTENCE
Aitken J.
Released: May 7, 2019
1R. v. G.A. (1998), 61 O.T.C. 199 (Ct. Gen. Div.); R. v. R. J., [2003] O.T.C. 31 (S.C.), varied by Ont. C.A. and sentence varied to 4.5 years, [2003] O.J. No. 3458.
2R. v. L. (C.O.), 2010 ONSC 3792, 257 C.C.C. (3d) 562, affirmed by the Ont. C.A. 2012 ONCA 835, at paras 20-21.
3Ibid, at para. 26.
4R. v. Spence (1992), 1992 ABCA 352, 78 C.C.C. (3d) 451 (Alta. C.A.), at para. 10.
5Ibid.
6L. (C.O.), supra, note 2.
7R. v. B. (J.) (1990), 36 O.A.C. 307 (C.A.), at para. 5.
8R. v. K. (S.), [1992] O.J. No. 1 (C.A.).
9L. (C.O.), supra, note 2, at para. 21.
10K. (S.), supra, note 8, at para. 6.
11L. (C.O.), supra, note 2, at para. 21.
12R. v. Mehanmal, 2012 ONCJ 681, 270 C.R.R. (2d) 271.
13R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688; R. v. H. (D.A.), 2003 CanLII 48216 (ON CA), 168 O.A.C. 176 (C.A).
14R. v. W.M.M. (2005), 2006 CanLII 3262 (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A.), at para. 19.
15R. v. O.B., [2008] O.J. No. 4423 (S.C.), at para. 50.