Court File and Parties

COURT FILE NO.: CR-19-30000147 DATE: 2019-06-06 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – A.C. Defendant

COUNSEL: Leslie Zamojc, for the Crown John Filiberto, for the Defendant

HEARD: February 26, 27, 28, March 1, 4 and 5, 2019

Reasons for Sentence

BOUCHER J.

Overview

[1] These are the Reasons for Sentence in R. v. A.C. The offender was found guilty by a jury on March 5, 2019 of one count of sexual assault contrary to s. 271 of the Criminal Code, and two counts of sexual interference contrary to s. 151 of the Criminal Code, in relation to offences against his stepdaughter. The offender is also being sentenced on one count of assault contrary to section 266 and one count of assault with a weapon contrary to s. 267 (b), in relation to offences against his son.

[2] These reasons have been anonymized to protect the identities of the victims in accordance with the publication ban in this case.

Circumstances of the Offence

[3] The sexual offences against his stepdaughter were tried by a jury. Following a jury trial, disputed facts that are not essential to the jury’s findings are to be resolved in the manner dictated by s. 724(3) of the Criminal Code. The parties have taken no issue that the trial record and their submissions were sufficient for me to use as the factual basis for this sentencing, and have urged me to review those items in determining the facts for this sentencing.

Factual Findings Based On Evidence at Trial

[4] I accept the victim’s evidence as to the abuse suffered by her and her brother. The victim testified that she had been sexually abused the offender, who was her stepfather, from the time she was approximately six or seven years old until she was approximately 10 to 12 years old. She said that the abuse consisted of sexual touching of her breasts and vaginal area, digitally penetration of her vagina, and oral sex being performed on her. The offender was the parental caregiver responsible for looking after her and her brother while her mother was at work. The abuse occurred while her mother was at work and occurred on a regular and repeated basis throughout the time frame. In addition to the sexual abuse, the offender subjected the victim to verbal and physical abuse, name-calling, and threats. During the same period, she also witnessed the offender inflicting physical abuse on her little brother.

[5] The victim’s mother corroborated the victim’s evidence that the offender was the primary caregiver, except for a brief period of childhood where the mother looked after the victim at her place of work.

[6] The offender testified and denied the allegations. He also denied ever tickling or hugging the victim and denied ever entering her bedroom at any point in her childhood. He admitted the physical abuse on her brother, his son, including the assault with a weapon, explaining that it was excessive strapping for disciplinary purposes. He pled guilty to the physical abuse allegations regarding the brother prior to the start of the jury trial.

[7] I accept all of the victim’s evidence regarding the circumstances of the offences. Her evidence was compelling, specific as to important details regarding the abuse and described in a manner appropriate to her age now and at the time of the offences. She provided a detailed progression of the offending and specifics as to the nature of the touching, the locations and circumstances. All instances were described in a logical and cohesive manner, as occurring in the privacy of the home, when her mother was gone, and when the offender could do what he chose to because of his position of authority. She was direct, not evasive and admitted when previous statements were inaccurate.

[8] The offender’s evidence was necessarily rejected the jury in light of their verdict, which would have included the defence theory that the victim invented the allegations in order to break up her parents’ relationship. In light of the jury’s verdict, it is apparent that they accepted the victim’s evidence and determined that any inconsistencies in the victim’s evidence did not undermine the main features of the overall account of abuse. I come to the same conclusion.

[9] The victim’s description of the offender’s childcare duties was largely supported by her mother’s evidence and provided ample opportunity for the offender to offend. This evidence was necessarily accepted by the jury, although it may not have been the exact number of times the victim estimated. I accept that it occurred on a large number of occasions, though it is impossible to be precise as the exact number, given that these instances were not specifically journaled and given that they occurred during childhood when memories were still developing. Whether the abuse occurred four times a week or once a week or at some other rate is not particularly relevant in terms of determining the seriousness of the offences. It was clear on the overall evidence that the abuse occurred on a regular basis throughout an extensive time period for nearly the whole of her school-age childhood.

[10] To the extent that there was any lie or inconsistency as to whether the offender masturbated during the abuse, this is not a relevant detail for determining the seriousness of the offences and would have no impact on the appropriate sentence.

[11] The victim’s evidence of the physical abuse and verbal abuse was supported through the offender’s admissions.

Circumstances of the Offender

[12] The offender is 76 years old. He is retired. He previously worked as a truck driver, and in the service industry. He immigrated to Canada from the Philippines in 1991. He continues to own property in the Philippines including a mango plantation and has family there from a prior relationship.

[13] He was previously in a long-term relationship with the victim’s mother. He has one biological child from that relationship, his son, who is the other victim on this indictment. He does not assist in supporting the family and is currently a pensioner. The PSR suggests that he may not currently have any family or support systems in Canada.

[14] He suffers from arthritis in both legs and uses a cane. He reports having high blood pressure and cholesterol. There is no evidence as to the extent of any disability resulting from these ailments, but his landlord envisions that he will ultimately require assisted living. The foundation for the landlord’s opinion appears to be his observations of the offender now, and projecting into the future a decline in his health. While there is no medical evidence filed to support that prognosis, the speculation may well stand to reason based on his current health, though not on a clear timeline. This factor will be given some weight in the sentencing calculation, in applying the principle of proportionality.

[15] He has no prior criminal record. This court is cognizant that he spent a significant amount of time in his offence-free period sexually abusing his step daughter. He has never previously been sentenced, however, which is due some weight under the principles of sentencing.

Impact on the Victim

[16] The victim provided a victim impact statement, as did the victim’s mother, and the victim’s brother provided his own VIS. I describe the impact on the family in the aggravating features below. The offences have had a significant impact on their lives and psychological well-being, given the nature and circumstances of prolonged abuse within the family setting.

Stay of s. 271 Offence / R. v. Kienapple

[17] The Crown and Defence counsel jointly submitted that a stay should be entered with respect to count 1, sexual assault, pursuant to the principles enunciated by the Supreme Court of Canada in R. v. Kienapple, [1975] 1 S.C.R. 729. The decision in Kienapple bars multiple convictions for two or more offences arising out of the same criminal act in circumstances where the essential elements of the offences cover the same wrongdoing.

[18] In this case, count one arises from the same conduct captured in both counts 2 and 3, and the facts underlying all of the offender’s convictions are the same except with respect to time period. Kienapple therefore mandates that one of the convictions should be stayed. I agree that the law in Ontario favours staying the s.271 conviction rather than the sexual interference conviction: Hussein, at paras. 45-46; R. v. F.L., 2016 ONSC 1215, at paras. 21-25; and R. v. K.S., 2018 ONSC 5678, at paras. 21-23. A conviction for sexual interference is more appropriate in this case because it includes a recognition that the offence was committed against a victim who was under sixteen years of age. Accordingly, the s.271 conviction is stayed by operation of the rule in Kienapple.

Maximum Sentence/Range

[19] Currently, both s. 151 sexual interference and s. 271 sexual assault carry minimum penalties of year imprisonment and maximum punishments of 14 years, in cases where the victim is less than 16 years of age. However these offences were committed prior to those penalties being enacted and the Charter requires that the offenders be sentenced according to the applicable punishments at the time of the offence.

[20] At the time of the offences, the applicable minimum and maximum sentences for sexual assault was 10 years imprisonment and there was no minimum punishment. Sexual interference also had a 10-year maximum sentence. In November of 2005, a 45-day minimum penalty was enacted, for indictable cases. That minimum penalty was also in effect for the time periods covered by count 2 and 3.

[21] In any event, the circumstances in this case merit a far higher sentence than the minimum penalties that operated in any of the time frames applicable in this case.

Principles of Sentencing

[22] All sentences must conform to the principles of sentencing in the Criminal Code. The fundamental purpose of sentencing, as described in s. 718, “is to contribute… 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”, which include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender.

[23] The balancing of the principles of sentencing is a case-specific exercise governed by all the circumstances, and all sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[24] Deterrence and denunciation are the primary objectives of sentencing in this case because the offences involved children under age eighteen: Criminal Code, s. 718.01. In Woodward 2011 ONCA 610, [2011], OJ NO. 4216 at para. 38, the Court of Appeal summarized the principles of sentencing set out in D.D., explaining the primacy of deterrence, denunciation and separation as principles of sentencing for offences involving the sexual abuse of children:

(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.

[25] Rehabilitation and restraint are always factors for consideration. However, the role of rehabilitation is somewhat limited here given the offender is a senior citizen who committed these offences in the past over an extended period of time. Though totality and restraint are certainly applicable considerations in this case due to the age of the offender and the health considerations, in this situation the primary operable principles are to provide for denunciation of the abusive conduct and to provide restoration and redress for the victims for the extended period of their lives subject to the abuse and the enduring consequences that the offence will visit on them in future.

[26] Parity is always an applicable principle. The range of sentencing for sexual assault varies depending on the individual circumstances of the case. However, for offences against children, there are guiding ranges for appropriate sentences to demark society’s condemnation of the abuse of children by those in positions of authority.

[27] The range of sentence for the sexual abuse of a child over a prolonged period is a mid to upper single digit penitentiary sentence: see R. v. D.D. at para 44. In numerical terms, this could be in the range of 4 or 5 or 6 years or higher, and even up to 9 nine years depending on the overall circumstances. Sentences will be in the double digit range for offences involving full penetration coupled with violence, threats or extortion: see R. v. D.D. para. 44.

[28] The court of appeal in D.M. 2012 ONCA 894, [2012] OJ No.6059 at para. 68 noted that sentences of 5 years or more had been upheld by the court where the offence involved one or more of these aggravating circumstances: sexual intercourse, oral sex, incest, more than one victim, grooming, physical violence or threats to gain compliance or keep the abuse secret. Lower sentences are possible, where particular mitigating factors are present: see D.M. at para. 71-72.

[29] In this case, there were several of the aggravating features noted in D.M. to put the range of sentencing in the 5 year or more range. The victim was subject to oral sexual abuse as well as digital penetration, both of which are violative and intrusive forms of sexual abuse: R. v. D.M. 2012 ONCA 894, [2012] OJ No. 6059 para. 68. This was intra-familial abuse. There was physical violence and psychological abuse. While it is not established on the evidence that the offender intended to commit the associated abuse to gain compliance for the sexual abuse, the victim believed the abuse was the result of the offender’s frustration with her non-compliance at times – this psychological impact is accordingly aggravating in the circumstances, as I further detail below.

[30] I am not satisfied that the offender’s conduct in this case can be described as grooming, such that it would be an aggravating feature, but I do recognize that conduct progressed in severity over time.

Mitigating Factors

[31] The mitigating factors operable in this case include the following:

(a) The offender has never before been sentenced by a court. He has no other prior criminal offences. (b) The offender pleaded guilty to the offences against his son, though not at an early stage of the proceedings. This is nonetheless an acceptance of responsibility and a sign of remorse, and is due weight by the court in sentencing since that child did not have to testify in the proceeding. It must be recognized that there was no guilty plea on the sexual abuse charges. There is no such mitigation available for the sexual abuse charges because AR suffered the impact of testifying not just once at trial, but also at the preliminary inquiry. (c) He is 76 years old at present and has some health issues. While his advanced age is not strictly a mitigating factor, an older offender may receive a slighter lower sentence given the likely life expectancy involved and the fact that a jail sentence may have a greater impact and be harder to endure for a person of that age, particularly given the health issues. That said, Corrections Canada provides health care to prisoners and there is no reason to believe that he would not receive adequate care: see M.E. 2012 ONSC 1078, 2012 OJ No.1627 at para. 56. This factor is also not the overriding principle in the circumstance, given the statutory and common law precedence of denunciation and deterrence. (d) The defence also suggests that the positive employment history should be a mitigating factor. I would view the employment history of marginal weight in the circumstances, given the nature of the offence. The offences occurred during an extended period of his life, while he was retired.

Aggravating Factors

[32] The victims were under age 18, an aggravating factor under s. 718.2(ii.1). The victims were very young in that age range as well: the abuse of A is documented as starting at age 6, and at age 4 for V.

[33] The offender abused his position of trust as a step-parent and caregiver to commit the offence, an aggravating factor under s. 718.2(iii). The offences occurred in the victim’s home, a place where the victim should normally feel safe and secure particularly as a child. R. v. B.J.W. [2012] OJ No. 1196 at para. 13. That this was intra-familial abuse is an aggravating feature in the common law as well: D.M., para. 68.

[34] The offence had a devastating impact on the victim, considering her age and circumstances, as was detailed in her evidence and in the victim impact statement: see 718.19(iii.1). Her experience is consistent with the harms of prolonged sexual abuse, as detailed in R. v. Woodward, 2011 ONCA 610 at para. 72: “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…”.

[35] The offence was committed over a prolonged period, over the victim’s whole school-age childhood. D.M. [2012] OJ No. 5069 at para 73.

[36] There was a substantial impact on the victims of the offence and victims’ mother. The emotional and psychological impacts were devastating. AR says she feels dirty from the inside out. She has difficulty with intimacy. She contemplated suicide. The abuse affected her academic performance. VC suffered academically, had nightmares, and suffered heavy emotional impacts and a high degree of stress and suffering because of the abuse he suffered. The victims’ mother suffers from feelings of guilt about the suffering of her children, she watched her children’s experienced trauma from the offences. The family wants no contact with the offender. The victim also believed that her brother was being assaulted because of her non-compliance at various times. Being witness to additional violence, as well as other associated abuse to herself, added to the impact of these offences.

Position of the Parties

[37] The Crown requests a sentence of 6 years based on the aggravating features for the sexual interference s. 151 count, 6 months consecutive for the assault weapon count against the brother, and 3 months concurrent for the s. 266 assault count.

[38] The defence requests a sentence of 4-5 years for sexual interference because of the lower range available in the case law and the mitigating factors. The defence notes that the conduct in this case is less serious than other examples in the range because the child was not required to perform oral sex and because there was no penile penetration. The defence requests that the assault weapon count receive 30 to 90 days because it is first offence and a wide sentencing range is available. Concurrent time is requested for the other assault count.

[39] The defence notes that the overall sentence should be credited with a deduction for pretrial custody. The time spent in custody is reported to be 303 days, which would count as 455 days when credited at a rate of 1.5/1 for lack of earned remission (this is the equivalent of a 15 month credit).

Ancillary Orders

[40] There will be a DNA order on primary grounds for the section s. 151 and s. 267(a).

[41] There will be a 743.21 order prohibiting communication with the victims while he is in custody serving a sentence.

[42] There will be an order under s. 490.013(2.1) to comply with the Sex Offenders Information Registration Act, for life.

[43] There will be s. 109 order for the assault with a weapon conviction for 10 years.

[44] There will be a section 161 prohibition order prohibiting attendance within 2 kilometres of the victims’ ordinary dwelling houses per subsection (1)(a.1), and prohibiting him obtaining employment or volunteering to be in a position of trust or authority over children under age 16 per subsection (1)(b), for life. These conditions were requested by the Crown, and not challenged by the defence, and are in line with the abuse perpetrated in this case and would not appear to impose a disproportionate or inappropriate impact on the offender given and circumstances.

Final Decision and Endorsement

[45] As I detail above, considering the circumstances of the offence, the victims, and the offender, his mitigating factors and circumstances and the substantial aggravating factors and the primordial importance of denouncing the sexual abuse of children particularly when the abuse is a prolonged and invasive abuse of trust. The sentence is as follows:

(1) s. 151 sexual interference between January 1, 2005 to April 30, 2008: 5 years less the credit for 455 days pretrial custody (303 days credited at rate of 1.5/1). This results in a sentence 45 months for this count. (2) s. 151 sexual interference between May 1, 2008 to December 31, 2011: 45 months concurrent. (3) s. 267(a) assault with a weapon: 3 months consecutive. (4) s. 266 assault: 3 months concurrent.

[46] The total sentence is 4 years for all offences combined after credit is given for pretrial custody.

Boucher J.

Released: June 6, 2019