Court File and Parties

COURT FILE NO.: 7788/17 DATE: 2019-07-18 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN W. Trent Wilson, Counsel for the Crown

- and -

R. B. Wayne A. Chorney, Counsel for the Defendant

HEARD: June 28, July 16, 2019

VARPIO J.

REASONS FOR SENTENCE

BACKGROUND

[1] I found the offender guilty of sexually abusing his young sister-in-law several decades ago in my reasons found at 2018 ONSC 6492. I need not repeat my findings save and except to state that the offender engaged in sexual conduct with the complainant when she was quite young, and he was in a position of trust and authority (which is conceded by the defence). The conduct involved a considerable amount of sexual touching that occurred over several years and also involved digital penetration.

FACTS RELEVANT TO SENTENCING

[2] The complainant provided a victim impact statement to the court wherein she outlined her difficulties that flowed from the assaults. In her evidence at trial, she also detailed how the impugned sexual conduct ultimately led to her having mental and emotional difficulties in the early 1990’s which caused her to seek treatment. Accordingly, I have no doubt that the offences played a profoundly negative role upon her life and her ability to pursue it happily up until that point. The complainant’s VIS disclosed some vitriol directed towards the accused. I disabuse my mind of said emotion in so far as it is not relevant to my analysis.

[3] The offender produced medical reports which were tendered into evidence. The accused’s physician outlined the offender’s medical issues and stated:

It is my own medical opinion that there are no contraindications to Mr. [B] being incarcerated if that is what is decided. His bladder cancer is in remission. His back pain is long-standing, chronic and unchanged. He does not have any evidence of cardiomyopathy, heart failure, or coronary artery disease. He has mild COPD which is controlled with inhalers. His blood pressure, thyroid and cholesterol are managed with medication.

[4] He also provided the court with a letter from a physician specializing in internal medicine which stated that:

[Mr. B.] has severe obstructive sleep apnea and nocturnal hypoxemia requiring CPAP therapy…

Regardless of where he is located he should be using his CPAP/APAP device on a nightly basis.

I would not recommend that he go without his device for any sustained time. It is not life support therapy, but I would recommend that he use it whenever sleeping.

[5] This physician did not indicate that Mr. B. could not serve a custodial sentence. Mr. B. also provided a list of the medications that he takes regularly. The list is considerable.

[6] The pre-sentence report provided little insight into the offender’s situation. The offender is a 77-year-old man who is married and is a pensioner from Algoma Steel. The offender described his first marriage and his relationship with his children as follows:

…According to the offender his first marital union lasted approximately nine or ten years. He suggested that for the most part the union ended due to financial issues. He suggested that his spouse spent too much money and gave what he thought was excessive amounts of money to the church causing conflict between them. No other insight was provided by the offender for his marital union demise but noted in the crown brief was a comment made by the victim that the marital union ended one month after she disclosed a sexual incident to the offender’s ex-spouse.

The three children produced by the offender’s marital union are now approximately ages 52, 50 and 47. According to the offender he remained involved with his children after the martial union ended. He suggested this lack of communication in his mind was also rooted in issues linked to financial conflict with at least one of his children and that likely the others are supportive of her and their mother.

[7] The PSR makes further note of the family’s financial motivations as described by the offender:

Although he responded to all questions asked during his Pre-Sentence Report interview some of the information he provided was limited in detail and at times he asked for clarification and a rationale for the question. Areas this was most notable in were linked more so to comments regarding his formative years, first marriage and children. He would respond but seemed to limit the information. The offender also indicated that much of the conflicts with family was mainly linked to financial issues [sic].

[8] When given an opportunity to speak at the sentencing hearing, the offender expanded upon the financial issues described in the PSR. He indicated that the matters before the court were, at their heart, about money. He indicated to the court that his family was always after his money and provided the court with a relatively lengthy recitation of their attempts to take his money. The offender did not, however, discuss the offences before the court, his circumstances or the impact that the offences had upon the complainant.

[9] Defence counsel provided me with evidence that the complainant has sued the offender in a civil suit for damages flowing from the sexual conduct. I accept that a statement of claim was filed but do not believe that the civil suit is relevant to my analysis.

POSITION OF THE PARTIES

[10] At the initial sentencing hearing, the Crown sought a two-year sentence plus probation, and the defence sought a four-month sentence plus probation. Both Crown and defence agreed that certain ancillary orders were necessary in the circumstances.

[11] During the submissions, I suggested to Crown counsel that the position sought was outside the sentencing range described by the Ontario Court of Appeal. Crown counsel advised me that the sentence reflected the totality of the circumstances.

[12] Upon further consideration of the cases, I was not satisfied with this answer and I advised counsel via correspondence that I was considering the imposition of a sentence beyond the sentence sought by the Crown and that I required further submissions.

[13] On the second sentencing hearing date, I provided the parties with R. v. Medeiros 2014 ONCA 602 which appeared to be the most recent discussion by the Ontario Court of Appeal with respect to sentencing ranges for offenders in R.B.’s circumstances. The parties provided me with further submissions and R.B.’s counsel pointed out to me that the facts of Medeiros were more aggravating in that Mr. Medeiros groomed the victim and abused the victim over a much longer period of time than was the case in the case at bar.

THE LAW

[14] I am mindful of the sentencing provisions of the Criminal Code of Canada including sections 718, 718.01, 718.1 and 718.2.

[15] The Ontario Court of Appeal in R. v. Devaney, [2006], O.J. 3996 made clear at para. 34 that the sentencing of an offender must reflect both the offender’s circumstances as well as the general range of sentences imposed in similar cases:

The exercise in each case is to impose a sentence that fits the facts and circumstances of the particular case and the particular offender. Part of that exercise is to impose similar sentences for similar offences and offenders. However, I would reject the concept of naming subcategories of manslaughter for the purpose of comparing cases and imposing similar sentences, and instead compare the circumstances of each situation on a case- by- case basis.

[16] With regard to sexual offences involving children, the Ontario Court of Appeal in R. v. D.D. (2002), 58 O.R. (3d) 788 examined the range of sentences to be imposed. Moldaver J.A. (as he then was) writing for the unanimous court, stated at paragraph 44:

To 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] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 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.) [emphasis added]

[17] The Ontario Court of Appeal revisited said sentencing range in R. v. D.M. 2012 ONCA 894. The accused in D.M. had sexually assault his step-daughter while the latter was between the ages of 11 or 12 and 20. The assaults consisted of sexual touching and digital penetration, but no intercourse. In that decision, Laskin J.A. (writing for the court) indicated that the primary objectives of sentencing a person in a position of trust and authority who commits sexual assaults upon children are denunciation and deterrence (para. 63). In determining the range, Laskin J.A. stated at paras. 65 to 68:

In the light of these circumstances and the nature of the offences, is a five-year penitentiary sentence excessive? Over 20 years ago, in R. v. B.(J.) (1990), 36 O.A.C. 307, this court said that, except in unusual cases, where a person in a position of trust sexually abuses a child, and the abuse includes sexual intercourse, the range of sentence is three to five years in the penitentiary: para. 5. In this case, the appellant's abuse of E did not include sexual intercourse.

However, several decisions of this court in the last decade demonstrate that the range outlined in R. v. B.(J.) is no longer appropriate. We have recognized that sexual abuse of children by a person in a position of trust or authority now warrants more severe sentences, and where the abuse includes sexual intercourse, in most cases, a three- to five-year range is too low. The trial judge referred to one of our decisions, R. v. D.(D.) (2002), 58 O.R. (3d) 788, and cited Moldaver J.A.'s oft-quoted statement "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": para. 44. See also: R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721.

However, even taking account of our court's more recent jurisprudence, I agree with Mr. Breen that a sentence of five years imprisonment for the appellant exceeds an appropriate range. I would reduce the appellant's sentence from five years to four years in the penitentiary. I would do so for two main reasons.

First, in those cases where this court has either upheld or imposed penitentiary sentences of five years or more, one or more of the following aggravating circumstances has been present:

• Sexual intercourse (vaginal or anal)
• Oral sex
• Incest
• More than one victim
• Grooming of the victim
• Other acts of physical violence or threatened physical violence to obtain compliance and keep the abuse secret
• A previous criminal record for sexual abuse...

[18] Laskin J.A. reduced D.M.’s sentence from five years to four years incarceration. In so doing, he cited the following cases as being examples where the Ontario Court of Appeal has either upheld, or imposed, sentences of less than five years at para. 71:

Second, this court has either upheld or imposed sentences of less than five years for seemingly more egregious conduct:

In R. v. I.F., 2011 ONCA 203, this court imposed a four-year sentence for a man who abused his three step-granddaughters over an eight-year period; the abuse included fondling, masturbation, oral sex, and acts of grooming.

In R. v. C.B., 2008 ONCA 486, 237 O.A.C. 387, this court upheld a three-year sentence for a man who abused his niece when she was between 12 and 16 years old. The abuse included fondling and digital penetration; the victim also reported that her uncle would get on top of her with his shorts pulled down and she "would feel something going inside of her": para. 7. At times, the abuse was accompanied by threats.

In R. v. B.A., 2008 ONCA 556, 238 O.A.C. 198, this court imposed a three-and-a-half-year sentence for a man who abused both a girl he watched while her mother was at work, and the girl's friend. The abuse included digital penetration, oral sex, one act of vaginal intercourse, and acts of violence and humiliation.

In R. v. G.A.G. (2006), 206 O.A.C. 134, this court upheld a sentence of four years and six months imprisonment for a man who abused his son over many years. The abuse included mutual masturbation and oral sex.

In R. v. A.G. (2004), 190 C.C.C. (3d) 508, this court imposed a two-year sentence for a man who abused his 12-year-old niece; the abuse included fondling, attempted fellatio, and attempted intercourse. The victim struggled fiercely during the assaults.

[19] A review of the cases cited by Laskin J.A. highlights the following considerations that are relevant to the case before me. In I.F., the Court of Appeal at paragraph 7 noted “the trial judge’s acceptance of the significance of the respondent’s early plea and acceptance of responsibility”. This mitigating factor does not, of course, apply to this case.

[20] In C.B., the Ontario Court of Appeal stated at para 57.:

The sentencing judge made no error in considering the pre-sentence report in which the author stated that the appellant accepted limited responsibility for the offences, did not appear to appreciate their seriousness and showed little or no insight into the effects of his behaviour had on the complainant. Lack of insight is a relevant factor in determining a fit sentence, both in relation to the need for specific deterrence and with respect to the prospect for rehabilitation. While continued protestations of innocence are not to be treated as an aggravating factor (see R. v. A.(K.) (1999)), 137 C.C.C. (3d) 554 (Ont. C.A.)), the sentencing judge did not use the appellant’s lack of insight as an aggravating factor. Instead, as is apparent on a reading of the reasons for sentence as a whole, the sentencing judge considered lack of insight when determining a fit sentence.

[21] In B.A., the Ontario Court of Appeal stated at paras. 63 to 65:

This court has made it clear in recent years that conduct of this nature will not be tolerated and when it is uncovered, it will be dealt with harshly. See R. v. D. D. (2002), 163 C.C.C. (3d) 471; R. v. G. A. G., [2006] O.J. No. 67; R. v. R. W. N. (2004), 181 C.C.C. (3d) 470.

Here, in addition to the aggravating factors already mentioned, B.A. continues to maintain his innocence and shows no insight into the gravity and seriousness of his crimes and the harm he has caused the complainant. Specific deterrence therefore becomes prominent and must be considered alongside the other principles of sentencing that are paramount in cases of this nature – denunciation, general deterrence and, in some instances, separating the offender from society. Although the trial judge adverted to some of these principles and purported to recognize their prominence, it is apparent from his reasons that he did not give them the weight they deserved. Rather, the trial judge focussed on the needs of B.A. and his prospects for rehabilitation in fashioning a sentence that in our view was woefully inadequate.

Taking into account B.A.’s age, his medical problems at the time of sentencing and the fact that he had no prior criminal record, we think an appropriate sentence at trial would have been five to six years in the penitentiary. At this juncture, given that he has completed the better part of 18 months of his conditional sentence and taking into account the further medical problem he has encountered, the time he has already spent in pre-trial custody, and the fact that he must now be re-incarcerated, we would impose a sentence of three and one-half years concurrent on all counts, commencing on the day that B.A. surrenders into custody or is apprehended and taken into custody. [Emphasis added.]

[22] In A.G., at para. 29, the Ontario Court of Appeal reviewed the factors that necessitated a two-year term of incarceration. Interestingly, the court noted that the accused had been found guilty of similar crimes as against the same victims previously:

Although neither of these offences involved actual intercourse, in my view they required a penitentiary sentence. The age of the complainant, the position of trust, the use of violence, the persistence with which the appellant pursued the commission of the offences, and the pattern of grooming the complainant, make these serious examples of attempted rape and indecent assault. I agree with the trial judge that denunciation and general deterrence are the most important objectives of sentencing and that a conditional sentence would not meet these objectives. There are, however, a number of factors that, in my view, require that the sentence be the minimum penitentiary term:

• While the appellant’s subsequent conviction for incest cannot be wholly ignored, as the trial judge recognized, at the time these offences were committed the appellant had no prior criminal record.
• Since the incest conviction over twenty years ago, the appellant has taken substantial steps to rehabilitate himself and he no longer represents a danger to the community or to children.
• The appellant is 67 years of age and in frail health.
• The appellant has already served a nine-month conditional sentence in relation to this same complainant for similar but less serious conduct.
• These offences were committed over thirty years ago.

[Emphasis added.]

[23] The Ontario Court of Appeal continued to wrestle with the appropriate sentencing range in R. v. Medeiros 2014 ONCA 602. In Medeiros, the offender was given a sentence of five years. The unanimous court wrote at paras 6 to 9:

The appellant contends, however, that the sentencing judge erred by applying the mid-to upper single digit penitentiary range of sentences identified by this court in R. v. D.(D.) (2002), 163 C.C.C. (3d) 471. He argues that this case is distinguishable from D.(D.) and similar cases because none of his assaults against B.R. involved actual penetration. Relying principally on the decisions of this court in R. v. D.M. (2012), ONCA 894 and R. v. A.G. (2004), 191 O.A.C. 386, the appellant submits that where there is no penetration, the starting point for sentences for sexual offences against a child by an adult in a position of trust or authority is three years in jail. As a result, the appellant says, his five-year term of imprisonment “represents a marked departure from the sentences imposed for similar offences in the [appellant’s] circumstances”, and the sentence imposed is harsh and excessive and cannot stand.

We reject this ground of appeal. It is immaterial in this case whether the appropriate starting point for the fashioning of a fit sentence for the appellant was three years in jail, as now urged by the appellant, or five years in jail, on the authority of D.(D.). Counsel for the appellant submitted at the sentencing hearing that the appropriate range of sentences on the facts here was between two to five years’ imprisonment. Thus, the sentence imposed by the sentencing judge was at the upper end of the range acknowledged by the appellant as appropriate in all the circumstances, and at the low end of the range contemplated in D.(D.).

In our view, it cannot be said that the sentence imposed in this case was manifestly unfit. The appellant supplied B.R. with drugs and alcohol and exploited her vulnerable state after her consumption of the drugs and alcohol he provided. He did so on numerous occasions when B.R.’s mother was unable to assist B.R. due to her own drug and alcohol consumption. This pattern of grooming conduct by the appellant was an aggravating circumstance, as was B.R.’s virtually helpless condition and extreme vulnerability at the time of the assaults. An accused’s grooming of his or her child victim is one of the aggravating factors identified by this court in D.M. as justifying a penitentiary sentence of five years or more.

It is true that, in some cases, this court has upheld or imposed sentences of less than five years’ imprisonment for conduct that might be regarded as more egregious than that of the appellant. In this case, while it was open to the sentencing judge to impose a lower sentence, she was not obliged to do so. Whether calculated from a starting point of three or five years’ imprisonment, the sentence imposed reflects no error in principle and is neither outside the applicable range nor manifestly unfit for these serious crimes.

[24] The accused provided me with a number of cases where an offender was given a sentence that fell below the three year sentencing benchmark, many of which involved conditional sentences: R. v. W.(L.F.) 2000 SCC 6; R. v. Bedard, [2001] O.J. No. 1894 (Ont. C.A.); R. v. Cromien, [2002] O.J. No. 354 (Ont. C.A.); R. v. Esmonde, [2002] O.J. No. 3544 (Ont. C.A.); R. v. M.(W.W.), [2006] O.J. No. 440; R. v. C.(A.) 2012 ONCA 608; R. v. S.(H.) 2014 ONCA 323; R. v. Bent 2017 ONSC 3189. The cases provided by defence are all distinguishable on their facts. Some involve complainants who were not children (Bedard), many pre-date Moldaver J.A.’s pronouncements in D.D. (W.(L.F.), Cromien, Esmonde, M.(W.W.)) while others involve a limited number of incidents (C.(A.)). Accordingly, these authorities are of limited value.

[25] I was also provided with cases where some of the more aggravating features described in para. 68 of D.M. attracted sentences below five years incarceration. Such cases were upheld by the Ontario Court of Appeal: R. v. E.T. 2011 ONCA 86. I note, however, that these cases contained mitigating factors not present in the case before me.

ANALYSIS

[26] Ultimately, it is clear to me that, absent exceptional circumstances, the range for sexual offences committed upon children by persons in trust or authority generally requires a penitentiary term beyond the minimum.

[27] I now turn to the circumstances of this case. The aggravating features are clear:

a. The offender was in a position of trust and authority; b. The age difference was considerable as between the offender and the victim; c. The acts took place over nine years; d. There were a number of acts; e. The acts involved sexual touching that went beyond de minimis and also involved digital penetration; f. The acts had a serious impact upon the victim; and g. The victim was highly vulnerable.

[28] The Crown made no submissions suggesting that the accused’s conduct in bringing the complainant on motorcycle and snow machine rides was tantamount to grooming. As such, I do not find that the complainant was “groomed”.

[29] There are few mitigating features to this case, namely:

a. The age of the offender; b. The fact that the offender has remarried; and c. The offender has virtually no criminal record.

[30] It is submitted by both parties that the offender is in poor health and that said health is a mitigating feature of this case. I accept that the offender is not robust. I do not, however, find that the offender is in exceptionally poor health. Indeed, his physician indicated that his health was no impediment to his ability to serve a sentence. I therefore consider the offender’s health issues as a mitigating factor but note that its impact is attenuated since there is no evidence that R.B.’s health issues would be materially impacted by incarceration. In fact, R.B.’s medical reports appear to suggest otherwise.

[31] With respect to R.B.’s statement at sentencing, I do not consider his implicit protestations of innocence as an aggravating feature on sentencing. Conversely, it cannot be said that he has any remorse or, for that matter, any insight into his conduct. This feature of the case is therefore a neutral factor.

[32] Given the foregoing, the aggravating features of the case augur for a sentence beyond the minimum end of the range that ought generally to be imposed in such cases. The aggravating features of this case listed in paragraph 27 above demand that general deterrence and denunciation must be paramount. The mitigating features of this case, while present, do not take away the need to impose a considerable penitentiary sentence in order to reflect the gravity of the situation. Both the positions of the defence and the Crown fail to give adequate weight to these considerations as both positions clearly fall outside the acceptable range of sentences to be applied in cases where persons in a position of trust and authority sexually abuse children. An imposition of a sentence of two years or less in the circumstances of this case would bring the administration of justice into disrepute in this community.

[33] When considering the appropriate sentence, I note that the accused in D.(M.) sought professional help and counselling for what he had done and that he had “shown some remorse, albeit limited… the trial judge found on a balance of probabilities that the appellant was not ‘genuinely remorseful’” for the abuse” of the victim (para. 64). Here, of course, R.B. has shown no insight into his actions which, while not an aggravating feature of the case, negate any notion that he has any quantum of remorse. Accordingly, I have no reason to depart from the ranges as suggested in D.(D.).

[34] Therefore, considering all the aggravating and mitigating factors of this case (most notably the complainant’s extreme vulnerability and the duration and frequency of the assaults) and considering the relevant case law, I hereby sentence R.B. to five years of custody. I also impose:

a. A s. 109 firearms ban for 10 years; b. I order that R.B. provide a D.N.A. sample pursuant to Form 5.03; and c. A SOIRA order for a life term.

[35] Neither counsel sought a s. 161 order, and R.B.’s counsel suggested that such an order was neither necessary nor appropriate. No fulsome submissions were entertained on this point. I will hear same immediately.

Varpio J. Released: July 18, 2019