OSHAWA COURT FILE NO.: CR-19-14985
DATE: 20201009
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.F.
Defendant
Bryan Guertin, for the Crown
Maya Borooah, for the Defendant
HEARD: August 31, 2020, for submissions
REASONS FOR SENTENCE
LEIBOVICH, J.
Overview
[1] The accused was found guilty, by me, after trial, of sexually assaulting his stepdaughter, starting when she was four or five and ending when she was between nine and 12 years old. The trial took place on January 13-15, 2020, and my reasons for judgement are set out in R. v. C.F., 2020 ONSC 0540. The original date for sentencing submissions was vacated due to the COVID-19 pandemic. Sentencing submissions were eventually heard on August 31, 2020. The matter was then adjourned to today, October 9, 2020, for my decision.
[2] The Crown seeks a jail sentence of seven years. The defence seeks a reformatory sentence, to be served in the community as a conditional sentence. In the alternative, the defence seeks a reformatory sentence of imprisonment. In the further alternative, the defence seeks a low penitentiary sentence. It was agreed by counsel that the sexual assault charge should be stayed pursuant to the principles set out in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 and that I should sentence CF on the counts of sexual interference and invitation to sexual touching.
[3] All agree that there should be a DNA order, a s. 109 weapons prohibition order for 10 years, a SOIRA order for 20 years, and a s. 743.21 non-communication order with the complainant, BSM. The Crown also seeks a s. 161 order for 10 years. The s. 161 order is opposed by the defence.
Facts
a) Circumstances of the offence
[4] The accused was convicted of sexual assault, sexual interference, and invitation to sexual touching. The victim was his stepdaughter, and the offences took place at their home in Bowmanville between 1999 and 2006. The victim, BSM, was between four and five years old when the abuse started and between nine and 12 years old when it ended.
[5] The accused and BSM’s mother lived in Bowmanville. Her father lived in Brockville. BSM lived with CF and her mother when she was in kindergarten and afterwards went to live with her father. There was no formal custody arrangement between her parents. She would still visit her mother in Bowmanville, although because she went to school in Brockville, her visits would be limited to weekends and the summers.
[6] The abuse started when BSM was in kindergarten. BSM came home early from a sleepover. CF and her went downstairs where the accused proceeded to touch her vagina with his hands and mouth. The abuse happened numerous times, more than she could count on her hands and feet. In addition to touching the complainant with his hands and mouth, he would tell her that it was “his turn” and had BSM perform oral sex on him. Sometimes the incidents would end with the accused ejaculating.
[7] The incidents ended when she was between the ages of nine and 12 years old. She started to get older and watch movies and realized what was going on and that it was not right.
[8] BSM described one last incident that took place in Bowmanville. She was older, between nine and 12 years old. The accused had stopped touching her. She had finished watching a movie and was laying on the couch, trying to sleep. She looked up and saw the accused sitting down touching himself. He got up, came over and touched her arm and he said, “I know you want me, I want you too.” She yelled at him to get away. I was satisfied beyond a reasonable doubt that this incident occurred and that it was clearly inappropriate, but I was not satisfied beyond a reasonable doubt that the accused had reached the point of committing the offence of invitation to sexual touching and acquitted him of count seven.
[9] In October 2017, BSM went to the police and disclosed to them the abuse.
b) Circumstances of the offender
[10] The accused was 53 years old at the time of sentencing. A pre-sentence report was filed at the sentencing hearing, in addition to a report from his psychiatrist and a letter from his family physician. CF was the youngest of six children. He had a good childhood. He was married at the age of 23, had a child, and divorced two years later. He then met BSM’s mother and they lived together for five years before getting married. They were separated in 2012 and divorced in 2016. A few months later, the accused met his current wife. His wife, her daughter and son-in-law are all supportive of him and they seem to have a happy relationship.
[11] The accused, after he separated from BSM’s mother, attempted suicide in 2014. He has been seeing a psychiatrist since that time. He has attempted to commit suicide eight times. The accused said that after the separation he started abusing drugs and alcohol. At the time of the pre-sentence report he was sober and had been sober for two years. The pre-sentence report author noted, “According to collaterals contacted, the subject’s response to rehabilitative measures have been great so far. They did not express any outstanding concerns in this area.”
[12] The accused worked for the Ontario Power Generation, starting in 1991. He was a control technician. He still works for OPG, but he is on long term disability.
[13] The accused denied committing the offences and did not accept responsibility. He was sorry that the victim had to testify in court. The pre-sentence report author noted, “some of the collaterals contacted for the purpose of this report have stated that he is remorseful. This writer does not have any direct knowledge of degree of remorse by the subject.”
[14] Dr. Ojiiegbe, CF’s psychiatrist, submitted a report dated February 29, 2020. He reported that CF told him that he attempted to commit suicide after he was charged. The doctor stated:
On November 29, 2017, CF reported that things have been "horrible.” He reported that his 2nd ex-wife's daughter had accused him of sexual assault. He reported that he had been arrested but was let out on a "promise to appear". He reported that the legal issues had triggered him. He reported that his anxiety worsened and that following being arrested, his anxiety worsened and he drank a bottle of whiskey with his medications with overdose of his medications, which was a suicide attempt and that was in September 2017 or so.
[15] CF had a manic episode in July 2019. Dr. Ojiiebe noted:
On October 29, 2019, [CF] reported that in July 2019, he was in hospital, again admitted; this time it was following a manic episode. The manic episode was felt to have been precipitated by mirtazapine, the new antidepressant. He reported that he was agitated and had an argument with his family where he was smashing property including his guitar and his family called the police. The records that I reviewed indicated that [CF] was agitated and belligerent and had to be tasered by the police. He ended up in ICU for 3 days, which is the intensive care unit. Following being stable, he was then transferred to the psychiatric floor at Lakeridge Health Oshawa and spent 3 weeks in hospital. The diagnosis was bipolar disorder.
[16] Dr. Ojiiebe stated that CF has bipolar disorder and had a past substance abuse disorder. Dr. Ojiiebe noted the following:
[CF] therefore seems to react to stress extremely by attempting to kill himself. The times he has been stable have been linked to support from community Mental Health Services and Addiction Services. He continues at the present time to receive support from his addictions counselor at Pinewood and receives support from Canadian Mental Health Association case management. He has a peer support worker and he also receives counseling through Ontario Shores cognitive behaviour therapy.
He therefore is being maintained in the community by all the supports.
I am not aware that all these supports would be available to him if he were to be in jail or in custody.
[17] Dr. Lesser, CF’s family physician, provided a letter, dated June 14, 2020. Dr. Lesser noted that CF had a history of back pain, starting in 2002. The doctor said that:
Between 2002 to 2004 [CF] had escalation of various narcotics to try and control his pain. He started with percocet but found too many side effects from oxycontin. He was switched to hydromorph contin at a dose up to 12mg tid. He could not tolerate MS Contin. Eventually he was on Duragesic patches up to 50ug every 3rd day. Early in 2004 he stopped the Duragesic patch on his own since he felt it was not working. He restarted oxycontin and got up to 120mg tid.
[18] CF filed letters of support from his sister, two nieces, his current wife, and her daughter and son-in-law. I have read them all. I will not summarise them individually, but generally they describe a kind, caring man. These family members have never seen CF act in a sexually inappropriate manner, and they state that the charges are out of character for him. They continue to support him. His current wife stated that CF is “remorseful about the situation and all people involved.” Her daughter stated, “I believe he has remorse about the charges and has sympathy towards the overall hardships for all parties involved in this matter.” His wife stated that CF is now drug free and he continues to struggle with alcoholism but has reduced his daily habit to a drink here or there.
c) Impact on the victim
[19] BSM filed a victim impact statement and read it out in court. I have ignored those aspects of her victim impact statement that appear to ask that I impose a certain sentence. It was evident from her testimony, and from the victim impact statement, that she has been severely affected by these offences. She stated:
CF you were supposed to protect me not harm me. I am disgusted, ashamed and embarrassed of what happened; I know it's not my fault and that I have no reason to feel this way. But because of your actions I suffer from Crippling anxiety, Depression, fear of physical intimacy, Nightmares, Self-Harm, A constant need for control, PTSD, Difficulty forming relationships. I cannot sleep, I barely eat, my anxiety causes me to overreact to small things. I cannot be intimate with my fiancé without having a severe panic attack. I need the tv and light on to be comfortable enough to fall asleep. I have to rely on mood stabilizers daily and sleeping pills for my insomnia, not to mention I need to take Lorazepam because of the severity of my panic attacks. The fact that I have to rely on medications is sickening.
d) Correctional Services of Canada (CSC)
[20] The defence filed a September 10, 2014 report entitled “A Three-Year Review of Federal Inmate Suicides (2011-2014)”. The report states that suicide is the leading cause of unnatural death among federal inmates, accounting for about 20% of all deaths in custody in any given year. The report points to a number of organizational weaknesses and calls for improvement in specific areas of CSC’s suicide awareness and prevention program.
[21] The report stated that, similar to suicides that occur in the general population, having a mental health problem or diagnosis or compromised mental health functioning appears to be a significant risk factor for prison suicide. Recent research on suicide in federal penitentiaries found that 44% of offenders who committed suicide between 2003/04 and 2007/08 had file evidence of a diagnosis of one or more psychological disorders. The Prisons and Probation Ombudsman for England and Wales recently found that three-quarters of prisoners who took their life in prison had mental health issues. Beyond a history of mental illness, strong associations with prison suicide have also been found with respect to following pre-indicative risk factors:
a) Recent suicidal ideation, intent or prior attempt;
b) Concurrent substance abuse disorder;
c) History of self-injurious behaviour;
d) High prevalence of depression, despair and/or hopelessness;
e) Poor social and/or family supports;
f) Family history of suicide (especially first-degree relatives).
[22] A 2018 statistical overview of the Canadian correctional system showed a dip in suicides in the 2015-2016 and 2016-2017 years. The report noted that the suicide rate is still significantly higher in the federal penitentiary and the provincial jails as compared to the community population.
[23] The defence filed another report regarding overdose incidents in federal custody from 2012/13-2016/17. The report noted that:
In terms of potential risk factors, offenders involved in overdose incidents often had histories of substance misuse and mental illness. More specifically, 95% of offenders had issues related to drugs, while 54% had issues with alcohol. In 81% of cases, substance misuse was identified as a factor linked to criminal offending. Mental illness was particularly common among those involved in intentional non-fatal overdose incidents; 92% had at least one mental health disorder identified, while 89% had histories of self-injurious/suicidal behaviour.
[24] The Crown filed an affidavit from Mr. Thompson, a Superintendent at Joyceville[^1]. He described the intake process with respect to COVID-19 and explained the intake process for inmates who have mental health problems. He stated that as of August 28, 2020 Joyceville Institution has not had any positive cases for COVID-19. He stated that:
Joyceville Institution has a robust mental health department. All new admissions are screened by the mental health team immediately upon admission. Any admissions who require immediate intervention, receive assistance based on their immediate need to ensure any self harm concerns are addressed. This occurs in three ways. Mental health monitoring, which requires increased monitoring while residing on a regular living unit. Modified watch. This is for inmates whom have an increased risk at the time of assessment and require observation via camera. High watch. This is for inmates whom have an immediate plan and they are placed on direct observation.
Inmates who reside on the isolation ranges are seen by the mental health team on a daily basis. Once they are moved to a regular range, they are seen by appointment and based on need and risk. If the risk is high, there is a mental health staff member on call 24 hours a day, 7 days a week. There has been no change in these services during the Covid pandemic.
[25] He stated that CSC no longer has segregation. CSC does have structured intervention units. However, inmates who have mental health concerns are not permitted to be admitted within this unit.
[26] The defence filed a newspaper article and a letter by Anthony Doob, a professor and criminologist, criticizing CSC for not providing adequate data and information to the, now disbanded, structured intervention unit advisory panel to determine if the requisite changes to the CSC segregation unit have been made. Defence counsel states that the purpose of this background information is to show that CSC does not operate as smoothly as Mr. Thompson suggests.
Mitigating and Aggravating Sentences
[27] There is little dispute among the parties with respect to the aggravating and mitigating factors in this case. The aggravating factors are as follows:
CF was BSM’s step father and he was in a position of trust when he committed the offences;
BSM, was very young, four or five, when the abuse started;
The abuse took place in the family home;
The abuse was repeated and took place over a period of years;
The abuse included mutual acts of fellatio; and
BSM has suffered significant psychological harm as a result of the abuse, which continues to this day.
[28] The mitigating factors are:
CF has no criminal record and has otherwise led a pro-social life;
He has support in the community;
The abuse took place approximately over 15 years ago and there is no evidence of any criminality since;
CF has made significant efforts to overcome his substance abuse problems;
CF is bipolar, having recently had an episode in July 2019 and has mental health concerns that have left him on long-term disability and unable to work. He has made 8 suicide attempts, the last one in 2017.
Positions of Counsel
[29] The Crown, relying on the Supreme Court of Canada’s decision in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 and the need to denounce CF’s behaviour and deter others, seeks a sentence of seven years, noting that this was a case of repeated sexual abuse of a child by a person in a position of trust. The defence submits that sentencing is an individualized process and that this is a unique case given the mental health issues that plague CF, his battle with substance abuse, his lack of criminal record and support in the community, all set against the background of the COVID-19 pandemic. The defence seeks a conditional sentence or at least a reformatory term of imprisonment or a low penitentiary term. Furthermore, the defence submits that the seven years requested by the Crown is at the high end of the range and the circumstances of the offences and the offender require the imposition of a much lower sentence.
Law and Analysis
[30] Section 718 of the Criminal Code describes the purpose of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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:
a. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b. to deter the offender and other persons from committing offences;
c. to separate offenders from society, where necessary;
e. to assist in rehabilitating offenders;
f. 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 or to the community.
[31] Section 718.01 of the Criminal Code also states that when dealing with offences against children a court shall give primary consideration to the objectives of denunciation and deterrence of such conduct. Section 718.2 of the Criminal Code specifies that the following factors are deemed to be aggravating factors:
• evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
• evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
• evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
[32] The court must ensure, as stated in s. 718.1 of the Criminal Code, that the sentence imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. In order to ensure this, courts look to sentences given in other cases. The parity principle, which is required now by s. 718.2(b) of the Criminal Code requires that similar offenders who commit similar offences in similar circumstances be given similar sentences. Past cases, or precedents, create sentencing ranges to help guide the court. But sentencing is an individualized process and sentencing ranges are not meant to handcuff the court. As stated by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 57:
Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case…
Also See: R. v. Friesen, at para. 9, R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 33; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 45; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44;
[33] In R. v. Friesen, the Supreme Court of Canada, building off the pronouncements set out by our Court of Appeal in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788, R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, R. v. Stuckless 2019 ONCA 504, 146 O.R. (3d) 752 as well as other appellate decisions here and across Canada, provided direction to the courts on the appropriate principles that should be considered in sentencing those convicted of sexual offences against children. Sexual violence against children invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. A child should be able to grow and develop free from sexual interference and exploitation by adults. Sentences must fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children. Harm includes not just physical harm, but the often more pervasive and permanent emotional and psychological harm caused by sexual violence. An offender who sexually abuses a child has a high degree of moral responsibility because, except in the rarest of cases, the offender will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child.
[34] The Supreme Court of Canada declined to set a sentencing range for sexual offences, stating that judges must retain the "the flexibility needed to do justice in individual cases" and to “individualize the sentence to the offender who is before them.” However, the Court stated at para. 114 that:
Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).
[35] The Supreme Court of Canada noted that today society has a deeper understanding of the seriousness and the harm caused by the sexual abuse of children. Sentences for those who sexually abuse children should increase "as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims”.
[36] The Supreme Court provided additional guidance and listed the following significant factors that a court should consider in sentencing:
• Likelihood of re-offending;
• Abuse of a position of Trust or Authority;
• Duration and Frequency of the abuse;
• Age of the victim;
• Degree of physical interference;
• Victim participation.
[37] These offences took place between January 1, 1999 and January 1, 2006. Section 11(i) of the Charter states that:
Any person charged with an offence has the right, if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser sentence.
[38] Therefore, in sentencing CF, it is common ground that he is not subject to a minimum sentence of imprisonment. He is also not subject to the 14-year maximum that is in place today, but the 10-year maximum that was in place at the time of the offences. A conditional sentence is a sentence that is potentially available to him and a section 161 order is not mandatory, I have a discretion to impose it or not.
[39] Defence counsel submitted that since the offences took place over 15 years ago, it would also be unfair to now subject CF to the higher sentences being imposed for sexual offences. Defence counsel relied on the following passage by Rouleau J.A. in R. v. Stuckless, 2019 at para. 185:
It is well-established that a legislative amendment setting or increasing a minimum sentence should generally not be applied retrospectively: see R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 22. In my view, there is no substantive difference between a higher sentence that results from the retrospective application of a parliamentary amendment setting a minimum sentence and a higher sentence that is due to the retrospective application of an amendment "signalling" that offences must be considered to be more serious. Both scenarios involve the consideration of post-offence legislation to give a higher sentence to an offender. In both cases, therefore, this results in a violation of s. 11(i) of the Charter.
[40] Defence counsel acknowledged that Rouleau J.A.’s comments are in a dissenting judgment but argues that this point was not specifically contradicted by the Supreme Court of Canada in R. v. Friesen. I disagree. In R. v. Stuckless, 2019, Husgrove J. and Peppal J.A. wrote concurring opinions and allowed the Crown appeal, increasing Mr. Stuckless’ sentence. Those offences took place from 1965-1995. Peppal J.A., in her concurring opinion, set out the legislative changes since the time of the offences that demonstrated Canadian society’s evolution in their understanding of the gravity of sexual offences against children. Regarding how these amendments affected the consideration of the sentence imposed on Mr. Stuckless she stated that the amendments serve to increase the court’s understanding of the seriousness and the gravity of the offences, which is a critical aspect in imposing a proportionate sentence. She said at para. 112:
As the foregoing review of Parliament’s legislative initiatives and appellate jurisprudence from across the country suggests, there has been significant recognition of the impact of sexual abuse on a child, particularly when that abuse is perpetrated by a person in a position of trust or authority. Parliament’s legislative reforms governing sexual offences signal that society’s denunciation of this conduct must be reflected in the sentences imposed by courts. These legislative amendments, while not applicable to the offences committed by the respondent, indicate a significant societal recognition of the gravity of sexual offences against children. This recognition is not an alteration of weight to be assigned to a factor, or justification for imposing a higher sentence than is fit in the circumstances. Understanding the gravity of the offences in a general sense is an important aspect of imposing a proportionate sentence. It serves to contextualize the seriousness of the offences and recognizes that sentencing should not be divorced from a contemporary understanding of the harm occasioned by the offences. The legislative amendments are not a standalone justification for imposing a higher sentence, nor do I rely on them for that purpose. As mentioned, they simply reflect society’s better understanding of harm caused by these offences to victims and the community, and the need to address this harm in the sentencing process as argued by the Crown.
[41] The Supreme Court of Canada, in R. v. Friesen, cited and clearly accepted Pepall J.A.’s comments. The Court stated at para. 74:
It follows from this discussion that sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. In particular, taking the harmfulness of these offences into account ensures that the sentence fully reflects the "life-altering consequences" that can and often do flow from the sexual violence (Woodward, at para. 76; see also Stuckless (2019), at para. 56, per Huscroft J.A., and paras. 90 and 135, per Pepall J.A.). Courts should also weigh these harms in a manner that reflects society's deepening and evolving understanding of their severity (Stuckless (2019), at para. 112, per Pepall J.A.; Goldfinch, at para. 37).
[42] And at para. 110:
A second reason why upward departure from precedents may be required is that courts’ understanding of the gravity and harmfulness of sexual offences against children has deepened, as we have sought to explain above. As Pepall J.A. observed in Stuckless (2019), there has been a considerable evolution in Canadian society's understanding of the gravity and harmfulness of these offences (para. 90).
[43] Furthermore, legislative amendments and recent pronouncements simply serve to ensure that we understand the wrongfulness and the harmfulness of the offences. Turning a blind eye to such a reality because of when the offences took place is wrong. Finally, while there have been legislative amendments since these offences took place, the Ontario Court of Appeal had made it clear in its judgment in R. v. D.(D) in 2002, at the time of these offences, that generally the sexual abuse of children will require the imposition of substantial sentences. In R. v. D.(D) the Court of Appeal at para. 44 stated that:
[A]s 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.
[44] I agree with defence counsel that R. v. Friesen does not create a “free for all” and require that all those sentenced for sexual offences go to the high end of the range. As stated above, sentencing is an individualized process and justice must be done in the specific case.
Applying the legal principles to this case
[45] Crown and defence counsel have provided me with a number of cases in support of their respective positions. I have read them all but apart from referring to the relevant legal principles I do not think it is helpful to go through the individual cases to compare and contrast the various fact patterns with the case at hand. Furthermore, despite the fact that R. v. D.(D). was released in 2002 and is often cited and quoted (for example see R. v. W.Q., 2006 CanLII 21035 (ON CA), [2006] O.J. No. 2491 at para. 19, R. v. J.N., 2013 ONCA 251, 305 O.A.C. 175 at para. 55), not all the cases are consistent with the principals set out in R. v. D.D. or the Supreme Court of Canada’s decision in R. v. Friesen.
[46] Defence counsel has asked for a conditional sentence. In R. v. H.S., 2014 ONCA 323, [2014] O.J. No. 1974, the Court of Appeal reiterated that the starting point for such an analysis is a determination of the appropriate range of available sentences. In my view, for the reasons set out below, a penitentiary term is required to address the wrongfulness and harmfulness of CF’s conduct in sexually abusing BSM. Thus, a conditional sentence is not an available sentencing option.
[47] As noted above, the Supreme Court of Canada set out a number of significant factors that a court should consider at the sentencing stage. In this case, CF was in a position of trust. He abused that trust by sexually abusing, in their home, BSM over many years, starting from the young age of four or five. The sexual activity was extensive and included mutual acts of oral sex, some culminating in CF ejaculating. BSM was unable to say how many times these acts occurred except that she count not count the times on her hands and feet and they only stopped when she was older and she realized it was wrong. The abuse took place over an approximate four-year period.
[48] In R. v. Friesen, the Supreme Court of Canada noted the devasting effects even one act of sexual abuse could cause. The court stated at paragraph 58:
These forms of harm are particularly pronounced for children. Sexual violence can interfere with children's self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity (Sharpe, at paras. 158, 184-85 and 188, per L'Heureux-Dubé, Gonthier and Bastarache JJ.; G. Renaud, The Sentencing Code of Canada: Principles and Objectives (2009), at s. 12.64). For this reason, even a single instance of sexual violence can "permanently alter the course of a child's life" (Stuckless (2019), at para. 136, per Pepall J.A.). As Otis J.A. explained in L. (J.-J.), at p. 250:
[TRANSLATION] The shattering of the personality of a child at a stage where [the child's] budding organization as a person has only a very fragile defensive structure, will result – in the long term -- in suffering, distress and the loss of self-esteem.
[49] The court further commented upon the effect of the abuse when the child becomes an adult, stating at para 81:
Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim's adult years. First, children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult as a result of the sexual violence. Second children may be more prone to engage in sexual violence against children themselves when they reach adulthood (Woodward, at para. 72; D. (D.), at paras. 37-38). Third, children are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults (Bauman, at p. 355; Goldfinch, at para. 37; R. v. L.V., 2016 SKCA 74, 480 Sask.R. 181, at para. 104, citing D. Todd, "Sentencing of Adult Offenders in Cases Involving Sexual Abuse of Children: Too Little, Too Late? A View From the Pennsylvania Bench" (2004), 109 Penn. St. L. Rev. 487, at pp. 509-10).
[50] The Supreme Court’s comments are quite applicable to this case as the harm caused to BSM was and is immense. She suffers from crippling anxiety, depression, fear of physical intimacy, nightmares and problems sleeping, self-harm and post traumatic stress disorder. She has difficulties being intimate with her fiancé without experiencing panic attacks. She is on medication for the panic attacks, takes sleeping pills for her insomnia, and takes daily mood stabilizers.
[51] The abuse of BSM started when she was young, four or five years old. CF’s moral blameworthiness is very high as it would be patently obvious to him at the time, the wrong he was doing and the harm he was causing. Again, these were repeated acts of abuse, repeated acts of wrong. As stated in R. v. Friesen at para. 133:
In sum, sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime. Judges cannot permit the number of violent assaults to become a statistic. Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risks of long-term harm will materialize. Each further instance shows a continued and renewed choice by the offender to continue to violently victimize children.
[52] I do not accept the defence’s position that CF’s moral culpability was somewhat diminished because of his opioid addiction that may have been at play during part of the offending period. The evidence in this regard is threadbare. Dr. Lesser, in her letter, stated that between 2002 to 2004 CF had an escalation of various narcotics to try and control his back pain. How this escalation affected his cognitive abilities is completely unknown. Critically, CF told the pre-sentence report author that his abuse of drugs and alcohol started after his ex-wife (BSM’s mother) left him, which is after the time frame of the offences.
[53] The young age of the complainant enhances CF’s moral responsibility and increases the harm caused to the complainant; R. v. Friesen at paras. 134 and 135.
[54] There are mitigating factors that must be considered. They stem not from the circumstances of the offences, but from the circumstances of the offender, CF. CF does not have a criminal record and he has support in the community. He has been able to lead a pro-social life and was gainfully employed until he had to go on long-term disability. He has worked hard to overcome a substance abuse disorder. He has mental health issues. He is bi-polar and had a manic incident the summer of 2019. He has made eight suicide attempts, most recently in the fall of 2017. Rehabilitation is a factor that supports a lower period of incarceration; R. v. Friesen at para. 124. It is difficult to say that CF is rehabilitated given that he has, as is his right, not admitted responsibility for the offences and shown no remorse for his own actions. However, I do not think there is much dispute that he is not a risk to the community. The offences took place over 15 years ago and there has been no evidence of criminality since. In this sense the passage of time since the offences took place is a mitigating factor as it has demonstrated CF’s low risk to the community. However, the lapse in time does not render inapplicable the principles of general deterrence and denunciation which are of primary concern in these cases; R. v. W.W.M. (2006), 2006 CanLII 3262 (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A.); R. v. H.S.
[55] The defence submits that CF’s ongoing struggle with managing his mental health and addiction make the penitentiary system especially difficult for him. The defence submits that the reports filed show that the leading cause of death in the penitentiary is suicide. Inmates who have addiction issues and have made prior suicide attempts are at an elevated risk. In addition, according to CF’s psychiatrist his suicide attempts are caused by stress. CF was found, after his last suicide attempt, by family members. He needs his community support which is why, the defence submitted that a conditional sentence is appropriate, or he should be given a reformatory sentence with a recommendation that he go to the Ontario Correctional Institute or St. Lawrence Valley for treatment. A lengthy period of incarceration, it is submitted would jeopardize his fragile mental stability.
[56] An offender’s mental illness is a relevant factor to consider on sentencing and it is part of the personal circumstances of the offender; R. v. Ellis, 2013 ONCA 739, [2013] O.J. No. 5583 at para. 117, R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141 at para. 136. It is not suggested in this case that the CF’s mental illness played any role in the commission of the offences thus requiring me to place less emphasis on denunciation and deterrence and more on rehabilitation; R. v. Shahnawaz, 2000 CanLII 16973 (ON CA), [2000] O.J. No. 4151 (Ont. C.A.) at paras. 30-34. R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 (C.A.), at para. 11, R. v. Ellis, at paras. 53-54, 107-122. An offender’s mental illness could have collateral consequences if there is evidence that the jailer’s inability to handle the mental health concerns causes a disproportionate impact on the offender. As stated by the Court of Appeal in R. v. H.S., at para. 38:
The status of the offender's health may be a relevant consideration on sentencing, but in this case there was no evidence at the sentencing hearing that the respondent's medical conditions could not be properly treated while he was incarcerated. In these circumstances, no reduction in an otherwise fit sentence was warranted due to the respondent's health problems: R. v. Aquino (2002), 55 W.C.B. (2d) 314 (Ont. C.A.); R. v. Malicia, [2004] O.J. No. 2554 (C.A.); R. v. R.L., 2013 ONCA 504.
[57] While I have no doubt that it would be easier for CF to manage his mental health and addiction if he was in the community, the materials filed do not show that the federal penitentiary cannot address CF’s mental health concerns. Correctional Services of Canada are statutorily compelled to take care of CF and provide for his essential health care, which includes mental health care; s. 86(1) Corrections and Conditional Release Act. Mr. Thompson has set out how the intake unit works and how those with mental health issues are dealt with. I do not find the 2014 report, now six years old, helpful on this issue, apart from highlighting that death by suicide is a concern in the penitentiary. The report states that the risk factors for inmates are similar to the risk factors of those in the community. The 2018 report shows a decrease in suicides, in the correctional institute in 2015-16 and 2016-17 with 2016-17 seeing the least amount of suicides both in terms of number and percentage for the past decade and lower than seen in the provincial institutions. It is difficult to predict the state of CF’s health or the health of any prisoner while in custody. Such matters are properly left to the correctional authorities; R. v. Shahnawaz, at paras. 30-34. R. v. Prioriello, at para. 1.
[58] In R. v. Morgan, 2020 ONCA 279, [2020] O.J. No. 1978, the Court of Appeal found that COVID-19 is a collateral consequence and held at para. 10 that:
However, Moldaver J. went on to make a further observation in Suter that has direct application to the case here. He said, at para. 56:
I agree with the Court of Appeal that the fundamental principle of proportionality must prevail in every case - collateral consequences cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender.
[59] I do not see the COVID-19 pandemic as being a relevant factor on this sentencing. There is no evidence that CF is particularly vulnerable to the virus, which would make a sentence more impactful on him. There has been little evidence of COVID-19 in the federal institution. The only evidence we have is that as of August 28, 2020, there were no cases. COVID-19 is something that can be addressed by the parole authorities; R. v. Thompson, 2020 ONCA 361, [2020] O.J. No. 2557. I appreciate defence counsel’s point that the initial quarantine period in the institution as a result of the COVID-19 screening process for new inmates would be difficult for him given his mental health problems. However, how exactly he would be affected is unclear and difficult to assess and quantify for the purposes of sentencing.
[60] That being said, I do not expect his period of incarceration to be an easy one and as noted earlier, I am prepared to consider CF’s mental illness and mental health concerns as part of the constellation of mitigating factors that serve to reduce his overall sentence.
Conclusion
[61] I end with the words used by the Supreme Court of Canada at the outset of their decision in R. v. Friesen, “Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence.” CF did not protect his stepdaughter. Instead, he caused her, at an early age, great harm. A harm that is still present today. In my view, having regard to the aggravating and mitigating factors discussed above a total sentence of five years in jail is appropriate.
[62] I therefore impose the following sentence:
a. Count1: Stayed pursuant to R. v. Kienapple;
b. Count 2: five years:
c. Count 3: five years concurrent;
d. There shall be a DNA order;
e. There shall be a section109 weapons prohibition order for 10 years;
f. There shall be a SOIRA order for 20 years; and
g. There shall be a s. 743.21 non-communication order with the complainant, BSM, except through counsel as it relates to the family law proceedings.
[63] At the time of these offences, the court had a discretion whether to impose a s. 161 order. I decline to make that order. There is no evidence that he is a current risk to children; R. v. Schulz, 2018 ONCA 598, [2018] O.J. No. 3526.
Justice H. Leibovich
Released: October 9, 2020
OSHAWA COURT FILE NO.: CR-19-14985
DATE: 20201009
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CF
REASONS FOR SENTENCE
Justice H. Leibovich
Released: October 9, 2020
[^1]: The affidavit was unsigned but defence counsel was content that I be allowed to rely on it.