COURT FILE NO.: CR-17-0531

DATE: 2020-11-16

SUPERIOR COURT OF JUSTICE – ONTARIO

B E T W E E N:

Her Majesty the Queen

— and —

R.K., Defendant

Counsel: C. VandenBroek, for the Crown G. Pannu, for the Defendant

HEARD: July 11 and 12, 2019

REASONS FOR SENTENCE

TZIMAS J.

INTRODUCTION

[1] On October 15, 2019, I found R.K. guilty of touching L.C.M. for a sexual purpose, contrary to section 151 of the Criminal Code of Canada. The instances of sexual interference were numerous and incremental over a period of approximately six years. I found him not guilty of uttering any threat to kill L.C.M.

[2] My complete findings were outlined in my Reasons for Judgment, in R. v. R.K., 2019 ONSC 5877. I do not propose to repeat them in any detail other than to make reference to the key findings relevant to set the context for my conclusions on R.K.’s sentencing.

[3] Sentencing submissions were made on November 26, 2019. The delivery of my decision was scheduled for January 9, 2020. However, due to a conflict in my trial schedule, that date had to be adjourned to April 2, 2020. The COVID19 emergency measures issued on March 15, 2020 resulted in a further adjournment for an extended period of time.

[4] November 9, 2020 was the date that was scheduled for the delivery of my decision. On that date, R.K. advised the court, through his lawyer that people with whom he was living were experiencing COVID19 symptoms and he was therefore awaiting an appointment to get tested. The court attendance was therefore adjourned to November 16, 2020.

[5] For the reasons that follow, I have concluded that an appropriate sentence for R. K. is 8 years in the penitentiary. I also make the following ancillary orders pursuant to the applicable sections of the Criminal Code of Canada: a SOIRA order for a period of 20 years, a DNA order, a s. 161 order restricting R.K.’s attendance at any day care, playground, community center, or any residence where there are children under the age of 16, with the exception of his sons, P., K., K., and M., for a period of 5 years following his release from prison, and a s.743.2(1) non-communication order with L.C.M.

[6] Finally, I recommend that R.K. be offered the benefit of the appropriate counselling. Even though the prospects for rehabilitation, given R.K.’s denial of any guilt and apparent lack of any insight are low, R.K. may have a change of heart and in any event, should be offered the opportunity to obtain the kind of support he may need to heal. He has already indicated that he has been receiving some counselling and those efforts should continue.

FACTS OF THE OFFENCE

[7] R.K. sexually interfered with his young daughter from the time she was six years old and until she was twelve. This occurred on several occasions. The instances of sexual interference evolved gradually and progressively from sexual touching to fellatio and sexual intercourse.

[8] As a result of these experiences, L.C.M. suffered very deep embarrassment and trauma, including having suicidal thoughts. She required hospitalization for an extended period of time, followed by extensive counselling. But for her entries in her diary, which her foster mother discovered, L.C.M.’s distress and fear was so deep that she said she would never have come forward with the allegations against her father. Her express indication during her testimony that she never intended on speaking up, and her reluctance to speak, even in the face of multiple reassurances by the police that what occurred to her was wrong, only underscored L.C.M.’s level of distress she endured in her father’s care.

CIRCUMSTANCES OF THE OFFENDER

[9] The court received a Pre-Sentencing Report dated November 15, 2019. R.K. is 46 years old. He was born and raised in India and is one of four children. His formative years were described in positive terms.

[10] He met L.C.M.’s mother in 2000. His family did not approve of his wife for religious reasons and that caused a strain in their relationship because of her different religion. When they decided to get married, they did so secretly and then lived separately.

[11] L.C.M. was born in 2004. In 2005, his wife secured a job in Canada as a nanny and moved there, leaving L.C.M., who was 14 months old back in India in R.K.’s care. She returned to India for a short visit in 2010 but then returned to Canada. R.K. and L.C.M. followed R.K.’s wife to Canada in July 2007 even though R.K. said that he was initially reluctant to do so.

[12] R.K. explained that over the years, in 2007, in 2010, and in 2013, his wife had three sons though he was not the biological father. Nonetheless, he agreed to raise them as his own and said they had a “normal father and son” relationship.

[13] With respect to his relationship with L.C.M. he described that as “very good”. He said that she was attached to him because he was the one who raised her in her first few years. He said that her relationship with her mother was fraught with arguments that even required the police to attend at the family home. He said that he responded to the conflict by moving out of the family home in 2011. He returned in 2012 when his wife was undergoing cancer treatment. He added that in 2016 his wife was charged with assault of their daughter and that the CAS removed the children from the family home in November 2016.

[14] R.K. expressed frustration with the CAS. He said that as of 2019 the three sons were back in their mother’s care but that L.C.M. remained in foster care.

[15] Regarding his conviction, R.K. stood by his position that he was not guilty. He said that his daughter’s allegations against him were the product of being “brainwashed by CAS and the lawyers”. In support of that view he reported that his eight year old son gave him a very graphic and express description of the foster father sexually abusing his daughter.

[16] On his own physical and mental health, R.K. disclosed that he suffers from high blood pressure and is on three different medications. He is also diabetic. He said that he experienced suicidal thoughts following his arrest and continues to have difficulties sleeping. He attended for some counselling and was looking to have more sessions.

[17] The author of the PSR reported that R.K. was found guilty of assault causing bodily harm on September 24, 2014. He received a conditional discharge and 24 months of probation. R.K. confirmed that the assault was against his wife and that he completed 50 hours of community service.

[18] L.C.M.’s mother, S.M., who was also interviewed for the PSR, corroborated most of what R.K. reported. She confirmed that R.K. was not the father to her three sons. She said that they separated in 2011 because she was having a relationship with another man, whom she married in 2011. R.K. helped her raise two of her sons until 2017. With respect to her daughter, she said that she was lucky to have a father like R.K.

[19] R.K.’s friend, R.N., who was also interviewed for the PSR, said that R.K. was a very nice man who could not have sexually assaulted his daughter. He described his friend as an honest, sincere, dependable and peaceful man. He also expressed the view that L.C.M. was sexually assaulted while in foster care, that the CAS wanted to cover up this incident and that it bribed L.C.M. with an iPhone and a laptop.

[20] R.N. also verified much of what S.M. was reported to have said about her relationship with R.K. and her three sons. He described R.K. as a good father. Finally, he also reported his understanding that R.K.’s wife, i.e., S.M. knew that it would have been impossible for R.K. to have “sexually attacked their daughter”.

IMPACT OF THE OFFENCES

[21] The Court received a victim impact statement from L.C.M. She reported that her father’s conduct had a huge emotional impact on her life. She said that she has nightmares, and has trouble sleeping due to various flashbacks. She has trouble trusting people and fears that they are out to get her. As much as she would like to do what she can to heal, she said she feels ashamed of what occurred and has trouble talking about it. She is paranoid in her day-to-day life activities and feels that she has to be extra cautious. She fears that something bad will happen to her and continues to blame herself. She wonders about what she did to cause her father’s conduct.

[22] In support of her emotional difficulties, L.C.M. said that she has been prescribed sleeping medication and mood stabilizers to manage her anxiety and paranoia. She also expressed the fear that her father might try to harm her to seek revenge for speaking against him. Specifically, she said that “I won’t feel safe or comfortable being near him or even having any contact with the accused unless I am with someone that I trust and know that they will be able to protect me from him”.

POSITION of the PARTIES

a) The Crown

[23] The Crown sought a penitentiary sentence of 8 years as well as a number of ancillary orders.

[24] Foundational to the Crown’s position was the analysis contained in R v. Woodward, (2011) 2011 ONCA 610, 107 O.R. (3d) 81. I note that at the time of the Crown’s submissions the Supreme Court of Canada had not yet released its decision in R v. Friesen 2020 SCC 9. Counsel for both sides were offered the opportunity to make supplementary submissions. Crown counsel said that her original submissions were consistent with the directions in Friesen and had nothing further to add. She confirmed that an 8-year sentence term remained an appropriate term in all the circumstances. Defence counsel acknowledged Friesen but said that he had nothing to add to his submissions. He continued to hold the position that a 5-year prison term remained appropriate.

[25] Substantially, Crown counsel noted that children are the most valued and most vulnerable assets. As a society we owed it to children to protect them from the harm caused by sexual predators. She added that in their formative years, children were very susceptible to being taken advantage by adult sexual offenders. The consequences of such reprehensible conduct are numerous. Children often suffer immediate physical and psychological harm, they may never be able to form loving and caring relationships with another adult, and as adults, they may be prone to becoming abusers themselves. Finally, absent exceptional circumstances, in the case of adult predators, denunciation and deterrence must take precedence over other recognized objectives of sentencing.

[26] The Crown outlined six aggravating factors:

a. Breach of Trust: R.K. is L.C.M.’s father. His conduct resulted in a complete breach of trust. L.C.M. looked up to her father. The break was especial pronounced because of the fact that R.K. had been L.C.M.’s primary caregiver in the first 6 years of her life.

b. Location of incidents: The incidents all took place in the family home. This was L.C.M.’s sanctum and it was destroyed.

c. Term of sexual interference: The incidents occurred over a period of six years.

d. Nature of the interference: They became progressively worse starting with instances of “weird touching” and reaching full intercourse and fellatio. R.K. did not use a condom.

e. Mouth stuffed with cloth and slapping: R.K.’s resort to putting a cloth in L.C.M.’s mouth to stop her from making any noise and slapping around was a huge aggravating factor.

f. L.C.M.’s age: R.K.’s first encounters occurred when L.C.M. was 6 years old. They continued periodically until L.C.M. was 12.

[27] The Crown identified two mitigating factors. She noted that R.K. remained consistently employed until he was charged and he did take care of the three sons. She disagreed that R.K.’s financial difficulties amounted to a mitigating factor and expressed concern that R.K.’s blaming of CAS reflected his complete lack of any insight and suggested a complete inability to be rehabilitated.

[28] On the appropriate prison term, counsel submitted that a five or six year term was generally a minimum for the prolonged sexual abuse of a child that included penetration by an adult in a position of trust, see R v. M.A.G. 2015 ONCA 725, [2015] O.J. No. 5647 (C.A.). The examples before the court ranged from 5 to 9 years. Although counsel reviewed several cases in the 7 to 9 year range, she drew the court’s attention to R v. P.B., [2019] O.J. No. 136 (C.A.) as an example of a case with similar facts and where the court set the prison term at 8 years. Counsel submitted that even if there were some differences, they were minor.

[29] Counsel rejected the defence’s proposal of a 5-year prison term as appropriate. Commenting on each of the cases submitted by the defence, Crown counsel note that the examples all related to instances with far fewer aggravating factors. Some of the cases involved guilty pleas and others involved one instance of sexual interference as opposed to such activity over a prolonged period of time.

[30] The full list of cases that the Crown submitted to the court in support of her submissions is listed in Schedule “A” to these reasons.

b) The Defence

[31] Defence counsel disagreed with a term of 8 years and suggested instead that a 5-year term would be more appropriate given R.K’s particular circumstances. Counsel also questioned the requested for a DNA sample as well as the limitations on R.K.’s contact with children and possible employment locations.

[32] Counsel did not disagree with the Crown’s identification of the aggravating factors. However, he listed several mitigating factors:

a. Bail terms: R.K. did not breach any of his bail terms;

b. No criminal record: Although R.K. was charged for assault against his wife, he received a conditional discharge.

c. Cultural challenges: Culturally, rejection in the Southeast Asian Community is very dramatic. For R.K., his own family’s rejection of his wife was very pronounced and impacted on his overall well-being.

d. Employment: R.K. remained steadily employed until he was charged.

e. Financial Hardship: As a result of the charges, R.K. has suffered financially and is now dependent on Ontario Works.

f. Care of his sons: The CAS’ decision to allow the three sons to return to R.K.’s

[33] Counsel filed a number of cases for the court’s consideration, which are also listed in Schedule “A” to these reasons. He relied on them to provide the court with examples of instances where sentencing judges ordered terms that were less than the 8-year term sought by the Crown.

[34] Finally, R.K. was offered the opportunity to address the court. He complained that he could not understand why the Crown wanted him to be guilty. He said that had he committed the offences he should have been feeling guilty but that he had no such feeling. He said that he had evidence that his daughter loved him but that he was never permitted to advance that evidence.

[35] He proceeded to advance allegations against the CAS and the foster father. Specifically, R.K. alleged that the CAS was protecting the foster family. He could not understand why the court would accept the testimony from his daughter but not his son. Ultimately, he said that in his view he was never given a chance to prove his innocence and that whoever was behind his prosecution would be punished by God.

[36] Finally, he described how he contemplated suicide on repeated occasions but decided against it because he did not want to ruin his daughter. He explained that in such an eventuality, his daughter would be blamed and he did not want her to carry such a burden. He ended his extensive narrative with a request that he be given a chance to prove his innocence and he added that in his view he satisfied his duty as a father.

[37] Although R.K. testified in his defence and was examined very extensively, both in chief and in cross, he never raised any allegations against either the CAS or the foster parents. At the conclusion of R.K.’s address, counsel did not make any additional submissions.

[38] A couple of days following the conclusion of the sentencing submissions, I received at my office a red binder with several pages of complaints concerning R.K.’s hearing, the adequacy of the legal counsel he received, the allegation that the foster father, and not R.K. was the one who engaged in reprehensible conduct and abuse, that the Children’s Aid Society was protecting the foster family, and that R.K. was denied the opportunity to respond to the accusations against him. The author of the materials purported to be R.K.’s elderly uncle who attended the trial on most days and was indeed there when R.K. testified. The complaints echoed much, though not necessarily all, of what R.K. said in his address to the court.

[39] For the purposes of the record, I had my staff reproduce the contents of the binder for the parties and offered them the opportunity to make submissions on what the court should do about this communication. Both counsel for the Crown and for R.K. indicated that they did not wish to make any submissions.

[40] On November 9, 2020, when counsel attended to advise of R.K.’s potential exposure to COVID19 and the need for a short adjournment, I had the “red binder” and my letter to counsel about this communication as exhibits 3 and 4 respectively to the sentencing hearing. I also sought to confirm the position by both the Crown and defence counsel to the effect that they had nothing to add to their original sentencing submissions, or make any other submissions.

[41] R.K., who attended on November 9, 2020 by phone, spoke up and indicated through an interpreter that his lawyer had prevented him from telling the court everything that he wanted to say. In light of that comment, I asked R.K.’s counsel to obtain specific instructions to verify whether R.K. adopted the contents of the “red binder” and more generally whether given this late stage of the sentencing process, he might be asking the court for any remedy.

[42] This morning, just before the court attendance was set to begin, another envelope arrived, also from R.K.’s uncle. I did not review the contents of the envelope for two reasons. First, the uncle has no standing to be addressing the court. Having had the experience with the “red binder”, such communications are entirely inappropriate. Secondly, since the envelope originated from a household where certain residents were said to have exhibited COVID-19 symptoms, and since I did not have any information regarding any test results, I was not prepared to take any risks of contamination by touching the contents. The envelope was placed in a plastic sleeve and brought to court to be made an exhibit to the sentencing.

[43] Once in the courtroom, I advised counsel of the latest envelope and sought their submissions. Counsel for R.K. confirmed that he remained counsel of record, that his client had no knowledge of this latest envelope or its contents, and that the court ought to ignore any communications from the uncle as he lacked standing. Crown counsel had nothing further to add.

[44] I concurred with the submissions and determined that it was appropriate to proceed to pronounce my sentence.

ANALYSIS

a. Applicable Principles

[45] The task before me is to impose a sentence on an offender whose conduct towards his young daughter over a period of six years was dreadful. I find it essential to begin my analysis with the directions and observations outlined in the most recent unanimous decision by the Supreme Court of Canada in Friesen, at para. 42:

42 Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 67). As Otis J.A. stated in R v. L.(J.J.) (1998), 126 C.C.C. (3d) 235 (Que. C.A.), [Translation] “the protection of children constitute[s] one of the essential and perennial values” of Canadian society (p.250). Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society (R v. Mills, 2019 SCC 22 at 23).

43 … Sentencing is one of the most important and “most delicate stages of the criminal justice process” (Lacasse, at para. 1). It is at this stage that the judge must weigh the wrongfulness of sexual violence and the harm that it causes and give effect to both in imposing a sentence (C.L.M. Boyle, Sexual Assault (1984), at p.171). It is important for this Court to provide guidance so that the sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim (see P. Marshall “Sexual Assault, The Charter and Sentencing Reform” (1988), 63 C.R. (3d) 216 at 219). To do otherwise would improperly permit myths that Parliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge at the sentencing stage (R.P. Nadin-Davis, “Making a Silk Purse? Sentencing: The ‘New’ Sexual Offences” (1983), 32 C.R. (3d) 28, at p.46). This result could underminethe credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large (see Lacasse, at p.3).

[46] The sentencing principles of the Criminal Code for all offenders are outlined in section 718:

718 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;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[47] When it comes to offences against children, s.718.01 of the Criminal Code, 2005, c. 32, s.24, provides that the sentencing objectives are to give primary consideration to the objectives of denunciation and deterrence of the offending conduct.

[48] Specifically regarding s.718.01, the SCC in Friesen noted that Parliament intended to focus the attention of sentencing judges on the relative importance of sentencing objectives for cases involving the abuse of children such that it would not be open to the sentencing judge’s discretion to elevate other sentencing objectives to an equal or higher priority, see, at paragraphs 105-107. The Court described such prioritization as a “reasoned response to the wrongfulness of these offences and the serious harm they cause.” Describing the protection of children as one of the most basic values of Canadian society, the Court concluded that a sentence that denounces the offender effectively condemns the offender “for encroaching on our society’s basic code of values”, (M.(C.A.), at para 81).

[49] Friesen also outlined some key factors to be considered in the determination of a fit sentence which touched on the following: a) the likelihood to reoffend; b) abuse of a position of trust or authority; c) the duration and frequency; d) the age of the victim; e) the degree of physical interference; and f) victim participation.

[50] Underpinning these directives is the requirement that courts weigh the harms of sexual offences on children “in a manner that reflects society’s depending and evolving understanding of their severity (Stuckless 2019, at para 112, per Pepall J.A.; Goldfinch, at para37)”, Friesen, at para. 74. Noting that it is not sufficient for courts to “simply state that sexual offences against children are serious”, the Court explained that the sentence that was imposed had to reflect the normative character of the offender’s actions and consequential harm to children, their families, their caregivers, and communities, see para. 76:

76 … We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences. We emphasize that sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case.

[51] On the inherent wrongfulness of the offence, the Court held that “physical contact of a sexual nature with a child always means that the offender has interfered with both the child’s “security of the person from any non-consensual contact or threats or force” and the child’s bodily integrity, which “lies at the core of human dignity and autonomy”. Recognizing that such physical sexual conduct also harms one’s psychological integrity, the Court added that “any physical contact of a sexual nature with a child always constitutes a wrongful act of physical and psychological violence even if it is not accompanied by additional physical violence and does not result in physical or psychological injury. Courts must always give effect to this inherent violence since it forms an integral component of the normative character of the offender’s conduct (M. (C.A.), at para. 80”, see Friesen, at para. 77.

[52] Regarding the potential harm of sexual interference, the Court cautioned that there were two categories of harm to take into account. Harm that manifests itself during childhood and long-term harm. The childhood harms could be so profound that a child is robbed of his or her youth and innocence. The long-term harms may cause victims to: 1) experience difficulties forming a loving and caring relationship with another adult; 2) be more prone to engage in sexual violence children when they reach adulthood; 3) struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicide ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults.

[53] With respect to actual harm, the Court noted that when possible, “court must consider the actual harm that a specific victim has experienced as a result of the offence. This consequential harm is a key determinant of the gravity of the offence (M. (C.A.), at para. 80).

[54] Direct evidence of actual harm is often available. In particular, victim impact statements, including those presented by parents and caregivers of the child, will usually provide the “best evidence” of the harm that the victim has suffered.” The Court added that prosecutors “should make sure to put a sufficient evidentiary record before courts so that they can properly assess “the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it, (Woodward, at para.76)””.

[55] The concerns regarding the harm caused by sexual offences on children was nested within the court’s direction that to arrive at a sentence that reflects the contemporary understanding of sexual violence against children, the sentencing judge must consider (a) the harmfulness and wrongfulness and proportionality assessment; (b) the gravity of the offence; (c) the degree of responsibility of the offender; and the (d) proportionality without a specific victim.

b) Application of the Principles to the factors of this case

i. Aggravating and Mitigating Factors

[56] I turn to my consideration of the aggravating and mitigating factors applicable to R.K.’s behaviour. Beginning with the aggravating factors, I accept all six that were identified by Crown counsel and effectively not disputed by the defense. Although any one of these factors alone would attract the strongest possible denunciation, R.K.’s relationship to L.C.M., in my view, is the most pronounced aggravating factor. On this specific dimension, I echo the obiter in Friesen, that explains why a father – daughter relationship is especially of concern because “it increases the offender’s degree of responsibility”. The Court noted:

129 … An offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger. The breach of a duty of protection and care thus enhances moral blameworthiness (R v. S.(W.B.) (1992), 73 C.C.C. (3d) 530 (Alta. C.A.), at p.537). The abuse of a position of trust also exploits children’s particular vulnerability to trusted adults, which is especially moral blameworthy (D. (D.), at paras. 24 and 35; Rayo, at paras. 121-22).

130 We would thus emphasize that, all other things being equal, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. ...

[57] The trust relationship, combined with L.C.M.’s very young age, the duration of the interference, to say nothing of the increasingly aggressive nature of the sexual acts, reaching the point of sexual intercourse and fellatio. R.K. is L.C.M.’s father. He abused his position of trust in an unspeakable way, over an extended period of time, and at during some of the more tender years of his daughter’s life.

[58] I cannot ignore the fact that his behaviour and his sexual activities against his own daughter came to compound the physical abuse that L.C.M. was enduring simultaneously in her mother’s hands. To be clear, R.K. was not on trial in relation to anything connected to his wife’s conduct or anything he might have done to protect his daughter. Nor is his failure to protect his daughter from her mother’s conduct, in and of itself an aggravating factor. Nonetheless, the coincidence of R.K.’s sexual interference with his wife’s own alleged misconduct magnifies R.K.’s failure to protect his daughter and his moral blameworthiness. At a time when L.C.M. needed her father’s protection the most, not only did R.K. walk away, as he admitted, but he compounded L.C.M.’s difficulties with his own sexual interference with her. That behaviour can only attract the court’s denunciation in the clearest terms and with a substantial sentence.

[59] The harm to L.C.M. can also not be overstated but rather, only serves to underscore the need for a higher sentence. On the evidence before the court, L.C.M.’s harm is not theoretical; at trial, this court heard evidence in very vivid terms on how L.C.M. described the shame she felt, her doubts about being at fault or having caused her father’s behaviour, the extensive care she required at Sick Kids Hospital, her suicidal thoughts, and the need for psychological support.

[60] L.C.M.’s difficulties were magnified in her victim impact statement. Regrettably, the difficulties she described both in court and in her victim impact statement track so many of the harms discussed in Friesen. They also serve to validate the contemporary understanding of sexual violence against children in a tragically profound way. Having said that, L.C.M. is young, she has been receiving support, and one can only hope that her healing will reach a point where she will overcome her anxieties, eliminate her nightmares and have positive life experiences that will bring her happiness and personal fulfilment. While I recognize that she will never get her childhood back, no matter what the terms to her father’s punishment, it is my hope that the court’s denunciation in the firmest of terms will go some way to convey the court’s recognition that what happened to L.C.M. was wrong, it was not her fault, and that the court effectively acknowledged her courage to come forward and testify.

[61] As for the suggested mitigating factors, while I accept the two identified by Crown counsel, they are outweighed very significantly by the gravity of R.K.’s conduct. The defence’s identification of R.K.’s financial difficulties since the criminal charges is not a mitigating factor.

[62] The additional defense submission that R.K.’s cultural experience and background, as it related to his family’s rejection of his wife, amounted to a mitigating factor is both dubious and problematic. I acknowledge the SCC’s caution that sentencing judges should not disregard relevant factors that may reduce the offender’s moral culpability, see Friesen, at para. 91. There is no doubt that the personal circumstances of an offender may have a mitigating effect on the assessment of one’s moral blameworthiness. But such a factor must be supported by an evidentiary foundation.

[63] In this case, no evidence was led to support the contention that R.K.’s cultural experience and the underlying attitudes towards his choice of a spouse affected him to such an extent so as to compromise his moral culpability and therefore impact on the appropriate sentence. In other words, there was no evidence before the court concerning any cultural norms relevant to R.K.’s heritage, to provide even some insight as to how such a cultural denunciation may have affected R.K’s psychology.

[64] Moreover, nothing in R.K’s own PSR suggested that his family’s denunciation impacted R.K. at all. To the contrary, the court heard that when L.C.M.’s mother left for Canada, R.K.’s own family members rallied to help him raise a 14-month-old infant. R.K. also reported that although his siblings did not approve of his marriage, they were able to re-build their relationship.

[65] There was also no evidence of any dysfunction in his own upbringing or experiences growing up to suggest that his own difficulties impacted on his ability to negotiate his own social relationships some difficult experiences. The author of the PSR noted that R.K. “denied any form of abuse within the familial home and further denied any involvement of child welfare services during his upbringing”. More to the point, R.K. did not raise any such perspective.

[66] Given these deficiencies, I see very little foundation to the proposed mitigation factor and reject it as a factor to consider in the overall assessment of an appropriate sentence.

[67] Insofar as R.K. denied any liability and continues to insist that he is not guilty, R.K. cannot get the benefit that he would otherwise receive had he taken responsibility for his actions, pleaded guilty and foregone a trial. To be clear, R.K.’s choice to proceed with the trial, his complete denial of the allegations against him, his overriding insistence that he did nothing wrong, and his lack of any insight on the weaknesses to his own testimony is not an aggravating factor; R.K. was entitled to his day in court.

[68] Finally, given the very dramatic and pronounced comments that R.K. made at the conclusion of the sentencing submissions, I find it necessary to make the following observations. I understand that R.K. is unhappy with the outcome of his trial. However his allegation that he was denied the opportunity to testify and to advance a defence flew in the face of his extensive testimony. Similarly, given the severity of the allegations against the foster parents and the CAS, I find it necessary to note that at no time was any such evidence put before the court to be tested and as such they remain completely unfounded allegations.

ii. Appropriate Sentencing Term

[69] Turning to my consideration of the appropriate prison term, the directions to sentencing judges in Friesen is foundational to my determination. In light of that decision, I do not find it necessary to review and distinguish the many cases that counsel for both sides filed in support of their positions, though I confirm that I reviewed those cases and have taken them into account in my overall consideration of an appropriate and just sentence. I do find it necessary to highlight the specific directions outlined in Friesen.

[70] Building on the Court’s articulation of the specific harms of sexual interference to children, the profound contemporary understanding of those harms, the need to protect children from such harm, and therefore the need to revisit out-dated ranges, Friesen offered the following direction:

107 We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiative and the contemporary understanding of the profound harm that sexual violence against children causes. To do so we wish to provide guidance to courts on three specific points:

(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and

(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child.

[71] Of these three considerations, and having regard for the wide sentencing range proposed by the parties, the first requirement is of most significance to this analysis. On this specific point, the Court reasoned that sentences should increase as a response to the recognition of the gravity of sexual offences against children and went on to explain that courts must give “the legislative intent its full effect”:

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). Sentence should thus increase “as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable young victims” (Scofield, at para. 62). Courts should accordingly be cautious about relying on precedents that may be “dated” and fail to reflect society’s current awareness of the impact of sexual abuse on children” (R v. Vautour, 2016 BCCA 497, at para.52). Even more recent precedentsmay be treated with caution if they simply follow dated precedents that inadequately recognize the gravity of sexual violence against children (L.V. at para. 100-1021). Courts are justified in departing from precedents in imposing a fit sentence, such precedents should not be seen as imposing a cap on sentences (see Stuckless (2019), at paras. 61-62, per Huscroft J.A.).

[72] Ultimately, the Court expressly noted that the imposition of proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Speaking in no uncertain terms, the Court said that it wished to convey the message 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”.

[73] In this instance, the sentence term proposed by the defence are for the most part distinguishable from the factual matrix of this case. In my review of those examples, penitentiary terms for anywhere from a couple of years to 5 years were imposed in instances where the offender either pleaded guilty, had a number of mitigating factors, or involved far fewer aggravating factors. None of the examples provided involved the kind of pronounced trust relationship like the one between R.K. and L.C.M. As well, in many instances the duration and nature of the sexual interference was limited. In short, the proposed five-year term is incongruent with the severity of R.K.’s conduct against L.C.M. as already discussed above and fails to take into account the magnitude of L.C.M.’s actual harm.

[74] The cases proposed by Crown Counsel offer a range of 5 to 9 years and do support the proposed term of eight years. I also find that some of the later cases fall in line with the SCC’s observation in Friesen that “upper-single digit and double-digit penitentiary terms should neither be unusual nor reserved for rare or exceptional circumstances.”, see para. 114.

[75] When I take the severity of R.K.’s conduct into account, as well as the very pronounced harms to L.C.M., and consider them against the sum of the cases before me and the directions of Friesen, I conclude that eight years is an appropriate and just penitentiary term. Absent any mitigating factors, I would have been inclined to sentence R.K. to nine or ten years.

[76] With respect to the requested ancillary orders, I make the following ancillary orders pursuant to the applicable sections of the Criminal Code of Canada: a SOIRA order for a period of 20 years, a DNA order, a s. 161 order restricting R.K.’s attendance at any day care, playground, community center, or any residence where there are children under the age of 16, with the exception of his sons, P., K., K., and M., for a period of 5 years following his release from prison, and a s.743.2(1) non-communication order with L.C.M.

[77] Finally, I recommend that R.K. be offered the benefit of the appropriate counselling.

CONCLUSION

[78] Given my findings and conclusions, R.K. is sentenced to 8 years in prison, in addition to the following ancillary orders: a SOIRA order for a period of 20 years, a DNA order, a s. 161 order restricting R.K.’s attendance at any day care, playground, community center, or any residence where there are children under the age of 16, with the exception of his sons, P., K., K., and M., for a period of 5 years following his release from prison, and a s.743.2(1) non-communication order with L.C.M.

Tzimas J.

Released: November 16, 2020

APPENDIX “A”

Cases submitted by the Crown:

R. v. M.A.G., 2015 ONCA 725, [2015] O.J. No. 5647 (C.A.)

R. v. W.Y., [2015] O.J. No. 5230 (C.A.)

R. v. P.B., [2019] O.J. No. 136 (C.A.)

R. v. W.N., [2018] O.J. No. 5647 (S.C.J.)

R. v. R.G., 2010 ONSC 4082, [2010] O.J. No. 4002 (S.C.J.)

R. v. M.C., [2016] O.J. No. 3755 (S.C.J)

R. v. H.B., [2016] O.J. No. 6196

R. v. R.C., [2013] O.J. No. 6068

R. v. J.L., [2015] O.J. No. 5046

R. v. B.L., [2012] O.J. No. 4582

R. v. J.S., [2017] O.J. No. 6259

R. v. R.A.J., 2010 BCCA 304, [2010] B.C.J. No. 1320

R. v. S.S.S., [2018] B.C.J. No 7166 (S.C.)

R. v. C.C.P., [2016] B.C.J. No. 588 (S.C.)

R. v. S.T.H. [2018] B.C.J. No. 808 (S.C.)

R. v. F.H., [2015] N.S.J. No. 1105 (S.C.)

R. v. Woodward, 92011), 2011 ONCA 610, 107 O.R. (3d) 81

Cases submitted by the Defense:

R. v. G.W., [2017] O.J. No. 3558

R. v. M.S., [2017] O.J. No. 4263

R. v. S.S., [2017] O.J. No. 3526

R. v. W.R., [2016] O.J. No. 1969

R. v. R.D., [2016] O.J. No. 3903

R. v. M.C., [2016] O.J. No. 3755

R. v. D.D., [2016] O.J. No. 6264

R. v. B.J., [2016] O.J. No. 6977

R. v. D.H., [2015] O.J. No. 365