SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 17-SA5084

DATE: 20201201

RE: Her Majesty the Queen v. G.C.

BEFORE: Justice Charles T. Hackland

COUNSEL: Michael Boyce for the Crown

Jacob Legault for the Accused

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

SENTENCING DECISION

[1] The accused stands convicted of committing sexual assaults on his daughter (“the complainant”), between October 1991 and September 1997, contrary to section 271 of the Criminal Code, as well as incest contrary to section 155(2) of the Criminal Code. The court’s reasons for judgement are reported at 2020 ONSC 1143.

[2] The offences took place approximately 23-28 years ago while the complainant was between 16 and 20 years of age. The complainant’s family was displaced by a civil war in Africa and she was brought up by her aunt and grandmother in a refugee camp. Her mother died when she was very young. Her father, the accused, who had emigrated to Canada, reunited with his daughter and was able to bring her to live with his family in Canada in October 1991.

[3] The complainant was nearly 16 when she arrived in Canada. The accused, who is now 67, was then in his early 40’s. The complainant went to live with the accused and his family in a small community in Northern Ontario.

[4] Upon her arrival the accused took primary charge of the complainant’s parenting and of overseeing and assisting with her education as she spoke little English and had only a kindergarten level of education. The complainant testified she was enormously grateful to her father for rescuing her from her life of poverty and violence and was totally dependent on him for all aspects of her new life in Canada.

[5] The accused soon began to molest his daughter, including acts of sexual intercourse. He groomed her by trading on her gratitude and her naivete and by using their homework sessions and the driving lessons he provided to her to make sexual demands. He told her that sex between fathers and daughters was a confidential but normal activity and she accepted this and complied so as not to appear ungrateful.

[6] The family moved to a large city during which the complainant completed her final two years of high school. By this time, the complainant realized that the sexual relationship with her father was improper and she became increasingly reluctant to participate. The accused pressured her to continue their sexual activity on threat of no longer providing help with her studies. The complainant became pregnant, at age 19, with the accused’s child during her second last year of high school. The pregnancy was terminated in a local hospital. The matter was hidden from other family members.

[7] In spite of this abuse, consisting of unprotected sexual intercourse on at least a weekly basis over a period of 5 years, the complainant graduated high school and pursued nursing studies in another community. Her victim impact statement movingly describes how her father’s sexual abuse continues to devastate her emotionally and to damage her personal relationships and her ability to continue to work as a nurse. She is estranged from her family, who consider her as a ‘home breaker’ and an ingrate. It was clear to the court from observing her testimony that the complainant remains deeply distressed, some 25 years after the events.

Crown and Defence Position on Sentence

[8] The position of the Crown is that an appropriate sentence for the accused’s crimes is imprisonment for a period of 12 years. The defence submits that a period of imprisonment of 6 and a half to 7 years is appropriate. I would note that the maximum period of imprisonment provided for in the Criminal Code on the sexual assault charge is 10 years imprisonment and on the incest charge is 14 years imprisonment, assuming the complainant was 16 years of age or older at the time of the offences, which I find to be the case.

Aggravating Factors:

[9] With the benefit of counsel’s submissions, I would identify the aggravating and mitigating factors pertaining to the accused’s involvement in and the circumstances of these offences, as follows:

a) The accused’s conduct constituted an egregious and almost incomprehensible breach of trust, trading on his daughter’s gratitude at being rescued from a refugee camp, to force a sexual relationship on a vulnerable and isolated adolescent;

b) Extensive grooming and manipulation of the victim;

c) 5 years of unprotected sexual intercourse, resulting in a pregnancy;

d) The accused is a well-educated social worker who would have had a full appreciation of the harm his activities were causing to his daughter.

Mitigating Factors:

a) The accused has no criminal record and has a history of pro-social conduct in the community, supported by reference letters from credible individuals;

b) The assaults were not brought about by nor did they involve violence;

c) Minimal likelihood of re-offending in all of the circumstances;

d) At age 67, a substantial prison sentence will be an onerous punishment.

Sentencing Principles for These Offences and Relevant Jurisprudence:

[10] In cases that involve the abuse of a person under the age of 18, section 718.01 of the Criminal Code requires the court to give “primary consideration to the objectives of denunciation and deterrence of such conduct” when imposing sentence. This provision, enacted in 2005, reflects Parliament’s response to the inherent wrongfulness of these offences and the very serious harm that they cause to children. In the present case the complainant was 16 when these assaults began and they continued until she left home at age 20. There can be no doubt that the primary sentencing objective in this case must be denunciation and general deterrence.

[11] In its submissions, the Crown relied appropriately on the Supreme Court’s recent decision in R. v. Friesen, 2020 SCC 9, 2020 S.C.C. 9. In this case involving a sexual assault on a 4-year-old child, the court took the opportunity to review the modern medical and social understanding of the grievous and long-lasting harm which results from the sexual abuse of children. The court stressed that these offences must be treated seriously by significant sentences which adequately reflect the goals of denunciation and deterrence.

[12] The court stated at para. 107 of Friesen:

We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives 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.

[13] 13. The court went on to say this about sentence proportionality and appropriate range (at para.114):

“… imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message. … as Moldaver J.A. wrote in D. (D.), “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para. 33). 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).

[14] The court went on to discuss the significant factors to consider when determining a fit sentence. The court identified abuse of a position of trust, the duration and frequency of the assaults and the degree of physical interference with the victim as important factors pointing to longer sentences. On the subject of the victim’s age, the court had these observations concerning adolescents (para.136):

At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence. In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy (citations omitted).

[15] Importantly, and relevant to the present case, the court also observed, (para. 153), “in some cases, a victim’s participation is the result of a campaign of grooming by the offender or of a breach of an existing relationship of trust. In no case should the victim’s participation be considered a mitigating factor. Where a breach of trust or grooming led to the participation, that should properly be seen as an aggravating factor…” (citations omitted).

[16] In R. v. C.M. 2008 ONCA 430 the Court of Appeal considered the sentence of an accused convicted of sexual interference, incest, sexual assault, sexual exploitation and assault causing bodily harm. The accused had sexually assaulted his daughter, beginning when she was 13 years old, for a three-year period. The daughter became pregnant (and had an abortion) and contracted a sexually transmitted disease. The accused was sentenced to 10 years’ incarceration. The sentence appeal was dismissed.

[17] Another case decided on similar facts to the present case, is R. v. C.G. 2015 ONSC 5068. The accused, a 50-year-old Canadian resident, brought his 16-year-old daughter to Canada, from another country where she was living in a secure environment, and had repeated sexual intercourse with her over a period of 2 ½ years. The complainant became pregnant twice. She then reported the abuse to a social worker who notified police. The evidence showed that the assaults had a devastating effect on the complainant. Justice Ricchetti sentenced the accused to 10 years imprisonment, (10 years for incest and 6 years concurrent for sexual assault), after observing that incest was a particularly heinous crime which struck at the moral fibre of our society. He stated, “It is the abuse of a sacred trust and parental relationship by a parent for the parent’s own sexual gratification at the expense and disregard of the devastating effect on the parent’s own child”.

Disposition

[18] The complainant, a trusting and very vulnerable adolescent, endured 5 years of sexual assaults from the accused, conduct which was an egregious breach of parental trust. He brought the complainant to Canada from a refugee camp and then manipulated her gratitude and vulnerability to secure her acquiescence in his sexual assaults. He groomed her for his sexual gratification under the ruse of helping her with her studies. He persuaded her at first that father and daughter sex was normal. Now, some 25 years later, the complainant remains emotionally devastated by these events and estranged from her family.

[19] As for the accused, he has no criminal record and has lived a pro-social life in the community. I also can not ignore that he is 67 years of age and will no doubt find a lengthy penitentiary sentence to be extremely onerous. I also recognize that his sexual assaults were not accompanied by violence, but the grooming and manipulation are deeply troubling.

[20] In my opinion a fit and proper sentence in the circumstances of this case is, on the incest charge a period of 10 years in penitentiary and on the sexual assault charge, a period of 7 years, the sentences to be served concurrently.

Ancillary Orders

[21] The accused will also be bound by the following ancillary orders:

a) A DNA order under s. 487.055(3) of the Criminal Code;

b) A s. 109 Criminal Code weapons prohibition order for life;

c) A Sexual Offenders Information Registry Act order for life; and

d) A s. 743.21 Criminal Code non-communication order with the complainant, while G.C. is in custody.

Date: December 1, 2020

COURT FILE NO.: 17-SA5084

DATE: 20201201

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen

AND

G.C.

COUNSEL: Michael Boyce for the Crown

Jacob Legault for the Accused

Sentencing decision

Justice Charles T. Hackland

Released: December 1, 2020