Her Majesty the Queen v. D.W.

COURT FILE NO.: CR-18-125 (Brantford)

DATE: 2020/12/09

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D. W.

Defendant

Counsel:

Lawrence J. Brock, Counsel for the Crown

Stephen Bernstein, Counsel for the Defendant

HEARD: September 18, 2020

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PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA

d.a. broad

REASONS FOR SENTENCE

(Orally)

[1] On January 17, 2020, D.W. was convicted of the following offences perpetrated against the complainant C.D., who is the daughter of D.W.’s former common-law partner D.B.(C.).

• Count 1: sexual assault contrary to section 271 of the Criminal Code of Canada.

• Count 2: for a sexual purpose did touch C.D., a person under the age of 16, directly with a part of his body contrary to section 151 of the Criminal Code of Canada.

• Count 3: did by word of mouth knowingly utter a threat to C.D. to cause bodily harm to her contrary to section 264.1(1)(a) of the Criminal Code of Canada.

[2] The charge period for the offences was from January 1, 2012 to December 31, 2015. C.D. was five (5) years of age at the beginning of the charge period and eight (8) at the end. She was ten (10) years of age when she first disclosed the sexual abuse to her mother and then to police.

[3] At the request of the Crown, count 2 in the indictment was conditionally stayed in accordance with the Kienapple principle, and the sentencing proceeded on the convictions on the first and third counts – namely the charges under sections 271 and 264.1(1)(a) of the Criminal Code.

[4] The circumstances of the offences were detailed in my Reasons for Decision reported at 2020 ONSC 718 and do not need to be repeated here in detail. For present purposes, the following summary will suffice.

[5] D.W. repeatedly sexually assaulted C.D. in the family home while she was between the ages of five (5) and eight (8) years. The sexual assaults included forced fellatio, including ejaculation into C.D.’s mouth, attempted or partial penetration of her vagina and anus, including ejaculation onto her, and attempted or partial vaginal and anal penetration with a vibrator, digital touching of C.D.’s vagina and cunnilingus while C.D. was in the bathtub and blindfolded. D.W. threatened C.D. by saying he would hurt her mother or would hurt her, intending that his words would intimidate C.D. into silence respecting the sexual abuse.

Victim Impact Statement

[6] D.B.(C.) addressed the court briefly during the sentencing hearing to advise that C.D. respectfully declined an opportunity to make a Victim Impact Statement, as the emotional impact on her of doing so would be too great. D.B.(C.) also declined to make a Victim Impact Statement, as she did not wish to publicly share her and C.D.’s private thoughts respecting the impact of the events on them.

[7] Even in the absence of Victim Impact Statements being made available, it can be inferred that the impact of D.W.’s actions on both C.D. and D.B.(C.) has been devastating, traumatic and profound.

Pre-Sentence Report

[8] The Crown filed a pre-sentence report respecting D.W. (the “PSR”).

[9] The PSR disclosed the following regarding D.W.’s youth, upbringing and other history.

[10] D.W. was raised for the first four years of his life by his mother. His step-father joined the family when he was 4 and remained until he was 11 years of age when his mother and step-father separated. He has a much younger half-brother with whom he does not have a meaningful relationship. He has seen his biological father on occasion and the relationship is distant.

[11] D.W. did not obey the rules of his mother’s home and at age 15 or 16 went to live with his grandmother until he became an adult and moved out on his own. During his teenage years D.W. was rebellious, partied a lot and became involved in excessive alcohol consumption and drugs. He left school at age 16 after grade nine and began working in factories and later was employed doing home renovations. He is planning on securing employment and has a potential employment opportunity working for a friend upon his release from custody. He has been working on his education while incarcerated and has four credits remaining before obtaining his high school diploma.

[12] D.W. admitted to having a significant substance abuse problem between the ages of 14 and 27, which led to previous criminal charges, loss of employment and affected his relationships. He now resides with a female partner with whom he has had a child. He claims to have been clean of illicit drugs for four years.

[13] D.W. was involved in the youth criminal justice system in 2004 and was convicted of driving while impaired and possession of property obtained by crime over $5,000. As an adult he was convicted of domestic assault causing bodily harm in 2008 and as a result attended the Partner Abuse Response program as part of his community supervision. In 2015, D.W. was convicted of forcible confinement, overcoming resistance by attempting to choke, suffocate or strangle another person, and sexual assault. The victim was his 16-year-old cousin. He completed a court-ordered sexual behavioural program.

[14] D.W. enjoys the support of his current partner who plans to be with him when he is released. She told the author of the PSR that she does not believe that D.W. is capable of sexually abusing anyone, especially a child.

[15] The author of the PSR reported that D.W. denied any involvement in the offences before the court. While maintaining his innocence, he was reported to be convinced that something happened to C.D., as “no one could have made her say what she said in court.”

[16] The Crown also filed a copy of a Clinical Consultation report in relation to D.W. dated April 10, 2016 prepared by Alan Kaine, R.S.W., accompanied by a Group Therapy Discharge Summary Report dated July 6, 2016 and Progress Report dated January 16, 2017. It is evident that the Clinical Consultation was conducted in reference to his earlier conviction for forcible confinement, overcoming resistance by attempting to choke, suffocate or strangle another person, and sexual assault referred to in the PSR.

[17] I did not find the Kaine reports to be of assistance in relation to sentencing in the case at bar.

Guiding Principles

[18] As set forth in s. 718 of the Criminal Code, the purpose of sentencing is 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 on the offender. The stated objectives of any sentencing decision include denunciation, deterrence, rehabilitation, reparation for harm done, promotion of offender responsibility and acknowledgement of harm done.

[19] Section 718.01 specifically provides that, when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[20] Section 718.1 of the Code explicitly states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] The principle of parity requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. However, sentencing remains an individualized process such that sentences imposed for similar offences may not be identical (see R. v. Cox, 2011 ONCA 58, 271 O.A.C. 77, at para. 45).

[22] Under the introductory portion of s. 718.2(a), a sentence is to be reduced to take into account mitigating circumstances relating to the offence or the offender, or increased to account for any aggravating circumstances.

[23] Evidence that the offender, in committing the offence, abused a person under the age of 18 years and evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall each be deemed to be aggravating circumstances, pursuant to paras. 718.2(a)(ii.1) and 718.2(a)(iii) of the Criminal Code respectively.

[24] As noted by Fuerst J. in the case of R. v. C. (W.C.) [2009] O.J. No. 4705 (S.C.J.) at para. 28, the Ontario Court of Appeal has repeatedly emphasized that family members who perpetrate intrusive acts of sexual abuse against children to whom they stand in a position of trust should receive penitentiary terms beyond the minimum.

[25] More recently, the Court of Appeal in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 72, reaffirmed the following relevant considerations and principles applicable to these types of cases, derived from the earlier leading case of R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.

(4) Adult sexual predators recognize that children are particularly vulnerable, and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; and (iii) children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[26] At para. 73 of Woodward, the Court observed that these concerns inform the fundamental message that the case of D.(D.) sought to convey at para. 45:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!

Position of the Crown

[27] The Crown seeks a sentence involving a penitentiary term of ten to twelve years, less enhanced credit for pre-sentence custody. It also seeks the following ancillary orders:

a) that D.W. provide a DNA sample on the basis that the offence under s. 271 is a primary designated offence;

b) a weapons prohibition under s. 109 of the Criminal Code for a period of ten years;

c) that D.W. comply with the Sex Offender Information Registration Act for life;

d) that D.W have no contact with the complainant C.D. directly or indirectly during the custodial period of his sentence pursuant to s. 743.21 of the Criminal Code; and

e) that D.W. be subject to the following prohibitions for 10 years pursuant to s. 161(1) of the Criminal Code:

i. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre unless in the presence of a person over 21 years of age who is aware of his criminal record;

ii. seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and

iii. having any contact – including communicating by any means – with a person who is under the age of 16 years, unless he does so under the supervision of a person over 21 years of age who is aware of his criminal record.

[28] Mr. Brock for the Crown argues that the principles in the case of R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 are applicable, and that denunciation, deterrence and the need to separate the offender from society are the predominant sentencing objectives in this case.

[29] Mr. Brock outlines a number of aggravating factors, including the following:

(a) the young age of the victim C.D., with the sexual abuse starting at age 5, combined with elements of grooming;

(b) D.W., as C.D.’s step-father, was in a position of trust and authority in relation to C.D. Indeed, C.D. viewed D.W. as her natural father until D.W. disclosed that he was not towards the end of the charge period;

(c) there were multiple and repeated instances of sexual abuse over a three-year period;

(d) the abuse was perpetrated in the victim’s home which should have been a place of safety and security for her;

(e) D.W. threatened C.D. with harm to herself and her mother to keep her from reporting the abuse;

(f) the sexual abuse included vaginal and anal intercourse, digital penetration and the use of a biometric device;

(g) D.W. violated and degraded C.D. by blindfolding her in the bathtub;

(h) C.D. was robbed of her childhood by D.W.’s abuse; and

(i) to testify C.D. was compelled twice – at the preliminary enquiry and at trial.

[30] Mr. Brock submits that there are no mitigating circumstances.

[31] In addition to referring to R. v. D.(D.) in relation to the principles which should guide the court when sentencing, the Crown made reference to the following cases, which I have reviewed, in relation to the appropriate range of for sentencing:

R. v. J.C., 2011 MBPC 7, 2011 MBPC 71, 271 Man. R. (2d) 242;

R. v. D. M., 2014 ONSC 3773;

R. v. Medeiros, 2014 ONCA 602;

R. v. Stephenson, 2014 ONSC 7182;

R. v. B.T.Q., 2018 ABQB 521;

R. v. B.G., 2019 ONSC 4048; and

R. v. D.A., 2019 ONCA 310.

Position of the Defence

[32] Mr. Bernstein for the defence does not disagree with the applicability of the sentencing principles referred to by the Crown. However, he argues that, although the court must consider a penitentiary term, in the circumstances of this case, a period of incarceration at the lower range of 3 to 4 years would be appropriate. He suggests a period of incarceration be applied which would result in a net period of two years less a day following enhanced credit for pre-sentence custody, which would permit the addition of a period of probation. He does not disagree with the ancillary orders sought by the Crown.

[33] Mr. Bernstein pointed out that D.W. enjoys the support of his current partner and his mother, and was described in the PSR as a “family man” who has led a relatively normal existence. He described him as a “normal dad” and a “fairly good provider.” He also noted that the PSR was “fairly positive.” He submitted that the previous conviction for sexual assault on Mr. D.W.’s record was of a different nature than the offences before the court, which are much more serious than represented by the earlier conviction.

[34] Mr. Bernstein did not dispute that the principles in R. v. D.(D.) have application and acknowledged that the facts cannot be minimized. He did point out that full sexual intercourse was not consistent with the expert evidence of Dr. Baird on the basis of his physical examination of C.D.

[35] Mr. Bernstein made reference to the following two cases, which I have reviewed, in submissions respecting an appropriate range of incarceration:

R. v. R.O., 2015 ONCA 814, 333 C.C.C. (3d) 367; and

R. v. P. (G.), 2014 ONCA 39, 315 O.A.C. 58.

Analysis

[36] As indicated, the Crown and the Defence are not in disagreement on the guiding principles, and, in particular, that the objectives of denunciation and deterrence are the primary sentencing objectives in a case of this nature.

[37] I agree with the characterization of the mitigating and aggravating factors, as suggested by the Crown, with the exception of the proposed aggravating factor that the complainant C.D. was required to testify, once at the preliminary inquiry and once at the trial. The fact that the complainant was required to testify was a necessary consequence of D.W. exercising his right to have a trial.

[38] It is well recognized that determining a fit sentence is an individualized process. The facts of each of the various cases cited by both Crown and defence counsel, as would be expected, differ in many respects from the case at bar.

[39] Of the cases referred to, I have found R. v. B.G., a decision of Ricchetti J. to be particularly helpful and instructive.

[40] The offender in B.G. was convicted of sexual assault, invitation to sexual touching and touching for a sexual purpose of a person under 14 years of age, and uttering a threat to cause death. The complainant was the offender’s daughter and the sexual abuse was inflicted regularly over a period of three years when the complainant was between the ages of 10 and 13. The conviction for sexual assault was conditionally stayed under the Kienapple principle.

[41] Ricchetti J. summarized the mitigating and aggravating factors in B.G. as follows at paras. 47–48:

The mitigating factors are:

a) Mr. G. has no prior criminal record; and

b) Mr. G. has a history of employment.

The aggravating factors are:

a) Mr. G. is N.’s father, hence, in a position of trust and authority as N. was in a position of dependency on Mr. G. for all aspects of her life;

b) Mr. G. started to engage in sexual activity when N. was 6 to 7 years old, a form of grooming and designed to establish a norm and reduce the likelihood of reporting;

c) The sexual abuse, as it relates to these charges, started around the time N. was 10 years old and was continuous for about 3 years;

d) The sexual abuse took place in N.’s home, a place normally associated with safety;

e) While not sexual intercourse, Mr. G. did digitally penetrate her vagina and attempted to insert his penis into her vagina and vaginal area;

f) Mr. G. forced N. to physically masturbate him and touch his penis;

g) Mr. G. threatened N.’s life if she told anyone, threatened the family unit, and threatened to put the entire situation on N. - all very serious threats to a young child;

h) The sexual abuse was coupled with physical abuse, which became more forceful when N. resisted Mr. G.’s sexual approaches and even more so after N. had disclosed the sexual activity to her mother.

[42] At para. 61, Ricchetti J. summarized the facts in B.G. as

the sexual abuse by a parent, commencing at a very young age, which sexual abuse was persistent, longstanding, and physically intrusive on the child’s sexual integrity and emotionally debilitating to the child. In addition, the sexual abuse was coupled with acts of physical and threatened violence.

[43] At para. 62, Ricchetti J. noted that, although there was no full sexual intercourse, a factor which would suggest a reduction in determining a fit sentence, this was to a large extent negated by the fact that the offender digitally penetrated the complainant and attempted to insert his penis into or near her vagina. Similar observations may be made in reference to the case at bar.

[44] At para. 63, Ricchetti J. noted that in B.G. there was actual and threatened violence, including threats of death so that the offender could continue his sexual gratification at his daughter’s expense. In the present case, although there were threats of violence, actual violence of the nature that was present in B.G. was not inflicted by D.W. on C.D. However, as noted above, D.W. violated and degraded C.D. by blindfolding her in order to sexually assault her in the bathtub. The sexual assault included forced oral sex with ejaculation into C.D.’s mouth and onto her body. D.W. also had a criminal record, which the offender in B.G. did not.

[45] Ricchetti J. at para. 64 observed that, in the circumstances of the case before him, the appropriate range was 6 years to 10 years. At para. 68, he found that a fit sentence was 8 years, broken down as 8 years on each of the convictions for invitation to sexual touching and touching for a sexual purpose, served concurrently, and 1 year on the threatening conviction, also to be served concurrently.

[46] Applying the primary principles of denunciation and deterrence as well as the principles of parity and restraint, I similarly find a fit sentence in the circumstances of the case at bar to be 8 years. This is broken down to 8 years for sexual assault and 1 year for uttering threats to be served concurrently.

Pre-sentence custody and the effect of COVID-19

[47] Counsel for both the Crown and the defence agreed that the court should take judicial notice of the effect of the COVID-19 pandemic on the prison setting and the conditions of imprisonment and find that it is a factor to be considered in sentencing. Counsel each made reference to the case of R. v. Hearns, 2020 ONSC 2365 in this respect.

[48] In Hearns, Pomerance J. held at para. 20 that, although COVID-19 is not a mitigating factor in the classic sense, it is nonetheless an important part of the sentencing equation because it adversely affects conditions of imprisonment and increases health risks of those in jail. However, she found that she was not at liberty to assign credit for pre-sentence custody beyond the statutory limit of 1.5 to 1. Instead she characterized the question as whether, looking forward, the pandemic warrants reduction of the sentence yet to be served (see para. 22).

[49] Notwithstanding the approach taken in Hearns, counsel in the case at bar agreed the pandemic should be recognized by a finding that D.W. should receive a credit of 2 to 1, in place of 1.5 to 1, for his pre-sentence custody from and after the start of the COVID-19-related shut-down on March 15, 2020. This would be in addition to credit for pre-sentence custody at 1.5 to 1 for the period prior to March 15, 2020. Mr. Bernstein did not argue in favour of a reduction of the sentence yet to be served in recognition of the pandemic.

[50] The Court of Appeal in R. v. Brown, 2020 ONCA 196 stated the following at para. 6:

In Duncan [2016 ONCA 754], this court confirmed that presentence credit is not capped at the statutory 1.5:1 under s. 719(3.1) of the Criminal Code, but may, in appropriate circumstances, include additional credit for “particularly harsh presentence incarceration conditions”: at para. 6.

[51] I am satisfied, in the unique circumstances of this case as represented by the agreement between counsel, that it is appropriate to apply an enhanced credit of 2 to 1 for the period from and after March 15, 2020 to reflect the impact of COVID-19 on the conditions of D.W.’s pre-sentence custody.

[52] Prior to March 15, 2020, D.W. spent 455 days in custody (22 days from arrest to initial bail and 433 days from the revocation of his bail on January 9, 2019 to March 14, 2020) resulting in a credit at 1.5 to 1 of 683 days. He has spent 269 days in custody from and after March 15, 2020 to today’s date, resulting in a credit at 2 to 1 of 538 days, and a total enhanced credit of 1221 days (3 years and 126 days).

[53] The total sentence yet to be served is 1699 days, or 4 years and 239 days.

Disposition

[54] D. (W.) please stand.

[55] I sentence you to 8 years imprisonment for sexual assault and one year for uttering threats to cause bodily harm, to be served concurrently. You shall be credited with 1221 days for your pre-sentence custody resulting in time left to serve of 1699 days, or 4 years and 239 days.

[56] Your conviction for touching a person under the age of 16 directly with a part of your body for a sexual purpose is stayed conditionally.

[57] You shall

(a) provide a DNA sample on the basis that the offence under s. 271 is a primary designated offence;

(b) be subject to a weapons prohibition under s. 109 of the Criminal Code for a period of ten years;

(c) comply with the Sex Offender Information Registration Act for life;

(d) have no contact with the complainant C.D. directly or indirectly during the custodial period of your sentence pursuant to s. 743.21 of the Criminal Code; and

(e) be subject to the following prohibitions for 10 years pursuant to s. 161(1) of the Criminal Code:

i. attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre unless in the presence of a person over 21 years of age who is aware of your criminal record;

ii. seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and

iii. having any contact — including communicating by any means — with a person who is under the age of 16 years, unless you do so under the supervision of a person over 21 years of age who is aware of your criminal record.

D.A. Broad, J.

Date: December 9, 2020

COURT FILE NO.: CR-18-125 (Brantford)

DATE: 2020/12/09

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D. W.

REASONS For sentence

D.A. Broad, J.

Released: December 9, 2020