Court File and Parties

Oshawa Court File No.: CR-18-14943 Date: 2021-02-01 Ontario Superior Court of Justice

Between: Her Majesty the Queen And: C.B., Offender

Before: Woodley, J.

Counsel: Greg Black, for the Crown M. Gordner and M. Hogan, for the Offender

Heard: December 1 - 2, 2020, for submissions

Reasons for Sentence

[1] The Offender was found guilty after trial of sexually assaulting his biological daughter, when she was between 13 and 16 years old.

[2] The judge alone trial was heard by me from December 10, 2019 to December 20, 2019 with Reasons for Judgment reported at R. v. C.B., 2020 ONSC 1751.

[3] The original date for delivery of judgment was vacated due to the COVID-19 pandemic. Utilizing COVID-19 protocols, the Judgment was delivered via a Zoom hearing on September 17, 2020.

[4] A pre-sentence report was ordered to be prepared and sentencing submissions were scheduled for December 1, 2020 with delivery of the sentence set for January 11, 2021. Due to updated COVID-19 protocols, delivery of the sentence was adjourned to today, February 1, 2021, via in person and Zoom hearing.

[5] The Crown seeks a penitentiary sentence of six years. The Offender seeks a penitentiary sentence of three years.

[6] It was agreed by counsel and accepted by the Court that Count 1, being the sexual assault charge, contrary to s. 271 of the Criminal Code of Canada should be stayed pursuant to the principles set out in R. v. Kienapple, [1975] 1 S.C.R. 729 and that CB should be sentenced on the counts of sexual interference, contrary to s. 151 of the Criminal Code and invitation to sexual touching, contrary to s. 152 of the Criminal Code.

[7] Both the Crown and the Offender agree that there should be a DNA order, a SOIRA order for life, and a s. 743.21 non-communication order with the complainant, KB. The Crown also seeks a s. 109 prohibition order and a s. 161 order, both for 10 years. The offender agrees that the s. 161 order is appropriate but for 5 years and objects to the imposition of a s. 109 prohibition order.

Facts

Circumstances of the Offence

[8] The Offender CB was convicted of sexual assault, sexual interference, and invitation to sexual touching with respect to his biological daughter, KB. The offences took place at the family home. The abuse began when the victim was thirteen years old and ended when the victim disclosed the abuse when she was sixteen years old.

[9] All assaults occurred in the evening when CB and KB were together either in the home theater room or KB’s bedroom, both located in the basement of the family home.

[10] The first incident occurred in the summer of 2015 while KB was watching “Sherlock Holmes” with CB in the family theater room. CB stroked her arm and then her breasts and told KB to “trust him”.

[11] Similar incidents of abuse continued over the next several months, following which the abuse escalated to include digital penetration, oral sex performed by CB on the victim, manual stimulation of CB’s penis, and repeated attempts by CB to engage KB in sexual intercourse.

[12] After KB refused sexual intercourse, CB became controlling and hostile towards her and refused to allow KB to watch movies in the home theater room unless she had sex with him (“the deal”).

[13] The physical aspects of the sexual abuse ended suddenly and without explanation in the fall of 2016. However, CB refused to rescind “the deal” and on KB’s 16th birthday (September 2017) refused to allow KB to watch a movie in the family movie room unless she agreed to have sexual intercourse with him.

[14] On September 24, 2017, KB provided limited disclosure of the abuse to her pastor/counsellor, KV, who reported the abuse to the police. On this same date, KB provided more fulsome disclosure to the police by way of a video recorded statement which resulted in CB’s arrest. At the preliminary hearing on November 15, 2018, KB disclosed two further incidents and details of abuse. At trial on December 16, 2019, KB recalled one further detail relating to one incident.

[15] CB categorically denied that he ever sexually abused KB and claimed that KB fabricated the allegations to remove CB from the family household.

[16] In my Reasons for Judgment delivered on September 17, 2020, as R. v. C.B., 2020 ONSC 1751, CB was found guilty of all counts.

Circumstances of the Offender

[17] A Pre-Sentence Report (“PSR”) was filed at the sentencing hearing, in addition to several character references provided by his father, mother, sister, brother-in-law, several friends, and a second cousin. The Offender’s counsel also filed CB’s medical records relating to his urethra stricture issues, numerous letters from his psychiatrist, Dr. V, and two reports from his Community Service Workers at CAMH.

The Pre-Sentence Report

[18] CB is currently 43 years old. He is the middle child of three children born to parents married for 48 years. CB had a good childhood. His family had no financial worries and he attended private boarding school for his upper high school years where he met his spouse (KB’s mother), EB.

[19] CB and EB attended university together and married while at university at the age of 21. CB graduated with a Masters’ degree in computer science and following marriage was steadily employed by well-known international companies.

[20] CB and EB had three children together and appeared to have a happy marriage. The victim, KB, was the family’s eldest child.

[21] CB experienced mental health difficulties while in university which recurred in 2015. CB reported that he was diagnosed with Major Depressive and Social Anxiety disorder in 2016 but initially declined to take his medication. CB returned to his doctor in 2017 and began taking medication to assist with his symptoms, which made him more stable.

[22] CB stopped working in April of 2017 due to mental health concerns and began receiving Canada Disability Pension in August 2017, prior to his September 2017 arrest.

[23] Upon his arrest, EB separated from CB and is in the process of obtaining a divorce. CB has had no access to his children since his arrest. Despite CB’s separation, conviction, and pending divorce, CB reported that he remains hopeful that he and EB can repair their marriage.

[24] Upon his arrest, CB initially went to live with his brother, TB. Shortly thereafter CB moved to his parents’ home, where he currently resides. CB reported that he has a close relationship with his parents and sister and is estranged from his brother, TB.

[25] CB advised that following his arrest and in October 2017 that he was hospitalized for suicidal ideations. Upon admission, CB was assigned a psychiatrist, Dr. V, who continues to treat him.

[26] With respect to the offences before the Court, CB does not accept responsibility for his actions and maintains his innocence. CB stated, “I don’t have any sexual behavior problems”. CB further advised that he “does not know why” KB made false allegations as he would never hurt his children “in that way”.

[27] The author of the PSR reported that CB has placed the blame entirely on the victim KB. CB advised that he still loves KB but reported that “these allegations will make it very hard to trust her again” as KB has “destroyed a family very fast and there was no need for that”. CB advised the author of the PSR that he does not know how he could ever approach KB “after what she has done”.

[28] The author of the PSR further reported that CB consistently denies any injury to KB or other members of his family and appears to view himself as a victim. The PSR noted that the “offender’s minimization of the offence has been evident in the information provided by service providers, as appointments appear to have often focused on the offender’s sense of victimization and denial of the offences before the Court. All professional collateral contact which was used for the purpose of this report advised that the Offender has maintained his innocence consistently”.

[29] As for the verdict, CB claimed that his conviction “shocked everyone”. CB’s mother (DB) reported that CB is in “disbelief that his daughter would be believed over himself”.

[30] As for the sentencing process, CB stated that whatever sentence the Court imposes would be “unreasonable”. CB stated that he has already started the appeal process and believes that will prove him innocent.

[31] EB reported to the author of the PSR that while she was initially shocked by the offences, looking back “the offences make sense”. EB stated that while there was never any physical violence with CB, emotional and verbal abuse was present. EB described CB as being “extremely controlling” and that he maintained control over every aspect of their marriage. EB said that CB “always had to have the final say” with all decisions, including the children. CB also always maintained total financial control. EB was reluctant to participate in the preparation of the PSR and advised that she is afraid of how CB could manipulate any information provided by her. EB reported that she is intimidated by CB’s level of intelligence and knows him to be “extremely” manipulative and controlling. EB stated that CB “always has to get his own way and he always wins”. EB expressed financial concern including fear that CB will take everything from her and the children if he does not get his way. She advised that for these reasons she declined to provide a victim impact statement to the court. EB reported that the children have flourished since CB has left the house. She indicated that she would like a non-association to be in place for herself and the children. EB stated “I just want my kids to be safe and not manipulated anymore”.

[32] KB advised the author of the PSR that she reported the offences because she “wanted the world to know that this happened, and it is not right”. KB advised that she has been engaged with counselling services since CB’s arrest. KB stated that CB “tainted” her childhood and she does not want to have contact or to see him again. KB stated that CB is accustomed to being in control and having “more power” than others.

[33] CB’s mother, DB, advised the author of the PSR that she would describe CB as a good father. DB admitted that CB’s parenting style differed drastically from that of her own and declined to comment further. DB advised that she has had no contact with CB’s children or EB since CB’s arrest.

[34] CB’s sister, AK, advised the author of the PSR that their entire family shared positive and supportive relationships throughout childhood and into adulthood. AK described CB and EB as wonderful parents who complimented each other well. AK reported that she was “devastated” to hear of CB’s arrest as it appeared “he was happily married”. AK advised that she was aware CB was having “problems” with the victim and had difficulty even being in the same room as KB as he was “angry” with her about reasons she did not disclose. AK has had no contact with CB’s children or EB for over two years.

[35] CB’s brother, TB, advised the author of the PSR that he never had concerns for CB’s mental wellbeing prior to his arrest and advised that CB always went to great lengths to hide his emotions from others. TB noted that CB was a strict father and he had concerns about his parenting style. TB described CB as “highly manipulative” with the ability to “work a situation so that it will always have the best outcome for himself”. TB noted that CB was “incredibly stubborn” and advised that CB knows how to and often “plays the system”. TB was the first person that CB contacted upon arrest. CB stayed with TB for two weeks prior to his admission to hospital. TB reported that he feels manipulated by CB through the court process. TB has stopped all communication with CB and believes that CB requires intensive programming which will specifically help him acknowledge wrongdoing and understand the impact of his behaviors. TB reported that he believes CB will “make himself believe that he is innocent at all costs”. TB reported that his opposition to CB’s criminal behavior has been viewed as a “betrayal to the family” and negatively affected his relationship with his parents and sister.

Character References Filed with the Court

[36] CB filed seven letters signed by eight individuals, five relatives and three friends. While I have read all of the letters I am not going to summarize each letter. In general terms many letters express that CB has advised them of his version of events (being his innocence), which most, if not all, accept. Many letters recite that CB is a soft spoken and gentle man with no violence in him and the offences are “completely out of character”. Several wrote that they were shocked and/or stunned by the outcome of the trial. One letter concluded with the statement that “it isn’t fair” to base CB’s fate on the “say so of a then fourteen-year old girl who cannot offer up one piece of concrete evidence of wrongdoing”.

Medical Letters

[37] CB filed two letters from his assigned community support workers at CAMH that reported that CB is participating with all recommendations and that his mental health issues have improved.

[38] CB also filed several letters from by his treating psychiatrist, Dr. V.

[39] In general terms Dr. V’s letters reported that CB suffers from major depressive disorder, regularly takes all prescribed medications, regularly attends therapy sessions, and is currently stable.

[40] In more specific terms, Dr. V’s letters provided the following statements:

a. “I would not be qualified to provide an expert opinion on the characteristics and conduct one would expect in a child who has been sexually abused, or in a person who was sexually abusing a child” (July 29, 2019).

b. “I can confidently state that CB’s observed behaviours towards his daughter KB would indeed be consistent with his diagnosed mental illness, specifically the major depressive episode” (December 5, 2019);

c. “There is no evidence at all that he in any way poses a risk of harm to his children or anyone else” (Nov. 17, 2017);

d. “I have no concerns at all that he (CB) may pose a risk of harm to his children or anyone else” (April 2, 2018 and November 27, 2020).

Impact on the Victim

[41] KB filed a victim impact statement and read it aloud in (virtual) court. It was evident from her testimony, and from the victim impact statement, that KB has been severely and directly affected by the offences, in all areas of her life, and at all levels of her being. KB continues to be affected on a daily and ongoing basis, and given the identity of the abuser, and the nature of the abuse, will be required to deal with the psychological and emotional effects of the abuse, throughout her lifetime.

[42] CB’s brother, TB, also filed and read aloud a victim impact statement. There were parts of TB’s statement that were inappropriate and/or irrelevant, and I have disregarded those parts. As for the remainder, TB detailed that CB’s extended family, including his siblings and parents, have experienced inter-family discord, alienation and a fracturing of lifelong relationships causing harm to TB and his children through loss of familial relations due to CB’s actions.

Positions of Counsel

[43] The Crown, relying primarily on the recent Supreme Court of Canada’s decision in R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, (“Friesen”) and the need to denounce CB’s behaviour and deter others, seeks a sentence of six years, noting that this was a case of repeated sexual abuse of a child by her father, a person in a position of utmost trust.

[44] The Offender, relying on various decisions, urges the court to consider the individualized nature of sentencing keeping in mind CB’s mental health issues, lack of criminal record, his community support, and the collateral consequences suffered by CB, in support of a three-year sentence.

[45] Both Crown and the Offender’s counsel provided me with a number of cases in support of their respective positions. However, as noted by the Crown, not all cases provided are consistent with the principals set out by the Supreme Court of Canada’s most recent decision in R. v. Friesen or the Court of Appeal’s previous decision in R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.). To the extent that there are any differences in principals, I remain guided by the pronouncements of the Court in Friesen and D.D.

The Law and Analysis

The Purpose and Principles of Sentencing

[46] Section 718 of the Criminal Code sets out the purpose and principles 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 offence 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] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[48] A sentence shall also take into consideration the following principles:

a. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

b. Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, shall be deemed an aggravating circumstance;

c. Evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, shall be deemed an aggravating circumstance;

d. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

e. An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

f. All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

[49] 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.

[50] In considering what sentence would be appropriate, the court must consider the objective seriousness of the offence and the offender’s degree of responsibility in light of the aggravating and mitigating factors related to the commission of the offence or the situation of the offender.

[51] In imposing an appropriate sentence on an accused for the wrongful acts committed, the weight assigned to the varying sentencing objectives must be adapted to the circumstances of the case and to the individual offender.

[52] When there are collateral consequences relevant to the offender, such consequences can be taken into consideration when tailoring an appropriate sentence: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. However, collateral consequences must not be permitted to skew the sentencing process altogether.

Recent Developments in Sentencing Sexual Offenders of Children: R. v. Friesen

[53] In Friesen, the Supreme Court of Canada recently considered the pronouncements of the Ontario Court of Appeal in R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.); R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81; and R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752 as well as other appellate decisions from across Canada. Based on their review and considerations, the Supreme Court in Friesen provided updated directions on the appropriate principles to be considered in sentencing those convicted of sexual offences against children.

[54] In Friesen, the Supreme Court noted that 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.

[55] The Supreme Court further noted that 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 for 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.

[56] In Friesen, the Supreme Court 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.

[57] Prior to Friesen, the Ontario Court of Appeal in R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.), provided guidelines to assist with sentencing decisions for child sex abuse. The Court noted (at paragraph 44) as follows:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double-digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[58] Following D.D., the Ontario Court of Appeal released R. V. P.M., 2012 ONCA 162, 282 C.C.C. (3d) 450, that dealt with, in part, a sentencing appeal for the sexual abuse of a child. The Court of Appeal set the starting point at 5 years imprisonment at para 46, as follows:

Each case will, of course, turn on its own facts and sentencing is a highly individualized exercise. However, the court signalled in D.(D.) that the sexual abuse of a child will attract lengthy penitentiary sentences. In my view, where a father has committed repeated acts of incest with his daughter over many months, as in this case, it will be highly unusual for the court to impose a penitentiary sentence of less than five to six years…

[59] In Friesen the Supreme Court 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, notwithstanding this overarching guidance, the Court very clearly directed that sentences for these types of crimes must increase: Friesen, at paras. 1, 5, 95, 151.

Consideration of the Friesen Factors

[60] To promote a consistent application of the law of sentencing to sexual offences against children, and keeping in mind the principles of deterrence and denunciation as the primary sentencing principals, the Supreme Court of Canada in Friesen identified a list of non-exhaustive significant factors for the sentencing judge to consider in determining a fit sentence, in child abuse cases.

Likelihood to Re-Offend

[61] The first Friesen factor is the likelihood the offender will reoffend: Friesen, paras. 122 to 124.

[62] As previously noted, Dr. V provided two statements regarding this factor. First, Dr. V stated that “there is no evidence at all that CB in any way poses a risk of harm to his children or anyone else”. Second, Dr. V stated that he (Dr. V) has “no concerns” that CB “will re-offend against his children or anyone else.

[63] I have carefully reviewed and considered all letters submitted by Dr. V, including those containing the statements noted above.

[64] With respect to the first statement by Dr. V, I give no weight to this statement as it is patently false.

[65] With respect to the second statement, I give little weight to this statement for the following reasons: the statement is inadmissible as an expert opinion; the statement, by Dr. V’s own admission is outside the purview of Dr. V’s expertise; and the statement is unsupported by any facts and provides no basis for the conclusion proffered. In summary, the statement appears to be without any evidentiary basis and is not accepted by this Court.

[66] Notwithstanding my rejection of Dr. V’s statement, I am of the view that CB poses a low risk to the community, for the following reasons: (a) the offences took place in the family home and were perpetrated on his biological daughter; (b) there is no evidence of criminality either prior or following; (c) CB groomed his victim and abused his position of trust, as her father, in order to commit and continue the offences, and to keep the offences secret; (d) CB was the dominant authority figure in the home and controlled all aspects of KB’s life, prior to and during the years of abuse.

[67] In my view, it is unlikely that CB would be able to obtain a similar level of authority or control in any community setting and for this reason alone I view him as a low risk to the community.

[68] As for KB, it is my view that CB continues to pose a significant risk to KB and may pose a risk to his other children as well.

Abuse of Trust

[69] The second Friesen factor is whether the offender abused a position of trust. The presence of this factor increases the harm to the victim and thus the gravity of the offence, and it also increases the offender’s degree of responsibility: Friesen, paras. 125 – 130.

[70] In the current case, the offender CB is the biological father of the victim, KB. CB was the governing authority in the family home. CB established the rules for the household, controlled the finances, controlled his children’s access to the internet, controlled KB’s dress code, and for all intents and purposes was to be obeyed without question in all matters.

[71] The offences that CB committed against KB occurred in the sanctity of the family home, initially in the family movie room and then exclusively in KB’s bedroom. The offences were planned, and slowly but methodically implemented.

[72] I can think of no greater breach of trust than a father who controls all aspects of his child’s life, who through manipulation, deceit, and abuse of his authority and position of trust, sexually assaults his own biological child, in her own bedroom, which he built with his own hands, separated floors away from her mother.

[73] All semblance of normalcy, safety, and security previously known by KB was destroyed by CB, the one man above all others who was expected to protect her.

Frequency and Duration

[74] The third Friesen factor is the frequency and duration of the sexual abuse: Friesen, paras. 131 – 133.

[75] The courts have held that sexual violence against children over a long period of time and repeated on multiple occasions should attract significantly higher sentences to reflect the full cumulative gravity of the crime and the offender’s increased degree of responsibility. In this case, the offences began when the victim was 13 years old, the summer between grade 8 and grade 9. The commencement of the offences occurred during a very vulnerable time (age 13).

[76] The offences began slowly with “a lot of breast touching” and increased in severity over the next year. The offences occurred with such regularity that the victim could not recall or distinguish all the occurrences and that after a while they blended into one another. CB’s moral blameworthiness is very high as it would be patently obvious to him the unnaturalness of the acts, the wrong he was doing and the harm he was causing to his child. Again, these were repeated acts of abuse, repeated acts of wrong.

Age of Victim

[77] The fourth Friesen factor is the age of the victim. Children who are particularly young are even more vulnerable to sexual violence, thereby enhancing the offender’s moral blameworthiness.

[78] In the present case the victim 13 years old at the commencement of the sexual assaults. The physical aspects of the sexual assaults continued for approximately two years and the psychological threat of sexual assault continued a further year ending at 16 years of age and only upon disclosure. There is evidence of grooming, manipulation, controlling behavior, coercion, and threats. The offender as the biological father of the victim had total control over the victim’s every movement. There was literally no place that the victim could escape the offender and the power imbalance between them was staggering. The offender has the highest level of moral culpability attributable with the corresponding highest level of blameworthiness.

Violence and Degree of Physical Interference

[79] The fifth Friesen factor is violence and the degree of physical interference.

[80] Sexual assault by its very nature is inherently violent regardless of the nature of the physical interaction. In the present case, in addition to “a lot of breast touching” the offender regularly attempted to stimulate the victim, by rubbing her vagina. On one occasion, the offender inserted his fingers into the victim’s vagina to see if her hymen was intact. On a further occasion, the offender performed oral sex upon his daughter, until she felt “a weird buzzing”. This act constitutes an extraordinary degree of both physical and emotional interference. While the offender did not have sexual intercourse with the victim it was not for want of trying. The victim remained resolute that she would not submit to sexual intercourse and was successful in diverting the offender’s intent in this regard.

[81] As noted in R. v. C.J.J., 2020 BCPC 201, citing Friesen, the modern focus is not so much on bodily integrity, but rather on the psychological and emotional harm to the child. These harms include damage to the victim’s personal autonomy, bodily and sexual integrity, dignity and equality, to their relationships with their families and communities, and harms to the families, communities and society. In this case, CB fully controlled KB’s personal autonomy, bodily and sexual integrity through his position of trust and authority in the home. His actions threatened and caused harm to KB’s dignity, caused her to be excluded from her family and their shared activities, caused her to feel shame, loneliness, uncertainty and fear, affected her relationship with her extended family in a very real and permanent manner, caused difficulties in her inter-personal relationships, and has hindered her current ability to enjoy a healthy sexual relationship with a partner.

[82] The offender and the offences had a significant adverse impact upon the victim. Despite KB’s ability to present as “highly intelligent and introspective”, “incredibly poised and dignified”, “polite, soft-spoken and articulate”, and “considered and conscientious”, KB suffered serious, irreparable harm as a result of the offences.

[83] As expressed by her victim impact statement, the offences have caused KB to suffer harm that has negatively affected all parts of her life, both past and present. KB has reported that she has suffered harm to her relationships with her extended family, her ability to excel at university, the loss of safety and security that she feels at home, her difficulties trusting all adult males, and her ability to enjoy a healthy romantic relationship. She is attending counselling but suffers from flash backs and struggles to obtain a sense of security and normalcy.

[84] KB’s victim impact statement spoke of her losses both past and present in a real and compelling manner. While KB presents as a strong, intelligent, and capable young woman, her life and experiences will be forever marked by the offender and the offences perpetrated upon her during a period when she was most vulnerable and by the very person who was meant to be her protector.

Victim Participation

[85] The sixth Friesen factor is the victim’s participation.

[86] I wholly reject the Defence submission that KB “acquiesced throughout” and “allowed him to perform acts that she did not object to”. The offender was the victim’s biological father who held the highest position of trust and authority over the victim. Any participation by the victim was achieved through the abuse of the victim’s trust, abuse of the power imbalance between them, through careful and prolonged grooming, through manipulation of the victim’s emotions, through the imposition of harsh rules and proof of the offender’s power over the victim, and through the use of threats to the victim’s security and personal sexual integrity.

Mitigating and Aggravating Factors

[87] There is little dispute among the parties with respect to the aggravating and mitigating factors in this case. The aggravating factors are as follows:

1. CB is KB’s father and he was in a position of trust when he committed the offences;

2. KB, was at a very vulnerable age, being 13 years old, when the abuse started;

3. The abuse took place in the family home;

4. The abuse was repeated and took place over a period of years;

5. The abuse included oral sex and digital penetration perpetrated upon the victim; and

6. KB has suffered psychological harm as a result of the abuse, which continues to this day.

[88] The mitigating factors are as follows:

1. CB has no prior criminal record;

2. CB has support in the community, his parents and his sister;

3. CB has been continuously employed at a high level for most of his adult life; and

4. CB has experienced mental health issues and has made significant efforts to obtain counselling both prior to and following his arrest.

Collateral Consequences

[89] The Defence relies upon the Supreme Court of Canada’s decision in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, amongst other decisions, for the proposition that “examining collateral consequences enables the sentencing judge to craft a proportionate sentence in a given case by taking into account all the relevant circumstances related to the offence and the offender”.

[90] The Defence submits that the collateral consequences of the allegations, arrest, trial and conviction are very significant and submit that the following be considered: (a) arrest at police station: the offender suffered physical distress and his mental illness of depression and anxiety was aggravated by the arrest, initial incarceration, and all subsequent proceedings; (b) loss of family and home and release on conditions: the offender was required to move from his family home, his spouse commenced divorce proceedings and he was denied access to his children, all of which brought accompanying devastating financial effects; (c) loss of trusted friends, family and brother; increased anxiety and depression with hospitalization for suicidal ideations; (d) effect of conviction: loss of nephew; loss of security clearance in IT field; stigma of conviction; loss of family; and (e) the effects of COVID-19.

Mental Illness and Physical Distress as Collateral Consequences

[91] Criminal behavior that is consistent with diagnosed mental illness can result in lower moral culpability and an increased emphasis on rehabilitation during sentencing. In the present case, Dr. V’s December 5, 2019 letter stated that he could “confidently state that CB’s observed behaviors towards his daughter CB, would indeed be consistent with his diagnosed mental illness”. However, as detailed by the letter, “CB’s observed behaviors” were restricted to non-criminal behaviors (strict and unreasonable rules and disciplinary measures) and as such there is no significant lessening of culpability or increased emphasis on rehabilitation; R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228 at para. 117 - 123.

[92] Nevertheless, CB’s mental illness is a relevant factor to consider on sentencing as part of the personal circumstances of the offender noting that the principles of general deterrence and denunciation remain of primary concern in this case: s. 718.01 of the Criminal Code; R. v. Ellis; R. v. C.F., 2020 ONSC 5975; and R. v. W.W.M. (2006), 206 O.A.C. 342, 205 C.C.C. (3d) 410 (Ont. C.A.).

[93] CB’s physical distress and discomfort during his arrest and detention are also factors to consider as part of the overall personal circumstances of the offender in sentencing.

[94] In the present case, CB provided medical records that evidence his physical distress was alleviated within hours of his release from custody, that he was able to undergo his scheduled operation the following day, and that his recurring medical issue and symptoms has since resolved. I have considered CB’s physical distress and discomfort as part of the constellation of considerations in sentencing.

[95] CB also provided psychiatric and counselling reports that evidence that his mental distress and illness increased following his initial arrest and has now stabilized through medication and counselling with the assistance of his psychiatrist and health professionals. Again, I have considered CB’s mental distress and illness following his arrest as part of the constellation of considerations in sentencing.

[96] With respect to any ongoing concerns regarding CB’s mental illness while incarcerated, Correctional Services of Canada are statutorily compelled to take care of CB and provide for his essential health care, which includes mental health care; s. 86(1) Corrections and Conditional Release Act.

[97] As it is difficult to predict the state of CB’s health or the health of any prisoner while in custody, as noted by Justice Leibovich in R. v. C.F., such matters are properly left to the correctional authorities; R. v. C.F., at para. 57.

COVID-19 as a Collateral Consequence

[98] The COVID-19 pandemic has caused significant mobility restrictions to persons detained in correctional facilities and there is no doubt that the restrictions and the risk of exposure while incarcerated constitutes a collateral consequence: see R. v. C.J.J.; R. v. Morgan, 2020 ONCA 279; R. v. Lemmen, 2020 BCPC 67; R. v. Dakin, 2020 ONCJ 202; R. v. Stevens, 2020 BCPC 104; R. v. T.K., 2020 ONSC 1935; R. v. Parasmothy, 2020 ONSC 2314; R. v. Kandhai, 2020 ONSC 1611; R. v. McGrath, 2020 ONCJ 192; R. v. Laurin, [2020] O.J. No. 1266 (Ont. C.J.); R. v. Wilson, 2020 ONCJ 176; R. v. Haynes, [2020] O.J. No. 1982 (Ont. C.J.).

[99] However, in the present case it is not alleged that CB’s situation made him more vulnerable to the COVID-19 virus or that CB had any indication of a unique or personal vulnerability. As such, while I have considered the pandemic in my overall considerations, I have not specifically reduced the sentence as a result of the pandemic.

Remaining Collateral Consequences

[100] With respect to the remaining collateral consequences raised by CB, again, while I have considered the consequences in my overall considerations, I have not specifically reduced the sentence as a result of any such claimed consequences.

Conclusion and Imposition of Sentence

[101] The Supreme Court of Canada in Friesen noted, “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.”

[102] In the present case, CB had a duty to protect his child KB from harm. However, instead of being KB’s protector, CB preyed upon KB’s vulnerability, and exposed her to sexual abuse and irreparable emotional harm.

[103] Having regard to the overall purpose and principles of sentencing, and keeping in mind the guidance of the Supreme Court of Canada, and considering all the facts and circumstances of this offender and these offences, including the aggravating and mitigating factors, it is my view that a global sentence of five years in jail is appropriate.

[104] I therefore impose the following sentence:

a. Count 1: Sexual Assault, contrary to s. 271 of the Criminal Code of Canada: Stayed pursuant to R. v. Kienapple;

b. Count 2: Sexual Interference, contrary to s. 151 of the Criminal Code of Canada: Five years;

c. Count 3: Invitation to Sexual Touching, contrary to s. 152 of the Criminal Code of Canada: Five years concurrent;

d. The Offender CB is prohibited pursuant to s. 743.21 of the Criminal Code from contacting the complainant, KB while he is in custody;

e. The Offender CB is prohibited pursuant to s. 161 of the Criminal Code for a period of 10 years, as follows:

• From being within two kilometres of any dwelling house where the victim KB ordinarily resides, attends school, attends karate, attends a place of worship, or is known by CB to frequent (s. 161 (a.1)); and

• From seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years of age (s. 161 (b)).

f. There shall be a S.O.I.R.A. Order for life;

g. There shall be a D.N.A. Order; and

h. The Offender CB is subject to a weapons prohibition pursuant to s. 109 (1) (a) of the Criminal Code for a period of 10 years.

Justice S. J. Woodley Released: February 1, 2021