COURT FILE NO.: CR-20-50000420-0000
DATE: 20211008
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
A.P.
Valerie Culp
for the Crown
David Locke
for the Accused
HEARD: September 28, 2021
PUBLICATION BAN
There is a publication ban under s.486.4 of the Criminal Code in relation to any information that could identify a victim or a witness.
G. ROBERTS:
Overview
[1] Following a 16 day trial, A.P. was found guilty of sexually abusing his nephew R. and his niece S. approximately 35 years ago. I accepted R. and S.'s evidence about the nature of the sexual abuse, and found that it occurred when A.P. was babysitting.
[2] The Crown seeks a global sentence of 10 years plus a DNA order, a SOIRA order for life, a s.109 order for 10 years, and a non-communication order pursuant to s.743.21 with respect to R. and S..
[3] Defence counsel acknowledges the range of sentence post Friesen, and the seriousness of my factual findings, and argues that a 6 year sentence is fit in all the circumstances. He does not take any position on the ancillary orders.
[4] In all the circumstances of the offences and the offender, I find that a 9 year sentence is fit and appropriate.
[5] Because of the publication ban, I refer to the victims by their first names [now referred to by their first initial]. I mean no disrespect in doing so.
Circumstances of the Offences
R.
[6] R. was 41 years old when he testified at the trial. He has two children, a daughter and a son. He has worked as a director for a real estate and facilities out-sourcing company.
[7] R. believed that the sexual abuse occurred when he was between around 4 and 7 years old. He could not recall how the sexual abuse began, what sexual acts came first, how many times it occurred, or exactly what sexual acts were involved on each occasion, but he remembered that the sexual abuse repeatedly involved the following:
• It began with A.P. persuading or coercing R. to take his clothes off. Sometimes R. would listen and undress; sometimes R. would resist, and A.P. would remove R.'s clothing.
• A.P. would require R. to manually stimulate A.P.'s penis or perform fellatio. A.P. would require R. to swallow the semen.
• A.P. would take petroleum jelly with his fingers and use his fingers to put the petroleum jelly inside R.'s anus. A.P. would then require R. to put petroleum jelly on A.P.'s penis. R. recalled A.P. telling him it was something he had to do, and it would help. A.P. would penetrate R.'s anus, and ejaculate inside. R. could not confirm whether the petroleum jelly was used on each occasion. He also recalled A.P. using saliva.
[8] R. vividly recalled the smell associated with the sexual abuse: a mixture of petroleum jelly, sweat, and semen. R. also remembered the taste of A.P.'s semen. R. remembered that the penetration hurt, and he told A.P. so, and that he did not want to do it, but A.P. would shush him and tell him it was okay. R. remembered the feeling of fluids coming out of his anus. R. did not recall his anus bleeding or being injured.
[9] R. recalled that sometimes S. was in the room when A.P. sexually abused him, and sometimes S. was also sexually abused while R. was there. R. recalled that this happened a handful of times, which he estimated to be 3-5, and involved:
• A.P. requiring S. to perform fellatio on A.P..
• A.P. would anally penetrate S. with his fingers and penis. R. could not recall S. saying anything or reacting.
[10] R. also recalled that sometimes A.P. would direct R. and S. to engage in sexual acts with each other, including:
• Have each child play with the other's private parts.
• Have each child perform oral sex on the other.
[11] R. believed that A.P. would masturbate when the children were engaging in the sexual acts that A.P. directed.
[12] R. recalled that A.P. would be excited before the sexual abuse began. R. remembered A.P. showing R. his erection. Mostly A.P. would be undressed from the waist down, but there were occasions when he would be completely undressed. R. recalled that after A.P. ejaculated, he would reassure R. that everything was okay, and that R. was doing the right thing. A.P. would help clean R. up, wiping the ejaculate off with a napkin or paper towel, and they would get dressed together. A.P. told R. not to tell his parents, explaining it would be bad for R. and his parents if they found out.
S.
[13] S. was 40 years old when she testified. She is married with three children (9, 7 and 3). She is a teacher.
[14] S. was not sure how old she was when A.P. sexually assaulted her, she believed she was 4 or 5. She did not remember the time of year, or the time of day, but believed it was after school. S. recalled playing videogames with her brother in the first bedroom past the kitchen on the left (her brother's bedroom) and A.P. calling her into the living room or coming to get her. She remembered A.P. sitting on the arm rest of the couch, leaning against a ledge along the wall. S. was standing. A.P. required S. to perform fellatio. She could not remember how this came about; A.P. just told her to do it. A.P. was naked from the waist down. He ejaculated in her mouth. S. did not recall whether she had clothing on. S. also recalled A.P. touching her vagina with his fingers. She did not know whether this occurred on the same occasion as the fellatio, or a different occasion. She was not wearing clothes from the bottom down when this happened. S. believed that her brother was in the apartment at the time - playing videogames in the first room on the left past the kitchen, but that no one else was in the room when the sexual abuse occurred. S. could not remember whether this happened once or more than once. She always had this memory. It was vivid; not something that she recovered or reconstructed.
The family response
[15] Both R. and S. recalled that a family meeting, presided over by their grandmother, was held about A.P. touching them inappropriately around the time of the sexual abuse. Neither was sure what prompted the meeting - both believed it was a complaint by the other. Nor could they remember exactly what was said. R., who is 11 months older than S., had a more detailed memory of the meeting. He believed that the adults asked him and S. about their experiences with A.P.. He recalled being scared and confused and reluctant to share information. S. recalled the adults asking what happened. She could not remember either her or her brother saying anything or what was said. She explained that she knew the meeting was about the sexual abuse because she had the same scared feeling. R. believed that his grandmother built a consensus that A.P. would be removed as a caregiver but otherwise no action would be taken.
[16] While both R. and S. told a few people about A.P. sexually abusing them over the years, the sexual abuse remained largely hidden until 2018 when R. decided to report it to police. R. explained that when he had his own children, he was anxious all the time and could not focus on being a father. He kept thinking back to his own experience of being sexually abused when he was a child. He was afraid for his children. He also noticed how the smallest things could affect his children, and he started to think about how he was affected by his experience of the people he loved not addressing what happened to him. He came to the realization that he needed to address what happened to him. In June 2018 R. went to the police to report the sexual abuse by A.P.. As he did so, he realized that he needed to warn S. because she was involved. He called her from the parking lot outside the police station and told her he was going to report "what happened with Papa Cha Chu when we were younger". R. recalled that S. was surprised because she did not know that R. was involved. She thought she was the only one.
[17] The police in turn contacted S., and other family members, about R.'s allegations. In August of 2018 S. provided a statement to police. She did not have any memory of R. being sexually abused. Until R. told her he went through "the same thing as me" with A.P., she always thought it was just her that was sexually abused by A.P..
[18] At trial, A.P.'s sisters rallied around A.P. to protect him from the allegations. They testified that A.P. never babysat R. and S. when they were small, and was essentially never alone with them in the time frame of the indictment (January 4, 1983 – December 31, 1985). I rejected the defence evidence. I found that A.P. did live with R. and S., and did babysit them, during the time frame of the indictment.
Circumstances of the Offender
[19] A.P. and his sisters testified at trial. I rejected most of their evidence as untruthful. However, a number of significant events are not in dispute. In addition, I heard evidence from R. and S.'s mother, Al. She struggled to remember events from approximately 35 years earlier, but I found that she was honest and trying her best. In addition, contemporaneous documents from the Workers Compensation Board (WCB), now the Workers Safety and Insurance Board (WSIB) helped with dates and addresses.
[20] A.P. was born on October 3, 1960. He came to Canada in June 1981, when he was 20 years old, as a visitor. I am told he had a grade 8 education at the time. He moved in with his brother Ma., Ma.'s wife Al, and their two small children, R. and S., at apartment 1613 at 390 Dixon Road in Toronto. A.P. made a refugee claim after arriving in Canada, and almost immediately began working. He testified that he initially worked three to four days a week at a wood-working factory. In August 1981, he began working at a bakery together with Al. He worked under the false name of SS. because he was not permitted to work in Canada. He also began to have an affair with Al.
[21] On December 6, 1982 A.P. badly injured his left wrist and hand in a dough making machine at work. He was taken to hospital and required surgery that day, and numerous surgeries over the following months and years. He also required extensive rehabilitation, including how to use his hand again, and how to use his right hand which had been his non-dominant hand. He stopped working and began to collect workers compensation benefits in the name of SS. He was still collecting these benefits in the mid-2000s. WCB/WSIB documents showed that it was not until this time that he corrected his name from SS to his own, apparently because the benefits had been cut off. At the sentencing hearing I learned that at some point A.P. did begin to work again as a dump truck driver, but I am not sure when, or for how long. At the trial, there was also mention of him selling t-shirts at flea markets, and having money.
[22] After the instant offences were committed, A.P. accumulated the following criminal record:
Nov 14, 1991 impaired driving 30 days, 12 mo driving prohibition & prob
mischief 10 days consec
assault cause bh 10 days consec
Apr 12, 1995 sexual assault 2 mo and 2 years probation
Nov 19, 2010 assault 11 days, 12 mo probation
FTC recog or UT 3 days, 12 mo probation
FTC recog or UT 12 days consec, 18 mo probation
Sept 18, 2014 assault 30 days, 18 mo probation
Oct 31, 2014 FTC recog 30 days, 18 mo probation concurrent
utter threats
Dec 12, 2014 assault suspended sentence and probation 3 years
breach probation (credit for equiv of 29 days PSC)
Mar 20, 2020 breach recog time served 4 mo and 1 day
[23] I do not know the details of any of the offences except that I am told that the last offence, breach recognizance while on bail for the instant offences, involved A.P. giving candy to children at a hotel or motel. The Crown is candid that this record cannot be considered an aggravating factor, but urges that it sheds light on the potential danger A.P. poses to the public, and his potential for rehabilitation.
[24] Three of A.P.'s sisters testified at trial on his behalf: his two older sisters Ind and Moh, and his younger sister Sa. A.P. is very close to his sisters. Ind was very involved in raising A.P.'s daughter P.. A.P. was also, apparently, a supportive uncle to Moh's children, Mon and Su. P., Mon and Su have all provided letters of support on sentence. Ind and Moh were present during the sentencing submissions. I expect Sa would have been present as well but she lives in Vancouver, where she works and is raising her own children. It is apparent that A.P. continues to have the strong support of his sisters and their children, and his own children.
[25] P. noted that she is struggling to reconcile the gravity of my factual findings with the "honourable" man she knows her father to be. She explained that:
A.P. has always been there for me and the rest of my family, he was a single father who raised me with the help of his sisters. He made sure that I was always taken care of, loved, and had all that I need in life to succeed, while making sacrifices for himself. He learnt how to drive a dump truck with one hand, due to his hand injury he could only use one hand, just so that his daughter could have a better life. He took on an unfathomable amount of pain to not only his hand, leg and to his back.
[26] Su seeks to provide a more "complete" picture of his uncle than the offences would suggest, noting:
My uncle is an undoubtedly flawed person. The trauma and PTSD from his hand injury is something which has manifested into his anger-management and substance use issues. He is a person with extreme highs and lows, whose generosity and care for our family can also veer sharply into outbursts of anger. His sporadic behaviour is displayed in his criminal record and his past indiscretions, yet his record does not reflect the person he is now.
…My uncle's deteriorating physical and mental health have left him a shell of the once jubilant and optimistic person I remember from my childhood. He is now a subdued man who centres his mornings around meditation and his religion as a form of emotional self-regulation….
He retains a sliver of his optimistic outlook on life. He has focused his attention towards securing a stable life for his two children amidst the uncertainty while awaiting his sentencing. My uncle is a kind and caring person who is family oriented….
[27] Mon writes:
I would like to bring to light the kind of person A.P. [is] irrespective of his past criminal justice involvement. My uncle has been a part of my earliest memories as a child, he resided with my parents when I was born until I was two years old. I grew up seeing him every day even when he moved into a different apartment building next to ours. He was a part of our lives in a very positive and helpful manner. I am so grateful to have such a close bond with him that he considers me more like a daughter than a niece. I can proudly say now as a mother of two myself my own children refer to him as 'granpa' and he is very much a part of their lives when we visit.
A.P. is the person who taught me the importance of always putting family and friends first and being available for help whenever needed. No matter the time of day he has always been our family's constant strength and support when needed. A person who is true to his word, reliable and sincere….
[28] Defence counsel noted that A.P. suffers from type 2 diabetes and depression. I note that while A.P. is only 61 years old, he looks much older.
Impact on the Victims
[29] In explaining how and why he came to report the sexual abuse at trial, R. touched on how the sexual abuse affected him. As noted, he struggled to be a father to his own children. He felt bitterness towards his parents for failing to protect him. He has struggled with alcohol abuse his entire adult life.
[30] R. provided a victim impact statement (VIS) elaborating on the effect of the sexual abuse. In 2018 he was diagnosed with PTSD and depression. He began having chest pains in 2020 while he was preparing to testify and the trial was delayed due to COVID-19. In June of 2021 he had a TIA (mini stroke) which resulted in him having very significant heart surgery in August of 2021. While he feels much better as a result of the surgery, he notes "I can't help but think that the stress in my life compounded by the choices I made in coping with my past has contributed to my health challenges". His description of the impact of the offence included the following:
I have spent most of my life feeling proud of my ability to suppress my past only to realize that I was tormenting myself with this approach. Before I knew it I was too dependant on alcohol and marijuana to realistically live a sober life. Now this is a big struggle for me as I try to heal myself to a point where I could live a normal life.
[31] S. declined to provide a VIS. I do not presume to understand what, if anything, this means. My overwhelming impression during the trial was that S. did not want to be in court testifying about being sexually abused by her uncle. Her discomfort and desire not to talk about the sexual abuse felt palpable. When she was asked in chief how she felt during the sexual abuse she began to cry silently as she quietly responded that she felt scared more than anything, as she did not know what was happening.
[32] I can infer that the sexual abuse ripped this extended family apart. When various family members first came to Canada they were close-knit, and looked after each other. R. and S.'s parents separated their nuclear family from the extended family. It is safe to assume that the charges and this trial have exacerbated the separation. I found that A.P.'s sisters came to court and were untruthful in order to protect A.P.. I want to emphasize that the harm caused to this family comes from the sexual abuse perpetrated by A.P., and the attempts to cover it up and "Gaslight" R. and S.. The harm does not come from R. and S. telling the truth.
Range of Sentence for Sexual Assault of a Child
[33] Sexual assault, contrary to s. 271 of the Criminal Code, is a hybrid offence. When proceeded with by indictment, it is punishable by a maximum sentence of 14 years imprisonment, and there is a mandatory minimum sentence of one year imprisonment when the complainant is under the age of 16 years. At the time of the indictment (January 4, 1983 to December 31, 1985) the maximum sentence for sexual assault was 10 years imprisonment, and there was no mandatory minimum: Bill C-127, An Act to Amend the Criminal Code in relation to sexual Offences and Other Offences Against the Person, which came into effect January 4, 1983. It is well-established that the maximum sentence in effect at the time the offences were committed is the maximum that applies (i.e. 10 years): R. v. Stuckless, 2019 ONCA 504 per Peppall J.A. at paras.92-952.
[34] In R. v. Friesen, 2020 SCC 9, all nine members of the Supreme Court unanimously emphasized the need for sentences for offences involving the sexual abuse of children to reflect the inherent wrongfulness of such offences and the profound harm they cause. Sexual abuse of a child is inherently harmful to the autonomy, integrity (physical and sexual), dignity and equality of the child, even where it does not involve invasive sexual acts or physical abuse. It may have profound psychological and emotional effects, which may be pervasive and permanent - "life-altering", especially for a child who is still developing and learning skills to deal with adversity (paras.51-59). The harm extends beyond the child to the child's family, especially where the sexual abuse involved the breach of a relationship of trust. The breach of trust not only exacerbates the harm of the sexual abuse, but if other family members "side" with the perpetrator and disbelieve the child, this "may cause further trauma"(paras.60-61). The harm "ripples" out to the broader community, diminishing and degrading society as a whole (paras.62-64). The Court introduced its reasons with a call to action:
[W]e send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepening understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large (para.5).
[35] The Supreme Court declined to set out a starting point or range for sentences involving the sexual abuse of children, leaving this to provincial appellate courts. However, the Court emphasized that sentences for sexual offences against children must reflect "the contemporary understanding of the wrongfulness and harmfulness of sexual violence against children". Sentences must also reflect Parliament's legislative initiatives, including raising maximum sentences in 2015 for offences of sexual abuse, which "should shift the range of proportionate sentences as a response to the recognition of the gravity of these offences" (para.109). The Court affirmed that ''judges must retain flexibility to do justice in individual cases and to individualize the sentence to the offender who is before them", but "nonetheless" emphasized that lengthy sentences should be the norm:
[I]t is incumbent on us to provide an overall message that is clear….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….In addition…maximum sentences should not be reserved for 'the abstract case of the worst crime committed in the worst circumstances'. Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para.114, emphasis added, citations omitted).
[36] The Supreme Court explicitly commended the approach of the Ontario Court of Appeal in R. v. D.D. (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471, R. v. Woodward, 2011 ONCA 610 and R. v. J.S., 2018 ONCA 675 (para.113), "with the caution that the 2015 statutory amendments were not yet in effect at the time of the offences in these cases" (para.113).
[37] In D.D., the Court of Appeal for Ontario considered the appropriate range of sentence in cases involving the sexual abuse of children. The court emphasized the paramount importance of denunciation and general deterrence in such cases, and placed the harm caused to the child or children, and by extension society, at the centre of the analysis. Justice Moldaver, writing for the Court, concluded at paragraphs 44-45:
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….
The appellant was prepared to risk the lives of innocent children to satisfy his sexual cravings. His conduct was reprehensible and it must be condemned in the strongest of terms. The harm occasioned by the appellant and others like him 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!
[38] The Crown provided a series of cases in support of her position that a 10 years sentence should be imposed, which she summarized in a helpful chart. The cases include R. v. R. S., 2019 ONCA 76 (12 years upheld for 25 counts of 40 plus year old sexual abuse against 4 complainants which continued for almost 10 years); and R. v. C.K., 2015 ONCA 747 (10 years upheld for sexual assault of 2 grandsons over 10 years starting when they were 5 and about 8).
[39] Defence counsel candidly recognized the force of Friesen, and provided a series of cases, all of which post-date Friesen, in support of his position that a 6 year sentence would be fit and appropriate, including: R. v. R. H., 2021 ONCA 236 (6 years upheld following a guilty plea to offences which included the prolonged and serious sexual abuse of the victim beginning when he was 10 by the much older accused who was the cousin of the victim's stepfather); and R. v. R. A., 2021 ONCA 126 (5 ½ years upheld following a guilty plea to offences including the sexual abuse of the 15 year old victim who the accused met online).
Principles of Sentencing
[40] The principles of sentencing are now largely codified. Section 718 of the Criminal Code sets out the fundamental purpose and principles of sentencing. In particular, section 718.01 directs that a court imposing sentence for an offence that involved the abuse of person under 18 court must give "primary consideration to the objectives of denunciation and deterrence". The Supreme Court in Friesen noted that this direction reflects Parliament's intention to re-set the approach to offences against children to better reflect their seriousness (see para.102). The Supreme Court added that where an offender presents an increased likelihood of reoffending, the imperative of preventing further harm to children calls for emphasis on the objective of separating the offender from society (para. 123).
[41] Section 718.1 expressly notes that the "fundamental principle" of sentencing is that "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". The Supreme Court reiterated this in Friesen (para.30).
[42] Section 718.2 notes that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and expressly lists a number of aggravating circumstances relevant to this case, including:
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years;
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim;
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
Aggravating Circumstances
[43] The Supreme Court in Friesen emphasized that all sexual abuse is inherently harmful and serious, and the most profound harm generally lies in the emotional and psychological effect of the abuse, regardless of its precise physical manifestation. However, the Court acknowledged that the degree of physical interference inflicted is a recognized aggravating factor. It reflects the degree of violation of the victim's bodily and sexual integrity, and may significantly increase the harm inflicted (including adding physical harm), and the wrongfulness of the sexual violence (paras.137-147). In this case the sexual abuse involved particularly intrusive and degrading sexual acts, including anal penetration of R. during which A.P. ejaculated, ejaculating into both childrens' mouths (R. also recalled being required to swallow the ejaculate), and requiring the children to touch each other in a sexual fashion while A.P. masturbated.
[44] S. could not remember whether the abuse was repeated. R. remembered that it was, and what it involved, but could not remember how often it occurred, or over what period of time. It is safe to conclude that that the sexual abuse, at least that inflicted on R., was repeated over time. It only stopped when A.P. was removed from the household by some sort of complaint or concern about inappropriate touching. The repetition of the abuse multiplies the harm it causes, and the moral blameworthiness of the offender: "Each further instance of sexual violence traumatizes the child victim anew and increases the likelihood that the risks of long-term harm will materialize. Each further instance shows a continued and renewed choice by the offender to continue to violently victimize children (Friesen, paras.130-31).”
[45] A.P. stood in a position of trust with respect to R. and S. almost equivalent to that of a parent. He was their beloved "cool" uncle, the only adult in the busy household who had time for them, entrusted with their care while their parents worked outside the home. A.P. breached this trust in a vile fashion. Rather than protect and nurture R. and S., he exploited their vulnerability to use them as objects of his own sexual gratification. The harm caused by the breach of trust was profoundly exacerbated by the attitude and actions of A.P. and his sisters. Initially, there was no proper inquiry into concerns about inappropriate touching, rather A.P. was simply removed from the household. When R. finally decided to come forward with his allegations, A.P. and his sisters sought to "Gaslight" him and S., denying that A.P. ever babysat them, or there was a family meeting about inappropriate touching by A.P.. Ind testified that the sisters "laughed" together about the allegations, explaining that they speculated that they were made because R. and S.'s parents were greedy and wanted to extort money from A.P.. While I do not hold Ind's comment against A.P., it reflects the attitude of the extended family, which greatly exacerbated the harm caused by the sexual abuse. A.P. was complicit in the cover-up.
[46] The complainants were extremely vulnerable at the time of the abuse. Not only were they both very young (R. was between the ages of 4 and almost 7 and S. between the ages of 3 and just 6), but, as noted, A.P. was their care giver when their parents were not home, and they loved and trusted him. Both testified that they did not understand the abuse at the time; they were scared even talking about it at the family meeting.
[47] The abuse took place in the complainants' home. They should have been able to feel safe and secure there. The fact that they were sexually abused there, especially by a parent figure, was aggravating; it damaged one of the essential pillars of their security (Friesen, para.178).
[48] In most cases of sexual abuse, the harm caused by sexual abuse must be estimated, as time alone will reveal the actual harm. In this case, the historical nature of the allegations means that time has told at least some of the harm, to the extent that it can be understood. S. has limited memory of the abuse, but tears still spontaneously flowed down her cheeks when she was asked, approximately 35 years after the fact, how she felt during the sexual abuse. R. has a much more detailed memory of the abuse. He has struggled with alcohol abuse his entire adult life. He struggled in his marriage, and to be a father once he had his own children. He was bitter with his parents for failing to support and protect him. R. was eventually diagnosed with PTSD as a mature adult. He recently had a mini-stroke and required serious heart surgery. While it is impossible to draw a direct line from the sexual abuse to these events, it is equally impossible to discount the corrosive effects of the sexual abuse and the family cover up. R. perhaps put it best in his VIS when he reflected that he was an A student, who made friends easily: he should have felt happy; he should have made the right choices about drugs and alcohol.
Mitigating Circumstances
[49] The Accused has a stable and loving family who are extremely supportive of him. He appears to have been a loving and supportive father and uncle, and a good brother to his sisters. His sisters and their children remain loyal to him, and provide him with structure, supervision, and support.
What is a fit sentence in all the circumstances?
[50] This a difficult case. A.P. is being sentenced for offences which occurred approximately 35 years ago. The passage of time means that he is undoubtedly no longer the same person that he was at the time of the offences.
[51] Unfortunately, however, the passage of time has done nothing to diminish the seriousness of the offences and the harm they have caused. To the contrary, a great deal of the harm has manifested. It has been aggravated by the cover-up by A.P. and his sisters. I want to be clear that I do not consider the fact that A.P. had a trial and called a defence which was rejected as aggravating. Rather I am concerned that the fact that the extended family “sided” with A.P. aggravated the trauma of the sexual abuse and the breach of trust it involved (Friesen, paras.60-61).
[52] Defence counsel argues that the number of incidents and the duration of the sexual abuse is uncertain, which distinguishes this case from some of the other cases at the higher end of the range. I do not agree. There is no question that the sexual abuse was repeated over time, at least with respect to R.. Further, I am satisfied that the sexual abuse only ceased when A.P. was removed from R. and S.’s household. The inability to be certain about the exact dates and times and duration of the sexual abuse reflects R. and S.'s young age and vulnerability at the time of the sexual abuse. When I consider the uncertainty in this context, I do not believe it diminishes the harm caused by the sexual abuse. In addition, the corresponding family cover-up, which exacerbated the harm to R. and S., endured for over three decades.
[53] A.P. did not have a criminal record at the time of the sexual abuse. He has since accumulated one, including for sexual assault and assault. I agree with the Crown that the record is not aggravating, but it does reflect on his potential danger, and his potential for rehabilitation. While A.P.’s sisters provide A.P. with structure and support, I am circumspect about their abilitly to control him given their complicity in minimizing and covering up his sexual abuse of R. and S.. In all the circumstances, I believe that A.P.’s strong family support decreases the risk of reoffence that he poses to society, but it does not remove it. The risk of reoffence remains a live concern on sentence.
[54] While neither counsel mentioned the COVID-19 pandemic, unfortunately it is still a significant collateral consequence that should be considered in fashioning a fit sentence. The majority of the population is now fully vaccinated, and I am optimistic that the worst of the pandemic is behind us, but at present we are still in the midst of it. Conditions of custody remain harsher because of greater restrictions aimed at preventing infection. Further, despite precautions, the reality of communal living is that inmates are at greater risk of contracting the virus. Even if the risk never manifests, it exacts a psychological toll, especially as inmates have little ability to control exposure: R. v. Hearns, 2020 ONSC 2365. I am satisfied that COVID-19 is a collateral consequence which will make whatever sentence I impose harsher, at least for the near future, and must factor into what is a fit sentence in all the circumstances.
[55] I am also mindful that notwithstanding that A.P. has been in Canada for 40 years, his English is poor. This will make his time in custody particularly challenging. He will struggle to communicate, and he may not be able to take full advantage of available programming.
[56] In a nutshell, this case is replete with aggravating factors and almost devoid of mitigating factors. When I consider all the circumstances, I agree with the Crown that that a global sentence of 10 years is fit and appropriate.
[57] Nonetheless I would decrease the sentence to 9 years to reflect A.P.'s apparent poor health, and the fact that his time in custody will be particularly harsh due to his limited English, and, in the short term at least, the impact of the COVID-19 pandemic.
[58] I impose a sentence of 9 years in relation to each count of sexual assault but make the sentences concurrent. Friesen directs that consecutive sentences are the default unless the offences "are so closely linked to each other as to constitute a single criminal adventure" in which case concurrent sentences may be imposed (para 155). I appreciate that the sexual abuse here involved two autonomous individuals, harming both in unique ways, with differences flowing from their different ages at the time of the abuse, the different abuse inflicted, and their different personalities and life experiences. However, the sexual abuse occurred in the same circumstances, at the same place, at similar times, and on occasion R. and S. were together during the abuse. In addition, were I to impose consecutive sentences, I would have to artificially lower both sentences to reflect the principle of totality and ensure that the global sentence was no more than the 9 years I have determined to be fit in all the circumstances: R. v. Ahmed, 2017 ONCA 76; R. v. R.B., 2014 ONCA 840; Jewell 1995 1897 (ON CA), 1995 100 C.C.C. (3d) 270 (Ont.C.A.).
[59] Counsel agree that 8 months credit should be given for pre-trial custody. (A.P. was arrested on September 11, 2018 and released on bail the same day. He was arrested on the fail to comply with recognize charge on June 15, 2019 and sentenced in relation to it on March 23, 2020, with 4 months being attributed to the fail to comply, leaving 5 months and 7 days of pre-sentence custody. Both counsel agree that this adds up to approximately 8 months credit at the usual ratio of 1.5:1.)
[60] Defence counsel does not seek any additional credit for onerous conditions of pre-sentence bail.
Conclusion
[61] The effective sentence on each count of sexual assault is 8 years and 4 months, concurrent.
[62] There will be a DNA order, a SOIRA order for life, a s.109 order for 10 years, and a non-communication order under s.743.21 with respect to R. and S..
G. ROBERTS J.
Released: October 8, 2021
COURT FILE NO.: CR-20-50000420-0000
DATE: 20211008
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
A.P.
REASONS FOR SENTENCE
G. ROBERTS J.
Released: October 8, 2021