Information No. CR-18-4325
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
J.F.
- R E A S O N S F O R S E N T E N C E -
BEFORE THE HONOURABLE MR. JUSTICE T. CAREY,
on OCTOBER 15, 2021 at WINDSOR, Ontario
CHARGES: s.155(1) C.C. – Incest
s.271 C.C. – Sexual assault
PUBLICATION BAN ON IDENTIFICATION OF VICTIMS INDICATED HEREIN PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
APPEARANCES:
B. Pillon Counsel for the Crown
E. Weber Counsel for J.F.
FRIDAY, OCTOBER 15, 2021:
VIA ZOOM & IN PERSON
THE COURT: Could we have counsel’s name for the record today?
MR. PILLON: Yes, my name is Brian Pillon, P-I-L-L-O-N for the Crown.
MR. WEBBER: And for the defence Even Weber, last name W-E-B-E-R.
THE COURT: Thank you, good morning, counsel and good morning, Mr. F.
MR. WEBER: Good morning.
J.F.: Good morning.
THE COURT: These are my reasons for sentence
- R E A S O N S F O R S E N T E N C E -
CAREY, J.:
Overview
J.F. was found guilty by me on June 24th, 2021 of three counts relating to sexual assaults upon his daughter occurring when she was between the ages of 11 and 15. These sexual assaults all began in the same way with no conversation and with H.T. pretending to be asleep in bed. The sexual assaults progressed from fondling of the breast of area to the vaginal area to full intercourse on multiple occasions in multiple locations including different bedrooms used by
H.T., a family motor home and a truck owned by J.F.
These offences came to light after H.T. told a friend and eventually parents of the friend contacted the local police force. J.F.’s DNA was extracted from a semen stain found on H.T.’s bed sheets.
It is agreed by counsel that Count 2, sexual interference, be stayed per Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The Crown position is a 10 year penitentiary sentence, globally for the two remaining counts. The Crown relies on the seminal case of R. v. Friesen, 2020 SCC 9, [2020] 444 D.L.R. (4th) 1, and its emphasis on recognizing the harm done to children by this type of offence. The Crown indicates the Supreme Court in Friesen, at paragraph 114, emphasizes higher penitentiary sentences for these child-related offences with, “upper single-digit and double-digit penitentiary terms being neither unusual nor reserved for rare or exceptional circumstances.” The defence submits that six years in a penitentiary is appropriate. All of the cases relied on by the defence predate the Friesen case.
I have received and had the benefit of a Presentence Report prepared by the probation office, as well as five impact statements on behalf of H.T., her mother, her brother, her grandfather and her paternal aunt. In addition, the defence has provided eight different character letters regarding J.F. from relatives, friends and his current partner.
Prior to sentencing pursuant to s. 726 of the Criminal Code of Canada, R.S.C., 1985, c. C-46, I heard from J.F. in what has historically been called the right to allocution: see R. v. Schramek, 2021 ONSC 436.
The purpose and principles of sentencing are set out in s.718 of the Criminal Code. It reads:
“The fundamental purpose of sentencing is to protect society and to contribute along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
b) to deter the offender and other persons from committing offences;
c) to separate offenders from society, where necessary;
d) to assist in rehabilitating offenders;
e) to provide reparations for harm done to victims or to the community; and
f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.”
Section 718.01 sets out a specific objective for offences against children, as in this case. It reads:
“When a Court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”
Section 718.1 enunciates the fundamental principle of sentencing:
“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
Other sentencing principles that are set as guidance to judges are found in s.718.2. It reads:
“A Court that imposes 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, and, without limiting the generality of the foregoing,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(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,
all of these shall be deemed to be aggravating circumstances.
b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
e) 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, with particular attention to the circumstances of Aboriginal offenders.
Clearly, the crimes J.F. has been convicted of are extremely serious and involve an egregious breach of trust by a father to a young and vulnerable child. This is an aggravating feature as is H.T.’s age of 11 years old at the start of J.F.’s criminal behaviour.
The five Victim Impact Statements received were not objected to by the defence and in my view, all five members of H.T.’s family who prepared the statements were victims as described by the Criminal Code and precedent: see R. v. Duffus, 2000 CanLII 22831 (ON SC), [2000] O.J. No. 4850 (S.C.).
H.T. read her Victim Impact Statement to the court via Zoom. Her mother and paternal aunt also read their statements via Zoom. The statements of her grandfather and brother were read in by the Crown.
It is clear that this offence has had extreme and profound negative effects on H.T., both physically and mentally. In her Victim Impact Statement, she speaks of being groomed and sexually assaulted for, “a large portion of my childhood” by, “someone who was supposed to fill the role of a role model.” She recounted how the grooming of her father convinced her that her “life was only what it was because of him and most importantly [he] convinced me that I could trust him and that it was it okay to be close with him.” She said she was taught to lie to her mother about everything and that as a result of the grooming, she grew to hate her mother and never really understood why. She believes her father used her and her successes to make himself look better and that included his coaching her hockey team, which was something that she believed she agreed to out of coercion.
H.T. relates that she suffered physical and mental harm, both directly and indirectly from her father’s grooming of her and convincing her mother that she was overdramatizing her physical complaints. This included injuries that were not attended to by a chiropractor or a doctor, and her suffering without eyeglasses until school intervened and sent home letters about her issues. She also speaks of a pulled muscle in her groin before her dance exam that was aggravated by her father’s sexual assault on her in the summer of 2017.
H.T. also suffers and has been diagnosed with severe anxiety and depression, trouble sleeping and severe trust issues around men, including her partner of two years who is the father of her young child.
In her Victim Impact Statement, she attributes all of this and her leaving school in her Grade 10 year to being unable to mentally focus and to being unmotivated to attend school as a result of the trauma caused by her father’s criminal behaviour and egregious breach of trust. She had previously been a high achiever academically. She also points out that she has had to take mental health leave since the trial and has lost work due to court attendances.
H.T. remains fearful of running into her father and does not want any future contact between him and her son or future children.
I have also reviewed the other four Victim Impact Statements from H.T.’s close family members. They speak to and illustrate the ongoing and far-reaching devastation that this type of horrific sexual abuse of a child by a trusted person in authority in that family, has on the entire family. This extended family has been ripped apart by the actions of J.F. This is tragic. It is a reminder of the greater harm and ripple effect of the behaviour of which I found J.F. guilty.
It is abundantly clear that J.F.’s plea of not guilty and maintenance of his innocence over three years since the charges were laid has divided H.T.’s extended family, with most of J.F.’s family continuing to support and believe him. This is reflected in both the Victim Impact Statements and in the character reference letters from J.F.’s family and friends.
Neither the victim impact statements nor the character reference letters are sworn evidence, but I am required to consider the contents in determining an appropriate sentence for J.F.: see s.722(1) of the Criminal Code.
I do not have any direct evidence of what has been said or done or by whom, but it seems undisputed that the resulting divide in support has had strong negative emotional effect on H.T. and her immediate family. This is additional to the direct emotional and, in H.T.’s case, physical harm as a result of her father’s serious breach of trust and sexual assaults upon her. This has caused emotional trauma and harm to her mother, brother, grandfather and aunt due to the magnitude of the violation of trust. There is also a reflection of indirect consequences as a result of a plea of not guilty and J.F.’s denial of the crimes for which he has been found guilty.
J.F. has been required to cut all ties with his daughter by the operation of law, first by bail conditions and since his being found guilty and being incarcerated. However, the cutting of ties and ostracizing of H.T. and her family by her father’s supporters is another fallout from a plea of not guilty and trial.
J.F. has every right to have entered a plea of not guilty and to have had a trial. This is his right under Canadian law and our legal system as well as the presumption of innocence and the requirement for proof beyond a reasonable doubt.
While a guilty plea and a show of remorse by a offender can be taken into account in sentencing, a plea of not guilty and the requirement that evidence be heard and witnesses testify at a trial cannot be considered aggravating factors. A plea of not guilty may deprive a convicted accused of the mitigating factor of a true show of remorse and regret: see R. v. Carrero, [2010] O.J. No. 6285, at para. 12. That remorse has been taken into account in many of the cases that have been put forward before me by both the Crown and the defence.
A key piece of evidence in this trial was a note admitted by J.F. to be a suicide note. Its contents contained expressions of remorse and an apology to H.T., her mother and her brother. The remorse shown by an offender is typically regarded as mitigating on his sentencing for several related reasons. It involves one taking responsibility and in effect, lifting it from the shoulders of others, both victims and perpetrators. The Victim Impact Statements indicate that J.F.’s failure to take responsibility has resulted in H.T. being blamed and ostracized by others for these charges.
The failure to take responsibility can result in a victim being labeled as a liar. The plea of guilty spares the victim of all the stress of a trial and helps with moving on from a serious offence. The suicide note written by J.F. could have been taken as a sincere expression of sorrow for what was done and as an apology to his daughter, wife and son. However, J.F., by his own evidence, rejected any notion of that being its intent. His counsel argues that notwithstanding J.F.’s renunciation of the note is an apology and expression of sincere remorse, the rejection of his evidence by this court allows me to treat the note as an indicator of sincere regret. I do not agree.
This court’s rejection of J.F.’s evidence does not amount to an acceptance of the sincerity of what was written in the note. The words are equally consistent with him seeking sympathy from his family. The expressed intention of killing himself is equally consistent with him avoiding the disgrace and punishment of a trial and conviction as it is with taking responsibility. Neither the note nor his stated intention of contemplating suicide are capable of being viewed as mitigating factors, in my view.
Equally, the negative fallout that has visited H.T. from her father’s family members and friends as a result of their support and belief in his innocence cannot be taken by this court into account as aggravating factors, for the same reason his plea and trial cannot be considered aggravating. Those family members and others who have cut ties with H.T., her mother, brother and aunt, have made their own decision for their own reasons not to support H.T. and her family. Any such decisions are misinformed. Any actions that have been taken to blame the victim, are misguided. It is part of the ongoing hurt and trauma of this terrible crime and breach of trust, but it is not, in my view, capable of being treated as a separate, aggravating factor in sentencing.
I must emphasize that these are all serious and real repercussions of a long period of abuse H.T. suffered. Not only would it be in error to attribute any remorse to J.F. by the suicide note, I do not accept J.F.’s evidence that he took steps to kill himself, as mitigating. First as previously indicated, only he offered evidence on this point and I rejected his evidence that he was motivated by a fear of being falsely accused. Second, as I have said, there are alternative reasons for a person caught for a crime to ponder suicide. This approach not only does not involve a consideration for the victim, but if carried out, it would have the effect of depriving them of seeing the crime acknowledged and punished by society. It could also have the effect of turning the perpetrator into the “victim” in the eyes of those who accepted his innocence. Although totally without fault, children and other innocent victims of crime can sometimes blame themselves for such results.
It is important to emphasize here, J.F., that if you did contemplate suicide, your decision not to take you life was overwhelmingly the right one for your family. Suicide leaves ever growing ripples of sadness and guilt in the survivors.
Presentence Report
The presentence report filed in this matter is thorough but it is understandably unable to provide much in the way of insight into what led J.F. to this monstrous behaviour towards his young and loving daughter. His birth parents were described as unprepared to care for his needs. He was adopted when only one week old by a maternal aunt and uncle who provided him with a good home, “a good life,” with “no reported forms of violence or addiction in the home” where he was loved and accepted by that extended family. He has some resentment towards his birth mother and no relationship with his birth father and acknowledged there is a split between his siblings since he was charged.
He has no previous criminal record. He continues to maintain his innocence and told the probation officer that he was, “confused by the verdict” and maintains that it is, “not reflective of who he is.” He feels the victim has suffered greatly from the criminal proceedings, but does not feel that his actions were responsible for that. He stated however that, “he hates being a burden on society” and is “willing to comply with any counseling or other conditions the Court may impose on sentencing.”
On the date of the sentencing submissions, J.F. appeared by Zoom. His attendance had been requested in person, but his transfer from the Southwest Detention Centre had not been communicated to the court and most of the morning was taken up attempting to get a Zoom connection set up. When asked if he had anything to say to the court, J.F. read from a prepared statement that was difficult to hear. The court ordered the transcript. While expressing his love for his children and sorrow for what they’ve been through, he did not take any responsibility for causing what he referred to as devastation. He emphasized what he has missed and lost over the last three and one-half years.
The Jurisprudence and Issues
In seeking a sentence of 10 years total, the Crown concedes that this may be achieved by either the total of two consecutive sentences or the totality reflected in Count 1 which bears a minimum sentence of five years in the penitentiary with a concurrent sentence on the remaining count of sexual assault.
In addition to the case law provided by the Crown and defence, I have reviewed two recent Ontario Superior Court of Justice cases, R. v. C.B., 2021 ONSC 187, a decision of Woodley J. sitting in Oshawa, and R. v. P.F., 2021 ONSC 5980, a decision of King J. sitting here in Windsor. Both cases involve counts of incest committed by a father on a daughter under the age of 16.
In P.F., King J. discussed the incest-related sentencing case law summarized by Justice Woodley J. in C.B., and her review of the various factors to be considered as set out by the Supreme Court in
R. v. Friesen. As King J. did in the P.F. case, I also considered these as appropriate factors to review and will do so now under their headings.
Likelihood to Re-offend
In C.B., Woodley J. was sentencing a 43-year-old first time offender for sexually assaulting his biological daughter. As here, he took no responsibility for his actions which included unsuccessful attempts at intercourse. He went further than J.F. and blamed the victim stating these allegations will make it very hard to trust her again. He declared his innocence and that he would be vindicated on appeal. The sentencing judge concluded that the offender posed a low-risk to the community, assessing that it would be unlikely that C.B. would be able to attain a similar level of authority or control in any community setting.
In P.F. as well as R. v. G.C., 2020 ONSC 7381, the accused were 71 and 67 years of age, respectively, and in P.F’s. circumstances, in ill health. Both were found to pose low-risk to others in the community.
Regrettably, I am unable to say that J.F. poses a low risk to the community. He has been described through the Presentence Report as, deceitful, manipulative and controlling. He was involved in coaching young girls and has retained the confidence of many who know him. He has taken no responsibility for this offence and shows no insight into its ramifications. A publication ban protecting the identity of the victim also protects his name from being publicized. In my view, he continues, without counseling and treatment, to pose a moderate risk to the community.
Abuse of a Position of Trust or Authority
As in many cases involving charges of incest, this offender was a controlling figure at home and abused that authority with the victim. The crime I am sentencing here represents the highest degree of breach of trust between a parent and a young, trusting daughter from the age of 11 to the age of 15, and repeatedly in various locations inside and outside of the home, he raped her.
Frequency and Duration
The evidence supports these rapes occurred over a period of in excess of four years with some frequency.
Age of the victim
These offences began when H.T. was 11 and they continued until she was 15 years old.
Degree of Physical Interference
In Friesen, at paragraph 138, the court explains:
“This factor reflects the degree of violation of the victim’s bodily integrity. It also reflects the sexual nature of the touching and its violation of the victim’s sexual integrity.”
Here J.F. regularly had full intercourse with his daughter from the age of 11, apparently unprotected. On most occasions, she feigned sleep and on the last occasion, she fought back, reinjuring her groin. Emotionally and mentally, she is indelibly scarred.
Summary of the Factors
The position of the defence of six years in custody and of the Crown at 10 years, represent in my view a range that is from the low end to the higher end of sentencing for incest. A review of the lower range sentencing cases presented to me generally have involved shorter time durations of the criminal behaviour, circumstances with a guilty plea and expressed remorse, joint submissions, mental health issues or an older accused or with physical health difficulties. None of these factors are present here.
The background here does lead to discussion of the mitigating weight to be given to the good character letters that have been received in this sentencing hearing. While J.F. has no criminal record and the support of much of his family, as indicated in the Presentence Report and eight character letters, these are not particularly strong mitigating factors. Incest and sexual assault typically occur in private and are committed by those who have secured their victim’s trust as well as those in the community who know them. Trust is not usually given to those who have breached it publically in the past: see R. v. P.(T.), [2006] O.J. No. 428 (S.C.), at para. 30.
The support of others in this case has also aided in a deep rift in the greater family of the victim adding to her anxiety, depression, and feelings of low self-esteem. This has also deeply affected those who have supported her in the family, her mother, grandfather, brother and paternal aunt.
I have also taken into account that we are in the fourth wave of the Covid-19 pandemic. However, I note that there are high degrees of vaccination in the Province of Ontario and strict protocols within the Provincial and Federal correction systems.
I conclude that the repeated and horrific conduct in excess of four years represents a breach of trust that is difficult to comprehend. There is a high degree of physical interference with sexual touching leading to intercourse on most occasions. J.F.’s lack of insight leads me with concern and there is a risk of reoffence in the future. These all represent relevant factors that call for a sentence emphasizing denunciation and deterrence near the high range set out in Friesen.
Please stand up, Mr. F. Taking all of these considerations, on Count Number 1, I sentence J.F. to nine years. On the remaining Count Number 3, of sexual interference, I sentence you J.F. to three years concurrent for a global sentence of nine years in the penitentiary. There will be a credit for presentence custody which we will confirm in a moment.
Further, you will be prohibited, pursuant to s.743.21 of the Criminal Code, from communicating directly or indirectly with H.T., her partner, the child or children, S.T., A.T., R.T. or your sister, M.H.
You are further prohibited pursuant to s.161 of the Criminal Code for a period of 10 years as follows:
a) from being within one kilometer of any dwelling house where H.T. or her spouse or child or children reside, attend work, school, place of worship or is known to frequent; and
b) from seeking 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.
Further, there will be a Sex Offender Information Registration Act, SOIRA, order for life. There will be a DNA primary order. And finally, you are subject to a weapons prohibition pursuant to s.109(1)(a) of the Criminal Code for a period of ten years. You may be seated.
THE COURT: Has counsel agreed as to this totality of the credit for presentence custody on the basis of one-and-a-half-to-one day of pretrial custody?
MR. PILLON: Yes.
MR. WEBER: We are in agreement on that.
THE COURT: And what is the days?
MR. WEBER: I have 114.
THE COURT: I believe on the last date, there was an estimate of 122 days?
MR. WEBER: I just calculated, it’s been 114 days since June 24th, but there was some previous time in custody.
THE COURT: I believe you indicated 9, if I’m not wrong, that would be 122 and then there’s been custody since, or it’s 122 days – so 123 days is that taking into account today?
MR. WEBER: If it was 9 days, I just calculated 114 days from June the 25th, the day he was remanded into custody, so 9 plus 114 is 123 so...
THE COURT: All right.
MR. WEBER: ...so the 123 would be accurate then to today.
THE COURT: Mr. Pillon, do you agree?
MR. PILLON: I was double-checking my records now.
THE COURT: So if that’s the total amount of days and then a multiplier of one-and-a-half days should be applied?
THE COURT: It sounds if it’s from June that that would be the case.
MR. PILLON: Yes, I agree with that multiplier. Forgive me, Mr. Weber. Your total number was?
MR. WEBER: 123.
MR. PILLON: From June 24th until today?
MR. WEBER: Is 114.
MR. PILLOW: That’s correct.
MR. WEBER: And then nine days prior to that.
MR. PILLOW: Yes.
MR. WEBER: So 123.
MR. PILLOW: Yes, that’s exactly right which when multiplied by 1.5 is 184.5.
THE COURT: So there will be a credit for presentence custody of a 123 days calculated at a credit of one-and-a-half days for each day spent in custody for a total of 185 days accredited have been served from the total nine years imposed today. Is there anything else that needs clarification from counsel?
MR. PILLON: Not on behalf of the Crown.
THE COURT: Before I rise, I want to say to you, J.F., I hope that you are able to get some help and that you are able to gain some insight into your crimes. And I want to say to H.T. and her supportive family that I hope they get all the support they need too, to go forward in a positive way and I wish H.T. the best of luck with her own family and her own situation, continuing progress in school and in her life. And I hope that this greater family, this extended family can heal in a positive way for both H.T. and her family and in a way that will encourage some rehabilitation in
J.F. Thank you very much everyone who has attended in person and by Zoom today.
FORM 2
Certificate of Recording
Evidence Act, Subsection 5(2)
I JAN SHORTT certify that this document is a true and accurate
transcript of the recording of
R. v. J.F.
in the SCJ CRIMINAL COURT #3 held at WINDSOR, ON
on OCTOBER 15, 2021 taken from digital recording
0899_245-CRTRM3_20211015_091936__10_CAREYT.dcr
certified on Form 1.
Date: November 19, 2021 “Jan Shortt”
(Jan Shortt, Court Reporter)
ACT #3420409929
WARNING:
Photostatic copies of this transcript are not certified and have not been paid for unless they bear the signature of Jan Shortt in blue ink.
Date Transcript Ordered By/Date: Corrections/October 25, 2021
Date Transcript Completed: November 06, 2021
Ordering Party Notified: November 18, 2021