COURT FILE NO.: CR-2-30000118-0000
DATE: 20220610
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BCM
Accused
Jason Gorda, for the Crown
Y. Sidky Butler, for the Accused
HEARD: March 21, 2022
Allen J.
PUBLICATION RESTRICTION NOTICE
An Order restricting publication in this proceeding was made pursuant to section 486.4 the Criminal Code. Any information that could identify the Complainant shall not be published in any document, broadcast or transmission.
REASONS FOR JUDGMENT ON SENTENCING
BACKGROUND
TEMPORARY SUSPENSION OF THE COURT
[1] This sentencing proceeding was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations, effective March 16, 2020. It was decided that cases involving urgent matters that can be decided on written materials, or on consent, and not requiring a courtroom would be conducted by teleconference or videoconference. It has since been decided that some proceedings would be held in courtrooms as fully in-person proceedings while others would be held as hybrid proceedings with some participants attending in court and others remotely by Zoom video.
[2] The parties agreed to sentencing proceeding with the judge, Crown counsel and defence counsel appearing remotely by Zoom video and the accused attending in person in the courtroom. A registrar and court monitor were present to maintain the court record.
BACKGROUND
[3] On January 28, 2022, I convicted BCM on six Criminal Code charges involving his biological daughter, BM, as follows: making child pornography contrary to s. 163.1(2); possession of child pornography contrary to s. 163.1(4); committing sexual assault causing bodily harm contrary to s. 272(1)(c); being a person with whom the young person has a relationship of dependency, touching the body of BM contrary to s. 153(1)(a) (sexual exploitation); threatening bodily harm contrary to s. 264.1(1)(a); and having sexual intercourse with BM with whom he knew he had a blood relationship contrary to s. 155(1) (incest). BM gave birth to a child whom I found, based on DNA evidence, to have been fathered by BCM.
[4] BM is currently 21 years old. The offences occurred when she was 15 to 17 years of age. BM was seven-and-a-half months pregnant when she went to the police. Her mother’s and BCM’s marriage broke up and in August 2016, BM, then age 15 years, moved with her father and brother, also age 15, into his apartment in Toronto. BM continued to reside with BCM for about two years until she moved out in June 2018. The father’s apartment was a one-bedroom unit. There were two pullout couches in the living room where the brother and the father were supposed to sleep. However, BCM slept very frequently in the bedroom in bed with his daughter.
[5] BCM’s cellphone was investigated and the police recovered a multitude of pornographic images taken with the cellphone, which images were identified as photographs of BM asleep in various lurid poses. Through forensic analysis the police identified 102 images as child pornography, 99 of the images having been deleted by the user.
PRINCIPLES ON SENTENCING
[6] I must fashion a sentence that befits the gravity of the crimes BCM committed against his daughter. Section 718 of the Criminal Code sets out the principles that underpin the sentencing objectives of denunciation, deterrence and the separation of the offender from society.
[7] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other potential future offenders from committing offences; and (c) to separate offenders from society.
[8] An Ontario Court of Appeal case involving a sentence for an offender convicted of sexual assault of children stresses the operative principles of denunciation and deterrence and the need to separate this type of offender from society. R. v. D.(D) held:
In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.
[R. v. D.D., (2002), 2002 CanLII 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.)]
[9] Proportionality is also a guiding principle. It requires a sentence to be proportionate to the gravity of the offence, to be determined on the particular facts of the case. The narrow focus of the sentencing process is directed to imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender: It is a central principle in sentencing: [R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12, (S.C.C.); R. v. Bottineau, 2011 ONCA 194; R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].
[10] R. v. Woodward addresses penalties for more extreme forms of abuse. Adult offenders whose abuse involved full intercourse, violence, threats of violence, and other forms of extortion should attract penitentiary sentences from upper single digits to lower double digits to reflect the increased gravity of the offence and the enhanced moral culpability of the offender: [R. v. Woodward, [2011] ONCA 610, at para. 53, (Ont. C.A.)].
[11] Parity is another governing principle which requires a sentence to be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical: [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163].
[12] The totality principle requires the judge sentencing an offender for multiple offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: [R. v Johnson, 2012 ONCA 339].
AGGRAVATING AND MITIGATING FACTORS
[13] Section 718.2(a) provides that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. The mitigating factors in this case are minimal and the aggravating factors numerous.
[14] Statutory aggravating factors are present in this case. This is an incest case involving a father, a person in a position of trust and authority (s. 718.2(a)(iii) over his under 18 year-old biological daughter (s. 718.2(a)(ii.1) resulting in the significant impact of pregnancy and the birth of a child whom the father denied was his (s. 718.2(a)(iii.1).
[15] BCM also uttered threats warning that he would hurt BM and that she would have to keep looking over her shoulder if she told anyone. Exacerbating the crime is the child pornography offences. There are few if any factors that could appreciably mitigate the immensity of BCM’s crimes.
[16] BCM is 53 years of age. He has a criminal dated back in 2003. The only other mitigating factors I can see are that BCM was employed for 17 years. He is a hard worker. He has worked 16 hours a day moving from one job to the next in a day, six days a week for 17 years. He provided financial support and a home for his children. While worthy of note, this does not exceed what is normally expected of a parent. BCM also cares for and supports his mother who suffers from medical conditions. Those are paltry pluses when weighed against the aggravating factors. I can think of nothing that could override the moral repugnance of his crimes against his innocent young daughter.
[17] BM was a child 15 to 17 years of age when her father sexually abused her multiple times over an extended two-year period resulting in pregnancy. He showed a disturbing lack of insight into his wrongdoing during his testimony in his attempt to defy expert DNA and cellphone forensics. BCM has a right to deny culpability even after a finding of guilt. But in doing so he does not gain the mitigating benefit a show of remorse, an acceptance of moral blameworthiness, could bring.
[18] I think the best way to capture the context of the aggravating factors before the court at trial is to cite some passages from my trial Judgment, as follows.
[10] BM testified that as a young girl she had a close relationship with her father. She referred to him as her best friend. They would go places together. He would spoil her by buying her things she wanted. She said her father was never abusive toward her. She would confide in him.
[54] To try to sidestep blame, BCM suggested that because BM’s brother, his son KM, or an uncle, would possess common DNA with BCM and the baby, it could have been another such relative who fathered the child.
[80] It is hard to imagine the trepidation and embarrassment BM felt going to the police, seven-and-a-half months pregnant, with a sexual assault allegation against her father, knowing he could possibly be the baby’s father. That her father could be proven to have fathered the baby was her humiliating reality during the months of her pregnancy. How harrowing to testify about one’s place in one of the most universally repugnant taboos, incest and pregnancy involving a father and his biological daughter.
[86] What I saw is a man capable of perpetrating blatant and shocking lies no matter the cost to others. BCM was willing to disparage his vulnerable daughter. And if committing incest against her was not reprehensible enough, in a brazen maneuvre to avoid culpability, BCM was even willing to descend to the loathsome depth of incriminating BM’s brother, his own son, KM, as the father of the child.
[104] BM and KM were shown several of the 99 images that were extracted by Officer Saini from BCM’s Huawei cellphone. … The photos depicted BM in bed appearing to be asleep lying in various sexually explicit physical poses and stages of undress and nakedness. In the photos her breasts, buttocks and genitalia are exposed.
[131] [In his evidence] BCM attempted to maximize the opportunities for his children and their friends to have access to his cellphone when he was not at home. BCM’s nonsensical lie in this area was a weak attempt to incriminate his own children and their friends who, if he were believed, would have endless opportunities to take the pornographic photos in the form of selfies by BM or non-selfies by the others.
[136] BCM has betrayed his young daughter’s precious privacy. What he did was surreptitiously capture and preserve the images to entertain his ongoing and wanton viewing pleasure. Despicable is an understatement.
[137] BCM’s take no prisoners, scorched-earth defence strategy etches a stunning picture of depravity and heartlessness. What I see is a father with callous disregard for the wellbeing and plight of his daughter and his baby and a profound indifference towards his young son. By any measure, BCM has transcended the bounds of human decency.
VICTIM IMPACT STATEMENT
[19] BM attended the sentencing hearing. She prepared a handwritten victim impact statement which she planned to read in court. She began to read it but understandably it became emotionally overwhelming. At trial, BM described her father as her best friend, her protector, that is, before she moved to his apartment. She said his sexual abuse shocked her.
[20] In her statement, BM described her father as a “bad dream”, “a monster”, “the bogey-man”, “my abuser”, someone she now hates, who took away her “joy and hope”. She speaks of the tribulations of having a child when she was a child herself, a child she is raising on her own. BM bemoaned the stress of having to grow up too quickly, her disturbed sleep, her having to put on a brave face pretending everything is alright so she will not have to explain anything. She cries alone in silence. BM’s child is the only motivator in her life that gets her up in the morning. She calls herself “the strongest person she knows.”
THE PARTIES’ POSITIONS
[21] The Crown provided a helpful chart setting out the maximum sentences for the six offences charged.
CHARGES SENTENCE (Maximums)
Making Child Pornography – s. 163.1(2)
14 years max and 1 year minimum jail
Possession of Child Pornography – s. 163.1(4)
10 years max and 1 year minimum jail
Sex Assault Cause Bodily Harm – s. 272(1)(c)
14 years maximum jail
Sexual Exploitation – s. 153(1)(a)
14 years max and 1 year minimum jail
Threat to cause Bodily Harm – s. 264.1(1)(a)
5 years maximum jail
Incest – s. 155(1)
14 years maximum jail
[22] The Crown takes the position that a fit sentence is 12 years in a penitentiary broken down as follows:
• sexual assault causing bodily harm and incest – 11 years jail concurrent on each count
• making child pornography – 1 year jail consecutive
• threaten to cause bodily harm – 6 months jail concurrent
• sexual exploitation – 1 year jail concurrent
• possession of child pornography – to be stayed
Criminal Code Ancillary Orders:
(a) a s.490.012(1) DNA order based on primary designated offence under s. 490.011(1);
(b) a s. 109 weapons prohibition order for life;
(c) a SOIRA (Sex Offender Information Registration Act) Order under s. 490.013(2.1));
(d) a s. 743.21 non-communication order applicable to BM for the period of incarceration; and
(e) a forfeiture order for the cellphone containing the child pornography under 490.2(1);
The defence submits the Crown’s proposal is excessive. He seeks a penitentiary sentence of from 5 – 7 years which he arrived at by applying the parity principle and distinguishing the facts of the cited case law from the case at hand. He did not oppose the ancillary orders.
CASE AUTHORITIES
[23] The parties provided several case authorities for my consideration each of which I find distinguishable from the case before me in important ways.
[24] R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 (S.C.C.) – offender met the 4-year-old victim’s mother on an online dating website; the mother brought offender to her home; offender told the mother, and she agreed, to bring her young daughter to the bedroom where they committed sexual violence on her; mother’s friend heard child’s screams and removed her from the bedroom; offender repeatedly threatened the mother he would tell the mother’s friend that the mother had sexually abused her 1-year-old son; the friend confronted offender about the abuse and he fled the home; guilty plea at trial; sentenced to a 6-year imprisonment term involving 6-year sentence for sexual interference and a concurrent 6-year sentence for attempted extortion; Supreme Court restored 6-year sentence for sexual interference that was overturned on lower appeal.
[25] R. v. C.M., [2022] O.J. No. 1136 (Ont. S.C.J.) – offender, uncle of victims by marriage, age 71 at sentencing; no criminal record; he and his wife babysat young girls ages 9, 10 and 12; measured girls bodies frequently including touching their vaginas and breasts over several years; some complained of accused ejaculating in their mouths, pressing erect penis against them, putting his penis in their vagina; accused primary caregiver of disabled wife; sentence 7 years’ imprisonment on each count to be served concurrently.
[26] R. v. G.C., 2020 ONSC 7381 (Ont. S.C.J.) – historical incest with his biological daughter by father; no criminal record; age 67 at trial; about age 40 at time of offences; daughter, age 16, brought by her father to Canada from violence-torn African country; groomed her, preyed on her naïveté and gratitude; began weekly sexual intercourse for five years resulting in pregnancy and an abortion at age 19; daughter emotionally devastated and isolated by family; sentence 10 years on incest, concurrent 7 years on sexual assault.
[27] R. v. G.C., 2015 ONSC 5068 (Ont. S.C.J.) – biological father, age 53, no criminal record; had intercourse frequently with biological daughter, age 16, for over 2½ years resulting in 2 pregnancies; following the births the father continued sexual assaults; threatened daughter with not being cared for if she reported him; father continued to deny paternity despite positive DNA tests; no remorse; devastating effect on daughter’s life; sentence incest 10 years, sexual assault 6 years concurrent.
[28] R. v. C.M., 2008 ONCA 430 (Ont. C.A.) – offender, biological father sexually assaulted biological daughter, for 3 years beginning at age 13 resulting in a pregnancy and abortion; daughter contracted sexually transmitted disease; sentence 10 years’ imprisonment; appeal dismissed.
[29] R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 163 C.C.C. (3d) 471 (Ont. C.A.) – offender convicted on 11 sexual offences involving four boys; for 7 years, befriended 4 boys, ages 5 to 8 years; engaged them in various types of sexual activity including anal penetration; offender groomed them and gained compliance with gifts and fun activities; the court held persons in a position of trust who sexually abuse innocent children persistently over a protracted period can expect to receive mid to upper single-digit penitentiary terms; sentence 9 years, 1- month imprisonment.
A FIT SENTENCE
[30] Cases following the lead of R. v. Woodward and R. v. D.D. have imposed heftier sentences to take account of protracted sexual offences involving unprotected sexual intercourse, especially when committed against young innocent children where grooming, threats and violence are involved.
[31] The Supreme Court of Canada more recently in R. v. Friesen punctuated the sentiments expressed in the earlier cases. I quote copiously:
We are determined to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:
(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;
(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,
(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child.
[32] Friesen went on to say:
D. (D.), Woodward, S. (J.), and this Court's own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament's statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance -- as Moldaver J.A. wrote in D. (D.), "judges must retain the flexibility needed to do justice in individual cases" and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).
[33] There are only certain facts in some of the cases that are similar to the facts in the case before this court. There are historical cases, cases with younger children, those with multiple victims, those not involving biological fathers, and those with less invasive offences. I must fashion a sentence that accords with the particularities of the offender and the offence in the case before me guided by the objectives of deterrence, denunciation and the separation of the offender from society and applying the principles of proportionality, totality and parity.
[34] I considered the preponderance of aggravating factors and the dearth of mitigating factors in the case before me. I also weighed in the ongoing traumatic impact on BM of having the sole care of her baby when she was only a child herself, her social and familial isolation and the consternation society has for the crimes of incest and child pornography.
[35] While not an identical set of circumstances to R. v. C.G. (2020), which involved one pregnancy and an abortion, and R. v. C.G. (2015), which involved the birth of two babies, the case before me similarly involves protracted incest inflicted on a young daughter by a biological father resulting in pregnancy. Like the accused in R. v. G.C. (2015), BCM denied paternity despite the DNA findings. The courts in both R. v. G.C. cases imposed concurrent prison sentences of 7 and 6 years respectively for the sexual assaults.
[36] I take no issue with the sentence proposed by the Crown. I find a lower double-digit sentence aptly expresses the objectives of denunciation and deterrence and the need to separate such offenders from society.
[37] I accept the Crown’s position that sexual assault causing bodily harm and incest warrant an 11-year prison term to run concurrently on each count. I agree that the offence of threatening to cause bodily harm warrants a concurrent 6-month prison term and sexual exploitation deserves a further concurrent 1-year prison term all sentences running concurrently to the 11-year sentence.
[38] The major distinction between the case before me and each of the cited cases is the pornography offences of making and storing 102 sexually explicit photos of his daughter on his cellphone. That crime is surely deserving of extra time. I find as proposed by the Crown that a 1-year consecutive prison sentence for making child pornography is reasonable and, following the Kienapple principle, that a 6-month prison sentence for possessing child pornography should be stayed.
[39] BCM is sentenced to a total penitentiary sentence of 12 years. I impose the ancillary orders pursued by the Crown.
SENTENCE
[40] BCM please stand. I will now impose sentence.
[41] You are sentenced to a prison term totalling 12 years in a federal penitentiary.
[42] I impose the following ancillary orders under the Criminal Code:
(a) a s.490.012(1) DNA order based on primary designated offence under s. 490.011(1);
(b) a s. 109 weapons prohibition order for life;
(c) a SOIRA Order for life under s. 490.013(2.1);
(d) a s. 743.21 non-communication order applicable to BM for the period of incarceration; and
(e) a forfeiture order under 490.2(1) for the Huawei cellphone, model #G7-103 and the Sandisk 8GB Micro SD Card containing the child pornography.
Allen J.
Released: June 10, 2022
COURT FILE NO.: CR-2-30000118-0000
DATE: 20220610
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BCM
Accused
REASONS FOR JUDGMENT
Allen J.
Released: June 10, 2022