ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
R. S.
James Frost
for the Crown
Jeremy Naresh
for the accused
HEARD: Sentencing submissions - June 22 and July 12, 2022
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.
REASONS FOR SENTENCE
OVERVIEW
1Following a two and a half week trial in the spring of 2022, a jury found R.S. guilty of sexual assault, invitation to sexual touching, and incest, in relation to his daughter A. (I refer to her by first name as this is how the witnesses referred to her, but I mean no disrespect in doing so), between November 1, 1998 and February 26, 2002. It now falls to me to impose sentence.
2The Crown seeks a sentence in the range of ten to twelve years, emphasizing twelve years as the appropriate sentence.
3Defence counsel seeks a sentence towards the low end of the range of three to five years.
4Having considered the circumstances of the offence and the offender I believe a sentence of eleven years is fit and appropriate.
CIRCUMSTANCES OF THE OFFENCE
5During the fall of 1998 and winter and spring of 1999, R.S. lived with his daughter A., and A.'s mother N.M., in a two-bedroom apartment of a triplex at X1 K[...] Avenue. A. was in grade 4. She was 8, turning 9 (she was born on [...], 1989). R.S. would put A. to bed if he was home, while N.M. did chores or watched tv or chatted on the telephone. A. testified that the sexual abuse began during the nighttime routine, and continued, with escalating seriousness, when R.S. found himself home alone with A., such as when N.M. was out, or downstairs doing the laundry.
6While R.S. was living with N.M. and A. at X1 K[...], he began an affair with a woman named V.. They eventually had a child - M., who was born on […], 2000. N.M. did not know about the affair, or M., but learned sometime later when V. left a voice mail message for R.S. on the home telephone that his son M. was in the hospital. N.M. did not see the affair coming and was devastated. I accept her evidence that R.S. remained around for some time while she sorted out what to do, and that he did not move out until that summer, when N.M. arranged for a student to move into the apartment.
7After R.S. moved out of X1 K[...], he stayed on and off with his parents, who lived next door in an identical unit at X2 K[...] Avenue. It was common ground that there was no formal arrangement for custody or support, and R.S. did not make any particular effort to see A., or support her or N.M., financially or emotionally. Nonetheless he did continue to see A.. A. recalled a number of instances where there was a special visit planned with her father, during which time further sexual abuse occurred, again with escalating seriousness.
8In reaching their verdict, the jury rejected R.S.'s evidence denying any inappropriate touching (i.e. they did not believe him, nor did his evidence raise a reasonable doubt), and accepted A.'s evidence. The facts underlying the count of invitation to sexual touching are straightforward. A. described only one incident that could amount to this charge (the incident where she rolled over her father's erection in bed). However, the sexual assault and incest counts include a number of incidents, and the jury only had to be satisfied that at least one incident occurred during which the essential elements of each count were established beyond a reasonable doubt, and they did not need to agree on which incident. As a result, it falls to me to make "my own independent determination of the relevant facts" in relation to the exact facts underlying the sexual assault and the incest counts. My finding must, of course, be consistent with the jury's verdict. And I must be satisfied of any aggravating facts beyond a reasonable doubt. I need only be satisfied of a mitigative fact on a balance of probabilities: R. v. Ferguson, 2008 SCC 6 at paras.16-18; R. v. Aragon, 2022 ONCA 244.
9A.'s evidence was emotional and powerful. At moments she trembled so violently that she could not speak, particularly when recounting the most intrusive sexual abuse inflicted on her, and some of the deeply personal and inappropriate things her father said to her. Her recollection of events contained unique and specific details demonstrating a clear and enduring memory of the sexual abuse. Almost no internal inconsistencies were suggested to her. Her evidence was consistent with, and made sense in light of, the uncontroversial evidence of what her life was like at the time frame of the indictment. Further, aspects of her evidence were specifically supported by R.S., including his evidence about the New York incident. R.S. testified that he recalled the exact date of this trip, and the fact that his mother told him N.M. would be away and A. would be staying with Om, exactly as A. and her mother recalled. The jury clearly found A. credible, reliable and accepted her evidence. I do too. I am satisfied beyond a reasonable doubt that all of the sexual abuse that she described happened. I will now summarize that sexual abuse.
10Not long after A. and her parents moved into unit 2 of X1 K[...], something changed in the bedtime routine. Her father kissed her on the mouth, with his mouth open and using his tongue. He was laying next to her, his side leaning on her. He put his hand down A.'s underwear and touched her vagina with his hand. He told her she was a good kisser, and asked her where she learned to kiss. A. does not believe that she said anything in response. She was in grade 4 and had never kissed anyone before. Similar kissing and touching was repeated on other occasions; she estimated that it could happen anywhere between 4 to 6 times a month. She believed that her mother was in the living room at the time; she could tell by the way the floor creaked.
11During the day, when N.M. was not around, sometimes R.S. would come into A.'s bedroom and there would be similar kissing and touching as occurred at night. Sometimes he would ask A. to open her legs, push her underwear to the side, and touch her vagina with his mouth, and penetrate her vagina with his finger. He told her that when people enjoy this, they move their hips and make noise. A. recalled that the sexual abuse occurred in the corner of her room between her window and her closet. R.S. told her he loved her and liked to make her feel good. A. could not recall how often this happened, but it continued over a number of months before her father moved out.
12A. recalled an incident where she was sitting on the toilet inside unit 2 of X1 K[...] with her legs spread apart. Her father was crouched down in front of her, between her legs, trimming her pubic hair with grooming scissors. He told her that what he was doing was normal; her uncle did the same thing for her cousins. A. believed this occurred near the beginning of the sexual contact. She explained that she went through puberty young compared to her friends. She had pubic hair in grade 4, and got her period in grade 5. A. remembered her father telling her that her vagina looked like her mother's.
13A. recalled an occasion when she and her father stayed with her grandparents for a weekend, either Friday and Saturday night, or Saturday and Sunday night. She believed the weekend was arranged so she could spend some time with her father. Her grandparents slept together in her grandmother's room, and A. and her father slept together in her grandfather's room. On the first night, A. recalled lying next to her father and he got an erection. It was the first time she had seen an erection. He told her that is what she did to him. He asked her whether she wanted to touch his erection. She declined. She recalled that her father was lying under a thin bed sheet. She was lying perpendicular to her father, over the bedsheet. She remembers rolling her torso back and forth over his erection while they both laughed.
14A. recalled additional sexual activity occurring the next night. All she could remember was being in a dark room at her grandmother's. Her father was on top of her, facing her, kind of propped up. He said he would go slow. She felt lot of pressure in the area of her vagina from her father's penis. She told her father that she felt like she had to poo. He told her that was normal.
15The last incident occurred in May of 2001, when A.'s mother was visiting friends and family in New York. A. was 11 years old at the time. A. was staying with her mother's friend Om, but met her father at X1 K[...]. A. thought they would go to a movie, but they stayed in the apartment. A. did not remember a lot of what happened. She remembered lying on her bed with her legs off the bed and R.S. performing oral sex on her. They were both naked. The next thing she remembered was lying on her stomach. R.S. was on top of her, with his head above and next to hers. She did not remember how the sexual abuse ended. This occasion was more intense than the previous occasions. Before R.S. would talk her through what was happening. This time he was more aggressive. The next thing she remembered was sitting with her father in the sunshine on the front steps to her house. They were both crying. Her father told her he was sorry, and that what he was doing was wrong, and he needed to speak to a priest for what he was doing to her. A. was hugging him and telling him it was ok.
16Again, I accept A.'s evidence in its entirety and I am satisfied that all of the sexual abuse that she described happened. All of it, except the incident where A. rolled over R.S.'s penis, amounted to sexual assault. The penis rolling incident amounted to invitation to sexual touching.
17In addition, I am satisfied beyond a reasonable doubt that the second night of the visitation weekend at A.'s grandparents involved sexual intercourse, specifically penetration of A.'s vagina with R.S.'s penis, thus this incident also amounted to incest. Sexual intercourse is defined in s.4(5) of the Criminal Code as “penetration to even the slightest degree, notwithstanding that seed is not emitted”. Based on A.’s evidence of the grooming that had occurred, their physical positions, and how she felt during the sexual abuse, I satisfied beyond a reasonable doubt that R.S.’s penis penetrated A.’s vagina during this incident, at least to the “slightest degree”. I am also satisfied that the New York incident involved sexual intercourse, specifically penetration of A.'s vagina with R.S.'s penis. Although A. did not have a specific memory of this act, beyond the positioning of her body and R.S.’s body, she recalled that this was the most intrusive encounter, during which R.S. behaved the most aggressively. When I consider all the circumstances, including the fact that R.S. had already had sexual intercourse with A., I am satisfied that the only reasonable inference is that this encounter included sexual intercourse.
18A. told a few people over the years about the abuse - her long-time boyfriend Ro., a good friend, her now husband and good friend at the time Ra., and finally, her mother. A. explained that she never intended to make her allegations public, but after R.S. had a daughter with yet another woman in February of 2016, A. decided that she could not stay silent. She summoned up the courage to speak to police in February of 2017. She told her mother just days before.
Rule Against Multiple Convictions
19The rule against multiple convictions (the "Kineapple" principle) prevents an accused from being convicted of multiple offences arising from the same transaction where the elements of the offences are substantially the same, i.e. there is both a factual and legal nexus. In such cases the accused should only be convicted of the most serious offence, and the other offences should be conditionally stayed: R. v. Kienapple (1974), 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.); R. v. Prince (1986), 1986 CanLII 40 (SCC), 30 C.C.C. (3d) 35 (S.C.C.).
20Sexual assault and incest engage the principle against multiple convictions when related to the same event or transaction: R. v. Provo, 1989 CanLII 71 (SCC), [1989] 2 SCR 3 at para 21. So do sexual assault and invitation to sexual touching when related to the same event or transaction: R. v. C.G.F., 2003 NSCA 136. In this case, while the incidents which amount to incest also amount to sexual assault, there are other incidents, which do not amount to incest which amount to sexual assault, specifically all the other sexual activity, except for the invitation to sexual touch. In other words, different incidents ground each count. Hence, similar to R. v. P.B., 2016 ONSC 4350, I do not believe the principle against multiple convictions is engaged in this case.
CIRCUMSTANCES OF THE OFFENDER
21R.S. is 53 years old. He was born on […], 1968 in Trinidad and Tobago.
22According to a letter provided by his current partner Od, apparently from R.S.'s mother I., R.S. was sexually abused at his grandmother's home when he was 8 years old by two older boys who were staying there. The abuse was extremely serious and very traumatic.
23R.S. immigrated to Canada with his parents, I. and D., and older brother M. and younger brother C., in the late 1980s.
24A. was born on [...], 1989.
25In September of 1996, R.S. was found guilty of sexual assault and sexual interference of a 5 year old girl who lived in the basement apartment of the building where R.S. lived with his parents. There is no dispute about the circumstances of these offences. During the summer months from June to September 1993, R.S. brought the girl upstairs into the bathroom of his apartment, or into the downstairs laundry room, removed her clothing, put her on the floor, and got on top of her and put his penis inside her vagina. The victim did not speak any English. She eventually disclosed the abuse to her mother in March of 1994.
26In the fall of 1988, R.S. moved into the apartment at X1 K[...] with N.M. and A.. Both N.M. and A. asserted that R.S. was physically and psychologically abusive towards N.M.. Nonetheless the family continued to live together. R.S. took responsibility for the bedtime routine with A., and this is when the sexual abuse began.
27R.S. left the family home in 2000, when A. was in grade 5, after he had a child (M.) with another woman (V.). He continued to see A., but only sporadically. He continued to sexually abuse her when alone with her during these visits up to the New York incident, described above, after which time the sexual abuse stopped.
28The evidence about R.S.'s work history is inconsistent. R.S. testified he worked continually, but both A. and N.M. testified that he could never keep a job for long. I find that he has worked consistently, but not continually, at a variety of entry-level type jobs.
29R.S. is currently in a long-term relationship with Od. They have been together for 16 years.
30In addition to A. and M., R.S. has two daughters with another unnamed woman (not N,M., not V., and not Od): A., born on […], 2016, and T., born on […], 2019.
31R.S. is religious. He told the PSR writer he has been part of an all men's church council for over 22 years. He attends meetings once a month, but otherwise elaborated that he is not “overly involved”. I noted that he brought a rosary out in court when the jury announced that it had a verdict. He provided a letter from the Toronto East Detention Centre confirming that he has been attending chapel and completing Bible studies while at the institution (exhibit 6).
32At the sentencing hearing, R.S. provided a number of reference letters:
Mr. S., a close friend of R.S.’s parents, wrote “I have always seen [R.S.] as a kind, trustworthy, decent person”….with “the most appropriate behaviour”.
N.A.., a cousin, wrote that R.S. “is a very caring, understanding, and dependable person, who is full of life and jovial. His kindness and generosity are unparalleled.”
M., R.S.’s son, wrote that his father has always been there for him, emotionally, financially, and practically, and is hardworking and dependable.
Od, R.S.’s partner, wrote that R.S. is a “kind, loving, good hearted and over-protective partner” who is generous and helpful and supports his children.
Mark Hansray, a retired police officer in Trinidad, who has known R.S. since he was a child, wrote that he knows R.S. to be “honest, polite, and hard-working”; an honourable and good person.
IMPACT ON THE VICTIM
33A.'s testimony was difficult to listen to and bear witness to. As I noted, she trembled violently throughout, particularly when describing the abuse. At times she could not speak at all, for significant periods of time, especially when asked to describe the more intrusive abuse inflicted on her. She was cross-examined before the jury for two full days (the cross-examination began on Tuesday afternoon and finished on Thursday afternoon).
34At the sentencing hearing, A. gave an emotional and powerful victim impact statement (VIS). She kept the sexual abuse hidden for years in order to protect her father and her mother and herself. Since the secret finally burst from her in 2017, she has struggled to come to terms with what her father did to her, and what it means about her father, and his love for her. After everything, she still loves him, and still yearns for him to love her like a father should. Disclosing the abuse meant recognizing that he does not love her back properly. It also meant coming to terms with who she is. She explained that the old A., the A. her husband asked to marry, and that she built her life around, died with the disclosure. She has struggled in her marriage and had to leave her job as she was unable to be "on" five days a week. The disclosure also resulted in her extended family on her father's side casting her out, treating her as "disposable", despite being deeply involved in raising her. She lost her half-brother M.. A. described herself as a dark cloud hovering over everyone, unable to focus sufficiently for full time work, or even participate meaningfully in the happy moments in life, like finally getting pregnant after two miscarriages, and buying a new house with her husband, let alone enjoy them. She is beginning to come to terms with the abuse, and find peace and happiness. She finished by forgiving her father, bidding him and her extended family on her father's side goodbye, and encouraging him to face his demons.
35N.M. is no longer the same person she was before she learned about the sexual abuse. As she explained in her VIS, that N.M. is dead. She endures to try and support the people she loves, but she no longer takes joy in life. She grew up without a father and wanted A. to have what she lacked. Words feel insufficient to describe the deep betrayal and sadness she conveyed about what R.S. did to her only daughter, on her watch, in her home, but I will include some of what she said:
[A.'s disclosure] instantly put me in a state of shock like an out of body experience. I could not go back to work the next day. My co-workers told me I was not the person who left [the previous work day]. I was never the same again. I felt like part of my daughter had died. I cannot explain it….The pain was the worst pain I have ever felt and still is. It is the type of pain that changes you. It wakes you up at nights and you cannot go back to sleep. It interrupts your thoughts. I was losing my mind. I could no longer have us live there….Our safe home no longer felt safe; because it was not. My baby girl was not safe in her own home. Knowing that awful trauma was caused by her very own father was too much to bear. This is why I did not date, but I felt my baby was safe with her Dad. I feel like I have blood on my hands….
Unfortunately this does not end here for us. You have burdened our little A. with the heaviness of what you did to her. And you burden me by doing what you did to her. We will walk with this burden for the rest of our lives….
She has lost so much already. Her innocence, her silence, her safety, her father, her grandparents, her siblings. And the freedom of just having any memories with these people are now confusing for her I am sure. Just knowing that she lost her grandparents and her brother because she told the truth! That on its own is also another price she has had to unfortunately pay. Imagine that the victim has to suffer even more. It's been difficult to watch her struggle with who you are to her and what you have done to her. This kind of crime is unthinkable from one human to another, but coming from a father that's another level of trauma on it's own.…
36A.'s partner, Ra., loves A. deeply and wants only to support her and be with her. But she has been deeply hurt by the abuse, and the pain of disclosing it and coming to terms with it. He explained that this pain put A. in a dark place which prevented them from sharing joys like moving in together, getting married, buying their first home, and beginning a life together. Like A., however, he ended his VIS on a positive note:
A. is strong and she has never quit. She will never allow you to own her life and never allow you to win. She stands facing her darkness pulling herself out of it day by day until eventually one day she will never be hurt by you.
37I note that N.M.'s VIS included comments about what the sentence should be. As I explained in court, I cannot, and did not take these into account. It is for me to determine the appropriate sentence based on all the circumstances of the offence and the offender.
38I also note that the A.'s VIS referred to how painful it was to have to testify about what happened in front of a room full of strangers. This was exacerbated by the fact that R.S. stared at her with a "cold…blank face" without a hint of remorse or even emotion. This was A.'s experience, and it must be acknowledged. I simply note that I cannot acknowledge it as an aggravating factor on sentence. R.S. has a constitutional right to a trial. Neither the fact that he exercised that right, nor the way he exercised it, can be considered aggravating facts on sentence.
LEGAL PARAMETERS/RANGE OF SENTENCE
39Sexual assault, contrary to s. 271 of the Criminal Code, is a hybrid offence. When proceeded with by indictment, as in this case, 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 (November 1, 1998 to February 26, 2002) the maximum sentence for sexual assault was 10 years imprisonment, and there was no mandatory minimum.
40Incest, contrary to s.155 of the Criminal Code, is an indictable offence. The maximum sentence is 14 years. Where the victim is under 16 years of age, there is a minimum sentence of 5 years. At the time of the indictment, there was no mandatory minimum, but the maximum sentence was 14 years, as it remains today.
41Invitation to sexual touching, contrary to s.152 of the Criminal Code, is a hybrid offence. Where prosecuted by indictment, as it was here, it is punishable by a maximum sentence of 14 years, and there is a mandatory minimum one year sentence. At the time of the indictment, the maximum sentence was 10 years, and there was no mandatory minimum.
42It is well-established that the sentencing provisions in effect at the time the offences were committed is the framework that applies: R. v. Stuckless, 2019 ONCA 504 per Peppall J.A. at paras.92-952.
43In 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 sexual abuse and the profound harm it causes. 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).
44The 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).
45The Supreme Court explicitly commended the approach of the Ontario Court of Appeal in R. v. D.D. (2002), 2002 CanLII 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 [increasing the maximum sentence for sexual interference, invitation to sexual touching, and sexual exploitation from 10 years to 14 years] were not yet in effect at the time of the offences in these cases" (para.113).
46In 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!
47The Crown provided a series of post-Friesen cases from this court in support of his position that a twelve year sentence should be imposed. In addition to Friesen, the cases include:
48R. v. M.A., 2022 ONSC 1496 - total sentence of 7 years following a jury trial for sexual abuse of niece, grand-daughter of a friend, and another child. The abuse occurred on a regular basis while MA purported to "measure" the girls. The abuse of the niece began when she was 9 and continued until she was 14 (somewhere between 2009 and 2016). It included touching her breasts, putting his mouth on her breasts, putting his penis in her mouth and ejaculating, putting his penis on her vulva (but no penetration). The grand-daughter of his friend staying with him for a week in 2014 when she was 12. He touched her breasts, pressed his penis against her back, and took her hand and made her wrap it around his penis while she tried to pull away. The sexual abuse of the other girl began in 2018 when she was 10 and continued for over a year. It included touching breasts and vagina, putting mouth on vagina, putting mouth on breast, touching penis to vagina, putting penis in her vagina and “white stuff” coming out. MA was 71 years old at the time of sentencing. He was married to the same woman since his early twenties and they had two adult children. She had significant health issues and he was her care-giver. He worked his entire life, volunteered, and had no criminal record.
49R. v. A.P., 2022 ONSC 6647 - total sentence of 9 years following a trial for sexual abuse of niece and nephew 35 years earlier when they were young children (between the ages of about 4 and 7). The sexual abuse included anal penetration, involving ejaculation, fellatio, involving ejaculation where the nephew recalled being required to swallow the ejaculate, and having the children play with each others' private parts and perform oral sex on each other. AP denied the offences but was found guilty after a trial. He had no criminal record at the time, but subsequently acquired one, including for sexual assault. He had a sporadic work history. He was close to his family (apart from the parents of the victims), and they remained supportive.
50R. v. C.B., 2021 ONSC 187 - total sentence of 5 years following a trial for sexual assault of biological daughter in the family home when she was between 13 and 16, including touching breasts, digital penetration, oral sex, manual stimulation of CB's penis and repeated attempts at sexual intercourse, CB had no criminal record. He had worked continuously and at a high level most of his life. He had mental health issues which he made efforts to address both before and after arrest. He had support in the community, and in his parents and sister.
51R. v. J.F., [2021] OJ 6553 - total sentence of 9 years following a trial for sexual assault of biological daughter in the family home, motor home and truck, while she was between the ages of 11 and 15. The abuse progressed from fondling to sexual intercourse. JF had no criminal record. He maintained the support of much of his family, and had support in the community.
52R. v J.L. 2020 ONCJ 456 - total sentence of 9 years following a guilty plea to sexual interference of biological daughter, in the family home, between the ages of about 9 and 13, including sexual intercourse. The abuse was discovered when the victim became pregnant. JL was 61 years old at the time of sentencing. He had no criminal record. He had worked full-time in restaurants, washing dishes and cooking, since immigrating to Canada from China in 1992. He had no education beyond grade 2, was illiterate, and spoke only Cantonese. There was some question whether he had an intellectual disability, but he did not have the functional deficits essential to such a conclusion.
53R. v. K.Y., 2021 ONCJ 26 - total sentence of 6 years following a guilty plea to incest and sexual interference of biological daughter between the ages of about 12 and 15, beginning with fondling and escalating to oral sex and vaginal intercourse. KY was 45 years old and had a record for assaulting his ex-wife. He had been in therapy since arrest. He readily confessed, wrote a letter of apology, and pleaded guilty and did not have a Gardiner hearing in order to save the victim from testifying. He was badly beaten in jail as a result of the charges.
54Defence counsel also provided a number of range cases, but only two are from Ontario, and only one of these two post-dates Friesen. It is CB, summarized above. The other Ontario case is R. v. S.S., 2017 ONSC 4176 in which a total sentence of 5 years was imposed following a guilty plea to sexual interference of biological daughter, beginning when she was around 9 and continuing until she was around 14. The abuse began with touching breasts and vagina, progressed to digital penetration, oral sex, attempted anal penetration and, when the daughter was 12, sexual intercourse on one occasion. SS admitted the allegations when first confronted by the mother and pleaded guilty. He was 36 years old at the time of sentencing and had no criminal record. He had Addison's disease. He was remorseful and pleaded guilty to see that his daughter got help. He was suicidal at times.
55The other range cases provided by defence counsel, in addition to being pre-Friesen, come from all over the country. While cases containing important sentencing principles can come from anywhere, sentencing ranges are local.
56I would add R. v. P.B., 2016 ONSC 4350. While it is pre-Friesen, it is from an experienced jurist of this court and contains similarities to the instant case. Justice O'Marra imposed a total sentence of 8 years (7.5 years plus 6 months credit for strict conditions of bail) following a jury trial for sexual interference, two counts of sexual assault, and incest. The daughter was 11 when the sexual abuse began, and it continued for 15 years. It began with PB putting his daughter's hand on his erect penis, and escalated to fellatio, anal intercourse, and vaginal intercourse. PB had no criminal record, had always been employed, and had positive prospects for rehabilitation. He did not testify at trial, and chose not to say anything after sentencing submissions were complete. He continued to deny the offences. He spent almost 4 years subject to stringent bail conditions amounting to house arrest.
57The range of sentence serves as a guide for the application of the relevant principles and objectives. But it is only a guide. Ultimately the sentence must be proportionate to the particular circumstances of the offence, both its objective seriousness (as suggested by the maximum penalty and the sentencing range) and subjective seriousness (the particular circumstances in which it was committed), and the circumstances of the offender: s.718.1 of the Criminal Code; Friesen, at paras.34, 37-38, 96-97, 108-114.
PRINCIPLES OF SENTENCING
58The fundamental purpose and principles of sentencing are now largely codified in section 718 of the Criminal Code. They are lengthy and detailed and mostly very well-established. I have them firmly in mind and will not recite them here, except to note certain discrete principles engaged by the circumstances of this case. For instance, section 718.01 directs that a court imposing sentence for an offence that involved the abuse of person under 18 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 also calls for emphasis on the objective of separating the offender from society (para. 123). Section 718.2(ii.1) explicitly notes that the following are aggravating circumstances that "shall" be taken into consideration:
(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 (positions of trust fall along a spectrum and involve different degrees of harm: Friesen, at paras.125-30),
(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.
59I also single out the principle of restraint. A court should seek the shortest and least intrusive sentence which recognizes the seriousness of the offence and achieves the overall purpose of being an appropriate and just sanction: Hamilton (2014), 168 C.C.C. 3d 128 (Ont.C.A.). This principle is also codified in s.718.2(e).
60As with any sentencing decision, the relative weight to be accorded to each sentencing principle or objective will vary depending on the circumstances of the particular offence and offender. In all instances, as s.718.1 expressly notes, the "sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender".
61Section 718.3(7) provides that different sexual offences against the same child require consecutive sentences, but this provision "must be read alongside" the principles of proportionality and totality: R. v. S.C. 2019 ONCA 199 (leave ref'd [2019] SCC No 165). Friesen suggests 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).
AGGRAVATING CIRCUMSTANCES
62R.S. stood in a position of trust with respect to both A. and N.M.. He was both A.'s biological father and the father that raised her. N.M. grew up without a father and wanted A. to have what she lacked. N.M. worked long hours to keep the family afloat, and let R.S. put A. to bed while she did the household chores. Rather than love and nurture A. as a father, R.S. used this as an opportunity to begin to sexually abuse A.. In short, he exploited the trust both A. and N.M. placed in him as a father to pursue his own sexual gratification.
63A. was extremely vulnerable at the time of the abuse. She was between 8 and 10 years old when she was sexually abused, and her mother worked long hours outside the home. A. trusted her father and wanted his love and attention. He was a central pillar of her life and her security.
64The abuse took place in A.'s home, and her grandparents' home. Both locations should have been places of safety, especially her own home. The fact that she was sexually abused there, by a parent figure, was aggravating; it damaged another essential pillar of her security: Friesen, para.178.
65Aside from its inherent evil, the abuse was manipulative and planned and deliberate. R.S. groomed A., steadily increasing the intrusiveness of the sexual acts he inflicted on her, beginning with kissing, moving to touching of her vagina, escalating to oral sex, then introducing an erect penis, and finally sexual intercourse. The last incident of abuse was so intrusive A. appears to have dissociated and can only remember flashes of it. It ended with A. comforting R.S. over his guilt about what he had just done. R.S. sought to normalize the abuse; when he trimmed A.'s pubic hair, for example, he suggested this was done for her cousin as well. They laughed when R.S. had A. roll over his erect penis. At one point he proposed that they "date".
66The sexual acts inflicted were extremely intrusive, including oral sex and sexual intercourse.
67The sexual abuse occurred over about two and a half years, when R.S. was alone with A..
68In most cases of sexual abuse, the harm must be estimated. 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. The VISs provide insight into the depth and complexity of the pain caused by the abuse. Not only did the abuse rob A. of her innocence, but it put her in the uncomfortable role of being an accuser, and she has been cast aside by R.S. and his parents and family. The harm does not end with A.. Just as the unanimous court in Friesen warned, it has rippled out to the people that love A., as described in their deeply emotional VISs.
69R.S. has a criminal record for very similar conduct. In September of 1996, R.S. was found guilty of sexually assaulting the five year old daughter of a downstairs neighbour during the summer of 1993, as described above. R.S. received a sentence of 12 months. He was released in December of 1996, at which time he was bound by a number of conditions, including a s.161 order for 3 years. This order was in effect when R.S. began to sexually abuse his own daughter A..
MITIGATING CIRCUMSTANCES
70R.S. has a stable and loving family, a supportive partner, and a good relationship with his son M.. His parents and brother C. testified for the defence during the trial, from Trinidad and Tobago, where they currently live. R.S. is in a stable long-term relationship with Od, who reports that the relationship is positive. He has a good relationship with his son M.. Defence counsel also noted that R.S. was helping M. pay for college, and M. relies on him.
71R.S. works, and has always worked.
72R.S. has support in the community, as demonstrated by the letters of reference. To the extent that this support reflects good character on R.S.’s part, this good character is of limited mitigation in this case where the offences occurred in secret and involved a breach of trust.
73I accept that R.S. was sexually abused as a child. I also accept that a history of sexual abuse as a child may be a mitigating circumstance, possibly a very powerful mitigating circumstance, depending on the case. However, I do not believe that R.S.’s history of being sexually abused has a mitigating effect in the particular circumstances of this case. The defence has drawn no connection between this history and the abuse perpetrated in this case. R.S. testified and denied sexually abusing A.. His parents and brother suggested A.’s allegations were impossible, or did not make sense, at least in so far as they related to their house. R.S. declined to say anything to me or to A. before being sentenced. Accepting an implicit connection between being abused and going on to abuse others, however, at the time R.S. began to sexually abuse A., he knew he had an issue. In fact, he was still subject to a s.161 order in relation to sexually abusing a young girl about the same age as A.. Finally, R.S. does not appear to have any insight into the harm he caused to A.. He claims his own trauma as mitigating, but does not acknowledge or appear to even recognize the trauma he has caused his daughter. For all these reasons, I do not believe R.S.’s history of abuse has a mitigating effect on sentence.
ANALYSIS - WHAT IS A FIT SENTENCE IN ALL THE CIRCUMSTANCES?
74In PB, Justice O'Marra described incest as a soul-destroying crime. I agree. The only thing I would add is that it is not just the direct victim's soul that is damaged. Here N.M.'s soul was also damaged. As was A.'s partner Ra.. All three are putting everything into ensuring that A. and Ra.'s daughter is not affected. This case is a visceral illustration of the inherent harm of sexual abuse, and the ripple effect noted by the Supreme Court in Friesen. The harm is exacerbated by A. losing her father, and her paternal grandparents and entire extended family on her father's side, people who raised her and are part of her.
75I heard A. testify over three days. I also heard from her mother, her long-time childhood boyfriend, and her husband. I know her to be a hard-working, kind and empathetic person. After the last incident of sexual abuse, the incident that was most intrusive, A. sat on the front steps of her home, where she had just been sexually abused, and had been sexually abused in the past, and comforted her father. I believe that if anyone can heal from what has happened, and move forward in a positive way, it will be A.. I also know the depth of love that her mother and husband feel for her. I am optimistic they all can heal, and that together they will raise good, loving children.
76Defence counsel requests the bottom end of a three to five year range. Even if R.S. had much to offer in the way of mitigation, the top of the defence range would be woefully inadequate to recognize the inherent harm of the sexual abuse in this case. But R.S. has little to offer in the way of mitigation. Instead, the aggravating circumstances present in this case are very significant.
77I believe that the twelve year sentence proposed by the Crown does acknowledge the inherent harm of the sexual abuse in this case (he provided a range of ten to twelve years but argued twelve years was appropriate). The sexual abuse was as serious as the sexual abuse involved in a number of the post-Friesen cases where lengthy sentences were imposed, such as JF and JL, described above. In looking at these sentences it is important to keep in mind the maximum sentence that applied. For example, in AP, which involved very serious historical sexual abuse, the maximum sentence was 10 years, thus the nine years imposed was just shy of the maximum available sentence. In this case, the maximum available sentence is 14 years.
78What makes this case even more serious than any of the cases where lengthy sentences were imposed is the fact that R.S. had a criminal record for exactly the same kind of sexual abuse that he perpetrated on his daughter. In 1996 he was found guilty of putting his penis into the vagina of a five year old neighbour throughout the summer of 1993. This little girl was about the same age as A. was at the time. She did not speak any English. R.S. was still subject to conditions in relation to the conviction for sexual assault, including a s.161 order, at the time he began to sexually abuse A. around the fall of 1998.
79Taking into account the very serious nature of the sexual abuse in this case, and the extremely aggravating circumstances in which it was committed, including the proximate criminal record for very similar contact, and the profound breach of trust, and the fact that there is very little in the way of mitigation, I believe that the twelve year sentence urged by the Crown is fit and appropriate. Nonetheless I am mindful of the principle of restraint, and the need to keep custody to the minimum of what is required in the circumstances. As a result, I impose a total sentence of eleven years in this case. I would break this sentence down as follows:
Incest - 11 years
Sexual assault - 8 years, concurrent;
Invitation to sexual touching - 6 years, concurrent;
80I must deduct the time R.S. has spent in custody pending sentence, at the "Summers" ratio of 1.5 to 1. This time is as follows:
Pre-trial custody in Jamaica awaiting extradition - June 12 to August 17, 2018 (2 months and 5 days) (the Crown agrees this can be treated in the same way as if it were served in Canada);
Pre-trial custody in Canada prior to getting bail - August 17 to 31, 2018 (15 days)
Pre-sentence custody following the jury verdict - April 5 to August 9, 2022 (4 months and 4 days)
81I total this pre-sentence custody at approximately 7 months, for which R.S. is entitled to 11 months credit, reducing his effective sentence to 10 years plus one month. All of the pre-sentence custody will be apportioned to the incest count.
82I also impose the following ancillary orders:
The taking of bodily substances for purpose of DNA analysis (this is mandatory given the offences).
A SOIRA order for life (this is mandatory as there are multiple findings of guilt in relation to designated offences).
A s.109 order for life in respect of any prohibited weapon, and for 10 years in relation to any restricted weapon.
A s.161 order for 10 years prohibiting R.S. from:
o attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;
o 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;
o having any contact - including communicating by any means - with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate.
83Pursuant to s.743.21 of the Criminal Code, R.S. is prohibited from communicating, directly or indirectly with A. during the custodial period of the sentence.
GILLIAN ROBERTS J.
RELEASED: August 9, 2022
COURT FILE NO.: CR-22-50000180
DATE: 20220809
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
R.S.
REASONS FOR SENTENCE
GILLIAN ROBERTS J.
RELEASED: August 9, 2022