ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 4-444-21
DATE: 20221014
B E T W E E N:
HIS MAJESTY THE KING
- and -
F.A.
Iain Sunderland,
for the Crown
Edmond Chan,
for the accused
HEARD: March 28-31, June 27, 2022
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Reasons for Sentence
A. Overview
[1] On April 27, 2022, the accused, F.A., was found guilty, following his trial, of three offences, namely: (1) knowingly uttering a threat to cause bodily harm to S.N.; (2) committing a sexual assault on S.N.; and (3) having sexual intercourse with S.N., knowing that she was his daughter by blood relationship – contrary to ss. 264.1(1)(a), 271 and 155(1) of the Criminal Code respectively. The three offences were all committed by the accused in Toronto on or about New Year’s Eve, December 31-January 1, as 2019 turned into 2020. The 28-year-old complainant is the biological daughter of the 62-year-old accused. See: R. v. F.A., 2022 ONSC 2487.
[2] The accused now appears for sentencing. The sentencing of the accused has been delayed until now, at the express request of the accused, to preserve (as much as possible) his early pension from his long-term employer.
[3] The Crown seeks the imposition of a global penitentiary term of five years imprisonment. Defence counsel suggests that a range of sentence between three years and five years imprisonment is appropriate, but he contends that a sentence toward the lower end of that range should be imposed upon the accused in all of the circumstances of this case.
B. The Facts of the Offences
[4] Sometime in mid-October of 2019, the complainant temporarily moved in with the accused. While they had not had a close relationship for a number of years, the complainant, a law school student at the time, had no place to live, and her father, allowed her to live with him, temporarily, in his small apartment. Ultimately, the complainant began sleeping on the pull-out couch in the living room, and her father began sleeping in the bedroom. The accused worked full-time, usually Monday to Friday, for Canada Post. The complainant was trying to find another place to live, but she had not been successful in this regard by the end of the year, despite the year-end “deadline” that had been set by the accused.
[5] Both the complainant and the accused had decided to stay in the apartment together on New Year’s Eve. The complainant started drinking on the evening of December 31, 2019, at about 5:00 or 6:00 p.m. Her father had started drinking somewhat earlier that afternoon. They spent the early part of the evening watching movies and music videos on the television, and just “hanging out” together and “socializing” in the living room area.
[6] The complainant explained that, at one point during the evening, she and her father had some kind of “confrontation.” She could not recall what started their argument, but she explained that the accused became “aggressive” and “very angry” and he started “yelling” and “screaming” at her. The complainant did not say anything back to the accused, but she became “very scared” and, in the result, placed a “911” call, saying that she “did not feel safe,” and asking generally for “help.” The only details of the argument that the complainant could recall was that the accused “screamed” at her, right “in [her] face” (but without any physical contact), that he was going to “break her arms off.” He said this to the complainant in a tone of voice that was “loud,” “aggressive,” “intimidating” and “incredibly angry.” The complainant explained that she thought she might have to leave the apartment, and she did not feel personally safe leaving. She thought that her father might “kick her out” of the apartment, and/or hurt her physically.
[7] While the complainant thought that she had placed this “911 call” very late in the evening, when it was already dark outside – perhaps as late as 11:00 p.m. on New Year’s Eve, in fact the 911 call by the complainant was placed at around 6:45 p.m. that night.
[8] Ultimately, the complainant got into the back of an ambulance (with her garbage bag of belongings), that had arrived outside the apartment building, and she was taken to the “emergency” department of the North York General Hospital. After waiting there for an hour or so, the complainant realized that it was unlikely that she would be seen by anyone, including any police officer or psychiatrist, that night, so she eventually took a taxi back to her father’s apartment building. Ultimately, her father let her back inside his apartment unit. He was “apologetic” to the complainant about their earlier argument and “scaring” her, and they just went back to what they had been doing before, namely, socializing and listening to music and watching the television.
[9] At one point, the complainant was sitting in the middle of the pull-out couch/bed, leaning up against the back of the couch, and the accused was, for the most part, sitting on the complainant’s “right-hand side,” near his cigarettes and ashtray (on the dining room table) and the balcony exit. The accused was seated on either the arm of the sofa, or on the bed itself. The accused was wearing a T-shirt and pyjama bottoms. The complainant explained that the accused was sitting beside her, but was somewhat “above her,” in that she was half-lying down on the bed, and the accused had his left arm behind her shoulders.
[10] At that point, approximately 30-60 minutes after she had returned to the apartment, and as they were watching the television together, the accused started to move his left hand and grope her left breast. This made her feel “uncomfortable,” and while she did not “scream no,” she tried to “push him away” and rolled to the left side of the bed. She did not want to cause another fight between them, but she wanted this to stop. She pushed his hand away from her and said “no” and “stop.” She also told the accused that he “should stop,” and “this isn’t good,” and “don’t do that,” and that this was “not okay.” While the complainant may not have been “very stern” in her tone of voice, she was having a “hard time” with the accused. The accused did not respond to these actions by the complainant, but rather continued to grope her breast with his left hand, while repeatedly telling her that she had “wanted” him to do this.
[11] The accused then pulled her shirt down, and “flipped” her bralette down, with both hands, and exposed her breasts. At that point, the complainant “stopped doing anything at all” and “froze.” She “shut down” and said nothing more thereafter. However, once she became silent, the accused told her repeatedly that he had known that, since she had moved in with him, the “whole time,” she had “wanted” him to do this, and that he had been “planning to do this since October.” That statement by the accused “stuck with” the complainant, as she had thought that they were building a stronger father/daughter relationship, while he had been “thinking about this the whole time she was there.”
[12] The complainant also testified that, at some point in time, during the sexual assault, after he started groping her, the accused told the complainant that she “looked like her Mom.” The complainant said nothing in response to this comment.
[13] The complainant had been wearing either leggings, or sweat pants/pyjamas (and underwear) on her bottom, and a tank top and “bralette” (i.e. a small bra that can be pulled on and off without a clip) on her top. These were the same clothes that she had been wearing earlier in the evening. The complainant noted that she had also worn a sweater and a jacket to the hospital earlier in the evening, but that she had removed those when she had come back to the apartment.
[14] The complainant testified that, within approximately one minute of pulling down her shirt and bralette, the accused pulled off her shirt and bralette, using both of his hands, over her head. There was a very brief moment of “struggle” as the complainant was not helping to “facilitate” this removal of her clothes. By this point in time, the complainant was almost completely laying down on the bed. The accused then continued to fondle her breast, while also using his mouth on her breast, as he lay across her body on the bed. The accused then removed her pants (and her underwear), so that she was completely naked. Again, there was a brief moment of “struggle” on the part of the complainant, and “fumbling” by the accused, who was trying to get his hand in her pants, but the accused was able to quickly remove the rest of her clothing, without ripping or tearing them, even though she was not facilitating his actions in this regard. At this point, the accused was still fully clothed. The complainant was simply “non-responsive” at this point.
[15] The accused then moved his hands down the complainant’s body so that he was touching her vagina – fondling her labia – with his right hand.
[16] The accused then moved his left hand back towards the back of her shoulders, and then, as he lay flat on the bed, he used it to push her head down toward his penis. The accused then used his other hand to force her down further, and to force her to perform “oral sex” on him, for about ten minutes. The accused had, prior to this, somehow pulled off his pyjama pants.
[17] When the accused let go of the complainant’s head, she “recoiled” backwards, away from him. The accused then “rolled over” onto her, as she was laying on the bed, and then he reached down with one of his hands and put his penis inside of her and had vaginal “intercourse” with her. She did not have a chance to get off the bed before the accused rolled on top of her.
[18] This sequence of events (i.e. fondling the complainant’s chest, oral sex, vaginal intercourse) happened “three times in succession” over the course of approximately 90 minutes to two hours. During these “cycles,” the complainant heard the accused repeating the same sentiment, that she wanted him to do this, and that she “liked it” when he did this to her. The complainant did not, however, do or say anything during this time period.
[19] The accused eventually stopped, and retired to the bedroom of the apartment to sleep in his bed, leaving the complainant in the living room on the pull-out couch. The complainant did not know if the accused ejaculated inside of her, but she thought that he did not wear a condom at any point as far as she was aware. However, before the accused went into his bedroom, he told the complainant that, the next day, he was going to be working at his desk in the bedroom, and he wanted her to come in and give him a “blow job” while he was working at his computer. The accused then went into his bedroom to go to sleep.
[20] The complainant did not consent to any of the sexual contact that night with the accused, and the accused never “passed out” when he was engaged in any of the sexual offences against her.
[21] The complainant did not see her father again for “several hours.” The accused went into his bedroom, while she stayed out in the living room on the pull-out couch. She “did not do anything.” She just laid on the couch/bed – she did not sleep. Nor did she check her vagina for ejaculate, although she did wipe herself with a towel (without later inspecting it) before she put her clothes back on. She may have just left the television set on. Eventually, the accused came back out of his bedroom and immediately went out onto the balcony to smoke a cigarette. The complainant was still awake. At first, the accused said nothing to her. However, when he came back into the apartment, the accused sat down on the pull-out couch/bed in the living room and told the complainant that he “wanted to talk about what happened.” The accused said that it was “not okay” and that he was “very sorry” that it happened, and that he “should not have done that.” The complainant said: “I do not want to talk about this – I don’t want you to talk to me about this ever again.” That ended their conversation about the events of the previous evening and that was the “last time they ever spoke of it.” The accused then went back into his bedroom.
[22] The complainant testified that she continued thereafter to live in the accused’s apartment. She had nowhere else to go. In January of 2020, the complainant continued looking for another place to live, but moving to another location was not something that she could easily accomplish. Ultimately, however, near the end of January of 2020, the complainant found a single women’s “shelter” bed and quickly moved to that location. In the meantime, however, during January, the complainant and the accused did “not socialize” together anymore, and their relationship was “cold,” like they were just “roommates” in the apartment. They talked only about “mundane” and routine matters that they had to discuss, or about the complainant moving out of the apartment. The accused “immediately stopped drinking” – and he “never drank again” while the complainant was in his apartment. Further, the complainant only went to sleep in the apartment when the accused was away from the apartment at work.
[23] The complainant finally went to the police about what had happened to her sometime during the first week of February of 2020. She did this just a “few days” after she had found a “shelter” bed and got herself settled there. The complainant did not want to go to the police about this while she was still living in the accused’s apartment.
C. The Victim Impact Statement
[24] Just before the sentencing hearing in this matter, the complainant provided a Victim Impact Statement, in which she outlined how these offences affected her.
[25] In this document, the complainant indicated that the offences still have a “huge” emotional impact on her life on a “day to day” basis, in that she revisits and thinks about the assault by her father – and this has impacted on her relationships with her siblings and her parents, and has “stunted” her ability to “form healthy new relationships.” The complainant noted that, since this happened, she has been “hypervigilant, anxious and exhausted” and rarely leaves her home, spending most of her time alone. She describes herself as “anxious and fearful” when she sees or has to interact with “men on the street,” and she disguises herself in baggy, men’s clothing so that she does not attract the attention of strangers. She has, nevertheless, been fearful of being by herself for the past two years.
[26] The complainant described the “trauma” she felt from these offences as “debilitating” and indicated that she feels “on edge almost all the time,” and “seemingly small things can trigger emotional episodes” in her. Further, she must make a “concerted effort” to enjoy things that used to “come easily” to her. The complainant indicated that she is putting herself through “mentally and emotionally exhausting trauma therapy” in order to get her “life back” and she is “relearning” things, yet she feels “cheated” having to engage in this process – learning to be herself again.
[27] The complainant indicated that she fears for her future, and she explained that these offences have negatively impacted her “whole family.” The complainant described how she and her siblings have had to “re-evaluate the meaning of fatherhood” in their lives and have had to “revisit” their personal relationships. While she thinks that they have come out of this process “stronger,” the “journey” has been “incredibly difficult.”
[28] The complainant explained that she has “turned inward” and has had to rely on her siblings for support, given that she is “unable to trust anyone else.” Her relationships with other friends have “almost entirely fallen away” and her ability to trust others has been “decimated,” as she is “incapable of believing” in “love and compassion” from others as she always looks for a “malicious ulterior motive.” She was “so easy to manipulate,” in that she thought that she and the accused were “developing a true loving father-daughter relationship” when, in fact, “something much more sinister was intended.” This has “terrified” her in any “new relationship” as she wonders if she will be made to “look that stupid again.” In the result, the complainant doubts whether she will ever be able to develop a “healthy romantic relationship” with someone, and she doubts that she will ever be able to have children “for fear that this will happen to them.”
[29] The complainant indicated that, every day, she has to “work to regain some semblance of the personality and life she used to have,” and that she engages in that “battle” knowing that there are some things that she will “never be able to do.”
D. The Personal Circumstances of the Offender
[30] The 62-year-old accused was born in Sri Lanka, the youngest of five children. He had a “positive childhood,” a “stable upbringing” and had good relationships with his parents growing up in Sri Lanka. He enjoyed cricket, rugby and swimming, but had limited friendships and “not much of a social life.” He was raised with “traditional family values.” He still has a close relationship with his older brother, Roshan.
[31] The accused successfully completed his elementary and secondary school education in Sri Lanka, but his grades were not good enough to permit him to “move to the next level.” He left school in 1975.
[32] The accused came to Canada, with his mother, in 1978, when he was just 19 years old. Initially, he lived in Montreal, Quebec for about three years. He then moved to Mississauga, Ontario.
[33] The accused met his former wife in Toronto, Ontario in 1985. After living together for a number of years, they got married in 1988. They were married for nine years and had three children together. The complainant was their youngest child. Their marriage ended when they separated in 1997. They were divorced in 2003. Apparently, alcohol played a significant role in the life of the accused, which caused a problem in his marriage, and he was occasionally “physically aggressive” with his wife, and “the police were called many times.”
[34] While he had other full-time work after coming to Canada, in 1992 the accused secured a job with Canada Post, where he has subsequently worked full-time, in a number of capacities, for some 30 years. In the fall of 2019, and around the time of the alleged offences, the accused typically worked the Monday to Friday full-time shift at the Canada Post location in Scarborough, Ontario, from 6:00 a.m. to 2:00 p.m. However, sometimes, during the “busy times,” he could work longer hours at Canada Post. According to some of his co-workers, the accused was “very committed to his work” and was “punctual, helpful and friendly” and enjoyed good relationships with these coworkers.
[35] The accused and his wife (the complainant’s biological mother) split up when his wife realized that she was a lesbian, and she subsequently began living with another woman – now her married life-partner. After their marriage break-up, the complainant (like her siblings) continued to live with her mother and her new partner. The complainant, like her two siblings, was effectively raised by her mother (and her partner).
[36] When he separated from his wife, the accused moved into a small apartment. His children visited him periodically in that location. While the accused made no official support payments, he would sometimes buy them things, such as clothing.
[37] When she was a young child, and up until her mid-teen years, the complainant had limited contact with her father. She saw him, together with her siblings, perhaps 10 to 15 times a year, when they would visit him for a few hours at a time on some weekends. On special occasions, the complainant would sometimes speak to her father for birthdays, Father’s Day and Christmas. The complainant continued living with her mother (and her partner) until she was approximately 15 years old. The accused agreed that the complainant and her older brother “drifted away” from the accused in their teen years. The accused maintained the closest relationship with the complainant’s older sister.
[38] When the complainant was between approximately 15 and 20 years of age, the complainant saw the accused somewhat less frequently, perhaps only two or three times a year. However, her father bought her a mobile phone, and paid her monthly “phone bill” for most of this time.
[39] There was a period of time, when the complainant was approximately 20 to 24 years of age, when she had virtually no contact or communications with the accused. During this time period, the complainant was attending university and, for the most part, living with her mother (and her partner).
[40] All three of the accused’s adult children, have confirmed that they are no longer in contact with the accused, and live on their own. When they had a relationship, the accused was rather “distant” from them, and they did not have much “communication” between them. The accused has ceased to play any parental role in their lives.
[41] The accused had a relatively short criminal record. The Pre-Sentence Report noted that, on June 30, 1986, he was convicted of driving with “over 80” mgs. of alcohol in his blood, and he was fined $300; on January 20, 1992, the accused was convicted of “theft” under $1,000, and he was sentenced to a fine of $75; and on November 10, 1995, the accused was convicted of “assault” and sentenced to his 18 days of pre-sentence custody and a 12-month term of probation. I understand that, thereafter, sometime in 2015-2016, the accused received a “pardon” for all of these earlier offences. However, on August 31, 2021, the accused was convicted of “failing to comply” with a court order, and he was sentenced to a fine of $500.
[42] I note, in passing, that in 1995, the accused was given a conditional discharge and a 12-month period of probation, for assaulting his wife. All three of the accused’s children recalled that, in their childhood, the accused was involved in the criminal justice system in relation to “domestic violence issues against their mother.”
[43] Currently, the accused is not involved in any type of intimate, romantic relationship. However, he may be involved in some type of “long-distance relationship” with a woman from Australia, who he speaks to over the internet.
[44] The accused began to consume alcohol at the age of 16 years, and alcohol appears to have played a significant role in his life. He realizes that his drinking “led to his divorce” and to some “poor decision making” on his part. According to the accused, he now only consumes alcohol on the weekends, so that it permits him to recover and be able to attend work from Monday to Friday each week. His “weekly routine” includes the consumption of an entire bottle of alcohol on Friday nights. In the past, the accused has attended alcohol treatment programs, and “AA” meetings, but stopped attending them temporarily “due to Covid-19.” The accused believes that “he has his alcohol consumption under control” but he understands that he still may be able to “benefit from treatment.”
[45] According to the author of the Pre-Sentence Report, the accused indicated that “alcohol was a factor during the commission of the offences” in that he reported that he has “never experienced” “blacking out” and “not remembering what happened.” It seems that the accused indicated that this “all happened because of the alcohol, this is the extreme.” The accused indicated that, he consumed a “whole bottle of Tequila” and all that he recalls is “drinking and going straight to bed.” He stated that “he never experienced blackouts before” and that he is “shocked” that it has “happened now.” According to the accused, since the offences, he has “abstained from drinking alcohol for two and a half years.” Further, since “being sober,” he has been “making efforts to improve behaviours.”
[46] The author of the Pre-Sentence Report indicated that the accused appears to have “accepted responsibility for his actions” although he does “appear to minimize his behaviour at times and utilizes intoxication as a justification,” and it is “unclear” whether the accused “acknowledges the potentially severe and long-term consequences that his behaviour may have on the victim.”
[47] The accused advised the author of the Pre-Sentence Report that he has diabetes, cholesterol and high blood pressure – and that he is taking medications for all of these maladies. In 2020, the accused indicated that he was under the care of a psychotherapist for his “anger” issues. The accused noted no present mental health concerns or diagnosis.
[48] The Pre-Sentence Report that was prepared in this case erroneously indicated that the accused pled “guilty” to the alleged offences. In fact, the accused pled “not guilty” to all of the alleged offences, but he was found guilty of those offences at the conclusion of his trial. However, according to his comments at the end of the sentencing hearing, the accused now appears to accept responsibility for the commission of all of the alleged offences. I mention this only for the purposes of accuracy, and to indicate that the accused has now begun to express remorse for the commission of the offences. The fact that the accused pled “not guilty,” and that a trial was required in this matter is, of course, not any kind of aggravating factor to be taken into account in sentencing the accused. Rather, it is only the absence of a potential mitigating factor. See: R. v. Kozy (1990), 1990 2625 (ON CA), 74 O.R. (2d) 545, 58 C.C.C. (3d) 500 (C.A.), at pp. 505-506; R. v. Anderson (1992), 1992 6002 (BC CA), 16 B.C.A.C. 14, 74 C.C.C. (3d) 523 (B.C.C.A.), at pp. 535-536; R. v. Brown, [1993] O.J. No. 624 (Ont.C.A.); R. v. Valentini (1999), 1999 1885 (ON CA), 43 O.R. (3d) 178, 132 C.C.C. (3d) 262 (C.A.), at para. 80-85; R. v. L.(C.), 2013 ONSC 277, [2013] O.J. No. 114 (Ont.S.C.J.), at paras. 80-81. However, as I have indicated, the accused has now acknowledged his guilt for these offences and has expressed his remorse of their commission.
E. The General Sentencing Principles
[49] According to s. 718 of the Criminal Code, the “fundamental purpose” of sentencing is to contribute 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 others 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 the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[50] According to s. 718.1 of the Code, the “fundamental principle” of sentencing is that a sentence “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[51] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles, including the following:
• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• 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.
F. Analysis
[52] In the present case, the accused threatened to physically harm his daughter, and then later engaged in a variety of non-consensual sexual contact with her, and ultimately repeatedly raped her. As her biological father, and the person who supported her financially while she lived with him temporarily, the accused occupied an important position of trust and responsibility with respect to the vulnerable complainant. But, rather than try to fulfil those important obligations as her father, the accused threatened her with bodily harm, and then used force to sexually assault her and rape her repeatedly over a lengthy period of time one night. These sexual offences had a predictably profound impact upon the complainant, as she detailed in her victim impact statement. Needless to say, these were criminal offences of shocking gravity, and they call out for a proportionate penitentiary sentence – one stressing denunciation and deterrence. See, for example: R. v. B.J. (1990), 36 O.A.C. 307, at para. 5; R. v. D.M., 2012 ONCA 894, 295 C.C.C. (3d) 159, at paras. 1-3, 8-15, 62-74; R. v. P.F., 2019 ONCJ 38, [2019] O.J. No. 348, at paras. 2-6, 20-21, 29; R. v. J.C.J., 2017 ONSC 6704, [2017] O.J. No. 5764, at paras. 1-3, 8, 17, 36, 38-39, varied: 2020 ONCA 228, at paras. 6-12.
[53] I have no hesitation concluding that the Crown was fair and accurate in suggesting that the accused receive a global five-year term of imprisonment for these crimes. Such a sentence is no more than proportionate to the terrible crimes committed by the accused. Indeed, the sentence might well have been longer. Further, such a sentence properly denounces the crimes committed by the accused, and provides an effective measure of general and specific deterrence. At the same time, such a sentence allows for the rehabilitation of the accused, and is not so long as to interfere with his anticipated rehabilitation. The significantly shorter penitentiary term proposed by defence counsel, with respect, simply does not reflect the sheer gravity of the appalling crimes committed by the accused, and is disproportionately light in relation to the severity of the offences.
[54] The many serious aggravating circumstances of this case only confirm the need for at least a five-year penitentiary term of imprisonment in this case:
• The accused was over 60 years of age at the time he committed these offences – clearly old enough to know better than to sexually abuse his vulnerable adult daughter.
• The complainant was a particularly vulnerable victim. While she was approximately 26 years old at the time of the offences, when she came to live temporarily with the accused, the complainant was homeless, and had been “couch-surfing” at the residences of some of her friends, while she was attending law school. The accused knew full well her vulnerable circumstances.
• Earlier in the evening, before he began his sexual misconduct, the accused became “aggressive,” “intimidating” and “very angry” with the complainant and loudly threatened to “break her arms off.” This verbal threat understandably scared the complainant and caused her to feel unsafe in the apartment, and led to her calling the emergency “911” phone number, and going with the police to the hospital.
• Later in the evening, when the accused began to grope his daughter’s breast, the complainant tried to push him away, rolled away from him, and told him, in no uncertain terms, to “stop” what he was doing. The accused simply ignored her clear indications that she was not consenting to this sexual activity, and he told her repeatedly that she “wanted” him to do this.
• Despite her clear physical and verbal protestations, the accused pulled her shirt and bralette down, and exposed her breasts. While the complainant “froze” at that point, the accused continued to tell her that he knew, since she moved in with him, that she “wanted” him to do this, and that he had been “planning to do this since October.”
• The accused then got the complainant completely naked, by removing her pants and underwear. There were moments of “struggle” by the complainant, to the forcible removal of her clothes by her father, but the accused continued until she was naked.
• The accused then fondled her vaginal area – specifically her labia.
• After pulling off his own pants, the accused then forced his adult daughter to perform fellatio on him, by pushing her head down toward his penis. After about 10 minutes of oral sex, the accused let go of the complainant, rolled over on top of her, put his penis inside of her and had vaginal “intercourse” with her. This sequence of events (i.e. fondling the complainant’s chest, forced oral sex, non-consensual vaginal intercourse) happened “three times in succession” over the course of approximately the next 90 minutes to two hours. During these “cycles,” the accused kept telling the complainant that she wanted him to do this, and that she “liked it” when he did this to her.
• The complainant did not know if the accused ejaculated inside of her, but she did not think that he wore a condom. Accordingly, the complainant was exposed, by the accused, to contracting sexually transmitted diseases.
• When the accused had finished with this non-consensual sexual activity with his daughter, he told her that, the next day, he wanted her to come in and give him a “blow job” while he was working at his desk on the computer in his bedroom.
• While the accused suggested that this sexual activity with his daughter must have taken place after he had “passed out” from drunkenness, the complainant explained that the accused never “passed out” when he was engaged in any of the alleged sexual offences against her. I have accepted her evidence in this regard. However, the accused appears to have abstained from alcohol consumption for some 2½ years.
• These offences had a predictably profound impact on the complainant. Instead of acting as a responsible, caring father towards his vulnerable, adult daughter, the accused used her as his sexual “play-thing,” for his own sexual gratification, totally ignoring her protestations and his important parental obligations to her.
[55] The mitigating circumstances of this case do not support a more lenient sentencing alternative. The accused enjoyed an unexceptional upbringing as a child. He possesses a lengthy, stable and commendable work history. The accused has only a short and unrelated criminal record. The accused expressed some remorse to the complainant the day after his criminal offences, admitting that what he did to her was “not okay” and that he was “very sorry” that it happened, and that he “should not have done that.” However, the accused pled “not guilty” to the alleged offences, as was his right, and he only began to, again, express his remorse once he was convicted and faced sentencing in this matter. More particularly, in his brief comments at the very end of the sentencing hearing, the accused said that he was “truly sorry” for these crimes, admitted that he was “solely responsible” for their commission, and admitted that he tried to apologize to the complainant the morning after the offences, and tried to “take away her pain and her anguish.” The accused indicated that he knew that, when the complainant came to live with him in his apartment, she was “really scared” and yet, while he had an opportunity to “make her life easier” and “have a relationship with her,” he “blew it miserably.” The accused noted that he has lost his relationship with the complainant, and with his other two children, and he understood why as he had “totally failed as a dad.” However, none of these mitigating circumstances, individually or collectively, justify the imposition of a lesser term of imprisonment.
G. Ancillary Sentencing Orders
[56] There are, in my view, a number of ancillary sentencing orders that should also be made in this case. Defence counsel concedes that these orders are, essentially, “mandatory” in all of the circumstances of this case.
[57] First, pursuant to ss. 109(1)(a) and 109(2) of the Criminal Code, there shall be an order prohibiting the accused from the possession of any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of ten years after the accused is released from the period of imprisonment imposed today; and from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. While the offences committed by the accused clearly did not involve the use of any firearm or other weapon, the sexual offences committed against the complainant inherently involved a sufficient act of “violence” by the accused to trigger the obligation to impose this mandatory order. See: R. v. Savard (1979), 1979 2936 (QC CA), 55 C.C.C. (2d) 286, 11 C.R. (3d) 309 (Que.C.A.); R. v. Broome (1981), 1981 3135 (ON CA), 63 C.C.C. (2d) 426, 24 C.R. (3d) 254 (Ont.C.A.); R. v. Currie, 1997 347 (SCC), [1997] 2 S.C.R. 260, 115 C.C.C. (3d) 205, at paras. 22-23; R. v. Killam (1999), 1999 2489 (ON CA), 29 C.R. (5th) 147, [1999] O.J. No. 4289, at paras. 1, 17-18; R. v. Bossé, 2005 NBCA 72, 288 N.B.R. (2d) 82, at paras. 7-16; R. v Aguas, 2015 ONSC 5732, [2015] O.J. No. 4739, at para. 56.
[58] Second, pursuant to s. 487.051(1) of the Criminal Code, I also make an order requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The sexual offences committed by the accused, namely, incest and sexual assault, are both “primary designated offences” as defined in s. 487.04(a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.
[59] Third, as the accused has been convicted of two “designated offences,” namely incest and sexual assault, pursuant to the combination of ss. 490.012(1) and 490.013(2.1) of the Criminal Code I make an order requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life.
H. Conclusion
[60] In the result, the accused is sentenced to a five-year term of penitentiary imprisonment, concurrent, on the counts of the indictment charging him with the crimes of incest and sexual assault. With respect to the charge of threatening, the accused is sentenced to a six month, concurrent, term of imprisonment. The accused will also be subject to all three of the ancillary sentencing orders that I have made today as part of the sentencing process.
Kenneth L. Campbell J.
Released: October 14, 2022
COURT FILE NO.: CR 4-444-21
DATE: 20221014
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
- and -
F.A.
REASONS FOR SENTENCE
K.L. Campbell J.
Released: October 14, 2022