COURT FILE NO.: CR-22-000028-00
DATE: 2024/03/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
T.A.A.
Accused
Kim Beauchamp, for the Crown
Ruth Roberts, for the Accused
HEARD: February 16, 2024
REASONS FOR JUDGMENT
MUSZYNSKI J.
REASONS FOR SENTENCE
MUSZYNSKI J.
OVERVIEW
[1] On September 13, 2023, I found T.A.A. guilty on all eight counts on the indictment related to the sexual abuse of his biological daughter, T.A., when she was between the ages of 6 and 12 years old.
[2] The Crown takes the position that an appropriate global range of sentence is 12 to 14 years in custody. The defence submits that an 8-year custodial sentence is more appropriate in the circumstances of this case. For the most part there is consensus on the ancillary orders sought.
CIRCUMSTANCES OF THE OFFENCES
[3] When T.A. was 12 years old, she reported to her mother, and then police, that she was being sexually abused by her father in their family home. The trial took place several years later, when T.A. was 15 years old. During T.A.’s testimony, she described four separate incidents when she was sexually assaulted by her father – three of which involved intercourse. In my written reasons for judgment, I have set out the evidence in detail which I will not repeat here: see R. v. T.A.A., 2023 ONSC 5150.
[4] Following trial, I found as a fact that Mr. A: had sexual intercourse with T.A. twice in the basement bathroom of their family home (Counts 1, 2, 5, and 6); had sexual intercourse with T.A. in the upstairs bathroom of their family home (Counts 3 and 4); and touched T.A.’s vagina over her clothing in a bedroom in their family home (Counts 7 and 8).
[5] T.A. was approximately between the ages of 6 and 12 years old when the abuse occurred, usually behind a locked door in the bathroom. On some occasions, Mr. A. used a condom. On at least one occasion, he did not. Mr. A. gave T.A. money and told her it was alright to keep secrets.
CIRCUMSTANCES OF THE OFFENDER
[6] The circumstances of Mr. A. are gleaned from the pre-sentence report (“PSR”) that was entered as an exhibit on the sentencing hearing. Mr. A. is now 37 years old. He had a challenging upbringing. His parents separated when he was quite young. He exhibited extreme anger, particularly towards his mother. He lived in a group home between the ages of 11 and 16 and got into trouble with the law throughout his youth and young adulthood. Between the ages of 10 and 35, Mr. A. reported suffering from symptoms of depression and anxiety, including a history of suicidal thoughts and attempts. In 2013, Mr. A. was diagnosed with depression and adult Attention Deficit Hyperactivity Disorder (“ADHD”) and was prescribed medication.
[7] With respect to education and employment, Mr. A. struggled in school, completing only grade ten. He worked sporadically and began receiving a disability pension in 2013. Mr. A. reported having worked as a laborer for a concrete company that required him to travel out of town during the week from 2015 to 2018 and later that he worked as a heavy equipment operator until his most recent arrest in relation to the subject charges. A former employer of Mr. A. was interviewed by the author of the PSR and reported that Mr. A. was a good employee who got along well with his co-workers and did not cause problems. Mr. A. recently started working for a plastics manufacturer.
[8] Mr. A. and C.W., T.A.’s mother, were involved in a relationship for approximately 15 years, starting when Mr. A. was 21 years old. They had three children of their relationship. The relationship was marred by periods of separation. C.W. was interviewed by the author of the PSR, she reported that Mr. A. was not an involved parent when he was living with the family and that she does not want anything to do with him post-conviction. C.W.’s evidence at trial was that Mr. A. worked infrequently during their relationship and contributed little financially to the household.
[9] Mr. A. has a criminal record that is comprised of various, unrelated, dated offences and one notable conviction in 2013 of sexual interference. The 2013 conviction relates to Mr. A.’s touching of his stepdaughter in the bathtub. Mr. A. pleaded guilty to the offence, although he reports to the author of the PSR that the incident was not sexually motivated. A forensic assessment was completed following the conviction and sex offender treatment was not recommended at that time.
[10] Mr. A. was sentenced to two years probation following his 2013 guilty plea and 14 days time served for pre-sentence custody. During this time, he was separated from C.W. and did not live in the family home. Mr. A. completed parenting programing as recommended by the Children’s Aid Society during this period of probation. The author of the PSR noted that Mr. A. followed the advice of his family physician in relation to his diagnosis of depression, anxiety and adult ADHD and began medication. Mr. A. reported stopping the medication in 2017 when he could no longer tolerate the side effects. Following the period of probation, Mr. A. reunited with C.W. and returned to the family home. This is when he started sexually abusing T.A.
[11] With respect to substance abuse, Mr. A. reported that he consumes alcohol approximately once a week socially. He reported that he started to use marijuana at the age of 22 and, by 2020, was using between 7 to 14 grams a day, acknowledging that this level of consumption impacted his family relationship, employment, and emotional health.
[12] According to the PSR, Mr. A. has the support of his mother and brother – neither of whom accept that Mr. A. committed the offences. Mr. A. lives with his mother who has reported that her son has made positive lifestyle changes including reduced drug use and attendance in counselling. He is largely estranged from his biological father.
[13] Mr. A. continues to deny his abuse of T.A. and has reported that he is appealing the conviction.
PRINCIPLES OF SENTENCING
[14] Section 718 of the Criminal Code, R.S.C. 1985, c. C-46, sets out the fundamental purpose of sentencing which 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 sentences that have one or more of the following objectives:
Denouncing unlawful conduct;
Deterring the offender and others from committing crimes;
Separating offenders from society where necessary;
Assisting in the rehabilitation of the offender;
Providing reparations for harm done to the victim or to the community;
Promoting a sense of responsibility in the offender; and
Acknowledging the harm done to victims and the community.
[15] The principle of proportionality is set out in s. 718.1. This is a foundational principle of sentencing. Any sentence I impose must reflect the gravity of the offence and the responsibility of the offender.
[16] Section 718.01 directs that a court imposing a sentence for an offence that involved the abuse of a person under 18 must give “primary consideration to the objectives of denunciation and deterrence”.
[17] In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court of Canada noted that this direction reflects Parliament’s intention to re-set the approach to offences against children to better reflect their seriousness: at para. 102.
[18] There is no question that Friesen has changed the landscape with respect to sentences involving sexual offences against children. Most notably, at para. 5, the court writes as follows:
[S]exual 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 deepened 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.
[19] I am also required by s. 718.2 of the Criminal Code to take the following matters into consideration when imposing a sentence:
• The sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Offenders should not be deprived of liberty if less restrictive sanctions may be appropriate; and
• All available sanctions other than imprisonment that are reasonable in the circumstances and consistent with the harm done to the victim or the community should be considered for all offenders.
Aggravating circumstances
[20] Section 718.2 expressly lists a number of aggravating circumstances relevant to this case, including:
(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 18 years;
(iii) Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim; and
(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.
[21] T.A. was between the ages of 6 and 12 when her biological father abused her sexually, in their home – a place where T.A. was entitled to feel safe and secure and where she was most vulnerable. These are aggravating factors that I take into account in coming to a fit and just sentence.
[22] While initially, T.A. did not want to make a victim impact statement, she ultimately decided to do so, as did C.W. The victim impact statements only became available on the date I was to give my reasons for sentence. On consent of Mr. A., after having an opportunity to review the statements, there was an agreement with the Crown to file the victim impact statements as exhibits on sentencing. There were portions of both statements that were identified by counsel for Mr. A. as being perhaps inappropriate. The Crown took the position that it was for the sentencing judge to vet the victim impact statements. While I have allowed the victim impact statements to be filed in their entirety, I made it clear to counsel on the record which portions of the statements I would be taking into consideration in coming to a fit and just sentence and those portions I would not.
[23] In T.A.’s statement she explains that she was scared to walk around her own home and scared that if she did not come forward about the abuse, her father would try and go for her younger sister next. T.A.’s childhood was tainted with fear. She continues to wonder why her father would do this to her. The profound impact on T.A.’s life is an aggravating factor that I take into account in coming to a fit and just sentence although, I truly hope that T.A. knows that she should not let this violation define or consume her life. She had the strength to come forward to disclose the abuse and she has the strength to persevere.
[24] In C.W.’s victim impact statement, she explains that she has not been able to focus on anything else for the past five years and that she now has a hard time allowing her children to be out of her sight. The financial impact of Mr. A.’s abuse of T.A. has been significant as C.W. has had to pay for counselling for herself and the children. C.W. explains that she has been left with Post-Traumatic Stress Disorder due to these events.
[25] There is no question that the impact of Mr. A.’s abuse goes beyond the physical and emotional effects on T.A. Mr. A.’s actions have impacted the entire family. This is an aggravating factor that I take into account in determining a fit and just sentence.
[26] Mr. A.’s prior conviction of sexual interference in relation to his stepdaughter, is another factor that I consider to be aggravating in this case. The allegations in relation to the 2013 incident are nowhere near as serious as those before the court in this case and involve a stepdaughter as opposed to his biological daughter. Despite his position that the prior incident was not sexually motivated, there is a conviction registered against him for sexual interference against a young person that was in his care. I take this into account in coming to a fit and just sentence.
Mitigating factors
[27] Of course, in coming to a fit and just sentence, I must also consider any mitigating factors that might reduce the severity of the sentence imposed.
[28] The Crown takes the position that there are no mitigating circumstances that should impact my decision on an appropriate sentence in this case.
[29] Mr. A. submits that the remorse that he showed in pleading guilty for his prior conviction of sexual interference demonstrates his acceptance of responsibility with respect to these charges. I do not understand that reasoning. With respect to the subject charges, Mr. A. exercised his right to proceed to trial. This is not an aggravating factor, but he is not entitled to the benefit of the mitigating effects of a guilty plea. The fact that he pleaded guilty to a previous sexual offence against his stepdaughter does not have a mitigating effect on the sentence for the charges related to T.A.
[30] Again, Mr. A. suggests that his willingness to attend counselling and programming following his prior conviction should be considered when determining his sentence related to the current offences. I do not agree. In fact, it was after his participation in such programming that he committed the subject offences against T.A. Mr. A. has indicated that he will participate in further counselling as recommended.
[31] According to Mr. A., additional mitigating factors include the troubled childhood he had to overcome and his good behaviour since his most recent release insofar as there have been no breaches.
[32] Mr. A. had a challenging childhood. At one time he alleged to have been physically assaulted by a family member as a youth. He was in the child welfare system for a time. He now appears to have family support through his mother and brother. Although he has had a spotty work history, he appears to have maintained more regular employment since his most recent arrest. According to Mr. A., he has made positive lifestyle choices since his arrest in reducing his drug use. While these are not mitigating factors per se, I do take Mr. A.’s personal circumstances into account in determining a fit and just sentence.
ANALYSIS
[33] The counts on the indictment pertain to four discrete events that I have found as a fact took place. There are two counts per event. For each incident of sexual intercourse, there is a sexual assault and incest count. For the one incident of sexual touching, there is a count of sexual assault and sexual interference. The Crown’s position is that the sexual assault count in relation to the incident of the touching should be stayed and Mr. A. be sentenced on the sexual interference count due to the principle in Kienapple v. The Queen (1974), 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
[34] With respect to the remaining counts, the Crown takes the position that the incest counts (Counts 2, 3, and 6) should attract a custodial sentence of 12 to 14 years concurrent to one another, that the sexual assault counts (Counts 1, 4, and 5) should attract a custodial sentence of 10 years, concurrent, and that the sexual interference count (Count 8) should result in an 8-year custodial sentence, to run concurrently. This range of sentence, the Crown submits, appropriately considers the seriousness of the offences, the message from the Supreme Court of Canada in Friesen that sentences involving sexual offences against children need to increase, and the aggravating factors in this case – notably, the impact on T.A.
[35] Mr. A. takes the position that the incest counts should result in an 8-year custodial sentence, with the remaining counts resulting in a 6-year sentence, all to run concurrently. In support of his position, Mr. A. submits that an 8-year global custodial sentence is life changing and appropriately accounts for the seriousness of the offences but also addresses the principle of restraint and the opportunity Mr. A. will have at the end of his sentence to return to being a pro-social member of society.
[36] The Crown’s case was premised on four discrete events of sexual abuse. Sexual assault and incest engage the principle in Kienapple against multiple convictions for the same event, as do sexual assault and sexual interference when they relate to the same event: see R. v. Provo, 1989 CanLII 71 (SCC), [1989] 2 S.C.R. 3; R. v. R.S., 2022 ONSC 4604, at para. 20. I therefore find it appropriate to stay the sexual assault counts (Counts 1, 4, 5 and 7) and sentence Mr. A. on the incest counts (Counts 2, 3, and 6) and the sexual interference count (Count 8).
[37] The maximum custodial sentence for incest and sexual interference in this case is 14 years.
[38] I have considered the caselaw put forward by the Crown to support the submission that a 12 to 14-year custodial sentence is warranted. Mr. A. did not submit caselaw but takes the position that the cases relied on by the Crown can be distinguished from this one.
[39] Firstly, I note that none of the cases relied on by the Crown involve a 14-year custodial sentence. Further, there are distinguishing factors between this case and the law put forward by the Crown. For example, pregnancy of the complainant because of the incest was considered an aggravating factor in several of the cases before the court: R. v. C.G., 2015 ONSC 5068; R. v. C.M., 2008 ONCA 430, 239 O.A.C. 24, leave to appeal refused, [2009] S.C.C.A. No. 32855; R. v. G.C., 2020 ONSC 7381; R. v. BCM, 2022 ONSC 3511, aff’d 2024 ONCA 12.
[40] In Friesen, the court confirmed that lengthy custodial sentences were appropriate for sexual offences involving children: “[M]id-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”: at para. 114. The court went onto write that “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”: at para. 114 (citations omitted).
[41] In this case, I reach my conclusion on a fit and just sentence after considering the following factors: the personal circumstances of Mr. A.; Mr. A.’s criminal record; the nature of the offences; the devastating impact of the offences on T.A. and her family; and the principles of sentencing, first and foremost – denunciation and deterrence, but also restraint, proportionality, and totality. Having regard to all these factors, I find that a fit and just global sentence is 10 years in custody. I would break the sentence down as follows:
a. Count 2, incest – 10 years;
b. Count 3, incest – 10 years concurrent;
c. Count 6, incest – 10 years concurrent; and
d. Count 8, sexual interference – 5 years concurrent.
PRE-SENTENCE CUSTODY
[42] There were five real days of pre-sentence custody. Mr. A. submits that his sentence should be reduced by ten days, on a 2:1 basis, because he was subject to stringent release conditions. The Crown takes the position that Mr. A. should get credit for eight days of pre-sentence custody using the usual 1.5:1 ratio.
[43] Mr. A. ultimately conceded that his release conditions were not overly onerous. There is no reason to depart from the usual 1.5:1 credit for presentence custody. I agree with the Crown that Mr. A.’s total sentence should therefore be reduced by eight days on account of his pre-sentence custody. His sentence going forward is therefore 9 years and 357 days.
ANCILLARY ORDERS
[44] The parties consent to the following ancillary orders sought by the Crown:
a. DNA primary;
b. SOIRA for life;
c. Section 109 weapons prohibition for life;
d. Section 161(1)(a.1) preventing Mr. A. from being within two kilometres of any dwelling-house where T.A. ordinarily resides or attends school or work – which shall be for life;
e. Section 161(1)(b) preventing Mr. A. from seeking or obtaining any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years – which shall be for life; and
f. Section 743.21 non-communication order with respect to T.A. while in custody.
[45] There is no agreement with respect to the following s. 161 orders the Crown seeks:
a. Section 161(1)(a) that would prevent Mr. A. from attending at 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.
b. Section 161(1)(c) preventing Mr. A. from 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.
[46] In both cases, Mr. A. submits that the orders sought are disproportionate and insufficiently connected to the offences with which he has been convicted. With respect to s. 161(1)(a), I agree. The order under s. 161(1)(a) will be limited to a degree to prevent Mr. A. from being present at a daycare centre, schoolground – during school hours, or playground. This order shall be for ten years.
[47] Given the gravity of the offences, and the fact that this is the second young person to have been victimized by Mr. A., I do find it appropriate to make an order under s. 161(1)(c) preventing Mr. A. from 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. Again, this will be for ten years.
Muszynski J.
Released: March 5, 2024
COURT FILE NO.: CR-22-000028-00
DATE: 2024/03/05
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
T.A.A.
Accused
REASONS FOR sentence
Muszynski J.
Released: March 5, 2024