Superior Court of Justice

HIS MAJESTY THE KING

v.

R.H.

Proceedings (Reasons for Judgment)

BEFORE THE HONOURABLE JUSTICE C. J. CONLAN, on MARCH 18, 2024, at OWEN SOUND, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE OF THE PEACE K. L. JOHNSON, ONTARIO COURT OF JUSTICE, DATED OCTOBER 7, 2021

Appearances

J. Rice Counsel for the Crown R. Shankar Counsel for R.H.

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE OF THE PEACE K. L. JOHNSON, ONTARIO COURT OF JUSTICE, DATED OCTOBER 7, 2021

Transcript Details

Start at Page Reasons for Sentence Page 1 Sentence Page 17 Certification Page 21

L E G E N D

[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) – Indicates preceding word has been spelled phonetically.

Date Transcript Ordered: March 18, 2024 Date Transcript Completed: March 31, 2024 Date Ordering Parties Notified: May 26, 2024

MONDAY, MARCH 18, 2024

R E A S O N S F O R S E N T E N C E

CONLAN, J. (Orally):

These are my oral reasons for sentence in the matter of Mr. R.H.

Part I – The Facts

On December 14, 2023, Mr. H. entered a guilty plea to and was found guilty of the offence described at count one of the indictment, namely sexual interference, contrary to section 151 of the Criminal Code.

The guilty plea was premised on an agreed statement of facts that was filed with the court. In short, Mr. H. is the biological father of the victim. The offender, Mr. H., and the victim, and the victim’s brother, and the victim’s mother all resided together at the family house located in a small village. During the timeframe of the incidents that give rise to the offence, the victim was between 7 and 11 years old.

Between approximately October, 2017, and May, 2021, while Mr. H. was alone with his children and Mr. H.’s spouse was away at work in the evenings, Mr. H. would wait until his son was in his bedroom. During that time, Mr. H. would lay with the victim, his biological daughter, on their couch in the living room. Mr. H. would then rub the victim on top of her clothing over her vaginal area and then put his hand under her clothing and insert one of his fingers into the victim’s vagina.

When the victim would tell Mr. H. “no” or to stop, Mr. H. would ask the victim to please let him do what he was doing. When the victim tried to get away, Mr. H. would hold her down with his other arm to prevent her from getting away. Mr. H. would then profusely apologize to the victim for doing what he did and would tightly wrap his arm around the victim’s stomach.

This same kind of incident happened in the shared bed of Mr. H. and his spouse, on occasion. During one of the incidents, Mr. H. touched the victim’s breasts. Mr. H. believes that the touching of the victim’s breasts was an accident and unintentional. Mr. H. believes that he could have done that while he was sleeping.

The incidents of sexual abuse happened more than once during the timeframe between October, 2017, and May, 2021, though it is not certain exactly how many times it occurred.

During the same timeframe within the family residence, Mr. H. would display anger towards the children. He would swear at the two children. He would then cuff them on the head, meaning a slap, and tell them to “smarten up”. That took place on more than one occasion, though it is not certain how many times it occurred.

The victim reported the sexual abuse to her counsellor on August 12, 2021. The victim then informed her mother of the incidents shortly thereafter. Mr. H.’s spouse approached the offender about the incidents. Mr. H. admitted to his spouse that they had occurred.

On August 13, 2021, subsequent to Mr. H. being made aware that police had been contacted, Mr. H. threatened to commit suicide. Mr. H. was brought to the hospital where he was admitted.

Part II – The Circumstances of the Offender

This court has the benefit of a thorough pre-sentence report. Mr. H. is currently almost 40 years of age. Mr. H.’s father, now deceased, was an alcoholic and was abusive to Mr. H. and to others. Mr. H.’s mother has a history of depression. The local child welfare agency was involved with the family when Mr. H. was a young boy. Tragically, Mr. H., himself, was the victim of sexual abuse by an older boy when Mr. H. was in grade seven.

Although no criminal record for Mr. H. has been filed, or is being relied upon by the Crown, it should be noted that the pre-sentence report indicates that Mr. H. admitted to the author of the report that he was previously convicted of a sexual offence that he committed when he was 15-years-old and when the victim was seven years of age.

Mr. H. is married and has two children, a son who is currently 11 years old and a 14-year-old daughter, who is the victim of this offence. The pre-sentence report indicates that Mr. H. works for a furniture store. He completed his high school education and he completed, further, a college program in computers. The pre-sentence report indicates that Mr. H. has no history of substance abuse but does have a history of being a sex addict, a history of being suicidal, and a history of being attracted to minor children.

The pre-sentence report outlines that Mr. H. has been involved with counselling and/or therapy with numerous professionals, including the Canadian Mental Health Association, an agency called Morneau, M-O-R-N-E-A-U, Shepell, S-H-E-P-E-L-L, and others. Like his mother, Mr. H. has a lengthy history of depression.

The author of the pre-sentence report expresses, more than once, a concern about the family’s plan for Mr. H. to move back home with his family members, including the victim.

Part III – The Purpose and Principles of Sentencing

Sentencing is a highly-individualized process. It is not a cookie-cutter industry. As per section 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives: a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; b) to deter the offender and other persons from committing offences; c) to separate offenders from society, where necessary; d) to assist in rehabilitating offenders; e) to provide reparations for harm done to victims or to the community; and f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims or to the community.

Section 718.01 of the Criminal Code provides that when a court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. In my view, in this case involving Mr. H., the three most important sentencing objectives are denunciation, deterrence, both general and specific, and rehabilitation.

Denunciation and deterrence are paramount objectives, given the clear mandatory wording of section 718.01 of the Criminal Code. Rehabilitation remains an important objective in this case, given the lack of any proven criminal record for Mr. H. and given his rehabilitative efforts post-offence.

Part IV – The Positions of the Crown and the Defence

The Crown’s position on sentence for Mr. H. is as follows:

The Crown suggests that Mr. H. be imprisoned in a penitentiary for three years. In terms of ancillary orders, the Crown requests a primary DNA order, a section 743.21 non-communication order while in custody with regard to the victim, a sex offender registry order for a duration of 20 years, and an order under section 161(1)(a), (a.1), (b), and (c) for a duration of 10 years.

The Crown argues, for various reasons, that neither a conditional sentence order nor an intermittent jail sentence in the range of 90 days in length would be appropriate in this case.

The position of the defence on sentence is as follows:

The defence takes no issue with any of the ancillary orders sought by the Crown except that the defence submits that Mr. H. ought to be able to have contact and communication with his children, including the victim, with appropriate safeguards being put in place, such as under the direct supervision of Mr. H.’s spouse.

The defence argues that the Crown’s suggested term of imprisonment for Mr. H. of three years in the penitentiary is excessive. The primary position of the defence is for this court to consider a conditional sentence order of the maximum permissible length, two years less one day, to be followed by probation. In the alternative, the defence submits that the court ought to consider a jail sentence in the range of 90 days in length that Mr. H. can serve intermittently on weekends. Again, to be followed by probation.

Part V – The Aggravating and Mitigating Factors

In my view, there are four main aggravating factors present in this case. First, aggravating, is the very young age of the victim at the time of the offence. Mr. H.’s sexual abuse of his daughter began in October of 2017, when the girl was only seven years of age.

Second, seriously aggravating, is the egregious breach of trust committed by Mr. H. This is a very sad case where a father betrayed the trust of his child, and more than once sexually abused his own daughter.

The third aggravating feature of this case is the repeated nature of the offending. This is not a case where there was one isolated incident of inappropriate behaviour by a father against his daughter. This sexual abuse by Mr. H. of his daughter occurred more than once.

The fourth aggravating feature of this case is the significant deleterious impact that Mr. H.’s criminal behaviour has had on his daughter, the victim. Although this court has no victim impact statement, the consequences of Mr. H.’s criminal behaviour against his daughter are outlined, in part, in the pre-sentence report. At page five of the pre-sentence report, it is revealed that the victim experienced feelings of guilt for disclosing the abuse, and that those feelings of guilt caused significant stress and confusion within the family. As well, the victim went through a period when she was uncomfortable with males.

Mr. H.’s criminal conduct against his daughter has only worsened the victim’s prior difficulties with suicidal tendencies, social anxiety, and social challenges with friends and others.

Despite the fact that according to Mr. H.’s spouse the victim wants Mr. H. to move back home, it would not be an overstatement to say that the victim’s life has likely forever changed as a result of the serious breach of trust committed by her father.

There are several mitigating factors present in this case, and they include the following:

First, Mr. H.’s guilty plea to the offence. That guilty plea, aside from being an expression of remorse and an acceptance of responsibility by Mr. H., saved the victim from having to testify at court at a trial and saved considerable time to the administration of justice.

Second, apart from the guilty plea, there is Mr. H.’s genuine remorse and unqualified acceptance of responsibility for his criminal conduct. Mr. H.’s remorse and his acceptance of responsibility has been evident throughout the proceeding, and was exemplified again today when Mr. H. made his remarks to the court.

Third, it is mitigating that this case presents a lack of any proven criminal record on the part of Mr. H. This court, despite the reference in the pre-sentence report to a prior sexual offence having been committed by Mr. H., is treating the offender as a first offender.

Fourth, it is mitigating that Mr. H. has shown good conduct post-offence and that he has been compliant with his release terms.

Fifth, it is mitigating that Mr. H. has an unfortunate personal history pre-offence that is not limited to but includes, in particular, depression and having been the victim, himself, of childhood sexual abuse at the hands of another.

Sixth, it is mitigating that Mr. H. has already suffered, and will continue to suffer, collateral consequences of his criminal behaviour. As he said to the court today in his remarks, he has, effectively, lost everything. In addition, his criminal conduct has placed his family at some risk financially and emotionally, and that risk will likely continue, to some degree, in the foreseeable future.

Seventh, and finally, Mr. H. has demonstrated concrete, genuine rehabilitative efforts post-offence. Some of those efforts I alluded to earlier when describing the circumstances of Mr. H., but something further about those rehabilitative efforts should be said now. Mr. H.’s work on himself post-offence is described, in part, in the letter authored by Mr. H.’s spouse, dated November 17, 2023. In that letter, Mr. H.’s spouse indicates that Mr. H. has been open and serious about obtaining professional help to work on depression and past trauma. And that, further, Mr. H. has improved his communication skills with other members of his family.

In addition, there is the letter from Ian Heft, H-E-F-T, registered psychotherapist, dated June 8, 2023, which speaks about therapy that Mr. Heft has conducted with Mr. H. Mr. Heft writes in the letter that Mr. H. demonstrated strong insight and reported a reduction in symptoms related to post traumatic stress and an improvement in his mood.

There is also the letter from Bruce Grey Child and Family Services, dated July 27, 2023, which confirms that all members of the family, including the offender, Mr. H., have been open with the child welfare agency in terms of discussing plans for the future, and an eventual reconciliation, if possible, between Mr. H. and his family, including the victim.

In addition, there is the very thorough report prepared by Dr. Liam Marshall of Rockwood Psychotherapy and Consulting, dated March 13, 2024. In that report, Dr. Marshall confirms that he has conducted 11 therapy sessions with Mr. H., starting in December, 2023, and that Dr. Marshall has performed actuarial risk assessment instrument testing of Mr. H., and has also conducted psychometric testing using a battery of self-report measures.

Dr. Marshall indicates in the report that Mr. H. has been a good participant in therapy sessions; that Mr. H. has been cooperative, polite, respectful, empathetic, and forthcoming with Dr. Marshall. Dr. Marshall indicates in the report that Mr. H.’s risk for re-offending sexually is, overall, low.

Dr. Marshall recommends that Mr. H. continue to participate in psychotherapy. Dr. Marshall indicates that there is no evidence to believe that Mr. H. is any risk to his male child and that, therefore, Mr. H. would seem to be an appropriate candidate for unsupervised access to his son, and Dr. Marshall indicates that Mr. H.’s risk can be effectively managed in a community setting with appropriate supports.

Part VI – The Jurisprudence Most Relevant to this Court’s Decision on Sentence

This court has the benefit of numerous authorities that were filed by both sides. I am grateful for that. I have reviewed all of the authorities. It is my view, however, that the two most important, most directly relevant decisions to this court’s determination today are the decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100, and the decision of the Court of Appeal for Ontario in R. v. C.B., 2024 ONCA 160.

The following important principles may be gleaned from the decision of the Supreme Court of Canada in Friesen:

It is crucial that a sentencing court recognize the profound wrongfulness and harmfulness of sexual offences committed against children. Sexual offences against children are violent crimes. They wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must generally be relatively harsh. Courts must impose sentences that are proportional to the gravity of sexual offences committed against children and the degree of responsibility of the offender.

It is not unusual for mid to upper single-digit penitentiary terms of imprisonment or even double-digit terms of imprisonment in the penitentiary to be imposed on offenders who commit sexual offences against children.

The case of C.B., the decision of the Court of Appeal for Ontario relied upon by the defence, is also an important decision and relevant to this case. In particular, starting at paragraph 30 of the decision of the court in C.B., the court reiterates that there is no question that denunciation and deterrence are the most important sentencing objectives in child sexual offence cases and must be given primary consideration.

Notwithstanding that, however, factors that might reduce an offender’s moral culpability continue to be relevant in child sexual offence cases. The proportionality principle requires that punishment be just and appropriate and nothing more. It must be remembered that an offender’s conduct will be less morally blameworthy in some cases than in others, and the personal circumstances of offenders can have a mitigating effect on what sentence is arrived at by the court. While deterrence and denunciation have priority, the sentencing judge retains discretion to accord significant weight to other factors, including rehabilitation, in exercising discretion in arriving at a fit sentence in accordance with the overall principle of proportionality.

It is my view that in light of Friesen, itself, and in light of the decision of the Court of Appeal for Ontario in C.B., a sentence that is significantly less than mid to single-digit imprisonment for Mr. H. would be reasonable. There are, in my view, some exceptional circumstances in this case, including several mitigating factors, that take this case some distance away from what might otherwise be the norm, as directed by the Supreme Court of Canada in Friesen.

The question is whether the departure from what might otherwise be the norm can reasonably be so significant in this case as to impose upon Mr. H. a conditional sentence of imprisonment or an intermittent jail sentence, as suggested by the defence. And that takes this court to part seven of these reasons, what is a fit sentence for Mr. H.?

Part VII – What is a Fit Sentence for Mr. H.

In my respectful view, despite the able submissions advanced by Mr. Shankar, a conditional sentence of imprisonment would not be a fit sentence for Mr. H.

Under section 742.1 of the Criminal Code, the first requirement for the imposition of a conditional sentence is that the court impose a sentence of imprisonment of less than two years. In my view, a penitentiary sentence is the only fit sentence for Mr. H. Anything less than two years in the penitentiary would be too lenient, given the facts of this case.

Despite the presence of numerous mitigating factors in this case, any sentence less than a penitentiary sentence for Mr. H. would not sufficiently give respect for the aggravating features of this case, and in my view, would be demonstrably unfit, given the direction from the Supreme Court of Canada in Friesen, and notwithstanding the comments of the Court of Appeal for Ontario in C.B.

In my view, to repeat, the first requirement for the imposition of a conditional sentence order has not been met in this case. The first requirement being that the judge must decide to impose a sentence of imprisonment of less than two years. This court will not be imposing upon Mr. H. a sentence of imprisonment of less than two years.

It is evident, therefore, that this court will also not be imposing the alternative sentence suggested by the defence, which is an intermittent jail sentence in the range of 90 days in length. That, too, in my respectful view, would be demonstrably unfit for a father who repeatedly sexually abuses his biological daughter.

I have considered, carefully, the position of the Crown. It is not an unreasonable one. I agree with Mr. Rice that some may view a sentence of three years in the penitentiary for Mr. H. to be at the lower end of the spectrum. But given the able submissions advanced by Mr. Shankar, and given the reminder from the Court of Appeal for Ontario in C.B. to adhere to the highly individualized aspect of sentencing, I am prepared to impose upon Mr. H. the shortest penitentiary sentence possible, and that is a sentence of two years in the penitentiary.

That is a significant departure from the leading jurisprudence, in particular, the decision of the Supreme Court of Canada in Friesen, but I think that a significant departure here is justified, given the numerous mitigating factors that the court outlined previously.

This is, in short, a case where Mr. H. committed a terrible criminal offence against his daughter, probably changing her life forever. It is also, however, a case where the offender is, himself, a victim, and where the offender presents a very difficult history pre-offence and a very positive record of rehabilitation post-offence. Those things, in their totality, have persuaded me to impose a sentence that is shorter than that suggested by the Crown, and which is much shorter than a mid to upper single-digit penitentiary term of imprisonment as discussed by the Supreme Court of Canada in Friesen.

S E N T E N C E

I started this section of these reasons with the question, what is a fit sentence for Mr. H.? I have determined that a fit sentence on these facts, for this offender, is two years imprisonment.

This court will now address the ancillary matters. This is, by no means, a wealthy family, and Mr. H.’s incarceration over the next while will prove to be very difficult for the family, thus the victim fine surcharge is waived.

The primary DNA order requested by the Crown is granted.

The sex offender registry order requested by the Crown is granted for a duration of 20 years.

The section 743.21 Criminal Code non-communication order with the victim while Mr. H. is serving his sentence of imprisonment is granted. The non-communication order will specify the name of the victim.

The section 161(1) order requested by the Crown is granted for a duration of 10 years. There are, however, some exceptions to the order. First of all, the order applies under the following clauses: section 161(1)(a), (a.1), (b), (c).

Under section 161(1)(a), Mr. H., for a period of 10 years, shall be prohibited from 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, school ground, playground, or community centre.

Under section 161(1)(a.1), Mr. H. shall be prohibited, for a period of 10 years, from attending at the dwelling house or any place where the victim is, except where Mr. H. is under the direct in-person and continuous supervision of his spouse.

Under clause 161(1)(b), Mr. H. shall be prohibited, for a period of 10 years, of seeking, obtaining, or continuing 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.

Under section 161(1)(c) of the Criminal Code, Mr. H. shall, for a period of 10 years, be prohibited 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, and that person here is Mr. H.’s spouse.

There is no order made under section 161(1) (d) of the Criminal Code.

So, as I indicated at the outset, there are a couple of exceptions to the 161(1) order.

That, I believe, deals with all of the ancillary orders that were sought by the Crown.

MR. RICE: It does, Your Honour.

THE COURT: Before I ask Mr. H. some questions about his understanding of the various orders that were made, which I’m statutorily obliged to do, are there any uncertainties on the part of counsel that you wish to bring to my attention?

MR. RICE: No, thank you.

MR. SHANKAR: Thank you. Just one point, alone, regarding the ancillary order, perhaps just an alternate to the spouse. Maybe perhaps Your Honour would consider putting “or a responsible adult”, in case the spouse is not available. For example, on the last one where it said cannot communicate with a person under 16 years unless supervised by somebody and this court recognizes the spouse or in the alternative by a responsible adult.

THE COURT: What is the position of the Crown?

MR. RICE: Pardon me. I’m not opposed to that in principle, Your Honour. The definition of a responsible adult may be somewhat subjective, so perhaps if the court worded it, an adult aware of the order, or something along those lines, so that it's sufficiently direct?

THE COURT: With regard to the order made under 161(1)(c), where it says “unless the offender does so under the supervision of a person whom the court considers appropriate”, that will indicate that such a person shall be the spouse or any other responsible adult person who is aware of the order made under section 161(1) of the Criminal Code. So, I will grant that request to further amend clause (c).

But in terms of clause (a.1), which is the restriction about going to any place where the victim is, I am not further amending that. The only exception is, as I indicated, under the direct in-person and continuous supervision of Mr. H.’s spouse.

Are there any other matters that counsel want to bring to my attention before I address Mr. H.?

MR. RICE: Not from the Crown.

…SENTENCING PROCEEDING CONTINUES

P R O C E E D I N G S C O N C L U D E D

FORM 3

Certificate of Transcript (Subsection 5(2)) Evidence Act

I, Susan Marriott, certify that this document is a true and accurate transcript of the recording of R. v. H. in the Superior Court of Justice held at 611 9 th Avenue East, Owen Sound, taken from Recording 1011-201-20240318-092713—10-CONLANC, which has been certified in Form 1.

___ May 26, 2024 Date Ontario, Canada

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.

This certification does not apply to the Reasons for Sentence, which were judicially edited.