COURT FILE NO.: CR-22-32-0000 DATE: 2024-10-25

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Madeline Lisus for the Crown

- and -

D.S. Richard O’Brien for the Defendant

HEARD: September 19, 2024

THERE IS A PUBLICATION BAN ON ANY EVIDENCE THAT COULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS JUDGMENT COMPLIES WITH THIS BAN AND CAN BE PUBLISHED.

REASONS FOR SENTENCE

D.E HARRIS J.

INTRODUCTION

[1] These are sentencing reasons for D.S. who has been found guilty in a judge alone trial of sexual assault against his stepdaughter M.M. (“M”) in 2013 and the first six months of 2014: see the reasons for judgment at R v. D.S, 2024 ONSC 2487. She was 19 years of age at the beginning of this year and a half time frame of the offence. M. testified that there were regular acts of sexual intercourse without her consent.

[2] Ms. Lisus’ position is that D.S. (“S”) should be sentenced to the maximum for sexual assault, 10 years incarceration. Mr. O’Brien’s sentencing recommendation is five to seven years.

THE ALBERTA ALLEGATIONS

[3] As recounted in the reasons for judgment, Crown and defence agreed at the trial that evidence was admissible of S. allegedly sexually assaulting M. in Edmonton, Alberta between the ages of six and 12 years old and then again when she was between 14-15. I agreed with this position and, beyond admissibility, found in the reasons for judgment that these allegations were proven to be true on a balance of probabilities.

[4] The Crown now asks me to use these prior acts as an aggravating factor on this sentencing. I can only do so if I am convinced they are proved beyond a reasonable doubt: s. 724(3) (e) of the Criminal Code. Ms. Lisus made brief submissions on this issue; Mr. O’Brien did not make contrary submissions. After reviewing the evidence, I am convinced beyond a reasonable doubt that the Alberta allegations are true.

[5] The reasons for this conclusion are essentially identical to those with respect to the Ontario allegations addressed in the judgment. The corroborating evidence of S.M., who is M.’s mother and S.’s wife, is crucial. She testified that while the family was still in Alberta, S. confessed to her that he had been sexually abusing her daughter. The corroboration provided by S.M. is more direct with respect to the Alberta allegations than it was with respect to the Ontario allegations. It is unnecessary to use the evidentiary assist of similar fact evidence and propensity reasoning in respect of the Alberta allegations. The confession made by S. related directly to those earlier allegations in Alberta. I reject S.’s evidence on the issue of the Alberta allegations as previously stated in the reasons for judgment. As a result, I find the Alberta allegations proved beyond a reasonable doubt.

[6] In the circumstances, s. 725(1)(c) of the Code and the Supreme Court decision in R. c. Larche, 2006 SCC 56, [2006] 2 S.C.R. 762 applies. The Alberta offences are “facts forming part of the circumstances of the offence that could constitute the basis for a separate charge.”

[7] Having found that the previous Alberta allegations are proven and can be referenced on this sentencing, there must nonetheless be a measure of caution in relying upon them. Proof of the Alberta allegations demonstrates the lengthy pattern of horrendous sexual abuse against M. The full impact on her of the Ontario sexual assaults can only be fully appreciated in light of this history going back to age six. But it is unusual, although perhaps not unprecedented, that acts in aggravation are more serious than the offence for which the offender has been found guilty. In this case, that is true. The Alberta allegations are more serious than the Ontario allegations because of their much longer duration and because M. was much younger throughout the course of that abuse.

[8] To guard against the potential pitfalls, in light of the strong connection and unity between the two sets of crimes, it is important to recognize that this sentencing is only for the Ontario allegations, not the Alberta allegations. A careful and balanced approach is necessary in order to ensure that the Alberta aggravating acts do not overwhelm the Ontario sexual assaults.

THE OFFENDER

[9] A pre-sentence report was prepared for S. It is neither particularly positive nor negative. It summarizes his life. S. has no previous criminal record. He is now 62 years of age.

[10] S. grew up in Branford. His father worked for a tire company. His mother was a dishwasher and then a homemaker. S. said that he had a good relationship with his parents. He is the youngest of five siblings who are quite a bit older than he is. He said he was a difficult teenager. He grew up by himself. The siblings range from age 73 to 77. He has a good relationship with his elder sister and with his brother but no longer speaks to his younger sisters because of a dispute over their mother’s estate. The elder sister and his brother know about the court proceedings and are supportive.

[11] His relationship with S.M., M.’s mother, lasted from 1998 to 2013. We learned at the trial about the offspring of S.M. with other partners, including M., and heard from M.S. who is a biological son of S.M. and D.S. S. told the presentence report author that during the relationship with the victim's mother there was domestic violence committed by each that was not reported to the police. M.S. said that S. had “problems within the family” that S. contributed to. He also said that S. has “bad qualities as a result of generational trauma and the stress coming into a family with three kids and then adding another child and being the sole provider.”

[12] S. did not graduate high school. He obtained grade 11. He was diagnosed with dyslexia at a young age and struggled with school as a result. He has a diploma in working with explosives and carpentry. S. is currently unemployed. He was employed from 2012 to 2023 in various jobs including steam truck operation, carpentry and as a handyman. Neither alcohol nor drugs have been a problem for him.

[13] His brother Walter reported that S. has had a difficult life. He struggles financially. His son M.S. believes that S. has a negative outlook on life and takes things personally. He said that S. was brought up in a family that was confrontational and that S. had no power. He may have a need for control.

[14] S. indicated that he enjoys the outdoors, specifically fishing, photography and camping. He likes reading and watching television.

THE OFFENCE

[15] A full recounting of the specifics of the offence and the Alberta evidence is in the reasons for judgment and will only be summarized here in brief. In 2013, M. was still living in Alberta and resided with her biological father. M. missed her family. M. testified that she was scared of returning to live with D.S. but she was barely surviving and had lost everything. She felt it was the last option. M. testified that she knew that the abuse might start again.

[16] The abuse did in fact start again about three or four weeks after she arrived in Ontario. She had been cleaning the old house which the family had just moved out of. D.S. asked her if she remembered what happened in Alberta. He then asked for a blow job or hand job but he could not get hard and became frustrated. M. testified that she did not want to do it. She had a vague memory of her taking some of her clothes off, kissing him and he grabbed her breasts. M. said that she did not utter words of disagreement. She did not want to do it and did it only out of fear. It seemed normal because it had happened before. She was in the same position as then. She was completely dependant and felt like she had to do what he said or he would get angry and break or throw things like he had done before multiple times when she was younger.

[17] A few weeks later S. told his wife S.M. that he needed M.’s help at his work. As they were driving, he told her that he had taken Viagra or a similar drug before they left the house. They went to a hotel called the White Knight: M. went through a back door into the room. D.S. was slightly aggressive and took her clothes off right away, then had intercourse with her for two or three hours. He ejaculated. She disassociated; her mind was not there. She did not consent. Afterwards, she was tired and sore.

[18] The trips to the hotel and the sexual assaults happened probably 5-8 times. D.S. would make up things to tell S. about where they were going and what they were going to do. There was an incident at a drive-in movie in a mini-van but her memory of it was vague. All she remembered was flashbacks. D.S. was on top of her, the van was rocking and sweat was pouring off his forehead on to her face. He had intercourse with her without her consent. This was around the time that she started blocking everything and letting everything happen.

[19] The sexual assaults happened in the house too. Her mother S.M. got a temporary job and so generally no one was home during most of the day. Forced sexual intercourse took place in her room 3 to 4 times a week. It went on for four to five months. S. would ask a few times whether it was happening and M. would not answer her directly. But M. felt like she knew based on the police reports in Alberta. S. told her that D.S. admitted it to her after they moved to Ontario. M. testified that she felt her mother failed her.

[20] M. testified that D.S. had a temper and the two yelled and screamed at each other. He was a strict father. At times she would say no to the sexual assaults and he would either persist or get angry, leaving the room in an aggressive manner and slamming doors. When he persisted, she would “lay there and take it.” M. testified that the sex really “messed me up”. She was already experiencing mental health issues before she came to Ontario. There was no one to turn to. M. never told her brothers.

[21] At one point her mother assaulted D.S. They often got into heated arguments. She held him somehow and scratched his face. She yelled, “what are you doing to my daughter!” M. thought but was not sure that she also said, “Did you rape her; Did you have sex with her?” and things of that nature. S. was out of control. It took M. and her two brothers to get her off him. M. called the police who arrested S. and took her away. She never came back to the house.

[22] Child protective services asked her in the aftermath whether the abuse was still happening. M. said it was not. This was untrue. She was rundown mentally and just did not care. When she complained before, nothing had happened. The sexual assaults then recommenced about two to three weeks later. He had free rein as S.M. was not there to question or keep an eye on her. From this point on, D.S. wanted sex almost every day, multiple times a week, sometimes more than once in a day. There were too many times to count. She could not remember individual instances.

[23] M. eventually left Ontario with help from a friend whom she had met in the Mormon church. The bishop of the church paid for a flight back to Edmonton for her in May of 2014. Ms. Lisus calculated, and I agree, that based on M.’s evidence, there were probably over a hundred instances of forced intercourse over the year and a half offence period in the indictment.

THE ALBERTA ABUSE

[24] M. testified that when S. first moved in with her, her mother and her brothers, was really angry towards her and her brothers. M. fought with S. about every little thing. With respect to the sexual assaults which started at age six, he told her not to tell anyone about it because he was the one who took care of everyone financially. At that age she just accepted this. M. did not know what he was saying was wrong. She was worried that because he was the provider for the family, if she told people about what was happening, he would have to leave and the family would be homeless.

[25] The police came when she was about six years old. She did know who called them. She did not remember any interviews she may have given. had to leave the house for about a month. Both and her mother S. told her to tell the police that she had lied when she talked to them. S. said he would be in trouble if she told. She followed their instructions but she was not telling the truth at the time. She was frightened for her family; she did not know what would happen to them. M. was also frightened of S.’s temper which was hard to deal with.

[26] S. returned to live with the family. What used to be sexual molestation turned into rape at about age eight. It occurred a couple times a week and lasted about 20 minutes to an hour. Her mother did not protect her at all; she felt trapped with no where to go. S. allowed S. to shower with M. When she was 12 years old, she told one of her friends what was happening. Although the allegations were true, she denied the allegations to the police. No one cared enough to listen and believe her. M. testified that she was terrified. She was constantly fighting with S., butting heads all the time. She contacted her biological father when she was twelve who eventually picked her up to live with him.

[27] M. said that her mother S. was an absent parent who did the bare minimum for her and her brothers. She did not give her much time. Because S.M. had asked her to lie, it was already established that she was not going to do anything for her.

[28] After about a year with her father, he was getting mad because she was depressed and missing her family. Her father arranged for her to see her brothers and started going back to the house where her mother and S. lived. Her brothers missed her; she missed them. The sexual abuse from S. started again on the weekend visits.

[29] M. told her youth pastor about the abuse and they sat down with her biological father who then went to the police. To M.’s knowledge, the police questioned S. and everyone else in the house. Shortly after, her mother called her and told her that D. tried to kill himself. S. blamed M. for it. M. felt guilty and upset, she did not want him to die. Although she was now finally ready to tell the police what happened, she decided not to go through with it.

[30] Within weeks of his suicide attempt, S., her mother, and her brothers moved to Ontario. The police case was dropped and M. felt let down by them. She moved from Alberta to Ontario to be with her family.

AGGRAVATING FACTORS

Frequency and Repetition

[31] Many sexual assault cases involve sporadic and infrequent incidents. In this case however, the merciless repetition of the offences over a year and a half is a major aggravating factor. There were probably close to a hundred or more violations of M.’s sexual integrity and autonomy, over and over again. There was no respite, no time without him forcing himself on her. It became an almost daily episode after her mother was prohibited from living in the house. In each case, the sexual assault was the maximum invasive violation, sexual intercourse without consent.

[32] The Ontario offences must be seen in the context of the horrific abuse in Alberta, starting at the age of six. The offences were also very frequent, although not as frequent as in Ontario. In total, the sad reality is that from the age of six to 21, M. was more or less constantly sexually violated by S. From childhood to young adulthood, the sexual abuse of S. pervaded her life. M. did not know life without S.’s sexual depredations. This could only have, and did have, a devastating impact on her.

Breach of trust

[33] A breach of trust is a statutory aggravating factor and is a major component in this case: see s. 718.2(iii) of the Criminal Code. S. moved in with the family when M. was four years old. S. was a father to M. in every sense except in blood. The seriousness of the offence was not aggravated by the possibility of becoming pregnant with a biological father’s child. But that was the only difference. Otherwise, it was essentially the same.

[34] A father nurtures and supports a daughter, protecting her and raising her through childhood and adolescence. The texts between S. and M. that were exchanged when she was between 16 years old and 25 years old show that S. was not without parental feelings. These may have been a way to diffuse and placate M.’s anger towards him or there may have been some aspects of genuine fatherly feelings. M. certainly implied that some of it was genuine in her eyes. The texts began before she was being sexually abused by him in Ontario and recommenced afterwards. As explored in depth in the reasons for judgment, these texts demonstrate the trust between them despite the horrible abuse and violation of that trust lurking below.

[35] The consequence of these mixed feelings was a profound confusion at the centre of her emotional life. She loved her father; she hated her father. There was no possible resolution to these two opposite extremes. At the same time, they were tightly interwoven and ultimately inextricable. The destructive effect of the violent collision between the father figure and the evil sexual violator is beyond imagination. This was a devastating, horrific breach of trust that undermined M’s fundamental sense of her own identity and her sense of self.

The impact of the offence on M.

[36] The decision in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424 although specifically considering sexual abuse of children, was emphatic in refocusing sentencing on the impact of the abuse on the victim: see paras. 75-86. The magnitude of the impact of the Ontario offence and the earlier abuse in Alberta on M. is difficult to comprehend. The physical and psychological problems M. has attested to in her Victim Impact Statement and in her evidence are profound. I am convinced that the sexual abuse at the hands of S. is the major cause of the severe problems she has experienced. M. testified that S.’s abuse has led to Borderline Personality Disorder (BPD) and Post-Traumatic Stress Disorder (PTSD). She is not able to trust people or romantic partners. She had electric shock convulsion therapy (ECT) after she returned to Ontario from Alberta which affected her short and long term memory. She does not let anyone get close to her. She describes herself as lost and broken. M. described nightmares and flashbacks she had. She would pick and choose about what people what she thought they wanted to hear. Before she moved to Ontario, she suffered psychosis and made-up scenarios.

[37] Often, the damage caused by sexual assault is not so much physical harm but rather psychological and emotional harm. The Court said in Friesen:

55 …society has come to understand that the focus of the sexual offences scheme is not on sexual propriety but rather on wrongful interference with sexual integrity. As Professor Elaine Craig notes, "This shift from focusing on sexual propriety to sexual integrity enables greater emphasis on violations of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodily integrity (as was more the case when the law's concern had a greater focus on sexual propriety)" ( Troubling Sex: Towards a Legal Theory of Sexual Integrity (2012), at p. 68).

56 This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw, [1991] 3 S.C.R. 72, "may often be more pervasive and permanent in its effect than any physical harm" (p. 81).

[38] After the friendly, fatherly texts back and forth for more than nine years, M. was finally able to express what had troubled her for so many years. She wrote this text to S. not long before her 26th birthday, expressing her rage at what he had done to her,

I would like to start off with saying fuck you. Fuck you for destroying me. For breaking every piece of me, and not giving a shit about it. Do you know what it's like to look in the mirror and not know who's body I'm looking at? Do you not know that at every touch I flinch and every smell of sweat I remember you? I remember your body pinning me. I remember not being able to breathe or move. I remember the sound of your grunts as you thrusted your body against mine.

You sir, literally took my soul away, You broke me in ways I don’t know if I'll ever be able to fix. Nothing will ever be the same. I can’t smile the same, laugh the same, I can't even just carry on a conversation the same..., because of you I trust no one. Because of you I'm always looking over my shoulder wondering who will be the next person to hurt me. Because of you I cant sleep at night without vividly remembering the time you took my soul away. How can you sleep at night knowing just how much you hurt me? How can you walk around knowing you took something so precious away from me. I know I will probably never get an answer from you. But at least I can say this,

fuck you for breaking me. fuck you for violating me.

fuck you for taking my soul away.

You are the one person in my life that I will never be able to forgive. And that in itself is a huge challenge, because I fully believe in forgiveness and change,

But will you change? Am I the only person you did this to? How many other girls souls did you take? How many other girls did you pin down and break?

Do you deserve my forgiveness? I really dont think so.

It's taken me a while to believe this, but I didn't deserve what you did to me despite what my thoughts tell me. I didn’t deserve to be violently raped by you.

And now I have to pick up all the broken pieces and stick them back together again, I have to relearn how to smile, laugh, communicate. I have to learn how to trust and be trusted. I have to break free of your chains that have been gripping me so tight for so long,

I'm taking my soul back, And you can never have it again.

[39] Four years later, in her Victim Impact Statement written after the finding of guilt against S., M. said:

Have you ever been dealt a life sentence by the hands of someone who claimed that he loved you? I have.

And this is why:

My mental health is a huge factor in my everyday life. I have flashbacks, and nightmares of the attacks I endured by the hands of this man. After I came home from Ontario (back to Alberta) I have been hospitalized 18 times in the duration of 3 days to 8 months. I didn't know how to handle the trauma and was extremely suicidal for years. I would always take any chance I could get to try to kill myself because the pain was too much.

I wasn't excelling at life, I couldn't hold down a job, I was scared of men in particular.

And didn't trust a single soul. This man installed in my by assaulting me that I was just someone that could be taken advantage of over and over again.

This also caused me to have a very real eating disorder. I struggle with body

dysmorphia because whenever I look at myself I don't see that my body belongs to me Rather I belong to him; the man with the hands. It warped my sense of self and often left me feeling as though I was a piece of property instead of a human being.

He left me feeling isolated from the world and so alone; that eventually I started feeling like it was safe. This turned very quickly into agoraphobia. I CAN NOT leave my home without experiencing an insane amount of anxiety and stress. I have to prep days in advance in order to work up to leaving my safe space. I can't go out with friends even if I really want to. I can't go to therapy or to see my doctor (thankfully they have met me where I'm at and do zoom calls) and I've noticed as time progresses it just gets worse.

This man has taken from me my ability to have relationships with other men on an intimate level, because every time I think about It all I see is him and the flashbacks hit me like bricks. Since Ontario I have had only one intimate partner and it ended because I couldn't connect to him in the ways that he needed.

This also leads me to friendships and relationships, because of him I'm always waiting for the shoe to drop. Waiting for them to leave me if I get "too heavy" I am a very guarded person because I don't want to get hurt in the way he has hurt me.

With all of this happening in my world the only way I knew how to cope was through self harm. I started at a young age, but when I went to Ontario I learnt the trick of the blade and started cutting much deeper. I now have pretty extensive scar tissue on my for arms and thighs. I have gotten to the point that if, and when I self harm I need stitches because I can't control it anymore. This also leads me to me to abusing m narcotics and misusing my proscribed meds to take the pain away that I was experiencing in my mind because of this man. I went to treatment and have been clean since but it was a very long journey.

I truly … believe that if it wasn't for this man that I would be struggling as hard as I am in life. It is an everyday battle to wake up and choose to live. This man has single h andedly made my life hell, maybe with the right amount of therapy and meds I will finally be able to loosen the load but I truly don't believe I will ever be fully healed.

This is my life sentence. And although I forgive the man that did this, I will not forget. Today I'm taking my power back and he can never have it again.

[40] In re-examination at this trial, many years after the abuse inflicted upon her, M. testified,

… S. is literally on my mind every day, all day long. And I can't get away from it. … sure, like …I have friends and I laugh with them, and I have moments of… clarity, but most of my days are spent thinking about memories and flashbacks….

[41] S. robbed M. of her body and with that, her soul, her very self. He took her childhood and her adolescence from her. His acts of sexual abuse threatened to obliterate her as a person. As it is, she does not always recognize herself or know her own body. That is a harrowing, sickening consequence of the long-term abuse beginning when she was a very young child.

[42] There were two letters filed as exhibits on sentencing from M.’s friends. A.M. has known M. since M. was six or seven years old. Her impression of M. was that she appeared to be a troubled, sad little girl. Her daughter became friends with M. when M. was about 13 years old. The two became very good friends. M. started spending time with A.M.’s family. At the time M. was living with her biological father. At about 16 years old M. started living with A.M.’s family because of difficulties with her father. M. appeared at that time to be a delightful but deeply troubled young lady. She experienced sleep disturbances, troubled eating patterns with binging and purging and fairly extreme anxiety. She required many assurances that she was safe in her living situation. After about six months she chose to go back to living with her father as she needed to connect with her biological family.

[43] A.M. and M. reconnected several years later when M. moved back to Alberta. To A.M., M. appeared even more broken than ever before. She lived with A.M. again from time to time and experienced extreme anxiety, nightmares, flashbacks, disordered eating and extreme weight gain. Through conversations with M. it become clear the symptoms have been as a result of the extreme trauma she endured. A.M.’s family continues to offer love and support in the hopes of one day being able to see M. be happy, content and proud of emerging from such extreme circumstances.

[44] Another friend, A.L. has known M. for 27 years. They are next of kin. A.L. commented that the abuse M. suffered has left a hole where there was once a vibrant, creative and confident woman. It has left behind a person scared to let herself be loved. The confidence is gone, the ability to trust is shattered. M. has told A.L. numerous times that she feels gross and ugly. She struggles with her weight. She told A.L. that if she stays big, people won't look at her in a positive light. M. struggles to make connections with people and relationships are difficult to keep for her as well.

[45] A.L. said that she and the rest of her family have watched M. spiral and become a shell of who she has the potential to be. She has way more bad days than good days. Throughout the trial M. has really struggled with her mental well-being.

[46] Lastly, with respect to impact, the continual sexual abuse led to estrangement from her mother, her only potential protector in the world. The two were never close. There was a horrible secret standing between them. S.M. knew or suspected at different times what was going on—M. complained to her--and, as S.M. saw it, was forced to choose between believing her daughter or her spouse. She testified that she did not know who to believe. If that be the case, her course was clear. Protect her daughter at all costs. But she did not. She asked S. if he was abusing M. but received his denials and did nothing. M. testified that S.M. told her to lie to the police. It is reasonably clear that S.M. took S.’s side as opposed to M.’s, shockingly abdicating her parental and legal duty. She was, as she seemed to admit on the witness stand at times, not a good mother. She found some redemption ultimately in testifying to S.’s confession in this trial, a vital piece of evidence against him.

[47] Part of the aftermath of the sexual assault was that M., because of S.M.’s failure to believe and to then protect her, was left without any parental support while being repeatedly sexually exploited by S. This was part of the devastating repercussions of the sexual abuse. The court in Friesen at para. 63 recognized the harm to the victim’s other familial relationships that sexual abuse can cause. This is a prime example.

MITIGATING FACTORS

[48] The only mitigating factor is that S. is a first offender. That is generally the case in interfamilial abuse cases. Also, some of his family members, his brother for example, say that he has had a hard life.

THE CASE LAW

[49] This is a somewhat unique sentencing. It has multifarious elements and does not fit neatly into any one of the more common categories. It partakes of several different elements. One category of case is child sexual abuse sentences, of which Friesen is the leading example. The sexual assaults against M. in Alberta when she was a child are important as they contextualize the sexual abuse in the indictment but, as pointed out previously, this sentencing is not for the sexual assaults which took place when M. was a child.

[50] The Ontario offences upon which S. has been found guilty are unusual in that M. was a young adult when she was repeatedly violated by her stepfather, just one year past her teenage years. Most of the case law has to do with this type of interfamilial offences being committed when the victim is considerably younger.

[51] The cases considering non-familial abuse are obviously pertinent, particularly in so far as they consider breach of trust: see e.g. R. v. K.(A.J.), 2022 ONCA 487, 162 O.R. (3d) 721 at para. 76. Another category which helps guide and orient this sentencing is sentencings for incest. Those cases yield some high, denunciatory sentences: see R. v. C.M., 2008 ONCA 430; R. v. P.M. 2012 ONCA 162. This case does not involve incest because there was no blood relation between S. and his victim, M.

[52] Extracting the major factors from these cases leads to the appropriate sentence for S. It is axiomatic that no two sentencings are exactly the same. The lack of direct precedent could theoretically lead to inconsistency and uncertainty and a sentence without sufficient support in the jurisprudence. But the grave seriousness of S.’s crimes and the consequent focus on denunciation as the superordinate factor provides the necessary guidance and consistency.

MS. M.M.

[53] I wish to address some words directly to Ms. M.

[54] Ms. M. I know this trial has been extraordinarily painful for you. The administration of justice is truly sorry for that. But, first of all, I want to commend you for coming forward. You persisted from age six in making your voice heard. You did not give up even when you were not being listened to, when your mother told you to be silent and lie about what was being done to you by your stepfather. In addition, in my view the system failed you repeatedly. That you ultimately continued regardless attests to your remarkable courage and perseverance and strength.

[55] It is a tragedy that it took 23 years, through childhood, through adolescence, through young adulthood to get to this point. You should be very proud that despite all the opposition over virtually your entire life, you did not give up. Very few people would have showed the persistence you have. You are a true survivor. We know from things you have said that you think of yourself as weak and wounded. But you are strong too. That is important for you to understand and embrace. What you have endured and what you have attested to is clear proof of that.

[56] The community needs you to understand that you have been heard about what was done to you and how it has so deeply hurt you. The police have heard you; the Crown prosecutors have heard you. Not just Ms. Lisus and Ms. Prihar but the entire crown attorney system. And, importantly, our system of justice has heard you. Your exceptional courage is a model to others. The judicial system strives to protect women in the trial and pre-trial process. Much more is being done than was in the past. But it is never easy. Truth finding has a rigour to it, much of which is unavoidable. It is an example like yours that is so important, showing how crucial it is to come forward and not to relent.

[57] Your poem and your painting beautifully express your pain and point the way forward on your healing journey. What was done to you is staggering, shocking, horrific. Please understand that in your struggle towards healing and rebuilding we are with you, we support you wholeheartedly. Of course, no one can fully understand from the outside what this has done to you. But with the strength you have shown, we have faith that you have the power and the will to move towards a better place. You can, with support, reverse the downward spiral.

[58] Finally, Ms. M., for your bravery, perseverance and courage, we salute you. We would like nothing more than to see you grow and flourish in the future. The very best of luck to you.

CONCLUSION

[59] For the Crown, Ms. Lisus asks for the maximum sentence of ten years. The Supreme Court of Canada commented on maximum sentences in R. c. M. (L.)., 2008 SCC 31, [2008] 2 S.C.R. 163, where Justice LeBel wrote,

20 In R. v. Cheddesingh, [2004] 1 S.C.R. 433, 2004 SCC 16, the Court acknowledged the exceptional nature of the maximum sentence, but firmly rejected the argument that it must be reserved for the worst crimes committed in the worst circumstances. Instead, all the relevant factors provided for in the Criminal Code must be considered on a case-by-case basis, and if the circumstances warrant imposing the maximum sentence, the judge must impose it and must, in so doing, avoid drawing comparisons with hypothetical cases.

. . . terms such as “stark horror”, “worst offence” and “worst offender” add nothing to the analysis and should be avoided. All relevant factors under the Criminal Code . . . must be considered. A maximum penalty of any kind will by its very nature be imposed only rarely . . . and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As is always the case with sentencing, the inquiry must proceed on a case-by-case basis. [para. 1]

[60] The gravity of this offence, placed into its appropriate context by the aggravating aspect of the Alberta abuse beginning at age six, is truly extraordinary. One would expect, even in the absence of specific evidence, that the impact on M. from the degree of invasiveness to her sexual integrity, the routinized nature of the offence over many years and her age as a young adult at the time, would be profound. And it is, very much so. It is clearly manifested in what we have heard from M. The consequences to her have been nothing less than catastrophic. A lesser person would have been annihilated. S’s responsibility for the acts he committed and the consequences wrought upon M. is of the very highest order. He must have known what the abuse was doing to her but paid no mind to it over many, many years and the different stages of her life. His moral culpability is at the uppermost extreme.

[61] Society must express the strongest possible denunciation of these terrible crimes. The defence recommendation of five to seven years is inadequate for this purpose. It is my view this is one of the rare cases in which the proportionate sentence appropriate to this offence and this offender must be the maximum. That is the only sentence that even comes close to being proportionate to the gravity of the sexual violations, the destructive impact on M. and the moral responsibility of S. Consequently, S. is sentenced to the maximum of 10 years in jail on the one count of sexual assault before the court.

[62] Ancillary orders will go: DNA databank, SOIRA for 20 years, a non-communication order while in custody under s. 743.21, s. 109 orders for 10 years and for life respectively.

D.E HARRIS J. Released: October 25, 2024