R. v. J.C., 2025 ONSC 2504
Delivered orally and in writing
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
J.C.
Accused
Emile Carrington, for the Crown
Linda McCurdy, for the Accused
HEARD: Sentencing submissions – April 8, 2025
RESTRICTION on publication
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so it can be published.
REASONS FOR SENTENCE
hebner J.:
1J.C. was convicted after a trial of the following:
Count 1: Failing to comply with a condition of a release order, namely not to contact or communicate directly or indirectly with the complainant, contrary to s. 145(5)(a) of the Criminal Code, R.S.C. 1985, c. C-46; and
Count 4: Having sexual intercourse with the complainant knowing that she was, by blood relationship, his child contrary to s. 155(1) of the Criminal Code.
The Offences
2M.B. and J.C. had a relationship before the birth of K.B. They conceived K.B. in the winter of 2000-2001 and K.B. was born in November of 2001. A few weeks after K.B.’s birth, M.B. and J.C. separated and J.C. did not see K.B. thereafter until K.B. was 18 years of age.
3When K.B. was 16 she moved out of her mother’s home and into the home of her grandmother, C.O. By the time K.B. was 18, she had obtained her own apartment and began to search for her father. She found J.C. through social media and they met at a Tim Horton’s restaurant. K.B. asked if J.C. was her father. K.B. said that J.C. said yes. J.C. said that he said no.
4K.B. and J.C. communicated regularly and, within a few weeks, K.B. moved into J.C.’s home. They began having an intimate relationship.
5K.B. and J.C. lived together for several years until January of 2023. Throughout the majority of that time they were intimate and engaged in the regular use of illegal drugs. According to K.B., they used crack cocaine initially and then crystal methamphetamine on a daily basis. J.C. introduced K.B. to drugs and then they used together.
6The relationship was a tumultuous one. On several occasions the police were called to the residence due to family violence. In August of 2022, the offender was charged with assaulting K.B. and was released on conditions. One of the conditions was to not contact or communicate with K.B. Despite the conditions, the two continued their sexual relationship until January of 2023. Their son, C.B., was born in May of 2023.
7DNA evidence confirmed that J.C. is K.B.’s father and C.B.’s grandfather.
8At trial J.C.’s evidence was that he did not know that K.B. was his daughter. For reasons released January 21, 2025, I found that J.C. was willfully blind as to whether K.B. was his biological daughter.
Impact on the Victim
9Victim impact statements were provided by C.O. and K.B.
K.B.
10K.B. said in her written statement that she feels isolated and alone; she has trouble trusting others; she feels embarrassed and ashamed. She said that she is confused about her feelings; that she is angry at the offender but loves her son, C.B.; that she feels like C.B.’s sister and mother.
11K.B. spoke of C.B. having a higher likelihood of genetic conditions and the fear she has of conditions showing up throughout his life.
12K.B. spoke of her fear of the offender; fear of him having access to C.B. through school, daycare or extracurricular activities; fear that C.B. could be physically harmed in retaliation. She spoke of nightmares of physical confrontations and a constant fear of seeing the offender or the offender discovering her location.
C.O.
13C.O. is M.B.’s mother and K.B.’s grandmother.
14C.O. said that the offender put herself and her family through years of fear for K.B. She spoke of the relief she felt after the offender had been arrested and charged. She spoke of having nightmares of the offender coming after her. She spoke of the love for her grandson.
15There is no doubt that the offender’s conduct has had a profound effect on K.B. and her family.
Pre-Sentence Report
16J.C., aged 50, was raised by a single mother in Windsor until aged five and then in Calgary, Alberta. He left home at aged 13 and, by aged 18, had returned to Windsor. J.C. was married for four years, separated in 2012, and has two children aged 13 and 16. The children were and are cared for by J.C.’s sister, Patricia Carroll, who has been a source of significant support to J.C.
17J.C. has struggled with addiction and poor mental health. According to Ms. Carroll, there is a significant history of addiction and poor mental health on their father’s side and J.C. is schizophrenic.
18J.C. has worked at general labour positions during his teenage years and into adulthood, specializing in stucco application. He has worked as a welder, a press brake operator and changing transport truck tires. In 2009 and 2010 he worked as a garbage truck driver for the city of Calgary. He worked very long hours, became overwhelmed and snapped. According to ministry file information, J.C. experienced a period of psychosis brought on by extreme sleep deprivation. He pursued legal action successfully and receives a monthly stipend from Workers’ Compensation. Ms. Carroll helps J.C. manage his money.
19J.C. said that he first tried drugs and alcohol at aged 12. He tried crack cocaine for the first time in 2015 and used it heavily until 2020. In 2020, J.C. was introduced to crystal methamphetamine and immediately became addicted. He continued to use crystal meth until he was incarcerated.
20J.C. was interviewed by the author of the pre-sentence report in person at the Southwest Detention Centre. He was respectful and cooperative. He has participated in a few educational sessions called “Understanding Feelings”. He has declined to participate in any other programs offered.
21Currently J.C. describes his mental health as stable and said he has been prescribed medications for mental health while incarcerated. Ms. Carroll said that J.C. struggles with taking his medication consistently and will require help. When he is abusing drugs and stops his medication, J.C. is a “different person”.
22Although J.C. was very upset about the pregnancy and said it shouldn’t have happened, he also asserts that K.B. was equally to blame, claiming that “it takes two to tango” and “they can’t put it all on me”. He expressed remorse but at the same time placed some blame on the victim. He has a lack of insight into the impact of his actions that the author of the pre-sentence report described as “extremely concerning”.
23The author of the report made the following insightful comment:
The nature of the offender’s charges is unsettling and this writer is of the opinion that the offender will require therapeutic intervention to address his sexual offending behaviours in the hope that his deviant behaviour does not reoccur.
24The author also noted that clinical supports for the offender will be necessary once he returns to the community to assist with mental health needs and medications.
Criminal Record
25The offender is a recidivist with a substantial criminal record. He has convictions dating back to 1994 and 1995 in Calgary for breaking, entering and committing an indictable offence along with failure to appear and obstruction of a peace officer.
26The offender has convictions in the Windsor and Leamington areas starting in 1998 and continuing to the present. They include convictions for: impaired driving; mischief; failure to attend court; failure to comply with a probation order; assault; failure to stop at the scene of an accident; driving while disqualified; uttering threats and assault with a weapon. The recent violent offences were assaults on K.B. He has one conviction in Owen Sound for impaired driving.
Position of the Offender
27The defence suggests a total sentence of three years is appropriate. The defence points out that the sexual activity was consensual between two adults.
Position of the Crown
28The Crown seeks a total sentence of 10-11 years less credit for pre-sentence custody.
Analysis
29All sentencing analyses start with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of parity, namely that similar offenders who commit similar offences in similar circumstances should receive similar sentences, must also be considered.
30Incest is an offence where consent does not matter. The offence is not directed to assaultive behaviour and consent is irrelevant to the offence. Rather, it is a prohibition of sexual intercourse with close family relatives. What then is the purpose of having consensual intercourse a crime? The question is answered in R. v. G.R., 2005 SCC 45, [2005] 2 SCR 371. The prohibition of incest is directed to preserving:
The integrity of the family by avoiding the confusion in roles that would result from incestuous sex…there is a heavy physiological penalty imposed by inbreeding, that is the sharply increased risk of genetic defects in the children born of incestuous relationships (p. 383).
31The offence is associated with the “protection of vulnerable family members”. Incest whether consensual or not is “unacceptable, incomprehensible and repugnant to the vast majority of people and has been for centuries in many cultures and countries” (p. 383).
32The Crown relies heavily on the Supreme Court’s comments in R. v. Friesen, [2020] 1 S.C.R. 4. That case dealt with sexual assault on a young person within a trust relationship. The sentencing judge imposed a six-year sentence; the appellate court reduced the sentence to four and a half years and the Supreme Court restored the six-year sentence. The thrust of the message in that case is set out in para. 5: “…that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.”
33The analysis in Friesen focuses on sexual crimes committed against children. I agree that Friesen would apply to incest cases involving children but K.B. was not a child at the time of the offences in this case. She was 18 when she met the offender. However she was vulnerable and came to rely on the offender for housing.
34In Friesen, at para. 89, the court said:
All forms of sexual violence, including sexual violence against adults, are morally blameworthy because they involve the exploitation of the victim by the offender…. Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation.
35Incest is abhorrent to our community. It is a heinous crime that strikes at the moral fiber of society. Denunciation must be the overriding principle in sentencing an offender for incest.
36Here, K.B. was a vulnerable young adult at the time she and the offender met. K.B. was homeless, living in her van, estranged from her family and she wanted to find her father. He took advantage of these circumstances. He exploited K.B. at a time in her life when she was vulnerable.
37The clear message in Friesen is that the sentencing for all sexual offences needs to be considered more carefully in light of the guidance provided by the Supreme Court. Given that, cases dealt with after the release of Friesen will be of more assistance than those determined before.
38I turn to the cases submitted by counsel.
39In R. v. B.C.M., 2024 ONCA 12, the offender engaged in incest with his biological daughter starting when she was aged 15. He also took sexualized photos of her and was convicted of making and possessing child pornography. She became pregnant and gave birth to a child. The offender received a sentence of 11 years for incest and 1 year consecutive for making child pornography.
40In R v. G.C., 2020 ONSC 7381, the offender was convicted of incest and sexual assaults on his daughter. She was 16-20 at the time. The victim became pregnant and the pregnancy was terminated. The offender was sentenced to 10 years for incest.
41In R. v. C.G., 2015 ONSC 5068, the offender had repeated sexual intercourse with his daughter between the ages of 16 and 18. The victim became pregnant twice. The offender was sentenced to 10 years. In his sentence, Ricchetti J. said that incest is “the abuse of a sacred trust and parental relationship by a parent for the parent’s own sexual gratification at the expense and disregard of the devastating effect on the parent’s own child.”
42All of these cases dealt with a victim who was under the age of 18 when the incest started.
43The defence provided the case of R. v. P.B.K., 2013 ONSC 427. In that case, the victim was the offender’s granddaughter and she was 19 or 20 when the incest began. There was no child born. The offender was, at the time of sentencing, a 66-year-old aboriginal man; a status member of Whitesand First Nation. The offender was a residential school survivor. He was subject to excessive discipline, the loss of language, and sexual abuse when, at 15, a member of the religious order tried to rape him on two successive nights. He was sentenced to 15 months incarceration.
44I consider the mitigating and aggravating circumstances.
Mitigating Circumstances
45J.C. has a history of mental health issues and had suffered a significant breakdown in 2010. He is very aware of his mental health and addiction challenges and does not seem to have an ability to deal with them.
Aggravating Circumstances
46As I said earlier, K.B. was a vulnerable young adult at the time she and the offender met. K.B. was homeless, living in her van, estranged from her family and she wanted to find her father. He took advantage of these circumstances. He took K.B. into his home, had a sexual relationship with her and introduced her to crack cocaine and crystal meth causing K.B. to have her own addiction issues. J.C. was 27 years older than K.B. and he knew, or was willfully blind to the fact, that K.B. was his biological daughter.
47The fact that the offender ignored a release order when he reignited his relationship with K.B. and impregnated her is a significant aggravating factor.
48The offender considers K.B. to be equally to blame, which is an aggravating factor and speaks to the offender’s underlying attitudes and moral blameworthiness.
49K.B. and her family suffered significant impact from the offender’s actions. These are significant aggravating circumstances.
50The offender has a lengthy criminal record.
The Appropriate Sentence
51Section 155(1) of the Criminal Code sets the sentence at a term of imprisonment for not more than 14 years.
52There was no case referred to me that was on par with this case. In the cases provided by the Crown the victims were all children when the victimization started. The case provided by the defence was before Friesen, involved an elderly offender, and the offender was a residential school survivor such that Gladu principles were very much a factor. I am left to fashion a sentence myself that reflects the abhorrence of the offence, the impact on the victim and the aggravating and mitigating circumstances noted above.
53I must impose a sentence that strongly denounces the conduct of the offender and reflects the harm done not only to the victim but also to her family. The sentence must reflect the birth of a child who will live with the impact of the offence for his entire life. I must impose a sentence that recognizes that K.B. was an adult at the time the offences occurred, albeit a youthful and vulnerable one. Given the extensive harm caused and the strong need for denunciation, the sentence must be a significant one.
54In all of the circumstances, I come to a sentence of eight (8) years for the offence of incest being count 4.
55For count 1, failure to comply with a condition of a release order, I consider the circumstances to be egregious. J.C. was charged with assaulting the victim and was released on conditions not to have any contact with her. He breached that condition, continued to have sexual intercourse with her and impregnated her. The sentence for the breach must be at the higher end of the range. I come to a sentence of 18 months, concurrent with count 4.
Ancillary Orders
56I make the following ancillary orders:
Section 109 weapons ban for life.
Primary DNA order s. 587.051.
Sexual Offence Registry for 20 years s. 490.013(2)(b).
J.C. shall have no contact with K.B., M.B., C.B. or C.O. while in jail.
Credit for presentence custody is 1259 days (enhanced) leaving 1663 days to serve.
___________________________
Pamela L. Hebner
Justice
Released: April 23, 2025
COURT FILE NO.: CR-23-5946
DATE: 20250423
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
J.C.
REASONS FOR sentence
Hebner J.
Released: April 23, 2025