R. v. C.(R.), 2013 ONCJ 736

Citation: R. v. C.(R.), 2013 ONCJ 736 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. R.C. PROCEEDINGS AT SENTENCING BEFORE THE HONOURABLE JUSTICE P.T. BISHOP On November 20 th , 2013 at LAC SEUL, Ontario

APPEARANCES: T. Schuck Counsel for the Crown A. Seib Counsel for R.C. WEDNESDAY, NOVEMBER 20, 2013 MR. SEIB: Your Honour, I can tell you from the outset that obviously this sort of offense is, the sort of offense that a strong incarceratory sentence is required for specific and general deterrence and you won’t - the defense isn’t taking issue with that. In fact, in 2012 the legislation was amended to incorporate a mandatory minimum sentence with respect to this offense and it’s a mandatory minimum five years. The defense is asking Your Honour to consider a five year sentence.

I can tell you based on the discussions I’ve had with my friend, my understanding is that the Crown’s position is a five to seven year jail sentence. MISS SCHUCK: Yeah. THE COURT: Well we’ll hear from her in a minute. MISS SCHUCK: Yeah, sorry, I.... THE COURT: She gasped. MR. SEIB: And I, I, I can tell Your Honour that we’re filing only one case. It’s the most recent case of the Ontario Court of Appeal. I appreciate sentencing is an individualized process and that there are some differences in that case both with respect to the offense and with respect to the offender.

But it’s clear in that case, it was a, a decision of the Ontario Superior Court that was appealed by the Crown Attorney. It was an offense that with the greatest of respect, is a more serious offense in that case and that it occurred over a long period of time. It occurred over a 13 month period of time. There were 10 instances of sexual intercourse and the accused in that instance had actually filmed the incidences.

Ultimately a five year sentence for the, the sexual offenses was upheld by the Court of Appeal, although they recognized that it was perhaps on the low end for what was appropriate and he, the offender was sentenced to one year consecutive for the child pornography portion of the offense. It’s important to note that the Crown applied for leave to the Supreme Court of Canada and that leave was denied.

Now I appreciate there are differences with respect to that offense and certainly differences with respect to that offender and that that was a first time offender, but I think the principles outlined in, in that case are sound and you’ll recall from the case that the Ontario Court of Appeal prior to the amendments in, in 2012 had said that a sentence in the range of three to five years for a onetime occurrence was appropriate.

Now obviously I’m, I’m not in a position to be able to argue three to five years because of the most recent amendments, but it’s my respectful submission that R.C. should be sentenced to, to five years. We aren’t dealing with the aggravating factors in the, in that Ontario Court of Appeal decision, which permitted or justified increasing it from a five year sentence to a five to seven or a five to nine year sentence, which obviously the Court of Appeal in that decision said was appropriate for long term sexual assaults of, of, of this nature.

I, I can indicate Your Honour that just like in the M.P. case, it’s my respectful submission that R.C.’s guilty plea on this offense is extremely mitigating. I can tell Your Honour that all though it’s taken a long time to get to the sentencing date; that’s not all R.C.’s fault. There were originally difficulties with some disclosure issues and then it required a couple of months for myself and Miss Hellinga to sit down and, and talk about the facts that were going to be agreed to and things of, things of that nature. So this wasn’t a situation where R.C. was going to be contesting the matter from the outset.

His instructions to me from the very beginning were to take responsibility for the offenses and of course then his original sentencing date was adjourned to bring the matter back to, to Lac Seul. So although it’s taken about nine months for this entire process, from a very stage R.C. had indicated that he would enter a guilty plea and I think that’s important in, in a case like this where we’re dealing with a very young child complainant. The trial process is an extremely difficult process to go through.

It is not conducive to victims sort of going through the healing process and in fact in my respectful view, a trial process can undo a lot of the healing that an individual has gone through. And in this case, I think R.C.’s statement to the police on February the 28 th , I think is extremely mitigating because with the greatest of respect, without R.C.’s confession to the police, I would respectfully submit that there were a number of triable issues.

The way this case develops Your Honour, is February the 5 th , 2013, the victim in this case provides a video statement to the police alleging sexual abuse by another family member; by an Uncle I believe and in that statement they question the complainant about were there any other abuses and, and the complainant at that – the victim at that stage says nobody else has abused me. She’s then placed into care and goes through a number of counseling sessions with, with Child and Family Services and ultimately discloses the stuff involving R.C., her father.

A second video, videotape statement is taken on February 28 th , which discloses these new allegations. There are some issues because they aren’t, some of the facts aren’t supported by other collateral sources. But that’s why I say in this case, the mitigating, real true mitigating factor is R.C.’s cooperation with the police and his, and his subsequent, subsequent guilty plea.

The other difference between the, the M.P. case and R.C.’s case is that you see in M.P. , the accused in that case had no insight into his offenses and there was some real question as to whether or not treatment was going to even be effective for, for that, for that individual. We see in R.C.’s pre-sentence report that he’s accepted what he’s done and recognizes that there are underlying issues that need to be addressed to ensure that these sort of offenses don’t happen to again, happen again and to

ensure that the underlying issues that are outlined in the pre-sentence report are managed properly ultimately upon his release. And a five year sentence with the greatest of respect, allows R.C. to enter into the Federal system. It will allow him to undergo their intensive sex offender treatment because it’s quite clear from the pre-sentence report that what we’re dealing with right now is an untreated sex offender. And it’s difficult when you have an offender in custody to get any sort of treatment for him leading up to his sentencing date.

You can see from the pre-sentence report that R.C.’s dedicated to that process and wishes to take everything that’s available to him. I appreciate that R.C. has a prior criminal record and one of the offenses is, is related, but you’ll see in the pre-sentence report that it’s a dated, it’s a dated offense. The conviction although occurred I believe a year or two ago - I think two years ago – it was an offense that occurred when he was 12 years old and the, the nature of that offense was on the lowest possible side. There was no actual physical contact between the, the victim in that instance and, and R.C..

So we’re dealing with an offender who’s never been in custody before. The Ontario Court of Appeal in, in other decisions – obviously it’s Prince decision talks about the, the affect that sending somebody to a, a Federal Institution for the first time;, it can have on an individual and that we should attempt to make that the, the least possible amount of time in the Federal Institution for R.C..

And I appreciate the, the, the main sentencing principle in this case is denunciation and deterrence; both general and specific because of the obvious gravity of, of the offense, but my respectful submission is that a five year sentence for an offender who’s never been in custody before, who has the mitigating factors outlined in the, in my submissions and in the pre-sentence report, he comes from a background where he himself was victimized, grew up in, in an environment where substance abuse was, was, was rampant. I think Your Honour can consider the Gladue and Ipeelee factors and impose a five year sentence.

In, in M.P. , obviously we weren’t dealing with an Aboriginal offender, so those factors weren’t, weren’t considered by the court. Subject to any questions Your Honour might have, that’s my... THE COURT: All right, what’s... MR. SEIB: ...respectful submission. THE COURT: ...the Crown’s position? ... MISS SCHUCK: This is obviously a very disturbing case. My friend has asked that, you know the court consider his, his pleas extremely mitigating and the fact R.C. is an untreated sexual offender. My concerns with that is the fact that R.C. does have a prior conviction for a sexual offense.

It was when R.C. was a youth, but I believe my friend has stated that facts; the complainant was 12 and he was 17 at the time. That took place a few, obviously a number of years prior to this occurring. So obviously at that time R.C. was fully aware of the fact that he had issues he needed to address and did not take any steps to address them. As well as the facts that were agreed upon; this was not something that occurred once, but occurred twice. It didn’t occur within days of each other, but were separate and, and apart. In fact, the first time R.C. admits that his wife walked in and told him to stop.

He acknowledges that he knows what was happening was wrong and that he shouldn’t have been doing it, but that because his daughter – he didn’t think his daughter would tell anyone, he felt he was going to get away with it. I consider that extremely aggravating and that in no way should the minimum be considered for this offense. Not just because of the aggravating circumstances; the fact that he himself did not take steps to address his problems when he was aware of them.

As well, my friend raised the fact that R.C. is a sexual abuse victim himself, which means that R.C.’s fully aware of the impact that that can have on an individual. In fact, in the pre-sentence report – I’d like to hi-light what has been said about the complainant in that she’s undergoing extensive rehabilitative treatment, that she has been, become so impacted by this that she is expressing serious sexualized behaviour and that she’s been separated from her brother and cannot properly socialize with her brother or her peers due to the impact that this offense has had on her.

Unfortunately our Aboriginal peoples are often exposed to a great amount of sexual violence, which I do submit is what’s happened here to this young girl. R.C. took great advantage of the fact that it was his daughter and that he felt she would not tell anyone. Definitely, in my submission, differentiates from the case that my friend has presented, in that that individual did not have a prior record at all and R.C. as I stated previously, not only has a, a record for prior sexual offense, but also for another violent offense; an assault.

The government has introduced mandatory minimums, indicating that’s where sentencing should start and go up from there based on the factors. It’s in my submission that the, Your Honour should be considering at least a seven year sentence, given the notes that were made by the dissenting judges in this case regarding the fact that the sentence was in the, the lower end of the spectrum and that’s an individual who is not had the issues that I already addressed in regards to aggravating facts.

The Crown would be seeking seven to ten years and I do apologize to my friend that I wasn’t able to explain to him exactly what I was seeking beforehand, that our discussions unfortunately were not able to take full place until I’d had an opportunity to fully read the pre-sentence report and the extreme impact that this has had on not just Daveigh, but the entire community. The entire community is impacted by these events.

The social and emotional toll that it takes on not just the young girl, but her brother, who’s now also in care as a result of this and all the community members that had become involved because of this. It’s for those reasons Your Honour that I am seeking a, a seven to ten year sentence. THE COURT: All right, any response to that? MR. SEIB: Well Your Honour, the seven to ten year sentence is, is quite contrary to what the Ontario Court of Appeal recommends for this sort of offense. They talk about high upper single digits when there’s multiple offenses over a long period of time.

So I don’t see how the Crown can, can justify asking for that sort of a, a sentence and the fact that the, our courts have legislated a, a mandatory minimum doesn’t mean that that’s for the, the lowest form of, of, of this sort of offense. And the difference between M.P . and, and, and R.C.; I agree that R.C. has a prior criminal record, but again, we are not dealing with an Aboriginal offender in M.P . and we are still dealing with an offender who’s never gone to jail before. ... MISS SCHUCK: Your Honour, there’s also issues regarding the SOIRA and, and DNA. THE COURT: Yes.

MISS SCHUCK: SOIRA, my friend and I discussed should be for 20 years as well as a DNA order and a

section 110 prohibition for 10 years. THE COURT: Is it 110 or 109? MR. SEIB: I, I think it’s 109 actually. MISS SCHUCK: One o’ nine, sorry. THE COURT: I think it’s a mandatory 109. MISS SCHUCK: Yeah and under

section 161, I’m requesting that that be for a length of 20 years as well. MR. SEIB: No issues with any of those orders Your Honour. THE COURT: All right. MISS SCHUCK: And – sorry - yeah. REASONS FOR JUDGMENT BISHOP, J. (Orally): All right, I have, I have now had an opportunity to review the pre-sentence, Gladue report, the victim impact statement; I reviewed the facts and as well as the case of R. v. M.P. decision of the Ontario Court of Appeal.

First of all I have to say that this was a position of trust, this was his daughter; she was seven years old at the time and it was two incidences over about a month that he pled guilty to. The pre-sentence report talks about this young girl, this young complainant having all kinds of sexual ideation and she may have been sexually abused by someone else, but that is neither here nor there; acting out behaviour. The fact is that he has pled guilty, he is the Father; he has pled guilty to two counts.

Well, he pled guilty to one count of incest but there is two occurrences over that timeframe and that digital penetration of her anus as well as full sexual anal intercourse. He also has a prior conviction for invitation to sexual touching; he was 17 at the time, the complainant was 11 or 12. Again, this was a family, inter-family situation; it was the daughter of his sister. So we have aggravating factors, a very young age of her, of his own daughter, who was seven at the time, the two occurrences in the month of January of this year plus the, the prior sexual interference charge with another young female.

The victim impact statements are heartbreaking; the Mother does not know how this happened. The Father was left alone with the daughter, she came in and saw him digitally penetrating the anus and told him to stop and he thought that she would not tell anybody; he was in denial. So the young child is having difficulties existing now. She has emotional difficulties, is in extensive therapy; Tikinagan is involved and the likelihood of her having any positive relations with her father is quite removed at this particular time. She is undergoing extensive rehabilitative therapy and she is not socializing.

He continued on with this behaviour after he was caught once digitally penetrating her anus. I am finding that this case is distinguished from the leading case that was presented to me, M.P. There were, in that case there were many more occurrences; the accused was producing pornography in that particular case as well, the accused was suffering from post-traumatic stress syndrome, alcohol was involved and he had come back from Bosnia as I read the report and his family was supportive of him. That is not the case here; the family is not supportive of him.

The Crown has brought to the court’s attention that there is now a minimum five year sentence for this type of offense. I take into account he is an Aboriginal offender, I have read carefully the pre-sentence report; the parent’s provided for him. I have taken into account those Gladue considerations. There was not anything unusual, he had a normal childhood in the pre-sentence report. After the parents separated, he moved in with his mother but he had good contact with the Father, except that he was sexually abused he said by his male cousins when he was six to eight.

There is no report of that, so it is self-reported to the probation officer and no steps were taken for him to address those incidences. I note that he has got some, a few credits with grade nine, so he is not highly educated, but he was working on that and he has worked sporadically for the Band and housing projects when the work comes up; he has worked as a firefighter. He is usually on social assistance, so he is not a high economic wage earner.

That is unfortunately the characteristic of many Aboriginal people, but I see Lac Seul, this community in particular is turning around with all of the infra-structure that they are putting in the community, the stress on education; young people are becoming and better educated as time goes on. He has also taken a course in traditional lifeskills; The Land Is Our Teacher. He has been abusing alcohol and marijuana over the years.

He admitted his guilt on February 28 th of this year, which is a mitigating factor because the Crown did not then have to call this young complainant, but he freely admitted to the investigating police officer. What is of particular concern is he admits that he is attracted to young females and his behaviour has born that out and the Chief and Council do not want him back until he addresses his sexual deviant behaviour and offending. And what comes to the court mind, is maybe he is a pedophile, maybe he should undergo a phallometric testing, maybe he should attend the course for deviant sexual behaviour.

But because this is a penitentiary term, this court cannot impose those terms on him, so it will be up to R.C. to address those concerns himself and enroll in whatever programs are there. The Crown’s position I am – is that you would like to have a seven to ten year. The position of the defense lawyer indicates that his view is a five year is sufficient. I am of the view that five years is not sufficient in these unique circumstances and I am going to impose a penitentiary sentence of eight years in the penitentiary.

It brings home general deterrence and denunciation and deterrence for this individual and any like-minded individual who may commit these horrendous sexual assaults on a very young child. As I said before, it was a position of trust and he breached that twice in the one month. He has taken no steps to rehabilitate himself and continues to express an interest in young girls. So in these circumstances, eight years is a fit and just sentence. I

am required under the Code to impose a, a, a surcharge of at least two, two-hundred dollars – well was this after October 21 st ? MR. SEIB: No... THE COURT: No... MR. SEIB: ...this pre-dates the... THE COURT: ...no, so all right... MR. SEIB: ...amendments. THE COURT: ...I am not, I am not required to do that, but I do have to for the, a blood test, DNA; how soon can that be done? COURT OFFICER: Today. THE COURT: By today, you will submit the sample of your blood for DNA testing by today. You will also be registered on the SOIRA, Sexual Offender’s Information Registry for a period of 20 years. You will also be, have a

section 161 order; you will not be in the presence of young children, any public place, parks and so on for a period of 20 years. It is going to follow you around and there will be a mandatory weapon’s prohibition of 10 years,

section 109 of the Criminal Code . You will not own, possess or use any firearm, ammunition or explosive device for a period of 10 years. Do you own any firearms R.C.? R.C.: No. THE COURT: No, so that should not be a problem then. All right, was there anything further? MR. SEIB: The one thing I, I asked is that you deduct the time in custody that... THE COURT: Oh, right... MR. SEIB: ...R.C. spent. THE COURT: ...absolutely, I, I had written that down in my notes. You have spent, I calculate six and a half months in custody. MR. SEIB: No, he spent eight months... THE COURT: Is it eight months then? MR.

SEIB: ...eight months, 25 days; five days short of nine months. THE COURT: All right, so I will, I will deduct then nine months from the eight years, so it will be seven point three. I better, I better put it down in months otherwise the people – so he spent eight, eight point five months has he? MR. SEIB: Eight months, 25 days. THE COURT: Well that... MR. SEIB: So five days short of nine months. THE COURT: ...might, why do not we say nine months and so it will be... MR. SEIB: Seven years, three months going forward. THE COURT: ...seven, seven years, three months.

So that is, so that is 39 months for the purpose of the classification officer. All right, that is the sentence of the court. I am well aware that there are some programs in the Federal Institutions to help individuals like you and I am also aware of remission time, but I do not take that into account in your sentencing. The fit and just sentence in these fact circumstances, taking in the aggravating factors as well as the mitigating factors and another mitigating factor is you pled guilty and I already said that and you avoided a, a trial here.

All right, so that is the sentence of the court; you are going to have to go with the, the officer. MISS SCHUCK: And any other charges can be withdrawn. THE COURT: All of the other charges can be marked withdrawn at the request of the Crown and we have all of these exhibits. We will put the, the case as another exhibit; I think it will be exhibit three or four. COURTROOM CLERK: It would be exhibit three and then we could do the PSR as four? THE COURT: I, I put the PSR as number – well I had two number ones; so I will put the... COURTROOM CLERK: Okay. THE COURT: ...yeah it will be number three...

COURTROOM CLERK: Okay. THE COURT: ...and the case will be exhibit four.

EXHIBIT NUMBER 3 : Pre-sentence report – Produced and marked. EXHIBIT NUMBER 4 : M.P. caselaw – Produced and marked. ... ********** EXHIBITS EXHIBIT NUMBER ENTERED ON PAGE 3. Pre-sentence Report 16 4. Caselaw – R. v. M.P. 16 ********** REASONS FOR JUDGMENT 10

Transcript Ordered: November 21, 2013 Transcript Completed: December 23, 2013 Ordering Party Notified: January 3, 2014