2015 MBPC 64, 2015 MBPC 64

Cite # 2015 MBPC 64 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Jacqueline Halliburn for the Crown ) - and – ) ) D. G. H. ) Barry Sinder ) ) for the Accused ) Judgment delivered: ) December 11, 2015 NOTICE OF RESTRICTION ON PUBLICATION : No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or a witness(es) (see s. 486.4 of the Criminal Code ). REDHEAD, P.J. Introduction: [ 1 ] On March 2, 2014, Mr. D. H. attended a police detachment in Wetaskiwin, Alberta and advised that he wished to disclose that he had committed a sexual assault thirty-two (32) years ago in Thompson, Manitoba. Circumstances of the Offence: [ 2 ] In his statement that he provided to the police, Mr. D. H. advised that he was married to Ms. H. H. from 1980 to 1982 and they had a son, J. H. They separated one (1) week before Christmas in 1981. The couple agreed that J. H. would live with his mother but that Mr. D.

H. could see the child anytime he wanted. [ 3 ] In January of 1982, Mr. D. H. had his six (6) month old child over for a visit. Mr. D. H. had been consuming alcohol, became aroused and had an erection. Mr. D. H. inserted his penis into his infant son’s mouth, thinking that “babies like to suck on things”. The infant pushed Mr. D. H.’s penis out of his mouth with his tongue. Mr. D. H re-inserted the tip of his penis into his infant’s mouth and ejaculated. The baby spat it out and began to cry. Mr. D. H. felt immediate remorse for what he had done.

He cleaned his infant, fed him a bottle and put him to sleep. [ 4 ] On July 18, 2014, J. H. now an adult, was provided the information outlining the assault by the Thompson RCMP, along with an apology letter written by his father. J. H. felt that, due to the nature of the assault, that his father should be held accountable for his actions. [ 5 ] On December 1, 2014 an unendorsed warrant of arrest was issued for Mr. D. H. He made his first appearance in custody on December 12, 2014 where he remained until March 3, 2015. [ 6 ] On March 3, 2015, Mr. D.

H. entered a guilty plea to indecent assault and was consent released by the Crown. A pre-sentence

report was ordered and the matter appeared on November 4, 2015 for sentencing submissions. After hearing submissions, the Court reserved its decision. This is a decision with respect to the appropriate sentence to impose upon Mr. D. H. Background of the Offender: [ 7 ] Mr. D. H. is now fifty-eight (58) years old. He self-reported his offending behaviour in May of 2014 after disclosing the abuse to his wife and the Pastor of the church he attends. Mr. D. H. made the decision to report the abuse to the authorities in order to take responsibility for his actions after making a “commitment to Christ” in 2012.

His “inner voice” kept reminding him that he had committed a sin against his son and needed to be held accountable. He believed that it was not enough to keep the abuse between him and God. [ 8 ] He was born in Stonewall, Manitoba and was the eldest of six (6) children. He recounts his childhood as good and he had positive memories growing up in rural Manitoba. His family owned a quarter

section of land with a barn and animals. The family eventually moved to Thompson, Manitoba and Mr. D. H. recounted by the age of twelve (12), his mother began to rely on him more and more to take care of things in and around the house as his father travelled frequently out of town for work. When he was thirteen (13), his mother had complications related to childbirth and fell ill with an infection, which left her in a coma for six (6) months.

His mother was transported to Winnipeg for treatment and his father spent all of his time at work and travelled on weekends to be with his mother. [ 9 ] Extended family members cared for the two (2) younger siblings out of the home and Mr. D. H.’s paternal Grandmother moved into the home to care for him and the other siblings. When his mother came out of the coma, she was paralyzed from the neck down and had short term amnesia. She was never able to walk again. Mr. D.

H. reflected that he kept all his thoughts and feelings hidden and suppressed all this time and recounted that his Grandmother’s philosophy was that “you went to your room to deal with your emotions and you didn’t express them in public”. His father rarely showed any affection and never told the children he loved them. [ 10 ] His parents separated four (4) years after they moved to Thompson and his mother subsequently moved to British Columbia. The children had a difficult time coping with their parents’ separation.

His sister ran away to British Columbia and got into trouble and his brother became involved with a bad peer group and ended up in custody at the Manitoba Youth Centre. Mr. D. H. recounts that he also ended up in custody as a youth for attempted robbery. [ 11 ] He met H. K. in 1980, when he was twenty one (21). She was seventeen (17). Mr. D. H. relayed that he and Ms. H. K. had one child, J. H. There were several issues in the relationship which contributed to its breakdown. There was physical separation between the two as Mr. D. H. travelled back and forth from The Pas to attend school.

There were financial stressors. Ms. H. K. also described the subject as “offbeat” noting he was “strange” and “hard to connect with”. Mr. D. H. maintained contact with his child in the beginning, but eventually J. H. refused to visit and the visits stopped. [ 12 ] Mr. D. H.’s last contact with J. H. was in 2005, when he called him but was told by J. H.’s girlfriend that he did not want to come to the phone. [ 13 ] Mr. D. H. had another relationship with D. P. ten months after his separation from Ms. H. K. They had one daughter from the union, R. F., approximately four years later.

They stayed together for twelve (12) years. He acknowledged physical aggression towards Ms. D. P. on one occasion. They eventually separated in 1994. [ 14 ] In 1996, he entered into another common law relationship for approximately one year. That relationship ended when she had a severe epileptic seizure. She passed away, leaving behind a six (6) year old son, Joshua. Mr. D. H. became the legal guardian of Joshua for three and a half years until Joshua was reunited with his biological father. [ 15 ] Mr. D. H. has a close relationship with his daughter R. F. R. F. has also developed a close relationship with Mr.

D. H.’s current partner, Mrs. T. H., recounting that she calls her “mom”. She has great childhood memories of her father. She is aware of the charges and adds that she does not know details and does not care to know. She states that the charges are uncharacteristic of her father whom she described as “patient, gentle, kind, [and] caring”. She added that the charge will not change their relationship because “everyone makes mistakes” and he has chosen to come forward and “do his time for the crime”. [ 16 ] In 1997, Mr. D. H. started a relationship with Mrs. T. H. She had two (2) children, C.F. and M.

F., from a previous relationship.

Mr. D. H. described the relationship as “awesome” but acknowledged that they have struggled in the past. Mrs. T. H. disclosed that Mr. D. H. assaulted her on one occasion but described it as an isolated incident. [ 17 ] Mr. D. H. has a home in Alberta, where he resides with his step-daughter, C. F., her partner and their three children. However, he has been residing in Winnipeg with his step-son since his arrest due to his bail conditions. Mrs. T. H is currently struggling with serious health issues and Mr. D. H is anxious to return so he can support her. Mrs. T. H also reports that she and Mr. D.

H. are the legal guardians for their two eldest grandchildren. They homeschool their grandchildren and share in the care-giving responsibilities due to her daughter and son-in-law’s work schedules. [ 18 ] When he disclosed the abuse to Mrs. T. H., she was “sickened” and “in shock” and asked for some space. Mr. D. H. moved out. They resumed the relationship six weeks later. She later reflected that it took alot of courage for him to come forward and that she respected him for that. Mrs. T. H. encouraged Mr. D. H. to seek the guidance and support of his pastor. [ 19 ] C. F., one of Mr. D.

H.’s children, described Mr. D. H. as “awesome” indicating that he gave them attention and provided for their nutritional needs. The author of the pre-sentence report gleaned from those comments that Ms. C. F.’s biological father was abusive. Ms. C. F. admitted to being upset after hearing of what Mr. D. H. did to his infant but added that she has no concerns with him having contact with her children. She indicated that there would always be someone home with Mr. D. H. and her children, in any event. [ 20 ] Mrs. D. H. indicated that she believed substances were the contributing factors to Mr. D.

H.’s offending behavior and she does not believe he will offend again. [ 21 ] Mr. D. H. attended elementary school in rural Manitoba and experienced alot of bullying. He was not interested in school and did just enough to get by. He missed half of grade eleven (11) after he was arrested and incarcerated in Winnipeg and left school voluntarily in grade twelve (12) because he no longer wanted to attend. He went back several years later and obtained his G.E.D. [ 22 ] He worked for his father’s taxi cab company after he left school and then got a job with Inco Mines.

He received a journeyman ticket in welding and worked for nearly seventeen (17) years. He left that employment because he felt burnt out and had a breakdown, which resulted in a medical leave. He began seeing a psychologist and was deemed “unfit” to return to work. [ 23 ] He has worked in various jobs in Winnipeg and Alberta occupying several different employment positions.

For the last two years he has been working in Wetaskiwin, Alberta for the Edmonton International Raceway. [ 24 ] He has a limited criminal record, with two (2) convictions in 1976 for attempted armed robbery, theft under and a breach of probation. In 2003, he was convicted of assault. He received community based dispositions for all of his convictions. [ 25 ] Mr. D. H. ranked one (1), or a low risk, on the STATIC-99, which is an instrument to assist in the prediction of sexual and violent recidivism for sexual offenders.

On the Level of Service Case Management Inventory (LSCMI), he also was assessed as a low risk to re-offend. He is viewed as a suitable candidate for community supervision. Victim Impact Statement: [ 26 ] In his victim impact statement, J. H. recounts how he has had difficulty concentrating since he learned of the abuse. He feels embarrassed, angry and has trouble sleeping. He uses substances to cope. He fears what he may do to himself or others because he has trouble controlling his anger. He also has difficulty controlling his anger when he sees how hurt his mother is.

Letters of Support: [ 27 ] Numerous letters from family, the school and his employer were filed in support of Mr. D. H. The general theme of the letters from family members is that Mr. D. H. is a valued and important member of the family. That his family miss him, love him and support

him. [28] In her reference letter, R. F., Mr. D. H.’s daughter, talks about how her ten (10) year old niece looks up to her father forguidance. Ms. C. F. knows that they share a special bond. Her father has helped her grow spiritually. She explicitly states in her letterthat her father has never acted sexually inappropriately towards her. She states that even though she was shocked when she heard whather father had done, she was not surprised that he is doing what is right by admitting what he has done and facing the consequences. [29] R. T. and L.

T. of Edmonton International Raceway, offer their full support of Mr. D. H. as a volunteer and friend, havingknown him for three (3) years. He has never shown any inappropriate behaviour towards children or others. He volunteers at theraceway during race days and whenever he is asked to. Mr. D. H. was honest with them about his charges and his release conditions.They are aware that he is very supportive of his family and that his wife has a number of medical challenges. [30] Ms. L. L., of Ecole Parkdale Elementary School, states that she has been asked by Mr. D.

H.’s grandchildren to write a letter ofsupport for their Grandfather. Ms. L. L. has been involved with the family since September of 2014 due to their special needs. Shedescribed Mr. D. H. as a supportive grandparent who was heavily involved in their day to day living and that he regularly attends parentsessions. She shared that the children are having a difficult time with the physical separation from Mr. D. H. and that they miss hissupport and involvement. [31] Dr. Fields of The Allin Clinic, has also provided a

summary of Mrs. T. H.’s medical condition. He indicates that she hasCrohn’s Disease, which is currently active. She also has a history of vulvar cancer and there was some evidence of recurrence on a recentbiopsy which will require follow up. In addition, she has long standing issues with depression and anxiety requiring medication. Shestruggles with chronic pain due to osteoarthritis and fibromyalgia. Her condition is not entirely stable and she requires on-going medicalattention.

Position of the Crown: [32] The Crown is seeking one (1) year of custody (minus his time already served) followed by three (3) years of supervisedprobation, DNA and a SOIRA order. [33] The Crown filed and relied on the following cases in her submissions: R. v. Storheim 2014 MBQB 141, 2014 CarswellMan334, [2014] M.J. No. 211, 115 W.C.B. (2d) 298; R v. R (G.W.), 2011 CarswellMan 391, 2011 MBCA 62, [2011] 10 W.W.R. 16, 268Man. R. (2d) 204, 520 W.A.C. 204, 95 W.C.B. (2d) 700; R. v. James 2013 CarswellMan 53, 2013 MBCA 14, [2013] 5 W.W.R. 124,[2013] M.J. No. 48, 105 W.C.B. (2d) 491288 Man.

R (2d) 269, 564 W.A.C. 269; R. v. R. (A.) (MB CA), 1994CarswellMan 114, [1994] 4 W.W.R 620, [1994] M.J. No. 89, 23 W.C.B. (2d) 21, 61 W.A.C. 183, 88 C.C.C. (3d) 184, 92 Man. R. (2d)183; R. c. B. (G.) 2005 CarswellNB 408, 2005 CarswellNB 409, 2005 NBCA 72, [2005] A.N.B. No. 291, [2005] N.B.J. No. 291, 201C.C.C. (3d) 77, 288 N.B.R. (2d) 82, 751 A.P.R. 82. [34] In R. v. Storheim 2014 MBQB 141, 2014 CarswellMan 334, [2014] M.H. No. 211, 115 W.C.B. (2d) 298, the accused wassentenced to eight (8) months custody after he was convicted of a historic sexual assault.

The accused was a priest and the complainantwas an eleven (11) year old altar boy. The accused put his hands on the area of the complainant’s penis, in the guise of looking for pubichair. He also invited the complainant to touch his testicle, which the complainant did. The accused had no record. Despite the mitigatingfactors, the accused abused his position of trust and the Court found evidence of grooming and trickery. A jail sentence was appropriatein order to properly address the principles of denunciation and deterrence. [35] In R. v.

R (G.W.), 2011 CarswellMan 391, 2011 MBCA 62, the accused plead guilty and was sentenced to four (4) years forsexual interference and one (1) year concurrent for a breach of probation. The accused put his hands down the front and back of thecomplainant’s pants, attempted to touch the complainant’s vagina under her underwear, and touched her breasts underneath her bra. Theaccused appealed the sentence but the appeal was dismissed. The Appeal Court found that the sentencing judge erred in considering afact that was not before him.

However, the Appeal Court ultimately found that the sentencing judge came to the correct decision insentencing the accused. The accused had a significant criminal record and minimized his behaviour. [36] In R. v. James 2013 CarswellMan 53, 2013 MBCA 14, 105 W.C.B. (2d) 491, [2013] 5 W.W.R. 124, 288 Man. R (2d) 269, theaccused plead guilty to sexual assault and was sentenced to two (2) years incarceration after credit for five (5) weeks of pre-trial custody.The accused had already served sentences for similar offences committed upon three (3) other individuals around the same time as these

offences. The complainants were fifteen (15) years old and the acts escalated in frequency and severity and continued for years until thecomplainants left. The accused had served his sentence twelve (12) years earlier and had not re-offended. The accused had voluntarilycompleted intensive sex offender therapy while in custody and voluntarily delayed his parole to complete the sessions. On appeal, theCourt found that a fit sentence would be four (4) years for each offence to be served consecutively but given the accused’s record andprospects, a five (5) year sentence was imposed. [37] In R. v.

R. (A.) (MB CA), 1994 CarswellMan 114, [1994] 4 W.W.R 620, 88 C.C.C. (3d) 184, 92 Man. R.(2d) 183, the accused was convicted of having sexual intercourse with his thirteen (13) year old daughter in the early 1970’s. At thetime of sentencing, he was seventy-one (71) years old, was wheelchair bound, had muscular dystrophy and required round the clockattention. The trial judge sentenced the accused to thirty (30) months imprisonment.

The accused appealed his conviction and sentence.The conviction appeal was dismissed but the sentence appeal was allowed and a suspended sentence of two (2) years supervisedprobation was imposed. The Court found that although the offence merited imprisonment, the accused had no criminal record and hishealth was failing. General deterrence was not impaired by failing to send a muscular dystrophy sufferer to jail. Denunciation wasachieved by applying the stigma of a conviction for a repugnant offence. [38] In R v.

B. (G.) 2005 CarswellNB 408, 2005 NBCA 72, 201 C.C.C. (3d) 77, 288 N.B.R. (2d) 82, 751 A.P.R. 82, the accused wasconvicted of sexual interference and the accused’s sentence included mandatory firearm prohibition order pursuant to s. 109 of theCriminal Code. The accused appealed the firearm prohibition arguing that the order should not have been granted because violence wasnot used, threatened, or attempted in commission of the sexual acts. The Court found that there was no error in the issuing of theprohibition order as the sexual act with an adult was a violent assault on the well-being of the child.

The sexual integrity of the child wascompromised and this form of sexual abuse constituted violence in and of itself. [39] The case law submitted by the Crown are all factually different from the present case, but she highlights several relevantprinciples which are applicable to all sexual offence cases involving the abuse of children. She also points out that although this is ahistoric offence, Mr. D. H. receives the benefit of relying on the sentencing regime that was in place at the time of the offence.

However,the Court must apply the sentencing principles that exist today. [40] In support of the Crown’s position that a sentence of twelve (12) months is appropriate, she relies on the case of R. v. R (G.W.),which was cited by Mainella J, at paragraph 75 of his decision in Storheim, where he states: [75] “In R. v. R. (G.W.), 2011 MBCA 62 (Man. C.A.) at paragraphs 33-34, (2011), 268 Man. R. (2d) 204 (Man.

C.A.), a case involvingone incident of the touching of the buttock and vagina of a nine-year-old girl by a friend’s father, the Court of Appeal cited, withapproval, sentences in the range of 12-27 months for first offenders who fondled or touched the genitalia of a child on one or twooccasions. It is important to note that the range of sentence cited with approval by the Court of Appeal included cases where there was abreach of trust for which s. 718.2(a)(iii) of the Criminal Code would apply and cases where there was no breach of trust.

The ultimatesentence in R. (G.W.) of four years is not relevant to this case as the accused there had a prior-related record.” (at para. 75) [41] The Crown urged the Court not to impose a sentence of anything less than twelve (12) months in order to address the principlesof denunciation and deterrence. Furthermore, the Crown emphasized that a further jail sentence is required and relies on the comments ofCarlson, J, in James, where she states at paragraph 114, point 5, that: [114]...5.

But, the seriousness of the offences, and the need to address general deterrence and denunciation, do require a further jail sentence. The lapse of time, even with demonstrated rehabilitation, does not makeinappropriate the principles of general deterrence and denunciation. (at para. 114) [42] The Crown submitted that the young age of the complainant (6 months) was particularly aggravating because he was dependenton his care-giver to protect him.

Furthermore, that as a parent he was in a position of trust, and that he was intoxicated and alone whilecaring for his infant son. [43] The Crown viewed the brief hesitation of Mr. D. H. in providing a statement as mitigating as she believed his pause was a signthat Mr. D. H. did not want to further traumatize his son. The Crown further acknowledged several other mitigating factors, as follows:extreme remorse, his confession and accompanying guilty plea, and his youthfulness at the time of the commission of the offence. [44] The Crown submitted the case of R. v.

B. (G.), as support for her submission for a weapons prohibition order. However, when

making her submissions, she informed the Court that she re-considered and would no longer be seeking a weapons prohibition order. Position of Defence: [ 45 ] Defence has submitted that a conditional sentence of no more than a year would be appropriate and has submitted the case of R. v. D. , 2015 ONSC 4204 , in support of his position on sentencing. [ 46 ] In R. v. D. , the accused was found guilty of three (3) counts of sexual exploitation and one (1) count of sexual assault on his daughter.

The offences consisted of: measuring the complainant’s breast, waist and hips under the guise of requiring the measurements for clothing purchases; touching the complainant’s vaginal area with a vibrator; and purchasing a sex toy for the complainant, again, under the guise of discouraging her from engaging in sex with boys. The accused encouraged the complainant to use the sex toy and showed disappointment when she did not. He also offered to provide a demonstration on how to use them. [ 47 ] There were several aggravating factors in R. v. D. , namely:

i) the accused was in a position of trust and authority; ii) the complainant was fourteen (14) years of age; iii) the complainant was in the accused’s sole care; iv) the fact that the accused used anger and rage to control the complainant, even though there was no overt violence;

v) the accused was unrelenting in his sexual abuse of the complainant; vi) the accused continued to invade the complainant’s privacy and personal space and ignored her requests not to enter the bathroom when she was in the shower; vii) the accused was psychologically manipulative towards the complainant and tried to disguise his abuse as “education”, which furthered the trauma and psychological distress; and viii) the accused showed little insight into the effects of his abuse of his daughter. [ 48 ] The mitigating factors were that the accused had no criminal record, was a contributing member of society and he was a low risk to reoffend.

In sentencing the accused to a conditional sentence order of two (2) years less a day, the Court recognized the degree of sexual abuse and took into account that the accused’s risk of re-offending was very low. [ 49 ] Defence submits that the case he submitted had several aggravating factors, which included: a conviction after trial, the offence consisted of multiple acts committed on the thirteen (13) year old complainant and the accused in that case even suggested that the complainant was lying in spite of the conviction. [ 50 ] Defence also highlights that the caselaw submitted by the Crown also dealt with convictions after trial, which is not what we have in this case. [ 51 ] Defence submits that the offence has had tremendous impact on Mr.

D. H. and his family. After he disclosed the information to his wife and his pastor, he made the decision to report the abuse to the authorities. He had no lawyer in mind and he had no idea of what the process would involve. After he was provided the opportunity to speak to a lawyer, he was told that there would be consequences. As he was residing in Alberta, he would be returned to the place of the offence. Despite being told this information and in spite of advice of counsel, he returned to the detachment the next day and provided a confession. Is A Conditional Sentence Available?

And if so, is it appropriate? [ 52 ] Conditional sentences were introduced as a sentencing option in 1996. Amendments introduced by Parliament years later have significantly reduced the offences for which conditional sentences are available. A conditional sentence would not be available today for any sexual offences involving children.

[ 53 ] From 1982, sexual offences involved maximum sentences of ten (10) years. Sexual interference was not an offence that existed at that time and Mr. D. H. was charged and plead guilty to s. 156 of the Criminal Code of Canada , which stated: “Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years.” [ 54 ] The Crown conceded that Mr. D. H. has the benefit when there is a change in the law pursuant to s. 11(

i) of the Canadian Charter of Rights and Freedoms , which provides: s. 11. Proceedings in criminal and penal matters - Any person charged with an offence has the right (

i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. [ 55 ] The Supreme Court of Canada in R. v. Proulx , outlined three (3) pre-conditions for the imposition of a conditional sentence: (

i) there must be no minimum term of imprisonment; (ii) the sentence must be one of less than two (2) years; and (iii) the safety of the community must not be endangered. [ 56 ] I am satisfied that a conditional sentence is an available sentence in this case as there was no minimum term of imprisonment for indecent assault, counsel are both asking for custody of less than two (2) years and Mr. D. H. is not a danger to the community.

I will now need to consider if a conditional sentence is appropriate. [ 57 ] The Crown submits that a conditional sentence would not meet the objectives of denunciation and deterrence in this case and relies on the comments of Mainella J, where he states in R. v. Storheim 2014 MBQB 141 , 2014 CarswellMan 334, [2014] M.H.

No. 211, 115 W.C.B. (2d) 298 at paragraph 70 : [70] “In my view, the objectives of denunciation and general deterrence required the incarceration of the accused despite the mitigating factors, particularly his lack of criminal record, exemplary service to his church and wider community for many years and the consequence to his reputation and very public shame this offence has brought him. The accused was a mature offender at the time of the offence, the offence was a gross abuse of trust and the lasting effects of this crime on the victim are serious.

A conditional sentence, even a long one with punitive conditions beyond just house arrest, would not only fail to reflect the objectives of denunciation and general deterrence in the circumstances, but would not be proportionate given the gravity of the offence and the accused’s degree of responsibility (s. 718.1). I reach this conclusion taking into account sentencing objectives and principles that favour a conditional sentence such as the principle of restraint.” (at para. 70) [ 58 ] However, Storheim is very different from the present case.

Storheim was a conviction after trial of an offence that had far reaching psychological impacts for the complainant. In addition, the Court found as an aggravating factor that the complainant had been “groomed”. As a result, the judge was of the view that a conditional sentence would be disproportionate to the seriousness of the offence and the degree of responsibility of the offender. [ 59 ] In the present case, we have an offender who let his conscience guide him in his need to be held accountable. But for Mr. D.

H.’s disclosure and accompanying guilty plea, the offence would not have come to light as there were no witnesses. And although the offence which Mr. D. H. committed against his own child is repugnant, he has taken responsibility and admitted his guilt, notwithstanding that the Crown had no case against him without his confession. [ 60 ] Regarding the psychological impacts on the complainant in this case, the Crown submitted that the complainant has now found himself in conflict with the law. He was serving a conditional sentence order which has been terminated because he consumed alcohol

when he learned of the abuse. [ 61 ] The Crown submits that caselaw makes it clear that denunciation and deterrence are the primary sentencing considerations in cases which involve abuse of children. These considerations are codified in sections 718.01 and 718.2 of the Criminal Code , which state: S. 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. S. 718.2 A court that imposes a sentence shall take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances related to the offence or the offender, and, without limiting the generality of the foregoing, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years. [ 62 ] Mr. D. H. had first disclosed the abuse to his wife and pastor. He then went to the RCMP. When he was given his rights, he paused because he was not aware that his son was going to be notified. Mr. D.

H. was notified at that time that he was going to be taken away from his wife that has on-going health issues, his children and his grandchildren and that there were going to be significant consequences to him. Mr. D. H. never downplayed the seriousness of the offence and even though this was a son that he had no contact with for many years, he felt extreme remorse decades later. [ 63 ] When I asked Mr. D. H. if he had anything to say, he stated that he regretted what he had done and that he had to be “sick” to have done it.

He was open to taking counselling and added that accessing a service is not easy for someone who just comes in off the street. [ 64 ] Although I generally agree that conditional sentences would not be appropriate in child abuse cases, the facts in this case are rather unusual and unique. What we have is an offender who has self-reported abuse where there were no other witnesses. He and his family have faced tremendous hardship and grief as a result of his guilty conscience and his need for redemption in the eyes of a higher power.

He was prepared to face the consequences of his disclosure and to be held accountable. Despite this, he has the overwhelming love and support of his family and friends. He is a low risk to re-offend, he has pled guilty, and has shown extreme remorse. [ 65 ] A conditional sentence would address the principles of sentencing and in particular, proportionality, which is a fundamental principle of sentencing.

Having considered the offence, the offender, and the principles of sentencing, I am of the view that a fit and proper sentence is nine (9) months custody, to be served conditionally. “Original Signed by” REDHEAD, P.J.