R. v. B.H., 2023 ONCJ 539

CITATION: R. v. B.H., 2023 ONCJ 539 DATE: September 19, 2023 Information No: 21-3967-00 22-61100600-00 ONTARIO COURT OF JUSTICE HIS MAJESTY THE KING v. B.H. R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE, JUSTICE B.E. PUGSLEY on September 19, 2023, at ORANGEVILLE, Ontario An order has been made under s. 486.4 of the Criminal Code directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. APPEARANCES : R. Levan Appearing for the Provincial Crown I. Kilgour Counsel for B.H. REASONS FOR SENTENCE Pugsley, J. (Orally): B.H. is before the court for sentencing on three charges. One,

section 271 of the Criminal Code , sexual assault on A.H.; 2) sub-

section 163.1 paragraph 2 of the Criminal Code , make child pornography; and 3) sub- section 86(1) of the Criminal Code , careless storage of a firearm.

The defendant pled guilty to the first and second of these charges and was found guilty after an abbreviated trial on the third charge. An Agreed Statement of Fact formed the basis for the conviction on the first and second count, and a Supplementary Agreed Statement of Facts set the Crown case in the third count. The first two counts are based upon very serious admitted criminal acts. The third count was founded on the discovery of an unsafely stored firearm during a police search of the residence where the Defendant lived with his parents.

The victim of the sexual assault charge, and the subject of the making of child pornography charge, was the defendant's 16 year old daughter. The events took place when the victim and her younger sister were having an access visit with the defendant. The defendant provided the victim alcohol and she became drunk. He took her to her bed where he removed her clothes. He then commenced sexually assaulting her.

He posed her on the bed and recorded on video and audio, several acts of sexual assault upon her, including: digital penetration of the victim's vagina; performing cunnilingus upon her; digitally penetrating her anus; touched, fondled and kissed her breasts; placed her hand on his penis, and rubbed his penis on her vagina. The victim reported the assaults to her mother early the next morning. She was taken to the hospital and a sexual assault examination was conducted and her clothing was seized. She then provided a video and audio recorded statement detailing the assaults.

During her statement she also noted that, from time to time, her father would show her pornographic images that other persons had sent to him. As far as she could tell, these images were all of adults. The defendant was arrested the same afternoon and his cell phone was seized. The phone was searched pursuant to a search warrant and the search revealed six still photos and four videos of the victim being sexually assaulted by the defendant. The photos and videos show that the defendant posed the victim in various positions, and in one photo added a stuffed animal as a prop.

The videos documented his sexual assault of his child. During the search of his residence an unsafely stored .22 calibre rifle was seized. The defendant is not licensed to possess a firearm. The defendant directed the police to the rifle upon his arrest. The rifle was found behind the door of a child's bedroom and had no trigger lock. It was not loaded. Another rifle was seized but the defendant was acquitted on the other firearms related charge. There were more than 117,000 pornographic images on the defendant's cell phone. There were six child pornographic images in addition to the images of the victim.

A victim impact statement was provided by the victim's mother. The statement graphically underlines the completely devastating effect of the defendant's acts upon the victim, her sister and upon the family. The victim has suffered profound and long lasting emotional and mental health effects including repeated self-harming behaviour. The statement notes that the pending nature of the upcoming trial added to these burdens. The defendant's decision to plead guilty only came at the start of the trial, where the victim was scheduled to testify.

She is in need of medication and therapy, which has tried to undue the harm caused by the defendant. As the victim's mother related, the trauma of the assaults has changed the victim for the rest of her life.

A pre-sentence report and a Gladue report were prepared and filed. B.H. is an indigenous man with roots in the Beausoleil First Nation. His mother related many struggles in her childhood. In retrospect, it is clear that some of these struggles were directly related to her indigenous heritage. B.H. didn't know much of his native Canadian heritage until later in his life, when his mother and his extended family obtained status cards. He notes that part of not knowing about his heritage has contributed to a lack of a feeling of belonging to a community.

As the report notes, this is not an uncommon experience for members of the native Canadian community. The report notes that the defendant was a victim of a criminal assault as a child, that he does not wish me to detail. The report does detail struggles reported by the defendant with his mental health as an adult leading to obtaining therapy and medication. He reported being assaulted by his former spouse who was charged. He had access to the children and described his relationship with them.

He noted issues with his mental health and addiction (as he described it) to pornography and alcohol issues at the time of his arrest. The defendant described undergoing medical treatment and psychotherapy after his arrest. When contacted for the purpose of completing the report, the therapist was unaware of the defendant's charges. The defendant reported having no memory of what is described as "the incident." He voiced remorse and regret. A number of recommendations are set out in the Gladue report with regard to resources available to the defendant after his release from custody.

There is no indication in the report that the author was aware of the facts of what is described as "the incident", nor that the victim indeed was the defendant's child. A pre-sentence report was completed and filed. The personal background information includes a reference to the defendant's disclosure that his daughter is the victim of the two charges. The defendant related that he drinks alcohol at home while alone and is an occasional drinker. He stated he could not recall the events of the current offences as he was too intoxicated at the time.

He is said to be amenable to counselling and he is under a doctor's care for anxiety and depression. The defendant expressed his remorse for his acts. I've had the benefit of careful submissions by both counsel, and a number of cases have been referenced, which set out sentences on other facts with other defendants. The Crown seeks a global sentence of nine years in the penitentiary and multiple ancillary orders. The defence submits that a lesser penitentiary term is appropriate, given the defendant's native Canadian status, his mental health issues and his plea of guilt.

The cases cited by both counsel serve to underline the range of sentences for other persons being sentenced for not unsimilar

offences. Each case was decided on its own facts and with regard to each individual defendant. Such cases provide guidance, by example, but it is a rare case that can be exactly fitted to the facts of an individual sentencing. Instead, the court receives guidance from the appellate courts of Canada and from Parliament by the provisions of the Criminal Code . For example, Gladue and Ipeelee provide direction from the Supreme Court of Canada on the requirement to consider the defendant's aboriginal heritage when crafting a proportionate sentence. This direction is given force of statute via paragraph 178.2(

e) of the Criminal Code . The Crown submits that there is no real evidence linking the defendant's aboriginal heritage to the notorious and broad ranging effects of the historical mistreatment of Canadian First Nations and Metis individuals. I find that this understates the role of a person's status as an indigenous person on the entire sentencing process. As the Gladue report notes, there is a profound intergenerational effect of decades of ill-informed colonialistic and paternalistic policies on countless native Canadian individuals.

Including effects on persons who, in part, because of those policies and racism, have been disconnected from their own heritage. This defendant's own experience parallels that shared experience and I consider his heritage and the Gladue reports recommendations when I approach his sentencing. It is disquieting that the reference to the defendant's remorse, as expressed in the report, and to his therapist, is disconnected somewhat by two factors. First, the defendant's statement, repeated in the pre-sentence report, that he did not recall the crimes to which he has pled guilty.

And second, that his therapist, who related in the Gladue report the defendant's remorse, did not know of his criminal convictions at all, but nonetheless related his remorse. It is not unknown for an accused to downplay his or her culpability due to factors such as intoxication or lack of memory, but this is gainsaid by the agreed statement of facts here.

The defendant may not want to admit to himself and to others how he came to commit these offences, but the facts, including the careful posing of the victim, and the actions required to take photos and make videos of her during his acts of sexual assault, disclose a fully functioning defendant perpetuating particularly vile sexual assaults on an essentially comatose victim. These photos and videos were preserved presumably for his future titillation. This is not the act of a person too drunk to know what happened nor was that ever offered as a defence.

The comments and information provided by the defendant's family in both reports, while helping me understand his personal and indigenous circumstances, are not helpful where it comes to the steps leading up to these offences. Whether this is by choice or because they have not been told of the facts in detail is not clear. I appreciate the information they have provided as general background for the defendant. I doubt that anyone but the defendant can ever know why he did this to his daughter.

The victim impact statement is a sad and chilling reminder of the legacy of such sexual behaviour by trusted persons towards vulnerable children. As the victim's mother relates, it is clear that the victim's future path in life was profoundly changed in an instant by the actions of her father. Children are entitled to look to their parent as a protector, not as a perpetrator of criminal acts upon them. The absolute betrayal of trust by her father can only have life long consequences for the victim.

The victim impact statement notes the long wait for what the victim expected was going to be the ordeal of a trial of her father on profoundly embarrassing and traumatic evidence. In the end, she was spared this by the plea entered by the defendant, but as the Crown

notes, on the very morning when the trial was about to start. The Crown submits that the credit due to a defendant for a guilty plea is absent or at least diluted by the timing of the plea. Further, it is submitted that on the evidence a conviction was somewhat inevitable here. The defendant submits that it was only on the morning of the trial that he actually viewed the videos that he had made of his sexual assault upon the victim and that when presented with that video he immediately decided to plead guilty.

This scenario leads me to question why the defendant, who was out of custody, could not have attended upon the police station to view this conclusive evidence long before the trial date was set. I am told that counsel at the trial was not the original defence counsel and it may be that this step was not taken due to COVID concerns or for other reasons that are protected by the solicitor and client relationship. Clearly, the defendant's path through the courts would have been better served had he viewed the video as opposed to it being described in words at an earlier date than the morning of the trial.

Given what I know about the defendant from these two reports, I cannot visit the decision to view the video at the last minute upon the defendant himself. I therefore do give him credit in mitigation for his plea of guilt. Also, in mitigation is the impact of his native Canadian heritage. I find that the separation of this defendant from his community has, at its root, the colonial and racist policies of successive Governments visited upon the first citizens of Canada. As I must, given case law and

section 718.2(

e) of the Code , I reflect on his personal circumstances and those of his wider indigenous community in the calculus of the appropriate sentence to be imposed here. Further, the defendant has no criminal record of any nature. Also, in the Gladue report, there are references to his own past experience as a victim although there is no medical or psychological evidence to connect that experience to these offences, nor is there a report from his therapist.

I accept that the defendant has suffered from anxiety and depression and is under a doctor's care for that, and that facilities exist in his community to help him reconnect with his First Nations heritage, should he wish to do so. I note and apply the factors set out in the Criminal Code at

section 718 and following, and in particular, first: Under

section 718(a): that the defendant's unlawful conduct must be denounced; (

b) that the defendant and other persons must be deterred from committing these offences; (

c) that this defendant must be separated from society; (

d) that I find that there is a good prospect of rehabilitation of this defendant upon his release from custody; (

e) that there be reparations by the defendant for the harm he has done to the victim and her family; and (

f) to promote a continued role of the defendant to take responsibility for his offences and acknowledge the harm he has done to the victim and her family. In this regard, the defendant's realization of what he did, knowingly, is to be promoted. These offences were not committed by a drunk with diminished capability and culpability. Second,

section 718.01, these offences were committed upon a person under the age of 18 years such that again denunciation and deterrence are to be the primary consideration on sentencing.

Third,

section 718.1, proportionality is applicable and the sentence should proportionate to the gravity of the offence and the degree of responsibility of the offender. Here, there are few graver offences than to make your child drunk to the point of being comatose, disrobe her, sexually assault her numerous times, and video tape those assaults. The degree of the defendant's responsibility is 100 percent. Fourth, sub-paragraph 718.2(a)(ii), the defendant abused his child; and sub-paragraph 718.2(a)(ii.1) that child was under age 18. Sub-paragraph 718.2(a)(iii) the defendant was in a position of trust to the victim.

Indeed the ultimate position of trust as a father to a comatose child. Sub- paragraph 718.2(a)(iii.1) the impact of the offence upon the victim. The impact was profound and long- lasting, and life changing. Fifth, sub-paragraph 718.2(b), proportionality to the sentences of other offenders and similar offences. I note the range of sentences referenced by counsel in the cases that were filed. I also note the application of the Supreme Court of Canada decision in R. v.

Friesen 2020 SCC 9 : Sentences for sexual offences against children should increase to give effect to society's increasing recognition of the harm of such sexual assaults and the decision of parliament to increase the maximum sentences. Applying Friesen changes the application of proportionate sentences in cases decided before the release of Friesen . In the circumstances of this offence, the maximum available sentence for sexual assault is ten years, and for making child pornography is 14 years. Sixth, sub-paragraph 718.2(c), where consecutive sentences are imposed, the total should not be unduly long or harsh.

Here, the delicts of the first two offences are different and require consecutive sentences. Seventh, sub-paragraph 718.2(d), incarceration should be the last resort. Here, both counsel understand that incarceration is required. Friesen underlines this as well. Eighth, sub-paragraph 718.2(e), with a particular reference to the defendant's status as an aboriginal offender. I've already noted some of the historical circumstances that lead to this sub-paragraph by way of Gladue and followed in Ipeelee . I must consider these circumstances in this sentencing when I consider the proportionate sentence here.

Both landmark cases in the Supreme Court of Canada make it clear that there is no disconnect between native Canadian communities and such concepts as denunciation, deterrence and separation, and that the more violent or otherwise serious the offence, the more likely it will be that a sentence for an aboriginal defendant and a non-aboriginal defendant, on the same facts, would approximate each other.

From the Gladue report, it seems clear that whether he knew a lot about his native Canadian heritage or not, many of the traits seen in the defendant, and the ancestorial path that led to his existence, do obviously parallel common aspects of the journey travelled by

indigenous persons throughout the history of Canada. In short, there is a Gladue aspect to his circumstances that it is necessary to give effect to and I will do so. Both counsel recognize the seriousness of the first two offences by noting the availability and indeed requirement of a penitentiary term, although they are far apart in the total presented. It is to be hoped that while he is in custody the defendant will avail himself of the counselling and indigenous programs available to him in the institution. A connection to his native heritage and his native community may greatly assist him in the future.

During his arrest the defendant told the police about two firearms. One of those, the .22 rifle, was unsafely stored and the defendant was convicted of that offence. The Crown properly seeks a concurrent sentence. In my view, the compelling guidance for me here lies with Friesen , modified by Gladue . The range of sentence for a sexual assault on a child under age 18 would normally be in the mid single digit range in the penitentiary. Here, beyond that range, two factors require a higher sentence. First, the sexual assault was by the child's father and was a profound and disturbing breach of trust.

The offence was solely for the sexual gratification of the defendant. It was not a single act, but rather multiple acts. The effect upon the victim was crushing. The defendant assisted in the intoxication of his daughter. Second, the sexual assaults were recorded as photographs and as videos, a profound recurring and repeated violation of the victim's privacy and bodily integrity. The photos and videos were staged. The defendant recorded his sexual assaults, presumably to review and relive them later for his own sexual gratification.

On a Friesen analysis, a higher single digit penitentiary is more than justified. As noted earlier in the serious criminal circumstances such as these offences, a Gladue informed sentence and a sentence imposed upon a non-indigenous offender might become essentially the same. I am grateful for the helpful background information provided by the author of the Gladue report, not just concerning the defendant's personal and ancestral circumstances, but also information that reminds me of the cultural, racist and national policies visited on all those of native Canadian heritage.

The report has convinced me that I must apply the Gladue principles here by reducing the otherwise proportionate sentence accordingly. I consider the Crown's submission as to sentence both appropriate and measured on these profoundly disturbing facts. I do not however sentence the defendant as the Crown submits. I'm going to ask you to stand up now, please, Mr. H. On the sexual assault, the sentence is that you will be incarcerated for five years. On the making child pornography, you are sentenced to two years consecutive.

On the careless storage of a firearm, you are sentenced to six months to be served concurrently. The total sentence is therefore seven years.

Step into custody for the remainder of the sentence, please. Into the box, please. In addition, there are ancillary orders that were undisputed. Under

section 743.21 the defendant will not communicate with the victim A.H. directly or indirectly while serving the sentence. Second, a SOIRA order will issue for 20 years. Third, the defendant shall forthwith provide a sample of his DNA to the National DNA Databank. Fourth, under

section 109 of the Criminal Code , the defendant shall not posses any firearm, ammunition or explosive substance for life. Fifth, there will be a forfeiture order in the form provided by the Crown. The Crown at one stage mentioned seeking a

section 161 order. Here, the victim was not under the age of 16 and therefore such an order is not available under that

section as I read it. The other counts? MR. LEVAN: Marked as withdrawn, please. THE COURT: The other charges are withdrawn. Anything I have forgotten? No? MR. KILGOUR: No, Your Honour. MR. LEVAN: Your Honour, I do note the Crown's request was for A.H. and her sister in terms of the non-communication, but I heard Your Honour on Ms. H. – pardon me, A.H. only, correct? THE COURT: Yes. MR. LEVAN: Thank you. THE COURT: All right. I'd like to thank counsel for your assistance. There will be paperwork to be made shortly. And part of that is to obtain a DNA sample downstairs.

Form 3 Electronic Certificate of Transcript (Subsection 5(2)) Evidence Act I, Barbara Thompson , certify that this document is a true and accurate transcript of the recording of, Rex v. B.H. , in the Ontario Court of Justice, 10 Louisa Street, Orangeville, Ontario , taken from Recording No: 0611 101 20230919 085853 6 PUGSLEB , which has been certified in Form 1. November 10, 2023 Barbara Thompson, A.C.T. (Date) Electronic Signature of Authorized Person A.C.T. #6014683207, Ontario, Canada.