) Ms. R. Malaviya ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. G. Clay - v. -, 2011 MBPC 86

R. v. J.R.A, 2011 MBPC 86 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. R. Malaviya ) for the Crown HER MAJESTY THE QUEEN ) ) Mr. G. Clay - and - ) for the Accused ) J.R.A., ) ) Sentence delivered Accused. ) October 14, 2011 An Order was made under s. 486.4 of the Criminal Code that the identity of the complainant or any other witness and any information that could disclose the identity of the complainant shall not be published in any document or broadcast in any way. PRESTON, P.J. (Orally) J.R.A. has pleaded guilty to sexually interfering with his young daughter.

He has also pleaded guilty to breaching a court order not to contact his children. The first charge began in January of 2007 when his daughter was a mere infant of four years. She disclosed to her mother that she, his daughter, had “licked her dad's penis”, in her words. When J.R.A. was confronted by his wife, he claimed that he was undressed and his daughter had licked his penis out of the blue, explaining that his daughter said it was in imitation of their pet dog.

Hearing this bizarre explanation, his wife promptly contacted Child and Family Services and after an investigation, Child and Family Services deemed the incident “inconclusive”. Unfortunately, that was the beginning of the matter. On numerous occasions over the next three years or so, J.R.A. had his daughter fellate him. Thankfully, in the fall of 2010, his daughter, who was by then eight years old, disclosed to her mom that she, his daughter, had sucked her father's penis. Her mother once again contacted Child and Family Services.

This time the police became involved and in the victim's statement to the police, J.R.A.'s then eight-year-old daughter described sucking her father's erect penis which was sometimes "wet and sticky" and sometimes "tasted bad". She, in her childlike way, explained to the police that she once timed her activity through an episode of “SpongeBob SquarePants”. I was told by his lawyer today that the incidents were, in J.R.A.'s recollection, five to ten minutes in duration. During the years when these crimes were committed, J.R.A. was a stay-at-home dad.

Since he was not employed away from the family home, he was ostensibly the caregiver for his four infant children while his wife was at work. I say “ostensibly” because he was actually responsible for three years of sexual abuse of his daughter. I was told that rather than consistently nurturing his children, he was actually ensnaring her in his perversion. When confronted by his wife, most recently in the fall of 2010, he initially claimed it happened a long time ago. This of course was not true.

Upon his arrest, he did tell the police that the fellatio occurred every two to three months and that is what he is telling the court now. He claimed that the last occurrence was in May of 2010, but he does admit that the abuse spanned a period from January of 2007 to May of 2010. When he admitted his involvement to his wife and also to the police, he also wrote his then eight year old daughter that, “It was not her fault”. However, as would be obvious to almost anyone, damage was already done.

In fact, J.R.A. had told his daughter during some of the times he had her fellate him, that she was not to tell anyone or, as his daughter said, “Daddy would be taken away in handcuffs.” As he says, she was not to tell anyone or he would be in trouble: either way, a veiled threat to a child and a crass

manipulation of a most self-serving kind. His eight-year-old daughter, not surprisingly, now believes that she is responsible for the break-up of the family and that she is responsible for her father being in jail. At the conclusion of her statement to the RCMP, she plaintively asked the investigating officers, “How do you fix me to get this out of my head?” After his arrest, J.R.A. was released on bail with an order to have no contact with his children. Unfortunately, shortly after his release and at his wife's request, he commenced babysitting and doing chores around the family home.

A contested sentencing hearing was held to try to determine what had occurred approximately a month after his release from custody. This was November 23rd, 2010. On that day, the Child and Family Services workers, in the course of their investigations, found J.R.A. at the family home in the presence of his daughter and in breach of his court-ordered recognizance to have no contact with his children. The workers, who were making a home visit, encountered him sitting in the family van with his daughter, the victim.

Two workers testified they were on a home visit and they drove up the driveway of the family home, saw J.R.A. in the driver's seat of the van and also saw the victim in the front passenger seat. They then asked J.R.A. where the other three infant children were and he told them they were “not home”. The Child and Family Services workers took the eight-year-old victim into their care, away from him, in their vehicle in order to drive her to a safe destination.

As they were driving away with her, they asked the victim where the other children were and the victim told the workers that the children were in fact at the family home. So the workers, who were properly concerned for the welfare of the other three infants, and aware that J.R.A. may be further breaching the order of no contact, returned to the family home and found the infants inside the house. J.R.A., at that time, was outside the house in the yard. He had left the residence by the time the other three infants were apprehended by the workers.

J.R.A. testified and maintained that when the workers encountered him in the van, all four children were buckled up in seatbelts and with him in the van. He also claimed that his three infant children were fastened in their seatbelts in the middle and rear seats of his van. He acknowledged that when he was asked by one of the workers where the other kids were, he lied to the workers and said that they were not home. In fact they were with him. J.R.A.'s testimony, as I said at the time, strained credulity in the sense that both workers told the court they saw no other children in the van that day.

However, for the purposes of the sentencing hearing, I held his testimony raised a doubt about exactly where the other three infant children were when the workers apprehended the victim. There is no doubt, however, that J.R.A. was in contact with all four of his children on that day and had been since his release. The salient, inescapable fact is that he was prepared to and did lie about his infant children's whereabouts to the very people who were charged with making sure his children were safe and sound. He lied to persons in authority when they were properly inquiring about the children and their well being.

Clearly, again, he tried to manipulate a prejudicial situation in his favour. Clearly, he was not acting in the best interests of any of his children. This incident highlights both his lack of insight and his tendency to manipulate. As the Crown said today, it is clear he was prepared to deceive the authorities. Looking at the victim impact statement, of course the eight-year-old is presently too young to prepare her own victim impact statement. It was prepared by her mother, who describes that the victim has difficulty sleeping, has become withdrawn, and has issues around trusting others.

She also has some boundary issues. Their daughter feels as if it is all her fault and sometimes expresses sorrow that she disclosed any of this because she has broken up the family. She also misses her dad. These sad, complex and conflicting states of mind are not surprising. The victim obviously has a lot of healing ahead and I express the fervent hope that the victim and family are receiving counselling to deal with these issues. A pre-sentence report was prepared.

J.R.A. expresses self-loathing and remorse for his actions, but he does not take full responsibility for his sexual overture as he fails to provide any explanation as to why the abuse continued, besides some notion of marital discord and frustration over that. He says he was afraid to make any admissions to anyone about his behaviour, presumably because he would be labeled. This, in no way, explains why the abuse continued. The abuse occurred mostly in the morning, after his wife had left for work. He was sober and clear headed when this happened.

The activities stopped because his daughter disclosed to her mother. He has not taken anything close to full ownership of why it happened and the level of exploitation. In terms of his employment, it has been sporadic. He has welding skills. Currently, he is reliant on his own mother for income. He has hopes of coaching children's hockey. This type of hope demonstrates a deep lack of insight. In the pre-sentence report, in terms of risk assessment, he is assessed as a moderate to low risk for sexual reoffending.

The probation report concludes that he can be safety supervised in the community eventually if he achieves secure employment and secure residency. J.R.A. was referred by his lawyer to Kent Somers, a well respected clinical psychologist, for risk assessment. The report is dated December 2010. Dr. Somers provided that report, outlining that J.R.A. had no significant cognitive defects, a grade 12 education and no substance abuse issues. He concluded at the time that J.R.A. was amenable to treatment because he had the cognitive capacity to benefit. He also concluded that J.R.A. had limited insight.

He, too, initially assessed J.R.A. as low to low-moderate risk of sexually offending in the future. This was, however, prior to any discussion of the details of the allegations. Dr. Ellerby, a psychiatrist who treats male sexual offenders, wrote a letter to defence counsel in January of 2011, saying he would be happy to psychotherapeutize J.R.A. were Mr. J.R.A. to be released on bail. Dr. Somers saw J.R.A. for a second time in the summer of 2011 and prepared a report dated June 24th, 2011.

He assessed J.R.A. as a low to moderate risk, echoed the pre-sentence report in terms of medium risk, opining that J.R.A. needs psychotherapy, abstinence from volatile substances and full employment. He also decried the fact that psychotherapy is not available while J.R.A. is in remand custody. Dr. Somers noted that J.R.A. "did not recognize the full extent of intentionally to his behaviour". The word “intentionally”, I think, is a typographical error. It makes no sense. I take from this statement J.R.A. does not recognize the full extent of his intentionality.

In other words, he has limited insight into his being the driving force of his sexual abuse of his daughter. Dr. Somers concluded that part of J.R.A.'s limited insight is due to a lack of therapy and he again confirmed that J.R.A. is motivated to seek therapy and he could benefit from it.

Authorities were filed, precedents were filed by counsel and defence counsel has properly conceded that fellatio in this contextconstitutes what the law classifies as a major sexual assault. In the seminal decision of D.(C.) (1991), (MB CA), 75 Man.R. (2d) 14, the Manitoba Court of Appeal confirmedthat the repeated sexual abuse of a child is a crime like no other and the starting point for a sentence for such a crime is four to fiveyears. The penitentiary jail term starting point recognizes the devastating effect of these types of crimes.

In the Alberta Provincial Court decision of C.(W.C.), 2005 Carswell Alberta 2049, a three-year jail sentence was imposed for oneincident against a child involving digital penetration, masturbation and a fellatio attempt by a 24-year-old perpetrator. This young manhad received some counselling and was classified as a low risk. This decision confirmed the high moral blameworthiness of offenders inthese types of offences. The court also confirmed that general deterrence and denunciation are the primary sentencing principles andthat rehabilitation is not the primary sentencing principle in these types of cases.

The young accused was found to have shown acontemptuous disregard for the feelings and sexual integrity of the victim. The court in that decision referenced that P.(D.J.) decision, (1997) 1997 ABCA 261 , 200 A.R. 308, a decision of the AlbertaCourt of Appeal where a four-year jail sentence was imposed for one incident of fellatio and a digital vaginal touching.

The H.(L.W.) decision of the Alberta Court of Queen's Bench, 2011 Carswell Alberta 33, resulted in a sentence of three years of jailfor what was described as a brief and isolated incident of cunnilingus, which was nonetheless classified as a major sexual assault. Thisincident occurred for about two to five minutes but the victim was told not to tell anyone because the perpetrator would go to jail. Nofurther specific harm to the victim was noted.

All but one of the authorities filed by defence counsel at the time, besides today, can be categorized as a compendium of the veryserious sexual assault crimes that have resulted in various penitentiary terms. The A.R.K. decision, a decision of the Alberta Provincial Court, outlined a three-year jail sentence for the fondling and digitalpenetration of the vagina of a young child in a day care context over a period of four years, [2010] A.J. No. 929. The B.C.L. decision, [2010] B.C.J.

No. 637, a decision of the British Columbia Court of Appeal, involved a four-year-old daughterwho was forced to masturbate and fellate her father. He touched her genitals with his penis. He made his four-year-old and her play palmasturbate him. He made videos of them. He took photos of them naked. He received a seven-year sentence. The J.R. decision from the British Columbia Provincial Court, [2009] B.C.J. No. 1332, outlines a four-year sentence for a fatherwhom over a four to five period fondled his daughter's breast, bit it, digitally penetrated her vagina and masturbated in front of her.

Thecomplainant was seven when the incidents began. The D.W.E. decision from the Manitoba Court of Queen's Bench, [2011] M.J. No. 16, involved an employee in an after schoolprogram sexually assaulting an eight-year-old boy for a period of nine years. This decision is not that helpful since the context is not thesame. The M.S. decision from La Cour du Quebec, [2011] J.Q. No. 903, involved an eight-year victimization of a daughter from the ages ofsix to 14 by her father. The father himself was the victim of sexual abuse, accepted responsibility for his actions, cooperated with theauthorities and completed therapy.

Three years of jail was imposed with a nod to the many mitigating factors. Another Quebec decision, M.H., [2009] J.Q. No. 16931, involved the victimization of the four-year-old daughter of the accused'scommon-law wife. The victimization was over a period of two years and involved masturbation, fellatio and sexual touching whilewatching television together. The victim was told not to tell her mother or the mother would punish her. He was given three years' jail. The last decision previously filed by defence was the M.F.D. decision, (1991), (MB CA), 75 Man.R. (2d) 21.

This case was issued by our Court of Appeal at the same time as the C.D. decision, which I have already referred to. The Court ofAppeal upheld a sentence of two years' imprisonment followed by three years of probation.

What the Court of Appeal discussed in thatcase was the concept of a starting point approach as a "... yardstick against which the sentence appropriate for the particular offencecommitted by the offender before the court can be measured." The court confirmed: "The sentencing judge retains discretion to increaseor reduce the penalty in accord with principle and circumstances of the case." In this decision, the court held that there were a number of special circumstances whereby society would be better served by a lessersentence than four to five years.

There was a suitable treatment program available and there was evidence that the accused would likelyrespond to it. There was a forensic assessment that the accused's background contributed to the crime and there was a good prospect ofrehabilitation.

The Court of Appeal held, and I am quoting, "...circumstances which may be regarded as 'special' are not susceptible of definition.The best we can do is to recognize that there will be exceptional cases in which the interests of society, or those of the victim and herfamily, will be better served by a sentence which gives more weight to rehabilitation than to the other sentencing aims.

The identificationof those cases must then be left to judges exercising their discretion judicially." Most recently our Court of Appeal has examined the germane principles of sentencing in these types of cases in their decision ofR.G.W., a judgment delivered July 22nd of this year. The court upheld a sentence of four years of jail for one count of sexualinterference and one year in jail concurrent on a charge of breach of probation. The offender was 57 years old. He had a lengthycriminal record. He was subject to a three year probation order specifying he have no contact with any female child under the age of 14.

This order flowed from a 2008 conviction of assault against a nine-year-old girl. The complainant in this case was a nine-year-old whowas playing in the park with other children. The accused touched her buttocks, put his hands down her pants and tried to touch hervagina and in fact touched her breasts. The assault was brief and the nine-year-old was told to keep it a secret and not tell anyone. Theincident was fortunately witnessed by others. Even though the conduct was limited to one occasion, there was a use of force and theaccused had a significant criminal record.

The Manitoba Court of Appeal examined various precedents, including their own, and including the M.G.F. decision,

(2010) ABCA 102, wherein the Alberta Court of Appeal overturned a sentence of 90 days' intermittent jail for two counts of sexual interference as being demonstrably unfit and imposed an 18 month jail sentence for an accused who was a first time offender who rubbed his 10-year- old stepdaughter's vagina while in the presence of other children in the home. Our Court of Appeal held in this very recent case that the sentencing principles of denunciation and deterrence are paramount in these type of cases. Indeed,

Section 718.01 of the Criminal Code mandates that the primary consideration in these type of offences is denunciation and deterrence. Moreover,

Section 718.2(a)(iii) outlines that the abuse of trust or authority is also an aggravating circumstance. The abuse of a person under 18, the abuse of a position of trust, the abuse of a family member are all aggravating circumstances. A conditional sentence is neither available nor appropriate on this type of charge. There is a minimum jail sentence of 45 days. The maximum sentence is not to exceed 10 years. No two individuals are alike. No two sentencing hearings are identical. The precedents provided are helpful for broad principles.

For instance, the case that was last referred to, the recent 2009 Queen’s Bench decision that Mr. Clay referred to this morning, involved a 67-year-old man masturbating a 13-year-old boy Very different circumstances, very different context. The principles are helpful. The totality of circumstances can justify an increase or a decrease in a sentence. Circumstances decreasing such a sentence tend to be exceptional. The forensic evidence in this case establishes a hope that counselling may do some good and that J.R.A. is motivated. This is in no way an exceptional circumstance.

It is, however, a mitigating circumstance. Highlighting the aggravating features that I have already referred to: Here we have the exploitation of J.R.A.'s own infant daughter. It was wilful, it was opportunistic. It was protracted. We are not dealing with a single event. The abuse continued off and on for three years until the disclosure by the victim. The victim is a child of tender years. This is a gross abuse of parental trust. There is a veiled threat about disclosure. Mitigating circumstances: J.R.A. was cooperative with the police. There was an immediate acknowledgment of an admission.

His guilty plea is an acknowledgment of that and an acknowledgment that he is ashamed. He spared the child testifying. Though he has a criminal record and he was jailed in the past, it is not related and it is fairly distant and he is motivated to seek treatment. The aggravating factors in this case far outweigh the mitigating factors. The mitigating factors reduce what would otherwise have been a lengthier jail sentence. A denunciatory sentence is needed to send a message to J.R.A. and to any father that they cannot ever objectify or exploit their own children to satisfy their selfish sexual urges.

A fit sentence in this circumstance for this sexual interference would be five years. And as far as a fit sentence for the breach, J.R.A. completely ignored a court order in circumstances that demanded care, caution and complete compliance. He also demonstrated appalling sensitivity to his daughter's plight, completely ignoring her struggle and in effect, compounding the problem for the entire family. A fit sentence for the breach is six months consecutive to the five year sentence. When I look at the issue of totality, which I am bound to, I am not persuaded that the sentence ought to be reduced.

They are two entirely different acts and I am not persuaded that a five and a half year sentence is not a fit sentence in totality. And so when I look at the time in custody, it is not quite 11 months. I am prepared to make it 11 months for the reasons that Mr. Clay says but having said that, it is not only J.R.A. that has made an island onto himself, it is an island of his own making for his reasons.

I do, of course, understand that he has not received therapy, but I am not persuaded to give more than 11 months credit for the time that he has spent in custody which is actually more than the days he has spent in custody. So the actual sentence for the sexual interference is 11 months of time in custody plus four years and one month going forward and the actual sentence for the breach is six months consecutive to the sentence for the sexual interference and I will have to make some other orders. I am ordering J.R.A. to comply with an order under

Section 490 of the Criminal Code . He must register and comply with the Sex Offender Information Registration Act for a period of 20 years. Also I am persuaded, and I do not think it is contested, that while he is custody a 743.2 order that he have no contact with any of his children except as authorized by Child and Family Services. And I just want to address you personally at the end, J.R.A. I have jailed you for much longer than your lawyer was suggesting or that you wanted.

I can only urge you to take advantage of the sex offender counseling treatment, programs, assessments that are available to you within the penitentiary. And I also hope that your hopes for the future are met. You are a welder, you have a skill that you can take anywhere, any time, any place and as far as healing the family, that is also an admirable goal. So good luck with all that. I am waiving the costs and surcharge. MS. MALAVIYA: Your Honour's required to consider an order under

Section 161 and there is also a DNA order required in the circumstances. THE COURT: Thank you. I am not persuaded to order him to have no access to swimming pools and playgrounds and the like. This is a unique circumstance. As I say, all these cases are unique to themselves. This is a family home crime. In terms of DNA, it is mandatory. I am ordering you to submit a sample of your DNA for entry in the forensic bank. Submit your DNA to the correctional authorities within the next 30 days, sir. Anything further?

MS. MALAVIYA: No, thank you. THE COURT: All right. Thank you very much for your helpful submissions. _____