) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - v. - ), 2011 MBPC 71

2011 MBPC 71 THE PROVINCIAL COURT OF MANITOBA DAUPHIN CENTRE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Alan Semchuk ) for the Crown - and - ) ) J. C., ) Peter Kingsley ) for the Accused Accused. ) ) Judgment Delivered: ) October 31 st , 2011 RESTRICTION ON PUBLICATION: Please note that, s. 486.4(1), this decision is subject to an order restricting publication in any document or broadcast or transmission of any kind of any information that could identify the complainant. HARAPIAK, P.J. [ 1 ] On August 18, 2011 J. C. pleaded guilty to 3 counts: 1. Repeated sexual assault of his daughter between February 1, 1999 and October 26, 2010, contrary to

section 271 of the Criminal Code of Canada ; 2. Sexual interference with his daughter between February 1, 1999 and April 8th, 2006, contrary to

section 151 of the Criminal Code of Canada ; and 3. Repeated acts of incest upon his daughter between the dates of February 1, 2002 and October 26, 2010, contrary to

section 155 of the Criminal Code of Canada . [ 2 ] Incest is an indictable offence, with a maximum penalty of 14 years. The Crown proceeded by indictment on the sexual assault and sexual interference charges, which both attract a maximum penalty of 10 years incarceration. Sexual interference has a minimum penalty of 45 days. [ 3 ] My task today is to determine, within these parameters set out by Parliament, what an appropriate sentence is for this particular offender. [ 4 ] Sentencing submissions were made on October 20 th and I reserved my decision to today.

OVERVIEW [ 5 ] J.C. has pleaded guilty to repeatedly and routinely sexually abusing his daughter over a period of 11 years – starting when she

was 6 and ending some months after she turned 18. The facts are horrific. THE FACTS [ 6 ] One day, back in 1999, when the victim was about 6 years old her brother broke his arm. A neighbour took the boy and his mother to the hospital, leaving the victim with her father. The accused pulled her dress up and panties down, pulled his daughter onto him, rubbed himself against her, and ended up ejaculating.

He told her this was their special secret and she shouldn’t tell. [ 7 ] After this the offender would go into the room the victim shared with her brother, and reach into the top bunk, where she slept, to touch her vaginal area. She started to wear pajama pants to bed instead of a nightgown to make it more difficult for him. He berated her for this. If she moved away he would pinch and twist her skin. He attempted digital penetration and she resisted. [ 8 ] At some point the victim was given her own room. The offender would come in and masturbate himself.

When the victim cried he would get angry and tell her he would give her something to cry about if she did not behave. The offender progressed to using the child’s hands to masturbate himself. He cautioned her not to tell her mother as this was a grown-up secret between them. He would threaten to hit her if she told. [ 9 ] As the years went on the offender began to pressure his daughter to have sex with him. He told her they would have to have sex 2 -3 times per week, and if they did not meet that quota one week she would have to make it up the week following. This would be repeated many times.

He would wake her up in the night, lie on top of her and thrust against her until he ejaculated. She held her legs together to prevent intercourse. [ 10 ] The young victim threatened to tell many times. In response, the offender told her he would hurt her brother if she told. She kept quiet. [ 11 ] In 2003 pressure to have sexual intercourse intensified. On one occasion the offender handcuffed the victim to her bed and told her they were going to try to do things differently. He grabbed her buttocks and her breast area repeatedly.

She cried and kicked repeatedly out at him, and he released her. [ 12 ] When the victim was about 11 years old the offender purchased a vibrator and told her she should use it to practice to “get used to it.” One day when her mother and brother were out he attempted penetrating her 3 times with the vibrator. He told her to get a boyfriend she would need to know how to do this.

She cried out from the pain and he stopped, telling her she was “fucked up” and there was no time to do anything else before her mother returned. [ 13 ] One night in February, 2004, the victim’s mother was called away to the hospital as her own mother was dying, and did pass away later that night. The offender took this opportunity to attempt sexual intercourse. He removed the victim’s shorts, straddled her and struck her, calling her a baby, fucked up and stupid when she kicked out at him. He gave up, but returned, saying they were going to do it.

She said she did not want to get pregnant and he advised her she could not get pregnant the first time. He finally gave up, and told his daughter that he hated her. [ 14 ] The attempts at sexual intercourse continued. The victim fought back and the offender continued to be unsuccessful. [ 15 ] In the summer of 2004, shortly after she turned 12 the young girl had the opportunity, due to academic success at school, to go to mini-university. Her father would walk her to the bus every day and pick her up at the end of the day.

There was a vacant house next to theirs and one day he told her they needed to check on that home before going home. When she got inside she saw that he had created a make-shift bed with blankets. He told her she was not going anywhere until they had sex. She threatened to tell her mother and he responded with threats of physical violence. He then, as he had been attempting and threatening for many months, had sexual intercourse with his 12 year old daughter. She yelled and cried and tried to twist away.

He ridiculed her when she seemed upset by her bleeding as he advised that everyone bleeds, presumably meaning after a first sexual encounter, and she should have known that. [ 16 ] After this first occasion the offender forced sexual intercourse on his daughter 2 – 3 x per week over the next 2 years. The victim would avoid him for up to two weeks at a time and then would be told she had to make up for missed time. He would criticize her for her lack of enthusiasm.

[ 17 ] The family moved in the summer of 2006. As they were staying with family in tight quarters the opportunities to victimize the complainant were limited. The accused obtained keys to their new home and brought the victim there under the pretence of setting things up. He told her she had been getting out of having sex with him for a long time, and she needed to catch up. She would have been 14 at this time. Later that year, in October, the victim, during one of these frequent incidents of forced intercourse, became pregnant with her father’s child. This has been confirmed through DNA testing.

The offender continued to demand intercourse during the pregnancy, and developed a cover story for her to conceal his role in the pregnancy. He actually counselled her to sleep with someone else to help make the pregnancy cover story more believable. He warned her not to tell the truth as he said people would blame her. He also threatened to not let her keep the baby if she didn’t comply with his demands for sex. The victim, after her mother found out she was pregnant, threatened to tell her mother the truth. The offender responded that she would not even have a chance to have the baby if that happened.

She did not tell, and the forced sexual intercourse continued right up until the baby’s birth in the summer of 2007. [ 18 ] When the baby was born there was a brief hiatus from the assaults. About 2 months after the child’s birth the assaults began again. The victim characteristically resisted at which time her father told her she should think of her child, essentially to consider what might happen to her child if she did not cooperate with him. The forced sexual intercourse began again.

Although the offender had never used a condom prior to the child’s birth he began to use condoms afterwards, with a few exceptions. [ 19 ] In December 2007 the victim told her father she would tell if the attacks continued, and pursue charges. He pointed at her baby and told her that if she told nobody would ever find the child and even if he was arrested he would be out, able to find her and the baby, and that he would hurt her mother and her brother as well. In the face of these specific and disturbing threats she did not tell.

The forced sexual intercourse continued on a regular basis for almost three more years. [ 20 ] The victim began working after she turned 17. Her father would pick her up from work and force sexual intercourse on her in the car on the way home. This occurred several times immediately after routine traffic stops by the police. When she resisted the offender would hit her shoulders, the back of her head or her sternum; at times with such force she had difficulty breathing. After the victim ended that employment the opportunities for abuse were not as frequent but still occurred multiple times per week.

However, on several occasions she was forced to have sexual intercourse 2 or 3 times per day. [ 21 ] The last assault happened in October of 2010. The victim was no longer living with her parents. Her mother was away and her father drove her brother to a friend’s for the night. Although the victim had gone to bed early in an attempt to avoid any attacks by her father this did not deter him.

He took her out of the room and forced sexual intercourse on her just metres away from where her 3 year old child lay sleeping. [ 22 ] The victim did tell her mother after this last incident and her mother immediately went to the RCMP, beginning the process that brings us here today. [ 23 ] In

summary, J.C. sexually interfered with his daughter starting when she was 6, and forced her to regularly have sexual intercourse with him once she turned 12, often accompanied by threats or actual violence, until shortly after she turned 18. He impregnated her and threatened both her and her child to keep the victim quiet.

COUNSELS’ POSITIONS [ 24 ] Both Crown and Defence counsel agree that these are serious matters and concede that the sentencing objectives of denunciation and deterrence must be given primary consideration by this court. [ 25 ] Crown Counsel argues that this group of offences, after giving due consideration to the principle of totality in sentencing, should attract a global sentence of 15 years. Defence counsel suggests 8 – 10 years is a more appropriate range. THE CASELAW [ 26 ] Counsel provided a number of cases and summaries, all of which I have considered and some of which bear mention.

I will review the facts and sentences firstly, on a number of incest cases involving resulting pregnancies, such as was the case here and then on some cases involving severe physical and emotional abuse along with incest and often multiple victims. It is important to note in some of the higher incest decisions that there were multiple pregnancies, victims or even lengthier periods of abuse. First – incest cases involving pregnancy:

R. v. F.E.H. [1995] B.C.J. No. 2283 (BCCA) – In this case the incestuous conduct started when the victim was 10 and lasted 25 years,resulting in the birth of 5 children, 2 of whom the victim was forced to give up for adoption. Ten year sentence at trial on incest whichwas upheld on appeal. R. v. S. (A.I.) 1989 ABCA 185 , 98 A.R. 249 (ABCA) - In this decision the maximum 14 year sentence for incest against 2daughters, which resulted in 2 pregnancies for one victim and severe psychiatric illness for the other, was reduced to 12 years.

Theaccused had no record and pleaded guilty, saving the daughters from testifying. R. v. P.C. [2004] S.J. No. 237 (SKCA) – The victim was sexually abused for 5 years, from the age of 7 to 12, by her grandfather. Theabuse started with intercourse which often occurred on a daily basis. It ended with her pregnancy and undergoing an abortion. Thevictim suffered significant emotional damage and was required to testify before a jury at trial. The sentence, for sexual assault, sexualtouching and incest was 2½ years custody. That was increased on appeal to a 5½ year global sentence. R. v.

C. (S.J.) [2010] B.C.W.L.D. 8278 (BCPC) – In this incest case the incidents occurred over a period of 15 months, starting whenthe victim was 12 years old. She had not lived with her father until that time. She became pregnant, gave birth and became pregnantagain within a few months, which pregnancy ended with an abortion. The accused resumed the acts of incest while on bail after beingcharged. The court found the facts to come close to the worst case given the accused’s background, criminal record, particulars ofoffence, pregnancies and remote likelihood of rehabilitation. Sentenced to 8 years for incest.

Next – cases with egregious violence, emotional abuse and multiple victims: R. v. M. (C.A) (SCC), [1996] 1 S.C.R. 500 (SCC) – In M.(C.A.) the SCC reinstated a 25 year global sentence(reduced at Court of Appeal to 18 years, 8 months) assessed at the trial level for years of physical and sexual abuse by a father on his 9children. The beatings described, often brutal, were delivered almost daily and weapons were occasionally used. Emotional abuse waspersistent and dehumanizing. Incest occurred against the 3 oldest sisters, but not with the regularity that took place in the case at bar.

The SCC confirmed that fixed sentences are not capped at 20 years and that retribution, but not vengeance, is a valid sentencingprinciple. The 2 sexual assault counts were given 8 and 5 years, and incest 7, all to be served consecutively. That, along with a 5 yearcount for assault with a weapon, resulted in a 25 year sentence. Other counts, totalling 15 additional sentence years, were to be servedconcurrently. R. v. C. (E.) (MB CA), 113 Man. R. (2d) 33 (MBCA) – In this 1996 decision the Court reduced the 25 year globalsentence to 20 years.

The Court of Appeal found little to distinguish this offender from the offender in M. (C.A.) (supra). This offenderwas marginally older, at 61. He abused his own children for almost 20 years, beating them with lead pipes and electrical cords,suspending his son from a pipe in the basement, and having sexual intercourse with his daughter from the ages of 3 to 13 among otheratrocities. A total of 12 counts attracted 25 years custody. The court found that the 25 year sentence went beyond any reasonableexpectation of his remaining life span and for that reason, was unfit.

The incest sentence was reduced to 5 years for the sole reason ofreducing the totality of the sentence to 20 years. I also specifically considered, on the sexual interference and sexual assault counts, the following cases: R. v. G.W.R. 2011 MBCA 62 – In this recent sexual interference sentencing appeal a conviction of 4 years was upheld where theaccused, who had a recent conviction for assaulting a 9 year old child and a significant criminal record, while on probation conditionsprohibiting contact with females under 14, touched a 9 year old girl’s buttocks and chest area, under her clothes, on a single occasion.

He lacked genuine remorse and empathy and was a high risk to re-offend. R. v. C.D. (1991), (MB CA), 75 Man. R. (2d) 14 – In this decision the Court of Appeal ruled that “[t]he startingpoint to sentencing for a major sexual assault committed in a family relationship where the victim is a young child and serious sexualassaults are repeated over a period of time should, in [its] view, be four to five years imprisonment.” THE OFFENDER [27] The case law gives some guidance to the court when determining an appropriate sentence.

It is trite law, however, to note thatno two cases are precisely the same, and that my task is to craft a sentence for this particular offender, with these facts, in this situation. Iam mindful of the Supreme Court’s caution in R. v. M (C.A.) (supra), at paragraph 92:

“Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be [a] fruitless exercise of academic abstraction.” [ 28 ] As Mr. C. did not wish preparation of a pre-sentence report and no supplementary material, as often seen in this type of case, was filed, information about his prospects is scant. [ 29 ] J.C. is a 46 year old man from rural Manitoba with a Grade 7 education and a few high school credits. From the ages of 6 to 12 he was in and out of foster care and became a permanent ward by age 12.

He claims to have been abused as a teenager in foster care, but prefers not to offer any details. [ 30 ] Eventually, Mr. C. gained certification in welding and worked off and on in this field where he could. He also did odd jobs on farms. About 12 years ago he managed to overcome an alcohol addiction. There is no evidence that he has any insight into his offending behavior. [ 31 ] Mr. C. has a dated criminal record. His last conviction, just prior to the birth of his daughter, was in 1992. Most troubling, he has a related conviction – sexual intercourse with a female under 14.

He was 20 years old at the time of conviction, and received 15 months custody. [ 32 ] There was no indication of remorse from Mr. C. other than his guilty plea and a comment at the end of sentencing that he was “sorry to be here” and “sorry that things happened.” THE VICTIM [ 33 ] The victim prepared a written victim impact statement that was read out in court. She was in the court building the day of sentencing, but did not want to be in the courtroom while counsel made submissions. Her mother also attended, and sat through the re- telling of the abuse that her daughter suffered.

The mother physically shook through much of the lengthy hearing and seemed to maintain emotional composure only with a great deal of difficulty. I could see the strain that these proceedings have had on her. [ 34 ] There is more than one victim in a case such as this. I will confine my comments to the mother and the victim, however. The brother and the child born of the incest will also have to live with the aftermath of the accused’s actions for the remainder of their lives.

The facts show that the accused was quite worried, over the years, about the possibility of his wife finding out and went to some lengths, primarily with threats against the victim, to ensure she did not. When the wife did find out she went immediately to the police. As she sat in court, listening, recoiling, wincing, and occasionally weeping as the details were read out I had no doubt that she, too, was a victim. [ 35 ] The victim herself struggled, in her statement, to describe the effects the years of abuse had had on her.

She said that, although cuts and bruises were a regular part of her life it was the emotional and mental effects that stay with her. [ 36 ] She is plagued by nightmares and a constant sense of fear. She is reliant on sleeping pills to get a good night’s sleep. Without them she simply paces all night. Threats against herself and her child still haunt her. She has a recurring nightmare, where she sends her child out to school one day and the child never returns. [ 37 ] The victim finds it very difficult to trust anyone. She suspects ulterior motives and finds it hard to accept anyone at face value.

She is now married and struggles to become comfortable with the regular intimacies of family life . [ 38 ] The victim feels that gossip out in the community has made her and her child objects of curiosity and discussion. She has sought out help from Mental Health Services in her community, but had difficulty communicating effectively without crying. Most tragically, although she couches this in terms of appreciating that she was so young that she knows it was not her fault, she still feels that perhaps she brought it on herself some way.

Hopefully, with time and professional assistance, she can get past that feeling. It was not her fault, and she deserved so much better than what she received from this man who routinely and callously ignored his duties as her parent in favour of his own sexual compulsions. [ 39 ] In closing, the victim mourns the loss of what was taken from her – a bright and happy childhood – and acknowledges the ongoing loss, of her peace of mind and self-worth.

Healing from that will take a great deal of time . [ 40 ] This victim threatened to tell many, many times, and her father progressively threatened her with worse consequences if she did

tell. He would hurt her brother, he would hurt her brother and her Mom, she would never have the chance to have that baby, and she should worry for the safety of her child. The strength it took, after all those years, and all of those terrifying threats, to tell, must have been considerable, and the courage it must have taken to walk her way through the legal system is heartening.

It gives me hope that there is a core of strength in this young lady that will see her through what will surely be a difficult path to well-being. [ 41 ] I know that completing the sentencing of J.C. today will not fix or change any of the things that have happened to the victim, or erase the memories of what she has endured. I hope that it will be a step forward in her healing – an opportunity, at least, to put the court proceedings behind her, and to know that the offender has been held to account for his crimes against her by the community.

WHAT IS AN APPROPRIATE SENTENCE? [ 42 ] These are the types of crimes which breach some of the most strongly-held societal values and shock the community at large. It is tempting as a community to respond emotionally to the long list of horrors that this victim has suffered through, and simply make the offender “pay” for what he has done. This feeds into a desire for vengeance, which is not appropriately considered in sentencing, and must be distinguished from retribution, which is. It may seem a fine point, but it is an important one, made by then Chief Justice Lamer in R. v.

M (C.A.)(supra): “Vengeance…remains an uncalibrated act of harm upon another, frequently motivated by emotion and anger, as a reprisal for harm inflicted upon oneself by that person. Retribution in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, and the normative character of the offender’s conduct. Furthermore, unlike vengeance, retribution incorporates a principle of restraint; retribution requires the imposition of a just and appropriate sentence, and nothing more.”

A) PURPOSE AND PRINCIPLES OF SENTENCING [ 43 ] There are guiding principles laid out in the Criminal Code to assist judges in coming to a fit sentence. I have reviewed the sentencing provisions of the Code generally but will make mention of specific sections. [ 44 ]

Section 718 of the Criminal Code of Canada sets out the purpose of sentencing. It is to “contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more … objectives.” [ 45 ] Those objectives are laid out.

When the criminal offence is one such as this that involved the abuse of a person under 18 the Criminal Code directs me, at s. 718.01 , to give primary consideration to these two: ➢ Denouncing unlawful conduct; and ➢ Deterring (or stopping or discouraging) the offender and other people from offending. [ 46 ] Other objectives, which are not as central, but still must be considered, include separating offenders from the rest of the community, when necessary, helping offenders be rehabilitated, providing reparations for harm done, and finally measures that might promote a sense of responsibility in the offender, and an acknowledgement of the harm done, both to the victim and to the community.

B) PROPORTIONALITY [47] S. 718.1 of the Criminal Code sets out the following fundamental principle of sentencing: A sentence must be proportionate tothe gravity of the offence and the degree of responsibility of the offender. [48] In R. v. Nasogaluak, 2010 SCC 6, Justice Lebel, acknowledging that the principle of proportionality is central to thesentencing process, tried to answer what proportionality really means. He wrote that: “[f]or one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence.

In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angleof proportionality is counter-balanced by its alignment with the “just desserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500 at para. 81; Re B.C.

Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson, J., concurring).” He goes on to say that: “Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence isalways limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. Thetwo perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender nomore than is necessary.”

C) OTHER SENTENCING PRINCIPLES [49] The court must also reduce or increase an appropriate sentence, based upon aggravating or mitigating circumstances relating tothe offence or the offender. These include two circumstances that are relevant and that I have considered here: ➢ Evidence that the offender abused a person under the age of eighteen years; and ➢ Evidence that the offender abused a position of trust or authority in relation to the victim. [50] There are very limited mitigating circumstances in this case, but for the entering of guilty pleas. Mr. C. has given up his rightto a trial.

With this the victim has been spared the trauma of testifying; both at preliminary inquiry and at trial, and that is to his creditand will be considered in mitigation of sentence. This is no small matter – to testify at preliminary inquiry and again at trial is a painfuland humiliating task in cases such as this. Beyond that, Mr. C. offered very little. Although he claims to have been abused as a child, hepreferred to keep the details of that to himself.

That makes it very difficult for the court to assess the impact of such abuse and factor itin to the sentencing process. [51] The aggravating factors are multiple. The victim was a young child when the abuse first began, and the accused was in aposition of authority; someone charged with nurturing and protecting this child. It went on for years, and violence and threats of violenceand death were used to control the vulnerable young victim. The facts surrounding death threats form part of the circumstances of theoffence, and were not disputed by the offender. (s. 725(1)(

c) CCC) [52] The offender was verbally abusive and demeaning to the victim. He not only committed these crimes, but continually badgeredher for what he seemed to characterize as his due. There was an implied ledger of sexual activity and he was not to be short-changed. Ifind his attitude of entitlement and expectation towards her aggravating.

He treated her as an object that was his to do with as he wished. [53] I find the offender’s urging of his daughter to find a sexual partner at the age of 14 to give him someone else to blame for herpregnancy a further example of the gross breach of trust here. [54] There were also a number of occasions when the abuse involved a degree of planning. The offender prepared, on 2 differentoccasions, a makeshift bed prior to luring his daughter to vacant properties to sexually assault her and concealed a vibrator to use whileassaulting her on another occasion.

ANALYSIS [55] In crafting an appropriate sentence, the purpose and principles laid out for consideration in the Criminal Code often pull thecourt in different directions. Although primary consideration must be given to denunciation and deterrence in cases of long-term abuseof a child, other sentencing objectives are capable of moving the appropriate sentence downwards. [56] This is not one of those cases. Save for the entry of a guilty plea little was said that painted the accused in a favourable light orwould mitigate the full weight of a denunciatory sentence.

He systematically abused his daughter for over 11 years and has given noindication that he appreciates the extreme harm which must have resulted from his actions. This is not the first time he has victimized ayoung girl. With his related record and lack of offered insight into his offending behaviour or attempts at rehabilitation the principles ofdenunciation and deterrence remain the key consideration when determining sentence. [57] The cases, canvassed above, which attract 20 – 25 year sentences are distinct from this case in a couple of important ways.

Theviolence was brutal and frequent in those two cases and there seemed to be no respite from it. This case does not have that same extremeelement of violence and should not fall within this range of sentence. [58] The incest cases cited above resulting in pregnancy illustrated a range of sentence on incest - between 5 ½ and 12 years.

Thiscase is complicated by the other two offences, and consideration of whether these sentences should be served consecutively orconcurrently. [59] Before determining what sentence, below the 20 – 25 year range, is appropriate, I would like to speak briefly about consecutiveand concurrent sentences and the sentencing principle of totality. THE LAST LOOK [60] Manitoba’s Court of Appeal has provided direction respecting appropriate totality of sentence where there are multipleoffences, such as the case at bar. S. 718.2(

c) of the Code reads: “where consecutive sentences are imposed, the combined sentenceshould not be unduly long or harsh”. [61] In R. v. Arbuthnot 2009 MBCA 106 , [2009] M.J. No. 363 Justice Chartier summarized a two-step approach to betaken in applying s. 718.2(c), or taking “the last look” back. 1. “The sentencing judge must first determine whether any or all of the offences are to be served consecutively. If all of the offencesare to be served concurrently, then there are no totality concerns and there is no need for the sentencing judge to proceed to the nextstep.

If all or some of the offences are to be served consecutively, then the sentencing judge must impose the appropriate sentence foreach offence or group of offences that are to be served consecutively in accordance with the appropriate sentencing principles (includingthose governing consecutive sentences), and then proceed to the next step. 2. The total of the consecutive sentences should then be calculated with the sentencing judge taking one last look at the total sentence. The last look is a more focused application of the general principle of proportionality (see M. (C.A.), at para. 42).

It does not require areconsideration of the sentencing principles applied in 1) above. Rather, this last look ensures that the total sentence is not unduly long orharsh. To make this determination, the sentencing judge is to consider the gravity of the offences, the offender’s moral culpability, theharm done to the victims, that the effect of the sentence is not “crushing”, and that it be in keeping with the offender’s record and futureprospects (see Traverse, at paras. 33-35, 65).” [62] Should these sentences be concurrent to each other or consecutive?

In Arbuthnot (supra), Justice Chartier confirmed that“sentences should generally be served consecutively when they arise “out of separate and distinct transactions.” (also see R. v. Munillaand Santorelli (1986), (MB CA), 38 Man. R. (2d) 79 at para. 3). [63] The Court of Appeal cited D.A.

Thomas’s text Principles of Sentencing, 2d ed. (London: Heinemann Educational Books Ltd.,1979) (at p.54) which reads: “The concept of ‘single transaction’ may be held to cover a sequence of offences involving a repetition of the same behavior towards thesame victim, such as a series of sexual offences with the same partner, a number of frauds on the same victim or several perjuredstatements made in the course of the same trial, provided the offences are committed within a relatively short period of time…”

[ 64 ] Although there is a certain artificiality in attempting to break this ongoing pattern of abuse into separate offences I am mindful of the direction from the Court of Appeal. Crown counsel also argued that, over the 11 years covered in the information, there are distinct transactions which account for the 3 separate offences. [ 65 ] The sexual interference can be primarily attributed to the years from 1999 until the start of regular sexual intercourse occurring.

This includes the ongoing persistent attempts to normalize the behavior and what can only be seen as a concerted campaign to move the child from touching to full sexual intercourse. [ 66 ] The sexual assault count can be attributed to the violent sexual encounters, bearing some aspects of confinement, when the offender attempted to penetrate the victim with the vibrator, when he handcuffed her to the bed and tried to penetrate her, and when he lured her into a nearby home so he could force sexual intercourse onto her for the first time. [ 67 ] The incest count is attributed to the conservative estimate of hundreds of incidents of forced sexual intercourse that occurred during the 6 years when the victim was aged 12 to 18. [ 68 ] Although there is a pattern of sexually preying on this child, there are differences of time in the sexual interference count and in the routinized pattern of forced sexual intercourse on the incest count that require consecutive sentences.

The sexual assault count, as particularized, however, falls within the time frames of the other 2 charges, and should properly attract a concurrent sentence. DECISION [ 69 ] I find that appropriate sentences on each of the three counts, in light of the applicable caselaw, sentencing provisions, aggravating and mitigating factors, and facts, are:

A) Sexual Interference : The sexual interference started when the child was very young and very dependent upon the offender for care and protection. It involved a regular pattern of abuse and a persistent pressure to expand the contact into full sexual intercourse. 4 years in custody on this count.

B) Incest : The count of incest includes hundreds of incidents of sexual intercourse. This offender treated his daughter as a sexual object to be used at his whim, and recklessly engaged in sexual encounters without using protection, resulting in her pregnancy. Between the length of time the incest went on, the fact that a pregnancy resulted and the serious threats made to control the victim and continue the abuse this requires a higher penitentiary term. 9 years in custody on this count.

C) Sexual Assault : Of the fact situations outlined above under this count at least 2 constitute major sexual assaults on a child.

These were assaults that showed planning and were a flagrant and calculated abuse of this father’s duty to care for his daughter. 5 years in custody concurrent to the other 2 counts. [ 70 ] In taking a last look back, I must consider if the net sentence of 13 years is just and appropriate in light of the overall culpability of the offender by examining the gravity of the offences, the offender’s degree of guilt or moral blameworthiness with respect to the offences and the harm done to the victims. ( R. v.

Arbuthnot (supra)) [ 71 ] The offences are extremely serious, being the repeated victimization of a child starting when she was very young, and aggravated because in committing them the offender has betrayed his position of trust as the victim’s father. The degree of moral blameworthiness is extremely high. The offender demeaned and controlled the victim and used threats to continue his abusive behavior. Although the harm done to the victim is not supported with medical or other evidence, it can be presumed by the very nature of the act.

I am mindful that the harm illustrated is not to the extent of that seen in some of the caselaw reviewed. [ 72 ] After considering these factors, taking the one last look back, and once again reviewing the applicable caselaw a slight reduction in the final sentence seems appropriate. The effective sentence will be one of 12 years by reducing the incest count by one year to 8 years. [ 73 ] There is a mandatory DNA order required. The offender will give a sample, suitable for DNA analysis, within the next 30 days.

[ 74 ] All 3 of the offences are classified in the Criminal Code as designated offences in relation to the Sex Offender Information Registration Act (“SOIRA”). It is mandatory, in the circumstances, to order J.C. comply with SOIRA for 20 years, starting today. [ 75 ] Mr. C. is also prohibited, pursuant to s. 743.21 (1) of the Criminal Code from communicating directly or indirectly with A. C. or her child C. while in custody. [ 76 ] Finally, Mr.

C. is prohibited from possessing any firearm, other than a prohibited firearm or a restricted firearm, and any cross- bow, restricted weapon, ammunition and explosive substance for a period of 10 years. He is also prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. __________________________ Judge C. V. Harapiak