R. v. L.(A.), 2014 ONCJ 714

Information No. 2811-998-14-25103 Citation: R. v. L.(A.) , 2014 ONCJ 714 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. A.L. R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE M. BLOCK at OSHAWA , Ontario on December 15, 2014 Appearances : B. Green Counsel for the Crown S. Darroch Counsel for A.L. Monday, December 15, 2014

R E A S O N S F O R S E N T E N C E BLOCK, J. (Orally): [1] On June 27, 2014, A.L. entered a plea of guilty to a charge that between January 26, 2008 and September 20, 2013, he committedsexual interference with N., a person under 16 years, contrary to s. 151 of the Criminal Code. This is my judgment on sentence in thematter. [2] In 2003 A.L. and his wife had twin boys. They wanted a girl. The L’s adopted N. in 2008. She was then a ten-year-old developmentally delayed girl, appropriately cared for by a foster family. Sometime after her 13th birthday, Mr.L. began the sexual use ofhis adopted daughter.

He had vaginal, anal and oral intercourse with her on multiple occasions, approximately once a month. Shedescribed the anal intercourse as the most painful. During a lengthy pattern of abuse, lasting several years, she became pregnant. Mr.L.arranged an abortion at a Quebec clinic to deal with that impediment. There is no physical evidence of paternity. He continued to haveunprotected sexual intercourse with N. On one occasion N. complained of the abuse to school authorities. Mr.L. denied the abuse. N.recanted. No action was taken. The sexual abuse continued. Eventually the matter came to light. Mr.L. was charged.

Irrefutableforensic evidence of his sexual intercourse with N. was discovered. Mr.L. attempted suicide and ultimately entered a plea of guiltybefore me on a charge of sexual interference before a trial or preliminary inquiry date was set. [3] Mr. L. must have known that severe psychological harm is the inescapable result of his crime. The victim could not have been morevulnerable, given her intellectual deficits and her pre-existing attachment disorder. The perpetrator of these acts knew of her intellectuallimitations and took advantage of them to deflect initial concern and continue his crimes.

As a consequence of the crime, she has beenseparated from her adoptive brothers, a result that has deepened her loneliness and isolation. N’s victim impact statement reflects herfeelings of worthlessness, despair and self-loathing, which are the obvious and predictable result of Mr.L’s conduct. He undertook to hiscommunity to love, nourish, educate and protect a highly vulnerable child. He could not have betrayed that trust more completely. [4] He has mitigated his offence by entering a plea of guilty.

While his ultimate conviction was a highly probable result, given thepower of the forensic evidence, I do not regard his plea as an empty gesture. He has saved his victim from the ordeal of both trial andpre-trial preparation. Mr. “L” has never before been convicted of a criminal offence. This is important mitigation. [5] Counsel for Mr.L. has submitted letters attesting to his character. I cannot give them much weight. His crimes were committed insecret. I accept that these acts and whatever pathology inspired them were unknown to his spouse, his in-laws and his friends who havewritten on his behalf.

In the circumstances, how can the Court take comfort from their insights? I take from their testimonials that Mr.L.has admitted his crime and expressed his remorse to the writers. This is consistent with his plea of guilty and a factor I must consider inreaching my decision. [6] I have reviewed the letters of Dr. Dobson, a highly qualified psychologist with much experience in the evaluation and treatment ofsexual offenders. Mr.L. has expressed his remorse to Dr. Dobson and undertaken a significant course of counselling in respect of theissues before the Court.

It is also apparent that he is cooperating fully and taking the counselling very seriously. This is also a factormitigating sentence. [7] Mr.L was apparently physically and sexually abused as a child. Where an adult assailant methodically abuses his victim over aperiod of years and systematically used her vulnerabilities to foil detection, his own childhood victimization may help to explain why hecommitted his crimes, but it has little weight in mitigation. [8] I am grateful to counsel for the exhaustive common law and learned submissions provided. Her Majesty The Queen v.

D(D) (2002), (ON CA), 163 C.C.C. (3d) 471 remains the guiding authority from the Court of Appeal. At paragraph 44, MoldaverJ.A., as he then was, stated: “...when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantialperiods of time, they can expect to receive mid to upper single digit penitentiary terms.

When the abuse involves full intercourse, anal orvaginal, and is accompanied by other acts of violence, threats of physical violence, or other forms of extortion, upper single digit to lowerdouble digit penitentiary terms will generally be appropriate. Finally, in cases where these elements were accompanied by a pattern ofsevere psychological, emotional and physical brutalization, still higher penalties will be warranted.”

[ 9 ] The primary objectives of sentencing in this case must be denunciation and general deterrence. In my view, the shocking breach of trust, prolonged abuse, the adroit use of the medical system and cynical manipulation of the victim’s vulnerabilities to avoid detection demands a starting point of ten years in the penitentiary. Adjusting for the guilty plea, the counselling undertaken, expressions of remorse, first offender status, actual pretrial incarceration of 38 days at a ratio of 1 to 1.5, as well as 210 days of house arrest, the sentence will be one of seven years from this day forward.

This is the lowest sentence that informed conscience can tolerate. [ 10 ] In addition, there will be the following orders: 1. s. 743.21, during the period of incarceration Mr.L. will have no contact with N. or any of her caregivers, in any way, directly or indirectly. 2. Under s. 161, there will be an order that he not attend at parks, swimming pools, daycares, schoolyard playgrounds or community centres where children under the age of 16 are likely to be present, except when his own sons are present, and that will be for a period of 20 years. 3.

There will be an order under the Sexual Offender Registration Act for 20 years. 4. He will submit a sample of his DNA to the authorities at their convenience. 5. There will be an order under s. 109 of the Criminal Code for a period of 10 years, forbidding Mr.L. from having any firearms, ammunition, explosive substances, crossbows and the like. Again, thanks counsel for their presentations. We will take a short recess. Mr.L., you will go with the court officers. ********** FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Bradley C.

Van Alstyne, certify that this document is a true and accurate transcript of the recording of R. v. L. , in the Ontario Court of Justice, held at Oshawa, Ontario, on December 15, 2014, taken from Recording No. 2811-405-20141215-082905-10-BLOCKM, which has been certified in Form 1. December 30, 2014 _______________________________________________ Bradley C. Van Alstyne, Authorized Court Transcriptionist