R. v. D.C., 2015 MBPC 16

R. v. D.C. Citation: 2015 MBPC 16 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Jennifer Mann, for the Crown ) - and – ) ) D.C. ) Leonard Tailleur, for the Accused ) ) Judgment delivered: ) March 25, 2015 RESTRICTION ON PUBLICATION: Please note that pursuant to s. 486.4(1) of the Criminal Code of Canada 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 or a witness. MOAR, P.J.

Introduction [ 1 ] The accused (“D.C.”) entered guilty pleas to the following charges on October 24, 2014: 1) That he did for a sexual purpose touch Da. C. between October 10, 2010 and January 26, 2014 contrary to s. 151 of the Criminal Code of Canada . 2) That he did for a sexual purpose touch Dr. C. between January 1, 2013 and January 26, 2014 contrary to s. 151 of the Criminal Code of Canada . 3) That he did for a sexual purpose touch Dy. C. between January 1, 2013 and January 26, 2014 contrary to s. 151 of the Criminal Code of Canada . 4) That he did for a sexual purpose invite Dy.

C. to touch directly with a part of his body the body of Day. C. between January 1, 2013 and January 26, 2014 contrary to s. 152 of the Criminal Code of Canada . 5) That he did for a sexual purpose invite Day. C. to touch directly with a part of his body the body of Dy. C. between January 1, 2013 and January 26, 2014 contrary to s. 152 of the Criminal Code of Canada . 6) That he did for a sexual purpose touch Al. C. between September 1, 2012 and January 26, 2014 contrary to s. 151 of the Criminal Code of Canada .

7) That he did make child pornography, being digital images, between September 1, 2012 and January 26, 2014 contrary to s. 163.1(2) of the Criminal Code of Canada . 8) That he did possess child pornography, being digital images and a video, between January 1, 2013 and January 26, 2014 contrary to s. 163.1(4) of the Criminal Code of Canada . 9) That he did distribute child pornography, being images, between September 1, 2012 and January 26, 2014 contrary to s. 163.1(3) of the Criminal Code of Canada . [ 2 ] The complainants are the biological children of the accused and the offences span a period of time from October 10, 2010 until January 26, 2014.

The Crown proceeded by way of Indictment on each of the counts and each of the pleas that have been entered were done so based on an Agreed Statement of Facts that was read into the record and subsequently filed (Exhibit 1) as an exhibit in these proceedings. AGREED STATEMENT OF FACTS Family Background [ 3 ] D. C. began a relationship with the mother (“A.C.”) of the children when he was about eighteen years of age. There were five children born of this union; Al. C. born in 2004, Dy. C., born in 2005, Da. C. born in 2006, Dr. C. born in 2008 and Day. C. who was born in 2009.

The two eldest children were born in Winnipeg and shortly after their birth the family relocated to Edmonton where the remaining three children were born. [ 4 ] While in Edmonton the family became involved with Edmonton Child and Family Services and all of the children were removed from the family home.

It is not clear what led to the involvement of the Child and Family Services or what necessitated the removal of the children. [ 5 ] The father of the accused attended several of the protection hearings in that jurisdiction and at one point in the proceedings had been told by an agency worker that they had concerns involving the interaction between his son, the accused, and Al. C.

The agency took the position in the proceedings that the children would not be returned back into the care of A.C. until the accused had left the province. [ 6 ] On November 26, 2008 the accused became the subject of a s. 810 recognizance (Exhibit S4) for a period of one year. In comparison with similar types of orders that issue from the Provincial Court of Manitoba, the order was unusual in the number and types of conditions that were attached.

The Edmonton order contained conditions that limited the accused’s access to the children as well as a condition prohibited the accused from having contact with any person under the age of sixteen years of age unless supervised by an approved adult. [ 7 ] At some point in time the accused did leave Alberta in 2009 and relocated back to Winnipeg where he lived with his father for about five or six months.

His move from Alberta resulted in the children being returned to the care of A.C. with the understanding that A.C. was not to have any further contact with the accused. [ 8 ] A.C. remained in Edmonton for a period of time and did so without any family or other supports to assist her. About nine months after the accused had left Edmonton, A.C. and the children relocated back to Winnipeg and moved into the accused’s father home. [ 9 ] The accused’s father noted that A.C. was not helping around the home and felt that she was ill-equipped to care for the children.

He thought that perhaps a break was in order and suggested to A.C. that she should consider living with her mother for a period of time. Within a week of that A.C. located an apartment on Roblin Boulevard that she could move into. [ 10 ] Sometime during 2010, a worker from Child and Family Services here in Winnipeg contacted the father of the accused and advised him the accused was not to have any unsupervised contact with the children.

By the end of 2011 he had become aware that his son and A.C. had reconciled. [ 11 ] An agreement was ultimately reached where the three older children continued residing with the accused’s father and the two younger children lived with the accused and A.C. in their home. The siblings continued to interact with one another through overnight visits that were held on Fridays at the home of the accused and his wife. [ 12 ] The accused’s father noted certain behavior issues with the children and told police that he felt it may have been a result of their time in foster care in Edmonton.

The behaviour noted involved the boys rubbing their front genital area on top of their clothing. At times they would defecate outside and not wipe their bottoms properly after having a bowel movement. None of the boys had been circumcised and they each had to be taught proper hygiene as well as cleaning techniques by the grand-parents. [ 13 ] Al.

C. was noted to wear the same underwear for up to a week and she also had to be taught about proper hygiene and cleanliness. [ 14 ] During times when the accused would visit at the family home it was noted that all of the children would be extremely physically affectionate with him. They would be seen sitting on him and in particular Al. C. was observed grabbing at and touching her father in ways that seemed to be “excessive’. [ 15 ] There were a number of incidents where Al. C. would act inappropriately and in particular there was one incident where she

was caught dancing nude in front of her brothers. At other times she was observed running nude around the change rooms at the pool. The accused’s father was also contacted on one occasion by the school as Al. C. had been observed “gyrating” or rubbing her genital area on a chair and the school official suspected that may be an indication of a yeast infection. [ 16 ] On another occasion the accused’s father became aware of an incident where Dy. C. asked if he could put his penis into the mouth of his brother, Da. C. When confronted, Dy. C. could not identify where he had learnt that behaviour.

Both parents were advised of this incident and both indicated that they did not know from where their son may have learnt that behaviour. [ 17 ] A subsequent police investigation led to the accused being arrested on January 26, 2014 and he has remained in continuous custody since that day. [ 18 ] At the time of the accused’s arrest, Al. C. was nine years old, Dy. C. was eight years of age, Da. C. was seven years of age, Dr. C. was five years of age and Day. C. was four years of age. Sexual Abuse of Children (

i) Sexual Abuse of Al. C. [ 19 ] Al. C. was interviewed by a member of the Winnipeg Police Service Child Abuse Unit the evening her father was arrested. At that time she was nine years of age and in grade four. [ 20 ] She stated the abuse by her father began when she was eight years old and continued up until his arrest. She described the abuse as occurring often, usually every weekend throughout her time in grades three and four, during which time there was one two week break from the abuse occurring.

The incidents would occur at night when everyone in the house was asleep and the majority of them occurred in the living room of her father’s home. [ 21 ] The sexual assaults by her father consisted of him having her perform fellatio on him; he performing cunnilingus on her; he masturbating her and then having her masturbate him; he masturbating in front of her; he touching and digitally penetrating her vagina and anus; he at times placed his penis in the area of her vagina; at other times he would have her straddle him with their genitals touching and at times he would put his semen onto her vagina. [ 22 ] The accused photographed some of the incidents of sexual abuse as well he also photographed Al.

C. naked that included close up photographs of her genital area. These photographs were shown to her by her father and he also told her that he would look at them when she was away. [ 23 ] Al. C. indicated that on occasion she did not want to lick her father’s penis but he would make her do it. During times that that he would place his penis in her vagina area, Al. C. indicated that she found it very uncomfortable. At times during the assaults that were occurring Al.

C. would tell her father, the accused, she was tired and did not want to do what he was asking of her but he would tell her he wanted to and kept awaking her during these incidents. [ 24 ] The accused told Al. C. not to tell her mother or anyone else for the matter. If her father heard someone coming into the living room during the times she was being assaulted, he would rush to put her pants back on and throw a blanket over top of her. [ 25 ] On January 27, 2014 Al.

C. was seen by a Sexual Assault nurse and a genital examination revealed she had redness and tenderness to the touch of the labia minora as well as redness and tenderness to the touch of the fossa navicularis. (ii) Sexual Abuse of Dy. C. [ 26 ] Dy. C. was interviewed by police on January 30, 2014 and at the time of that interview he was eight years of age. [ 27 ] During his interview he denied been given a “bad touch” by his father and exhibited signs of extreme distress during that interview. Although there was no disclosure made by Dy.

C. he did confirm to the officer after the interview had ended that there had been bad touches by his father but he did not want to discuss them at that time. [ 28 ] Dy. C. was again interviewed on May 12, 2014 by a different member of the Winnipeg Police Service after he had made a disclosure of abuse to his foster mother. This time Dy. C. disclosed that his father had been sexually abusing him on an ongoing basis that continued until his arrest. [ 29 ] The incidents of abuse disclosed consisted of the accused making Dy. C. perform fellatio on his brother, Day. C., after Day.

C. had used the washroom and urinated. He also described being made to lick Day. C.’s anus area by his father when they would be in the bathroom with the door locked. Dy. C. also disclosed that his father would have him perform fellatio on him. [ 30 ] Dy. C. told police he tried to say no when he was told to perform fellatio on Day. C., but his father would tell him that he would be taken to seven-eleven for a treat if he did it. [ 31 ] These incidents of sexual abuse occurred during the times he was at his father’s home for a sleep over. (iii) Sexual Abuse of Da. C. [ 32 ] At the time of Da.

C.’s interview on January 30, 2014 he was seven years of age. [ 33 ] He disclosed his father, the accused, occasionally “smacks” him on the head. He also disclosed that he was made to perform fellatio on his father before he would be allowed to play a video game he liked. While he would be playing that game his father would take out his own penis and say to Da. C. “suck on my wee wee”.

[ 34 ] That was the only incident of abuse that Da. C. discussed during the course of his interview. (iv) Sexual Abuse of Dr. C. [ 35 ] At the time Dr. C. was interviewed on January 30, 2014 he was five years of age. [ 36 ] During the course of his interview he did not make any disclosure of being sexually abused by anyone. [ 37 ] However, upon the arrest of the accused, he indicated in his June 12, 2014 statement that he had been abusing Dr. C. on an on- going basis up to his arrest and that abuse consisted of having his son perform fellatio on him. (

v) Sexual Abuse of Day. C. [ 38 ] At the time Day. C. was interviewed he was four years of age. [ 39 ] He also made no disclosure to police but the accused admitted in his statement to police that he made Dy. C. perform fellatio on Day. C. that would occur after Day. C. had used the washroom and urinated. In addition the accused also admitted that he made Dy. C. lick Day. C.’s anus area while they would be in the bathroom with the door locked. Arrest of D.C. [ 40 ] During the period of January 25 – 26, 2014 the grand-parents, who were the care givers for the older three children, were away on vacation.

As a result all five children were staying with their parents at their Roseberry Street residence, here in the City of Winnipeg. [ 41 ] On January 25, 2014 an Australian police officer was conducting an undercover (“u/c”) investigation on an image-sharing website that was known to be frequented by pedophiles. [ 42 ] Within this website, the accused was operating under the user name of “secret admirer” and had a g-mail account that he utilized to communicate with others on this site. [ 43 ] Within this website he had posted numerous photographs and albums that were tagged with names such as “candid”, “daughter”, “hussy”, “Lolita”, “model” and “preteen”.

In addition to those postings, the accused also had a number of password protected folders. One of the protected folders had thirteen graphic photographs of an adult male (later identified as the accused) sexually abusing a young girl, who was later identified as the Al. C., the daughter of the accused. [ 44 ] In another folder the accused had thirty-one additional graphic photographs which again showed him sexually abusing the same female, his daughter. In a folder entitled “preteen cuties girl” there were nine pictures of Al.

C., fully clothed, with the caption “if interested of seeing some homemade stuff with this cutie e-mail me”. [ 45 ] In a folder entitled “preteen cuties boys” there was one picture of his four sons in a police car with the caption, “if interested of seeing homemade stuff with these handsome little guys e-mail me”. [ 46 ] On January 25, 2014 the u/c officer began posting comments on the noted folders requesting and received a picture of Al. C., fully clothed, from the e-mail address of the accused that included the notations “Trade?” and “Do you want to see more?”. A second picture of Al.

C. wearing underwear was sent by the accused. [ 47 ] A series of e-mails were then exchanged between them in which the accused indicated that he had just finished a photo shoot with the girl and described his collection of her as being “decent” and “in all kinds of poses”. He further indicated that he had more pictures of girls to trade but needed pictures sent back to him. He also told the officer he would take requests on the abuse of Al.

C. if he liked the materials he received from him. [ 48 ] Also within the exchange of e-mails, the accused indicated that he did not have any pictures of boys yet but if he were sent “decent” boy pictures he would make pictures of boys to send back. The accused advised the u/c officer that he liked “hardcore kids aged 2 – 12” and continued to send more pictures of Al. C. that included one of her asleep and one where she was semi-naked on the couch with her vagina exposed.

He indicated in the e-mails exchanged that he had “fucked” a nine year old boy and indicated that boys are easy to get, while girls are a challenge. He also indicated that he had five children of varying ages that he identified for the u/c officer. [ 49 ] On the basis of the EXIF data on the photographs that were sent, the u/c officer was able to determine the type of camera that was being used on January 25, 2014. Subsequent forensic investigation showed that an unsent e-mail that was created at 11:35 p.m. on January 25, 2014 contained fourteen additional photographs of Al.

C. [ 50 ] The accused, who was unaware of the true identity of the person he was communicating with, continued with the e-mail communications. On January 26, 2014 the accused sent another picture of Al.

C. exposing her vagina and that photograph also had enough data to determine it had been taken the day before. [ 51 ] The Winnipeg Police Service Child Abuse Unit were notified about this investigation undertaken by the Australian police and based on the information they were provided identified the accused as the suspect. [ 52 ] On January 26, 2014 at about 8:30 p.m., the Winnipeg Police attended to the residence of the accused to check on the well- being of the children. Initially only A.C. was home with Dy. C. and Dr. C. but about thirty minutes later the accused returned home with the other three children.

At 9:00 p.m. the accused was placed under arrest for offences involving child pornography and the abuse of Al. C., his daughter. He declined comment on the charges when interviewed but did identify Al. C. in a child pornography photograph that was shown to him.

[ 53 ] The Winnipeg Police Service Child Abuse were called out and upon attending the residence observed Al. C. crying and hanging onto her mother. She was taken to the Health Sciences Centre where she provided police with a statement and on January 27, 2014 she underwent a Sexual Assault Protocol (“SAP”) examination. [ 54 ] The investigation continued and on January 27, 2014 with the Winnipeg Police Service executing a search warrant at the residence.

A forensic examination of the seized devices was undertaken by the Winnipeg Police Service Internet Child Exploitation unit (“ICE”) and subsequent analysis showed that the accused had created an e-mail containing fourteen photographs of Al. C. at 11:35 p.m. on January 25, 2014 that was unsent. In addition it was discovered that the accused had e-mail correspondence with an individual identified as “Loe Ju” between 10:59 a.m. and 7:12 p.m. on January 26, 2014. In that exchanged child pornography had been exchanged between the parties and in one of photographs Al.

C. was holding a homemade sign that said, “Loe Ju, wish you were her” with an arrow pointing to her vaginal area. [ 55 ] In addition a conversation with “Gregory Shook” that occurred on January 26, 2014 between 3:07 p.m. and 5:40 p.m. was also recovered by the ICE unit. In their communications “Gregory Shook” indicated that “I jus love girls in their panties” and in reply to that response the accused asked “what u git in trade?” and attached two photographs of Al.

C. , one which showed her face and one that showed her body with her shirt pulled up exposing her breasts, with her underwear visible. [ 56 ] As an investigative aid for the ICE unit, they took pictures of all five children and when Day. C. was asked to turn his back to the officer he started to pull his pants down, which was quickly stopped by the officer. [ 57 ] As a result of the forensic examination undertaken by police, the accused was rearrested on June 12, 2014 at which point he was advised that additional sexual related offences involving three other children of his, those being Dy. C., Da. C. and Day.

C. would also be laid. Once those charges were explained, the accused advised police that he wanted to deal with all of the matters and gave a statement concerning Dr. C. where he admitted that he had forced his son to perform fellatio on him. [ 58 ] In that same statement the accused stated that he believed he was addicted to sex.

He advised that he had also cheated on his wife about one hundred and fifty times over the years and apologized to her for what he had done. [ 59 ] In terms of the offences themselves, he stated that they occurred because the children were accessible and suggested that if he could have had a normal sexual relationship with a woman perhaps the offences would not have happened. When asked if he was sorry for what he did to his children he said he was sorry they had to go through this and that they need therapy. [ 60 ] He also guaranteed that the matter would not go to trial as he would be making a plea deal.

He indicated that he had come to terms with the fact he would not see his children again for as long as they were minors and Child and Family Services was involved. He suggested that he was accepting that his behavior cost him his family. Forensic Evidence [ 61 ] Police executed a search warrant at the residence of the accused and seized a number of items including the cellular phone of the accused.

That phone was analyzed by the Winnipeg Police Service ICE unit and police discovered that it was the primary mechanism used in the commission of the offences before the court. [ 62 ] Police were able to trace the steps of the accused and noted he had visited numerous pages on the image-sharing website where he had communicated with the u/c police officer.

These pages, which are posted by like-minded individuals, contained postings of non- nude children and offered private pictures and videos of the children in exchange for pictures and videos of other children. [ 63 ] In total there were thirty-five web bookmarks noted and four led to folders containing images of very young children who were partially clothed either using the washroom or in the bath. On one of those pages the accused posted the comment “Adorable.

Want to trade?” underneath a picture of a clothed five to six year old girl. [ 64 ] The accused had also created his own page that contained images of Al. C. fully clothed that had comments posted by other users seeking to trade images. [ 65 ] A total of four hundred and eighty-nine child pornography images were located on his cellular phone. About seventy of those images were of Al. C. taken on the living room couch in which she was either partially or fully nude. In most of the photographs Al.

C. was on her back with her legs spread exposing her vagina. [ 66 ] In some of the photographs the accused’s hand can be seen pulling Al. C.’s underwear to the side and in others he can be seen digitally penetrating her vagina and anus. In one photograph the accused is captured licking the vagina of Al. C. and in others Al. C. is depicted nude, straddling her father with their genitals touching. [ 67 ] There were also photographs of Al. C. licking her father’s penis and others where his penis is in her mouth and one where she is nude with her legs spread and a white like substance is observed on her vagina.

Police were able to determine that some of these photographs of AL. C. were taken on between 9:27 p.m. and 9:43 p.m. on January 25, 2014. [ 68 ] Most of the child pornography photographs located on the accused’s cellular phone depicted young girls whose ages spanned from being infants to about ten years of age. They included nude postings that were focussed on the genitals, fellatio and both vaginal and anal penetration. There were forty-nine photographs of child nudity showing both boys and girls being fully or partially nude, many with the child in the bathtub. Two of the photographs were of Al.

C. with her buttock being fully visible. [ 69 ] There were also photographs of unknown young girls that are commonly referenced as being “child modelling” images. Those involve the child posing in a bikini or revealing bras and panties. [ 70 ] There was also a smaller collection of photographs of young boys who appeared to be between four and eight years of age.

Some of those images were of an adult male engaging in anal intercourse with the child and others showed this adult male performing fellatio on the child. [ 71 ] Police also discovered one child pornography video that was one minute and sixteen seconds in length entitled “Girl Fucked Private 2010”.

It showed an adult male taking the diaper off of a child, who police believed to be two to three years of age, and then focussing the camera close up on her vaginal and anal areas. [ 72 ] The accused was also found to have a collection of adult pornography photographs that totalled one thousand, seven-hundred and sixty-five. Those pictures were of women, either partially or fully nude, who were bound with whips and chains and they appeared to be having pain inflicted upon them through means such as having clothes pins applied to their breasts.

IMPACT ON CHILD VICTIMS [ 73 ] Crown counsel filed a number of reports (Exhibit S3) that were completed by Dell Ducharme on January 2, 2015. There was a report prepared for each child in which the potential impact of the sexual assaults committed by the accused upon each of the children is explored as well as treatment needs. [ 74 ] There are a number of common issues that are common to each child and they are often interwoven with another. With respect to each of the children, sexual acting out and sexual acts with one another has become the norm.

Their sexual knowledge is beyond normal for their stage of development.

The sexualized behaviours noted for the children are similar and include sexual interactions such as fondling, kissing and licking genitalia; kissing lips, face, neck and body of one another; exposing genitalia and buttocks; sexualized dancing and body movements and self-stimulation. [ 75 ] A series of other behaviours has been noted in each of the children that includes aggressiveness, the controlling of environment and others, hyper-vigilance, poor self-regulation and poor boundaries with respect to property and personal space. [ 76 ] Various emotional and psychological symptoms noted in the children include shame, denial, avoidance, dissociation, dysphoria, fear, confusion, anger and anxiety. [ 77 ] Socially the children have been noted to have poor social skills, a lack of safety, bullying and distorted sibling relationships with poor interpersonal boundaries. [ 78 ] Individually there have been a number of specific concerns noted which I will briefly set out to provide some context of the harm committed to each of the children.

Al. C. [ 79 ] Al. C. continues to remain somewhat guarded and detached with respect to her abuse. The abuse itself has altered her cognitive and emotional sexual development and she possesses sexual knowledge beyond that of her peers. [ 80 ] She tends to seek control, particularly with respect to her brothers and has had difficulty recognizing or trusting any adult authority. There is a concern that Al.

C. may lack the capacity to defer to adult authority as issues arise in adolescence and there is a risk she may become oppositional and feel she is the adult. [ 81 ] To date she appears unaware of the extent the abuse may impact of her life. She presents as being hyper-vigilant and protective in terms of her own safety and that will be tested once she becomes aware of her father’s actions of having shared photographs of her on the internet. [ 82 ] She is considered to be vulnerable and the concern is that she may gravitate towards abusive males and as such careful monitoring and intervention is deemed necessary.

It is suggested that she will require significant treatment for the abuse she has suffered in order to mitigate future risks.

As she enters puberty the impact of the abuse she has suffered will begin to become clear. [ 83 ] The events that have occurred to her are unfortunately interwoven into who she is and it is suggested “there is a need to carefully dismantle her belief structures, her behavioral and relational patterns, and the established biological responses to stimuli associated with attachment and intimacy”. [ 84 ] In this regard it is suggested that she will require regular and consistent therapy that must exist within a stable and safe home environment. She must develop new ways of seeing herself and the world in general. Dy.

C. [ 85 ] Clinically Dy. C. presents with avoidant attachment patterns, which has been seen to place similar types of children at risk for narcissistic and schizoid- based problems. He has been able to make connections easily but has shown poor boundaries with respect to the information shared and to whom it is shared. [ 86 ] He has discussed his abuse openly in the therapeutic sessions but it is noted he has done so without a high level of emotional attachment.

He has shown a lack of concern for personal boundaries and has been observed to act out sexually in the school setting. [ 87 ] The effects of the abuse have been observed as Dy. C. sees himself as the protector of his siblings. He has experienced confusion between sexual behaviors and nurturance and has had difficulty with distinguishing between appropriate healthy physical contact and sexualized contact when interacting with his brothers and as such the focus of the early therapy sessions was on creating

boundaries. [ 88 ] The risk factors associated with Dy. C. specifically include thinking errors that distort and minimize the abuse, victimization that involved coercion and threats, inadequate impulse management, empathic deficits and emotional immaturity. [ 89 ] He will require regular and consistent therapy along with a stable and safe home environment. Da. C. [ 90 ] Clinically Da. C. presents as the least effected, amongst the sibling group, by the abuse that occurred.

With that he does display signs of avoidant/dismissive attachment style which may increase his risk for relational challenges due to an inability to develop closeness. [ 91 ] He presented with internal resources that appear to have assisted him with protection from some of the impact associated with the abuse. In therapy he has been able to express himself about the abuse occasioned with a view that is more in tune with societal norms. [ 92 ] The focus of his initial therapy sessions was to establish rules pertaining to personal contact and boundaries.

He has been noted to have some difficulty with attaching to or trusting adults and in that regard has seemed to respond better to healthy females. [ 93 ] Although he appears to be dealing with the issues arising from the abuse better than his siblings, it is important to note that the abuse occasioned was long-term. A concern identified is the fact that his foundation for growth and future learning has been built on misinformation as well as on “responses that are neither healthy nor socially acceptable if emotionally and behaviorally manifested with others”. [ 94 ] Da.

C. will continue to require assistance to mitigate any potential future risks. He will require regular and consistent therapy as well as participation in peer-based activities to foster both intra and inter personal growth. Dr. C. [ 95 ] Clinically Dr. C. presents with anxious attachment and it is expected he will experience anxiety outside the norm of others his age. It is anticipated he will experience difficulty developing trusting relationships as well as developing a sense of personal safety. [ 96 ] In therapy he presented as cooperative but was somewhat shy and quiet in nature.

Very early on it was noted that he was sensitive and easily overwhelmed. He presented with difficulties in managing any painful feelings and is very wary of adults in general. [ 97 ] He too will require regular and consistent therapy. Day. C. [ 98 ] Clinically Day. C. presented with ambivalent attachment pattern and was noted to respond to stressful situations with anger. [ 99 ] He has been cooperative with treatment and has been generally noted to be strong willed and at times avoidant.

Although he presents with an apparent inflated sense of self he has difficulty in managing disturbing or painful feelings. [ 100 ] The individual risk factors attached to Day.

C. includes victimization that involved coercion and threats, in adequate impulse management, immature emotional development, cognitive distortions with respect to attachment, nurturing and sexual behaviour and normalization of the abuse. [ 101 ] It is suggested that he is in need of significant treatment for the abuse that he suffered to help mitigate any future risks. [ 102 ] With respect to the facts of this case and what the children have experienced they are three to four times more at risk of future pathology related to mood and anxiety, trauma, self- harm and suicidality, substance abuse and dependence, school related struggles and failure, relational and parenting challenges, sexual deviance, personal dysfunction , underemployment, living a marginal lifestyle and the possibility of having contact as an adolescent and adult with the Justice and of Child Welfare systems. [ 103 ] This latter set of concerns is what the Crown has referenced as being the legacy that is being left by the accused through his victimization of the children.

PRE-SENTENCE REPORT [ 104 ] A very length and detailed pre-sentence report (Exhibit S2) was completed by Ms. Amy Lamb of Probation Services. Within that report she detailed the background of the accused and I propose to highlight certain points within the report that I feel are relevant to the sentencing of the accused. Criminal History and Attitude [ 105 ] In terms of criminal history and attitude the accused appears before the court having entered guilty pleas to a number of offences. He acknowledges that what he did was bad and expressed a degree of remorse for his actions.

He described the beginning of his offending behaviour as being opportunistic and that it switched to involving a lot of planning. [ 106 ] That planning included finding ways to separate his wife from the home so that he could be alone with the children. He indicated that his daughter was his focus and the boys were the “fall-back’ whenever she was unavailable. [ 107 ] Although the accused suggested that he did not force his daughter to do something she was not comfortable with, he did

acknowledge that he groomed her. It is his contention that he never intended for things to go as far as they did and understood the potential for harm towards his daughter had been escalating prior to his arrest. He indicated that he justified his actions as “it happened to me and I turned out alright, they’ll be okay”. [ 108 ] In reference to the media coverage concerning himself he offered that the headlines were for shock value and stated “the crimes I have committed have become so common place”.

He suggested that he was not trying to minimize his actions but went on to say that he got caught up in his “illness”, which was not expanded on any further. [ 109 ] The accused noted that he cannot change what he did but he can make sure it does not happen again.

He offered that he does not believe he is beyond the point of redemption and acknowledged that he deserves to do prison time. [ 110 ] He expressed a willingness to participate in some sort of treatment to learn how to channel his “problems with his sexuality in more appropriate ways” as well as understanding how to shut off his love, compassion and concern for his children in order to get his sexual needs met. Family/Marital [ 111 ] As for family the accused indicated that his parents divorced shortly after the birth of his one younger brother due to his father’s infidelity.

That was in contrast to what his father stated in that his wife had an issue with being faithful and that led to them separating. [ 112 ] The accused continued to reside with his mother who soon entered into a long term relationship with a new partner that has continued for about twenty-seven years. He described having a difficult relationship with his mother partner who was a user of corporal punishment.

The accused described being “strapped” with a belt about thirty-two times and suggested that made him adept at lying to avoid punishment. [ 113 ] In terms of his brother, the accused indicated that he did not really like his brother as he seemed to be “immune from punishment”. The relationship between them did improve somewhat but as of now they do not have any contact. [ 114 ] The accused had visits with his biological father throughout his youth and described being treated very well by him during those visits.

His father remarried and his wife had two children from a previous relationship that lived in the home. [ 115 ] The accused described that he was socially awkward and very sexualized as a child. Since the age of four he described masturbating himself at least once a day and recalled that his first sexual experience occurred when he was five when he and another boy performed oral sex on one another.

The accused’s characterization of being overly sexualized was something that neither of the biological parents saw any indication of during the accused’s youth years. [ 116 ] When the accused was six years of age he described that his step-sister, who was fourteen at the time, initiated sexual contact with him. This was disclosed by the accused to his father when he was caught with another little boy. The accused indicated that the relationship with his father ended shortly this occurred, which Ms. Lamb stated was something discussed by the father during his interview.

In this regard, his father described the accused as being someone who would “modify stories” and do things to get attention. [ 117 ] In terms of his own behavior the accused attributed it to having blurred boundaries in the home as a result of his mother having been sexually abused by her father. That incident was confirmed as occurring by his mother during her interview for the preparation of the report. [ 118 ] His mother confirmed that there were multiple moves by the family and during the accused’s young years, between the ages of five and nine, they moved about four times.

This, according to the accused, resulted in him having few friends but he expressed no difficulty with connecting with others wherever he lived and described himself as a people person. [ 119 ] When the accused was nine years of age he advised his mother began to foster a fifteen year old girl. This foster girl began to initiate sexual intercourse with him and that was occurring three to four times a day which eventually led to him experiencing physical pains. The accused described being locked out of the house in his underwear or having food withheld by this foster girl if he did not “satisfy” her.

Eventually the girl was removed from the home as she tried to seduce the accused’s step-father, which was confirmed during the interview of his mother. The accused did not disclose these incidents involving his foster sister to his mother until he had become an adult. [ 120 ] The accused suggested this incident had a dramatic effect on him and led him to feeling angry and sullen. He eventually went to live with his biological father as his mother and her partner had relocated outside of the province.

This move home did not go well as he believed his father’s wife began to resent his presence in the home. [ 121 ] During the ages of ten to fourteen the accused denied any sexual activity occurred aside from his daily masturbating. Around that time he was asked to babysit his half-siblings and during a three week period he was “inappropriate” with his four year old half-sister by touching vagina while he masturbated.

He described this as being an opportunity that was just there. [ 122 ] The accused was confronted about this incident by his step-mother and after admitting his actions he was arrested and placed into foster care. Eventually a voluntary placement agreement was signed by the accused’s father and there was essentially no communication between them for about a year. [ 123 ] Eventually the accused was placed into a foster home in Winnipeg and described this first time living in Winnipeg as being a culture shock.

At his foster placement he began to get into trouble by committing criminal offences and he made a decision to runaway to Edmonton, Alberta to live with his mother. [ 124 ] This was not conveyed to his father for about three weeks when he had tried to contact the accused. His father confirmed that nothing was done to bring him back to Winnipeg by Child and Family Services.

[ 125 ] The accused lived in the basement of his mother’s home from the age of fifteen to seventeen years and eventually left school and began to work at his step-fathers construction business. That employment ultimately ended when his step-father caught him engaged in having sex in one of the work trailers. A physical confrontation occurred between them that led to police involvement.

As result of the incident the accused was terminated from his employment and he kicked out of the home to permit the step-father to return there. [ 126 ] During this time frame the accused had continued to be sexually active and described his goal was to meet other girls for casual sex. He estimated that he had about sixty different sexual partners during this two year period of time. [ 127 ] Once the accused was kicked out of the home he essentially resorted to living on the streets of Edmonton for some two to three years during which time his contact with his mother was described as being limited.

He soon began to resort to criminal activity to survive and eventually he was arrested with a stolen car that he intended to move to Calgary to be sold for parts. He contacted his father and was returned to Winnipeg on a Grey Hound bus in order to deal with some outstanding charges. He was met at the bus depot by his father who noted his son was not who he had remembered him as being.

Instead his son presented with abusive language and racist ideas after apparently having joined a white supremacy group while in Edmonton. [ 128 ] From the bus depot he turned his son over to the police in order to deal with the outstanding matters. [ 129 ] The accused did move back into his father’s home and his father was contacted by Child and Family Services who advised him not to permit the accused unsupervised contact with his half-sister based on his history in Edmonton.

The accused’s father was under the impression his son had completed sexual offender counselling in Manitoba but later found that was not accurate. [ 130 ] The accused met his future wife while attending a GED program in Beausejour, Manitoba. They began a sexual relationship and within two weeks A.C. became pregnant. She ceased all contact with the accused but after the birth of Al. C., the accused was permitted an opportunity to meet her and described the immense feeling of accomplishment he felt when doing so. [ 131 ] The couple resumed their relationship and she again became pregnant in short order.

They relocated from his father’s home to an apartment in Winnipeg and at that time the accused described he was being faithful to A.C. The relationship became somewhat unstable and stressful t at which time the accused began to cheat on A.C. with other women. [ 132 ] The accused suggested that he was not meant to be monogamous but did not equate sex with love during these times. While pregnant with her third child, A.C. left the accused and moved in with her mother.

The couple once again reconciled and they all moved to Edmonton, Alberta where they resided with the accused’s mother. [ 133 ] While in Edmonton A.C. caught the accused cheating on numerous occasions and when she confronted him he would blame her for his infidelity as she was unable to meet his sexual needs. His desire to have sex all the time was a point that A.C. said caused tension in the relationship. [ 134 ] In terms of his viewing of pornography, that had started when he was fifteen or sixteen years of age.

His first observation was of an eight year old girl that he found “intriguing” and he began to download pornography once or twice a week in order to masturbate. This was the point upon reflection where he believes his attraction to children began. His downloading of child pornography continued while he and A.C. were living in Edmonton and although she was aware he viewed adult pornography, she was unaware of his illegal actions. [ 135 ] The Edmonton Police Service became involved with the accused as a result of child pornography being discovered on the home computer.

This is where the s. 810 Peace Bond originated and Edmonton Child and Family Services became involved with the family. [ 136 ] One of the conditions prohibited the accused from being alone with his children which led to the accused having to leave the home. He, however, did not abide by that condition and would attend the home to assist A.C. In one instance he tried to hide in the dryer to avoid detection by the police during a spot check but eventually surrendered himself.

That led to the three younger children being apprehended and placed into foster care. [ 137 ] The couple attended parenting classes together and the accused engaged in individual counselling all in an effort to meet the agencies expectations for the return of the children to the family home. The accused admitted that he did not use this opportunity to deal with the prevailing issues in his life as he feared that could affect the return of the children. [ 138 ] The fifth child was born in 2008 and immediately apprehended at the hospital by Child and Family Services.

By the end of that year all of the children had been returned to the family home but he and his wife soon realized they could not meet the needs of the children and all of the children were again apprehended again due to concerns of physical abuse. [ 139 ] The accused realized he was the problem that would prevent the return of the children and he ended his relationship with A.C. two days prior to their family court trial and promptly moved back to Winnipeg.

A.C. suggested the break up occurred as he “wanted free rein to do what he happened”. [ 140 ] Once back in Winnipeg the accused continued his pattern of having sexual relationships with varying women. [ 141 ] The children were returned back into the care of A.C. in April 2010 and Child and Family Services closed their file on her in December of that same year. His father assisted A.C. and the children in moving back to Winnipeg and during this time the accused was residing in a faith based residential treatment program despite the fact he was not spiritual nor suffered with addiction issues.

He had deceived them in order to gain entry to the program as he had no other housing options available at the time. [ 142 ] The couple again reconciled in 2011 and resumed living together with two of the children. The accused was employed full-time at this time and A.C. believed he had changed as he told her that he was attending therapy. The accused began to find that his sexual urges were again not being met and he felt that A.C. was withholding sex to control him. He at this time again began to view pornography which created difficulties in his relationship.

[ 143 ] By the end of 2011 the accused stated he began see a connection between his attraction to child pornography and his own children. During this time his incidents of infidelity had also increased and despite being caught by A.C., she continued to remain with him. [ 144 ] The stress of parenting the five children was overwhelming to the accused and he soon realized that he was not parenting material.

Despite having some connection to the children, the accused admitted he put his own needs first. [ 145 ] The accused and A.C. continued in a relationship up until his arrest and according to him there has been no contact between them since that day. [ 146 ] A.C. had felt that the relationship had appeared to her to have improved once they had moved into a home with her brother and his girlfriend. The accused appeared to want to spend more time with the children and during this period of time she did not witness any inappropriate behaviour occurring.

She did not think anything of the accused’s desire to spend time alone with the children. [ 147 ] Since his arrest, the accused is aware the five children are with his parents and he has not had any contact with his father. [ 148 ] He has remained in contact with an uncle and his mother and they continue to support him despite the nature of the offences. Of interest was his mother’s comment to probation services that given the facts there will never be a cure for her son and that he will always need to be “managed”.

In that regard she believes the tone of his letters to her have changed from anger to one where he now wants help. [ 149 ] His uncle also expressed concern for what occurred and noted the accused has had problems with lying in the past. [ 150 ] When probation services spoke to the accused’s father he stated that given what has occurred he can no longer support his son. He outlined the accused is very good at manipulating people and he no longer knows what is the truth. Education and Employment [ 151 ] The accused maintains that he moved often as a youth and therefore attended numerous schools.

Despite the many moves it was his view that he did surprisingly well in school and received good grades. [ 152 ] In terms of employment most of it has occurred in the area of construction and renovations. The accused’s father confirmed his son has a strong work ethic but struggled to maintain employment as his “mouth gets in the way”, a pattern was also noted by A.C. [ 153 ] Prior to his being arrested the accused had been employed at Nisby Home Renovations and suggested to the writer of this report that he could return to that employment if he were released.

Upon following up with that assertion it was discovered that Nisby Home renovations would not permit the accused employment upon his release. [ 154 ] During his recent period of incarceration the accused reports that he has been employed as a Trustee since April 2014. Alcohol and Drug Use [ 155 ] As a youth the accused reported instances involving casual use of both alcohol and marihuana and did not believe either was problematic.

On his first move into Winnipeg he was introduced to crack cocaine that led to some problems, however he ceased its use when he resumed a relationship with A.C. after the birth of their first child. [ 156 ] The accused maintains that his use of any substances did not contribute to his offending behavior. Leisure/Recreational [ 157 ] The accused described himself to probations services as a “family man” indicating that he had spent the majority of his time at home.

Supplementary Information [ 158 ] The accused confirmed that he began masturbating a minimum of once per day at the age of four years and has always had a preoccupation with sex. Between the ages of five and nine he estimates he had fifteen to twenty sexual encounters with children of like age.

He also reports two incidents of extended sexual abuse, one when he was six years of age with his fourteen year old step-sister and the second being at the age of nine years with a fifteen year old foster girl. [ 159 ] Between the ages of nine and twelve years the accused recalled being introduced to pornography through a stack of Playboy magazines that were on the living room table.

In addition he was being given posters by exotic dancers that his mother and her partner obtained from strip clubs they frequented during the evening hours. [ 160 ] At the age of fifteen years the accused’s father recalled his son being given a bottle of liquor and “porn” tapes by his mother.

She also found it acceptable to be watching pornography with the children in the home. [ 161 ] In his estimation, the accused believes he has slept with about two-hundred and seventy-five women during his lifetime and that includes a woman who was a staff member at one of the group homes he had been placed at. [ 162 ] The writer of the report noted the accused was somewhat contradictory in views regarding his use of pornography throughout his interviews.

He initially disclosed a belief that he was addicted to all pornography with his main attraction being to what he termed “barely legal”, children aged eight to twelve, bestiality and cartoon pornography. [ 163 ] He stated that his addiction and quest to trade pictures with other online users led to him upping the ante to include pictures of his daughter. He was clear that he is not aroused by violent child pornography stating that it did not turn him on seeing tears or them being

hurt. [ 164 ] Later when discussing his leisure activities the accused stated the time devoted to viewing pornography was sporadic. He held out that he “never” accessed pornography at work, around his children or partner and commented that pornography was “not something he lived for” but agreed his use had increased prior to his arrest. [ 165 ] The accused described a period of time where he was able to view child pornography without sexualizing his own children but acknowledged that later on he began to have urges towards them.

He suggested that if he is able to seek out an age appropriate relationship upon his release he would not feel the need to access pornography. Manitoba Corrections Assessment and Recommendations [ 166 ] The accused is twenty-nine years of age and has pled guilty to a number of sexual offences involving his children. The probation officer suggests he has accepted responsibility for his actions and is willing to seek therapy.

Although he has openly expressed a desire to learn other ways, the probation officer does note that the accused has declined previous interventions from several provincial agencies to address his inappropriate sexual behaviors. [ 167 ] In terms of the interview process he provided a high level of disclosure and provided some insight into his offending behaviour but also offered a number of insensitive statements about his children that suggested his experience of empathy is inconsistent and can be overcome by his atypical sexual interests. [ 168 ] He acknowledged that his offending behaviour was met by a lot of planning, grooming and manipulation.

The STATIC 99 tool is used to estimate the future risk based on the various risk factors present and on that basis the accused received a score of four which placed him in the moderate-high risk category for being charged or convicted of another sexual offence. [ 169 ] The Level of Case Management Inventory (“LSCMI”) determined that the accused was a high risk to re-offend.

Given his pattern of behavior to date it was determined that he is assessed as a high level of risk to reoffend if he should enter a relationship with a partner who has children or will have children. [ 170 ] Furthermore the writer of the report opined a concern that should he not have access to children in a relationship he could begin to seek out children in the community to meet his deviant needs. As a result it is suggested that the accused requires a comprehensive and long-term therapeutic intervention. [ 171 ] At this time he is not seen as being a manageable risk in the community.

CRIMINAL RECORD OF ACCUSED February 9, 2004 Theft(b) 18 months supervised probation concurrent and 50 hours CSW (Youth) Joyriding Theft(A)(x2) Breach Probation (x3) FTA (X2) FTC Recognizance CROWN POSITION ON SENTENCE [ 172 ] The Crown has taken the position that this is a case that involves the principles of deterrence and denunciation. [ 173 ] In the course of her submissions to the court Crown counsel spent a great deal of time to show the harm that has been occasioned to each of the children through the actions of the accused.

The Crown suggests the accused is and remains a high risk to reoffend and questions his sincerity in seeking treatment. [ 174 ] Based on the contents of the presentence report and the information uncovered by police during the course of the investigation, it is suggested to the court that the accused is a liar and a manipulator. [ 175 ] With that the Crown takes the position that the victimization of each child requires the court to impose consecutive sentences in each case. The breakdown of the sentence recommendation is as follows: Al. C.

Sexual Interference 10 Years Make Child Pornography 5 Years on each charge concurrent to Distribute Child Pornography one another but consecutive to the 10 years

Dy. C. Sexual Interference 5 Years consecutive Invitation to Sexual Touching 6 Years consecutive Da. C. Sexual Interference 4 Years consecutive Dr. C. Sexual Interference 5 Years consecutive Day. C.

Invitation to Sexual Touching 6 Years concurrent Possession of Child Pornography 2 Years consecutive [ 176 ] The total sentence recommended by Crown counsel is thirty-seven years and upon the application of the principle of totality, the Crown suggests that sentence can be reduced to a total sentence of twenty years, less credit for the time served to date. [ 177 ] On the issue of time spent in pre-trial custody the Crown takes no issue with credit being at time and a half. [ 178 ] The Crown also seeks a number of ancillary orders that arise from the offences before the court.

DEFENCE POSITION ON SENTENCE [ 179 ] Counsel accepts the position he accused was in fact a manipulator and that was acknowledged by the accused himself in the presentence report. That aside counsel takes the position he sentence recommendation put forth by Crown counsel, be it thirty-seven or twenty years, would amount to a “crushing” sentence. [ 180 ] Counsel points out that the accused has always indicated to him a desire to plead guilty in this case and spare the children from having to testify.

The disclosure was substantial and it took time for counsel to receive all of the materials and then to take the time to review it before being in a position to offer legal advice to the accused. [ 181 ] The accused was cooperative with police and although conceding the case concerning Al. C. was strong, counsel suggests that was not the scenario with respect to the other children.

Despite that the accused elected not to test the strength. [ 182 ] The accused did participate in the preparation of presentence report and counsel suggests that it is clear he did not try to hide anything from the writer of the report. He made a number of admissions that were certainly not in his favor and counsel suggests that his cooperation in the preparation of the report should not now be used against him. [ 183 ] Counsel points at the beginning of the report the accused acknowledges that what he did was horrible.

He also acknowledges the harm he has caused to the children wrong and that any relationship he may have had with his family is now over. [ 184 ] In terms of the aspect of prison, the accused also acknowledges to the probation officer that he deserves to do time and he intends to seek the help that he needs during that time. [ 185 ] Counsel reminds the court that the accused was also the victim of a sexual assault and that may help to explain his behavior where the abused later becomes the abuser.

He also experienced a lot of difficulties growing up as a young man that included a period of time when he was homeless in Edmonton. [ 186 ] With respect to the Crowns assertion that the Static 99 result may be understated, counsel sees no basis for that assertion given the accused is assessed as a moderate to high risk.

In addition counsel takes issue with and rejects the opinion expressed by probation services of the accused potentially seeking out children in the community and suggests there is no basis for such a concern. [ 187 ] Defence takes the position that a total sentence of eight years, less the credit for pre-trial custody spent to date, is fit and proper. Counsel suggests that a total sentence of five years for the offences involving Al. C. would be appropriate and a further three years consecutive should be imposed for the offences involving the other children.

PRINCIPLES OF SENTENCING [ 188 ] The purpose and principles of sentencing are set out in s. 718 of the Criminal Code of Canada as follows: “PURPOSE – The fundamental purpose of sentencing 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 of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary;

(

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.” [ 189 ] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). [ 190 ] Pursuant to 718.2(

a) the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. [ 191 ] Pursuant to s. 718.2(1)(iii) it is deemed to be an aggravating factor the accused abused his position of trust to his children when he committed the offenses now before the court. [ 192 ] The sentence to be imposed should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (718.2(b)) and if consecutive sentences are imposed the combined sentence should not be unduly long or harsh (s. 718.2(c)). [ 193 ] Given the nature of the offences before the court

section 718.01 directs that primary consideration be given by the court to the objectives of denunciation and deterrence of the conduct.

MITIGATING AND AGGRAVATING FACTORS [ 194 ] With respect to mitigating circumstances they are few in number: • The accused entered guilty pleas thus sparing the children from having to endure the court process. • His guilty pleas are a sign of his remorse. • The accused has expressed remorse in the context of the presentence report. • The accused does not possess an adult criminal record. • The accused is amenable to seeking treatment while he is serving out his sentence although I do note that he had earlier opportunities to seek out help and did not follow through. [ 195 ] The aggravating factors evident are as follows: • The accused was the biological father of the five victims • He was in a position of trust to each of the children. • Each of the children were young, under the age of ten years, during the time period of the offending behaviour. • He groomed and manipulated each of the children to meet his deviant sexual needs. • The sexual assaults occurred over a lengthy period of time and were repetitive in nature. • The sexual assaults continued up to date of the accused’s arrest. • The sexual acts committed were serious. • He manipulated members of his immediate family to gain access to the children. • The accused took steps to conceal his behaviour. • There was a high degree of planning and premeditation by the accused. • The assessment reports filed on each child reveal the profound effects of the abuse inflicted upon them and the fact that long-term treatment will be required for each. • The accused distributed photographs that he had created, being primarily of Al.

C., through the internet and they are now forever lost from control. • The children will continue to be victimized each and every time those photographs are viewed and/or traded by other like minded individuals. • He had his own collection of child pornography as well as one child pornography video. CONSECUTIVE VERSUS CONCURRENT SENTENCES [ 196 ] Given the number of offences for which the accused has entered guilty pleas to, this court must initially determine whether the sentences to be imposed ought to be served concurrently, consecutively or some mixture thereof. [ 197 ] Relying on the case of R. v.

James , 2013 MBCA 14 [Tab 4 of Crown Case Book], the Crown counsel took the position that each

the offences before the court warrant the imposition of consecutive sentences. However, in the circumstances of this case she concededthere existed an argument and agreed the offences surrounding the making and distribution of child pornography could be servedconcurrently to one another but must still be consecutive to the other sentences. That same concession also applied to the offences ofinvitation to touching concerning the children Dy. C. and Day.

C. in that they could be served concurrent to one another but againconsecutive to the other sentences. [198] Counsel for the accused did not comment to any degree on this issue. [199] Although dealing with a fact scenario that involved a number of robberies, the Manitoba Court of Appeal in R. v. Arbuthnot, 2009MBCA 106 at paras. 21-22 [Tab 8 of Defence Case Book] noted the determination as to whether sentences are to be served concurrentlyor consecutively is a fact-driven analysis for each case.

The general rule adopted by the court is that sentences should be servedconsecutively when they arise “out of separate and distinct transactions.” [200] In the case at bar, although there may be some overlap of the facts surrounding the offences concerning Al. C., there remains adistinct difference in the gravamen of the offences of sexual interference and the making of child pornography to warrant consecutivesentences.

I agree with the concession of Crown counsel that the sentences imposed for the making and distribution of child pornographyare to be served concurrently but consecutive to the remaining offences. [201] As for the sexual interference offences involving Dy. C., Da. C. and Dr. C I do note that they all occurred within the same timeframes, as is set out in the Information before the court. However I note the three offences involve three separate victims and the factssurrounding each of them show the offences occurred separately and at different points within the stated time frame.

As such it is myposition that they are separate and distinct offences that warrant the imposition of consecutive sentences. [202] The facts supporting the invitation to sexual touching charges concerning Dy. C. and Day. C. are essentially the same for each.As a result I agree with the concession of Crown counsel that in these unique set of circumstances there is a sufficient nexus present towarrant that those sentences be served concurrent to each other.

However, as they relate to the other offences before the court, they areseparate and distinct and as such that sentence will be served consecutive the other sentences imposed. [203] Finally as it relates to the offence of possession of child pornography I appreciate that the photographs of Al. C. form a part ofthat charge. That being recognized I note those photographs only form a small part of the overall collection that was seized from thecellular phone of the accused.

The majority therefore were of other children, many unknown, and on that basis even with that smalloverlap in the facts I find that this offence is distinct from the others and warrants that a consecutive sentence be imposed. ANALYSIS [204] I will note at the outset that I have taken the opportunity to read the cases that were filed by both counsel. What certainlybecomes apparent from those cases is that no two cases are factually identical and the same can be said for the background of theoffenders that were before the court.

What was of value was the courts application of the various sentencing principles to the facts thatpresented themselves. [205] At the outset of these proceedings Crown counsel took the position that the offences before the court constituted major sexualassaults and that classification was agreed to by counsel for the accused. It is on that basis that I proceed upon determining the fit andappropriate sentences to be imposed. [206] In the case of R. v. D. (M.F.), 1991 CarswellMan 363 [Tab 4 of Defence Case Book] Mr.

Justice Twaddle on behalf of theManitoba Court of Appeal stated the following pertaining to the sexual assault of a child by a parent at paragraph 12: “…I am of the view that the repeated sexual abuse of a child by a parent falls into a category of its own…the starting point from whichsentences for this category of sexual assault should be measured is a term of four to five years imprisonment.” [207] That same starting point was confirmed as still applicable in Manitoba by the Court of Appeal in the case of R. v.

James, 2013MBCA 14 , 2013 CarswellMan 53@ para. 69: “The starting point for a major sexual assault perpetrated on a young person by one in a position of trust is four to five yearsimprisonment.” [208] That starting position presumes an accused with no prior criminal record and of prior good character. In addition that startingpoint may be increased or decreased based on a review of both the aggravating and mitigating circumstances before the court.[R. v.

A.(J.R.), 2012 MBCA 48 @ para. 5] [209] Sentencing is an individualized process where one must consider the particular facts of the incidents before the court as well asthe background of the particular offender before the court. [210] The appellant courts have long emphasized that that the focus of sentencing in major sexual assault cases involving children isthat of deterrence, both specific and general, and denunciation.

With that focus, the achievement of those goals will generally necessitatethe removal of the offender from society and less emphasis will be placed on the principle of rehabilitation. [211] Adult predators who prey on innocent children must come to know the price for their deviant behaviour will be significant. [212] With that I will initially say that it is unfortunate that we have such a sad set of circumstances before the court where once againsociety in general has failed our children. [213] A child does not pick and choose to whom they will be born.

Their birth generally brings a sense of happiness and given theirinitial susceptibility they are reliant on us adults, us parents, for their every need. Initially those needs involve the provision nourishment

as well as a safe and nurturing environment. [214] We as parents are tasked with the growth of that child and in that regard are given the special privilege of forming the childthrough the teaching and imposition of values. [215] We must be diligent in protecting our children, particularly early on in their lives when they are vulnerable and can be exploitedby others. [216] Despite our vigilance and best efforts as parents, circumstances still occur where our children do become subjected to harm.

In thecase at bar, the harm occasioned to the children was done by the very person who was charged with protecting them. Essentially theaccused did not honor the privilege bestowed upon him, instead he abused his position of trust as a parent in order to meet his owndeviant sexual needs. [217] The Ontario Court of Appeal in the case of R. v.

D. (D.) (2002), (ON CA), 157 O.A.C. 323, commented uponthe “dire” consequences that may follow in such cases as follows: “Three such consequences are now well recognized: (1) children often suffer immediate physical and psychological harm; (2) childrenwho have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (3) and childrenwho have been sexually abused are prone to become abusers themselves when they reach adulthood.” Al. C. [218] The incidents occasioned to Al.

C. by her father involved varying forms of sexual abuse that occurred essentially every weekendover the period of time. There was a great deal of planning exhibited by the accused in committing these offences. [219] The incidents would often occur at night in the living room of the home when everyone was asleep. The offending behaviorincluded Al.

C. performing fellatio on him, him performing cunnilingus on her, mutual masturbation, her vagina and anus being touchedand digitally penetrated as well as instances where she would be positioned such that she and her father’s genitals would be touching.Essentially the only sexual act not occasioned was that of intercourse. [220] These facts certainly support the contention of this being a major sexual assault. [221] The incidents themselves only stopped upon the arrest of the accused. There was no suggestion that but for his arrest theseincidents would have stopped.

That is borne out in the fact that the day prior to the arrest of the accused he had sent photographs of Al.C. to the u/c officer that contained enough data to determine they had been taken just prior to being sent. [222] The current effects and potential future effects of the assaults upon Al. C. are discussed in the reports that were filed by Crowncounsel.

They are both serious and devastating with the prognosis being of a long lasting impact. [223] In my view, although I appreciate there does exist some dated youth convictions, the lack of prior adult criminal record for thisaccused does not carry with it such an impact so as to warrant a reduction in the starting point for the offence of sexual interference. [224] However, one cannot underestimate the importance of the accused’s decision to enter guilty pleas at the outset of theseproceedings. I suspect the potential impact of having Al.

C. endure a long and potentially drawn out court process may have had seriousnegative consequences. The accused has spared her of that potential anguish and that must be considered in the context of determiningthe appropriate sentence. [225] I also note the accused’s own past and particular the issue of his past victimization and note the Ontario Court of Appealscomments pertaining to the abused becoming the abuser.

That does not excuse his actions but adds some context perhaps to his mentalmake-up. [226] That being said, I also note that past concerns about his behaviour had been brought to the forefront and the accused waspresented with an opportunity to address those issues and chose not to. [227] In the totality of the circumstances it is my view that upon the proper application of the principles at hand, the imposition of a tenyear sentence suggested by Crown counsel would be excessive. [228] It is my view a fit and appropriate sentence for the offence of sexual interference is one of five years. [229] With respect to the offences of making and distributing child pornography I have already determined the gravamen of that offenceis sufficiently different to warrant a consecutive offence. [230] The detection of the accused occurred as a result of his presence on a web site that was known to be frequented by pedophiles.The accused had established an identity and posted numerous photographs and albums on this website that could be accessed by otherlike-minded individuals. [231] He also had other password protected folders on the site that contained numerous photographs depicting him sexually assaultingAl.

C. The caption noted by police on one of the folders entitled “preteen cuties girl” stated “if interested of seeing some homemade stuffwith this cutie e-mail me”. A similar caption was noted on a folder containing a photograph of his boys. [232] What was clear during his communications with the u/c officer is that the accused intended to continue with his behavior andindicated a willingness to commit varying sexual acts upon Al. C. based on a request and he would record that for trade.

He also used Al.C. as a means to attract other like minded individuals to obtain more child pornography as is demonstrated in the photograph that wassent to “Loe Ju”.

[ 233 ] The Ice Unit located approximately seventy pornographic photographs of Al. C. on the accused’s cellular phone and the accused had posted about forty-four such photographs of Al. C. onto the user based website that others would have had access to. Once that was done he essentially lost any ability to control the distribution of those photographs and as a result of that has sentenced Al. C. to a lifetime of victimization as those photographs are viewed and/or traded by others.

There is no way that they can ever be completed extracted from the clutches of these depraved individuals and she will never know when they may pop up again in her life. [ 234 ] As noted earlier, there is plenty of evidence that the accused intended to continue his behavior and just hours prior to his arrest had distributed pornographic images of Al.

C. to the u/c officer as well as the other users noted in the facts. [ 235 ] The making and distribution of child pornography carries with it a minimum sentence of one year and a maximum sentence of ten years imprisonment when proceeded upon by Indictment, as has occurred in this case. [ 236 ] Keeping in mind that the even though the collection may not be as extensive as has been seen in other cases it is the “lost dissemination” of those photographs that is concerning. In my view a sentence of thirty months on each of the counts for making and distributing child pornography is the appropriate sentence.

As I had noted earlier, those will be concurrent to each other but consecutive to the other sentences imposed. Possess Child Pornography [ 237 ] The charge of being in possession of child pornography presents its own issues. It is as a result of individuals such as the accused wanting to possess images depicting child pornography that children are continually subjected to varying forms of sexual abuse. Each and every time a photograph is viewed, the child is again victimized.

Deterrence is of paramount importance in these cases. [ 238 ] Mindful of the limited collection a there being a minimum sentence of six months required I have determined that a sentence of 12 months is the fit disposition and that will be consecutive to the other sentences. Dy. C. [ 239 ] With respect to Dy. C., he disclosed that he had been repeatedly forced to perform fellatio on his father. He had at times tried to resist performing these acts but was then prompted to do so by his father promising to take him out for a treat if he complied. [ 240 ] All of these incidents occurred when Dy.

C. was at his father’s home for a sleep-over. [ 241 ] As this is a major sexual assault in the context of being committed by a parent I find that a sentence of four years consecutive to the other sentences is appropriate. Dy. C. and Day. C. [ 242 ] Dy. C. was also the victim of an offence in relation to Day. C. where he was made to perform fellatio on and lick the anus area of Day. C. after his brother had used the washroom and urinated. [ 243 ] This incident was not confirmed by Day.

C. but has been admitted as occurring by the accused in his statement to police. [ 244 ] Given the context set out and the inter-related nature of this matter, I impose a sentence of three years i

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