R. v. G.(D.), 2011 ONCJ 116

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. Citation: R. v. G.(D.) , 2011 ONCJ 116 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — D. G. Before Justice D.P. Cole Heard on November 16, 2010, January 19, 2011 Reasons for Judgment released on March 2, 2011 L. Wannamaker ........................................................................................................ for the Crown S. Willoughby .......................................................................................................... for the accused

COLE J.: [ 1 ] Following a Crown election to proceed by way of

summary conviction, the offender entered a plea of guilty to a charge that, on April 10, 2009, he sexually assaulted his 17 year-old daughter D. G. [ 2 ] The admitted facts were that while the offender and his wife, the mother of the victim, had separated approximately one month before the incident, his daughter remained living with him. Around 3:30 p.m. she awoke and went to the bathroom in their residence. When she came out of the bathroom, the offender called her into his bedroom. He told her to lie down on his bed, rubbed her back, touched her breasts and digitally penetrated her vagina.

He told her not to tell anyone what he had just done. [ 3 ] The victim immediately went to a friend’s home, disclosed to her and her friend’s mother what had happened. The police were called, and the victim was interviewed. Later that day the offender was arrested, and confessed (on videotape) to what he had done. [ 4 ] Counsel agree that a custodial sentence should be imposed. Crown counsel argues that a sentence of 12 months actual custody is appropriate, while the defence argues that the various principles of sentence can be adequately addressed by a conditional sentence of 18 months.

Both counsel agree that various ancillary orders – probation, DNA, and Sex Offender Information Registration Act (SOIRA) should also be imposed. Counsel did not mention a weapons prohibition order, so I presume they have considered and rejected the need for such an order in this case. THE BACKGROUND OF THE OFFENDER [ 5 ] A Pre-Sentence Report (PSR) was prepared to assist me in determining the appropriate sentence. It discloses that the offender is now 42 years old. He has no previous record. He has been steadily employed with the same bedding manufacturing company for more than 10 years.

A letter from his employer describes him as “a productive and exemplary employee”. [ 6 ] Friends described themselves as “surprised” or “shocked” by the charge, as did the offender’s sisters. The mother of the complainant, the offender’s ex-spouse, told the writer of the PSR that she “still can’t believe it happened”, and that the offender is “a good father and a good provider”. The offender’s current romantic partner, whom he met after this incident, described him as “a remarkable person”, who is “very religious” and “very spiritual”.

She said that he is “upset and remorseful over his actions” and that he is “very loving towards his kids”. [ 7 ] Though the overall tenor of the PSR is positive, the writer noted some troubling elements. He comments: “[w]hen this writer asked the subject about changes he has made in his life and what would prevent him from re-offending in the future, he mostly speaks in general terms. He states that he is ‘dealing with my situation’ and wants ‘to be a better person’. He presents as struggling with personal issues but has not attended professional counselling or a rehabilitative program to date”.

I agree with the writer that it is somewhat concerning that even after his acknowledgment of guilt the offender has not yet begun to take any steps to seek out professional assistance in order to enable him to gain insight into why he committed such a gross breach of trust. [ 8 ] Unfortunately, this lack of insight was carried into the court proceedings, When I asked the offender whether he wished to exercise his right to address the court (as he is entitled to do under s.726 of the Code ), he repeated many of the same vague generalities about “wanting to provide for his family” and “improving himself”.

While I must caution myself not to discriminate against someone who might have been uncomfortable speaking publicly, the combination of what he said - and did not say - to the writer of the PSR and what he said - and did not say - to me is troubling.

I think Crown counsel had it right when she pointed to the offender’s lack of engagement in any kind of treatment program as indicative of the fact that, despite his guilty plea, he has not fully accepted (or internalized) the need at least to have an assessment done as a possible precursor to treatment for his now admitted sexual deviance. [ 9 ] Defence counsel of course made much of the fact that in her Victim Impact Statement (VIS), the complainant appears not to hold any particular grudge against her father for what he did to her.

In fact, she refers to her father as “my best friend” and says “I would like to have contact with my dad in the future if he wants to have contact with me again”. At one level, I agree with defence counsel that this is what appears in her VIS. However, it seems quite clear to me that in responding to the question on the VIS form about “providing a description of the impact of the crime on your life” the complainant has been significantly affected by the loss of “my old house, old room, all my belongings….I also miss visiting his side of the family….I just miss being a family again”.

In other words, I read her VIS as indicating that the victim realizes that her sense of trust and security have been profoundly - and likely permanently – affected, both by the family breakup and by the offender’s assault on her. Looked at in this light, I see her rather wistful statements about rekindling her relationship with her father more as a desire to return to some halcyon days of yore, rather than as a clear and firm expression of her wishes and intentions for the future.

Thus, while I accept counsel’s comment that the complainant does not appear to bear an obvious grudge against her father for what he did to her, it is entirely clear that what he did has significantly contributed to her feelings of loss. [ 10 ] There is one other matter somewhat connected with the offender’s background that should be dealt with at this point in the analysis. During submissions it came out as an agreed fact that the complainant had been sexually abused by a fellow student a few months prior to April 10, 2009. More important, this fact was known to the offender at the time he assaulted her.

Crown counsel argued that I should see this as an aggravating factor on sentence; however, she was careful to concede that she did not base her position on any suggestion that the offender felt that he could abuse his position of trust precisely because she was vulnerable as a result of the previous sexual assault. She rather argued that the offender’s callousness in taking advantage of his daughter just after she had been the victim of a sexual assault should give me some additional insight into his character. [ 11 ] I have carefully considered this submission and consider that there is some validity to it.

This is not a case where – by analogy – an accused takes advantage of someone standing alone on a street corner late at night, or an accused who, knowing that a home has been recently burgled, breaks into it to steal goods freshly acquired as a result of an insurance settlement. In other words, this is not (on the evidence before me) a case in which I can reasonably infer that the offender deliberately took advantage of his daughter’s vulnerable

state to prey upon her. I rather see this as a case in which the offender was so caught up with his lustful desires that he simply ignored theeffect that any – and in this case a second - sexual attack might have had on his daughter. I agree with Crown counsel that this wasparticularly selfish and callous behaviour on his part, which substantially increases his “moral blameworthiness”. CASE LAW CITED BY COUNSEL [12] Because the Crown elected to proceed summarily in this case, it is common ground that a conditional sentence is available as apossible penalty.

While conceding that the Supreme Court of Canada did say in R. v. Proulx that punitive and restorative objectives ofsentencing could sometimes be achieved by means of a tightly restricted conditional sentence, Crown counsel cited several paragraphs ofProulx for the proposition that “[w]here the need for punishment is particularly pressing…incarceration will likely be the more attractivesanction” (paras. 100 & 102). She also cited R. v. W. (L.F.), one of the companion judgments to R. v.

Proulx, where (in dissent[1])L’Heureux-Dube J. cited various case law for the proposition that “[c]ourts have tended, even under the new sentencing principlesadopted in Bill C-41 to find that the principle of denunciation weighs particularly heavily in cases of offences perpetrated againstchildren by adult in positions of trust and authority” (para. 29). [13] Even though L’Heureux-Dube J. wrote for the dissent in W. (L.F.), careful perusal of the reasons of the majority disclose that theirdecision was more about deference to the trial judge’s reasons rather than about the substantive decision.

Indeed, writing for the majorityLamer C.J.C. expressly stated: “Were I a trial judge, I might well have…imposed a sentence of incarceration” (para. 25). [14] Though they were not expressly addressed by Crown counsel, I find it noteworthy that in two of the other companion casesargued with R. v. Proulx the Supreme Court decided to expressly overrule Courts of Appeal to reinstate custodial sentences for sexualassault that had been imposed by trial judges.

I find that the Supreme Court’s reasoning for taking this relatively rare step in these casesto be most instructive as to how I should deal with the case at bar. [15] In R. v. R. (R.A.) (2000) 2000 SCC 8 , 140 C.C.C. (3d) 523 (S.C.C.) the trial judge imposed a custodial sentence of oneyear custody (plus probation) on a charge of sexual assault committed by an employer against his employee.

Largely because theconditional sentence regime came into effect between the time the trial judge imposed sentence and the date the matter came on forhearing in the Court of Appeal, the Manitoba Court of Appeal reversed this, and substituted a six-month conditional sentence[2]. Amajority of the Supreme Court determined that the sentence imposed by the Court of Appeal “was unfit in light of the gravity of theoffences committed and the respondent’s moral blameworthiness given his abuse of a position of authority” (para. 24), and restored theone-year custodial sentence imposed by the trial judge.

The majority also expressly commented that “while service of the sentence in thecommunity and house arrest might well achieve an appropriate measure of denunciation and deterrence in some circumstances, it did notsend a sufficiently strong message in this case” (para. 28). [16] It should also be noted that, rather like the majority in W. (L.F.), the judges in the minority in R. (R.A.) based their reasoning onthe need to defer to a lower court – in this case the Court of Appeal – rather than on the sentence actually imposed.

Lamer C.J.C. wrote:“Although this sentence appears to be somewhat lenient and, had I been the sentencing judge, I might have imposed a longer conditionalsentence or a term of imprisonment, I am reluctant to substitute my opinion for the Court of Appeal” (para. 22). His Lordship repeatedthis even more forcefully later in his reasons: “[D]espite the fact that I might have imposed a sentence of incarceration…” (para. 25). [17] In R. v.

S. (R.N.) (2000) 2000 SCC 7 , 140 C.C.C. (3d) 553 the Supreme Court again dealt with a scenario where a trialjudge had imposed a nine-month custodial sentence (followed by probation), for which a conditional sentence was later substituted bythe British Columbia Court of Appeal, once that form of sentence became available as a matter of law. In that case the Supreme Court ofCanada unanimously reversed the decision to impose a conditional sentence, and reinstated the custodial sentence imposed at trial.

TheCourt held that, despite the offender’s “clearly abhorrent and reprehensible behaviour”, the trial judge had imposed a very lenientsentence which already took into account the offender’s “precarious health”, “marital difficulties” and “the social stigma he had alreadysuffered”. Lamer C.J.C. wrote: With respect, I do not think that a nine-month conditional sentence was a fit sentence, in light of the relevant sentencing considerations,including the gravity of the offences committed and the high moral blameworthiness of the respondent.

The impugned acts occurredrepeatedly over a period of approximately five years. The respondent abused the trust of a very young child, despite clear indicationsfrom the complainant that she did not like what he was doing. He remained unrepentant and continued to deny that the offences tookplace. The amount of denunciation provided by a nine-month conditional sentence was clearly insufficient in the circumstances tosignify society’s abhorrence for the acts the respondent committed, despite the fact that his liberty was restricted by the conditionsimposed.

It must be remembered that, even though the respondent experienced some marital difficulties, he still benefited from thesupport of his family, while the victim and her mother were ostracized by the rest of the family (para. 18; emphasis added). His Lordship wrote: “[b]y imposing a conditional sentence of only nine months, the Court of Appeal transformed what was already alenient sentence into an unfit sentence” (para. 19). [18] From these three Supreme Court decisions in sexual assault cases, I derive two propositions which should guide me indetermining the appropriate sentence to be imposed.

The first is fairly obvious: where an offender is in a position of trust or authority, hismoral blameworthiness is deemed to be elevated – see R. (R.A.) at para. 19; W. (L.F.) at paras. 24 & 30; S. (R.N.) at para. 18.

Closelyrelated to this, as the portions of the cases I have cited disclose, the Court was firmly of the view that it would be a very rare case inwhich a non-custodial disposition would be imposed for child sexual assault by an offender in a position of trust. [19] The second proposition I derive from these three Supreme Court decisions is that where the court finds evidence that any form ofvaginal penetration – oral, digital or penile – had occurred, it was much more likely that a custodial sentence would be imposed.

In W.(L.F.), though the offences committed were described as “terrible” by the majority (para. 20) and as “offensive and demeaning” by thedissenting judges (para. 30), there was no evidence of penetration on the facts found by the trial judge. In the result no custodial sentencewas imposed. In S. (R.N.) there was evidence that the offender fondled the victim’s vagina on several occasions (para. 2). In R. (R.A.) theCourt adopted an agreed statement of facts that expressly included an admission that one of the most aggravating elements of the

offender’s sexual assault on the victim was that he had inserted a finger into her vagina. [20] While I appreciate that these three decisions may well have more to do with concepts of appellate deference than with this exactaggravating feature, the reason I have focused in on this element is because of several decisions of the Ontario Court of Appeal cited byCrown counsel which have considered this factor more explicitly. [21] R. v.

Stuckless (1998) (ON CA), 127 C.C.C. (3d) 225 was an appeal by the Crown against a decision of Watt J.(as he then was) declining to impose a penitentiary-length sentence following pleas of guilty to 24 counts of indecent and sexual assaultrelating to a 20-year history of assaulting teenage boys. One of the trial judge’s reasons for that decision was “[t]here was no actual orthreatened violence towards any complainant beyond what was implicit in the interference with the physical integrity of thecomplainant….There was no anal intercourse committed, attempted or threatened” (para. 24).

On appeal, writing for a majority of theCourt[3], Abella J.A. strongly disagreed with this characterization of the offences by the trial judge, referring to it as “technical…fail[ing] to capture the full nature and scope of the offences” (para. 37). She was clear that “[t]he absence of penetration does notautomatically relegate the abuse of children to the ‘lower range’ of offences. There is no question that ‘additional force’, ‘collateralcrimes’ and penetration are aggravating factors” (para. 42; emphasis added).

Crown counsel relies on these passages to suggest that inthe case at bar the admission of penetration by the offender should be viewed by me as an aggravating factor that should not onlypersuade me to push the custodial sentence to the level proposed by her, but also to reject a conditional sentence. [22] The next decision of the Ontario Court of Appeal cited by Crown counsel (in chronological order) was R. v. P.M. (ON CA), [2002] O.J. No. 644.

The facts of the more significant of the two sexual offences being considered by the Court ofAppeal disclosed that: “[w]hen C. was 13, the [26 year-old] respondent began to have sexual intercourse with her. He would pick her upat school and take her to his apartment. He made her feel that he was her boyfriend…. The sexual relationship continued until the victimwas at least 16 years old” (para. 2).

In speaking for the court Feldman J.A. expressly adverted to this issue: “His conduct as a 26 year-oldadult in molesting an 11 year-old girl leading up to intercourse with her at age 13 is both reprehensible and frightening” (para. 18;emphasis added). [23] In explaining why the offender’s behaviour was frightening Feldman J.A. wrote: “This conduct is also frightening because as a26 year-old man, the respondent induced a vulnerable child into an ongoing sexual relationship by leading her to believe that they wereboyfriend and girlfriend. This is exploitation of the worst order.

Young women entering their teenage years face a myriad of confusingfeelings regarding their bodies, their emotions and their sexuality. To exploit a young teenager as this man did reveals a level ofamorality that is of great concern.” (para. 19; emphasis added). Crown counsel particularly directed me to the highlighted portion tomake three points. First, while the offender in P.M. stood in some position of trust because he was (at the time of these assaults) a friendof the victim’s family, in the case at bar the offender is the victim’s father, clearly a more egregious breach of trust.

In the submission ofthe Crown, even though only one incident was involved here, the offender’s relationship to the victim made his behaviour even worse.Second, having recently been separated from her mother as a result of her parents’ separation, as the custodial parent the offender shouldhave been most mindful of his teenage daughter’s need for reassurance and support, not exploitation.

Finally, because his daughter hadvery recently been the victim of another sexual assault (as described in paras. 10 & 11, supra), the offender was under a particularobligation to treat his daughter with understanding, compassion and respect, all of which he failed to do. [24] The next case relied on by Crown counsel was the important Court of Appeal decision in R. v. D.D. (ONCA), [2002] O. J. No. 1061, where the offender attempted to appeal an eight year, one month sentence on the basis that R. v.

Stucklesshad established a “high-water mark of six years for adult offenders who groom and sexually abuse innocent children over prolongedperiods of time” (para. 2). I find it noteworthy that in listing factors differentiating this case from Stuckless, Moldaver J.A., writing forthe court, began with the fact that the offender had committed “[r]epeated and persistent acts of anal intercourse against two of the boysand attempted acts of anal intercourse with a third” (para. 26).

Later in his reasons, he wrote: “I am of the view that as a general rule,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 level single digit penitentiary terms. When the abuse involves full intercourse,anal or vaginal, and it is accompanied by other acts of physical violence…upper single digit to lower double digit penitentiary terms willgenerally be appropriate.

Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional andphysical brutalization, still higher penalties will be warranted” (para. 44).

While obviously the context in the case at bar is radicallydifferent from the facts in D.D., nevertheless Crown counsel’s point is that the Court of Appeal is recognizing that, while all sexualassault against children are serious, penetration is inherently violative and intrusive, and therefore particularly aggravating. [25] Crown counsel also cited several other recent Court of Appeal decisions involving prolonged and escalating sexual assaults onyoung children by relatives or others in positions of trust.[4] She concedes that they are factually very different from the case at bar;nevertheless, she points to these decisions as further evidence that the Court of Appeal regards evidence of penetration as a significantlyaggravating factor.

R. v. D.R. (ON CA), [2003] O.J. No. 561 was a case where a father sexually assaulted his 15-year-old daughter while she was asleep, 3-4 times per month over a 14-month period. Among the acts to which he (eventually) admittedcommitting was oral sex.

In overturning the trial judge’s decision to impose an 18-month conditional sentence the Court of Appealwrote: “This court has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touchingof children by adults, particularly where, as here, the sexual violation is of a vulnerable victim by a person in a position of trust. Inaddition, circumstances that involve multiple sexual acts over an extended period of time and escalating in intrusiveness generallywarrant a severe sentence” (para. 8; emphasis added). In R. v. F. (G.C.) (ON CA), [2004] O.J.

No. 3177 the offenderwas the assistant superintendent of the apartment building where one of the complainants lived. He groomed two 13-year-old girls over aperiod of two months, escalating in sexual activities to the point where he had sexual intercourse with one of them. Despite this, aconditional sentence was imposed at trial. On appeal by the Crown the Court of Appeal repeated what it had said in D.D. and D.R. aboutthe appropriateness of severe sentences where multiple sexual acts escalating in seriousness are under consideration.

I find it noteworthythat in summarizing the aggravating features of the respondent’s conduct, Borins J.A., writing for the court, twice referred to the elementof sexual intercourse (para. 21).[5] [26] Crown counsel submitted that her final case – R. v. R.W.D. (ON CA), [2005] O.J. No. 2385 – came closest tothe facts in the case at bar. In that case the offender had twice come into his 12 year-old stepdaughter’s bedroom when she was sleeping.On the first occasion he attempted to have sexual intercourse with her, but the trial judge found as a fact that no penetration had occurred.

About three weeks later he again entered her bed, kissed her breasts and performed

an act of cunnilingus. The Court of Appeal allowed a Crown appeal against a conditional sentence imposed at trial, and substituted a custodial sentence of twelve months. While accepting that only one incident is involved in the case at bar, Crown counsel nevertheless submitted that I should impose a custodial sentence of the length imposed by the Court of Appeal. [ 27 ] In preparing these reasons I have come across the April 2007 “Definitive Guideline” laid down by the English Sentencing Guidelines Council [6] for sexual offences.

It notes that the Sexual Offences Act, 2003 (implemented in May 2004) created a new offence of “assault by penetration” (as well as amending the definition of rape to include “non-consensual penile penetration of the mouth”). The Council explained that this definition, combined with a legislated potential maximum penalty of life imprisonment (at the same level as the penalty for rape), was intended to confirm that “penetrative acts are more serious than non-penetrative acts” (paras. 1.18 & 2.5).

I read this Guideline as entirely consistent with the Supreme Court of Canada and Ontario Court of Appeal decisions I have just cited. It stresses, as Canadian courts have done, that “[a]ll the non-consensual offences involve a high degree of culpability”, and that “[t[he seriousness of the violation of the victim’s sexual autonomy may depend on a number of factors, but the nature of the sexual behaviour will be the primary indicator of the degree of harm caused in the first instance” (Part 2A, p. 28).

I further note that if no plea of guilty is entered and a finding of guilt is made after a trial, the English Guideline creates a “starting point” of 2 years custody, with a range of 1-4 years for the offence of “[p]enetration with a body part (fingers, toes, or tongue) where no physical harm is sustained by [a victim 16 years of age or older]” (p. 29).

Though of course this Guideline does not apply in Canada (and the statutory structures for both offence and penalty are considerably different), I read it as confirming the general proposition that sexual assaults involving any form of penetration virtually prelude the possibility of a community-based sentence – and for these purposes a conditional sentence is a community-based sentence - being imposed. [ 28 ] Defence counsel did not cite any additional case law in support of his argument that a conditional sentence should be imposed.

He rather relied on the by now well-known statements in Proulx to the effect that deterrence and denunciation can be achieved by a tightly structured conditional sentence involving a significant period of house arrest. He pointed to several of the cases mentioned by Crown counsel, all of which confirmed that there have and continue to be examples of serious sexual assaults on children that have resulted in conditional sentences.

He quite properly reminded me that all the cases cited by Crown counsel involved multiple incidents (if not separate counts) of sexual assault, that most of the cases involved much more serious misbehaviour than in the case at bar, and that I have no evidence before me that the complainant has been severely traumatized – in fact, her VIS indicates a desire to reconcile with her father as soon as possible.

Finally, he reminded me that it was open to Crown counsel to proceed by indictment, which would have precluded the possibility of a conditional sentence being an available disposition. [ 29 ] I now turn to the question of what length of custodial term should be imposed. With respect, I think Crown counsel’s argument in favour of a term of one year over-emphasizes the severity of the offence while underplaying numerous positive factors about the accused.

As the Supreme Court has reminded the bench and bar for many years, Canadian sentencing is an individualized process, where the offender is not normally to be sacrificed on the altar of denunciation and deterrence.

In this case, I consider that the following factors operate to mitigate the sentence proposed by Crown counsel: - the offender’s lack of any previous record; - his plea of guilty; [7] - the positive remarks about the offender’s character made by the victim’s mother, the offender’s current romantic partner, and – to a lesser extent – by the victim herself; - the fact that this was a single and quite transitory incident, not accompanied by any threats or actual violence [ 30 ] Though I acknowledge and have carefully considered the points made by defence counsel, I have come to the conclusion that this is not one of those very rare cases where a conditional sentence should be imposed for an offence of this nature.

The following factors have ultimately persuaded me that it would not “be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 [of the Code ]” for me to impose such a sentence (regardless of the degree of restrictions on the offender’s liberty that I might impose): - the offender’s overall “moral blameworthiness”; - his indifference to the core trust between parent and child; - his indifference to his daughter’s vulnerability given the recent family breakup; - his indifference to the fact that his daughter had recently been the victim of another sexual assault; - his indifference to the long-term emotional impact his gross and illegal acts would inevitably have on his child; - the element of digital penetration; - Supreme Court of Canada and Ontario Court of Appeal case law; [30] Against the backdrop of recent appellate case law stressing the need to strongly denounce sexual exploitation of children by caregivers, I do not consider that the various mitigating factors I have outlined are capable of reducing the custodial portion to the intermittent range.

I fully appreciate that this will no doubt make it more difficult for the offender and those he supports, but – frankly – he should have thought of this before he so grossly and callously abused his position of trust. Exercising the best amount of restraint I can in the circumstances of this case (and fully recognizing that, as in any individualized sentencing system there is an element of arbitrariness in the attribution of “a number”), I have come to the following disposition: DISPOSITION

[ 31 ] The offender is sentenced to 6 months in custody. [ 32 ] Upon release from custody, he will be placed on probation for a period of two years.

In addition to the mandatory conditions common to any probation order, the following optional conditions of probation are imposed: - Report in person to a probation officer within two business days of your release from custody, and thereafter as directed by him or her; - Attend for assessment and/or counselling for sexual deviance as directed by your probation officer; - Not discontinue any counselling or therapy unless authorized to do so by your therapist or counsellor; - Sign any releases as are necessary to authorize your probation officer to communicate with treating assessors, therapists or counsellors; - Not to be in contact directly or indirectly with D.G. until she has provided written revocable consent to the probation officer; - Not to be alone with D.G. until such time as you have completed an assessment and/or counselling for sexual deviance to the satisfaction of your therapist or counsellor; [ 33 ] There will be an order for the production of a DNA sample pursuant to s. 487.051(4) of the Code . [ 34 ] The offender will be designated as a person convicted of a designated offence pursuant to s. 490.011(1)(

a) of the Code for a period of 10 years. Released: March 2, 2011 Signed: “Justice D.P. Cole”