R. v. W.P.K., 2012 NSSC 299

SUPREME COURT OF NOVA SCOTIA Citation: R. v. W.P.K., 2012 NSSC 299 Date: 20120730 Docket: CRK 344603 Registry: Kentville Between: Her Majesty the Queen v. W. P. K. Editorial Notice Identifying information has been removed from this electronic version of the judgment. Judge: The Honourable Justice Gerald R. P. Moir Heard: July 30, 2012 at Kentville, Nova Scotia Oral Decision Transcribed: August 3, 2012 Counsel: Ian Robert Morrison, Crown attorney Peter van Feggelen, counsel for the accused Moir J. (Orally) : [ 1 ] I have to sentence Mr. K. for having committed incest with his adult daughter.

The two of them maintained a sexual relationship for several months in 2009 and 2010. [ 2 ] Mr. K. is the biological father of the other party. At trial I found that it had been established beyond reasonable doubt that he

knew her to be his daughter. However, they never had a parental relationship, other than the biological one. [ 3 ] I find that sex was often initiated by the daughter. She has cognitive difficulties and, for that reason, she was not charged. [ 4 ] The Crown recommends a sentence of four years; the defence recommends two years less a day to be served in the community. [ 5 ] I take the following facts to mitigate the sentence: • There was no violence, coercion or breach of trust. There was no parental relationship beyond the biological one. • Both participants were consenting adults. • Mr.

K. has some cognitive difficulties of his own. [ 6 ] The following are aggravating facts: • Mr. K. ’ s daughter is clearly challenged cognitively. Her situation is much more severe than Mr. K. ’ s. That became obvious when she testified. • Mr. K. has a lengthy criminal record that includes some sexual offences. • Thirdly, and most seriously, Mr. K. does not accept responsibility for what he has done, and he has little insight into how wrongful it was. [ 7 ] That third point wants elaboration. Mr. K. seems bewildered that he faces jail when his cognitively challenged daughter initiated most of the sex.

Without insight into his wrongful behaviour, we have no assurance that he will not reoffend sexually. [ 8 ] He was accessed by Dr. Brad Kelln. The report is extensive and I have much confidence in it. The conclusion reads as follows: Mr. K. presents as a complex individual with multiple problems. His risks falls in at least the Moderate range if not the High range and he does not present as an open, cooperative, and insightful individual. In all likelihood there is some degree of cognitive impairment but the greater issue appears to be acceptance of responsibility and ability to cooperate with treatment.

His misrepresentation of a previous sexual assault conviction is troubling and demonstrates that he does have a history of making poor choices in his sexual behaviour. In addition to the above recommendations, Mr. K. should be subject to an extended period of supervision in the community to insure adherence to risk management strategies. [ 9 ] Denunciation and deterrence have to be prominent in this sentence. In all the circumstances, those principles demand federal incarceration. Ironically, rehabilitation is better served by a federal sentence.

The evidence establishes that programs for sexual offenders are more available in penitentiaries than in the provincial system and that maintenance programs are available during the period of parole. [ 10 ] The offence is far more serious than Mr. K. appreciates. In light of the mitigating factors, and the fact that Mr. K. spent 18

months under severe release conditions, I think four years is too long. [ 11 ] In my assessment, Mr. K., you should serve a period of thirty months in a federal institution. I record now, because this decision will have to be transcribed for the federal authorities, my recommendation that Mr. K. should be entered into a program for sexual offenders as soon as possible in that system. [ 12 ] There will be a

Section 107, firearm order. There will be an order for a DNA test. There will be an order that Mr. K. report for sexual offender registration. All of those orders are consented to by the defence and seem appropriate to me in any event. [ 13 ] I agree with Mr. van Feggelen that an order, a so-called “ playground order ” , preventing Mr. K. from being around children under the age of sixteen, is not appropriate in the circumstances of this case. There is nothing in the facts that suggests that he is inclined to molest children. So, I decline the Crown ’ s motion for that order. J.