R v WCT, 2023 ABCJ 164

In the Alberta Court of Justice Citation: R v WCT, 2023 ABCJ 164 Date: 20230717 Docket: 210712923P1 Registry: Calgary Between: His Majesty the King - and - WCT Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify ST, MT and MH must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Corrected judgment: A corrigendum was issued on July 20, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. Sentencing Decision of the Honourable Justice S.

Mah [ 1 ] On July 21, 2022, the Accused entered guilty pleas to the following offences, which proceeded by indictment: Information 210712923P1 (923P1) counts 2 and 6: 1. Between the 4 th day of May, 2012, and the 4 th day of May 2018, both dates inclusive, at or near Calgary, Alberta, did, for a sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of ST, a person under the age of sixteen years, contrary to s 151 of the Criminal Code of Canada ; 2.

Between the 4 th day of May, 2016, and the 4 th day of May 2018, both dates inclusive, at or near Calgary, Alberta, did, for a

sexual purpose, unlawfully touch, directly or indirectly, with a part of the body or with an object, a part of the body of MT, a person under the age of sixteen years, contrary to s 151 of the Criminal Code of Canada ; [ 2 ] In addition, on May 29, 2023, the Accused entered a guilty plea to Information 230395956P1 (956P1) count 2, as amended, for failing to comply with release order. [ 3 ] A Statement of Admitted Facts was entered as an exhibit to these proceedings.

The Accused admitted to sexually assaulting his biological daughter, ST, starting when she was approximately 3 years old and continuing until caught by ST’s mother, MH, and the married spouse of the Accused, in May of 2018. ST was approximately 9 years of age when the Accused was charged. The sexual assaults with ST involved incidents of penial-vaginal contact, oral-penile contact, hand to penis contact, and occasional ejaculation. None of the incidents with ST involved penile-vaginal penetration. The Accused also admitted to sexually assaulting his second biological daughter, MT, but less frequently.

The sexual assaults against MT involved incidents of penile-vaginal contact. None of the incidents with MT involved penile-vaginal penetration. The sexual assaults against MT started when she was approximately 4 years of age and continued until she was about 6 years of age. [ 4 ] The Accused is currently 52 years of age. Sentencing Positions of the Crown and Defence: [ 5 ] The Crown takes the position that a fit sentence for the Accused is nine years incarceration.

The Crown relies on the Supreme Court of Canada (SCC) decision in R v Friesen , 2020 SCC 9 ( Friesen ), R v EAM , 2019 ABCA 413 , R v LeFrance , 2022 ABCA 351 ( Lefrance) , R v Ker , 2021 ABQB 976 (Ker) , R v Berndt , 2022 ABQB 418 , R. v. Parranto , 2021 SCC 46 , R. v. Ford , 2019 ABCA 87 , R. v. S(JL) , 2006 SKCA 95 , R. v. BTQ , 2018 ABQB 521 , R. v. Melrose , 2021 ABQB 73 ( Melrose ) and R. v. Shrivastava , 2019 ABQB 663 ( Shrivastava ).

The Crown, after taking into consideration the guilty pleas, arrives at a sentencing position of eight years imprisonment for the offence against ST reduced to six years after considering totality and four years imprisonment for the offence against MT reduced to three years after considering totality. [ 6 ] The Defence does not dispute that a penitentiary sentence is appropriate but argues a sentence of five years is a fit sentence.

Defence relies on R v RAJ , 2020 ABQB 555 , R v T(AD) , 2015 ABPC 28 , R v R(T) , 2015 ABCA 88 , R v AA , 2015 ABQB 376 , R v MFG , 2010 ABCA 102 , R v SB , 2022 ONSC 821 , R v Meisterhans , 2021 MBQB 80 , R v Gunaratnam , 2021 ONSC 8270 , and R v K(KW) , 2014 BCPC 166 .

The Defence arrives at its sentencing position based on three years imprisonment for the offence against ST and two years imprisonment for the offence against MT. [ 7 ] Both the Crown and Defence agree a fit sentence with respect to Information ending 956P1 is 30-45 days concurrent to Information ending 923P1. [ 8 ] Both Crown and Defence argue the application of R v Hajar , 2016 ABCA 222 , ( Hajar ) as a starting point for sentencing.

The Crown cites Hajar where the Alberta Court of Appeal confirmed the starting point for major sexual interference in a situation involving breach of trust is four years, as provided in paragraph 12 of that decision. Defence argues the starting point for a major sexual assault is three years, as provided in paragraph 81 of that decision. Analysis [ 9 ]

Section 718.1 of the Criminal Code of Canada states that the fundamental principle of sentencing is proportionality. To be a fit sentence the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentencing must also consider the principle of parity.

Section 718.2 (

b) of the Criminal Code states similar offenders who commit similar offences in similar circumstances should receive similar sentences. [ 10 ] Crafting a fit sentence is a highly individualized process that involves a variety of factors. [ 11 ] In cases involving sexual violence against children, the paramount considerations in sentencing are denunciation and deterrence. At para 5 in Friesen , the SCC said: “[W]e are sending a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities.

Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children.

Sentences must accurately reflect the wrongfulness of sexual violence against children and the far- reaching and ongoing harm that it causes to children, families, and society at large.” [ 12 ] The SCC in Friesen went on to say at para 50 , “ sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause.

Getting the wrongfulness and harmfulness right is important. ” At para 51, “[s]exual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity. ” At para 52, “ personal autonomy refers to a child’s right to develop to adulthood free from sexual interference and exploitation by adults. ” At para 55, “ sexual integrity enables greater emphasis on violation of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem… ” At para 56, “ the emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm.” At para 58 , “Even a single instance of sexual violence can permanently alter the course of a child’s life. ” [ 13 ] At para 60 of Friesen , “[s]exual violence causes additional harm to children by damaging their relationships with their

families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship…. Victims may also lose trust in the ability of family members to protect them and may withdraw from their family as a result. ” [ 14 ] At para 61 of Friesen , “[t]he ripple effects can cause children to experience damage to their other social relationships. ” At para 62 and 63, “ parents, caregivers and family members of a sexually victimized child may be victims too.

Sexual violence can destroy parents and caregivers’ trust in friend, family, and social institutions and leave them feeling powerless and guilty. ” At para 64, “ the harm to communities in which children live and to society as a whole such as social problems, cost of state intervention, economic impact of medical costs, lost productivity and treatment for pain and suffering. ” [ 15 ] At para 65 of Friesen , “[t]he protection of children is one of the most fundamental values of Canadian society.

Sexual violence against children is especially wrongful because it turns this value on its head .” At para 66, “[c]hildren are most vulnerable and at risk at home and among those they trust. ” At para 68, “sexual violence also has a disproportionate impact on girls and young women.” [ 16 ] At paras 74 and 77 of Friesen , “… sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence….

That the sentence fully reflects the “life-altering consequences” that can and often do flow from the sexual violence.” “…[v]iolence is always inherent in the act of applying force of a sexual nature to a child …, the sexual dimension instead aggravates the wrongfulness of the violence by adding interference with the child’s sexual integrity to the interference with the child’s bodily integrity.

Physical contact of a sexual nature with a child always means that the offender has interfered with both the child’s “security of the person from any non-consensual conduct or threats of force” and the child’s bodily integrity, which “lies at the core of human dignity and autonomy.” Such physical sexual contact is also a form of psychological violence precisely because bodily and psychological integrity are closely linked.” At para 78: “It is inherently exploitative for an adult to apply physical force of a sexual nature to a child.

This exploitation is rooted in the power imbalance between children and adults, the potential harm that sexual interference by adults poses to children, and the wrongfulness of treating children not as persons with equal dignity but instead as sexual objects to be used by adults.” [ 17 ] At para 80 of Friesen , “We wish to focus courts’ attention on the following two categories of harm: harm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood ….

Children can experience physical and psychological harm that persists throughout their childhood.” [ 18 ] The SCC in Friesen held that sentencing for sexual offences must reflect both the harm that sexual offence cause against children and the wrongfulness of sexual violence and reflect the life altering consequences that flow from the sexual violence. [ 19 ] Significant factors to determine a fit sentence include: 1. likelihood to re-offend; 2. abuse of a position of trust or authority; 3. duration and frequency; 4. age of the victim; and 5. degree of physical interference, victim participation and totality of the sentence (paras 121-158 of Friesen ). [ 20 ] The Criminal Code sets out aggravating factors that must be considered: s 718.2(

a) for breach of trust and s 718.01 for offences involving the abuse of a person under the age of 18 years, the primary objective of sentencing is denunciation of the unlawful conduct and deterrence in these circumstances. [ 21 ] Mitigating factors and personal circumstances of an offender are considered as well. However, as provided in para 104 of Friesen , “Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority.”

Section 718.01 of the Code requires that deterrence and denunciation have priority in this case. [ 22 ] I have considered the following in arriving at my sentencing decision: 1. cases referred to me, including previous Defence counsel’s case of R v Braile ; 2. the Statement of Admitted Facts (Exhibit 1); 3. the Accused’s Criminal Record (Exhibit 2); 4. the Pre-Sentence Report (Exhibit 3); 5. the FAOS Report (Exhibit 4); 6. character reference letters for the Accused (Exhibit 5); 7. personal statements of the Accused (Exhibit 6); 8. Victim Impact Statements given by ST, MT and the mother of ST and MT (Exhibit 7): and 9. the Victim Impact Statement given by MV (Exhibit 8)

[23] Both counsels provided various sentencing authorities to help support their positions. Many were distinguishable becausethey involved one child, the periods of time over which the crimes occurred were shorter, the nature of the physical intrusion and somepre-date the decision in Friesen and Hajar. [24] Defence counsel relied on sentencing positions from other provinces as well. Alberta courts take direction from the AlbertaCourt of Appeal and the Supreme Court of Canada.

Cases from other provinces provide little assistance except in situations where theyhave dealt with an issue which has only infrequently arisen. There are many cases from Alberta applicable, so I have distinguished thecases from other provinces in making this decision. [25] Of the Alberta cases that were referenced by Defence, the most comparable to this case is R v RAJ, 2020 ABQB 555 (RAJ). RAJ is a decision issued after Friesen. In RAJ, the Accused pleaded guilty to two counts of sexual interference. One count related tothe Accused’s stepdaughter when she was between the ages of 5-11.

The second count related to the Accused’s daughter when she was5 years old. The Accused was sentenced to six years imprisonment: four years for offences against the stepdaughter and two yearsconsecutive imprisonment for offences against the daughter. [26] I have distinguished RAJ from the case before me for the following reasons: 1. The sexual interference with the daughter in RAJ was over her underwear with his naked penis and for a shorter period oftime between January 27, 2017 and April 19, 2017.

In this case, the sexual interference was skin to skin contact with both daughters andfor a sustained period of time; and 2. Justice Burrows in RAJ started with a fit sentence of seven years for the stepdaughter and five years for the daughter beforeconsidering the mitigating factors and the totality principle.

Mitigating factors considered were the guilty plea, expression of remorsehowever the extent the remorse was genuine was uncertain, the accused was a good candidate for rehabilitation as determined by acounsellor, and the accused was sexually abused in his own childhood, though not by anyone who stood in a position of trust to him. InJustice Burrow’s view the mitigating factors required a reduction from seven years to four years for the stepdaughter and five years tothree and half years for the daughter.

He then applied the totality principle and further reduced the sentence to four years for thestepdaughter and two years for the daughter. Justice Burrows started with a total sentence of twelve years and then reduced the sentencein half to six years. I find the offences against the daughter in RAJ were not comparable to the offences in this case and there is noevidence before me that the Accused is a good candidate for rehabilitation. There is some indication the Accused has attendedcounseling, but there was no reference to being a good candidate for rehabilitation.

Also, with the greatest respect, in my view, themitigating factors were given too much emphasis. [27] I have reviewed the Alberta Court of Appeal’s decision in Hajar. Paragraphs 12,51 and 53 of Hajar provide direction: “Perpetrators who sexually abuse children are more culpable than perpetrators who sexually abuse adults, not less. Accordingly, in R vWBS, (1992), (AB CA), 127 AR 65 (WBS), this Court set a starting point of four years imprisonment for a majorsexual assault committed on a child by an adult offender in a position of trust.

We identify later in these reasons a number ofcircumstances that would aggravate the three-year starting point for major sexual interference, including breach of trust, and additionalviolence beyond that intrinsic to the conduct itself. Seen in this light, there is a logical fit between the three-year starting point for majorsexual interference and the four year starting point in WBS.” “Major sexual interference is normatively comparable to major sexual assault. Both involve a serious violation of thecomplainant’s sexual integrity along with their physical integrity and privacy.

While sexual assault is not exclusively focusedon physical conduct, such conduct is emphasized. The same is true for sexual interference. The gravamen of the offence of sexualinterference is an adult’s engaging in sexual activity with a child. The mens rea degree of responsibility of the offender iscomparable in both major sexual interference and major sexual assault – and it is high.

After all, both involve intentional sexual acts.” “Sexual interference constitutes a major sexual interference where the sexual interference is a serious violation of the physical and sexualintegrity of the child and is of a nature or character such that a reasonable person could foresee that it is likely to cause seriouspsychological or emotional harm, whether or not physical injury occurs. Vaginal intercourse, anal intercourse, fellatio and cunnilingus,all fall into this category.

Thus, major sexual interference includes, but is not limited to, these sexual acts.” [28] Further, at paragraph 112 of Hajar: “Parliament has provided that in sentencing those convicted of the abuse of a person under 18- that includes the crimes of sexualinterference and sexual assault – a sentencing judge shall give primary consideration to the objectives of denunciation and deterrence: s718.01 of the Code. This takes precedence over other sentencing objectives, including rehabilitation of the offender.

In considering a fitsentence, a court will of course take into account the nature and extent of the prescribed acts and all relevant circumstances relating tothem.” [29] I am guided by Friesen and Hajar in my sentencing decision. [30] I have considered all the mitigating factors argued by Defence. but I wish to address some specific ones, namely the Accusedhas a relationship of genuine affection with ST and MT, stigma, likelihood to reoffend, the Accused suffered physical and sexual abuse,unrelated criminal record and rehabilitation. [31] With respect to a relationship of genuine affection, as discussed in paras 177 and 178 of Hajar, I wish to point out ST and MTdid not have an equal power relationship with the Accused.

ST and MT were young children and dependent on the Accused when hebegan to sexually assault them. There was a significant age difference between the Accused and his daughters. ST was aged 3 and MTwas aged 4. ST and MT did not have a choice in this relationship. [32] With respect to stigma, as provided in para 69 of Shrivastava, “Stigma for the offender is an inevitable feature of the criminaljustice process .... I decline to use society’s disapproval of serious violent crime to mitigate the sentence for a serious violent crime.

Doing so would pervert the aim of denunciation.” [ 33 ] With respect to likelihood to reoffend, the Accused had two young daughters and he sexually abused both frequently and over a sustained period. [ 34 ] With respect to the Accused suffering prior physical and sexual abuse, I find the Accused still took the intentional and deliberate action of sexually assaulting his own daughters.

The Accused understood the harm he was causing his daughters. [ 35 ] With respect to the unrelated criminal record, these offences of sexual interference occurred within a relationship of trust, a parent and child relationship, and this relationship of trust created the opportunity for the offences to occur in what was supposed to be the safety of their family home.

The Accused abused and betrayed this trust. [ 36 ] With respect to rehabilitation, I have no evidence before me to assess the Accused’s rehabilitation prospects. [ 37 ] I do find as a mitigating factor that guilty pleas were entered with no trial dates ever set. [ 38 ] I find the following aggravating factors relevant: 1. The Pre-Sentence Report, the mother stated the children have expressed fear about living with the Accused again. In addition, the mother described the Accused as a “chameleon” someone who is very good at portraying what he thinks the other person wants to see.

In addition, the counsellor reports the Accused …” can be deflective in conversations, preferring to talk about his children’s needs rather than his own….” I am not convinced the Accused has insight into his responsibility. 2. The Pre-Sentence Report advised the Accused does not feel sexually attracted to children, but the Accused did note he could find younger girls (age 13 and up) attractive. I find the Accused’s insight to be limited. 3. FAOS report – Mental Status Examination indicates some duplicity. Dr.

Morrison at one point describes the Accused “as playing a role in a theatrical piece….” “it is as if he was giving a performance, a speech, was at times reversing on moral, ethical and practical grounds the roles and responsibilities … such as complaining and being insulted and outraged that his daughter should suffer the brunt of what happened to them without any access to proper treatment intervention … for in fact what he did and was responsible of to and on them… In terms of judgment and ethics it is as if he was turning the wheel full circle and blaming lack of intervention of the State first and foremost for the consequences of what happened, even if what happened is what he did.

At the very last session, the offender insisted it was somewhat unfair to end up with a federal incarceration, useless, non-productive he would allude to instead of focusing on the children victim’s treatment for their traumatic sexual abuse.” Dr. Morrison described this as rationalization. I have some concern as to whether the Accused has any insight into the gravity of the offences and the consequences. I do recognize that Dr.

Morrison concludes the Accused is at low risk to re-offend, however, I have some concerns about the insight the Accused truly has about the gravity of the offences and the consequences. 4. The Accused was in a position of trust. The betrayal was inflicted by their father and the offences happened in the family home which is a place that should have been safe for the children. A parent’s home is a place where the child should feel safe and secure under the care and guardianship of the parent. 5.

In the Statement of Admitted Facts the Accused admitted that on days ST was a bad girl he would not sexually abuse her, but on the days ST was a good girl he would sexually abuse her. ST was sexually abused as a reward for being a good girl. I find this behavior to be a form of grooming. 6. There were repeated incidents of sexual interference over an extended period of time for both ST and MT. In particular, in the Statement of Admitted Facts, the Accused said the frequency was “often enough already” with respect to ST and “less frequently” with MT. 7.

The offences against ST started when she was aged 3 and continued for a period of 6 years and those against MT started when she was aged 4 and continued for a period of 2 years. There was an intentional and deliberate pattern of abuse over a sustained period. 8. The Victim Impact Statement given by ST, MT and MH show physical, psychological and emotional harm to each of them. ST expresses fear, uncertainty, distrust, stress, shame and physical pain. ST is worried she may never form relationships with boys and men and she does not like being touched. MT never wants to see her father again.

She experiences fear, has nightmares and she does not feel safe. She also describes having physical harm. She feels anger and loss as she does not have a real father. MH describes experiencing trust and confidence issues, damaged self-esteem and the stress of being a single mother financially and physically. MH also describes the emotional distress of hearing her daughters describe the offences to her. There was physical, psychological and emotional harm that will continue over the long term. 9.

The Victim Impact Statement given by family friend, M.V, described the psychological and emotional impacts within the community and how her family and community have supported ST, MT and MH through money, transportation, time, and emotional and psychological support. [ 39 ] The Accused’s support letters are not clear as to what extent the Accused has described the offences to these people. I find these support letters neutral in my analysis. Defence counsel also argued cooperation with police as a mitigating factor.

I have considered this to be a neutral factor given the Accused only stopped the offences because he was caught in 2018. [ 40 ] There are significant aggravating factors in this case. This was a severe breach of trust with repetition and long-term victimization in the family home of his two daughters who suffered and continue to suffer harm physically, emotionally and psychologically. The gravity of the offences and the degree of responsibility and moral blameworthiness are high in this case.

[ 41 ] I take guidance from Friesen and paras 51 and 53 of Hajar and find the offences against ST and MT are major sexual assaults and accept the Crown’s sentencing position. I am also supported by para 74 of Melrose in finding the offences to be major sexual assaults: “… the Court “strongly caution[ed] provincial appellate courts about the dangers of defining a sentencing range based on… the specific type of sexual activity at issue.” Statute does not distinguish between types of sexual acts. Such distinctions have been abolished and should not be revived in sentencing jurisprudence …..

Further, “courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim.… Emotional and psychological damage should not be underemphasized…. A “hierarchy of physical acts” should not be established.” [ 42 ] In Ker , Justice Wilson of the Alberta Court of Queen’s Bench sentenced a grandfather, low risk to re-offend, to six years incarceration for once victim convicted of two discrete events. In LeFrance , the Alberta Court of Appeal sentenced the accused to three years for each sexual interference offence in relation to a single victim.

Justice Wilson accepted the grandfather was in the highest position of trust and this was the basest form of betrayal. [ 43 ] Recognizing that a single incident of sexual interference, in the context of a breach of trust, has a starting point of four years I am satisfied that a fit and proportional sentence will be eight years for ST and four years for MT. I impose a sentence of eight years incarceration for count 2 and a sentence of four years incarceration for count 6.

The sentence of imprisonment shall be served consecutively. [ 44 ] I do recognize the Accused has entered guilty pleas which saved the complainants the experience of having to testify and suffer further trauma. The guilty pleas are a factor that the Crown has already taken into consideration to arrive at its sentencing position, and I accept the eights years incarceration for the offences against ST and the six years incarceration for the offences against MT have taken into consideration the guilty pleas.

Para 114 of Friesen provides: “… mid-single digit penitentiary terms for sexual offences against children are normal and that upper single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.” Parliament has determined that sexual violence against children should be punished more severely.

Considering and Applying Totality [ 45 ] When consecutive sentences are imposed, a court is required to look back and determine if the totality of the sentences exceeds an accused’s overall criminality and if so, to adjust that sentence (see para 157 of Friesen ).

Taking into consideration the principle of totality so the combined sentence is not unduly long or harsh I reduce the sentence imposed for count 2 from eight years to six years and for count 6 from four years to three years to be served consecutively for a total period of nine years incarceration. [ 46 ] In addition, for Information ending 956P1 for failing to comply with release conditions, I impose a sentence of 30 days concurrent to Information ending 923P1. [ 47 ] In addition, I make the following ancillary orders: 1. Prohibition Order for 10 years for s. 161(a), (a.1), (

b) and (c); 2. DNA Order; 3. 20 year SOIRA Order; 4. a 10-year s 109 Order and 5. s. 743.2 non communication order for ST, MT and MH except through counsel or further court order. Delivered orally on the 13 th day of July, 2023 Dated at the City of Calgary, Alberta this 17 th day of July, 2023. S. Mah A Justice of the Alberta Court of Justice

Appearances: J. Thomas for the Crown D. Roper for the Accused Corrigendum of the Sentencing Decision of The Sentencing Decision of the Honourable Justice S. Mah _______________________________________________________ Paragraph 38,sub 9 changed to remove the family friends name and replace with initials.