R. v. T.(D.), 2011 ONCJ 106

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. COURT FILE No.: Halton, 10-967 DATE: 2011·01·20 Citation: R. v. T.(D.) , 2011 ONCJ 106 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — D. T. Before Justice Stephen D. Brown Heard on January 20, 2011 Supplemental Reasons for Sentence released on February 15, 2011 Maureen McGuigan ................................................................................................... for the Crown

Dean Paquette .................................................................................................. for the accused D.T. Brown, J.: [ 1 ] Mr. T. pleaded guilty to one count of sexual interference contrary to s. 151 of the Criminal Code . [ 2 ] Oral reasons for sentence were delivered at the conclusion of the submissions on January 20, 2011. [ 3 ] Sentencing submissions were made that day in a Duty Court. I felt it important that both the victim and Mr. T. and other members of his family received his sentence on that day so I delivered what I thought were fairly thorough reasons for sentence.

I indicated that I may deliver further supplementary reasons but I was of the view that the reasons were sufficient that were given orally. Subsequently, I asked the Crown and the defence whether they wished supplemental written reasons for sentencing. Mr. Paquette did not. Ms. McGuigan did. [ 4 ] What follows then are the supplementary written reasons for my decision. 1.0: Circumstances of the offence [ 5 ] The victim, M. T. is 15 years old. The accused, D.T., is 48 years old. The accused is the victim's biological father.

The accused resides in a single family home with his wife and another daughter, who is the 18-year-old sister of the victim. [ 6 ] On Sunday, March 21, 2010, the victim was at home with her parents. Her older sister was on a trip out of the country. At approximately 9:45 p.m., the victim left her parents master bedroom on the second floor to go downstairs to her room to get ready for bed. Her mother had already fallen asleep at this point. She and her father came downstairs and she went into her room to get things ready for school and to get ready for bed.

She was wearing an oversized T-shirt and full-length pyjama bottoms with an elastic band and a string and underwear. [ 7 ] She went to bed at approximately 10:30 p.m. She got underneath all of her blankets and got her father to tuck her in. She turned over on her left side and was facing the wall. Her father lay down on the bed on top of the blankets after tucking her in. A short while later he got underneath the blankets, thinking that the victim had fallen asleep. He lifted up her shirt and placed his one hand under her shirt and touched and rubbed her breast and nipple.

He then proceeded to pull back her pyjama bottoms and the underwear from the back with one hand and he placed the other hand on her buttock, started to rub and gently squeeze the buttock. [ 8 ] His daughter was pretending to be asleep the entire time. She began to move around and then started to turn over at which point he stopped fondling her and got out of bed. She opened her eyes and saw her father standing beside her bed.

He told her that she was having a nightmare and he had heard her and that was the reason that he was in her room. [ 9 ] The following day, she told her boyfriend at school who then told his mother. Her boyfriend's mother then told her mother, who confronted the accused and the accused readily admitted his criminal act. It was decided that the Children's Aid Society would be contacted and they were and they subsequently contacted the police. Mr. T. turned himself in to the police on March 24, 2010 and was charged with sexual assault and sexual interference.

He was released on a promise to appear and an undertaking given to a peace officer, which restricted him from going to the family home and having any direct or indirect contact with the victim. 2.0: Position of the Parties 2.1: Position of the Crown [ 10 ] Ms. McGuigan argued for a sentence of 60 to 90 days incarceration, with a s.110 order for a period of five years, a SOIRA order pursuant to s. 490.013(1)(

c) for a 10 year period and an order under s.161(1)(

b) for a period of five years. The Crown wants a probation period of two years with an assessment and/or counselling for sexual behaviour as may be directed, no contact or association directly or indirectly with M.T., except with her prior written revocable consent provided to the probation officer, and no attendance at her residence with the same exception. 2.2: Position of the Defence [ 11 ] Mr. Paquette, on behalf of Mr. T., argued that the minimum sentence of 14 days in custody should be imposed in this case with a six-month to one-year period of probation.

He did not object to the ancillary orders requested by the Crown, however, he did submit that it was not necessary to put a no-contact provision in the probation order with the victim. 3.0: Analysis [ 12 ] As set out in my oral reasons for judgment, I imposed the minimum sentence of 14 days in custody, together with a period of probation of one year with the ancillary terms that were requested by the Crown but I did not impose a no-contact order. I allowed Mr. T. to serve his intermittent sentence on weekends.

[ 13 ] The relevant governing sentencing principles are set out in

section 718 to 718.2 of the Criminal Code . 718. 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 acknowledgment of the harm done to victims and to the community. 718.01 OBJECTIVES — OFFENCES AGAINST CHILDREN — When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. 718.1 FUNDAMENTAL PRINCIPLE — A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 OTHER SENTENCING PRINCIPLES — A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,... (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,... shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;... (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. [ 14 ] On the charges before the court, the Crown elected to proceed by way of

summary conviction. [ 15 ] With respect to the offence of sexual interference,

section 151 provides: 151. SEXUAL INTERFERENCE — Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years and to a minimum punishment of imprisonment for a term of forty-five days; or (

b) is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months and to a minimum punishment of imprisonment for a term of fourteen days. 4.0: Circumstances of the Offender [ 16 ] Mr. T. underwent a psychiatric assessment by Dr. Gary Chaimowitz and a psychological assessment with Dr. Heather Moulden. [ 17 ] Dr. Chaimowitz states at page 11 of his report, dated May 14, 2010, the following: My psychiatric assessment, psychological assessment, an interview with his spouse and our formulation would suggest that there is no evidence of any major psychiatric disorder or paraphilia. Mr.

T. engaged in a single act of highly inappropriate behaviour with his daughter, crossing a significant boundary. It is important to note that the acts took place while he believed that his daughter was asleep, i.e. he thought she would be unaware of his behaviour and that when she awoke he ceased what he was doing. Although one can never know for sure, we believe that his shame, embarrassment and guilt are genuinely felt.

There is no indication to suggest that this act is part of a pervasive pattern of aberrant sexual behaviour or that he qualifies for a diagnosis that would include ongoing sexually deviant behaviour. Mr. T. is seeking out help for himself and appears to be genuinely interested in assisting his daughter in repairing the damage that he did.

He recognizes the extent and the importance of the consequences of his behaviour on his daughter. This does appear to be an isolated and exceptional circumstance that has an extremely low likelihood of repetition in any form. [18] I also had an opportunity to review eight character reference letters filed on behalf of Mr. T.. Included in those letterswas a letter from his 18-year-old daughter, E.T.. She herself was a victim of sexual abuse suffered at the hands of Mr. T. 's brother. Herletter of support is poignant and insightful.

She speaks to his genuine remorse and to the significant impact that his inability to enter theUnited States will have on his business. Her letter is one of love and support and concern for her sister and for her father. [19] A letter from his personal physician, brother in law and friend, Dr. T.S., who has known the offender for over 25 years,states as follows: I have witnessed his personal skills and I can attest to the goodness that is within D. He is tremendously supportive to his executive wifeand has been a fine and loving father to his two daughters.

D. has devoted his life to his family, building a business, a cottage, travelingwith his girls, showing them the world. His wife and daughters are the center of his world. I have been deeply saddened to watch thedevastation in this family over the past year. During difficulties with their eldest child I have watched D. pursue every avenue to provide the best possible outcome for her personaland emotional success. It is one of the many reasons this recent event is so impossible to understand. I have also witnessed D.'s personalpenance during this time.

In this very close knit family I have watched M. progress through this process of recovery. I credit M. and D. both for putting M. firstalways as they all attempt to reconcile their family. I feel strongly leniency in sentencing would benefit M. M. is terrified of her father'sjail sentence and what it will do to her family. She has expressed over and over again that she doesn't want D. to go to jail.

It is myopinion as physician, brother in law and friend the minimum sentencing would be the best possible outcome for this family in itscontinued recovery. [20] The victim impact statement filed by his daughter deserves replication in full. In it she states: When this event first happened I felt like my whole life had changed. I felt confused, violated, sad and angry. I had trouble concentratingat school and my grades went down. I couldn’t talk to anyone outside my family about this and I had to lie to my friends all the timeabout what was bothering me.

My family activities stopped such as vacations, celebrations and family events. Nothing felt the same. Over time things improved a lot and I have healthy relationship with my boyfriend and my friends and my mom. All of my school marksare above 80% and aside from this legal situation my life feels pretty normal. I have had some counselling by myself and with mymother. I'm looking forward to leaving this behind me. I want to move on with my life with no restrictions concerning my father or my family. I want to slowly get a relationship back with myfather, but at my own pace.

I want my life to fully return to as normal as possible, given the circumstances. I hope to go on familyvacations again, live a normal family life, as much as possible and not feel like a victim. I do continue to worry about our family financesespecially now that I know my father can't run his business in the states. I am applying to university next year and I hope financially myparents can continue to support me. [21] Similarly, Mr. T.'s wife wrote a moving letter of support for him.

In that letter, she states: While I will probably never understand my husband's actions, I can say that his behaviour following the disclosure is consistent with theman I know, love and forgive. He took accountability for his actions, he's been honest with me, he has sought professional help throughcounselling and he has accepted the consequences of his actions. I hope that as a result of M.’s courage and my husband's honesty, thatthe cycle of abuse that has run through his family has finally reached an end.

My greatest hope now is that family will have the freedom and choice to reunite and recover at our own pace. I hope that M. will notsuffer revictimization as a result of harsh legal consequences for D. Nothing feels normal about having your father sentenced to jail and Iknow that her wish is to return to normalcy. [22] The Crown has filed numerous cases in support of its position, however, most of the case law produced and thesubmissions made by Ms. McGuigan, I found of little help to me in deciding this matter. [23] For instance, Ms.

McGuigan went on at great length about how aggravating a factor it was for sentence that the offenceoccurred in the victim’s bedroom in her bed. She talked about the sanctity of her room as a place of safe refuge violated by her father. That sort of submission is not accepted as being an aggravating factor and I find it to be contrived and reaching. Had the victim beensleeping in front of the television in the family room when she was molested by her father does not seem to me to be any different thanthe location where she was.

The act of sexual touching by her father is the conduct being assessed, not its location. [24] Furthermore, Ms. McGuigan submits that the elevation of the punishment by Parliament to a minimum of 14 daysimprisonment somehow disentitles an individual in Mr. Thompson’s position from consideration for the minimum sentence because nowa conditional sentence is not available as a sentencing option. I disagree. [25] I agree and am bound by the observations made by Moldaver, J.A. stated in R. v. D.D. (ON CA),[2002] O.J. No. 1061 (Ont.

C.A), setting out the relevant principles, albeit in a much more serious case than the case at bar:

34 The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk tosatisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, theobjectives of sentencing proclaimed by Parliament in s. 718(a), (

b) and (

c) of the Criminal Code, commonly referred to as denunciation,general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognizedobjectives of sentencing. 35 We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at onceour most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselvesagainst predators like the appellant and as such, they make easy prey.

People like the appellant know this only too well and they exploitit to achieve their selfish ends, heedless of the dire consequences that can and often do follow. 36 In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that littlewas known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse nolonger holds sway. The horrific consequences of child sexual abuse are only too well known. 37 Two such consequences were identified by the Alberta Court of Appeal almost ten years ago.

In R. v. S.(W.B.) and R. v. P.(M.)(1992), (AB CA), 73 C.C.C. (3d) 530 at 535, the court, composed of Major J.A. (as he then was) and McDonald andQuigley JJ. made the following observations: When the victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in seriouspsychological harm to the victim.

When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it isreasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or brokenbones, and may even be permanent.

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship withanother adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or herrather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim'semotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse.

We have onlythe recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships totheir having been abused sexually when they were children. Another consequence of being abused sexually may be that the child, when he or she becomes an adult, will treat a child or children as heor she had been treated as a child - that is, he or she may abuse a child sexually. There is no empirical way of proving that a particularchild victim, when he or she becomes an adult, will do to some child what has been done to him or her.

We do know that sentencingjudges are commonly told by defence counsel that the accused claims to have been sexually abused by a man (or by a woman, or both)who had stood in a parental relationship to him or her when he or she was a child. 38 As is apparent from these passages, with which I completely agree, the Alberta Court of Appeal was focussing on the potential longterm effects of sexual abuse. Time alone will tell whether the children in the present case will fall victim to one or both of theseconsequences. In the short term, the immediate harm to them (a third consequence) is well documented.

I have earlier referred to thedevastating effects of the appellant's conduct and there is no need to repeat it. Manifestly, the situation in the four affected families istragic. 39 A question arises in this case whether the appellant should benefit from the fact that unlike Stuckless, he has not been diagnosed as apedophile. In particular, the appellant submits that because he has not been found to be a pedophile, this should be viewed as a mitigatingfactor weighing in his favour. 40 With respect, I disagree.

If the appellant is not a pedophile and he does not suffer from some other psycho-sexual disorder that couldaccount for his reprehensible behaviour, then arguably his degree of moral culpability rises significantly. Surely, that cannot translateinto a mitigating factor weighing in his favour. 41 My rejection of this aspect of the appellant's argument should not be taken as an indicator that had the appellant been diagnosed as apedophile, I would have concluded that the 9-year global sentence selected by the trial judge was too high. It was not.

42 In this respect, assuming that the appellant is a pedophile, I agree entirely with the views expressed by Abella J.A. at pp. 242-246 ofStuckless under the subheading "The Role of General Deterrence and Rehabilitation". In a nutshell, as my colleague points out, thesentencing objectives of denunciation, and general and specific deterrence, can and do play a significant role in the sentencing ofpedophiles. Moreover, as Abella J.A. observes at pp. 244: ... Pedophilia is an explanation, not a defence.

Society is entitled to protection no less from pedophiles than those who sexually abusechildren without this tendency. 43 I agree wholeheartedly with this observation and would only add that in the case of pedophiles, while their degree of moral culpabilitymay be somewhat diminished by virtue of their psycho-sexual disorder, absent successful treatment,4 they remain dangerous andrepresent a very high risk to society.

As such, in the case of pedophiles who have not been successfully treated, I believe that in additionto the sentencing objectives of denunciation and deterrence, serious regard must be had to the objective of separating such individualsfrom society to protect our children and spare them from the risk of irreparable harm. [26] What distinguishes that case from the case at bar is that the offences in that case were far more serious, involved multiplevictims, and the impact on the victim was profound and long-lasting, as opposed to the case here where the victim has been surprisinglyresilient and her trauma appears to have been relatively short lived. [27] I find that the offence committed by Mr.

T. was an opportunistic and relatively brief singular assault that, although anextreme breach of trust, in no way approached the conduct that Moldaver, J.A. was considering in R. v. D.D, supra. [28] Similarly, in the case of R. v. S.B. [1998] O.J. No. 3671 (Ont.C.A.), a sentence of 18 months imprisonment was found tobe excessive and was reduced to a sentence of eight months. In that case, the accused pleaded guilty to committing a sexual assault onhis stepdaughter. He had no criminal record and was a respectable, responsible employee and family member.

Those events, however,took place over a four-month period and were not an isolated act. In that case, the offender followed his stepdaughter into the bathroomwhere he asked her to remove her clothes and to pose in demeaning and inappropriate positions and where the assault escalated to digitalpenetration. The trial judge rejected the suggestion by the defendant’s counsel that a suspended sentence be imposed and imposed asignificant period of incarceration.

The Court of Appeal reduced the period of incarceration in that case to one of eight months but did soin a relatively brief four paragraph endorsement that does not assist me in sentencing in the case at bar. [29] Ms. McGuigan also cited the Ontario Court of Appeal decision in R. v. Manraj 2009 ONCA 485 , [2009] O.J.No. 2484. That case, however, involved sexual exploitation of a much younger victim, a three-day trial, and again a more intrusivesexual assault.

Even though the offender was a first offender, I find that case to be of little assistance and to be distinguishable from thecase at bar. [30] The Crown also provided for my consideration the case of R. v. Hutchinson [2006] O.J. No. 1790 (Ont.C.A.) where ourCourt of Appeal imposed a sentence of 15 months incarceration in addition to pre-trial custody served on a first offender, aged 50. Thatcase, however, involved a younger, particularly vulnerable victim of 9 years of age, a more intrusive sexual act of fellatio, and theappellant being found guilty after a trial.

As well, the Crown factum shows that the offender continued to have a lack of insight into hisconduct. His conduct involved a series of acts over a period of time and he only stopped committing the acts because the complainant'smother put an end to the relationship between her daughter and the defendant. [31] The Crown also relied on the decision in R. v. Levert (ON CA), [2001] O.J. No. 3907 (Ont. C.A.). Inthat case, the defendant was sentenced to a term of six months imprisonment for sexual interference against a nine-year-old boy.

Theoffence involved two occasions of touching the boy's penis and the young complainant had several disabilities. As well, the defendantwas found guilty after a trial. The defendant in that case was found by the trial judge to have lacked remorse and the Court of Appealheld that that was an inconsequential factor for the rejection of the conditional sentence. Again, this case is of little assistance to me inthis sentencing proceeding. [32] Ms. McGuigan also relied on the decision in R. v. G.L. (ON CA), [2003] O.J. No. 1719 (Ont.

C.A.)that involved an appeal concerning a sentence involving eighteen incidents of sexual touching and sexual assault over a span of 18months, when the complainant was 13 and the accused was 30. The accused had a youth court record for sexual assault. The offender inthat case had not accepted responsibility for his actions and they had a marked impact on the complainant.

A sentence of 10 months wasimposed in that case and other than standing for the proposition that the serious nature of sexual abuse against children engages theprinciples of denunciation and deterrence as the primary sentencing factors, the facts of that case are so different from the case at bar thatit is of little use to me. The court held that although the imprisonment of the appellant may have adverse financial consequences for theappellant and his family, the sentence of actual imprisonment was, and continues to be the most appropriate disposition for that case. [33] The Crown, Ms.

McGuigan, also relied on the decision of R. v. Real 2009 ONCA (Ont. C.A.) which was a Crown appealof a 90 day intermittent sentence given by Murray J. of the Superior Court of Justice. The court upheld that decision. However, thatdecision related to four specific incidents of sexual touching of a young girl who lived in the house next to the appellant during a two-year period, as well as other incidents on numerous occasions throughout the periods specified in the charges.

Also, unlike the case atbar, the conviction was entered after a trial, the complainant was much younger, being between five and seven years of age when theoffences occurred, and the evidence involved touching of the complainant’s vagina with his hand underneath her clothes on numerousoccasions for various lengths of time. Another distinguishing factor in that case is that the Crown had proceeded by way of indictmentrather than by

summary conviction. [34] The aggravating factors in this case that I have considered are as follows:

• The accused committed a serious breach of trust by sexually touching his daughter’s breast and buttock under her clothes – no greater trust exists than that between a parent and a child • When first confronted with being in her room by her, he lied and said that she was having a nightmare and that is why he was in her room • When confronted by his wife a couple of nights after the incident, he at first denied the allegation suggesting that his daughter had had a dream but after considering the matter overnight, he admitted the act to his wife • He knew the potential consequences of sexual assault on his daughter as his older daughter was sexually victimized by his brother (as was the accused in his youth) and suffered significant emotional trauma and indeed was still receiving therapy to deal with the consequences of that sexual abuse • He does not suffer the from any alcohol or substance abuse issues and suffers from no major mental disorders – he does suffer from very minor agoraphobia and has probably suffered from depression for about three years preceding the offence. [ 35 ] The mitigating factors that I took into account at this sentencing were some of the following factors: • He has no previous record • He shows genuine, profound and absolute remorse for his actions • His shame, embarrassment and guilt, I find, is genuine and there is no indication that this act was part of a pervasive pattern of aberrant sexual behaviour • He accepts full responsibility for his conduct • He indicated his desire and intention from the outset to plead guilty to the charge thus sparing the victim any further trauma associated in being a witness in this matter • He has taken immediate assessment from qualified professionals and has entered counselling • He is willing and compliant with his counselling and is committed to spend as much time as necessary in counselling to repair the damage that he has done to his family • This was an isolated and exceptional act and the psychiatrist believes that he has an extremely low likelihood of repetition in any form • He enjoys the continued support of his wife, his extended family and friends, his oldest daughter and, indeed, the victim of the offence • His business, which requires travel to the United States, will be severely impacted by his exclusion from that country • He recognizes that his admission of these acts was required to help his daughter in her recovery and did so after a very short time • The sexual touching, although serious and disturbing, involved no digital penetration and ended immediately when he thought she was awakening • He was required, pursuant to the terms of his release, to live a very nomadic life style after he was charged, staying first with his father-in-law and then between his parents’ house in London and his cottage, so that he would have no contact with his daughter. [ 36 ] All of the above cases submitted by the Crown provide guiding principles to me, yet are distinguishable on their facts and virtually all involved more serious and invasive conduct than in the case at bar.

It is for that reason that I did not reserve sentencing and give written reasons and have only done so at this point because Ms.

McGuigan wished me to create written supplemental reasons for sentence. [ 37 ] These are those reasons in all the circumstances of this offender and this case, taking into account that the predominant sentencing principles in any breach of trust sexual assault case against a child by a parent are those of deterrence (both general and specific) and denunciation. [ 38 ] I have applied those principles, as well as the other sentencing principles as set out in sections 718 to 718.2 of the Criminal Code , and I am of the view that a period of 14 days in custody followed by a one-year term of probation together with the ancillary orders requested by the Crown achieves the best balance of all the sentencing factors in this case.

Released: February 15, 2011 ___________________________ Signed: “Justice Stephen D. Brown”