) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 4175

CITATION : R. v. S.S., 2017 ONSC 4175 COURT FILE NO.: 16-16 DATE: 2017/07/06 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – S.S. ) ) ) ) ) ) ) ) Theresa Donnelly, for the Crown Henry Van Drunen, for the Defendant ) ) HEARD: June 13, 2017 GORMAN, J. [ 1 ] S.S. plead guilty to count # 2 on the Indictment before me, namely: That between the 1 st day of October 2011 and the 30 th day of November 2014 in the Municipality of Bluewater in the Southwest Region and elsewhere in the Province of Ontario, he did for a sexual purpose touch M.S., a person under the age of sixteen years, directly with a part of his body, to wit: his hand and penis, contrary to

section 151 of the Criminal Code of Canada . [ 2 ] M.S. is S.S.s’ biological daughter. THE OFFENCE [ 3 ] S.S. and L.L. were married in 1996 and had four children together including their daughter M.S. [ 4 ] S.S. and L.L. separated in October 2011. M.S. was 9 years old, turning 10 in December 2011. S.S. moved out of the matrimonial home and L.L. remained there with the children. On the weekends when L.L. worked, S.S. would return to the home and stay with the children.

This is typically when the offences occurred. [ 5 ] At the end of May, 2016 M.S. disclosed to her mother that her father had been sexually touching her for the past five years. L.L. contacted the John Howard Society in London, and the society in turn contacted the CAS. [ 6 ] L.L. confronted S.S. about the allegations and he admitted that they were true. [ 7 ] On June 28, 2016 the Huron Perth Children’s Aid Society contacted the Huron OPP to report the incident.

Before the OPP had the opportunity to interview M.S. on June 28, 2016, S.S. turned himself into police and provided a cautioned video-taped statement. [ 8 ] On June 29, 2016 M.S. and L.L. provided interviews to the OPP and Huron Perth Children’s Aid Society. [ 9 ] S.S. advised police that he began touching M.S. after he had separated from his wife. He would enter M.’s room when she was sleeping. He would touch her breasts and vagina both above and underneath her clothing.

On some occasions he would digitally penetrate M.S’ vagina and perform cunninlingus. [ 10 ] M.S. advised the police that he would rip a hole in her pajamas in order to facilitate the touching of her vagina. The police obtained articles of M.S.’ clothing that supported this fact. [ 11 ] Following the touching S.S. would go downstairs and masturbate. [ 12 ] S.S. estimated that he touched M.S. in the above-noted manner about 20-30 times in a two year period. M.S. stated that the touching would occur about every two months. [ 13 ] In December 2014 S.S. entered M.S.’ bedroom and found her to be asleep.

M.S. was 12 years old at the time. S.S. began touching M.S.’ vagina. He put his fingers and tongue in her vagina. He then removed one of her legs from her pajama bottoms and got on top of her. He inserted his penis in her vagina. M.S. was crying and advised him that it was painful. He took his penis out of her vagina and left the room. S.S. advised police that he was not wearing a condom.

[14] The next morning S.S. went into his daughter’s room and begged her forgiveness. He asked if she wanted him to turn himselfinto police and she said “no”. [15] S.S. advised police that the penetration happed only once. M.S. stated that it happened more than once. [16] M.S. told police that when she was in grade 5 or 6, she believes that her father attempted to insert his penis into her anus butwas not successful. THE OFFENDER [17] S.S. is a 36 year old man with no prior criminal record. [18] A Pre-Sentence Report was prepared for the assistance of the court.

It reports that S.S. is depressed, embarrassed and hasclosed himself off socially since his arrest. [19] At 23 years of age, he was diagnosed with Addison’s disease, an auto-immune condition that requires hormone therapy. Symptoms vary, but include extreme fatigue, weight loss and depression. [20] S.S. has reported suicidal ideation since his arrest. He is remorseful and indicated to the author that his guilty plea was anattempt to see that M.S. “got help”. Curiously however, the author reports (p.8) that the subject has “limited insight into his offendingbehaviour”.

THE VICTIM IMPACT STATEMENTS [21] M.S. and her mother both filed Victim Impact Statements. M.S. describes being depressed, having suicidal thoughts and self-harming. She finds it difficult to trust and on some level feels guilt for her father’s arrest and ultimate conviction. L.L. isunderstandably angry and worried about the future well-being of all of her children. She summed up her statement by writing: “This isnot the man I married. That man would have flinched in disgust at the very thought of touching his daughter inappropriately.

Somethingchanged along the way.” POSITIONS OF THE PARTIES [22] The Crown seeks a sentence of five years as well as a number of ancillary orders. [23] Counsel for S.S. asks the court to impose a period of incarceration in the range of 3 – 4 years. PRINCIPLES OF SENTENCING [24] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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.[1] [25] Denunciation is important to reflect society's condemnation of certain conduct by punishing those who disobey society's basicvalues. Deterrence is important to deter the offender in question and to deter others who commit such offences. Denunciation andgeneral deterrence are the over-riding principles of sentencing to be applied in cases of sexual assault, and incest. [26] However, as Chief Justice Lamer stated in R. v.

M. (C.A.), (SCC), [1996] 1 S.C.R. 500, (1996), 105 C.C.C.(3d) 327, at paragraph 92: Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime willfrequently be a fruitless exercise or academic abstraction.

As well, sentences for a particular offence should be expected to vary to somedegree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals willdepend on the just needs and current conditions of and in the particular community where the crime occurred. [27] In most criminal cases there are both mitigating and aggravating factors for the court to consider. This case is no exception.

[28] By way of mitigation, S.S. pled guilty, thereby sparing M.S. the stress of testifying. A guilty plea is a sign of remorse and is amitigating factor for the court to consider. [29] The aggravating factors in this case are many: 1. The incidents were repetitive; 2. The incidents occurred within the sanctity of the victim’s home; 3. Given the relationship between the offender and the victim the offences committed were clear breaches of trust[2]; 4. There was attempted anal and completed vaginal penetration. LAW AND ANALYSIS [30] The Crown very helpfully provided a Sentencing

Summary, outlining five Ontario court cases: R. v. P.M. 2012 ONCA 162, [2012] O.J. No. 1148 (Ont. C.A.); R. v. D.M. 2012 ONCA 520 , [2012] O.J. No. 3616 (Ont. C.A.); R. v. R.O. 2015ONCA 814 , [2015] O.J. No. 6170 (Ont. C.A.); R. v. M.A.J. 2015 ONCA 725 , [2015] O.J. No. 5647 (Ont. C.A.) and R.v. Woodward 2011 ONCA 610 , [2011] O.J. No. 4216. [31] In R. v. P.M. (supra) the court dealt with issue of the proper sentencing range for sexual assault with a child.

At paragraph 44the court reviewed a previously decided case: In B. (J.), this court held that where a parent commits an offence of sexual abuse of a child in his care, and that abuse includes sexualintercourse, the normal disposition should be a penitentiary sentence in the range of three to five years imprisonment. The court held asfollows: The decisions of provincial appellate courts establish that, except in unusual circumstances, a penitentiary sentence is called for in allcases of sexual abuse of children to whom the convicted person stands in loco parentis if the abuse involves sexual intercourse.

Suchsentences reflect society's denunciation of this abhorrent conduct and the breach of trust reposed on parents or guardians of children.Both counsel agreed that the usual range of sentences for this type of offence is from three to five years. The length of sentence withinthe range of three to five years depends on a number of factors. These include the age of the victim, the duration and frequency of thesexual assaults, the criminal record of the offender, the effects on the victim and the presence or absence of collateral violence orremorse. [32] The court went on to explain: B.J. was decided in 1990.

Blair J.A. speaking for the court referred to decisions from this court and appellate courts of other provinces,especially the Alberta Court of Appeal. A review of those cases supports the three to five year range for incest, even where the abuse hasbeen prolonged and even where the offences involved more than one child. B. (J.) has been repeatedly followed by this court. See, R. v.H. (D.A.) (2003), (ON CA), 171 C.C.C. (3d) 309 (Ont. C.A.) at para. 33; R. v. M. (W.W.) (2006), (ON CA), 205 C.C.C. (3d) 410 (Ont. C.A.) at para. 413; R. v. G. (G.A.) (2006), 206 O.A.C. 134 (Ont. C.A.) at para. 13; R. v.

G. (M.D.),2007 ONCA 837 (Ont. C.A.). However, this court's decision in B. (J.) must now also be read with the decision in D. (D.).

While makingit clear that he was not setting out fixed and inflexible guidelines, Moldaver J.A., speaking for the court, said this in D. (D.), at para. 44: To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young childrenon a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms.When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physicalviolence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate.

Finally, incases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higherpenalties will be warranted. [33] In R. v. D.M. (supra) at paragraph 43-44 the court concluded: Since the argument in this case, Rosenberg J.A. has addressed the issue of any perceived discordance between B. (J.) and D.D. in R. v. M.(P.), 2012 ONCA 162, 289 O.A.C. 352 (Ont. C.A.) (at paras. 43 to 47).

He concluded that the B. (J.) decision must now be read withD.D. and that (at para. 46) "the court signalled in D.D. that the sexual abuse of a child will attract lengthy penitentiary sentences. In myview, where a father has committed repeated acts of incest with his daughter over many months...it will be highly unusual for the court toimpose a penitentiary sentence of less than five to six years". He also noted that amendments to the Criminal Code since the B. (J.)decision regarding aggravating circumstances and objectives of sentencing where children are sexually abused, are more consistent with

D.D. : see ss. 718.01, 718.2(ii.

i) and (iii). 1 To conclude on the issue of the proper range of sentence, although sentencing is always an individualized process of decision- making, where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary. (Emphasis mine) [ 34 ] In view to the foregoing, I agree with the Crown, that the starting point for the sentence for S.S. is 5 years in the penitentiary. [ 35 ] S.S. abused M.S. on a regular and prolonged basis.

She was 10 or 11 years old at the time, and he was her biological father, clearly in a position of trust. The abuse included vaginal penetration and an attempt at anal penetration. While S.S. maintains that the vaginal penetration occurred only once. M.S. says it happened a number of times. This is of no consequence from a sentencing perspective. The fact that it happened at all is abhorrent. [ 36 ] Once after vaginal penetration, in a response to M.S.’ clear pain, .S.S. removed his penis and fled the room. The following morning he apologized to M.S. and asked her if she wanted him to go to the police.

She said “no”. [ 37 ] The level of manipulation in this event is pathological. Knowing that he had committed a moral and criminal offence on a child, S.S. asked his child to decide his fate. [ 38 ] I am however reminded of the fact that S.S. did plead guilty and is clearly remorseful. He will be required to do much therapeutic work to gain insight into his behaviour. [ 39 ] There will be a sentence of 5 years in the penitentiary with the following ancillary orders:

a) SOIRA order for a period of 20 years;

b) DNA order pursuant to s. 487.051 of the Criminal Code of Canada ;

c) S. 109 order for 10 years d) S. 161(1) order for 10 years;

e) Pursuant to s. 743.21(1) S.S. shall have no communication directly or indirectly with M.S. during the custodial period of your sentence.

f) Victim Fine Surcharge of $200.00 with one year to pay.

g) Remaining charges withdrawn at the request of the Crown. Justice K. A. Gorman Justice K. A. Gorman Released: July 6, 2017 CITATION : R. v. S.S., 2017 ONSC 4175 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – S.S. REASONS FOR JUDGMENT Justice K. A. Gorman

Released: July 6, 2017