IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]  Mr. S. pled guilty to the sexual interference of his daughter over a five-year period starting when she was only six years old.

[2]  The Crown seeks a sentence of 10 years. Counsel for the accused urges this Court to impose a much lower sentence and recommends a sentence of five years.

[3]  Mr. S. obtained full custody of his daughter K when she was three.

[4]  He began abusing her in 2015 when she was six. He stopped in 2021 following a disclosure to police when K was 11. The abuse occurred a few times a month, sometimes as often as once a week. It involved Mr. S. forcing his daughter to masturbate him and put his penis into her mouth. He also touched K’s buttocks and vagina, forced his fingers inside her vagina, and put his mouth on it.

[5]  He also began attempting to penetrate her vagina and anus with his penis when she was eight. When questioned by police, Mr. S. said his daughter would often cry and plead for him to stop. On those occasions he would stop trying to penetrate her, not because she was crying and asking him to, but because, as he says, she was too small. On those occasions he would continue rubbing his penis against her until he ejaculated.

[6]  Mr. S. would seize opportunities to prey on his daughter: when her stepmother and brothers were away from the family home.

[7]  Both Mr. S. and his daughter have herpes, however, the Crown says it is not in a position to allege that he transmitted the disease to her, but nonetheless, he risked exposing her to the disease.

[8]  Mr. S. told K not to tell anyone because both of them would get in trouble. Despite the repeated abuse, for six years K kept it a secret. In 2021, she finally told a friend, who told her mother, who in turn informed the police.

[9]  Following his arrest, Mr. S. moved out of the family home. He was interviewed by the police and was cooperative. He provided much more detail about the abuse than what his daughter provided.

[10]      K is now 12. She did not provide a victim impact statement. According to her stepmother, who has remained steadfast and committed to her relationship with Mr. S., K says she misses her father and would like to see him. She struggles with understanding why her mother and brothers are allowed to see him but she is not.

[11]      K was enrolled in counselling and according to her counsellor does not require any further counselling at this time. As she becomes older and understands the true magnitude of her father’s crimes, the need for assistance might change.

[12]      It is difficult to know exactly how the abuse will affect K. One can only hope that she will not suffer from suicidal ideation, substance use disorders and other mental health difficulties that are common among victims of sexual abuse. Regardless, the road going forward, without either of her biological parents, will be a complicated one.

[13]      What is certain, like the victim in Friesen, the sexual violence caused immediate pain and distress to K, as evidenced on more than one occasion by her crying pleas to stop.

[14]      Mr. S. is 37 years old. Although his parents separated when he was 14, his childhood was otherwise unremarkable.

[15]      Following a short relationship between Mr. S. and K’s biological mother, K was born. The relationship was an unhealthy one and following involvement by the Ministry of Children and Family Development (the “Ministry”), the two separated and Mr. S. was granted full custody.

[16]      When K was three, Mr. S. entered into a common-law relationship with his current spouse SC. They have [omitted for publication] boys. Despite the long history of abuse, SC continues to describe Mr. S. as a good father and perversely describes K as “Daddy’s girl”.

[17]      Although his employment varied, Mr. S. was always fully employed and for the past five-six years worked for the same employer as an ironworker.

[18]      In preparation for the sentencing, Mr. S. agreed to meet with a court-appointed psychologist, Dr Burnett. In addition to many other things, he told Dr Burnett that he was attracted to prepubescent females, an attraction he identified when he was 19.

[19]      Dr Burnett diagnosed Mr. S. with:

[20]      Dr Burnett also conducted a series of risk assessments and concluded that Mr. S. is at an average risk to reoffend, a risk that would be mitigated through completion of a sexual offender treatment program. Mr. S. claims to have no insight into why he engaged in the criminal behaviour he did. He said he knew what he was doing was wrong, that his daughter would plead with him to stop while crying, yet he persisted. He committed the offences both while intoxicated and sober.

[21]      Mr. S. says he feels terrible and embarrassed for what he did, but feels grateful to have been caught. Although he claims not to understand why he did what he did, he described to the report writer feelings of arousal and excitement and even characterized it as “a rush”. 

[22]      Mr. S. expresses a genuine interest and willingness to attend any counselling or treatment the system can offer.

[23]      Mr. S. was convicted for possession for the purpose of trafficking. The offence occurred in 2013 and he was convicted in 2015. He received a 90-day jail sentence. He does not have any other criminal convictions. However, when he was 19 years old, he self-reports helping his sister who was 10 or 11 out of the bathtub and becoming aroused while touching her buttocks. He was not charged with the incident, but as a result, became estranged from many of his family members.

[24]      He has been reporting to a bail supervisor since his arrest in March 2021. He was cooperative with the Ministry of Children and Family Development during their investigation. He has not breached either his release order or the Ministry’s safety plan.

[25]      Mr. S. has been seeing a counsellor to address the stress, anxiety, depression and suicidal thoughts flowing from being arrested and charged. He self-reports seeing the counsellor 12 times and says he would have attended more often but could not afford it.

[26]      The Crown argues that a sentence of 10 years is appropriate and relies on the following cases in support of their position: R v Friesen, 2020 SCC 9; R v BDM, 2021 BCSC 1738; and R v JF, 2021 ONSC 7613. The Crown also seeks a number of ancillary orders.

[27]      Counsel for the accused argues that a sentence of five years is fit and proper. They rely on: R v CCC, 2021 BCSC 599; R v CB, 2021 ONSC 187; R v ZK, 2021 BCSC 1926; R v Burch, 2021 ONSC 484; and R v Roper, 2020 ONSC 7411.

[28]      The maximum period of imprisonment during a portion of the time Mr. S. perpetrated the abuse upon his daughter was 10 years. Although the maximum has since been increased to 14 years, I remain bound by the 10-year maximum.

[29]      The primary considerations in sentencing offenders for sexually abusing children in a trust relationship are denunciation, deterrence and protection of society. Rehabilitation, although an important consideration, takes on a secondary status; and cannot be the primary consideration. In R v LFW, 2000 SCC 6 (CanLII), [2000] 1 SCR 132, at para 31 Madam Justice L’Heureux Dubé explains why when she writes:

[30]      Ultimately, the sentence must be proportional to the gravity of the offending behaviour and Mr. S.’s moral culpability. This requires a careful examination of the circumstances of both the offence and the offender to ensure the “punishment fits the crime”. It also requires me to exercise restraint and to consider the principle of parity.

[31]      In determining an appropriate sentence I must consider all relevant and reliable information about the offence and the offender. This includes any aggravating and mitigating factors which would tend to increase or decrease the gravity of the offence and the offender’s moral blameworthiness.

[32]      Following his arrest, Mr. S. voluntarily attended the police station and provided a full and candid confession about his crimes. His statement was more detailed than his daughter’s, both in regards to the frequency and scope of the offences. Without his statement, the full extent of his crimes likely would have remained undetected. Although worthy of substantial weight, it is not the same as a person who stops their offending behaviour on their own and self-reports their crimes to police.

[33]      Mr. S. entered a guilty plea. Both the Crown and defence describe the plea as worthy of considerable weight. Despite his confession, they say the young victim would have had to testify in this matter and the guilty plea has spared her from the trauma of doing so. It has also spared the system the time and expense of a trial.   

[34]      The guilty plea is also an acceptance of responsibility. If left to a trier of fact to determine, Mr. S. and others, for example, like K’s stepmother SC, could continue to assert that the trial judge got it wrong and that he never committed the horrible things claimed. Instead, by pleading guilty, Mr. S. erases all doubt. 

[35]      The fact that Mr. S. entered the guilty plea early is also a strong indication of his desire to accept responsibility and remorse for his actions. This provides some optimism as to the prospects for rehabilitation.

[36]      Although Mr. S. did not speak during the allocution stage of the proceedings, I accept, based on his cooperation with police, his comments to the report writer, his early guilty plea and his counsel’s submissions, that he is remorseful.

[37]      Although very limited, Mr. S. has some insight into his offending behaviour and accepts that he needs intensive treatment. He is willing to attend whatever treatment and counselling the professionals determine is appropriate.

[38]      This is not a mitigating factor, but rather an aggravating factor that is not present. Its absence does not automatically relegate Mr. S.’s behaviour to the lower range of sentences. In fact, it is usually the absence of a record or a tarnished background that enables offenders like Mr. S. to gain the trust of others so that when around children they can carry out their crimes. For the past six years Mr. S. was abusing his daughter. This hardly describes a person of good character. At best, the lack of a criminal record gives me hope that the prospects for rehabilitation are promising.

[39]      Mr. S., like all human beings, is multi-dimensional and there are positive things about him. For example, he has been able to maintain a long-term relationship and is described as an excellent father to his [omitted for publication] boys.

[40]      However, I cannot place much weight on the fact that he was a good father to his boys; but for their gender, the outcome could have been quite different. It is also difficult to place much, if any, weight on this submission by SC following her description of K as “Daddy’s girl”.

[41]      I agree that he continues to have support from SC. Typically, family support often bodes well for future rehabilitation. However, in the context of this case, I am not sure that is the case.

[42]      Like the absence of a criminal record, being gainfully employed provides some indication that Mr. S. can live a prosocial lifestyle and does provide hope.

[43]      Collateral consequences are not necessarily aggravating or mitigating under section 718.2(a) of the Criminal Code, as they do not relate to the gravity of the offence or the level of responsibility of the offender; they nevertheless speak to the personal circumstances of the offender.

[44]      Collateral consequences are any consequence arising from the commission of an offence, the conviction for an offence, or the sentence imposed for an offence, that impacts the offender.

[45]      There is a limit on the influence collateral consequences can have in formulating a proportionate sentence. Where the result is an obvious one that inevitably flows directly from the commission of the offence, conviction or sentence, the mitigating effect of the collateral consequence will be significantly reduced.

[46]      According to his counsel, Mr. S. lost his job after his employer learned about the outstanding charges. Because of his loss of employment, he also lost his home. Although both worthy of some consideration, both results were inevitable consequences of his offending behaviour and for this reason their mitigating effect is reduced.

[47]      Not only is the violent sexual abuse of a child one of the most egregious forms of abuse, when the abuse is perpetrated by a parent, the very person to whom a child looks to for protection and care, it becomes exponentially more abhorrent. Mr. S. was granted full custody of K by the court because she was not safe in her mother’s care. Because of this circumstance, the duty owed by Mr. S. to protect her was at its highest level.

[48]      The offending behaviour was not a single isolated incident; rather, it carried on over a period of years. Not only does this increase the severity of the impact on the victim, but it also demonstrates Mr. S.’s inability or unwillingness to end his abusive behaviour and limit the damage already done.

[49]      The abuse of any child is aggravating; however, the younger they are, the more aggravating the crime. K was only six (6) when the abuse started. She was extremely vulnerable. The power imbalance between father and daughter, especially one so young, cannot be understated. K was totally dependent on her dad and helpless without him. As the Crown points out, when other children were learning their alphabet, K was being called upon to navigate her way through a very dysfunctional and abusive relationship with someone she loved and looked up to.

[50]      The degree of physical interference and sexual violence was degrading and a significant violation of K’s sexual integrity. Although Mr. S. did not engage in sexual intercourse, it was not without persistent efforts. He tried penetrating her both vaginally and anally, all the while knowingly risking the transmission of venereal disease.

[51]      The abuse occurred in K’s home, a place that she ought to have been, and had the right to feel, safe.

[52]      Although reference was made in the psychological report and submissions regarding the incident of Mr. S. touching his younger sister, I am not satisfied that there is sufficient evidence before me to conclude whether the touching was intentional or accidental. I have not been asked, nor am I prepared, to characterize it as an untried offence under section 725 of the Criminal Code. At most, I rely on it as evidence, through Mr. S.’s own admission and description of how he felt at the time, of a longstanding history of an attraction to prepubescent females.

[53]      The immediate impact of Mr. S.’s crimes were clearly demonstrated by K’s reactions and her crying pleas for him to stop. I am told that she has gone to counselling and at this time does not require further counselling. The long-term impact for K is less than clear. Undoubtedly, as the Crown points out, the physical, psychological and emotional violence will shape who she is. We can already see it in her feelings of isolation in not being able to see her dad when her brothers can. How will she process it and what responsibility will she feel for her dad going to jail? Now she is without either of her biological parents and in the care of a woman who remains firmly entrenched in her commitment to K’s abuser.

[54]      Mr. S. robbed his daughter of her youth and innocence.

[55]      Even if K somehow manages to navigate her way around any future potential trauma, Mr. S., for his own self-gratification, exposed his daughter to the extreme risk of serious psychiatric and psychological trauma. That is very aggravating.

[56]      In the case of sexual assault against children, the background of the offender, the type of offending behaviour and the nuances of the relationship between the victim and the offender are varied, all of which make comparisons complicated and identifying a precise range challenging.

[57]      However, what we do know is that the previous ranges were inadequate and did not reflect the seriousness of the offending behaviour. According to the Supreme Court of Canada, in Friesen, mid-single digit ranges for the sexual abuse of children are normal and upper-single and double-digit terms should be neither unusual nor reserved for the rare or exceptional circumstances.

[58]      The Supreme Court, in that same paragraph, also states that the maximum sentence should not be reserved for the abstract case of the worst crime committed in the worst circumstances. Instead, the maximum should be imposed whenever the circumstances warrant it.

[59]      I have reviewed the cases filed by both the Crown and the defence and as both counsel agree, none of the cases are squarely on point.

[60]      In R v BDM, 2021 BCSC 1738, the court imposed an eight-year sentence on an Indigenous offender for sexually abusing his two granddaughters. The sentence was imposed following a conviction after trial involving one granddaughter and a guilty plea involving another. The circumstances of the offences that proceeded to trial began when the offender’s granddaughter was seven. It started with him touching and licking her breasts, and touching her vagina. He also had her touch his penis with her hand and mouth. This occurred on multiple occasions. The final incident occurred when his granddaughter was 14 and he had sexual intercourse with her.

[61]      The facts involving his second granddaughter occurred when she was between five and 12 years old. He would touch her chest and vagina, force her to touch his penis and would rub his penis on her buttocks and vagina until he ejaculated. He confessed to those matters and pled guilty.

[62]      He was 65 years old, Indigenous and had a very difficult childhood. He did not have a criminal record. He too was sexually abused as a child. He suffered from bipolar disorder and depression and sought out and received psychiatric treatment before sentencing. He was described as a low-moderate risk to reoffend. He expressed a willingness to attend treatment. The impact of the victims was described as devastating; both at one point considered suicide.

[63]      In R v JF, 2021 ONSC 7613, the accused was found guilty after trial of sexually assaulting his daughter when she was between 11 and 15. The assaults included sexual touching and intercourse on multiple occasions. The impact on the victim was described as “profound”. He was sentenced to nine years.

[64]      In R v CCC, 2021 BCSC 599, the offender was found guilty after trial of sexually assaulting his step-granddaughter. He too was 65 years old, Indigenous and had a troubled upbringing. He was a father figure to the child because she was placed in her grandparent’s home following the death of her mother. The court could not determine when the abuse began, however, said the abuse occurred over several months on multiple occasions, ending when the victim was 11. The abused involved touching and intercourse. The impact was significant. She began cutting herself when she was 13. CCC had a dated, minor and unrelated criminal record. He also suffered from a strong addiction to alcohol. He was sentenced to five years.

[65]      In R v CB, 2021 ONSC 187, the offender was found guilty of sexually assaulting his daughter when she was between 13 and 16. The abuse involved the offender putting his fingers inside her vagina, forcing her to put her mouth on his penis, masturbating him and repeated attempts at intercourse. When she refused intercourse, he became controlling and hostile towards her.

[66]      The offender had an unremarkable childhood. He did not have a criminal record. He was diagnosed with major depressive and social anxiety disorder. At the time of sentencing, he continued to deny the offences and viewed himself as the victim. The victim was described as severely affected by the offences in all areas of her life. The sentence imposed was five years.

[67]      In R v AB, 2021 ONSC 484, the accused pled guilty to sexual interference and making sexually explicit material available. The victim was his girlfriend’s daughter. The abuse occurred when she was between 10 and 13. The abuse occurred a few times per week. As well as making sexually explicit material available, the abuse included oral sex, masturbation and anal intercourse. Since AB denied anal intercourse, the victim had to testify. He did not have a criminal record. He was sentenced to six years.

[68]      In R v ZK, 2021 BCSC 1926, the accused was found guilty of sexually abusing his daughter over a two-year period, starting when she was around nine and ending when she was 11. He touched her breasts, rubbed her vagina, penetrated her with his fingers, masturbated on her and forced his penis into her mouth and ejaculated. The abuse occurred during his parental time with his daughter. The sentence imposed was seven years.

[69]      Finally, is the case of R v Friesen, 2020 SCC 9. The accused pled guilty to sexually assaulting the four-year-old daughter of a woman he met online. The accused asked the mother to bring her daughter into the room so they could perform oral sex on her together and he could have intercourse with her. The mother turned on a recording device so there was an audio recording of what happened next. The mother brought the child into the bedroom, removed her pull-up diaper and set her down on the bed naked. The child attempted to run but was prevented from leaving the bedroom. While the accused was naked and masturbating, he directed the mother to “put her pussy on here” and to force the child to fellate him while his penis was erect. 

[70]      The mother’s friend was awoken by the child’s screams, entered the bedroom and took the child out of the bedroom. The accused demanded that the mother retrieve the child so that he could “rape her” and threatened to tell the mother’s friend that the mother had sexually abused her son two weeks earlier, if she did not comply with his demand. 

[71]      The accused was described by the court as a relatively young man (29 years old). He experienced a traumatic and painful childhood involving physical, emotional and sexual abuse. The only entry on his criminal record was a conditional discharge for possessing marijuana and failing to appear in court. He claimed to remember little of the events and to have “blacked out for quite a while” due to drug and alcohol use on the night of the offence. However, he also claimed that drugs and alcohol had not been problems for him. He was described as a high risk to reoffend. The probation officer expressed concern about the accused’s lack of insight into his behaviour and his failure to implement strategies to mitigate any future risk. The Supreme Court of Canada upheld concurrent six-year sentences.

[72]      Like Mr Friesen, Mr. S. pled guilty. However, unlike Mr Friesen, Mr. S. is not a young man; he does not come from a disadvantaged background; he was not always under the influence during his offending behaviour; he persisted in his abuse through the tears of his daughter, not just once, but on multiple occasions over several years with the risk of serious trauma multiplying exponentially each and every time; he exposed his daughter to contracting a venereal disease. He occupied the clearest and highest level of trust imaginable.

[73]      There are also some differences. Mr Friesen was described as high risk to reoffend with marginal insight, while Mr. S. is described as average risk, but also with marginal insight. There were two victims in Friesen, the mother and daughter. Finally, Mr. S. provided a full account of his crimes to police, which might have gone undetected but for his willingness to cooperate.

[74]      After the completion of the sentencing submissions, Mr. S. consented to the revocation of his bail. He has been in custody since April 13, which is 43 days. There are no statutory bars to enhanced credit and I grant him credit of 65 days.

[75]      The sentence I impose must protect the public, including K. It must denounce in the clearest of terms Mr. S.’s conduct and deter him and others from committing similar crimes. With this in mind, I must also exercise restraint and ensure the sentence I impose is proportional to the seriousness of the offence and the offender’s responsibility.

[76]      After considering the circumstances of the offence, your own circumstances, the submissions of counsel and the case law, I cannot impose the maximum sentence provided by law, and as sought by the Crown. To do so would be to give no effect to the mitigating factors – or your guilty plea, which even the Crown in their submissions described as significant – your remorse, cooperation with the police, or prospects for rehabilitation.

[77]      However, I am also not satisfied the sentence proposed by your counsel on your behalf is proportionate to the seriousness of the offence and your degree of responsibility.

[78]      A fit sentence is eight years (2,920 days).

[79]      You have been in custody for 43 days and I am granting you enhanced credit of 65 days. The sentence is 2,855 days.

[80]      I am also making the following ancillary orders: