SUPREME COURT OF PRINCE EDWARD ISLAND. Her Majesty the Queen. against A.W.W. BEFORE: The Honourable Justice Gordon L. Campbell. Decision on Sentence

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1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. A.W.W PESC 35 Date: Docket:S1 GC-724 Registry: Charlottetown Her Majesty the Queen against A.W.W. BEFORE: The Honourable Justice Gordon L. Campbell Decision on Sentence Valerie A. Moore, for the Crown Brenda Picard, Q.C., for the Accused Place and date of hearing - Charlottetown, Prince Edward Island March 30, 2010; July 14, 2010 Place and date of Oral Decision - Charlottetown, Prince Edward island July 14, 2010 Restriction on Publication A non-publication order in this proceeding under s of the Criminal Code of Canada shall continue in force

2 Page: 2 Criminal Law Sexual interference Categorization of Offences Starting point for sentences established range of sentences too low parity of sentences across Canada penetration during a sexual offence of a minor by an offender in loco parentis or in a position of trust child with intellectual deficit two-and-a-half years imprisonment Cases Referred to: R. v. McDonnell [1997] S.C.J. No. 42; R. v. Drake [1997] P.E.I.J. No. 69; R. v. Devaney, [2006] O.J. No. 3996; R. v. Nasogaluak, 2010 SCC 6; [2010] S.C.J. No.6; R. v. J-GM, (Unreported) Prince Edward Island Supreme Court. June 7, 2010; R. v. CJL (Unreported), Prince Edward Island Supreme Court, February 3rd, 2010; R. v. HJK (Unreported), Prince Edward Island Provincial Court, June 24, 2009; R. v. DTL (Unreported), Prince Edward Island Provincial Court, March 4, 2009; R.v. DFS (Unreported) Prince Edward Island Provincial Court, August 9, 2007; R. v. JB, (Unreported) Prince Edward Island Provincial Court, June 3, 2004; R. v. RWC, (Unreported) Prince Edwawrd Island Supreme Court, March 22, 2001; R. v. Innerebner, 2010 ABQB 188, D.C.; R. v. Stone, [1999] S.C.J. No. 27; R. v. W.W.C. [2009] O.J. No. 4705; R. v. B.C. [2010] O.J. No. 478; (R. v. S.L.C., 2009 NLTD 66; R. v. E.M.W., 2009 NSPC 65; R. v. Sippley, 2009 NBQB 182 Campbell J.: [1] Following a trial, (R. v. AWW 2010 PESC 19) the accused was found guilty of touching the complainant for sexual purpose and he was further found guilty of sexual assault by placing his penis in the complainant's vagina. The accused was the complainant's stepfather, having been in a common-law relationship with the complainant's mother. He was referred to as "Dad" by the complainant. The offences involved two occasions when the accused fondled the complainant's vagina, under her clothing, and a third occasion where he had the victim get on top of him and he inserted his penis into her vagina. [2] These offences occurred at a time when the complainant was between seven and 11 years of age. Not only was the complainant a young child at the time of the offences, but she also suffers an intellectual deficit. [3] The Crown has presented an extensive brief setting out its sentencing submissions. They refer to a number of aggravating factors including a breach of a position of trust, the fact the offence took place on more than one occasion, the age of the victim, the fact the accused's conduct included at least partial penetration, and the fact the victim had an intellectual deficit. [4] The Crown reviewed the sentencing principles and objectives set out in the Criminal Code as discussed and applied in various cases. They reviewed precedents from within this jurisdiction and from other jurisdictions. And they made their

3 Page: 3 recommendation for a sentence of "at least two years in jail". [5] Defence counsel did not submit extensive written materials, but did comment extensively on those materials filed by the Crown and I agree with her conclusion that the Crown brief fully and fairly discloses the pertinent case law. Defence counsel focussed on the fact the accused has no prior or subsequent related record, notwithstanding this offence occurred some 15 years ago, and she refers as well to some positive references in his Pre-sentence Report. [6] Defence suggests a sentence in a provincial facility would be appropriate, in the range of 14 to 18 months. [7] The Crown also submitted an extensive brief urging the court to establish a baseline or starting point approach to sentencing for matters of the type currently before the court. In a number of other provinces several decisions reflect a practice by the courts to determine firstly if the offence falls within the category of what has been identified as a "major sexual assault". If the case is deemed to fall into that category and involve the breach of a position of trust with a child, then the "starting point" for sentencing is a period of four years in prison (in Alberta, for example). Any case involving penetration, including digital penetration, has been held to constitute a "major sexual assault". [8] The Supreme Court of Canada addressed the issue of the categorization of crimes and the use of starting points in sentencing in R. v. McDonnell [1997] S.C.J. No. 42. The court declared that there was no legal basis for the "judicial creation of a category of offence within a statutory offence" (such as "major sexual assault") for the purpose of sentencing. If that was to be done, it ought to be done by Parliament. However, the Supreme Court did say that "an appellate court may set out starting point sentences as guides to lower courts". [9] The Prince Edward Island Supreme Court-Appeal Division (as it then was) reviewed the Supreme Court of Canada decision in R. v. McDonnell, and further addressed the issue of starting points in sentencing in the case of R. v. Drake [1997] P.E.I.J. No. 69. They concluded that having a starting point is inconsistent with certain principals of sentencing which a court is mandated to consider by s of the Criminal Code. [10] The Ontario Court of Appeal (Rosenberg, Goudge and Feldman, JJ.A.) addressed the issue of starting points in R. v. Devaney, [2006] O.J. No and cited the McDonnell case as authority for allowing starting points. Beginning at paragraph 13 they said:

4 Page: 4 13 The Supreme Court of Canada has made it clear in cases such as R. v. McDonnell (1997), 114 C.C.C. (3d) 436 at 458, R. v. Stone (1999), 134 C.C.C. (3d) 353 at para. 244, and R. v. Proulx (2000), 140 C.C.C. (3d) 449 at paras that it is appropriate for trial judges to consider a starting point or range of sentence for a particular offence committed in particular circumstances. This approach accords with the principle that like crimes will attract like sentences. In many if not most cases, after considering all the relevant factors that affect sentence, a trial judge will impose a sentence that is within the developed range. 14 However, a trial judge is entitled to deviate from that starting point or range after considering the particular facts of the case including the circumstances of the victim, the particulars of the crime, and the history and circumstances of the offender. Where there are facts or circumstances that distinguish the situation significantly from other cases where sentences were imposed within the range, whether because of the victim, the nature of the crime itself, or the history or current circumstances of the offender, the trial judge is entitled to impose a sentence that adequately reflects the significance of those facts. In R. v. Cheddesingh (2004), 182 C.C.C. (3d) 37 at 38, the Supreme Court repeated: "As is always the case with sentencing, the inquiry must proceed on a case-by-case basis." 15 The role of an appellate court is to determine whether the sentence appealed from was demonstrably unfit. One factor for the reviewing court to consider is whether the sentence imposed was outside the "normal range", and therefore was demonstrably unfit because of its inconsistency with sentences imposed in similar circumstances. See McDonnell, supra at 458. But where the trial judge has given reasons that point to specifics of the victim, the crime, or the offender that warrant a sentence outside the normal range, it is unlikely that such a sentence will be found to be demonstrably unfit for that reason. (Emphasis added) [11] In R. v. Nasogaluak, 2010 SCC 6; [2010] S.C.J. No.6, the Supreme Court of Canada addressed the issue of imposing sentences outside of the pre-existing range. At paragraph 44 of that decision the Court stated: The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender and to the needs of the community in which the offence occurred.

5 Page: 5 [12] In Prince Edward Island we have not relied upon starting points, as such, for sentencing purposes. However, in nearly every case the court is presented with a range of possible sentences that has developed from precedents within this jurisdiction and across the country. No two cases are exactly identical. Each sentence must be imposed after considering: the specific facts and circumstances of the case; --- the nature of the offence; the circumstances of the offender including consideration of any relevant record; --- the offender's post-offence conduct; --- the age of the victim; --- the position of the victim vis-à-vis the offender concerning any abuse of trust or abuse of a position of authority; --- the frequency with which the offence occurs in the jurisdiction, if deemed pertinent; and numerous other factors concerning the offence, the offender and the victim including various aggravating or mitigating circumstances. [13] As well, similar sentences should be imposed upon similar offenders for similar offences committed in similar circumstances. [14] One of the difficulties in sentencing someone for an offence such as sexual touching or sexual interference is that there is such a broad range of activity that falls within the boundaries of those offences. That is the situation that led the Supreme Court of Canada to speak of sentencing ranges or guidelines to assist courts in being consistent when imposing sentences. I have had the benefit of reviewing the materials filed by the Crown reflecting the range of sentences imposed specifically in this jurisdiction, and in several other jurisdictions across the country. What is clear from a review of those precedents is that the range of sentences imposed in PEI for a number of serious sexual offences is out of step with sentences imposed in other provinces. Of course, there can be variations in sentences imposed depending upon the region. Those variations usually relate to the prevalence or unusual number of offences of a particular type occurring within a particular community. The Criminal Code is a national statute which is to apply with equal force across this country. While there will always be variations in seemingly similar cases because of the specific facts and circumstances of each case, significant discrepancies in the range of sentences imposed in this jurisdiction as compared with other Canadian jurisdictions should not, on a general basis, be countenanced. [15] While sentences recently imposed by this court had been within the

6 Page: 6 "established range", it appears to me that the established range of sentences imposed on PEI for crimes such as those for which the accused has been convicted is too low. Once a range has developed, it becomes a self-perpetuating instrument. Each court will be presented with various precedents all falling within the developed range. If, as I find in this case, the overall range is too low, then I believe it is necessary to acknowledge that, reconsider and adjust the range of appropriate sentences, and express the reasons for doing so. Of course it remains open for the Court of Appeal, upon request, to consider the appropriateness of any sentence imposed, and to provide guidance to the Supreme Court. [16] In R. v. J-GM, an unreported decision of the Prince Edward Island Supreme Court issued on June 7, 2010, the accused was convicted of two counts of sexual interference committed upon six year old twin girls who were neighbours and the daughters of close friends of the accused. His behavior included putting his hands inside his victim's pants and underwear and touching her vagina. He received six months in jail on the charge involving three incidents with one girl and an additional four months in jail on the charge involving two incidents with the second girl. It is significant that there was no penetration of any kind in that case. [17] In another recent PEI case, R. v. CJL, unreported, February 3rd, 2010, the accused was found guilty in the Supreme Court of sexual interference and invitation to sexual touching committed on his intellectually challenged 14-year-old nephew on one occasion. The act consisted of mutual masturbation and mutual fellatio. The accused received a sentence of nine months in jail plus two years probation. In the PEI Provincial Court, R. v. HJK, unreported, June 24, 2009, the accused pleaded guilty to touching his five year old granddaughter's vagina under her clothing while she sat on his knee as he was babysitting her. The accused admitted to only one incident and had no prior record. He received a sentence of 90 days in jail plus 3 years probation. [18] In another PEI Provincial Court case, R. v. DTL, unreported, March 4, 2009 the accused pleaded guilty to sexually touching his girlfriends younger sisters (aged 13 and 16) while they were asleep. He had no previous record. He received a sentence of five months with respect to the several occasions involving the younger girl and one additional month with respect to the single offence against the older girl. Defence counsel referred to R. v. DFS, an unreported case from PEI Provincial Court on August 9, The accused pleaded guilty at the last minute to fondling the victim's penis and to partially inserting his penis in the victim's anus. The accused was sentenced to 12 months in prison +3 years probation. [19] In another unreported Provincial Court case, R. v. JB, dated June 3, 2004, the

7 Page: 7 accused was convicted of repeatedly fondling three of his nephews. He received a global sentence of 12 months. [20] Defence also referred to the case of R. v. RWC, an unreported decision of Justice Webber of the Supreme Court given on March 22, The accused was convicted of two offences contrary to section 271 of the Criminal Code. On one occasion he made the victim take his penis into her mouth and attempted to insert his fingers in her vagina. On the second occasion he put Vaseline around the victim's rectum area and attempted unsuccessfully to insert his penis. He received a sentence of 18 months in jail and three years probation. [21] Notwithstanding the Supreme Court of Canada's declaration in McDonnell, it appears courts in Alberta in particular continued to use the designation "major sexual assault" in connection with certain sexual offences. In R. v. Innerebner, 2010 ABQB 188, D.C. Read. J went through an extensive review of several cases from the Supreme Court of Canada and various courts in Alberta and elsewhere since the McDonnell decision. The conclusion reached is that implicit in having a starting point for sentencing on certain offences is that those offences fit into the "category" to which the starting point applies. Read J concluded at paragraphs 73 and 74: 73 However, notwithstanding these cases, the vast majority of Alberta cases, continue to use the starting point approach and apply the 'major sexual assault' category and its concomitant 3 and 4 year starting points. 74 I have concluded that despite the misgivings expressed in R. v. Kain and R. v. White and the implicit condonation of a different approach in R. v. Desjardins, the principle in Alberta remains, as has been repeatedly stated by the Court of Appeal and applied by sentencing judges across Alberta, that the starting point for a major sexual assault of a child by a person in a position of trust is 4 years. [22] After considering the various cases from Alberta together with the cases from the Supreme Court of Canada, in particular R. v. McDonnell, supra, and R. v. Stone, [1999] S.C.J. No. 27, I decline, at this time, to declare or adopt any categorization of offences such as has been done with "major sexual assaults" in Alberta. In my view, to do so constitutes an unnecessary extra step. If the offending behavior is serious and warrants a significant sentence it should be relatively easy to review the relevant precedents and arrive at that conclusion without adding an additional label to the type of offence committed. I'm dealing with one conviction for sexual interference. [23] While R. v. Stone clearly allows categorization, I believe that if that process is to be used it would be for a subsequent case to be related to this one or others and for it to develop from there.

8 Page: 8 [24] However, I do endorse the "starting point" approach to sentencing and will be sentencing on that basis today. [25] The Ontario Superior Court of Justice has imposed a similar range of sentences. In R. v. W.W.C. [2009] O.J. No. 4705, Feurst J. said: 28 The Ontario Court of Appeal has repeatedly emphasized that family members who perpetrate intrusive acts of sexual abuse against children to whom they stand in a position of trust should receive penitentiary terms beyond the minimum. In R. v. B. (J.) (1990), 36 O.A.C. 307 the Court identified a range of sentence of three to five years in jail where a person who stands in loco parentis to a child sexually abuses the child by acts that include sexual intercourse. In R. v. F.(L.), [1999] O.J. No (C.A.), a sentence of four years imprisonment was upheld for an offender convicted at trial of sexually assaulting a young teenaged girl who regarded him as her step-father. There were repeated acts over the course of about six months, beginning with patting of the buttocks, then kissing and attempts to fondle the complainant's breasts and ultimately one act of sexual intercourse followed by a second unsuccessful attempt. The offender had no prior criminal record. In R. v. G.(G.A.), [2006] O.J. No. 67 (C.A.), the Court upheld a sentence of four and a half years in jail where the offender was convicted after trial of sexual offences against his son, which progressed from fondling to mutual masturbation and fellatio. In R. v. B.(C.) (2008), 237 O.A.C. 387 (C.A.), a sentence of three years in jail was upheld in a case where the offender repeatedly sexually assaulted his niece, who lived in the same condominium unit as he. The conduct involved repeated touching of the complainant's breasts and digital penetration. (Emphasis added). [26] Another recent case from the Ontario Superior Court of Justice, R. v. B.C. [2010] O.J. No. 478, is quite similar to the case before this court. The accused was convicted of repeatedly touching his daughter with his fingers for a sexual purpose and touching her with his penis for a sexual purpose. His daughter was between the ages of eight and 12 years old when the offences occurred. The offender was a first-time offender. The court considered the aggravating factors which included the age and vulnerability of the victim, the accused's position of trust, the nature of the offences including the fact that he had partially penetrated her vagina with his penis, and the emotional harm caused to the victim. As well it considered the mitigating factors which were that it was a first offence, he had the support of certain family members, and he held part-time employment. The accused was sentenced to imprisonment for two years and six months. Unlike the case before the court today, while the victim in that case was young, she did not suffer from any intellectual deficit. [27] A similar case in Newfoundland attracted a sentence of imprisonment of two years less a day followed by three years of probation. The accused was 40 years of

9 Page: 9 age and was the common law spouse of the mother of the victim. He was convicted of sexual exploitation of his 14-year-old developmentally delayed daughter. (R. v. S.L.C., 2009 NLTD 66). [28] In the Nova Scotia case of R. v. E.M.W., 2009 NSPC 65, a father was found guilty of sexually assaulting his 9 to 11 year old daughter by putting his fingers in her vagina as she lay with him in bed. Unlike with the accused before the court today, there was no touching or exposure of the penis and there was no penetration of the penis. The accused was sentenced to a term of federal imprisonment for two years. The accused has been convicted of having, for a sexual purpose, touched a person under the age of 14 years, contrary to s.151 of the Criminal Code of Canada. As an indication of the seriousness with which this offence is treated, it carries a potential sentence of 10 years imprisonment and, unlike even a charge of sexual assault, it carries a minimum sentence which is 45 days. I acknowledge that at the time this offence was committed there was no minimum sentence applicable to this charge. [29] There is no greater trust in any relationship than that between parent and child. Children are vulnerable and innocent. They need protection from the evils that exist in the world. A parent loves and nurtures a child and provides that protection. Society reserves its strongest sense of revulsion for those who cross the legal and moral boundary into treating children as objects for sexual gratification. That can be said with greater force when the offender is the child's parent, and with even greater force when the child victim is developmentally delayed or has an intellectual deficit. Section 718 and subsequent sections of the Criminal Code set out the objectives and principles of sentencing. While those objectives include assisting in the rehabilitation of offenders and promoting a sense of responsibility in offenders, those factors and others like it are secondary when we consider the offence before the court today. Section provides: When the court imposes a sentence for an offence that involved the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [30] Any sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender (s ). [31] Section directs that the sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. The court should consider, in particular, evidence that the offender, in committing the offence, abused a person under the age of 18 years or abused a position of trust or authority in relation to the victim. In this case the accused did both.

10 Page: 10 [32] I consider as well the emotional impact this has had on the victim. At trial she expressed that she has had nightmares about these events for approximately 15 years since they happened, and she has tried unsuccessfully to put the events out of her head. The victim was also required to relive the experience while giving her testimony at trial. Although the accused has not expressed remorse for his actions, I do not consider that to be an aggravating factor. [33] It has to be considered as well that we are not dealing with one extremely unfortunate isolated incident in which the accused made a grave error in judgment. As Ferguson J. said in R. v. Sippley, 2009 NBQB 182, "once the behaviour began to repeat itself a reasonable inference can be drawn that the accused must have reflected upon his morally blameworthy conduct and made a conscious decision that he would continue to commit the offence." [34] As I mentioned earlier, offences of sexual interference cover a broad range of activity. Offences can range from one incident of inappropriate touching over the victims clothing through touching different areas of the body both over and under clothing through digital penetration up to and including touching and/or penetration with one's penis. Many other similar forms of behaviour might also constitute sexual interference. The accused in this case not only fondled the victim's vagina under her clothing, but he also at least partially inserted his penis into her vagina. If a conditional sentence is available for this offence, which is not a certainty, I do not consider such a sentence would be appropriate at any rate in this case. I have reviewed the Pre-sentence Report and listened to counsel with respect to mitigating factors. The offender was described as polite, friendly, likable, easy to work with, etc. He has the support of certain family members. He has some ongoing health issues but appears to have risen above a prior problem with alcohol. He has no prior related record and I decline to consider any unrelated record in sentencing on this matter. I note the accused has been back on the Prince Edward Island for the last 14 months to face these charges and await the outcome. I do not consider that the delay in time between the offence and sentencing has provided any benefit to the accused, and in fact there are some additional consequences now that were not in place when the offence was committed. [35] I have considered the sentencing principles and objectives and I have balanced the aggravating and mitigating factors. The accused has committed a serious sexual offence against a child with respect to whom he stood in loco parentis and in a position of trust. She had additional vulnerabilities which can only add to society's abhorrence of his conduct. [36] After reviewing precedents from across the country I am satisfied that a crime

11 Page: 11 such as this deserves a significant period of incarceration in order to denounce the offender's conduct and express society's revulsion, and to deter not just this offender but others from engaging in any such similar behaviour. In several provinces, the starting point for this offence is a sentence of four years imprisonment. However, I must also take into account the past precedents on Prince Edward Island in arriving at a fair sentence for this offender. [37] I acknowledge that the Crown has stayed the charge of sexual assault in accordance with the Kineapple principle, and I therefore consider the three incidents under one conviction contrary to s.151 of the Criminal Code, as set out in Count # 1. [38] Mr. W, please stand. [39] Having considered all of the circumstances, the principles and objectives of sentencing and in particular the need for denunciation and deterrence, and having considered the aggravating and mitigating factors set out above, especially that the accused was in a position of trust with respect to the victim, and, in order to impose a sentence similar to that imposed on similar offenders for similar offences committed in similar circumstances across this country, I find that for an offence of sexual interference that includes any degree of penetration, as a starting point, nothing less than a period of imprisonment for two years and 6 months would be sufficient or appropriate and I therefore sentence you to a period of two years and 6 months incarceration, to be served in a federal penitentiary. [40] In addition to your imprisonment, you are hereby ordered to be registered in the National Sex Offender Registry (SOIRA) for a period of 20 years following your imprisonment. Further there will be a DNA order and a weapons prohibition order for life after release from prison pursuant to s.109 of the Criminal Code as requested by the Crown. I am not satisfied there has been a sufficient basis shown for granting the requested order pursuant to s.161 of the Criminal Code. July 14, 2010 Campbell J.

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