



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the
Criminal Code
shall
    continue.  These sections of
the Criminal Code
provide:

486.4(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    that could identify the complainant or a witness shall not be published in any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)     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.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b).

486.6(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.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. H.S., 2014 ONCA 323

DATE: 20140425

DOCKET: C56945

Cronk, Epstein and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

H.S.

Respondent

Michelle Campbell, for the appellant

John Collins, for the respondent

Heard: March 7, 2014

On appeal from the sentence imposed on March 28, 2013 by
    Justice Jane E. Kelly of the Superior Court of Justice, sitting without a jury.

Epstein J.A.:

OVERVIEW

[1]

B.H., the victim in this sexual
    assault case, spent most of her childhood in the care of the Catholic Childrens
    Aid Society. During the period from 1976 to 1978, B.H. had been in 22 foster
    homes.  In early 1978, when B.H. was placed in the care of the respondent and
    his wife, as foster parents, she was in a desperately fragile state.

[2]

Starting in the late spring of 1978
    and into mid-July of that year, when B.H. was barely 15 and the respondent was
    24, the respondent engaged in unprotected vaginal intercourse with B.H. on a
    number of occasions. B.H. became pregnant. The Catholic Childrens Aid Society
    (CCAS) was advised and removed B.H. from the respondents home.  The CCAS
    placed B.H. in what was then known as a home for unwed mothers where she gave
    birth to a baby girl. B.H. raised her daughter initially on her own and then
    with the assistance of a partner.

[3]

In April 2010, B.H. reported the
    matter to the police who, in turn, contacted the respondent.  DNA testing
    proved that the respondent was the father of B.H.s daughter.

[4]

The respondent was charged with: (1)
    rape, contrary to s. 144 of the 1978
Criminal Code of Canada
(1978
    Code); (2) having sexual intercourse with a previously chaste female person who
    was not his wife over 14 and under 16 years of age, contrary to s. 146(2) of
    the 1978 Code; and (3) having illicit sexual intercourse with his foster
    daughter, contrary to s. 153(1)(a) of the 1978 Code.  After the preliminary inquiry
    the Crown withdrew the rape charge.  The respondent pleaded guilty to, and was
    convicted of, having sexual intercourse with a female person between 14 and 16
    years of age and illicit sexual intercourse with his foster daughter.

[5]

At the sentencing hearing, the Crown
    sought a custodial sentence of two to two and one-half years. The defence
    sought a conditional sentence of two years less a day. The sentencing judge
    accepted the defence position and imposed a conditional sentence of two years
    less one day to be served in the community with terms that amounted to a strict
    house arrest. The sentencing judge also imposed a three-year period of
    probation during which the respondent was required to perform 360 hours of
    community service.  Accompanying SOIRA and DNA orders were made.

[6]

The appellant seeks leave to appeal
    sentence and, if leave is granted, appeals against the respondents sentence.

[7]

The appellant submits that the
    sentencing judge made errors in principle in her sentencing decision and that
    the sentence is significantly below the range of sentences that other courts,
    including this court, have imposed on similar offenders who have committed
    similar offences.

[8]

For the reasons that follow, I am of
    the view that the sentencing decision is encumbered by error and the sentence
    imposed is manifestly unfit.  I would grant leave to appeal, allow the appeal,
    set aside the sentence imposed and substitute in its stead, a sentence of three
    years less credit of one year for the time the respondent has served under his
    conditional sentence.

THE FACTS

[9]

The following agreed statement of
    facts was read into the record and formed the basis for the convictions.

Background Information

1.  [B.H.] was in and out of the care
    of the [CCAS] beginning from the age of 6 years old. From approximately the
    beginning of 1976 until the spring of 1978, she resided in 22 different foster
    homes.

2. As a result of [B.H.] being repeatedly moved between foster
    homes, and the nature of the care in some of those foster homes, [B.H.] was in
    an emotionally fragile state.

3. [The respondent] and his wife were approved foster parents
    with the CCAS and in the early spring of 1978 they agreed to take in [B.H.],
    who at the time was 14 years old.

4. [The respondent and his wife] owned a four bedroom home in
    Scarborough. Residing in the home were [the respondent and his wife] and their
    two children. Each of the children had their own room and [B.H.] was given her
    own room as well.

5. Early on, after [B.H.] moved into the home, there was
    nothing untoward about the relationship between [B.H.] and any member of the
    [respondents] family. In fact, for the first time in CCAS care, [B.H.] finally
    felt that she was in a stable environment where she was treated on equal
    footing with the [respondent and his wifes] biological children.

6. The [respondent] was in a position of trust and authority
    over [B.H.] throughout her time in the home.

The Offences

7. Approximately 1-2 months after [B.H.] moved into the
    residence, [the respondent] was involved in a serious motor vehicle accident.
    As a result, he was housebound and both he and [B.H.] were in the home at the
    same time a lot. It was after this accident that the nature of the relationship
    between [B.H.] and [the respondent] changed.

8. [The respondent] began making sexual advances towards [B.H.],
    and over a relatively short period of time, between the late spring of 1978 and
    mid-July 1978, there was vaginal intercourse on 3-4 separate occasions, all in
    the home. There was no other form of sexual touching before or after these
    incidents.

9. At no time did [the respondent] use a condom. And, on each
    occasion he ejaculated inside [B.H.].

10. As a result, [B.H.] became pregnant. The CCAS became aware
    that she was pregnant and removed [B.H.] from the [respondents] residence,
    placing her in a home for unwed mothers. The CCAS never reported these incidents
    to any police service.

11. [B.H.] maintained custody of the baby and raised her,
    initially on her own, and subsequently with a partner. [B.H.s] daughter
    believed that her biological father was [B.H.s] partner, until [B.H.] told her
    the truth when she was a teenager.

12. In April 2010, [B.H.] decided to contact the London,
    Ontario Police Department and reported the allegations. London Police provided
    this information to the Toronto Police Service who, in turn, conducted a
    further investigation. As part of that investigation, the TPS spoke with [the
    respondent], advised him of the allegations, and asked if he would consider
    providing a DNA sample.

13. A consent sample was provided to the TPS and testing
    confirmed that [the respondent] was the father of [B.H.s] daughter.

14. [The respondent] was arrested and charged with the offences
    before the court and was released on an undertaking to the officer-in-charge.

THE SENTENCING REASONS

[10]

B.H. had attended
    court for the plea and for the sentencing hearing.  The sentencing judge began
    her analysis by describing her observations of B.H. as follows:  To describe
    her appearance as that of a broken woman would be an understatement.

[11]

The sentencing
    judge then made observations about the respondent.  She commented on the
    extensive support provided by his friends and family and noted the difficulty
    they had reconciling the respondents positive personality traits with the
    monstrous error in judgment he had made in committing the offences.  The
    sentencing judge observed that the respondent had taken the witness stand and apologized
    to B.H.  She concluded that the respondent, through his guilty plea, had taken responsibility
    for his actions.

[12]

The sentencing
    judge identified denunciation and general deterrence as the primary sentencing
    principles.

[13]

The sentencing
    judge then considered whether the circumstances called for a sentence to be
    served in the penitentiary, as argued by the Crown, or whether, as submitted by
    the defence, this was one of those rare cases in which a conditional sentence
    would satisfy the sentencing principles she had identified.  After reviewing
    the authorities upon which each side relied, the sentencing judge concluded, at
    para. 28, that this was a rare case and that the conditional sentence
    imposed will address both the punitive and rehabilitative aspects of
    sentencing.

[14]

In paras. 35 and
    36, the sentencing judge identified a lengthy list of aggravating factors, as
    follows:

[35] [BHs] victim impact statement was heart wrenching. The
    impact of these offences on her were described as follows and are obviously
    aggravating:

a. Her life forever changed with the pregnancy.

b. She was put into a home for unwed mothers and told to give
    up her child.

c. She was taken from being a kid with a life ahead of [her]
    to a kid raising a kid and living a life of fear.

d. Parenting was a struggle.

e. She used to wash herself with bleach in an attempt to
    cleanse herself.

f. She felt that depression and fear became a way of life.

g. That although she married it did not last. She felt that
    during her marriage, her past was used against her to attack her in her
    marriage.

h. That her life has been adversely impacted by what happened
    35 years ago.

i. She suffers from chronic sleep problems, eating disorders
    and nightmares.

j. She believes that the actions of [the respondent] have
    affected her entire life, including her marriage and consequently the lives of
    her children and grandchildren. She says: Every relationship I have ever had
    in my lifetime has been adversely impacted by what happened to me some 35 years
    ago.

k. She describes herself as numb, especially when it comes to
    herself. She does not have a life and she cannot hold down a job. To quote [B.H.]:
    I have not been the mother and grandmother I should have been because of the
    path of life which [the respondents] crimes have done. I am unable to trust
    few people in my life.  Trust is not a part of my world and never has been
    since I was violated by [the respondent] and then told I was a liar by the CAS
    workers when I went to them for help.

l. That she is broken and her life is a
    living nightmare.

[36] I also consider the following to be aggravating factors
    regarding [the respondents] involvement in the offences before the Court:

a. [B.H.] was under the age of 18 at the time of the offences.
    She was 15 and a virgin at the time she had sexual intercourse with [the
    respondent].

b. The acts of sexual intercourse occurred three to four times
    over a short period of time.

c. [B.H.] became pregnant because [the respondent] did not take
    any precautions to prevent such an occurrence.

d.  [B.H.] was an extremely vulnerable person having been in
    approximately 22 foster homes before being put into what she thought was a
    stable environment in the [respondents] home.

e. [The respondent] was in a position of trust and authority
    which he breached when he engaged in sexual intercourse with [B.H.].

f. Although [B.H.s] quality of life up until this point could
    not be described as ideal, it worsened with these crimes against her. She was
    removed from the home, entered parenthood at age 15 and remained in a situation
    that could be politely described as chronic stress.

g. Although the blame for [B.H.s] poor quality of life cannot
    be placed solely on [the respondent], his conduct was a significant
    contributing factor. As Crown Counsel submitted, it is impossible to quantify
    the damage inflicted on [B.H.] by [the respondents] conduct.

h. Dr. Larry Schmidt described that [B.H.] suffers from severe
    post-traumatic stress disorder as well as medical conditions causing chronic
    pain such as irritable bowel syndrome and fibromyalgia.

[15]

Before considering
    the mitigating factors, the sentencing judge turned to the dispute as to when
    [the respondent] knew of [B.H.s] pregnancy. The sentencing judge noted that
    in her victim impact statement, B.H. said that the CCAS had approached the
    respondent about her pregnancy in 1978 and that he had claimed he was not the
    father of her child.  The respondent, through his counsels submissions at the
    sentencing hearing, took the position that he did not learn about B.H.s
    pregnancy until 2010 when the police contacted him. As noted above, the agreed
    statement of facts merely indicates that the CCAS became aware that [B.H.] was
    pregnant and removed [B.H.] from the [respondents] residence, placing her in a
    home for unwed mothers.  The CCAS never reported these incidents to any police
    service.

[16]

Crown counsel indicated
    to the sentencing judge that he did not intend to rely on the respondents
    denial of responsibility for the pregnancy in 1978 as an aggravating factor for
    the purposes of sentencing as he did not want to force B.H. to have to testify
    again at a
Gardiner
hearing.  Although the timing of the respondents
    knowledge of the pregnancy was contested, defence counsel suggested that the
    respondent would have taken immediate responsibility for his actions had he
    known the child was his, and submitted that the sentencing judge could not
    come to any other conclusion, saying:

My friend knows that my client takes the position that he was
    not aware of the consequences.  I know that this is one of the other situations
    where it may be controversial as to the fact that he was aware that he had a
    child out there, but he takes the position and in fact that was one of the
    reasons he consented to the DNA.  But that is not going to make a difference, I
    am sure, to Your Honour in terms of the ultimate sentencing, but you might
    given the information that you have here about the progression that this man
    has made, you might believe, as he would want you to believe, that if he had
    been able to do anything to help the daughter that he participated in bringing
    into this world he would have done it, and I dont think you can come to any
    other conclusion when you see the evidence thats before you, and I am sure
    that he, if given the opportunity, would even do that today.

[17]

In the light of
    the Crowns position, the sentencing judge held that she would not consider the
    respondents potential knowledge that he had fathered a child with B.H. as an
    aggravating factor on sentencing. She then found as a fact that [the
    respondent] became aware of the birth of his child with [B.H.] in 2010.

[18]

From that finding,
    the sentencing judge identified the mitigating factors she considered relevant
    as follows:

[43] [The respondents] factual background demonstrates that he
    is a person of good character:

a. [The respondent] is 61 years of age. He has led a productive
    life since these offences. He worked for the TTC commencing in 1972 and ending
    in 2008. During these 36 years, he was promoted 17 times. At the time of his
    departure, he was supervising over 5,000 people in his capacity as the General
    Superintendent of Surface Transportation for Toronto.

b. He suffers from diabetes. A growth on his pituitary gland
    was removed surgically in 2011. Some pituitary tumor remains and as such, he
    will require lifelong monitoring. If the tumor grows, [the respondent] will
    require repeat surgery, possibly radiation and possibly hormone replacement.

c. He suffers from Sleep Apnea Syndrome. Medical doctors are
    carefully and closely monitoring [the respondent]. He takes numerous
    medications.

d. At the time of the offences, he was 24 years of age. He has
    no criminal record. Approximately 35 years have passed since the offences
    occurred and there is no evidence of any other criminal activity.

e. [The respondent] appears to be proficient in construction.
    For years, [the respondent] has devoted his time and his handyman skills to
    family and community members in need.

f. Upon his arrest, and 33 years after the offences, [the
    respondent] provided his DNA sample on consent so that he could help determine
    whether he was the father of [B.H.s] child. This was the first time he had
    been asked to take responsibility for his most irresponsible conduct.

g. [The respondent] is extremely remorseful. He asked to take
    the witness stand during the sentencing hearing so that he could face [B.H.] and
    apologize to her personally. As I have stated above, the apology appeared to be
    sincere and moving.

h. Those who have shown support for [the respondent] through
    these difficult circumstances have also shown empathy for [B.H.].

i. There is nothing to suggest that [the respondent] has been
    anything but a contributing member of our society. As Crown Counsel submitted,
    such letters from family, friends and colleagues that speak glowingly of [the
    respondent] are to be expected. I agree. However, what one normally does not
    see is the compassion shown for the victim of the crime such as that shown for [B.H.].

[19]

The sentencing
    judge then reproduced a letter the respondents current wife had written about
    the respondent.   The sentencing judge described the letter, at para. 44, as a
    compassionate description that gives some insight into the type of person [the
    respondent] has proven to be.  The sentencing judge also repeated and
    reinforced her earlier reference to the support the respondent had from friends
    and family.

[20]

The sentencing
    judge returned to the significance of the respondents remorse and of his
    genuine apology that evidenced his having taken full responsibility for his
    grave error in judgment. The sentencing judge concluded her consideration of
    the mitigating circumstances by adding that the stigma of these proceedings
    and convictions cannot be minimized and then reproducing a portion of
    submissions made by the respondents counsel about the extent to which the respondent
    had suffered from his fall from grace.

[21]

The sentencing
    judge started her analysis of a fit sentence with the observation, at para. 50,
    that sending [the respondent] to jail is not going to cure [B.H. of] her state
    of being.

[22]

The sentencing judge
    held that a conditional sentence was appropriate because the respondent would
    not be a danger to the community and because such a sentence would adequately
    denounce the respondents conduct and deter other persons from committing this
    type of offence.  She therefore sentenced the respondent to two years less one
    day to be served in the community.

ANALYSIS

[23]

The disposition
    of a sentencing judge attracts a high degree of deference from a reviewing
    court:
R. v. Shropshire
, [1995] 4 S.C.R. 227, at paras. 46-49. Unless
    the sentencing judge made an error in principle, failed to consider relevant
    evidence, misapprehended a material fact, or imposed a sentence that is
    demonstrably unfit, appellate interference with the sentence imposed is
    precluded:
R. v. M
.
(C.A.),
[1996] 1 S.C.R. 500, at para. 90;
R. v. T.(K.)
(2008), 2008 ONCA 91, 89
    O.R. (3d) 99 (C.A.), at paras. 30-31.

[24]

A number of
    factors satisfy me that this is not a case in which deference should be
    accorded to the sentencing judges decision.

1.

The sentencing
    judge erred by relying on her finding of fact that the respondent was unaware,
    until 2010, that he had fathered a child with [B.H.]

[25]

Counsel for the
    respondent concedes that the sentencing judge erred in finding that the
    respondent only became aware that he had fathered a child with B.H. in 2010. In
    my view, the sentencing judges use of that finding significantly interfered
    with her appreciation of the respondents moral culpability and constituted an
    error in principle.

[26]

It was not
    established one way or the other whether the respondent was aware, in 1978, that
    B.H. had given birth to his child. Thus, the sentencing judges finding that
    the respondent only became aware of B.H.s pregnancy and the birth of his child
    in 2010 constitutes an error in principle.  As Weatherston J.A. noted in
R.
    v. Holt
(1983)
,
4 C.C.C.
    (3d) 32 (Ont. C.A.), at p. 52, the Crowns failure to  or as in this case,
    decision not to  prove an aggravating factor on sentencing does not mean that
    in the absence of such proof all possible mitigating facts must be assumed in
    favour of the accused.

[27]

In my view,
    this finding implicitly formed the foundation for the sentencing judges
    conclusion that this was one of those rare cases in which a conditional
    sentence was appropriate.

[28]

As previously
    noted, the sentencing judge listed the respondents consent to provide a DNA
    sample to determine whether he was the father of B.H.s child as a mitigating
    factor because, in her view, it demonstrated that, early on, the respondent was
    prepared to accept responsibility for his actions.  However, the respondents
    cooperation with the police only indicates an intention to take responsibility
    if the respondent was, prior to that point in time, unaware that he was the
    father of B.H.s child.

[29]

Furthermore, the
    letter from the respondents wife upon which the sentencing judge relied for
    insight into the respondents otherwise good character includes the following comments:

Although he had no idea the child was his at the time, now
    knowing he has a daughter who has grown up and become a woman and mother
    herself thinking that her biological father abandoned her is almost more than
    he can bear.

.

He worried about the last 35 years of their lives, if he had
    known, what he could have done to help them.

[30]

The insights
    these comments purport to provide are based on the assumption that the
    respondent was unaware he had fathered a child with B.H. in 1978.  Given that the
    timing of the respondents awareness was not established, these comments in the
    letter were at best irrelevant.  At worst, they were misleading.

[31]

The sentencing judge,
    at para. 47, found as a mitigating factor that the respondent had taken full
    responsibility for his actions.  Again, this conclusion necessarily assumes
    that the respondent did not know, prior to the DNA results, that his foster
    daughter  with whom he had unprotected intercourse  had given birth to his
    child.   If he were aware, the inescapable conclusion would be that the
    respondent had failed to own up to his conduct  that he, in fact, had failed
    to take responsibility for not only his criminal acts but also his parental
    responsibility.

2.

The
    sentencing judge erred in her approach to determining a fit sentence

[32]

The sentencing
    judge started her analysis by concluding that the respondent should not be
    incarcerated. Having determined that critical matter, the sentencing judge then
    proceeded to explain how a conditional sentence would give effect to the sentencing
    principles relevant to this offence and offender. This approach runs contrary
    to the direction provided in
R. v. Proulx
, [2000] 1 S.C.R. 61, at paras.
    58-60, in which Lamer C.J. sets out the approach for determining the
    availability of a conditional sentence:

[58]
In my view, the requirement that the court must impose
    a sentence of imprisonment of less than two years can be fulfilled by a
    preliminary determination of the appropriate range of available sentences.
Thus, the approach I suggest still requires the judge to proceed in two stages.
    However, the judge need not impose a term of imprisonment of a fixed duration
    at the first stage of the analysis. Rather, at this stage, the judge simply has
    to exclude two possibilities: (a) probationary measures; and (b) a penitentiary
    term. If either of these sentences is appropriate, then a conditional sentence
    should not be imposed.

[59] In making this preliminary determination, the judge need
    only consider the fundamental purpose and principles of sentencing set out in
    ss. 718 to 718.2 to the extent necessary to narrow the range of sentence for
    the offender. The submissions of the parties, although not binding, may prove
    helpful in this regard. For example, both parties may agree that the
    appropriate range of sentence is a term of imprisonment of less than two years.

[60] Once that preliminary determination is made, and assuming
    the other statutory prerequisites are met, the judge should then proceed to the
    second stage of the analysis: determining whether a conditional sentence would
    be consistent with the fundamental purpose and principles of sentencing set out
    in ss. 718 to 718.2. Unlike the first stage, the principles of sentencing are
    now considered comprehensively. Further, it is at the second stage that the
    duration and venue of the sentence should be determined, and, if a conditional
    sentence, the conditions to be imposed. [Emphasis added.]

[33]

By failing to
    initiate her analysis of a fit sentence with a determination of the appropriate
    range of available sentences, the sentencing judge erred.

3.

The
    sentencing judge erred in her consideration of other mitigating circumstances

[34]

Crown counsel submits
    that the sentencing judge erred by: (1) listing the respondents health
    problems at the time of sentencing as a mitigating factor; (2) treating the
    stigma in the community arising from the criminal charges against the
    respondent and his convictions as having the same denunciatory effect as jail;
    and (3) minimizing the respondents culpability by adopting the defence
    suggestion that the respondents crimes reflected merely a horrendous error in
    judgment.

[35]

I make three
    observations.

[36]

First, I would reject the Crowns contention that the sentencing
    judge minimized the respondents culpability by characterizing his criminal
    conduct as merely an error in judgment.  In my view, when the reasons are
    read as a whole, they indicate that the sentencing judge appreciated the
    seriousness of the crimes of which the respondent was convicted and their
    tragic  indeed, as she put it, their heart wrenching  impact on the
    complainant.

[37]

However, I agree that
    the sentencing judge erred by treating various of the respondents health
    problems (diabetes, pituitary gland issues and sleep apnea) as a mitigating
    factor on sentencing.

[38]

The status of the
    offenders health may be a relevant consideration on sentencing, but in this
    case there was no evidence at the sentencing hearing that the respondents
    medical conditions could not be properly treated while he was incarcerated. In
    these circumstances, no reduction in an otherwise fit sentence was warranted
    due to the respondents health problems:
R. v. Aquino
(2002), 55
    W.C.B. (2d) 314 (Ont. C.A.);
R. v. Malicia
, [2004] O.J. No. 2554
    (C.A.);
R. v. R.L.
, 2013 ONCA 504.

[39]

I also agree with
    the Crown that the sentencing judge erred by finding the stigma of the criminal
    proceedings and the respondents convictions to be a mitigating circumstance.  Absent
    evidence that the prosecution affected the respondent in a manner beyond what
    one would expect for any person facing criminal proceedings of this serious
    nature, this consideration was irrelevant:
R. v. R.W.D.
(2005), 198
    C.C.C. (3d) 541, 199 O.A.C. 254 (Ont. C.A.), at para. 12.  There was no such
    evidence in this case.

[40]

These two errors adversely
    affected the sentencing judges ability to properly assess the respondents
    moral culpability.

4.

The
    sentence is manifestly unfit

[41]

It is of
    paramount importance that children be protected from seducers and predators
    through sentences that emphasize the principles of denunciation and deterrence:
R. v. D.D.
(2002), 58 O.R. (3d) 788 (C.A.), at para. 34.

[42]

Mid-to-upper
    single digit penitentiary sentences are appropriate where an adult in a
    position of trust sexually abuses a young child on a regular basis over a
    substantial period of time: See
D.D.
, at para. 44.

[43]

In
R. v.
    S.M.H,
2011 ONCA 215, this court upheld a sentence of four years and
    three months on conviction for several historical sexual and domestic offences.
    When he was sentenced, the offender was 55 and had a serious medical condition.
    The court noted the offenders age and serious medical condition; that the
    offences had occurred years earlier; and that the offender had no criminal
    record. However, the court reinforced that absent exceptional circumstances,
    adult offenders in a position of trust who sexually abuse children over a
    substantial period of time can expect to receive mid to upper single digit
    penitentiary terms.

[44]

In my view, the
    sentence imposed, in the light of the circumstances of these offences and this
    offender, is manifestly unfit and an unjustifiable departure from the range.

5.

What
    is a fit sentence in the circumstances of this case?

[45]

Given the errors
    the sentencing judge made in her approach to sentencing and having concluded
    that she imposed a manifestly inadequate sentence, it falls to this court to
    determine the appropriate sentence. In doing so, the court must apply the
    principles set out in Part XXIII of the
Criminal Code
and, in
    particular, s. 718:

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...

[46]

Section 718.1 of
    the
Code
provides that: [a] sentence must be proportionate to the
    gravity of the offence and the degree of responsibility of the offender. This
    direction requires that, in fashioning an appropriate sentence, a sentencing
    judge have regard to both the seriousness of the offence and the offenders
    degree of responsibility. Section 718.2(a)(iii) of the
Code
provides
    that the abuse of a position of trust in the commission of an offence is an
    aggravating circumstance on sentencing.

[47]

The respondent
    committed serious crimes with serious consequences.  The aggravating factors
    are significant.  The respondent occupied a unique position of trust in relation
    to B.H.  As previously noted, B.H. was particularly vulnerable.  In fact, she
    had been judicially declared to be a child in need of protection under the
    child welfare legislation in place at the time.  After a period of unimaginable
    instability in her young life, B.H. found herself in the respondents home. According
    to the agreed statement of facts, it was there that B.H. felt safe for the
    first time in her life, until the respondent violated her trust by subjecting
    her to repeated unprotected vaginal intercourse.

[48]

The negative
    effect of crime on its victims is always an important consideration on
    sentencing.  See
R. v. Drabinsky
, 2011 ONCA 582, 274 C.C.C. (3d) 289, at
    para. 179 (Ont. C.A.).  B.H.s account of how the sexual abuse impacted her
    life is tragic.

[49]

The guilty plea
    and the respondents lack of a prior criminal record, work history and
    otherwise good standing in the community are valid mitigating circumstances to
    take into account.  However, their weight must be considered in the light of
    the fact that it is not unusual for individuals who commit this kind of offence
    to have jobs or to otherwise be individuals of apparent good character: See
R.
    v. M.(G.)
(1992), 11 O.R. (3d) 225 (C.A.), at p. 232.

[50]

Here, as in all
    cases, the dominant sentencing principle is that the sentence must be
    commensurate with the gravity of the criminal conduct.  As the sentencing judge
    correctly identified, the subordinate sentencing principles are general
    deterrence and denunciation. The application of these principles and the
    relevant jurisprudence supports the imposition of a lengthy custodial sentence.

[51]

However, there
    are additional factors relevant to this courts determination of a fit sentence
    in the unique circumstances of the respondent before this court at this time.

[52]

One such factor
    is the time lapse. The offences took place over 35 years ago.  There is no
    evidence that the respondent has lead anything but an exemplary life since 1978.
    The man before the court today is not the same as the man who committed the
    crimes. The question is how much, if any, weight ought to be given to the lapse
    of time in crafting a fit sentence for the respondent.

[53]

The leading case
    on the treatment of time lapse in sentencing is
R. v. Spence
(1992)
,
78 C.C.C. (3d) 451 (Alta. C.A.), adopted
    by Juriansz J.A. for this court in
R. v. W.W.M
(2006)
, 205 C.C.C. (3d) 410 (Ont. C.A).  In
Spence
, at pp. 454-456, the court held that:

When a period of many years has elapsed between the commission
    of an offence of sexual assault and its discovery by the authorities, that
    circumstance dictates review of the degree to which the usual principles of
    sentencing are applicable in such circumstances.



The lapse of time does not in any way render inapplicable the
    principles of general deterrence and denunciation. The first of these requires
    a sentence which will intimidate those other than the offender who might be
    tempted to follow his example. The second requires a sentence by the imposition
    of which the court will reflect society's view of the wrongness of the conduct,
    and persuade those who might be confused about what is right and wrong. These
    two principles may overlap in their effect on the choice of sentence.

The need for the sentence to reflect the community's desire to
    denounce offences of the kind with which we are concerned is not diminished by
    the passage of time. Conversely, if the court were to impose a lenient sentence
    because of the passage of time, some members of the community might regard the
    sentence as judicial condonation of the conduct in question. That would tend to
    lessen respect for the administration of justice. In the circumstances we are
    considering in these appeals, the lapse of considerable time, and (we assume,
    for the purpose of discussion) the intervening years of unblemished conduct, do
    not lessen the relevance of these two principles.

...

The only sentencing principles which may be affected by the
    lapse of time are those of individual deterrence and rehabilitation. By
    individual deterrence we mean that the sentence should deter the accused from
    committing a similar offence in the future. By rehabilitation we mean that the
    sentence imposed should reflect the hope that somehow, while serving his or her
    sentence, the accused will be rehabilitated and at its end will resume his or
    her place in society as a useful and law-abiding citizen. These two principles
    overlap. In the case of a sexual offence against a child, when on occasion the
    child does not report the offence to the police or any other authority until
    many years after the event, should the sentence be less than what it would have
    been if the prosecution had occurred not long after the commission of the
    offence? If the accused, during the intervening years, has led an exemplary
    life in all respects, including non-repetition of sexual offences, and upon the
    matter ultimately being reported to the authorities and during the resulting
    investigation and prosecution he is remorseful, then the principles of
    individual deterrence and rehabilitation may arguably, by themselves, not
    justify a stern sentence of the kind which would have been obligatory many
    years earlier. It will be noted, however, that if, despite having led an
    exemplary life, the offender lacks remorse, any potential discount must be less
    than it otherwise would have been. Indeed, in cases of this sort, of sexual
    abuse of children by parents, one might well ask whether one could ever have
    both remorse and lengthy suppression of the facts.

[54]

Given the
    respondents circumstances, the principles of specific deterrence and
    rehabilitation have no relevance. As previously noted, the relevant sentencing
    principles in this case are denunciation and general deterrence. A fit sentence
    must reflect the need to respond to these principles.   As made clear in the
    above passages from
Spence
, these particular sentencing principles are unaffected
    by the passage of time.  See also:
W.W.M.
at paras. 21-25 and
R. v.
    S.(R.),
1997 A.J. No. 1136, 209 A.R. 231 (Alta. C.A.).

[55]

I am therefore of
    the view that while a delay of over 35 years is a relevant consideration, its
    mitigating impact is reduced by its lack of relevance to the operative
    sentencing principles.

[56]

Applying the
    principles mandated in s. 718 of the
Code
that are germane to the circumstances of this particular offender and
    these particular offences, I conclude that the objectives of general deterrence
    and denunciation, and the importance of ensuring parity with other sentences in
    similar circumstances, support a sentence of five years.

[57]

However, there
    are other factors that must be taken into consideration in the unique
    circumstances of this case.

[58]

First, while I
    have concluded that the principles of general deterrence and denunciation
    cannot be adequately served without incarceration, the fact that the respondent
    has spent the last two years in legal limbo uncertain as to whether he would be
    incarcerated and, if so, for how long, is a relevant factor to take into
    account: See
R. v. Hamilton
(2003), 172 C.C.C. (3d) 114 (Ont. S.C.), at
    paras. 216-219.

[59]

Second, I am mindful
    of the fact that the Crown seeks a harsher sentence on appeal than that sought
    below. While there is no rule or principle that precludes the Crown from repudiating
    its position taken at trial, jurisprudence has established that it may only be
    done in exceptional circumstances - where it can be shown that the public
    interest in the orderly administration of justice is outweighed by the gravity
    of the crime and the gross insufficiency of the sentence: See
R. v. P.J.B.
(1999), 141 C.C.C. (3d) 290 (Nfld. C. A.);
R. v. Marks
(1994), 91 C.C.C.
    (3d) 421 (Nfld. C.A.);
Attorney General of Canada v. Roy
(1972), 18
    C.R.N.S. 89 (Que. Q.B.).

[60]

The publics
    interest in the orderly administration of justice requires a consideration of
    any potential unfairness to the offender resulting from the Crowns change of
    position as to sentence on appeal.

[61]

Appellate courts
    have refused to intervene in a sentence where the record demonstrated that the
    offender acted in reliance upon the Crowns position below. Courts have been
    particularly reticent to give effect to increased Crown submissions on appeal where
    offenders have pleaded guilty after receiving sentencing assurances from the
    Crown, or where the parties have made a joint submission on sentence: See
R.
    v. Agozzino
(1969) 6 C.R.N.S. 147 (Ont. C.A.);
R. v. Wood

(1988), 43
    C.C.C. (3d) 570
,
29 O.A.C.
    99
(Ont. C.A.);
R. v. Simoneau

(1978), 40
    C.C.C. (2d) 307
(Man. C.A);
R. v. Dubien

(1982), 67
    C.C.C. (2d) 341
(Ont. C.A.);
Attorney General of Canada v. Roy
(1972)
    18 C.R.N.S. 89 (Que. Q.B.);
R. v. Edwards
(2001), 54 O.R. (3d) 737. In
    such cases, appellate courts have found that it would prejudice the offender to
    allow the Crown to repudiate its position on appeal. See also:
R. v. Fleury
(1971), 23 C.R.N.S. 164 (Que. C.A.);
R. v. Wood

(1975), 26
    C.C.C. (2d) 100
(Alta. C.A.).

[62]

The crimes the
    respondent committed are profoundly serious.  For the reasons set out above, I
    have concluded that the sentence imposed is contrary to the governing
    jurisprudence and is patently unfit. Furthermore, the record discloses no
    evidence that the respondent conducted himself in a particular manner in
    reliance on the expectation that the trial Crown would propose a lenient
    sentence. Nor, in my view, does the record support a reasonable inference that
    the respondent relied upon the Crowns position below in any particular respect.
    As a result, unlike in the authorities cited above, it is not possible to
    identify any unfairness to the respondent in allowing the Crown to request a
    longer sentence on appeal.

[63]


In my view, it follows that that this
    is one of the exceptional cases in which the public interest in the orderly administration
    of justice is outweighed by the gravity of the crime and the gross
    insufficiency of the sentence.  There is therefore no reason why this court should
    not consider the sentence sought by the Crown on appeal even though it is
    greater than the sentence the Crown sought below.

[64]

That said, this court,
    in fulfilling its ultimate responsibility to determine a fit sentence, pursuant
    to s. 687 of the
Code,
must take into account the Crowns position at
    trial and on appeal. I agree with the position espoused by Watt J.A. of this
    court in his dissent in
R. v. Peters
,
    2010 ONCA 30, 250 C.C.C. (3d) 277, at para. 57 that, in the interest of fairness,
the
term of imprisonment imposed on
    appeal may be somewhat circumscribed by the position of Crown counsel at trial
    and on appeal.

[65]

In the light of
    these additional factors and in the unique circumstances of this case, I would grant
    leave to appeal sentence, allow the appeal and set aside the sentence imposed by
    the sentencing judge.  I would impose a sentence of three years.  The
    respondent is entitled to a credit of one year for the year he has served of
    his conditional sentence.  I would not impose any period of probation but
    maintain the remainder of the existing ancillary orders.

[66]

In the result, I
    would impose a custodial sentence of two years, to commence on the day that the
    respondent surrenders. I would have the respondent surrender three days after
    the date of the release of these reasons, failing which a warrant should issue
    for his arrest.

Released: April 25, 2014 (E.A.C.)

Gloria
    Epstein J.A.

I
    agree E.A. Cronk J.A.

I
    agree M.L. Benotto J.A.


