An Ontario judge has sentenced a man to house arrest for sexually assaulting his biological sister, ruling that the mandatory minimum five-year sentence for incest with someone under 16 is unconstitutional and “grossly disproportionate” for offenders with intellectual disabilities.
The 26-year-old man, identified only as D.C. in the decision from Ontario’s Superior Court of Justice, was charged in 2022 for having sex with his sister for four years starting when she was 12 years old. Although he’s an adult, a defence expert testified that D.C. has an intellectual disability such that his cognitive age equivalency would be nine to 12 years old.
“Five years in a penitentiary is a tough sentence in any circumstances, and even more so for a first-time offender. When a developmental disability is added to that mix, in my view it becomes cruel and unusual,” Justice Anne Molloy wrote in a recent decision.
The judge convicted D.C. on two counts of incest and one charge of sexual assault.
She handed him a conditional sentence of two years less a day and three years of probation.
It’s “extremely rare” for judges to bypass mandatory minimums, said Wayne MacKay, a professor emeritus at Dalhousie University’s Schulich School of Law.
“The gap between a five-year minimum and house arrest is so large that that’s kind of striking,” MacKay said in a recent interview.
It could make the case ripe for appeal, he said.
“I think there is a big problem here because mostly the public is going to say that giving a house arrest as a penalty for something as serious as a sexual assault of a person under 16 and also incest really sends the wrong message to the public as to how serious we take that offence,” MacKay said. “I realize she’s balancing the disability and those appropriate considerations on the other side, but by having such a big gap, I think most people would find that problematic.”
In May 2022, D.C.’s sister, who also has intellectual disabilities, told her high school guidance counsellor “that her brother had been sexually assaulting her for years,” said the June 3 decision. She was 16 years old at the time.
The counsellor called police. Investigators charged D.C., who is six years older than his sister.
“Although the counts on the indictment date from when D.C. was already 18, and his sister was therefore 14, it is an agreed fact that they began when she was only 12 and it is relevant to take that into account on sentencing,” the judge wrote.
“These assaults included penetrative intercourse,” said the decision. “Sometimes, he would use a condom. Other times, when he did not wear a condom, he would go to the bathroom to ejaculate.”
The girl sometimes protested having sex with her brother, said the decision. She “felt pain, and did not enjoy it. He proceeded anyway. At other times, she did not protest, but she never subjectively consented.”
Sometimes D.C. watched pornography and emulated what he saw with his sister, telling her she “needed to know how these things felt as preparation for when she had a husband and wanted to get pregnant,” said the decision. “Sometimes, he would reward her for sex by giving her money or candy.”
She “surreptitiously audio-recorded” one sexual assault that was used as evidence against her brother.
“On the recording, the complainant can be heard telling D.C. she was in pain and also telling him to stop,” said the judge.
“She referred to him ‘just forcing it in.’ It is clear that D.C. heard these protests and that he nevertheless continued, if anything, with increased intensity.”
While D.C. may function as an adult (he graduated high school, got his driver’s licence, is employed in a warehouse and does not receive government assistance ) , “his intellectual skills, including his capacity for moral reasoning, are substantially below the level of an adult,” Molloy said. “Because of his disability, he falls squarely within the concept of ‘diminished moral blameworthiness.’”
The judge recognized “that incest is one of the most heinous of sex crimes, with profound and typically long-lasting effects.”
At the end of the sentencing hearing, D.C. “took the opportunity to say that he felt sorry for what he did to his sister and his family and that he was trying to improve himself,” Molloy said. “He recognized he had caused pain and trauma to his sister and said it would never happen again. It seems to me that D.C. now has insight into what he did, and the pain he caused. I found him to be genuinely remorseful for his actions.”
D.C. needs education and guidance, she said.
“He is obviously capable of learning, and he is a person who likes to please others. He will benefit greatly from counselling about issues of sexuality and consent, as well as family parameters,” Molloy said.
“I doubt very much that he will learn these things within the confines of a federal penitentiary, where other inmates are simply not like him, and where courses would not be geared to his cognitive age. Moreover, the extreme tension and anxiety that will no doubt be triggered for him in that population are not conducive to learning, and particularly not conducive to learning about things like respect for others, kindness, personal boundaries, consent, and the like. I see great potential for rehabilitation with D.C. and I fear that sending him to prison would endanger, rather than enhance, his prospects for the future.”
The judge noted that “conditional sentences for sexual offences against children will only rarely be appropriate.”
But she was satisfied “that such a sentence in this case would not endanger the safety of the community. In my view, the conditional sentence option best supports specific deterrence and rehabilitation, and is sufficiently onerous to constitute denunciation and general deterrence.”
During his conditional sentence, D.C., who drives a forklift for work, must live with his grandmother.
He’ll be on house arrest for the first year and will be allowed to attend work and approved appointments, then a curfew for the second.
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