R. v. M. (C.A.)

R. v. M. (C.A.)
Collection
Supreme Court Judgments
Date
1996-03-21
Report
[1996] 1 SCR 500
Case number
24027
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Criminal law
Notes
SCC Case Information: 24027
Decision Content
R. v. M. (C.A.), [1996] 1 S.C.R. 500
Her Majesty The Queen Appellant
v.
C.A.M. Respondent
Indexed as: R. v. M. (C.A.)
File No.: 24027.
1995: June 1; 1996: March 21.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Criminal law ‑‑ Sentencing ‑‑ Totality principle ‑‑ Accused pleading guilty to numerous counts of sexual assault, incest and assault with a weapon ‑‑ Offences arising from pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years ‑‑ Trial judge sentencing accused to cumulative sentence of 25 years' imprisonment ‑‑ Court of Appeal reducing sentence to term of 18 years and 8 months ‑‑ Whether Court of Appeal erred in concluding that fixed‑term cumulative sentences should not exceed term of imprisonment of 20 years, absent special circumstances.
Criminal law -- Sentencing -- Retribution legitimate principle of sentencing.
Criminal law -- Sentencing -- Appeals -- Standard of review appellate court should adopt in reviewing fitness of sentence.
The accused pleaded guilty to numerous counts of sexual assault, incest and assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the offences committed carried a penalty of life imprisonment. The trial judge, remarking that the offences were as egregious as any he had ever had occasion to deal with, sentenced the accused to a cumulative sentence of 25 years' imprisonment, with individual sentences running both consecutively and concurrently. The Court of Appeal reduced the sentence to 18 years and 8 months. Following a line of jurisprudence it had developed in recent years, the court concluded that where life imprisonment is not available as a penalty, the totality principle requires trial judges to limit fixed‑term cumulative sentences under the Criminal Code to a term of imprisonment of 20 years, absent special circumstances.
Held: The appeal should be allowed and the sentence of 25 years' imprisonment restored.
For offences where imprisonment is available, the Code sets maximum terms of incarceration in accordance with the relative severity of each crime. The Code staggers maximum sentences for the full range of offences at numerical intervals ranging from one year to 14 years, followed by the most severe punishment, life imprisonment. The Code is silent, however, with regard to whether there is an upper limit on fixed‑term or numerical (i.e., non‑life) terms of imprisonment, both as sentences for single offences where life imprisonment is available but unwarranted, and as sentences for multiple offences involving consecutive terms of imprisonment. It is a well established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. Within broader parameters, the principle of proportionality expresses itself as a constitutional obligation. A legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms . In the context of consecutive sentences, this general principle of proportionality expresses itself through the more particular form of the totality principle, which requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. Whether under the rubric of the totality principle or a more generalized principle of proportionality, Canadian courts have been reluctant to impose single and consecutive fixed‑term sentences beyond 20 years.
In contrast to the absence of any explicit codal rules governing the limits on fixed‑term sentences of imprisonment, the Criminal Code , read together with the Corrections Act, sets very clear rules governing the determination of parole eligibility. A person sentenced to a numerical term of imprisonment under the Code becomes eligible for full parole after serving the lesser of one third of the sentence or seven years. The commencement date for the determination of parole eligibility has generally been understood to coincide with the commencement of sentence, namely the date when sentence is imposed. A person sentenced to life imprisonment other than as a minimum punishment becomes eligible for full parole after serving seven years. However, in contrast to a person sentenced to a numerical term of imprisonment, the calculation of parole eligibility for life imprisonment begins at an earlier date, in that the parole eligibility clock effectively begins to run from the date of arrest.
There is no evidence in either the Code or the Corrections Act that Parliament intended to constrain a trial judge's traditionally broad sentencing discretion through the imposition of a qualified legal ceiling on numerical sentences pegged at 20 years' imprisonment. Parliament established the parole system as a regime by which the conditions of incarceration of a sentence could be altered by subsequent executive review, rather than as a regime by which the sentence itself could be reduced. In setting threshold periods of parole ineligibility, Parliament was principally motivated by the sentencing goals of deterrence and denunciation. But the fact that conditions of incarceration are subject to review at a particular point in time says little about the efficacy and limits of a global fixed-term sentence in advancing the traditional goals of sentencing. There is no indication that the default periods of parole ineligibility exhaust a court's ability to advance the goals of deterrence, denunciation, rehabilitation and the protection of society through the imposition of a numerical sentence beyond 20 years. Even though the conditions of incarceration may be subject to change after seven years, the interaction of accepted sentencing principles could still require that the offender remain under the aegis of the parole system (if not under imprisonment) for beyond 20 years. There is no necessary inference that Parliament implicitly imposed a qualified cap on fixed-term sentences through its adoption of the Corrections Act.
There is no obvious absurdity on the face of the parole eligibility scheme. The Corrections Act provides that an offender sentenced to life imprisonment would be eligible for parole before an offender sentenced to a numerical term beyond 20 years. One can readily infer an intelligible intent behind the operation of the rules. Parliament could have concluded that as a result of the unique life‑long parole restrictions associated with a term of life imprisonment, an offender sentenced to life ought to be entitled to have his or her pre‑trial custody credited to his or her parole ineligibility time. Furthermore, any alleged absurdity on the face of the statute will rarely manifest itself in the actual release dates of prisoners. The rules of the Corrections Act only govern an offender's eligibility for full parole; the actual granting of full parole remains within the discretion of the National Parole Board. Finally, even if one assumes that the parole eligibility rules result in an absurdity, such a legislative absurdity would only be compounded rather than corrected by imposing a strict restriction on the sentencing discretion of trial judges under the Criminal Code . The Corrections Act was intended to facilitate the sentencing discretion of trial judges. It would seriously pervert both the very purpose and function of the statute to suggest that the peculiarities of the parole eligibility rules contained within the Corrections Act ought to dictate and control the structure of sentences under the Code.
The Court of Appeal erred in applying as a principle of sentencing that fixed‑term sentences under the Criminal Code ought to be capped at 20 years, absent special circumstances. A numerical sentence beyond 20 years may still significantly advance the traditional continuum of sentencing goals ranging from deterrence, denunciation and rehabilitation to the protection of society, notwithstanding the fact that an offender is eligible for review of the conditions of his or her incarceration after seven years (absent an order extending the period of ineligibility). Within the broad statutory maximum and minimum penalties defined for particular offences under the Code, trial judges enjoy a wide ambit of discretion under s. 717 in selecting a just and appropriate fixed‑term sentence which adequately promotes the traditional goals of sentencing, subject only to the fundamental principle that the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence. There is no pre-fixed boundary to the sentencing discretion of a trial judge, whether at 20 or 25 years' imprisonment. There is no reason why numerical sentences should be de facto limited at 20 years as a matter of convention. Whether a fixed‑term sentence beyond 20 years is imposed as a sentence for a single offence where life imprisonment is available but not imposed, or as a cumulative sentence for multiple offences where life imprisonment is not available, there is no a priori ceiling on fixed‑term sentences under the Code.
Retribution is an accepted, and indeed important, principle of sentencing in our criminal law. As an objective of sentencing, it represents nothing less than the hallowed principle that criminal punishment, in addition to advancing utilitarian considerations related to deterrence and rehabilitation, should also be imposed to sanction the moral culpability of the offender. Retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions. The legitimacy of retribution as a principle of sentencing has often been questioned as a result of its unfortunate association with "vengeance" in common parlance, but retribution bears little relation to vengeance. Retribution should also be conceptually distinguished from its legitimate sibling, denunciation. Retribution requires that a judicial sentence properly reflect the moral blameworthiness of the particular offender. The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. Neither retribution nor denunciation, however, alone provides an exhaustive justification for the imposition of criminal sanctions. Retribution must be considered in conjunction with the other legitimate objectives of sentencing.
The Court of Appeal erred in reducing the accused's sentence. Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Appellate courts serve an important function in reviewing and minimizing the disparity of sentences. However, a court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. While the court reduced the accused's sentence primarily as a result of a framework of sentencing principles that was incorrect in law, it also justified its reduction with reference to a contextual application of the accepted principles of sentencing to this case. The Court of Appeal erred in this instance by engaging in an overly interventionist mode of appellate review of the fitness of sentence which transcended the standard of deference articulated by this Court in Shropshire. It was open to the sentencing judge to reasonably conclude that the particular blend of traditional sentencing goals required a sentence of 25 years in this instance. Moreover, on the facts, the sentencing judge was entitled to find that a overall term of imprisonment of 25 years represented a just sanction for the accused's crimes. The accused committed a vile pattern of physical and sexual abuse against the very children he was entrusted to protect. The degree of violence exhibited in these crimes was disturbingly high, and the children will undoubtedly be scarred for life. The psychiatrist and psychologist who examined the accused agree that he faces dim prospects of rehabilitation. Without doubt, the accused deserves a severe sentence which expresses society's revulsion at his crimes.
Cases Cited
Disapproved: R. v. Rooke, [1990] B.C.J. No. 643 (QL); R. v. D. (G.W.), [1990] B.C.J. No. 728 (QL); R. v. E.D. (1992), 16 B.C.A.C. 193; R. v. J.T.J. (1991), 73 Man. R. (2d) 103; referred to: R. v. Sweeney (1992), 11 C.R. (4th) 1; R. v. Hinch and Salanski, [1968] 3 C.C.C. 39; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Chaisson, [1995] 2 S.C.R. 1118; R. v. Bédard (1989), 21 Q.A.C. 173; R. v. Ko (1979), 50 C.C.C. (2d) 430; R. v. Pruner (1979), 9 C.R. (3d) S‑8; R. v. Smith, [1987] 1 S.C.R. 1045; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. M. (J.J.), [1993] 2 S.C.R. 421; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Wilmott, [1967] 1 C.C.C. 171; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Goltz, [1991] 3 S.C.R. 485; R. v. Saumer, [1977] 3 W.W.R. 385; R. v. Nichols (1978), 9 A.R. 203; R. v. Belmas, Hansen and Taylor (1986), 27 C.C.C. (3d) 142; R. v. Gorham (1987), 22 O.A.C. 237; R. v. Currie (1990), 98 N.S.R. (2d) 287; Yazdani v. La Reine, [1992] R.J.Q. 2385; R. v. Velmurugu (1994), 74 O.A.C. 393; R. v. Parsons (1993), 24 C.R. (4th) 112; R. v. Pelletier (1989), 52 C.C.C. (3d) 340; R. v. Charest (1989), 30 Q.A.C. 227; R. v. Childs (1984), 52 N.B.R. (2d) 9; R. v. Bell, B.C.C.A., Vancouver Registry CA771150, September 27, 1978; R. v. Nienhuis (1991), 117 A.R. 253; R. v. Dipietro (1991), 120 A.R. 102; R. v. Caissie (1993), 24 B.C.A.C. 57; R. v. J.A.C. (1995), 86 O.A.C. 135; R. v. Gamble, [1988] 2 S.C.R. 595; R. v. Shropshire, [1995] 4 S.C.R. 227; R. v. Ly (1992), 72 C.C.C. (3d) 57; R. v. Hicks (1995), 56 B.C.A.C. 259; R. v. Eneas, [1994] B.C.J. No. 262 (QL); R. v. M. (D.E.S.) (1993), 80 C.C.C. (3d) 371; R. v. Hoyt, [1992] B.C.J. No. 2315 (QL); R. v. Pettigrew (1990), 56 C.C.C. (3d) 390; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Jones, [1994] 2 S.C.R. 229; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Calder (1956), 114 C.C.C. 155; R. v. Sargeant (1974), 60 Cr. App. R. 74; R. v. Hill (1974), 15 C.C.C. (2d) 145, aff'd [1977] 1 S.C.R. 827; R. v. Hastings (1985), 58 A.R. 108; R. v. Kempton (1980), 53 C.C.C. (2d) 176; R. v. Pontello (1977), 38 C.C.C. (2d) 262; R. v. Haig (1974), 26 C.R.N.S. 247; R. v. Gourgon (1981), 58 C.C.C. (2d) 193; R. v. Knife (1982), 16 Sask. R. 40; R. v. Wood (1979), 21 C.L.Q. 423; R. v. Mellstrom (1975), 22 C.C.C. (2d) 472; R. v. Morrissette (1970), 1 C.C.C. (2d) 307; R. v. Baldhead, [1966] 4 C.C.C. 183; R. v. Trask, [1987] 2 S.C.R. 304; Olan v. The Queen, S.C.C., No. 14000, October 11, 1977; Berry v. British Transport Commission, [1962] 1 Q.B. 306.
Statutes and Regulations Cited
Act to provide for the Conditional Liberation of Penitentiary Convicts, S.C. 1899, c. 49.
Canadian Charter of Rights and Freedoms, ss. 7 , 12 .
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 3 , 99(1) , 120(1) , (2) , 128(1) , 133(3) , (4) , 135(1) .
Corrections and Conditional Release Regulations, SOR/92‑620, s. 161(1).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 235 , 683(3) , 687(1) , 717(1) , (2) , (4) (c), 721(1) , (3) , 741.2 [ad. 1992, c. 20, s. 203], 744, 839(3).
Parole Act, R.S.C. 1970, c. P‑2 [am. 1976‑77, c. 53].
Parole Act, S.C. 1958, c. 38, ss. 2(d), 11(1).
Parole Regulations, SOR/60‑216, s. 2 [rep. & sub. SOR/73‑298, s. 1].
Penitentiary Act of 1868, S.C. 1868, c. 75.
Supreme Court Act, R.S.C., 1985, c. S‑26, s. 47 .
Authors Cited
Archibald, Bruce P. Crime and Punishment: The Constitutional Requirements for Sentencing Reform in Canada, August 1988.
Campbell, Mary E., and David P. Cole. "Conditional Release Considerations in Sentencing" (1985), 42 C.R. (3d) 191.
Canada. Canadian Sentencing Commission. Sentencing Reform: A Canadian Approach. Ottawa: The Commission, 1987.
Canada. Report of a Committee Appointed to Inquire into the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada. Ottawa: Queen's Printer, 1956.
Code, W. E. Brett. "Proportionate Blameworthiness and the Rule Against Constructive Sentencing" (1992), 11 C.R. (4th) 40.
Cole, David P., and Allan Manson. Release from Imprisonment: The Law of Sentencing, Parole and Judicial Review. Toronto: Carswell, 1990.
Cross, Sir Rupert. The English Sentencing System, 2nd ed. London: Butterworths, 1975.
Friedland, Martin L. "Controlling the Administrators of Criminal Justice" (1989), 31 Crim. L.Q. 280.
Rice, Michael E. "Fixed‑Term Sentences of More Than 20 Years Versus Life Imprisonment" (1994), 36 Crim. L.Q. 474.
Ruby, Clayton C. Sentencing, 4th ed. Toronto: Butterworths, 1994.
Thomas, D. A. Principles of Sentencing, 2nd ed. London: Heinemann, 1979.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 28 C.R. (4th) 106, 40 B.C.A.C. 7, 65 W.A.C. 7, reducing the cumulative sentence of 25 years' imprisonment imposed on the accused. Appeal allowed.
Elizabeth Bennett, Q.C., for the appellant.
Clayton C. Ruby, for the respondent.
The judgment of the Court was delivered by
1 Lamer C.J. -- In 1992, the respondent, C.A.M., pleaded guilty to numerous counts of sexual assault, incest, assault with a weapon, in addition to other lesser offences, arising from a largely uncontested pattern of sexual, physical and emotional abuse inflicted upon his children over a number of years. None of the offences committed by the respondent carried a penalty of life imprisonment. The trial judge, remarking that the offences of the respondent were "as egregious as any offences that I have ever had the occasion to deal with", sentenced him to a cumulative sentence of 25 years, with individual sentences running both consecutively and concurrently. The British Columbia Court of Appeal, however, reduced the sentence of the respondent to 18 years and 8 months: (1994), 28 C.R. (4th) 106, 40 B.C.A.C. 7, 65 W.A.C. 7. Following a line of jurisprudence it had developed in recent years, the Court of Appeal concluded that where life imprisonment is not available as a penalty, the "principle of totality" requires trial judges to limit fixed-term cumulative sentences under the Criminal Code of Canada, R.S.C., 1985, c. C-46 , to a term of imprisonment of 20 years, absent special circumstances. Accordingly, the fundamental issue presented by this appeal concerns whether or not the Court of Appeal erred in law in holding that there is such a qualified ceiling on fixed-term sentences under the Criminal Code .
I. Factual Background
2 The respondent is a 55-year-old man with no prior history of criminal conduct. In 1972, after two previous marriages, the respondent married his third wife (now deceased). During that marriage, he fathered nine children. The children included an older pair of female twins, E.M.M. and J.P.M., born in 1974, and a number of younger male and female children. For most of his life, the respondent worked as a labourer across the Western provinces, alternatively employed as a hard rock miner, a truck driver, a mechanic and an oil field worker. As a result of the transient nature of his employment, the family was somewhat itinerant and moved frequently from locations in Manitoba, Alberta, Saskatchewan and British Columbia. In or about February 1987, the family moved to Fort Nelson, B.C., and in or about February, 1988, the family relocated again to Saanich, B.C.
3 On May 14, 1992, a Canada Post letter carrier called the Saanich Police Department to report that he had observed several young children who had been left unattended in distressing living conditions at the respondent's residence. At 1:30 p.m. that day, two police constables visited the residence accompanied by a social services worker. By their accounts, the residence contained no furniture or food, and was filthy. The children were barely clothed, malnourished, and slightly delirious. One constable also noticed numerous long-term scars over the arms and legs of the children. In his report, the same constable described his reaction to the exigent circumstances under which the children were living:
I have attended hundreds of residences in the past seven and a half years and in my opinion the residence was the worst I had ever seen, and that the children were in need of apprehension.
Upon inquiries, the older children advised the constables that their father, the respondent, had left the home approximately one year before. The respondent, it would later be revealed, had left the residence in 1990 for Fort Nelson, and eventually Moose Jaw, Saskatchewan, following separation from his wife. In their ensuing discussions with the constables, the older daughters also began to disclose allegations of past physical and sexual abuse by their father.
4 In the next two days, one of the daughters met with the police constables, at which time she spoke at length concerning the physical and sexual abuse which she had suffered at the hands of the respondent. In the course of the ensuing investigation, the respondent was arrested in Moose Jaw and was returned to Victoria in police custody. On November 30, 1992, the respondent entered a plea of guilty before Filmer Prov. Ct. J. to an amended information which included five counts of assault with a weapon, two counts of assault, two counts of sexual assault, one count of incest and one count of uttering a threat. The respondent was convicted, and the judge ordered psychological and psychiatric evaluations and scheduled a hearing for the purpose of sentencing.
II. Sentencing Submissions
5 On February 8, 1993, Filmer Prov. Ct. J. convened a hearing to entertain submissions as to sentence. Although the respondent had been convicted of a number of serious offences, none of the offences carried life imprisonment as a penalty. The respondent, however, had pleaded guilty to one offence which bore a maximum term of imprisonment of 14 years, and to six offences which carried maximum terms of imprisonment of 10 years, in addition to the remaining lesser offences which carried maximum sentences of 5 years. The Crown, from the outset, requested a cumulative sentence of more than 20 years imprisonment given the magnitude of the respondent's crimes. In its oral and written submissions before the court, the Crown presented a psychological report by a Dr. Malcolm, a psychiatric report by a Dr. Lohrasbe, and written victim impact statements by E.M.M. and J.P.M., among other exhibits including letters and poems written by children. Counsel for the defence, in reply, contended that the Crown's request was excessive and that a sentence of 10 to 14 years was adequate to advance the sentencing goals of deterrence and denunciation. While conceding the "extensive" physical and sexual abuse committed by the respondent, counsel underscored his client's past personal experiences with abuse, his client's willingness to forego a painful trial, and his client's genuine expressions of remorse for his crimes.
6 Given that this appeal implicates questions concerning the reasonableness of the sentence imposed by Filmer Prov. Ct. J., I find it necessary to examine the sentencing submissions of both the Crown and the respondent in some depth in order to illustrate the full gravity of the respondent's crimes.
A. Submissions of the Crown
7 In the course of developing its submissions, the Crown revealed a disturbing, horrific pattern of physical and sexual abuse which the nine children suffered at the hands of the respondent. From 1988 to 1991, it does not appear to be seriously contested that the daily lives of these children were punctuated by cruel, spontaneous acts of aggravated violence perpetrated by their father. Rather than representing a caring figure of love and protection, their father appeared to represent a haunting, malevolent figure who instilled fear in their daily existence.
8 In its pleadings, the Crown described how the four eldest children suffered a long history of physical abuse which consisted of almost daily beatings administered by their father. Although the beatings normally involved the use of open hands, fists and feet, on more serious occasions they included the use of weapons such as steel-toed work boots, knives, belts, broomsticks, electrical cords, tools and (on one alleged occasion) a toaster. Although the children could not identify any discrete point in time during which the beatings began, the physical assaults assumed a regularity in timing and in intensity once the family had moved to Fort Nelson. The beatings did not appear to follow any consistent pattern of motivation on behalf of the respondent; at times, it appears that the respondent was motivated by spontaneous bursts of anger, while other times, the respondent's violence was provoked by superficial excuses related to the misbehaviour or failure of the children, such as the receipt of a poor report card or an incident of bed-wetting.
9 E.M.M., one of the two female twins, suffered some of the most severe abuse. On seemingly countless occasions, she was beaten with the bare hands of the respondent, including being thrown by the respondent against cupboards and down stairs. When the family moved to Victoria, she was subjected to more aggravated assaults involving repetitive whippings with a wet electrical cord, or with a leather belt emblazoned with metal snaps - an instrument the children would learn to call the "Devil's Fang" because the hook of the buckle would cut skin when pulled away. E.M.M. also sustained beatings with miscellaneous household instruments ranging from broomsticks, screwdrivers, wrenches to hammers. According to her accounts, during one egregious incident, the respondent castigated her for burning toast by shoving her face into the hot toaster.
10 By the Crown's description, the other children were similarly forced to endure a regular pattern of fist beatings. The respondent, however, appeared to single out his older children for the most violent abuse. Often, he would force the other children to watch as he targeted one particular child out for corporal punishment. The older children were all exposed to the electric cord whippings. The sheer brutality of the respondent's whippings is clearly conveyed by E.M.M.'s description of the event. As she described one particular incident in her impact statement:
The cord was doubled and doubled and doubled until the whole thing looked like a bunch of hoops held together. Anyways he started whipping us with it, we still had our wet clothes on but after a few swats he told us to take them off. I remember us screaming with every strike, it felt like my whole entire body was being struck by lightning. The pain was so strong it felt like electrical shocks travelling all over my body with every whip. He didn't care where he hit. It landed on our backs, arms, legs, anywhere he pleased. Anyways, he wouldn't stop unless we stopped screaming. . . . I managed to stop screaming by biting into my cheeks and tongue finding out afterwards the reason he stopped was because he saw blood. I was bleeding and bruising on my back, buttocks, legs, arms and shoulders, but most of the bleeding and bruising was on my back. [Three of the children] had the same, only [J.P.M.] had it mostly on her legs, [another] had it mostly on his shoulders and arms, [the third] had it mostly on her butt.
One particular daughter suffered additional abuse because she would not (or could not) stop crying during and following her beatings. She was once purportedly hit so many times that she lost consciousness. One son was frequently kicked by the respondent's steel-toed boots in his shins, abdomen and back. J.P.M. was subjected to physical discipline administered with a wrench, a screwdriver and the flat portion of a knife. She still carries an approximately three-inch long scar on her arm when the respondent cut her while she was cleaning dishes.
11 The pain and suffering experienced by the three eldest daughters was magnified by a degrading pattern of sexual abuse inflicted by the respondent. According to the Crown's interviews with the victims, the respondent would watch and fondle all three children as they bathed and dressed themselves. When the family was living in Fort Nelson, both E.M.M. and J.P.M. were forced to masturbate the respondent and perform oral sex on him. E.M.M. recalls one night in Fort Nelson when the respondent had some of his friends over, and the group of men forced her to undress and collectively felt her genitalia. During one particularly disturbing occasion involving J.P.M. (an occasion which the respondent submits he does not recollect), the respondent allegedly invited his friends to the family residence, and permitted his friends to have intercourse with his young daughter in exchange for money. According to J.P.M.'s account of the event, when she resisted, the respondent helped physically restrain his daughter to facilitate the transaction.
12 When the family moved to Saanich in February 1988, the sexual assaults against three older female children became more frequent and grew in intensity. The bathroom fondlings became a regular event in the lives of E.M.M. and J.P.M. and they escalated to include full digital penetration by the respondent. When E.M.M. was about thirteen, she was forced to perform full intercourse with the respondent on a number of occasions in the parents' bedroom. J.P.M. too was compelled to engage in full intercourse with her father on more than one occasion. By her accounts, the accused would sleep in some days and call her into his room to have sex with him before he started his day. J.P.M. recalls that the last incident of intercourse occurred in the spring of 1991 shortly before her father had moved from the province.
13 The suffering and degradation experienced by the children from the physical and sexual abuse was only aggravated by the respondent's persistent, dehumanizing emotional abuse. The respondent exhibited a callous disregard for the emotional well-being of his children. As the Crown described, he would rarely call his offspring by their given names. Rather, he would ordinarily label them collectively according to an obscene expletive. Additionally, the respondent regularly terrorized his children with death threats. According to their statements, there appears to be little doubt that the children were convinced that their father would kill them if they ever discussed the abuse they had experienced under his care.
14 The Crown's submissions and the children's respective impact statements suggest that the abused children will continue to experience the devastating consequences of the respondent's physical, sexual and emotional abuse for a significant time to come. The children appear to live in enduring fear that even if their father is sent to prison, he will eventually return and kill them. As Dr. Lohrasbe indicated in his psychiatric report:
The family are totally terrorized. They believe that [C.A.M.] will somehow return to carry out his threats. They are fearful that he will work his way through the correctional system, or escape, and return to carry out his threats. It is unlikely that these fears will subside any time soon.
The children are clearly withdrawn, and they appear to have experienced considerable difficulty in socially adjusting to their environment at school. Perhaps most tragically of all, the children seem to partially blame themselves for the physical and sexual brutality they experienced at the hands of their father. In her statement, E.M.M. rebukes herself for the cruel abuse she has suffered:
It's driving me crazy! I mean how could I let these people treat me so badly? Why did I allow my body to go through all the torture and pain? How could I be so stupid?
Dr. Lohrasbe expressed considerable pessimism over whether the children would ever fully recover from the lasting effects of the abuse they had endured. As the doctor expressed his clinical findings in his report: "there is little doubt in my mind that recovery, if it is to occur, will take many, many years".
15 The Crown argued on the basis of the psychological report and the psychiatric report that the respondent enjoys few prospects for rehabilitation. In his report, Dr. Lohrasbe cast serious doubt on the sincerity of the respondent's ex post expressions of remorse. As the expert expressed his view:
In regards to rehabilitating this man, it is important for me to point out that [C.A.M.] currently shows little interest or motivation in genuine change. His verbal expressions of contrition appear to be little more [than] a contrivance to protect his self-esteem. He is unwilling to acknowledge, never mind change, his more serious acts.
More generally, Dr. Lohrasbe concluded that the respondent experiences "severe and pervasive distortions in his personality that overlap several discrete diagnostic patterns of personality disorder". Accordingly, the psychiatrist was not optimistic about the respondent's possibilities for reform. As the psychiatrist described his diagnostic conclusions:
The extent and depth of the personality distortions suggest that it is going to be extraordinarily difficult to change this man's attitudes and behaviour. . . .
Individuals with less severe syndromes of controlling abuse are still difficult treatment candidates. There is no recognized treatment method by which change can predictably occur. With [C.A.M.], it would be wise to assume that very little, if anything, can be done to examine and eliminate the causes of his offending. It will have to be assumed that, at whatever point he is able to dominate other individuals, he will continue in his controlling and abusive ways.
Dr. Malcolm, the psychologist, generally shared Dr. Lohrasbe's pessimism. As Dr. Malcolm concluded in his report:
Certainly, therapy should be made available to [the respondent] but at the present time it has not been notable for success in others with this diagnostic pattern. Sadly, given [the respondent's] long history of abusing all three of his wives and many of his children it is difficult to presume that his aggressiveness towards others, especially family members, would diminish. . . . There is no present reason to assume that this pattern would change without intensive therapy which may well, as noted, be unsuccessful.
16 Accordingly, in light of the devastating pattern of physical, sexual and emotional abuse the respondent inflicted upon his children, and in light of the respondent's questionable prospects for rehabilitation, the Crown requested a stringent term of imprisonment in excess of 20 years. The Crown was of the view that a term of 30 years might even be warranted by the crimes of the respondent.
B. Submissions of Counsel for the Defence
17 In his submissions, counsel for the defence largely accepted the Crown's account of the physical and sexual abuse committed by the respondent. It was admitted that "there can be no doubt" that the abuse visited by the respondent upon his children was both "extensive" and "terrible". Counsel, however, did take issue with some of the particular allegations of the Crown. While the respondent recalls striking and kicking the children on numerous occasions, including with the electrical cord, he could not recall assaulting the children with a knife or a screwdriver. Furthermore, in relation to the sexual abuse, contrary to the Crown's suggestion, he asserted that he only had sexual intercourse with E.M.M. and J.P.M. on a few discrete occasions. He also denied recollection of the incident during which he purportedly held down J.P.M. for the benefit of his friends. But on the whole, the respondent did not seriously dispute the larger pattern of physical, sexual and emotional abuse depicted by the Crown.
18 Counsel did, however, spend considerable effort in calling attention to the mitigating circumstances surrounding the respondent's crimes. To begin, counsel underscored the respondent's dysfunctional childhood and troubled youth. As a result of recently revived memories which had allegedly been repressed, C.A.M. contends that he has discovered that he himself was a victim of sexual abuse at a very early age. He also emphasized the long-term trauma he has suffered in relation to two near-death experiences, one in relation to a serious automobile accident, and one in relation to "mine gassings" which occurred while he was working as a miner.
19 In addition to the foregoing factors, the respondent also stressed his advanced age, and his willingness to plead guilty to almost all of the counts of the information in order to avoid having his children endure the pain of a lengthy trial. As well, it was contended through counsel that responsibility for the abuse of the children ought to be shared with his deceased wife; in his characterization of the relevant events, the mother was a "willing participant" in the physical beatings of the children. Finally, he represented that he was genuinely remorseful for his crimes. In light of all these factors, counsel for the defence submitted that an appropriate term of imprisonment should be set at 10 to 14 years.
III. Judgments Below
A. Provincial Court
20 At the outset, Filmer Prov. Ct. J. commented that the crimes of the respondent were "as egregious as any offences that I have ever had the occasion to deal with, either as counsel or in these courts". He further remarked that "[t]his matter transcends what I would consider the parameters of the worst case". However, he noted that none of the respondent's offences carried life imprisonment as an available punishment. Furthermore, he took cognizance of two recent rulings of the British Columbia Court of Appeal in R. v. Rooke, B.C.C.A., Victoria Registry V000354 and V000355, February 9, 1990, [1990] B.C.J. No. 643, and R. v. D. (G.W.), Vancouver Registry CA009244, March 8, 1990, [1990] B.C.J. No. 728 (sub nom. R. v. Danchella), which held that where life imprisonment is available as a punishment but is not imposed, the maximum numerical sentence available under the Criminal Code is 20 years imprisonment, absent special circumstances warranting a more onerous sentence.
21 Filmer Prov. Ct. J. concluded that the qualified ceiling on sentences established in Rooke and D. (G.W.) did not apply in this instance, as the ratio decidendi of that line of jurisprudence was limited to circumstances where life imprisonment was available as penalty. Accordingly, he held that he could consider sentences which exceeded 20 years.
22 Filmer Prov. Ct. J. found that, based on the psychological and psychiatric reports, "therapy in this particular matter, if it is to be successful at all, will take a protracted period of time". He then stressed the "extremely high" and "shocking" level of violence