COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Applicant/Appellant) v. JASON REGINALD SCHELL (Respondent)
BEFORE:
CARTHY, DOHERTY and LASKIN JJ.A.
COUNSEL:
Susan Chapman
for the appellant
Leslie Pringle
for the respondent
HEARD:
February 5, 2002
On appeal from the sentence imposed by Justice John D. Evans on January 19, 2001.
E N D O R S E M E N T
1The respondent pleaded guilty to two charges of sexual assault and received a 12 month conditional sentence. The Crown seeks leave to appeal. It seeks a longer conditional sentence, a term of probation and orders under s. 161(1) and s. 109(1) of the Criminal Code. Counsel for the respondent resists any variation in the sentence. The sentence was imposed a little over a year ago.
2This was a serious and tragic case. The complainant was four years old at the time of the assaults. The respondent was 24 years old but is intellectually challenged. At the time of the assaults, he was working at the complainant’s home, which also served as a group home for adults who are intellectually challenged. Prior to the assaults, the complainant’s parents liked and trusted the respondent. The respondent has no criminal record and enjoys the full support of his family.
3The convictions arose out of four incidents. The last occurred on June 20, 2000. The respondent was virtually caught in the act of assaulting the complainant. He told the complainant to pull down her pants and sit on his face. He then performed oral sex on the complainant and told her to touch his penis.
4After the respondent was confronted with what he had done on June 20th, he admitted that he had engaged in almost identical activity on three prior occasions in the previous several months.
5The trial judge had the benefit of psychiatric evidence. That evidence indicated that the respondent was not a paedophile, but that he had a generally vague sense of right and wrong and no idea as to what constituted appropriate interaction between the sexes. The psychiatrist opined that the respondent had not developed any sexual orientation and needed treatment so that he could learn how he should behave. He did not anticipate that the respondent would re-offend.
6The respondent was sorry for what he had done, but his remorse fixed more on the complainant’s parents and his own parents than on the complainant.
7We agree with the Crown’s contention that the trial judge erred in fixing the appropriate length of sentence without regard to whether that sentence would be served in the community or in a jail. In our view, where, as here, the sentence is to be served in the community, the duration of the sentence must be well beyond 12 months to adequately reflect the gravity of these offences and society’s denunciation of them. Not only will a lengthier conditional sentence reflect the principles of denunciation and deterrence, it would also provide an adequate opportunity for the respondent to receive the treatment he needs. That treatment has only just begun.
8The respondent completed his sentence a few weeks ago. We would order a conditional sentence of a further 12 months less one day. The Crown agrees that the “house arrest” provision of the conditional sentence is no longer necessary. Consequently, we would impose an additional conditional sentence of 12 months less one day to run from the date of release of this judgment. The terms and conditions are the same as those imposed by the trial judge save that the “house arrest” provision [para. “O” of the order] will be deleted.
9Given the substantial increase in the length of the conditional sentence, we see no need to impose a term of probation upon completion of the conditional sentence.
10The trial judge declined to make an order under s. 161(1) of the Criminal Code. The order is discretionary and we are not satisfied that we should interfere with the exercise of that discretion.
11The Crown did not request an order under s. 109(1) of the Criminal Code and consequently no such order was made at trial. On appeal, Crown counsel argues that the order is mandatory because any sexual assault by its nature involves “violence against a person”.
12Section 109(1)(a) does not direct that a firearms prohibition is mandatory upon conviction on a charge of sexual assault. Rather, it directs that the prohibition is mandatory where any offence involves “violence against a person”. It may be that virtually all sexual assaults, particularly those perpetrated against children, will involve violence against the victims. That issue was not raised before the trial judge and consequently he made no determination of whether the respondent’s conduct amounted to violence against the complainant. We do not think it would be appropriate for us to consider this issue on appeal. Consequently, we decline to make any order under s. 109(1).
“J.J. Carthy J.A.”
“Doherty J.A.”
“John Laskin J.A.”