WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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:
(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
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(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.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Edward Palacios
Before: Justice Rebecca Rutherford
Heard on: April 4, 2012
Reasons for Judgment released on: April 4, 2012
Counsel:
Cidalia Faria for the Crown
Howard C. Rubel for the accused
RUTHERFORD J.:
INTRODUCTION
1Edward Palacios pleaded guilty to several counts of gross indecency in relation to seven different victims. The offences stem back to a period of time between 1980 and 1985. I was provided with a great deal of material from both Crown Counsel Ms Faria and from defence counsel Mr. Rubel. I have reviewed all the material including psychiatric reports from 1990 and 2011, a pre-sentence report from 1990, excerpts from transcripts of Mr. Palacios' sentencing hearing in 1990 before Justice Ormston and the Court of Appeal endorsement in relation to the Crown Appeal of Justice Ormston's sentence. I heard extensive submissions. I have reviewed victim impact statements. I heard from 3 victims who provided their statements to the Court. I also heard from Mr. Palacios. The matter was adjourned for my reasons. These are my reasons.
CIRCUMSTANCES OF THE OFFENCES
2From 1980 to 1985 Mr. Palacios lived in the Leaside area of Toronto. All the victims either lived in Leaside or attended the area on a frequent basis. The victims, now adults, ranged from age 8 to 13 years old. B.M. and J.M. were brothers. R.S.B. was a friend of the brothers. D.M., M.W., M.M. and D.W. were not friends or relatives but all attended the Leaside swimming pool on a regular basis where they encountered Mr. Palacios.
R.S.B
3R.S.B. was 10 years old when he first met Mr. Palacios. He delivered newspapers to Mr. Palacios' home. He and his friends B.M. and J.M. often hung out in the alleyway behind the Palacios' house. He came to know Mr. Palacios quite well and at some point Mr. Palacios became part of R.S.B's hockey coaching team.
4Between the ages of 10 and 14 R.S.B often stayed overnight at the Palacios' home. Mr. Palacios had him sleep naked in his bed. He told R.S.B that it was healthier for him if he slept in this manner. While the two were in the bed, Mr. Palacios fondled R.S.B's penis.
5Mr. Palacios also took R.S.B. for car rides where he allowed the young boy to steer the steering wheel while sitting on Mr. Palacios' lap. Mr. Palacios would shift gears with one hand and fondle R.S.B.'s penis with the other hand.
6There were also a number of occasions where Mr. Palacios took R.S.B and other boys to Mr. Palacios' grandmother's farm in Port Perry Ontario. They pitched a tent and Mr. Palacios slept in the tent with the boys. On a number of occasions while in the tent, Mr. Palacios moved close to R.S.B. and fondled R.S.B's penis.
7During the period of time Mr. Palacios committed the sexual assaults on R.S.B. there were occasions where he supplied the young boy with either beer or marijuana.
B.M
8As I stated earlier, B.M and J.M. were brothers. B.M. was the eldest of the two. He met Mr. Palacios when he was 12 years old. Mr. Palacios befriended B.M. until he was 16 years old. Mr. Palacios at some point during that time became B.M.'s hockey coach.
9Similar to R.S.B., Mr. Palacios took B.M for car rides. B.M. would sit on Mr. Palacios' lap and he would be allowed to steer the car. Mr. Palacios would fondle B.M's penis while the young boy was steering.
10There were also times when Mr. Palacios took B.M. to the Leaside swimming pool. The two would play in the water. Mr. Palacios threw B.M in the air and B.M. would land in the pool. Mr. Palacios threw the boy in the air with one hand and fondled the child's penis under his swimming trunks with the other.
11Sometime between January 1983 and December 31, 1984 B.M. got into an argument with his parents. He left the family home and went over to Mr. Palacios' home. He slept overnight because he did not want to return to his own family home. He thought he would sleep on the couch. Mr. Palacios suggested he could sleep in his bed with him. B.M. agreed and slept naked beside Mr. Palacios. Mr. Palacios then reached over and fondled B.M.'s penis until B.M. ejaculated. Mr. Palacios then took B.M's hand and put it on his own penis. B.M. pretended to be asleep and did not move.
12On occasion Mr. Palacios offered beer and marijuana to B.M.
J.M.
13Between the ages of 10 and 13 J.M. often slept overnight at Mr. Palacios' home. On numerous occasions he slept naked beside Mr. Palacios. Mr. Palacios asked J.M. to masturbate him until Mr. Palacios ejaculated. Mr. Palacios also fondled J.M's penis but because of his young age, he did not ejaculate.
14J.M. also went to Mr. Palacios' grandmother's farm on occasion. While driving to the farm Mr. Palacios sometimes allowed J.M. to steer the car. He sat on Mr. Palacios' lap. Like the other boys, while J.M. steered, Mr. Palacios put his hand down the child's pants and fondled his penis. While at the farm, J.M. slept in the tent with Mr. Palacios and the other boys. On some of these occasions Mr. Palacios moved close beside the boy and fondled his penis.
D.M., M.W., M.M., and D.W.
15These four victims knew Mr. Palacios from the Leaside Pool where they regularly attended to go swimming. At the time, D.M. was 8 or 9 years old, M.W. was 9 or 10 years old, M.M. was 10 to 12 years old and D.W. was 12 to 13 years old. The boys played with Mr. Palacios in the water. Mr. Palacios had the boys line up at the buoy line by the deep end of the pool. He would lift each of them up and toss them into the deep water. When he did this, he positioned one hand on the boy's body and the other under their swimming trunks. He fondled their penises and then threw them into the air. Mr. Palacios did this to D.M. on several occasions. He did this to M.W. two or three times. He did this to M.M. several times and he fondled D.W.'s penis once.
VICTIM INPUT
16The effects of Mr. Palacios' actions have had a profound impact on the lives of the victims. Many of the victims have written about the shame and pain of Mr. Palacios' actions. They feel that a part of their childhood was taken away. They are struggling with their deep feelings of betrayal. They trusted Mr. Palacios and they looked up to him. They saw him as a role model and a source of fun and inspiration. Sadly, it turned out that Mr. Palacios was not to be trusted. He preyed on the young boys. His intentions towards the boys were not those of a caring role model and friend but those of a person who was only seeking to fulfill his own selfish sexual gratification.
17R.S.B. read his victim impact statement in Court. It has been filed at Tab 4 of the Crown's materials (Exhibit 2). R.S.B is angry and feels cheated out of a childhood. He suffers from depression and at times says he is unable to control his anger. He struggles with maintaining consistent employment. Counselling has not assisted him and he is unsure whether it will ever help him. He has difficulty with intimacy and worries that he may never be able to trust enough to marry a woman and have children. Sometimes he worries that he is not appropriate around young children.
18R. M. is the mother of B.M. and J.M. Her victim impact statement is filed at Tab 8 of the Crown's materials. She read her victim impact statement in Court. R.M., like any mother, is completely guilt ridden for allowing her sons to spend time with Mr. Palacios. She was a young divorced mother raising her boys alone. Mr. Palacios seemed to show an interest in the boys. He was a hockey coach and presented as a nice man. She trusted that he would treat the boys respectfully. R.M. did not learn of the sexual abuse until 2010 when her sons went to the police. She was devastated. She describes the profound effect the abuse had on her sons. She states they get angry and often withdraw from her completely. She expresses feeling of betrayal.
19M.M. filed a victim impact statement and read it into the record. The statement is filed at Tab 7 of the Crown's materials. M.M. was very emotional throughout the reading of his statement. He described his life as tumultuous and chaotic. He described himself as an addict. He started to abuse alcohol at 12 years old and went on to use drugs later in his teenage years. He struggles with mental illness and consequently has been hospitalized on some occasions. He has problems with intimacy and generally has difficulty managing his life.
20B.M filed a victim impact statement. It is at Tab 5 of the Crown's materials. B.M. struggles regularly with guilt and shame. His relationship with his whole family has been negatively impacted. He suffers depression and has difficulty functioning day-to-day. He has a hard time focusing at work and has had difficulty maintaining long-term relationships. He is angry and cannot find relief from his childhood experiences through therapy and counselling. He feels empty and consequently turns to alcohol to numb these feelings. He does not trust people and is saddened by the possibility of lost relationships.
21D.M. in his victim impact statement states that for some time he questioned his sexuality because of what happened to him. He did not trust men and struggled to get along with them. He could not find the right therapy or treatment that addressed his feelings and his anxieties. He worries about his personal safety and never feels at ease in any public facility.
22These boys were all vulnerable either by their young age, their personal familial circumstances or both. They have all struggled throughout their adult lives to cope and come to terms with the sexual abuse they experienced as teenagers by a man they thought of as a hero.
CIRCUMSTANCES OF THE OFFENDER
23At the time of the offences, Mr. Palacios was between 21 and 26 years old. He was single and had no children. Presently, Mr. Palacios is 52 years old. He is married and has two grown children.
24The present offences and trial proceedings have strained his relationship with his wife. Although they still reside together, they are experiencing a period of separation as husband and wife. Mr. Palacios' wife is aware and has for some time been aware of his diagnosis of paedophilia. She is also aware that he underwent intensive treatment to control it. She was supportive of him in 1990 and throughout the years that followed. She is still supportive but the stress of the present proceeding has been overwhelming rendering her unable to attend Court.
25Mr. Palacios told his daughter and son about both the present offences and his prior convictions for sexual assault. He has been completely open and honest with them about his diagnosis. He continues to enjoy their love and support. He also has the support of his mother and other family members and friends.
26Over the last 25 years Mr. Palacios has been fully employed. He is the financial support of his family. The offences before me have not resulted in a loss of his employment. He is engaged in a long-term contract in the IT field. He has been working with the same organization for over one year. His contract is expected to last for at least one and half more years, at which time it will be up for renewal.
27Mr. Palacios has prior convictions. In 1990 Mr. Palacios was convicted of 3 counts of sexual assault and 1 count of attempted sexual assault. These offences occurred between 1987-1988. The facts on those matters are very similar to the facts before me. The facts show that:
Mr. Palacios fondled a young boy's penis under his swimming trunks when he played with the child at a public swimming pool.
When Mr. Palacios was a Big Brother in the Big Brother's Association he had an occasion to meet a friend of his "little brother". The child came to Mr. Palacios home. The child sat on Mr. Palacios' knee. Mr. Palacios tried to put his hand down the child's pants to fondle his penis but the child pulled Mr. Palacios' hand away.
Mr. Palacios took some boys on a camping trip to his grandmother's farm in Port Perry. They slept in a tent. On one occasion, he separated one child from the others and placed his hands down the inside of the boy's pants and fondled his penis.
In 1983 Mr. Palacios became the "Big Brother" to the last victim. In 1988 on several occasions at Mr. Palacios' apartment, the child sat on Mr. Palacios' knee while watching television. Mr. Palacios put his hand down the boy's pants and fondled his penis.
28Mr. Palacios was sentenced to 90 days intermittent followed by 3 years probation. The Crown appealed the sentence to the Ontario Court of Appeal. The Court of Appeal upheld the sentence.
29Prior to being sentenced in 1990, Mr. Palacios enrolled in and was a participant in the brief psychotherapy group for pedophiles at The Clarke Institute of Psychiatry. He attended all sessions and was an active participant in the group.
30He took part in phallometric testing. He was also the subject of a psychiatric assessment conducted by Dr. S.J. Hucker from the Clarke Institute of Psychiatry. Dr. Hucker concluded after meeting with Mr. Palacios and after reviewing other sources that Mr. Palacios suffered from the psychiatric condition of paedophilia. In his report he stated Mr. Palacios was forthcoming about his past and that Mr. Palacios acknowledged that he was indeed a pedophile, something according to Dr. Hucker is unusual for most pedophiles. Mr. Palacios confessed to Dr. Hucker, during the course of the meetings, that there were at least 20-30 other incidents of sexual abuse during this time frame.
31At this time Mr. Palacios also contacted the mother of one of the present victims of sexual assault to tell her what he had done to her son. The mother spoke to her son. The son, not being ready to disclose the truth, denied everything to his mother. Mr. Palacios however provided her with the details of his acts and told her he was being truthful. He wanted to apologize for his behaviour.
32Dr. Hucker found that Mr. Palacios appeared willing to address his illness in a positive manner by taking recommended therapies. Dr. Hucker stated that although paedophilia is an illness that cannot be cured he believed that Mr. Palacios was in a position to control the illness because Mr. Palacios acknowledged the illness, engaged in appropriate treatment, demonstrated empathy towards the victims and had the ability to function heterosexually.
33After serving a 90-day intermittent sentence, Mr. Palacios was subject to a 3-year probation order. I am told he attended all counselling and programs. After the probationary period was over Mr. Palacios continued to attend for counselling and therapy to address and control the illness.
34He has not reoffended in 30 years.
35Mr. Palacios pleaded guilty to the offences before this Court. Shortly after his arrest on the offences, Mr. Palacios enrolled once again in counselling. Because of the stress of the proceedings and the nature of the proceedings, he attended therapy to ensure he minimized any risk he may present to the community. He attended at the offices of Dr. Lisa Doupe. Dr. Doupe is a doctor who has a special interest in the treatment of high-risk behaviours and also has experience dealing with sex offenders. Mr. Palacios attended 17 groups sessions and 14 individual sessions. She concluded that Mr. Palacios is able identify his stressors and needs and is able to appropriately access therapy.
36Mr. Palacios was also assessed by Dr. Julian Gojer and Dr. Lisa Ramshaw. Both are well-respected forensic psychiatrists in Toronto. Both Drs. Gojer and Ramshaw diagnosed Mr. Palacios as suffering from homosexual paedophilia. They state that Mr. Palacios shows no signs of having a personality disorder which would be a negative factor when assessing his risk. They also both agree that given Mr. Palacios' insight into his illness, the pro-social life Mr. Palacios has lead over the last 25 years and the intensive therapy he has undergone in his life, that his risk to re-offend is low. Dr. Ramshaw says the risk is low to moderate.
POSITION OF THE CROWN
37The Crown argues the appropriate sentence is 2 years less 1 day in jail. Ms Faria argues this sentence properly reflects general deterrence and denunciation while at the same time recognizes the rehabilitative steps Mr. Palacios has taken over the last 20 years. The Crown argues that child sexual assault must be denounced in the strongest of ways. In this case, the victims were young boys. The abuse went on for several years. Ms Faria argues that Mr. Palacios breached a trust relationship he developed with at least three of the boys. He groomed the boys. Ms Faria argues the Court must not lose sight of the profound impact the sexual abuse had on the victims. It is for these reasons the Crown argues that a straight jail sentence and not a conditional sentence is appropriate. She argues the imposition of a conditional sentence does not adequately address the principle of denunciation and general deterrence in the sentencing of sexual offences against children.
DEFENCE POSITION
38Mr. Rubel on behalf, of Mr. Palacios, submits that the appropriate sentence is a conditional sentence. Mr. Rubel submits that the unique facts and circumstances of this particular case separate and distinguish it from circumstances often found in cases involving child sexual assault or sexual abuse.
39In support of his argument, Mr. Rubel submits it is important to look at what took place at the sentencing hearing held in 1990 when Mr. Palacios pleaded guilty to sexually assaulting 4 boys. At that time, Mr. Palacios disclosed that there were more than the 4 incidents of sexual abuse he was being sentenced for. He told the psychiatrist that in and around the same time period, (1980-1987), there were 20 or 30 other incidents. Mr. Rubel argues the acts Mr. Palacios spoke of appear to be the present offences. The time frame is the same and there is factual similarity between all offences. Mr. Rubel argues that Mr. Palacios has never tried to hide his sexually assaultive conduct during those years and in fact attempted to be forthright about it 20 years ago.
40Mr. Rubel argues that Mr. Palacios' disclosure of other incidents of sexual abuse coupled with the treatment and therapy he underwent in the 1990s and is presently undergoing demonstrate genuine remorse and significant insight into his illness. He argues, therefore, it is one of those unique cases where all sentencing principles and objectives can be properly addressed by the imposition of a conditional sentence.
AGGRAVATING FACTORS
41There are several aggravating factors that I must consider in fashioning the appropriate sentence:
Mr. Palacios was convicted in the past for similar offences.
There are multiple victims.
All the victims were children at the time of the commission of the offences.
Mr. Palacios was in a position of trust regarding some of the victims.
There was an element of grooming to Mr. Palacios' actions in relation to some of the boys.
For R.S.B, B.M. and J.M. the sexual abuse was repeated and took place over a lengthy period of time.
All the victims in this matter have been dramatically impacted by the actions of Mr. Palacios.
MITIGATING FACTORS
42There are also mitigating factors to consider in determining the appropriate sentence.
Mr. Palacios pleaded guilty demonstrating his acceptance of responsibility for his actions.
Mr. Palacios disclosed to the professionals in 1990 that there were more incidents of sexual abuse.
Mr. Palacios is remorseful for his actions.
Mr. Palacios has not re-offended in 30 years.
Mr. Palacios successfully engaged in significant therapy and treatment to address the psychiatric condition of paedophilia.
Mr. Palacios continues to engage in the same therapy and treatment.
Mr. Palacios has support in the community. He is employed and has a support network of family and friends.
THE LAW
43Both counsel have provided me with many authorities in an attempt to assist me in arriving at an appropriate and just sentence. I have reviewed all the cases provided.
44Section 718.01 of the Criminal Code in fact sets out:
"718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct."
45Needless to say, the authorities hold that the sexual of abuse of children must be strongly denounced in our society. It does not matter that there is an absence of physical violence or force used during the commission of a sexual assault upon a child; the fact remains that the psychological damage done to a child victim of sexual abuse is profound and devastating. The courts, therefore, must deal with perpetrators of child sexual assault in a way that properly reflects society's desire to protect children. (R. v. Stuckless, 41 O.R. (3rd) 103)
46Courts have repeatedly held that in cases of child sexual assault where there are either elements of grooming, evidence of a trust relationship between the parties, evidence showing the sexual abuse is repetitive and occurs over a long duration that deterrence and denunciation must take precedence over rehabilitation. (R. v. Batte, [2000] O.J. 2184; R. v. D.D., [2002] O.J. No. 1061)
47The Crown relies upon authorities from the Ontario Court of Appeal that determine that the imposition of a conditional sentence in many cases of child sexual assault simply will not adequately reflect the principle of denunciation. (R. v. Alfred, 122 C.C.C. (3rd) 213; R. v. P.M., [2002] O.J. No. 644; R. v. G.C.F., O.J. No. 3177 (ON CA); R. v. Crommien, [2002] O.J. No. 354)
48Further in R. v. MacNaughton, [1997] O.J. No. 4102 (ON CA) the Court stated at Para 7:
"In our view it should only be in rare cases that a conditional sentence be imposed in cases of breach of trust involving the sexual touching of children by adults."
49Mr. Rubel reminds the court that although the Courts of Appeal in Canada say that the imposition of a conditional sentence is rare in cases like these, I must be mindful that they do not say it would never be available.
50Sentencing is a highly individualized process. It is almost impossible for two offenders to have the exact same background and be faced with the exact same circumstances. In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 Justice Lebel at page 17 of the judgment reminded sentencing judges:
"The wide discretion granted sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to theses ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred."
51In R. v. V.M., [1999] O.J. No. 2580 Justice Hill of the Superior Court of Justice imposed a conditional sentence after V.M. pleaded guilty to indecent assault. The offences occurred over a 16-month period. The victim was 12 years old and was the young sister in-law of the offender. He took on a parental role to the child, therefore placed himself in a position of trust. The sexual abuse involved was that of sexual intercourse. He had a prior record for sexual assault. Justice Hill found that the offender's guilty plea, his stable record of employment, his committed engagement in therapy and treatment and the fact that he had gone 10 years without committing an offence warranted the imposition of a conditional sentence.
52Further, in R. v. R.L.H., [2000] B.C.J. No. 441 the British Columbia Court of Appeal held that the unique circumstances of the offender in that case allowed for the imposition of a conditional sentence. In that case, the offender was in a position of trust to the four boys. He was involved with the boys through amateur hockey. The offences included acts of intercourse, oral sex and fondling. The Court held at Paras 75 and 76:
"The sentencing judge, accepting those facts, would still have to recognize that these offences all included a breach of trust by the appellant, that the complainants were all teenage boys, that he is a pedophile, and that while his sexual tendencies can be managed and controlled, they can never be entirely eradicated.
Given these circumstances, and bearing in mind particularly Dr. Ogloff's opinion that the appellant has successfully been able to control his level of risk while living in the community for the last 10 years, in my view, a sentence which would have allowed him to continue to live in the community with appropriate supervision, care and treatment was called for. For that reason I think a proper sentence would have been imprisonment for two years less day, to be served in the community on conditions."
53Later in the judgment in support of its decision to impose a conditional sentence, the Court states at para 81:
"Both Dr. Malcolm and Dr. Ogloff appeared to agree, however, that the treatment the appellant received in 1989 and following was successful, and that all of his offences including those for which the present sentences were imposed, occurred before that apparently successful treatment was received by him."
54Although it is the norm that a period of straight incarceration is imposed in cases of child sexual assault there still may be unique circumstances where a sentencing judge can be satisfied that the important principles of general deterrence and denunciation can adequately addressed by the imposition of a conditional sentence.
55Both Crown Counsel and Defence Counsel agree that a period of incarceration is warranted in this case. What I must determine is whether the term of incarceration should be served in a penal institution or whether the term of incarceration should be served in the community.
ANALYSIS
56In criminal proceedings, sentencing is meant to reflect and reinforce the basic values of our society. Accordingly, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.
57The sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.
58The sanction that the court imposes should have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.
59No sentence this Court imposes can undo the pain and trauma that has been experienced by the victims in this matter. What this Court must do, however, is ensure that the sentence properly takes into consideration the nature of the crime and the circumstances of the offender and place appropriate emphasis on each of the aforementioned sentencing objectives.
60In order for me to consider a conditional sentence I must turn to s. 742.1 of the Criminal Code of Canada. S. 742.1 reads:
"742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's compliance with the conditions imposed under section 742.3. 1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1."
61The first three criteria set out in s. 742.1 are necessary conditions that must be satisfied before a conditional sentence will be imposed. If these criteria are met the final question to be determined is whether the imposition of a conditional sentence will adequately address the necessary sentencing principles and objectives including general deterrence and denunciation.
62Mr. Palacios has been found guilty of offences which do not call for a minimum sentence. The first criterion, therefore, has been met.
63The Crown submits that Mr. Palacios should be sentenced to 2 years less one day. The Crown, therefore is not asking the Court to consider a sentence above 2 years. I am of the view that a sentence less than 2 years in appropriate, therefore, the second criterion is satisfied.
64Mr. Palacios has convictions for similar offences. These offences postdate the offences before me.
65Mr. Palacios pleaded guilty, thereby accepts full responsibility for his actions and is genuinely remorseful for his actions. He has taken many steps over the last 25 years to address paedophilia in a way to ensure the illness is properly and meaningfully controlled in the community. He has been under the care and guidance of several psychiatrists, doctors and counsellors to help him develop insight and strategies to control his paedophilia.
66The insight Mr. Palacios has developed in regards to paedophilia is something Dr. Ramshaw and Dr. Hucker state is unusual for pedophiles. Both Dr. Gojer and Dr. Ramshaw agree that Mr. Palacios' pro-social behaviour for decades, his positive coping strategies and his insight into his illness make him a low risk to re-offend. He has not offended in over 30 years. For these reasons the risk to the community, should Mr. Palacios be granted a conditional sentence, in my view, is low if not minimal. The third pre-condition for the granting of a conditional sentence has therefore been satisfied.
67I now turn to whether the imposition of a conditional sentence in this case is consistent with the fundamental purpose and principles of sentencing, specifically general deterrence and denunciation. I note that no category of offence is presumptively disqualified from the imposition of a conditional sentence so long as the statutory criteria are met.
68Mr. Palacios is a 53-year-old man. He is fully employed and financially supports his family. His wife, although presently estranged, still supports him and resides with him. He has the love and support of his children who are fully aware of their father's psychiatric diagnosis, his prior criminal convictions and his ongoing therapy. He has friends and other family members who have also stood by him through this trial process. He therefore enjoys support of family and community.
69In 1990 Mr. Palacios was convicted and sentenced for 4 similar offences. Prior to his sentencing he underwent significant psychiatric assessments and evaluations. He attended for phallometric testing and attended for individual group counselling for sex offenders. The experts who prepared reports and who testified before the sentencing judge in 1990 all found Mr. Palacios to be open and honest about his illness and to be motivated to engage in behaviours that would control the illness.
70In Dr. Hucker's August 16, 1990 report at page 3 of Tab 7 of Exhibit 1 he states:
"Mr. Palacios was always polite and cooperative with us. He impressed as business-like in his dress and manner and looked slightly older than his chronological age. In his group therapy sessions he has been forthcoming and has been an active and regular participant. He has shown himself capable of self-awareness and empathy. Although he believes the program has been helpful he admits he still has 'a way to go' and is both prepared and keen to continue. He expressed some relief that his behaviour has been brought to light and pleased that professional help has been available"
71At the time Mr. Palacios was undergoing assessment for 4 sexual assaults he told Dr. Hucker there were 20-30 other incidents of sexual abuse in and around that same time frame. This information was reported to the Court and the Crown Attorney during the course of Dr. Hucker's testimony at Mr. Palacios sentencing hearing. Mr. Palacios, therefore, made no effort to hide from either the doctors or the Court the other incidents of sexual assault. His disclosure appears to be an attempt to address all past incidents of sexual abuse.
72Mr. Palacios also went one step further in his acknowledgment of other incidents of sexual abuse. In 1990 he contacted one of the mothers of the present offences to confess to her that he had sexually abused her son years earlier. He wanted her to know and wanted to apologize for his actions.
73His disclosure to and cooperation with the psychiatric professionals coupled with his confession demonstrates, in my view, genuine remorse for all of his early anti-social behaviour and a genuine willingness to properly address his psychiatric illness so he never engages in sexually inappropriate acts again.
74He has engaged in therapies and treatment to ensure that he does not re-offend. He knows that paedophilia is not curable and he knows he must conduct his life in a manner where he has control of the illness. The fact that Mr. Palacios has not re-offended in over 30 years demonstrates that he has been successful in treatment.
Dr. Gojer in his report states (Tab 12- page 15 –Exhibit 1):
"...I have rated him on the SVR 20 a guided risk assessment instrument and he scored low on this test. The lengthy history that has elapsed since his last offending supports the SVR 20 findings that he is a low risk to reoffend sexually."
75Dr. Ramshaw in her report (Tab 13- page 3-Exhibit 1) states:
"Protective factors against the risk of re-offending include the absence of evidence of sexual offending behaviour for about 25 years, the absence of an alcohol abuse disorder, the lack of a personality disorder, his pro-social lifestyle with pro-social values, and that he is not exclusively paedophilic (he has sexual relationships with adult females). Further he has been involved in treatment and is apparently motivated not to re-offend, he has been forthcoming (which is unusual with sex offenders), and he has responded to sanctions. As well, he understands how to avoid high-risk situations, and he has supports."
76Mr. Palacios is motivated to and, in fact, has controlled his paedophilic desires over the last two and one half decades to ensure he does not re-offend. He has insight into the illness, he recognizes what triggers the illness, and knows what psychiatric and psychological treatment and therapies are necessary and available. His family and friends are fully aware of his present and past circumstances surrounding paedophilia. They are a support network to him.
77I am mindful of the serious facts before me. Mr. Palacios had a series of relationships with young boys. He befriended them, he took steps to gain their trust and then breached that trust by violating their sexual integrity at an age where the boys were developing an understanding of their own sexuality. For some of the boys, specifically R.S.B., B.M. and J.M. the abuse took place over a 2-3 year period.
78The Court is mindful of the psychological and emotional damage that flows from sexual abuse of any kind of a child. The Court is also aware that people who experience sexual assault as children will have their own individual reactions to the particular sexual abuse they suffered. The impact of sexual assault is personal and very real to the individual. It is not up to this Court to define and quantify how a particular victim of a particular sexual assault is impacted.
79In this case I accept the victims were negatively affected and impacted by the many instances of fondling they endured.
80From a legal perspective however, in assessing the aggravating factors surrounding the specific sexual acts before me, I note there is no suggestion of either penetration and or fellatio. There is also no suggestion of actual physical or verbal violence perpetrated on the victims. Further, at no time were the victims told not to disclose the sexual abuse for fear of violence or retribution.
81The late disclosure of the present offences occurred because the victims were at a stage in their lives where they were mentally and emotionally ready to talk publically about their experiences. That is their right.
82Mr. Palacios however, through his actions in 1990, demonstrated that he was prepared to admit and deal with all the incidents of gross indecency he committed. He never attempted to hide his actions and behaviours. He disclosed to the professionals that there were other incidents of sexual abuse. He reached out to a parent of one of the present victims to confess his actions. He was prepared to accept the consequences for all of his actions in 1990.
83Further, he took significant and committed steps to address his diagnosis of paedophilia. All of the past and present psychiatric and other medical/counselling reports show that Mr. Palacios has insight into his illness, that he is receptive to treatment and that the treatment he has done so far has been effective.
84I accept Mr. Palacios is remorseful for his actions. He read a statement to the Court where he addressed and recognized the pain he caused to the present victims. He apologized to them for his actions.
85His guilty plea has avoided what would have been a long and emotional trial. The men have been spared from having to publically relive the abuse they experienced 30 years ago. Although they still carry scars and trauma from those experiences, hopefully Mr. Palacios' public acknowledgment of what he did to them and what he took away from them will be a big step towards their recovery.
86Keeping in mind the many unique factors surrounding this case, I find that general deterrence and denunciation can be adequately addressed by the imposition of a conditional sentence. Mr. Palacios has demonstrated through his actions over the last 25 years, that he is not an intolerable risk to the community.
SENTENCE
87Mr. Palacios will be sentenced to 2 years less one day. He will serve the sentence in the community. He will be subject to the following mandatory conditions:
Keep the peace and be of good behaviour;
Appear before the Court when required to do so by the Court;
Report in person today to a supervisor and thereafter report when required by the supervisor and in the manner directed by the supervisor;
Remain within the Province of Ontario unless written permission to go outside the Province is obtained from the Court or the supervisor;
Notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation;
88Further:
For the first 8 months of this Conditional Sentence Order, you will remain confined in your residence except for the purpose of employment, medical appointments, sex offender counselling, psychiatric and/or psychological counselling and legal obligations regarding compliance with this Conditional Sentence Order. You shall provide to your Conditional Sentence supervisor proof in writing of your work schedule and medical/counselling appointments. The supervisor in his/her discretion will incorporate these into a written letter of permission to be out of the residence and that letter shall be carried on your person while out of the residence, and you are obliged to produce it to a police officer upon demand. You may obtain from your supervisor written permission to be absent from your residence for any reason deemed appropriate by the supervisor. Such written permission shall be carried at all times on your person while outside your residence and produced on demand to police officers. You may be outside your residence each Saturday between the hours of 12:00 P.M. and 4 P.M. for the purposes of attending to your personal needs;
For the second 8 months of your Conditional Sentence, you will obey a curfew: Be in your residence 7 days per week between the hours of 11 P.M. and 6:00 A.M. unless permission is obtained in writing from the supervisor or his/her designate.
89For the full period of your Conditional Sentence you will:
Abstain from owning, possessing or carrying a weapon including any offensive weapon/ammunition/explosive substance or weapon as defined by the Criminal Code;
Attend a treatment program for sexual offenders with paedophilia and sign any and all necessary releases so that the supervisor can confirm your attendance in that program;
Attend as directed from time to time upon Dr. Lisa Doupe or her designate, for the purpose of such counselling and treatment as may be recommended, except you shall not be required to submit to any treatment or medication without your consent. If you do not consent to the form of medical treatment or medication which is prescribed or recommended, you shall forthwith report to your supervisor and thereafter report every 72 hours to him/her;
Provide a copy of this Order to the treating doctor and/or counsellor and also provide him/her with the name, address and telephone number of your Conditional Sentence Supervisor;
You are to have no contact directly or indirectly with the identified victims or any member of their immediate family;
You are not to be within 100 meters of anywhere near where the identified victims live, work, attend school or happen to be as known by you;
You are not to attend any park, school ground, community centre or public swimming area unless accompanied by an adult who has been approved of by your conditional sentence supervisor;
You are to sign such releases as are necessary to authorize your treating physician, counsellors and or their delegates to disclose any and all details of your progress and treatment to your supervisor, including any failure to take prescribed medication or to attend for counselling or treatment.
90Following your Conditional Sentence, you will be placed on probation for 2 years. You will:
Keep the peace and be of good behaviour;
Appear before the Court when required to do so;
Notify the Court or the probation office in advance of any change of name, address, employment or occupation;
Report in person to a probation officer as directed and thereafter be under the supervision of a probation officer or a person authorized by a probation officer to assist in your supervision and report at such times and places as that person may require;
Abstain from owning, possessing, or carrying any weapon as defined by the Criminal Code;
Attend and comply with a treatment program for sexual offenders who suffer from paedophilia and sign the necessary consents and releases so the probation officer can confirm your attendance;
Attend for any other counselling as recommended by your probation officer and sign the necessary releases in order that your probation officer can monitor your attendance;
Not attend at any park, school ground, community centre or public swimming pool unless accompanied by an adult and with the permission of your probation officer;
Not to have any contact directly or indirectly with the identified victims or any member of their immediate family;
Not to be within 100 meters of anywhere the identified victims live, work, go to school or happen to be as known by you.
91I am satisfied that it is in the best interests of justice to make an order authorizing the taking of samples from Mr. Palacios for the purpose of DNA testing. In arriving at this conclusion I have considered the nature and circumstances of the offences, Mr. Palacios' history and his psychiatric diagnosis of paedophilia. The impact on Mr. Palacios privacy and security is minimal.
92Pursuant to section 490.012 of the Criminal Code, Mr. Edward Palacios is required to comply with the Sex Offender Registration Act for life. Mr. Palacios has not established that the making of such an order would have a grossly disproportionate impact on his privacy or liberty, in view of the public interest in protecting society through the effective investigation of crimes of a sexual nature to be achieved through the registration of information relating to sex offenders. In particular, Mr. Palacios is required to report to the Registration Centre at the Office of the Toronto Bail and Parole Unit, 2440 Lawrence Avenue East, Scarborough within 15 days.
Released: April 4, 2012
Signed: ________________________________
Justice Rebecca Rutherford
