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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) 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
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence
THE COURT: —(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 —
Vincent Fera
Before: Justice P.N. Bourque
Reasons for Sentence
Released on February 13, 2017
Counsel:
- P. Colavecchia for the Crown
- D. Smith for the Defendant
BOURQUE J.:
Overview
1On January 23, 2017, the defendant pled guilty to three counts of breach of probation. The defendant pled not guilty to four other counts of breach of probation and after a trial lasting three days, I found the defendant not guilty of those further four counts.
2The defendant had been charged in October 2013 with several offences of accessing and possessing child pornography. He was released upon conditions, one of which was that he was to not attend at public parks where children under the age of 16 years are present or likely to be present. The defendant was charged with further offences in May 2014 which included making child pornography and he was placed upon a further release order which continued the above noted condition.
3The defendant became romantically involved with one T.M. in 2013 and she became pregnant. She gave birth to their child in 2014. Ms. M. also had two children, A.M. (Born in 2008) and I.M. (born in 2010). The defendant was under house arrest but in accordance with the release orders in effect would visit Ms. M. at her home and on one occasion he went with her and her children to Canada's Wonderland. On one occasion he went with her and her children to The Toronto Zoo. On one occasion he went with her and her children to a park near her home.
Criminal Record
4At the time of these offences, the defendant had no criminal record. The defendant has since pled guilty and been sentenced on December 1, 2016 to the offence of possession of child pornography. He has received a sentence of 3 ½ years imprisonment with various ancillary orders including DNA, SOIRA and an order pursuant section 161 of the Criminal Code. He is still in custody.
5With regard to that guilty plea, the Crown has filed a transcript which contains a lengthy evidentiary record of that offence. I have reviewed that record. I take it into account but I believe that I am not here to re-sentence the defendant for that offence. I do, however, take into account the seriousness of these offences and the strong societal interest in making offenders released on bail fully compliant with all the terms of their release, and especially those which are designed to prevent the occurrence of further offences against children while an offender is on release.
Personal Circumstances of the Offender
6Filed on this hearing was a report dated December 22, 2014 from Dr. Jeff McMaster. While it is dated and may not reflect current circumstances, it does give a background of the offender. He is 44 years old. He has one child (S.M. – 2 years old). He continues his relationship with T.M. His father and mother are supportive of him. He has worked through his life. He has a history of drug abuse (mainly cocaine) and alcohol abuse. He has had several relationships.
Crown's Position
7The Crown has proceeded by indictment. They seek a sentence of two years less a day.
Defence Position
8The defendant asks for a global sentence of 30 to 45 days.
The Law
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
9The Crown urges upon me that this is an offence under section 718.01 as being abuse of a child. She relies upon the case of R. v. Bansfield, [2008] O.J. No 3292 referred to below. With respect, that would dilute significantly the import of that section. I agree that these bail conditions have as part of their purpose the commission of offences against children, the breach of these terms does not, in my opinion constitute a crime against children.
Some Case Law
10The Crown urges upon me the reasoning of Hackett, J. in Bansfield. In that case, the court imposed a sentence of 7 years imprisonment upon a repeat sex offender with a long criminal record for breaching his 161 Order by taking young persons on seven outings to Canada's Wonderland and other places. I believe that while I may get some guidance from that case, I feel that the only commonality is the fact that the breaches were committed in the same fashion. Our offender had no record at the time of the offences. He did not have a negative pre-sentence report. He has not responded negatively to probation. In short, the offender in Bansfield was probably the worst offender that it would be possible to imagine. I note as well that the section 161 order is something imposed after sentence for a child related sexual offence, and thus comes at a time when the charges are proven and the 161 is part of a comprehensive sentence. Some of the objectives are the same but that fact that they come after the finding of guilt is significant.
11The vast majority of decisions dealing with breaches of recognizance involve the breach as part of sentence on other matters, including sex offences. One such case, decided in this jurisdiction is R. v. Bauer, [2008] O.J. No. 5982. In that case Justice Fuerst was dealing with a recidivist offender who plead guilty to the offences of possession of child pornography (two counts), accessing child pornography and two breaches of recognizance. The court pointed out that the breaches were "most deliberate and blatant fashion". He continued to carry on with his accessing of child pornography while awaiting the trial on the original offences. The defendant did not show any real willingness to take counselling and there were few prospects for his rehabilitation. In addition to the two year sentence for the possession of child pornography, the court sentenced the defendant to a further three months incarceration for the two breaches of probation.
12Where breaches of recognizance are sentenced separately, there is huge variety of sentencings from an absolute discharge to the imposition of a year or more in jail.
The Aggravating Factors
The defendant breached the terms of his release on three separate occasions;
The defendant's breaches were deliberate and not inadvertent;
The defendant attended at the public parks with his girlfriend's two children;
The report of Dr. McMaster indicates that "the defendant suffers from pedophilia", (although that report was not prepared until after these offences were committed);
The defendant has a history of drug and alcohol abuse;
The offences for which he was placed on bail had some particularly heinous aspects to them as the defendant actually took cruel advantage of a young neighbour and produced pornographic movies and pictures of her.
The Mitigating Factors
The defendant is not a recidivist sexual offender and at the time of these offences had no previous criminal record;
The defendant has the support of his parents;
The breaches did not involve any other breach of the peace or the commission of any other criminal offence;
The defendant has good employment prospects;
The defendant pled guilty and that is a sign of remorse. I also note that in the charges he contested, he allowed the children's statements to the police to be read into evidence without the need for their testimony.
Analysis and Sentencing
13I am of the view that these are not just technical offences but I should consider the preventative nature of these conditions. Like bail terms imposed on a serious drunken driver to abstain from driving, this is designed to assist the defendant from engaging in other more serious criminal conduct.
14The Crown urges upon me that I should take into account that sometimes pedophiles engage in "grooming" and thus these offences could have been in furtherance of that goal. I did not make any specific findings of fact with regard to that and the Crown never included it in her allegation of facts at the sentencing. There was no expert evidence, or any other evidence filed to support that contention, and I therefore will not specifically take that into account on this sentencing.
15I believe that the sentences in these matters should be consecutive, as they were separate offences, but I must be mindful of the totality principle.
16They are serious offences, but he is not the worst of offenders, nor is this the worst offences. As stated by Justice McLachlin in R. v. Cheddesingh, 2004 SCC 16"A maximum penalty of any kind will by its very nature be imposed only rarely and is only appropriate if the offence is of sufficient gravity and the offender displays sufficient blameworthiness. As always the case with sentencing, the inquiry must proceed on a case-by-case basis."
17I believe that each of these offences should result in a period of imprisonment for two months. That would result in a total period of 6 months imprisonment. I feel however that the principle of totality should be applied to these offences and I therefore sentence him a period of custody of 5 months, concurrent to each other but consecutive any other sentences of imprisonment.
18I have considered a period of probation. I believe that while the section 161 order imposed by Chisvin J. in December 2016 would cover the protection aspects, I believe that some further supervision is required:
There will be a period of probation for 24 months following release from custody.
Report to probation within 7 days of release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;
Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request;
Keep the peace, and be of good behaviour;
Live at a place approved of by the probation officer and do not change without obtaining the consent of the probation officer;
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed;
Make reasonable efforts to seek and maintain suitable work and provide proof of same as required by the probation officer or supervisor.
Signed: "Justice P.N. Bourque"
Released: February 13, 2017