WARNING

The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(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

(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

Date: June 12, 2018

Court File No.: Newmarket 16 07222K

Between:

Her Majesty the Queen

— and —

L.W.

Before: Justice David S. Rose

Heard on: May 31, 2018

Oral Reasons for Sentence released on: May 31, 2018

Written Reasons for Sentence released on: June 12, 2018

Counsel:

• C. Goodier, counsel for the Crown
• D. Reeve, counsel for the accused L.W.

Reasons for Sentence

Justice David S. Rose:

Overview

1On January 25, 2018 I found L.W. guilty of Sexual Interference with a person under 16 years old, namely H.C., between 1 September 2011 and 1 February 2013, and also Sexual Assault against H.C. in the same time period. In accordance with the principles of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, the Sexual Assault count was stayed. The conviction was therefore registered under s. 151 of the Criminal Code. The trial had proceeded as an Indictable one, the Crown having made that election, and L.W. having elected a trial in this Court.

2Two matters were before me on May 31, 2018: an Application under s. 11(b) of the Charter to stay the case for unreasonable delay; and a Sentencing. I dismissed the 11(b) Application for oral reasons and heard sentencing submissions. At the end of the day I sentenced Mr. W. to 90 days in jail. These are the written reasons for those decisions.

3Mr. W. was charged with Sexual Assault and Sexual Interference in September of 2016. The information was sworn to on 22 September 2016, and covers allegations from September 1, 2011 to February 1, 2013. Mr. Reeve appeared as counsel on the first appearance and the case was judicially pre-tried and ready to be set down for a trial in this Court by December 15, 2016. Trial dates of November 27-29, 2017 were then set.

4The case appeared before me on Monday November 27, 2017 for commencement of the trial, but a disclosure issue arose. The complainant had been interviewed on Friday, November 24, 2017 and provided some additional information. The Crown disclosed that to Mr. Reeve on November 26 – only two days later, but still the day before the trial. The new statement spoke to issues of grooming on the part of Mr. W. Because of the new disclosure the case was adjourned until January 8, 2018 to commence. The evidence was complete by January 10, and reasons for judgment were released on January 25. Mr. W. was found guilty of sexual interference under s. 151 of the Criminal Code. There was no waiver of any delay by the defence.

5The period from laying the Information to the finding of guilt is therefore 16 months plus 3 days, which is well within the 18 month guideline announced the Supreme Court of Canada in R. v. Jordan, 2017 SCC 31. Given that calculation Mr. Reeve fairly conceded that the period up to the time of the finding of guilt does not violate Mr. W.'s 11(b) rights.

6On January 25, 2018 a pre-Sentence report was requested and the case went over to April 3, 2018 for Sentencing. On that day a legal issue came up flowing from the fact that the offence for which I convicted Mr. W. had a date starting in 2011 and ending in 2013. In March of 2012 Parliament amended the penalty provision of s. 151 to raise the mandatory minimum sentence from 45 days, to 1 year. The Safe Streets and Communities Act, S.C. 2012, c. 1, replaced the previous 45 day minimum sentence of imprisonment for sexual interference where the Crown proceeded by Indictment with a minimum 1 year jail sentence. That provision was proclaimed in force on August 9, 2012.

7On January 25 Mr. Reeve asked for a pre-sentence report, and Ms. Goodier needed time to get victim impact statements. In this building it takes about 8 weeks for an out of custody pre-sentence report. Sentencing was therefore adjourned to April 3.

8The case was ready for sentence on April 3, 2018. The pre-sentence report was completed. The victim impact statements were read to me in Court and filed. The offender had filed supplementary character letters. But another issue arose on April 3, a legal one. Mr. Reeve sought to rely on recent decisions which struck down the mandatory minimum sentence under s. 151. The Crown argued that the previous mandatory minimum 45 day sentence was appropriate, prior to amendment of the penalty provisions which raised the mandatory minimum to 1 year. This was struck down in a number of decisions by the Superior Court, see for eg R. v. Hussein, 2017 ONSC 4204. The legal issue was, given that the delict period governing this case covered both before and after the increased penalty which was itself struck down, whether the previous 45 day minimum sentence was appropriate. This was the Crown argument, and I asked for written submissions to help me decide that. The Crown argument was something of a new twist to the case but it was not one which is entirely frivolous. The only reason the case could not be completed on April 3 was the additional legal argument.

9Mr. W. has been on release up to May 31, 2018. Mr. Reeve does not allege any specific prejudice to him.

Sentencing Facts

10After trial I found that the Crown had proven that L.W. kissed the complainant on the lips several times over that time period, although there is no precision on the exact number. She was 10 years old when this started. L.W. would have been 79-80 years old at the time. He is now 85 years old.

11A significant component of the trial was evidence that L.W. is a violin teacher, and H.C. one of his students. The kissing took place at L.W.'s condominium where he taught all of his students. Initially H.C. had her mother, also an accomplished musician, in the room, but later the lessons took place alone. There was also an allegation that L.W. touched H.C.'s breast, but I had a reasonable doubt about that limb of the charge.

12There was no dispute at trial that L.W. teaches musicians to play at the elite level. Whether H.C. was one of those elite musicians was one of the issues which came up, but for present purposes it is sufficient to find that L.W. has taught many persons to play violin on the world stage. Some of those came to court to testify about how instrumental L.W. was in preparing them for further musical studies at elite schools or playing in top orchestras. I minimized the weight of the character evidence that they gave because none of them were asked by L.W. if he could kiss them on the lips as he admitted asking H.C. I found that they were treated differently than the complainant in that regard. That said, for sentencing they provide a basis on which I can conclude that L.W. played a valuable part in training young persons to play the violin at a very high level. There is no evidence, or suggestion, that L.W. kissed any of his other students as he did H.C. His conduct as against H.C. is isolated.

13There was evidence at trial about pedagogical disagreements between L.W. and H.C.'s mother. There was also evidence that L.W. spoke of wanting to have oral sex with H.C. These are aggravating factors.

14H.C. read her victim impact statement (VIS) to me in Court. She was 17 at the time of sentencing, and her Grade 12 graduation was imminent. In it she describes being a survivor. Clearly she has suffered pain herself and to her family. She described L.W. as depraved, a liar, a predator, a narcissist, a revolting human being and a sexual deviant. As she put it, "You stole my innocence, forcing me to partake in acts that disgusted me and confused me". Her VIS is quite strongly worded.

15There are aspects of H.C.'s VIS which I must disregard. Her comments about pre-trial resolution discussions between L.W. and the Crown give me concern that otherwise privileged discussions are being relayed back to witnesses. I have concerns that these comments go far beyond the scope of a VIS. I will disregard them. Similarly, H.C. recommends to me that L.W. "deserve(s) the maximum punishment possible in this criminal court". While H.C.'s input in how this has affected her is quite helpful, her proposal as to sentence is not.

16I commend H.C. for emerging from this experience. It is clear from her VIS that her musical career has continued its steep upward trajectory. She is now the concertmaster of a prestigious Youth Orchestra and has recently won musical competitions here and abroad.

17H.C.'s mother also filed a VIS. It is also very strongly worded. She speaks of being destroyed by L.W. who she describes as a "slimy narcissistic 80 year old man". She also recommends that I do not impose home confinement, and instead impose the maximum jail time. I accept the Crown's direction to disregard her recommendation as to penalty, as well as her comments which tend to dehumanize the offender. H.C.'s father also filed a VIS which has similar language. To be clear, the VIS content which describes how this has affected each of the family members is quite helpful and will be given full weight. They are entitled to share that experience with the Court as part of the sentencing process.

18Mr. W. is now 85 years old. He has been a musician since he was very young. He started teaching violin when he was 18 years old in Russia. He is a native of […]. He was an elite level musician here in Canada, and taught many musicians to perform at that level. I have heard from many of them, both at the trial and in the dozens of letters filed at sentence. They are uniformly positive about Mr. W.'s effect on their career. They describe him in quite positive terms. It is clear that Mr. W. has given much to the classical musical community here in Canada.

19The pre-sentence report discloses that Mr. W. has no prior involvement in the criminal justice system. He has had two cardiac bypass surgeries. His various orthopaedic ailments confine him to a wheelchair. He takes many medications for these issues.

20There is no evidence of remorse. This was clear in Mr. W.'s statement to me after sentencing submissions were complete. There is no acceptance of responsibility.

First Issue – the 11(b) Application

21While the Court was quite clear in R. v. Jordan 2016 SCC 27 that the presumptive time limits – 18 months to completion of the trial in this Court – were bright lines, the Court recognized that those time limits might not apply to certain sentencing proceedings. In footnote 2 of Moldaver J.'s decision in Jordan he said that,

This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45 (S.C.C.)). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

See also R. v. Tsega, 2017 ONSC 3090 (Aitken J.); R. v. Swanson, 2017 ONSC 710 (Smith J.); R. v. Patel, 2017 ONSC 5827 (Sutherland J.); R. v. Haniffa, 2017 ONCJ 781 (Kenkel J.).

22In Patel, Sutherland J. heard an 11(b) Application after a conviction for Dangerous Driving had been entered. The sentencing had been adjourned just over 2 months because of the need for a pre-sentence report. While Sutherland J. dismissed that Application on the basis of defence waiver, he went on to provide a list of factors to be considered in determining 11(b) Applications post-conviction. I found them to be quite helpful. They are:

i) total length of the period of time between charge and sentence;

ii) whether the accused is in custody and the length of time the accused has been in custody;

iii) the gravity and substance of the conviction in contrast to the length of time the accused has been in custody;

iv) the reason for the length of time required by the Court to deliberate and render reasons;

v) the time required by both the Crown and defendant to prepare for the sentencing hearing;

vi) the necessity of pre-sentence report and victim impact statement; and

vii) whether the length of time is a marked departure in the specific jurisdiction of the proceeding.

23In this case a total of 20 months and week has passed from the time the Information was sworn to, and imposition of sentence. Mr. W. has been on bail since the time of his arrest in September of 2016. The delay in imposition of sentence was caused by three things: the need for a pre-sentence report, victim impact statements, and legal submissions about mandatory minimum sentences. I find that those were obtained promptly. It is clear to me that there was no delay in Probation drafting their pre-sentence report, or the Crown in obtaining victim impact statements. Once the legal issue arose both Ms. Goodier and Mr. Reeve worked quite diligently to make their arguments in writing so that by May 31 the oral submissions were quite truncated. I also find that the pre-sentence report was important to imposition of an appropriate sentence given the facts heard at trial and Mr. W.'s age. If the defence had not requested one I would have wanted one. Lastly, the delay from the finding of guilt to the imposition of sentence was 4 months, is only a slightly longer delay than most sentencings in Newmarket. That period of time nowhere approaches a marked departure. For these reasons the 11(b) Application is dismissed.

Second Issue – What is the Appropriate Sentence?

24The aggravating factors in sentencing Mr. W. include:

i) The breach of trust as between teacher and 12 year old pupil;

ii) The length of time that the kissing took place, which was approximately 2 years;

iii) The fact that Mr. W. discussed oral sex with H.C. which is concerning;

25The mitigating factors include:

i) His age;

ii) His lack of criminal antecedents;

iii) His contribution to the musical community over the last several decades;

iv) His poor health;

v) That the nature of the sexual interference was confined to kissing, which was at the lower end of invasiveness of illicit sexual contact.

Is there a Mandatory Minimum Sentence of Imprisonment?

26The Crown asked me to find that, in law, a 45 day minimum custodial sentence was in effect because that was the sentence before Parliament increased the mandatory minimum to one year. The one year mandatory minimum sentence has been struck down by order of the Superior Court. A history of that jurisprudence is authoritatively summarized in R. v. Hussein, 2017 ONSC 4204 (Code J.), and there is no need to repeat it here. Where there is no mandatory minimum sentence of imprisonment by order of the Superior Court, it is not in my jurisdiction to then 'read up' s. 151 (a) to reflect a previous mandatory minimum sentence of imprisonment which was otherwise Constitutionally sound; see R. v. S.A., 2016 ONSC 5355 (Del Frate J.). Put bluntly, once the Superior Court struck down the one year mandatory minimum there is nothing for this court to read down until an Appellate Court reverses Hussein (supra) et al., or Parliament chooses to amend the law.

27The Crown's argument in favour of a 45 day minimum mandatory sentence has another insurmountable obstacle in s. 11(i) of the Charter, which is,

11. Any person charged with an offence has the right

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

28On its face, the text of s. 11(i) seems to squarely address the Crown's argument. Mr. W. was found guilty of an offence which carried a 45 day mandatory minimum sentence of imprisonment. In August of 2012 Parliament replaced that penal provision with a 1 year mandatory minimum sentence, but that mandatory minimum has been struck down in entirety. Any 45 day mandatory minimum sentence of imprisonment has therefore been varied by order of the Superior Court to one of no mandatory minimum at all.

29As The Supreme Court of Canada recently found, s. 11(i) is grounded in fundamental rule of law considerations inherent in a liberal democracy; see R. v. J.(K.R.), 2016 SCC 31. Laws should generally not operate retrospectively (J.(K.R.) at para. 23 – 30), and to go back to the 45 day mandatory minimum which was replaced by Parliament in 2012 would do just that. The Crown argument cannot survive s. 11(i) scrutiny.

30On May 31, 2018 I imposed a 90 day sentence of imprisonment on Mr. W. for reasons provided here, so the legal argument about whether there is a 45 day mandatory minimum jail sentence is admittedly moot.

Sentencing an Elderly Offender

31One of the challenges presented in this case is that of sentencing an elderly offender. As Ruby et al put it, "The age of an offender, particularly past 60 years, is a serious factor to be considered in mitigation, especially where it is combined with evidence of good character" Ruby, Chan, Hassan, and Enenajor Sentencing 9th ed. LexisNexis 2016 at page 293. Mr. W. is elderly and in failing health. Between the finding of guilt and imposition of sentence he sent me communication in the form of a posted letter – by-passing his lawyer. I sent it directly to Mr. Reeve unopened, and copied Ms. Goodier with the cover letter to inform her that this had happened – so I don't know what he wanted to tell me directly. In making a pre-sentence statement Mr. W. repeated his testimony in part. It would be too narrow to see his pre-sentence comments to me in Court as merely a denial of responsibility. He seemed to me a bit confused about what I was about to do, namely impose sentence. He has been ably represented throughout by Mr. Reeve. Yet I have concerns that he is showing clear signs of cognitive decline. No issue was raised throughout these proceedings that he was otherwise fit to stand trial, but I would be remiss if I did not find that he is in that cognitive condition – as many 85 year old persons are.

32Whereas Parliament has clearly turned its mind to how to deal with offenders who are younger than 18 years old on the basis of their lack of cognitive development, it is incongruous that there is no legislative enactment about how to sentence elderly offenders who have similar cognitive limitations, although for very different reasons. Part XXIII of the Criminal Code has nothing equivalent to sentencing provisions of the Youth Criminal Justice Act which mitigate the effects of a sentence on a person under the age of 18.

33In R. v. W. (A.G.) (2000), 2000 CanLII 5641 (ON CA), 130 O.A.C. 78, a majority of the Court of Appeal upheld a non-custodial sentence for an elderly offender who was convicted of incest and sexual assault. The facts were historical and the offender was, in the eyes of the sentencing Court "a 78 year old hapless, pathetic, feeble man." The sentencing judge concluded that a custodial sentence would amount to a death sentence because of deteriorating health. Abella J. in her dissent, would have overturned the sentence on the basis that the seriousness of the offence outweighed the mitigating effects of declining health of the offender. In her dissent, Abella J. pointed out that the Court of Appeal had upheld lengthy custodial sentences for elderly offenders convicted of serious sexual offences. From this, I find that the mitigating effects of the advanced age of an offender must, in each case, be balanced against the aggravating factors including nature of the conduct.

34I therefore find that, in sentencing Mr. W. I must consider his age and cognitive decline carefully as a mitigating factor. It must not be glossed over. In sentencing Mr. W., qua octogenarian, I consider the current state of his health, both physically and mentally, his requirement for ongoing care, his level of responsibility due to mental acuity, and the prospect that a custodial sentence may have him die a natural death in jail.

Sentencing Offenders for Sexual Interference

35Sentencing decisions for sexual interference display a wide range of dispositions. At one end is the non-custodial sentence in R. v. J.G., 2017 ONCJ 881, where the age difference between the offender and victim was only 5 years and 35 days. At the other end is the egregious sexual violation of a young person by a predatory person in authority which leaves scarred victims in his wake. That conduct attracts mid to upper single digit penitentiary terms; see R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 157 O.A.C. 323; R. v. D.M., 2012 ONCA 520. In R. v. R.S., [2017] O.J. No. 1096, Olver J. gave an 84 year old offender a 12 year sentence for repeated sexual violations of three young complainants over 9 years. The delicts included forced intercourse, fellation and masturbation. Therefore, the mitigating effects of age, as in R.S., can sometimes be of minimal significance when balanced against strong aggravating factors.

36At the lower end of the spectrum are cases where the sexual touching is not as invasive as cases such as R.S. (supra). For example, in R. v. S.A., 2016 ONSC 5355, Del Frate J. imposed a 90 day intermittent sentence for a 45 year old offender who both touched the complainant underneath her underwear and on her vagina, and later discussed having sex with her and touched her on the shoulder. In R. v. T.D., 2011 ONCJ 106, the offender received a 14 day sentence after pleading guilty to sexually touching his 15 year old daughter under her underwear on her breast and buttock area.

37This case engages the youth of the victim and breach of trust as aggravating factors in s. 718.2 of the Criminal Code. Section 718.1 applies to push deterrence and denunciation to the forefront of sentencing objectives. Because of these considerations, a custodial sentence is called for.

38A just sentence in this case must balance the aggravating circumstances, principally the breach of trust component and the sexual nature of the kissing against the many mitigating factors. This is not an exercise in precision. I would impose the maximum intermittent sentence – 90 days – in order to achieve all required sentencing objectives. Anything beyond that would be crushing to Mr. W. and I find would be unnecessary to achieve the required sentencing goals.

39There will be a SOIRA Order for 20 years. Sexual Interference is a Primary designated offence under s. 487.04, and Mr. W. will provide a sample of his DNA for submission to the DNA databank. There will be a s.161 order for 10 years.

40Once Mr. W. completes his sentence he will be placed on probation for 2 years. The terms will be as outlined as in the PSR, namely:

• Report to a Probation Officer as directed.

• No contact directly or indirectly with H.C. or any member of her immediate family;

• Not to be within 500 metres of any place known to be the residence, school, employment or anywhere else H.C. or her family frequents is known to be;

• Do not seek or obtain any paid or unpaid activity with anyone under the age of 16;

• Not to be in the company or communicate with anyone under the age of 16 years;

• Do not attend any public park, public swimming area, daycare, school playground or community centre where persons under the age of 16 are expected to be;

• Attend and actively participate in any counselling or rehabilitative programs as directed by the Probation Officer, and sign any releases necessary to monitor attendance and completion of those programs, and provide proof of completion of any assessments or counselling or rehabilitative programs.