R. v. R.G., 2017 ONSC 1676

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. R.G., 2017 ONSC 1676

COURT FILE NO.: 14-32002

DATE:2017/03/14

B E T W E E N:

HER MAJESTY THE QUEEN

Lisa Miles, for Her Majesty the Queen

• and -

R.G.

Robert J. McGowan, Solicitor for the Accused

Accused

Sentencing submissions heard, March 3, 2017

DECISION ON SENTENCING

JAMES, J.

Overview

1This is a sentencing hearing for R.G. who was found guilty on January 11, 2017 on eight counts of sexual interference following a fifteen day trial reported at 2017 ONSC 1598.

2The details of my factual findings are more fully set out in the trial decision just referred to. I intend to only summarize those findings here but I have considered all the facts in determining what I believe to be an appropriate sentence.

3In addition, Mr. G entered a plea of guilt to one count of breach of recognizance of bail pursuant to s. 145(3) and is to be sentenced for that offence today as well.

Facts

Circumstances of the Offender

4Mr. G is 48 years old. Most of his working career was spent as reservist with the Canadian Forces. Although he was not a regular member of the Forces, he worked as a reservist pursuant to a series of contracts with the military that amounted to essentially full time service. He was released for medical reasons in December 2013 with the rank of Warrant Officer after about 27 years’ service. Prior to his retirement he worked in the Signal Corps as an Information Systems Security Officer under the Director General, Enterprise Application Services. He served at various locations across Canada. The offences involved here took place while Mr. G was living in the PMQs at CFB Uplands in Ottawa.

5He does not have a criminal record.

6He has one daughter, E.G., who is 16 years old. When his daughter was not living with him, Mr. G lived alone.

7He has a variety of medical ailments. These include knee problems that require a brace, he has a reconstructed upper palate and bridge, hearing loss and diabetes. He also suffers from anxiety and depression.

Circumstances of the Offences

8Mr. G was tried on a twenty five count indictment. He was found not guilty on several counts of sexual assault, internet luring, invitation to sexual touching and possession of child pornography.

9Briefly stated, he was found guilty on the basis of performing massages on eight underage girls who were friends of his daughter and who often visited and stayed overnight at his home under the guise of sleepovers. These massages were frequently administered over a lengthy period of time. They often but not always took place in his bedroom on his bed. The girls typically removed their tops to facilitate the massages, usually at the request of the offender, and their upper body was covered only with a scarf. The massages also included leg and thigh massages that involved skin on skin contact. The girls were sometimes willing participants and several said they didn’t think of the massages as having a sexual connotation. At the same time they said they often felt uncomfortable with the physical contact, especially when touched in sensitive areas like the sides of their breasts, their buttocks and near their groin. They said they were induced to permit Mr. G to perform massages in order to reap the benefits of the perks associated with hanging around his house. These perks included trips to a Bulk Barn to buy candy, visits to fast food outlets, drives to the mall and other places of interest to young teenagers and late night outings while sleeping over at his residence.

10In any event, the girls were under age and could not lawfully consent to being touched for a sexual purpose.

11There was evidence of a pervasive and unwholesome preoccupation with sexual matters in Mr. G’s interactions with the victims. He took some of them to try on and purchase lingerie, he made inappropriate comments about their bodies and their appearance and he seemed to forget that he was talking with children when discussing sensitive or adult topics.

12With respect to the breach of recognizance, when Mr. G was released from custody, his bail was subject to the usual no contact order. In violation of this order, Mr. G drove by the school of one of the victims and made eye contact with her.

Legal Parameters

13The Criminal Code provides that a conviction for sexual interference is punishable by a maximum of ten years imprisonment and when the Crown proceeds by way of indictment, as it has here, there is a one year minimum sentence.

Crown Position

14Crown counsel submits that a period of imprisonment of four years would be appropriate on the facts of this case.

15As for the breach charge, Crown counsel acknowledges that if a sentence in the suggested range is imposed, it would be appropriate to make any sentence for the breach offence concurrent to the predicate offences. If, however, the main disposition is for a considerably lesser period of incarceration, the fact that the breach offence is a separate matter should be reflected in a consecutive sentence of 60 to 90 days.

Defence Position

16The defence position begins with the submission that Mr. G has been subject to strict bail terms for over three years and he should be granted a credit equal to one third of the time he was on bail. In basic terms this would satisfy the one year minimum period of imprisonment. Defence counsel argues that having satisfied the minimum sentence provisions of the Criminal Code, Mr. G should be immediately released subject to a probation order. Alternatively, if a period of incarceration is required, he should be sentenced to an intermittent sentence of up to 90 days to be served on weekends. An intermittent sentence would be appropriate because of Mr. G’s medical condition.

Aggravating and Mitigating Factors

17The Criminal Code requires that I consider what aggravating and mitigating circumstances are present in this case in order to arrive at a disposition which is suitable for this particular offender and these particular offences.

18I will deal with what I believe to be the aggravating factors first. Obviously, the fact that there were several victims, eight in all, is an important consideration. Also the victims were young, ranging in age from about 12 to 14 or 15.

19Mr. G engaged in grooming activities in order to facilitate his abuse. By grooming I mean consciously taking steps to gain the trust of his victims, pursuing measures that had the effect of reducing their inhibitions and by offering inducements such as fast food, candy and rides to places they wanted to go to gain compliance with his wishes.

20Another aggravating factor is that this was not an isolated incident. The abuse by Mr. G stretched over a lengthy period, a year or more, and was not brought to an end until one of the victims reported the situation to the authorities. Defence counsel suggested that the offender’s contact with the girls was coming to an end anyway because he had to vacate his residence in conjunction with his military discharge but there is no certainly that the abuse would have ended then. It is just as likely that the mistreatment of the girls could have continued in the offender’s new home, assuming he remained in the city or in relatively close proximity to where some or all the victims lived. Either possibility involves impermissible conjecture and speculation.

21I would also like to address the issue of breach of trust or abuse of authority as an aggravating factor. The lawyers do not agree on whether Mr. G was in a position of trust or authority in relation to the victims.

22In my view, Mr. G was in a position of authority and he took advantage of his position to obtain compliance with his wishes. I would point to the following considerations:

i) He was an adult and the victims were children. More precisely, he was the only adult in the home when the abuse occurred.

ii) The parents of the victims likely thought of him as the supervising adult when they permitted their children to sleep over.

iii) There was ample evidence that Mr. G was the rule maker in his dealings with the girls and he expected his rules to be respected. Most, if not all, of the victims knew he didn’t allow boys at the house and that they could not bring boys over. Mr. G testified about this rule specifically.

iv) Another rule was that the massages had to involve skin on skin contact.

v) He told them when to take showers.

vi) He told them to cover their bits during the massages, thereby suggesting that touching anywhere else was acceptable, and they usually went along with his instruction.

vii) There was a quid pro quo to the massages. If someone asked for a treat or a ride, they knew they could be asked to submit to a massage.

viii) Several victims testified that even though they may have felt uncomfortable about getting massages, they didn’t feel they were in a position to object unless the touching became obviously inappropriate.

ix) He held himself out as an advisor to whom the girls could bring problems or questions. His relationship with the girls was complicated and multi-faceted; at various times he was a friend, a confidante, a big brother, the boss.

23As for mitigating factors, Mr. G does not have a prior criminal record. He has several serious health-related issues. The abuse did not involve violence, threats or aggression. Also, when requested by a victim to stop or not to touch a part of her body, the offender complied with the request.

24Another mitigating factor is the length of time Mr. G spent under stringent bail conditions while waiting for his trial. I will have more to say on this issue later on.

25In addition, in my view, Mr. G does not pose a serious continuing risk to the community. These were crimes of opportunity and it is difficult to imagine a future scenario that could realistically bring into play the unusual combination of circumstances that were present in this case.

Impact on the Victims

26Three of the eight victims chose to provide victim impact statements. I agree with Crown counsel that the decision whether to provide a victim impact statement is a highly personal one. The absence of a victim impact statement from a particular victim does not automatically mean that the crime did not negatively affect the victim. We know from experience that this type of crime can have long-lasting effects on the children who were victimized.

27The three victims who chose to provide statements were clearly affected by their experiences. B.A. said that the challenges and difficulties she has faced as a result of this matter cannot be adequately expressed in words. She said that the emotional impact was severe.

28H.D. said that with the trial pending in late September last year, she was unable to attend school. She said that she has more anxiety now and has developed trust issues with men.

29C.L. said she gets flashbacks of what the offender did to her that make her frustrated and depressed. She finds it hard to be around men, especially men of similar age to Mr. G. She said she has been diagnosed with PTSD and believes that this offence was a contributing factor in her PTSD and anxiety.

30It is not uncommon to hear from victims in terms similar to what has been reported by these young women. I accept that they are experiencing long-lasting negative consequences from their experiences with this offender.

Principles of Sentencing

31It is clear from numerous previous decisions that the primary sentencing principles for this type of crime involve the need for denunciation and deterrence. Although I assess the likelihood that this offender may re-offend as fairly low, the importance of deterring similar-minded individuals must be given a high priority. I am guided by the words of Moldaver J. in the Woodward case¹ when, as a member of our Court of Appeal, he said, “The message to such offenders must be clear—prey upon innocent children and you will pay a heavy price.”

Case Law

32Both counsel referred to several cases in support of their positions on sentencing. The cases provided by Crown counsel tended to involve more egregious circumstances and longer sentences than has been requested here. The cases provided by the defence focused on the granting of credit for onerous bail conditions.

33One case, R. v. Luckhart,² a recent decision by Justice Leach of this court involved an offender who pleaded guilty to sexually abusing five boys over a lengthy period of time. The abuse varied from victim to victim but included the touching and fondling of their genitals both over and under their clothing and masturbation. Justice Leach observed that the offender skillfully manipulated the parents of the victims, the victims themselves and various situations in order to facilitate the abuse. He engaged in grooming activities such as payments for odd jobs performed by the victims.

34Crown counsel in the Luckhart case indicated that the offender accepted responsibility for his actions at an early stage, was clearly remorseful and demonstrated that he had acquired a significant degree of insight into his behaviour.

35Justice Leach sentenced the offender to a global sentence of 29 months prior to credit for pretrial custody, followed by three years’ probation.

36While each case and each offender presents an almost unique combination of circumstances, I found this decision to be a helpful comparator. In both cases there were several victims. The behaviour in the Luckhart case included clear violations of the victims’ sexual integrity but there the offender pleaded guilty and was very remorseful. Mr. G cannot claim the benefit of similar mitigating considerations and the aggravating factors that I have identified in this case are significant. I want to be clear that I am not treating the apparent lack of remorse as an aggravating factor.

Credit for Pretrial Custody and Onerous Bail Conditions

37Defence counsel advised that Mr. G’s pretrial custody amounted to 10 days which translates into 15 days’ credit at 1.5 to 1.

38Mr. G has been on bail for about three years. His bail terms were quite restrictive. He had to live with his parents and was only permitted to leave the house when accompanied by a parent. Defence counsel suggests that he should be granted a credit of one third of this time or one year because of these restrictions. Counsel referred to R. v. Downes³ where our Court of Appeal said that time spent under stringent bail conditions must be taken into account as a mitigating factor although there is no rigid formula that ought to be applied. In Downes, Rosenberg J.A. said that under conditions similar to the situation here the offender should be given five months’ credit for the eighteen months spent on bail.

39Crown counsel indicated that when Mr. G was originally released following his arrest, his bail conditions were not as onerous. It was only after he failed to observe the no contact order that his bail conditions were made more severe. Accordingly, Crown counsel says that while a credit is still appropriate, the amount of credit should be less than would otherwise be granted because of Mr. G’s conduct. She suggested a credit of six to eight months would be appropriate.

40I think that to some extent Mr. G was the author of his own misfortune when he was released under tighter conditions following his second arrest. Also, this is not a situation where he lost out on employment opportunities by reason of a house arrest condition because he had been previously granted a medical discharge from the military and there was no evidence that he would have sought work if he could. However, some credit is warranted and I have concluded that eight and a half months’ credit would be appropriate. This would be in addition to the fifteen days’ credit for Mr. G’s pretrial incarceration.

41Mr. G would you please stand up?

You are hereby sentenced to a period of imprisonment of 27 months on count 1, and 27 months’ imprisonment on each of counts 4, 7, 9, 11, 15, 19 and 22, to be served concurrently. This is equivalent to a global sentence of thirty six months, prior to the credit of nine months which takes into account both your pretrial custody and the stringent bail conditions after you were released.

42In addition, I sentence you to a period of imprisonment of one month for the breach offence in respect of which you entered a plea of guilt. This shall be served concurrently to the 27 months I just referred to. Although Crown counsel described this offence as a serious breach of your bail conditions in asking for a sentence of sixty to ninety days, the fact that you entered a guilty plea warrants a reduction.

Ancillary Orders

43Crown counsel has requested several ancillary orders, some of which are mandatory:

a. There will be a weapons prohibition under s. 109 for 10 years,

b. a DNA order,

c. registration under the Sex Offender Information Registration Act for life,

d. a prohibition order under s. 161 for 10 years:

i) prohibiting you attending a public swimming area, daycare centre, playground or community centre where children under the age of 16 years are present or can reasonably be expected to be present, from seeking, obtaining or continuing any employment, or serving as a volunteer, in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years and,

ii) having any contact - including communicating by any means - with a person under the age of 16 years, unless under the supervision of an adult the court considers appropriate;

e. A no contact order under s. 743.21 prohibiting you from communicating, directly or indirectly, with any of the victims and members of the victims’ immediate family while in custody.

44Standard Victim Fine Surcharge to apply, to be paid on or before December 31, 2018.

Footnotes

1. 12011 ONCA 610, [2011] O.J. No 4216 at para. 42
2. 22016 ONSC 1509
3. 32006 CanLII 3957 (ON CA), [2006] O.J. No. 555