Court File and Parties

COURT FILE NO.: CRIMNJ(P) 1051/15 DATE: 2017 05 29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN J. Sone, for the Crown

- and -

GARTH BENT P. Derry and D. Harris, for the Defence

HEARD: March 27, 2017

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and individuals identified in Exhibit #5, and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast or transmitted in any way.

Hill J.

INTRODUCTION

[1] After a trial, Garth Bent was found guilty of indecent assault of a male person.

[2] It falls to be determined what a fit and just sentence is for this crime.

FACTUAL BACKGROUND

[3] The factual context of the indecent assault crime was extensively reviewed in the court’s earlier reasons (2016 ONSC 6388) and therefore only summary reference to the facts is necessary.

[4] The victim, D.R., was 13 years of age in the summer of 1982 when he attended the Ontario Pioneer Camp in Algonquin Park. Working at the Camp, as a canoe trip leader, was 22-year-old Garth Bent.

[5] At trial, it was established that during a 10-day canoe trip, with 10 youth campers and 3 counsellors, the offender twice indecently assaulted D.R.

[6] On the first occasion, when D.R was in the offender’s camping tent at night, the offender massaged the victim’s neck and shoulders. D.R was asked to remove his shirt. He did so and lay on his stomach. When massaging the youth’s back, the offender moved his hand lower pulling the boy’s pajama bottoms down a little, then under the victim’s clothing using his hand to touch his penis and making a masturbation motion. Shocked and scared, D.R. recoiled away saying he was going to bed. He rolled over and zipped up his sleeping bag.

[7] Some nights later, when D.R was in the offender’s tent, the offender again initiated a back massage upon the victim before trying to slide his hand underneath the youth’s pajama bottoms. As the offender’s hand was on the boy’s buttocks with an attempt to grab the victim’s penis, D.R began to curl up in his sleeping bag so that the touching would not proceed as far as it had on the first occasion.

[8] In his evidence at trial, the offender denied any sexual touching of D.R.

[9] D.R. did not report in the summer of 1982, being indecently assaulted. While on the trip, on the victim’s evidence, they were “in the middle of nowhere”. The victim experienced feelings of disbelief, fright and shock at what had occurred.

[10] According to the offender’s trial testimony, by some point in the fall of 1982, he withdrew from his youth counselling activities at a Mississauga church and did not return to the Camp in any subsequent summer. Quoting from aspects of the offender’s evidence:

A. … I recognize that I needed to no longer work with children in 1982. I resigned my position because I felt I should no longer be working with … youth I made a decision to … get out of youth work … Q. And I think you said the reason why you resigned was because of the inappropriate contact you had with – with children? A. I was very troubled with my behaviour, yes. Q. And you wished to discontinue your volunteer activities involving children? A. I did, yes. Q. That’s why you resigned? A. Yes. Q. Okay. A. I felt it was inappropriate for me to continue.

[11] In 2014, the victim contacted police authorities to report the indecent assault.

THE OFFENDER’S BACKGROUND

[12] The 57-year-old offender was divorced from his wife of 22 years in 2016. He has a 25-year-old daughter. Over the years, Mr. Bent, who acquired 3 years of university education, has had a successful business career and has been involved in volunteer work and community service. He currently owns his own consulting firm.

[13] Exhibit #2 in the sentencing hearing was a compilation of character letters from counsellors, family, friends, neighbours and work associates. Most, if not all, of the authors are aware of the present case and the matters which were the subject of 2009/2010 criminal proceedings against Mr. Bent described below.

[14] The character letters variously describe Garth Bent as a hard worker and a man of faith, respected, honest and reliable, a mentor, caring and supportive, generous with personal and financial assistance, a person of integrity and a positive influence on others including young persons.

THE EXISTING CRIMINAL RECORD

[15] On December 8, 2009, the offender pled guilty in the Ontario Court of Justice (OCJ) to 3 counts of indecent assault of a male person and one count of attempted indecent assault (victims C.P, B.L, D.V.D and J.V.D, respectively). The assaults, committed against youthful males ages 13 to 15 in the time period of 1981 to 1983 occurred in the context of the offender’s church or Camp activities, as described in Exhibit #5 in this trial, the Agreed Statement of Facts placed before the court in 2009.

[16] The indecent assaults generally involved fondling and masturbation of the victims. In the Exhibit # 5 document’s narrative respecting the victim J.V.D, the offender accepted the victim’s factual account of what transpired but was unable to recall what had occurred.

[17] After voluntary withdrawal in 1982 from involvement in youth-related activities, the offender underwent 6 months of counselling in 1984 which he considered helpful in understanding how his actions toward young males could cause harm.

[18] When D.V.D made a complaint to the Camp Director in 1986, and the Director confronted the offender with the allegations, an immediate admission was made. Between 1987 and 1993, the offender met with C.P and D.V.D. and apologized to them and their parents for his inappropriate behaviour.

[19] Offers were made to pay for abuse counselling for the victims. The offender married in 1988. When B.L was located in 1997, an apology was tendered to this victim. The offender met with the victims multiple times seeking their forgiveness. The offender underwent further counselling from 1993 to 1995 with Reverend A. Zeilstra including the Cornerstone Christian Counselling Centre in Kitchener.

[20] At the January 14, 2010 sentencing hearing before OCJ Justice Atwood, the defence sought a conditional sentence disposition. Extensive reference was made to the offender’s self-imposed withdrawal from working with youth, voluntary efforts toward a reconciliation and restorative justice approach with known victims, the acquired therapy and counselling, as well as the offender’s remorse, shame and guilt feelings. Reference was made to a physical abnormality of the accused which had caused him confusion about his own sexuality when in his early twenties. Speaking personally to sentence, the offender apologized to the victims and to others impacted by his criminality.

[21] Crown counsel submitted before the OCJ that a total 14-month jail sentence would be a fit sentence for the four offences in light of the caselaw emphasizing general deterrence and denunciation in sentencing an offender, in a position of trust, who had sexually abused a young person. Quite fairly, the prosecutor recognized that Mr. Bent presented “as somewhat of a unique offender … in unique circumstances” and that, with no judicial authority with similar facts, the sentencing court had a discretion as to whether or not to impose custody.

[22] Justice Atwood imposed an 18-month conditional sentence for the offences on the mandatory statutory terms in s. 742.3(1) of the Code and a number of optional conditions including house arrest for the full term of the order subject to limited exceptions. In addition, the court imposed a 3-year probation order, a 20-year s.161 Code prohibition order relating to contact with persons under the age of 16, a DNA Order, and a 20-year SOIRA order. The Crown did not appeal the OCJ sentencing orders.

[23] Before Justice Atwood, the Crown did not seek a free-standing weapons prohibition order. However, initially an optional term of the 2010 conditional sentence order prohibited Mr. Bent from owning or possessing a weapon. On June 9, 2010, on consent, the conditional sentence order was varied to delete this condition.

VICTIM IMPACT

[24] The 47-year-old victim is married with children. He is self-employed and residing in British Columbia. The complainant’s victim impact statement (VIS) chronicles the effect of the sexual molestation on his life which has included impediments to relationships and to available opportunities, anxiety, and resort to alcohol in an effort to deal with internal emotional turmoil.

[25] The VIS states in part:

In conclusion, my decision to call the police back in 2014 was not to see if I could put someone behind bars. I will leave that up to decision of the Honorable Judge Hill. I just wanted to tell my story and let it out. I wanted to be open and honest with myself that this in fact did happen and it’s time to start the healing, [ac]cept it, and then begin to let it go. It’s been over thirty years, that’s a lot of days of this thing rearing its head. I don’t expect this to be a binary situation where all of a sudden things are “ok”. However having my day in court makes me feel like the uphill battle is done and now I can start to put the pieces back together and begin the ride down to where I once was before the situation occurred. It definitely wasn’t easy sitting up on the stand, getting grilled by the defence. However I would do it all over again if I had to. Too often these situations are not reported, too often the accused gets off on a technicality, too often it’s just simply too difficult for the victim to relive the events. If someone out there hears about my experience with Garth Bent and see’s that I had the courage to stand up and tell my story, conviction or no conviction, then I truly believe I have done something very valuable for our society. This makes me feel good and begins my healing.

How did Garth Bent impact my life? My experience with Garth Bent sit’s right in the front of my mind every day. The memory is horrible. I’ve tried very hard not to let it impact my life in a horrible way. It’s a battle that I will continue to fight on a daily basis. Maybe if the punishment is severe enough for Garth Bent’s past actions on me and others it may send a message to those who prey on children and hopefully they will think twice before they act and impact someone’s life forever. This problem of “indecent assault” in our society reaches much further than my personal experience.

Thank you for giving me my day in court and listening to my story.

THE OFFENDER’S ALLOCUTION STATEMENT

[26] Speaking personally to the matter of sentence, pursuant to s.726 of the Criminal Code, while the offender stated that he has no memory of inappropriate behaviour toward D.R, Mr. Bent apologized to the victim and his parents for any pain or confusion he had caused them. He offered participation in joint counselling or any other restorative justice option which these individuals considered appropriate.

POSITIONS OF THE PARTIES

[27] Counsel for Mr. Bent submitted that, in all the unique circumstances of this case, a fit disposition would be a suspended sentence with a community service order term in a probation order, or alternatively, a conditional sentence of 6 months’ imprisonment with house-arrest confinement subject to delineated exceptions.

[28] Without dismissing the gravity of the indecent assault, and accepting that general deterrence and denunciation are the overriding sentencing objectives in these cases, it was submitted that the sexual fondling of the victim was toward the low end of severity and unlike many cases which are before the courts, there was no grooming, promises, threats, overt violence or attempts to coerce maintenance of secrecy as to what occurred. When the victim signalled non-participation, the offender immediately stopped the assault.

[29] Mr. Derry spoke of the financial and relationship consequences experienced by the offender a result of the 2009/2010 proceedings and the present case as well as the public shaming and exposure attendant upon the respective verdicts. The evidence supports a finding that Mr. Bent, who must be treated a first offender, is a model and responsible citizen.

[30] It was further submitted that, importantly, the record before the court establishes that rehabilitation and specific deterrence are not relevant sentencing factors respecting this offender who, of his own initiative, withdrew from involvement with youth in 1982, acquired counselling in 1984 and on subsequent occasions and, prior to any criminal charges, voluntarily apologized to victims he was aware of, including entering into reconciliation and restorative justice measures with victims. This extraordinary profile, it was argued, is also relevant to two further issues. First, in light of this history and the offender’s conduct in the past 30-past years, it is certain that the offender presents no risk of recidivism. Second, it is apparent that the offender did not recall indecently assaulting D.R or the offender’s genuine and demonstrated outreach to other victims would have included D.R.

[31] Picking up on the last point, Mr. Harris submitted on the offender’s behalf that had the matter of the brief touchings of D.R., the indecent assault now before the court, been the subject of a charge before Justice Atwood, the conditional sentence imposed in 2010 would undoubtedly have included this assault.

[32] Based upon Mr. Bent’s lengthy and safe history of hunting (Sentence Exhibit #3, Tab 2), it was argued that a weapons prohibition would impose a particular hardship. Based upon Charter (s.11(i)) and statutory interpretation, it was submitted that the offender should not be considered subject to the mandatory s.109(1)(a) weapons prohibition order currently in force but given the benefit of the discretionary weapons prohibition regime which existed in the Criminal Code in the time period 1991 to 1995, a decade after the indecent assault and over a decade prior to this sentencing.

[33] It was further submitted that, properly interpreted, s. 490.013(4) of the Criminal Code limits the duration of any SOIRA order to 20 years.

[34] On behalf of the Crown, Mr. Sone submitted that a just and fit sentence would be a 12-month jail sentence. A suspension of sentence with community service, uniquely a rehabilitative disposition, would not adequately service general deterrence and would have “no denunciating effect”. It was further argued that there are no significantly exceptional circumstances here to warrant a conditional sentence.

[35] Crown counsel submitted that the dominant sentencing principles to be considered are deterrence and denunciation. This was an indecent assault within a breach of trust context— a camp trip leader entrusted with the supervision and safety of a young teenager. The victim was vulnerable, away from his parents and out on a canoe trip. The indecently assaultive behaviour involved two incidents which did not amount to momentary lapses of control as the offender selected the victim to sleep in his tent. The assaultive behaviour was serious and occasioned significant and enduring impacts upon the victim.

[36] Mr. Sone frankly acknowledges the presence of mitigating factors including the offender’s status as an upstanding citizen, the reality that Mr. Bent over the years has touched many lives in a positive way, and the voluntary and significant steps taken by the offender to eliminate any risk of future offending.

[37] It was submitted that the current conviction was not a part of the 2010 proceeding and must be the subject of its own sentencing consideration as a breach of trust sexual offence. The significant passage of time since the 1982 crime is not relevant to the application of the principles of general deterrence and denunciation.

[38] Mr. Sone noted the absence of the mitigating factor of a guilty plea or acceptance of responsibility for the indecent assault in this case.

[39] With respect to a weapons prohibition order, Crown counsel submitted that because such an order was mandatory both when the offence was committed, and now at the time of sentencing, the discretionary regime in 1991 to 1995 is irrelevant when s. 11(i) of the Charter is properly applied. Should the court disagree, it was submitted that a discretionary order would not be inappropriate in this case.

[40] Mr. Sone submitted that the text of s. 490.013(4) of the Criminal Code requires a SOIRA order for a life term.

THE FIT SENTENCE

[41] Just as sexual assault is a crime and “an evil” (R. v. D.A. I., 2012 SCC 5, at para. 1), so too was the offence of indecent assault of a male person contrary to what was s. 156 of the Criminal Code. The offence is particularly despicable when committed against a youth.

[42] As emphasized in R. v. K.R.J., 2016 SCC 31, at para. 66:

As Laskin J.A. wrote in R. v. Budreo (2000), 46 O.R. (3d) 481 (C.A.), "Children are among the most vulnerable groups in our society. The sexual abuse of young children is a serious societal problem, a statement that needs no elaboration" (para. 37). Providing enhanced protection to children from becoming victims of sexual offences is vital in a free and democratic society.

[43] Accordingly, general deterrence and denunciation are the paramount sentencing objectives in protecting society when a court sentences a sexual abuser of youth particularly where the accused held a position of trust in relation to the victim.

[44] Over the years, sentencing guidelines have emerged from the Ontario Court of Appeal properly emphasizing the need for exemplary sentences in these cases – for example: R. v. D.D. (2002), 163 C.C.C. (3d) 471 (Ont. C.A.); R. v. G.L. (2003), 175 C.C.C. (3d) 564 (Ont. C.A.); R. v. A.G. (2004), 190 C.C.C. (3d) 508 (Ont. C.A.); R. v. Woodward, 2011 ONCA 610, at paras. 39, 73, 75-76; R. v. D.(M.), 2012 ONCA 520; R. v. P.M., 2012 ONCA 162 (leave to appeal refused [2012] S.C.C.A. 242).

[45] In terms of the guidance of these recognized sentence ranges, it is necessary to bear in mind the observation in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 58:

There will always be situations that call for a sentence outside a particular range: although ensuring parity in sentencing is in itself a desirable objective, the fact that each crime is committed in unique circumstances by an offender with a unique profile cannot be disregarded. The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender's degree of responsibility and the specific circumstances of each case. LeBel J. commented as follows on this subject:

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.

(R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 44)

See also R. v. D.A. H. (2003), 171 C.C.C. (3d) 309 (Ont. C.A.), at para. 33: “Trial judges are required to do justice in the individual case and, in appropriate circumstances, this may require departure from the usual range of sentence”.

[46] In R. v. Brar, 2016 ONCA 724, at para. 16, the court observed that:

It is well established that, in cases of sexual crimes involving children, the principles of denunciation, deterrence and public safety must take precedence over other recognized objectives of sentencing, including rehabilitation: R. v. Woodward, 2011 ONCA 610, (2011) 107 O.R. (3d) 81, at para. 39; also see Criminal Code, s. 718.01. The necessary primary focus on denunciation, deterrence and public safety in such cases does not, however, mean that those objectives trump all other sentencing concerns: see R. v. Branton, 2013 NLCA 61, 341 Nfld. & P.E.I.R. 329, at paras. 24-25.

[47] The parties agree that the court is not precluded by statute from imposing a conditional sentence even though this form of sentence did not exist in 1982: see Charter, s. 11(i), and, Interpretation Act, R.S.C. 1985, c. I-21, s. 44(e).

[48] A conditional sentence, properly crafted, can further the principles of general deterrence and denunciation as noted in many authorities including R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, at paras. 21 and 24:

As this Court held in Proulx, supra, at paras. 102 and 107, a conditional sentence can provide significant denunciation and deterrence, particularly when onerous conditions are imposed.

While there are aggravating circumstances in this case, in Proulx, supra, the Court stated "that a conditional sentence may be imposed even in circumstances where there are aggravating circumstances relating to the offence or the offender".

See also K.R.J., at para. 54; R. v. Rockey, 2016 ONCA 891, at para. 41.

[49] That said, an observation which has stood the test of time is that in R. v. Cromien, [2002] O.J. No. 354 (C.A.), at para. 7: “… a conditional sentence should rarely be imposed in cases involving sexual touching of children by adults, particularly where the sexual violation is of a vulnerable victim by a person in a position of trust” (see also: R. v. M.(D.), [1997] O.J. No. 4102 (C.A.), at para. 7; R. v. D.M., 2007 ONCA 690, at para. 4).

[50] It is, of course, not the case that conditional sentences have not been imposed or upheld in instances of sexual abuse of children – see for example: L.F.W.; R. v. A.C., 2012 ONCA 608; R. v. G.(A.) (1998), 130 C.C.C. (3d) 30 (Ont. C.A.); R. v. Wood, [1999] O.J. No. 1520 (C.A.); R. v. Esmonde., [2002] O.J. No. 2544 (C.A.); R. v. Folino (2005), 202 C.C.C. (3d) 353 (Ont. C.A.).

[51] The indecent assault in this case is what is frequently described as an historical sexual crime. The relevance of the passage of time to sentencing in such cases was addressed in R. v. H.S., 2014 ONCA 323, at paras. 52 to 55:

52 One such factor is the time lapse. The offences took place over 35 years ago. There is no evidence that the respondent has lead anything but an exemplary life since 1978. The man before the court today is not the same as the man who committed the crimes. The question is how much, if any, weight ought to be given to the lapse of time in crafting a fit sentence for the respondent.

53 The leading case on the treatment of time lapse in sentencing is R. v. Spence (1992), 1992 ABCA 352, 78 C.C.C. (3d) 451 (Alta. C.A.), adopted by Juriansz J.A. for this court in R. v. W.W.M (2006), 205 C.C.C. (3d) 410(Ont. C.A). In Spence, at pp. 454-456, the court held that:

When a period of many years has elapsed between the commission of an offence of sexual assault and its discovery by the authorities, that circumstance dictates review of the degree to which the usual principles of sentencing are applicable in such circumstances.

The lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation. The first of these requires a sentence which will intimidate those other than the offender who might be tempted to follow his example. The second requires a sentence by the imposition of which the court will reflect society's view of the wrongness of the conduct, and persuade those who might be confused about what is right and wrong. These two principles may overlap in their effect on the choice of sentence.

The need for the sentence to reflect the community's desire to denounce offences of the kind with which we are concerned is not diminished by the passage of time. Conversely, if the court were to impose a lenient sentence because of the passage of time, some members of the community might regard the sentence as judicial condonation of the conduct in question. That would tend to lessen respect for the administration of justice. In the circumstances we are considering in these appeals, the lapse of considerable time, and (we assume, for the purpose of discussion) the intervening years of unblemished conduct, do not lessen the relevance of these two principles.

The only sentencing principles which may be affected by the lapse of time are those of individual deterrence and rehabilitation. By individual deterrence we mean that the sentence should deter the accused from committing a similar offence in the future. By rehabilitation we mean that the sentence imposed should reflect the hope that somehow, while serving his or her sentence, the accused will be rehabilitated and at its end will resume his or her place in society as a useful and law-abiding citizen. These two principles overlap. In the case of a sexual offence against a child, when on occasion the child does not report the offence to the police or any other authority until many years after the event, should the sentence be less than what it would have been if the prosecution had occurred not long after the commission of the offence? If the accused, during the intervening years, has led an exemplary life in all respects, including non-repetition of sexual offences, and upon the matter ultimately being reported to the authorities and during the resulting investigation and prosecution he is remorseful, then the principles of individual deterrence and rehabilitation may arguably, by themselves, not justify a stern sentence of the kind which would have been obligatory many years earlier. It will be noted, however, that if, despite having led an exemplary life, the offender lacks remorse, any potential discount must be less than it otherwise would have been. Indeed, in cases of this sort, of sexual abuse of children by parents, one might well ask whether one could ever have both remorse and lengthy suppression of the facts.

54 Given the respondent's circumstances, the principles of specific deterrence and rehabilitation have no relevance. As previously noted, the relevant sentencing principles in this case are denunciation and general deterrence. A fit sentence must reflect the need to respond to these principles. As made clear in the above passages from Spence, these particular sentencing principles are unaffected by the passage of time. See also: W.W.M. at paras. 21-25 and R. v. S.(R.), 1997 ABCA 377, [1997] A.J. No. 1136, 209 A.R. 231 (Alta. C.A.).

55 I am therefore of the view that while a delay of over 35 years is a relevant consideration, its mitigating impact is reduced by its lack of relevance to the operative sentencing principles.

See also R. v. W.W.M. (2006), 205 C.C.C. (3d) 410 (Ont. C.A.), at paras. 17-23; Wood, at para. 2; R. v. P.M., [2002] O.J. No. 644 (C.A.), at para. 22; LL c. R. 2016 QCCA 1367, at paras. 139-157; R. v. Forbes and Others, [2016] EWCA Crim 1388, at paras. 23-24, 28-29; R. v. Leroux, 2015 SKCA 48, at paras. 58-59, 61; R. v. James, 2013 MBCA 14, at paras. 55, 58, 76. As well, in R. v. Brown, [2006] O.J. No. 5276 (C.A.), at para. 14, the court held that “in the absence of a demonstration of remorse and acceptance of responsibility, the passage of time cannot mitigate in cases of historical sexual abuse”.

[52] In the L.F.W. decision, a case in which the majority upheld a conditional sentence for indecent assault and an act of gross indecency involving a young person, Lamer C.J. placed some emphasis upon the mitigating effect of the lengthy time period intervening between commission of the crimes and the sentencing itself: “Over a quarter century had passed since the offences occurred without any related criminal activity by the respondent, who had led a productive life” (para. 8); “an important mitigating factor … that over a quarter of a century had passed since the offences occurred without any related criminal activity …” (para. 24); “for offences which occurred over 25 years ago, when viewed in light of the fact that the respondent has since led a productive life without further criminal activity” (para. 25).

[53] The aggravating features of the crime are manifestly apparent and include:

(1) the offender abused a position of trust in relation to the victim (2) the youth of the victim – 13 years of age (3) the indecent assault, with opportunity orchestrated by the offender, involved a course of conduct on two separate nights (4) the intrusive nature of the fondling beneath the victim’s clothing (5) the enduring impact of the victimization upon D.R..

[54] In the balance, in mitigation, these factors are to be considered:

(1) for the purposes of sentencing, Mr. Bent is considered to be a first offender (2) the brief sexual touchings immediately ended when the victim signalled opposition (3) the offender, 22 years of age at the time, made no effort to coerce the victim into secrecy (4) in 1982, the offender, on his own, arrested his sexual experimentation with youths, and thereafter voluntarily sought out therapy and counselling and initiated apologies and reconciliation efforts with known victims – it is accepted that the offender presents no risk to reoffend (5) not only has the offender been crime-free over the past 35 years, but he has also exemplified demonstrable good character in relations with others, volunteer work and business dealings (6) as with many criminal cases, and therefore of much lesser significance, is the fact that the current charge has carried collateral consequences including public stigma as well as legal fees and some business losses for the offender.

[55] While it cannot be said that suspension of sentence pursuant to s. 731(1)(a) of the Criminal Code is without deterrent or denunciatory effect (R. v. Brunet, 2016 QCCA 2059, at paras. 5-6; R. v. Voong, 2015 BCCA 285, at paras. 39-40, 42), in the circumstances here, imprisonment, whether conditional or custodial, is warranted.

[56] Characterizing the seriousness of a particular sexual assault within the range of potential offending behaviour can at times be seen, incorrectly, as depreciating the gravity of some of the offences. Judicial statements positioning a particular offence away from the upper end of seriousness are by no means intended to trivialize such crimes (see for example: A.G., at para. 21 (“qualitatively different types of conduct … offences committed … here involved one victim … committed over a relatively short time”); R. v. Green, [1998] O.J. No. 5051 (C.A.), at para. 5 ("The touching was brief, on top of the complainant's underwear, and had few of the more serious aggravating features often associated with this kind of conduct"); R. v. Crispen, 2009 SKCA 63, at para. 26 ("There was no violence and the touching was brief and took place over clothing"); R. v. Works, [1991] N.S.J. No. 5 (C.A.), at p. 3 ("...there will be sexual assaults of greater magnitude, with the force used and the assault more severe")).

[57] In the present case, the sexually inappropriate touching of the young victim was intrusive, frightening, and repeated by a senior individual in a position of trust in the context of a wilderness canoe trip where the vulnerable victim was away from his parents.

[58] The full context also requires consideration that the sexual misconduct lasted only seconds, and ended instantly upon indications of rejection, committed by a 22-year-old confused about his sexual identity/orientation.

[59] D.R. of course is not to be faulted in any way for the timing of his disclosure to the police. When complainants report sexual abuse to the police intermittently over the years, a single offender may find himself before the courts in different decades facing charges for offences all committed within roughly the same time frame. Examples include these notorious cases: R. v. Stuckless, 2016 ONCJ 338; James; Leroux. The fact that an offender has previously been sentenced for sexual crimes, and is many years later to be sentenced for a sex crime from the same era, is a factor to be considered: Leroux, at para. 60; James, at paras. 58, 76; Stuckless, at paras. 68, 76, 87, 117. Be that as it may, it is clear that an offender must be sentenced for the crime presently before the court.

[60] In its earlier reasons for judgment, at para. 59, the court stated:

Although it is unnecessary to decide, in determining whether the prosecution has discharged its burden of proving guilt beyond a reasonable doubt, either the accused has intentionally misled the court on the subject of reaching out to all of his victims or, in fact, he honestly has no recall of indecently assaulting D.R.

[61] A significant finding of fact in the present case is whether, at all times including since being charged with indecently assaulting D.R., the offender had no memory of sexually abusing this victim. On the basis of the totality of the circumstances, including the offender’s trial testimony, the overall passage of time capable of negatively impacting upon memory, the example of the offender’s 2009-2010 lack of recall respecting assaulting J.V.D., and his course of conduct respecting known victims in terms of voluntary outreach and apology, the most logical inference is that Garth Bent honestly is without recall of indecently assaulting D.R.

[62] I am satisfied that had the charge of indecent assault of D.R. been in the cluster of charges before the OCJ in 2009, the charge would not only have resulted in a plea of guilt but also would have attracted the 2010 conditional sentence disposition imposed by Atwood J. for the other sexual offences, a disposition not appealed by the Crown.

[63] The offender poses no risk of future reoffending. Specific deterrence and rehabilitation are not relevant factors.

[64] In the very particular circumstances of this case, a conditional sentence of imprisonment is a fit sentence capable of effecting the necessary measure of general deterrence and denunciation. The offender is sentenced to 12 months’ imprisonment to be served conditionally on the mandatory statutory terms in s. 742.3(1) of the Criminal Code and the following optional conditions:

(1) for the first 6 months of this sentence, remain within your residence at all times subject to the following exceptions and travel directly related thereto: (a) meetings scheduled by the conditional sentence order supervisor (the supervisor) (b) employment requirements (c) performance of community service pursuant to this sentencing order (d) one (1) 4-hour time period per week scheduled in advance with the supervisor to shop for necessities and other items (e) such further and other matters as may be pre-approved by the supervisor, for example, but not limited to, scheduled medical appointments (2) within the first 11 months of this sentence, perform 100 hours of community service as arranged by the supervisor (3) no communication or contact, directly or indirectly, with the complainant in this case.

[65] As the crime of indecent assault upon a male person falls within the definition of “designated offence” (s. 490.011 “designated offence” (c)(iv)), s. 490.012(1) of the Criminal Code requires a sentencing court to make a Form 52 Order compelling the offender to comply with the Sex Offender Information Registration Act (SOIRA) for “the applicable period specified in section 490.013”. Sections 490.013(1) to (2.1) and (4) read:

490.013 (1) An order made under section 490.012 begins on the day on which it is made.

(2) An order made under subsection 490.012(1) or (2) (a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years; (b) ends 20 years after it was made if the maximum term of imprisonment for the offence is 10 or 14 years; and (c) applies for life if the maximum term of imprisonment for the offence is life.

(2.1) An order made under subsection 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (e) of the definition “designated offence” in subsection 490.011(1).

(4) An order made under subsection 490.012(1) or (2) applies for life if the person is, or was at any time, subject to an order made previously under section 490.012 of this Act or section 227.01 of the National Defence Act.

[66] The crime of indecent assault upon a male person, described in the former s. 156 of the Criminal Code, carried a maximum punishment of 10 years’ imprisonment. Accordingly, in the ordinary case, an offender convicted of this offence would be subject to a 20-year SOIRA order (s. 490.013(2)(b)). With the imposition of a 20-year SOIRA Order upon Mr. Bent on January 14, 2010, as of the date of this sentencing he was already a person who “is, or was at any time, subject to an order made previously under section 490.012” (s. 490.013(4)) and therefore subject to a life-term SOIRA Order – see R. v. Burns, 2012 SKCA 52, at paras. 1-7; R. v. Cardinal, 2013 YKCA 14, at paras. 13-14.

[67] On behalf of the offender, it was submitted that, because the accused committed the indecent assault before the 2010 sentencing, he had not been subjected to the warning of a 20-year SOIRA Order when this indecent assault was committed and therefore should not be subject to the punishment of a life-term order reserved for rescidivist offenders.

[68] This submission must be rejected. Although appellate challenge respecting a SOIRA order was described in R. v. Debidin, 2008 ONCA 868, at para. 1 as “a sentence appeal”, my review of R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554 and K.R.J. recommends that compliance with a SOIRA order is not a sentence, in the sense of a punishment, and accordingly not subject to the “prior warning” jurisprudence. A SOIRA order is not defined as a sentence in s. 673 of the Criminal Code. At para. 12 of R. v. Redhead, 2006 ABCA 84, the court held that, “[a] SOIRA order does not constitute a sentence”, an observation consistent with R. v. Dyck, 2008 ONCA 309, at paras. 74 to 86, holding that sex offender registration and reporting does not constitute punishment.

[69] Turning to the issue of a weapons prohibition order, as the Criminal Code currently stands, a s. 109(1) weapons prohibition order is mandatory where an offender is sentenced for a crime, punishable by a maximum of 10 years or more imprisonment, “in the commission of which violence against a person was used, threatened or attempted”. As said, the s. 156 offence was punishable by a maximum of 10 years’ imprisonment.

[70] Sexual assault is accepted to be a crime in which “violence” was used or attempted – see: R. v. Steele, 2014 SCC 61, at para. 62; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 27; R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 110 per Fish J., in dissent in the result; R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 26; R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 68-72 per L’Heureux-Dubé J. Indecent sexual assault of a male child must likewise be considered an inherently violent crime, and properly so on the facts of this case.

[71] A weapons prohibition order constitutes a punishment: s. 109 (“…shall, in addition to any other punishment … make an order”); R. v. Dunn, [1995] 1 S.C.R. 226, at para. 27.

[72] Our law includes directives, statutory and constitutional, to alleviate the harshness of a currently-provided-for punishment from having retrospective effect where, at a relevant earlier point in time, a lower punishment was available. Section 44 (e) of the Interpretation Act, R.S.C. 1985, provides:

44 Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,

(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;

[73] Section 11(i) of the Charter states:

11. Any person charged with an offence has the right

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

[74] The most common application of these provisions involves two points in time with an offender receiving the benefit (1) as of the date of sentencing, of the more favourable sentencing regime that existed at (2) time when he or she committed the offence(s) for which conviction has now occurred.

[75] However, the present case engages consideration of three points in time:

(1) date of commission of offence (July 1982) – s. 98 of the Criminal Code required a mandatory weapons prohibition order (2) an intervening statutory regime (1991 to 1995) – s. 100 allowed for a judicial discretion not to impose a weapons prohibition order (3) date of sentencing (May 2017) – s. 109 requires a mandatory weapons prohibition order subject to the limited sustenance/employment discretionary exemption in s. 113 of the Criminal Code which Mr. Bent does not submit to be available to his circumstances.

[76] Sections 100(1)(1.1)(1.2) of the 1991 – 1995 statutory scheme (enacted by S.C. 1991, c. 40) provided as follows:

100.(1) Where an offender is convicted or discharged under section 736 of an indictable offence in the commission of which violence against a person is used, threatened or attempted and for which the offender may be sentenced to imprisonment for ten years or more or of an offence under section 85, the court that sentences the offender shall, subject to subsections (1.1) to (1.3), in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from possessing any firearm or any ammunition or explosive substance for any period of time specified in the order that commences on the day on which the order is made and expires not earlier than

(a) In the case of a first conviction for such an offence, ten years, and (b) In any other case, life

(1.1) The court is not required to make an order under subsection (1) where the court is satisfied that the offender has established that

(a) it is not desirable in the interests of the safety of the offender or of any other person that the order be made (b) the circumstances are such that it would not be appropriate to make the order.

(1.2) In considering whether the circumstances are such that it would not be appropriate to make an order under subsection (1), the court shall consider

(a) the criminal record of the offender, the nature of the offence and the circumstances surrounding its commission; (b) whether the offender needs a firearm for the sustenance of the offender or the offender’s family; and (c) whether the order would constitute a virtual prohibition against employment in the only vocation open to the offender.

(1.3) Where the court does not make an order under subsection (1), the court shall give reasons why the order is not being made.

[77] Counsel were unable to provide any caselaw authorities directly dealing with the legal significance of the 1991 – 1995 discretionary scheme for contemporary imposition of a weapons prohibition order including any post-1995 decisions of the Ontario Court of Appeal. It was not submitted that review of the English and French versions of the respective texts of s. 11(i) of the Charter and s. 44 (e) of the federal Interpretation Act provided assistance as to whether, in terms of weapons prohibition, the offender is today deserving of:

(1) the less harsh punishment as existed in July 1982 or May 2017 which affords no benefit to the offender as mandatory prohibition regimes existed at these 2 points in time (the Crown’s position)

or

(2) the least harsh punishment at any point in time between, and including July 1982 and May 2017, which would give the offender access to a discretionary prohibition scheme in existence after he indecently assaulted D.R. and before he became a charged person (the offender’s position).

[78] The text of s. 44 (e) of the Interpretation Act clearly contemplates a comparison of the relative harshness of penalty as between 2 reference points only, that provided for in the “former enactment” and that prescribed in the “new enactment”.

[79] The text of s. 11(i) of the Charter suggests a potentially broader and more liberal interpretation favouring the offender’s submission. Although the provision’s reference to “the lesser punishment”, as opposed to the “least harsh punishment”, could be said to demand an interpretation limited to addressing the punishment which is the lesser of 2 available options, the text reading “punishment … has been varied between the time of commission and the time of sentencing” as opposed to “varied as of the date of sentencing”, favours the broader context argued for on the offender’s behalf.

[80] The court was referred to jurisprudential authority relating to conditional sentences in circumstances of cases where (1) a sexual crime was committed when the conditional sentence option had yet to be enacted, followed by (2) an intervening period when such a disposition was for some time an available sentence, with (3) the sentencing then occurring when a conditional sentence was statutorily excluded from consideration – these cases holding that a conditional sentence was an available option as of the sentencing date – see, for example: R. v. P.(D.), 2014 ONSC 386 (Crown conceding conditional sentence legally available); R. v. Holt, 2017 ONCJ 51, at paras. 13-17, 156, 169-170; R. v. Mehanmal, 2012 ONCJ 681; R. v. Cadman, 2016 BCSC 474. At least implicitly, this approach was also accepted by the courts in Brown, at para. 14; R. v. Vautour, 2016 BCCA 497, at paras. 28-53, and in R. v. Leroux, 2015 SKCA 48, at para. 72, where the only basis for refusing conditional sentences was stated to be the basis of unfitness, not jurisdictional grounds.

[81] Applying this body of caselaw to the punishment of a weapons prohibition order, the offender here would be deserving of consideration for a discretionary departure from being subject to such an order taking into account the more lenient regime existing in the 1991-1995 time period.

[82] Considering the offender’s lengthy history of safe hunting activities, the lack of use of a weapon in the offences he committed 35 years ago, the offender’s rehabilitation and lack of risk to public safety, and the Crown’s agreement to an exception from a weapons prohibition order should such a disposition be legally available, the court exercises its discretion to decline making such an order.

CONCLUSION

[83] The offender is sentenced to a 12-month conditional sentence as described in para. 64 above and to a SOIRA order for life.

Hill J.

Released: May 29, 2017