COURT OF APPEAL FOR ONTARIO

DATE: 20020205 DOCKET: C37091

FINLAYSON, CARTHY and WEILER JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

Philip Downes, for the appellant

(Appellant)

• and -

THOMAS PASCAL CROMIEN

Scott K. Fenton, for the respondent

(Respondent)

Heard: January 16, 2002

On appeal from the sentence imposed by Justice James M. Donnelly dated September 14, 2001.

FINLAYSON J.A.:

[1] The Crown appeals from the conditional sentence imposed by the Honourable Justice Donnelly on the respondent Thomas Cromien following his plea of guilty to indecent assault contrary to s. 156 of the Criminal Code.

Overview of the facts

[2] Thomas Cromien was a Roman Catholic priest in a small parish in Woodstock, Ontario. M.K. was a 13-year-old altar boy with a difficult home life. Over the course of some three years the respondent gradually enticed him into increasingly invasive sexual acts including touching, masturbation, attempted anal penetration, oral sex, and simulated intercourse. He took photographs of some of this. He showed M.K. child pornography. He encouraged him to drink alcohol. These acts took place in the church house, in local motels, at a scout camp and on a ship where M.K. was taking a sea cadet course.

[3] Sometime in 1978, when M.K. was 16, his mother found a pornographic letter written by M.K. to the respondent. The respondent’s father took the letter to another priest, and then went to see that priest’s supervisor in Toronto. The respondent was a member of the Holy Ghost Fathers (also called the Spiritans) at the time. Father Doyle, the supervisor of the Spiritans, told M.K.’s father to confront the respondent, suggesting that maybe the allegations were untrue. M.K.’s father wrote to the respondent asking him to stop his “relationship” with his son and leave Oxford County. The respondent wrote back apologizing and saying that he would respect the request. When his father told him what he had done, M.K. was relieved that it was over.

[4] The Oxford County police investigated the offence in 1983. No charges were laid and the investigation ended. In 1999 the police again investigated and the respondent was arrested.

[5] The respondent left the priesthood several years after M.K.’s father first discovered what was going on and confronted him. The respondent went on with his life after leaving the priesthood. He married, had a child, and lived a quiet life in Toronto until he was finally charged with this offence in 1999. In June 2001 after a preliminary inquiry the respondent pled guilty to one count of indecent assault. The trial judge found that the precise time frame and number of sexual assaults were unknown, but it was clear that there were many incidents over an extended period. On September 14, 2001 the respondent received a conditional sentence of two years less a day, requiring him to stay home except for medical appointments, attending church, shopping, and reporting requirements of his parole officer.

Analysis

[6] It is the position of the Crown on this appeal that the sentence imposed on Thomas Cromien was manifestly unfit. The nature of this offence and the particular circumstances of this offender made a conditional sentence, to be served at home under conditions essentially no different to those of his daily routine, entirely incapable of meeting the operable sentencing principles in this case. The reasons for sentence, while admittedly thorough, are animated by a flawed approach to the question of the respondent’s remorse and to the ramifications of the historical nature of this offence. While the reasons for sentence address the relevant sentencing principles and demonstrate a cognisance of the demands imposed on sentencing judges, the appellant nevertheless submits that the manner in which those principles and obligations were applied caused the trial judge to impose an unfit sentence in the particular circumstances of this case.

[7] The approach to the task of sentencing taken by the trial judge involved a disproportionate assessment of the conduct of the respondent as it related to the question of remorse, and a fundamental failure to address how a community based sentence could achieve the objectives demanded by the principles of sentencing at work in this case. We have frequently stated that 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 R. v. Bedard (2001), 2001 8536 (ON CA), 158 C.C.C. (3d) 216 (Ont. C.A.); R. v. Gianfelice (1992), 52 O.A.C. 243 (C.A.); and R. v. Roy (1999), 1999 2293 (ON CA), 127 O.A.C. 270 (C.A.). I will quote from the judgement of Moldaver J.A. in Bedard because it is very similar on its facts to the case in appeal. He said at p. 222:

Although the trial judge referred to the appropriate sentencing objectives and principles, the sentence imposed fails to reflect the seriousness of the offenses and it is manifestly inadequate. In the circumstances of this case, a conditional sentence, even one of eighteen months on the terms imposed by the trial judge, could not meet the objectives of general deterrence and denunciation.

The crimes committed by the respondent were extremely serious. As indicated, over the course of ten years, he sexually assaulted thirteen female patients and in doing so, he [a licensed chiropractor] repeatedly broke the sacred bond that forms the essence of a doctor/patient relationship. By any measure, this was a gross breach of trust and, as is all too often the case, it has resulted in tragic consequences for the victims. In many respects, the respondent is responsible for undermining, if not destroying the physical, emotional and psychological well-being of thirteen patients who placed their faith and trust in him, only to have it shattered. He is also responsible for causing several of the complainants to lose faith generally in male health care professionals.

In my view, criminal conduct of this nature calls for severe punishment. Normally, it would attract a penitentiary sentence. In this case however, because of the plea negotiations, Crown counsel at trial requested a sentence of only twelve months imprisonment. Giving full effect to the mitigating factors, the sentence requested by Crown counsel was, in my view, an extremely lenient one.

[8] Circumstances that involve multiple sexual acts over an extended period of time and escalating in intrusiveness generally warrant a severe sentence. The extenuating circumstances or factors in this case were not such that they warranted the imposition of a conditional sentence. It was the sentencing judge’s overemphasis on some of those factors that led him to impose this sentence. He said:

[The] reasonable, informed public would expect fair treatment for an offender who immediately acknowledged responsibility but who, incidental to long term delay in the criminal process, has endured an equivalency to punishment that otherwise would not have been imposed.

Fundamental fairness in the final balancing of accounts requires that Mr. Cromien receive some measure of credit for his twenty-five years of “quiet desperation”. This credit is much as he might have received for “time served” under s. 719(3) which provides an invariably exercised discretion, as follows:

In determining the sentence to be imposed on a person convicted of an offence a court may take into account any time spent in custody by the person as a result of the offence.

[9] This is where the trial judge demonstrates manifest error. The emphasis in his mind is all about the respondent and his internal struggle to reconcile his sexual exploitation of a vulnerable little boy with his vows as a priest. Very little is said in this judgement about the little boy who the respondent was able to prey upon because the boy was starved for love and emotional support at home to the degree that at age 17 he ran away and attempted suicide. To this day he suffers from psychological disorders and requires counselling. Again, I take a completely different view from the trial judge of the expressions of remorse that were made by the respondent. They were highly selective and were expressive more of damage control than genuine contrition.

Disposition

[10] A penitentiary term is impractical now but a custodial term is required. In my view an appropriate sentence would be two years less a day in a reformatory against which I would give credit of four months for the four months of the conditional sentence that the respondent has served.

[11] Accordingly, I would grant leave to appeal and allow the appeal to increase the sentence to twenty months to be served in custody, to commence on the day the respondent surrenders into custody.

Released: FEB 05 2002 GDF

“Signed: “G.D. Finlayson J.A.”

“I agree J.J. Carthy J.A.”

“I agree K.M. Weiler J.A.”