WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(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

Court File No.: Brampton 12-3539

Date: 2012-09-27

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

James Biss

Before: Justice J.W. Bovard

Heard on: June 6, 2012; September 24, 2012

Reasons for Judgment released on: September 27, 2012

Counsel:

Mr. C. Fraser — for the Crown

Ms. S. M. Chapman — for the accused James Biss

Reasons for Judgment

Bovard J.:

[1] James Biss pleaded guilty to one charge of sexual exploitation under s. 153(a) of the Criminal Code. These are reasons for sentence.

The Facts

[2] Mr. Biss was a high school teacher who became sexually involved with one of his students; a 16 year old girl. He was involved with her for approximately six months. They engaged in fondling, mutual oral sex and masturbation. They attempted sexual intercourse several times, but could not complete the act. However, Mr. Biss penetrated the victim's vagina with his fingers.

[3] The following are the facts as they were presented to the court by way of an Agreed Statement of Facts.

[4] James Biss is a 53 year old resident of Mississauga. For the past seven years, he has been employed by the Peel District School Board. He was the Head of the Global Studies Department at a Secondary School in Mississauga.

[5] He has taught in the Grade 11 and 12 law course and ran the Law Club for six years. He had students engage in mock criminal trials which were overseen by an Ontario court Judge. He ran the Agents of Change Club at the school, a student club which explores social justice initiatives. James Biss also works part time as a Magician.

[6] In September 2009, the victim was a 16-year-old Grade 11 student at a Secondary School. During the school year, she was taught grade 11 law by James Biss. At the same time, she was also a member of the Agents of Change Club which was founded by James Biss.

[7] The victim and a friend were part of a group of students made up from different high schools in the G.T.A that traveled to Kenya in August 2010. They attended monthly meetings throughout the 2009-2010 school year and earned school credits by doing so. James Biss taught at those meetings. The Kenya trip was overseen by the Toronto Catholic District School Board and while in Kenya the Me to We Organization. James Biss was a supervising teacher on the trip when they went, with other adult teacher chaperones.

[8] The victim's parents had recently gone through a separation and towards the end of 2009, beginning of 2010, she turned to James Biss for guidance and support. During this time, James Biss used his personal electronic mail (e-mail) address to correspond with the victim rather than the e-mail address provided to him by the School Board. The e-mails they exchanged were personal but not of a sexual nature. Police have been going through e-mail and chat messages on the victim's computer but have not located any messages relating to the accused. The victim said that she deleted all e-mail messages between her and the accused.

[9] In March 2010, James Biss and the victim started to correspond via text messages in lieu of e-mail. The victim and James Biss began to text each other. The text messages progressed to being sexual in nature. The victim also took pictures of herself scantily clad and sent the accused pictures (which were unsolicited) via text messages. The victim has told the police that she deleted all the text messages. The victim's cellular phone was previously dropped smashing the glass and disabling it. Peel Regional Police Technological Crimes Unit have tried to retrieve the information stored within it without success because of this damage.

[10] On March 11, 2010, James Biss took the victim to the Sherway Gardens shopping center located at 25 The West Mall, in Etobicoke, Ontario. Once there, James Biss bought the victim a dress and a pair of shoes at Guess by Marciano™, for a school formal, paying with his personal Capital One credit card. The victim has provided police with the store receipt dated March 11th, 2010 at 5:45 PM. The items listed on the receipt are Pmroxanne (stiletto high-heeled shoes) for $228 and Jayda Lace Dress for $168. The total with tax was $447.48 charged to a MasterCard with the last four digits of the card showing on the receipt as 6191.

[11] In April 2010, the victim accompanied James Biss to Niagara College in his Chrysler P.T. Cruiser, where he was performing a magic show. At some point during the trip James Biss stopped for gas near St. Catherines and while there, he kissed the victim on her lips for the first time.

[12] Again in April 2010, the victim accompanied James Biss to another magic show at Dave and Busters™, a restaurant and entertainment venue in Vaughan. After the show, James Biss stopped his P.T. Cruiser in a motel parking lot and parked in a secluded area. James Biss and the victim ended up both naked and engaged in kissing, fondling, and masturbation. The victim performed oral sex on James Biss to the point of ejaculation and James Biss stimulated her vagina with his fingers.

[13] On the May 24th, 2010 long weekend James Biss drove the victim to a place called the "Smart Farm" in Mount Forest. This weekend the student group that was going to Kenya in August 2010 were to experience some of the living conditions such as sleeping in tents. On one of the nights there, the victim snuck into James Biss' tent where they engaged in mutual fondling and oral sex to the point of ejaculation for him.

[14] In late June 2010, James Biss picked up the victim at her place of work at Subway Restaurant located within the Home Depot store at 2555 Bristol Circle, Oakville. From there, James Biss drove in his P.T. Cruiser with the victim to a secluded area at the rear of an industrial business located on Bristol Circle near Highway 403, Oakville. In this incident, James Biss and the victim were both naked and engaged in mutual fondling and masturbation. On this and two other occasions, as set out below, there was attempted sexual intercourse, but no penetration.

[15] In July 2010, James Biss was one of three teachers, one principle and one supervisor (Natalie Mancini) from the travel company, Georgia Hardy Tours, supervising a high school student group to Ireland for two weeks and then to Italy for two weeks. There were 52 students from various schools. Mostly private, in the Greater Toronto Area (G.T.A). The victim was not part of the student group.

[16] The victim, traveled by herself and joined James Biss in Italy. The victim had told her father that a girlfriend from her school was on this trip to Italy and that her girlfriend's roommate had to leave the trip because of a family emergency. The victim said as a result of that she could go to Italy and stay for free with her girlfriend as the hotel room and meals had already been paid for. The victim's father paid for his daughter's flight.

[17] The victim joined James Biss in Rome where she stayed in his hotel room.

[18] While with James Biss in his hotel room in Rome and later in Sperlonga, Italy, the two engaged in kissing, fondling, digital vagina penetration and mutual oral sex.

[19] While in Italy, the victim took a return train trip from Rome to Firenze (Florence) and traveled on July 24, 2010. James Biss purchased the tickets for this trip using his personal credit card. The transaction was witnessed by the victim. The victim kept the train tickets as souvenirs. The victim then traveled from Rome to Sperlonga, Italy by train on a ticket purchased by James Biss using his personal credit card. The transaction was witnessed by the victim. The victim kept the train ticket as a souvenir. The victim still had possession of the train tickets which were later turned over to the police.

[20] Police have obtained by way of a production order the detailed credit card billing of James Biss' Capital One Master-Card which confirms the above purchases.

[21] On August 6, 2010 the victim turned 17. The victim and James Biss along with several other students traveled to Kenya, Africa on a Toronto Catholic District School Board sponsored trip.

[22] James Biss gave the victim a birthday card in an envelope with the letter written on the front. The birthday card has the names of several individuals written beside the four cartoon characters on the inside of the birthday card. At the bottom of the card is written "Happy Birthday! Xo".

[23] James Biss gave the victim a second card in an envelope with the victim's name and "London, England" written on the front of the envelope. On the inside of the card is written with the victim's name and "James". At the bottom right corner inside the card is written "Hope your second continent delights the pants off you!"

[24] While in Kenya, the two engaged in kissing and sexual activity including attempted sexual intercourse. James Biss wrote about those sexual experiences in one of several letters he penned and left for the victim in a hiding spot. While in Kenya the victim and James Biss exchange letters outlining their feelings for each other.

[25] A handwritten letter left for the victim by James Biss in Kenya dated August 19. On the front of the envelope is written with a distinctive paper and envelope which bears a tree leaf as the other letters. Forensic testing confirmed the accused authored these letters.

[26] This is an extract from this letter: "First of all, let me express my delight in our delicious tryst last night. The danger liaison we enjoyed was fun and fantastic despite my ridiculous shortcomings. You are patient and kind with my inadequacies with you and I know I'm trying your patience. I hope our other delights almost compensate for my failure to plunge inside of you. Still we enjoyed intimacies we haven't shared for many weeks-and which are logistically difficult back home. I think we proved how spectacularly sweet it is just to be together, close and intimate-cuddling and touching, late at night. I will legitimately try to resist the urge to rip your clothes off as soon as you get up against me. You need only to text the words "Sperlongizc" (or any variations that amuses you) and I will prepare our play area. (If I had my way we'd be together, even briefly, every night. But I know that is neither realistic nor reasonable to ask of you… still). Finally let me express that although you normally like to pursue your challenges and men, rather than be chased and gushed over, I'm very happy you seem to enjoy the exceptionality of me. I love the playfulness and affections I direct toward you. They are some of the things that make all of this so very precious and unusual to me-and I hope to you. Ready to give much more when you ache for it-L xxxxx"

[27] In late August 2010 the victim and James Biss traveled in his car to the area of Tremaine Road in Milton, an area where the victim rides horses. During this trip they engaged in sexual acts and again the accused attempted sexual intercourse with the complainant, but there was no penetration.

[28] In early September 2010, James Biss was suspended by the Peel District School Board as a result of a complaint of alleged inappropriate behaviour on his part towards the victim during the trip to Kenya. The complaint was brought forward by the on-site facilitator of the trip Brandon McNab of the "Me to We" Organization.

[29] The victim was interviewed by the police at the Special Victims Unit on September 2, 2010. She did not disclose any inappropriate behaviour by James Biss. The victim did not disclose that she was in a sexual relationship with James Biss but confirmed that there had been a discussion about her spending time in the area of the victims cottage (Haliburton area) to do "geocoaching" with James Biss, along with teacher Jennifer Matitis, and another adult. James Biss was also interviewed by me and he denied any inappropriate conduct toward the victim while in Kenya.

[30] While under suspension from the Peel District School Board and prohibited by the Board from any contact with school staff and students, James Biss and the victim would see each other from time to time, but there was nothing sexual.

[31] On September 29 James Biss was admitted on a form one to Credit Valley Hospital after an attempted suicide. At that time he was diagnosed with Bipolarity II and provided with medication to treat his condition.

[32] Sometime in October or November 2010, the victim's father was becoming suspicious of his daughter's activities and watched her leave work from Subway Restaurant located within the Home Depot store at 2555 Bristol Circle, Oakville.

[33] The victim got into a Chrysler P.T. Cruiser. The father attempted to follow the vehicle but lost sight of it. The victim was supposed to have been going to a girlfriend's house, he later located his daughter, after calling her on her cellular phone, in the driveway of James Biss' residence. James Biss spoke to the victim's father on the phone and provided him with his address so that the victim could be picked up.

[34] By September of 2010, the victim decided to end her sexual relationship with James Biss.

[35] In February 2011, the victim began to slowly disclose the inappropriate conduct of James Biss to a female teacher at the Secondary School, Julie Dippelhofer. She indicated to Ms. Dippelhofer that there was sexual conduct that occurred between herself and Mr. Biss. At this time James Biss was suspended from teaching and has not returned since.

[36] On February 23, 2011, the victim attended the Special Victims Unit and provided a video recorded statement. The victim has since provided additional statements to the police on video and turned over property given to her by the accused and other items.

[37] James Biss was arrested on March 29, 2011, and released on a Promised to Appear. There has been no contact between him and the victim since then.

The Victim Impact Statement

[38] The victim read her victim impact statement in court. This case has had a dramatic and negative effect on her life. She identifies strongly as a victim of sexual abuse. This has brought shame, self-hatred, and a strong feeling of worthlessness.

[39] She has developed a severe eating disorder and "an affinity for self-harm". She is in counselling and takes medication for depression, anxiety and to help her sleep.

[40] Personal relationships are very difficult for her because she is fearful to trust others. Her friendships suffered and she has a hard time relating to others her own age because of her experience with Mr. Biss. Her peers and even strangers have bullied and harassed her. They blamed her for initially approaching Mr. Biss for counselling and have called her a liar, an attention-seeker and a home wrecker. She has been humiliated by the publication of this case in the media and by it being discussed in school.

[41] In spite of this, she has managed to make "monumental progress" in accepting what happened. She is making plans for the future "where I don't define myself solely as a victim." However, in spite of her progress she feels that she "will struggle with the emotional trauma and various social handicaps inflicted upon me forever."

Mr. Biss's Personal Circumstances

[42] Mr. Biss is 53 years old. He graduated from the University of Toronto with an Honours Bachelor of Arts degree. He also graduated from a gemologist institute. He married in 1983 and opened a jewellery store. He had a daughter in 1992. He obtained an MBA in 1994 and worked for Consumers Distributing from 1991 to 1993. He served as the Executive Director of the Canadian Jewellery Association from 1993 to 1998. He divorced his wife in the late 1990s.

[43] In 2000, he opened another jewellery store. In 2002 he went to teacher's college in Buffalo, New York. He began his teaching career with the Peel School Board in 2003. He married again in 2004.

[44] Mr. Biss was an accomplished, well-liked and respected teacher. He was very active in developing clubs and programs for the students. He became the head of the business and social science department. He even taught the law course and organized mock trials.

[45] He worked for the Peel School Board until he was dismissed due to his arrest in 2011 on the charge before the court.

[46] His marriage broke up during the summer of 2010. In September, he became suicidal and he was admitted to the hospital on September 30, 2010. He saw a psychiatrist, Dr. Domenic Dimanno, who wrote a report, which the defence filed with the court. The report is not dated, but it lists Mr. Biss's discharge date from the hospital as October 6, 2010.

[47] Doctor Dimanno diagnosed Mr. Biss as having Bipolar II Disorder. He concluded that he has had this condition for many years, but he was not diagnosed until Dr. Dimanno examined him. He stated that Mr. Biss has "suffered from cyclical patterns of elevated mood, and increased goal-directed activity and excessive involvement in pleasurable activities."

[48] This disorder causes persons to "act impulsively and at the same time with a sense of purpose. They are often preoccupied by…sexual…ideas that can evolve into a complex delusional system." He stated that it is not uncommon for persons not to be diagnosed for years although they suffer from this illness.

[49] Mr. Biss accepted his diagnosis well and embarked on a treatment regime with Dr. Dimanno, which he continues to this date. He is doing well and his prognosis is good. Dr. Dimanno confirmed this in a second report, dated July 16, 2012.

[50] Doctor Dimanno expressed the concern that Mr. Biss will not be able to continue with his therapy while incarcerated. The stress of being incarcerated could cause a relapse.

[51] Defence counsel submitted that Mr. Biss has strong support in the community and, indeed, several persons accompanied him to court. The defence presented two letters from friends. These persons attest to Mr. Biss's positive qualities as a friend and as a person who is capable of very positive things. Both writers report that since Mr. Biss began treatment for his disorder, his emotional states have levelled off and he has evolved into a more stable person. They both think that Mr. Biss will continue to grow in a positive manner and that he will deal with this illness in a constructive way.

[52] The defense submitted a letter from Dr. Michael Bentley-Taylor dated June 1, 2012. The letter states that in January 2012, Mr. Biss "suffered a life threatening dissection of an aneurysm of his ascending thoracic aorta." Mr. Biss underwent emergency surgical repair, which "included the insertion of a synthetic aortic graft." Dr. Bentley-Taylor stated that tests have revealed that Mr. Biss has "a further dissection of his left vertebral artery." Consequently, Mr. Biss continues under doctor's care.

[53] Mr. Biss read a prepared statement to the court. He said such things as: "With this resolution this week I hope to close a painful process for the victim, her family and for me and for my family", "I accept responsibility", "I know that my contact with her was irresponsible and it was wrong and I have pled accordingly and I accept the consequences" and "I am truly sorry for what I allowed to happen."

[54] He referred to his "mental health condition" and to his successful treatment over the last two years. He asks the court to consider this is a mitigating circumstance and requests that the court's sentence "allows this to continue and for me to move on with what's left of my life." He is confident that he will be able to contribute in a constructive manner to society because of the therapy that he is undergoing and because he has many loved ones who will help him.

[55] He stated that "as a consequence of my errors in judgment I too have been forced to sit painfully silent through public, professional and private attacks that have brought mind blowing and literally heart rupturing shame."

[56] Perhaps it is there somewhere between the lines, but an apology to the victim, who was in court listening to his statement, is not evident.

The Position of the Parties

[57] The Crown seeks a sentence of between 15 and 18 months imprisonment, plus three years probation. The defence asks for a sentence of between 9 and 12 months, plus one year probation.

Analysis

Mitigating Factors

[58] The defense submitted that the following are mitigating factors:

1. Mr. Biss pleaded guilty and accepted responsibility and is remorseful.

2. Mr. Biss suffered a great deal as a result of what he did, for example, the loss of his job, the shame that he endured in the community, and possibly his recent medical illness.

3. There have been no charges or offenses committed by Mr. Biss since he was charged with the offense before the court.

4. Mr. Biss has undergone a meaningful therapy regime, which he continues, and which bodes very well for the future.

5. Mr. Biss has strong community and family support.

6. The offending behaviour only lasted about six months.

Aggravating Factors

[59] The following are aggravating factors.

1. Mr. Biss committed a breach of trust because he was the victim's teacher.

2. Although the conduct lasted about six months, the sexual activity between Mr. Biss and the victim was frequent. It involved not only touching, but mutual oral sex and masturbation and digital penetration of the victims vagina. In addition, Mr. Biss attempted to have sexual intercourse with the victim on several occasions, but was unable to do so for a reason that has not been explained to the court.

3. Mr. Biss went along with the victim's deception over her parents in order that she could go to Italy to be with him.

4. The effect on the victim of the relationship is devastating.

The Law

[60] The Criminal Code enumerates principles of sentencing in sections 718 to 718.2, which the court must take into consideration in this case.

[61] Section 718 states that "The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offenses;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community."

[62] Section 718.01 states that the primary consideration in sentencing a person for an offense that involved the abuse of a person under the age of 18 years is denunciation and deterrence of that conduct.

[63] All sentences "must be proportionate to the gravity of the offense and the degree of responsibility of the offender" (s. 718.1).

[64] In section 718.2 the Criminal Code directs that "evidence that the offender, in committing the offense, abused a person under the age of 18 years" and "abused a position of trust or authority in relation to the victim" are to be considered aggravating factors.

[65] In addition, the Criminal Code directs in section 718.2 that sentences "should be similar to sentences imposed on similar offenders for similar offenses committed in similar circumstances." This section also directs the court to consider all appropriate alternatives to imprisonment before sending an offender to jail.

[66] Counsel submitted many cases to the court in an effort to assist the court in determining the proper sentence to impose on Mr. Biss. These cases were very helpful and the court thanks counsel for this assistance.

[67] As is often the case, sentencing case law is of assistance to a sentencing court only in a general way because it can only demonstrate what other courts have considered important in sentencing offenders for a particular offense. However, it gives the court an idea of the sentencing range that is considered reasonable in the jurisprudence. But no one case is the same as another; therefore, the cases presented to the court cannot be but a guide in sentencing the offender before the court, albeit a very helpful one.

[68] The jurisprudence presented to the court in the case at bar refers to many different offenders charged in many different circumstances, all of which are different from the case at bar in their specifics. The range of sentences for this type of offense in this jurisprudence is between 6 months and 18 months. None of the cases is sufficiently similar to the case at bar that it would require the court to impose the same sentence in order to honour the principle of parity.

[69] Some of the cases point out factors which are helpful in determining what sentence to pass on Mr. Biss. I would like to refer to these now.

[70] With regard to the potential for rehabilitation of the offender, the Ontario Superior Court of Justice stated in Her Majesty the Queen v. Brent Ashley, 2010 ONSC 6228, at paragraphs 40 and 41 that "the potential to be rehabilitated,…should not be the focus of this court in sentencing an offender who has breached the trust of someone over whom he had authority and who was vulnerable. The focus must be general deterrence and denunciation."

[71] With regard to the importance of teachers to their students and society at large, in Her Majesty the Queen v. Christopher Paul Mclister, (Sup. Ct. Justice), August 31, 2011, Ct. File No. 1476/10 and No.1530/10, the court said that "it goes without saying that a teacher is in a position of precious trust with respect to the students that he deals with" (page 5).

[72] The court quoted from Justice La Forest's decision in R. v. Audet (SCC) where he stated that "… Teachers play a key role in our society that places them in a direct position of trust and authority towards their students. Parents delegate their parental authority to teachers and entrust them with the responsibility of instilling in their children a large part of the store of learning they will acquire during their development."

[73] Justice La Forest added that "the integrity of the education system also depends to a great extent upon the perceived integrity of teachers…" He pointed out that the activities of teachers outside the classroom "may conflict with the values which the education system perpetuates".

[74] In R. v. Plews [2011] O.J. No. 378 (Ont. Sup.Ct) at paragraphs 39, 40, Justice Hill pointed out some very relevant considerations with regard to the role of teachers in our society. He said that "Not only do teachers in the school environment stand in the place of parents insofar as community expectations of how they will instruct and care for students, but also it is anticipated that an educator will be a role model for young persons."

[75] Justice Hill cited Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at paragraph 43, where the Supreme Court of Canada stated that:

Teachers are inextricably linked to the integrity of the school system. Teachers occupy positions of trust and confidence, and exert considerable influence over their students as a result of their positions. The conduct of a teacher bears directly upon the community's perception of the ability of the teacher to fulfill such a position of trust and influence, and upon the community's confidence in the public school system as a whole.

[76] Justice Hill stated that "A teachers position of trust is essential to the efficient operation of the school system:"

[77] He cited the Ontario Court of Appeal's decision in R. v. Lysack, [1988] O.J. No. 287 at paragraph 5 that "Teachers are the trustees of the most precious possession of the community and must be held strictly accountable for any breach of that trust."

[78] He pointed out that In R. v. R.F.G. 2006 NBCA 104 at paragraph 32 the court said that the relationship of trust between a teacher and a student "is considered to be one of the most sacred in our society".

[79] Justice Hill observed at paragraph 47 that "The overarching principle in sentencing is protection of the public. In the instance of a breach of trust by a teacher, general deterrence and denunciation are paramount concerns."

Disposition

[80] The victim initially came to Mr. Biss for guidance and support because her parents had separated. He took advantage of her vulnerability to begin a relationship with her during which he engaged in multiple acts of sexual misconduct with her over approximately six months. This involved sexual activities in cars in parking lots, in hotel rooms in Italy and in tents in Kenya. In addition, at minimum, he consented to an enormous deception of the victim's parents in order to be with her in Italy.

[81] The sexual activities involved fondling, mutual masturbation, oral sex and several attempts at full intercourse. It was not a minor liaison. The effect on the victim has been devastating. Mr. Biss committed a gross breach of trust by which he not only affected the victim and her parents, but his school and his colleagues. This type of crime tends to add to the cynicism that exists in society regarding persons in positions of trust with young persons. In this way the consequences of this offence go far beyond those immediately affected.

[82] Being Bipolar does not excuse Mr. Biss's behaviour. He was not incapacitated to the point that he was not criminally responsible for his acts. It is unfortunate that his physical health has declined, and that he will not be able to continue to see Dr. Dimanno while in custody. However, this cannot prevent him from being sentenced in accordance with the principles and jurisprudence cited above.

[83] The court must denounce what Mr. Biss did in the strongest terms to try to protect young girls in schools and to ensure all parents with young daughters in school that this behaviour will not be condoned or treated lightly. In order to deter this conduct the court must send a clear and stern message to all teachers who may be tempted to engage in sexual relations with their students that they will be punished in a meaningful way.

[84] After considering all of the circumstances, the law and the submissions of counsel I have determined that the appropriate sentence is 14 months imprisonment with three years probation.

[85] As a condition of his probation Mr. Biss is to:

1. Report to his probation officer as soon as possible after he is released from custody and thereafter as directed by the probation officer and obey all of the other statutory conditions of his probation order.

2. Not have any contact with the victim or her family.

3. Continue under the care of a psychiatrist or psychologist for Bipolar II Disorder unless his psychiatrist or psychologist provides a letter to his probation officer explaining that he no longer needs to be under care for Bipolar II Disorder.

4. Sign all releases of information required by his probation officer in order for his probation officer to monitor his compliance with the probation order.

[86] Mr. Biss is to required to comply with the Sex Offender Information Registration Act for a period of 20 years pursuant to s. 490.013(2)(b) of the Criminal Code.

[87] Mr. Biss is required to provide a sample of his DNA. Pursuant to s. 487.04 of the Criminal Code. He committed a primary designated offence.

[88] The victim fine surcharge is waived.

Released: September 27, 2012

Signed: "Justice J. W. Bovard"