Court File and Parties

Court File No.: Region of Durham 998 11 00961

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

D.J.M.

Before: Justice J. De Filippis

Heard on: 26 September 2012

Reasons for Sentence on: 5 October 2012

Counsel:

• Ms L Turner for the Crown
• Mr. R. Hayward for the Defendant

Reasons for Sentence

De Filippis, J.:

[1] Deciding on the right sentence can be difficult especially when, as in the present case, the offence is serious and it caused lasting harm to the victim. The challenge is made greater here because the crime occurred almost 50 years ago, it was committed with other related offences for which the offender has already been sentenced, and the offender is now an old sick man.

[2] At the conclusion of a preliminary inquiry, D.J.M. pled guilty to the charge of gross indecency. The facts of the offence are based on the testimony of J.Y.[1] It will suffice to note the following: The victim is now 57 years of age and the defendant is 18 years older. In the 1960's, the defendant's (first) wife was a teacher at a school for aboriginal children on Georgina Island. During this time the defendant was a lay Minister on the island. When the victim was seven years old, he and his sister were taken from their natural parents by child welfare authorities and placed in foster care with the defendant and his wife. These foster children continued to live with the defendant when he and his wife moved away from the island to a farmhouse near Bowmanville. When the victim was eight or nine years old, the defendant came into his room and lay beside him. The defendant was naked and told the young boy to perform fellatio. The victim did as he was told. This happened again but the victim cannot recall how often. It ended when the family moved again in 1968, when the victim was 12 years old. These offences occurred during the same period of time as those involving Mr. J.Y.'s sister.

[3] In 2006, the defendant pled guilty before me to committing an indecent act with respect to the present victim's sister. The defendant was then 69 years old. I sentenced him to four years in jail. As of that time, Mr. J.Y. had not disclosed what the defendant had done to him. He did that in December 2010 when, in an intoxicated state, he presented himself at a police station and said he was "tired of it coming back…..the drinking abuse because of what had happened". A month later a formal statement was taken from him by the police.

[4] The victim and defendant were present for the sentence hearing supported by friends and relatives. Through Crown counsel, the victim advised me that he is glad the case is over, wants to move on with his life, and hopes the defendant is held accountable.

[5] Before retirement the defendant worked for 28 years for the federal and provincial governments. A review of material filed by Defence counsel reveal the following: The defendant successfully completed the sex offender program while previously incarcerated. Correctional authorities assessed him at a low risk of future sexual recidivism. This conclusion is supported by a psychiatrist at the Centre for Addiction and Mental Health. The defendant recently had surgery for prostate cancer. Throughout his life he has been active in volunteer and community organizations. His pastor and her husband describe him as a faithful member of the Church who has asked for forgiveness for past wrongs. The defendant's wife is also 75 years old and reports that she needs her husband around the house and cannot stay there alone.

[6] Crown counsel submits that a fit sentence is 18 months jail, followed by probation for three years. This submission is based on the assumption that had the present offence been known at the time the defendant was previously sentenced, the global sentence would have been around six years in jail. Given the passage of time and what is known about the offender since that last sentence, the Crown suggests that he serve another 18 months in jail. Defence counsel argues for a conditional sentence of house arrest for a period of three to six months, followed by probation. Counsel suggests that had the defendant been sentenced with respect to both victims in 2006, the likely sentence would have been the same, given the principle of totality. Moreover, the defendant is now 75 and dealing with cancer.

Sentencing Principles

[7] The purpose and principles of sentencing is defined in section 718 of the Criminal Code as the maintenance of a just, peaceful and safe society by the imposition of 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 offences;

(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;

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

[8] Sections 718.2(a)(ii).1 and (iii) direct that offences involving children and breach of trust are to be considered aggravating factors. This codifies established common law principles that have guided judges in the past.

[9] Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. The first three criteria are not obstacles in this case; the only issue is the fourth pre-requisite.

Analysis

[10] The defendant's crime hurt the victim to such an extent that it and has been a contributing, if not the primary, cause of his alcohol abuse. This is not surprising; the offence happened when he was a boy and perpetrated by a foster parent. The latter's misconduct represents an enormous breach of trust. These considerations weigh heavily against the defendant. On the other hand, it has been almost half a century since the offence was committed and there is virtually no risk the defendant will re-offend. Moreover, his guilty plea is an expression of remorse. Although it came after a preliminary hearing, there were triable issues in this matter and the acknowledgement of responsibility is a mitigating factor. Thus, rehabilitation and specific deterrence are not relevant factors in this sentence; the applicable principles are denunciation and general deterrence.

[11] Mr. D.J.M. must account for what he has done. In this regard, the passage of time is a double edged sword; the defendant should not be rewarded because it took so long to bring him to justice, yet I have no doubt that the man I am sentencing is no longer the one who committed the crime. The issue is further complicated by the fact that the offence is part of a pattern of activity for which the defendant has already been sentenced. This is not meant to diminish the individuality of the victim and the harm done to him but, rather, to place it within a context that cannot be ignored. This is discussed at length in R v James, 2012 MBPC 31.

[12] Can a conditional sentence meet objectives of denunciation and deterrence? It will be a rare case in which a such a sentence is appropriate for the sexual abuse of children; for one such example, see R v W.(L.F.), 2000 SCC 6, [2000] 1 S.C.R. 132.

[13] Had all offences been dealt with in 2006 I am of the view that, applying the principle of totality, a global sentence of five to six years would have been imposed. In these circumstances, the Crown's request for further custody is otherwise appropriate; see James, supra. However, having regard to the defendant's advanced age and serious medical condition, I find this to be one of those rare cases in which a conditional sentence is appropriate. Such a sentence is not jail, but it can be a significant restriction on liberty. That is what I intend so that the principles of denunciation and deterrence are served.

Sentence

[14] The defendant will serve a conditional sentence of 18 months on the following terms of house arrest: He must remain in his residence at all times except for medical emergencies involving him or his spouse. He may be outside the home, while remaining on the property of that home, for one hour per day. The defendant may be out of the home and away from the property with the prior written permission of his conditional sentence supervisor:

• For a specific three hour period once per week for personal shopping and errands
• For a specific three hour period to attend genuine religious worship
• To attend at any scheduled counseling, legal, medical or dental appointment
• Any other reason approved of by your conditional sentence supervisor

[15] Having regard to the comments I have made I decline to impose a probation order as it not serve a useful purpose. The defendant will be subject to the federal sex offender registry (SOIRA) for life. There will be prohibiting him from possessing weapons for life. Finally, he is ordered to provide a sample of his DNA.

[16] Mr. J.Y. showed courage and determination in pursuing this matter. Now that the case is over, I hope he can continue to move forward with his life.

Released: 5 October 2012

Signed: Justice J. De Filippis

[1] The victim declined the offer of a court order banning publication of his identity.