WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2014-07-25

Court File No.: Halton 2568/12

Between:

Her Majesty the Queen

— AND —

C.S.

Before: Justice L.M. Baldwin

Heard on: July 15, 2014

Reasons for Sentence released on: July 25, 2014

Counsel:

• Nick Chiera, counsel for the Crown
• Joseph Fiorucci, counsel for the defendant C.S.

BALDWIN J.:

[1] Guilty Plea and Charge

[1] On July 15, 2014, C.S. pled guilty to sexual exploitation contrary to s. 153 of the Criminal Code. The Crown proceeded by indictment. This offence has a mandatory minimum sentence, at the time it was committed, of 45 days incarceration.

[2] The charge pled to is that C.S., between the 1st day of September in the year 2005 and the 31st day of July in the year 2010, both dates inclusive, at the City of Burlington, being a person with whom A.R., a young person, was in a relationship of dependency, did for a sexual purpose touch directly the body of A.R., with a part of her body to wit: her vagina to his penis.

[3] Agreed Statement of Facts

[3] An Agreed Statement of Facts was filed as Exhibit #1 on the guilty plea:

C.S., a teacher, first met A.R., in September 2004, when she was teaching him French for two months at his elementary school, H[…], in the town of O[…].

The principal at the school had a list of "at-risk" students that teachers could sign up to help. At that time, A.R. was 13 years old and was a Crown ward residing in a group home. C.S. signed up to help A.R., but the principal assigned her to another student. C.S. and A.R. had a normal teacher-student relationship for the two months period that she taught him.

Prior to leaving the school in November 2004, C.S. told the class that she would be leaving and A.R. was quite upset that she was leaving. C.S. began teaching at another school in Burlington, but, in the meantime, she felt she needed to follow up with A.R. Therefore, she pursued a volunteer position with the Hamilton Children's Aid Society, and completed all the necessary courses and checks to be a support person for A.R.

Through this volunteer position, as A.R.'s support person, C.S.'s role involved taking him out of the group home once a week for outings. In or around the summer of 2005, A.R. began speaking to C.S. about wanting to get out of the group home and wanting to find a foster family. He suggested that maybe he could come to live with C.S. C.S. and her family pursued this with the CAS and, on or about September 1, 2005, A.R. moved into the S. home, which became his foster home. A.R. was 14 years of age at the time.

Over the course of the next year or so, C.S. was A.R.'s foster mother upon whom he was dependent. The relationship developed into a very close relationship. One day, when A.R. was 16 years of age, when C.S. and A.R. were in the home together and were discussing something that was upsetting to A.R., they hugged and exchanged a kiss. Within the next week or so, when C.S. went into A.R.'s room to say goodbye before leaving for work one day, the two of them began to talk and ultimately had sexual intercourse for the first time.

There was sexual contact between C.S. and A.R. on many occasions after that first occurrence. A.R. continued to reside with the S. family until July 11th, 2008. During the period of time when the sexual relationship occurred, A.R. was either in a relationship of dependency with C.S. or C.S. was in a position of trust or authority toward A.R.

On March 9th, 2012, J.C., who is the brother-in-law of the Accused, provided a written statement to the Yuba County Sheriff's Department in Marysville, California wherein he advised the police that his sister-in-law, the Accused, C.S. had a sexual relationship with her foster son. J.C. did not provide any identifying information regarding the foster son, other than stating that the foster son was of "East Indian descent".

J.C.'s complaint to the police prompted a criminal investigation into the matter by the Halton Regional Police Service. On April 19th, 2012, Detective Constable Charlotte Zarowny of the Halton Regional Police Service made a telephone call to the Accused, C.S. During this telephone conversation with C.S., Det. Cst. Zarowny ascertained that the C.S. she was speaking with was the same C.S. that the Complainant, J.C., was referring to in his statement to police.

When Det. Cst. Zarowny confronted C.S. regarding the information that police had received from J.C. that she had an inappropriate sexual relationship with her foster son, C.S. started to cry and admitted that she did have sexual contact with her foster son A.R. when he was 16 years old.

C.S. was cooperative with police and agreed to attend the police station at 10 a.m. that day to speak with Det. Cst. Zarowny. C.S. did attend at the police station that morning and provided a cautioned videotaped statement to Det. Cst. Zarowny during which she provided a very detailed account of the history of her relationship with A.R.

On April 25th, 2012 Det. Cst. Zarowny contacted A.R. by telephone and spoke with him. During this telephone conversation, A.R. initially told the officer that he did not want to speak with police about his foster family. However, approximately one month later, on May 31st, 2012, A.R. did provide a videotaped statement to Det. Cst. Zarowny wherein he confirmed the sexual relationship with C.S.

On August 22nd, 2012, C.S. was charged with the offences before the court.

[4] At all times C.S. has indicated that she wished to plead guilty to the charge. No trial date was set. I have had carriage of this matter as the Judicial Pre-trial Judge since April of 2013. During this period of time, significant information was amassed for the sentencing including the following Exhibits referenced below:

(1) Employer's Letter dated March 26, 2014 written by B.V.

[5] In this letter, Mr. V., notes that C.S. began working for him at Apex Results Realty Inc. in August of 2012. She was initially hired as the front desk receptionist and, as of March 2013, she is employed as the Office Manager in charge of Salesperson Support.

[6] The letter is glowing with respect to C.S.'s employment. He writes that it would be impossible to run the office at its current level of effectiveness without C.S.'s direct involvement.

[7] He has known C.S. and her family personally since 1975. He is aware of the charges before the Court and he writes:

I can categorically state that the actions leading to the charges are entirely out of character for C.S. In fact I will state without any reservation that I would not hesitate for any reason or at any time in asking C.S. to look after my own 11 year old son and 17 year old step-son.

[8] In addition to his real estate business, Mr. V. is also a licensed teacher and he has served for 10 years as a trustee of the Halton District School Board in the capacity of Vice-Chair and Chair.

(2) List of Health Issues and Prescribed Medications

[9] C.S. suffers from serious longstanding physical conditions and a number of mental health conditions: Lupus, Kidney Disease (caused by Lupus); high blood pressure; Hypothyroidism, Irritable Bowel Syndrome, Sleep Apnea, Depression, Anxiety, Panic Attacks, Claustrophobia, Migraines, Painful Sexual Intercourse (Dyspareunia).

[10] This information is verified in the filed medical reports. These conditions were diagnosed well before the offence occurred. She is on 7 prescription drugs at this time.

(3) Forensic Psychiatric Assessment by Dr. Gary A. Chaimowitz (Head of Forensic Services, St. Joseph's Healthcare, Hamilton) dated February 5, 2014

[11] In this thorough and detailed assessment, Dr. Chaimowitz concludes that C.S.'s risk to re-offend is low. His conclusion is noted below:

C.S. is a forty-nine year old lady who developed a relationship with a foster child. The relationship became sexual and continued on for several years.

C.S. is married with two children. She facilitated this young person moving into her home. During this youth's stay in her home she began to have sexual intercourse with him. Their relationship continued on for many years, even after the time that he moved out of her home. Her marital relationship was problematic before this happened and certainly worsened during this time. There were all sorts of impacts on the children, especially her daughter.

C.S.'s position is that even though she was possibly in love with this young person, she feels he manipulated her and in some respects ascribes some responsibility to him. Although she shows a fair amount of insight and remorse today as opposed to what was revealed during some of her initial utterances after she was arrested, she still does not see this man as a young person that she had intercourse with, rather as she would describe it, a man in a child's body. C.S. has some fairly serious medical conditions, a history of Panic Attacks and certainly some depressive features now, and is on medications for those. She does not appear to have any other indicia of anti-sociality. She does not abuse illicit substances. She has lived a pro-social life with no prior criminal charges. She appears to be a naïve, kind and gentle person with fairly limited sexual behaviour. She only has had one prior partner, namely her husband, and at the time this happened this relationship was not going well.

Somewhat naïve sexually and intimately, she engaged in criminal and inappropriate behaviour, exercising extremely poor judgment and ultimately behaviour.

This appears to have been an isolated incident (or series of incidents). Although her risk of further inappropriate sexual behaviour with underage individuals is greater than that of the general population, statistically the likelihood of her re-offending would be low. That likelihood could be mitigated by long term counselling, specifically with relationships and this past history as a focus.

(4) Psychological Assessment and Treatment Report written by Dr. Heather Moulden, faxed to counsel on June 10, 2014

[12] C.S. was seen by Dr. Moulden on April 10, 17, May 1, 8, 15, and 22, 2014 to participate in a psychological assessment to inform treatment planning.

Dr. Moulden concludes that C.S. is of low-moderate risk for sexual reoffending compared to other female sexual offenders. It is important to note that the base rate for female sexual recidivism is already quite low, at approximately 1 – 1.3%. (p. 3)

[13] C.S. presents as generally conforming and unassuming. The implications of this are that C.S. struggles at times to assert her needs and impose personal boundaries.

[14] She has demonstrated some insight into some of her psychological vulnerabilities, such as problems with conflict and assertiveness, and boundaries.

C.S. would benefit from engaging in Cognitive-Behavioural Therapy aimed at addressing her sexual behaviour and related issues.

Offender's Statement to the Court

[15] C.S. made a statement to the Court after sentencing submissions were heard. The text of her statement was filed as Exhibit #6. C.S. is profoundly remorseful for this offence and she is sincerely committed to her family, friends, employment, and all counselling and treatment programs.

Position of the Parties

[16] The Crown's original sentencing position was a penitentiary term given the enormous breach of trust inherent whenever a person who is acting as a parent sexually abuses a child.

[17] Given all the unusual factors in this particular case, the Crown reduced that position to a term of incarceration between 15 to 18 months.

[18] The Crown's position changed once again, based primarily on all the psychiatric and psychological information, to a jail term of 12 months.

[19] The Defence asks the Court to impose a sentence of 90 days to be served intermittently and for a 3-year Probation Order with strict terms including curfews.

[20] Both the Crown and the Defence referred to the case of R. v. Paterson, a decision from the Ontario Superior Court in Kenora released on November 26, 2010 by Justice E.W. Stach indexed as [2010] O.J. No. 5108.

[21] The facts in this case are strikingly similar to the facts in Paterson. Following a trial where the victim testified, and later presented a Victim Impact Statement (neither of which happened here), Judge Stach imposed a sentence of 6 months followed by 18 months of probation, 12 months of which contained house arrest conditions. At the time Ms. Paterson committed the sexual exploitation offence against her foster son, there was no mandatory minimum sentence. The Crown in that case was asking for a penitentiary sentence between 3 to 5 years. The Defence in that case was asking for a conditional sentence.

Decision on Length of Jail Term to be Served

Mitigating Factors:

[22] Unlike the Paterson case, there was no trial where the victim was required to testify and there is no Victim Impact Statement.

[23] This matter was reported to the police by C.S.'s brother-in-law, following a confession of this behaviour by C.S. to her sister. When C.S. was contacted by HRPS on April 19, 2012 she made an immediate confession. That same day she provided a cautioned videotaped and detailed inculpatory statement.

[24] When the victim was contacted he originally said he was not going to provide a statement. One month later he did provide a statement describing the sexual relationship with the offender during the time spent in her house as a foster child and for a period of time after he had moved out. He maintained that he did not wish to participate in the court process.

[25] It is safe to say, that but for the confessions of the offender herself, this crime may have never come to the attention of the police.

[26] Immediately upon entering the criminal justice system, this offender has engaged intensely and continuously in assessments and counselling plans to address the root causes of the offending behaviour. She is committed to follow through with all recommended therapy and counselling in the future.

[27] She has no criminal record, she is sincerely remorseful and she is at low risk to re-offend.

[28] This offender has already suffered public humiliation and she will never teach or be a foster parent again. Her marriage has ended. She has caused her family great pain and she will live with that fact forever.

[29] Despite these circumstances of her own making, she now has a career she is thriving in and she continues to have the support of family, friends and colleagues.

Aggravating factors:

[30] The victim here falls into the category of the most vulnerable of victims. He was a sexually abused boy who had become a Crown Ward and needed the protection of society and a foster family of his own.

[31] The sexually offending behaviour was intercourse, many times a month for a number of years. The offending behaviour has been described as isolated with respect to how C.S. conducted the rest of her life, but the offence here was not an isolated incident. It went on and on until the victim himself stopped it.

[32] Denunciation and deterrence are prime sentencing factors in this kind of case.

[33] Parliament has once again increased the mandatory minimum sentence where the Crown has proceeded by indictment. If this offence were committed today, the mandatory minimum sentence is one year in jail.

Intermittent verses Straight Jail Terms Exceeding 90 days:

[34] According to the evidence filed, if I sentence C.S. to a jail term exceeding 90 days, which is the maximum jail time one can serve on an intermittent basis, then she will lose her new career and she will lose a great deal of the stability that she has achieved since this offence came to light.

[35] C.S. has never spent time in jail. She was released on an Undertaking on these charges. Given her psychological and medical profile, I conclude that any jail time will be very difficult emotionally and physically for her.

[36] Accordingly, based on the unusual factors present in this particular case, I sentence C.S. to a 90-day jail term to be served on an intermittent basis. We will discuss the days and hours of those weekend terms in a moment.

[37] While serving this sentence C.S. will have a condition of her probation order requiring that she shows up to jail on time and in a sober condition.

3 year Probation Order:

[38] C.S. will be on a Probation Order for 3 years. In addition to the statutory terms, she will report as directed; be required to attend for all recommended counselling and therapy, including Cognitive-Behavioural Therapy, and sign consents so that can be monitored by her probation officer; she will not possess weapons; she will have no contact directly or indirectly with the victim and will not be within 500 metres of any place she knows him to be; she will not be employed or volunteer in any capacity where she is in a position of trust or authority over persons under the age of 18 years; she will keep the peace and be of good behaviour.

Ancilliary Orders

[39] DNA sample is ordered

[40] SOIRA order is for 20 years

[41] S. 109 weapons prohibition order is for 10 years

[42] Victim fine surcharge is waived. Count #2 (Sexual Assault) is withdrawn by the Crown.

Released: July 25, 2014

Signed: "Justice L.M. BALDWIN"