Court File and Parties
Court File No.: 1111-998-11-505-00 Date: December 19, 2014 Ontario Court of Justice
Between: Her Majesty the Queen Respondent
— And —
Richard Young Applicant
Before: Justice D.A. Harris
Heard on: October 17, 2014
Reasons for Judgment: December 19, 2014
Counsel:
- Mr. D. King, for the Respondent, Crown
- Mr. M.C. Harmes, for the Applicant, Richard Young
Reasons for Judgment
HARRIS J.:
Introduction
[1] Richard Young pled guilty to possession of child pornography and careless storage of ammunition.
[2] I sentenced him on November 15, 2012.[1] The sentences included imprisonment for 90 days to be served on an intermittent basis, probation for three years, forfeiture orders, a DNA order, a Sex Offender Information Registration Act order, a firearms prohibition and most significantly for this application, an order pursuant to section 161 of the Criminal Code.
[3] Mr. Young has now applied for a variation of the section 161 order.
[4] That order prohibited Mr. Young for 10 years from:
attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, except when in the immediate company of his wife Sandra Young for the purpose of attending events or activities involving one or more of their children;
seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; or,
using a computer system within the meaning of section 342.1(2) for the purpose of communicating with a person under the age of 16 years other than his children.
[5] Mr. Young has asked me to vary the first part of this order only. Parts 2 and 3 are to remain unchanged.
[6] He has requested that I vary the first part of the order in three ways. These are:
That Mr. Young no longer be required to be accompanied by a named adult when attending a location in order to attend an activity involving one or more of his children;
That he be permitted to attend at an arena for the purpose of participating in an adult hockey league; and
That other named individuals be permitted to accompany him to prohibited locations, when the attendance is for a purpose other than attending the activities of his children.
[7] Crown counsel opposed the application.
The Law
[8] This application is made pursuant to section 161(3) of the Criminal Code which provides:
(3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.
[9] The issue for me to determine then is whether the variation is desirable because of changed circumstances after the conditions were prescribed.
[10] The first question that arises from that is whether there have been any changed circumstances.
Have Circumstances Changed?
[11] Counsel for Mr. Young argued that the following qualify as changed circumstances.
[12] Mrs. Young has to attend each and every activity involving the children because Mr. Young may not attend without her being there too. These activities often conflict with her busy and irregular schedule as a nurse. This is causing her stress. It also restricts which activities the children can engage in.
[13] Mr. Young is employed as an electrician in a business owned and operated by members of his family. Occasionally, they are called to jobs at locations which Mr. Young is prohibited from attending. In those cases someone other than Mr. Young must do that work. That is placing stress on the employer and on Mr. Young's financial situation.
[14] He has completed his jail sentence. He has complied with the various court orders including his probation order for over two years. This includes attending for counselling on a regular basis. Mr. Young does not feel that he is a threat to children.
[15] I have been provided with a copy of a letter sent by the counsellor Mr. Ricketts to Mr. Young's probation officer. I do note that the letter is dated October 3, 2013, which is more than a year ago. The letter states:
I have been involved with providing counselling services to Mr. Young since September 2011. Initially I met with Mr. Young weekly. At the present time I meet with Mr. Young once a month.
I would be in strong support of Mr. Young being able to attend community outings where children are present, provided that he is in the presence of an adult who is aware of his criminal charges. I do not believe that Mr. Young poses a safety risk to children. This would take the pressure off Mr. Young's wife, since at present she is the only person authorized for these events. Allowing Mr. Young to attend at the arena to play hockey would also be beneficial to his stress and improve his functioning.
I do not have any concerns about Mr. Young's rehabilitation. Mr. Young continues to attend counselling sessions and is motivated to change his behaviour. I have also had contact with Mr. Young's wife to verify his changes. Mr. Young continues to follow any recommendations that I have made to him during the course of his counselling.[2]
[16] Mr. Young would like to resume playing hockey with a group of adults at an arena in Hamilton. His wife is not able to accompany him to these and so he has not been able to participate. He argues that the value in this can be found in Mr. Ricketts' statement that "allowing Mr. Young to attend at the arena to play hockey would also be beneficial to his stress and improve his functioning."
[17] I disagree with counsel's argument that the difficulties experienced by Mr. and Mrs. Young with respect to the activities of their children constitute a change in circumstances. Mr. Young's counsel at his sentencing hearing was clearly aware of the ramifications of the proposed order. So was I. That was why counsel proposed and I agreed to the exceptions that were included. All that has changed is that Mr. and Mrs. Young may now have a greater awareness of the consequences of the order after having lived with those consequences for more than two years.
[18] I accept that it is possible that, prior to sentencing, no one turned their mind to the fact that Mr. Young's work might occasionally call for him to go to locations where he would be prohibited from attending.
[19] I do note the total absence of detail as to how this "is placing stress on the employer and on Mr. Young's financial situation".
[20] I do not accept the argument that his continued adherence to the limits placed on him by the various orders or the fact that he has now undergone much more counselling constitutes a change in circumstances. Mr. Young states that he does not consider himself to be a danger to children now, but as I recall, he did not see himself as such a threat back when I sentenced him either.
[21] I do not accept the argument that Mr. Ricketts' comment on the potential benefits of physical exercise such as hockey constitutes a change in circumstances.
[22] I do accept that the circumstances have changed somewhat in that a larger number of family members who are aware of Mr. Young's history are now prepared to act as "chaperones" accompanying him to places where he would not otherwise be allowed to attend. Expanding the list of such chaperones could reduce the demands on Mrs. Young while allowing Mr. Young to participate more fully in the lives of his children. Additionally, since a number of these people are co-workers, as well as relatives, of Mr. Young, expanding the list could reduce the impact that the order currently has with respect to Mr. Young's work.
[23] The fact that I find there to be a change in circumstances is not however the end of the matter. There is still the question of whether the variation is desirable as a result of that change.
Is the Variation Desirable?
[24] The terms of the section 161 order are onerous and have had significant effects on Mr. Young and on his life.
[25] That is to be expected though. Section 161(1) allows an order to be made "in addition to any other punishment that may be imposed". In other words, the section 161 order is also a punishment. I certainly considered it to be part of the punishment here and it was a factor in my decision to impose what was otherwise in my mind, a very lenient sentence.
[26] That has not changed.
[27] Accordingly, I am not satisfied that it is desirable to vary every part of the order that makes Mr. Young's life difficult.
[28] It must be noted that even Mr. Ricketts still proposes that Mr. Young be able to attend community outings where children are present only when he is in the presence of an adult who is aware of his criminal charges. In light of that, I am not satisfied that it is desirable to vary the order to allow for unsupervised attendance by him at places where children are present.
Conclusion
[29] I am satisfied that it is desirable to vary the first part of the order so as to prohibit Mr. Young from:
attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre, except when in the immediate company of one or more of the following individuals:
(1) his wife Sandra Young (2) his mother Kathy Young (3) his father Ronald Young (4) his brother Dave Young (5) his sister-in-law Kim Young (6) his aunt Tracy Burke (7) his uncle Rick Burke (8) his aunt Marilyn Tone (9) his cousin Andrew Burke (10) his cousin's wife Wendy Burke (11) his cousin Dana Burke (12) his cousin Erin Noble (13) his cousin's husband Chris Noble (14) his wife's uncle Cesare Berti (15) his wife's aunt Marg Pleavin (16) his mother-in-law Eleanor Percy (17) his sister-in-law Trish Tapp (18) his brother-in-law Steve Tapp (19) his brother-in-law Brian Sisson
[30] This variation is effective immediately.
Released: December 19, 2014
Signed: "Justice D.A. Harris"
Justice D.A. Harris
[1] R. v. Young, [2012] O.J. No. 5449 (C.J.)
[2] The highlighted sentences were part of the original letter.