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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.: Not provided

Date: 2016-06-09

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Gordon Stuckless

Before: Justice M. Greene

Reasons for Sentence released on: June 9, 2016

Counsel:

K. Beale for the Crown

A. Goldkind for Gordon Stuckless

Introduction

[1] For thirty years, Mr. Gordon Stuckless abused his position of trust as a teacher, a coach and a person with connections to Maple Leaf Gardens and sexually abused many boys who trusted him. Mr. Stuckless systematically built relationships with parents, schools and sporting facilities so he would be allowed to be left alone with these young boys thereby giving him the opportunity to sexually abuse them. Gordon Stuckless depended on the children's vulnerability, their insecurity, their trust and their fear to commit his offences and keep them hidden. He was so successful in instilling fear and shame in his victims that it took many of them 40 years to come forward. Now, so many years after the harm was inflicted, after Mr. Stuckless has been sentenced previously for similar offences committed during the same time frame, my function is to determine the appropriate sentence for the offences he has committed on 18 different victims. In doing so, the starting point must be that the sentence I impose must protect the public and ensure that Mr. Stuckless will never again hurt another child. My sentence must also send a clear message that adult offenders who put the lives of innocent children at risk will pay a very heavy price. My sentence must also acknowledge the harm suffered by all of Mr. Stuckless' victims and the courage and strength of all the victims that have come forward.

Background

[2] Mr. Stuckless spent 30 years of his life sexually abusing young boys. He structured his world in such a way that it gave him regular access to young boys and opportunity to sexually abuse them. Mr. Stuckless has numerous convictions on his criminal record for sexually abusing young boys. In 1998, Mr. Stuckless received what was effectively a six year sentence for sexually abusing 24 boys. Mr. Stuckless has not re-offended since serving this sentence. Mr. Stuckless' crimes have been well publicized. Three years ago 18 more victims from his past came forward ready to stand up to Mr. Stuckless and make known what Mr. Stuckless did to them. Mr. Stuckless was arrested and charged with these offences. He was released on a very strict, house arrest bail.

[3] On April 22, 2014, Mr. Stuckless entered a plea of guilty to 100 counts of sexual abuse. These offences included 43 counts of indecent assault on a male, 47 counts of gross indecency and 10 counts of sexual assault.

[4] In addition to these convictions, Mr. Stuckless pled not guilty to four charges. After a trial, I found him guilty of two counts of gross indecency in relation to the digital penetration of two of his victims but not guilty of two counts of buggery. In relation to the remaining four counts on the information, the Crown invited the court to dismiss those charges as she could not prove them beyond a reasonable doubt. My reasons for judgment were released on November 5, 2014.

[5] After my judgment was released, further court dates were set aside to provide the Crown with an opportunity to call evidence to prove some aggravating facts not admitted by Mr. Stuckless. Five additional witnesses testified. After hearing all the evidence, I found that the Crown had proven some of the aggravating facts beyond a reasonable doubt but not others.

[6] Once all the facts were established, the Crown argued that Mr. Stuckless should be assessed to determine whether or not the Crown should bring an application to have Mr. Stuckless designated a dangerous offender. I granted the Crown's application and the matter was adjourned for a number of months to allow Dr. Pearce to assess Mr. Stuckless and write a report. Once the report was received, this matter was adjourned again so the Crown could provide the report to the Attorney-General in order to obtain her consent to bring an application to have Mr. Stuckless designated as a dangerous offender. After a number of months, the court was advised that the Crown was no longer seeking to have Mr. Stuckless declared a dangerous offender.

[7] The Crown is seeking sentence of 12 years. Counsel for Mr. Stuckless is seeking a sentence of 5 years with some additional time taken off the sentence to account for the time that Mr. Stuckless has spent on house arrest waiting for his matter to complete.

General Details of the Offences Before This Court

[8] The Crown and defence filed a 21 page Agreed Statement of Fact outlining the details of Mr. Stuckless' admitted criminal conduct. I will attempt to very briefly summarize his offences.

[9] As noted above for 30 years, between 1965 and 1995, Mr. Stuckless volunteered and worked with children. He worked at carnivals, Maple Leaf Gardens and at a number of schools as a teacher's assistant. Mr. Stuckless also volunteered as a hockey coach. All these jobs placed Mr. Stuckless in a prime position to be trusted by children and adults alike. Mr. Stuckless systemically abused this position of trust and sexually abused the 18 victims heard from in this case. Mr. Stuckless often chose children of single parents where a male role model was welcomed, or where there were other difficulties at home ensuring that the parents would allow Mr. Stuckless to be alone with their children. Mr. Stuckless would groom his victims by giving them attention or by making them promises of gifts. On occasion Mr. Stuckless abused his position as a teacher and falsely accused his victims of bad behaviour in order to manufacture an excuse to be alone with a child in order to sexually abuse that child. Mr. Stuckless effectively did whatever had to be done to get himself alone with a young boy to sexually abuse him. After the abuse, Mr. Stuckless would instruct his victims not to tell anyone. Mr. Stuckless on one occasion resorted to threatening his victim. Normally, however, Mr. Stuckles did not have to resort to threats. Instead he relied on his victims' vulnerability, fear and shame to commit his offences and to ensure that his victims did not report the abuse.

[10] While there are common threads with each victim, it is still important to briefly summarize the offences as they relate to each of Mr. Stuckless' victims. This is just a summary and does not serve to present all the details of each act of sexual abuse. The details of each act where outlined in an Agreed Statement of Fact that was filed with the court.

[11] T.J. was 11 years old when he was sexually abused by Mr. Stuckless. Mr. Stuckless worked as a teacher's assistant at the time. The sexual abuse started one day after school when Mr. Stuckless digitally penetrated T.J.. T.J. pulled away and told Mr. Stuckless to stop. T.J. managed to break free and fled the area. In addition to this initial incident, Mr. Stuckless sexually abused T.J. on other occasions. These other instances of sexual abuse included fondling T.J.'s penis, attempts to perform oral sex on T.J. and masturbating himself to the point of ejaculation in front of T.J.. Mr. Stuckless admitted committed the latter incidents of abuse but denied that he ever digitally penetrated T.J.. TJ testified about this incident and I accepted his evidence on this point.

[12] K.P. was 13 years old when he was abused by Mr. Stuckless who was working as a gym teacher at the time. Mr. Stuckless fondled K.P.'s penis and made K.P. fondle Mr. Stuckless' penis. Mr. Stuckless would also masturbate in front of K.P. while looking at K.P.'s penis. Mr. Stuckless sexually abused K.P. over 20 times during an 18 month time span. On one occasion Mr. Stuckless threated to run K.P. over with a car. While this threat was uttered, K.P. did not believe that Mr. Stuckless would in fact follow through with this threat.

[13] R.C. was 11 or 12 years old when he was sexually abused by Mr. Stuckless. Mr. Stuckless was a volunteer at the local rink where R.C. attended. On multiple occasion Mr. Stuckless rubbed R.C.'s penis and then masturbated in front of R.C.. Mr. Stuckless also had R.C. rub Mr. Stuckless' penis to the point of ejaculation. These events took place in Mr. Stuckless' car and at Maple Leaf Gardens.

[14] S.F. was 10 years old when he was sexually abused by Mr. Stuckless. Mr. Stuckless was volunteering as a hockey coach when they met. Mr. Stuckless touched and rubbed S.F.'s penis. Mr. Stuckless also performed fellatio on S.F. and masturbated in front of S.F. to the point of ejaculation. These sexually abusive acts occurred many times over an extended period of time. S.F. estimated that he was abused anywhere from 25-75 times by Mr. Stuckless. All the acts of abuse occurred in S.F.'s home when Mr. Stuckless was permitted to sleep over.

[15] J.D. was sexually abused by Mr. Stuckless when he was 11 years old. J.D. met Mr. Stuckless through Mr. Roby at Maple leaf gardens. J.D. was taken to a room where Mr. Stuckless undid his pants and had JD perform fellatio on him until Mr. Stuckless ejaculated.

[16] K.D. was sexually abused by Mr. Stuckless when he was 13 years old. K.D. met Mr. Stuckless at school where Mr. Stuckless worked as an assistant gym teacher. Mr. Stuckless sexually assaulted K.D. on at least four occasions in K.D.'s home when he put K.D. to bed. Mr. Stuckless masturbated K.D.'s penis on each of these occasions.

[17] Donald Bond met Mr. Stuckless when he was 8 years old. Mr. Stuckless worked at a travelling carnival at the time. Donald Bond's only recollection from this time frame is that he told his mother that Mr. Stuckless touched him. In 1976, when Donald Bond was 12 years old, he met Mr. Stuckless again. Mr. Stuckless was working at Maple Leaf Gardens. Mr. Stuckless took him on a tour of the building and then rubbed Donald Bond's penis for 10-15 minutes while in the washroom.

[18] Sometime between January of 1977 and December of 1980, Mr. Stuckless saw Donald Bond again and gave him a ride home. During this ride, Mr. Stuckless sexually assaulted Donald Bond by rubbing his penis and continued to do so despite Donald Bond telling him to stop.

[19] P.S. met Mr. Stuckless when he was 12 years old. Mr. Stuckless was an assistant gym teacher at his school. Mr. Stuckless sexually abused P.S. three times over a two year period. During the first incident, Mr. Stuckless assaulted P.S. in the change room at school. He rubbed P.S.'s penis and chest area. P.S. pushed Mr. Stuckless away and continued to do so until Mr. Stuckless backed off. The second incident also took place in the change room. Mr. Stuckless rubbed P.S.'s penis again and also attempted fellatio on him. P.S. pushed him away and was eventually able to escape. The final incident of abuse also took place in the change room. Mr. Stuckless tried to remove P.S.'s underwear and then performed fellatio on P.S.. During the assault, P.S. tried to resist and was eventually able to escape.

[20] C.B. met Mr. Stuckless when he was 12 years old. Mr. Stuckless was a hockey coach at the time. Mr. Stuckless pretended to be C.B.'s friend and took him to events. One day, Mr. Stuckless fondled C.B.'s penis over and under his clothes and performed fellatio on him. Mr. Stuckless then masturbated himself to the point of ejaculation. This abuse took place six more times in the same way.

[21] K.M. met Mr. Stuckless when he was 9 years old. Mr. Stuckless was a teacher's assistant at the time. Mr. Stuckless took advantage of his position in the school and would falsely accuse K.M. of wrongdoing as an excuse to hold him back and sexually assault him. On a number of occasions Mr. Stuckless rubbed K.M.'s penis both inside and outside of his clothing.

[22] S.M. met Mr. Stuckless when he was 11 years old. Over a two year time frame, Mr. Stuckless sexually abused S.M.. Mr. Stuckless took S.M. to a dental office where he worked as a cleaner at night and performed fellatio on S.M. and also masturbated himself until he ejaculated. He also took S.M. to a home where he was house-sitting approximately four times and sexually abused S.M. there though forced fellatio.

[23] J.S. met Mr. Stuckless when he was 13 years old. Mr. Stuckless was a teacher's assistant in a special class and at times threatened the students with the prospect of being held back. One day, Mr. Stuckless offered J.S. a ride home. J.S. advised Mr. Stuckless that he was about to smoke a joint. Mr. Stuckless told him to go ahead but that they should do it in a more secluded area. They walked down the path and J.S. smoked the joint. At one point, Mr. Stuckless started to stroke JS's penis. Mr. Stuckless then undid J.S.'s pants and performed oral sex on J.S.. Mr. Stuckless also tried to digitally penetrate J.S. but stopped when J.S. objected. A similar event occurred approximately one month later. This latter event included sexual touching and fellatio. J.S. testified at the sentencing hearing as Mr. Stuckless contested the allegation of digital penetration. I accepted J.S.'s evidence on this point.

[24] G.D. met Mr. Stuckless when he was 12 years old. Mr. Stuckless was a hockey coach at the time. On multiple occasions, while in the arena change room, Mr. Stuckless touched G.P.'s penis and buttocks. Mr. Stuckless also asked G.P. to touch his penis.

[25] S.L. met Mr. Stuckless when he was 10 or 11 years old. Mr. Stuckless was working as a teacher's assistant at the time. Mr. Stuckless sexually abused S.L. on two occasions. The first time he grabbed SL's penis. The second incident of abuse occurred in a hockey change room. Mr. Stuckless grabbed S.L.'s penis and put his hands inside the leg portion of S.L.'s underwear.

[26] B.B. met Mr. Stuckless when he was 10 years old. Mr. Stuckless was a teacher's assistant at his school. Mr. Stuckless gave B.B. a lot of attention outside of school. Mr. Stuckless would frequently touch him and rub up against him. Mr. Stuckless would also touch his penis. On occasion, Mr. Stuckless took B.B. to the movies and would rub B.B.'s penis during the movie. He would also touch B.B. at school and put his hands down B.B.'s pants. On three occasions Mr. Stuckless took B.B. to a house with a pool. On each of these occasions, Mr. Stuckless rubbed B.B.'s penis.

[27] S.K. met Mr. Stuckless when he was 10 years old. At the time S.K. lived with his mother but at times was also in foster care. S.K. was in a special program at a school where Mr. Stuckless was the teacher's assistant. Mr. Stuckless would falsely accuse S.K. of engaging in bad behaviour as an excuse to hold S.K. back. He would then pull the blinds down in the classroom and masturbate S.K.'s penis. He would also try to make S.K. rub his own penis but S.K. would pull his hand away. On other occasions, Mr. Stuckless physically took S.K. to the washroom area and masturbated him in front of the urinal. At the sentencing hearing, S.K. testified that at times, Mr. Stuckless grabbed him by the ear and yanked him down the hallway of the school before sexually assaulting S.K.. I was left in a reasonable doubt that Mr. Stuckless used substantial force in taking S.K. to the washroom.

[28] In addition to these admissions made by Mr. Stuckless, I found him guilty of the following additional offences:

[29] Mr. Stuckless pled guilty to two counts in relation to Mr. Forde. He admitted that he fondled Mr. Forde on multiple occasions and performed fellatio on him. He denied committing the act of buggery and gross indecency on Mr. Forde. After trial, I found Mr. Forde to be a credible and reliable witness and I found Mr. Stuckless guilty of gross indecency but not guilty of buggery. I found that Mr. Stuckless sexually abused Mr. Forde on numerous occasions. I further found that on the last incident of sexual abuse, Mr. Stuckless forced Mr. Forde down on a couch in a barn, removed his pants and penetrated his anus while Mr. Forde cried out in pain and asked him to stop. Despite Mr. Forde's cries, Mr. Stuckless did not stop. After hearing all the evidence, I was left in a reasonable doubt as to whether Mr. Stuckless used his penis or his finger and as a result, I found Mr. Stuckless not guilty of buggery but guilty of gross indecency.

[30] Mr. Stuckless also had a trial in relation to M.S.. Mr. Stuckless admitted that he sexually abused M.S. on multiple occasions but denied committing the act of buggery on M.S. After trial, I found M.S. to be a credible and reliable witness. I found that Mr. Stuckless sexually abused M.S. by touching and fondling M.S.'s penis on more than one occasion. I further found that Mr. Stuckless, while sleeping over at M.S.'s residence, rubbed and fondled MS's penis and performed fellatio on M.S.. The last act of abuse by Mr. Stuckless on M.S. occurred in M.S.'s bedroom. Mr. Stuckless touched M.S.'s penis, performed fellatio on him and then penetrated MS's anus. M.S. screamed in pain and begged Mr. Stuckless to stop, but he did not. It was unclear if M.S. was penetrated by Mr. Stuckless' penis or his finger as a result, Mr. Stuckless was found not guilty of buggery but guilty of gross indecency.

Mr. Stuckless' Background and Personal Information

[31] Mr. Stuckless is 67 years old. He was raised in a loving and supportive home by both his mother and father. Mr. Stuckless has six siblings. At the present time both of Mr. Stuckless' parents are deceased. Mr. Stuckless remains in contact with his siblings and lives with one of his brothers.

[32] Mr. Stuckless testified at trial that he was sexually abused as a child. He also told Dr. Pearce that he had been sexually abused on multiple occasions as a child. Mr. Stuckless reports that when he was 9 or 10 a cousin sexually abused him. At the age of 12 Mr. Stuckless started to work at Maple Leaf Gardens and met George Hannah. Mr. Stuckless told Dr. Pearce that he "ended up prostituting myself to George Hannah". Mr. Stuckless explained that he allowed Mr. Hannah to masturbate him in exchange for hockey memorabilia. This took place for approximately one year and ended when Mr. Stuckless started to actively avoid Mr. Hannah. Mr. Stuckless further reported to Dr. Pearce that when he was 14 or 15 years old he was sexually abused by a family friend.

[33] Mr Stuckless described himself to Dr. Pearce as having been a loner during his childhood years. Mr. Stuckless had few friends, suffered from low self-esteem and was immature for his age. Mr. Stuckless reported that he did play some sports, but was not that involved with others his own age.

[34] Mr. Stuckless has a grade 10 education having quit school at age 17 to start working with his father. Mr. Stuckless took additional high school courses while in custody but did not graduate.

[35] Mr. Stuckless' first work experience was as a steel worker with his father. After four years, Mr. Stuckless started to work for Conklin Shows running carnival games. He worked with them for almost a decade. While working these jobs, Mr. Stuckless also maintained part time employment at Maple Leaf Gardens as a cleaner.

[36] In 1978, Mr. Stuckless started working as a teacher's assistant in the school system. He continued to work as a teacher's assistance until his arrest in the 1980s.

[37] In 1990, Mr. Stuckless moved to Newfoundland to live with his mother. He worked as a hockey director in Newfoundland until his arrest for sexually assaulting another young boy.

[38] Since his incarceration in the late 1990s, Mr. Stuckless has not had fulltime employment.

[39] Mr. Stuckless engaged in a number of volunteer activities throughout his life. He coached various sports teams including lacrosse and hockey. While Mr. Stuckless was always gainfully employed and engaged in the community, it is difficult to commend Mr. Stuckless for this. This is because he sought out positions that allowed him to easily gain the trust of his victims and his victims' families so that he could abuse so many young boys. In other words, while many offenders are given credit for having been gainfully employed and having volunteered in the community, Mr. Stuckless does not deserve this same credit because he abused these positions and used his goodwill in the community to harm those around him (See R. v. W.D.)

[40] Mr. Stuckless does have a criminal record. In 1968 Mr. Stuckless was found guilty of public mischief and received a suspended sentence. He started a small file in the basement at work and then pulled the fire alarm. In addition to this conviction, Mr. Stuckless has a number of convictions in relation to sexually abusing young boys. I am mindful, however that these convictions were entered after Mr. Stuckless committed the offences that are now before the court.

[41] In 1988 Mr. Stuckless was convicted of sexually assaulting a young person while he was a teacher's assistant. The offence took place in 1987. At the time Mr. Stuckless denied having ever committed a similar offence in the past. It is now well known that this denial was a lie.

[42] In 1996, Mr. Stuckless was also convicted of sexual offences on young persons and was placed in the Ontario Correctional Institute to attend a sexual offender program. He pled guilty to one count, but in actuality it was admitted that he sexually abused seven different children. In 1997, Mr. Stuckless was charged with further offences in relation to sexually abusing 24 young boys. He ultimately pled guilty to only 24 counts but additional facts were read in and admitted by Mr. Stuckless. Mr. Stuckless received effectively a six year sentence for these offences. If one includes the present offences, Mr. Stuckless has, over three decades, sexually abused approximately 50 boys.

[43] Mr. Stuckless has been diagnosed with pedophilia. He has been assessed many times over the years. I summarized these assessments in my earlier judgment dated July 13, 2015 and will not repeat them here. More recently, Mr. Stuckless was assessed by Dr. Pearce. According to Dr. Pearce and prison documents provided to the court, Mr.Stuckless started to accept this diagnosis while he was incarcerated at the Ontario Correctional Institute.

[44] In 2001, upon his release from jail after serving what was effectively a six year sentence, Mr. Stuckless was prescribed Lupron, a sex drive reducing drug. Mr. Stuckless has consistently taken this drug ever since.

[45] Dr. Pearce, in his report to the court noted that Mr. Stuckless's sexual preference for young males interfered with the development of his sense of self. Dr. Pearce further noted that despite Mr. Stuckless' sexual offending, as a young person Mr. Stuckless was not rebellious nor conduct disordered.

[46] Dr. Pearce wrote in his report that during Mr. Stuckless' offending years, which spanned decades, Mr. Stuckless was callous and un-empathetic to his victims. Dr. Pearce further noted that with treatment, Mr. Stuckless was able to "acknowledge his deviant thoughts and accept responsibility for his condition". Dr. Pearce also wrote that in his opinion, Mr. Stuckless has good insight into his conduct, acknowledges his paraphilic disorder and plans to continue with his treatment in the foreseeable future.

[47] Dr Pearce further noted that Mr. Stuckless has, since his previous incarceration, been able to maintain meaningful relationships with family members and others.

[48] Dr. Pearce concluded that while Mr. Stuckless has displayed certain antisocial personality traits for extended periods of time in his adulthood he does not meet the full criteria for a personality disorder. Moreover, on the issue of risk, after conducting an extensive risk assessment, Dr. Pearce wrote:

Taking into account clinical factors relevant in this case, it is my opinion that these scores [from the actuarial tests] overestimate this gentleman's likelihood of re-offence. That is, Mr. Stuckless is in his seventh decade of life and he has not offended sexually in two decades. While child molesters become less likely to recidivate with age, it is more compelling that this gentleman has accepted responsibility for his deviant sexual preference and has repeatedly and consistently engaged in treatment for same. "Treatment" in this case refers to biological, psychological and social therapies, all of which have assisted him. He has completed individual and group therapy for sexual offenders, with positive results. Most importantly, he has accepted and consistently complied with potent anti-libidinal medication, namely Lupron. He started this medication in 2002 and while he had no ongoing legal requirement to continue with it following the expiry of his Section 810.1 Order in October 2003, he nonetheless did so. That is, he reported quarterly and as expected for his intramuscular injections. It has been confirmed that he did not miss a single dose over the past decade (at least). I also note that he is well-supported by family members, CoSA and his family physician in the community.

Dr. Pearce ultimately concluded that Mr. Stuckless is at a "very low to low risk for future sexual offences".

[49] Since his release from custody in 2001, Mr. Stuckless has been working with an organization called Circles of Support and Accountability (CoSA). Mr. Stuckless has worked with this agency voluntarily. The organization helps Mr. Stuckless stay on track and remain mindful of his potential risk factors for re-offending. It was clear to me after hearing one of the workers from the agency testify that this agency does very good work with offenders and helps those willing to accept their help focus on being pro-social members of society.

Victim Impact

[50] It is difficult, if not impossible, to put into words the harm that Mr. Stuckless has caused so many people. I am grateful to the many victims who took the time to come to court and share with me and the community at large the harm they have suffered and continue to suffer because of Mr. Stuckless. The emotion seen in the courtroom as the victims read their impact statements and heard the victim impact statements of others cannot be adequately described. Suffice it to say that it was tangible, overwhelming at times and utterly heart wrenching. Surprisingly, it was also heartwarming in some respects. It was inspiring to see first-hand the strength of each victim as each victim has step by step come to terms with the abuse. It was equally inspiring to see first-hand the solidarity amongst the victims and their families as they came together to make sure that Mr. Stuckless does not hurt anymore children. I recognize the extensive harm each victim has suffered but I also see their strength and their resolve to take back their lives.

[51] I will not summarize each victim impact statement. No summary could ever do them justice. I will, however, identify some common threads in each of the statements. In doing so, I note that each victim confirms what we as a society have only recently began to understand. As was noted in R. v. D.D., at paragraph 37:

When a victim of a major sexual assault is a child, it is also no doubt true that such an assault frequently results in serious psychological harm to the victim

When a man has assaulted a child for his sexual gratification, then, even if no long-lasting physical trauma is suffered by the child, it is reasonable to assume that the child may have suffered emotional trauma, the effects of which may survive longer than bruises or broken bones, and may even be permanent

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving, caring relationship with another adult of the opposite sex, being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.

[52] During the sentencing hearing, almost every victim I heard from spoke of a lack of trust of those around them. Mr. Stuckless took away their trust of others. This in turn impacted their ability to form relationships with family, friends and romantic partners. It interfered with their ability to seek out and benefit from help in the community and led to isolation and feelings of helplessness. Almost every victim spoke about the secondary impact on their family and friends. Many victims turned to substance abuse to help cope with the trauma thereby affecting their ability to attend school and find gainful employment. Mr. Stuckless' abuse took place in locations of trust for young boys – in school, their homes, and in arenas. Mr. Stuckless turned what should have been safe havens where boys learn self-confidence, skills, camaraderie and other tools for success and turned these places into a nightmare and thereby interfered with his victims' ability to learn, forge strong friendships and gain the confidence to grow and explore successfully. Some victims dropped out of school just to get away from the abuse. Mr. Stuckless interfered with his victims' development and impaired their ability to meet their full potential. The harm suffered does not go away. Years of counselling and therapy has clearly helped so many of Mr. Stuckless' victims but the memories, the flashbacks, the post-traumatic stress disorder, the broken relationships, lost dreams, all continues even today so many years later. Some of Mr. Stuckless' victims are no longer with us today, having overdosed on drugs. Many victims spoke of suicidal ideations. All have had their childhood taken away from them. What should have been a time of growth, excitement and confidence became a time of despair for all of Mr. Stuckless' victims.

[53] I am not saying the victims are not successful people – because in many ways they are. Their strength, compassion, love for others and intelligence was so obvious to me. The troubles they have suffered because of Mr. Stuckless are equally obvious. The question remains how much further could they have gone but for Mr. Stuckless? It is staggering to think of how many lives Mr. Stuckless has harmed.

General Principles on Sentencing

[54] The overarching principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include:

a) General and specific deterrence

b) Denunciation

c) Rehabilitation

d) Reparation to society and/or the victim

e) Separation from society where necessary

f) The need to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[55] While the Criminal Code does not place these objectives in any hierarchy of importance, the case law clearly establishes that not all objectives of sentencing are weighted equally. How much weight a sentencing judge places on any given objective will depend on the facts of each case. As our society has become more and more aware of the damaging effects of child sexual abuse, the need to protect children from child sex offenders and the prevalence of child sexual abuse in our society, the criminal justice system has responded. It is now well accepted that in sentencing child sex offenders the focus of the sentence must be on denunciation, general deterrence and protection of the public. While the other objectives are still relevant, they are not the primary focus of sentencing.

[56] In R. v. Dajaeger 2015 NUCJ 2, Justice Kilpatrick of the Nunavut Court of Justice, in sentencing a priest who had systematically abused many young children, succinctly and aptly articulated the key sentencing principles in sentencing adults offenders who sexually abuse young children. He wrote:

[130] Growing recognition of the tragic human consequences associated with this type of crime has caused a shift in sentencing jurisprudence over the last two decades. This jurisprudence now requires the Court to put special emphasis upon the sentencing principles of denunciation and deterrence when addressing sexual offences against children. This approach was established in common law jurisprudence long before Parliament chose to codify this principle by enacting section 718.01 of the Canadian Criminal Code, RSC 1985, c C-46 [Criminal Code], in 2005

[131] While rehabilitation remains an important goal of sentencing in this case, as in any other, deterrence and denunciation must remain the primary and paramount consideration of the sentencing court. This is necessary to properly reflect both the vulnerability of this class of victim and the very real potential for such offences to cause significant psychological harm to the young.

[132] The high moral blameworthiness associated with this type of offence lies in an offender's willful assumption of the risk of causing such harm….

Justice Kilpatrick further stated at paragraphs 133 and 134:

[133] denunciation is necessary to preserve and protect the fundamental social values that are infringed by this type of criminal behaviour. This is so, particularly in circumstances amounting to a breach of trust or an abuse of power by persons in positions of authority

[134] Children need the law's protection. The child or adolescent lacks both the physical means and the sophistication needed to adequately protect themselves from predatory adults. A deterrent sentence becomes necessary to protect a vulnerable class of victims from those who are prepared to risk harming others in order to satiate their own selfish desires. This protection is to be achieved, at least in part, through the imposition of exemplary sentences that deter other like-minded individuals from pursuing this same course of action.

[57] In R. v. Woodward 2011 ONCA 610, Justice Muldaver stated, at paragraph 76:

In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.

[58] In R. v. D.D., [2002] O.J. No. 1061 (CA), the leading authority in Ontario on sentencing child sexual abusers, the court clearly stated that the focus on sentencing these types of offenders must be on denunciation, deterrence and protection of the public. The court stated at paragraph 34:

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s.718 (a), (b) and (c) of the Criminal Code, commonly referred to as, denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.

[59] It is abundantly clear that in sentencing Mr. Stuckless, I must focus on denunciation, deterrence and protection of the public. I agree with the Crown that the objectives of denunciation and deterrence in this case scream out for a lengthy period of incarceration. I disagree, however, that a lengthy period of incarceration is required to protect the public.

[60] It was the position of the Crown at sentencing, that Mr. Stuckless remains an ongoing risk to the public. She argued that despite a very recent risk assessment conducted by a trained and respected psychiatrist at the request of the Crown where the psychiatrist concluded that Mr. Stuckless was a very low risk to re-offend, I should nonetheless find that Mr. Stuckless poses an ongoing real and substantial risk to the public. To that end she pointed to the following:

a) Mr. Stuckless was inconsistent at trial and to the psychiatrist about his past. She argued that Mr. Stuckless is deceitful and as such is self-reports cannot be relied upon.

b) Mr. Stuckless deceit and failure to admit some aggravating factors accepted by the court shows a lack of insight into his behaviour;

c) Mr. Stuckless engaged in some high risk behaviour in the community specifically working as a superintendent's assistant and playing golf in a school yard;

d) Mr. Stuckless has not engaged in any additional counselling since his release from custody years ago; and,

e) while Lupron may assist in managing Mr. Stuckless' risk, there is no basis to conclude that Mr. Stuckless will continue to voluntarily take this medication

[61] In considering Mr. Stuckless' potential risk to the community, I am mindful of just how important a factor this is on sentencing. It is important for a number of reasons. The obvious reason is that Mr. Stuckless has harmed so many people over the years. Given his lengthy criminal history and the real potential for harm to his victims if he re-offends, this court must be extra cautious in assessing this issue and making sure that no one else is abused by Mr. Stuckless. Of equal importance, in my view, are the needs of the victims in this case. Almost every victim that spoke to the court, advised of their real, valid and ongoing concern that Mr. Stuckless will re-offend and hurt others the way they were hurt. In my view, it is absolutely necessary for this court to give force and effect to the victims needs on this point. Mr. Stuckless' victims' deserve to know that this court is taking steps to make sure that other children will not face the same fate they did.

[62] With that said, I now turn to the evidence and the Crown's arguments. I agree completely with Ms. Beale that at times Mr. Stuckless was inconsistent in his evidence at trial and with what he told different mental health practitioners over the years. The presence of these inconsistencies is what in part helped form my decision to order a new risk assessment of Mr. Stuckless. It was difficult for me, as a sentencing judge, to discern if the inconsistencies were because Mr. Stuckless was lying to the court or whether it was because so many of these events happened so long ago, Mr. Stuckless' memory is fading and fallible. I note that Dr. Pearce had all this information when he conducted his assessment and wrote his report. These inconsistencies did not raise any red flags for Dr. Pearce nor did they serve to elevate Mr. Stuckless' risk to re-offend.

[63] In my reasons for judgement at the trial, I rejected some of Mr. Stuckless' evidence because it defied common sense. This finding remains. What is less clear to me is whether Mr. Stuckless was intentionally being deceitful with the court, or if the problem really lies with the fact that so many of these events occurred years ago, in the context of Mr. Stuckless engaging in regular criminal and abusive behaviour. I am unable to conclude beyond a reasonable doubt that Mr. Stuckless was intentionally deceitful with the court in a way that impacts his risk to re-offend.

[64] Ms. Beale further argued that Mr. Stuckless' refusal to admit certain aggravating factors accepted by the court establishes that Mr. Stuckless lacks insight into his behaviour. I disagree. Firstly, I am not convinced that a failure to admit a few aggravating factors, when the offender has otherwise admitted to having committed 100 acts of child abuse over 25 years supports the conclusion that one lacks insight into their conduct. Secondly, I note that others who have spent real time with Mr. Stuckless and are in a position to make such an assessment have reached a contrary view. Ms. Henderson, who has worked with Mr. Stuckless since his release from custody spoke of Mr. Stuckless taking responsibility for his actions and having insight into his conduct. Moreover, Dr. Pearce in his report commented on Mr. Stuckless' insight. When I consider all the evidence presented before me, I am satisfied beyond a reasonable doubt that Mr. Stuckless has insight into his offending conduct.

[65] Ms. Beale further argued that since Mr. Stuckless has engaged in some higher risk behaviours over the past 15 years this raises real concerns about his risk of re-offending. Respectfully, I disagree. The behaviours that Ms. Beale refers to formed part of my reasons for ordering a risk assessment. That risk assessment was conducted by Dr. Pearce and Dr. Pearce was made aware of the behaviours that the Crown is concerned about. He nonetheless still concluded that Mr. Stuckless is at a very low risk to re-offend. I have no basis to reject his expert opinion on this point and found his report to be very thorough, comprehensive and helpful.

[66] The Crown also argued that it is problematic that Mr. Stuckless has not engaged in any additional counselling over the past 15 years. I disagree. In my view this is not problematic at all. There is no evidence that additional counselling was required. Mr. Stuckles takes his sex drive reducing medication, remains mindful of risky behaviours and continues to work with the Circle of Support and Accountability. There is no evidence that Mr. Stuckless should be engaging in further counselling. I therefore have no basis to find that Mr. Stuckless continues to pose a risk to the community because he has failed to engage in additional counselling.

[67] The Crown's final argument is that Mr. Stuckless has been deceitful and since we only have his word that he will continue to take the Lupron, there is a real risk he will stop taking his medication and then again become a risk to the community. I disagree. Mr. Stuckless has taken the medication for years without any court order requiring him to do so. There is no basis to conclude that Mr. Stuckless is now going to suddenly stop taking his medication. Mr. Stuckless' behaviour since his release from custody in 2001 speaks for itself and completely supports my finding that Mr. Stuckless will not stop taking his medication.

[68] All the evidence presented at this sentencing hearing clearly supports the position that Mr. Stuckless is a low risk to re-offend. In addition to having the psychiatric reports from the prison from the late 1990s, I also have Dr. Pearce's recent report. His report is comprehensive and shows that Dr. Pearce was clearly live to the issues of risk. Moreover, I have additional evidence that is very helpful:

a) Mr. Stuckless has been in the community since 2001 without committing a further offence;

b) Mr. Stuckless has not been under any order to take Lupron since 2002 yet he has continued to take this medication;

c) Mr. Stuckless has taken responsibility for his conduct by entering a plea of guilty to 100 different counts of child sexual abuse; and,

d) Mr. Stuckless has continued to access support in the community for his offending conduct through the Circle of Support and Accountability voluntarily.

In light of all this information, while I accept and agree that Mr. Stuckless has been inconsistent in his evidence and in his self-reports, these inconsistencies do not raise a real concern that Mr. Stuckless will re-offend or that he will be stop taking his medication.

[69] In light of this, while the focus of sentencing child sexual offenders must be on protecting the public, given that Mr. Stuckless does not pose a real risk to re-offend, this objective does not necessarily require a further period of incarceration in the case at bar. Therefore, the real focus of this sentencing must be on the objectives of denunciation and general deterrence.

The Aggravating and Mitigating Factors

[70] In assessing the appropriate sentence the court is required to assess the overall gravity of the offences and the circumstances of the offender so as to ensure that the sentence imposed is proportionate to the moral blameworthiness of the offender. To that end, sentencing judges are required to consider all the aggravating and mitigating factors.

[71] The aggravating factors in the case at bar include:

a) Mr. Stuckless' victims were all under 18 with most of his victims being approximately 10 years old. This is a statutorily aggravating factor;

b) Mr. Stuckless abused his position of trust. This is also a statutorily aggravating factor;

c) There was a large body of evidence before me establishing that Mr. Stuckless' offending behaviour had significant and profound impact on his victims. This is also a statutorily aggravating factor;

d) Mr. Stuckless abused his victims in places that should have been safe havens for young boys. He abused his victims in their homes, at school and at sporting complexes. Some of his victims dropped out of school and sports just to stop the abuse;

e) Mr. Stuckless targeted vulnerable children and vulnerable families;

f) Mr. Stuckless threatened two of his victims;

g) Mr. Stuckless' conduct was calculated, premeditated and manipulative;

h) All of Mr. Stuckless' offences were invasive and escalated with some victims from sexual touching to forced fellatio to digital penetration;

i) Mr. Stuckless' offences involved persistent, systematic and prolonged abuse spanning three decades; and,

j) Mr. Stuckless has numerous victims.

[72] There are a number of mitigating factors in the case at bar. I am mindful that given the harm caused by Mr. Stuckless over so many years to so many people that it is difficult and often unpopular to even suggest any mitigation. I am required, however, by law, to consider all the evidence objectively, put emotion aside and make findings of fact on the evidence presented before me.

[73] I find it mitigating that Mr. Stuckless entered a plea of guilty to 100 counts of abuse on young boys. The Crown argued that nominal weight should be placed on this factor since Mr. Stuckless entered his plea of guilty at the last moment, still had a trial on a number of the charges and did not admit some aggravating factors. In assessing the weight to be attached to Mr. Stuckless' plea of guilty, it is my view, that Mr. Stuckless' plea of guilty cannot be considered in a vacuum. Instead, the court must look at the plea of guilty with the knowledge of how the criminal justice system works and just what was admitted here. It is rare indeed, at least at Old City Hall, that an offender enters a plea of guilty to all the counts on an information. What is more common is for the defence and the Crown to negotiate a plea whereby some counts are withdrawn or stayed in return for the plea of guilty. In the case at bar, Mr. Stuckless pled guilty to almost every count on the information. At the time of the plea, as the sentencing judge, I understood there would be a trial on all remaining counts. It was only later, when the case was reviewed more closely by the Crown that a few counts were withdrawn. As I noted in one of my judgment dated November 5, 2014, the Crown advised the court that she was not going to proceed on a few of the charges because she was not in a position to prove them beyond a reasonable doubt. These charges were ultimately withdrawn, but not as part of a plea negotiation or incentive. In my view, given the number of counts that Mr. Stuckless pled guilty to and the clear absence of any evidence of a deal being offered and accepted by Mr. Stuckless, I find his plea of guilty worthy of consideration as a mitigating factor and is a meaningful mitigating factor. I also take it as a sign that Mr. Stuckless is taking responsibly for his actions and that he truly wanted to save his victims the harm of testifying.

[74] I am mindful that some victims did have to testify as Mr. Stuckless did deny some aggravating facts. I am also mindful that I rejected his trial evidence. Having said that, there were triable issues raised during both the trial and the hearing to determine the presence or absence of aggravating facts such that in my view, Mr. Stuckless' decision to dispute these few events do not undermine the mitigation attached to the plea of guilty. This case can be easily contrasted to the case of R. v. DeJaeger, supra, where the defendant entered numerous pleas of guilty to sexual abuse allegations on children but then contested so many aggravating facts that most of his victims had to testify. Moreover, Mr. Dejaeger also denied committing a large number of the offences and had full trials on these counts. In sentencing Mr. Dejaeger the sentencing judge placed less weight on the plea of guilty since so many facts were contested and so many victims had to testify. In my view, the areas of dispute raised in the case at bar were so limited such that I am able to find the pleas of guilty as being a strong mitigating factor.

[75] I also accept that Mr. Stuckless is truly remorseful for his conduct. I appreciate that I rejected much of Mr. Stuckless' evidence at trial and found him to be both unreliable and at times not credible. Nonetheless, Mr. Stuckless did readily admit most of his abusive conduct, has been voluntarily working to address his criminality with others in the community and has consistently for many years now expressed remorse for his conduct. Moreover, his actions in choosing to take Lupron provide further proof that he is remorseful and taking responsibility for his actions.

[76] I further find as a mitigating factor that Mr. Stuckless is dedicated to his rehabilitation. In 1998, the court of appeal commented on Mr. Stuckless' willingness to engage in rehabilitation and address his criminality, knowing that he will always be a pedophile. Since serving that sentence of six years, Mr. Stuckless has been in the community without incident. He has committed no further offences, has taken medication to control his sexual urges and continues to work with an agency that helps him address his criminality and avoid re-offending. I agree with Mr. Goldkind that for Mr. Stuckless, the system worked in that it did rehabilitate him.

[77] Mr. Stuckless testified at trial that he himself is a victim of sexual abuse. He provided further information about this abuse to Dr. Pearce. The Crown argued that I should treat this information with skepticism because Mr. Stuckless has been inconsistent about the abuse he has suffered. The inconsistency in Mr. Stuckless' narrative about the abuse he suffered does not give me cause to reject his evidence that it took place. Mr. Stuckless is 67 years old. The abuse, if it occurred, took place a long time ago. Memories fade with time, even traumatic memories. This could easily account for the inconsistencies. Moreover, as we all know so well, talking about childhood sexual abuse is hard. Failing to provide all details on any given occasion is not a reason to disbelieve that the event occurred. While I rejected much of Mr. Stuckles' trial evidence, I accept this portion of his evidence. In my view this traumatic background is a relevant factor on sentencing.

Section 718.2(c) of the Criminal Code and its Application to the Case at Bar

[78] Section 718.2(c), better known as the totality principle, instructs sentencing judges when imposing consecutive sentences, to be mindful that the total sentence must not be unduly harsh or so long such that it is crushing to the offender. This principle, in large measure is directly linked to the overarching goal of proportionality, in that it ensures that when consecutive sentences are imposed, the overall sentence is not grossly disproportionate to the level of culpability of the offender (R. v. M.(C.A.), [1996] 1 S.C.R. 500).

[79] In the case at bar, this has particular application because so many of the offences before the court should result in consecutive sentences. Moreover, I am mindful that Mr. Stuckless has already served a six year sentence for abusing 24 other young boys during the same time period. The question that arises in the case at bar is not whether the totality principle should apply but how should it be applied. The difficulty often is figuring out how to ensure that the totality principle is given due consideration without over compensating for it and imposing a sentence that is lower than the overall level of culpability of the offender.

[80] Many courts have held that trial judges ought not work backwards, in that the trial judge ought not select what he or she deems to be the overall appropriate sentence and then apportion an exact number to each individual offence (R. v. Adams (2010), 2010 NSCA 42, 255 C.C.C. (3d) 150 (N.S.C.), R. v. Taylor, (2010), 2010 MBCA 103, 263 C.C.C. (3d) 307 (Man.C.A.). Instead judges are encouraged to first decide the appropriate sentence for each offence and then, if necessary, reduce the overall sentence. In my view, this methodology helps ensure that sentences which take into account the principle of totality are not arbitrary and do not result in excessive weight being placed on this one principle. By first considering the sentence one would impose absent the principle of totality, the court and the community have a better appreciation of the normal range of sentence that ought to be imposed. It is only by knowing this figure, that the court can then start to consider the impact of such a lengthy sentence on the overall culpability of the offender and deduct from there, if necessary, to ensure that the global sentence imposed does not exceed the level of culpability of the offender.

[81] The question that must next be addressed is what role if any does the principle of totality play in circumstances like this one where Mr. Stuckless has already been sentenced for similar offences from the same time frame. Not surprisingly, there is very little authority on this point. In R. v. James, 2013 MBCA 14, [2013] M.J. No. 48 (CA), the Manitoba Court of Appeal held that the totality principle does not apply in this situation as this principle only applies to consecutive sentences. Justice Cole reached the same conclusion in R. v. McLeod, [2014] O.J. No. 6063 (OCJ). In light of these cases, it is my view that the appropriate approach is to apply the principle of totality to the offences that are presently before the court once I have decided the appropriate sentence for each offence and then only if it is necessary to ensure that the overall sentence is not crushing. This does not mean that the prior sentence is irrelevant. In my view the fact that Mr. Stuckless has already spent 6 years in custody for similar offences that took place during the same period and that upon his release he has not re-offended is a relevant factor in assessing the overall appropriate sentence. I note that in R. v. James, supra, the Manitoba Court of Appeal was very clear that the previous sentence served for offences in a similar era is relevant in determining the appropriate sentence but it is not the pre-eminent focus. Justice Cole, in R. v. McLeod, supra, made the following comments about the relevance of a previous sentence in similar circumstances at paragraph 77 and 78:

[77] Having said this, I am firmly of the view that Mr. Mcleod cannot make any direct claim to any reduction of sentence because of the existence of the previous sentence imposed for offences committed in the same time frame against different victims. The logic of the Manitoba Court of Appeal in the notorious "hockey coach" case of R. v. James 2013 MBCA 14, [2013] M.J. No. 48 reversing the decision of the trial judge who did exactly this [2012] M.J. No. 89 (Man.Prov.Ct.), seems to me to be unassailable on this issue. No doubt this is why Ms. Fromstein made no effort to press this issue in her submissions.

[78] Beyond deeming the offender to be a first offender for sentencing purposes at this hearing, I have come to the conclusion that I can and should give some consideration to the 1980 sentence on two other dimensions. First, the fact that this offender has not recidivated since his release from custody is a clear evidence of his rehabilitative potential. Second, in terms of thinking about the principles of sentencing to be applied in this case, it seems to me clear – and the Crown counsel properly accepted – that there is little need to pay much attention to the need for individual (sometimes called "special") deterrence.

Range of Sentences for Sexual Assaults on Children

[82] It is important for every sentencing judge to remember that every sentencing is unique. No two offenders are identical and the key to sentencing properly is to apply general legal principles to the individual facts of each case. As was noted by the Manitoba Court of Appeal in R. v. James, 2013 MBCA 14, [2013] M.J. No. 48(CA) at paragraph 52:

In my view, the judge was overly fixated on what she described on several occasions as the unique nature of this case. The fact is, however, that every sentencing is unique. It has to be in order to comply with the principle of proportionality. No two offences or offenders are exactly alike. There are always some differences and to that extent, every sentence is unique to the particular case in question.

Nonetheless, it is important for a sentencing judge to be mindful of the general range of sentence imposed for similar offences and the general range of sentence accepted by the appellate courts. This information serves as a helpful guide to sentencing judges in determining the appropriate sentence in an individual case.

[83] It is impossible to assess the appropriate sentence in the case at bar without turning to the Court of Appeal's 1998 decision in relation to Mr. Stuckless. In that case, Mr. Stuckless pled guilty to numerous acts of sexual abuse on 24 boys during the same time span as the offences before this court. In the 1998 case of R. v. Stuckless, [1998] O.J. No. 3177 (CA), the Court of Appeal, highlighted the general facts of the case and the aggravating and mitigating factors. There are many similarities between the present set of offences and the 1998 set of offences. They include:

a) a significant number of individual incidents;

b) the victims were young and vulnerable;

c) many of the victims from the 1998 charges were profoundly affected by the sexual abuse;

d) the offences were committed over two decades;

e) the crimes were carefully choreographed, astutely managed and pre-meditated;

f) the victims were groomed and given gifts; and,

g) all the offences involved a breach of trust.

[84] While there are a great many similarities between the two sets of charges, there are some relevant differences. In the 1998 set of charges, the trial judge held that there was no "actual or threatened violence towards any complainant beyond what was implicit in the interference with the physical integrity of the complainant which constitutes the offence itself". While I appreciate that the Court of Appeal placed little weight on this factor as it was clear that Mr. Stuckless did not resort to violence because he was able to successfully "entice many of these vulnerable boys into his web, offering them access to its otherwise unattainable amenities in order to reduce their resistance to his sexual assaults", without resorting to threats, it is important to note that in the case at bar, there were a couple of incidents of violence beyond what was implicit to the sexual offences. For example, in relation to M.S., Mr. Stuckless continued with the digital penetration while M.S. cried out in pain. I also note that K.P. testified that Mr. Stuckless threatened to run him over with a car.

[85] I further note that the 1998 charges did not involve any instances of anal intercourse or digital penetration. In the case at bar, while I was left in a reasonable doubt about whether anal intercourse took place, there were four incidents of digital penetration.

[86] In addressing the overall aggravating features of Mr. Stuckless' conduct the Court of Appeal stated at paragraph 45:

Stuckless' relentless sexual exploitation of children involving multiple victims and offences over a predatory two decade odyssey unfettered by conscience and facilitated by the manipulation of trust, is reprehensible.

I note that this same sentiment holds true for the facts in the case at bar.

[87] Mr. Goldkind argued that while there may be some aggravating features in the case at bar that did not exist in the 1998 charges, there are also some important mitigating factors. Firstly, he points out that in 1998 there were 24 victims. In the case at bar there are six fewer victims. He further pointed out that in 1998 there was the prospect of rehabilitation for Mr. Stuckless. Now, some 18 years later, there is evidence of actual rehabilitation.

[88] Given the tremendous similarities, the fewer number of victims and the additional mitigating factor of actual rehabilitation, Mr. Goldkind's argument that the appropriate sentence in the case at bar should be somewhat lower to what was imposed in 1998 is very compelling. I see two difficulties with this reasoning, however. The first difficulty with this reasoning is that the range of sentences for these types of offences has changed since 1998 and in many cases the Court of Appeal has commented that the sentence of six years received by Mr. Stuckless was at the lower end of the range. In R. v. D.D., supra, the Court of Appeal specifically stated that the sentence imposed on Mr. Stuckless in 1998 is not the high water mark for child sexual offenders. The court went on to identify a higher range of sentence for prolonged sexual abuse of children. The Court of Appeal stated at paragraph 4:

Second, I sharply disagree with the appellant's contention that the 6-year global term consider to be a fit sentence in Stuckless, represents the high-water mark for sexual predators who prey on innocent children. On the contrary, for reasons that will become apparent, I consider the 6-year global sentence in Stuckless to be at the lower end of the appropriate range of sentences for crimes of the magnitude committed by Stuckless. It follows, in my view, that in the appellant's case, where the facts and circumstances are even more egregious than those in Stuckless, the higher 9-year global sentence selected by the trial judge was appropriate. Indeed, if anything, I believe it fell at the lower end of the appropriate range of sentences for crimes as grave as those committed by the appellant.

[89] The second difficulty I have with Mr. Goldkind's argument is that it does not take into account the additional aggravating factors that I noted above.

[90] R. v. D.D. supra, really is the leading authority on the range of sentences for child sexual offenders. In addressing the general range of sentence that is appropriate, the Court of Appeal stated at paragraph 32:

Cases like the present one, however, which involve repeated acts of anal intercourse and attempted anal intercourse as well as the use of other physical violence, threats of physical violence and extortion are in a different category. Such cases, in my view, call for a higher range of penalty because of the enhanced gravity and seriousness of the crimes and the greater degree of moral culpability attributable to the offender. As a general rule, I believe that upper single digit to low double digit penitentiary terms are called for in these circumstances. Thus, the global sentence of 9 years selected by the trial judge in this case was, in my view, within the appropriate range.

[91] The Court of Appeal went on to note that sentences are always individual and "the suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases".

[92] To further clarify the range of sentences for these types of offences, the Court of Appeal concluded at paragraph 44 of R. v. D.D. supra:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuses involve full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.

[93] In my view, to fully understand the Court of Appeal's comments in R. v. D.D., supra, it is helpful to know the facts of the offence. DD sexually abused 4 young boys aged 5-8 years old over a 7-year period. DD regularly and persistently sexually abused them. The sexual acts included masturbation, oral sex, group sexual encounters and relentless attempts at anal intercourse and actual anal intercourse. DD was also in a position of trust as it related to these boys. He used threats of violence and actual violence including punching his victims to force them to comply. DD also photographed his victims engaging in homosexual acts and threatened to show the photographs to others. He also at one point hung one of his victims over the 13th floor balcony and warned that he would be thrown off if he told anyone of the sexual abuse.

[94] In comparing the facts in DD to Mr. Stuckless' other set of convictions, the Court of Appeal noted that while Mr. Stuckless had substantially more victims than D.D. and Mr. Stuckless offended over a longer period of time, there were many aggravating factors in D.D. that did not exist in Mr. Stuckless' 1998 offences including:

a) D.D. engaged in persistent acts of attempted and actual anal intercourse;

b) D.D. used violence, extortion, and death threats;

c) D.D.'s victims were substantially younger as they were aged 5-8; and,

d) D.D. used pornography and alcohol.

[95] The Court of Appeal also noted that D.D. did not show remorse or any interest in treatment. All these differences justified imposing a substantially longer sentence on D.D.. I note that while there are some additional aggravating facts in the case at bar than there were in the 1998 charges, the above aggravating facts still remain a distinguishing feature between Mr. Stuckless' offences and D.D.'s offences thereby suggesting that the appropriate sentence in the case at bar is less than nine years.

[96] Since R. v. D.D., supra, the courts have continued to impose lengthy sentences for prolonged and persistent sexual offences on young persons. In R. v. A.G.A., [2010] A.J. No. 201 (ABCA), the defendant sexually abused his younger foster brother. The sexual abuse included touching and anal intercourse, it took place over a number of years starting when the victim was only 5 years old and, the defendant showed no remorse for his conduct. The court held that for sexual offences on young children involving a breach of trust, the starting point is four years in custody. In R. v. A.G.A., the Court of Appeal held that a sentence of 5 years was the proper sentence.

[97] In R. v. Chamberlin, [2015] S.J. No. 223 (Sask.P.C.), the defendant entered a plea of guilty to offences that took place over a 22 year time span and involved four different children. The sexual offences included touching and oral sex and breach of trust. The joint submission of 5 years was accepted by the sentencing judge.

[98] In R. v. Leroux, 2015 SKCA 48, [2015] S.J. No. 231 (CA), a sentence of 8 years was imposed on Mr. Leroux for sexually abusing 8 boys while he worked as a supervisor in a boys dormitory at a residential school. He used alcohol and pornography to groom his victims and was seen as having a parental role in relation to the boys. Mr. Leroux`s abuse included acts of masturbation, fellatio and with respect to some of his victims, anal intercourse. Similar to the case at bar, Mr. Leroux had also already served a ten year sentence for similar offences committed later in time while he worked at a different residential school. In many ways this case is similar to the case at bar in that there was a previous sentence for offences that took place during a similar time frame, there were multiple victims (albeit 10 less than there are in the case at bar), and the offences involved a breach of trust and grooming. There are, however, some aggravating factors in R. v. Leroux, that do not exist in the case at bar that would support imposing a lesser sentence on Mr. Stuckless than the 8 years imposed on Mr. Leroux. These factors include showing the children pornography, using alcohol with the young boys and in relation to some of the victims engaging in forced anal intercourse.

[99] In R. v. Cloutier, [2011] O.J. No. 3005 (CA), the defendant, a Roman Catholic priest, was sentenced to five years for sexually abusing four young boys over a long period of time. The defendant was in a position of trust and groomed his victims.

[100] In R. v. D.M., 2012 ONCA 520, [2012] O.J. No. 3616 (CA), the Court of Appeal re-iterated that the starting point for sentences for offenders who have engaged in prolonged sexual abuse of a child and where there is a breach of trust and where there is penetration has increased since R. v. D.D., supra, and that generally the minimum sentence to be imposed for this type of offending is 5-6 years.

[101] In R. v. Dimmick, [2013] ONSC 7803, the defendant sexually assaulted 4 victims during the 1960s and the 1970s. Mr. Dimmick groomed his victims, was in a position of trust in relation to his victims and engaged in various sexual acts including buggery. A sentence of seven years was imposed.

[102] In R. v. James, supra, a case very similar in many respects to the case at bar in that Mr. James had completed a sentence for other sexual offences from the same time frame by the time he was charged with these offences. Mr. James had been in the community since serving his last sentence, had not re-offended and appeared to have been rehabilitated. While Mr. James had fewer victims than Mr. Stuckless, he abused each of his victims for longer periods of time and with greater frequency. The Manitoba Court of Appeal held that an eight year sentence would be crushing and imposed a five year sentence instead.

[103] In R. v. Johnson, an unreported judgment from September 2015, Justice Cole imposed a 4 ½ -year sentence on Mr. Johnson for sexually abusing four children over an eight year time frame. Each child referred to Mr. Johnson as grandpa and there were multiple incidents with each child.

[104] In R. v. McLeod [2014] O.J. No. 6063 (OCJ) the offender sexually abused seven boys during a 14-year period while he was a teacher and a scoutmaster. The offences all took place in the 1960s and the 1970s. In the 1980s, Mr. McLeod pled guilty to a series of offences in relation to victims from that time frame. More victims came forward in 2011 and as a result Mr. McLeod was charged again. Mr. McLeod's victims ranged in age from 12-15 years old. Like Mr. Stuckless and Mr. James, Mr. McLeod had not re-offended since serving his sentence in the 1980s. The Court imposed a sentence of just over three years.

[105] In R v. Rowe, [2007] O.J. No. 2997 a three year sentence was imposed on a priest who sexually abused young aboriginal children in his parish.

[106] One final decision worth commenting on is R. v. Dejaeger, supra. In many ways this case is very different from the case at bar. Mr. DeJaeger, a priest, went into a vulnerable community, abused his position of trust as a priest and systematically abused 23 children in his care. Mr. DeJaeger had no particular pattern to his abuse. It appears from the facts of the case that he abused whomever he could and engaged in multiple kinds of abuse. Some of his acts of abuse were limited to fondling. Other acts of abuse included violent forced intercourse. Mr. DeJaeger's abusive acts were well planned, including setting up a bed in a hiding place. They were sophisticated and at times involved additional acts of violence and threats. Mr. DeJaeger fled the country after his abusive acts were discovered and successfully evaded prosecution for many years until he was finally removed from the country from where he fled and was forced to return to Canada. While he pled guilty to some charges, he contested most of the aggravating facts and ran trials on many of the charges. A sentence of 19 years was imposed. I am mindful that the facts of this case are far more aggravating than the facts in Mr. Stuckless' case in the number of victims, the degree of violence used, the nature of the abuse and the level of sophistication involved.

[107] It is my view, that what can be gleaned from this case law is that for sexual assaults on children that are limited to fondling and don't take place persistently over long periods of time lower sentences in the range of 2-3 years seem to be appropriate. As the level of sexual abuse, the number of victims and the number of incidents of abuse increases, the sentences increase up to double digits for the more egregious and persistent acts of abuse. In many of the cases I have reviewed, the acts of violence were worse and the sexual abuse included acts of anal intercourse. While in almost all the cases there were fewer victims, the number of individual acts of abuse tend to be quite similar to the number of acts of abuse in the case at bar because in many of the cases, each victim was abused more frequently and for longer periods of time than Mr Stuckless' victims. These differences, in some respects are not that meaningful. At the end of the day all the cases reviewed had key facts in common which include:

a) breach of trust;

b) prolonged and persistent sexual abuse;

c) on young children; and

d) with profound effects on the victims

The Appropriate Sentence in This Case

[108] Many of the cases I have reviewed did not break down the sentences for each act of abuse. Instead concurrent sentences were imposed on all counts. Moreover, in most of the cases, the courts provide a range of sentence for persistent sexual abuse on victims generally. While Mr. Stuckless' abuse was persistent and prolonged generally, it was not necessarily so for each individual victim. It is therefore in some respects very hard to apportion individual sentences for each offence in this case. Given the case law, it is substantially easier to think of a global number to properly represent the totality of the abuse. I suspect this is why both the Crown and the defence gave me a global position and chose not to break it down and provide a sentence for each individual count before the court. I am nonetheless going to start with considering the sentence that I could have imposed for offence (per victim). I will then consider the impact, if any, of the principle of totality.

[109] For the offences involving M.S. which included forced digital penetration and prolonged sexual abuse on him a sentence in the range of 4 years would have been appropriate.

[110] For the offences on Lloyd Forde which included forced digital penetration and prolonged sexual abuse a sentence in the range of 4 years would be appropriate.

[111] For the offences on T.J. and J.S. that also involved digital penetration or attempted digital penetration but included only a couple of other incidents of sexual assault, a sentence in the range of 3 to 4 years would have been appropriate.

[112] For the offences on K.D., R.C., Donald Bond, K.M., G.P., S.L., B.B. and S.K. given the number of incidents involved with each victim and the nature of the sexual abuse, a sentence in the range of two years for each victim would be appropriate.

[113] For the offences on KP and SF given the sexual acts were limited to sexual touching but involved in excess of 20 incidents per child a sentence in the range of two to three years per victim would have been appropriate.

[114] For the offences on JD, PS, CM and SM which included between one and six acts of fellatio on each victim, a sentence in the range of one to two years would have been appropriate for each victim.

[115] If each of these sentences were imposed consecutively it would effectively amount to a sentence of more than 30 years. There can be no doubt that this sentence is excessive and outside the range. Even the most egregious cases I have read, with facts worse than what I heard during the course of this case did not come close to this number. In R. v. Leroux, supra, the Saskatchewan Court of Appeal engaged in a similar exercise and found that were each offence sentenced individually, a cumulative sentence of 30 years would be required. The appellate Court went on to state that since Mr. Leroux was 74 at the time of sentence, a sentence of 30 years would be tantamount to a life sentence and is therefore unduly long. Applying the principle of totality, the court imposed an eight year sentence instead. So the question I must now ask is, given the range of sentences imposed by the appellate courts in other similar cases, what sentence should be imposed in this case to properly reflect the aggravating and mitigating factors taking into account the need to denounce this conduct and deter others from committing similar offences.

[116] Crown counsel argued that given the aggravating factors in this case a sentence of 12 years is appropriate to properly reflect the harm done to the victims, the prolonged nature of the abuse and the breach of trust and manipulation involved. While I appreciate why the Crown is of the view that a sentence of 12-years is appropriate, in my view, the facts in the case at bar are not sufficiently different from the facts from Mr. Stuckless' 1998 convictions to justify doubling the sentencing. Furthermore, in my view, a sentence of 12 years is not in accordance with the case law reviewed above nor does it take into account Mr. Stuckless' successful rehabilitation, his years of non-offending in the community and his remorse.

[117] Defence counsel argued that a sentence of five years is appropriate since there are fewer victims in this set of offences than there were in 1998 and in 1998 there was only the prospect of rehabilitation whereas in the present case there is proof of actual rehabilitation. Moreover, Mr. Stuckless has already served a lengthy sentence for other offences committed during this time frame. As noted previously, in many respects I find this argument compelling. I note that the Manitoba Court of Appeal reached a similar conclusion in R. v. James, supra. The court stated at paragraphs 75-77:

[75] But in this case, notwithstanding the fact that the primary sentencing considerations are general deterrence and denunciation, there is a factor unique to the accused.

[76] That factor is not the prospect of rehabilitation, which deserves consideration in every sentencing, including in respect of sexual assault offences where the primary considerations are deterrence and denunciation.

[77] Rather, that factor is that during the 14 years between completion of his 1997 sentence and the date of his sentence under appeal, the accused, through therapy and his own efforts, has been able to control and redirect his sexual preference away from minors. He has not offended throughout that period of time, has been gainfully employed and has rebuilt his life notwithstanding the incredible public vilification and notoriety which he and his sexual misconduct have attracted. So, as opposed to a prospect of rehabilitation, there is evidence of actual rehabilitation having occurred. The accused has become a rehabilitated and contributing member of society.

I note that in R. v. James, a five year sentence was imposed.

[118] As compelling as this argument is, as previously stated, this argument does not take into account that there are some aggravating facts in the present set of offences that did not exist in 1998. Moreover, while I agree that there are a great many similarities between the case at bar and the James case, there are also some relevant differences. The key difference between R. v. James, supra, and the case at bar is the number of victims. Having said that, while there were only 2 victims in R. v. James, the actual incidents of abuse mirror in number the acts of abuse in the case at bar. Mr. James was found to have committed over 100 acts of sexual abuse on his two victims. Moreover, there is a very similar relationship of trust in the two cases and both offenders have engaged in successful rehabilitation.

[119] While R. v. James, supra, and the 1998 Stuckless case do provide a good starting point for sentencing Mr. Stuckless today, in my view a sentence of five years does not properly reflect the extent of the harm caused by Mr. Stuckless and the large number of victims who have suffered. It is also my view that a sentence of six years, as was imposed in 1998 does not adequately address the additional aggravating factors that exist in the case at bar even accounting for the fact that there are less victims and actual evidence of rehabilitation. Something slightly higher is required. On the flip side, a sentence of 8 years or higher, given the range of sentences imposed in other cases, does not properly take into account all the mitigating factors highlighted above.

[120] In considering what I think the appropriate sentence is in the case at bar, I am mindful that it is impossible to quantify a number of years of incarceration that fully reflects the harm done to all the victims. I am mindful that my sentence will not undue the harm suffered. No sentence I impose will undue what the victims have suffered.

[121] As Austin J.A. noted in the Stuckless decision from 1998, sentencing is the most difficult task faced by a judge. Determining the appropriate sentence in a case as complex as this one, in my view, is exceptionally difficult and requires care and consideration of all the relevant factors. When I consider all the evidence presented through this extended sentencing hearing, the range of sentence recognized by the appellate courts and all the relevant principles of sentencing including the need to focus on denunciation and deterrence that a sentence of six and a half years ought to be imposed. This sentence takes into account the aggravating factors, the prolonged and persistent nature of the abuse, the vast number of victims, the profound impact on the victims, the prior sentence in 1998 and Mr. Stuckless' prospects for rehabilitation. A sentence of six and a half years properly reflects that the sentence of six years imposed in 1998 was at the very low end of the range of sentences for similar offences and that there are some additional aggravating facts in the case at bar while also taking into account the fact that Mr. Stuckless has already served a six year sentence for offences in the same time frame, the fact that there are fewer victims in this case, that he has been in the community since 2001 without committing further offences and that he has been voluntarily taking Lupron.

Credit for House Arrest

[122] Mr. Stuckless has been under house arrest for the past three years. His release pending trial is very strict and prohibits Mr. Stuckless from leaving his residence unless he is in the direct company of his brother. There are no other exceptions to his house arrest bail. The very strict house arrest bail has led to Mr. Stuckless being unable to attend at the of the offices of the Circle of Support and Accountability, despite their obvious very positive role in Mr. Stuckless' rehabilitation. Ms. Henderson testified that since Mr. Stuckless' arrest for these offences she has had substantially less contact with Mr. Stuckless as he has been unable to attend at her office. In R. v. Downes (2006), 79 O.R. (3d) 321 (CA), the Court of Appeal held that in some cases credit may be given for the impact of pre-sentence release conditions. Strict bail conditions, however, are not the same as being incarcerated. Therefore, if credit is to be given for strict bail conditions, the credit should not be on a one for one basis. Moreover, in many cases, the court may choose to not give any credit for the pre-trial liberty restrictions that arise from a tight bail.

[123] In the case at bar, Mr. Stuckless has been on bail for three years. He entered a plea of guilty over two years ago. The matter has been adjourned many times to address the multitude of complex legal and factual issues that have arisen over the past two years. Mr. Stuckless has not been the cause of any of the delay, and in fact his lawyer, on his behalf, at time has expressed concern with the delays that have taken place in this case. Moreover, Mr. Stuckless has complied with all of his bail conditions and has been on the strictest of bails, one of house arrest with the only exception being that he can leave his residence with his surety. I note, however, that no evidence was presented about how frequently or infrequently Mr. Stuckless has been able to leave his residence with his surety. I do know however, that Mr. Stuckless has not been able to attend his meetings with his support people at the Circle of Support and Accountability and that, at least for past number of months if not longer, Mr. Stuckless' surety has been unwell and unable to leave his residence. These two factors do allow me to infer that Mr. Stuckless' liberty has been affected substantially because of his conditions of release.

[124] When I consider the extensive loss of liberty that Mr. Stuckless has endured for the past the three years, the fact that Mr. Stuckless has not caused any of the delay, the fact that Mr. Stuckless entered a plea of guilty two years ago and has wanted this matter to complete expeditiously, I am satisfied that he should be credited for some of this time. In my view, he should be credited for six months of this time thereby reducing his sentence of six and a half years to six years. As per counsel's request, the sentence will be the same for each count to be served concurrently. I therefore impose a sentence of six years on each count to be served concurrently.

Ancillary Orders

[125] In addition to the period of incarceration there will also be a SOIRA order for life on all counts, a DNA order on all counts, a 109 order (weapons prohibition) for life and a 161(1.1) Order for life. Moreover, pursuant to section 743.2(1) Mr. Stuckless shall not communicate with his victims while he is in custody.

Released June 9, 2016

Justice Mara B. Greene