Information and Parties
Information No.: 3111-998-14-3440-00 Date: 2016-06-20 Ontario Court of Justice
Her Majesty the Queen v. M.G.
Publication Ban Notice
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO THE ORDER OF s. 486.4(1) REGARDING ANY INFORMATION THAT COULD IDENTIFY THE VICTIM, FROM THE HONOURABLE J. STRIBOPOULOS, ONTARIO COURT JUSTICE
Appearances
C. Hackett – Counsel for the Crown B. Plant – Counsel for M.G.
Reasons for Sentence
Before the Honourable Justice J. Stribopoulos June 20, 2016, at Brampton, Ontario
STRIBOPOULOS J. (Orally):
Mr. G. pled guilty to a charge of sexual assault on L.S.
At the time of the offence, Mr. G. was in a relationship with L.'s mother, S.S. The offence took place on Christmas Day, 2013. On that day, while at the S.' home, Mr. G. was sitting in the living room, on a couch, with L., who was just nine years old at the time. While they were seated there, Mr. G. placed his hand behind L. and grabbed her bum, squeezing it twice.
Not surprisingly, L. felt violated by Mr. G.'s actions. His conduct upset her and led to her running from the living room into her bedroom. This was not an act that came in the context of horseplay, or anything of that nature. It was quite simply a brazen sexual assault upon a young child.
The Victim Impact Statement filed on sentencing establishes that L. continues to experience the trauma of what happened. She has been profoundly impacted by these events. The court can only hope that with time, and the continuation of counseling, she will be able to move past Mr. G.'s crime and the painful memories it appears to continue to cause her.
The parties have jointly submitted that an appropriate sentence, in all of the circumstances, mindful no doubt of the circumstances of this offence and Mr. G.'s own circumstances, including his criminal record, would be one of 90 days' imprisonment.
Given that Mr. G. is gainfully employed, the parties are also agreed on the appropriateness of an intermittent sentence.
The parties are also agreed on both the duration and terms of a probation order, as well as a number of ancillary orders, including a DNA order, a SOIRA order for 20 years, and a section 110 order for 5 years.
Finally, they are also agreed on the appropriateness of an order pursuant to section 161 of the Criminal Code, including some of the terms that should be and should not be included in such an order.
In all of the circumstances, I am of the view that the joint submission is appropriate in this case. I believe it is proportionate to the gravity of this offence and Mr. G.'s degree of responsibility in its commission, and that it is properly calibrated to address the various objectives of sentencing, including the need for general and specific deterrence, denunciation and rehabilitation. Accordingly, I will accede to the position jointly advanced by the parties.
Section 161 Order – Disputed Terms
What I must address, in these very brief reasons, is the disagreement between the parties regarding the wording of certain exceptions to be included in the section 161 order.
I will briefly outline what the parties agree upon in terms of the 161 order before addressing what divides them.
First, they are agreed that the geographic restriction included within any condition pursuant to the guidance provided by sub-clause 161(1)(a.1) should only be 500 metres. Given the potential reach of a 2 kilometre prohibition, which could make it difficult to pass through large sections of an urban area, I have no difficulty with this proposed variation to the language contemplated by subsection (1)(a.1).
The parties are also agreed that the wording contemplated by sub-clause (b) should be included just as it is found in the Criminal Code. Given the nature of this offence and its circumstances, I have no difficulty with that proposal.
The parties are also agreed that no clause should be included as contemplated by section 161(i)(d). Given that this offence has no connection to Mr. G.'s activities online and the importance of having access to the Internet for many of the essential activities of modern life, including most employment, I also have no difficulty in omitting words of the sort found in that sub-clause.
Disagreement on Exceptions
Where the parties disagree, in terms of the proposed order, is on the nature of the exceptions that should be included in varying the wording found in sub-clauses 161(i)(a) and sub-clause 161(i)(c).
The Crown is content with exceptions under each subsection where Mr. G. is in the immediate and continuous presence of another adult. However, with such exceptions under each subsection, the Crown argues that Mr. G. should be required to inform any such adult of the order and its terms.
No doubt, the Crown believes the order would be far more effective if the people who were essentially supervising Mr. G. while he was in the vicinity or presence of children under 16 years of age were cognizant that they were performing that role.
In contrast, Mr. Plant strongly opposes any variation on the wording of the exceptions that would require his client to essentially self-identify as a sex offender anytime he entered a room, where other adults were present, in which there were children under the age of 16.
Further, with respect to the clause contemplated in sub-clause (c), which could serve to limit Mr. G.'s ability to be in the presence of anyone under the age of 16 years, the Crown opposes any exception for Mr. G.'s own children.
At the moment, Mr. G. does not have any children of his own. However, the parties agree that an order for 10 years should be imposed. Mr. G. is currently only 30 years old. It is not at all difficult to imagine that his personal circumstances could change over the next decade, and this could include having children of his own. As a result, Mr. Plant urges for the inclusion of just such an exception.
The Crown submits that even if his circumstances change and he has children of his own, no exception should be drawn out to contemplate that possibility. Ms. Hackett argues that Mr. G.'s offspring could very well be the children who are in the greatest need of protection from him.
Court's Analysis of Section 161
In resolving this dispute between the parties regarding the appropriate wording of the terms of any section 161 order, I must obviously be guided by the legislative language. I think it important to remember that an order under section 161 is not mandatory. The provision provides:
161(1) When an offender is convicted, or is discharged ... of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from....
This is followed by sub-clauses (a) through (d).
It is clear that what Parliament has mandated is that I must consider making an order under this section. The Court is not obligated to do so.
It is also clear that Parliament has vested a sentencing judge with the authority to craft exemptions to the wording contained in the sub-clauses. This is important, remembering the next point that Parliament has also made clear.
Parliament has recognized that an order under this section is part of the punishment for the offence. Therefore, in deciding whether or not to make such an order, I must remain mindful of the principles and objectives of sentencing.
Self-Identification Requirement
In that regard, I turn to the first point of disagreement. The parties are agreed that exceptions to the wording in the clauses found in subsections (a) and (c) should be included whenever Mr. G. is in the immediate and continued presence of another person over the age of 18. They disagree on whether or not Mr. G. must be required to tell such persons of the existence of this order.
I think it important to think about these orders in practical terms, in order to envision and consider their potential reach. I will therefore use an example involving sub-clause (a) to illustrate the practical significance of the difference in wording advanced by the parties.
If Mr. G. decided to play basketball at a community centre with other adults, should he be required to essentially reveal to his teammates that he is a convicted sex offender? Given that children can be expected to be present at virtually every community centre at all hours of the day, a condition that required him to disclose the existence of this order to the adults contemplated in the exception would no doubt have this effect.
In my view, the purpose of section 161 of the Code is to ensure that the court imposes conditions that will serve to protect the public, especially children, from those who pose a realistic threat to them based on their offence history. What the section does not aim to do, I think, is impose a reporting duty on convicted sex offenders that aims to continually shame and vilify them. That might exist in other jurisdictions, but it is not the law in Canada.
Our regime that aims to track the whereabouts and activities of convicted sex offenders is found in the Sex Offender Identification Registration Act. For what it is worth, I believe that legislation strikes a delicate but important balance between the interests of public safety and the dignity and privacy of convicted offenders.
In my view, the inclusion of what would effectively be a self-reporting requirement on an offender subject to a section 161 order that includes exceptions when in the company of other adults, would go too far. Provided Mr. G. is only in such places, or under sub-clause (c), only in the presence of persons under the age of 16 years, when he is in the immediate and continuous presence of another adult, public safety, in my view, is protected.
To go further, would serve to continually humiliate and ostracize an offender, which are things that I think would be absolutely counterproductive to that offender's rehabilitation and reintegration into society.
Exception for Own Children
I turn next to the question of whether or not to include an exception to the wording of the clause contemplated in sub-clause (c) that would not extend such a clause to Mr. G.'s own children, in the event that he has a child of his own over the next 10 years.
After carefully considering the matter, I have decided against including such an exception at this juncture. To be clear, this is not because I am convinced that if Mr. G. has his own children he should not be permitted to be alone with them. Rather, at this point, I think that such an exception requires too much by way of speculation at this time.
Firstly, I cannot know whether or not this concern will ever become real. Mr. G. could very well never have children of his own. I think the court should decline to make orders or exceptions to orders based on circumstances that may very well never come to pass.
Secondly, I have an inadequate basis to make such a determination at this juncture. The person to decide that question is a judge hearing an application to vary this order under section 161(3) at some point in future if and when Mr. G. does have children of his own. Such a judge would have something I cannot possibly have now, an actual sense of where Mr. G. is in terms of his rehabilitation and therefore an ability to meaningfully assess whether or not he will pose a threat to his own children.
Sentencing Order
Mr. G., could you please stand? For all of these reasons I am going to sentence you as follows:
You will be sentenced to 90 days' imprisonment to be served on an intermittent basis.
You will step into custody today and thereafter commencing on Friday, July 8, 2016 by no later than 7:00 p.m., where you will be held until Monday, July 11, 2016 where you will be released at 5:00 a.m., and you will surrender thereafter each Friday at the same time and be released each Monday at the same time until the completion of your sentence.
In addition, you will be placed on probation while you are serving this sentence, and for a period of 12 months thereafter. The terms will be the same throughout.
Probation Terms
First, the statutory terms:
That you keep the peace and be of good behaviour. It means exactly what it sounds like, you must be good over the next 12 months. If you were to commit another offence, not only would you be guilty of that offence you would be guilty of breaching your probation order.
You are to come to court if and when directed to do so by the court or your probation officer. I cannot imagine we are going to ask you to come back but if we do you must come.
You are to advise the court or your probation officer, in advance, of any change in name, I cannot imagine you are going to change your name, or any change in address or occupation. So if you move or you change jobs, you have to let the court or your probation officer know in advance.
I am also going to direct that you report to a probation officer within two working days following the completion of your custodial sentence, and thereafter, if and when directed to do so by your probation officer.
That you participate in any counseling as recommended by your probation officer with the specific recommendation that you take counseling to obtain treatment that would be helpful to you as a sex offender.
Further, that you not have any contact, directly or indirectly, by any means, with L.S., T.S. or S.S. And that means text, email, posting anything on someone's social media page, sending a friend or an intermediary to speak to them on your behalf. No contact whatsoever.
Further, that you not be within 500 metres of any place that you know L.S., T.S. or S.S. to be, including their place of residence, place of education, place of employment or place of worship.
Further, that you not possess any weapons as defined by the Criminal Code of Canada. Firearms, crossbows, prohibited devices, ammunition, explosive substances, those are all "weapons" under the Criminal Code. But anything, if you pick it up in anger and use it in violence, becomes a weapon. If I try to stab someone with my pen, my pen becomes a weapon. No weapons as defined by the Criminal Code.
Further, that while serving your intermittent sentence, and this is the only condition that is different and that will govern in the context of that sentence, that you attend at the detention facility with a zero blood alcohol concentration and while not under the influence of any non-medically prescribed controlled substances. So there is no getting drunk or getting high before surrendering on Friday evenings.
Those are the various terms of the probation order. Counsel, I don't believe I have left anything out.
MS. HACKETT: No, thank you.
MR. PLANT: I'm sorry, maybe I just didn't hear it. The one about not being with anyone under 16 unless in the presence of an adult...
THE COURT: Thank you.
MR. PLANT: ...was that stated?
THE COURT: No, it's not. I did inadvertently leave that out, so let me just make sure it gets included. I know counsel had talked about an adult. An 18-year-old is an adult and so I have contemplated, throughout, someone who is 21 because I just think that although someone 18 is an adult, I prefer to have someone who is a little bit more mature being that second person. So just the one variation on the various terms of the probation order that I have just outlined to you, sir, the additional term that I omitted inadvertently is this:
That you not be in the presence of any person under the age of 16 years of age unless you are in the immediate and continuous presence of another person over the age of 21, okay?
Do you understand the various terms of the probation order as I've explained them to you?
M.G: Yes.
THE COURT: Will you follow them?
M.G: Yes.
THE COURT: And I have to warn you that failure to abide by any of those terms is a separate, serious offence for which you can go to jail.
Section 110 Order
In addition, pursuant to section 110 of the Criminal Code you will be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of five years. That is a freestanding court order. It lasts for five years. If you were to breach it, it is a separate crime for which you could go to jail. Do you understand all of that?
M.G: Yes.
THE COURT: Will you abide by it?
M.G: Yes.
DNA Order
All right. Further, pursuant to section 487.051(4) of the Criminal Code a DNA order is mandatory as sexual assault is a primary designated offence. Therefore, I will order that a sample of your blood be taken today for inclusion of your DNA profile in the national DNA databank.
SOIRA Designation
Further, I am going to order that you be designated as a person convicted of a designated offence pursuant to section 490.011 of the Criminal Code for a period of 20 years, and that you therefore will be required to comply with the terms of the Sex Offender Information Registration Act for that period.
Section 161 Order
In addition, pursuant to section 161 of the Criminal Code, I order that, for a period of 10 years:
• You not attend at a public park or public swimming area where persons under the age of 16 years are present or can reasonably expected to be present, or a daycare centre, school ground, playground, or community centre unless you are in the immediate and continuous presence of another person over the age of 21.
• Further, that you not attend within 500 metres of any place you know L.S., T.S. or S.S. to be, including their residence, place of education, place of employment or place of worship;
• Further, that you not seek, obtain or continue any employment, whether or not the employment is remunerated, or become or be a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
• Then, finally, that you not have any contact, including communicating by any means with a person who is under the age of 16 years except if you are in the immediate and continuous presence of another adult person over the age of 21.
Now, the part about the Sex Offender Identification Registration Act, do you understand that?
M.G: Yes.
THE COURT: You're going to abide by that?
M.G: Yes.
THE COURT: All right. And failure to abide by that is a separate serious offence, you get that?
M.G: Yes.
THE COURT: Okay. And then further, you understand the terms of the 161 order that I've made? I explained them a bit — at least in terms of my thinking in terms of the rationalization for them — but I've gone through the various terms, do you understand them?
M.G: Yes.
THE COURT: All right. And I have to warn you, failure to abide by any of those terms is a separate serious crime and it's very serious, it's quite common that people go to jail for breaching orders of this nature. I can tell you that the Court of Appeal just late last year overturned a sentence and imposed a sentence of six months on someone who went to a school in contravention of one of these orders, all right. So you have to be fastidious in following it and its wording to the letter, all right. You understand?
M.G: Yes.
THE COURT: And just in terms of, should you have children, you heard what I had to say in that regard. It is a situation where you'll have lots of advance warning and you could come back to court and bring an application. You could very well bring it before me. Based on your circumstances at that point in time, a variation of the order could be considered, okay? So...
M.G: All right.
THE COURT: ...just bear that mind and I'm sure Mr. Plant will explain that to you as well.
Victim Fine Surcharge and Conclusion
Lastly, there is the matter of the victim fine surcharge. It's $100, you will have 30 days to pay that, okay?
M.G: Okay.
THE COURT: That completes the sentencing. The remaining counts?
MS. HACKETT: To be withdrawn, please.
THE COURT: The remaining counts will be marked withdrawn against you. If you could just take a seat in the prisoner's box, we'll call down to cells to have someone come and get you. They'll process you and you'll be released later today, okay.
MS. HACKETT: Can I just confirm? There should have been a publication ban I imagine from the last occasion. Could we just....
THE COURT: There was.
MS. HACKETT: Okay, good.
THE COURT: ...there is.
WHEREUPON THIS MATTER WAS CONCLUDED
Certificate of Transcript
I, Kim Fess, certify that this document is a true and accurate transcript of the recording of R. v. G. in the Ontario Court of Justice held at 7755 Hurontario Street, Brampton, Ontario, taken from Recording No. 3111_302_20160620_093626__30_STRIBOJ.dcr, which has been certified in Form 1.
Kim Fess ACT ID: 4454479014 1-855-443-2748 kim@vptranscription.com