Ontario Court of Justice

Date: 2016-06-23

Between:

Her Majesty the Queen

— and —

Edward Spearns

Before: Justice Joseph F. Kenkel

Sentencing

June 23, 2016

Counsel:

• Ms. Marcy Henschel, counsel for the Crown
• Mr. Jim Fleming, counsel for the defendant

KENKEL J.:

[1] Mr. Spearns pleaded guilty to gross indecency relating to events from 1978 to 1987 and sexual assault relating to an offence that occurred from 2006 to 2009.

[2] The first complainant is now 43 years old. From the age of 7 to 16 she was sexually abused by Mr. Spearns who was then a family friend. Contact started with fondling at the younger age. After she was 11 the accused performed oral sex upon her and there was digital penetration. The complainant did not perform sexual acts upon Spearns. When the complainant learned that a young relative had been sexually assaulted by Spearns she reported the matter to the police.

[3] The second complainant is now 16 years old. Spearns was a friend of her parents. He began to sexually abuse her by fondling when she was about 4 years of age. Sexual touching with digital penetration happened about six times until she was 10 years old. Despite her young age she had the courage to disclose the incidents to her mother at 14 and police were then contacted.

[4] As part of the facts to be considered on sentence but not punishment, Mr. Spearns admits other uncharged acts involving a third child. Although he was acquitted at trial of sexually assaulting that complainant in 1986 he did in fact molest her over a period of approximately two years when she was 7 to 10 years old.

[5] Mr. Spearns has been diagnosed as a pedophile by his psychiatrist, Dr. Gojer. This is a life-long condition. While Dr. Gojer concluded that overall he presents a low-risk to re-offend the doctor also warned that he must never be left alone with a child as he will pose a risk to that child. The doctor listed several factors that mitigate risk in this case: acceptance of responsibility, he accepts his diagnosis, continues to have the support of his spouse, and is willing to take treatment.

[6] I cannot accept the doctor's evidence that the accused is at a low-risk to reoffend given the same doctor's acknowledgement of ongoing risk towards children and the accused's now lengthy history of child sexual abuse. I find that he poses an ongoing risk to children that at best may be moderated over time by restrictive court orders and ongoing counselling and supervision. I strongly recommend that the accused be supervised in the community and directed towards the types of counselling indicated in Dr. Gojer's report if he is released prior to warrant expiry.

[7] As the victim impact statements show, the accused's actions have had a terrible ongoing impact on both complainants and their families. Their stories show that child sexual abuse destroys lives. I agree with the Crown that no sentence can fully repair the serious harm done to all three victims.

[8] The Crown and defence jointly submit that a sentence of 34 months be imposed along with ancillary orders. The accused has no criminal record. In addition to the mitigating factors mentioned by Dr. Gojer there is the fact of the guilty plea and his good conduct and compliance with court orders since arrest.

[9] In cases involving the sexual abuse of children, denunciation and general deterrence are the most important factors on sentence. A strong message must be sent to Mr. Spearns and those like him who would abuse children for their sexual gratification. In addition to the aggravating facts already mentioned, the circumstances of these offences involve a serious breach of trust.

[10] In this case the fact of the joint submission is important. The proposed sentence is at the lower end of the range but is not unfit. I accept it on that basis. Mr. Spearns is sentenced to 34 months of imprisonment in the penitentiary. There will be a sex offender registration SOIRA order for LIFE under s.490.013(2.1).

[11] Section 161 of the Criminal Code also provides for the protection of young persons by prohibiting the accused from contact with those under 16 and banning the accused from working with young people, attending parks, pools or public places where young people are likely to be present. Under section 161 of the Criminal Code I will also prohibit the accused from contact with persons under 16 in the terms submitted by the Crown and set out under that section for life. There will be a DNA order for the primary designated offence. There is also a s.109 order prohibiting Mr. Spearns from possessing firearms or the other items set out in that section for life.

Released: June 23, 2016

Justice Joseph F. Kenkel