Court File and Parties
Date: December 13, 2017
Court File: 16-34690
Ontario Court of Justice
Her Majesty the Queen
v.
Randy Chafe
Sentencing Hearing
Before: The Honourable Mister Justice Wakefield
Date: Wednesday, December 13, 2017
Location: 150 Bond Street, Oshawa, Ontario
Appearances
Counsel for the Crown: G. Driscoll
Counsel for the Defence: T. Balka
Heard: In Writing
Ruling on Adjournment Application
WAKEFIELD, J: (Orally)
Essentially, the request is to put the matter over for setting a date for fresh evidence. That is going to be subject to the governing principles in R. v. Palmer, [1980] 1 SCR 759. The principles in that case, to start off, I do have, and I accept that I have jurisdiction to reopen the case for fresh evidence when it is in the interests of justice to do so. I note that Palmer says the interests of justice include an interest in preventing miscarriages of justice by having guilt determined based on all the available evidence, and also an interest in the integrity of the criminal process, to which finality and order are essential. As well, the importance of finality to the integrity of the criminal process clearly requires that special grounds be shown before fresh evidence is admitted. Fresh evidence must not be admitted as a matter of course.
The four criteria of whether it is in the best interest of justice for fresh evidence to be admitted are:
That the evidence should generally not be admitted if by due diligence it could have been introduced at trial, provided that this general principle would not be applied as strictly in criminal cases as in civil cases.
That evidence must be relevant in the sense that it bears on a decisive or potentially decisive issue of the trial.
The evidence must be credible in the sense that it is reasonably capable of belief.
It must be such that if believed it could reasonably, when taken with other evidence adduced at trial, be expected to have affected the result, and I think later case law has condensed that into "could have" affected the result.
The first criteria is not a precondition. However, the second, third, and fourth criteria are conditions precedent to the admissibility of fresh evidence. Essentially, I am at the point now where certainty would require me to proceed with sentencing today. To hear that there's a suggestion that there could be an application to have a date set in January, knowing my schedule for the first few months of the new year, I would be shocked if sufficient time could be set aside much before spring. There would have to be something more for me to agree to that sort of further lapse of time. And while this would certainly be the sort of special circumstance that Jordan, I would assume, would not see as a delay issue, it is certainly in my view, something that amounts to, in just agreeing to let the matter go over, the very culture of complacency as warned against by Justice Moldaver.
So, at this point I have no idea what the fresh evidence is. I cannot even assess if there is even air of reality to it. I know that you have been in contact with a new lawyer. That is all I know. I don't know if he is on record. I do not know if he has been properly or completely retained. In fact, I have a complete vacuum of any information whatsoever to assist me in determining whether there is an air of reality to the proposed new evidence or not.
I am inclined to just proceed with the sentencing right now, but what I am going to do is give him until 2:15 to give me something more to make a more intelligent determination as to whether I proceed with sentencing today or give the opportunity to bring the application.
I need to know whether there is an air of reality to the proposed new evidence, subject to a full argument at a subsequent date, if I feel it is something that should be the subject of a full submissions and argument and decision. So, I am going to hold the matter down to 2:15. I want to hear something more. I am not going to just make you stand up and start talking now. I think that is unfair to you. I think it is unfair just to not give you an opportunity to flesh out the record as to what this new evidence is supposed to be, and I do not think it is fair to you if I make a decision without giving an opportunity to put that on the record so that I can make a more intelligent decision as to whether to proceed today or not. I will tell you right now, I do need to hear something that would convince me that it is not appropriate to proceed with the sentencing today because there are indeed, as referenced by the Crown, other forms in which to tackle the same issue. But let's start off with giving you an opportunity to come back and see me this afternoon. Mr. Balka's in a really difficult situation right now. In slightly different circumstances, I think I would be asking Mr. Balka to be the intermediary, but not knowing what exactly are the surrounding circumstances, I am not comfortable doing that.
What I would anticipate is at the very least you having the ability to articulate the sort of new evidence that your new lawyer would be anticipating, or more ideally, because it is putting you on the spot, I appreciate that, something that can be emailed or faxed here before 2:15. But otherwise, this is a sentencing day. It is a sentencing day that everybody has known about for quite some period of time. It is a sentencing day that could have been given a heads up to the Crown and myself there may be another issue, as opposed to waiting for the morning of when we have the victim and her mother here in court, as well as, I appreciate, a lot of people here in support of you who, again are on tender hooks. You, more than anybody else, is on tender hooks. So, 2:15, if you have got something that you can put on the record, I will listen carefully. If not, we will be proceeding to sentencing at 2:15. Do you understand me?
Ruling on Fresh Evidence Application
WAKEFIELD, J: (Orally)
It is now 4:30. Rather than just going through all the Crown's submissions, I can tell you I am adopting the Crown's submissions as to the test to be applied here. And the conclusions that I should draw from the test especially, I agree with the Crown that the binding up to date law in analyzing the situation is indeed that of M.G.T., 2017 ONCA 736, 2017 OJ No. 4902, and that is certainly what I must comply with in assessing the application. I am not going to go through them all again. I am just adopting those reasons, otherwise we won't finish today.
However, there are some additional comments that I do need to make. First and foremost is my concern that the defendant is now self-represented, and frankly I appreciate he is feeling very much at a disadvantage here, and I think fairly put uncomfortable being here without the assistance of counsel.
However, I also note that prior to defence counsel being removed from the record today, all submissions had previously been made with respect to sentencing and completed on the previous date, and that today was earmarked solely for imposition of sentence before the issues of the application to adjourn before fresh evidence was made. Two, I do note as well that there was a finding of guilt on September 22 of this year, the sentencing submissions on November 21st, and then the sentencing earmarked for today, December 13th, which means it's been almost three months since the conviction date and, in my view, long past a point where this issue should have been raised before the morning herein. Although I understand for Mr. Balka's earlier conflict, you may have tried to reach him December 5 with respect to this issue but, in my view again, way past the point where these things should be brought to the court's attention. I also note and agree with the Crown that the direction in M.G.T., and I think the cite was given earlier, but 2017 ONCA 736, 2017 OJ No. 4902, that upon the post recording of convictions, my review should be more rigorous than the review to reopen prior to the finding of guilt. I also note, as well, the direction in the appellate decision regarding finality of proceedings, also the subject of Crown submissions to me.
The Costco receipt I simply do not perceive as having any air of reality that it could have affected the trial result. The possibility would appear as to it is the roast and the pie, which, in my view, even on a hot day, it did not require immediate refrigeration, and I just do not see that having impact on the trial outcome. The possibility of an expert in fingernails at this point in time is too elusive on the record before me. Leaving aside discoverability issues before trial, it is surely something of diligence post conviction should be far more detailed to provide at least an air of reality to justify any further delay, and what I have before me today lacks that air of reality. As such, I am indeed dismissing the adjournment application, and I am proceeding to sentencing today.
Reasons for Sentence
WAKEFIELD, J: (Orally)
Conviction and Charges
With respect to sentencing, Mr. Chafe has previously been found guilty after trial of both sexual assault and sexual interference. In convicting Mr. Chafe, I found the Crown had proven beyond a reasonable doubt that in a roughhousing session, which was not out of the ordinary for the two, the defendant squeezed one breast once, followed by a squeeze of the complainant's buttocks during the same incident. These findings were somewhat less than the initial allegations, including fondling of both breasts.
Pursuant to the Crown request, I am conditionally staying the sexual assault, pursuant to R. v. Kienapple, 1974 SCJ No. 76.
Mandatory Minimum Sentence
While the mandatory minimum sentence for indictable elections under s. 151 of the Criminal Code of Canada has been declared unconstitutional, no such ruling has been made for those matters which are proceeded summarily. As such in the case at bar, there is a mandatory minimum of 90 days for this offence in which the Crown has indeed elected summarily, given the lack of any constitutional challenge. At the same time, I acknowledge the incongruity that the same facts might result in a lower sentence where the Crown elects by way of indictment as opposed to summarily.
Notwithstanding that incongruity, whether by way of indictment or summarily, the same sentencing principles set out in Part XXIII of the Criminal Code apply equally, and my obligation is to determine the appropriate sentence for the facts of this offence. As set out in R. v. Smith, 2015 OJ SCJ paragraph 34:
"Importantly, the 'worst offender committing the worst offence principle' does not operate to constrain the imposition of the maximum sentence in summary conviction matters where the maximum sentence would otherwise be appropriate having regard to the principles articulated in Part XXIII of the Code. See R. v. Solowan, 2008 SCC 62, 3 S.C.R. 309, 237 C.C.C. (3d) 129, at paras. 3, 10, 15-16. Simply put, on summary elected hybrid offences, since this should not be scaled down from the maximum sentence available on summary conviction from sentences available if elected by way of indictment, nor is there as much comparable value with case law positing a sentence range exceeding the maximum permitted on the summary election."
Crown and Defence Submissions
The Crown is submitting a sentence of 12 months jail followed by two years probation. The defence is urging a minimum sentence of 90 days intermittent with probation. Crown and defence are ad idem regarding ancillary orders of DNA, s. 109 weapons prohibition, s. 161 order, and a SOIRA order. The Crown is also seeking a communication order pursuant to s. 173 of the Criminal Code.
Constitutional Challenge
Dealing first with the issue of constitutional challenge, while the mandatory minimum is presumably at risk given the current state of law regarding indictable offences, no such application was brought. Defence counsel advised that they are not bringing the application for the reason that their position was the same as the mandatory minimum, which would make the application moot. The Crown position is that with the mandatory minimum in place, that minimum sentence was reserved for the least culpable accused with the least egregious facts in that sentence. My view is that it would be an unjustifiable waste of court resources if the defence is required to bring a constitutional challenge just to deprive the Crown of the submission of the 90 day minimum was reserved for the least egregious offenders where there is no minimum sentence if an indictable election.
Sentencing Principles and Case Law
Sentences on sexual interference are as wide a range as any area of law in criminal sentencing. First and foremost, the sentence must be one which expresses society's revulsion at the breach of trust involved with a father figure that turns innocent roughhousing into sexualized groping.
The case law is replete with acknowledgments as to how such sexualized breaches of trust impact on victims and which damage can very well last a lifetime. This is especially true when the victim has some challenges and specialities, such as the case at bar, which increases the level of vulnerability. However, I do acknowledge that the victim here was 15 and already in many ways semi-independent. She was also sufficiently self-confident to almost immediately confide in her mother regarding the assault, which, for which she must be complimented, and as must her mother for raising a daughter with those strengths. Given those strengths, my view is that her greatest vulnerability was the trust she had in her father figure where the expectation was being a protector, and the greatest damage which flowed from her trust in him was the trust dying by his actions. I would expect it would be difficult for any victim to be able to easily trust again.
The absence of an aggravating factor does not become a mitigating factor. However, in comparing other cases proffered in sentencing with the case at bar, I should take into account the aggravating factors in those cases with those sentences when comparing them to the actions of this defendant in this case. Many cases submitted had sentences which took into account the remorse demonstrated by a guilty plea.
Having a trial is not an aggravating factor, but merely the absence for remorse demonstrated by a plea. However, where there are triable issues and the factual determinations after trial are less egregious than those initially alleged, then the fact of a trial leaves open some mitigation potentially as a factor. However, in this case, the pre-sentence report confirmation of the defendant's denial of any culpability returns, in my view, the sentencing factor to the neutral position of neither being aggravating or mitigating.
Sentencing Ranges
A number of cases have been filed setting out sentencing ranges for this offence. In R. v. M.L., 2016 OJ No. 5846, a conviction was registered against the defendant's stepfather. The 56 year old defendant was found to have started with a massage that progressed to both the defendant and the 15 year old victim being topless, followed by mutual consumption of marijuana. The defendant then commenced touching and squeezing both breasts. There was a double breach of trust here, as the victim trusted the defendant both as a stepfather, but also as a nurse in who she confided many intimate details of her life for medical advice. Presumably, the victim had to testify twice. That sentencing judge was weighing all the factors, including the destruction of the victim's relationship with her sister, concluded that a nine-month sentence was appropriate. However, in reviewing the constitutional challenge to the indictable minimum, the court stated at paragraph 80 that the circumstances of that case would result in a sentencing range of between six and 15 months.
He also stated paragraph 85 that:
"It is evident from the examination of the reasonable hypothetical cases examined where sentences of 60 to 90 days were found to be fit sentences for conviction on sexual interference in the relatively similar circumstances to this case would be caught by the one year mandatory minimum sentences and would be indisputably grossly disproportionate. As a result, I must find that s. 151(a) of the Code violates s. 12 of the Charter."
I take this to mean that a range of 60 to 90 days could have been found to be fit sentences for similar circumstances for the case at bar. The range would be consistent with the analysis set out in R. v. C.F., 2016 ONCJ 302, 2016 OJ No. 2752, with a factual situation with perhaps a lesser breach of trust, but with a more egregious manipulation of the victim's body. In other cases referenced in M.L., sentences range from the minimum to lengthier periods of incarceration. In sentencing, the younger the victim, the greater the seriousness of the breach and the longer the sentence.
Defendant's Background and Rehabilitation Prospects
The defendant's presentence report is overall a positive one. His prior record is noncognate, and with a 20 year gap demonstrating a long history of alcohol abuse, which he has now conquered. He is gainfully employed and clearly has the strong support on extended family. His relationship with the victim's family over 14 years, has been both financially and emotionally supportive for them, though that aspect is the very foundation of the breach of trust. All sources report that this incident is very much out of character for him, and none have had any such concerns about him. Then again, the private, secretive nature usually involved in this offence lessens the weight of the latter opinion. The effort involved in overcoming his alcohol dependency, of returning to school to complete his education, and the long-term employment history, in my view, puts the defendant's background and prior record at the lower end of the seriousness spectrum, and demonstrative of his rehabilitation prospects.
That the offence arose out of a type of horseplay makes this more of a crime of opportunity than premeditation. The victim deserves teenage years in which any violation of her bodily integrity should never occur. But I accept that this violation was on top of all the clothing, and almost fleeting in its nature. A phrase used in several of the cases referenced during submissions applies to Mr. Chafe in my view, that he is an otherwise good man who chose to commit a bad act.
That Mr. Chafe is such an otherwise positive member of our community, rehabilitation becomes a less important factor in sentencing, other than the impact of the sentence on his ultimate reintegration back into the community. The very nature of the sexual interference offence in the Criminal Code has already taken into account that the victim must be a youth or child. However, it is still an aggravating factor pursuant to s. 718, as is the vulnerability presented in her exceptionalities. The breach of trust too is aggravating. The defendant is the sole person responsible for this offence. As such, I have concluded that depriving Mr. Chafe of his liberty is the least restrictive sanction I can impose.
Sentencing Decision
While the 60 to 90 days range previously mentioned at the sentencing submissions, absent the minimum sentence, may very well be the range for this offence in these circumstances, in my view, the minimum sentence of 90 days is indeed an appropriate balancing of all the sentencing principles in conjunction with a community supervision order far longer than the jail sentence.
Should the sentence be served intermittently? Many may view such a sentence to be less intrusive. However, I do not. It will mean each weekend the defendant will be subjected to an intrusive search each and every time upon being admitted. Should he be late, he can be subject to additional charges. In all the circumstances here, I will agree that the sentence is to be served intermittently, but not being credited with partial days. As such, with remission, the sentence will take 30 weekends in which to complete the prisoner's obligation to society.
Sentence Imposed
Stand up, sir.
You are hereby sentenced to a period of incarceration of 90 days, but to be served intermittently. You will be taken into custody today and processed in Lindsay and released later tonight. You will surrender back into custody the Saturday, December 16th at 8 a.m., and released Sunday, December 17th at 8 p.m., and each Saturday, Sunday thereafter until the incarceration is completed.
Probation Order
There will be a probation order, and I take the view that the maximum probation available is the necessary component balancing all the factors here. As such, commencing today there will be a three year period of probation on the following terms:
You will keep the peace and be of good behaviour.
You will appear before the court when required to do so.
You will notify the court or the probation officer in advance of any change in name or address, and promptly notify the court or probation officer of any change of employment or occupation.
You must appear at the jail to serve your intermittent sentence on time in a sober condition with a blood alcohol concentration of zero, and not under the influence of or possession of any controlled substance, unless you're taking a controlled substance pursuant to a lawfully obtained prescription.
You will report in person to a probation officer within two working days, and you, after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist you in your supervision.
You will not contact or communicate in any way directly or indirectly, whether physical, electronic or other means, with A.C. and M.M., except through and in the presence of or through legal counsel, in case there are any other civil proceedings which may flow from this matter.
You are not to be within 200 metres of any place where you know any of the persons named above to live, go to school, frequent, or any place you know the person to be, except for required court attendances.
Live at a place approved of by the probation officer, and not change that address without seeking the consent of the probation officer in advance.
You will attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, completed to the satisfaction of the probation officer for, under other, deviant sexual behaviour or any other counselling to assist in rehabilitation.
You will sign any release information forms as to enable your probation officer to monitor your attendance and completion of any assessment, counselling or rehabilitative programs as directed.
Any breach of that order is a new criminal offence. It puts you at risk of going into custody again if convicted.
Victim Surcharge
I have made a finding of guilt on two counts. One count is being stayed conditionally. The victim surcharge applies to the one count on the conviction. Summary election, that's $100.00 victim surcharge, one day in jail, and default of non-payment. I appreciate that there's going to be some disruption in your employment, and while the order, counsel suggests 30 days in which to pay it, I am giving you six months in which to pay the $100.00 so you can work it into your budget.
Weapons Prohibition
Pursuant to s. 109 of the Criminal Code, you are prohibited of possessing any firearm, crossbow, restricted weapon, ammunition, explicit substance for a period beginning today and ending 10 years, and that will commence today because of intermittent sentence, but further prohibited of possessing any prohibited firearm, restricted firearm, prohibitive weapon, prohibitive vice, and prohibitive ammunition for life.
DNA Order
The DNA is a primary, as I understand it, for this matter. You will provide a sample of your DNA. That will be done in a safe and secure manner. It is a drop of blood from your finger. I assume you will be explained that. That will be done today, and that, I think, was on consent with the prior submissions.
Section 161 Order
There will be an order pursuant to s. 161 that you are prohibited from attending any public park or a public swimming area where persons under the age of 14 years are present or could reasonably expected to be present, or daycare centres, school grounds, playground, community centre, or from seeking, obtaining or continuing any employment, whether or not the employment is remunerative or becoming a volunteer or being a volunteer in that capacity that involves being in the position of trust or authority towards persons under the age of 14 years. The balance of that order does not include a condition with respect to term (d). That'll just be (a), (b) and (c) of s. 161. The 200 metres applies as well to this order, with the expectation of the Crown's request. That would make sense as a parallel of the terms of the probation order.
SOIRA Order
There will be an order under SOIRA for 10 years.
Closing Remarks
You are under sentence, sir. As I said, I respect your position as to my verdict, but I will ask you to accompany the officers at this point in time to commence the incarcatory portion of your sentence.
So, that's the sort of timeframe you're looking at. That's the best guidance I can give you. He gets released from Lindsay jail tonight. It is hard to know when he is going to get there, though I suspect he's probably one of the last people holding up the return trolley there. He still has to process him up there, so I am assuming that if he gets there around seven, he could be processed or released between eight and nine, but I can't give any better guidance than that because I am assuming that somebody here is probably going to go up there to pick him up.
Released: December 13, 2017
Wakefield, J.
Certificate of Transcript
I, Debbie Knight, certify that this document is a true and accurate transcript of the recording of R. v. Randy Chafe in the Ontario Court of Justice held at 150 Bond Street East, Oshawa, Ontario taken from Recording 2811_405_20171213_091015 6_WAKEFIG.dcr, which has been certified in Form 1.
Date: March 23, 2018
Transcriber: D. Knight
Debbie Knight, ACT# 1760322488 debbie@knighttranscripts.com 416-550-4710
Transcript Ordered: January 15, 2018
Transcript Completed: March 23, 2018
Ordering Party Notified: March 23, 2018