Ontario Court of Justice
Date: 2019-01-09
Court File No.: Central East Region
Parties
Between:
Her Majesty the Queen
— AND —
Steven Vincer
Court Information
Before: Justice J. Bliss
Plea entered: April 6, 2018
Sentence hearing held: October 26, 2018
Reasons for sentence released: January 9, 2019
Counsel
For the Crown: K. Smyth
For the accused Steven Vincer: D. Wilcox
Judgment
BLISS J.:
[1] For 42 years, Steven Vincer was a teacher at Our Lady of Grace Catholic School in Angus primarily teaching grades 5 to 8. In the 1980s, Mr. Vincer had a habit of taking students away on trips not organized by the school. When he did so, he took the opportunity to use two of his students for his own sexual gratification. Those episodes remained hidden for 31 years. In that time, as a teacher, he was, by all accounts well respected, but those who held him in high regard were unaware that he had grossly violated the trust placed in him by repeatedly sexually exploiting his relationship with two students, R.B. and M.S.
[2] On April 6, 2018, Steven Vincer pled guilty to sexually assaulting R.B. between July 1, 1984 and June 30, 1986. The incidents involving M.S. were admitted as part of the plea negotiations and included in the agreed statement of facts. In 1984, R.B. was in grade 8 and 13 years old. Steven Vincer taught him. In 1984 and 1985, Mr. Vincer took R.B. and T.G. on an overnight trip to Sundridge. The three of them stayed in one hotel room. The room had two beds. R.B. got into one bed in his underwear. Steven Vincer got into bed with him. T.G. was in the other bed. Mr. Vincer put his hand down R.B.'s underwear and touched his penis. R.B. did not say anything and this went on for five to ten minutes before Mr. Vincer removed his hand.
[3] Mr. Vincer and R.B. remained in contact the following year even though Mr. Vincer no longer taught him. R.B. would go to Steven Vincer's home. While there, Mr. Vincer got undressed and did the same to R.B. He then rubbed his penis against the side or back of R.B.'s naked body until he ejaculated. The trips also continued. On one trip to Buffalo, Mr. Vincer and R.B. went shopping and then stayed in a hotel room for the night. Both were naked and again Mr. Vincer rubbed his penis against R.B.'s body until he ejaculated. While his penis was close to R.B.'s anus, there was no penetration. On another occasion, Mr. Vincer took R.B. and T.G to Columbia and the three stayed in a hotel room together. When R.B. and Mr. Vincer were alone in the hotel room, Mr. Vincer rubbed his penis against R.B. while both were naked.
[4] On September 13, 2017, a now 46 year old R.B. contacted the OPP and disclosed the sexual assaults. He did so after becoming concerned after seeing Steven Vincer in a shopping mall in Barrie in the company of a young boy.
[5] The next day, Steven Vincer was contacted by Barrie OPP and he attended the detachment where he was arrested. He provided a statement to police about the allegations. He told them that he hopes the victims are forgiving but doesn't know, he wasn't going to say whether he had sexual relations with students at that time or later, he wasn't violent, he never forced someone to do something they didn't want to, and that he wasn't going to say it was just limited to touching but there was no oral sex or penetration.
[6] Police investigation led to another victim, M.S. coming forward. M.S. also went to school with R.B. and was taught by Steven Vincer in grade 7 and 8. M.S. recalled that at the time, the children would play a game that involved them hitting each other in the testicles. Mr. Vincer participated in that game. M.S. also went on trips with Mr. Vincer for events that were not sanctioned by the school including to Kentucky and Sundridge. M.S. recounted that when he was in grade 8 he went to Sundridge with Steven Vincer. They were in a swimming pool and he recalled his teacher putting his hands inside his bathing suit and grabbing his penis. He said that Mr. Vincer was aroused and he thought that Mr. Vincer's penis was erect. On another trip, M.S. recalled Mr. Vincer and other students watching an R-rated movie with a sex scene. M.S. brought up watching this movie at school and Mr. Vincer became upset. After that, M.S. no longer went on another trip with Mr. Vincer.
[7] These incidents are not simply the untested and imaginary recollections of thirty-odd years ago. They are the foundation of an agreed statement of fact and admissions of wrongdoing by Steven Vincer and the basis for his guilty plea.
Impact on Victims
[8] The impact of Steven Vincer's breach of trust upon R.B. is significant. R.B.'s victim impact statement speaks of his humiliation, indignity and shame. He began drinking alcohol and abusing drugs from when the abuse started in an attempt to block out the pain and memories of Steven Vincer's conduct. He questioned his own sexuality and felt he was being controlled by someone he trusted, someone who was in a position of authority who made him do things, that in his words, "[he] didn't want to do or had any desire to do". Those words stand in stark contrast to Steven Vincer's words to police that he "never forced someone to do what they didn't want to"; words that demonstrate a remarkable lack of insight.
[9] R.B. expressed his feelings of betrayal and anger of having someone who sat at his family dinner table, befriending his parents, and using that very relationship to perpetrate the sexual abuse; abuse which crushed R.B.'s confidence and self-esteem. It has impacted his relationships and how he parents his own children and shows the domino effect of Steven Vincer's sexual abuse. R.B.'s anger and regret at how his life path was stolen from him by Steven Vincer comes through the pages of his victim impact statement.
Psychological Assessment
[10] Steven Vincer participated in a risk assessment by psychologist Dana Anderson to assist the court with recommendations for risk management and rehabilitation. Dr. Anderson's initial psycho-legal assessment, dated April 3, 2018, was filed with the court. Her report was amended after receipt of additional facts and a follow-up examination on June 7, 2018. The latter report of September 25, 2018 was also filed with the Court.
[11] In the preamble to both reports, Dr. Anderson emphasized to Mr. Vincer that the assessment was to assist the court in determining the best course of action with regard to risk management and treatment. With that in mind, it is puzzling that in the initial assessment, Steven Vincer described his sexual orientation as exclusively heterosexual and, notwithstanding his same-sex abuse, maintained that his sexual interest was in adult females.
[12] Dr. Anderson was initially provided with the synopsis, occurrence report, arrest report and witness statements which referred to one victim, R.B. Mr. Vincer indicated that this was his only victim although Dr. Anderson noted in that report that the police were continuing their investigation into whether there were other victims.
[13] Dr. Anderson concluded that Mr. Vincer had a below average risk of sexual reoffending compared to the overall population of typical sexual offenders. She noted that his insight into the offending behavior was limited to opportunity, but it remained unclear why he did not take advantage of other similar opportunities given that there were others who went with him on trips. He had some insight into the cognitive distortions that allowed him to violate boundaries, was aware of the harm he caused, and expressed genuine remorse. As a result of the low level of risk and lack of psychopathology and historical difficulties, Dr. Anderson's opinion was that there appeared to be no reason to refer Mr. Vincer to specific intervention targeting risk factors associated with sexual recidivism.
[14] In the amended report, after the psychologist had been provided with additional material that referred to a second victim, her conclusion remained that Mr. Vincer's risk was low. She noted that after being prompted with questions and challenged on sexual preference, Mr. Vincer acknowledged he was attracted to males not females, but denied any interest in children. In contrast to the first interview when Mr. Vincer admitted to only one victim, when confronted with details of a second victim and an account of similar behaviour, he admitted the details of the second victim's account. Apparently in his statement to police when the investigating officer was trying to determine how many victims there were or how many victims Mr. Vincer would admit to, he asked Steven Vincer if it was "just those three", referring apparently to R.B., M.S. and a third male, likely T.G., who, while there were suspicions that he too had been molested, only indicated he was a witness to the abuse. Steven Vincer admitted to those three.
[15] As noted by Dr. Anderson, in the previous version of the report there were outstanding questions about Steven Vincer's sexual history and orientation. The follow-up sessions allowed for greater challenge to his answers and eventual acknowledgement of his sexual orientation that he had been asked directly at the first interview but denied. He indicated some attraction at that time to adolescent boys, but considered them to be like his friends. He maintained that he will not practice homosexuality, that he does not have opportunities to offend, experiences guilt over his offending and is seeking forgiveness.
Sentencing Arguments
[16] The defence argues that given Mr. Vincer's age, his guilty plea, acceptance of responsibility, his excellent reputation as a teacher and lack of any offending since these transgressions some 34 years ago, that he is not the man that he was when he offended. The defence urges me to sentence Mr. Vincer as he presents today and not as the man who committed these acts, and submits that an 18 month conditional sentence, while exceptional, would be appropriate.
[17] The prosecution counters that a term of imprisonment of two to three years is the least restrictive sanction to denounce and deter the obvious breach of trust and sexual abuse of children. They were vulnerable, there were multiple victims, and the acts, the prosecution points out, were not opportunistic but planned and repetitive.
Judicial Principles
[18] There is no dispute over the role teachers play in the lives of children. They stand not just in positions of authority but also in positions of trust.
[19] In R. v. Aird 2013 ONCA 447, the Court of Appeal upheld a 12 month sentence for a teacher who sexually abused a 17 year old student he hired as a tutor over a protracted period of time and included oral sex and intercourse. The Court did so despite the offender having no criminal record, a positive pre-sentence report, no danger to reoffend and the loss of his teacher's license.
[20] In R. v. Cassidy [2016] O.J. No. 3074 (S.C.J.), the accused was a former teacher and family friend who shared many of the mitigating characteristics as Mr. Vincer but also the same "gross breach of trust". There was a single victim in which there were multiple acts including digital penetration. An eight month term of imprisonment was imposed.
[21] R. v. Gaukrodger involved a female teacher who sexually exploited a student, including multiple acts of sexual intercourse over the course of a one month period. The sentence of 15 months imprisonment and two years probation was not commented on by the appeal court.
[22] In many cases of historical sexual abuse, offenders are able to carry on with their lives for years. In the case of teachers, it is not unusual for glowing personal and professional references about the person be provided to the court. Years will pass and the offender will be able to maintain a respected role in his or her school and community and contribute positively to the young lives that they have been entrusted to mold. It takes a great deal of courage for victims to come forward. It may, as was the case here, take years. Sexual offences against children perpetrated by those who they trusted, looked up to, befriended only to be betrayed, go to the core of the victim's being, and they bring with them questions and trauma and a search for something to numb the pain. Offenders like Steven Vincer change the trajectory of their victims' lives and then go on their way relying on their victim to keep the abuse hidden. Steven Vincer is not the man today he was in 1983 but neither is R.B. or any of the other victims of Steven Vincer's abuse.
[23] There is no dispute that "a conditional sentence should rarely be imposed in cases of sexual touching of children by adults, particularly where…the sexual violation is by a person in a position of trust" (R. v. A.F.R. 2007 ONCA 114, R. v. D.M. 2007 ONCA 690, R. v. D.(R.W.) (2005))
[24] The defence submits that Steven Vincer has brought himself within that exceptionality that warrants a conditional sentence. In R. v. D.D., the Court of Appeal wrote:
34 The overall message…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.
35 We as a society owe it to our children to protect them from the harm caused by offenders [like the appellant]. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
[25] In support of a conditional sentence, the defence has provided me with a number of cases in which such a sentence has been imposed.
[26] In R. v. A.C. 2012 ONCA 608, the Court was asked to revisit a conditional sentence of two years less one day imposed following trial in which the accused had engaged in historical but repeated acts of sexual abuse over a period of months that included an attempt to engage in sexual intercourse. The Court declined to interfere with the sentence finding that the trial judge identified all the relevant factors and sentencing objectives and determined that the sentence could be served conditionally.
[27] R. v. Kneale [1999] O.J. No. 4062 (S.C.J.) involved a priest who had, in 1985, sexually assaulted a 16 year old former parishioner by performing fellatio one time. He had many letters of support and had undergone therapy. Sharing from the Court's decision in Kneale, Mr. Vincer argues that the historical circumstances, the lack of evidence of sexual offending in the 34 years since the offence and treatment, or in Mr. Vincer's case, a psycho-legal assessment opining that he does not present as a danger to reoffend. The judge in Kneale was of the view that a conditional sentence would not endanger the safety of the community, and the sentencing principles outlined in s.718 and specifically s.718.2, while defining abuse of a victim through a breach of trust as an aggravating circumstance, and recognizing the rare or exceptionality to such a sentence where there is sexual misconduct towards a child, found that such a sentence was appropriate in the circumstances of that case.
[28] Haines J. in R. v. R.W.B. [2002] O.J. No. 1477 declined to impose a conditional sentence following trial for a high school teacher who provided support for a teenage boy who had suffered the tragedy of losing a brother. The accused had the young person come to his apartment where they used drugs, drank alcohol, watched pornographic videos and participated in mutual massage and masturbation. The first incident took place when the victim was 12 years old and continued until he was 17 years.
[29] The sentencing judge received 132 letters from students, colleagues and friends attesting to his good character, described numerous acts of goodwill and generosity and spoke of the positive influence he had in their lives. They were described as an extraordinary testimonial to an apparently extraordinary person but, as the judge observed, it was those very qualities that enabled the accused to gain the trust of the victim's family and commit the many breaches of that trust. Ultimately, while satisfied that the safety of the community would not be endangered by a sentence served in the community, the judge declined to order such a sentence finding that the objectives of deterrence and denunciation could not be met by the imposition of a conditional sentence and instead imposed an 18 month custodial sentence.
[30] Similarly, in R. v. G.O., the Court dismissed a sentence appeal of a fifteen month custodial sentence imposed on a recreation centre instructor who targeted a 7 year old boy and over the next four years groomed him to engage in hugging, kissing, fondling and oral sex. The court was not satisfied that a conditional sentence was sufficient to meet the principles of denunciation and deterrence and that it was the appellant's otherwise good character that led to a reformatory sentence being imposed.
[31] As the defence concedes, and urges, a conditional sentence for an offence such as Steven Vincer's requires a finding of exceptionality. Exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence.
Sentencing Framework
[32] It is worth repeating the principles of sentencing engaged by Steven Vincer's offending:
s.718. The fundamental purpose of sentencing is to protect society and to contribute…to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community.
[33] Where the offending involves children, s.718.01 of the Criminal Code dictates that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. That is repeated in s.718.2 (ii.1). Other statutorily aggravating circumstances are his abuse of a position of trust or authority in relation to the victim as set out in s. 718.2 (iii) of the Criminal Code and the significant impact that the offence had on the victim as referred to in s. 718.2 (iii.1).
[34] Sections 718.1 and 718.2(b) speak, respectively, that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender, and should be similar to sentences imposed on similar offenders for similar offences in similar circumstances. The sentence must also be tempered by restraint. Section 718.2(d) sets out that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances, and s.718.2(e) calls for a consideration of all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community. In simple terms, whatever sentence is imposed, it should be the least restrictive and least severe necessary to respond to the objectives of sentencing that arise in any given case.
[35] The prosecution submits that the appropriate sentence for Steven Vincer's criminal conduct is two to three years imprisonment. That would obviously remove the availability of a conditional sentence. Leaving aside that particular disqualifier, there is no real challenge to the psycho-legal findings of risk and Mr. Vincer's thirty plus years as an educator since these events without further offence and therefore no real challenge to the claim that he does not present as a risk of danger to the community.
[36] If a reformatory sentence is appropriate, there is still the question of whether a conditional sentence has a sufficiently denunciatory and deterrent effect. There is no doubt that denunciation and deterrence can be achieved by the imposition of a conditional sentence. Lamer C.J. wrote, as such, in R. v. Proulx 2000 SCC 5:
…a conditional sentence can achieve both punitive and restorative objectives. To the extent that both punitive and restorative objectives can be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment is particularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractive sanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. This follows from the principle of restraint in s. 718.2(d) and (e), which militates in favour of alternatives to incarceration where appropriate in the circumstances.
[37] Proulx spoke of denunciation through the sentencing process. "[A] sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values...As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77 : "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". Lamer C.J. went on to observe, however, that "[i]ncarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances."
[38] The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served. As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct.
[39] Steven Vincer was described as highly regarded and a much loved teacher. That reputation would not have been earned if his conduct was known as it became known following his arrest. That he might have had to wrestle with his own homosexuality and what he might have felt as society's then non-acceptance of his sexual orientation or from his church's view on homosexuality as was argued, provides no justification for inveigling children to engage with him for his own sexual gratification. That he has not offended since the 1980s is to his credit, as is his guilty plea which no doubt spared the victims having to face their former teacher and recount his acts to the court. That he currently presents as no risk of reoffending is another consideration that should provide some confidence about the potential for future victims. I am also cognizant that his particular acts, which did not escalate to oral sex or penetration, were still violations nonetheless. I am not satisfied that those factors, which are often the case in historical sexual offences, put Steven Vincer into that exceptional category for which a conditional sentence of imprisonment is appropriate. His conduct, the gross breaches of trust as a teacher, the episodic and repetitive nature of his offending, and the fact there was more than one victim, calls out for a denunciatory and deterrent sentence that involves real jail.
Sentence and Ancillary Orders
[40] I am of the view that the appropriate sentence is one of 18 months imprisonment followed by probation for one year. The ancillary orders will be that Steven Vincer provide a sample of his DNA, a s.109 order for ten years, that he be subject of a SOIRA order for 20 years and, in light of the Supreme Court of Canada's decision in R. v. K.R.J. 2016 SCC 31, I find the following prohibitions under s.161 of the Criminal Code appropriate for a period of ten years:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; and
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.
Released: January 9, 2019
Signed: Justice J. Bliss