Date: 2021.07.13 Location: St. Catharines Court: Ontario Court of Justice
Between: Her Majesty the Queen — and — Gordon Edwards
Before: Justice Fergus ODonnell
Reasons for sentence delivered orally on: 13 July, 2021
Counsel: Ms. P. Vadacchino, for the Crown Mr. A. Fazari, for the defendant, Gordon Edwards
Fergus ODonnell, J.:
[1] Mr. Edwards, as you know, you are here today for sentencing on four charges that you pleaded guilty to back in August of last year, sexual offences against two girls, whom I shall call C.S. and M.M. Ms. Vadacchino for the Crown says that a six-year sentence is appropriate. Mr. Fazari argues on your behalf that a sentence half that length, three years, is more suitable.
[2] Figuring out the ‘right’ sentence, Mr. Edwards, is an extremely complicated process. Before I even get into that, I should stress that there is no such thing as one “right” sentence for any given case; rather, various sentences could all fall within an appropriate range. My task is to identify that range and your place within it. To a large extent, the first task has been performed by the Supreme Court and the Court of Appeal, so my principal task is to place your specific circumstances within the parameters they have defined.
[3] There are a few reasons why sentencing is complex. First, every sentence relates to a specific set of facts and all sorts of considerations come into play based on what those facts are. Second, every sentence relates to a specific offender and various characteristics of that person and his or her background affect what is an appropriate sentence. The sentence must be tailor-made to fit the precise offences and the precise facts and the precise offender. Third, the Criminal Code sets out a series of objectives that a sentence should try to accomplish, but some of those objectives tend to conflict with one another and the prioritization of those objectives varies from one type of offence to another. Fourth, the Criminal Code lists circumstances that are aggravating, which may or may not apply to a particular person—so for example in this case, Ms. Vadacchino says you were in a position of trust in one of the cases and Mr. Fazari disagrees. Fifth, society’s views of certain types of offences can change over time and that is reflected in the maximum sentences that Parliament fixes for different offences and in how those sentence ranges can change over time in decisions of trial judges and the guidance provided by the Court of Appeal and the Supreme Court of Canada. An example of that would be sentencing for cannabis offences, which has changed dramatically from the 1970s and 1980s to the present day. As time passes, society may see certain types of conduct as less harmful than in the past; or society may see certain types of conduct as more harmful.
[4] The Criminal Code says a sentence should protect society and encourage respect for the law. In order to do that, the sentence should aim to denounce unlawful activity and the harm done to victims or the community, deter you and other people in the community from committing offences, assist in rehabilitation since almost every offender will re-enter society at some point and promote a sense of responsibility on the offender’s part. I have not listed every objective, but those are key ones.
[5] There are various principles involved in sentencing. One is that the sentence be measured against the seriousness of your behaviour and your degree of responsibility. In terms of seriousness of behaviour, criminal offences run all the way from shoplifting or simple possession of drugs up to serious violent and sexual offences and to murder. Your offences are clearly in the upper range of seriousness. In terms of personal responsibility, some offenders may have diminished capacity or be very young or have been manipulated into breaking the law, so things like that would be relevant to the individual’s personal responsibility. The Supreme Court of Canada has recently said that sexual offences by adults against children are “highly morally blameworthy”. Another principle that governs sentencing is that judges should use jail with restraint; that doesn’t mean that we ought to avoid using jail or that we should twist ourselves into knots to avoid imprisonment, but that we should use jail only when truly necessary and only to the extent necessary to achieve the objectives of sentencing.
[6] The Criminal Code sets out what are called aggravating factors, i.e. circumstances that make the conduct worse than it would have been if those factors hadn’t been present. So, for example, assault is a crime, but committing the exact same assault against one’s spouse would be more serious. One significant aggravating factor here under s. 718.2 of the Criminal Code is that each of your offences involved abuse of a person under the age of eighteen. Another aggravating factor is any significant impact of the offences on the victims; that is reflected in the three victim impact statements presented to the court, which were quite dire. A third factor is abuse of a position of trust. Now Ms. Vadacchino and Mr. Fazari disagree over whether or not there was a position of trust here, in terms of your relationship to one of the victims. I don’t really have to decide whether there was formally a relationship of trust because, with or without the Criminal Code I can see that you took advantage of your relationship with the victim’s family in order to facilitate your offences against her.
[7] Of particular significance in cases like this is s. 718.01 of the Criminal Code where Parliament explicitly says that when an offence involves the abuse of a person under eighteen years of age, which is the case for each offence here, denunciation and deterrence must be the primary focus of the sentence.
[8] The sentence I impose is also influenced by sentences imposed in other cases. Those cases could come from a variety of sources. First, there are decisions by other trial judges and those decisions demonstrate how other judges have dealt with cases of this type, although each case will have its own facts. There are also cases from the Court of Appeal or the Supreme Court of Canada providing guidance. Ms. Vadacchino and Mr. Fazari approached the cases in a slightly different way; both did so thoroughly, just a different sort of focus. I think there is validity to both approaches. Mr. Fazari presented me with a selection of cases where particular offences, details and offenders led to particular results and tells me that those cases lead to a three-year sentence when I consider the details of your offences, your background, your conduct since the offences, etc. Ms. Vadacchino gave me a triumvirate of Court of Appeal and Supreme Court cases and said, “these are the guiding principles and this is how the principles and the legislation have changed over time and that guidance should lead you to a six-year sentence.”
[9] Both Ms. Vadacchino’s approach of the big picture and Mr. Fazari’s approach of the multiple vignettes of what other judges have done serve a purpose. To my way of thinking, that purpose is to serve as a backdrop or reality check for me in coming to a just result. I’m not going to compare your circumstances detail for detail with a dozen or more other cases, though. That would serve no purpose because the likelihood of finding a case on all fours with another case is pretty remote, but keeping those other cases floating around in the background does help me understand what the general range is, as long as I also keep in mind broadly the particular facts of your case and your situation and any major differences between you and other cases. I also have to keep in mind that some cases are outliers in terms of their sentence, perhaps for various reasons. I also have to keep in mind that the law changes over time so that a case that might have been a really reliable authority ten or fifteen years ago could be a lot less relevant now.
[10] A number of things have happened over the past couple of decades in relation to offences of this nature. They include the following. First, Parliament has increased the maximum sentences for offences of this nature. When Parliament increases a maximum sentence for an offence, that is a message to the courts from Parliament, speaking as the voice of society, to the effect that this is an area of particular concern, calling for a more robust punitive approach. Parliament and the courts have different but complementary roles to play in society and, so long as Parliament’s actions do not violate constitutional norms, the courts are expected to follow Parliament’s direction. Parliament’s voice has been clear about its concerns over protecting young people from sexual violence.
[11] Second, we have come over time to a more complete understanding about what sexual violence involves. In the past, we tended to focus on particular physical acts leading to certain ranges of punishment, scaled up or down by the various sentencing considerations. We now understand that sexual violence is not limited to physical injury or harm, but is indeed at least as likely or often much more likely to be reflected in deep, wide and lasting emotional damage, for both the victim and her or his family, friends and community. A broken bone may heal, but a child’s curious and innocent and developing and oh so vulnerable spirit that has been shattered by the predatory self-interest of an adult who must have known the selfish wrongfulness of his acts may never be put together again. Many of the victims of sexual violence are condemned to live a partial existence, incapable of enjoying the full range of human emotion and experience and safety and trust that should have been their right. Many of them end up in the court system, whether by virtue of addiction rooted in their trauma or because the damage done to them causes them to abuse others: in the words of W. H. Auden, from an entirely different context, but no less apt here: “I and the public know, that which schoolchildren learn, Those to whom damage is done, do damage in return.” Each person who abuses a child not only damages that child and his or her quality of life, but the child’s family’s life and potentially the lives of children that person will go on to victimize as a result.
[12] Finally, these parliamentary and judicial developments have reached their zenith in the recent decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9. Ms. Vadacchino spent much of her time, enthusiastically reciting its insights and instructions, rightly so. She called it a manifesto, rightly so. She might as well have called it a clarion call. The decision does not pull punches. It leaves no room for doubt about the court’s views or about its expectations. It is a declaration of intent by the Supreme Court on a matter of compelling public interest. It is saying to both trial judges and courts of appeal: any of you who are diminishing these offences or giving undue consideration to the needs of the offender, you need to stop that—now; too much is at stake when children’s safety is threatened.
[13] None of that means that, in deciding the appropriate sentence for your crimes I disregard who you are, what you have accomplished since being charged or your potential for rehabilitation. Ignoring those considerations would be an error just like ignoring what the Supreme Court says in Friesen. What I cannot do, however, is prioritize those considerations that are more personal to you over the principles of deterrence and denunciation because that would be in direct conflict with Friesen.
[14] The seriousness of your offences and their impact on the victims, both direct and indirect, is very clear. C.S. was fifteen. You were almost twice her age. You established an online relationship with her and insistently communicated with her and sent a taxi to bring her from a party to your house. There she resisted your groping and attempts at kissing and told you to stop, but she was drowsy from taking Benadryl earlier to fight an allergic reaction and fell asleep. She awoke to find you having intercourse with her. This was inescapably wrong on various levels. On another occasion C.S. was celebrating her high-school basketball team’s victory and had been drinking. Your persistent messaging led her to go to your house. She did not even know what had happened there until a text message from you confirmed that you had had intercourse with her again. Your arrogance, insensitivity and condescension are evident in your text message, saying, “you’d think you’d listen to someone ten years older than you, who’s always the smartest person in the room no matter what room he’s in”, and your subsequent description of C.S. as “ignorant” is particularly rich coming from a twenty-six year old who should know better, who has had sex with an incapacitated fifteen year old who cannot consent. You then went on to tell C.S. that you would have dated her at eighteen but not at fifteen or sixteen or seventeen, because, “I don’t want a reputation like that.” So you don’t want people to know you’re dating someone much younger than you are, but you’re okay with having sex with them.
[15] Your offences in relation to M.M. were of a different nature. She was younger, only twelve years old. She met you on the internet. She wanted to earn money to buy a present for her mother for Mothers’ Day; she was thinking of doing chores or errands but realized when she arrived at your home that nothing of that nature needed doing. Instead, you suggested that she model her feet for you because you had a foot fetish and wanted to masturbate over pictures of her feet. You paid her seventy dollars to take the pictures. In the text messages she told you she felt like a ‘slut’. You did say you were sorry and that you did not know what you were thinking of, which, given that you were more than twice M.M’s age does seem like a realization far too obvious and far too late.
[16] On your arrest one of your electronic devices contained a photograph of your penis that had been sent to one of the victims.
[17] The impact on the victims screams out from their victim impact statements. Sadly, nothing in any of the three victim impact statements is surprising. C.S. spoke of failing most of her high school classes as a result of the trauma she has been dealing with. As with many victims, she feels guilt and shame, along with depression and anxiety. Her wording clearly implies that she blames herself, which is as uncalled for as it is unsurprising. The emotional ripples left by abuse of young people echo long after with a chorus of “what if I had…” or “what if I hadn’t…” when the blame belongs entirely elsewhere. C.S. expects never to be whole and to spend her life in therapy. Of course, neither C.S. nor M.M. has any reason at all to blame themselves for what happened. Each of them was the child, taken advantage of by a predatory adult, but we know that it is tragically common for victims of sexual violence to blame themselves, question themselves. And that self-blame, unjustified as it is, causes real and enduring harm.
[18] M.M. writes about having “traumatized and hurt many people in my life.” She talks of her inability to trust others, questioning their motives if they offer to help her. She talks of the rupture with her brothers and her father’s side of the family arising out of these charges. M.M.’s mother provides confirmation when she talks about being unable to work because she must focus full-time on caring for her daughter’s mental and physical health. She writes of the anger and aggression that M.M. directs towards other people and of M.M.’s difficulty as a child sorting, “through her emotions and act[ing] accordingly.” I note that Mr. Fazari expressed disbelief that your conduct could lead to such a reaction by M.M. and wondered if there had been some antecedent trauma or issues in M.M.’s life. I have to say that the issue of antecedent trauma sounds purely speculative and, even if there had been previous trauma, when one sets out to behave in a criminal and manipulative and exploitative fashion, one takes one’s victims as one finds them. I also note that for a twelve-year-old child whose family has been torn apart as a result of her sexual objectification by a man she trusted who was twice her age, I cannot say that M.M.’s reactions are implausible.
[19] I do not propose to cite chapter and verse from the Supreme Court’s decision in Friesen, but two portions merit direct citation, namely:
a. From paragraph 5:
Third, we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
b. From paragraph 114:
…..mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case.
(I note that Friesen was a case in which the Supreme Court of Canada vindicated the trial judge’s six year sentence imposed on a twenty-nine year old first offender’s guilty plea for a single offence against a four-year old child, where Friesen had suffered a horrific upbringing and where he lacked any insight into his offences).
[20] Moving on from the offences to who you are as an offender, I have the benefit of your pre-sentence report, the various reports from Ms. Bevan, the letters from your parents, your letter read out in court, your drug testing and so on. Other than your impaired driving conviction from 2016 you have no record and Ms. Vadacchino fairly suggests that I treat you as a first offender. You have pleaded guilty, which I take as a sign of remorse and to which I ascribe value insofar as it saves the victims from reliving their trauma in open court, which would clearly be painful to them, and it saves court resources. Ms. Vadacchino and Mr. Fazari do not agree on the strength of the Crown’s case. While I agree that the value of a guilty plea can vary depending on the circumstances in which it is given, I do not know that I need definitively to resolve that, other than to say that based on what I know, I suspect that the likelihood of you emerging from a trial without at least some charges proved seems low. That being said, trials are inherently unpredictable so credit remains due to you.
[21] From the pre-sentence report and from your parents’ letters it seems that you were the child of a stable family and enjoyed academic and other success to a certain point in your youth, when your behaviour appears to have changed. In the pre-sentence report, it says that you reported that you “may have been a victim of sexual abuse by a family friend” during your developmental years. That seems like rather tenuous language and the subject is not developed in the pre-sentence report or in Ms. Bevan’s reports that were filed with the court. There is, however, some reference by your father in the pre-sentence report to your tendency to ‘get angry over everything’ during your developmental years and that you attended an anger management course. Underlying sexual victimization may explain that behaviour but the record is very scant.
[22] You have maintained long-term employment until the point where your parents’ move required that you move to another town to live. Your parents offer very positive insights into how you have changed your behaviour and attitude in the time since the offences and reflect on how you have taken responsibility for your behaviour and become more pleasant and trustworthy.
[23] We have the benefit of a series of reports by your counsellor, Ms. Bevan, whose qualifications and professionalism are wholeheartedly accepted by the Crown. At the same time, the Crown notes that, from the language of the reports we do not have every report and that we do not have the specific results of certain tests that by necessary implication must have been done. No explanation was given in response to the Crown’s observations about what was missing. There is obviously no obligation on the defence to provide any particular document, but I take Ms. Vadacchino’s reservations arising from the absence of those documents as justifiably cautionary. I also note that Ms. Bevan’s most recent letter notes that, for example, the Personal Assessment Inventory (the results of which we do not have) was not done to generate a psychological diagnosis, but only to guide treatment with the benefit of a more informed clinical understanding. That being said, I note that Ms. Bevan’s language itself is restrained, suggesting that while you have made progress, significant progress in some areas, you still have a significant path ahead of you and a risk of straying from that path if you do not maintain your current efforts. When one reads the reports, words like “less…” and “fewer…” are common, clearly demonstrating that you have progressed in dealing with your issues, to varying degrees depending on the particular issue, but that you have not conquered those issues. You may never conquer those issues. She also recognizes that your current achievements and stability were achieved in a somewhat artificial environment where you were living with your parents through Covid-19 and under strict bail conditions, a time and circumstance where risks of reoffending would be somewhat diminished.
[24] I do not mean by any of these comments to minimize what you have done: about four dozen counselling sessions, significant improvement from your arrogant, self-centred, misogynistic, self-as-victim starting point with Ms. Bevan to a person who, even with her cautious skepticism on some points, has made meaningful progress resulting in a reduction in your risk assessment by the time of the last report. Ms. Bevan’s report inspires confidence in its observations because they are so measured and so balanced and vary from topic to topic, demonstrating that she has approached her role with precision and individualized assessment of each area of risk or need.
[25] Your letter to the court speaks of your remorse and your greatly improved understanding of the wrongfulness of your acts and the lack of any justification for them. It was delivered with seeming sincerity. It is, of course, the sort of thing that a manipulative and intelligent person might make up to impress a reader, those being skills you clearly possess from the conduct itself and from the details of your upbringing. I am inclined to give your comments significant credit because, given the length and intensity of your engagement with Ms. Bevan you are unlikely to have been able to pull the wool over her eyes.
[26] It should go without saying, however, Mr. Edwards, that your self-improvement, your mitigation of risk and your avoidance of harm to others are only as good as your perpetual commitment to the path that you have begun on with Ms. Bevan’s assistance. That is a path you must continue down both while in custody and after your release, in the environment of living your life outside your parents’ direct influence and without court-mandated supervision.
[27] That brings me to the ultimate question of what would be a fit sentence for your offences. In that respect, I have to keep in mind that you have committed multiple offences involving two victims, which is a significant factor. The victims were twelve and fifteen years old. The harm done to each victim (and beyond them) is substantial. I have to remember the direction of the Supreme Court in Friesen about the primacy of denunciation and deterrence in fixing a fit sentence and that rehabilitation must take a back seat. I have to recognize the significant steps you have taken which will hopefully reduce your risk of reoffending. I have to consider the current generation of authorities on sentencing for offences like this. [1] I have to acknowledge your lack of a record, your plea and your rehabilitative efforts.
[28] Considering all of the relevant circumstances, I have come to the conclusion that a sentence slightly shorter than that sought by the Crown would achieve the appropriate balance, namely a sentence of five years. If not for the work you have done with Ms. Bevan, I would have imposed the six-year sentence sought. That sentence will be broken down as follows in the interest of totality:
a. A sentence of three years on each of the offences involving C.S., to be served concurrently to one another.
b. A sentence of two years on each of the offences involving M.M. to be served concurrently to one another but consecutively to the three years.
[29] The following orders will issue:
a. An order under s. 743.21 of the Criminal Code prohibiting contact with either of the complainants while you are serving your sentence.
b. An order that you comply with the Sex Offender Information Registration Act for life, including registering within seven days of your release from custody.
c. An order under s. 109 of the Criminal Code that you not possess any of the weapons listed therein for ten years.
d. Orders under s. 161 of the Criminal Code as follows, each commencing upon your release from custody:
i. 161(1)(a) in relation to attending a public park, swimming area, where persons under the age of 16 may expect to be, or any daycare, etc., for life.
ii. 161(1)(a.1) not to be within two kilometres of any dwelling house where C.S. or M.M. lives, for life, with the exception of travel on a 400-series highway or the Queen Elizabeth Way.
iii. 161(1)(b) in relation to paid or unpaid employment or volunteer work that involves being in a position of authority towards persons under the age of 16 for life.
iv. 161(1)(c) not to have any contact including communication by any means with a person under the age of sixteen years of age, other than incidental communication for a lawful commercial or similar purpose in a public place for life.
v. 161(1)(d) not to use the internet or any similar communication service, for life, to:
Access any content that violates the law;
Directly or indirectly access any social media site, social network, internet discussion forum or chat room or maintain a personal profile on any such service (including Facebook, Twitter, Tinder, Instagram or any similar or equivalent service; or,
Make any post or advertisement that targets persons under the age of sixteen, including any advertisement for sales, services or products intended for use by persons under the age of sixteen.
[30] I shall hear from counsel about any requested refinements to the terms of the orders above. I note, however, that Mr. Edwards’s path forward is still tentative and he was diagnosed as showing a sexual interest in pubescent and pre-pubescent females, higher than his interest in adult females. The reports from Dr. Bevan, while promising, are not definitive and the public interest in the safety of children requires a cautious approach looking forward. Any change in circumstances that would justify reducing the period of the prohibitions can be raised in future under s. 161(3).
Released: 8 August, 2021
Footnotes
[1] For example, the decision of the Court of Appeal in R. v. Al-Shimmary, 2017 ONCA 122 dealt with a single sexual assault by a twenty-five year old man on an eleven year old victim, leading to ongoing trauma similar to that described in this case. The Court of Appeal increased the sentence from thirty months to four years, the sentence sought by the Crown on appeal, while observing that they would otherwise have imposed a longer sentence. There are differences between Al-Shimmary and the present case, the most important of which is that Mr. Al-Shimmary had a previous record, but there are factors in the present case such as the multiple victims that are not present in Al-Shimmary.