Warning

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

( b ) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

DATE: August 22, 2023

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

J.R.

Before Justice T. Lipson

Reasons for Judgment released on August 22, 2023

Mr. E. Caceres .......................................................................................................... for the Crown Mr. S. May ....................................................................................................... for the accused J.R.

Lipson J.:

Reasons for Sentence

Overview of the case and circumstances of the offence

[1] J.R. entered a plea of guilty to one count of indecent assault male. The offence took place approximately 40 years ago between July 1, 1981, and November 10, 1982. The victim is his nephew K.L. who was 17 years old. J.R. was 28 years of age. The Crown seeks a 6-year sentence. The defence argued for a sentence in the 2–3-year range. The Crown also seeks a SOIRA Order pursuant to s. 490.012 of the Criminal Code, DNA order pursuant to s. 487.051 and a s. 743.21(1) no contact with the victim while in custody order. The defence does not oppose the imposition of these ancillary orders.

[2] The agreed statement of facts is as follows:

The accused J.R. was born […], 1953. The victim K.L. was born […], 1964. During the relevant period of the offence J.R. was K.L.’s uncle through marriage. J.R. married K.L.’s aunt on his mother’s side BR.

From August 1975 to 2011, J.R. was employed with Scouts Canada holding various positions of leadership eventually retiring as President and Executive Director of Scouts of Canada Foundation. During the offence period J.R. held the position of Director of Relationships (Ontario Provincial Council) for Scouts Canada. During the offence period K.L. went to stay at the apartment of J. and B.R. in Mississauga Ontario. During K.L.’s stay at the apartment J.R. came home early from work and started to ask K.L. questions of a sexual nature related to masturbation. During this conversation J.R. undressed becoming naked and lay back on the foldout couch which K.L. was using as a bed. J.R. began touching his erect penis in front of K.L. while K.L. was standing in front of the accused at the foot of the foldout couch.

Based on the questions the accused was asking and his behaviour, K.L. understood the accused to be intimating that K.L. touch his penis. No one else was at the apartment during this time.

Shortly into the incident both K.L. and the accused heard the door to the apartment unlock. K.L. ran to hide in the washroom and the accused went to the bedroom. As a result of this incident K.L. felt scarred and like “trash”. K.L. exited the washroom after hearing the accused exit the bedroom first. The incident was not spoken of any further.

Shortly after this incident, the accused and K.L. travelled from Mississauga to a St. Catharines Ontario to attend a sanctioned overnight Boy Scout event at Camp Wetaskiwin. K.L. knew nobody at the Boy Scout camp except the accused. K.L. relied on the accused for safety and security and for transportation to the event and back. K.L. did not normally participate in Boy Scout events, and this was one of his only overnight activities away from home. While at the Boy Scout Camp the accused and K.L. shared a tent.

During the night K.L. was already in the tent when the accused entered. The accused engaged in conversation with K.L. about sex and indicated he wanted to have sex with K.L. K.L. was scared and did not know what to do and felt all alone. K.L. went along with the accused request. K.L. got out of his sleeping bag and got naked. K.L. positioned his naked body on his hands and knees inside the tent. The accused became sexually aroused and with his erect penis tried to penetrate K.L.’s anus. The accused penis made contact with K.L.’s anus and buttock region more than once. The accused was not wearing a condom during this interaction. The accused actions hurt K.L. and caused him pain. During the acts described in paragraphs 23-30 above K.L. was not consenting to the acts of the accused. K.L. told the accused it was enough and to get off him. The accused complied and then left the tent. After the sexual assault K.L. stayed in the tent. He was scared and felt ashamed. He did not know anyone at the Boy Scout camp and did not know who to talk to and was too scared to run for help. It felt like a foreign place to him. The accused did return to the tent later that night and nothing more was said about the sexual assault. On the way home from the Boy Scout Camp the accused tried to guilt K.L. into staying silent about the sexual assault. (J.R. does not contest this fact but does not currently have a specific recollection of this event). The accused admits during the offence period he was in a position of trust in relation to K.L. both as his uncle and as a Boy Scout leader during a sanctioned Boy Scout event.

Following the sexual assault K.L. eventually told his parents but because of the family dynamics and societal norm at the time it was not reported to the police. In the aftermath of the sexual assault K.L. felt something was wrong with him and that it was his fault. In Winter 2018 K.L.’s daughter M.L. disclosed to him that the accused allegedly sexually assaulted her. This prompted K.L. to come forward to the police to report what happened to him. After the allegations of sexual assault came to light, in April 2018 the accused at a meeting with his immediate family acknowledged that something had happened with K.L. at a Boy Scout Camp.

The accused has no criminal record.

[3] Counsel for J.R. advised that with respect to the apartment incident, J.R. has no recollection but does not contest those facts. Crown counsel clarified the admitted facts to indicate that this is a case of attempted anal penetration.

Victim Impact Evidence

[4] K.L. provided the following victim impact statement which the court has carefully considered in its deliberations:

“Sexual assault victims endure not only physical, but emotional trauma. In my case, I was disgusted and ashamed with myself for getting into that situation in the first place. For years I thought there was something wrong with me. I could not function properly in any relationship and felt awkward during intimate moments. I turned to alcohol for many years as a crutch to deal with the pain and emotions. I stopped going to family functions when the accused would be there, as he would act as nothing happened. I used to be very close with my family, then I stopped going to functions and chose to be alone. I became very secluded and drank the pain away. I contemplated suicide several times and came very close to attempting taking my own life. These last several years have been challenging. I started counseling with a wonderful team, and finally realized that I was not the problem, and that alcohol was not the answer. I coped with my feelings and emotions my way and did ok, but always had bad days. Now I have been sober for 3.5 years and dealing with everything with the tools my councilors (sic) gave me. I could never wish this to happen to anyone! I was so angry after this happened to me, which was another reason I did not want to be with anyone. This crime has, and will touch so many lives in our families. It makes me wonder! Was it really worth the few minutes of pleasure?”

Circumstances of the Offender

[5] J.R. is now 70 years of age. He has been married for 43 years. His parents immigrated to Canada from Holland in 1951. He grew up in St. Catharines, Ontario with his two brothers and sister. He completed high school and obtained a Bachelor of Science degree at university. J.R. began working for Scouts Canada at age 22. He was a Scouts field worker in communities in northeast Ontario. J.R. eventually became the president of fundraising arm of the organization. He completed his career in Ottawa and retired at age 59.

[6] Counsel for J.R. submitted character letters from some family members, including his son K., his wife B., youngest daughter A. These letters describe J.R. as a good husband, father and grandfather. Each of these letters say that J.R. has accepted responsibility for the offence. Mr. May told the court that these family members reached the point where they can forgive J.R. but not forget his criminal conduct.

Aggravating and Mitigating Factors

[7] J.R. committed a very serious abuse of trust in two ways. He was a trusted uncle the victim’s trusted uncle and a scout leader responsible for his welfare at the camp where the indecent assault took place. As set out in the agreed statement, K.L relied on J.R. for his safety and security and for transportation to the event at the scout camp and back. J.R. exploited his positions as a trusted family member and scout leader to prey upon K.L. A few days before the assault, there was a first incident that took place at J.R.’s apartment. J.R. undressed himself and asked K.L. to touch the accused’s erect penis. J.R. stopped only because he heard the door to his apartment unlock. I conclude that J.R. used his access to the overnight camp in order to provide himself with the opportunity to satisfy his desire to sexually assault the victim, which he did.

[8] Section 718.2(a)(iii) of the Criminal Code mandates that where there is evidence that the offender, in committing the offence, abused a position of trust and authority in relation to the victim, the court is required to consider this as an aggravating circumstance to be taken into consideration in imposing a sentence. This has always been an aggravating factor in sentencing at common law.

[9] Section 718.2(ii.1) makes it a statutorily aggravating factor that the victim was under the age of eighteen. K.L was between 16 and 17 years of age at the time of the offence. Even prior to this legislation, the sexual victimization of a young person by an adult was a common law aggravating factor.

[10] I agree with the Crown’s submission that the victim’s vulnerability renders the accused’s sexual exploitation of K.L. highly morally blameworthy. J.R. attempted to anally penetrate K.L., causing his nephew physical pain at the time but also enduring mental anguish still evident today. I note as well that J.R. attempted to engage in unprotected anal intercourse with K which carried a real risk of infecting his nephew with a sexually transmitted disease. This must also be considered an aggravating factor in the determination of a fit sentence.

[11] The most aggravating factor, in my view, is the severe psychological harm caused by J.R. to the victim. K.L.’s victim impact statement provides compelling evidence of this.

[12] There are also mitigating factors which the court takes into consideration in crafting a fit sentence. J.R. is now 70 years of age. Any penitentiary sentence that he will be required to serve will not be easy for him.

[13] J.R.’s guilty plea is a significant mitigating factor because it has spared the victim from having to testify. As well, J.R. acknowledged his criminality to other family members once the victim had gone to the authorities in 2018. While I consider his guilty plea to be an important acknowledgment of responsibility and an expression of remorse, it does not carry the same degree of mitigation as would an early guilty plea. Here, J.R. entered his plea on the first day of his trial.

[14] I also take into account that J.R. is a first offender who appears to have led an otherwise pro-social life in the community. He has a stable work history as a major fundraiser for Scouts Canada, a great organization that has made a positive difference in the lives of so many young people in this country. Sadly, J.R.’s criminal conduct has tarnished the reputation of the very same organization he worked to grow.

[15] J.R. is very fortunate to have the support and love of most of his family members, as demonstrated in the character letters from his wife and children.

Analysis

[16] The law is clear that in case such as this, the court must give primary consideration to the sentencing objectives of denunciation and deterrence.

[17] The starting point for any discussion on sentencing offenders who commit sexual offences against children is the decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9.

[18] A helpful summary of the principles which address the seriousness and moral blameworthiness of sexual offences against children set out in Friesen is found in R. v. Gagliardi 2023 BCSC 96 at para 73-75:

(a) It is essential for sentencing judges to have a proper understanding of the wrongfulness of sexual offences against children, and the harm that such offences causes to victims: Friesen at para. 50.

(b) The interests that the law is designed to protect include personal autonomy, bodily integrity, sexual integrity, dignity, and equality. In this regard, sentencing courts need to be aware of not merely the physical harm that sexual offences cause to the victim, but also the emotional and psychological harm. Thus, the likely effects of sexual offences include "shame, embarrassment, unresolved anger, reduced ability to trust others", and fearfulness: Friesen at para. 55-57.

(c) These forms of harm are particularly pronounced in children. Even a single instance of sexual violence can profoundly alter a child's life: Friesen at para. 58.

(d) Sexual violence against children also causes harm in the form of damaged relationships with families and caregivers. Sexual violence can tear families apart and render them dysfunctional. Parents or siblings my have a misguided sense of blame toward the child victim. And child victims may lose confidence in the ability of family members to protect them: Friesen at para. 60.

(e) Sexual violence against children can have ripple effects on other relationships. Among other things, child victims of sexual violence may experience a loss of trust amongst people they know or the community at large: Friesen at para. 61.

(f) The protection of children from harm is one of the most fundamental values in our society. Sexual violence against children is wrong and especially morally blameworthy because it can turn this societal value on its head: Friesen at para. 65.

(g) Perpetrators of sexual violence against children commit their offences in secrecy, often using coercion to discourage child victims from reporting the crime. Offenders also rely on society's naïve reluctance to recognize or acknowledge that such crimes are committed in their communities by individuals they know: Friesen at para. 67.

(h) It is not enough for courts to simply acknowledge the seriousness of sexual offences against children. The sentences imposed must actually reflect the gravity of the crime and the harm to the victims: Friesen at para. 76.

(i) Physical contact of a sexual nature with a child always constitutes a wrongful act with both physical and psychological components, even when the conduct is not accompanied by additional physical violence and does not result in physical or psychological injury: Friesen at para. 77. Courts must reject the belief that there is no serious harm to children in the absence of additional physical violence: Friesen at para. 82.

(j) The harms caused by sexual violence against children include harm that manifests itself during childhood, and long-term harm that only becomes evident during adulthood: Friesen at para. 80.

(k) Applying force of a sexual nature to children is always morally blameworthy. Such blameworthiness includes harm that was actually intended, and harm to which the offender is reckless or wilfully blind: Friesen at para. 88.

(l) The moral blameworthiness of sexual violence also includes the recognition of the offender's wrongful sexual exploitation and objectification of the victim. The degree of blameworthiness is higher when the victim is a child, because children are so vulnerable: Friesen at para. 89-90.

(m) Despite all of this, the sentencing court should not overlook factors that tend to diminish the offender's blameworthiness, where they are present: Friesen at para. 91.

The Court went on to discuss a number of factors that may be considered in determining a fit sentence for sexual offences against children, namely (a) likelihood of re-offence, (b) abuse of a position of trust or authority, (c) duration and frequency of the offending conduct, (d) age of the victim, and (e) degree of physical interference. With regard to point (e), the degree of physical interference, the Court discouraged sentencing judges from downgrading the seriousness of the offence based principally on the notion that the particular acts in issue may not have been physically intrusive: Friesen at para. 144. Earlier in the judgment the Court discouraged sentencing judges from focusing on the presence or extent of physical injury, which could detract from a proper consideration of the psychological and emotional impacts of the crime on the victim: Friesen at para. 56, 77.

[19] J.R. pled guilty to the offence of indecent assault of a male contrary to the former s. 156 of the Criminal Code. At the time of the commission of the offence, the maximum penalty under statute for that offence was ten years.

[20] In Friesen, the Court directed that the range of sentences imposed historically in cases involving sexual offences committed against children has been too low and must be reconsidered. There were two main considerations leading to this direction. One was an emerging deeper understanding of the vulnerability of child victims, and the profound harm that such criminal conduct causes to victims, families and communities. That consideration, of course, applies directly to this case. The other was that, through amendments to the Criminal Code over the past fifteen years, Parliament has increased the severity of punishment. For example, the maximum penalty for sexual assault increased to 14 years.

[21] The offence in this case took place long before the statutory maximums were enacted. Nevertheless, the Friesen principles have general application even in cases where the offence predates the legislative changes. However, the full application of Friesen in this case, as urged by Crown counsel, poses this difficulty described by Gomery J. in R. v. N.S.N.C. 2020 BCSC 1843 at para. 35:

Unfortunately, there is some difficulty applying in cases of offences committed many years ago. Friesen gives two reasons why an increase is necessary: first, the sentences imposed must reflect the courts' current, better understanding of the wrongfulness and impact of sexual offences against children; and second, sentences should increase to reflect increases in the maximum sentences available for certain sexual offences. In the case of an offence committed in 1993, the first of these reasons is applicable, but the second is not because, pursuant to s. 11(i) of the Canadian Charter of Rights and Freedoms, Mr. C has the right to have his sentence determined on the basis of the maximum sentence in 1993 (10 years) as opposed to the higher current maximum of 14 years.

[22] In Gagliardi 2023 BCSC 96 at para 73-75, Riley J. made the same point:

The message I take from the case law that I have just reviewed can be stated in two propositions. First, sentencing judges must always take into account what the Supreme Court of Canada said in Friesen about the seriousness, harmfulness, and moral blameworthiness of sexual offences against children. Second, in dealing with offences committed before the Criminal Code amendments mandating increased sentences for such offences, sentencing judges cannot apply the more specific guidance in Friesen regarding sentencing ranges, because that guidance rests at least in part on amendments that were not in force at the time of the offences.

[23] In crafting a fit and appropriate sentence, I am required pursuant to s. 718.1 to impose a sanction that is proportionate to the gravity of the crime and the degree of moral blameworthiness of the offender. The offence here is serious and J.R.’s conduct was highly blameworthy.

[24] As I indicated earlier in these reasons, denunciation is a primary sentencing objective. The court should impose a sentence that reflects society’s condemnation of the crime. Sexual offences against young victims and a gross abuse of trust as occurred in this case involve conduct which warrants a severe rebuke in the form of a substantial prison sentence.

[25] General deterrence is also a primary sentencing objective. Sentencing decisions dealing with offences of this sort must send a clear message that crimes of sexual violence will be met with significant penalties.

[26] Specific deterrence is another important sentencing objective. The sentence needs to bring home to J.R. the unacceptable nature of his conduct. In this regard, I have no evidence as to whether or not he continues to pose a risk of sexually offending against young persons in the future.

[27] The sentencing objective of rehabilitation in a case where the offender abuses a position of trust and sexually assaults a young person is a less important factor. On the other hand, the court recognizes that J.R. has acknowledged responsibility for his conduct. He also has strong family support. These factors will be conducive to his rehabilitation upon release from prison. Nevertheless, rehabilitation is not a central or controlling feature in the sentence J.R. is to receive.

[28] I have reviewed the sentencing decisions submitted by counsel. In my view, the appropriate range is three to five years. This case involves the attempted anal intercourse of a young person by J.R., aggravated by the fact that his crime was also an egregious abuse of trust. The emotional impact of his conduct on the victim has been severe and long lasting – over forty years – and it continues. That is why J.R. should not receive a sentence at the lower end of this range. On the other hand, J.R.’s guilty plea is important. I have also considered his age and personal circumstances. That is why he should not receive a sentence at the uppermost end of the range.

[29] The sentence in this case is four years.

[30] As well, J.R. is to provide a DNA sample pursuant to s. 487.051 of the Criminal Code. There will also be an order pursuant to s. 490.012 of the Criminal Code that J.R. is to register under the Sex Offender Information Registration Act for a period of 20 years.

[31] Pursuant to s. 743.21(1) of the Criminal Code, he is ordered have no contact or communication with K.L. while he is in custody.

[32] There will also be a s. 109 weapons prohibition for a period of ten years following his release from prison.

Released: August 22, 2023 Justice T. Lipson