SUPERIOR COURT

OF ONTARIO

COURT FILE NO.: 7259/11
DATE: 2012-09-28

B E T W E E N:

HER MAJESTY THE QUEEN

Michael Varpio, for the Crown

• and -

Wesley Kenneth Alton

Kenneth Walker, for the Defendant

Defendant

HEARD: May 24, 25, 2012

REASONS FOR SENTENCE

E.J. Koke J.

1. Overview :

[ 1 ] The defendant, Wesley Kenneth Alton lived with R.R. from 1989 until 1997. Ms. R.R. has two sons, C.R. and P.. C.R. was four years old when his mother began living with Mr. Alton. On May 28, 2012 Mr. Alton was convicted of three sexual offences involving C.R. which were committed while he was living with the R. family. He is before the court to be sentenced.

2. The Facts:

Circumstances of the offences

[ 2 ] C.R. testified at trial that the sexual incidents involving Mr. Alton started when he was living on C[…] Street in Sault Ste. Marie and attending grade two. This was in 1992. The incidents followed a pattern, which commenced with Mr. Alton and C.R. viewing pornographic materials. This was followed by C.R. taking off his pants, after which Mr. Alton would masturbate and perform fellatio on C.R. and C.R. would be asked to touch Mr. Alton’s penis.

[ 3 ] According to C.R., these incidents occurred about twice a month or more, and they took place whenever “the conditions were right”, as he described it. The “right conditions” required that C.R.’ younger brother P. be asleep or away and that his mother also be away from the home.

[ 4 ] C.R. testified that these incidents continued while he was in Grade Three and living on P[…] Road in Echo Bay. Thereafter, the family moved to the community of Iron Bridge, Ontario, where C.R. completed Grade three and where the family lived until shortly after he started Grade Five. In Iron Bridge, the incidents escalated to anal penetration, which C.R. can recall occurred on two occasions. He remembered that he complained to Mr. Alton of the pain this penetration caused him.

[ 5 ] At trial, C.R. described a childhood which was marred by instability and insecurity. The family moved frequently and he seldom attended the same school for more than one year. He was physically beaten and abused on a regular basis by both his mother and Mr. Alton, and it would appear that they also exhibited violence against each other. He testified that the abuse was particularly prevalent and severe when the monthly welfare cheques arrived, because then his mother and Mr. Alton would have money to purchase alcohol and drugs and the violence would escalate. He can recall being locked in his room for days at a time and he can recall times when he left with his mother in the middle of the night and they went to a “Women in Crisis” centre.

[ 6 ] These incidents occurred until C.R. was 11 or 12 years old, at which time C.R.’ mother and Mr. Alton broke up and stopped living together.

[ 7 ] C.R. kept these incidents to himself until 2010 when he decided to file a complaint with the police. Mr. Alton was subsequently charged and convicted of the offences of Sexual Touching , contrary to Section 151 (a) of the Criminal Code , Invitation to Sexual Touching contrary to Section 152 of the Code and Sexual Assault contrary to section 271 of the Code.

(a) Circumstances of the offender

[ 8 ] Mr. Alton, who is now 48 years old did not have an easy childhood. He is the youngest of four children. His father died in a snowmobile accident when he was five years old. His mother, who recently died, was a member of the Michipicoten First Nation, Wawa area and she was reportedly born as a result of her mother’s rape. Mr. Alton’s mother was abandoned to be raised by two women on the Garden River First Nation, Sault Ste. Marie, in what was apparently a good home.

[ 9 ] A pre-sentence report and a separate Gladue report were prepared to assist the court in sentencing Mr. Alton. The reports indicate that Mr. Alton’s mother, Victoria Mongoose adopted a partying lifestyle at a very young age and became addicted to alcohol. She met and married Mr. Alton’s father who is of white origin. Mr. Alton reports that his parent’s marriage was fraught with mutual physical and substance abuse. While married to Mr. Alton, Victoria would steal benzodiazepine pills from him, disappear for days and spend the family money on alcohol. On some occasions, she would leave the family home and lock the children out. They didn’t know where she was or who she was with and subsequently they had to break into the home. She was legally prescribed clorazapam but later began to heavily abuse this medication which resulted in double doctoring, overdoses and dependence on her children to take care of her needs.

[ 10 ] The Alton family was poor and accordingly the children had to be resourceful in order to meet their needs. Mr. Alton can recall periods where he and his siblings would eat baby food because this was the only available sustenance.

[ 11 ] The reports indicate that Mr. Alton’s mother basically abandoned the family shortly after her husband’s death in favour of following her own pursuits such as “partying”. Mr. Alton and his three sisters were left in the care of his paternal grandparents, who were pensioners living in the community of Echo Bay, Ontario which is located directly to the east of the Garden River First Nations community where his mother was raised. He recalls that his grandparents discriminated against him and his sisters for being native and would sometimes blame them for the actions of their parents. He complains that his paternal grandmother had a mean streak and had racist attitudes which affected his self esteem and confidence as a native person. He can recall his grandmother calling him a “black bastard”. Sometimes, as a means of controlling Mr. Alton and his siblings she would threaten suicide. He recalls hearing comments from locals that he and his sisters should be living “on the other side of the bridge”, meaning they should be living in the Garden River First Nation.

[ 12 ] Mr. Alton was apparently close to his grandfather, Earl Alton, who treated him kindly. He witnessed some domestic violence between his grandparents and states that it was his grandmother who perpetrated this violence. His grandfather was a closet drinker but the home environment was sober.

[ 13 ] Mr. Alton and his sisters maintain their aboriginal status given their mother’s birth circumstance. He belongs to the Ojibway Nation and is a member of the Michipicoten First Nation. His physical appearance is distinctly aboriginal and he has expressed that he sometimes forgets that he is half non-aboriginal.

[ 14 ] Having grown up in a non-native environment, Mr. Alton is not fluent in the Ojibway language and his limited knowledge of the traditional teachings of the Ojibway has mostly been learned during those times that he has been incarcerated. He is well versed in the practical knowledge of the bush, specifically fishing and hunting, although he has been referred to as an urban aboriginal in the Gladue report.

[ 15 ] It is unclear as to whether or not any person from Mr. Alton’s biological maternal family attended an Indian Residential School or Indian Day School. Although his mother did not attend a residential school, the parents who adopted her did but there is no information available about their experiences with this school system.

[ 16 ] The reports indicate that Mr. Alton and his sisters became increasingly unmanageable as they grew older and when he was about eight years old he and his sisters were taken into the care of the CAS. Mr. Alton continually challenged the CAS. His life developed into a pattern of substance abuse, running away and living on the streets, conflict with authority which was then followed by incarceration. He remained a ward of the CAS and lived in group homes until age 14 when his behaviour in the group homes became so disruptive that he was made a ward of Cecil Facer Training School in Sudbury. At age 15 he began to live independently.

[ 17 ] Mr. Alton has maintained a good relationship with his two sisters who live in the district of Algoma and he visits them regularly. His oldest sister lives in British Columbia and because of the distance he has little contact with her. Prior to coming into care Mr. Alton and his sisters were very close, primarily because they helped to raise each other in the absence of a consistent parental presence in the home.

[ 18 ] Mr. Alton admits to severe addictions. These addictions had their onset at about the age of nine and culminated over the years to include many different drugs, including cocaine and opiates. It is evident that his addictions have negatively impacted all areas of his personal functioning, including family and marital relationships, health, education and employment and his ability to remain free from criminal court conflict.

[ 19 ] With the exception of a few years in Thunder Bay and western Canada, Mr. Alton has primarily resided in the Algoma District, off reserve. He has been involved in at least three common-law relationships of various durations which have produced seven children who now range in age from 12 to 27. He admits that all of these relationships were mired to a degree in mutual substance abuse and/or physical abuse which culminated in their dissolution, and which also impeded his ability to maintain an ongoing relationship with his children.

[ 20 ] Some of Mr. Alton’s children have also been involved in the criminal justice system and he has been incarcerated with them. His closest relationship is with his youngest daughter Bella. Mr. Alton attempted to obtain custody of Bella, who is now aged 12, and he even attended counselling and treatment in cooperation with the CAS to secure her full time care. Unfortunately he was unable to abstain from alcohol and drugs as required and approximately three years ago this child was adopted by a couple who live in Southern Ontario.

[ 21 ] Given the turbulence which characterized his upbringing and his own unsettled behaviour, it is not surprising that Mr. Alton did not achieve success in academic settings. He was involved in fights at school and received suspensions. He quit school after receiving his Grade 10 level of education while he was a resident at Cecil Facer Training School.

[ 22 ] Mr. Alton has worked intermittently throughout his life, primarily in logging and fishing but has lost jobs due to his abuse of drugs and alcohol. He is presently living on Social Assistance and takes on odd jobs with friends and family to supplement the modest stipend he receives from this source.

[ 23 ] On various occasions throughout his life Mr. Alton has participated in addiction treatment programs. He attended the Ontario Addictions Treatment Clinic from June, 2005 to the June, 2012, albeit he continued his intermittent use of cocaine, opiates and alcohol. He stopped attending in June, 2012, and he was therefore refused further treatment. He claims that the reason he stopped attending treatment was because he was dealing with his mother’s failing health and ultimate death. He now claims that he has chosen to go off methadone on his own, relying on his willpower and determination. He maintains that he is maintaining complete sobriety at the present time and that he is “tired of addiction”.

[ 24 ] Mr. Alton has garnered a significant criminal record. He has been convicted of 38 criminal offences between February, 1981, when he was 17 years old and November, 2008. These offences include possession of narcotics, assaults, including assaulting a peace officer and assaults of a domestic nature, possession of stolen property, theft, break and enter, uttering a forged document, uttering threats and driving while impaired. He has also been incarcerated on many occasions. The longest custodial sentence he received was 9 nine months for an assault in 1984.

[ 25 ] Mr. Alton also has numerous convictions for failing to comply with a Recognizance or a Probation order, or an order to attend court.

[ 26 ] Significantly, Mr. Alton’s record does not indicate any convictions for sex related offences. Aside from his convictions in this matter there have been no convictions since November, 2008.

(a) Impact on the Victim and/or Community

[ 27 ] The complainant, C.R. also experienced a childhood which was marred by instability, violence, drugs and insecurity. Not surprisingly, he has a criminal record, having been convicted of offences which include theft under $5000, mischief, failing to comply with an undertaking, possession of drugs and uttering threats.

[ 28 ] C.R. explained at the trial that his decision to go to the police with his complaints of sexual improprieties by Mr. Alton was motivated by his decision to make some significant changes in his own life and to turn his life in a more positive direction. At the time he decided to report these offences to the police he was in a domestic relationship with a woman who had just given birth to their child. He came to the realization that he had stored within himself a considerable amount of unresolved anger and rage which had caused him to become abusive towards his girlfriend. He decided that he did not want to continue the pattern of abuse which he had witnessed in his own life and that he wanted to be a positive role model to his child. He came to the conclusion that his anger issues were rooted in the past and it was time for him to deal with the past.

[ 29 ] C.R.’ mother filed a victim impact statement in which she summarizes the impact which this crime has had on her son in the following words:

I have seen my son go from a happy person to a hateful person, get addicted to drugs, get into crime, lose all his confidence. My son was a confident kid , now he’s a person who don’t trust too many. He didn’t have the confidence to finish school, keep a job or have a successful relationship . Since the age of 6 my son has fought to get where he is today. This crime has taken life from my son .

[ 30 ] Mrs. R.R. reports that her son has now changed. She states:

Since my son has went to the courts for help, he has changed his life around. We have a mother-son relationship, he has quit using drugs, he hasn’t been into crime, he has a fulltime job making good money... he has secured himself a place to live, a loan for a vehicle, for which he is proud of, he has gotten his GED. He is beginning to heal.

[ 31 ] At the time of the trial, Mr. Alton had still not reconciled with his girlfriend but was pleased and confident about the direction his life had taken.

3. Legal Parameters:

[ 32 ] The offences of Sexual touching and Invitation to Sexual Touching carry maximum penalties of imprisonment for a term of not more than ten years and not less than 45 days. The offence of Sexual Assault carries a maximum custodial term of 10 years.

4. Positions of Crown and Defence :

[ 33 ] The Crown submits that a custodial sentence for Sexual Assault (CCC s. 271,) with a consecutive term for the offence of Invitation to Sexual Touching (CCC s.152) totalling 10 to 13 years, together with ancillary orders, is a fit and just sentence given the circumstances of this case. It agrees that the offence of Touching for a Sexual purpose (CCC s.151 (a)) should be treated as stayed on the application of the Kienapple principle.

[ 34 ] The Crown argues that custodial sentences for sexual offences vary in length, depending on factors which include the following:

a) Whether the offender is in a position of trust or loco parentis

b) The period of time over which the offences are committed

c) Whether there is full intercourse, vaginal or anal

d) Whether the sexual abuse is accompanied by physical violence

e) Whether the sexual abuse is accompanied by threats of violence

f) The existence of and degree of physical and psychological brutalization

[ 35 ] The Crown directs the court to the case of R. v. C.A.M. , [1996] 1 SC.R. 500 as an example of a case which merited a custodial sentence in the highest range. In this case, the Supreme Court of Canada upheld a 25 year sentence for an offender who was convicted of, inter alia, numerous counts of sexual assault, incest and assaults as against his own children. The facts were horrific and included multiple incidents of sexual assault, penetration, viewing of genital areas by several unrelated adult males and consistent aggravated assaults by the accused.

[ 36 ] The Crown submits that the Ontario Court of Appeal has indicated that the appropriate range of cases involving prolonged sexual abuse without penetration or physical/psychological abuse is in the approximate mid-single digit range. In support thereof, the Crown refers to the case of R. v. Stuckless , [1998] O.J. No.3177, a case in which the accused pleaded guilty to 24 counts of indecent and sexual assault relating to a 20 year history of assaulting teenage boys. The assaults included oral sex, masturbation and group sex. The victims testified that the abuse led to depression, emotional distress, impaired relationship skills and substance abuse. Stuckless did not use force or inflict physical harm on his victims. At trial, Stuckless was sentenced to two years less a day plus three years probation. The Ontario Court of Appeal acknowledged that Stuckless was entitled to one year credit for pre-sentence custody and in addition thereto sentenced him to an additional five year custodial term, citing the need for a sentence which reflected the principles of denunciation and general deterrence.

[ 37 ] In support of its position that mid single digit range sentences are appropriate for cases involving prolonged abuse without penetration or physical/psychological abuse, the Crown also refers the court to R. v. G.A.G. [2006] O.J. No. 67 .

[ 38 ] In cases involving prolonged sexual abuse coupled with penetration and physical abuse, the Crown submits that a custodial range in the upper single digit range to low double digit range is appropriate. It relies on the dicta of Moldaver J.A. of the Ontario Court of Appeal in R. v. D.D. , [2002] O.J. No. 1061 where Moldaver J. States, at para.44, the following:

44. To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms . When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See , for example, R. v. M.(C.A.) , [1996] 1 S.C.R. 500 and R. v. W.(L.K. ) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

[ 39 ] The Crown argues that the facts giving rise to the convictions against Mr. Alton most closely resemble the facts in the D.D. case. Over a seven year period, beginning in 1990 when he was 25 and ending in 1997 when he was 32, the appellant in D.D. befriended four young boys ranging in age from five to eight years and for periods of time ranging from two to seven years, he regularly and persistently engaged them in all manner of sexual activity. The abuse took many forms, including countless acts of masturbation and oral sex, group sexual encounters involving the appellant and several of the boys, attempted acts of anal intercourse in the case of three of the boys and completed acts of anal intercourse in the case of two.

[ 40 ] The accused in D.D. stood in a position of trust towards the boys. In three cases, he was a close and trusted family friend and in the fourth, he assumed a role akin to that of step-father. In order to secure compliance, the accused bought the boys gifts and took them on exiting trips. When necessary he also used violence to compel compliance. One boy recalled that whenever he tried to stop the appellant from penetrating him anally, the appellant would “smack” or “punch” him. One of the boys was told that he would go to jail and not see his parents again if he said anything. In the case of his surrogate stepson, the appellant held the child over his thirtieth floor apartment balcony and warned him that he would be thrown off if he ever complained to anyone.

[ 41 ] Not surprisingly, the appellant’s conduct resulted in untold grief and misery for the children and their families.

[ 42 ] The court of appeal in D.D. upheld a global sentence of nine years and one month, reduced to eight years and one month by reason of time served in pre-sentence custody. In upholding this sentence, the court relied on the sentencing principles of denunciation and deterrence.

[ 43 ] According to the Crown, aggravating factors include the fact that Mr. C.R. has suffered as a result of the abuse. He has a criminal record and his personal relationships have been damaged. Also, Mr. Alton physically abused C.R. and his brother and mother, with regularity and, together with their mother, he abused drugs in their presence. The Crown also points out that Mr. Alton has a lengthy criminal record.

[ 44 ] The defence submits that a custodial sentence of two to five years, served concurrently, represents a fit and just sentence.

[ 45 ] The defence argues that the court should apply the principles set out in R. v. Gladue (1999), 133 C.C.C. (3d), in which the Supreme Court held that s. 718.2 (e) of the Criminal Code directs that imprisonment is to be considered as a sanction of last resort for all offenders, and in particular in the case of aboriginal offenders. The defence reminds the court that s. 718.2 (e) has a remedial purpose directed at the disproportionate incarceration of aboriginal offenders, and requires the sentencing judge to give effect to aboriginal – specific factors that operate to favour a non-custodial sentence or a shorter term of imprisonment. These factors , which are cited in R. v. Kakekagamick , [2006] O.J. NO. 3346 at paragraph 40 include the following:

(1) The unique systemic or background factors which may have played a role in bringing the particular aboriginal offender before the court; and

(2) the types of procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.

6. Mitigating and Aggravating Factors :

[ 47 ] I find that that the following aggravating factors are present in this case:

a) Mr. Alton’s actions had a negative impact on C.R., contributing to his issues with low self esteem and confidence, inability to manage relationships, anger, violence and conflict with the law.

b) Mr. Alton’s actions took place in an atmosphere of violence, neglect and substance abuse.

c) Mr. Alton has a lengthy criminal record.

d) Mr. Alton stood in loco parentis to C.R..

e) The sexual abuse was consistent and occurred over a course of a number of years.

f) Mr. Alton’s sexual abuse featured two separate incidents of anal intercourse.

g) Mr. Alton told C.R. not to tell anyone about the abuse, or he would beat C.R., his brother and mother.

7. Principles of Sentencing :

[ 48 ] Section 718 of the Criminal Code sets out the sentencing objectives which must guide me in imposing sentence. These sentences include the following:

a) To denounce unlawful conduct;
b) To deter the offender and other persons from committing crimes;
c) To separate offenders from society, where necessary;
d) To assist in rehabilitating offenders;
e) To provide reparations for harm done to victims or to the community; and
f) To promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.

[ 49 ] In applying these principles I am mindful of section 718.01 of the Code which provides that when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 years, it shall give primary consideration to objectives of denunciation and deterrence.. Accordingly, in sentencing Mr. Alton I am placing considerable weight on these two objectives.

[ 50 ] I am also mindful of section 718.2 (e) which provides that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[ 51 ] As the defence has properly noted, Mr. Alton’s background is aboriginal, and this requires that I give effect to aboriginal-specific factors that operate to favour a non-custodial sentence or a shorter term of imprisonment.

[ 52 ] In considering these factors, I am aided by the comprehensive Gladue report which sets out many of the factors which have played a role in bringing Mr. Alton before the court in this case. These factors, as we have seen, include the following:

1. The Prevalence of Alcohol and Substance Abuse

We know that Mr. Alton’s mother was an alcoholic and she abused prescription drugs. She would disappear for days and leave the children unattended. His father was killed when he was five years old in an alcohol related snowmobile accident. He has been a witness to alcohol related violence and poverty and was ultimately taken into the care of the CAS because the use of drugs and alcohol had made his mother unfit to care for the children. When Mr. Alton started drinking at the age of 8, he was simply mimicking the behaviour he had witnessed in his home.

2. Poverty

We have heard that Mr. Alton’s mother spent the family money on alcohol and drugs, and that as a consequence the children were forced to eat baby food. Mr. Alton has continued this cycle of poverty. C.R. testified that his mother and Mr. Alton would spend the welfare cheques on drugs and alcohol. Mr. Alton does not have a high school education; he is on social assistance.

3. Racism

We have heard that Mr. Alton, who has distinct aboriginal features, grew up in a predominantly non-native community which bordered the Garden River Reserve. As a child, it was suggested to him that he should really be living on the other side of the river, with the native community. His paternal stepmother, who was not native, has called him a black bastard. The Gladue report refers to the fact that he and other non-native workers were taken advantage of in a work camp by a non native employer.

4. Community and Family Breakdown, Dislocation or Fragmentation.

Mr. Alton is an urban aboriginal. He has not lived on the First Nation and doesn’t visit there. He is not fluent in the Ojibway language and is not well versed in Traditional teachings. He does not even know to what clan he belongs. He has been raised by grandparents and in group homes and he has no relationship with two of his seven children. He straddles the native and non-native communities and cultures.

5. Unemplo