COURT FILE NO.: 12/30000372/0000
DATE: 2013-03-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
HOWARD SMITH
Counsel: Jonathan Smith, for the Applicant Robert Warren Q.C. and John Collins for the Defendant
HEARD: March 7, 2013
KELLY J.
REASONS FOR SENTENCE
[1] The defendant, Mr. Howard Smith, pleaded guilty to two offences that occurred in 1978. At that time, he had sexual intercourse with B.H. who was fifteen years old. She was his foster daughter. A charge of rape was withdrawn by Crown Counsel.[^1]
[2] Mr. Smith now comes before me for sentencing. Crown Counsel seeks a custodial sentence of 2 to 2½ years. Counsel for Mr. Smith submits that a conditional sentence of two years less one day is appropriate. There is no issue that a conditional sentence of imprisonment is an available sentence, as a matter of law, in the circumstances.
[3] I agree that a conditional sentence is appropriate but it will be followed by three years of probation. What follows are my reasons.
The Facts
[4] The background giving rise to the charges was provided by way of an Agreed Statement of Facts (the “ASF”). It states that B.H. was in and out of care of the Catholic Children’s Aid Society from the age of six. From the beginning of 1976 to the spring of 1978 she had resided in 22 foster homes. Because B.H. was moved repeatedly from home to home and because of the state of care in some of the homes, she was in a fragile state.
[5] Mr. Smith and his then wife were approved to serve as foster parents in 1978. They agreed to take B.H. into their home at age 14. B.H. turned 15 shortly after coming to stay with them.
[6] B.H. resided for a short period of time with the Smiths and their two children. Each child occupied their own room – B.H. included. B.H. felt that this home provided the stability that had been so wanting from her previous homes. As stated in the ASF, “for the first time in the care of the Catholic Children’s Aid Society, B.H. finally felt that she was in a stable environment where she was treated on equal footing with the Smiths’ biological children”. Mr. Smith was in a position of trust and authority during B.H.’s stay in their home.
[7] One to two months after B.H. moved into the Smith home, Mr. Smith was involved in a motor vehicle accident which required him to spend more time in the house. Mr. Smith began to make sexual advances towards B.H. Starting in the late spring of 1978 and continuing into mid-July, 1978 there was vaginal intercourse on 3 to 4 separate occasions. There was no other form of sexual touching either before or after these incidents. At no time did Mr. Smith use a condom and he ejaculated inside of B.H. on all occasions. B.H. became pregnant.
[8] The ASF states that “the CCAS became aware that she [B.H.] was pregnant”. She was removed from the Smith home and placed in a home for unwed mothers. The CCAS did not report the incident to the police and tried to persuade B.H. to give up the child.
[9] B.H. raised the child, initially on her own and then with the assistance of a partner. The child did not know the real identity of her father and grew up believing that B.H.’s partner was her father. She was told the real identity of her father, Mr. Smith, in her teens.
[10] In April, 2010 (when the child was approximately 33 years of age) the police were approached by B.H. and advised of the allegations. Thereafter, Mr. Smith was contacted by the police. At that time he was asked for and consented to providing a DNA sample for testing. As a result, it was confirmed that Mr. Smith was the father of B.H.’s child conceived in 1978. He was arrested and released on an undertaking to the Officer in Charge.
Analysis
[11] It is trite to say that these offences have rocked the worlds of two families. B.H. appeared in the Courtroom on both occasions: for the plea and for the sentencing submissions. To describe her appearance as that of a broken woman would be an understatement.
[12] Mr. Smith appeared in Court with a large group of family and friends who were clearly distraught by the circumstances that brought their father, husband, friend and confidant into the criminal justice system. Mr. Smith took the witness stand to provide an apology to B.H. Like the emotion shown by B.H. expressed through her victim impact statement, the words expressed and demeanor exhibited by Mr. Smith was similarly moving.
[13] Mr. Smith has taken responsibility for his actions through his plea of guilt. Mr. Smith is unable to explain why things went so wrong when B.H. was in his home in 1978. The letters of support seem to demonstrate that those closest to him are unable to reconcile his positive personality traits with the monstrous error in judgment Mr. Smith made thirty-five years ago when he had sexual intercourse with his foster child.
[14] As Mr. Smith so eloquently said when addressing B.H. directly, we all wish that we could turn back the clock so that two families would not have been savaged by Mr. Smith’s criminal acts. However, we cannot do that. We can only move forward. Whatever sentence I impose today will not make B.H. whole again. Nor will it cure the emotional and physical trauma that Mr. Smith’s criminal acts brought on B.H.
[15] Sentencing is never an easy task. Sentencing in this case is all the more difficult. The criminal acts in this case occurred approximately 35 years ago. There is no suggestion that other than those acts, Mr. Smith has led anything other than an exemplary life. Nonetheless, he needs to be held accountable for what he did. My discretion in imposing sentence is guided by the sentencing principles set out in the Criminal Code.
[16] Section 718 of the Criminal Code sets out the purposes of sentencing as follows:
a. to denounce 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;
e. to provide reparations for harm done to victims or to the community; and
f. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[17] Bearing the purposes of sentencing in mind, I must also take into consideration the following:
i. that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; and
ii. an offender should not be deprived of liberty if less restrictive sanctions are appropriate.[^2]
[18] The primary sentencing principles to be considered when sentencing an offender for such a crime as this are denunciation and general deterrence. Based on the materials before me, I agree that specific deterrence and rehabilitation, although relevant, are not of pressing concern.
[19] Crown Counsel made compelling arguments as to why a penitentiary sentence was appropriate. He provided the Court with three cases in support of his position. I agree with the authorities and with the Crown that although a conditional sentence of imprisonment is available as a matter of law, if the sentence I were to impose were less than 2 years’ imprisonment, I must be persuaded that this case falls into a narrow “rare” category before such a sentence would meet the principles and purposes of sentencing.
[20] A conditional sentence was found to be inappropriate in the case of R. v. R.W.D.[^3] where a stepfather was convicted of two charges of sexual touching against his 12 year-old stepdaughter. The accused was convicted of prodding her with his penis in the area of her vagina and rectum. On a second occasion, the accused entered her bedroom, kissed her breasts and performed oral sex. The accused testified and denied assaulting his stepdaughter. The trial judge rejected his evidence but imposed a conditional sentence. The Court of Appeal overturned such a sentence and imposed 12 months’ imprisonment.
[21] Justice Lally rejected the imposition of a conditional sentence in R. v. D.C.D.[^4] where the accused had attempted rape and had sexual intercourse with his 15 year-old foster daughter. He committed an indecent assault on a second complainant. Both offences had occurred approximately 25 years prior. Both complainants were students in the school where D.C.D. was teaching. The accused was tried following a lengthy jury trial involving nine complainants. D.C.D. was acquitted of sexual offences involving seven complainants. The Court imposed a sentence of 18 months’ incarceration for attempted rape, one year for sexual intercourse with his foster daughter and one month for indecent assault. The Court noted that D.C.D. exhibited no remorse for attempting to rape and later having consensual intercourse with his foster daughter.
[22] Justice Hearn of the O.C.J. rejected the imposition of a conditional sentence in a historical sexual assault. The accused was a Catholic priest. He pleaded guilty to two counts of sexual assault in 2012 involving offences in 1983. Each involved a single incident with two different complainants. The accused masturbated both complainants in addition to performing fellatio on one of them. The Court rejected the imposition of a conditional sentence and imposed a sentence of fifteen months in prison.[^5]
[23] While I appreciate the compelling submissions of Crown Counsel, I cannot ignore the fact that each case is to be considered individually. No sentencing case can serve as an exact precedent in sentencing because each case can always be distinguished factually. For instance, in R. v. R.W.D. and R. v. D.C.D., both accused pleaded not guilty and showed no remorse. In R. v. Boudreau, there were two complainants. All three cases, while informative, are different from the circumstances of Mr. Smith.
[24] Counsel for Mr. Smith also provided precedent for his position. Mr. Collins relied on a case from the Supreme Court of Canada where four justices of the Court upheld a conditional sentence in the case of R. v. L.F.W.[^6] Four judges dissented. L.F.W. was convicted of one count of indecent assault and one count of gross indecency. The offences were committed on his first cousin and next-door neighbor over a six-year period when the complainant was between 6 and 12 years old and L.F.W. was between 22 and 28 years old. There were 10 to 12 incidents involving forced masturbation and fellatio. The complainant was warned not to tell her parents and was told that L.F.W. had a gun, leading her to believe that she and her family would be in jeopardy if she disclosed the abuse.
[25] The impact of the abuse exacted on the complainant by L.F.W. was set out in a victim impact statement. She described feelings of “shame, isolation and low self-esteem” during her childhood and teens. She had difficulties in her marriage as she found it hard to be sexually intimate with her husband. The birth of her son exacerbated her feelings of fear, confusion and pain. Twenty years after the offences had been committed, the complainant found the courage to report the incidents to the police.
[26] L.F.W. was a widower and the father of four children at the time of sentencing. He had lived in his community in Newfoundland for the entirety of his life but for three years of service in the armed forces. He had no criminal record and he had a good work history. He enjoyed the support of his children as well as various members of his community. The Court concluded that he was a man of good character and reputation in the community in which he lived.
[27] The cases relied upon by both counsel demonstrate that sentencing is not an exact science. As Doherty J. noted in R. v. Hamilton:[^7]
Sentencing is a very human process. Most attempts to describe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing. The fixing of a fit sentence is the product of the combined effects of the circumstances of the specific offence and unique attributes of the specific offender.
[28] It is obvious that the conduct of Mr. Smith must be denounced. Denunciation mandates that a sentence must communicate society’s condemnation of Mr. Smith’s conduct. Notwithstanding that, I find that this is a rare case and that a conditional sentence should be imposed. It is my view that the conditional sentence imposed will address both the punitive and rehabilitative aspects of sentencing.[^8]
[29] I am aware of the concerns that B.H. expressed in her victim impact statement that:
“People keep referring to the crime against me that happened 35 years ago as if it is something to be put in the past and forgotten like the old saying “water under the bridge”.”
[30] A conditional sentence is not being imposed so that her circumstances can be forgotten or considered water under the bridge. No sentence can give B.H. back the stability she felt in the Smith home before being violated or the opportunity to raise her daughter knowing the true identity of her father from birth.
[31] A conditional sentence can address denunciation and general deterrence as Rosenberg J.A. stated in R. v. Wismayer[^9]:
… it is wrong to consider a conditional sentence order as a lenient sentence. The offender will serve the total sentence under conditions that restrict the offender’s liberty, often by requiring that the sentence be served as a form of house arrest and by requiring community service. The offender is also under the constant threat of imprisonment should he or she violate the conditions. As Rousseau-Houle J.A.[^10] put it, the sentence of imprisonment is like a sword of Damocles over the offender. In some ways the conditional sentence order can be a much heavier sentence than a brief sentence from which the offender will be paroled after one third has been served. Accordingly, I cannot accept that a conditional sentence of imprisonment is unavailable where the paramount consideration is denunciation of the offender’s conduct.
[Footnote added]
[32] A similar sentiment was expressed by the majority of the Newfoundland Court of Appeal in commenting on the severity of the conditional sentence imposed in L.F.W.:[^11]
It is no mean punishment for a person of previously unblemished reputation to bear the stigma of being confined to virtual house arrest, subject to restricted conditions of circulation within a community for a serious crime committed in his early adult years, all to the general knowledge of others in that community. Neither may it be counted inconsequential for such a person to daily bear the shame of his guilt for that crime and of his loss of esteem before his fellow residents during his restricted ventures from his home.
[33] Having considered the submissions of Crown Counsel and the authorities, I nonetheless find that the terms that I intend to impose and as set out below are such that Mr. Smith’s liberty will be restricted for two years less one day and that he will be required to perform community service pursuant to a probation order. I am of the view that the terms imposed will achieve the goals of denunciation and general deterrence as they are “visible, sufficiently restrictive, enforceable and capable of attracting stern sanction for failure to comply with such conditions”.[^12]
[34] In coming to this conclusion, I have considered the following aggravating and mitigating factors.
The Aggravating Factors
[35] B.H.’s victim impact statement was heart wrenching. The impact of these offences on her were described as follows and are obviously aggravating:
a. Her life forever changed with the pregnancy.
b. She was put into a home for unwed mothers and told to give up her child.
c. She “was taken from being a kid with a life ahead of [her] to a kid raising a kid and living a life of fear”.
d. Parenting was a struggle.
e. She used to wash herself with bleach in an attempt to cleanse herself.
f. She felt that “depression and fear became a way of life”.
g. That although she married it did not last. She felt that during her marriage, her past was used against her to “attack” her in her marriage.
h. That her life has been adversely impacted by what happened 35 years ago.
i. She suffers from chronic sleep problems, eating disorders and nightmares.
j. She believes that the actions of Mr. Smith have affected her entire life, including her marriage and consequently the lives of her children and grandchildren. She says: “Every relationship I have ever had in my lifetime has been adversely impacted by what happened to me some 35 years ago”.
k. She describes herself as “numb”, especially when it comes to herself. She does not have a life and she cannot hold down a job. To quote B.H. “I have not been the mother and grandmother I should have been because of the path of life which Mr. Smith’s crimes have done. I am unable to trust few people in my life. … Trust is not a part of my world and never has been since I was violated by Mr. Smith and then told I was a liar by the CAS workers when I went to them for help”.
l. That she is “broken” and her life is a “living nightmare”.
[36] I also consider the following to be aggravating factors regarding Mr. Smith’s involvement in the offences before the Court:
a. B.H. was under the age of 18 at the time of the offences. She was 15 and a virgin at the time she had sexual intercourse with Mr. Smith.
b. The acts of sexual intercourse occurred three to four times over a short period of time.
c. B.H. became pregnant because Mr. Smith did not take any precautions to prevent such an occurrence.
d. B.H. was an extremely vulnerable person having been in approximately 22 foster homes before being put into what she thought was a stable environment in the Smith home.
e. Mr. Smith was in a position of trust and authority which he breached when he engaged in sexual intercourse with B.H.
f. Although B.H.'s quality of life up until this point could not be described as ideal, it worsened with these crimes against her. She was removed from the home, entered parenthood at age 15 and remained in a situation that could be politely described as “chronic stress”.
g. Although the blame for B.H.’s poor quality of life cannot be placed solely on Mr. Smith, his conduct was a significant contributing factor. As Crown Counsel submitted, it is impossible to quantify the damage inflicted on B.H. by Mr. Smith’s conduct.
h. Dr. Larry Schmidt described that B.H. suffers from severe post-traumatic stress disorder as well as medical conditions causing chronic pain such as irritable bowel syndrome and fibromyalgia.
[37] There seemed to be some issue about Mr. Smith’s knowledge of B.H.’s pregnancy in 1978 and whether he denied any misconduct to the CCAS at the time. In her victim impact statement, B.H. says that Mr. Smith was confronted by the CCAS at the time and that he lied to the CCAS to “cover it up”. She says that she was punished by the CCAS. She was told that she was a liar for accusing Mr. Smith and that the CCAS “believed Mr. Smith’s lies and refused to listen to me”. As a result, she was labeled “a bad person, a liar and someone to be targeted by the Children’s Aid Society”.
[38] There is no suggestion in the ASF that Mr. Smith was aware of B.H.’s pregnancy resulting from sexual intercourse with him. At the commencement of his submissions, Crown Counsel advised the Court that he had consulted Counsel with respect to the content of the victim impact statement. He submitted:
I know as far as the victim impact statement is concerned, there’s some issue just with reference to Mr. Smith’s dishonesty with the Children’s Aid Society. I am not seeking to rely on that for the purpose of sentencing ... but obviously Your Honour has the statement as to B.H.’s view and feelings about what occurred.
[Emphasis added]
[39] Counsel for Mr. Smith repeated, on a number of occasions, that it is Mr. Smith’s position that he had no knowledge he had fathered a child with B.H. until he voluntarily provided a sample of his DNA to police and such testing confirmed he was the father of B.H.’s child. He then took responsibility for his actions. Such a position appears to be consistent with the wife’s letter to the Court that Mr. Smith had no idea the child was his at the time. It is also consistent with Mr. Smith volunteering to provide a DNA sample. If Mr. Smith knew that he was the father of the child, the need to provide a DNA sample was not necessary.
[40] In light of the position taken by Crown Counsel, I do not intend to rely upon those references in B.H.’s victim impact statement regarding the timing of Mr. Smith’s knowledge of her pregnancy, the birth of her child and her allegations regarding his dishonesty. I come to this conclusion based on s. 724.(3)(b) of the Criminal Code. It provides that:
724.(3) Where there is a dispute with respect to any fact relevant to the determination of a sentence,
(b) the party wishing to rely on a relevant fact including a fact in a presentence report, has the burden of proving it[.]
[41] The Ontario Court of Appeal in R. v. W. (V.)[^13] held that although victim impact statements are not specifically mentioned in s. 724.(3), there is no principled reason for excluding them from the general rule articulated by the Supreme Court of Canada in R. v. Gardiner [^14]or the procedures set out in s. 724.(3). Accordingly, the Crown bears the burden of proving any disputed fact beyond a reasonable doubt.
[42] There is a dispute as to when Mr. Smith knew of B.H.’s pregnancy. Crown Counsel did not seek to prove it in this hearing and he does not intend to rely on Mr. Smith’s knowledge of the pregnancy at the time nor his alleged dishonesty to the CCAS. Accordingly, I will not consider this to be an aggravating factor on sentencing and I accept that Mr. Smith became aware of the birth of his child with B.H. in 2010.
The Mitigating Factors
[43] Mr. Smith’s factual background demonstrates that he is a person of good character:
a. Mr. Smith is 61 years of age. He has led a productive life since these offences. He worked for the TTC commencing in 1972 and ending in 2008. During these 36 years, he was promoted 17 times. At the time of his departure, he was supervising over 5,000 people in his capacity as the General Superintendant of Surface Transportation for Toronto.
b. He suffers from diabetes. A growth on his pituitary gland was removed surgically in 2011. Some pituitary tumor remains and as such, he will require lifelong monitoring. If the tumor grows, Mr. Smith will require repeat surgery, possibly radiation and possibly hormone replacement.
c. He suffers from Sleep Apnea Syndrome. Medical doctors are carefully and closely monitoring Mr. Smith. He takes numerous medications.
d. At the time of the offences, he was 24 years of age. He has no criminal record. Approximately 35 years have passed since the offences occurred and there is no evidence of any other criminal activity.
e. Mr. Smith appears to be proficient in construction. For years, Mr. Smith has devoted his time and his handyman skills to family and community members in need.
f. Upon his arrest, and 33 years after the offences, Mr. Smith provided his DNA sample on consent so that he could help determine whether he was the father of B.H.’s child. This was the first time he had been asked to take responsibility for his most irresponsible conduct.
g. Mr. Smith is extremely remorseful. He asked to take the witness stand during the sentencing hearing so that he could face B.H. and apologize to her personally. As I have stated above, the apology appeared to be sincere and moving.
h. Those who have shown support for Mr. Smith through these difficult circumstances have also shown empathy for B.H..
i. There is nothing to suggest that Mr. Smith has been anything but a contributing member of our society. As Crown Counsel submitted, such letters from family, friends and colleagues that speak glowingly of Mr. Smith are to be expected. I agree. However, what one normally does not see is the compassion shown for the victim of the crime such as that shown for B.H. .
[44] The most compassionate description that gives some insight into the type of person Mr. Smith has proven to be has been provided by Mr. Smith’s current wife, Donna. In her letter, she states as follows:
He [Mr. Smith] deeply regrets becoming involved with B.H. , the wiser and matured man of today can’t fathom why he allowed this to happen. His actions were certainly inconsistent with his character, his natural instinct to protect those in his care and this presents itself in his high levels of anxiety that he can’t turn back the clock he can’t do anything about the past. If he had it to do over again, he certainly would have acted more responsibly. He feels deep anguish and pain for letting B.H. down and leaving her to raise his child. Although he had no idea the child was his at the time, now knowing he has a daughter who has grown up and become a woman and mother herself thinking that her biological father abandoned her is almost more than he can bear. As soon as these charges were laid on Howard he wanted more than anything to reach out to B.H. and Carrie and talk to them. He worried about the last 35 years of their lives, if he had known, what he could have done to help them. That B.H. shouldered so much responsibility in raising their daughter saddens him, he wishes she had reached out to him. He has great sorrow for the difficulties that were caused by him in their lives and often says he doesn’t know what he was thinking, why he allowed this to happen and he wishes he could turn back the clock. …
I hope B.H. has had support and love throughout her life from her family and friends. I personally have great sympathy and empathy for B.H. and her struggles throughout her life and the difficulties and turmoil that were caused as a direct result of her involvement with Howard. I hope, as does Howard, that this will give her some closure and that she can then leave this part of her life in the past and look towards a brighter future.
[45] Other family, friends, colleagues and even his ex-wife have described Mr. Smith as: helpful, considerate, gentle, kind, respectful, hardworking, reliable, successful, devoted, loving, loyal and patient. But most of all, he is remorseful.
[46] Mr. Smith pleaded guilty to the offences which is a sign of remorse. By doing so, he saved the necessity of having Crown Counsel prove its case beyond a reasonable doubt. It also saved the necessity of B.H. having to testify. As her own medical doctor from the St. Joseph’s Family Medical Centre stated as of November 27, 2012: “At this point in time, knowing and experiencing the court system on a few occasions, I wonder if it is in her best interest to pursue the finality of the upcoming trial.”
[47] As I have already stated, Mr. Smith’s apology was also moving and appeared sincere. He regrets what he did 35 years ago and he has taken full responsibility for his actions. He recognizes that he made a grave error in judgment and let B.H. “down”. In his words:
I let everyone down, I let myself down, but, most importantly I let B.H. down. I would like her to know how deeply sorry I am and for the pain that it has caused her over these years. Sorry seems like such a small word, but it’s all I have. All I can give is my sincere apology and hope that now she has closure and will be able to move forward with her life.
[48] I accept the apology as genuine.
[49] Lastly, the stigma of these proceedings and convictions cannot be minimized. In closing, I repeat and adopt the sentiment posed by Mr. Collins, Counsel for Mr. Smith:
… Howard Smith is not only sincerely remorseful as evidenced by his guilty pleas in this case, he is and will continue to be thoroughly ashamed and appropriately contrite of his fall from grace, and unlike many offenders who do not have a good reputation to lose, as you will observe from the extensive materials filed by Mr. Warren attesting to his good character, Howard Smith has truly suffered and will continue to suffer from the loss of his previously unblemished standing amongst his peers, the members of his family and his community in a way which in our submission, will dictate as much general deterrence and denunciation as could ever be achieved by any term of incarceration.
What is the Fit Sentence?
[50] While I am sympathetic to B.H.’s plight, sending Mr. Smith to jail is not going to cure her state of being.
[51] I do not find that Mr. Smith would endanger the safety of his community if he serves a conditional sentence. I am also satisfied that a conditional sentence would adequately denounce Mr. Smith’s conduct and deter other persons from committing this type of offence. As the Supreme Court stated in R. v. Proulx:[^15] a conditional sentence can provide significant denunciation and deterrence, particularly when onerous conditions are imposed.
[52] I am satisfied that the conditions that I am imposing are onerous and can provide significant denunciation and deterrence. The conditions imposed during the period of two years less one day will be as follows:
a. House arrest for the entirety of the two years less one day period. The exceptions will be for personal medical care at any time and for personal business on each Saturday from 1:00 p.m. to 5:00 p.m.
b. The statutory terms, which include the following:
i. keep the peace and be of good behaviour;
ii. appear before the Court when required to do so by the Court;
iii. report within two working days in person to a supervisor and thereafter report when required by the supervisor in the manner directed by the supervisor;
iv. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the Court or the supervisor; and
v. notify the supervisor in advance of any change of name or address and promptly notify the supervisor of any change in employment or occupation.
c. Mr. Smith will be subject to three years of probation. During the first 18 months, he is to perform 240 hours of community service unless he provides medical proof to his probation officer that he is unable to do so and his probation officer (or the Court) is satisfied that that is the case.[^16]
d. During both the period of the conditional sentence and probation, Mr. Smith is to abstain from associating with B.H. or her immediate family except at their request.
[53] Mr. Smith will also be subject to the following ancillary orders:
a. Mr. Smith will be ordered to provide such samples of his bodily substances as may be required for forensic analysis pursuant to s. 487.051(b) of the Criminal Code; and
b. Registration in accordance with SOIRA pursuant to s. 490.013 of the Criminal Code, for life for each offence.
[^1]: Specifically, Mr. Smith pleaded guilty to having sexual intercourse with B.H., “a female person who was not his wife, was of previously chaste character and is fourteen years of age or more and is under the age of sixteen years, whether he believes she is sixteen or not contrary to s. 146(2) of the Criminal Code, R.S.C., 1985, c. C-46. He also pleaded guilty to having sexual intercourse with B.H., his foster daughter, contrary to s. 153(2) of the Criminal Code. The charge of rape contrary to s. 144 of the Criminal Code was withdrawn.
[^2]: See: s. 718.2(b),(c) and (d) of the Criminal Code
[^3]: 2005 CanLII 20711 (ON CA), [2005] O.J. No. 2385 (Ont. C.A.)
[^4]: [2000] O.J. No. 5801 (S.C.J.)
[^5]: See: R. v. Boudreau, 2012 ONCJ 322, [2012] O.J. No. 2372 (O.C.J.)
[^6]: 2000 SCC 6, [2000] S.C.J. No. 7 (S.C.C.)
[^7]: 2004 CanLII 5549 (ON CA), [2004] O.J. No. 3252
[^8]: See: R. v. Proulx, (2001) 2000 SCC 5, 140 C.C.C. (3d) 449
[^9]: (1997) 115 C.C.C. (3d) (C.A.) at p.39-40
[^10]: R. v. Maheu, [1997] A.Q. No. 277 (Q.C. C.A.)
[^11]: See: R. v. L.F.W. (1997), 1997 CanLII 10868 (NL CA), 155 Nfld. & P.E.I.R. 115 (Nfld. C.A.)
[^12]: R. v. G. (K.R.), [1996] O.J. No. 3867 (QL)
[^13]: (2008) 2008 ONCA 55, 229 C.C.C. 344 (Ont. C.A.)
[^14]: (1982), 1982 CanLII 30 (SCC), 68 C.C.C. (2d) 477 (S.C.C.)
[^15]: 2000 SCC 5, [2000] 1 S.C.R. 61 (S.C.C.) at paras. 102 and 107
[^16]: When speaking with Counsel at the conclusion of my reasons, I indicated that I have imposed a period of three years of probation during which community service will be performed because it appears that Mr. Smith enjoys performing community service. Accordingly, to allow Mr. Smith to perform community service during the conditional sentence, would defeat part of the purpose of the conditional sentence order. Following the delivery of my reasons, it came to my attention that pursuant to s. 732.1(3)(f) that the Code permits up to 240 hours of community service over a period not exceeding 18 months so my order has been modified to comply with that section. I also indicated that any modification of this order should be brought before me, if I am available.
Kelly J.
Released: March 28, 2013
COURT FILE NO.: 12/30000372/0000
DATE: 2013-03-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
HOWARD SMITH
REASONS FOR SENTENCE
Kelly J.
Released: March 28, 2013