ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11/82

DATE: 2013/04/26

IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCASTED OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 (both victim and accused) OF THE CRIMINAL CODE OF CANADA DATED November 2nd, 2010 OF THE JUSTICE OF THE PEACE LOUISE ROZON.

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.J.

Accused

Isabel Blanchard, counsel for the Crown

Ian Paul, counsel for the Accused

HEARD: March 18th, 2013

REASONS FOR sentencE

LEROY, J.

[1] G.J. sexually assaulted J.B. over an extended period of time when she was in her formative years. He was convicted after trial on December 11, 2012 of indecent assault of a female and gross indecency of another person. These are the reasons for sentence.

The offence

[2] G.J. breached a very important trust. In 1970, he agreed to stand in the role of parent to his ten year old niece after her parents separated and were unable to care for her. He quickly exploited the situation for his personal gratification. He began to engage sexually with the complainant almost immediately. The sexual abuse progressed from fondling to digital penetration, masturbation, fellatio and cunnilingus. For four years, he turned innocent happenings into opportunity for insidious sexual exploitation. G.J. was relentless. He assaulted her in her bed, in the bathroom and living room, in the work truck, the work place and family car, after school, after bed time, during the work day and weekends.

The offender

[3] His life’s vocation was that of a delivery man. He was married to Beatrice, since deceased. He and Beatrice had four children of their own. They resided in a small three bedroom home.

[4] G.J. has one prior conviction, namely indecent assault on a female on November 28, 1962. He is age 74 and retired.

[5] G.J. is in poor health. He wears a colostomy bag on a daily basis, which follows treatment for rectal cancer. His current medical pathologies include coronary artery disease, hearing impairment, high blood pressure, elevated cholesterol and generalized anxiety disorder. Those conditions are managed with medication. His engagement with the community is limited because of frailty. He resides alone but maintains a friendly relationship with a woman in the building. He has support from three of the four children.

[6] G.J. acknowledges unspecified sexual abuse against J.B. He denies the extent of the abuse alleged and deflects responsibility to the complainant. He asserts that she was a willing participant in their sexual engagement and denies meaningful victim impact.

[7] G.J. elected to forego the opportunity of addressing the court and the complainant during the sentencing hearing.

Victim impact

[8] J.B. is 55 years of age. She delivered an impassioned victim impact statement. She identifies G.J. as the genesis for all that has gone wrong in her life. She has more than her share of life’s problems. It is fair to conclude that childhood sexual victimization at the hands of her ostensive care giver would, at the very least, exacerbate her symptomology.

Pre-sentence report

[9] The pre-sentence report depicts G.J. medical conditions and expresses the concern that imprisonment might interfere with medical care. The medical report from G.J. family physician does not echo that concern.

[10] Three of his children describe him as a loving, involved father who was hard working vocationally. He has not offended in the intervening years and is involved in a long term happy supportive relationship with Ms. R..

Sentence Parameters

[11] The maximum sentence for these offences is five years in prison. Section 149 of the Criminal Code of Canada provided that everyone who commits an act of gross indecency is guilty of an indictable offence and is liable to imprisonment for five years. Subsection 141(1) of the Criminal Code provided that everyone who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years. There is no minimum sentence. A conditional sentence is an option. These offences attract ancillary orders relative to weapons, DNA sampling, Sexual Offender Information lifetime registration and prohibition relative to attending public parks, swimming areas, day care centers, school grounds, play grounds and community centers where persons under the age of 16 years congregate.

Positions of Crown and Defence

[12] Mr. Paul advocates a conditional sentence of two years less one day with equivalent to house arrest constraints and probation. He does not contest the claim for ancillary orders sought by the Crown. He submits that the pertinent mitigating circumstances include G.J. age, infirmity, otherwise pro-social engagement in his society, the acknowledgement of wrongdoing to the author of the PSR and the long offence free hiatus.

[13] The Crown submits that a global sentence of imprisonment for four years together with ancillary orders is an appropriate sentence on these facts. She contests a conditional sentence, but if that were to be my ruling she seeks full house arrest for two years less one day followed by three years of probation.

Analysis

[14] This case involves sexual assault by a person in a position of the highest trust over a four year period. The sexual engagement included all but penile sexual intercourse. The jurisprudence allows for conditional sentence in cases involving sexual assault but it is a difficult case to make out where there is serious assault, a breach of trust, a vulnerable victim and degrading acts, all of which are highlighted here. The sentencing range is between three and five years imprisonment. But for the upper limit imposed by the Criminal Code at the time of offence the sentencing range would be higher.

[15] The trial judge is afforded discretion in crafting an appropriate sentence. That discretion is to be exercised in accordance with the objectives and purposes of sentencing codified in section 718 of the Criminal Code of Canada.

[16] They include an amalgam of denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[17] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[18] As the Supreme Court of Canada emphasized in R. v. Proulx, [2000] 2 S.C.R. 61, sentencing is an individualized process. There is no such thing as a uniform sentence for a particular crime. In determining a fit sentence, a judge must consider the specific circumstances of the particular offender and the offence.

[19] The statutory prerequisites for a conditional sentence are set out in section 742.1 of the Criminal Code:

i. The offence must not be punishable by minimum term of imprisonment;

ii. The total sentence of imprisonment must be less than two years; and

iii. The sentencing judge must be satisfied that serving the sentence in the community would not endanger the safety of the community; and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[20] Restorative objectives, whether for the benefit of the complainant or directed at the offender are diminished in this sentence analysis. G.J. has lived the biggest part of his life with the secret shame. There may be some relief in the exposure and disposition. There is no sentence of which I am aware that will restore what G.J. took from J.B..

[21] Individual deterrence is a diminished objective and purpose. G.J. does not pose a risk to re-offend. G.J. has not offended for 40 years. Infirmity due to poor health and age restrict his living circumstances to minimal excursion into the community. Practically speaking, he is no longer a threat to the community.

[22] The precedence in this sentence is denunciation, general deterrence and promotion of a sense of responsibility for the harm he did and what it represents to the community. Sexual assault of a child by the ostensive parent is a most serious offence against the individual and is deeply damaging to the community.

Aggravating and Mitigating Circumstances

[23] Mitigating and aggravating factors are only those that are related to the gravity of the offence and moral blameworthiness of the offender. The absence of an aggravating circumstance is not mitigating. For example, the fact that G.J. did not achieve penile intercourse is not mitigating. The absence of a mitigating circumstance is not aggravating. The fact that G.J. does not feel remorse is not aggravating.

Aggravating Circumstances

[24] The following circumstances are aggravating:

i. He breached his role as parental caregiver to a particularly vulnerable child who had been displaced from her family of origin – section 717.2(a)(iii);

ii. The offences were committed when J.B. was in her formative years between the ages of ten and fourteen – section 718.2(a)(ii.1);

iii. The sexual engagement was relentless, degrading and involved anal and vaginal penetration and oral sex;

iv. The victim impact is immutable.

Acknowledgement for harm done

[25] The decision to sustain a position of denial after trial and conviction is not aggravating. If an offender takes the position that the offence did not occur through trial, he is not obliged for the sake of sentencing analysis to change that position. That would be disingenuous. I find as a fact that G.J. continued devaluation of the full extent of the abuse alleged and the victim impact are not aggravating circumstances.

[26] His misconduct did cause harm to J.B.. She faces many obstacles, physical and mental. She attributes her symptoms to the sexual abuse inflicted by G.J.. I agree in part with Mr. Paul’s dispute to the etiology of the full extent of her symptoms. The jurisprudence and the Criminal Code recognize the harm that childhood sexual victimization causes. He stole the innocence of her youth and she is scarred. I find that the sexual assault at least exacerbated J.B.'s symptomology.

Mitigating Circumstance

Passage of time

[27] The age of the offence is irrelevant to sentencing in terms of the gravity of the offence and to general deterrence – R. v. V.M., [1999] O.J. No. 2580. The offence is viewed as seriously as it would have been when committed. Time passage reflects on individual deterrence and prospects for rehabilitation. The passage of time without criminal blemish is a factor that goes to the issue of whether serving sentence in the community would or would not endanger the safety of the community in the context of the least intrusive sentence requirement and conditional sentence prerequisite. As I concluded earlier, G.J. is no longer a risk to endanger the safety of the community. Individual deterrence and opportunity for rehabilitation are not live issues.

Otherwise good character

[28] Although I suspect it is open to argument, I accept that G.J. is a person of otherwise good character. G.J. is known by those close to him as a diligent employee and involved family person. He has not offended in the last forty years. I do not place any significance on the conviction for sexual assault on a female registered in November 1962. The circumstances of that offence are not before the court and it would be speculative to draw conclusions without them. He is being treated as a first time offender.

[29] His circumstances are not exceptional. In many of these cases the offender comes before the court for the first time, bringing a history of good employment and solid family value and expressing remorse. The jurisprudence emphasizes that the sexual abuse of a child by a person standing in the role of parent is a gross abuse of trust and cannot be tolerated. Section 718.01 directs the sentencing judge to give primary consideration to the objectives of denunciation and deterrence of such conduct when the offence involves abuse of a person under the age of eighteen years. This offence warrants, save in exceptional circumstances, a denunciatory sentence to reflect society’s revulsion for this conduct, never forgetting prospects for rehabilitation – which in this case is not material. General deterrence should not be ignored.

[30] G.J. does not get the benefit of mitigation that would be brought into the amalgam when ingenuous remorse is in evidence. He does not appreciate the harm done or acknowledge moral blameworthiness. He acknowledges unspecified sexual engagement with the complainant. By way of comparison, in R. v. R.B., [2003] O.J. No. 3450, where the issue was whether to extend a conditional sentence the court noted that the offender plead guilty and expressed genuine remorse for the misconduct he acknowledged.

Age and infirmity

[31] The evidence adduced on the sentence hearing does not establish that imprisonment would result in disproportionate sanction for G.J. He has medical conditions that are managed with medication. The prison system includes necessary medical facility. A sentence that is otherwise just should not be discounted for compassionate medical grounds unless the circumstances are compelling.

[32] I am cognizant of G.J. age. I agree with Mr. Paul’s submission that the functional and normative goals of sentencing begin to lose efficacy once the sentence surpasses life expectancy.

Conclusion

[33] This is not a situation that merits a conditional sentence. The just sentence that reflects the gravity of the crime and high moral blameworthiness, the need for denunciation and general deterrence involves imprisonment longer than two years. I am not satisfied that a conditional sentence would otherwise be in compliance with the purpose and objectives of sentencing codified in s. 718. This sexual abuse involved breach of parental trust and began when the complainant was but ten years of age. It involved all but penile intercourse and was relentless for four years. The impact of the harm done to J.B. has not ameliorated.

[34] House arrest would be of little consequence to G.J. His life is already sedentary and mostly reclusive. Probation is fashioned to rehabilitate the offender. The merit of that objective is diminished in this instance.

[35] I am satisfied that G.J. medical needs can be addressed and managed within an institutional setting.

[36] The range of sentence in these circumstances is three to five years for a first offender of otherwise good character. The message is that if you breach the parental trust and prey on innocent children you will pay a heavy price. That said, this is not a place for retribution. At age 74, with chronic health concerns that bear on his life expectancy, a sentence of four or five years for G.J. is disproportionate and loses efficacy relative to promoting a sense of responsibility and acknowledgement for the harm done. The preferred result is one where G.J. survives, serves out his time and reintegrate into his society with a clean slate.

[37] G.J.: Please stand up.

[38] I sentence you to three years in penitentiary on each count to be served concurrently. You can sit.

[39] The following ancillary orders are to issue:

i. Weapons prohibition for life under s. 109;

ii. Prohibition order for life under s. 161;

iii. That G.J. provide a DNA sample;

iv. That G.J. complies with the Sex Offender Information Registration Act for Life – s. 490.01(3).

[40] My endorsement will also order that G.J. be medically assessed immediately on his arrival into custody to ensure continuity of care. The medical report from Dr. Shah is to be included as well.

[41] I do appreciate counsels’ preparations and briefs. The indexing, compilation of case law and highlighting of key passages in the Crown case brief was very helpful and professionally done.

Justice Rick Leroy

Released: April 26th, 2013

COURT FILE NO.: 11/82

DATE: 2013/04/26

ONTARIO

SUPERIOR COURT OF JUSTICE

IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCASTED OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 (both victim and accused) OF THE CRIMINAL CODE OF CANADA DATED November 2nd, 2010 OF THE JUSTICE OF THE PEACE LOUISE ROZON.

HER MAJESTY THE QUEEN

– and –

G.J.

REASONS FOR SENTENCE

Justice Rick Leroy

Released: April 26th, 2013