R E A S O N S F O R S E N T E N C E

MONDAY, December 16, 2013

MULLIGAN, J. (Orally):

Mr. Quesnelle, is there anything you want to say to the court before I impose sentence? You have to say yes or no.

LOUIS QUESNELLE: No.

THE COURT: All right, you may sit down. This matter proceeded by way of a five-day non-jury trial, with respect to ten counts on an indictment. Mr. Quesnelle was found guilty with respect to five counts, all involving the complainant, D.S.. Count one related to assault, contrary to s. 266 of the Criminal Code of Canada; Count three related to an assault with a weapon, contrary to s. 267(1)(a) of the Criminal Code of Canada; Count four related to touching a person under the age of 14 for a sexual purpose, contrary to s. 151 of the Criminal Code of Canada; Count five related to sexual assault, contrary to s. 271(1) of the Criminal Code of Canada; and Count six related to touching a young person while being in a position of trust for a sexual purpose, contrary to s. 153(1) of the Criminal Code of Canada. Sentencing was adjourned so that a pre-sentence report could be obtained. At the sentencing hearing, a pre-sentence report was filed, together with a victim impact statement and Mr. Quesnelle’s criminal record. Both Crown and defence made submissions as to sentence.

THE CIRCUMSTANCES OF THE OFFENCES

The following overview will provide context with respect to the relationship between the offender, Mr. Quesnelle, and the victim, D.S.. The charges before the court represent incidents and events that took place between 1987 and 1992.

Mr. Quesnelle began a common-law relationship with S.S., D.S.’ mother. She moved into a residence owned by Mr. Quesnelle. She was 31 and had two children, her daughter L.S., who was 10, and her son D.S., who was 5. This common-law relationship broke down in the fall of 1992, when S.S. moved out with her two children. At that point, L.S. was 15 and D.S. was 10. The relationship between Mr. Quesnelle and S.S. became toxic. The evidence indicated that Mr. Quesnelle was controlling, mean, and at times, violent. By all accounts, Mr. Quesnelle was controlling physically and emotionally, of all members of the household.

Mr. Quesnelle chose not to give evidence, but called two witnesses in defence, Sandra Bird and Catherine Coulthard, both social workers.

Mr. Quesnelle was found guilty of sexual activity involving D.S., who at that time was a child between the age of five and ten. Counts four, five, and six on the indictment relate to this sexual activity. It is not necessary to repeat all of the findings of fact, which were set out in my verdict. However, they can be summarized as follows. D.S. was required to have a shower with Mr. Quesnelle on a regular basis, almost every weekend. While in the shower, D.S. was required to give Mr. Quesnelle oral sex. Mr. Quesnelle ejaculated on his face and in his mouth. D.S. did not recall being physically forced, but there were other acts of violence outside of the sexual activity, which formed the basis of other counts. D.S. gave evidence that he felt he was being bought when he went to McDonald’s with Mr. Quesnelle on many weekends. D.S. did not tell anyone about the sexual activity at the time, however, there was evidence that he did tell a social worker some years later, when he was about 13. Unfortunately, this report was not fully investigated.

COUNT ONE

Mr. Quesnelle was found guilty of assault on Count one. On a certain occasion, he picked up D.S. and threw him down in the driveway.

COUNT THREE

Mr. Quesnelle was found guilty of committing an assault with a weapon, that was Count three. While he and D.S. were in the backyard, Mr. Quesnelle was doing some target practice. He ordered D.S. to run and discharged a firearm over D.S.’ head when D.S. was about five years of age. There were no physical injuries.

CIRCUMSTANCES OF THE OFFENDER

Mr. Quesnelle is now 71 years of age and, according to a doctor’s letter and information provided by his current partner, suffers some health issues. He left school at age 15 and has had a good work record for over 25 years, until he had a stroke in 1994. His current income is a retirement pension. He is in a common-law relationship, which has lasted about 20 years. Before that, he had two marriages. He has two sons from his first marriage.

With respect to his character and attitude, the pre-sentence report indicates:

“The subject’s position on the current conviction absolved himself from any responsibility, while at the same time, he has placed blame on the victims while stating he believes S.S. pursued charges because she is after his financial assets.”

The author of the pre-sentence report indicated that Mr. Quesnelle was a willing participant during the interview, but he rejected any responsibility for the current offences. The author indicated in his assessment:

“The subject therefore, has not demonstrated any discernable victim empathy and during interview, tended to place blame on both S.S. and D.S. in stating he believed the present matters were fabricated by them for their own financial benefit.”

The author continued:

“Given the nature of the offences, there are notable risk concerns for both domestic violence and sexually deviant behaviour.”

VICTIM IMPACT STATEMENT

D.S. filed a victim impact statement. As he set out in his statement:

“You sexually molested me many years ago. I was a 5- to 10-year-old boy and you were my father figure.

You stole a piece of my soul and today, I’m here to reclaim it. What you did to me has affected all of the relationships I have had over the years. I could no longer trust a male.

What you did to me many years ago, caused me to contemplate suicide on three separate occasions.”

D.S. noted the financial impact on his life. He has been unable to hold down long-term employment. He relies on the Ontario Disability Support Program for income due to his mental problems, and takes medication for bipolar disorder and mood disorder.

In his evidence at trial, it was clear that D.S. has had a troubled life. By the time he was 18, he was an alcoholic, and he drank heavily until he was about 26. He also has a criminal record, and alcohol was usually involved in those offences. He told the court he turned his life around in 2009 when he became sober, earned a college diploma in addictions and community service, and started working part-time for the Salvation Army Men’s Mission.

CRIMINAL RECORD

Mr. Quesnelle has a criminal record for four offences. The record is now dated, but it was not dated at the time of these historic offences. The convictions relate to theft or possession of stolen property. The last entry was in September of 1982, for which he received a fine and probation of eighteen months.

POSITION OF CROWN AND DEFENCE

It is the Crown’s position that a fit sentence for Mr. Quesnelle is five years in the penitentiary. The defence position is that an appropriate sentence is a period of incarceration of three to four years. The maximum penalty for sexual assault is ten years. The maximum penalty for sexually touching a person under 14 was five years at the time of this offence. Similarly, the maximum penalty for sexually touching a child while in a position of trust was five years.

MITIGATING AND AGGRAVATING CIRCUMSTANCES

The defence submits that there are a number of mitigating circumstances here, including the following:

• Mr. Quesnelle is 71;

• He had a good work record until he retired in 1994;

• He has had the long-term support of his common-law partner;

• He has ties to the community;

• He has some health issues.

The Crown suggests that there are a number of aggravating circumstances which ought to be considered, including the following:

• Mr. Quesnelle has a criminal record for four convictions between 1963 and 1982;

• The age of the victim. D.S. was between five and ten years of age;

• The duration of the sexual activity. It took place almost every weekend over several years;

• The effect of this abuse on the victim. D.S. has had a troubled life;

• Mr. Quesnelle was in the role of step-father, and these events occurred in a location where this child should have been in a place of safety – his family home, while residing with his mother and sister;

• There is an absence of remorse on behalf of Mr. Quesnelle for the effect of his conduct on D.S..

BOOK OF AUTHORITIES

Both the Crown and defence provided a Book of Authorities with respect to guidance for offences involving sexual abuse of young children. There are a number of Court of Appeal decisions which provide guiding principles. The words of Moldaver, J.A. in R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061, para. 44, bear repeating:

“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, 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 would generally be appropriate.”

In D.D., the Court of Appeal upheld a sentence of eight years, involving an offender who had sexual relations with four young boys involving all manner of sexual activity, including anal intercourse.

The Court of Appeal reviewed these principles again in R. v. D.M. 2012 ONCA 520, [2012] O.J. No. 3616, Feldman, J.A. speaking for the court, summarized the relevant considerations and principles at para. 38 as follows:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

In D.M., the case I just referred to, the Court of Appeal imposed a global sentence of seven years in a case involving numerous acts of sexual intercourse, grooming, debilitating and degrading conduct, and threats of deportation, as well as a huge breach of trust and a complete lack of remorse. It is clear that the court of Appeal has distinguished sexual intercourse from other sexual acts, calling for a sentence in the upper single digit to double digit penitentiary terms if sexual intercourse with a child was involved.

In R. v. B.J.W., [2012] O.J. No. 1196, Superior Court Justice R.J. Smith imposed a sentence of four years imprisonment for an offender who directed a 9-year-old girl to perform fellatio on him while he was acting as a caregiver. Threats were involved. The offender had no prior record. In considering the range of sentence for a single act of fellatio, the court stated at para. 19:

“The defence submits that the Crown’s suggested range of three to five years is only appropriate where there has been full intercourse with an under aged child, which has not occurred. The Crown argues that fellatio is also a serious violation of the child’s integrity, in that being compelled to perform a sexual act which involves penetration of the mouth with his penis is the same as intercourse. I find the offender’s actions are not quite as aggravating as full intercourse, but they constitute a very serious violation of this young person’s integrity.”

The defence relied on the decision of Superior Court Justice R.C. Boswell in R. v. R.J., 2010 CanLII 88908 (ONCA). In R.J., Justice Boswell imposed a penitentiary term of four years. The offender was a step-father of a 9-year-old girl, who was abused over a two-year period. The abuse involved touching, mutual masturbation, fellatio and attempted intercourse. The offender was employed and had no criminal record. No victim impact statement was filed, although the court drew inferences about the impact on victims from Court of Appeal cases, including R. v. D.D. Justice Boswell noted the legal parameters, at para. 15:

“The Criminal Code provides a maximum sentence of ten years imprisonment for each of the three offences that R.J. has been convicted of. Although there is certainly overlap in the factual underpinnings of each conviction, I was not asked to consider a stay of any of the convictions pursuant to the principles expressed in R. v. Kienapple, 1 S.C.R. 7629. That said, the length of the global sentence I impose today would not have been different, even if one or two of the counts had been stayed.”

In determining the global sentence, Justice Bowell reviewed a number of cases brought to his attention, including several where guilty pleas were involved. In attempting to fashion a fit sentence, Justice Boswell noted at para. 39:

“It is a mugs game, in my view, to try to qualitatively assess or compare different types of sexual abuse. Any abuse, particularly when committed by a trusted person, that compromises the sexual integrity and trust of the young victim, is serious, devastating and has long-term implications for the victim.”

PRINICIPLES OF SENTENCING

Parliament has now codified many former common law sentencing principles in the Criminal Code of Canada. The fundamental purpose of sentencing, described in section 718 of the Code, is “to contribute along with crime prevention initiatives, to respect for the law and in maintenance of a just, peaceful and safe society by imposing just sanctions.” The Code sets out six objectives for sentencing judges to consider:

(i) to denounce unlawful conduct;

(ii) to deter the offender and others from committing offences;

(iii) to separate offenders from society where necessary;

(iv) to assist in the rehabilitation of offenders;

(v) to provide reparations for harm done to victims or to the community; and

(vi) to promote a sense of responsibility in offenders and acknowledge the harm done to victims and the community.

CONCLUSION

It is clear that denunciation and deterrence take priority over other sentencing principles when the sexual abuse of young children is involved. Mr. Quesnelle was in a position of trust or authority over D.S. for a five-year period, when D.S. was 5 to 10 years of age. He was his step-father. He abused his position of trust and committed numerous sexual assaults over a prolonged period of time. These sexual assaults consisted of repeated acts of fellatio while he was showering with D.S. on weekends. Although there may have been an attempt at anal intercourse, there was no sexual intercourse. However, in my view, that does not diminish the seriousness of these offences. Mr. Quesnelle ejaculated in the mouth and on the face of D.S. on numerous occasions. These are acts of sexual degradation for his own pleasure, which had a profound and life-altering effect on the victim. Mr. Quesnelle has a criminal record, although for unrelated offences, and has shown no remorse or insight into the harm done to the victim. The harm done to D.S. as a young child has been borne out by his life events.

Mr. Quesnelle, please stand. As requested by the Crown and on consent, I impose the following ancillary orders:

(i) There will be a DNA order;

(ii) There will be a weapons prohibition order under s. 109 of the Criminal Code of Canada for ten years;

(iii) There will be an order under s. 161(a)(b) and (c) of the Criminal Code of Canada for ten years; and

(iv) There will be a SOIRA order.

In addition, there will be a no contact order with D.S., S.S. or L.S. during your period of incarceration.

With respect to Count five, sexual assault, I impose a sentence of five years. With respect to Count four, sexual touching, contrary to s. 151, I impose a sentence of one year, concurrent. With respect to Count six, sexual touching while in a position of trust, I impose a sentence of one year, concurrent. With respect to Count one, assault, I impose a sentence of 30 days, concurrent. With respect to Count three, assault with a weapon, I impose a sentence of six months, concurrent.

Therefore, the global sentence which I impose is five years in the penitentiary. Good luck to you Mr. Quesnelle.

Counsel, I will adjourn briefly so that the registrar can prepare the necessary ancillary orders. Are there any comments?

MS. WANNAMAKER: Just with respect to the ancillary orders, Your Honour. I may have been in error on my submissions to the court on the last occasion and since that time, it has been brought to my attention on a couple of other cases that, with respect to Your Honour entering convictions on more than one count that is eligible for a S.O.I.R.A. order, that the order should then be imposed for life pursuant to 490. I think I was in error in asking the court to consider that for 20 years. I think it’s a mandatory life order given Your Honour’s position of more than one.

THE COURT: All right, any comments on that Mr. Burgis? I just said there would be a S.O.I.R.A. order. I did not state the time, but it sounds like the Crown’s submission is for life and sounds appropriate based on her submissions.

MR. BURGIS: Yes ....

THE COURT: All right, so the order will be for life. The weapons order was for ten years, that is what I said.

MS. WANNAMAKER: That is certainly at the court’s discretion as opposed to the S.O.I.R.A. and the 161 order Your Honour, the length of that order?

THE COURT: Ten years.

MS. WANNAMAKER: Thank you Your Honour.

THE COURT: All right, so I will let Madam Registrar prepare those orders and I will sign them in chambers or back in court if there are any other submissions that we have to discuss.

... WHEREUPON THESE PROCEEDINGS WERE CONCLUDED.