COURT FILE NO.: CR-11-5008
DATE: 2014/07/03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
Michael Grant Slater
Defendant
Lisa Miles and Sarah Fountain, for the Crown
Jill Copeland for the Defendant
HEARD: June 10 and 24, 2014 (Ottawa)
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the complainant J.R. and the witnesses E.G., E.J. and K.Br. may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION ON SENTENCING
PARFETT J.
[1] The Accused, Michael Grant Slater, was found guilty after a jury trial of one count of indecent assault, three counts of gross indecency, and one count of buggery. All the offences are historical in nature.
Circumstances of the offences
[2] The offences relate to two separate victims and are separated by a considerable period of time. They date back to 1968 to 1970 in relation to K.B. and 1983 and 1984 in relation to J.R.
[3] K.B. is presently 58 years old and he was a student in Mr. Slater’s grade seven and eight classes. Mr. K.B. told the court that Mr. Slater asked him to stay after class one day, and closed the classroom door. Mr. Slater led him over to a corner of the classroom and took out his penis and asked Mr. K.B. to masturbate him. Mr. K.B. refused so Mr. Slater masturbated himself and used a brown paper towel to clean himself afterwards. Mr. K.B. testified that Mr. Slater said not to tell anybody because if he did, his father would lose his job and they would have to move off the military base where they lived, and in any event no one would believe him. According to Mr. K.B. there were two further similar incidents in the classroom.
[4] On another occasion, Mr. Slater drove by Mr. K.B. when he was outside on the base and invited him into his car. According to Mr. K.B., Mr. Slater took him to a house that Mr. Slater said was his wife’s parents’ house. At the house, Mr. Slater gave him some alcohol to drink, and then Mr. Slater then took him to the bedroom. Mr. K.B. testified that Mr. Slater undid his pants and performed oral sex on him. Mr. Slater then briefly inserted his penis in Mr. K.B.’s rectum. Mr. Slater stopped when Mr. K.B. indicated that it hurt.
[5] Mr. K.B. indicated that there was at least one more incident of a similar nature at this house. The only difference between the second incident and the first was that he did not recall engaging in fellatio.
[6] The second victim is J.R. He indicated that Mr. Slater was his teacher for grades seven and eight. Not long after a conversation with Mr. Slater involving the subject of masturbation, Mr. R. was invited to Mr. Slater’s house to watch a hockey game. He testified that he and Mr. Slater went into the basement initially but then went into a bedroom. While they were in the bedroom, they engaged in masturbation and fellatio.
[7] Sometime later, Mr. R. indicated that he was again invited by Mr. Slater to come over to the house to watch a hockey game. Once again he and Mr. Slater went down to the basement to watch hockey. Mr. Slater gave him a beer to drink. Mr. R. indicated that after drinking the beer he was not drunk, but was certainly feeling the effects. He and Mr. Slater engaged in anal intercourse, but Mr. R. told Mr. Slater that it hurt so he stopped.
Circumstances of the Offender
[8] Michael Slater is 74 years old. He grew up in Renfrew, Ontario. He is the second oldest of six siblings. While growing up, he played a lot of hockey and ultimately attended St Lawrence College on a hockey scholarship. However, he did not complete his degree. Subsequently, he attended Ottawa Teachers’ College in 1965 and in 1976 he obtained a Bachelor’s degree from the University of Ottawa. He worked as a teacher in Ottawa, originally at the primary school at Elizabeth Park School on the Uplands military base and later at the intermediate school. He is now retired and lives in Renfrew.
[9] He is divorced and has three daughters and six grandchildren.
[10] Mr. Slater was very involved in his community. He was a member of the Knights of Columbus, he coached hockey and he ran the Ottawa District Minor Hockey League B division for twenty years. As a result of his significant contribution to the community, he has received a number of community service awards. Defence filed numerous letters of support from members of the community who stated emphatically that Mr. Slater has been a good friend, father, husband, hockey coach and teacher throughout his life.
[11] Dr. Federoff of the Royal Ottawa Hospital conducted a sexual behaviour assessment and prepared a report. He assessed Mr. Slater’s risk of reoffending as less than 5% in the next five years. Defence counsel indicated that in her view that finding accords with the evidence that the last offence committed by Mr. Slater was 30 years ago and the last indication of any sexual misconduct was 20 years ago.
[12] Dr. Federoff noted in his report that Mr. Slater is unlikely to receive treatment in either a Federal or Provincial institution because he is a low risk offender. In addition, as Mr. Slater is not prepared to take responsibility for the offences many programs will not accept him. On the other hand, Dr. Federoff indicated that Mr. Slater is eligible to attend an outpatient program at the Royal Ottawa Hospital despite the fact that he denies commission of the offences.
[13] Finally, Mr. Slater suffers from a number of chronic medical conditions reflective of his age.
Preliminary Issues
[14] There are two preliminary issues to consider at this sentencing hearing. First, Crown seeks to have evidence of other discreditable conduct admitted on this sentence. Secondly, Defence seeks a conditional sentence for Mr. Slater despite the fact that such a sentence was not available when the offences were committed and is also not available presently.
- Extrinsic evidence of Other Discreditable Conduct
[15] There was a pre-trial motion at which the Crown sought to have admitted as similar fact evidence the evidence of three other students who were sexually propositioned by Mr. Slater. That application was refused. The Crown now seeks to have that evidence admitted at this sentencing hearing.
[16] Section 725 of the Criminal Code of Canada[^1] sets out circumstances whereby the court can consider evidence of outstanding charges or alternatively consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge. None of the conditions precedent set out in s. 725 apply in this case. However, this section underlines the fact that evidence relevant to sentencing is not presumptively inadmissible merely because it involves other discreditable conduct for which the offender has not been convicted.
[17] There are two principles that are at play when determining whether to admit evidence of discreditable conduct. On the one hand, an offender cannot be punished for unproven acts. Doing so would violate the presumption of innocence and the principle of proportionality. On the other hand, at a sentencing hearing the court requires as much information as possible about the offender’s character and background in order to craft the appropriate sentence.[^2]
[18] The issue of the admissibility of extrinsic evidence has been addressed in several cases. In R. v. Edwards,[^3] the court determined that there may be admissible evidence that relates to the sentencing objectives, but for which the offender has never been charged or convicted. The Court stated that knowledge of the offender’s character and background are essential for several of the sentencing objectives, including rehabilitation and separation of offenders from society where necessary.[^4] In R. v. Lees, the Supreme Court of Canada indicated that evidence of an uncharged offence was properly admissible during sentencing on the issue of the accused’s character, conduct and attitude.[^5]
[19] In R. v. Roud and Roud the Ontario Court of Appeal noted:
[I]n such a case as this one on the issue of sentence, where the question of individual deterrence and rehabilitation of the convicted man are central issues along with the question of the protection of the public, it seems logical that such [extrinsic] evidence must be dealt with, for the background and character of the accused man are necessary information for the sentencing Court. (...)
In my respectful view, the evidence [admitted by the trial judge on sentencing] was relevant and admissible and I do not think the learned trial Judge erred in the use he made of it. He did not, as he must not do, punish the appellant for past acts, but on the other hand I think he properly sought to understand the appellant in determining the quantum of sentence appropriate for the offence of which he had been convicted by the jury.[^6]
[20] It is clear from the case law that the admissibility of the evidence will depend very much on the purpose for which admission is sought.[^7] In addition, the court will have to consider whether the probative value of the extrinsic evidence outweighs its prejudicial effect.
[21] Unless the evidence is admitted on consent, if it constitutes an aggravating factor (as it would in this case), then pursuant to the principle set out in s. 724(3)(e) of the Criminal Code, the evidence must be proven beyond a reasonable doubt.
[22] As noted earlier, the critical element with respect to this type of evidence is that the court must not sentence the offender for the conduct that forms the basis of the extrinsic evidence. It can only be considered for the purpose of determining the appropriate sentence for the offence for which the offender has been actually convicted.[^8]
[23] In R. v. Angelillo, the Supreme Court of Canada considered the use which could be made of extrinsic evidence at a sentencing hearing. In that case, the proposed evidence was offences for which the accused had been charged, but not convicted. In that case, the Court found that the extrinsic evidence was relevant to the issues of whether Mr. Angelillo represented a danger to the community and to his character.[^9]
[24] The evidence that the Crown proposes to lead on this sentencing hearing involves three other former students of Mr. Slater.
[25] The first of those students chronologically speaking is E.G. He was a student in Mr. Slater’s class in 1977-78. When E.G. was thirteen years old, he went on a school camping trip. Mr. Slater was one of the teacher/chaperones. On the second night of the trip, E.G. went into his cabin and Mr. Slater was in the teacher’s room. Mr. Slater asked him to come into the room and ‘jerk him off’, which E.G. understood to be a request for masturbation. E.G. testified that he never went into Mr. Slater’s room; he simply left the cabin. Mr. Slater never again made a similar request.
[26] The next former student is E.J. E.J. lived on CFB Uplands airbase from 1974-81 and Mr. Slater was his teacher in grade eight at Elizabeth Park Intermediate School in 1979-80 when he was 13 years old. E.J. stated that it was fairly common for students to visit at Mr. Slater’s home. There would be a number of students; and they would watch hockey on Saturday night or just hang around. There was alcohol involved although E.J. cannot recall how they obtained the alcohol. Mr. Slater also drank when they were with him.
[27] On one occasion, when E.J. was over at Mr. Slater’s home, Mr. Slater asked him if he wanted to ‘suck him off’, which he understood to be a request for fellatio. He refused and that was the end of the matter. Mr. Slater never discussed the incident with him and never repeated the request.
[28] The final former student is K.Br. He is 33 years old and was a student of Mr. Slater’s at Elizabeth Park Intermediate School from 1993-95. Mr. Slater would have a few boys over at his apartment on Monday nights to watch hockey. Sometimes he gave them pizza and beer. On one occasion, Mr. Slater invited K.Br. over to watch the hockey game and told him, ‘Sometimes when I drink I get a little gay.’ K.Br. laughed off the remark and nonetheless went over to Mr. Slater’s apartment. Mr. Slater gave him some wine to drink. Shortly after, Mr. Slater asked if K.Br. would ‘jerk him off’, which K.Br understood to be a request for masturbation. K.Br. refused and instead Slater asked if he could masturbate K.Br. Again K.Br. refused and he left the apartment not long afterwards. They never spoke about the incident again.
[29] Crown contends that this evidence is primarily relevant to Mr. Slater’s character. She argues that Mr. Slater has squarely put his character in issue in this hearing with the large number of letters of support that has been filed. As noted by Defence counsel, those letters make it clear that Mr. Slater is someone who helps out with others who are in need and that that is part of his character. In these circumstances, Crown states that there needs to be a counterbalance lest the court be misled into thinking that the offences were isolated incidents in an otherwise blameless life. In the Angelillo case, the Court specifically alludes to that issue and states that such facts are relevant and “admissible in principle because they relate to the sentencing objectives and principles that are expressly set out in the Criminal Code.”[^10]
[30] Defence contends that the letters of support are relevant to the length of sentence and the location where sentence is to be served – in the community or not – but according to Defence counsel, the extrinsic evidence does not impact on either of these factors. In addition, Defence points to Exhibit #4 – a letter from Dr. Federoff in which he indicates that the extrinsic evidence does not change his assessment of Mr. Slater’s risk to reoffend. I disagree. The proposed extrinsic evidence is directly relevant to the issue of Mr. Slater’s character and his character is relevant to the issues of determination of a fit sentence and whether the sentence should be served in the community. On the other hand, I do agree with Defence counsel that the extrinsic evidence cannot be used to turn this case from a two victim case to a five victim case. I have no intention of using the extrinsic evidence in this fashion.
[31] The extrinsic evidence in this case was never led at trial, constitutes an aggravating factor and must be proven beyond a reasonable doubt. Crown counsel indicated that all three of these former students testified on the pre-trial motion and were cross-examined by Defence counsel. Consequently, the court can make findings of credibility and determine whether it is satisfied beyond a reasonable doubt that the incidents as outlined by these witnesses actually occurred. Defence does not oppose this procedure.
[32] A review of my notes of the examination and cross-examination of these witnesses indicates that the credibility and reliability of these witnesses was never seriously challenged. Consequently, in my view, Crown counsel has established beyond a reasonable doubt that these incidents occurred.
[33] Before admitting the evidence, however, there are a number of factors that the court ought to consider before admitting such evidence:
• whether there is a nexus between the extrinsic evidence and the offence for which the offender is being sentenced;
• the similarity between the evidence and the offence;
• the difficulty the offender may encounter in defending against the proposed evidence;
• the risk that the sentencing hearing may be unduly prolonged;
• the risk that the focus of the hearing may be shifted away the primary purpose of determining a fit sentence;
• whether the offender has adduced evidence of good character; and
• the cogency of the proposed evidence.[^11]
[34] With respect to the first two factors and the last factor, I note that in my ruling rejecting this evidence for use at trial, I nonetheless observed that there were significant similarities between the evidence of the former students and the evidence of the two victims despite the evident differences. Therefore, there is both a sufficient nexus between the extrinsic evidence and the evidence of the offences as well as sufficient similarities for this evidence to be relevant and admissible. The other factors do not come into play in this hearing.
[35] In addition, I find that these incidents are probative of Mr. Slater’s character. The extrinsic evidence and the letters of support together serve to provide a full context in which to assess Mr. Slater’s character. Taken as a whole, this evidence indicates that Mr. Slater was a valuable member of the community who had a darker side that many people never saw. This evidence is clearly relevant to the following specific issues: whether a conditional sentence is appropriate, what is a fit sentence given this offender’s background and character, and what terms should be contained in a probation order if one is imposed. Consequently, I will admit the extrinsic evidence for these limited purposes.
- Availability of a Conditional Sentence
[36] At the time of the commission of these offences, the maximum sentence for gross indecency was five years, for indecent assault it was ten years and for buggery it was fourteen years. Conditional sentences were available for sexual offences between 1996 and 2007 when s. 742.1 of the Criminal Code was amended to exclude the availability of a conditional sentence for any offence that is a ‘serious personal injury offence’ as defined in s. 752 of the Code. The offences of gross indecency, indecent assault and buggery meet the definition of a serious personal injury offence. Mr. Slater was charged with these offences in 2010 and convicted in 2014. The issue is: in these circumstances, is a conditional sentence nonetheless available?
[37] Section 11(i) of the Canadian Charter of Rights and Freedoms states that any person charged with an offence has the right:
… if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
[38] The only case that has dealt specifically with this issue is R. v. Mehanmal.[^12] In that case, the trial judge decided that a conditional sentence was available. He stated,
After considering the various case law and the issue fully I am satisfied that by virtue of the operation of s. 11(i) of the Charter a conditional sentence is a disposition available for consideration in this matter.
Section 11(i) in my view is to be interpreted liberally and speaks to not only the periods of time at the commission of the offence and at the time of sentencing, but also speaks to the period in between. The section itself talks of the variation of punishment ‘between’ those two timeframes.
“Lesser punishment” would include a consideration of a conditional sentence. The interpretation I would give to s. 11(i) of the Charter is that an accused is entitled to the benefit of effectively the “lesser punishment” since the time of the commission of the offence.[^13]
[39] In my view, I first need to determine whether a conditional sentence is appropriate in the circumstances of this case. If it is not, there is no need to go further.
[40] The Crown asserts that a conditional jail sentence would be inappropriate. In my view, the comments of the Ontario Court of Appeal in R. v. G.C.F.[^14] are relevant to this issue. In that case, the court noted that:
The position of this court with respect to the suitability of conditional sentences in cases that involve sexual assault of children is clear. It was repeated recently by this court in R. v. L.(G.) (2003), 2003 CanLII 57437 (ON CA), 175 C.C.C. (3d) 564 at para. 7:
This court has repeatedly stressed both the serious nature of sexual abuse against children and the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind. See R. v. Palmer (1985), 7 O.A. C. 348 (C.A.) and R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 at 797 (C.A.). In R. v. D.R., an unreported decision, released February 24, 2003, this court said at para. 8:
This court has repeatedly indicated that a conditional sentence should rarely be imposed in cases involving the sexual touching of children by adults, particularly where, as here, the sexual violation is of a vulnerable victim by a person in a position of trust. In addition, circumstances that involve multiple sexual acts over an extended period of time and escalating in intrusiveness generally warrant a severe sentence.[^15]
[41] In this case, the Crown argues that there are no exceptional circumstances that would justify the imposition of a conditional jail sentence.
[42] On the other hand, Defence argues that this is an exceptional case given Mr. Slater’s age, his lack of previous criminal record, his low risk to reoffend and his excellent record of service to the community. I disagree. Mr. Slater’s age and his lack of criminal record are factors that would suggest that he is not a danger to the community. However, the fact that he is a low risk to reoffend is offset by the fact that he has taken no responsibility for this offence and has shown no remorse. As noted earlier, Mr. Slater’s good reputation in the community is tempered by the fact that the community was unaware that he had another side to his character and that some adolescent boys had a very different experience with him.
[43] All of the aggravating factors in this case, in particular the breach of trust, argue against a conditional sentence. Moreover, the number of victims as well as the existence of other inappropriate behaviour with students suggests that the offences were not isolated incidents; instead sexual misconduct with adolescent boys was part of a specific behavioural pattern.
[44] Consequently, I find that this case is not that rare case where a conditional sentence – assuming one is even available in this case – would be appropriate.
Victim Impact Statements
[45] Both victims filed victim impact statements. These statements describe the emotional impact of the sexual abuse. K.B. stated, “I cannot find words to describe how ashamed I was. I hated myself for what had happened and I had nowhere to turn for help. I knew I would be labeled a queer.” Mr. K.B. is recounting the impact of this particular type of abuse in the late 1960’s and early 1970’s. He goes on to say, “I became suicidal and over the years I attempted suicide a total of three times. I could not deal with the nightmares and became deeply depressed.”
[46] J.R. also spoke about the emotional effect of the sexual abuse. He noted, “I have had to deal with a fair bit of guilt and shame. For the longest time I thought it was my fault and that I was to blame for Mr. Slater’s actions.” In addition, he stated, “I was fearful of bringing accusations against my former teacher knowing his popularity and I was also concerned about being called gay.” Mr. R. also spoke of the fear that disclosure would have a negative impact on his family, how the abuse affected his ability to deal with his sexuality and the fact that the abuse drove him to abuse alcohol. Mr. R.’s last comment is perhaps the saddest. He is himself a teacher and he says, “I have had to entertain fear over the years that I might repeat what happened to me with a young person. (…) [T]hat was a consistent worry for me in my early years of teaching.”
Positions of Counsel
[47] Defence counsel suggests that the appropriate range of sentence is upper reformatory to minimum penitentiary and she is seeking a sentence of two years less one day to be served in the community, followed by a period of probation. She argues that this sentence is consistent with the case law for similar offences and takes into consideration all the aggravating and mitigating circumstances.
[48] Defence argues that the case law that she has provided contains factors common to this case:
• there are two victims;
• apart from the sexual offences there is no additional violence;
• there was a trial and the offender continues to deny the conduct;
• the offences were committed within a trust relationship;
• there was a relatively short time frame for the abuse in relation to a given victim;
• there is a low current risk to reoffend; and
• the offender is otherwise a productive member of society.
[49] Moreover, Defence counsel argues such a sentence will permit Mr. Slater to obtain treatment that he will not be able to obtain if he is incarcerated regardless of whether it is in a Provincial or a Federal institution.
[50] Crown counsel suggests that the appropriate sentence, pursuant to the decision in R. v. D.D.[^16] is six to eight years. She emphasizes the inherent violence in this type of offence,[^17] the existence of penetration, and the number of victims and incidents. Furthermore, she underlines the absence of remorse or acceptance of responsibility as factors that militate against a sentence at the low end of the range. Crown counsel contends that this range addresses the need for denunciation of these crimes that went undetected for decades.
Principles of Sentencing
[51] The offences for which Mr. Slater has been convicted are very serious offences. The maximum sentence for gross indecency is five years, for indecent assault it is ten years and for buggery it is fourteen years.
[52] Section 718 of the Criminal Code of Canada sets out the governing principles of sentencing. That section states:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(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 acknowledgement of the harm done to victims and to the community.
[53] In a case involving child sexual abuse, the primary sentencing principles are denunciation and deterrence. Denunciation in the circumstances of this case reflects society’s view that sexual encounters between adults and children are fundamentally wrong. In R. v. L.F.W.,[^18] the Supreme Court of Canada noted specifically that the principle of denunciation weighs particularly heavily in cases of offences perpetrated against children by adults in positions of trust.
[54] There are two aspects to the principle of deterrence; they are general deterrence and specific deterrence. Specific deterrence relates to the offender himself and aims to deter that offender from re‑offending. General deterrence relates to the belief that an appropriate sentence will have the effect of deterring other members of the public from committing similar offences. In this case, general deterrence rather than specific deterrence is primarily applicable.
[55] Three other sentencing principles set out in the Criminal Code have a significant impact on this sentencing hearing. Section 718.1 states:
A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[56] In addition, s. 718.2(d) points out that, ‘an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.’
[57] Finally, s. 718.2(b) states that ‘a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.’ This section is a codification of the common law principle of parity. Many of the cases submitted by Defence counsel reflect sentences that have been imposed in similar circumstances to this matter.
[58] As noted by the Crown in her submissions, sentences for sexual abuse of children have evolved over time as the courts and the public have become more aware of the serious impact that this type of abuse has on children.[^19] In the seminal case of R. v. D.D., the Court of Appeal stated:
Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code, 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.
We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.[^20]
[59] I agree with Defence counsel that while denunciation and deterrence are the primary sentencing principles, they are not the only relevant sentencing principles. Rehabilitation is a factor for the court to consider. However, in this case, Mr. Slater takes the position that the offences never occurred. In addition, Dr. Federoff’s report indicates that given Mr. Slater’s age, he is now at a low risk to reoffend. In those circumstances, I find that rehabilitation plays only a very limited role in this sentencing.
Mitigating and Aggravating Factors
[60] In this case, there are a number of statutory aggravating factors. Section 718.2 of the Criminal Code provides that certain circumstances must be considered as aggravating factors. Those circumstances include ‘evidence that the offender, in committing the offence, abused a person under the age of eighteen years’ and ‘evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim.’ Both those circumstances exist in this case.
[61] In addition, there are other aggravating factors:
• There are two victims;
• The abuse consisted, in each case, of more than a single incident;
• There was penetration of the victims in both cases. This factor is mitigated to a small degree by the fact that Mr. Slater did not persist after the victims indicated that he was hurting them;
• The age of the victims – they were between 13 & 14 years old and were just developing their sexuality;
• The difference between the ages of the victims and Mr. Slater’s age. He was in his late 20’s at the time of the offences with respect to Mr. K.B. and in his early 40’s at the time of the offences in relation to Mr. R.; and
• The use of a threat to keep one of the victims quiet.
[62] In addition, as noted by Crown, these offences were planned. The victims were taken to houses or kept after school and Mr. Slater had to know that those locations were available to him when he took the victims there. The choices of location – whether an empty home or a classroom after school – isolated the victims.
[63] There are also a number of mitigating factors to be considered:
• Age – Mr. Slater is now 74 years of age;[^21] I agree with Crown counsel that this factor is tempered to some degree by the fact that because the crimes remained undetected for so long, Mr. Slater was able to enjoy his excellent reputation in the community. Had the crimes been disclosed earlier, he would not have had his long and illustrious career as a teacher or hockey coach.
• He has no criminal record.
• Mr. Slater is at a low risk to reoffend.[^22]
• Mr. Slater has been a productive member of the community.[^23] The letters of support speak strongly to this factor. However, in my view, this factor has to be regarded with some caution. These types of offences often involve persons with excellent community reputations. It is precisely this fact that can permit the conduct to go undisclosed for such a long period of time.[^24] As noted repeatedly in this case, Mr. Slater was a popular teacher and a respected member of the community. The victims have pointed out that these facts made it difficult for them to disclose the sexual abuse.
[64] In addition to the above mitigating factors there is also the length of time since the offences occurred. This is a factor that is sometimes treated as mitigating[^25] and sometimes is not depending on other circumstances.[^26] I agree with the observations made in R. v. Ludlow, where the judge stated that:
… all historical cases involve a long gap of apparent non-criminal activity that could be viewed as a positive character change or a turning around of one’s life. Again that is not exceptional. Offenders in historical cases all stopped their abuse at some point well before arrest. They either did so because the opportunity to commit the offences ceased or by their own exercise of restraint stemming from whatever motivation.[^27]
[65] In this case it is apparent that Mr. Slater’s hunting ground was his classroom. Mr. Slater was also a hockey coach and active in other community organizations where he would have had contact with adolescent boys. However, there is a complete absence of evidence that anything inappropriate occurred with those boys. Mr. Slater has been retired since 1996 and the last evidence of inappropriate behaviour with a student occurred between 1993 and 1995. It is unlikely that the timing is coincidental. The other issue with respect to the treatment of the length of time since the offences occurred is whether there has been an acceptance of responsibility. If there has not, then this factor is not mitigating.[^28]
[66] In addition, there are three other factors that while not aggravating speak against mitigation: (1) one of the complainants was required to testify twice, once at the preliminary hearing and once at trial, (2) Mr. Slater has accepted no responsibility for these offences and (3) he has expressed no remorse.
[67] Defence urges me to take into consideration as a mitigating factor, the time that Mr. Slater has spent on strict bail conditions. She notes that while Mr. Slater was not on house arrest, he took his conditions very seriously and they have therefore had a significant impact on the quality of his life during the course of the last 14 months.
[68] Specifically, Defence counsel noted the following – that there were four conditions that were very restrictive and were so limiting that they amounted to house arrest. Two of those four conditions were particularly limiting. One condition stated that Mr. Slater was not to be in the presence of children 17 years old or younger unless one of their parents was present at all times and the other stated that he was not to attend any shopping malls, stores or church services unless accompanied by his surety or his surety’s wife. Both these conditions severely restricted where Mr. Slater could go and therefore significantly limited his ability to go out in the community.
[69] According to Defence, Mr. Slater would normally shop two to three times per week in the local stores to get fresh produce. However, because he could not go out without his sureties, he could only go out once per week. Mr. Slater does not have a washer or dryer in his home, so he would normally go to a laundromat that was beside a corner store where there were always children. Given the restriction of his contact with children, Mr. Slater chose instead to do laundry at his brother’s home, and when that was inconvenient, he did his laundry by hand at home.
[70] In addition, Mr. Slater would normally attend mass daily during the week. He could not do that because neither of his sureties could attend church during the week. Instead, the local priest came to his house once a month. Finally, Mr. Slater would also golf a couple of times a week, but could not do that because of the possibility of teenagers being present.
[71] Crown counsel argued that Mr. Slater chose to interpret his conditions in such a way as to make the conditions much more onerous than necessary. Moreover, Crown counsel stated that if the effect of his conditions was so limiting then that fact should have been raised with his counsel and the Crown either to clarify those conditions or to alter them. Crown counsel contends that it is not appropriate to claim credit now when Mr. Slater did nothing to alleviate his situation at the time.
[72] It is accepted law that time spent on stringent bail conditions is a mitigating circumstance and will impact on the determination of an appropriate length of sentence. It does not serve – as pre-sentence custody does – to affect the duration of the sentence.[^29] Instead, it is to be taken into consideration at the ‘front end’ – the determination of a fit sentence. The degree to which bail conditions will impact on sentence, if they impact it at all, depends on the stringency of those conditions. House arrest, in particular, is the situation that is most likely to be considered a mitigating factor, but it is not the only bail condition that may be considered. However, for bail conditions to be considered as a mitigating factor they must result in a situation that has significant ‘custodial and penal attributes’.[^30]
[73] In this case, I agree with Crown counsel that some of the consequences of Mr. Slater’s bail conditions were self-imposed. For instance, he chose not to play golf because teenagers might be present. There is no evidence that teenagers actually were present at the golf course at the times that he chose to play. In other instances, the frequency with which Mr. Slater could go about in the community was reduced, but not eliminated. In addition, his lifestyle was altered, but not dramatically. In short, I do not find that Mr. Slater’s bail conditions created the kind of harsh conditions that would impel me to consider them as a mitigating factor.
[74] What must still be determined is the appropriate length of the custodial sentence. In my view, Crown counsel’s suggestion of six to eight years is too high. I am in agreement with Defence counsel that the appropriate range for this case is upper reformatory to minimum penitentiary. In the particular circumstances of this case, taking into consideration all the various factors that have been discussed at length above, I find that a fit sentence is three years’ jail.
Ancillary orders
[75] There will also be the following ancillary orders:
• s. 109 weapons prohibition for 15 years;
• DNA order;
• s. 161 order (clauses a, b & c) for 20 years; and
• a S.O.I.R.A. order for life.
Madam Justice Julianne A. Parfett
Released: July 3, 2014
COURT FILE NO.: CR-11-5008
DATE: 2014/07/03
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Michael Grant Slater
Defendant
REASONS FOR DECISION ON SENTENCING
Parfett J.
Released: July 3, 2014
[^1]: R.S.C. 1985, c. C-46. [^2]: R. v. Roberts, 2006 ABCA 113 at para. 19. [^3]: (2001), 2001 CanLII 24105 (ON CA), 54 O.R. (3d) 737 (O.C.A.) [^4]: Ibid. at para. 44. [^5]: 1979 CanLII 43 (SCC), [1979] 2 S.C.R. 749 at 754. [^6]: (1981), 1981 CanLII 3231 (ON CA), 58 C.C.C. (2d) 226 at p. 242 (O.C.A.). [^7]: R. v. Angelillo, 2006 SCC 55, [2006] S.C.J. No. 55 at para. 27. [^8]: Ibid., at para. 32. [^9]: Ibid., at paras. 36-37. [^10]: Ibid., at paras. 29- 30. [^11]: Edwards, supra. Note 3 at para. 64. [^12]: 2012 ONCJ 681. [^13]: Ibid., at paras. 74-76. [^14]: (2004), O.R. (3d) 771. [^15]: At para. 13. [^16]: 2002 CanLII 44915 (ON CA), [2002] O. J. No. 1061 (C.A.). [^17]: R. v. Stuckless (1998), 1998 CanLII 7143 (ON CA), 41 O.R. (3d) 103 (C.A.) at paras. 43-44. [^18]: 2000 SCC 6, [2000] 1 S.C.R. 132. [^19]: R. v. D.M., [2012] ONCA 520 at para. 25. [^20]: D.D, supra. Note 16 at paras. 34-36. [^21]: R. v. McNamara et al. (No. 2), 1981 CanLII 3389 (ON CA), [1981] O. J. No. 3260 (C.A.) at para. 8; R. v. MacNaughton, [1997] O.J. No. 4102 (C.A.). [^22]: R. v. Thompson, 2010 ONCJ 399 at para. 24; R. v. A.G. (2004), 2004 CanLII 36065 (ON CA), 190 C.C.C. (3d) 508 (Ont. C.A.) at para. 29 [^23]: D.M., supra. Note 19 at para. 17; MacNaughton, supra. Note 21; Thompson, supra. Note 22. [^24]: R. v. Scidmore (1996) 1996 CanLII 617 (ON CA), 103 O.A.C. 235 at para. 7 (Abella JJ.A. dissenting). See also R. v. R.B. 2005 CanLII 30693 (ON CA), [2005] O.J. No. 3575 (C.A.) at para. 27. [^25]: See R. v. A.G., supra. Note 22 at para. 29; R. v. Wood, [1999] O.J. No. 1520 (C.A.), [^26]: R. v. Ludlow, 2007 ONCJ 60; R. v. Brown, [2006] O.J. No. 5276 at para. 14 (C.A.); R. v. R.T.M., 2008 ONCA 47 at para. 4. [^27]: Ludlow, supra. Note 26 at para. 19. [^28]: R. v. W.W.M., 2006 CanLII 3262 (ON CA), [2006] O.J. No. 440 at para. 19; Brown, supra. Note 17. [^29]: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 at para. 33. See also R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742 at paras. 21 & 29 and R. v. Johnson, 2011 ONCJ 77, 268 C.C.C. (3d) 423 at para. 43. [^30]: R. v. Irvine, 2008 MBCA 34, 231 C.C.C. (3d) 69 at para. 30.