SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
R.S.
D E C I S I O N O N A P P L I C A T I O N
BEFORE THE HONOURABLE JUSTICE R.D. CORNELL,
on July 16, 2014 at SUDBURY, Ontario
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER OF JUSTICE R. D. CORNELL, SUPERIOR COURT OF JUSTICE, DATED JULY 16, 2014
APPEARANCES:
N. Williams Counsel for R.S.
J. Lefebvre Counsel for the Crown
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Exam. Cr. Re.
WITNESSES: in-Ch. exam. exam. n/a
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
n/a
Transcript Ordered: July 22, 2014
Transcript Completed: December 12, 2014
Ordering Party Notified: December 12, 2014
WEDNESDAY JULY 16, 2014
D E C I S I O N O N A P P L I C A T I O N
CORNELL, J: (Orally)
This is an application by the Crown to have R.S. declared a dangerous offender pursuant to s. 753 of the Criminal Code of Canada, following his guilty plea to two counts of sexual assault, two counts of sexual touching and a breach of a s. 161 order.
The Crown alleges that R.S.’s prior convictions for sexually assaulting four minors, his conduct subsequent to his incarceration for such offences, as well as the facts and circumstances surrounding the predicate offences are such that R.S. meets the definition of a dangerous offender within the meaning of s. 753 of the Code.
Following the conclusion of the evidence, counsel for R.S. acknowledged that R.S. met the criteria to be designated as a dangerous offender. The Crown indicated that it was seeking an eight year jail sentence followed by a 10 year long-term supervision order. Counsel for R.S. suggested that a determinate sentence of six years should be imposed followed by a 10 year long-term supervision order. If an indeterminate sentence is not the appropriate disposition, the sole remaining issue to be determined is the length of the custodial sentence.
For the reasons that follow, I find that R.S. is a dangerous offender who shall be subject to an indeterminate sentence.
Factual Background:
On September 23, 2011, R.S. pled guilty to touching his 11 year old daughter, S.S., for a sexual purpose and committing a sexual assault upon her.
He also pled guilty to touching his 12 year old son, N.S., for a sexual purpose and to committing a sexual assault upon him.
At the time of these offences, R.S. was bound by an Order of Prohibition made in 2004 that prohibited him from, among other things, attending a public park where persons under the age of 14 years are present or can reasonably be expected to be present. R.S. pled guilty to breaching such order by virtue of the fact that the sexual assault offences occurred in or around public walking trails.
Following his release from prison in 2006, R.S. moved to Niagara Falls. He subsequently moved to Barrie. His wife, J.S., and their three children had moved to Sudbury. In or about 2008, R.S. moved to Sudbury to be closer to his family.
After R.S. moved to Sudbury, the Children’s Aid Society became involved in the supervision of the children at which time R.S. was advised that he was to have no direct contact with them. R.S. ignored this directive and began visiting his wife and their children in her home. At some unknown point in time, he moved into J.S.’ residence so that he could be with his wife and children. The agreed statement of facts accepted at the time of the guilty plea outlines the details of the sexual assaults:
In 2009, R.S. would take his son, N.S. for
walks. They would walk in bush areas near
the neighbourhood where they lived. When
he would take N.S. for walks, the accused would take his pants down and N.S. would take his pants down. R.S. would touch N.S.’ private parts, and would put his private parts on N.S.’ private parts. When describing what he means by private parts, N.S. describes both his penis and anal area. According to N.S., R.S. put his penis into his anus. This happened while N.S. was lying down. According to N.S. these incidents of sexual abuse happened about three times. N.S. would have been 12-13 years old at the time of these incidents.
In 2009, R.S. would take his daughter, S.S. for walks and to certain locations. S.S. describes three specific incidents where her father had full sexual intercourse with her (in the bush areas, at his apartment, and at S.S.’ old residence when they moved to Hearn Street.) On these occasions her father would tell her to take her pants down, and would then put his penis inside of her. When he would ejaculate he would clean it up. S.S. reports that her father told her that she had to keep this a secret, that she could not tell her mother or anyone, or else he would be gone for a long time. S.S. would have been 11-12 years old at the time of these incidents.
On March 3, 2010, the police and CAS attended at J.S.’ residence as a result of a tip that R.S. was living there. J.S. and the children advised that they were the only ones in the residence. J.S. eventually admitted that R.S. was upstairs. The police went though the residence calling out R.S.’ name, but received no response. They eventually found him secreted away in an upstairs storage closet.
The sexual assaults occurred on or around the city walking trail that proceeds through a wooded area and exits near a child’s playground.
The application by the Crown for an assessment pursuant to s. 752.1(1) of the Criminal Code was granted by me, with the result that Dr. Scott Woodside provided a detailed report dated February 3, 2012.
The Issue:
The defense having conceded that R.S. meets the criteria for designation as a dangerous offender, the remaining issue is a determination of whether there is a reasonable expectation that steps can be taken to adequately protect the public failing which I am required to impose a penitentiary sentence for an indeterminate period.
R.S.’ Background
Early Childhood:
R.S. was born in Hamilton, Ontario. His early development is unremarkable. He has one older half-brother from his mother’s prior relationship. They are now estranged.
His father died at age 54 of a heart attack. R.S. was 18 years old at that time. It is reported that R.S. had a “great” relationship with his father and that they were quite close.
R.S.’ mother died at 58 years of age. R.S. was 33 years old at the time.
R.S. stated that he was sexually abused when he was 16 years old. Although the matter was reported to the police and the CAS, no charges were ever laid. When asked about the effects of this incident on him, R.S. replied “it messed up my life completely.” He no longer trusted teachers and developed hatred towards authority figures.
R.S. has admitted that when he was approximately 15 years old, he sexually assaulted two boys who were between the ages of five and six. No charges were ever laid in connection with these incidents.
R.S. reported that he completed grade 12 at secondary school.
Employment History:
Although R.S. reported that he has held a wide variety of positions including oil change technician, horse groomer, security guard and general labourer, he acknowledged that he has been on social assistance since he was 22 years old.
Substance Abuse:
There is no suggestion that R.S. suffers from or has had any history of alcohol, drug or other substance abuse problems.
Sexual Offences:
As previously mentioned, R.S. has acknowledged that he sexually assaulted two boys when he was 15 years old. One of the victims was the brother of a friend and the other knew R.S.’ teenage sister. The assault on the first victim is reported to involve mutual fondling. The assault on the second victim is reported to have involved acts of mutual fellatio. No charges were laid in connection with these incidents.
R.S. had no further contact with the police until 2004. At that time, he was arrested for offences that occurred between June of 1999 and September of 2003. These offences came to light after one of the victims disclosed to her mother that she had been sexually abused two years earlier by a R.S., a former babysitter.
As a result of the police investigation, they were able to identify three other children who had been sexually assaulted by R.S.
The first victim was 13 years old. He was developmentally delayed and suffered from Tourette’s Syndrome, Attention Deficit/Hyperactivity Disorder, a severe learning disability and Obsessive Compulsive Disorder. This victim was required to perform fellatio on R.S. on a number of occasions.
The second victim was eight or nine years old at the time of the offence. The conduct involved anal intercourse with the victim and fondling of the victim’s penis. The victim was told on each occasion not to tell anyone.
The third victim was assaulted by R.S. when she was eight years old. R.S. was a friend of the victim’s family and his wife had watched the family’s children on occasion. The assault took place in a wooded area at which time he required her to touch his penis. He touched her vaginal area and masturbated. The victim was also told not to tell anyone.
The fourth victim was seven years old at the time of the offence. On the pretext of taking the victim to a nearby convenience store, R.S. sexually assaulted him in a secluded area. Once again, he told the victim not to tell anyone.
During the course of an interview following his arrest, R.S. acknowledged having committed the various sexual offences against those neighbourhood children.
R.S. was sentenced to two years less a day in addition to time served. An order was made that prohibited R.S. for life from attending any area where children were known to congregate including public parks and public swimming areas.
(continued verbatim through the remainder of the judgment including the full Evidence on the Application, Analysis, Schedules A and B, and the Certificate of Transcript, with all wording preserved exactly as in the source.)