SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

V.

T.B.

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486(4) OF THE CRIMINAL CODE OF CANADA

REASONS FOR SENTENCE

BEFORE THE HONOURABLE JUSTICE C.J. CONLAN

On Thursday, October 29, 2015, at Owen Sound, Ontario

APPEARANCES:

Mr. A. Shatto

Counsel for the Provincial Crown

Mr. G. Grant

Counsel for T.B.

THURSDAY, OCTOBER 29TH, 2015:

CONLAN, J. (Orally):

T.B. you can remain seated while I give some brief oral Reasons on Sentence.

I will accept the joint submission on Sentence.

It has long been established in Canada that a judge should not reject a joint submission on sentence unless it is contrary to the public interest, and the sentence proposed would bring the administration of justice into disrepute.

In this particular case, two experienced counsel have put forward a reasonable joint submission on sentence, and in my view acceptance of it would not be contrary to the public interest and would not bring the administration of justice into disrepute. That is why I have decided to accept the joint submission.

In this particular case, the primary aggravating factors on sentence are that T.B. was in a position of trust, vis-à-vis the victim. The Criminal Code explicitly recognizes that that is an aggravating factor on sentence. In addition, the other aggravating factor is that there were a few incidents of sexual abuse.

In mitigation, the primary mitigating factor is the guilty plea by T.B. Guilty pleas are always considered a mitigating factor on sentence. They are an expression of remorse by the accused.

In cases of sexual offences involving children, I am of the view that a guilty plea takes on an even higher degree of value in mitigation because this avoids the need for the victim and her family coming to court and being put through what could be a lengthy and difficult trial process. So in this case, I pay particular attention to the guilty pleas.

In addition, the other mitigating factor is that although T.B. has two unrelated convictions on his record, he appears to be generally a person of relatively good character. I say that because he has a solid employment history and has not run afoul of the law in about ten years now since the over 80 conviction in 2005. And then his conviction prior to that was ten years before in 1995. So T.B. is certainly not a recidivist.

Those are the primary mitigating factors.

In my view, the joint submission is a reasonable one, taking into account both the aggravating and mitigating factors.

On count two of the indictment, the sentence of the Court is as follows:

Eighteen (18) months incarceration. Two (2) years of probation.

The terms and conditions of the probation order are as follows:

First of all, the compulsory conditions of every probation order under Section 732.1(2) will apply. Those mandatory conditions are as follows:

T.B. shall keep the peace and be of good behaviour. T.B. shall appear before the Court when required to do so by the Court. T.B. shall notify the Court or the probation officer in advance of any change of name or address and promptly notify the Court or the probation officer of any change of employment or occupation. There is a fairly recent amendment to this section of the Criminal Code which has added a further compulsory condition, and that condition will apply here. It really makes no difference for T.B. because one of the optional conditions will essentially parrot what I am about to say. But the paragraph (a)1 under Section 732.1(2) will apply and T.B. shall abstain from communicating directly or indirectly with A.A.

In addition to those compulsory conditions, the following optional conditions of probation under Section 732.1(3) of the Criminal Code will apply:

T.B. shall report to a probation officer upon his release from custody and on such schedule and in the manner required by the probation officer thereafter.

T.B. shall have no contact or communication directly or indirectly with A.A. T.B. shall not attend at any place known to him to be the residence, school or place of employment of A.A. I recognize that the young girl is fairly young but she will turn 12 during the currency of the probation order and could find some employment.

In addition, T.B. shall attend for any counselling or treatment as recommended by the probation officer and not leave that counselling or treatment programme without the prior written permission from the probation officer. In order to monitor T.B.’s compliance with the counselling and treatment programme, T.B. shall sign any releases of information demanded by the probation officer.

T.B. shall not possess any weapon or firearm as defined in the Criminal Code of Canada.

On count two, in addition to the eighteen (18) months imprisonment and the two (2) years of probation on the terms noted, there is a primary DNA order.

As well on count two, there is a Section 109 firearms and weapons prohibition order for ten (10) years.

As well on count two, there is a sex offender registry order for life.

On count two that leaves only consideration of the matter under Section 161 of the Criminal Code.

Section 161(1) of the Criminal Code indicates that where an offender is convicted of certain offences which include the two that T.B. has been found guilty of, in respect of a person who is under the age of 16 years, the Court that sentences the offender shall consider making and may make certain orders. Section 161(1) of the Criminal Code is discretionary. It is not mandatory.

In this particular case given the facts admitted to, I am satisfied that the order should issue but only with regard to paragraphs (a) and (b). The duration of the order is for five (5) years. For a period of five (5) years I prohibit T.B. from:

A) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre.

In addition, for a period five (5) years, I prohibit T.B. from:

B) seeking, obtaining or continuing any employment whether or not the employment is remunerated or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.

I have considered but decline to issue the order for paragraphs (a)1,(c) or (d). In brief, the reasons for declining those paragraphs are as follows: ‘D’ is not relevant, it deals with the internet. ‘C’ is too cumbersome in this case given the other children of the family, and given the victim input form marked Exhibit Number Two, in which S.A. indicates that she would like T.B. to be able to have contact with certain persons. In addition, paragraph ‘C’ is largely superfluous because the conditions of the probation order will adequately protect A.A. I am declining to issue the order with regard to paragraph (a.1) because it is equally too cumbersome given the other family members, the children of the family. In addition, I think that it is unnecessary because I have already indicated that T.B. will be the subject of a probation order, one of the optional conditions of which includes a prohibition of attending at any residence, place of employment or place of education known to him to be that of A.A. Those are the reasons for not making the order under paragraphs (a.1), (c) and (d).

With regard to count three on the indictment, the sentence of the Court is as follows:

Eighteen (18) months imprisonment, concurrent. Two (2) years of probation, concurrent on the same terms.

A primary DNA order. A Section 109 Criminal Code firearms and weapons prohibition order for ten (10) years. A sex offender registry order for life. And the same Section 161(1) order for five (5) years, again limited to paragraphs (a) and (b).

T.B., I am required to ask you a few questions. There are several aspects of the sentence that have been imposed and it is important that you understand. So the eighteen months in jail is relatively self-explanatory. You understand that I have placed you on probation for two years.

T.B.: I do.

THE COURT: And you heard me outline the terms and conditions of that order.

T.B.: I did.

THE COURT: Do you understand those terms?

T.B.: I do.

THE COURT: Are you promising to obey those terms?

T.B.: I am.

THE COURT: Do you understand sir that if you violate a probation order you could be charged with a further criminal offence of breach of probation?

T.B.: I understand.

THE COURT: And the consequences of being found guilty of a breach of probation could be severe and often include jail. Do you understand that sir?

T.B.: I understand.

THE COURT: The primary DNA order is relatively self-explanatory. It involves the taking of a simple blood sample which will be done shortly. The firearms and weapons prohibition order under Section 109 of the Criminal Code – do you understand that order?

T.B.: I do.

THE COURT: I should advise you sir, I know you have no intention of violating these orders but I have to tell you that if you do, you could be charged with a further criminal offence of breaching a court order and you could go to jail if you violate the Section 109 order. Do you understand that?

T.B.: I understand.

THE COURT: There is a sex offender registry order for life that will involve you complying with certain requirements providing information from time to time. You must obey that order. Again, if you don’t you could be charged with a further criminal offence. Do you understand that?

T.B.: I understand.

THE COURT: And finally, there is an order that I made under Section 161 of the Criminal Code prohibiting you from attending at certain places and doing certain things. Do you understand that order? It is for a period of five years.

T.B.: I do.

THE COURT: Again, you must obey that order or else you could be charged with a further criminal offence. Do you understand that?

T.B.: I understand.

THE COURT: Okay, Mr. Shatto is there anything that I left out in terms of the sentence?

MR. SHATTO: Yes, I wonder if you would consider the Section 743.2(1) non-communication while in custody?

THE COURT: Oh, yes. You did mention that. I intended to impose that and I simply forgot.

MR. SHATTO: Thank you Your Honour.

THE COURT: While you are incarcerated sir, you shall have no communication or contact directly or indirectly with A.A.. Do you understand that?

T.B.: I understand.

THE COURT: Thank you. Was there anything else I left out Mr. Shatto?

MR. SHATTO: Not on behalf of the Crown, no. Thank you Your Honour.

THE COURT: Mr. Grant?

MR. GRANT: No, Your Honour.

THE COURT: Okay. Just give me one moment to complete the endorsement. You may have a seat T.B.

MR. GRANT: The only thing Your Honour, is the withdrawal of the other charge.

THE COURT: Yes, thank you.

MR. SHATTO: And the Crown does intend to withdraw count number one. And there would be a Victim Fine Surcharge.

THE COURT: Yes, I was about to raise that. So I have included in the endorsement all of the orders that I outlined previously. In addition, while incarcerated T.B. shall have no contact or communication directly or indirectly with A.A. Count one on the indictment is withdrawn at the request of the Crown. With regard to the Victim Fine Surcharges, what would be the surcharge in this matter Madame Registrar?

COURT REGISTRAR: Two hundred dollars for each.

THE COURT: Two hundred dollars for each offence. And are there any submissions that you wish to make on that Mr. Grant?

MR. GRANT: Only that T.B. have perhaps six months to pay after he’s released given that he’s no longer employed as of, as of now.

THE COURT: Thank you, that’s very reasonable. There is a Victim Fine Surcharge in the amount of $200 on each conviction. T.B. is granted six months to pay the surcharges after his release from custody. Okay, I think that’s everything counsel.

MR. SHATTO: Yes, thank you Your Honour.

THE COURT: Thank you.

MR. GRANT: Thank you Your Honour.

THE COURT: Good luck to you T.B.

MATTER IS CONCLUDED

Form 1

CERTIFICATE OF RECORDING

Evidence Act (subsection 5(1))

I, Linda J. Thompson, certify that Recording 1011-crtrm#201-20151029-091015-10-CONLANC.dcr is the recording of the evidence and proceedings in the Superior Court of Justice held at 611 9th Avenue East, Owen Sound, Ontario on Thursday, 29th October, 2015, and that I was in charge of the sound recording device during those proceedings.

Form 2

CERTIFICATE OF TRANSCRIPT

Evidence Act (subsection 5(2))

I, Linda J. Thompson, certify that this document is a true and accurate transcript of the recording; Her Majesty the Queen v. T.B. in the Superior Court of Justice, held 611 9th Avenue East, Owen Sound, Ontario taken from Recording which has been certified in Form 1.