ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. LUCKHART, 2016 ONSC 1509
COURT FILE NUMBERS: 15-556 and 15-564
DATE: 2016/03/03
B E T W E E N:
HER MAJESTY THE QUEEN
M. Murdoch, for the Crown
- and -
THOMAS LUCKHART
F. Brennan, for the offender
HEARD: February 12 and 26, 2016
REASONS FOR SENTENCE
LEACH J. (ORALLY)
Introduction
[1] On February 12, 2016, Thomas Luckhart pled and was found guilty of having committed the following offences:
i. 3 counts of sexual interference, contrary to s.151 of the Criminal Code of Canada, (“the Code”); and
ii. 4 counts of sexual assault, contrary to s.271 of the Code.
[2] It should be noted that one of the aforesaid sexual assault offences was raised and addressed in a proceeding, (Stratford court file no. 15-556), that was formally separate from another proceeding, (Stratford court file no. 15-564), that raised and addressed the remaining six offences mentioned above.
[3] However, the parties chose to address both proceedings at the same time, in relation to the guilty pleas of Mr Luckhart on February 12, 2016, and in relation to sentencing submissions presented on February 26, 2016. I therefore will adopt the same approach in delivering my decision and reasons relating to an appropriate sentence for Mr Luckhart’s crimes.
[4] During the course of oral sentencing submissions received from counsel on February 26, 2016, in addition to books of authorities, I was presented with material and evidence that included the following:
• a brief and supplementary brief containing a total of 11 victim impact statements;
• a wedding-related photograph of the accused interacting with a number of former friends who have been affected by his misconduct;
• an eleven page report prepared by a psychotherapist and consultant who has clinically interviewed and assessed Mr Luckhart, (“the Kushnier report”);
• a chart prepared by defence counsel, outlining comparisons between a number of the sentencing dispositions found in the authorities to which I have been referred; and
• draft terms of a contemplated prohibition order, pursuant to s.161 of the Code, prepared by defence counsel.
[5] Pursuant to s.726 of the Code, Mr Luckhart was asked if he wanted to make any direct comments to me prior to the imposition of sentence, and I then heard from him as well.
[6] The matter then was adjourned to this afternoon for the imposition of sentence, and delivery of my associated reasons.
[7] When the matter was last before me, this past Friday, it was agreed and confirmed that Mr Luckhart had spent 221 days in pre-sentence custody. As of today, (six days later), he accordingly now has spent 227 days in pre-sentence custody.
[8] It was common ground that, in relation to whatever sentence I might otherwise impose, Mr Luckhart should receive credit for his time spent in pre-sentence custody at the rate of 1.5 days for each actual day spent in custody, pursuant to the provisions of s.719(3.1) of the Code. On that basis, Mr Luckhart would receive credit for 340 days, or slightly more than 11 months, already spent in custody in relation to these matters.
Circumstances of the offence
[9] I begin with consideration of the circumstances of the offences in respect of which Mr Luckhart has been convicted.
[10] Those circumstances were outlined and confirmed in considerable detail during the course of my taking Mr Luckhart’s guilty pleas, just under three weeks ago.
[11] It should be emphasized that I have regard to those circumstances in their entirety during the course of these reasons, despite my intention to describe them in a summary fashion, and make only limited reference to certain particulars.
[12] With that caveat in mind, to provide context for these reasons, the circumstances of Mr Luckhart’s crimes generally may be summarized as follows:
• The lives of Mr Luckhart and his victims were centred on the Village of Sebringville, a small and extremely close-knit rural community located just to the northwest of Stratford, in what is now known as the Township of Perth South.
• Mr Luckhart lived and worked in and around Sebringville his entire life, and over the course of many decades, came to be a trusted employer, neighbor, volunteer, fundraiser, church leader, travel companion, host, visitor, groomsman, godfather, and friend, (and in some cases a “best friend”), to many other individuals and families who lived in Sebringville.
• Parents of those families understandably came to trust Mr Luckhart, who to all outward appearances seemed to be an entirely admirable citizen and role model; a completely trustworthy, safe, fun and positive influence for their children. The children of those parents understandably came to view Mr Luckhart in the same way.
• The parents would entrust their children to Mr Luckhart’s care, allowing the children, and young adolescents in particular, to visit and be with Mr Luckhart at various times and in various places, including Mr Luckhart’s home, without other adult supervision.
• The children would gravitate towards Mr Luckhart as a neighbor, family friend, mentor and confident, who presented them with social, recreational and employment opportunities they otherwise might not have enjoyed.
• However, Mr Luckhart had a dark and horrible secret; i.e., what has now been formally diagnosed as a life-long deviant sexual interest, (also known as paraphilia), which in his case was dominated by sexual urges for post pubertal male youths. Like many such preferential sex offenders, Mr Luckhart honed well-developed techniques for gaining access to his preferred victims, for sexual purposes. Those techniques included the skilful manipulation of situations, parents of victims, and the victims themselves.
• The crimes which bring Mr Luckhart before me now involve five such victims, who were sexually abused by Mr Luckhart, individually, on a number of separate occasions, when they were young and vulnerable adolescents. The relevant incidents took place at various times between February of 2003 and June of 2015, at which time Mr Luckhart’s misconduct finally came to light.
• I do not intend to reiterate the complete agreed circumstances and details of each such incident. For present purposes, using the initials of the victims where possible, the misconduct may be summarized as follows:
o Mr Luckhart victimized M.H. on various occasions between February 2003 and February of 2008, when M.H. was just 10-14 years old. As a long-time family friend, Mr Luckhart engaged in grooming behaviours, including hiring M.H. to do odd jobs, and giving M.H. gratuitous cash payments. That was followed by backrubs, which in turn led to more invasive sexual touching of the boy’s buttocks, penis and testicles through the boy’s clothing, although Mr Luckhart stopped such conduct when M.H. asked him to stop. During one “sleepover” incident, when M.H. was approximately 12 years old, Mr Luckhart lay behind M.H., and took the opportunity to touch the boy’s penis under his clothing, while M.H. could feel what seems to have been Mr Luckhart’s erection pressing into the boy’s buttocks.
o In the summer of 2004, Mr Luckhart began directing his inappropriate attentions to two young brothers who were members of another family that regarded Mr Luckhart as a close personal friend. As both brothers have the initials “B.E.”, I will refer to the older as BE1 and the younger as BE2.
o Between June and August of 2004, when BE1 was just 12 years old, Mr Luckhart’s hiring of the boy to do odd jobs progressively led to back rubs, which in turn progressed to touching the boy on his buttocks, thighs and penis, (through the boy’s clothing), as well as inappropriate questions of a sexual nature. During one “sleepover” incident, while the boy was lying in bed with his younger brother sleeping nearby, after an initial “backscratching”, Mr Luckhart forced his fingers and hands into the boxer shorts of BE1 and stroked his penis, before stopping at the boy’s request.
o That same summer, (i.e., the summer of 2004), Mr Luckhart also began abusing BE2, who was two years younger than BE1. As with the older brother, Mr Luckhart engaged in grooming behaviours that included paying BE2 money for odd jobs, and progressed to inappropriate touching. In particular, in May of 2004, when BE2 was just 10 years old, what began as “backscratching” progressed to touching of the boy’s penis through his clothing, and again while BE2 was lying in bed during a sleepover. Further abuse of BE2 by Mr Luckhart occurred approximately 4 years later, in May of 2008, when BE2 was 14 years old. In particular, Mr Luckhart brought BE2 to his place of work, and told the boy he could look at pornography, (not featuring children), on an office computer. While BE2 was doing so, Mr Luckhart then engaged him in sexual conversation while stroking the boy’s penis. Although Mr Luckhart complied with the boy’s refusal to allow Mr Luckhart to perform fellatio, Mr Luckhart continued to masturbate his victim to the point of ejaculation.
o Between June of 2010 and June of 2015, Mr Luckhart turned his inappropriate attention to N.R., the son of other close friends, who was born in […] 1998, and who was therefore approximately 12 to 17 years old at the time of Mr Luckhart’s abuse. In particular, on four separate occasions, in different locations, Mr Luckhart persisted in touching N.R.’s penis through his clothing; conduct that was accompanied, on at least three of those occasions, by touching of the boy’s groin and/or leg. On the second, third and fourth occasion, Mr Luckhart was asked to stop and did so.
o In June of 2015, Mr Luckhart approached the father of E.F., (then just 13 years old), asking if E.F. would like to do some tasks for Mr Luckhart at his home, located just across the street. When E.F. then attended Mr Luckhart’s residence, on his own, Mr Luckhart persisted in attempts to engage E.F. in conversations of a sexually graphic and inappropriate nature. This was accompanied by various efforts, some more successful than others, to approach E.F. from behind and pull down his pants, have E.F. remove his shirt, and have E.F. apply sunscreen to Mr Luckhart and vice-versa. Mr Luckhart’s actions also included the touching and rubbing of E.F.’s penis through the boy’s clothing, and Mr Luckhart inserting his hand into the boy’s shorts. The episode understandably left E.F. scared, confused and upset. It ended with Mr Luckhart paying the boy $70.00, and making him promise not to tell anyone what had happened. However, E.F. told his brother and then his parents about Mr Luckhart’s inappropriate behavior. That led to police involvement, an initial charge, resulting community attention, and Mr Luckhart’s other victims coming forward.
[13] With those extended comments about the circumstances of the underlying offences in mind, I now return to my current task of determining the appropriate sentence Mr Luckhart should receive in relation to his crimes and convictions, in respect of which, (as noted above), he already has spent 227 days in custody.
Circumstances of the offender
[14] The personal circumstances of Mr Luckhart were outlined in detail in the Kushnier report, mentioned above, but that information was supplemented by counsel submissions and the comments of Mr Luckhart himself.
[15] I have reviewed and considered all of that information, but note that the personal circumstances of Mr Luckhart include the following:
• He was born in Stratford, (a short distance from his family’s long time home in Sebringville), and is currently 55 years old.
• He was the youngest of three sons born to extremely hard-working parents, who enjoyed a good relationship, and owned and operated a livestock trucking business from their home.
• Through their efforts, and the support of extended family and godparents, Mr Luckhart had the benefit of a structured, church-oriented and nurturing upbringing, free from violence, substance abuse or neglect. He himself experienced no unwanted sexual touching or other traumatic experiences as a child.
• He experienced prolonged bedwetting and other health complications in his youth, (including an operation at a young age to address a testicular problem), and seems to have been a somewhat shy and teased child at school, where he was an average to below average student, with a relatively small group of childhood friends. He attended secondary school in Stratford, where he had a network of male and female friends but was not involved in any extracurricular activities. He struggled to keep up, in part because of his scholastic ability, but also because of time devoted to the family business and other employment. He passed grade 12, but failed to complete grade 13.
• Apart from an interest in coin collecting, involvement with the Junior Farmers movement, various leadership roles in his church, (where he acted as a youth leader), and other related volunteer activities, Mr Luckhart seems to have devoted much of his life to gainful employment, often working extremely long hours. In particular, in partnership with one of his brothers, Mr Luckhart continued to own and operate the family business started by his parents up until seven years ago, when Mr Luckhart sold his interest and found a management position with another family business in the region. Mr Luckhart worked hard at that job as well, (to the point of his doctor recommending steps to temper his work efforts in order to avoid a high risk of ulcers and other health complications), until the time of his arrest.
• Mr Luckhart has no history of alcohol or substance abuse, and there is no suggestion that any such concerns played a role in the misconduct that brings him before the court.
• He similarly has never displayed any patterns of violence or aggression, and the crimes that bring him before the court include no mention of violence or threats of violence.
• Although the Kushnier report includes references to Mr Luckhart possibly having a dated conviction for impaired driving, Crown counsel and defence counsel both advised that Mr Luckhart has no criminal record, and I accordingly am proceeding on that basis; i.e., that he is a first time offender.
• The Kushnier report, prepared with what clearly seems to have been extraordinarily candid disclosure and co-operation from Mr Luckhart, makes it clear that Mr Luckhart nevertheless has struggled with social and sexual issues from the time of his own adolescence, if not before. In particular, after experiencing delayed puberty, he became aware that he was attracted to both sexes. As a devout Lutheran who believed it was wrong to practice homosexuality, he experienced significant emotional turmoil circulating around his values, beliefs and deviant sexual urges and inner conflict. All of that left him emotionally immature, with only superficial insight into his close relationships, and a degree of arrested development. It seems that in turn may account, at least in part, for his attraction to young males.
• Because of such factors, Mr Luckhart has never enjoyed a long-term intimate relationship, (despite very prolonged platonic friendships). Nor has he ever married. He instead continued to live with his parents in Sebringville until he was 35, (at which time he moved into his own residence just four houses away, with a view to continuing his support and care for them as they got older), and immersed himself in work and community organizations.
[16] When first arrested last summer, Mr Luckhart’s initial reaction seems to have been one of self-pity and feelings of persecution, as he struggled with the culture and confinement of small county detention centres.
[17] However, there are clear and convincing indications that, shortly thereafter, he began to completely and appropriately redirect his focus towards the seriousness of the abuse he has committed, and the devastating impact his behavior has had on others, including his victims, their families, and his own family.
[18] In that regard, Crown counsel emphasized that, from an early stage in this process, Mr Luckhart was intent on admitting and accepting responsibility for his misconduct, although the formal process of pleading guilty was delayed by further necessary and appropriate discussion between counsel, as well as arrangements to seek the input of the victims and their families, and the results of the clinical assessment by Mr Kushnier.
[19] That assessment, and the apparently genuine sense of contrition and remorse expressed and displayed by Mr Luckhart during this sentencing process, indicate that he does accept complete and sole responsibility for what he has done, and that he has acquired a significant degree of insight into his behavior. As he himself said, he is “100 percent responsible” for what has happened, he has a serious problem, and he is in dire need of professional help to address that problem, which he is now eager to pursue.
[20] In the meantime, he also accepts that he deserves serious punishment for what he has done.
[21] Of course, all this comes far too late from the perspective of his victims, their families, and the community whose social fabric has been torn by Mr Luckhart’s actions, betrayal and profound breaches of trust.
[22] But as the Kushnier report emphasizes, it does mean that Mr Luckhart has taken a major step that “paves the way” for effective treatment and rehabilitation, to address what is currently thought to be a moderate risk of recidivism.
[23] In that regard, Mr Luckhart is intent on participating in any valid treatment program that is recommended to him, and seems genuinely committed to resolving his problematic behavior by learning to control his impulses, and deal more appropriately with his relationship needs.
[24] In pursuing that goal, Mr Luckhart fortunately will have support from family and friends who have not abandoned him, despite their own considerable struggle to come to terms with what he has done, and the challenges of whether and how he can be re-integrated in their lives when he eventually is released from custody.
Position of the crown
[25] The Crown submits that, having regard to all the circumstances, an appropriate global sentence for Mr Luckhart’s crimes would be an additional 21 months of incarceration; in other words, a sentence of approximately 33 months prior to credit for time spent in pre-sentence custody. (As the Crown notes, such a global sentence would surpass the relevant mandatory minimum sentences required by ss.151 and 271, having regard to the timing of Mr Luckhart’s various crimes.)
[26] Crown counsel submits that suggested period of incarceration should then be followed by the maximum permissible three year period of probation, with appropriate terms to strengthen Mr Luckhart’s potential for rehabilitation while minimizing his further contact with his victims and potential for recidivism.
[27] Crown counsel also sought ancillary orders that would include the following:
• pursuant to s.109(1)(a) of the Code, a mandatory weapons prohibition order, (which the Crown says should be for life);
• pursuant to subsections (a)(i.1) and (a)(xi.3) of the “primary designated offence” definition in s.487.04 of the Code, and s. 487.051(1) of the Code, a mandatory order compelling Mr Luckhart to provide the number of samples of bodily substances reasonably required for forensic DNA analysis;
• pursuant to ss. 490.011(1)(a)(ii), 490.011(1)(a)(xvi), 490.012(1) and 490.013(2.1), a mandatory order in Form 52 requiring Mr Luckhart to comply with the Sexual Offender Information Registration Act for life;
• pursuant to ss.161, a discretionary order that would place restrictions on the ability of Mr Luckhart to attend places or seek employment likely to bring him into contact with his victims or children, and the ability of Mr Luckhart to have any contact or communication with those under the age of 16 without another informed and sober adult being present; and
• pursuant to s.743.21(1), an order prohibiting Mr Luckhart from communicating, directly or indirectly, with any of his victims or members of their immediate families during the custodial period of his sentence.
Position of the defence
[28] Defence counsel took no issue with the ancillary orders sought by the Crown, apart from suggested refinements to the contemplated s.161 prohibition order, which Crown counsel did not oppose.
[29] Nor did defence counsel take any issue with the period of probation or associated terms suggested by the Crown.
[30] Instead, defence counsel focused on duration of the further custodial sentence Mr Luckhart should receive, and submitted that, having regard to all the circumstances, further incarceration for a period of 8-9 months would be appropriate. In other words, defence counsel submitted that an appropriate custodial sentence would be approximately 19-20 months, prior to credit for time spent in pre-sentence custody
[31] In that regard, it was submitted that such a custodial sentence, along with a non-binding recommendation from me that Mr Luckhart serve his sentence at the Ontario Correctional Institute in Brampton, would facilitate Mr Luckhart’s receipt of targeted sexual offender treatment available at that institution. In particular, it was suggested that an 8-9 month “net” further sentence was the duration of sentence required to make Mr Luckhart a likely candidate for such treatment, which he so desperately needs and wants.
Sentencing objectives – Legislative directions and general principles
[32] As emphasized by s.718 of the Code, the fundamental purpose of sentencing is to contribute 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. Denunciation of unlawful conduct;
b. Deterring the offender and others from committing offences;
c. Separation of offenders from society, where necessary;
d. Assisting in the rehabilitation of offenders;
e. Providing reparations for any harm done to victims or the community; and
f. Promotion of a sense of responsibility in offenders, and their acknowledgment of the harm done to victims and the community by their conduct.
[33] Pursuant to s.718.1 of the Code, a sentence should be proportionate to the gravity of the offence, and the degree of responsibility of the offender.
[34] Pursuant s.718.2 of the Code, I note that, amongst other considerations, the court is obliged to take into account that:
• Sentence should be reduced or increased to account for any mitigating or aggravating circumstances relating to the offence or the offender, (including evidence that the offence had a significant impact on the victim, considering his or her age and other personal circumstances, including his or her health and financial situation);
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.
[35] The sentencing objectives outlined above are applicable in relation to all convictions, and I accordingly have them in mind throughout the process of arriving at a just sentence for Mr Luckhart, in relation to the convictions now before me.
[36] However, the legislation provides further guidance as to how these general sentencing objectives should be applied in dealing with offences of this particular nature. In particular:
• Section 718.01 of the Code provides that, “When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence”; and
• Subsections 718.2(a)(ii.1) and 718.2(a)(iii) of the Code provide that, when an offender abuses a person under the age of 18 years, or abuses a position of trust or authority in relation to the victim while committing an offence, these are deemed to be aggravating circumstances.
[37] Not surprisingly, our courts therefore have imposed significant penal sanctions in cases involving the sexual abuse of children, especially if the offender is in a position of authority or commits a breach of trust.
[38] These sentences reflect a recognition that such abuse frequently results in serious emotional trauma and psychological harm to the victim, the effects of which may survive far longer than physical trauma, and may even be permanent. See R. v. P.(M.) (1992), 1992 2761 (AB CA), 73 C.C.C. (3d) 530 (Alta.C.A.), at p.535.
[39] The seriousness with which the crimes of sexual interference and sexual assault are regarded by our society is reflected in the severity of potential punishment, (a maximum of ten years in relation to each offence), provided by sections 151 and 271 of the Code.
[40] It is also reflected in the provisions of section 151 requiring a mandatory minimum term of incarceration for the crime of sexual interference, and the provisions of section 271 requiring a mandatory minimum term of incarceration for the crime of sexual assault, where the complainant was under the age of 16 years at the time of the offence.
[41] However, I am also mindful of numerous authorities which have emphasized, (albeit in other contexts), that an applicable mandatory minimum sentence must not be considered the “norm”, thereby effectively converting the sentencing “floor” into something resembling a “ceiling” as well. See, for example: R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at paragraph 75; and R. v. K.G., 2012 ONSC 3523, [2012] O.J. No. 2785 (S.C.J.), at paragraph 36.
[42] Bearing in mind the general sentencing objectives and guidelines outlined above, I turn next to a consideration of possible aggravating and mitigating factors.
Aggravating factors
[43] In my view, this case presents a number of aggravating circumstances, which include the following:
• First, in committing his crimes, Mr Luckhart abused persons under the age of eighteen years, (and in some cases, boys well under the age of 18 years). As noted above, this is deemed to be an aggravating factor pursuant to s.718.2(a)(ii.1) of the Code.,
• Second, in committing each offence, Mr Luckhart clearly abused a position of trust or authority. On each occasion of misconduct, the victim had been committed to Mr Luckhart’s temporary care by well-intentioned parents, who were deceived into believing that Mr Luckhart was a trusted family friend, neighbor, mentor and/or employer who would keep their children safe, and promote their welfare. Mr Luckhart deliberately and repeatedly betrayed that trust in the most profound way one can imagine, by using each of these vulnerable adolescent boys for his own sexual gratification. As noted above, this serious breach of trust is deemed by the Code to be an aggravating factor. Not surprisingly, our courts also repeatedly have emphasized that breach of trust is a significant factor, warranting the imposition of serious sentences to ensure that children are protected from abusive caregivers.
• Third, the number of victims in this case, and the repetitive way in which most of those victims were abused, is clearly an aggravating factor in terms of fashioning an appropriate global sentence, as it obviously amplifies the magnitude and scope of the Mr Luckhart’s sexual abuse of children and his corresponding breaches of trust.
• Fourth, there was an obvious and disturbing deliberate quality to Mr Luckhart’s misconduct. He persisted in that misconduct repeatedly over the course of many years, consistently employing strategies to deceive trusting parents and families, and to use his victims’ own sense of love and concern for their parents, families and communities to promote their silence. Moreover, as noted in the Kushnier report, Mr Luckhart committed his offences knowing that they were wrong. His now formally diagnosed condition no doubt fostered his lack of self-restraint. However, as emphasized by our Court of Appeal in R. v. Stuckless (1998), 1998 7143 (ON CA), 41 O.R. (3d) 103 (C.A.), at p.120, and R. v. D.D., 2002 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), at paragraph 42, pedophilia is an explanation, not a defence.
• Fifth, there is the extremely serious matter of the devastating consequences of Mr Luckhart’s misconduct on his victims and their families. In that regard:
o Pursuant to s.718.2(a)(iii.1) of the Code, a sentencing judge must take into consideration whether the offence has had a significant impact on a victim, having regard to his or her age and other personal circumstances, including the victim’s health and financial situation.
o In this case, the victims obviously include the young boys whose personal integrity, trust and outlook on the world was violated and damaged in a very fundamental and perhaps irreparable way. Their victim impact statements, (or at least, the statements of those who felt capable of completing them), speak to a wide range of overwhelming and disturbing emotions, as well as the devastating consequences they have experienced in the wake of Mr Luckhart’s abuse. Anger. Insecurity. Fear. Frustration. Depression. Helplessness. Profound shame and embarrassment. Insomnia. Nightmares. Exhaustion from having carried such a terrible secret for so very long, while feeling so very alone, primarily for the benefit of someone who had hurt them so very much, but continued to afflict them with his presence as if nothing had happened. Feelings that they are no longer trusted, because they kept such a secret. Feelings that they have disappointed their parents. Alienation from family and friends. Profound disillusion with life, and inability to trust others. Anxiety about the future. A loss of religious faith. A never-ending sense of distraction, fear of questions, and worry about always being looked upon as “one of those guys”. Fears of seeing Mr Luckhart again, or having Mr Luckhart trying to contact them again. Thoughts of suicide. Resort to poor coping methods, such as drugs and alcohol. Resort to professional assistance, which nevertheless does not seem to be helping. A negative impact on studies and employment. The stress and financial loss occasioned by their taking time to participate in these proceedings. All of these horrible consequences, for these completely innocent young boys and men, lie squarely at Mr Luckhart’s doorstep.
o But they sadly are not the only victims here. Victim impact statements tendered by the parents, and a spouse of one of the victims, recount their similar experiences with alienation, loss of faith, insomnia, nightmares, health complications, medication and counselling, damaged family relationships and financial loss. Generally, the statements from the parents underscore their constant heartbreak, distress and all-consuming feelings of anger, devastation and guilt. Anger, because of the profound sense of betrayal by someone whom they had regarded as a close and trusted friend for many decades. Devastation, because they now realize all that their sons have experienced, and will experience, because of Mr Luckhart’s abuse. Guilt, because the parents blame themselves for befriending and trusting Mr Luckhart; and for not realizing sooner that exposing their sons to his supposedly positive influence was actually putting them in danger.
o In my view, that is a particular disturbing aspect of this case. To gain unquestioned access to his victims, Mr Luckhart played upon the fundamentally noble qualities of a close-knit community like Sebringville, and sullied them. He has made honest, faultless and well-intentioned people feel extraordinarily guilty about forming friendships, caring about neighbors, trusting in fundamental decency, and generally believing that families and communities grow stronger through interaction rather than isolation. The reality, of course, is that our country could use a lot more Sebringvilles, and the only guilty person here is Mr Luckhart.
Mitigating factors
[44] As for mitigating factors, there are a number of potentially mitigating considerations here, including the following:
• First, Mr Luckhart deserves significant credit for his guilty pleas. In addition to their indication of contrition, remorse and acceptance of responsibility, those guilty pleas have spared the victims the distress of having to relive their ordeal in a public, stressful and inherently humiliating way, over the course of an extended criminal trial. Similarly, the victims’ parents need not testify about related matters, such as the manner in which Mr Luckhart gained and abused their trust. By his early willingness to acknowledge his actions, take responsibility, and enter formal pleas of guilt, Mr Luckhart accordingly has spared his victims and their families considerable additional anguish, stress and uncertainty.
• Second, there are other strong indications that Mr Luckhart now feels genuine contrition and remorse for what he has done, and that he is willing to engage actively in further steps towards his rehabilitation; e.g., by active participation in sex offender treatment and counselling. Such indications, combined with the ongoing support of the friends and family who have not abandoned him, reinforce the prospects for successful rehabilitation.
• Third, Mr Luckhart is a first time offender, with no prior criminal record, which generally calls for restraint in sentencing. This recognizes that an extended period of incarceration is harder on someone entirely new to the experience. Moreover, up until now, many aspects of Mr Luckhart’s life were commendable if not exemplary, insofar as he was a productive and engaged member of the community. Aspects of that community involvement are now tarnished by the possibility they were but means to an end, in terms of building relationships that facilitated access to victims. However, Mr Luckhart’s demonstrated capacity to interact with others, in positive ways, does offer hope for his eventual rehabilitation.
• Fourth, in addition to whatever formal punishment I may impose, Mr Luckhart has experienced, and almost certainly will continue to experience, the negative impacts which often flow from the profound stigma that attaches to those who abuse children for their sexual gratification. Publicly branded as a convicted and registered sex offender, for his abuse of five vulnerable young adolescents, Mr Luckhart does not have the shelter of relative anonymity available in a large metropolis or other sizeable community, with somewhat necessarily disconnected residents, that will allow him to return to any semblance of the life he once knew. To the contrary, as emphasized by defence counsel, Mr Luckhart’s conduct has rendered him persona non grata within the community of Sebringville, where everyone is well aware of what he has done, and where many have connections with Mr Luckhart’s victims and their families. For his entire life, Sebringville has been the only home Mr Luckhart has ever known. His family, including his aging parents, still live there. The family business he helped to build and preserve, and which offered him employment for so many years, is based there. To the extent Mr Luckhart has travelled, he almost always has done so with friends from Sebringville. Yet he is no longer welcome there. His victims and their families do not want to see or hear from him ever again. In Sebringville and its neighboring communities, at least, Mr Luckhart now will bear something akin to the mark of Cain for the remainder of his life, as he struggles to find a new home and employer in some more distant and unfamiliar place.
• Fifth, on a similar note, Mr Luckhart’s conduct has placed additional strain on his elderly parents, creating the very real possibility that he not only will be unable to care for them in the foreseeable future, but that they will die before his release from custody. Of course, Mr Luckhart has no one to blame but himself for such unfortunate realities, but they nevertheless are a hardship that realistically will make his time in custody more difficult.
• Finally, while not really a mitigating factor, but something more akin to the absence of an aggravating factor, I note that Mr Luckhart’s conduct, as egregious as it was, fortunately lacked the hallmarks of even more serious child sexual abuse that often plague our courts. For example, there appear to have been no acts of anal or oral penetration, no acts of fellatio, (although it was suggested by Mr Luckhart on one occasion), no use or threats of force while the abuse was being inflicted, and no use or threats of force to ensure a victim’s silence. Of course, absolutely nothing in such observations is meant to suggest that Mr Luckhart should receive any form of recognition for exhibiting restraint in that regard. But such realities require this case to be distinguished from others where such factors were present.
Further analysis
[45] With the above in mind, I now turn to determination and imposition of an appropriate sentence for the offence now before the court.
[46] In that regard, in addition to the matters outlined above, I also have considered the authorities referred to by counsel, bearing in mind the sentencing objective, noted above, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[47] The reality, of course, is that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at paragraph 92:
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
[48] Although I was referred to numerous authorities by Crown counsel and defence counsel, I found many if not most of them to be unhelpful, insofar as I found it was difficult to draw clear parallels between the situations they dealt with and the case at hand.
[49] For example, few authorities presented to me involved a situation involving what might fairly be described as a serial sexual predator, who manipulated and breached the trust of a large number of families, (of which he was not a member), and a corresponding number of victims, over the course of so many years.
[50] In my view, such situations, (where a sexual predator, who is an “outsider” vis-à-vis numerous families, nevertheless demonstrates a capacity to insert himself into the dynamics of multiple families, deceive parents, betray longstanding trust relationships, and abuse multiple victims, over the course of many years), give rise to different, distinct, pernicious and troubling concerns, incapable of being addressed by the application of simple mathematics to cases involving more extensive abuse of a single complainant, or the abuse of more than one complainant within the same family, especially where the abuse involves certain family members by another relation.
[51] Similarly, I have concerns about relying on the precedential value of increasingly dated cases, (such as those decided before the introduction of mandatory minimums, and against a backdrop of conditional sentence availability), which may be out of touch with escalating concerns about the prevalence and seriousness of such sexual abuse.
[52] Crown counsel referred me to our Court of Appeal’s 2002 decision In R. v. D.D., supra, in which the offender was found guilty, after trial, of 11 sex-related offences involving four young boys. The underlying misconduct extended over a seven year period, with the offender befriending and grooming four young boys, ranging in age from 5 to 8 years, for periods of time ranging from 2 to 7 years. The offender “regularly and persistently” engaged them in all manner of sexual activity, including “countless” acts of masturbation and oral sex, group sexual encounters involving the offender and several of the boys, as well as attempted and completed acts of anal intercourse. The abuse involved not only a breach of trust, but also threats of violence and extortion, as well as acts of physical violence. The abuse unquestionably had produced “untold grief and misery” for the victims and their families, whose lives had been shattered, with the children left permanently scarred and possibly damaged psychologically for life. In the circumstances, our Court of Appeal upheld a global sentence of 9 years and 1 month, reduced to 8 years and 1 month by reason of time served in pre-sentence custody. In doing so, it emphasized that adult offenders, in a position of trust, who sexually abuse innocent young children on a “regular and persistent basis over substantial periods of time”, can expect to receive mid to upper single digit penitentiary terms; that when the abuse involves full intercourse, anal or vaginal, and 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 generally will be appropriate; and that when such elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. The decision underscores the principles of denunciation and deterrence in this area. However, the case before me now, involving a comparable number of victims, but far less invasive acts of touching, without penetration, on far fewer occasions, over shorter periods of time, often over or through the victims’ clothing, and without any indication of violence, threats of violence, or brutalization, seems clearly distinguishable from the far more serious types of abuse that were the apparent focus of our Court of Appeal in R. v. D.D., supra.
[53] Defence counsel referred me to our Court of Appeal’s 2008 decision in R. v. Cerda, 2008 ONCA 438, in which the offender was convicted after trial of three counts of invitation to sexual touching and two counts of sexual interference. The complainants were three young males between the ages of 10 and 12, which suggests that more than one family was involved, (but almost certainly not as many as the number in this case). The relevant abuse occurred over an 18 month period, with grooming leading to fellatio with two of the victims, and the third resisting the offender’s attempts in that regard. Our Court of Appeal noted that it was open to the trial judge to find that a sentence of two years less a day was appropriate, but found the imposition of a conditional sentence in that regard to be inappropriate, and substituted a sentence of 18 months in jail prior to credit for pre-sentence custody. In some respects, Mr Luckhart’s case is more favourable, in light of his guilty pleas, and the reality that none of his abuse proceeded to the inherently more serious act of fellatio, (although Mr Luckhart tried to have that happen in one instance). On the other hand, Cerda was a youthful 18-19 year old first offender, and his conduct was confined to a much shorter period of time, and a significantly reduced number of actual victims, with no indications as to whether the offender breached any position of trust or authority.
[54] Defence counsel also referred me to the more recent case of R. v. Y.C.B., 2014 ONSC 3498 (S.C.J.), a decision of this court, in which a teacher was found guilty, after trial, of six counts of sexual assault, and six counts of sexual interference. The crimes involved five victims, who were young female students at schools where the offender had worked as an occasional teacher over what seems to have been a one year period. It also seems that the crimes were committed in the classroom, and involved inappropriate touching of the girls above and underneath their clothing. The accused received a global sentence of 12.5 months of imprisonment.. In some ways, the decision is comparable, insofar as it involved the same number of victims, and a clear abuse of a position of trust or authority. Moreover, the offender in that case did not have the benefit of guilty pleas, as Mr Luckhart does, which might suggest that he should receive more favourable treatment. On the other hand, it seems to me that there are clear and obvious distinctions. In particular, the offender in Y.C.B. utilized the same position of authority, in an somewhat opportunistic way as an occasional teacher, without engaging in anything comparable to the sustained grooming and manipulation of parents and their victims practiced by Mr Luckhart. It was not necessary for the teacher to deceive any parents, and the girls were placed in a situation where they were obliged to do what they were told. Moreover, the misconduct occurred over a more confined period of time, was limited to isolated and sporadic incidents, and involved abuse that was inherently less invasive insofar as it was transitory and in a public space, with a number of other students as witnesses. Mr Luckhart’s actions were more private, and clearly extended to more egregious acts of touching.
[55] The limited authorities to which I have referred, by themselves, obviously leave very wide sentencing parameters, with Mr Luckhart’s situation clearly falling somewhere in-between. More authorities, dealing with more analogous situations, would have been helpful, to provide the parties with the timely sentence they were seeking.
[56] In the result, however, I am left with the task of determining an appropriate sentence within those parameters, having regard to the various considerations and sentencing principles to which I have referred.
Assessment
[57] It has been said many times, and in many ways, that sentencing is not a mathematical or precise science.
[58] As between the competing positions advanced by the parties, on the whole, for the reasons outlined above, and having regard to all the circumstances, it seems to me that the sentence suggested by the Crown is more in line with what is appropriate, albeit with some reduction required to give further consideration to the mitigating factors noted above.
[59] Conversely, notwithstanding the eloquent submissions of defence counsel, it seems to me that the sentence suggested by the defence is not serious enough to satisfy the demands of denunciation and deterrence in a case such as this.
[60] In particular, it seems to me that curtailing an otherwise appropriate sentence to facilitate the receipt of certain treatment at the Ontario Correctional Institute is problematic for a number of reasons.
[61] First, while I certainly am prepared to make a recommendation that Mr Luckhart serve his sentence at a particular institution to facilitate his receipt of treatment, such a recommendation is in no way binding on those who will determine such matters while Mr Luckhart serves his time in custody. It therefore seems inappropriate to curtail an otherwise appropriate sentence based on what is little more than a hope, which may or may not come to pass.
[62] Second, I frankly do not understand why a more extended sentence than that suggested by the defence would put treatment programs, such as those offered by the Ontario Correctional Institute, beyond the reach of Mr Luckhart. In particular, while I can understand why a sentence of a certain minimum duration might be required to enable an inmate’s effective completion of a program offered at a particular institution, prior to the inmate’s release from custody, I do not see why the program would be rendered unavailable by the inmate having to spend a longer time in custody. It seems to me that such an inmate could either take the treatment program for a longer period of time, or be transferred to the institution offering the treatment program when his remaining sentence to be served coincides with the program’s duration. In the meantime, the interests of society are protected, in the sense that the offender will still be separated as necessary from society, and realistically unable to re-offend in this particular way, until he is eligible to receive such treatment.
[63] Third, it seems to me that curtailing an otherwise appropriate sentence to facilitate treatment risks putting the cart before the horse, in terms of furthering the goals of general and specific deterrence. In particular, it seems to me that those engaging or thinking of engaging in such abuse of vulnerable children, to satisfy their sexual cravings, need to hear, loud and clear, that they will pay a heavy price for such conduct, when their conduct comes to light. That realization may in turn prompt them to seek appropriate treatment before they inflict such harm on innocent victims and their families. In my view, suggesting to such persons that their sentence will be reduced to facilitate treatment after the fact, if and when their conduct is discovered, sends the wrong message.
[64] Having regard to all the circumstances, I find that the appropriate custodial sentence for Mr Luckhart should be 29 months, prior to his receiving credit for time spent in pre-sentence custody, reducing his net sentence of further incarceration to 18 months.
[65] As noted above, defence counsel took no issue with the Crown’s request for imposition of a three year period of probation following Mr Luckhart’s release from custody, and I independently find that would be appropriate in the circumstances, particularly insofar as it would provide maximum assistance and encouragement to Mr Luckhart, insofar as his desired counselling and rehabilitation are concerned.
[66] I accordingly intend to impose a three year period of probation, following Mr Luckhart’s net custodial sentence, with terms that will be outlined during formal imposition of sentence.
Ancillary orders
[67] As for the various further orders requested by the Crown:
• A mandatory weapons prohibition order is required pursuant to s.109(1)(a) of the Code. I agree with the Crown’s request, (not opposed by the defence), that the prohibition should be for life.
• The DNA sample order requested by the Crown was not opposed by the defence, but I independently think it is required and appropriate. Sexual interference and sexual assault are expressly included within the s.487.04 Code definition of “primary designated offence”, which in turn means that a DNA sample order in Form 5.03 is mandated in any event pursuant to s.487.051(1) of the Code.
• An order in Form 52 requiring Mr Luckhart to comply with the Sex Offender Information Registration Act for life is similarly not only appropriate but also mandatory. In particular, s.490.011(1)(a)(ii) and s.490.011(a)(xvi) of the Code expressly include sexual interference and sexual assault within the definition of “designated offence”, for the purposes of s.490.012(1), and pursuant to s.490.013(2.1) of the Code, the mandatory period of compliance with the Sex Offender Information Registration Act is life, given Mr Luckhart’s multiple convictions for such offences.
• In contrast to the above orders, the relief requested by Crown counsel pursuant to s.161 is discretionary, rather than mandatory. In particular, while s.161(1.1) expressly includes sexual interference and sexual assault within the list of offences engaging the jurisdiction provided by s.161(1), the provisions of that subsection indicate that the court “shall consider making and may make” such prohibition orders, “subject to the conditions or exemptions that the court directs”. [Emphasis added.] In the circumstances of this case, and having particular regard to Mr Luckhart’s understandable desire to visit, from time to time following his release from custody, his parents and other relatives who live in Sebringville, and the possibility that children may be included within that family circle, I think it appropriate to make an order pursuant to s.161 that generally accords with the draft terms prepared by defence counsel and marked as exhibit “A” for identification, during the course of sentencing submissions, except that the said terms shall be amended so as to generally prohibit Mr Luckhart from being within 250 meters of any known dwelling, place of employment or place of education of the victims named in the counts of the indictments to which Mr Luckhart has pled guilty, and members of the immediate families of those named victims, unless Mr Luckhart is traveling directly to and from his parent’s residence. The said order shall have a duration of twenty years.
• Finally, I also think it entirely appropriate to make an ancillary order pursuant to s.743.21(1) of the Code, imposing communication restrictions on Mr Luckhart, during the custodial period of his sentence, that are similar to the communication restrictions that will be imposed by the terms and conditions governing his period of probation.
Formal imposition of sentence
[68] Stand up please Mr Luckhart.
[69] For the reasons I have outlined, I am sentencing you to a period of incarceration for 29 months, in relation to each count to which you have pled guilty, but with the sentence on each such count to run concurrently, and with your receiving credit for the equivalent of 11 months of pre-sentence custody, so as to reduce your remaining period of incarceration on all counts to 18 months.
[70] I will be endorsing your warrant of committal with a recommendation that, if at all possible, you should spend all or part of that period of custody at the Ontario Correctional Institute, with the hope of your benefitting from the treatment programs offered there for sexual offenders.
[71] Your time in custody shall be followed by three years of probation, which shall be governed by terms and conditions that will include the following:
• To keep the peace and be of good behavior;
• To appear before the court when required to do so by the court;
• To 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;
• To report to a probation officer within two working days of your release from custody, and thereafter, when required by the probation officer and in the manner directed by the probation officer;
• To remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
• To refrain from any direct or indirect contact, communication or association with M.H., BE1, BE2, NR, EF, and all members of their immediate families, (including parents, spouses, siblings and children), and similarly refrain from knowingly coming within 250 meters of any known place of residence, education or employment of any of those individuals, except for the purpose of travelling directly to and from your parents’ residence; and
• To attend for any assessment, and actively participate in any and all programs of rehabilitation or counselling recommended and directed by your probation officer, which may include, but which shall not be limited to, sex offender counselling.
[72] There will, as well, be further ancillary sentencing orders whereby:
• pursuant to s.109(a) of the Code, you will be subject to a weapons prohibition order for life;
• pursuant to ss.487.04 and 487.051(1) of the Code, you will provide the number of samples of bodily substances that is reasonably required for forensic DNA analysis;
• pursuant to ss.490.011(1)(a)(ii), 490.011(1)(a)(xvi), 490.012(1) and 490.013(2.1) of the Code, you will comply with the Sex Offender Information Registration Act for life;
• pursuant to s.161 of the Code, you will be subject to an order, for a duration of 20 years, prohibiting you from:
o attending any 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 daycare centre, schoolground, playground or community centre;
o being within 250 meters of any known dwelling-house, place of education or place of employment of M.H., BE1, BE2, NR, EF, and all members of their immediate families, (including parents, spouses, siblings and children), except for the purpose of travelling directly to and from your parents’ residence;
o seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and
o having any contact, including communication by any means, with a person who is under the age of 16 years, unless you do so under the supervision of a sober person over the age of 18 years who is aware of the offences giving rise to the section 161 prohibition order; and
• pursuant to s.743.21(1) of the Code, you will be subject to an order, prohibiting you from communicating, directly or indirectly, during the custodial period of your sentence, with any of the individuals identified in the aforesaid section 161 order..
[73] Mr Luckhart, you have done an abhorrent thing in abusing the innocence of these vulnerable young boys, the children of people whom you claimed as friends. People who welcomed you into their homes and families. People who trusted you with the most precious things they had - - their children. You’ve damaged their lives, the lives of their families. In the process, you’ve hurt your own family, and thrown away much of the life you knew.
[74] You will have more time to reflect on that while serving the remainder of your sentence – but, as I have said, I expect the consequences of what you have done will follow you for the rest of your life.
[75] Hopefully, that will not be the case for your victims, and their families.
[76] You’ve admitted that you need help. For your sake, and the sake of all concerned, I hope you get it. I hope you can turn your life around. I hope you can salvage some of what was good, decent and productive in your life, when you are released from custody. You contributed to society once. You clearly have it in you to do that. I hope you will again.
[77] For now, I will endorse the indictment and the warrant of committal accordingly.
”Justice I. F. Leach”
JUSTICE I. F. LEACH
Released: (Orally) March 3, 2016